105 – CONTROL OF WORK 100 - 40 (repair, restore, remove, or remove and replace) for th e unauthorized work and then implement the remedy the Engineer chooses at the Contractor’s expense. The Engineer, not the Contr actor, decides whether the Contractor shall repair, restore, remove, or rem ove and replace the unauthorized work.
f.Remedying Unacceptable or Unauthorized Work.
1.For either unacceptable work or unauthorized wo rk, the Field Engineer will give the Contractor: written notice of the remedy KDOT has selected (repai r, restore, remove, or remove and replace); and A date for beginning and a date for completing this remedial work.
2.If the Contractor fails to begin or prosecute the re medial work timely, the Field Engineer will inform the Bureau Chief of Construction and Materials who will inform the Secretary. The Secretar y will notify the Contractor and Surety that the Contractor has failed to begin or prosecute the work timely and:
a.declare the Contractor in breach of contract under subsection 108.9 ;
b.provide the Contractor a final opportunity to cure by completing the remedial work within a specified time; and (c) if the Contractor fails to cure: remove the Contractor from the Project and exercise the Secretary’s remedies for breach under subsection 108.9 ; or hire a third party or use KDOT’s maintenance forces to perform the remedial work rather than removing the Contractor from the Project.
3.If KDOT hires a third party or uses its maintenance forces to perform the remedial work without removing the Contractor from the Project, the Field En gineer will deduct from future progress payment(s) the estimated costs of the remedial work. After determining th e final costs for this work, the Field Engineer will adjust the next progress payment to reflect the actual remedial work costs. If contract funds are insufficient, the Engineer will bill the Contractor for the excess remedial costs. If the Contractor fails to pay these costs within 7 business days after billing, KDOT may notify the Su rety of this default and seek payment from the Surety for remedial work costs not recovered from the Contractor without declari ng the Contractor in breach of the entire contract under subsection 108.9 .
4.The Contractor shall have no claim or escape from liability under this subsection 105.5 , because: the Engineer required one remedy rather than another; the Engineer/Inspector knew or should have known the Contractor was performing unacceptable work or unauthorized work; the Engineer/Inspector overlooked or failed to di scover the unacceptable work or unauthorized work until final inspection; or the Secretary failed to provide adequate cure time under subsection 105.5f.(2) , it being understood that the amount of cure time specified depends on the nature of the remedial work and public’s best interests. 105.6 COORDINATING CONTRACT DOCUMENTS
a.The exploratory work documents, standard specifications, plans, special provisions, project special provisions, and all other Contract Documents are essential parts of the contract. A requirement occurring in one document is as binding as though occurring in all documents. The Contract Documents describe and provide for a complete Project. Keep a copy of the Contract Documents on the Project site.
b.Discrepancies, Errors, Omissions, or Ambiguities in Contract Documents.
1.Do not take advantage of any Contract Document discrepancies, errors, omissions, or ambiguities.
2.If there is a discrepancy between or among the following Contract Documents, the governing ranking or order of precedence is: Dimensions Information
1.Plan 1. Information r eceived at mandatory pre-bid
2.Calculated 2. Project Special Provisions 3. Scaled 3. Special Provisions
4.Plans
5.Standard Specifications 105 – CONTROL OF WORK 100 - 41 (3) If there is a discrepancy between the exploratory work documents and other Contract Documents, notify the Bureau of Construction and Materials upon discovering the discrepancy. Do not assume the Contract Documents listed above control over the exploratory work documents.
4.If a Bidder discovers a discrepancy, error, omission, or ambiguity in any Contract Document before the Letting, notify the Bureau of Construction and Materials upon discovering the discrepancy, error, omission, or ambiguity. The Bureau will issue an addendum to all Bidd ers that obtained a Bidding Proposal Form from KDOT.
5.If the Contractor discovers a discrepancy, error, omission, or ambiguity in any Contract Document after the Letting, notify the Field Engineer. The Field Engineer w ill issue a clarification. The Field Engineer will make a contract adjustment for resulting extra work if the Engineer determines that: a reasonable contractor would have failed to discover the discrepancy, error, omission, or ambiguity before the Letting; the Contractor has met the requirements of subsection 104.6 ; and in case of a discrepancy, the Engineer’s clarifica tion is inconsistent with the order of precedence, subsection 105.6b.(2) . 105.7 CONTRACTOR COOPERATION WITH ENGINEER AND INSPECTORS
a.Before beginning construction activities, discuss with the Engineer the Contractor’s schedule to coordinate construction sequencing and traffic control sequencing. If subsection 108.3 requires a written schedule, review with the Engineer the Progr ess Schedule/Network Schedule.
b.Cooperate with the Field Engineer and Inspectors to complete the Project timely and effectively. Provide advanced notice of Project work to be performed so the Engineer may coordinate the Inspectors’ activities with the Contractor’s work. Provide any required information and accommodations for KDOT and any LPA to make a complete and detailed inspection. Notify the Field Engineer of disputes with Inspectors verbally without delay, so the Field Engineer has the opportunity to resolve the situati on with the least delay and cost impact to all parties. Disputes include an Inspector exceeding the scope of the Inspector’s authority, failing to perform adequately the Inspector’s duties, treating the Contractor unfairly, or otherwise acting contrary to the contract. If the dispute involves the Field Engineer or if the Field Engineer takes no action to resolve the dispute between the Contractor and Inspectors, notify the District Engineer. If the dispute involves the District E ngineer or if the District Engineer takes no action to resolve the dispute between the Contractor and Inspectors, notify the Bureau Chief of Construction and Materials. Make no claim for contract adjustment if notice was not given as provided above.
c.Allow any unit of government, railroad, or utility company having jurisdiction over, funding of, or another interest in part or the entire Project to inspect the work relevant to that entity’s role or interest. Such inspection does not make these entities a party to the contract.
d.Employ a competent superintendent.
1.The superintendent shall: be present on the Project site when work is being performed; have experience in the work being performed; have the skill, education, and experience to understand the Contract Documents; receive, respond to, and execute the Engin eer’s and Inspectors’ instructions; and coordinate all of the Contractor’s, subcontractors’, and suppliers’ activities.
2.If the Contractor elects not to have its own superintendent, appoint a superintendent who is employed by an approved subcontractor to fulfill the requirements of subsection 105.7d. (1) .
3.The superintendent shall not act as both a superintendent and a foreman or laborer without the Field Engineer’s approval. In determining whether to allow a working superintendent, the Field Engineer will consider the nature and scope of the Project, the number of operations occurring, the number of people working on the Project, and the working superintendent’s ability to fulfill the requirements of subsection 105.7d.(1) .
4.The Field Engineer may suspend wo rk if the Contractor fails to have a competent superintendent on the Project when work is being performed. 105 – CONTROL OF WORK 100 - 42 If the Contractor continues to fail to provide a competent superintendent on the Project when work is being performed, the Secretary or State Transportation Engineer may declare the Contractor in breach of contract under subsection 108.9 . 105.8 CHARACTER OF WORKERS; METHODS, OPERATIONS, AND EQUIPMENT
a.Personnel.
1.Employ/use the number and quality of workers needed to complete the Project in the Contract Time.
2.Employ/use the number and quality of supervisory pe rsonnel required to manage the Project effectively.
3.At the Engineer’s request, remove disorderly, intemperate, or unqualified personnel, whether employed by the Contractor, subcontractors, or suppliers. Do not employ/use such persons on other KDOT projects without the Engineer’s written approval.
b.Equipment.
1.Use the amount, type, and quality of equipment needed to complete the Project in the Contract Time.
2.Do not use equipment or operate equipment in a manner that damages the roadway, adjacent property, or other highways.
c.Method of Operations. Unless the contract specifies otherwise, select the method of operations needed to complete the Project in the Contract Time.
d.Changes in Equipment or Methods of Operations.
1.If the contract specifies the method of operations or equipment, obtain the Engineer’s approval to alter the method of operations, equipment, or both. If the Engineer decides the altered method of operations or alternative equipment does not meet contract requirements, the Engine er will order the Contractor to discontinue the altered method of operations or to stop using the alternative equipment.
2.The Engineer will not increase the contract price or Contract Time based on a change in the method of operations or equipment, unless the change qualifies as extra work under subsection 104.6 . 105.9 SUBLETTING CONTRACT
a.Do not sublet, sell, transfer, assign, or dispose of part of the contract work without the Engineer’s written consent. Submit to the Engineer subcontractor approval fo rms to obtain approval for subletting part of the contract including lower-tier subletting. Assume responsibility for sublet work, at any tier, as if the Contractor were performing that work. The Secretary’s approval of subcontractors is for KDOT’s benefit and KDOT’s need to be aware of the persons and entities operating within the Proj ect limits. This approval is not a guaranty of the subcontractors’ capabilities or a representation concerning the subcontractors’ skills, abilities, and integrity to perform the work.
b.Do not subcontract with or hire a consultant to perform contractor construction staking, process control testing, or any other work that is the Contractor’s responsibility on a Project, if KDOT or a LPA has already engaged that consultant to perform design engineering, construction engineering, or inspection services on the same Project.
c.With the Contractor’s own organization, perform physical construction that equals at least 30% of the contract amount. For state-tied projects, the contract amount is the sum of the contract amounts for all tied projects.
d.The Engineer’s consent under this subsection 105.9 does not release the Contractor from liability for completing the contract and does not release the Contractor, the Surety, or both from their bond obligations. Exception: The Secretary may release the Contractor from liability under the contract and the bond if the Secretary, Contractor, and Surety execute a separate written agreement th at allows the Contractor to assign the contract to a third party who has obtained bonding as described in subsection 103.6 . Do not sell, transfer, assign or dispose of all of the contract work without the Secretary’s written co nsent to the assignment of contract as provided in subsection 103.6 . 105 – CONTROL OF WORK 100 - 43 105.10 PLANS AND WORKING DRAWINGS
a.Plans. The Secretary may provide plan s showing lines, grades, roadwa y typical cross-sections, all structures, and a summary of contract pay items. Steel bridge plans show only general features. Keep one set of plans on the Project site.
b.Working Drawings. Submit an electronic copy of working dr awings in Adobe PDF (Portable Document Format) file format, with a maximum in ternal page size of 17 inches by 11 in ches. For each deliverable (falsework plans for a structure, shop drawings for structural elements which will be fabricated, etc.), submit the copy in one transmission, with the sheets consecutively numbered, and with no duplications of sheets.
c.Timely Submittal. Provide all working drawings to the Field Engineer or designated KDOT office at the time the Progress Schedule/Network Schedule identifies or at a date that allows the reviewing Engineers at least 15 business days to review the drawings. If the Contractor desires the drawings be reviewed in less than 15 business days, notify the Field Engineer or designated KDOT office that the time for review and approval is critical. While KDOT will attempt to accommodate the Contractor’s time frame, KDOT makes no guarantee that KDOT will complete the review process in less than 15 business days.
d.Timely Review. Within 15 business days after the Contractor has provided initial or revised working drawings to the Field Engineer or designated KDOT o ffice, the Field Engineer or designated KDOT office will review and either approve or reject th e drawings. If rejected, correct and resubmit revised working drawings for the Engineer’s approval. Allow the Field Engineer and other reviewing Engineers a reasonable time for subsequent review and approval. The Contractor assumes all risk of delay incurred for revisions and the Engineer’s review of these revisions. If KDOT fails to accept or reject initial or revised drawings w ithin 15 business days, the Contractor may seek compensation under subsection 104.6 for additional time or acceleration costs.
e.Responsibility for Working Drawings. The Contractor has sole responsibility for the adequacy and accuracy of the working drawings. The En gineer’s approval of the working draw ings is for KDOT’s benefit, not to ensure Contractor quality control. The Engineer’s review and/or approval are not intended as an undertaking of the Contractor’s duty to provide adequate and accurate working drawings.
105.11 Contractor’S Responsibility for Utility Property and Services and
COOPERATION WITH UTILITIES
a.General.
1.The Contract Documents will identify the location of existing utility fixtures and appurtenances (utilities) that will be in place before construction begins and that will remain in place during construction. Anticipate minor deviations from plan locations.
2.The Contract Documents will designate the utilities to be adjusted or relocated by utility owners, other third parties, or the Contractor during the construction.
3.Notify Kansas One Call and arra nge for utility locates in the anticipated work area before beginning excavation. Save utility locate markers as long as possible.
4.Coordinate, schedule, and perform work to minimize interference with others who are adjusting or relocating the utilities. KDOT will not compensate for modifications to the Contractor’s schedule to accommodate utility adjustments or utility relocations the Contract Documents identify for relocation during construction.
5.Include in the Contractor’s bi d all costs (money and time) associat ed with the presence of identified utilities.
b.Contractor’s Responsibility for Utility Property and Services.
1.Use work procedures that do not damage utilities, utility property, or both within and adjacent to the Project limits.
2.Coordinate and perform work to avoid interrupting utility service.
3.Notify the utility owner of damage to or exposure of its utility or other property. Do not hinder the utility owner from restoring utility service.
4.Work around fire hydrants only after the local fire authority approves this work and the Contractor has made provisions for continued service. 105 – CONTROL OF WORK 100 - 44 (5) Assume responsibility for damages to utilities arising from the Contractor’s negligent acts or omissions if the utilities were designated in the Contract Documents and correctly located/relocated (having no or only minor deviations from the plan location/relocation). The utility owner will decide whether the Contractor shall pay the utility owner to repair the damage or whether the Contractor shall repair the damage. Repair the damaged utilities by restoring them to the condition existing before the damage occurred.
c.Contractor’s Responsibility fo r Unidentified Utilities or Inco rrectly-Relocated Utilities Found During Construction.
1.Except as provided in subsection 105.11c.(2) :
a.the Contractor assumes no responsibility for damages to or delays caused by utilities discovered at the site but unidentified in the Contract Documents (unidentified).
b.the Contractor assumes no responsibility for damages to or delays caused by utilities identified in the Contract Documents but discovered in a location different than that identified and outside the industry-accepted toleranc es (incorrectly relocated).
c.the Contractor may be entitled to a contract adjustment (time, money, or both) under subsection 104.5 for delay associated with unidentified or improperly-relocated utilities. See subsection 104.8 for contract adjustment notification.
2.Despite a utility being unidentified or incorrectly relocated, the Secretary will not pay for damages to the utility or compensate the Contractor for delays caused by the utility if:
a.the Contractor failed to notify Kansas One Call and obtain field locates before excavating;
b.the Contractor knew or should have known that the utility was in the location discovered; or (c) the Contractor’s negligent or intentional act or omission contributed to the physical damage or delay but only to the extent the damage or delay was caused by the Contractor’s act or omission.
3.The Engineer and utility will decide whether to adju st or relocate unidentified and incorrectly relocated utilities.
d.Contractor’s Responsibility for Utility’s Negligent Field Locates. The Contractor shall notify Kansas One Call and obtain utility field locates before excavating. The Contractor assumes responsibility for increased construction costs or delay damages caused by improperly-marked field locates. The Secretary may give the Contractor an extension of time under this subsection 105.11d. if the improperly-marked field locates increase the Contractor’s time for performance.
e.Nothing in subsections 105.11c. or d. is intended to make the Contractor liable to any utility for physical damage to the utility beyond that allowed by an agreement between the Contractor and utility, the Kansas Underground Utility Damage Prevention Ac t, or any other law. Nothing in subsections 105.11c. or d. is intended to prevent the Contractor from seeking reco very or asserting defenses against the utility to the extent allowed by an agreement between the Contractor and utility, the Kansas Underground Utility Damage Prevention Act, or any other law.
105.12 Cooperation and Cl Aims Between Contractors
a.General.
1.The Secretary may let several contracts under one Pr oject. The Secretary may le t contracts for multiple projects within the same physical Project li mits, adjacent limits, or same vicinity. For purposes of this provision, the term “contractor” means an entity having an agreement with the Secretary, on KDOT’s behalf or on behalf of a LPA, for improvement, construction, reconstruction, or maintenance of roads and/or bridges within the state of Kansas and that includes the Standard Specifications.
2.Cooperate with other contractors in the same physical Project limits, adjacent limits, or same vicinity to avoid delaying these other contractors.
3.Coordinate work sequencing with other contractors in the same physical Project limits, adjacent limits, or same vicinity to both anticipate and minimize delay to each other.
4.Notify the Field Engineer if another contractor fails to cooperate or coordinate work sequencing.
5.Include in the Contractor’s bid all costs (money and time) associated with expected delays resulting from another contractor working in the same Project limits, adjacent limits, or the same vicinity. 105 – CONTROL OF WORK 100 - 45 b. Suits Between Contractors. Under KDOT-let contracts, the Contractor and other contractors working within the same Project limits or adjacent limits have th e contractual right to sue each other for delay damages. These Contractors are considered third party beneficiaries of the contract between the Secretary and the Contractor allegedly causing the delay.
c.Suits Against the Secretary.
1.Contractors working within the same Project limits or adjacent limits have no right to sue the Secretary for delay damages another contractor caused. If the fact s causing the aggrieved contractor’s damages are based upon another contractor’s actions, this subsection 105.12 applies regardless of the theory of liability the aggrieved contractor asserts against the Secretary.
2.The aggrieved contractor agrees to seek relief first from the contractor causing the delay.
3.If the aggrieved contractor sues the Secretary, th e contractor causing the delay shall defend the suit and hold harmless the Secretary from such suit.
4.If the aggrieved contractor is unable to collect an award or judgment from the contractor causing the delay after taking legal action to recover such judgment in a Kansas court, the Secretar y will pay the judgment. The Secretary will proceed against the Surety to reco ver any monies the Secretary pays under this subsection 105.12 .
5.Because this subsection 105.12 does not prevent an aggrieved contractor from recovering damages, this subsection 105.12 is not a “no damages for delay” provision.
d.Claims Related to Contract Time.
1.The Secretary may give the aggrieved contractor an extension of time for delays another contractor causes. This extension of time does not prevent the Secretary from recovering liquidated damages or other costs the Secretary incurs because of the contract or causing the delay. This extension of time may not relieve the contractor causing the delay from paying delay damages to the aggrieved contractor.
2.If the Project is time critical a nd the Secretary is unable to extend Contract Time, the Secretary may pay the aggrieved contractor to accelerate th e work and overcome the delay. If th e Secretary makes such payment, the contractor causing the delay shall be responsible to the Secretary for such payment. The contractor causing the delay shall indemnify the Secretary for da mages the Secretary incurs under this subsection 105.12 . The Secretary will proceed against the contractor and the Surety to recover any monies the Secretary pays under this subsection
105.12 .
e.Burden of Proof. Nothing in this subsection 105.12 modifies the parties’ obligations to prove their claims and defenses.
105.13 Claims Procedure
a.Claim. A claim is a written notice for more money, time, or both because of an act or omission of a KDOT representative, design consultant, inspection consu ltant, or other government entity that the Contractor believes violates the contract. A claim includes a contract adjustment request unresolv ed between the Contractor and KDOT at any level of review.
b.Levels of Review.
1.Field Engineer. Submit a claim to the Field Engine er. The Field Engineer will issue a written decision within 21 calendar days, accepting or denyin g the claim, in whole or in part.
2.District Engineer. If dissatisfied with the Field Engineer’s decision, appeal the decision in writing to the District Engineer within 15 calendar days after receiving the Fi eld Engineer’s written d ecision. The District Engineer will issue a written decision within 30 calendar da ys after holding an informal settlement hearing with all parties.
3.Bureau Chief of Construction and Materials. If dissatisfied with the District Engineer’s decision, appeal the decision in writing to the Bureau Ch ief of Construction and Materials within 15 calendar days after receiving the District Engineer’s decision. The Bureau Chief of Cons truction and Materials will issue a written decision within 45 calendar days after holding an informal settlement hearing with all parties.
4.State Transportation Engineer. If dissatisfied with the Bureau Chief of Construction and Materials’ decision, appeal the decision in writing to the State Transportation Engineer within 15 calendar days after receiving the Bureau Chief of Construction and Materials’ decision. 105 – CONTROL OF WORK 100 - 46 (a) The State Transportation Engineer will hold a formal final administrative hearing or will appoint another hearing officer or a hearing panel to hold a formal final administrative hearing. The State Transportation Engineer has sole discretion to conduct the final administrative hearing or appoint another hearing officer or a panel for this purpose. Any hearing officer may be a KDOT employee or a non-KDOT employee. Any panel may consist of KDOT employees, non-KDOT employees, or a combination thereof. If the Contractor requests a non-KDOT hearing officer or panel and th e State Transportation Engineer grants this request, both parties will sh are equally the expense of the outside hearing officer or panel.
b.Final Agency Decision. The State Transportation Engineer will issue a final agency decision whether the State Transportation Engineer conducts the hearing or appoints a hearing officer or panel to conduct the final administrative hearing. If a hearing officer or a panel conducted the final administrative hearing, the State Transpor tation Engineer will issue the Agency’s final decision after: reviewing the hearing officer’s or panel’s decision; and concurring in the decision or modifying the decision as the State Transportation Engineer deems best.
c.The State Transportation Engineer’s decision under subsection 105.13b.(4)(b) represents KDOT final agency action under the Kansas Judicial Review Act (KJRA) K.S.A. 77-601 et seq.
c.Hearing Procedures.
1.Informal, settlement hearing. For purposes of subsection 105.13b. , the District Engineer or Bureau Chief of Construction and Materials may hold an informal hearing by document submission, by phone, or by meeting with all parties in person. These informal h earings are considered settlement negotiations. Documents submitted at these meetings and the KDOT representative’s decision are part of the agency record; however, the discussions at these meetings are conf idential. Parties may have Legal Counsel present. No formal rules of evidence apply.
2.Final administrative hearing. The final administrative hearing will take the following form unless the parties agree otherwise in writing. Before the hearing, submit a written statement identif ying the issues in dispute (questions of law and questions of fact); A court reporting service will reco rd the hearing. A party may request a written transcript of the proceeding at that party’s expense; All witnesses will testify under oath; A party may have Legal Counsel present. Counsel has the right to examine all witnesses; Formal rules of evidence do not apply. While hear say is admissible generally, the hearing officer may require further substantiation or authentication of hearsay evidence; Legal Counsel may present a party’s arguments; howeve r, these arguments are not evidence. Thus, for the hearing officer to consider these arguments, Counsel’s arguments must be supported by witness testimony, documentation provided to the hearing officer, or both; and The agency record will consist of the hearing tr anscript, all documentation submitted to the hearing officer or panel at the hearing, and all docum entation the hearing officer or panel and State Transportation Engineer considered in reaching a decision.
3.Supporting Documentation. Provide all documentation KDOT, the LPA, or both request to support a Claim. This documentation may include, without limitation, bid records; job cost reports; payment records for material, labor, and subcontract work; financial statements; records used in preparing th e claim such as schedule analysis and production analysis; company records showi ng overhead and profit; records of subcontractors; and records of suppliers, among others. The Contractor shall identify and segregate those documents the Contractor claims are confidential or proprietar y. KDOT, the LPA, or both will endeavor to protect such records from disclosure to third parties under the exemptions to the Kansas Open Records Act.
4.Interest on Claims. Demonstrate entitlement to interest under Kansas law. If interest on a claim is due under Kansas law, the Secretary will pay an annual rate of interest that is equal to the judgment rate published by the Kansas Secretary of State (on his/her official website) fo r the applicable years in which interest is owed. 105 – CONTROL OF WORK 100 - 47 d. Time Period for Filing Appeals; Waiver. Except for appeals from the St ate Transportation Engineer’s decision which are governed by the KJRA, K.S.A. 77-601 et seq., file all appeals within 15 calendar days or obtain the reviewing Engineer’s approval to file the appeal outsid e the 15 calendar day period. If the Contractor fails to file the appeal within the required 15 calendar days or fails to obtain a time extension, the Contractor waives the right to appeal the claim and accepts the decision of the last reviewing Engineer.
e.Time period for KDOT Decisions; Delay. If the KDOT Field Engineer, Di strict Engineer, or Bureau Chief of Construction and Materials fail to issue a decision within the calendar days permitted under subsection 105.13b. or within any additional time the Contractor and KD OT agree upon, the Contract or may treat the claim as denied and appeal to the next level of review.
f.LPA Projects. On projects funded with LPA and Federal- aid monies, the LPA may conduct its own claim resolution process or may require the Co ntractor to follow the claims procedure of subsection 105.13b. as modified in this subsection 105.13f . If the LPA requires the Contractor to follow subsection 105.13b. , submit a claim in the same manner as KDOT projects. The review ing KDOT Engineers will involve the LPA representatives in the informal hearings. If the Area Engineer, District Engineer, or Bureau Chief of Construction and Materials are unable to resolve the claim, the claims procedure ends an d the Contractor may seek ot her remedies. KDOT will not conduct a final administrative hearing or issue a final ag ency decision on LPA/Federa l-aid funded projects. The Project agreement between the LPA and KDOT, as the administrator of federa l funds, may identify whether the LPA is using KDOT’s claims procedure. If the agreemen t between the LPA and KDOT do es not identify a claims procedure, the Contractor and LPA may agree to a use KDOT’ s claims procedure or an a lternate claims procedure. In the event of their failure to reach an agreement, then the Contractor may seek whatev er remedies against the LPA that the law permits.
105.14 Construction Stakes, Lines and Grades
a.Contractor Construction Staking. Use construction stakes and benchmarks to establish the controls necessary to perform work. Comply with the Contractor Construction Staking requirements under SECTION 802 . Preserve all stakes and benchmarks. Replace missing, damage d, or incorrectly-set stakes and benchmarks. Bear the cost of replacement unless KDOT disturbed or destroyed the stakes/benchmarks or Contract Document errors resulted in the incorrectly-s et stakes/benchmarks.
b.KDOT Construction Staking. If KDOT provides the construction staking, KDOT will comply with the Contractor Construction Staking requirements under SECTION 802 . Preserve all stakes and benchmarks. If the Contractor disturbs or destroys stakes or benchmarks requiring KDOT to re-stake, the Contractor shall be responsible for the cost to replace stakes and benchmarks. Notify the Field Engineer at least 10 business days before beginning work that requires staking. The Secretary will no t be responsible for staking delays that occur because the Contractor failed to give KDOT this notice.
105.15 VALUE ENGINEERING OR COST REDUCTION PROPOSAL (Proposal)
a.If the Contractor wishes to modify the Contract Documents to reduce Project construction costs, the Contractor may submit to the Field Engineer a written value engineering proposal detailing such modification and the anticipated cost reduction. Value Engineering is a new method or product not previously used on KDOT projects. The proposed method or product must be equal to or greater than the quality specified in the Contract Documents.
b.If the Contractor wishes to modify the Contract Documents to reduce Project construction costs, submit to the Field Engineer a written cost reduction proposa l detailing such modification and the anticipated cost reduction. Cost Reduction is applying previously proven met hods or materials to reduce the Project cost. The proposed method or product must be equal to or greater than the qu ality specified in the Contract Documents.
c.Include the following items in the Proposal: 105 – CONTROL OF WORK 100 - 48 Existing contract requirements and discussion of the advantages and disadvantages of these requirements; Proposed modifications (changes, additions, and de letions) to existing contract requirements and discussion of the advantages and disadvantages of these modifications; A complete set of proposed plans and specifications that show the modifications, including quantity variations in contract pay items among other things; Detailed cost estimate of the Proposal; Time frame within which the Engineer must make a decision on the Proposal; and Anticipated time impact (delay, acceleratio n, or none) on Project completion.
d.Acceptance/Rejection. The Field Engineer will transmit the Pr oposal to the District Engineer and the Bureau Chief of Construction and Materials.
1.The Bureau Chief of Constructi on and Materials may accept all or part of the Contractor’s Proposal if the Bureau Chief of Construction and Materials, exercising sole discretion, determines the proposal: contains the information required in subsection 105.15c. ; generates a net savings in construction costs according to subsection 105.15e. ; and is in the State of Kansas’s best interests.
2.The Bureau Chief of Construction and Materials, exer cising sole discretion, will reject all or part of the Contractor’s Proposal if the Proposal: impairs essential characteristics of the Project such as service life, econom y of operation, ease of maintenance, desired appearance, design ability, design policies, and sa fety, among other things; requires excessive review, evaluation, investig ation, or a combination of these items; or changes the basic bridge design, pavement thickness, pavement type, or a combination of these items.
e.Net Savings. To determine the net savings, the Bureau Chie f of Construction and Materials will subtract the revised contract price from the original contract pr ice and then deduct expenses KDOT will incur for reviewing and implementing the Proposal. For original contract costs, the Bureau Chief of Construction and Materials may disregard contract bid prices th at do not reflect actual costs.
f.Change Order and Payment. If the Bureau Chief of Construction a nd Materials accepts all or part of the Contractor’s Proposal, the parties will execute a change order. The change order will specify the net savings with both the Secretary and Contractor receiving 50% of the net savings. If payment is made through unit prices, KDOT will pay the Contractor its 50% share of the net savi ngs on intermediate estimates as the units of work are completed. If payment is made on a lump sum basis, KDOT will pay the Contractor its 50% share of the net savings after KDOT has accepted the accepted Proposal work. KDOT will not pay the Cont ractor’s expenses in developing, designing, and submitting the Proposal.
g.KDOT’s Future Use of Value Engineering/Cost Reduction Proposal. If accepted, KDOT may adopt the Proposal for general use on other projects without further reimbursement to the Contractor. If KDOT does not adopt the Proposal for general use, KDOT will pay for th e use of the Proposal on other projects for which the Contractor makes the Proposal and the Bureau Chief of Construction and Materials accepts the Proposal.
105.16 Notice of Acceptance
a.Notice of Acceptance of a Portion of Contract (Partial Acceptance). The Contractor may request the Engineer to make final inspection of a completed unit or por tion of the Project such as a structure, a roadway, or an interchange. If the Engineer determines the unit or portion of the Project complies with the Contract Documents and it is in the State’s best interest to accept this work, the Engineer may issue a par tial acceptance of this work.
1.The Engineer may issue a par tial acceptance for the following: Sections of pavement, bridges, and interchanges that are opened to traffic if traffic is in its final traffic configuration; or Portions of the Project completed and awaiting action by another Contractor under a separate contract such as grading the roadway surface for a separately-let surfacing project. 105 – CONTROL OF WORK 100 - 49 (2) The Engineer will not issue a partial acceptance for the following: Individual RCP’s, RCB’s, or span bridges; Grading balances; Portions of completed pavement not open to traffic or not in its final traffic configuration; Sign structures; or Completed, small parts of the Project. The partial acceptance relieves the Co ntractor of further responsibilitie s for the accepted unit or portion of the Project except as noted in subsection 108.12 .
b.Notice of Acceptance of Contract. After the Contractor notifies the Engineer that all work is complete, the Engineer will inspect the Project. If the Engineer determ ines work is incomplete or needs corrective action, the Engineer will provide the Contractor a punch list. After the Contractor completes the punch list and final cleanup (subsection 104.21) , the Engineer will again inspect the Project. U pon finding the Contractor has completed all work, the Engineer will issue a Notice of Acceptance of Contract.
1.The Notice of Acceptance of Contract prevents the Contractor from making further requests for additional time, additional money, or both except for the following: Contract Changes under SECTION 104 that arise within 10 business days before Notice of Acceptance. (See subsection 104.8d. for waiver of claims filed after Notice of Acceptance). Adjustments to prior and pending change orders for correction of quantities, measurements, or certifications allowed under subsection 108.12 ).
2.The Notice of Acceptance of Contract reliev es the Contractor of the responsibility to: perform physical construction on the Project except construction arising out of any breach of warranty, breach of guaranty, latent defects, fraud, or misrepresentation discovered after acceptance (see subsection 108.12 ). repair damage to the Project caused by Acts of God or third parties. maintain the Project.
3.The Notice of Acceptance of Contract begins the statutory time for subcontractors and suppliers to file payment claims against the Contract Bo nd as permitted in K.S.A. 68-410. 106 – CONTROL OF MATERIALS 100 - 50 SECTION 106 CONTROL OF MATERIALS 106.1 SOURCE OF SUPPLY AND QUALITY REQUIREMENTS
a.Sources of Supply.
1.Use sources of supply that will generate materials that meet quality requirements. Sources of supply include quarries, pits, borrow areas, fabrication plants, right-of-way, and other sources from which the Contractor may obtain material.
2.Notify the Engineer, in writing, of proposed sources of supply or changes in existing sources of supply unless the Contract Documents designate the source of supply. Provide this notice at least 10 business days before either producing material from that source or delivering material to the Project. When applicable, include the land ties of the sources. Assume all costs of acquiring sources of supply, including any exploration and development costs.
3.The Engineer or Inspector will inspect, test, and then approve or reject Contr actor-furnished sources of supply that KDOT has not previously approved. Do no t use a Contractor-furnished source of supply without the Engineer’s written approval.
4.If an approved source of supply fails to yield acceptable material:
a.stop producing material from that source until the Engineer approves the source again;
b.provide material from another approved source; or (c) perform a combination of subsections 106.1a.(4)(a) and (b)
5.If an approved source of supply that KDOT required in the Contract Documents fails to yield acceptable material, the Engineer will compensate the Contractor for extra work under subsection 104.6 .
6.Inspection, testing, and approval of Contractor-furnished sources of supply are for KDOT’s benefit, not to ensure Contractor quality control (QC) results. This inspection, testing, and approval is not a substitute for the Contractor’s obligation to provide acceptable sources of supply.
b.Quality Materials.
1.Use only materials that meet the Contract Documents’ requirements. Unless specified otherwise, use new materials.
2.The Engineer or Inspector will inspect materials. The Engineer, Inspector, or Contractor will test the materials. See subsection 106.3 . After inspection and testing, the Engineer or Inspector will approve or reject the materials at the source of supply, at the Project site, or both; The Engineer or Inspector may reject materials at th e Project site even if the Engineer or Inspector previously approved the materials at the source of supply; The Engineer or Inspector may reject the material s if, at any time, the Engineer determines the materials do not meet the C ontract Documents; and The Engineer or Inspector may reject materials during or after incorporation into the work if the material does not meet the Cont ract Documents requirements.
3.If material that has not been in spected, tested, and accepted is used, the Engineer may decide the work is unacceptable, reasonably acceptable, or unauthorized and require the remova l and replacement of the material, or accept a price reduction for the material. See subsection 105.5 .
4.Inspection, testing, and approval of Contractor-furnished materials are for KDOT’s benefit, not to ensure Contractor QC results. This inspection, testing, and approval is not a substitute for the Contractor’s obligation to provide acceptable material.
c."Buy America" Materials.
1.Current federal regulations require the use of domestic iron and steel on federal-aid projects with limited exceptions. On federal-aid projects, use only iron and steel that have been manufactured, produced and processed in the United States. This includes any federally non-participating items. If an iron or steel product meets at least one of the following conditions: It is specifically listed below 106 – CONTROL OF MATERIALS 100 - 51 It is used in pavements, bridges, tunnels or other structures It is at least 90% steel or iron by weight It is not identified as a miscellaneous component or subcomponent then the product is subj ect to Buy America. A list of products that are subject to Buy America coverage (regardless of % steel or iron content) include, but are not limited to, the following: Steel or iron products used in pavements, bridges, tunnels or other structures, which include, but are not limited to, the following: fabricated structural st eel, reinforcing steel, piling, high strength bolts, anchor bolts, dowel bars, permanently incorporated sheet piling, bridge bearings, cable wire/strand, prestressing/post-tensioning wire, motor/machinery brakes and other equipment for moveable structures; Guardrail, guardrail posts, end sections, terminals, cable guardrail; Steel fencing material, fence posts; Steel or iron pipe, conduit, grates, manhole covers, risers; Mast arms, poles, standards, trusses, or supporting structural members for signs, luminaires, or traffic control systems; and Steel or iron components of precast concrete products, such as rein forcing steel, wire mesh and pre- stressing or post-tensioning strands or cables. The miscellaneous steel or iron com ponents, subcomponents a nd hardware necessary to encase, assemble and construct manufactured products are not subject to Bu y America coverage. These in clude, but are not limited to, cabinets, covers, shelves, clamps, fittings, sleeves, washers, bolts, nuts, screws, tie wire, spacers, chairs, lifting hooks, faucets, door hinges, etc.
2.On all federal-aid projects, all iron or steel shall have been manufactured, produced, and processed in the United States. Manufacturing processes include any pro cess which modifies the chem ical content, the physical size or shape, or the final finish of the iron or steel. These processes include initial melting, mixing, rolling, machining, extruding, bending, grinding, drilling, and coatings applied to iron or steel (including epoxy coatings, galvanizing, painting, and any other coating that protect s or enhances the value of the iron or steel used).
3.Obtain the Engineer’s written approval before using any iron or steel that has not been manufactured, produced, and processed in the United States as permitted in this subsection 106.1c.(3) . With the Engineer’s written permission, foreign iron and steel may be used if: (a)The combined total cost of all the foreign iron used, steel us ed, or the cost of both iron and steel used when both are required does not exceed 0.1% of the total cost of the Project or $2,500.00 dollars, whichever is greater. The cost of the fo reign iron used, steel used, or both includes material costs, manufacturing costs, assembly costs, transporting costs, and testing costs associated with the fore ign iron, steel, or both.
b.The Federal Highway Administration has waived specific products or processes according to 23 CFR 635.410, for the duration of that waiver. The Contractor: Assumes the risk of including any foreign ir on or steel in the Contractor’s bid. Incurs any costs needed to remove and replace with domestic iron and steel the amount of foreign iron, steel, or both that exceeds 0.1% of the total Project costs or $2,500.00, whichever is greater. Has the obligation to remove and re place foreign iron and st eel that exceeds 0.1% of the total Project costs or $2,500.00 whichever is greater. The obligation is regulatory and is not excused by: Errors the Contractor, subcontractors, suppliers, fabricators, or other third parties make in determining the costs of foreign iron and steel as defined above. The Engineer’s approval under subsection 106.1c.(3) . The Contractor shall make no claim for contract adjustment (additional time, money, or both) because of the use of foreign iron or steel.
4.Companies providing iron or steel or performing any manufacturing processes on the iron or steel shall include a "Buy America" statement on te st reports and material certifications submitted to KDOT, the Contractor, or both. The "Buy America" statement shall identify the so urce of the iron or steel and the location(s) of the 106 – CONTROL OF MATERIALS 100 - 52 manufacturing processes. The statement sh all certify that the company issuing the test report or material certification complies with all provisions of the Buy America Act.
5.This subsection 106.1c. and "Buy America" requirements do not apply to temporary items (Example: temporary sheet piling, steel s caffolding, and falsework) on the contract, ev en if these items are left in place with the Engineer’s approval.
6.After work is completed on the Project, submit to the Engineer a certification stating the dollar amount of foreign iron used, steel used, or both. Include material costs, manufacturing costs, assembly costs, transporting costs, and testing costs in the dollar amount. Identify a zero dollar amount if no foreign iron or steel was used on the Project.
7.This subsection 106.1c. and Buy America requirements do not apply to 100% state funded projects. 106.2 MATERIAL SOURCES
a.Contractor-Furnished Materials. Provide all materials and acquire all sources of supply required to complete the contract except for those materials and sour ces of supply that KDOT pr ovides under the Contract Documents (or by contract adjustment). Provide test reports or product certifications for all Contractor-furnished materials. Obtain the Engineer’s written approval to use all Contractor-furnished propos ed sources of supply such as borrow sites and aggregate sources among others.
b.KDOT-Furnished Materials. At its own expense, KDOT may provide materials, sources of supply, or both for the Contractor’s use in performing the work. In the Contract Documents, KDOT may designate materials, sources of supply, or both that the Contractor may use in performing the work. When designated, these materials and sources are acceptable for the Contractor’s use. KDOT assumes responsibility for the quality of these materials and sources of supply unless the Contractor’s acts or om issions affect the quality or source of supply. These materials become the Contractor’s proper ty once the Contractor takes control. From a designated source of supply, determine the amount of equipment and work required to produce a material that meets the contract requirements. Expect variations in material quality and do not assume the entire deposit is acceptable. The Engineer may order procurement of material from any portion of a deposit. The Engineer may reject portions of the deposit as unacceptable.
c.Site Selection and Restoration. Obtain the Engineer’s approval to use KDOT designated sources of supply for plant sites, stockpiles, and haul roads. Obtain the Engineer’s approval to use the Project right-of-way, other KDOT right-of-way, or other KDOT property (mixing strips) for plant sites, stockpiles, and haul roads. Where practical, do not store equipment or materials (including soil stockpiles) within 50 feet of rivers, streams or other surface waters. Where such storage is necessary, obtain the Engi neer’s written approval and include in the Project SWPPP a ppropriate best management practices for the storage area. Locate borrow areas, gravel pits, and quarry sites so they are not visible from the highway, unless the Engineer approves otherwise. Before using private property to obtain material, store material, operate a plant site, or perform other construction activity, enter into a written agreement with th e landowner. When using private property for borrow, obtain all permits and clearances requ ired for compliance as shown in subsection 107.2 , (which most commonly includes wildlife and archaeological clearances). When requested, provide a copy of the Contractor’s ag reement with the landowner. Submit a reclamation plan to the Engineer for the Engineer’s approval. After ceasing to use privat e property, reclaim the site(s) according to the approved reclamation plan(s). Leave sites in a neat condition. Provide a copy of the landowner’s release of the Contractor from further obligation.
d.Rights In and Use of Materials Found on the Work. When approved by the Engineer, the Contractor may use on the Project such stone, gravel, sand or other material determined suitable by the Engineer which may be found in the excavation. The Engineer will pay for bot h the excavation of such mate rials at the corresponding contract unit price and for the contract pay item for which the excavated material is used. No charge for the materials used sh all be made against the Contractor. Do not excavate or remove any material from within the highway location which is not within the grading limits, as indicated in the Contract Documents without written approval from the Engineer. Replace any excavated material removed for use in embankments, backfills, approaches, etc. with acceptable material at own expense. 106 – CONTROL OF MATERIALS 100 - 53 106.3 SAMPLING, TESTING, AND CITED SPECIFICATIONS The Engineer, Inspector, or both ma y inspect, test, and approve or rej ect all materials before, during, and after incorporation into the work. The Engineer or Inspector will take or direct the Cont ractor to take all samples, except the Contractor’s process control and QC samples. Sample and test the proc ess control and QC samples. Upon request, KDOT will provide copies of test results KDOT performed. When the Contract Documents refer to an undated specification, standard, or test method that AASHTO, ASTM, GSA, or another recognized national technical association has adopted, the reference means the most recent published (including interim or tentative) specifica tion, standard, or test method in effect on the Letting date. The Secretary will pay the cost of all inspection an d testing the Engineer or Inspectors undertake. The Contractor shall: pay the cost of all materials that KDOT or the Contractor uses for sample testing; pay the cost of all testing the Contractor performs on quality control/quality assurance (QC/QA) projects; include such costs in the QC/QA bid item; and pay the costs of testing KDOT performs on materials that exceed contract quantities and testing that is requested but the Engineer or Inspector deems unnecessary. If the Contract Documents specify on e manufacturer’s product, the Cont ractor may request the use of a product of another manufacturer unless the Contract Docu ments prohibit substitution. Submit the request to the Engineer and include: a complete description of the item; an explanation of how the alternate product meets the same standards as the product the Contract Documents specify; copies of shop drawings, catalog cuts, or both; and test reports or other descriptive literature, completely illustrating such items. The Engineer alone determines whethe r the alternate product is acceptable. Provide the Engineer required test reports or certifications for all ma terials incorporated into the work. The Engineer may waive the testing requirements of small quantities of materials if the material is incidental to the work, a recognized commercial brand, or obtained from sources having a history of adequate QC. On projects where Buy America requirements apply, note on shop drawings and catalog cuts that steel and iron used meets Buy America, unless otherwise specified. 106.4 CONTRACTOR QUALITY CONTROL REQU IREMENTS FOR QUALITY CONTROL/QUALITY ASSURANCE (QC/QA) PROJECTS This subsection 106.4 outlines general requirements for all types of QC/QA projects. Consult the particular section or subsection to obtain detailed process and QC requirements for a particular type of construction.
a.General.
1.Provide personnel and equipment that meet Part V QC testing procedures.
2.Provide the Engineer all reports, records, and diaries developed during cons truction activities. These documents are KDOT’s property.
b.Quality Control Plan.
1.At the pre-construction conference, submit in writing a Quality Control Plan (QC Plan) that meets Part V testing procedures (partially detailed below) for the Engineer’s review and approval.
a.List the names and phone numbers of all i ndividuals and alternates responsible for QC administration and inspection. For each particular type of construction, supply one or more individuals who have complied with the technica l certification requirements detailed in "KDOT Policy and Procedure Manual for The Certified Inspection and Testing Training (CIT) Program Manual". Only certified technicians may perf orm testing used for materials acceptance. The certification requirement applies whether the personnel belong to the Contractor’s QC organization or private testing firms. 106 – CONTROL OF MATERIALS 100 - 54 Obtain the "KDOT Certified Technician Manua l" from the KDOT Bureau of Materials and Research.
b.On the organizational chart, show the specified lines of authority for both mix design and QC operations during production.
2.The Engineer’s review and approval of the Contract or’s QC Plan are for KDOT’s benefit, not to ensure QC results. This review and approval is not a substitu te for the Contractor’s obligation to control quality.
c.Testing Facilities.
1.Locate the QC testing facility either at the plant site or adjacent to the Project si te and in a place that is readily accessible to the Project. Before beginning mixture production, obtain the Engineer’s approval of the testing facility, including the facility’s location and the testing equipment. Obtain the District Materials Engineer’s approval to put the testing facility in a lo cation other than the plant site or adjacent to the Project site . Provide the QC personnel the space and testing equipment needed to meet Part V.
2.Calibrate and correlate the testing equipment with prescribed procedures and conduct tests according to Part V testing procedures.
3.To facilitate communication between the Contractor and the Engineer, equip the QC testing facility with the following:
a.A telephone with a private line for the QC personnel’s exclusive use.
b.A copying machine for the Contractor’s, Engineer’s, and Inspector’s use.
4.In the testing facility, post a copy of the organizational chart from the QC Plan.
5.Allow the Engineer access to the testing facility to observe testing procedures, calculations, test documentation, and plotting of test results among other items.
6.If the Contract Documents re quire one, locate the Field Office and Laboratory (Lab) near the Contractor’s testing facility. See SECTION 803 .
d.Testing, Recording, and Data Presentation Requirements.
1.Take all test samples at random locations, at th e frequencies designated in the approved QC Plan, and at the rates specified in the KDOT Sampling and Testing Frequency Chart, Part V. Provide the Inspector with the random locations or frequencies before going to the job site to sample or test. The Engineer reserv es the right to generate the random locations, frequencies, or both. If KDOT generates the random locations or frequencies, KDOT will provide notification prior to the sampling time. (2) Record all original documentation in a bound field book or other KDOT approved bound record and turn over to KDOT at the end of the Project. Record and docu ment all test results and cal culations on data sheets KDOT has approved. Record specific test results on a daily summary sheet KDOT ha s approved. Base moving averages on 4 consecutive test results. Include in the Daily Quality Control Summary Sheet a description of quality control actions taken. Post and keep current QC charts showing both individual test results and moving average values. As a minimum, plot the single test values and the 4-test moving average values, as applicable, on KDOT-approved control charts. Keep control charts current on an ongoing basis. Plot results and limits as follows: individual test results for each test point in black. Connect those points with a solid black line; moving average for each test variable in red. Starti ng with the fourth test, c onnect those points with a dashed red line; KDOT verification test results with green asterisks; and specification working range limits for single test results with a green ink dotted line and for the 4-point moving average results with a green ink solid line.
3.Store and retain all QC and verification samples for 7 business days.
4.Provide test data as specified in the appropriate QC/QA construction specification.
e.Inspection by KDOT.
1.The Engineer and Inspector reserve the right to run any test at any tim e to determine contract compliance.
2.The Engineer or Inspector will inspect aggregates at the point of production for approved deposits, ledges, and beds. Do not produce aggregates from non-approved deposits, ledges, or beds. Immediately remove from the stockpile aggregates obtained from non-approved deposits, ledges, or beds. 106 – CONTROL OF MATERIALS 100 - 55 (3) The Engineer or Inspector may test aggregates for acceptance at the point of usage. Remove and replace, repair, or otherwise correct, at the Contractor’s expense, work incorp orating aggregates from non-approved sources. 106.5 CONTRACTOR’S PROCESS CONTROL FOR NON-QC/QA PROJECTS
a.General.
1.Provide and maintain an ad equate process control system. Perform all inspections and tests necessary to meet the Contract Documents; and Provide materials and formulate design mixe s that meet the Contract Documents.
2.Assume responsibility for the process control of all aggregate and aggregate combinations during production, handling, stockpiling, blending, mixing, and placing operations.
3.Perform all tests by personnel certified under the Certified Inspection and Testing Training (CIT 2) Program. Personnel may be certified by another program with approval of the Engineering Technician Training Coordinator.
b.Process Control Plan.
1.Before beginning material production, submit in writing a Process Control Plan for the Engineer’s review and approval. In the Process Control Plan, include the following: Sampling and testing frequencies, sampling locations, sampling and testing methods, and other inspections required to maintain the Process Control Plan. Upon request, KDOT will provide a recommended process control sampling and testing frequencies chart; Procedures to determine gradation, plasticity index, and deleterious substance content of all aggregates the Contractor may use; Procedures for inspecting stockpiles for separation, contamination, or segregation; For cold feed bins, include calibration procedures for setting cold feeds including observation of cold feed operation for uniformity; For hot bins, include procedures to determine the gr adation of aggregate in each bin. Determine the theoretical combined grading and calibrate the hot feed settings to provide the required material; For batch plants, determine the percent or weight to be used from each bin to assure compliance with the Approved HMA Mix Design or Approved Concrete Mix Design; and For continuous flow plants, establish a gate calibration chart for each bin. Determine gate settings for each bin to assure compliance w ith the Approved HMA Mix Design or Approved Concrete Mix Design.
2.KDOT considers the guidelines set forth in s ubsection 106.5b.(1) as customary activities necessary to control the production of materials or mixes at an accepta ble quality level. The activity KDOT requires depends on the type of process or materials the Contractor is produci ng. The frequency of these activities also varies with the process and the materials.
3.The Engineer’s review and approval of the Contr actor’s Process Control Plan are for KDOT’s benefit, not to ensure Contractor quality processes. This review and approval is not a substitute for the Contractor’s obligation to control processes.
c.Sampling and Testing. Use the same process control sampling, testing methods, and procedures that KDOT uses. Consult Part V for the Kansas Test (KT) Methods and for a Sampling and Testing Frequency Chart that the Contractor or producer may use as a material acceptance guide when developing the Process Control Plan. Advise producers supplying material for non-QC/QA projects to find the minimum required sampling and testing frequencies in Part V.
d.Test Reports. Maintain a file of all process control tests an d provide this file to the Engineer at the Engineer’s request. 106 – CONTROL OF MATERIALS 100 - 56 e. Inspection by KDOT.
1.The Engineer and Inspector reserve the right to run any test at any tim e to determine contract compliance.
2.The Engineer or Inspector will inspect aggregates at the point of production for approved deposits, ledges, and beds. Do not produce aggregates from non-approved deposits, ledges, or beds. Immediately remove from the stockpile aggregates obtained from non-approved deposits, ledges, or beds.
3.The Engineer or Inspector will test aggregates for acceptance at the point of usage. Remove and replace, repair, or otherwise correct, at the Contractor’s expense, work incorp orating aggregates from non-approved sources. 106.6 PLANT INSPECTION
a.When materials are inspected at the po int of manufacture, the following apply:
1.Cooperate with and assist the Engineer or Inspect or and make sure the material producer cooperates with and assists the Engineer or Inspector. (2) The Engineer or Inspector has full right of entr y at all times to areas of the plant concerning the manufacture or production of the materials being provided;
3.Provide and maintain adequate safety measures; and (4) KDOT may retest materials delivered to the plant that were tested and approved at the source of supply. KDOT may reject materials that do not meet the Co ntract Documents requirements upon re-testing.
b.The Engineer may accept non-complyin g, plant-inspected material if a ll of the following conditions are met:
1.The Engineer has satisfactory test results of both prior and subsequent material tests using the same source or sources as the non-complying material.
2.The Engineer finds the incidence and degree of nonconformance with the speci fication requirements are within reasonable and practical limits. (3) Demonstrates diligent, exercised material cont rols consistent with standard industry practices.
4.The Engineer determines the non-complying material will not adversely affect the value or serviceability of the completed work. 106.7 STORAGE OF MATERIALS Provide all space required to store stockpiled materi als. Locate stored materials to facilitate prompt inspection. Do not use private property to store material s without the owner’s or less ee’s written approval. Provide copies of such written approval at the Engineer’s request . The Engineer may approve portions of the right-of-way for storing materials. Restore all storage sites to th eir original condition at the Contractor’s expense. Store materials to preserve the materials’ quality. Th e Engineer or Inspector may re-inspect and reject stored materials, even if the Engineer or Inspector previously approved the materials before storage. 106.8 APPROVED MATERIAL SIGNS
a.Provide, install, and maintain "Approved Material" signs at each major material stockpile site that contains both non-KDOT tested and KDOT-approved materi als. Sites include the Contractor’s or commercial batching areas, plant sites, and major stockpile sites.
b.Install and construct the signs using the material specified below and conforming reasonably to the details shown in FIGURE 106-1 . Keep the signs clean and in good condition at all times.
1.Sign Face Details. Top Line 4-inch Standard Alphabet Series "B" Legend; Second Line 3-inch Standard Alphabet Series "B" Legend; I.D. Signs 2-inch Standard Alphabet Series "B" Legend; and Plain painted white background with black legend direct applied copy with ¼ inch inset border.
2.Materials. Manufacture the signs from backing ma terial composed of either metal (14 gauge steel or 0.100 inch thick flat sheet aluminum) or ¾ inch thick exterior type fir plywood and mounted on a suitable post. 106 – CONTROL OF MATERIALS 100 - 57 (3) Sign Locations. Install the signs at stockpile locations the Engineer approves. Erect signs approximately 5 feet high measured from the bottom of the sign and visible to anyone observing the stockpile from a normal working area. FIGURE 106-1: Details for Approved Material Signs.
c.If the Engineer requires, install identification signs for individual aggregate types and mixes (example SSG-1 for SM-12.5A) in locations where similar stockpile materials are being stored. Make these signs using "I.D. Signs 2 inch Standard Alphabet Series "B" Legend." A ttach these signs to the "Approved Material" sign post.
d.Include in the Contractor’s bid the cost of providing, erecting, and maintaining required materials signs. 106.9 HANDLING MATERIALS Handle all materials to preserve their quality. Transp ort aggregates from the storage site to the work in tight vehicles, constructed to prevent loss, degradation, or segregation of materials during all operations.
106.10 Disposition of Unacceptable Materials
Remove from the work site all unacceptable and re jected materials, unless the Engineer allows the Contractor to make the materials acceptabl e. Do not incorporate into the work previously rejected materials, until corrected and until the Engineer approves their incorporation into the work.
106.11 Material Provided By Kdot
When KDOT provides material, KDOT will deliver the material or make the material available at locations the Contract Documents specify. Coordinate delivery with KDOT. Pay any demurrage charges associated with the delivery of KDOT provided materials. After KDOT delivers the material or the Contract or obtains the material, the Contractor assumes responsibility for the material as if the Contractor had provided the material. KDOT assumes responsibility for the quality of these materials unless the Contractor’s, independe nt Contractor’s, or subcontractor’s acts or omissions affect the quality of the material. 107 - LEGAL RELATIONS AND RESP ONSIBILITY TO THE PUBLIC 100 - 58 SECTION 107 LEGAL RELATIONS AND RESPON SIBILITY TO THE PUBLIC 107.1 LAWS TO BE OBSERVED
a.Observe and comply with all laws. Laws include Federal law, State law, Municipal law, Federal regulations, State regulations, Municipal ordinances, codes, and orders and decrees of courts, boards, or other tribunals having authority over the subject matter involved.
b.Protect KDOT and any LPAs from liability and indemnify these entities for damages caused by or fines levied for the Contractor’s, subcontractors’, or suppliers’ violation of the law.
c.Immediately notify the Engineer of inconsistenc ies (ambiguities) between a law and the contract. 107.2 PERMITS, LICENSES, AND TAXES
a.Obtain all permits and licenses necessary to perform the work unless the Contract Documents state KDOT will obtain the permit or license.
1.Contact KDOT’s Bureau of Design, Environmen tal Services Section, for information regarding necessary environmental permits.
2.Sources of permits include the U.S. Army Corps of Engineers (Corps), Kansas Department of Health and Environment (KDHE), Kansas State Board of Agriculture Division of Water Resources (DWR), Kansas Department of Wildlife and Parks (KDWP), Kansas State Historical Society (KSHS) and other governing authorities.
3.Comply with all permit conditions and restrictions imposed by governing authorities.
b.Permits for Work in Waterways. If the Contractor’s method of oper ation requires placing material in a waterway, obtain both a Corps’ Section 404 permit and a KDHE 401 Certification (applicable when water flow exceeds 5 cubic feet/second).
c.Railroad Permits. Secure from the Railroad Company any pe rmit, license, right-of-way easement, or right-of-access the Railroa d Company requires for: constructing temporary crossings upon or over railroad right-of-way, tracks, or property; or using or traveling across railroad right-of-way, tracks, or property.
d.KDOT Obtained Permits. KDOT will obtain the U.S. Army Corps of Engineers’ permit for design activity. Review any permit KDOT obtains at the District Office in which the Pr oject is located or at the Bureau of Construction and Materials.
e.KDOT Provided Permits. Obtain a permit from the District Engineer if the Contactor needs an opening in the highway or right-of-way. See subsection 104.14 for further obligations involving Third Party permits.
f.Notice and Timeliness. Request permits and licenses in a manner that prevents Project completion delays. Assume responsibility for delays of 30 calendar days or less in obtaining a permit or license. The 30 calendar day period begins on the date the Contractor s ubmits an accurate, completed pe rmit/license application or the date the Contractor submits a written request if a permit/license application is not required. Assume responsibility for delays in obtaining permits and licenses outside the 30 calendar day period specified if the additional delay was caused by the Contractor, the Contract or’s agents, independent contractors, subcontractors at any tier, suppliers at any tier, or a combination thereof.
g.Expenses. Pay all permit fees, license fees, charges, and taxes necessary to perform the work. 107 - LEGAL RELATIONS AND RESP ONSIBILITY TO THE PUBLIC 100 - 59 107.3 PATENTED DEVICES, MATERIALS, AN D PROCESSES Enter into all legal agreements necessary to use pa tented or copyrighted designs, devices, materials, processes, or trademarks. Protect KDOT, political subd ivisions, and third parties from liability and indemnify KDOT, political subdivisions, and third parties for expenses these entities incur, damages these entities pay, or both for patent or copyright infringements. Assume this lia bility and pay these expenses and damages whether sought during construction or after Project completion. Make su re subcontractors at any tier and suppliers at any tier comply with the same requirements. 107.4 FEDERAL AID PROVISIONS If a Project contains Federal aid fund s, comply with all Federal laws, regulations, policies, and federally required contract provisions that ar e necessary for KDOT, LPAs, or both to receive Federal funding. These Federal laws, regulations, policies, and required contract provisions generally control over State laws, State regulations, Local ordinances, and codes. The FHWA or other appropriate Federal agency may in spect and approve the work . This authority does not make the U.S. Government a party to the contract. 107.5 PROVIDING RIGHT-OF-WAY The Secretary will secure all necessary rights-of-w ay before construction be gins unless the Contract Documents identify a delay in obtaining the rights-of-way. 107.6 EMPLOYEE SAFETY Make sure no Contractor employees or subcontractor employees are working in unsanitary, unsafe, or hazardous conditions. Provide all safety equipment and materials and take all other action the law, the contract, and the Engineer require to provide a san itary, safe, and non-hazardous work envir onment. Admit to the work site and comply with the directions of OSHA in spectors, KDHE inspectors, or other regulatory agency inspectors involved with the Project. Nothing in this provision forces the Cont ractor to waive the right to demand that regulatory agency inspectors have an appropriate warrant if State or Federal la w permits or requires a warrant. Admit to the work site KDOT safety personnel and KDOT environmental pers onnel, who will make any recommendations through the Field Engineer. 107.7 PUBLIC SAFETY Public safety is critical. Move traffic safely through construction. Move traffic with the least, minimal traffic obstructions. Provide safe ingress and egress for re sidents living within the Project limits. Provide temporary surfacing, when required. Repair poth oles and other pavement deficiencies. Maintain ro adways according to the Contract Documents. See subsections 104.11 and 104.16 . Where practical, store vehicles, construction equipment, ma terials, tools, and debris either off the right-of- way or a minimum of 30 feet from the traveled way. If the E ngineer approves storage of an item(s) within 30 feet of the traveled way, place appropriate signs , safety barriers, barricades, or a co mbination thereof ar ound the item(s). Assume the costs of such devices. 107.8 STORING AND USING EXPLOSIVES
a.General. Store and use explosives safely, protecting against damage to life, property, and the Project. Assume liability for bodily injury, death, damage, and third party property damage caused by negligently storing or using explosives. Assume liability for Contractor’s property damage and damage to the Project caused by storing or using explosives.
b.Storage. Store explosives a minimum of 1,000 feet from the tr aveled way, 1,000 f eet from a place of human occupancy, or 1,000 feet from both unless the law requires a greater restriction. Follow the requirements of OSHA and other authorized, regulator y agencies, if any, in securing and marking stored explosives. 107 - LEGAL RELATIONS AND RESP ONSIBILITY TO THE PUBLIC 100 - 60 c. Use. Notify property owners and utility owners of intende d explosives use in their property’s vicinity. Notify railroads of intended explosives use if such use is within 200 feet of railroad tracks, railroad structures, or both. Provide this notice in advance of blasting, allowing these owners a reasonable time to monitor and protect their property. Include in the notice the date, time, and approximate duration of blasting operations. 107.9 PROTECTING PR OPERTY, LANDSCAPE, AND THE ENVIRONMENT
a.Protect public and private proper ty from damage until final acceptance. Install temporary fence if the Contractor’s operations require temporary fence to protect adjacent property , animals, or both.
b.Disturb no land monuments or property marks before the Engineer or Contractor (whichever is responsible) verifies the location of these markers.
c.Cease construction operations upon encountering histor ical or archaeological ar tifacts. The Engineer will determine whether to suspend operations until third parties are able to extract the artifacts or the Contractor has approval to excavate the site. The Engineer may allo w work to continue in other Project locations.
d.Prevent and avoid pollution and wildlife interference.
1.Locate and protect all temporary storage facilities fo r petroleum products, other fuels, and chemicals to prevent accidental spills from entering st reams, lakes, ponds, rivers , and reservoirs (water body) within the Project area. In 24 hours, clean up all such spills lo cated within 1,500 feet of any water body.
2.Do not dispose of the following on any land within the Project limits, in any water body, in any wetlands, or in any location in which runoff, flood, wind, or other natural forces could result in environmental pollution: cement sweepings, concrete washings, concre te wash water from concrete trucks and other concrete mixing equipment, treatment chemicals, grouting and other bonding materials, construction debris, or other waste materials.
3.Protect wetlands in the Project vicinity from all activities that may result in draining or filling in wetlands.
4.Use clean uncontaminated materials for fill to mini mize excessive turbidity by leaching of fines and to preclude the entrance of deleterious and toxic materials in to any water body by natura l runoff or by leaching.
5.Outside the immediate area of operation, excavate, dredge and fill in the water course to minimize increases in suspended solids and turbidity.
6.During every phase of the Project, immediately remove and properly dispose of all debris to prevent the accumulation of unsightly, harmful, and toxic materials in or near any water body.
e.Erosion Control. Prevent erosion on the Project and Project related borrow areas according to SECTION 901 . Use KDOT’s Temporary Erosion Control Manual as a guide for the design, installation, and maintenance of temporary erosion control measures.
107.10 Liability for Bodily Injury and Property Damage Claims; Insurance
REQUIREMENTS
a.Bodily Injury Claims. Assume liability for bodily injury (including death) arising out of negligent acts or omissions that are: associated with contr act performance; and caused by the Contractor, the Contractor’s agents, independent contractors, subcontractors at any tier, suppliers at any tier, or a combination thereof.
b.Property Damage Claims (other than damage to the Project/work itself). Assume liability for property damages (including loss of use resulting from property damage) arising out of negligent acts or omissions that are associated with contract performance and caused by the Contractor, the Contractor’s agents, independent contractors, subcontractors at any tier, suppliers at any tier, or a combination thereof. Restore damaged property to a condition similar or equal to that condition existing before the damage, pay to restore the damaged property to that condition, or pay to replace the damaged property.
1.If government property, the Engineer will determ ine whether the Contractor’s restoration sufficiently corrected the damage. 107 - LEGAL RELATIONS AND RESP ONSIBILITY TO THE PUBLIC 100 - 61 (2) If private property, the property owner will determ ine whether the Contractor’s restoration sufficiently corrected the damage. After restoring damaged property or paying for damaged property as required, obtain a release from the property owner and submit the release to the Engineer. The Engineer will not issue final acceptance until the Contractor has ob tained and submitted the required release unless the property owner acts unreasonably in refusing to issue a release.
3.See subsection 104.20 for the Contractor’s liability for damage to the work/Project. Although the property damage claims and rela ted insurance requirements of subsection 107.10 do not encompass damage to the Project, the Contractor is responsible for Project damage under subsection 104.20 .
c.Required Insurance Coverage and Limits.
1."Commercial General Liability" insurance in an amount a minimum of $1,000,000 each occurrence, $2,000,000 aggregate for bodily injury and property damage combined, and $2,000,000 aggregate for products and completed operations. The Secretary may increase these limits or require an umbrella policy on specific projects. As a minimum, the Commercial General Liability Policy shall contain the following coverages: Premises and Operations; XCU (explosion, collapse, and underground hazards); Products and Completed Operations; Contractual Liability (for the Contractor’s indemnification obligations); and Contractual Liability--Railroads (through endorsement or otherwise) to provide coverage for Contractor’s operations on Railroad right-of-way if Project involves work on Railroad right-of-way. This coverage is required in addition to Railroad Protective Liability insurance under subsection
107.11 .
2."Automobile Liability" insurance in an amount a mi nimum of $1,000,0 00 each occurrence for bodily injury and property damage combined and that covers Owned, Hired, and Non-Owned vehicles.
3."Worker’s Compensation” and “Employer’s Liability ” insurance that complies with K.S.A. 44-532, related statutes, and amendments thereto.
d.General Insurance Requirements.
1.Certificates of Insurance. Before signing the contract, provide to the Secretary Certificates of Insurance showing the Contractor carries insura nce in the amounts and type this subsection 107.10 requires and showing the effective and expiration dates of such insurance. Such ce rtificates shall identify any and all endorsements to the policy. Such certificates shall provide the insurance company endeavor to give KDOT, any LPA, or both, thirty days’ notice of policy cancellation, policy non-renewal, or a material change in the policy. At the Engineer’s request, submit copies of the Contractor’s insurance policies. For projects involving work on Railroad right-of-way, the Certificates of Insurance shall show Railroad property as part of the designated job site.
2.Authorized Insurers and Approved Forms. Obtain insurance only from insurers authorized to transact insurance business in Kansas as an authorized insurer (adm itted insurers). For general liability, see K.S.A. 40-214. For automobile liability insurance, see K.S.A. 40-3103. Fo r worker compensation insuran ce, see K.S.A. 44-532. If unable to obtain an admitted insurer under K.S.A. 40-214 , request the Secretary’s permission to use a non-admitted insurer authorized to write excess surplus lines coverage under K.S.A. 40-246e. Be prepared to demonstrate to the Secretary and Kansas Insurance Commission why the Contract or was unable to use an admitted carrier as required by State statute. Use only forms that the Kansas Insu rance Commission has approved unless the Secretary has given permission to use a non-admitted insurer under K.S.A. 40 -246e. Include any endorsements the Kansas Insurance Commission requires.
3.Duration. Obtain and maintain all insurances this subsection 107.10 requires until KDOT issues Notice of Acceptance of Contract under subsection 105.16b . Make sure Commercial Genera l Liability Insurance coverage extends to claims made after Notice of Acceptance and be fore any applicable statute of limitations expires.
4.Additional Insureds. If applicab le and if the contract requires, make LPAs and Railroads additional insureds on the Commercial General Liability policy and Automobile Liability policy.
e.Subcontractors and Independent Contractors. Make sure subcontractors at any tier (including construction surveyors, materials testing services, or other service type providers) and independent contractors obtain and maintain the insurance this subsection 107.10 requires. At the Engineer’s request, submit copies of such subcontractors’ and independent contractors’ cer tificates of insurance or insurance policies. 107 - LEGAL RELATIONS AND RESP ONSIBILITY TO THE PUBLIC 100 - 62 107.11 LIABILITY FOR RAILROAD CLAIMS; RAILROAD INSURANCE REQUIREMENTS
a.Protect the Railroad from and assume liability for bodily injury (including death) to railroad workers and railroad passengers arising out of negligent acts or omissions that are associated with contract performance and caused by the Contractor, the Contractor’s agents, independ ent contractors, subcontractor s at any tier, suppliers at any tier, railroad workers assigned to the Project, or a combination thereof.
b.Protect the Railroad from and assume liability for da mage to railroad property and railroad right-of-way (including loss of use resulting from property damage) arising out of negligent acts or omissions that are associated with contract performance and caused by the Contractor, the Contractor’s agents, independent contractors, subcontractors at any tier, suppliers at any tier, railroad workers assigned to th e Project, or a combination thereof.
c.Obtain a Railroad Protective Liability Insurance Polic y (RPL) for the Railroad as the named insured for damages described in subsection 107.11a. and 107.11b. on projects involving work at railroad crossings, work adjacent to railroad right-of-way that could damage railroad right-of-way, or work within 50 feet of the centerline of a railroad track. Comply with the following requirements and any additional requirements and modifications to the following requirements contained in a project special provision:
1.RPL Limits. For each annual period, an amount of $2,000,000 each occurrence and $6,000,000 aggregate for bodily injury (including death), property damage, and physical damage to property combined.
2.RPL Coverage. Contact the Railroad for those forms, endorsements, and exclusions the Railroad requires. If unable to comply with the Railroad’s requir ements, notify the Assistant Bureau Chief of Construction and Materials, Kansas Department of Transportation, Topeka, Kansas.
3.Authorized insurers and Approved Forms. Obtain the RPL only from insurers authorized to transact insurance business in Kansas as an authorized insurer under K.S.A. 40-214. If unable to obtain an authorized, general liability insurer under K.S.A. 40-214, request th e Secretary’s permission to use a non-admitted insurer authorized to write excess lines coverage under K.S.A. 40-246e. Use only forms that the Kansas Insurance Commission has approved unless the Secretary has given approval to use a non-admitted insurer under K.S.A. 40- 246e. Include any endorsements the Kansas Insurance Commission requires.
4.Duration. Maintain the RPL subsection 107.11 requires until KDOT issues final acceptance under subsection 105.16b. unless the Railroad and Secretary approve cance llation of the Policy before final acceptance.
5.Subcontractors. If any work is sublet, make sure subcontractors at any tier provide the same insurance for the Railroad Company to cover the subcontractor’s operations.
d.RPL Submittal and Approval. Provide the Bureau Chief of Construction and Materials, Kansas Department of Transportation, Topeka, Kansas, the original and 1 copy (Original for Carrier, copy for KDOT) of the RPL on the Railroad Company’s behalf; Submit the RPL within 15 calendar days after recei ving notice of award of the contract. Obtain Railroad approval of the RPL before beginning construction on or near the railroad or railroad right-of-way. The Railroad Company approves the RPL, including coverage provided and the underwriter. (The Railroad typically requires 30 business days to issue its RPL approval.); The Engineer may delay issuing the Notice to Proceed until the Contractor has obtained the railroad’s approval of the RPL. Alternatively, if the Contr actor has submitted the RPL to KDOT, the Engineer may issue the Notice to Proceed, restricting the C ontractor’s operations to locations outside the railroad right-of-way until the railroad has approved the RPL; and Assume the risk of delays in submitting the RPL Policy. Assume responsibility for delays of 45 calendar days or less in obtaining the Railroad’s approval. The 45 calendar day period begins on the date the Contractor submits the RPL to KDOT. Assume responsibility for delays in obtaining the Railroad’s approval outside the 45 calendar day period specified if the additional delay was caused by the Contractor, the Contractor’s agents, independent contractors, subcontractors at any tier, suppliers at any tier, or a combination thereof. NOTE: Railroad permits are subject to subsection 107.2c .
e.Sample Form. If desired, request from the Assistant Bureau Chief of Construction and Materials, Kansas Department of Transportation, Topeka, Kansas , a sample Standard Form Railroad Protective Liability Policy. 107 - LEGAL RELATIONS AND RESP ONSIBILITY TO THE PUBLIC 100 - 63 107.12 INDEMNIFICATION
a.Defend KDOT and any LPA and hold KDOT and any LPA harmless from bodily injury claims, (including death), intellectual property claims, other personal injury claims, property damage claims (other than damage to the project-work itself), and as sociated expenses (including attorney ’s fees and defense costs) that are associated with contract performance and that are caused by the negligent act s or omissions of the Contractor, the Contractor’s agents, independent contractors, subcontractor s at any tier, suppliers at any tier, or a combination thereof. If KDOT, the LPA, or both defend against a bodily injury claim, intellectual property claim, other personal injury claim, or property damage claim (other than dama ge to the Project-work itsel f), indemnify KDOT, the LPA, or both for expenses they incurred (including attorney’s fees and defense costs), amounts they paid (including interest), or both but only if the claim was associated with contract performance and only to the extent caused by the negligent acts or omissions of the Contractor, the Contractor’s agents, independent contractors, subcontractors at any tier, suppliers at any tier, or a combin ation thereof. The fact that KDOT, an y LPA, or both share liability with the Contractor does not release the Contractor’s obligations to defend, hold harmless, and indemnify KDOT, any LPA, or both; however, the Contractor’s obligation to indemnify does not include that part of the claim (including that share of expenses) caused by the negligent acts or omissions of KDOT, the LPA, or both.
b.If the Project requires work on Railroad right-of-way, defend the Railroad and hold the Railroad harmless from bodily injury claims (including death), personal injury claims, pr operty damage claims, and associated expenses (including attorney ’s fees and defense costs) that are a ssociated with cont ract performance and that are caused by the negligent acts or omissions of the Contractor, the Contractor’s agents, independent contractors, subcontractors at any tie r, suppliers at any tier, railroad wo rkers assigned to the Project, or a combination thereof. If the Railroad defends against a bodily injury claim, personal injury claim, or property damage claim, indemnify the Railroad for expenses the Ra ilroad incurred (including attorney’s fees and defense costs), amounts the Railroad paid (including interest), or both but only if the claim was associated with contract performance and only to the extent caused by the negligent acts or omissions of the Contractor, the Contractor’s agents, independent contractors, subcontractors at any tier, suppliers at any tier, railroad workers assigned to the Project, or a combination thereof. The fact that the Railroa d shares liability with the Contractor does not release the Contractor’s obligations to defend, hold harmless, and inde mnify the Railroad; however, the Contractor’s obligation to indemnify does not include that part of the claim (including that share of expenses) caused by the negligent acts or omissions of Railroad employees not assigned to the Project and Railroad contractors, agents, independent contractors, subcontractors at any tier, and suppliers at any tier.
c.The indemnification obligations in subsections 107.12a. and b. do not affect other indemnification rights or obligations that may exist as to a party or person described in subsection 107.12 .
107.13 Unknown Hazardous Materials
Upon encountering unknown hazar dous materials or unknown pot entially hazardous materials, immediately: stop work within the co ntaminated or potentially contaminated area; remove workers from the contaminated or potentially contaminated area; exercise extreme caution at all times; notify the Engineer; and continue working on other unaffected areas unl ess the Engineer proh ibits such work. With KDHE and possibly other environmental agenci es, the Secretary and any LPA will identify the hazardous materials and form a cleanup plan for the hazardous materials. The Secretary and any LPA will arrange for a third party to perform the cleanup. The Secretary will treat the discovery and cleanup of unknown hazardous materials as a differing site condition under subsection 104.5 . Nothing in subsection 107.13 limits the Contractor’s responsibility for cleaning up, at the Contractor’s expense, known hazardous or potentially hazardous materials, including those materials identified in the Contract Documents and those materials the Contractor brings to the Project. 107 - LEGAL RELATIONS AND RESP ONSIBILITY TO THE PUBLIC 100 - 64 107.14 LIABILITY OF PUBLIC OFFICIALS
a.The Secretary’s authorized repres entatives assume no personal or other liability in exercising their contractual authority. They act only as the Secretary’s employees or agents.
b.The LPAs authorized representatives assume no personal or other liability in exercising their contractual authority. They act only as th e LPAs employees or agents.
107.15 LPAs AND OTHER THIRD PARTY OWNERS
The Secretary is the principal contracting party on co nstruction contracts for the State highway system as defined by K.S.A. 68-406. The Secretary is the agent on construction contracts entered into on behalf of disclosed principals such as counties, cities, political subdivisions, or other authorized persons, firms, or corporations. These LPAs and other third parties have the right to: enter the property; inspect and approve work; be protected by and receive the benef its of bonding, and insurance; and along with KDOT, enforce construction contract terms and accept the Project. The agreement(s) made between the S ecretary and a disclosed principal(s) on a Project is incorporated by reference into the construction contract for the Project. The Secretary will provide a copy of any agreement upon request.
107.16 Third Party Beneficiary
Except as provided in subsection 105.12 and subsection 107.12 , the parties do not intend to confer third party beneficiary rights on any person or entity that is not a party to this contract. Respecting third parties, the parties to this contract have only the duties, obligations, and responsibilities the law imposes. 108 – PROSECUTION AND PROGRESS 100 - 65 SECTION 108 PROSECUTION AND PROGRESS 108.1 NOTICE TO PROCEED
a.General. For each Project, the Engineer will issue to the Contractor a Notice to Proceed, a written notice to the Contractor to begin the contract work including, wh en applicable, the date from which the Engineer will start charging Contract Time. The Notice to Proceed will be issued and the Contr act Time will begin within the earliest and latest starting dates established for the Project. (see subsection 102.6 ). Without the District Engineer’s permission and for good cause only, the Engineer cannot give a Notice to Proceed da te earlier than the earliest starting date or later than the latest starting date established for the Project. To move the earliest and latest start date by more than 30 calendar days, the District Engineer w ill obtain the approval of the Bureau Chief of Construction and Materials. Perform no work on the Project site until th e Engineer issues the Notice to Proceed. Begin work on the Project site on or shortly after the Engineer issues the Notice to Proceed. If, for an y reason, the Contractor has not received the Notice to Proceed on or before the latest starting date, the Co ntractor shall notify the Engineer of the omission.
b.Railroad Protective Liability Policy. Typically, the Engineer will not issue the Notice to Proceed without an approved, railroad pr otective liability policy. If the Engineer ag rees to issue the Notice to Proceed before the Contractor has obtained an approved, railroad protec tive liability insurance policy, do not perform work within the railroad right-of-way until the railroad has approved this policy.
c.Restricted Site Access. The Engineer may issue the Notice to Proceed even if the Contractor has restricted site access. Include in the Contractor’s bid all costs (money and ti me) associated with restricted site access identified in the Contract Documents or observed by site examination. 108.2 PRE-CONSTRUCTION CONFERENCE AND PROJECT PROGRESS MEETINGS
a.Pre-Construction Conference. KDOT will hold a pre-construction conference for the Project. If held at a facility, attend and bring to th e pre-construction conference all docume ntation the Engineer requires. If conducted by phone, submit the required documentation to the Field Engineer.
b.Project Progress Meeting. At least once a month, hold a Project progress meeting with the Engineer, Inspectors, and any other government owners involved in the Project. Invite subcontractor personnel as well as other third parties which may affect the Contractor’s progress. If necessary, hold Project progress meetings weekly or bi-weekly. These meetings allow the parties to discuss upcoming work, discuss anticipated problems, determine inspection requirements, review schedul es, and review punch list items (see subsection 104.21 ) among other things. Notify the District Engineer if KDOT personnel are not attending Project progress meetings. 108.3 PROGRESS SCHEDULE OR N ETWORK SCHEDULE (SCHEDULE)
a.Definitions.
1.Progress Schedule: A chronologically-se quenced bar chart identifying the following: activities, sequence of activities, and duration of activities; and dates for drawing submittals and desired approval.
2.Network Schedule: A chronologically-sequenced bar chart and associated reports sorted by activity and earliest/latest start dates. The bar chart shall identify the following: activities, sequence of activities, duration of activitie s, and resources (Major Equipment, Materials, Labor) expected to be devoted to the work at the various stages; dates for drawing submittals and desired approval; and interdependence of all activities. 108 – PROSECUTION AND PROGRESS 100 - 66 b. Schedule.
1.Unless the Project has less than 30 working days, submit either an accurate Progress Schedule or a Network Schedule. Submit the Schedule either at the pre-construction conference or within 10 business days before the anticipated beginning of work on the Project.
2.It is the Contractor’s responsibility to determine the most feasible order of work consistent with the contract requirements. Plan and organize work to produce the least interference with traffic, businesses, and home owners and to minimize the use of planned detours. Plan and organize work to meet the Contract Time and any interim Contract Times. If the Schedule reflects completion of parts or all of the work earlier than the Contract Time (early completion), the Secretary shall not be liable for additional costs the Contractor incurs to achieve early completion or liable for delays that prevent th e Contractor from achieving early completion.
3.Provide enough detail so the Schedule reflects the Controlling Item of Work (CIOW) and other activities that affect the Contract Time.
4.The Engineer will request the Contractor to submit a revised Schedule if the Engineer believes the Schedule is unworkable.
c.Controlling Item of Work (CIOW). The Engineer will use the Schedule to identify the Controlling Item of Work and all activities that extend the Contract Ti me. If the Engineer is unable to identify the CIOW from the Schedule, the Engineer will request a revised Schedule that shows the CIOW and all activities that extend the Contract Time. If the Contractor fails to provide a revised Schedule or if the Contractor’s revised Schedule fails to show the CIOW, the Engineer will determine the CIOW.
d.Notification. Notify the Engineer of Schedule changes, delays, or both regardless of whether the Contractor is seeking additional time or money. The Engin eer may notify the Contractor that the contract is behind schedule. This notice is not an or der to accelerate the project.
e.Updated Schedule. (For projects requiring a Schedule).
1.Update Schedules when a Contract Change or other act or omission: alters the sequence of activities; changes the time for performing an activity; or requires the Contractor to increase or decrease ma jor equipment, material, or labor to meet the Schedule.
2.Submit an updated Schedule to the Engineer within 5 business days after one of the following events occur: a Contract Change that affects the Schedule by 10 working days; a contract delay that affects th e Schedule by 10 working days; work falls behind the latest Schedule by 10 working days (Working Day Projects); or work falls behind the latest Schedule by 14 calendar days (Calendar Completion Date or Calendar Day Projects).
3.Update schedules accurately by adjusting the Schedu le to reflect the resources the Contractor plans to devote to the work. If using a Network Schedule, identify the resources in the updated Schedule.
4.Identify any planned acceleration or planned sequenci ng change required to co mplete the work within the Contract Time.
f.Payment for Schedules. Include in the Contractor’s bid the cost of preparing and submitting the original Schedule and anticipated updates. The cost for the Schedule is subsidiary to other work.
g.Use of Network Schedules. Provide a Network Schedule instead of a Progress Schedule when:
1.the Contract Documents requires a Network Schedule;
2.the Engineer requires a Network Schedule because: the Engineer is unable to determine from the Progress Schedule the CIOW; the Engineer is unable to determine from the Progress Schedule the activities that extend the Contract Time; the Contractor has not submitted updated progress schedules; or 108 – PROSECUTION AND PROGRESS 100 - 67 the Contractor’s other acts or omissions cause a need for a Network Schedule to monitor the Project. 108.4 CONTRACT TIME-GENERAL
a.Contract Time. The Contract Time is the time set forth in the Contract Documents for completion of the work on the Project. Timely performance is an essential part of the contract. Complete all of the work within the Contract Time. For the Contract Ti me, the Secretary may establish:
1.working days, calendar days, or a calendar completion date to complete all work; or
2.A combination of working days, calendar days, or calendar completion dates, to perform all work necessary to open the Project to unrestricted traffi c (Project Open Time) and then to complete all remaining work for Project construction completion (Cleanup Time).
b.Project Open Time. During the Project Open Time, the Contract or shall perform all work necessary to open the Project to unrestricted traffic and may perform any other work necessary to complete physical construction or reconstruction of the Project. “Unrestricted traffic” means that all roadways (lanes, turn lanes, ramps, side roads, medians, shoulders etc.) within the Project limits are open to unobstructed continuous traffic flow with temporary or permanent striping, temporary or permanent signing, and re quired safety features such as guardrail and traffic control devices in place and operational. “Unobstructed continuous traffic flow ” means traffic is following the final lane configurations required by the plans and there are no lane closures. The Engineer, not the Contractor determines when the Contractor may open the Proj ect to unrestricted traffic.
c.Cleanup Time . The Cleanup Time is the number of working days, calendar days, or calendar completion date available to the Contractor after the Proj ect Open Time expires for the Contractor to complete remaining, unfinished contract pay items, subsidiary items, incidental work, final cleanup, and final punch list.
1.Determine the number of cleanup days on working day contracts according to TABLE 108-A . TABLE 108-A: DETERMINING CLEANUP DAYS ON A WORKING DAY PROJECT Project Open Time in Working Days-Ran ge Number of Cleanup Working Days 1 to 50 10 51 to 100 20 101 to 200 30 200+ 40
2.If the Engineer adjusts the Project Open Time fro m one range to another because of a Contract Change, the Engineer will apply the cleanup working days corresponding to the new range in TABLE 108-A .
3.On calendar day or calendar completion date c ontracts, the Secretary will identify the number of cleanup working days, cleanup calendar da ys, or the cleanup calendar completion date in a project special provision.
4.Project Open Time and Cleanup Time are separate periods of time. Even if the Project is not open to unrestricted tr affic, the Engineer will begin charging Cleanup Time the day after the Project Open Time expires. If the Project is open to unrestricted traffic but the Project Open Time has not expired, the Engineer will not begin charging Cleanup Time until the Project Open Time has expired. Once begun, the Engineer will continue charging Cleanup Time until all work is complete and the charging of Cleanup Time will not be suspended on days in which the Contractor is being assessed liquidated damages, a disincentive assessment, or both for restricting traffic.
d.Provide the Engineer at least 24-hour notice when the Contractor or subcontractors intend to work on Saturday. Obtain the District Engin eer’s approval to work on Sundays, Kans as Civil Service holidays, Governor- proclaimed holidays, Saturdays following a Friday holiday, and Saturdays prece ding a Monday holiday.
e.Resume work promptly after temporary suspensions and winter shutdown. 108 – PROSECUTION AND PROGRESS 100 - 68 f. Interim Contract Times. The Secretary may set Interim Contract Times in which the Contractor shall complete certain parts of the Project. Interim Contract Times may be stated in working days, calendar days, calendar completion dates, or a combination thereof. 108.5 WORKING DAY CONTRACTS (Also, see subsection 108.4. )
a.Complete all work necessary to open the Project to unrestricted traffic with in the original contract working days and any additional working days allotted to the contract (Project Open Time). Complete all remaining unfinished contract pay items, subsidiary items, incidental work, extra work, final cleanup, and final punch list within the working days remaining in the Project Open Time, if any, and the Cleanup Time permitted under subsection 108.4c .
b.The Engineer will begin charging working days on the date of the Notice to Proceed.
c.The Engineer will assess a working day or cleanup working day for:
1.Every weekday on which weather does not prevent the Contractor or a subcontractor from performing the Controlling Item of Work (CIOW) for at least 50% of the Contractor’s normal workday (regardless of whether the Contractor or subcontractor performs work).
2.Every Saturday on which the Contractor or a subcon tractor chooses to work and is able to work on the CIOW (regardless of whether the Contractor or subcontractors perform work on the CIOW).
3.Every Sunday or legal holiday on which the District Engineer allows the Contractor or a subcontractor to perform work requiring inspection (regardless of the type of work or the time spent working).
4.Every weekday the Contractor or a subcontractor is unable to perfor m the CIOW because of an act or omission for which the Contractor, subcontractor, or supplier is responsible under the contract.
5.Every weekday the Contractor or a subcontractor is unable to perform the CIOW because of plant failures, equipment failures, delivery delays, inefficient op erations, personnel problems, material shortages (other than national shortages meeting subsection 108.5d.(5) ), financial difficulties, and work on another project(s). The Contractor assumes the risk of delay associated with these matters, even though these matters may not be foreseeable. The Contractor assumes the risk of delay as sociated with these matters, even though these matters may be outside the Contractor’s control or outside the control of the subcontractor’s or suppliers at any tier.
6.Exception: If weather prevents the Engineer from assessing a working day or cleanup working day under subsection 108.5c.(1) , the Engineer will not assess a working day or cleanup working day for a reason listed in subsections 108.5c.(2) through (5).
d.The Engineer will not assess a working day or cleanup working day for the following:
1.Recovery Days. Recovery days are days the Contractor needs to restore the site to the approximate condition that existed before weather prevented the Contractor from performing the CIOW.
2.States Delay Days. States delay days are days in which the Contractor or subcontractors cannot work on the CIOW because of a Contract Change or other act or omission for which KDOT, any LPA, or another government entity is responsible. State’s delay days incl ude days on which the Contractor is awaiting a final punch list under subsection 104.21 when the final punch list is the CIOW and the 5 business days allowed to prepare the final punch list has expired.
3.Piling Delivery. The Engineer will not charge working days on days the Contractor or subcontractor awaits the arrival of permanent piling if: the contract requires test piles; the bridge Contractor or subcontractor ordered the permanent piling immediately after driving the test piles; or piling installation is the CIOW.
4.Winter Holiday Period. The Engineer will not charge working days or cleanup working days during the Winter Holiday Period regardless of whether the Contractor or subcontractors perform work. The Winter Holiday Period begins December 23 and ends January 3.
5.National Material Shortages. The Engi neer will not charge working days under subsection 108.5c.(5) if there is a national material shortage unless: the national material shortage was foreseeable at the time of bid; or the national material shortage does not prev ent the Contractor from performing the CIOW. 108 – PROSECUTION AND PROGRESS 100 - 69 (6) Winter Shutdown Period. The Engineer will not charge working days or cleanup working days during a Winter Shutdown Period identified in or added to the Contract Documents. KDOT may add a Winter Shutdown Period to the contract when the Dist rict Engineer and Contractor agree to suspend the Project because winter conditions prevent the Contractor from making progress on the CIOW for at least 50% of the Contractor’s normal work week or winter conditions make it commercially impractical for the Contractor to make progress on the CIOW.
e.Concurrent Delay. The Engineer will not assess a working day or cleanup working day under subsection 108.5c. if subsection 108.5d. prevents the Engineer from assessing a working day or cleanup working day on that same day.
f.Notification of Working Day Charges. Weekly, the Engineer will provide the Contractor a Notification of Working Day Charges, identifying the working days, cleanup working days, or both that were charged during the previous week.
g.Disputing Working Day Charges.
1.Notify the Engineer, in writing, of any contested working days or cleanup working days charged within 10 business days after receiving the Notif ication of Working Day Charges. In the written notice, pr ovide the reasons for contesting the days charged. If the Contractor fails to gi ve this notice in writing or fails to give this notice within 10 business days, the Contractor waives the right to dispute the working days or cleanup working days charged in that Notification of Working Day Charges. Notice to the Inspector is not sufficient under this subsection 108.5g .
2.If the Contractor disputes the working days or cleanup working days charged because of a Contract Change, comply with subsections 104.8 and 104.10 and identify in the contract adjustment request which working days or cleanup working days the Contract Change has affected. The 10 day notice period in subsection 108.5g.(1) does not apply to working days or cleanup workin g days disputed because of a Contract Change.
h.Additional Working Days. Working days will be added to a contract only when SECTION 104 allows additional time and when a written contract adjustme nt (Change Order) has received final approval. 108.6 CALENDAR DAY AND CALENDA R COMPLETION DATE CONTRACTS (Also, see subsection 108.4. )
a.The Engineer will issue a Notice to Proceed on the date the Contractor begins work or the date the Contract Documents specify.
b.Complete all work necessary to open the Project to un restricted traffic within the calendar days allotted in the Contract Documents or before the calendar completion date expires, including authorized time extensions (if any). Complete all remaining, unfinished contract pay items, subsidiary items, incidental work, extra work, final cleanup, and final punch list within the calendar days remaining (if any), within the days remaining before the calendar completion date expires (if any), and within th e Cleanup Time set by the project special provision.
c.The Secretary will increase the number of calendar da ys, extend the calendar completion date, or pay the Contractor to accelerate the Project if the Contractor pr oves one of the following:
1.The Contractor is entitled to a contract adjustment under SECTION 104 and complies with subsection 104.10b .
2.Unusually severe weather delayed the Project completion as provided in this subsection 108.6.c(2) . Unusually severe weather is a dverse weather that at the time of year in which it occurred is ab normal for the place in which it occurred. For unusually severe weather to delay Project completion and warrant additional time under subsection 108.6.c(2) , the Contractor must have a schedule showing the CIOW and delay to the CIOW at the time of the unusually severe weather. In addition, the Contractor must show unusually favorable weather at other times of the year failed to diminish, mitigate, or overcome the delay caused by the unusually severe weather.
3.An Act of God delayed the Project completion.
d.The State Transportation Engineer has sole discretion to determine whether to give a time extension or pay acceleration costs under subsection 108.6c . 108 – PROSECUTION AND PROGRESS 100 - 70 e. Interim Contract Times . The project special provision may require the Contractor to perform specified work within Interim Contract Times (working days, calendar days, or calendar completion dates) designated in the Project Special Provision. 108.7 COMPLETING WORK EARLY-INCENTIVE AWARD
a.The Secretary may offer the Contractor an incentive award for completing some or all of the work before the specified hourly periods, working days, calendar days, or calendar completion date expires (incentive award).
b.Seek no additional money for completing a Project before the Contract Time unless the parties have agreed, in writing, to an incentive award under this subsection 108.7 . Seek no additional money for completing parts of a Project before interim Contract Times, unless the parties have agreed, in writing, to an incentive award under this subsection 108.7 .
c.The Contractor may request the Secretary to add an in centive award to a contract. It is in the Secretary’s sole discretion to include or add an incentive award to a contract.
d.The Secretary will pay th e incentive award only if the Contractor completes the work early, according to the Contract Documents. 108.8 FAILURE TO COMPLETE WORK TIMELY -LIQUIDATED DAMAGES AND DISINCENTIVE ASSESSMENTS
a.If the Contractor fails to complete the work within the Contract Time and within Interim Contract Times, if any, the Secretary may charge:
1.liquidated damages under this subsection 108.8 ;
2.liquidated damages under a Project Special Provision; (3) a disincentive assessment(s) unde r a Project Special Provision; or
4.any combination of the foregoing.
b.Excluding Sundays and legal holidays, the Engineer will charge liquidated damages, a disincentive assessment, or both for each calendar day, or part thereof, that:
1.The Project remains incomplete af ter the Contract Time has expired.
2.The Project is not open to unrestricted tra ffic after the Project Open Time has expired.
3.The Contractor obstructs the unre stricted traffic flow to perform wo rk after the Project was opened to unrestricted traffic and the Pr oject Open Time has expired.
4.Specified work is not complete af ter Interim Contract Time(s) expire.
5.The Project remains incomplete after Cleanup Time expires. If the District Engineer permits the Contractor to work on Sundays or legal holidays during liquidated damages or disincentive assessment periods, the Engineer will charge liquidated damages, disincentive assessments, or both for all Sundays and legal holidays worked, including the Winter Holiday period. The Engineer will not stop charging liquidated damages, disincentive assessments, or both until the Contractor completes the required work unless the Engineer suspends damages under subsection 108.8c .
c.Exceptions warranting su spension of damages and resumption of damages.
1.Extra Work. The Engineer will suspend liquidated damages, disincentive assessments, or both if the Engineer orders extra work after th e Contract Time has expired and this work becomes the CIOW, affects the CIOW, or otherwise extends the Project completion time . The Engineer will resume charging and deducting liquidated damages, disincentive assessments, or both when the extra work ceases to be the CIOW, stops affecting the CIOW, or no longer extends the Project completion time.
2.Final Punch List. The Engineer will suspend liquidated damages, disincentive assessments, or both on days the Contractor is aw aiting a final punch list under subsection 104.21 when the final punch list is the CIOW and the 10 business days allowed to prepare the final punch list has expired. The Engineer will resume charging and deducting liqui dated damages, disincentive assessments, or both on one of the following days, whichever occurs first: 108 – PROSECUTION AND PROGRESS 100 - 71 The day the Contractor resumes the final punch list work. The 1st working day after the Contractor receives the final punch list. The 5th calendar day after the Contractor receives the final punch list if the Contractor had demobilized from the Project.
3.Specified Winter Conditions.
a.Suspension of Damages. On working day, calendar day, or calendar completion date projects, if the roadway is open to traffic and in its final traffic configuration for wi nter, the Engineer will suspend liquidated damages, disincentive assessments, or both: during a Winter Shutdown Period identified in the Contract Documents; during a Winter Shutdown Period the parties negotiate; once seasonal limitations prevent the Contractor from performing the CIOW on pay items restricted by these limitations such as permanent pavement markings and seeding; or when winter conditions prevent the Contractor from making progress on the CIOW for at least 50% of the Contractor’s normal work w eek or winter conditions make it commercially impractical for the Contractor to make progress on the CIOW.
b.Resuming Damages after Suspension for Weather Conditions. On working day, calendar day, or calendar completion date projects that have been suspended for weather conditions under subsection 108.8c.3(a) , the Engineer will resume charging and deducting liquidated damages, disincentive assessments, or both on whichever of the following days occurs first: the day after the winter shutdown period expires. the day the Contractor resumes work on its own. May 31 st of the year following the suspension for weather conditions. 108 – PROSECUTION AND PROGRESS 100 - 72 d. Amount of damages.
1.On working day contracts, the Secretary w ill determine the amount of liquidated damages using TABLE 108-1 . TABLE 108-1: TABLE OF LIQUIDATED DAMAGES Original Contract Amount Range Amounts of Liquidated Dama ges to be Deducted for Each Day Over Contract Time, Project Open Time or Cleanup Time Condition at End of Working Days, Calendar Days, Calendar Completion Date, Cleanup Time Project Not Complete after Contract Time Expires under 108.4a.(1) or Project Not Open to Unrestricted Traffic after Project Open Time Expires under 108.4a.(2)* Project Open to Unrestricted Traffic, but not Completed after Cleanup Time Expires under 108.4a.(2)
A.(B) $0.00 $500,000.00 $800.00 $400.00 $500,000.01 $1,000,000.00 $1,000.00 $500.00 $1,000,000.01 $2,500,000.00 $1,200.00 $600.00 $2,500,000.01 $5,000,000.00 $1,500.00 $750.00 $5,000,000.01 $10,000,000.00 $2,000.00 $1,000.00 $10,000,000.01 $25,000,000.00 $2,500.00 $1,250.00 Over $25,000,000.01 $3,000.00 $1,500.00 *Or Not Available to the Next Contractor, when applicable. Application of TABLE 108-1 when Contract Time includes Project Op en Time and Cleanup Time : Multiply the number of days (under subsection 108.8b. ) that the Project was no t open to unrestricted traffic after the Project Open Time expired by the amount in (A) to obtain an amount of Liquidated Damages. Multiply the number of days (under subsection 108.8b. ) that the Project was open to unrestricted traffic but not complete after the Cleanup Time expired by the amount in (B) to obtain an amount of Liquidated Damages. Combine these 2 liquidated damage amounts to obtain a Total Liquidated Damages amount.
2.On calendar day projects, calendar completion date projects, or projects with an Interim Contract Time(s), the Secretary will designate in a Project Special Provision the amount of liquidated damages, disincentive assessment, or both. If a Project Special Provision does not address the amount of liquidated damages, disincentive, or both, apply TABLE 108-1 .
3.If the Contractor placed tem porary rather than permanent stri ping, the Project will no longer be considered open to “unrestricted traffi c” on days the Contractor replaces th e temporary striping with permanent striping. If the Contractor placed tem porary rather than permanen t signing, the Project will no longer be considered open to “unrestricted traffic” on days the Contractor replaces the temporary signing with permanent signing, if the replacement obstructs continuous traffic flow. In either situation, the En gineer will calculate the liquidated damages on these days using the amount in column A of TABLE 108-1 .
e.The Secretary assesses liquidated damages to recove r the Secretary’s additional engineering costs, administration costs, supervision cost, and inspection costs for the Contractor’s failure to complete the work within the Contract Time or Interim Contract Times. The Secr etary assesses disincentive assessments to recover some of the public’s user costs or other public expenditures that are unique to the Project and caused by the Contractor’s failure to complete the work within the Contract Time or Interim Contract Times. The Secretary may combine the liquidated damages and disincentive costs into one amount and label the amount as liquidated damages. These 108 – PROSECUTION AND PROGRESS 100 - 73 damages are not considered a penalty bu t rather as an agreed upon alterna tive to calculating the actual damages incurred by the Secretary and users for Project delay.
f.Liquidated damages and disincentive assessments assessed under this subsection 108.8 do not relieve the Contractor from liability for any damages or costs resulting from: claims between Contractors under subsection
105.12 , third party claims, and deducts for construction work that failed to meet contract requirements such as
asphalt smoothness and erosion control violations, among others.
g.Permitting the Contractor to continue working after the Contract Time or Interim Contract Times expire does not constitute a contract time extension or prevent the Secretary from declaring a breach of contract under subsection 108.9 for the Contractor’s failure to complete work timely.
h.Nothing in this subsection 108.8 or any Project Special Provision providing for liquidated damages, disincentive assessments, or both prevents the Secretary from declaring a breach of contract under subsection 108.9 for the Contractor’s failure to complete work timely.
i.The Contractor, not the Secretary, shall pay for traffic control during liquidated damages periods, disincentive assessment periods, or both incurred for the Contractor’s failure to meet the Contract Time. This provision shall not apply to damages incurred for failing to meet Interim Contract Times.
j.Administering Damages. For purposes of this subsection 108.8 , the term “damages” means liquidated damages, disincentive assessments, or both. The Engineer will deduct the damages from contract funds owed to the Contr actor. If damages exceed contract funds, pay KDOT for remaining damages owed. Issue this payment with in 10 business days after receiving notice to pay. If the Contractor fails to pay, the Secretary may collect the amount owed from the Surety after declaring a breach of contract under subsection 108.9 . The Engineer will continue to assess damages even af ter the Secretary or Surety takes over the contract after the Contactor’s breach. Both the Contractor and Surety are liable for the damages assessed. Only the Secretary or State Trans portation Engineer may waive all or part of the damages. As each situation and project is different, no damage waiver in one instance dictates a future waiv er of damages on the same or another project. 108.9 CONTRACTOR’S BREACH OF CONTRACT
a.Causes for Breach . The Secretary (or State Tr ansportation Engineer) may declare the Contractor has breached the contract if the Contractor: fails to comply with the contract; fails to pay legal judgments within 30 days after the judgment becomes final; assigns contract proceeds to creditors wit hout the Secretary or Surety’s consent; becomes insolvent or is declared bankrupt; or commits a fraudulent act on this Project or another project.
b.Notice and Opportunity to Cure. If the Secretary declares a breach of contract for failing to comply with the contract, the Secretary will notify the Contractor and Surety, in writing, of the breach, specifying the particular cause. Except as provided in this subsection 108.9 , the Secretary will give the Contractor and Surety 10 business days to cure the breach by co mplying with the contract. If the Secr etary determines it is commercially or physically impossible for the Contractor or Surety to cu re the breach within the 10 business days allowed, the Secretary will determine whether it is in the State’s best inte rest to extend the cure time or to follow through with the breach of contract. The Secretary has sole discretion to ex tend the cure time. The Secretary’s failure to extend the cure time will not give rise to a breach of contract claim, lack of good faith claim, or other claim. The Secretary may give the Contractor and Surety less than 10 business days to cure the failure to perform remedial work timely (see subsection 105.5f. ). 108 – PROSECUTION AND PROGRESS 100 - 74 c. Determination of and Remedies for Breach.
1.If the Contractor or Surety does not cure the breach within the 10 business days or any allowed extension, or if the Contractor or Surety has not been allowed to cure the breach, the Secretary w ill declare the Contractor in breach and remove the cont ract from the Contractor. After removi ng the contract from the Contractor and determining which action is in KDOT’s best interests, the Secretary may: Hire another Contractor to complete the contract work; Require the Surety to complete the contract according to the original contract terms; Use KDOT forces to complete the contract work; or Employ a combination of the above or other methods to complete the contract work.
2.The Secretary, Surety, or third party completing th e contract or contract work may appropriate and use all materials on the Project site and all materials paid for and stored off site.
3.If the Secretary hires a third party or uses the Secr etary’s own forces to comple te the contract work, the Contractor and Surety are liable to the Secretary for extra costs th e Secretary incurs to complete the contract work. These costs include construction costs th at exceed the original contract price and administrative costs that rise from the Contractor’s breach. The Secretary will deduct these co sts from the contract funds. If the costs exceed the amount of contract funds, the Contractor and Surety shall pay the Secretary the deficit. If the costs are less than the contract funds remaining, the Secretary will pay the Contractor or Surety the balance.
d.Set-off. Nothing in subsection 108.9 prevents the Secretary from exerci sing the Secretary’s set-off rights under K.S.A. 75-6201 et seq.
108.10 Owner’S Breach of Contract
a.Causes for Breach. The Contractor may assert the Secretary has breached the contract if a Contract Change, act, omission, or combination thereof, for wh ich the Secretary is respon sible under the contract, fundamentally changes the scope of the original contract.
b.Notice . If the Contractor believes the Secretary has breach ed the contract, give th e Secretary notice, in writing, of the breach, specifying the particular Contract Change, act, or omission. Provide this notice within 10 business days after the Contract Change, act, or omission. This notice is necessary so the Secret ary may determine whether to modify, defer, or cancel the contract. If the Contractor fails to give the Engineer this notice, the Contractor waives the right to seek damages, a time extension, or both outside the contr act terms and may seek only a contract adjustment under the contract.
108.11 Deferring Or Cancelling A Contract
a.Reasons for Deferring or Cancelling Contract. The Secretary may defer a contract or cancel a contract for one or more of the following events: Executive orders of the Presiden t of the United States of Amer ica or Governor of Kansas; National emergencies; Injunctions (temporary restraining orders, preliminary injunctions, permanent injunctions); Other court orders; Major design changes; Site changes; Insufficient appropriations to continue the Contract or make payments for charges under the Contract; Other conditions making deferment or canc ellation in the State’s best interests. The Secretary’s discretion to defer or cancel a contr act exists even if the Contractor has partially or substantially performed the work.
b.Notice. The Secretary will provide the Contractor a written Notice of Deferment or Notice of Cancellation. 108 – PROSECUTION AND PROGRESS 100 - 75 c. Deferment. The Secretary and Contractor will enter into a written agreement stating the terms and conditions of deferment. If the parties cannot agree on thes e terms, the Secretary either will cancel the contract or will keep the original contract in force.
d.Cancellation.
1.When the Secretary cancels a contract or the remainder of a contract and the Contractor, its subcontractors, or its suppliers did not cause the can cellation, the Secretary will pay the following costs: contract prices for work completed; idle equipment time if the Engineer stops work before the cancellation date; mobilization and demobilization not already included; bidding and Project investigative costs relative to amount of work completed; material costs for materials the Cont ractor obtained but were not yet incorporated in the work and that the Contractor is unable to sell or return; overhead expenses attributable to the cancelled Project; legal and accounting charges for claim prep aration associated with cancellation; idle labor cost if the Engineer stops work before the cancellation date; guaranteed payments for private land us age associated with the Project; and other reasonable costs the Contractor incurs because of cancellation, but excluding loss of anticipated profits.
2.Cancellation does not modify or eliminate the C ontractor’s or Surety’s responsibility for the work performed.
e.Eliminated Items. This subsection 108.11 does not apply to eliminated items which are covered by subsection 104.4 even though the eliminated item(s) causes the Contractor to cancel a subcontract or supply contract.
108.12 Termination of Contractor’S Li Ability After Notice of Acceptance and
EXCEPTIONS
a.Liability to Secretary.
1.The Notice of Acceptan ce of Contract under subsection 105.16 releases the Contractor and Surety from further liability to the Secretary for: physical construction on the Project (except construction arising out of any breach of warranty, breach of guaranty, latent defects, fraud, or misrepre sentation discovered after Notice of Acceptance); physical damage to the Project caused by Acts of God and third parties after Notice of Acceptance (except for physical damage caused by the Contractor’s agents, independent contractors, subcontractors at any tier, suppliers at an y tier, or a combina tion thereof); or Maintenance of the Project.
2.The Notice of Accept ance of Contract under subsection 105.16 does not release the Contractor and Surety from the obligation to comple te final paperwork or to accept cost adjustments for the work performed. Release of these obligations (with exceptions) occurs after Final Payment as provided in subsection 109.9 .
b.Liability to Third Parties.
1.The Notice of Acceptance of Contract under subsection 105.16 does not release the Contractor from liability to third parties for personal injury (including bodily injury and death) and property damage claims associated with the contract and arisi ng out of the negligent acts or omissions of the Contractor, the Contractor’s agents, independent contractors, subcontractors at any tier, suppliers at any tier, or a combination thereof. Nothing in this subsection 108.12 extends the Contractor’s liability for these claims beyond that established by law.
2.The Notice of Accept ance of Contract under subsection 105.16 does not release the Contractor and Surety from liability to subcontractors and suppliers fo r work performed or materials supplied on the Project. Nothing in this subsection 108.12 extends the Contractor’s liability for these claims beyond that established in the contract between the Contractor and subcontractor or supplier or beyond that established by law. Nothing in this subsection 108.12 extends the Surety’s liability for these claims beyond that established in the Contract Bond and by law. 109 - MEASUREMENT AND PAYMENT 100 - 76 SECTION 109 MEASUREMENT AND PAYMENT 109.1 MEASUREMENT OF QUANTITIES
a.General. Measure all work using the United St ates Standard Measure or using th e International System of Units (SI), whichever the Contract Documents specify; Use generally recognized methods of measurement and computations conforming to good engineering practices; and Measure structures according to n eat lines shown on the plans or that the Engineer alters.
b.Temperature Corrections.
1.Correct all measurements to 60ºF, unless the Contract Documents show otherwise.
2.For asphalt materials: Correct asphalt volume to 60ºF using ASTM D1250 or using tables the Asphalt Institute publishes for emulsified asphalt temperatur e-volume corrections; and Measure tar according to ASTM D 633.
c.Measurement by Length. Measure items such as pipe culver ts, guardrail, underdrains, and similar items by the linear foot parallel to the base or foundation; and Measure Stations horizontality by the 100 linear feet.
d.Measurement by Area or Volume. Make longitudinal measurements for area computations horizontally; Do not deduct for fixtures having an area less than 9 square feet; and Make transverse measurements for area computations using neat dimensions shown on the plans, unless the Contract Documents show otherwise.
e.Measurement by Weight.
1.Equipment. Provide and maintain weighing devices according to SECTION 152 .
2.Weight. Measure ton as short ton consisting of 2,000 pounds avoirdupois; Measure aggregate weight in the saturated surface dry condition; For asphalt materials, accept certified scale weights as adjusted for loss from the car or waste; Adjust asphalt material weight for loss from foaming; and Accept asphalt material weight shipped directly from the refinery if measured with temperature compensating meters.
3.Weighing Procedures. Weigh on accurate and approved scales (see subsection 152.2 ); Zero balance scales every day before beginning we ighing operations. Make a minimum of 2 random zero balances during the da y and record the results; Check scales and record results a minimum of 2 tim es per week. In checking scales, use a roller, motorgrader, or loaded truck and weigh on 2 different scales in the same vicinity. The difference in the 2 scales must not exceed 0.25%. If the differe nce exceeds 0.25%, recertif y the scales according to subsection 152.2 ; Make sure the scale operator obtains and records in bound field book a minimum of 2 tare weights each day. (Exception: This is not re quired if scale operator uses an electronic scale system with an automatic print-out to weigh materials); Use either KDOT Form No 251A or Contractor-furnished materials receipts (including print-outs) in quadruplicate including the following required information: Type of material; 109 - MEASUREMENT AND PAYMENT 100 - 77 KDOT Project Number; Date; Truck Number; Gross Weight; Tare Weight; Net Weight; Deductions for Moisture (M), Soft friable ma terial (SFM), Wash (W) graduation under 4.00, if applicable; Pay Quantity; % Total Moisture; Location for initials of Scale Inspector; and Location for initials of Road Inspector; and Complete and sign the KDOT Fo rm No 251A or Contractor-furni shed materials receipts. Give original and first copy to the truck driver. Make sure truck driver gives both the original and copy to the designated Inspector. The Inspector will document receiving the tickets by initialing both receipts, retaining the original, an d returning the copy to the truck driver; Retain one copy for the Contractor; and Leave the third copy with the scale documentation.
4.Scale Operators. Do not change scale operators ex cept in circumstances beyond the Contractor’s control and after the Engineer approves the change.
f.Other Weight Conditions. The Engineer will use weight tickets to initially accept and pay for stor ed materials shipped by rail or truck. (Final payment will be based on actual weight measured on the Project.); and The Engineer will not use truck or rail car weights for materials passed through mixing plants.
g.Materials Measured by Volume. Measure volume at point of acceptance; Use any size vehicle within the legal weight cons traints if volume can be readily determined; Load vehicles to their water level capacity; At the point of delivery, the Engineer may require the load to be leveled in the vehicle before acceptance; and Before the Contractor begins delivering a volume pay item, the Engineer may convert the volume of materials to weight of materials. The Engineer an d Contractor shall determine and agree to the weight to volume conversion factors. Use KT methods, when applicable.
h.Miscellaneous Materials Measurements. Wire Gage or Gage means the wire size number specified in AASHTO-M32; Measure timber by the thousand foot board measure (M.F.B.M.) incorporated into the structure based on nominal width and thickness and th e extreme length of each piece; and Unless the Contract Documents specify otherw ise, the Engineer will accept manufacturer’s measurements for standard manufactured items such as fence, wire plates, rolled shapes, and pipe conduit that are identified by gage, unit weight, or section dimensions.
i.Computed Quantities.
1.Use the following methods to compute volumes of excavation: average end area method; photogrammetric measurements and computer calcu lations with the Engineer’s approval; or other methods the Bureau of Constr uction and Materials accepts to co mpute volumes of excavation.
2.Use standard engineering calculations to comput e areas and volumes from measured dimensions. 109 - MEASUREMENT AND PAYMENT 100 - 78 109.2 SCOPE OF PAYMENT
a.Pay Items. The Secretary will pay unit prices or lump sum prices (contract prices) for the various contract pay items as designated in the Contract Documents.
b.Original Contract Work. Accept payment of the cont ract prices in the "Sche dule of Prices" as full compensation for performing all work necessary to construct or reconstruc t the Project and for accepting all risk, loss, damage, and expense for which the Contractor is responsible under the contract.
c.Subsidiary and Incidental Work. The Secretary will not consider subsidiary and incidental items for separate payment. Include costs for subs idiary and incidental work in the cont ract unit prices or lump sum prices.
d.Price/Pay Adjustment Factors, Damages, and Bonuses . Accept adjustments to contract prices and accept contract deducts, damages, bonu ses, incentives, or any combination of these items the Contract Documents specify.
e.Contract Changes. Accept payment for Contract Changes under SECTION 104 . 109.3 FORCE ACCOUNT PAYMENT If the parties are unable to agree upon the amount of compensation for extra work, the Secretary may require the Contractor to perform speci fic work on a force accoun t basis. Compute force account costs as follows:
a.Labor.
1.Wages.
a.The wage rate agreed upon in writing before beginning the force acco unt work for the number of hours all workers and foremen are actually engaged in such work.
b.Contractor’s overhead and profit: The sum of 20 % plus the percentage for bond, insurance, and taxes calculated under subsection 109.3b. multiplied by the sum of the wages calculated under subsection 109.3a.(1)(a) .
2.Fringe Benefits.
a.Costs paid for, health and welfare benefits, pension fund benefits, or other such benefits but only if the law, collective bargaining agreement, written employment contract, or Contractor’s written company policy requires payment for such costs.
b.Contractor’s overhead and profit: 15% of the sum of the allowances in subsections 109.3a.(2)(a) .
3.Subsistence and Travel Allowances.
a.The actual daily cost per worker paid for subsistence and travel allowances (allowances) agreed upon in writing before beginning the force account work for the days all workers and foremen are actually engaged in such work. If a worker performs the forc e account work for more than 60% of the worker’s day, KDOT will pay 10 0% the worker’s daily allowance. If a worker performs the force account work for 60% or less of the worker’s day, KDOT will pay 50% of the worker’s daily allowance.
b.Subsistence and travel allowances costs are only paid if the law, collective bargaining agreement, written employment contract, or Contractor’s written company policy requires payment for such costs.
c.Contractor’s overhead and profit: 15% of the sum of the allowances in subsections 109.3a.(2)(a) and (b).
b.Bond, Insurance, and Taxes. The rate (shown as a percentage) the Secretary establishes and adjusts periodically for bond costs, unemployment insurance contri butions, social security taxes, medicare and insurance premiums (property damage, comprehensive liability, automobile liability, and worker’s compensation) that the force account work causes.
c.Materials.
1.The actual costs of materials th e Engineer approves and the Contractor uses or consumes in the force account work. 109 - MEASUREMENT AND PAYMENT 100 - 79 (2) Contractor’s overhead and profit: 15% of the sum of the material costs calculated under subsection 109.3c.(1) .
d.Equipment.
1.Before beginning the force acco unt work, provide equipment inform ation so that equipment may be identified in the Rental Rate Blue Book for Construction Equipment (Blue Book). The rate to be paid will be the monthly rate set forth in the Blue Book. The Blue Book rate is calculated by dividing the monthly rate for the equipment by 176 and adjusting that rate by Blue Book age and regional adjustment factors before adding in the Blue Book estimated hourly operating co st. The hourly operating cost includes costs for repairs, fuel, and lubricants used or consumed in the force account work. (2) Transportation costs to and from the site of the work if: the equipment is obtained from the nearest approved source; the return charges do not exceed the delivery charges; haul rates do not exceed the established rates of licensed haulers; and the equipment is not alread y available on the Project.
3.Standby rates for idle equipment (hourly rental rate minus the hourly operating cost) times 0.5 for equipment not operating during normal working hours if: the equipment is used in the force account work; and the Engineer orders the Contractor to keep the equipment on the Project.
4.Contractor’s overhead and profit: No allowance w ill be made for overhead and profit on the items in subsections 109.3d.(1) , (2) and (3).
e.Limitation on Compensation. The Secretary will not pay superintendents, the use of small tools, or other costs for which no specific allowance is provided in this subsection 109.3 .
f.Required Verificati on and Documentation.
1.Daily, the Contractor’s representative and the En gineer shall compare and ag ree upon the records of labor, equipment, and materials used for the force account work.
2.To receive payment, provide itemi zed statements of the costs of su ch force account work detailed as follows: name, classification, date, daily hours, total hours, wage rate, and extensions thereof for each worker and foreman; quantities of materials, prices, and extensions thereo f and transportation costs for materials. Attach invoices for all materials used or consumed. If the Contractor takes the materials from its own inventory, provide an affidavit certifying that: the material was taken from inventory; the quantity claimed was actually used; and the price and transportation costs claimed repr esent the Contractor’s actual costs; and designations, dates, daily hours, total hours, rent al rates, and extensions thereof for each unit of equipment and transportation costs for equipment.
3.If the Engineer cannot verify the itemized stat ement from KDOT’s Project records, KDOT may conduct a complete audit of the Contra ctor’s force account records.
g.Payment of Force Account Work or Negotiat ed Work Performed by Subcontractors, Leased Trucking, or other Trucking.
1.The term "work" in this subsection 109.3g. means either force account wo rk or work performed on a negotiated price basis, whichever applies.
2.When all or a portion of the "work" is sublet to a highway industry subcontractor or the Contractor hires subcontractors, leased trucking, or other trucking, the Contractor shall receive overhead in the amount shown in TABLE 109-1 . The "Dollar Amount of Work" shall be the total amount determined for the subcontractor or leased trucking using the requirements shown in subsections 109.3a. through 109.3f. or the subcontractor’s or leased trucking’s negotiated price. 109 - MEASUREMENT AND PAYMENT 100 - 80 TABLE 109-1: ADD ON FOR CONTRACTOR’S OVERHEAD FOR FO RCE ACCOUNT WORK OR NEGOTIATED WORK USING HIGHWAY SUBCONTRACTORS, LEASED TRUCKING AND OTHER TRUCKING Dollar Amount of Work Add on for Overhead to compensate Contractor for administrative expenses incurred in additional subcontract work and additional trucking $0 to $50,000 5% $50,000 to $100,000 $2500 plus 3% for any amount over $50,000 Over $100,000 $4000 plus 1.5% for any amount over $100,000 109.4 STORED MATERIALS PAYMENTS
a.Request payment for properly stored nonperishable mate rials when the value of th e stored material is a minimum of $5,000.00 for each individual item of material, unless otherwise approved by the Engineer. Only include the actual material and shipment costs in the request. Do not include any testing fees, stockpiling costs, sales tax, etc. When requesting payment for stored materials, verify the quantity of materials stored and the value of the material. Identify the contract line item numbers (bid items) representing the stored materials and the quantities of stored materials assigned to each designated contr act line item number. Provide required certification for all stored materi als according to the Contract Documents; As the materials are incorporated into the work, the Engineer will measure actual quantities and adjust the stored materials payment by the actual quan tities incorporated. Upon receiving each payment voucher (progress payment), verify th e accuracy of the stored materials paid for to date and advise the Engineer of any discrepancy; and After receiving payment for the stored material s, pay subcontractors and suppliers according to subsection 109.6 .
b.The Engineer will pay stored materials for nonperishab le material the Contractor manufactures using its own forces. Before payment, the Contractor and Engineer shall agree upon and verify the delivery amount and storage location. The Engineer may pay for materials stored properly at a fabricator’s or manufacturer’s facility if the material is specifically identified for a KDOT Project.
c.The value of stored materials shall not exceed 90% of the contract price for th e item of work in which these materials will be incorporated.
d.Assume liability for stored materials lost by deterioration, waste, theft, or other natural or man-made actions.
e.Stored materials payment requests will not be accepted if the material is scheduled for use within 30 days of the request. 109.5 PROGRESS PAYMENTS
a.Work Accomplished. The Engineer will make an approximate estimate of the work accomplished (considering price and pay adjustment factors) and pay for this work (progress payment) at intervals not to exceed one calendar month. Request progress payments at more frequent intervals, if desired. The Engineer may withhold from progress payments liquidated damages, reimbursement for remedial work under subsection 105.5f. , excess costs for breach of contract, final cleanup work expenses, and other deducts the Contract Documents specify.
b.Contract Proceeds. Obtain the Engineer’s and Surety’s written consent to assign contract proceeds to creditors.
c.Payment for Contract Bond. If requested and upon receiving an invoice, KDOT will make payment for the premium amount of the Contract Bond. The paymen t will be made with the following conditions: The premium shall be great er than $5,000.00; 109 - MEASUREMENT AND PAYMENT 100 - 81 The invoice shall list the premium for each Project when the invoice includes multiple projects; Payment will be shown as "Contract Bond" on intermediate payments; and When the Contractor has earned 50% of the "Origina l Contract Amount", the En gineer will remove the payment for "Contract Bond" from future progress payments. Note: The Percent of Original Contract Amount = the amount earned by the Contractor* divided by the total dollar value of the original contract (all bid items). *Do not include monies earned for "Contract Bond", "Mobilization", "Traffic Control (Lump Sum)", "Contractor Construction Staking" and "Stored Materials". 109.6 PAYMENTS TO SUBC ONTRACTORS & SUPPLIERS
a.Definitions. For purposes of subsections 109.6 and 109.7 , use the following definitions: "subcontract" means a contract for su pplies, materials, services, or a combination thereof between a Contractor and a subcontractor; and "subcontractor" means an entity that provides the Contractor supplies, materials, services, or a combination thereof to complete the contract.
b.Progress Payments.
1.Prior to the first progress payment, submit to the Engineer bid item price sheets for 1st tier subcontractors providing services and a c opy of materials purchase orders for 1st tier subcontractors providing materials. This information is needed for the Engineer to verify proper payment.
2.Within 10 calendar days after receiving payment from the Secretary for appr oved, subcontract work, pay subcontractors for their work.
3.Within 15 calendar days after receiving paymen t from the Secretary, submit to the Engineer a "Certificate for Subcontract Work and Payment", KDOT Fo rm No. 1010, containing the following representations: "I certify that the Contractor recei ved payment from the Secretary on _( date)__ and, within 10 calendar days after this date, paid the subcontractors named below for the work those subcontractors completed on or before the payment voucher’s "Paid To Date"." [Signed by Contractor’s representative]. Note: More than 1 subcontractor may be shown on KDOT Form No. 1010.
c.Retainage.
1.Bonded Subcontractors. Withhold no retainage from bonded subcontractors.
2.Unbonded Subcontractors. Withhold from unbonded subcontractors the percentage of retainage, if any, the Contractor feels is necessary to protect itself. Withhold this retain age until the unbonded subcontractor has completed all its subcontract work and has provided an affidavit that the subcontractor has paid all indebtedness for supplies, materials, and labor used in performing its subcontract work. The unbonded subcontract work is considered completed when KDOT pays the Contractor 100% of the items subcontracted. After the unbonded subcontractor has provided this affidavit, pay all retainage owed within the next 5 business days.
3.No subcontract provision shall permit the Contractor to delay subcontractors’ retainage payments until the Project’s final acceptance or final payment.
d.Good Cause Exception. If the Contractor has "good cause" to withhold a subcontr actor’s progress payment (bonded or unbonded subcontractors) or retainage (unbonded subcontractors), identify the cause for withheld payment, the payment amount, and the anticip ated payment date, writing this information on the "Certificate for Subcontract Wo rk and Payment", KDOT Form No. 1010. If the Engineer determines the Contractor has "good cause" for a withheld payment, the Engineer w ill not impose sanctions on the Contractor. A Contractor’s lack of funds to pay is not "good cause" for withheld payment. 109.7 SANCTIONS FOR FAIL URE TO PAY PROMPTLY
a.If a Contractor fails to comply with the payment requirements of subsection 109.6 without good cause, pay an interest penalty to the affected subcontractor. Compute the interest penalty at the rate of 1.5% per month on the amount of money owed the subcontractor. The interest assessment will begin on the day after payment is due 109 - MEASUREMENT AND PAYMENT 100 - 82 under subsection 109.6 and will continue until the Contractor has paid the amount of money owed the subcontractor.
b.If a Contractor fails to comply with the certification requirements of subsection 109.6 , the Secretary may impose liquidated damages of $50.00 per calendar day per subcontractor for each day certification is late.
c.If a Contractor submits a certification stating payment has been made but knowing payment has not been made as subsection 109.6 requires (false certification), the Secretary may impose liquidated damages of $50.00 per calendar day per subcontractor for each day the certification remains false.
d.If a Contractor fails to comply with the payment requirements without good cause, submits a false certification, or repeatedly fails to comp ly with the certifica tion requirements of subsection 109.6b. , the Secretary may adjust a Contractor’s qualificati on rating, declare the Contractor is no t a responsible Contractor, suspend a Contractor from bidding, or debar a Contractor from bidding.
e.For each violation of subsection 109.6 , a Contractor may receive one or more of the sanctions provided. 109.8 PROVISION FOR LOWER-TIER SUBCONTRACTORS
a.Definitions. Lower-tier subcontract means a contract for supplies, materials, service, or a combination thereof between a subcontractor and a party other than the Contractor; and Lower-tier subcontractor means an entity that provides a subcontractor supplies, materials, services, or a combination thereof to complete a subcontract.
b.Progress Payments. Include in all subcontracts a provision th at requires the subcontractor to pay all lower-tier subcontractors within 10 calendar days after th e subcontractor receives payment from the Contractor. Include a good cause exception clause to such pr ompt payment similar to the one contained in subsection 109.6d .
c.Retainage. Include in all subcontracts a provision similar to subsection 109.6c. that prohibits the subcontractor from withholding retainage from bonded lower-tier subcontractors and requires the subcontractor to release retainage to all unbonded lower-tier subcontractors.
d.Administration. The Contractor is responsible for administer ing this provision. KDOT will not monitor prompt payments to lower-tier subcontractors. KDOT may investigate payment complaints lower-tier subcontractors make to KDOT. 109.9 FINAL PAYMENT AND CORRECTIONS AFTER FINAL PAYMENT
a.Final Payment. Final payment will reflect the contract amount adjusted by approved contract adjustments (Change Orders) minus all previous payments and deductions. The Secretary will issue final payment after the following events occur: the Engineer issues Notice of Acceptance of Contract under subsection 105.16b. ; the Engineer prepares a final esti mate of the value of all work; the Contractor signs the final estimate; the Contractor submits an Affidavit of Contractor, swearing that the Contractor has paid all debt the contract requires; the Surety executes a Release of Final Estimate; and the Bureau of Construction and Materials reviews the final paperwork, including the signed final estimate.
b.Release of Secretary. By accepting the final payment, the Contr actor releases the Secretary from all claims arising out of the work except for claims caused by correction of errors in quantities, measurements, or certifications (payment corrections) discovered after final pa yment. The Secretary is not released from liability for payment corrections until 3 years from the date of final payment. Nothing in subsection 109.9 permits the 109 - MEASUREMENT AND PAYMENT 100 - 83 Contractor to file claims under SECTION 104 for additional time, additional money, or both after final payment rather than at Notice of Acceptance as provided in subsection 105.16b .
c.Release of Contractor and Surety. By issuing final payment, the Secr etary releases the Contractor and Surety from further costs necessary to construct the Project except for costs incurred due to latent defects; costs incurred because of the Contractor’s br each of warranty, breach of guaranty, fra ud, or misrepresentation; and costs resulting from correction of errors in quantities, measurements, or certifications (payment corrections) discovered within 3 years from the date of final payment. See subsection 108.12 for the Contractor’s and Surety’s release of liability from further construction obligations after Notice of Accepta nce of Contract.
d.Field Audit Corrections. The Contractor and Surety understand that the KDOT Bureau of Fiscal Services audits the Project after final payment rather than before final payment. Despite final payment, the Secretary will correct quantity, measurement, or certification errors discovered du ring a final audit. If the correction is favorable to the Contractor, the Secretary will pay th e Contractor the amount owed . If the correction shows KDOT overpaid the Contractor, pay the Secretary the amount owed. If the Contractor fails to pay the amount owed, the Surety shall pay the amount owed. Neither party nor the Surety has obligations under this subsection 109.9 after 3 years from the date of final payment. The Surety shall have no claim or defense that KDOT’s alleged negligence in computing quantities, computing measurements, or revi ewing quantities, measurements, or certifications during construction and before final payment prejudiced the Surety ’s rights or voided the Surety’s obligations under this subsection 109.9 .
109.10 Responsibility for Payment
The Secretary will pay for work w ith warrants as state law allows. 151 - COMPACTION EQUIPMENT 150-1 SECTION 151 COMPACTION EQUIPMENT 151.1 GENERAL Use rollers and compaction equipment of standard manufacture. Use self-propelled rollers capable of reversing direction without backlash. Use rollers with po sitive, accurate steering contro l. Use adequately powered trucks or tractors for towed-type rollers. Equip rollers with self-cleaning devices that prevent material from adhering to the wheels, drums or tamping surfaces. If a numerical density is specified, the Engineer ma y waive the roller weight requirement if the roller compacts the material to the specified density. If a numerical density is not specified, the Engineer may waive the roller weight requirement, if the roller perfor med satisfactorily on a previous KDOT project. 151.2 TAMPING (SHEEPSFOOT) ROLLERS Use either towed or self-propelled tamping rolle rs that can obtain the required compaction. Additional requirements for non-vibratory, tamping rollers: A metal roller, drum or shell with tamping feet projecting a minimum of 6 ½ inches from the surface of the roller, drum or shell; The cross-section area of each tamping foot, measured perpendicular to the axis of the tamping foot, shall be 4 to 12 square inches; Tamping feet spaced 6 to 12 inches, meas ured diagonally center to center; and If the tamping roller is used to obtain Type B comp action, the weight is such that the load on each tamping foot is a minimum of 200 pounds per square inch. 151.3 PNEUMATIC-TIRED ROLLERS Use either towed or self-propelled pneumatic-tired ro llers that can obtain the required compaction. Equip with scrapers to remove material buildup from drum surface. Provide the Engineer with a suitable gauge to check the tire pressure of pne umatic-tired rollers. Additional requirements for pneumatic-tired rollers:
a.Light Pneumatic-Tired Rollers Tires with wide, smooth treads and uniform air pressure; Tires on the front and rear axles staggered to provid e complete coverage of the area the roller travels over; and Sufficient weight to provide a minimum of 225 pounds per inch of tire width.
b.Heavy Towed-Type Pneumatic-Tired Rollers Tires with wide, smooth treads and uniform air pressure; Single axle rollers; and A weight of 10 to 50 tons.
c.Heavy Self-Propelled Pneumatic-Tired Rollers Tires with wide, smooth treads and uniform air pressure; Tires on the front and rear axles staggered to provid e complete coverage of the area the roller travels; and A weight of 8 to 30 tons. 151.4 SMOOTH-FACED STEEL ROLLERS Use either towed or self-propelled smooth-faced steel rollers that can obtain the required compaction. Additional requirements for smooth-faced steel rollers:
a.Smooth-Faced Steel Trench Rollers Smooth faces on all steel rollers; 151 - COMPACTION EQUIPMENT 150-2 Equip with water tanks and sprinkling devices to wet the rollers; Equip with scrapers to remove materi al buildup from dr um surface; and Sufficient weight to provide a minimum of 300 pounds per inch of steel roller width.
b.Towed-Type Smooth-Faced Steel Rollers Smooth faces on all steel rollers; A minimum of 48 inches effective steel roller width; Equip with water tanks and sprinkling devices to wet the rollers; Equip with scrapers to remove mate rial buildup from drum surface; and Construct so that the weight can be varied from 200 to 300 pounds per lineal inch of steel roller width.
c.Self-Propelled Smooth-Faced Steel Rollers
1.Two-Axle Tandem Smooth-Faced Steel Rollers Smooth faces on all steel rollers; Equip with water tanks and sprinkling devices to wet the rollers; Equip with scrapers to remove materi al buildup from dr um surface; and A weight of 8 to 12 tons.
2.Three-Axle Tandem Smoo th-Faced Steel Rollers Smooth faces on all steel rollers; Equip with water tanks and sprinkling devices to wet the rollers; Equip with scrapers to remove mate rial buildup from drum surface; and A minimum weight of 12 tons.
3.Three-Wheeled Smoo th-Faced Steel Rollers Smooth faces on all steel rollers; Equip with water tanks and sprinkling devices to wet the rollers; Equip with scrapers to remove mate rial buildup from drum surface; and A weight of 8 to 12 tons. 151.5 SELF-PROPELLED VIBRATORY ROLLERS Use vibratory rollers that can achieve the required de nsity. Operate the vibrator y roller at the frequency and amplitude necessary to achieve the desired compaction without causing objectionable undulations, fracturing of aggregates or surface defects. If pneumatic tires are used on the vibratory roller, equi p the roller with smooth tires. Provide vibratory rollers for use on earthwork and aggregate bases meeting the speed and frequency ranges (vibrations per minute) shown in TABLE 151-1 . Operate rollers at high amplitude, unless otherwise directed. Coordinate the roller speed and the vibrations per minute to achieve a minimum of 6 impacts per linear foot. TABLE 151-1: AGGREGA TE BASE AND EARTHWORK Impacts per Linear Foot Roller Speed MPH (ft./Min) Vibrations Per Minute 1000 1200 1400 1600 1800 2000 2200 2400 1.0(88) 11.4 13.6 15.9 18.2 20.5 22.7 25.0 27.3 1.5(132) 7.6 9.1 10.6 12.1 13.6 15.2 16.7 18.2 2.0(176) -- 6.8 8.0 9.1 10.2 11.4 12.5 13.6 2.5(220) -- -- 6.4 7.3 8.2 9.1 10.0 10.9 3.0(264) -- -- -- 6.1 6.8 7.6 8.3 9.1 3.5(308) -- -- -- -- -- 6.5 7.1 7.8 4.0(352) -- -- -- -- -- -- 6.3 6.8 4.5(396) -- -- -- -- -- -- -- 6.1 151 - COMPACTION EQUIPMENT 150-3 On hot mix asphalt pavement, operate the vibratory rollers at a speed and frequency range to provide a minimum of 10 impacts per linear foot, as shown in TABLE 151-2 . Provide amplitude adjustable rollers. Operate rollers at low amplitude, unless otherwise directed. Provide rollers with a minimum of 1800 vibrations per minute (VPM) and a static force on drums of 135 pounds per linear inch (PLI) of roller width. TABLE 151-2: HOT MIX ASPHALT PAVING Impacts per Linear Foot Roller Speed MPH (ft./Min) Vibrations Per Minute 1800 2000 2200 2400 2600 2800 3000 3200 3400 3600 3800 4000 1.0(88) 20.5 22.7 25.0 27.3 29.5 31.8 34.1 36.4 38.6 40.9 43.2 45.5 1.5(132) 13.6 15.2 16.7 18.2 19.7 21.2 22.7 24.2 25.8 27.3 28.8 30.3 2.0(176) 10.2 11.4 12.5 13.6 14.8 15.9 17.0 18.2 19.3 20.5 21.6 22.7 2.5(220) 8.2 9.1 10.0 10.9 11.8 12.7 13.6 14.5 15.5 16.4 17.3 18.2 3.0(264) 6.8 7.6 8.3 9.1 9.8 10.6 11.4 12.1 12.9 13.6 14.4 15.2 3.5(308) 5.8 6.5 7.1 7.8 8.4 9.1 9.7 10.4 11.0 11.7 12.3 13.0 4.0(352) 5.1 5.7 6.2 6.8 7.4 8.0 8.5 9.1 9.7 10.2 10.8 11.4 4.5(396) 4.5 5.1 5.6 6.1 6.6 7.1 7.6 8.1 8.6 9.1 9.6 10.1 5.0(440) 4.1 4.5 5.0 5.5 5.9 6.4 6.8 7.3 7.7 8.2 8.6 9.1 Operate rollers at a speed and fre quency range above the bold line. 151.6 MECHANICAL AND HAND TAMPERS Use mechanical or hand operated tampers of standard manufacture that can obtain the required compaction in small, irregular areas where the use of conventional equipment is impracticable.
Source: Kansas Standard Specifications for State Road and Bridge Construction, 2015 Edition. Pages 53–99 of 978.