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The Contractor shall keep himself 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 may in any manner affect those engaged or employed in the work, or which in any way affect the conduct of the work. He shall at all times observe and comply with all such laws, ordinances, regulations, orders, and decrees; and shall indemnify and hold harmless the Board of Transportation and the Department of Transportation and their agents and employees from any claim or liability arising from or based on the violation of any such law, ordinance, regulation, order, or decree, by the Contractor or by his agents and employees.
107-2 ASSIGNMENT OF CLAIMS VOID.
In accordance with G.S. 1433.3, the Department will not recognize any assignment of claims by any Contractor against the Department.
The Contractor shall procure all permits and licenses except as otherwise specified; pay all charges, fees, and taxes; and give all notices necessary and incident to the due and lawful prosecution of the work.
107-4 PATENTED DEVICES, MATERIALS, AND PROCESSES.
If the Contractor employs any design, device, material, or process covered by letters of patent or copyright, he shall provide for such use by suitable legal agreement with the patentee or owner. The Contractor and his surety shall indemnify and save harmless the Department from any and all claims for infringement by reason of the use of such patented design, device, material, process, trademark, or copyright, and shall indemnify and save harmless the Department from any costs, expenses, and damages which it may be obligated to pay at any time during the prosecution or after the completion of the work by reason of any infringement.
107-5 ENCROACHMENT ON RIGHT OF WAY.
Any individual, firm, or corporation wishing to encroach on highway right of way shall secure a written permit from the Department. The Contractor is not authorized to allow any individual, firm, or corporation to perform any work within the limits of the project unless such work has been authorized in writing by the Engineer.
When so directed by the Engineer, the Contractor shall make any repairs necessary due to such encroachments and such work will be paid for as extra work.
When the United States Government pays all or any portion of the cost of the work, the Federal laws authorizing such participation and the rules and regulations made pursuant to such laws shall be observed by the Contractor. The work will be subject to the inspection of the representative of such Federal agencies as are created for the administration of these laws. The Contractor shall have no right to make the Federal Government a party to any court action solely by reason of its participation in the cost of the work or by reason of its inspection of the work.
The Contractor shall provide and maintain in a neat, sanitary condition such accommodations for the use of his employees as may be necessary to comply with the requirements of the State and local Board of Health, or of other bodies or tribunals having jurisdiction.
107-8 PUBLIC CONVENIENCE AND SAFETY.
The Contractor shall at all times so conduct his work as to insure 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 in Section 150.
107-9 COORDINATION WITH RAILWAY.
All work to be performed by the Contractor on railway right of way shall be done in accordance with the special provisions and in a manner satisfactory to the railway company, and shall be performed at such times and in such manner as not to unnecessarily interfere with the movement of traffic upon the track of the railway company. The Contractor shall use all care and precautions in order to avoid accidents, damage, or unnecessary delays or interference with the railway company's traffic or other property. The Contractor shall carry such railroad protective insurance and public liability and property damage insurance as may be stipulated in the special provisions.
When the Contractor is required by the plans or special provisions to transport materials or equipment across the tracks of any railway or to perform work on railway right of way, the Department will obtain any necessary written authority from the railway company for the establishment of a railway crossing or for the performance of work on railway right of way. The Contractor will not be required to bear the cost of any watchman service or flagging protection necessary due to such operations, as the railway company will be reimbursed directly by the Department for the cost of such work.
In case the Contractor elects or finds it necessary to transport materials or equipment across the tracks of any railway at any point where a crossing is not required by the plans or special provisions, or at any point other than an existing public crossing, he shall obtain specific written authority from the railway company for the establishment of a private railway crossing and shall bear all costs in connection with such crossing, including installation, drainage, maintenance, any necessary insurance, watchman service, flagging protection, and removal of such private railway crossing.
107-10 WORK IN, OVER, OR ADJACENT TO NAVIGABLE WATERS.
All work in or over navigable waters shall be in accordance with conditions contained in the permit obtained by the Department from the authority granting the permit. These conditions will be included in the project special provisions. The work shall be performed in such manner so as not to interfere with navigation of the waterway unless approval therefor is obtained from the authority granting the permit.
The Contractor shall prepare drawings necessary to obtain any addendums which may be required for his operations which are not included in the Department's permit. He shall coordinate their submission with the Engineer.
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. The Contractor shall be responsible for any and all damage or injury to persons or property resulting from the use of explosives. Such responsibility shall include, but shall in no way be limited to all damages arising from all forms of trespass to adjacent property as a result of blasting by the Contractor. Provided that in cases of damage or interruption to underground water supply or veins to adjacent landowners, the Contractor shall not be held responsible where the Contractor has used reasonable care and has taken reasonable precautions to prevent such damage.
All explosives shall be stored in a secure manner, in compliance with all laws, and all such storage places shall be marked clearly "DANGEROUS EXPLOSIVES."
The Contractor shall notify each public utility company having facilities in close proximity to the site of the work of his intention to use explosives. This notice shall be given sufficiently in advance to enable the utility companies to take whatever steps they may consider necessary to protect their property from injury. The Contractor shall also give the Engineer, all occupants of adjacent property, and all other Contractors working in or near the project notice of his intention to use explosives. Motorists shall be notified in accordance with Article 110110.
The Contractor shall submit a blasting plan to the Engineer within 24 hours after each shot. The blasting plan shall contain the full details of the drilling and blasting patterns unless otherwise approved by the Engineer, and shall contain the following information: (1) station limits of shot, (2) plan of drill hole pattern, blast hole spacing, blast hole diameters and free face, (3) initiation sequence of blastholes including delay timer and delay system, (4) manufacturers data sheet for all explosives, primers, and initiators employed, (5) loading diagram showing type and amount of explosives, primers, initiators, and location and depth of stemming. The blasting plan submitted is for quality control and record keeping purposes. Review by the Engineer shall not relieve the Contractor of his responsibilities as provided in Article 10712.
107-12 PROTECTION AND RESTORATION OF PROPERTY.
The Contractor shall be responsible for the protection from his activities of all public and private property on and adjacent to the work and shall use every reasonable precaution necessary to prevent damage or injury thereto. He shall use suitable precautions to prevent damage to pipes, conduits, and other underground structures, and to poles, wires, cables, and other overhead structures.
The Contractor shall protect carefully from disturbance or damage all land monuments and property markers until the Engineer has witnessed or otherwise referenced their location and shall not remove them until directed.
The Contractor shall be responsible for the removal, preservation, and resetting of all mail boxes disturbed by the construction operations. The mail boxes and their supports, when reset, shall be left in as good a condition as they were before removal. The Contractor will not be required to furnish new material except as required to repair damage resulting from construction operations.
The Contractor will be held responsible for all damage or injury to property of any character resulting from any act, omission, negligence, or misconduct in the prosecution of the work. When any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, negligence, or misconduct in the execution of the work, he shall either restore at his own expense such property to a condition similar or equal to that existing before such damage or injury was done, or shall make good such damage or injury in a manner acceptable to the owner of the damaged property and to the Department. In case of failure on the part of the Contractor to restore such property or make good such damage or injury the Department may at the Contractor's expense repair, rebuild, or otherwise restore such property in such manner as the Engineer may consider necessary.
107-13 CONTROL OF EROSION, SILTATION, AND POLLUTION.
(A) General:
The Contractor shall take whatever measures are necessary to minimize soil erosion and siltation, water pollution, and air pollution caused by his operations. The Contractor shall also comply with the applicable regulations of all legally constituted authorities relating to pollution prevention and control. The Contractor shall keep himself fully informed of all such regulations which in any way affect the conduct of the work, and shall at all times observe and comply with all such regulations. In the event of conflict between such regulations and the requirements of the specifications, the more restrictive requirements shall apply.
The Engineer will limit the area over which clearing and grubbing, excavation, borrow, and embankment operations are performed whenever the Contractor's operations do not make effective use of construction practices and temporary measures which will minimize erosion, or whenever construction operations have not been coordinated to effectively minimize erosion, or whenever permanent erosion control features are not being completed as soon as permitted by construction operations.
Following completion of any construction phase or operation, on any area greater than one acre, the Contractor shall provide ground cover sufficient to restrain erosion within 30 calendar days. When the construction is within a high quality water zone, as indicated in the plans, ground cover sufficient to restrain erosion shall be provided within 15 calendar days. The ground cover shall be either temporary or permanent and the type specified in the special provisions.
(B) Erosion and Siltation Control:
The Contractor shall exercise every reasonable precaution throughout the life of the project to prevent the eroding of soil and the silting of rivers, streams, lakes, reservoirs, other water impoundments, ground surfaces, or other property.
Prior to suspension of operations on the project or any portion thereof, the Contractor shall take all necessary measures to protect the construction area, including but not limited to borrow sources, soil type base course sources, and waste areas, from erosion during the period of suspension.
Unless otherwise approved in writing by the Engineer, construction operations in rivers, streams, and water impoundments shall be restricted to those areas where channel changes are shown on the plans and to those areas which must be entered for the construction or removal of temporary or permanent structures.
Excavated materials shall not be deposited, nor shall earth dikes or other temporary earth structures be constructed, in rivers, streams, or impoundments. As an exception to the above, confined earth materials will be permitted when approved in writing by the Engineer.
Frequent fording of live streams with construction equipment will not be permitted; therefore, temporary bridges or other structures shall be used wherever frequent stream crossings are necessary. Unless otherwise approved in writing by the Engineer, mechanized equipment shall not be operated in live streams except as may be necessary to construct channel changes and to construct or remove temporary or permanent structures.
(C) Coordination of Erosion Control Operations:
Temporary and permanent erosion control measures shall be provided as shown on the plans or as directed by the Engineer. All permanent erosion control work shall be incorporated into the project at the earliest practicable time. Temporary erosion control measures shall be coordinated with permanent erosion control measures and all other work on the project to assure economical, effective, and continuous erosion control throughout the construction and post construction period and to minimize siltation of rivers, streams, lakes, reservoirs, other water impoundments, ground surfaces, or other property.
Temporary erosion control measures shall include but not be limited to the use of temporary berms, dikes, dams, drainage ditches, silt basins, silt ditches, slope drains, structures, vegetation, mulches, mats, netting, gravel, or any other methods or devices that are necessary. Temporary erosion control measures may include work outside the right of way or construction limits where such work is necessary as a result of construction such as borrow operations, haul roads, plant sites, equipment storage sites, and disposal of waste or debris. The Contractor shall be liable for all damages to public or private property caused by silting or slides originating in waste areas furnished by the Contractor.
Materials for temporary erosion control measures shall have been approved by the Engineer before being used or shall be as directed by the Engineer.
Erosion control measures installed by the Contractor shall be acceptably maintained by the Contractor.
(D) Water and Air Pollution:
The Contractor shall exercise every reasonable precaution throughout the life of the project to prevent pollution of rivers, streams, and water impoundments. Pollutants such as chemicals, fuels, lubricants, bitumens, raw sewage, and other harmful waste shall not be discharged into or alongside of rivers, streams, or impoundments, or into natural or manmade channels leading thereto.
The Contractor shall comply with all State or local air pollution regulations throughout the life of the project.
(E) Dust Control:
The Contractor shall control dust throughout the life of the project within the project area and at all other areas affected by the construction of the project, including, but not specifically limited to, unpaved secondary roads, haul roads, access roads, disposal sites, borrow and material sources, and production sites. Dust control shall not be considered effective where the amount of dust creates a potential or actual unsafe condition, public nuisance, or condition endangering the value, utility, or appearance of any property.
The Contractor will not be directly compensated for any dust control measures necessary, as this work will be considered incidental to the work covered by the various contract items.
(F) Application of Specifications:
The provisions of this article shall apply to all construction operations. Further references and detailed requirements concerning erosion, siltation, and pollution prevention and control are given in other sections of the specifications as supplements to the general requirements of this article.
(G) Sanctions:
In the event that temporary erosion and pollution control measures become necessary due to the Contractor's negligence, carelessness, or failure to incorporate permanent erosion control measures into the project at the earliest practicable time, such measures shall be performed by the Contractor as directed by the Engineer at no cost to the Department. If the Contractor fails to perform such measures as directed, the Engineer may have the work performed in accordance with Article 10516.
Failure of the Contractor to fulfill any of the requirements of this article may result in the Engineer ordering the stopping of construction operations in accordance with Article 1087 until such failure has been corrected. Such suspension of operations will not justify an extension of contract time.
Failure on the part of the Contractor to perform the necessary measures to control erosion, siltation, and pollution will result in the Engineer notifying the Contractor to take such measures. In the event that the Contractor fails to perform such measures within 24 hours after receipt of such notice with adequate forces and equipment, the Engineer may suspend the work as provided above, or may proceed to have such measures performed with other forces and equipment, or both. No payment will be made to the Contractor for the performance of this work and the cost of such work so performed will be deducted from monies due the Contractor on his contract.
107-14 PROTECTION OF PUBLIC LANDS.
In the execution of any work within or adjacent to any State or National forest, park, or other public lands, the Contractor shall comply with all regulations of all authorities having jurisdiction over such forest, park, or lands, governing the protection of public lands and the carrying out of work within public lands, and shall observe all sanitary laws and regulations with respect to the performance of work in public lands. He shall keep the areas in an orderly condition, dispose of all refuse, and obtain permits for the construction and maintenance of all construction camps, stores, warehouses, residences, latrines, cesspools, septic tanks, and other structures in accordance with the requirements of the appropriate authorities.
The Contractor shall take all reasonable precaution to prevent and suppress forest fires and shall require his employees and subcontractors, both independently and at the request of forest officials, to do all reasonable within their power to prevent and suppress and to assist in preventing and suppressing forest fires and to make every possible effort to notify a forest official at the earliest possible moment of the location and extent of any fire seen by them.
The Contractor shall obtain any construction permits which may be required for his operations, which are not a part of the project, in accordance with the requirements of the regulations of the appropriate authorities.
107-15 RESPONSIBILITY FOR DAMAGE CLAIMS.
The Contractor shall indemnify and save harmless the Board of Transportation and its members and the Department of Transportation and its officers, agents, and employees from all suits, actions, or claims of any character brought for any injury or damages received or sustained by any person, persons, or property by reason of any act of the Contractor, Subcontractor, its agents or employees, in the performance of the contract. The Contractor's liability to save harmless and indemnify shall include, but not by way of limitation, the following: (1) damages or claims for the failure of the Contractor to safeguard the work; (2) damages or claims by reason of the failure of the Contractor to erect adequate barricades and post adequate warnings to the public of such barricades; (3) any damage or claims caused through the Contractor's use of defective materials or by the performance of defective work; (4) any claims by reason of the Contractor's infringement of patent, trademark, or copyright; (5) any amounts paid by the Department by reason of the Contractor's failure to comply with or for violations of laws, ordinances, orders, or decrees; (6) any damages or claims caused by blasting operations of the Contractor with or without proof of negligence on the part of the Contractor; (7) damages or claims caused by the failure of the Contractor to protect private or public property pursuant to Article 107-12, including damages to public and private property caused by silting and slides from waste areas furnished by the contractor, without proof of negligence; (8) damages caused by the failure of the Contractor to control erosion in accordance with the plans and specifications.
In addition to any remedy authorized by law, the Department shall have a right to retain from moneys due the Contractor as the Department considers necessary until final disposition has been made of the following suits or claims: (1) For all claims against the Department involving claims or damages which are the Contractor's responsibility under Section 107 of the specifications. The Contractor and the Surety shall remain responsible until such suits or claims against the Department have been settled and until the Department has been indemnified and saved harmless. (2) In case of claims by the third parties against the Contractor involving tort liability for which the Department might be held liable for as a taking of property, or as a tort before the Industrial Commission. However, moneys due the Contractor will not be retained provided the Contractor produces satisfactory evidence to the Department that he is adequately protected from such tort liability by public liability and property damage insurance. In all other cases involving claims or suits by third parties against the Contractor, amounts due the Contractor will not be withheld provided that the consent of the Surety is furnished and the Surety guarantees payment of any amounts for which the Contractor may be determined to be legally liable for. (3) In cases of damage to property of the Department, such amounts necessary to pay for such damage.
In cases where claims are made or suits filed against employees, agents, or officers of the Department of Transportation or members of the Board of Transportation, the Department of Transportation may retain from moneys due the Contractor sufficient to indemnify such employee, agent, or officer of the Department of Transportation or member of the Board of Transportation for any amounts which they may be held liable for but for which the Contractor is responsible under the provisions of Section 107 of these specifications. In the event that there is not sufficient retainage or the final estimate is paid, the Department of Transportation may collect from the Contractor or its Surety amounts sufficient to indemnify such employee, agent, or officer of the Department of Transportation or member of the Board of Transportation for such damages incurred.
When required by the special provisions the Contractor shall carry insurance of the kinds and in the amounts specified therein in addition to any other forms of insurance or bonds required under the terms of the contract, or any other insurance carried by the Contractor.
107-17 OPENING SECTIONS OF PROJECT TO TRAFFIC.
If it is determined by the Engineer that the Contractor will not complete the work by the completion date, intermediate completion date, or intermediate completion time, the Engineer may notify the Contractor in writing that upon expiration of contract time or intermediate contract time the project or any portion thereof will be open to traffic. On such sections which are opened, the Contractor shall conduct the remainder of his operations so as to cause the least obstruction to traffic. The Contractor shall not be relieved of his liability or responsibility, shall not receive any additional compensation due to the added cost of the work, nor shall he receive any extension of the completion date, intermediate completion date, or intermediate completion time, by reason of such openings.
107-18 CONTRACTOR'S RESPONSIBILITY FOR WORK.
Until final acceptance of the work by the Engineer, as evidenced in writing, the Contractor shall have the charge and care thereof and shall take every precaution against injury or damage to any part thereof by the action of the elements, or from any other cause, whether arising from the execution or from the nonexecution of the work. The Contractor shall rebuild, repair, restore, and make good all injuries or damages to any portion of the work occasioned by any of the above causes before final acceptance and shall bear the expense thereof, except as provided in other sections of the specifications. The Department will reimburse the Contractor for the repair of the work due to actions of the elements of such exceptional nature as to be legally classified as Acts of God.
In case of suspension of work from any cause whatever, the Contractor shall be responsible for all materials, and shall properly store them, if necessary, and shall provide suitable drainage of the roadway and erect necessary temporary structures at no cost to the Department.
107-19 FURNISHING RIGHT OF WAY.
The Department will be responsible for the securing of all necessary rights of way in advance of construction.
107-20 PERSONAL LIABILITY OF PUBLIC OFFICIALS.
Employees, agents, officers, and members of the Board of Transportation or the Department of Transportation shall not be held personally liable for any damages connected with the work, it being specifically understood in all such matters that they act solely as agents and representatives of the Board of Transportation or the Department of Transportation.
107-21 WAIVER OF LEGAL RIGHTS BY THE DEPARTMENT.
Upon completion of the work, the Department will expeditiously make an inspection and notify the Contractor of acceptance. Such final acceptance and processing of the final estimate, however, shall not preclude or estop the Department from correcting any measurement, estimate, or certificate made before or after completion of the work, nor shall the Department be precluded or estopped from recovering from the Contractor or his Surety, or both, such overpayment as it may sustain, or by failure on the part of the Contractor to fulfill his obligations under the contract. A waiver on the part of the Department of any breach of any part of the contract shall not be held to be a waiver of any other or subsequent breach.
The Contractor, without prejudice to the terms of the contract, shall be liable to the Department for latent defects, fraud, or such gross mistakes as may amount to fraud, or as regards the Department's rights under any warranty or guaranty.
107-22 SAFETY AND ACCIDENT PROTECTION.
The Contractor shall comply with all applicable Federal, State, and local laws, ordinances, and regulations governing safety, health, and sanitation, and shall provide all safeguards, safety devices, and protective equipment, and shall take any other needed actions, on his own responsibility that are reasonably 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.
107-23 WAGES AND CONDITIONS OF EMPLOYMENT.
The Contractor's attention is directed to the provisions and requirements of any and all public statutes which regulate hours or conditions of employment on public work. Such provisions and requirements that are appropriate, in accordance with the intent of the particular law, act, or statute, will be applicable to all work performed by the Contractor with his own organization and with the assistance of workmen under his immediate superintendence, and to all work performed by subcontract. It will be the responsibility of the Contractor to ascertain the appropriate application of such provisions and requirements to the work.
In addition to the general requirements of the various regulations referred to above, certain additional regulations and restrictions may be imposed that are peculiar to the particular work under the contract. In such cases, these regulations and restrictions will be included in the special provisions for the particular project involved.
For projects that are financed wholly or in part with Federal funds, the minimum wage rates to be paid to all mechanics and laborers employed on the project will be determined by the U.S. Secretary of Labor. A schedule of such wage rates will be inserted in the proposal form for such projects. The Contractor shall provide at the job site at no cost to the Department a weatherproof bulletin board covered with glass or rigid transparent plastic and shall display thereon at all times legible copies of such schedule of wage rates and of the wage rate information poster that will be furnished to him. The bulletin board shall be located in a conspicuous place easily accessible to all employees.
In the event that changes should occur in any of the regulations referred to in this article, or in any application thereof to the work under contract, no additional compensation will be allowed the Contractor as a result of such changes.
107-24 LIABILITY TO THIRD PARTIES.
It is not intended by any of the provisions of any part of these specifications to make the public or any member thereof a third party beneficiary hereunder, or to authorize anyone who is not a party to a contract entered into pursuant to these specifications to maintain a suit for personal injury or property damage otherwise than as authorized and provided by law.
107-25 RIGHT OF THE CONTRACTOR TO FILE VERIFIED CLAIM.
If the Contractor fails to receive such settlement as he claims to be entitled to under the terms and provisions of the contract, the Contractor may submit a written and verified claim for such amounts he deems himself or his subcontractor(s) entitled to under the terms and provisions of the contract provided he has complied with the applicable provisions of the contract including, but not limited to, giving written notice of intent to file a claim, keeping and submission of cost records, and the initial submission of a written claim within the specified time period. The claim shall be submitted to the State Highway Administrator within 60 days from the time the Contractor receives the final estimate as defined by Article 10138 and shall be submitted in accordance with G.S. 13629.
107-26 HAZARDOUS, CONTAMINATED, AND/OR TOXIC MATERIAL.
When the Contractor's operations encounter or expose any abnormal condition which may indicate the presence of a hazardous, contaminated, and/or toxic material, such operations shall be discontinued in the vicinity of the abnormal condition and the Engineer shall be notified immediately. Upon notification by the Contractor, the Engineer will investigate the work and, if necessary, suspend the work in accordance with Article 108-7. The presence of barrels; old or abandoned underground storage tanks; and discolored earth, metal, wood, etc.; visible fumes; abnormal odors; excessively hot earth; smoke; or anything else which appears abnormal may be indicators of hazardous, contaminated, and/or toxic materials and shall be treated with extraordinary caution as they are evidence of abnormal conditions.
The Contractor's operations shall not resume until so directed by the Engineer.
Disposition of the hazardous, contaminated, and/or
toxic material will be made in accordance with the requirements
and regulations of the Department of Human Resources and the Department
of Environment, Health & Natural Resources. Where the Contractor
performs work necessary to dispose of hazardous, contaminated,
and/or toxic material, payment will be made at the unit prices
for pay items included in the contract which are applicable to
such work or, where the contract does not include such pay items,
payment will be made as provided in Article 1047 for
extra work. Where the contract does not include pay items for
the work necessary to
dispose of hazardous, contaminated, and/or toxic material, the
Engineer may have the work performed by others.