SECTION 108 PROSECUTION AND PROGRESS
108.01 Subcontracting of Contract.
Do not subcontract, sell, transfer, assign, or otherwise dispose of the Contract or any portion of the Contract or Contracts, or of th e right, title, or interest therein, without the Engineer’s written consent. If the Contract or chooses to subcontract any portion of the Contract, a written request to sublet work must be submitted on the Subcontract Request (TC 63-35) form for the Engineer’s approval. When directed by the Engineer, submit a certified copy of the actual subcontract agreement executed between the parties. The Engineer will allow the Contractor to s ubcontract a portion, but the Contractor must perform with his own organization work amounting to no less than 30 percent of the total Contract cost. The Engineer will not allow any subcontractor to exceed the percentage to be performed by the Contractor and will require the Contractor to maintain a supervisory role over the entire project. Do not allow any subcontractor to further subcontract any portion of the work without obtaining written consent from the Engineer. When the Engineer gives such consent, the first tier subcontractor may further subcontract a portion of his work not to exceed 50 percent of the work originally subcontracted to him by the Contractor. Do not allow any second tier subcontractor to subcontract any portion of the work. Extra work performed by subcontractors in accordance with Section 109 will not be utilized in the computation of total dollar amount subcontracted. Subcontract percentages are based upon the original contract amount. Payment to subcontractors for satisfactory performance of their work or materials supplied must be made within 7 calendar days from receipt of payment from the Engineer. Upon request by the Engineer, provide proof that payment has been made to the subcontractor within the 7 calendar days. Progress payments may be withheld for failure to comply with this request. The Engineer’s written consent to subcontract, assign, or otherwise dispose of any portion of the Contract does not, under any circumstances, relieve the Contractor or the surety of their respective liabilities and obligations under the Contract. The Engineer will make transactions only with the Contractor. The Engineer will recognize subcontractors only in the similar capacity of employees or worker s of the Contractor who are subject to the same requirements as to character and competence as specified in Subsection 108.06. Lease agreements are acceptable on Department projects. No additional paperwork is needed when equipment is rented from a commercial rental company unless the leased equipment comes with an operator. In these circumstances, payroll records for the operator of the leased equipment must be maintained and submitted by the contractor in accordance with Department policy. Lease agreements between contractors that involve equipment only will require the submittal of a TC 63-71 Department Equipment Rental Form. If a Contractor is found to be in violation of these requirements, the Engineer reserves the right to withhold payment for the work which was performed in violation of these requirements. This provision does not include the lease or use of equipment from a corporation or company wholly owned by the Contractor. The Contractor shall not use equipment in the performance of the Contract to which title is not held by the Contractor or an approved subcontractor without a submitted lease agreement. If a public official has provided a documented Declaration of Emergency, then the Engineer may verbally waive the requirement of submitting a TC 63-71 Department Equipment Rental Form until the situation has ended. After the emergency situation ends, immediately remove the equipment from the project or submit a completed TC 63-71 Department Equipment Rental Form to the Engineer. 108-1
108.02 Progress Schedule.
Specification 108.02 applies to all Cabinet projects except the following project types: • Right of Way Mowing and/or Litter Removal • Waterborne Paint Striping • Projects that contain Special Provision 82 • Projects that contain the Special Note for CPM Scheduling The scheduling documents are considered the Contractor’s plan of action. The Contractor may change their plan of action as needed. However, the Contractor must inform the Cabinet of deviations from the schedule, giving the Cabinet a 24-hour notice prior to working on items deviating from the schedule. The 24-hour notice can be reduced if approved by the Engineer. The Contractor should attempt to follow their schedule if possible and any deviations must be reflected in the next schedule update. Working without the submittal of a Written Narrative is violation of this specification and additionally voids the Contractor’s right to delay claims. If the Engineer deems a Preconstruction Conference necessary, submit a written narrative as described below at least two working days prior to the Preconstruction Conference. During the Preconstruction Conferen ce, the Contractor shall make a verbal presentation of their progress schedule detailing their proposed progression of work, including the items discussed in the written narrative. If the Engineer does not deem a Preconstruction Conference necessary, the Contractor will submit a Written Narrative to the Engineer at least two working days prior to the start of work. Any submission of scheduling documents must be in triplicate and be accompanied by a signed statement of approval by the Contractor’s project superintendent/manager. The written narrative submitted prior to work or the Preconstruction Conference, is assumed to be the Contractor’s as-bid plan and may need to be revised as these conditions allow. These initial project schedule documents should reflect the Contractor’s schedule as the project was bid. Any questions that the Contractor may have that would lead to changes in this schedule should be discusse d at the Preconstruction Conference and the initial schedule can be adjusted based on those discussions. The Department will review the schedule in general for the purpose of managing its employees and resources, and for conformance to the specifications, and flow of logic. The Department accepts no liability for determining the Contractor’s ability to meet their schedule as it is Contractor’s sole responsibility to provide an accurate and feasible schedule. All schedule risk rests with the Contractor. When the Written Narrative is not received for review two working days prior to the preconstruction conference, or if they are not in conformance with the specifications, the preconstruction conference will be postponed until two working days after submission of an acceptable Written Narrative. When at the Preconstruction Conference, or anytime during the project, the Engineer determines that the project warrants the submittal of an Activity Bar Chart, the Contractor will have 30-days to submit the baseline progress schedule documents consisting of a Written Narrative and Activity Bar Chart. These documents should describe the schedule in Level 1 detail for the upcoming 45 days and at least Level 2 detail for the remainder of the project (the Levels of Detail are described in part D of this section). These baseline documents should be updated monthly, or as agreed upon by the Contractor and Engineer, to reflect project progress. The submittal of bar chart or Critical Path Method schedule does not relieve the Contractor’s requirement to submit a Written Narrative schedule. When there is no Preconstruction Conference, or when the Engineer determines that a Written Narrative alone will suffice for the progress scheduling documents, updates will occur through bi-weekly progress schedule meetings between the Contractor and Engineer. The format and frequency of these meetings may be adjusted only when mutually agreed upon by the Engineer and Contractor. 108-2 When baseline scheduling or update scheduling documents are not submitted within their time limitations, or when any of the provisions within this section of the project specifications are not satisfied, the progress pa y estimates will be held until the scheduling documents are presented or the outstanding provisions are satisfied. When the provisions of this section have not been satisfied such that two consecutive progress payments have been held, the Department will continue to withhold progress payments and will charge the Contractor a daily penalty equal to one half the project’s liquidated damages rate starting from the date the scheduling documents were due and continuing until the provisions of this section are met. Any costs associated with these scheduling requirements and updates are incidental to the project.
A.Written Narrative. Submit the Written Narrative Schedule using form TC 63- 50 available at the Division of Construction’s website (http://www.transportation.ky.gov/cons truction/ResCenter/ResCenter.htm ). The initial written narrative shall include, but may not be limited to the following:
1.Provide a description that includes how the Contractor will sequence and stage the work, how the Contractor plans to maintain and control traffic being specific and detailed, and what equipment and crew sizes are planned to execute the work.
2.Provide a list of project milestones including, if applicable, winter shut- downs, holidays, or special events. The Contractor shall describe how these milestones and other dates effect the prosecution of the work. Also, include start date and completion date milestones for the contract, each project if the contract entails multiple projects, each phase of work, site of work, or segment of work as divided in the project plans, proposal, or as subdivided by the Contractor.
3.Provide a list of Owner responsibilities and associated timelines, including any submittals, shop drawings, or any other items that are to be reviewed by the Department.
4.Discuss any known problems that the Contractor foresees including any utilities or railway related issues.
B.Activity Bar Chart. The initial activity bar chart shall include, but is not limited to the following:
1.Display the calendar time-line on the x-axis where the minor time divisions will be no greater than one day.
2.Display as-bid start dates and activity durations of items including but not limited to the activities. The project items, material fabrications, document approvals, or other time-sensitive items that will occur within the first 45 calendar days of the project must be listed in Level 1 detail.
C.Updates.
1.All scheduling documentation should be updated to show progress from a date not more than one week prior to the submission date. The updated schedule documents should describe the upcoming 45 days of activities in Level 1 detail and the remainder of the project in at least Level 2 detail, as described below in Section D.
2.The updated completion date based on current progress should be evident. In the event the progress schedule shows the project to be completed past the contract’s completion date, the narrative shall address how the Contractor plans to prosecute the work to get the project back to within the contract time allowed. Any float, or any time remaining between the last item of work and the contract completion date, will not be held against the 108-3 Contractor. The Cabinet will not reduce the contract time because of float without just compensation to the Contractor.
3.When it is necessary to provide a project schedule update, the updated narrative must contain, but may not be limited to the following items: Provide updates on the items of work to include any delays or gains to the previously submitted scheduled items such as rain events, unforeseen utility delays, discrepancies in geologic data, agreements or change orders approved by the Cabinet, or other issues that affect the items of the previous submittal. List any changes to the maintenance of traffic as previously submitted and explain why the change will need to be made. Discuss any other issues that the Contractor foresees that may affect the schedule that were not listed in the previous submittal.
4.The updated bar chart shall include, but is not limited to the following. Update the start dates and activity durations of items on the previously submitted bar chart. The project items, material fabrications, document approvals, or other time-sensitive items that will occur within the next 45 calendar days of the update submission must be listed in Level 1 detail.
D.Levels of Detail.
1.Level 1. This level of detail presents a logically flowing schedule of the daily activities required to complete the project. The maximum activity length should be 10-days unless approved by the Engineer. Locations and/or stations numbers should be used to further describe activities.
2.Level 2. This level of detail presen ts the logical progression of activities required to complete the controlling items of work, in the time limits allotted in the contract documents, to the satisfaction of the engineer.
108.03 PRECONSTRUCTION CONFERENCE. After Contract award, the Engineer
may schedule a Preconstruction Conference. If the project type requires a final inspection by Central Office, Division of Construction, the Engineer will consult the Division of Construction prior to waiving the right to request a Preconstruction Conference. The purpose of the Preconstruction Conference is to bring the Contractor and Department together as a team for the project in question. Communication lines should be established and open discussions of project issues should be held. At the close of this conference, the contractual parties of the project should have a similar understanding of the project schedule, project issues, party responsibiliti es, and project goals. The discussions and agreements occurring at this conference should be audio recorded as well as kept in written format. The Engineer will keep this documentation in the project file. The written or audio documentation of this conference will be provided to the Contractor, and to other parties in attendance upon request in a timely manner. The Preconstruction Conference is comprised of 3 separate meetings that may be held concurrently or at separate times and places. These meetings include a Preconstruction Meeting, a Right-of-Way and Utilities Mee ting, and an EEO and DBE/WBE Meeting. The Right-of-Way and Utilities Meeting and the EEO and DBE/WBE Meeting are specialty meetings and are self-explanatory. The Preconstruction Meeting should involve discussions of, but not be limited to, the following:
1.Project information
2.Project Plans & Proposal
3.Designating key personnel of all parties (names of the project superintendent, the safety officer, the project and company EEO officers, Project Traffic 108-4 Coordinator, and the names and telephone numbers of persons responsible for traffic control 24 hours per day, 7 days a week)
4.Materials, suppliers, equipment (owned /rented), subcontractors, and personnel resources
5.DBE/WBE Work (the Contractor should present a letter from each DBE/WBE subcontractor designating the superintendent and stating that this individual is not affiliated with the prime contractor)
6.Contract time and Project Progress Schedule (specifically, key dates, local events, project milestones, Department responsible activities, work day/hour restrictions, maintenance of traffic, and work methods)
7.Permits
8.Staking (designated by a Professional Engineer or Land Surveyor licensed in the Commonwealth of Kentucky.
9.Environmental issues (designating inspector and presenting BMP, seeding, and spill prevention plans)
10.Blasting
11.Waste/Borrow Sites and hauling limitations
12.Public and worker safety plans
13.Traffic Control Plans (traffic signing diagrams should be presented)
14.Requirements for future meetings (the Contractor should hold Prepave, Prepour, and any other preliminary meeting the Engineer requests) It is critical that the Preconstruction Meeting involve the Contractor’s presentation of their proposed work plan to the Department staff in attendance. If the Contractor does not provide the required submissions, the Engine er may order the preconstruction conference suspended until such time as the Contractor furnishes them. Do not begin work until the preconstruction conference has been conclude d. The Engineer will not allow additional compensation or an extension of Contract time as a result from any delays due to such as suspension.
108.04 PROSECUTION OF THE WORK. Do not begin the work until receiving the
Commissioner’s official Notice to Begin Work. After receiving notice, begin work within the following schedule:
1.when the Contract stipulates Contract time in working days, begin work within 30 calendar days of the date specified in the Notice to Begin Work, and prosecute the work efficiently and continuously with adequate force and equipment to completion within the number of days allowed;
2.when the Contract stipulates Contract time in calendar days, begin work after receipt of the Notice to Begin Work, and prosecute the work efficiently and continuously with adequate force and equipment to completion within the number of days allowed; and
3.when the Contract specifies a fixed completion date, begin work after receipt of the Notice to Begin Work at such time as will enable completion of the work by the specified completion date. When awarded multiple projects, schedule the work to meet the completion requirements of all projects. Neither excessive workload nor coordinating multiple projects will be consideration for time extensions. Once work on a project has started, progress the work actively to completion.
108.05 LIMITATIONS OF OPERATIONS. Limit operations so that there is not an
unnecessarily large section of the roadway under construction at any time causing undue inconvenience to the traveling public. In the prosecution of the work, start operations at such points as the Engineer may direct. When operations have temperature or seasonal limitations, schedule the work to comply with any specification, manufacturer, or supplier requirements. When ordered by the Commissioner, open any or all sections to travel, whether the whole length of road is completed or not. 108-5
108.06 Character of Workers, Methods, and Equipment.
A.General. Employ, at all times, sufficient labor and equipment for prosecuting the work to full completion in the manner and time required by the Contract. Employ workers that have sufficient skill and experience to properly perform the work assigned to them. Employ workers engaged in special work or skilled work that have sufficient experience in such work and in the operation of the equipment required to perform all work properly and satisfactorily. If the Engineer judges that any person employed by the Contractor does not perform the work in a proper and skillful manner or is intemperate or disorderly, at the written request of the Engineer, the Contractor shall remove such person from the project and shall not employ such person again in any portion of the work without the approval of the Engineer. Should the Contractor fail to remove such person or persons as directed, or fail to furnish suitable and sufficient personnel for the proper prosecution of the work, the Engineer may suspend the work by written notice until the Contractor complies with such orders. Use only equipment of sufficient size and in such mechanical condition as to conform to the requirements of the work and to produce a satisfactory quality of work. Use equipment that does not harm the roadway, adjacent property, or other highways. When a weight or weight range is specified for compaction equipment, use equipment that has a plate or sign attached showing its weight, or minimum and maximum weights when applicable. In lieu of the plate or signs, the Contractor may weigh the equipment on scales certified by the Division of Weights and Measures before using the equipment on each project. When the methods and equipment that are used to accomplish the construction are not prescribed in the Contract, use any methods or equipment that will, to the satisfaction of the Engineer, accomplish the Contract work in a manner conforming to the Contract.
B.Alternate Methods and Equipment. When the Contract specifies certain methods and equipment, use such methods and equipment unless the Engineer authorizes others. Request approval from the Engineer to use a method or type of equipment other than those specified in the Contract. Make the request in writing and include a full description of the methods and equipment proposed and an explanation of the reasons for desiring to make the change. If the Engineer’s approval is granted, the Contractor is fully responsible for producing construction work according to the Contract. If, after trial use of the substituted methods or equipment, the Engineer determines that the work produced does not conform to the Contract, discontinue the use of the substitute method or equipment and complete the remaining construction with the specified methods and equipment. Remove the deficient work and replace it with work of specified quality, or take such other corrective action as the Engineer may direct, at no expense to the Department. The Engineer will not change the basis of payment or the Contract time for the construction items involved as a result of authorizing a change in methods or equipment.
108.07 Determination and Extension of Contract Time.
108.07.01 General. When the Engineer suspends or delays the performance of
work, in writing, for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the Contractor believes that additional compensation or Contract time is due because of the suspension or delay, the Contractor shall submit to the Engineer, in writing, a request for an adjustment within 7 calendar days of receipt of the notice to resume work. Include the reasons and support for the adjustment in the request. If the Engineer agrees that the cost or time required for the performance of the Contract has increased because of the susp ension and the cause of the suspension was 108-6 beyond the control of and not the fault of the Contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the Engineer will make an adjustment (excluding profit) and modify the Contract in writing, accordingly. The Engineer will notify the Contractor whether or not conditions warrant an adjustment. The Department will not allow any Contract adjustment if:
1.the Contractor does not provide the required written notice, or
2.the performance would have been suspended or delayed by any other cause, or
3.an adjustment is provided for or excluded under any other term or condition of the Contract.
108.07.02 Working Days. When the Contract time is specified in working days the
Engineer will charge all working days that occur, beginning with the 31 st calendar day following the date of the Notice to Begin Work, to the Contract even when the Contractor is not performing work, except that during December, January, February, and March, the Engineer will not charge working days to the Contract regardless of whether or not the Contractor is performing work. During the months when the Engineer is charging working days, the Engineer will furnish the Contractor biweekly statements showing the number of days charged for the period, the total number of days charged to the Contract through that date, and the number of days remaining for completion of the Contract. The Contractor acknowledges acceptance of, and agreement with, all bi-weekly statements unless the Contractor submits a written protest containing supporting evidence for a change within 14 calendar days of receiving the bi-weekly statement. The Department bases the specified Contract time on the original quantities of work as defined in Subsection 102.05. The Engineer will not shorten the Contract time when the final Contract cost is less than the original Contract cost because of net decreases in the quantities or the elimination of items. When the final Contract cost is greater than the original Contract cost because of net increases in the original quantities or the addition of items, the Engineer will grant an extension of the Contract time. The Engineer will determine the number of additional working days due for the additional work by dividing the value of the additional work by the value of the original Contract work and multiplying this ratio by the number of original Contract working days. When, however, the Engineer determines that the additional work is of such character, or occurs so near the time of completion of the project, that the Contractor requires more time to complete the additional work than is indicated by the working day/Contract amount ratio, the Engineer may extend the Contract time by as much as the anticipated number of working days necessary to complete the additional work. In these instances, the Engineer will establish the number of allowable working days at the time the Contractor agrees to perform the additional work. The Contract may require that, before the C ontractor orders or uses specific materials or products, the Contractor submit to the Department shop drawings, manufacturer’s brochures or specifications, material certifications or mill test reports, and other similar requirements describing each of the specific materials or products identified. When any such requirements are applicable, the Department considers obtaining, preparing, or producing that which is required, gaining the necessary review or approval by the Department, and obtaining delivery to the project of these materials or products as an essential part of the Contract. When the Engin eer deems that the Contract item or job-site operation associated with these requirements is the controlling item or operation, the Engineer will charge working days without re gard to conditions on the project site, until the Contractor delivers sufficient materials or products, or other conditions arise, which causes a job-site operation to become the controlling operation. When the Contract specifies that the Contractor wait for a period of time after embankment construction to achieve anticipated settlement, the Engineer will not consider the embankment where settlement is anticipate d as the controlling item during the waiting period. If the Engineer determines that the controlling item or operation is delayed by the settlement period, the Engineer will not char ge working days until the specified waiting 108-7 period and settlement is complete. The Engineer will charge working days when work can begin or resume on the controlling item or operation.
108.07.03 Calendar Days. When contract time is specified in calendar days, the
Engineer will charge every calendar day, beginning with the calendar day following the date of the Notice to Begin Work, including all Saturdays, Sundays, holidays, and non-working days, to the Contract. The Engineer bases the Contract time on the original quantities of work as defined in Subsection 102.05. The Engineer will not shorten the Contract time when the final Contract cost is less than the original Contract cost because of net decreases in the quantities or the elimination of items. When the final Contract cost is greater than the original Contract cost beca use of net increases in the original quantities or the addition of items, the Engineer will grant an extension of the Contract time. The Engineer will determine the number of additional calendar days due for the additional work by dividing the value of the additional work by the value of the original Contract work and multiply this ratio by the number of original Contract calendar days. When, however, the Engineer determines that the additional work is of such character, or occurs so near the time of completion of the project, that the Contractor requires more time to complete the additional work than is indicated by the calendar day/Contract amount ratio, the Engineer may extend the Contract time by as much as the anticipated number of calendar days necessary to complete the additional work. In these instances, the Engineer will establish the number of allowable calendar days at the time the Contractor agrees to perform the additional work. The Engineer will not allow any extension of time for weather or resulting conditions, except for delays caused by earthquakes, tornadoes, or other similar catastrophic forces.
108.07.04 Fixed Completion Date. When contract time is specified as a fixed
completion date, complete all work on the project by that date regardless of the length of time between the Notice to Begin Work and the specified completion date. The Engineer bases the Contract time on the original quantities of work as defined in Subsection 102.05. The Engineer will not shorten the Contract time when the final Contract cost is less than the original Cont ract cost because of net decreases in the quantities or the elimination of items. When the final Contract cost is greater than the original Contract cost because of net increases in the original quantities or the addition of items, the Engineer will grant an extension of the Contract time. The Engineer will determine the length of the extension of time, in calendar days, due for the additional work by dividing the value of this additional work by the value of the original Contract work and multiply this ratio by the number of calendar days from Notice to Begin work to the original fixed completion date. When the Engineer determines that the additional work is of such character, or occurs so near the time of completion of the project, that the Contractor requires more time to complete the additional work than is indicated by the Contract time/Contract amount ratio, the Engineer may extend the Contract time by as much as the anticipated number of calendar days necessary to complete the additional work. In these instances, the Engineer will establish the number of allowable calendar days at the time the Contractor agr ees to perform the additional work. When the period between the execution of the Contract and the issuance of the Notice to Begin Work exceeds 30 calendar days, as provided in Subsection 103.06, the Department may extend the fixed completion date by the number of calendar days the Notice to Begin Work was withheld in excess of the 30 calendar days. The Engineer will not allow any extension of time for weather or resulting conditions, except for delays caused by earthquakes, tornadoes, or other similar catastrophic forces.
108.08 SUSPENSION OF WORK. The Engineer may order the Contractor in writing
to suspend, delay or interrupt all or part of the work for such period of time as the Engineer may determine to be appropriate for the convenience of the Commonwealth. If the Engineer suspends or delays the performance of all or any portion of the work for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the Contractor believes that additional compensation or 108-8 Contract time is due as a result of such suspension or delay, the Contractor shall submit to the Engineer, in writing, a request for adjustment within seven calendar days of receipt of the notice to resume work. The request shall set forth the reasons and support for such adjustment. Upon receipt, the Engineer will evaluate the Contractor’s request. If the Engineer agrees that the cost and/or time requested for the performance of the Contract has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the Contractor, subcontractors at any tier, its suppliers, or weather, the Engineer will make an adjustment (excluding profit) and modify the Contract in writing accordingly. The Engineer will notify the Contractor whether or not the adjustment is warranted. The Engineer will not allow any Contract adjustment unless the Contractor has submitted the request for adjustment within the prescribed time. The Engineer will not allow a Contract adjustme nt under this clause to the extent that the performance would have been suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this Contract.
108.09 FAILURE TO COMPLETE ON TIME. For each calendar day that the
Contractor fails to complete the work after the final Contract time allowed according to Subsection 108.07 for the completion of the Contract, the Department will deduct the applicable daily charge specified in this subsection from any money due the Contractor; not as a penalty, but as agreed liquidated damages. The Department will deduct daily charges as agreed liquidated damages for each calendar day without regard to inclement weather or the temperature limitations in the Contract, except that the Department will not deduct liquidated damages when the specified seasonal or temperature limitations prohibit the Contractor from performing work on the controlling item or operation. The Department will charge the agreed liquidated damages on a calendar day basis regardless of whether the Contract time is measured in calendar days, working days, or is established as a specified completion date contract. Because the prosecution of work in connection with the construction of road and bridge projects will inconvenience the public, obstruct traffic, and interfere with business, complete the work as quickly as practical. Also, the Department’s costs for the administration of the Contract, including inspection, engineering, supervision, and maintaining detours, increases with the time that the Contractor takes to execute the work. When the Department allows the Contractor to continue and to finish the project beyond the Contract time, such permission does not operate as a waiver by the Department of any of its rights under the Contract. The Engineer may require the Contractor to perform work to fulfill the requirements of Subsections 212.03.03 D), 212.03.03 F), 713. 03.05, and 714.03.06 after the Contract time has elapsed and after the Engineer has declared the project otherwise complete. The Department will not assess liquidated damages for this work provided that the Contractor completes the work within the following periods:
1.complete topdressing work specified in Subsection 212.03.03 D) within 60 calendar days after the Engineer’s direction to begin this work; and
2.complete corrective work to fulfill the seeding acceptance requirements of Subsection
212.03.03 G) within 30 days after the Enginee r’s direction to correct the seeding, or
at a later date that the Engineer directs at the time of inspection.
3.complete corrective work to fulfill the striping acceptance requirements of Subsection
713.03.05 and 714.03.06 within 30 days after th e Engineer’s direction to correct the
striping, or at a later date that the Engineer directs at the time of inspection. When the Contractor has not completed this work within the time period allowed above as applicable, the Department will assess liquidated damages at 25 percent of the original Contract daily charge from the expiration of the time allowed above until the Contractor completes the specified work, except that the Department will not deduct 108-9 liquidated damages when the specified seasonal or temperature limitations prohibit the Contractor from performing work on the controlling item or operation.. The Department will apply the following schedule of agreed liquidated damages: Original Contract Amount Daily Charge (From) (To and including) 0.00 100,000.00 250.00 100,000.01 500,000.00 750.00 500,000.01 1,000,000.00 1,650.00 1,000,000.01 5,000,000.00 2,400.00 5,000,000.01 10,000,000.00 3,250.00 10,000,000.01 20,000,000.00 4,000.00 20,000,000.01 or more 4,750.00
108.10 DEFAULT AND TERMINATION OF CONTRACT. The Commissioner,
after giving due notice to the Contractor and his Surety, has the authority to take the prosecution of the work out of the hands of the Contractor or Surety, or both, for any breach of the Contract that the Contractor commits, as follows:
1.failure to begin the work under the Contract within the time specified
2.failure to prosecute the work with sufficient forces, equipment, or materials to complete the work within the time specified
3.failure to perform the work satisfactorily
4.discontinuing the work before completion without the Engineer’s permission
5.neglecting or refusing to remove such materials or to perform anew such work that the Engineer rejects as defective or unsuitable
6.bankruptcy or insolvency, or committing any acts of bankruptcy or insolvency
7.allowing any final judgment against him to remain unsatisfied for a period of 10 calendar days
8.making an assignment for the benefit of his creditors
9.for any other reason, failing to carry on the work according to the Contract The Commissioner will give the Contractor and his Surety written notice specifying the delay, neglect, or default and the action required. When the Contractor or his Surety, within a period of 10 calendar days after such notice, fails to proceed satisfactorily in compliance therewith, the Commissioner then has full power and authority to take the work out of the hands of the Contractor or Surety, or both; to use any or all suitable materials and equipment on the project; or to enter into Contract, or use such other methods as required to complete the work. Any contractor employed by the Surety to perform work on the project shall comply with the prequalification requirements of Subsection 102.01. When the Commissioner takes over the incomplete work under any of the provisions of this section, the Department will deduct all additional costs and damages, and the costs and charges of completing the same from monies due or to become due the Contractor; and when the total of such damages, costs, and charges exceeds the balance of the Contract price that would be payable to the Contractor had he completed the work, then the Contractor and Surety shall, on demand, pay to the Department the amount of such excess.
108.11 Emergency Deferment Or Termination of Contract.
When a national emergency exists, by reason of war conditions involving the US; by reason of orders of the US Government or its duly authorized agencies; or by Executive Order with respect to the prosecution of war or to national defense; and such emergency, upon a finding by the Department, creates a shortage of materials, labor, or equipment that prevents the Contractor from proceeding with his contract, the Department and the 108-10 Contractor may defer such construction in whole or in part, or the Department may terminate such contract, or any part thereof.
108.11.01 Deferment. In all cases where the Department defers construction, the
Department and the Contractor will execute a written agreement stating the terms and conditions of such deferment.
108.11.02 Termination. When the Department terminates the Contract or any
portion of the Contract, and the Contractor is released before completing all items of work included in the Contract, the Department will pay for the actual items of work completed. The Department will pay on the basis of agreed prices for the following:
1.Items that have no unit prices included in the Contract.
2.Contracts that the Department has decr eased in excess of 25 percent and the Contract unit prices are not sufficient to equitably reimburse the Contractor for overhead.
3.Major items where the Department has decreased the total cost of the major item in excess of 25 percent. A major item is defined in Subsection 101.03. The Department will not pay for any claim for anticipated profits. The Department may, at the Engineer’s option, purchase unused materials that the Contractor has obtained and that the Department has inspected, tested, and accepted, at such points of delivery as the Department designates and at a cost shown by receipted bills or other proper evidence.
108.12 TERMINATION OF CONTRACT IN THE PUBLIC INTEREST. When
unexpected state, federal , or local conditions of extraordinary significance occur which are beyond the control of both the Contractor and the Department, causing the Department to determine that termination of a contract will be in the public interest, the Department will terminate all or selected portions of the work in the Contract that remain incomplete. The Engineer will then determine equitable payment procedures to adequately compensate the Contractor for this unusual and unexpected termination of the Contract. The Department will compensate the Contractor for a terminated contract in an amount not exceeding the original total Contract amount, unless the Engineer approved change orders for increases prior to the occurrence of the unexpected conditions or the Engineer makes subsequent field measurements of authorized excavation and other such variable items that verify that the Contractor completed quantities in excess of the Contract quantities.
108.13 TERMINATION OF CONTRA CTOR’S RESPONSIBILITY. T h e
Department will consider the Contract complete when the Contractor has completed all work, the Commissioner has accepted the project, and the Contractor has complied with all obligations relative to the Contract and the bonds, except as provided in Subsection 107.17. 108-11
Source: Kentucky Standard Specifications for Road and Bridge Construction, 2019 Edition. Pages 58–68 of 718.