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<br />
<br />The Engineer may order certain portions of the
<br />work opened for traffic due to unforeseen necessity.
<br />If the Engineer has not ordered the roadway opened
<br />because of unnecessary delay by the Contractor, and
<br />if no damage occurs other than that which can be
<br />attributed to traffic, the Contractor will be relieved of
<br />all responsibility for maintenance of traffic control
<br />devices and damage due to traffic. Any expense
<br />resulting from opening such sections shall be borne
<br />by the Division or the Contractor will be com,
<br />pensated for the added expense in accordance with
<br />subsection 109.04. If the opening causes changed
<br />working conditions, or delays the completion of other
<br />items of work on the project, compensation for the
<br />added expense and recommendations for additional
<br />time will be set forth by a Contract Modification
<br />Order.
<br />If the Contractor is dilatory in completing the
<br />work, the Engineer may order all or a portion of the
<br />project to be opened to traffic. In such event, the
<br />Contractor will not be relieved of the liability and
<br />responsibility during the period the work is so
<br />opened prior to final acceptance. The Contractor
<br />shall conduct the remainder of his construction
<br />operations to cause the least obstruction to or
<br />interference with traffic.
<br />Damages not attributable to traffic which might
<br />occur on sections opened to traffic, except slides,
<br />shall be repaired at the Contractor's expense. The
<br />removal of slides shall be done by the Contractor on a
<br />basis agreed to prior to the slide removal.
<br />
<br />107.17 Contractor's Responsibility for
<br />Work. Until final written acceptance of the project
<br />by the Engineer, the Contractor shall be responsible
<br />and shall protect the work against injury or damage
<br />from all causes whether arising from the execution or
<br />the nonexecution of the work, including but not
<br />limited to action of the elements, traffic, fire, theft,
<br />vandalism, or third party negligence. The Con-
<br />tractor shall rebuild, repair, restore, or replace all
<br />work that is injured or damaged prior to final
<br />acceptance at no cost to the Division. Loss, injury, or
<br />damage to the work due to unforeseeable causes
<br />beyond the control of and without fault or negligence
<br />of the Con tractor, including but not restricted to acts
<br />of God, such as earthquake, tidal wave, tornado,
<br />hurricane, or other cataclysmic phenomenon of
<br />nature, or acts of the public enemy or of govern,
<br />mental authorities, shall be restored by the Con-
<br />tractor under the provision of subsection 104.02 or
<br />104.03, as applicable. During periods that work is
<br />suspended, the Contractor shall be responsible for
<br />the work under the Contract and shall prevent
<br />damage to the project, provide for drainage, and
<br />shall erect necessary temporary structures, signs, or
<br />other facilities required to maintain the project.
<br />During the suspension period, the Contractor shall
<br />maintain in a growing condition all newly estab.
<br />lished plantings, seedings, and soddings furnished
<br />
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<br />under the Contract, and shall protect new tree
<br />growth and other vegetative growth against injury.
<br />
<br />107.18 Contractor's Responsibility for
<br />Utility Property and Sevices. Where the Con,
<br />tractor's operations are adjacent to properties of
<br />railway, telegraph, telephone and power companies,
<br />or other utility property, to which damage might
<br />result in considerable expense, loss, or incon-
<br />venience, work shall not commence until arrange,
<br />ments for the protection of the utilities have been
<br />made.
<br />If water or utility services are interrupted, the Con,
<br />tractor shall promptly notify the owner and shall
<br />cooperate in the restoration of service. If water
<br />service is interrupted, repair work shall be con-
<br />tinuous until the service is restored. Work shall not
<br />be undertaken around fire hydrants until provisions
<br />for continued service have been approved by the
<br />local fire authority.
<br />
<br />107.19 Furnishing Right of Way. The Divi-
<br />sion will be responsible for the securing of all
<br />necessary rights of way in advance of construction.
<br />Any exceptions will be indicated in the Contract.
<br />
<br />107.20 Personal Liability of Public Employ-
<br />ees. The Engineer or authorized representatives
<br />are acting solely as agents and representatives of the
<br />Division when carrying out and exercising the power
<br />or authority granted to them under the Contract.
<br />There shall not be any liability on them either
<br />personally or as employees of the Division.
<br />
<br />107.21 No Waiver of Legal Rights. Upon
<br />completion of the Contract, the Division will make
<br />final inspection and notify the Contractor of accept-
<br />ance. Final acceptance shall not preclude the
<br />Division from correcting any measurement, esti-
<br />mate, or certificate made before or after completion
<br />of the Contract, nor from recovering from the Con-
<br />tractor or surety or both, overpayments sustained
<br />because the Contractor failed to fulfill the obli-
<br />gations under the Contract. A waiver on the part of
<br />the Division of any breach of any part of the
<br />Contract shall not be held to be a waiver of any other
<br />or subsequent breach.
<br />The Contractor without prejudice to the terms of
<br />the Contract, shall be liable to the Division, for latent
<br />defects, fraud, or such gross mistakes as may
<br />amount to fraud, or as regards the Division's rights
<br />under any warranty or quaranty.
<br />
<br />107.22 Third Party Beneficiary. Itisspecifi,
<br />cally agreed between the parties executing this Cont-
<br />ract that it is not intended by any ofthe provisions of
<br />any part of the Contract to create in the public or any
<br />member thereof a third party beneficiary hereunder,
<br />or to authorize anyone not a party to this Contract to
<br />maintain a suit for personal injuries or property
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