36 105.15 -FAILURE TO MAINTAIN ROADWAY OR STRUCTURE : If the Contractor, a t any time, fails to comply with the provisions of 105.14, the Engineer will immediately notify the Contractor of such non -compliance. If the Contractor fails to remedy unsatisfactory maintenance within 24 hours after receipt of such notice, the Engineer may immediately proceed to maintain the project, and the entire cost of maintenance will be deducted from monies due or to become due the Contractor on their Contract.
105.16 Acceptance :
105.16.1 Partial Acceptance: If at any time during the prosecution of the project, the
Contractor completes a unit or portion of the project, such as a structure, an interchange, or a section of road or paveme nt, the Contractor may request the Engineer to make final inspection of that unit. If the Engineer finds upon inspection that the unit has been completed in compliance with the Contract, the Engineer may accept that unit as being completed and the Contrac tor may be relieved of further responsibility for that unit. Such partial acceptance shall in no way void or alter any of the terms of the Contract.
105.16.2 Final Acceptance: After the Contractor completes all specified work
satisfactorily and execut es and delivers all required documents, certificates, and proofs of compliance, the Contractor shall provide written notice of completion to the Engineer. If the Engineer agrees the Project is substantially complete they will notify the Contractor and wil l conduct a final inspection within thirty ( 30) calendar days. If the Engineer determines that all construction and other contractual requirements provided for and contemplated by the Contract are satisfactorily completed, that inspection will constitute the final inspection. If the Engineer determines any work, i n whole in part, is unsatisfactory, the Engineer will give the Contractor a punch list for correction in writing, within fifteen ( 15) calendar days after inspection. The Contractor shall immediately comply with and execute such instructions. The Contract or shall supply to the Engineer all material certifications, all documents necessary for project finalization, and agree to final quantities within ninety ( 90) calendar days of punch list notice. If the Contractor fails to give notice of disagreement to t he Engineer about any issue within ninety ( 90) calendar days of punch list notice, including the reason for dispute and justification, the final payment will be based on the Engineer’s list of final quantities. If the Contractor fails to provide material certification, the Division may deduct cost of material from the project. The Contractor shall complete all remaining punch list work within 135 calendar days of punch list notice. If the Engineer determines that the punch list is incomplete, the Divisio n may withhold all payments on any and all Contracts. Upon timely correction of the work, another inspection will be made which will constitute the final inspection provided the Engineer determines that the work has been satisfactorily completed. The Engineer will make the final acceptance and notify the Contractor in writing of acceptance. Final acceptance will be the date the Contract Completion Report is fully executed by the Division.
105.16.2 1 -Punch List: The punch list will identify and incl ude, but not be limited to,
any item of work that need corrected before Final Acceptance; all necessary material certifications; any unsigned change orders; any applicable certified payrolls; all certification of subcontractor payment; any applicable Proof of Payments needed for B&O tax; and any other item needed for finalization. 37 105.17 -CLAIMS FOR ADJUSTMENT AND DISPUTES : If additional compensation is considered due for work or material not covered in the Contract, written notification of the intent to make a claim under Subsection 104.9, shall be given to the Engineer before beginning or continuing the affected work. The Engineer will respond as described under Subsection 104.9 following notification. The Contractor shall provide necessary cooperation and information to the Engineer during the period of notification, review, and evaluation to provide possible resolution of the Contract question and avoid, if possible, further c laim process actions. If notification is not given, or the Contractor does not afford the Engineer proper facilities for keeping strict account of actual costs, the Contractor waives any claim for additional compensation. Notice by the Contractor, and the fact that the Engineer has kept account of the costs shall not be construed as substantiating the validity of the claim. An equitable adjustment will be made to the Contract if the claim is found to have merit.
A.Claim submittals shall be in sufficient deta il to enable the Engineer to determine the basis for entitlement and the resulting costs. The following information if available, should accompany each claim submitted:
1.Detailed factual statement of the claim providing all necessary dates locations, and items of work affected by the claim.
2.The date actions resulting in the claim occurred or conditions resulting in the claim became evident.
3.A copy of the "Notice of Potential Claim" Form (available from the Division), filed by the Contractor for the specific claim.
4.The name, title, and activity of each Department employee knowledgeable.
5.The name, title, and activity of each Contractor employee knowledgeable about the facts that gave rise to such claim.
6.The specific provisions of the Contract that support the c laim, and a statement why the provisions support the claim.
7.The identification of any pertinent documents, and the substance of any material communications relating to the claim.
8.A statement whether the additional compensation or extension of time is based on the provisions of the Contract or an alleged breach of Contract.
9.If an extension of time is also sought, the specific days for which it is sought and the basis for such claim as determined by an analysis of the construction schedule.
10.The amount of additional compensation sought and a breakdown of that amount.
B.Required Certification of Claims. The claim submittal shall include the Contractor's written certification, under oath, attesting to the following:
1.The claim is made in good faith.
2.Supportiv e data is accurate and compete to the Contractor's best knowledge and belief.
3.The amount of the claim accurately reflects the Contractor's actual cost incurred. In complying with this requirement, the Contractor shall use the following certification: Under penalty of law for perjury or falsification, the undersigned ___________________ (Company), hereby certifies that the claim for extra compensation and time, if any, made herein for work on this Contract is a 38 true statement of the actual costs incurre d and time sought, and is fully documented and supported under the Contract between the parties this ________ day of ________________, ________. __________________________(Company) By_________________________________ Its _______________________ __________ ATTEST: By_________________________________ Its _________________________________
C.Review of Claims. All claims filed will be subject to review by the Division at any time following the claim filing, whether or not the claim is part of a suit pending in the courts of this State. The review may begin upon submission. The Contractor, Subcontractor(s), or Supplier(s) shall cooperate with the Division and shall, at a minimum, provide access to the following documents of the Contracto r, Subcontractor(s), its/their subsidiaries, separate divisions and affiliates if said documents are available:
1.Daily time sheets and foreman's daily reports.
2.Union agreements if any.
3.Insurance , welfare, and benefits records.
4.Payroll register.
5.Earnings records.
6.Payroll tax returns.
7.Material invoices, purchases orders, and all material and supply Acquisition Contracts.
8.Material cost distribution worksheets.
9.Equipment records (list of company equipment, rates, etc.).
10.Vendor rental agreements and s ubcontractor invoices.
11.Subcontractor payment certificates.
12.Canceled checks (payroll and vendors).
13.Job cost report.
14.Job payroll ledger.
15.General ledger, general journal, (if used) and all subsidiary ledgers and journals together with all supporting documenta tion pertinent to entries made in these ledgers and journals.
16.Cash disbursements journal.
17.Depreciation records on all company equipment.
18.All other documents used to develop costs for the Contractor's internal purposes in establishing the actual cost of own ing and operating equipment.
19.All documents related to the preparation of the Contractor's bid including the final calculations on which the bid was based.
20.Worksheets used to prepare the claim, establishing the cost components for items of the claim includi ng, but not limited to, labor, benefits and insurance, materials, equipment, subcontractors, and all documents that establish the time periods, individuals involved, the hours and the rates for the individuals. 39 SECTION 106 CONTROL OF MATERIALS 106.1 -SOURCE OF SUPPLY AND QUALITY REQUIREMENTS : 106.1.1 -Definitions: Unless the context in which used clearly requires a different meaning, as used in this section: “Aluminum and glass products” means products rolled, formed, shaped, drawn, extruded, forged, cast, fabricated, or otherwise similarly processed from aluminum and glass. “Coating” means all processes that protect or enhance the va lue of a material or product to which it is applied, such as, but not limited to, epoxy coatings, galvanizing, and painting. “Construction material” means an article, material, or supply that is or consists primarily of non -ferrous metals, plastic and po lymer -based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables), glass (including optic glass), lumber, or drywall. A “construction material” does not include an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives. Items that consist of two or more of the listed materials that have been combined together through a manufacturin g process, and items that include at least one of the listed materials combined with a material that is not listed through a manufacturing process, are treated as manufactured products and not as construction materials. “Domestic aluminum and glass produ cts” means aluminum and glass products for which all manufacturing processes, including application of a coating, have occurred in the United States. “Domestic steel products” means steel products for which all manufacturing processes, including applicat ion of a coating, have occurred in the United States. “Federal -aid highway project” means highway construction, maintenance, and utility projects funded in whole or in part with Federal -aid funds. “Manufacturing process” means any process which modifie s the chemical content, the physical size or shape, or the final finish of a material, including melting and mixing, rolling, extruding, machining, bending, grinding, drilling, and coating. “Manufacturing process” for construction materials means the fi nal manufacturing process and the immediately preceding manufacturing stage for the construction material. “Manufacturing process” for steel and iron means any process which modifies the chemical content, the physical size or shape, or the final finish o f a material, including melting and mixing, rolling, extruding, machining, bending, grinding, drilling, and coating. “Material” means any tangible substance incorporated into a highway project. “Public Works” includes roads, highways, streets, bridges, sidewalks, sewage systems, buildings, engineering and architectural works, and any other structure, facility or improvement constructed or undertaken by the Division. “State contract project” me ans any erection or construction of, or any addition to, alteration of or other improvement to any building or structure, including, but not limited to, roads or highways, or the installation of any heating or cooling or ventilating plants or other equipme nt, or the supply of any materials for such projects, pursuant to a contract with the State of West Virginia for which bids were solicited. “Steel products” means products rolled, formed, shaped, drawn, extruded, forged, cast, fabricated or otherwise sim ilarly processed, or processed by a combination of two or more of 40 such operations, from steel made by the open hearth, basic oxygen, electric furnace, Bessemer or other steel making process. “United States” means the United States of America and include s all territory, continental or insular, subject to the jurisdiction of the United States. 106.1.2 -State and/or Federal Use of Domestic Steel and Iron: Any steel or iron materials used for either Federal -aid highway and state contract projects shall be manufactured, including the applications of any coatings, in the United States and compliant with 23 U.S.C. 313 and 23 CFR 635.410, entitled “Buy America Requirements.” and compliant with Chapter 5, Article 19 and Chapter 5A, Article 3, Section 56 of the West Virginia Code, entitled the “West Virginia American Steel Act of 2001. Buy America requirements do not apply to non -ferrous alloy materials used to make steel or any raw materials (iron ore and alloys), scrap, pig iron, or processed, pelletized, an d reduced iron ore. Buy America requirements do not apply to temporary elements not permanently incorporated into a project, such as falsework, temporary sheet piling, detour bridges and the like; temporary elements left in place at the Contractor’s conven ience, unless the contract plans and specifications require steel or iron components (i.e. stay -in-place forms, ties for steel, sheet piling, etc.) or imply that the item be left in place; or items that are simply moved from one place to another within the same project. When steel or iron materials are used, the Contractor shall furnish a certificate of compliance which covers all materials and products involved, including those of any subcontractors and suppliers certifying compliance with Buy America requirements prior to the permanent incorporation of the materials into the project. The Division shall not authorize or make any payments to a Contractor not fully compliant with this requirement. Any payment made t o any Contractor who did not fully comply with this requirement may be recovered by the Division. Any exception to Federal Buy America requirements for domestic steel and iron will be in accordance with MP 106.10.50 and shall be compliant with 23 U.S.C. 313 and 23 CFR 635.410 106.1.3 -Preference for Domestic Aluminum and Glass Products: Any aluminum or glass products to be supplied in the performance of any contract or subcontract for the construction, reconstruction, alteration, repair, improvement, o r maintenance of public works or for the purchase of any item of machinery or equipment to be used at the sites of public works shall be manufactured in the United States and compliant with Chapter 5, Article 19 of the West Virginia Code . This requirement applies to all federal and state public works contracts, including state purchase order contracts; however does not apply to any State funded projects with a contract award amount of $50,000, or less. The Division shall not authorize or make any payments to a Contractor not fully compliant with this requirement. Prior to any payment, the Division shall require the Contractor to furnish a certificate of compliance which covers all materials and products involved, including those of any subcontractors and s uppliers. Any payments made by the Division to any Contractor who did not fully comply with this requirement may be recovered by the Division. 106.1.4 -Use of Domestic Construction Materials: Any construction materials, as defined in Section 106.1.1, shall be manufactured in the United States and compliant with the “Infrastructure Investment and Jobs Act,” Section 70901 -52, entitled the “Build America, Buy America Act.” Section 70901 -52, entitled the “Build America, Buy America Act” as implemented by t he Office of Management and Budget (OMB) in the “Preliminary Guidance 41 for Construction Materials” in OMB Memorandum M -22-11. No construction material may be used unless the manufacturing process for the manufacture of the construction material occurs in the United States. Buy America also applies to all projects within the scope of a finding, determination, or decision under the National Environmental Policy Act (NEPA), regardless of the funding source, if at least one contract within the scope of the N EPA decision is funded with Federal funding provided under Title 23. Buy America only applies to construction materials that are consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, removed at or before completion of the project. Nor does Buy America apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished projec t, but are not an integral part of or permanently affixed to the structure. When construction materials are used, the Contractor shall supply adequate documentation certifying compliance with Buy America requirements prior to the permanent incorporation of the materials into the project. Any exceptions to Buy America requirements for domestic construction materials will be in accordance with MP 106.10.50 and shall be compliant with the Build America, Buy America Act. 106.1.5 -Exceptions: Any exceptions to state preference requirements for domestic aluminum, glass, and steel products will be in accordance with MP 106.10.50 and shall be compliant with Chapter 5, Article 19 and Chapter 5A, Article 3, Section 56 of the Wes t Virginia Code When foreign -made aluminum, glass, and steel products are used or supplied in compliance with an approved exception, the Contractor shall be responsible for providing procedures acceptable to the Division for determining that specificatio n requirements are met, including all inspections at no additional cost to the Division. The use of foreign -made products will not be reason for grant an extension of contract time. 106.2 -LOCAL MATERIAL SOURCES : 106.2.1 -Designated Sources: Possible sources of local materials may be designated in the contract documents. The quality of material in such deposits will be acceptable in general, but the Contractor shall determine fo r themselves the amount of equipment and work required to produce a material meeting the Specifications. It shall be understood that it is not feasible to ascertain from samples the limits for an entire deposit, and that variations shall be considered as usual and are to be expected. The Engineer may order procurement of material from any portion of a deposit and may reject portions of the deposit as unacceptable. The Division may acquire and make available to the Contractor the right to take materials from the sources designated in the contract documents together with the right to use such property as may be specified, for plant site, stockpiles, and haul roads. 106.2.2 -Contractor Furnished Sources: If the Contractor desires to use materials from sources other than those designated, the Contractor shall acquire the necessary rights to take materials from the sources and shall pay all costs related thereto, including any which may result from an increase in length of haul. All costs of exploring and developing such other sources shall be borne by the Contractor. The use of material from other than designated 42 sources will not be permitted until representative samples taken by the Engineer have been approved and written authority is issued for the use thereof. When material deposits are not designated in the Contract, the Contractor shall provide sources of material acceptable to the Engineer. When sources of material or material deposits are provided by the Division, the Division will assume the co st of processing samples to determine the suitability of the material unless otherwise specified. Sites from which material has been removed shall, upon completion of the work, be left in a neat and presentable condition and shall be properly drained. U nless otherwise directed by the Engineer, they shall be seeded and mulched as provided in 652 without additional compensation. Where practicable, borrow pits, gravel pits, and quarry sites shall be located so they will not be visible from the highway. In accordance with the agreement between the Division of Highways and the Division of Environmental Protection, the Contractor cannot furnish material from borrow areas outside the right of way for any other public or private use. 106.3 -SAMPLES : All materials will be inspected, tested and approved prior to incorporation into the work. Any work which incorporates materials prior to the above evaluation shall be performed at the Contractor's risk, and may subsequently be considered as unacceptable. Unless otherwise specified, the materials shall meet the applicable Standard or Interim Specifications of the American Association of State Highway and Transportation Officials, the Standard or Tentative Specifi cations of the American Society for Testing and Materials, or Standards adopted by other specifying agencies, with preference given in the same order in which the above agencies are listed. The specification which is current at the time of advertisement f or bids shall govern, except that, with the approval of the Engineer, subsequent revisions or adoptions may govern. All materials being used are subject to inspection, testing or rejection at any time prior to final acceptance of the completed work. The Contractor shall be responsible for the quality of construction and materials incorporated. When called for in the Specifications, the Contractor shall perform all necessary process control inspection, sampling and testing. All materials will be approved for acceptance through the Division's acceptance procedures. The Division has the exclusive right and responsibility for determining the acceptability of the construction and materials incorporated. The Division may use the results of the Contractor's i nspection, sampling and testing for acceptance purposes. Lot or sublot sizes will normally be designated. In the event that operational conditions cause work to be interrupted, or only partially completed before the lot size designated has been achieved, the lot or sublot may be redefined by the Engineer as being either the amount of work accomplished within the day or that work partially completed combined with the next lot or sublot of work. It is the intent of these Specifications that the number of s amples required to evaluate each lot or sublot will be unchanged even when the lot or sublot is redefined. When an acceptance plan is cited, it shall be in accordance with 106.3.1. 106.3.1 -Acceptance Plans: 106.3.1 .1-Percent Within Tolerance: The per centage of each lot or sublot of material, product, item of construction, or completed construction within the specified tolerances will be determined by the procedures as referenced by the specification requirements. 43 When West Virginia AP -A is referenced , it will consist of Tables 106 -1 to 106 -5 inclusive, published in MP 106.00.20. 106.3.1 .2-Sampling of Reworked Lots or Sublots: It is the intent of these Specifications that lots or sublots of materials, products, items of construction or completed construction meet specification requirements at the time of submission. Lots or sublots generally will not be resampled unless reworked before submission. Sampling after reworking will be at the expense of the Contractor. 106.4 -PLANT INSPECTION : The Engineer may undertake the inspection of materials at the source. In the event plant inspection is undertaken, the following conditions shall be met:
i.The Engineer shall have the cooperation and assistance of the Contractor and the producer with whom the Contractor has contracted for materials. ii. The Engineer shall have full entry at all times to such parts of the plant as may concern the manufacture or production of the materials being furnished. iii. Adequate safety measures are to be provided and maintained. The Division reserves the right to retest all materials, which have been tested and accepted at the source of supply, after the materials have been delivered to the project and prior to incorpora tion into the work and to reject all materials which, when retested, do not meet the requirements of these Specifications or those established for the specific project. 106.5 -STORAGE OF MATERIALS : Materials shall be so stored as to assure the preservation of their quality and fitness for the work. Stored materials, even though approved before storage, may again be inspected prior to their use in the work. Stored materials shall be located so as to facilitate their prompt inspection. Approved portions of the right -of-way may be used for storage purposes and for the placing of the Contractor’s plant and equipment, but any additional space required therefore must be provided by them at their expense. Private property shall not be used for storage purposes without written permission of the owner or lessee, and if requested by the Engineer, copies of such written permission shall be furnished. All storage sites shall be restored to their original condi tion by the Contractor at their expense. This shall not apply to the stripping and storing of topsoil, or to other materials salvaged from the work. Care shall be exercised to protect finished concrete surfaces from being stained from storing or placing materials, including but not limited to reinforcing bars or mesh or unpainted structural steel, on same. Any such material so stored shall be adequately protected from weather. Any stains resulting from storage of materials on finished concrete surfaces shall be removed by the Contractor at their expense. Aggregate stockpiles may be made on ground that is denuded of vegetation, hard, and well drained. If necessary, the ground shall be covered with two inch (50 mm) plank. Different kinds and sizes of ag gregates shall be kept separate during transportation, handling, and storage until batched. If necessary, partitions of suitable height and strength shall be constructed between stockpiles to prevent different materials from becoming mixed. Care must be taken to prevent segregation of the coarse and fine particles of aggregates from taking place during handling or hauling. The inclusion of foreign materials will not be permitted. Aggregates placed directly on the ground shall not be removed from the sto ckpiles within one foot (300 mm) of the ground until the final cleaning up of the work, and then only the clean aggregate will be permitted to be used. 106.6 -HANDLING MATERIALS : All materials shall be handled in such manner as to preserve their quality and fitness for the work. Aggregates shall be transported from the storage site to the work in tight vehicles, so constructed as to prevent loss or segregation of materials after loading and measuring, in order that there may be no inconsistencies in the quantities of materials intended for incorporation in the work as loaded and the quantities as actually received at the place of operations. 106.7 -UNACCEPTABLE MATERIALS : 106.7.1 -Acceptance or Rejection: Following the application of the appropriate acceptance plan, the decision of the Engineer will be final as to the acceptance, rejection, or acceptance at an adjusted price of sampled lots or sublots. 106.7.2 -Disposition of Lots or Sublots: Lots or s ublots not conforming to specification requirements may be reworked or removed and replaced and resubmitted for acceptance. All nonconforming lots or sublots evaluated as unsatisfactory for the use intended shall be reworked or removed and replaced and re submitted for acceptance. When the evaluation indicates the lots or sublots may satisfactorily remain in place, acceptance will be an adjusted price as stated in the Specifications or as directed by the Engineer. 106.8 -DIVISION -FURNISHED MATERIAL : The Contractor shall furnish all materials required to complete the work, except those specified to be furnished by the Division. Materials furnished by the Divi sion will be delivered or made available to the Contractor at the points specified in the Contract. The cost of handling and placing all materials after they are furnished to the Contractor shall be considered as included in the contract price for the ite m in connection with which they are used. The Contractor will be held responsible for all material delivered to them, and deductions will be made from any monies due the Contractor to make good any shortages and deficiencies, from any cause whatsoever, an d for any damage which may occur after such delivery, and for any demurrage charges. 106.9 -SILENCE OF SPECIFICATIONS : The apparent silence of these Specifications, Supplemental Specifications, plans and Special Provisions as to any detail, or the apparent omission from them of a detailed description concerning any point shall be regarded as meaning that only material and workmanship of acceptable quality are to be used. 45 SECTION 107 LEGAL RELAT IONS AND RESPONSIBILITY TO PUBLIC 107.1 -LAWS TO BE OBSERVED : The Contractor shall keep fully informed of all Federal and State laws, all local laws, ordinances, and regulations and all orders and decrees of bodies or tribunals having any jurisdiction or authority, which in any manner affect those engaged or employed on the work, or which in any way affect the conduct of the work. The Contractor shall at all times observe and comply with all such laws, ordinances, regulations, orders and decrees; and shall protect and indemnify, defend and hold DOH harmless from any and all claims, liabilities and causes of action for any fines or penalties imposed on DOH by any state or federal agency because of violation by Contractor or any of its subcontractors and/or consultants of any state or federal law or regulation. 107.2 -PERMITS, LICENSES AND TAXES : The Contractor shall procure all permits and licenses, pay all charges, fees, and taxes, and give all notices necessary and incidental to th e due and lawful prosecution of the work. The Contractor shall provide the Division with sufficient documentation that all applicable taxes have been paid within 120 days of the project acceptance as provided for in 105.16. The Division shall have the r ight to revoke the Contractor’s Prequalification until the Contractor provides sufficient documentation that all taxes have been paid or are the subject of a timely filed dispute currently pending in a court or other body having legal authority and jurisdi ction to hear the dispute. 107.3 -PATENTED DEVICES, MATERIALS, AND PROCESSES : If the Contractor employs any design, devise, material, or process covered by letters of patent or copyright, the Contractor shall provide for such use by suitable legal agreement with the patentee or owner. The Contractor and the surety shall indemnify and save harmless the Division, and affected third party, or political subdivision from and claims for infringement by reasons of the use of any such pa tented design, device, material or process, or any trademark or copyright, and shall indemnify the Division for any costs, expenses, and damages which it may be obligated to pay by reason of any infringement, at any time during the prosecution or after the completion of the work. 107.4 -RESTORATION OF SURFACES OPENED BY PERMIT : The right to construct or reconstruct any utility service in the highway or stree t or to grant permits for same, at any time, is expressly reserved by the Division for the proper authorities of the municipality in which the work is done, and the Contractor shall not be entitled to any damages either for the digging up of the street or for any delay occasioned. Any individual, firm, or corporation wishing to make an opening in the highway must secure a permit from the Division. The Contractor shall allow parties bearing such permits, and only those parties, to make openings in the high way. The Contractor shall, when ordered by the Engineer, make in an acceptable manner all necessary repairs due to such openings and such necessary work will paid for as "Extra Work", or as provided in these Specifications, and will be subject to the same conditions as original work performed. 46 107.5 -FEDERAL -AID PROVISIONS : When the United States Government pays any portion of the cost of a project, the Federal Laws and the Rules and Regulations made pursuant to such laws must be observed by the Contractor, and the work shall be subject to the inspection of the appropriate Federal Agency. Such inspection shall in no sense make the Federal Government a party to the Contra ct and will in no way interfere with the rights of either party hereunder. 107.6 -SANITARY PROVISIONS : The Contractor shall provide and maintain in a neat, sanitary condition s uch accommodations for the use of their employees as may be necessary to comply with the requirements of the State and local Boards of Health, or of other bodies or tribunals having jurisdiction. The Contractor shall not create, commit, or maintain a publ ic nuisance. 107.7 -PUBLIC CONVENIENCE AND SAFETY : The Contractor shall at all times so conduct their work as to assure the least possible obstruction to traffic. The safety and convenience of the general public and the residents along the highway and the protection of persons and property shall be provided for by the Contractor as specified under 104.5. The Contractor shall comply with all applicable Fed eral, State, and local laws governing safety, health and sanitation. The Contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, on their own responsibility, or as the Engineer may determine, rea sonable necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the Contract. The Contractor and any subcontractor shall not require an y laborer or mechanic employed in performance of the Contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to their health or safety, as determined under construction safety and health standards (Title 2 9, Code of Federal Regulations, Part 1926, formerly Part 1518, as revised from time to time). promulgated by the United States Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (83 Stat. 96). 107.7.1 -Safety Plan: The Contractor shall comply with this subsection if the Total Contract Bid Amount exceeds $2,000,000 or is otherwise noted on the plans. The contractor will provide a copy of the company comprehensive safety and health program and the name of the company safety officer at the preconstruction conference or prior to start of work. A copy of the comprehensive safety and health program for each subcontractor and the name of the company safety officer must be submitted with the request for subco ntract approval. The company comprehensive safety and health program should be in accordance with ANSI A10.38 -1991, “Basic Elements of an Employer Program to Provide a Safe and Healthful Work Environment” or equivalent. A site specific safety plan covering the work of the prime contractor and all known subcontractors must be prepared and submitted at the preconstruction conference or prior to the start of work. The site specific plan must include the name of the competent person(s) responsible for safety at the project site. As additional subcontracts are negotiated the site specific safety plan for that work can be submitted with the subcontract request. Contractor employees shall be provided hazard recognition and avoidance training. Further, newly employed workers shall be provided safety orientation training prior to being assigned any task. This training can be provided by the contractor or the contractor’s 47 representative. Likewise, training provided by other sources based on an employee’s initiative or his or her affiliation with the other groups is permissible. All training should be current and up to date with appropriate refresher courses provided if previous training was not within the last three years. All contractor safety trainin g shall be administered or monitored by the contractor’s qualified representative, known as the company safety officer. “Qualified” means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training and experience, has successfully demonstrated his or her ability to solve or resolve problems relating to the subject matter, the work or the project. Acceptable training for this individual to be considered qualified includes, but is not limited to, completion of the 30-hour OSHA 500 Trainer Course in Occupational Safety and Health Standards for the Construction Industry or its equivalent. The Contractor or Subcontractor working on the project will conduct weekly safety “tool box” talks to disc uss relevant safety issues and this meeting will be open to attendance and active participation by the on -site Division of Highways Staff. 107.8 -RAILWAY -HIGHWAY PROVISIONS : The Contractor shall comply with the following provisions when performing any operations within the existing right of way of the Railroad or when railroad protective insurance is required by the contract documents. Railroad Protective insurance shall include all of the work set forth in 107.8 with exception of the provisions of sections 107.8.7 and 107.8.8. 107.8.1 -Notice of Starting Work : The Contractor shall not start any work on Railroad right of way until he has complied with the following conditions:
a.Give the Railroad's Chief Engineer written notice at least ten days in advance of the date he proposes to begin work on or adjacent to t he Railroad right of way.
b.Obtain written approval from the Railroad of the Railroad Protective Insurance coverage as required herein.
c.Obtain written authorization from the Railroad to begin work on Railroad right of way. This authorization can be expected within two weeks after insurance has been approved. 107.8.2 -Insurance: The Contractor shall secure and provide, until all work under the terms of the project is satisfactorily completed and accepted, the following types of insurance in the amounts and form as hereinafter set forth: 107.8.2.1 -Contractor's Public Liability Insurance and Protective Public Liability Insurance: Commerical General Liability ( CGL ) coverage as required by Section 103.7.1 shall be written with a $2,000,000 Each Occurrence Limit. This limit may be single limit of primary coverage or a combination of primary and excess coverage which will meet the $2,000,000 requirement. A certificate of insurance shall be provided to the R ailroad before work begins and said certificate shall provide the Railroad thirty (30) calendar days advance written notice of cancellation or material change in insurance coverage. If any part of the work is sublet, CGL Insurance and evidence thereof in the same amounts as required of the Prime Contractor, shall be provided by or in behalf of the subcontractor to cover his operations on railroad right of way. 48 107.8.2.2 -Railroad Protective Liability Insurance: With respect to the operations performed b y the Contractor or subcontractors of any tier the Contractor must provide in the name of Railroad. This policy shall be written on the ISO/RIMA Form of Railroad Protective Insurance (ISO Form CG0035) with Pollution Exclusion Amendment (ISO Form CG 2831 o r their equivalents). The original of the policy shall be submitted to and approved by the Railroad before work is commenced on its right of way or within 200 feet of the nearest track or 1000 feet if blasting is required for the construction. 107.8.2.2.1 -Railroad Protective Liability Insurance Limits for Non -Passenger Railway Facilities: A policy providing a limit of $2,000,000 per occurrence for bodily injury and property damage combined. Said insurance shall be furnished with an aggregate of $6,000,000 applying separately to each annual period. 107.8.2 .2.2-Railroad Protective Liability Insurance Limits for Passenger Railway Facilities: A policy providing a limit of $5,000,000 per occurrence for bodily injury and property damage combined . Said insurance shall be furnished with an aggregate of $10,000,000 applying separately to each annual period. 107.8.3 -Use of Grade Crossings : If the Contractor desires a temporary grade crossing of the Railroad's tracks other than that shown in the project plans; to use an existing private grade crossing; or to use an existing public grade crossing with unlicensed construction equipment, the Contractor shall make arrangements in writing with the Railroad and will be required to bear all costs, includ ing flagging, incidental to such crossings. 107.8.4 -Interference with Railroad Operations : All work to be performed by the Contractor shall be performed in a manner agreeable to the Railroad's Chief Engineer. The Contractor shall use reasonable care a nd diligence and cooperate with officials of the Railroad in order to avoid accidents, damages or unnecessary delay to, or interference with train movement of the Railroad. When work within Railroad right of way is of a nature that it impedes Railroad op erations such as, but not limited to, use of runaround tracks or the necessity for reduced speed, the Contractor shall schedule and conduct his operations so that such impediment is reduced to the absolute minimum. Any cost incurred by the Railroad for r epairing damages to its property or to property of its tenants, caused by or resulting from the operations of the Contractor, shall be paid directly to the Railroad by the Contractor. The Contractor shall assume all liability for any and all damages to h is work, employees, subcontractor, equipment and materials caused by Railroad traffic. No charge or claim of the Contractor against either the Division or the Railroad will be allowed for hindrance or delay on account of train traffic, work done by Railr oad, delay incident to or necessary for safe operation and maintenance of the railroad or any delays due to compliance with these special provisions. 107.8.5 -Construction Procedures : It shall be the Contractor's responsibility to arrange a schedule with the Railroad for accomplishing his work and the Railroad’s or its tenants work. The Contractor in arranging a schedule shall ascertain, from the Railroad, the lead time required for assembling crews and materials and shall make due allowance therefor. The Contractor shall submit to the Railroad's Chief Engineer, with a copy to the Division of Highways, work schedule and information regarding methods and procedures for 49 performing wor k, e.g., plans and specifications for shoring and sheeting, and for protective shields covering all Railroad facilities. The Contractor shall obtain Railroad approval before commencing said work. The Contractor shall take special precaution and care whe n excavating for shoring pits and footers adjacent to tracks and in driving piles to always provide adequate lateral support for the tracks and the loads which they carry, so as not to disturb the track alignment and surface and to avoid obstructing track clearances with working equipment, tools or materials. A copy of the Contractor's blasting sequence will be provided to the railroad for their information prior to any blasting. The Contractor shall obtain specific approval of the Railroad's Chief Engin eer for use of explosives on Railroad property. All construction equipment that is parked near the track shall be effectively immobilized so that it cannot be moved by unauthorized persons. Materials and equipment shall not be stored where they will in terfere with Railroad operations, nor on the right of way of the Railroad without first having obtained written permission from the Railroad's Chief Engineer. The Contractor will be required to maintain all ditches and drainage structures and keep them f ree of silt or other obstructions, to promptly repair eroded areas within Railroad right of way and to repair any other damage to the property of the Railroad or its tenants which may be the results of their operations. Upon completion of the work, the C ontractor shall remove from within the limits of the Railroad's right of way, all machinery, equipment, surplus materials, falsework, rubbish or temporary buildings which belong to the Contractor and leave said right of way in a condition satisfactory to t he Railroad's Chief Engineer. 107.8.6 -Track Clearances : The minimum track clearances to be adhered to by the Contractor during construction will be fifteen ( 15) feet from centerline of the track or as approved by the Railroad’s Chief Engineer. However, before undertaking any work within Railroad right of way or before placing any obstruction over any track, the Contractor shall:
a.Notify the Railroad's Chief Engineer at least 72 hours in advance of work.
b.Receive assurance from the Railroad's Chief Engineer that arrangements have been made for any flagging services necessary.
c.Receive permission from the Railroad's Chief Engineer to proceed with the work. 107.8.7-Flagging Services : Under the terms of the agreement between the Division and the Railroad, the Railroad has sole authority to determine the need for flagging required to protect its operations. In general, the services of Railroad flaggers will be requested when the Contractor's operations will be on or over the Railroad's right of way: (a) during the excavation, placing and removal of cofferdams, sheeting, shoring, driving of piling or placing of concrete footers adjacent to the track; (b) driving of pile bents adjacent to the track; (c) construction of the permanent structure including erection and removal of falsework, bracing or forms over or adjacent to the track; (d) transporting material or equipment across the track; (e) any operations invol ving direct interference with and/or coming in the close vicinity of power lines or Railroad signal and communication lines, underground cables, fuel oil facilities or pipelines which might result in fire or damage to such facilities to endanger Railroad o perations or to endanger the public in the transacting of business on Railroad right of way; (f) fouling of operating clearances or reasonable probability of accidental hazard to Railroad traffic; (g) during removal of portions of existing structures immed iately over or adjacent to a track; and (h) at all other times when the Railroad's Chief Engineer has determined conditions require such protection. 50 Flagging hours shown in the plans shall be reviewed by the Contractor and will be used as the approved fl agging hours. If the Contractor feels that the hours shown in the plans are not correct, he shall submit to the Engineer, in writing within sixty (60) days of the award of the project, his estimate for review and approval. The Department shall have thirty (30) days to approve the revised flagging hours. Additional hours may be permitted per Section 104.9. Additionally, all flagging charges resulting from any work done solely for the benefit of the Contractor will be deducted from the current estimate, due the Contractor. If the Contractor works within distances that violate instructions given by the Railroad ’s Chief Engineer or performs work that has not been coordinated with the Railroad ’s Chief Engineer, a flagman may be required full time at Contractor ’s expense until the project has been completed. Any work to be performed by the Contractor which requires flagging service or inspection service (watchman) shall be deferred by the Contractor until the flagging service or inspection service re quired by the Railroad is available at the job site. The Contractor shall furnish to the Railroad and the Division of Highways a schedule for all work required to complete the portion of the project within Railroad right of way and arrange for a job site meeting between the Contractor, the Division of Highways, and the Railroad ’s Chief Engineer. A flagman may not be provided until the job site meeting has been conducted and the Contractor ’s work schedule provided. The Contractor will be required to giv e the Railroad ’s Chief Engineer at least ten working days of advance written notice of his intent to begin work within Railroad right of way. Once work is begun, and is then suspended at any time for any reason, the Contractor will be required to give the Railroad ’s Chief Engineer at least three working days advance notice before resuming work on Railroad right of way. Such notice shall include sufficient details of the proposed work to enable the Railroad representative to determine if flagging will be r equired. Initially, it may take up to 30 days to obtain flagging from the Railroad. When flagging begins, the flagman is usually assigned by the Railroad to work at the project site on a continual basis until no longer needed. A flagman cannot be called for on a spot basis. If flagging becomes unnecessary and is suspended, it may again take up to thirty (30) days to obtain a flagman from the Railroad. Due to Railroad labor agreements, it may be necessary to give five working days notice before flagging service may be discontinued and responsibility for payment stopped. The Division of Highways will reimburse the Railroad directly for all costs incurred for flagging services by Railroad personnel, including any temporary grade crossing shown in the project plans up to the amount of hours shown on the Division's Project plans. In the event the Division of Highways is required to reimburse the Railroad for flagging service in excess of the approved flagging hours, such excess cost will be deducted from t he monthly and/or final statements of money due the Contractor. The Railroad flagman assigned to the project will be responsible for notifying the Project Engineer upon arrival at the job site on the first working day that flagging services begin and on the last day that he performs such services. This will be required for each separate period that services are provided. The Project Engineer will document such notification in the project records. When requested, the flagman will also sign the Inspector 's daily report form showing daily time spent and activity performed at the project site. The Contractor and Division of Highways will review and sign the Railroad flagman's time sheet, attesting that the flagman was present during the time recorded. Fl agman may be removed by Railroad if form is not signed. If flagman is removed, the Contractor will not be allowed to work on or re -enter the Railroad right of way until the issue is resolved. 107.8.8 -Failure to Comply : In the event the Contractor violates or fails to comply with any of the requirements of these provisions:
a.The Railroad's Chief Engineer may require that the Contractor vacate Railroad property.
b.The Division may stop all work adjacent to the Railroad. Any such orders shall remain in effect until the Contractor has remedied the situation to the satisfaction of the Railroad's Chief Engineer and the Division of Highways. All costs incurred resulting from compliance with these provisions shall be incident al to the items in the contract and no separate payment shall be made. 107.9 -BRIDGES OVER NAVIGABLE WATERS : All work on navigable waters shall be so conducted that free navigation of the waterways will not be interfered with and that the existing navigable depths and vert ical clearances will not be impaired except as by the U.S. Army Corps of Engineers and/or the U.S. Coast Guard.
107.10 Barricades and Warning Signs :
The Contractor s hall provide, erect, and maintain all necessary barricades, suitable and sufficient lights, danger signals, signs, and other traffic control devices, except as provided by 104.5, and the Contractor shall take all necessary precautions for the protection of the work and safety of the public. Highways closed to traffic shall be protected by effective barricades, and obstructions shall be illuminated during hours of darkness. Suitable warning signs shall be provided to properly control and direct traffic. The Contractor shall erect warning signs in advance of any place on the project where operations may interfere with the use of the road by traffic and at all intermediate points where the new work crosses or coincides with an existing road. Such warning si gns shall be erected in accordance with the Plans furnished. All barricades, warning signs, lights, temporary signals, and other protective devices must conform with the Standard " Manual on Temporary Traffic Control for Streets and Highways," and the pro visions of 715.9.
107.11 Use of Explosives :
When the use of explosives is necessary for the prosecution of the work, the Contractor shall exercise the utmost care not to endanger life or property, including new work. The Contractor shall be responsible for any and all damage resulting from the use of explosives. All explosives shall be stored in a secure manner, in compliance with all laws and ordinances, and all such st orage places shall be clearly marked. Where no local laws or ordinances apply, storage shall be provided satisfactory to the Engineer and in general not closer than 1,000 feet from the road or from any building or camping area or place of human occupancy. The Contractor shall notify each public utility company, having structures in proximity to the site of work, of their intention to use explosives and such notice shall be given sufficiently in advance to enable the companies to take such steps as they ma y deem necessary to protect their property from injury.
107.12 Protection and Restoration of Property and Landscape :
The Contractor shall be responsible for the preservation of all public and private property and shall protect carefully from disturbance or damage all land monuments and property marks
Source: West Virginia Standard Specifications for Road and Bridge Construction, 2023 Edition. Pages 46–61 of 1,006.