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104-1 INTENT OF CONTRACT.

The intent of the contract is to prescribe the work or improvements which the Contractor undertakes to perform, in full compliance with the plans, specifications, special provisions, proposal, and contract. In case the method of construction or character of any part of the work is not covered by the plans, these specifications shall apply. The Contractor shall perform all work in accordance with the lines, grades, typical sections, dimensions, and other data shown on the plans or as may be modified by written orders, and shall do such special, additional, extra, and incidental work as may be considered necessary to complete the work to the full intent of the plans and specifications. Unless otherwise provided in the special provisions or elsewhere in the contract, the Contractor shall furnish all implements, machinery, equipment, tools, materials, supplies, transportation, and labor necessary for the prosecution and completion of the work.

104-2 SUPPLEMENTAL AGREEMENTS.

Whenever it is necessary to make amendments to the contract in order to satisfactorily complete the proposed construction and/or to provide authorized time extensions, the Engineer shall have the authority to enter into a supplemental agreement covering such amendments.

Supplemental agreements shall become a part of the contract when executed by the Engineer and an authorized representative of the Contractor. The Contractor shall file with the Engineer a copy of the name or names of his representatives who are authorized to sign supplemental agreements.

104-3 ALTERATIONS OF PLANS OR DETAILS OF CONSTRUCTION.

The Engineer reserves the right to make, at any time during the progress of the work, such alterations in the plans or in the details of construction as may be found necessary or desirable. Under no circumstances will an alteration involve work beyond the termini of the proposed construction except as may be necessary to satisfactorily complete the project. Such alterations shall not invalidate the contract nor release the Surety, and the Contractor agrees to perform the work as altered at his contract unit or lump sum prices the same as if it had been a part of the original contract except as otherwise herein provided.

An adjustment in the affected contract unit or lump sum prices due to alterations in the plans or details of construction that materially change the character of the work and the cost of performing the work will be made by the Engineer only as provided in this article.

If the Engineer makes an alteration in the plans or details of construction which he determines will materially change the character of the work and the cost of performing the work, an adjustment will be made and the contract modified in writing accordingly. The Contractor will be paid for performing the affected work in accordance with Subarticle 104­8(A).

When the Contractor is required to perform work which is, in his opinion, an alteration in the plans or details of construction which materially changes the character of the work and the cost of performing the work, he shall notify the Engineer in writing prior to performing such work. The Engineer will investigate and, based upon his determination, one of the following will occur:

1. If the Engineer determines that the affected work is an alteration of the plans or details of construction that materially changes the character of the work and the cost of performing the work, the Contractor will be notified in writing by the Engineer and compensation will be made in accordance with Subarticle 104­8(A).

2. If the Engineer determines that the work is not such an alteration in the plans or details of construction that materially changes the character of the work and the cost of performing the work, he will notify the Contractor in writing of his determination. If the Contractor, upon receipt of the Engineer's written determination, still intends to file a claim for additional compensation by reason of such alteration, he shall notify the Engineer in writing of such intent prior to beginning any of the alleged altered work and the provisions of Subarticle 104­8(B) shall be strictly adhered to.

No contract adjustment will be allowed under this article for any effects caused on unaltered work.

104-4 SUSPENSIONS OF WORK ORDERED BY THE ENGINEER.

(A) Suspensions of the Work Ordered by the Engineer:

When the Engineer suspends in writing the performance of all or any portion of the work for a period of time not originally anticipated, customary, or inherent to the construction industry and the Contractor believes that additional compensation for idle equipment and/or labor is justifiably due as a result of such suspension, the Contractor shall notify the Engineer in writing of his intent to file a claim for additional compensation within 7 days after the Engineer suspends the performances of the work and the provisions of Subarticle 104­8 (C) shall be strictly adhered to.

Within 14 calendar days of receipt by the Contractor of the notice to resume work, the Contractor shall submit his claim to the Engineer in writing. Such claim shall set forth the reasons and support for such adjustment in compensation, including cost records, and any other supporting justification in accordance with Subarticle 104­8(C).

(B) Alleged Suspension:

If the Contractor contends he has been prevented from performing all or any portion of the work for a period of time not originally anticipated, customary, or inherent to the construction industry because of conditions beyond the control of and not the fault of the Contractor, its suppliers, or subcontractors at any tier, and not caused by weather, but the Engineer has not suspended the work in writing, the Contractor shall submit in writing to the Engineer a notice of intent to file a claim for additional compensation by reason of such alleged suspension. No adjustment in compensation will be allowed for idle equipment and/or labor prior to the time of the submission of the written notice of intent to file a claim for additional compensation by reason of such alleged suspension. Upon receipt, the Engineer will evaluate the Contractor's notice of intent to file a claim for additional compensation. If the Engineer agrees with the Contractor's contention, the Engineer will suspend in writing the performance of all or any portion of the work and the provisions of Subarticle 104­8(C) shall be strictly adhered to.

If the Engineer does not agree with the Contractor's contention as described above and determines that no portion of the work should be suspended, he will notify the Contractor in writing of his determination. If the Contractor does not agree with the Engineer's determination, the provisions of Subarticle 104­8(C) shall be strictly adhered to. Within 14 calendar days after the last day of the alleged-suspension, the Contractor shall submit his claim to the Engineer in writing. Such claim shall set forth the reasons and support for such adjustment in compensation, including cost records, and any other supporting justification in accordance with Subarticle 104­8(C).

(C) Conditions:

No adjustment in compensation will be allowed under Subarticles 104­4(A) and 104­4(B) for any reason whatsoever for each occurrence of idle equipment and/or idle labor which has a duration of twenty-four hours or less.

No adjustment in compensation will be allowed under Subarticles 104­4(A) and 104­4(B) to the extent that performance would have been suspended by any other cause, or for which an adjustment is provided for or excluded under any other term or condition of this contract.

No adjustment in compensation will be allowed under Subarticles 104­4(A) and 104­4(B) for any effects caused on unchanged work. No adjustment in compensation will be allowed under Subarticles 104­4(A) and 104­4(B) except for idle equipment and/or idle labor resulting solely from the suspension of work in writing by the Engineer.

No adjustment in compensation will be allowed under Subarticles 104­4(A) and 104­4(B) where temporary suspensions of the work have been ordered by the Engineer in accordance with Article 108­7 and the temporary suspensions are a result of the fault or negligence of the Contractor.

104-5 OVERRUNS AND UNDERRUNS OF CONTRACT QUANTITIES.

(A) General:

The Engineer reserves the right to make at any time during the work such changes in quantities as are necessary to satisfactorily complete the project. Such changes in quantities shall not invalidate the contract nor release the surety, and the Contractor agrees to perform the work as changed. The Engineer will notify the Contractor in writing of the significant changes in the quantities.

The Contractor will be entitled to an adjustment in contract unit prices for increased costs incurred in performing contract items which overrun or underrun the estimated contract quantities only as provided for in this article, and where the increased costs are caused by the overrun or underrun.

(B) Overruns--Increase in Unit Price:

If the actual quantity of any major contract item overruns the original bid quantity by more than 15 percent of such original bid quantity, or the actual quantity of any minor contract item overruns the original bid quantity by more than 100 percent of such original bid quantity, an increase in the contract unit price, excluding loss of anticipated profits, may be authorized by the Engineer. Revised contract unit prices pertaining to overruns will be applicable only to that portion of the overrun which is in excess of the percentages stated above.

1. Whenever it is anticipated that an overrun in a major or minor contract item in excess of that described above will occur, the Contractor may make written request for a revision in contract unit prices. It shall be incumbent upon the Contractor to justify the request for a revision in contract unit prices. After reviewing the Contractor's request, the Engineer will notify the Contractor of his determination as follows:

a. If the Engineer determines a revision in the contract unit price is justified, and the Engineer and the Contractor are in agreement as to the revision to be made in the contract unit price, then a supplemental agreement covering the revised unit price will be consummated prior to performing work on that quantity in excess of the percentage set forth above.

If the Engineer determines a revision in the contract unit price is justified, and the Engineer and the Contractor are not in agreement as to the revision to be made in the contract unit price, the Engineer will issue a force account notice prior to performing work on that quantity in excess of the percentage set forth above.

b. If the Engineer determines a revision in the contract unit price is not justified he will notify the Contractor of his determination in writing and payments will be made for the work at the contract unit price. Upon completion of the work, the Contractor may request an adjustment in the contract unit price as provided in paragraph 2 below.

2. Whenever an overrun in a contract item in excess of the percentages previously set forth has occurred and a supplemental agreement establishing an increase in the contract unit price has not been executed or the Engineer has not issued a force account notice, the Contractor may make written request for a revision in the original contract unit price. Any adjustment in the contract unit prices due to overruns will be made by the Engineer based upon his evaluation and comparison of the Contractor's documented cost records for all work performed on those quantities within the percentages stated above and the Contractor's documented cost records for all work performed on those quantities beyond the percentages stated above, and upon the contract unit prices. The Contractor's documented cost records for the work performed on those quantities beyond the percentages stated above shall be kept in accordance with the provisions of Article 109­3 which will indicate the cost of performing the item of work which has overrun. The Contractor's cost records and supporting data shall be complete in every respect and in such form that they may be checked by the Engineer. It shall be incumbent upon the Contractor to satisfy the Engineer of the validity of any request presented by the Contractor for an adjustment in contract unit price. After reviewing the Contractor's request, the Engineer may make such adjustment as he deems warranted based upon his engineering judgment and the payment to the Contractor will be made accordingly. The adjustment will be made on the next partial pay estimate and reflected on the final estimate.

(C) Underruns--Increase in Unit Price:

If the actual quantity of any major contract item underruns the original bid quantity by more than 15 percent of such original bid quantity, an increase in the contract unit price, excluding loss of anticipated profit, may be authorized by the Engineer. Revised contract unit prices pertaining to underruns of major contract items will be applicable to the entire quantity of the contract item which underruns. No revision will be made to the contract unit price for any minor contract item which underruns the original bid quantities.

Whenever it is anticipated that an underrun in a major contract item in excess of that described above will occur, the Contractor may make written request for a revision in contract unit price. If the Engineer and the Contractor are in agreement as to the revision to be made in the contract unit price, then a supplemental agreement covering the revised unit price will be entered into. If the Engineer and the Contractor are not in agreement, then after performance of the work, a revised unit price may be determined as described below.

Whenever an underrun in a major contract item in excess of the percentage previously set forth has occurred, and a supplemental agreement establishing an increase in the contract unit price has not been executed, the Contractor may make written request for a revision in the original contract unit price. The Contractor shall submit sufficient documentation and analysis of his costs to satisfy the Engineer of any non-recovered costs included in the item that underran. Any adjustment in contract unit prices due to underruns will be made by the Engineer based upon his evaluation of the Contractor's documentation and analysis setting forth changes in contract item cost attributable to the underrun. An analysis of costs shall be supplemented with the Contractor's documented cost records for the work performed on the total quantity of the affected item where the Contractor's request for compensation includes compensation for costs other than non-recorded fixed costs. The Contractor's cost records shall be complete in every respect and in such form that they may be checked by the Engineer. It shall be incumbent upon the Contractor to satisfy the Engineer of the validity of any request presented by the Contractor for adjustment in contract unit price. After reviewing the Contractor's request, the Engineer may make such adjustment as he deems warranted based upon his engineering judgment and the payment will be made on the final estimate. The total payment including any additional compensation granted by the Engineer due to an underrun in a major contract item shall not exceed the payment which would have been made for the performance of 100 percent of the original contract quantity at the original contract unit price.

In the event of underruns of major items less than 15% and underruns of minor items, which involve fabricated materials and which are not considered to be stock items, if fabrication of such material is begun or completed before the Contractor is advised of the reduction in the quantity of the pay item, the Department will reimburse the Contractor for the verified fabrication cost, including the cost of material less salvage value, or it may instruct the Contractor to have the fabricated material delivered to a site designated by the Engineer and make payment for such material in accordance with Article 109­6.

(D) Overruns and Underruns--Reduction in Unit Price:

Whenever it is anticipated that an overrun or underrun in a major contract item in excess of 15% or an overrun in a minor contract item in excess of 100% will occur, the Engineer may make written request for a reduction in contract unit price. If the Engineer and the Contractor are in agreement as to the decrease to be made in the contract unit price, then a supplemental agreement covering the revised unit price will be consummated prior to beginning work on that quantity in excess of the allowable percentages. If the Engineer and the Contractor are not in agreement as to the decrease to be made, the Contractor will be directed to perform the affected work on a force account basis. Payment for the affected work will be made based upon force account records kept in accordance with Article 109­3 but shall not exceed that payment that would have been made at the contract unit price.

104-6 ELIMINATED CONTRACT ITEMS.

The Engineer may eliminate any item from the contract, and such action will in no way invalidate the contract. In the event the item of work involves pre-fabricated materials, which are not considered to be stock items, and fabrication of such material is begun or completed before the Contractor is advised of the elimination of the contract item, the Department may reimburse the Contractor for the verified fabrication cost including the cost of materials less salvage value or may instruct the Contractor to have the fabricated material delivered to a site designated by the Engineer and make payment for such material in accordance with Article 109­6.

If the Contractor has partially completed a contract item prior to notification of the elimination of such item, the Department will reimburse the Contractor for the verified actual cost of the partially completed work not to exceed the payment that would have been made at the contract unit or lump sum price for the completed work.

In any event no payment will be made for loss of anticipated profits and no other allowance will be made for eliminated items except as listed above.

104-7 EXTRA WORK.

The Contractor shall perform extra work whenever it is deemed necessary or desirable to complete fully the work as contemplated. Extra work shall be performed in accordance with the specifications and as directed by the Engineer. No extra work shall be commenced prior to specific authorization for the performance of such extra work being given by the Engineer.

Extra work which is specifically authorized by the Engineer will be paid for in accordance with Subarticle 104­8(A).

When the Contractor is required to perform work which is in his opinion extra work, he shall notify the Engineer in writing prior to performing such work. The Engineer will investigate and, based upon his determination, one of the following will occur.

1. If the Engineer determines that the affected work is extra work, the Contractor will be notified in writing by the Engineer and compensation will be made in accordance with Subarticle 104­8(A).

2. If the Engineer determines that the work is not extra work, he will notify the Contractor in writing of his determination. If the Contractor upon receipt of the Engineer's written determination intends to file a claim for additional compensation by reason of such work, he shall notify the Engineer in writing of such intent prior to beginning any of the alleged extra work and the provisions of Subarticle 104­8(B) shall be strictly adhered to.

104-8 COMPENSATION AND RECORD KEEPING.

(A) Compensation--Article 104-3 and Article 104-7:

When the Engineer and Contractor agree that compensation is due under the provisions of Articles 104­3 or 104­7, payment will be made in accordance with one of the following:

1. When the Engineer and the Contractor agree to the prices to be paid, the agreement will be set forth in a supplemental agreement. If the estimated total cost of the affected work is equal to or less than $15,000.00 and the prices for performing the work have been mutually agreed to, the Contractor may begin work before executing the supplemental agreement. If the estimated total cost of the affected work is more than $15,000.00, the Contractor shall not begin the affected work until the supplemental agreement is executed.

2. When the Engineer and the Contractor cannot agree to the prices to be paid for the affected work, the Engineer will issue a force account notice prior to the Contractor beginning work. In this instance the affected work shall be performed as directed by the Engineer and paid for in accordance with the provisions of Article 109­3.

(B) Claim for Additional Compensation--Article 104­3 and Article 104­7:

The Contractor's notice of intent to file a claim for additional compensation under the provisions of Articles 104­3 and 104­7 shall be given to the Engineer in writing. The Contractor shall keep accurate and detailed cost records in accordance with the provisions of Article 109­3. The Contractor's cost records and supporting data shall be complete in every respect and in such form that they may be checked by the Engineer. The Contractor's cost records and supporting data shall clearly indicate the cost of performing the work in dispute and shall separate the cost of any work for which payment has been made. The Contractor's cost records shall be kept up to date and the Engineer shall be given the opportunity to review the methods by which the records are being maintained. The cost records shall be prepared on a weekly basis for each occurrence for which notice of intent to file a claim has been given and submitted to the Engineer within 7 days after the end of a given weekly period.

If the Contractor chooses to pursue the claim after the disputed work is complete, he shall submit a written claim to the Engineer for an adjustment in compensation based upon his cost records within 120 calendar days after completion of the disputed work. This claim shall summarize previously submitted cost records and clearly describe the Contractor's justification for an adjustment in compensation under the terms of the contract.

Upon receipt, the Engineer will review the Contractor's request and supporting documentation.

If the Engineer determines that the work covered by the claim is in fact compensable under the terms of the contract, an adjustment in compensation will be made based upon the documentation presented and his engineering judgment. The adjustment will be made on the next partial pay estimate and reflected on the final estimate. The compensation allowed shall be limited to the amount that would be paid if the work was performed in accordance with Article 109­3.

If the Engineer determines that the work covered by the claim is not compensable under the terms of the contract, the claim will be denied.

The Engineer will notify the Contractor of his determination whether or not an adjustment of the contract is warranted within 120 calendar days after receipt of the complete request, all necessary supporting justification, and cost records.

The failure on the part of the Contractor to perform any of the following shall be a bar to recovery under the provisions of Articles 104­3 or 104­7:

1. The failure to notify the Engineer in writing prior to performing the work in dispute that he intends to file a claim.

2. The failure of the Contractor to keep records in accordance with the provisions of Article 109­3.

3. The failure of the Contractor to give the Engineer the opportunity to monitor the methods by which records are being maintained.

4. The failure of the Contractor to submit additional documentation requested by the Engineer provided documentation requested is available within the Contractor's records.

5. The failure of the Contractor to submit cost records on a weekly basis.

6. The failure of the Contractor to submit the written request for an adjustment in compensation with cost records and supporting information within 120 calendar days of completion of the affected work.

(C) Compensation--Article 104­4:

The Contractor's notice of intent to file a claim for additional compensation under the provisions of Subarticle 104­4(A) shall be given to the Engineer in writing within 7 days after the Engineer suspends the performance of the work. For an alleged suspension, the Contractor's notice of intent to file a claim for additional compensation under the provisions of Subarticle 104­4(B) shall be given to the Engineer in writing. The Contractor shall keep accurate and detailed records of the alleged idle equipment and alleged idle labor. The Contractor's cost records, supporting data, and supporting information shall be complete in every respect and in such form that they may be checked by the Engineer. The Contractor's cost records, supporting data, and supporting information for equipment idled due to the suspension or alleged suspension shall specifically identify each individual piece of equipment, its involvement in the work, its location on the project, the requested rental rate and justification as to why the equipment cannot be absorbed into unaffected work on the project during the period of suspension or alleged suspension. The Contractor's cost records, supporting data, and supporting information for idle labor shall include the specific employees, classification, dates and hours idled, hourly rate of pay, their involvement in the project, and justification as to why they cannot be absorbed into the unaffected work on the project or other projects during the period of suspension or alleged suspension. The Contractor's cost records, supporting data, and supporting information shall be kept up-to-date and the Engineer shall be given the opportunity to review the methods by which the records, data, and information are being maintained. The cost records, supporting data, and supporting information shall be prepared on a weekly basis for each occurrence for which notice of intent to file a claim has been given and submitted to the Engineer within 7 days after the end of a given weekly period.

If the Contractor chooses to pursue the claim after the suspension or alleged suspension period has ended, he shall submit a written claim to the Engineer for an adjustment in compensation based upon his cost records due to idle equipment and/or idle labor within 14 calendar days or receipt of the notice to resume work or within 14 calendar days of expiration of the alleged suspension period. This request shall summarize previously submitted cost records and clearly describe the Contractor's justification for an adjustment in compensation under the terms of the contract.

Upon receipt, the Engineer will evaluate the Contractor's request. If the Engineer agrees that the cost of the work directly associated with the suspension or alleged suspension has increased as a result of such suspension or alleged suspension and the suspension or alleged suspension was caused by conditions beyond the control of and not the fault of the Contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the Engineer will make an adjustment, excluding profit, and modify the contract in writing accordingly. The Contractor will be paid for the verified actual cost of the idle equipment and idle labor. The compensation allowed shall be limited to the equipment, labor, bond, insurance, and tax costs, excluding profits, computed in accordance with Article 109-3.

If the Engineer determines that the suspensions of the work by the Engineer or alleged suspensions do not warrant an adjustment in compensation, he will notify the Contractor in writing of his determination.

The Engineer will notify the Contractor of his determination of whether or not an adjustment in compensation is warranted within 120 calendar days after receipt of the complete request, all necessary supporting justification, and cost records.

The failure on the part of the Contractor to perform any of the following shall be a bar to recovery under the provisions of Article 104­4:

1. The failure to notify the Engineer in writing within 7 days after the Engineer suspends in writing the performance of all or any portion of the work.

2. The failure to notify the Engineer in writing that he intends to file a claim by reason of alleged suspension.

3. The failure of the Contractor to keep records in accordance with the details of Article 109­3.

4. The failure of the Contractor to give the Engineer the opportunity to monitor the methods by which records are being maintained.

5. The failure of the Contractor to submit additional documentation requested by the Engineer provided documentation requested is available within the Contractor's records.

6. The failure of the Contractor to submit cost records on a weekly basis.

7. The failure of the Contractor to submit the written request for an adjustment in compensation with cost records, supporting data, and supporting information within 14 calendar days of receipt of the notice to resume work.

8. The failure of the Contractor to submit the written request for an adjustment in compensation with cost records, supporting data, and supporting information within 14 calendar days after the last day of the period during which the Contractor contends he has been prevented from performing all or any portion of the work for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) because of conditions beyond the control of and not the fault of the Contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather.

(D) Notification of Determination:

The failure on the part of the Engineer to notify the Contractor of his determination on the requested adjustment in compensation within 120 calendar days after receipt of the complete request, all supporting justification, and cost records will result in payment of interest on any monies determined to be due from the requested adjustment in compensation. Interest, at the average rate earned by the State Treasurer on the investment within the State's Short Term Fixed Income Investment Fund during the month preceding the date interest becomes payable, will be paid the Contractor on the next partial pay estimate and reflected on the final estimate for the period beginning on the 121st day after receipt of the complete request, all supporting justification, and cost records, and extending to the date the Engineer makes his determination on the disputed work.

If the Contractor fails to receive such adjustment in compensation for the disputed work as he claims to be entitled to under the terms of the contract, the Contractor may resubmit the written request for an adjustment in compensation to the Engineer as a part of the final claim after the project is complete. The Contractor will only be allowed to submit the request for an adjustment in compensation one time during the construction of the project.

104-9 DISPOSITION OF SURPLUS PROPERTY.

All property which is surplus to the needs of the project will remain or become the property of the Contractor, unless otherwise stated in the plans or special provisions, with the following exceptions:

1. Materials which are the property of utility companies providing service to buildings which are to be demolished or removed in accordance with Sections 210 and 215.

2. Materials resulting from the removal of existing pavement in accordance with Section 250 which are to be stockpiled for the use of the Department.

3. Materials resulting from the removal of existing structures in accordance with Section 402 where the plans or special provisions indicate that the material will remain the property of the Department.

4. Aggregate base course where the Special Provisions require that this material become the property of the Department.

5. Left over materials for which the Department has reimbursed the Contractor as provided in Article 109­6.

6. Materials which have been furnished by the Department for use on the project.

Property shall include but not be limited to materials furnished by the Contractor or the Department for either temporary or permanent use on the project, salvaged materials which were part of the existing facility on the date of availability for the project, and all implements, machinery, equipment, tools, supplies, laboratories, field offices, and watercraft which are necessary for the satisfactory completion of the project.

All property which is the property of the Contractor shall be removed from the project by the Contractor prior to final acceptance.

104-10 MAINTENANCE OF THE PROJECT.

The Contractor shall maintain the project from the date of availability or the date of beginning work, whichever occurs first, until the project is finally accepted. On resurfacing projects the Contractor shall maintain each part of the project, as defined by map numbers, from the date of beginning work on that part until such part is finally accepted. This maintenance shall be continuous and effective and shall be prosecuted with adequate equipment and forces to the end that all work covered by the contract is kept in satisfactory and acceptable condition at all times.

The Contractor shall maintain all existing drainage facilities, except where the work consists of resurfacing only, such that they are in the same condition upon acceptance of the project as they were when the project was made available to the Contractor.

In the event that the Contractor's work is suspended for any reason, the Contractor shall maintain the work covered by the contract, as provided herein.

When a portion of the project is accepted as provided in Article 105­17, immediately after such acceptance the Contractor will not be required to maintain the accepted portions. Should latent defects be discovered or become evident in an accepted portion of the project, such defective work shall be repaired or replaced at no cost to the Department.

Where an observation period(s) is required that extends beyond the final acceptance date, the Contractor shall perform any work required by the observation period until satisfactory completion of the observation period. The Contractor will not be directly compensated for any maintenance operations necessary, as this work will be considered incidental to the work covered by the various contract items.

104-11 FINAL CLEANING UP.

Before acceptance of the project, the highway, borrow sources, waste areas, and all ground occupied by the Contractor within the project limits in connection with the work shall be cleaned of all rubbish, excess materials, temporary structures, and equipment; and all parts of the work shall be left in an acceptable condition.

The Contractor will not be directly compensated for the work of final cleaning up, as this work will be considered incidental to the work covered by the various contract items.

104-12 VALUE ENGINEERING PROPOSAL

This value engineering specification is to provide an incentive to the Contractor to initiate, develop, and present to the Department of Transportation for consideration, any cost reduction proposals conceived by him involving changes in the drawings, designs, specifications, or other requirements of the contract. This specification does not apply unless the proposal submitted is specifically identified by the Contractor as being presented for consideration as a Value Engineering Proposal. (See Standard Special Provisions)

Value Engineering Proposals contemplated are those that would result in a net savings to the Department by providing a decrease in the total cost of construction or reduce the construction time without increasing the cost to construct the project. The effects the Proposal may have on the following items, but not limited to these items, will be considered by the Department when evaluating the proposal:

1) Service Life 5) Ease of Maintenance

2) Safety 6) Desired Aesthetics

3) Reliability 7) Design

4) Economy of Operation 8) Standardized Features

(See Standard Special Provisions)

The Department reserves the right to reject the Proposal or deduct from the savings identified in the Proposal to compensate for any adverse effects to these items which may result from implementation of the Proposal.

The Department reserves the right to reject at its discretion any Value Engineering Proposal submitted which would require additional right of way. Substitution of another design alternate, which is detailed in the contract plans, for the one on which the Contractor bid, will not be allowed. Plan errors which are identified by the Contractor and which result in a cost reduction will not qualify for submittal as a Value Engineering Proposal. Pending execution of a formal supplemental agreement, implementing an approved Value Engineering Proposal, the Contractor shall remain obligated to perform in accordance with the terms of the existing contract. No time extension will be granted due to the time required to review a Value Engineering Proposal.

The Contractor is encouraged to include this specification in contracts with subcontractors. The Contractor shall encourage submissions of Value Engineering Proposals from subcontractors, however, it is not mandatory that the Contractor accept or transmit to the Department Value Engineering Proposals proposed by his subcontractors. The Contractor may choose any arrangement for the subcontractor value engineering payments, provided that these payments shall not reduce the Department's share of the savings resulting from the Value Engineering Proposal.

Should the Contractor desire a preliminary review of a possible Value Engineering Proposal, prior to expending considerable time and expense in full development, a copy of the preliminary proposal shall be submitted to the Resident Engineer and the Value Engineering Office. The submittal shall state, Preliminary Value Engineering Proposal Review Request and must contain sufficient drawings, cost estimates and written information that can be clearly understood and interpreted. Also include the identity of any Private Engineering Firms proposed by the Contractor to prepare designs or revisions to designs. The Department will review the preliminary submittal only to the extent necessary to determine if it has possible merit as a Value Engineering Proposal. This review does not obligate the Department to approve the final proposal should a preliminary review indicate the proposal has possible merit. The Department is under no obligation to consider any Value Engineering Proposal (Preliminary or Final) that is submitted.

A copy of the Final Value Engineering Proposal shall be submitted by the Contractor to the Resident Engineer and the Value Engineering Office. The proposal shall contain, as a minimum, the following:

(1) A statement that the request for the modification is being made as a Value Engineering Proposal.

(2) A description of the difference between the existing contract requirements and the proposed modifications, with the comparative advantages and disadvantages of each.

(3) If applicable, a complete drawing of the details covering the proposed modifications and supporting design computations shall be included in the final submittal. The preparation of new designs or drawings shall be accomplished and sealed by a Professional Engineer registered in the State of North Carolina. Further, the Department may require a review, and possibly the redesign, be accomplished by the project's original designer, or an approved equal. The Department may contract with private engineering firms, when needed, for reviews requested by the Department. The contractor shall contract with the original project designer, or an approved equal, when required by the Department, for any design work needed to completely and accurately prepare contract drawings. The Department may waive the requirements to have the preparation of contract drawings accomplished by a Professional Engineer or the project's original design based on the extent, detail, and complexity of the design needed to implement the value engineering proposal.

(4) An itemized list of the contract requirements that would be modified and a recommendation of how to make each modification.

(5) A detailed estimate of the cost of performing the work under the proposed modification.

(6) A statement of the time by which approval of the Value Engineering Proposal must be issued by the Department to obtain the total estimate cost reduction during the remainder of the contract, noting any effect on the contract completion or delivery schedule.

To facilitate the preparation of revisions to contract drawings, the contractor may purchase reproducible copies of drawings for his use through the Department's Value Engineering Office. The preparation of new design drawings by or for the Contractor shall be coordinated with appropriate Department Branch through the Value Engineering Office. The contractor shall provide, at no charge to the Department, one set of reproducible drawings of the approved design needed to implement the value engineering proposal.

The Engineer, as defined in Article 101­34 of the Standard Specifications, will be the sole judge of the acceptability of a Value Engineering Proposal requested in accordance with these provisions and of the estimated net savings resulting from the approval of all or any part of the Proposal. The Contractor has the right to withdraw, in whole or in part, any Value Engineering Proposal not accepted by the Department within the period to be specified in the Proposal per Item (6) of the preceding paragraph.

If a Value Engineering Proposal is approved, the necessary changes will be effected by Supplemental Agreement. Included as a part of the Supplemental Agreement will be provisions for price adjustment giving the Contractor 60 percent (See Standard Special Provisions) of the net savings to the project resulting from the modifications.

The Department reserves the right to include in the Supplemental Agreement any conditions it deems appropriate for consideration, approval, and implementation of the proposal. Acceptance of the Supplemental Agreement by the Contractor shall constitute acceptance of such conditions.

The final net savings to be distributed will be the difference in cost between the existing contract cost for the involved unit bid items and actual final cost occurring as a result of the modification. Only those unit bid items directly affected by the Supplemental Agreement will be considered in making the final determination of net savings. In determining the estimate net savings, the Department reserves the right to disregard the contract prices if, in the judgement of the Department, such prices do not represent a fair measure of the value of the work to be performed or to be deleted. Subsequent change documents affecting the modified unit bid items but not related to the Value Engineering Proposal will be excluded from such determination. The Department's review and administrative costs for value engineering proposals will be borne by the Department. The Contractor's costs for designs and/or revisions to designs and the preparation of design drawings will be borne by the Contractor. The costs to either party will not be considered in determining the net savings obtained by implementing the value engineering proposal. The Contractor's portion of the net savings shall constitute full compensation to him for effecting all changes pursuant to the agreement. The net savings will be prorated, 60 percent (See Standard Special Provisions) for the Contractor and 40 percent for the Department, for all accepted Value Engineering Proposals.

Upon execution of the Supplemental Agreement, the Department will thereafter have the right to use, duplicate or disclose in whole or in part any data necessary for utilization of the modification on other projects without obligation or compensation of any kind to the Contractor. Restrictions or conditions imposed by the Contractor for use of the proposal on other projects shall not be valid.

Except as may be otherwise precluded by this specification, the Contractor may submit a previously approved value engineering proposal on another project.

Unless and until a Supplemental Agreement is executed and issued by the Department, the Contractor shall remain obligated to perform the work in accordance with the terms of the existing contract.

Acceptance of the modification and its implementation will not modify the completion date of the contract unless specifically provided for in the Supplemental Agreement.

The Contractor shall not be entitled to additional compensation under Section 104 of the Standard Specifications for alterations in the plans or in the details of construction pursuant to the Value Engineering Proposal.

The Department will not be liable to the Contractor for failure to accept or act upon any Value Engineering Proposal submitted pursuant to this provision nor for any delays to the work attributable to any such proposal.

The Department reserves the right to negotiate desired changes with the Contractor under the provisions of the contract even though the changes are the result of a Value Engineering Proposal submitted on another contract. In this instance the savings will be prorated in accordance with the terms of the negotiated agreement.