Martin Marietta Materials, Inc. et al v. Kansas Department of Transportation et al

Filing 59

MEMORANDUM AND ORDER. The 22 Motion of defendants' for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is granted in part and denied in part; and the 31 Motion of plaintiffs' for leave to amend complaint pursuant to Fed. R. Civ. P. 15(a)(2) is granted in part and denied in part. Defendant KDOT is dismissed from all counts and leave to amend to include KDOT as a party defendant in any count is denied. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 5/21/2013. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6.) (bmw)

106 – CONTROL OF MATERIALS

The cost of iron used, steel used, 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; or
The Federal Highway Administration has waived specific products or processes according to 23 CFR
635.410, for the duration of that waiver.
(2) Companies providing iron or steel shall include a "Buy America" statement on test reports and material
certifications submitted to KDOT. The "Buy America" statement shall certify that the company issuing the test
report or material certification complies with all provisions of the Buy America Act.

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 sources of supply that KDOT provides 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 proposed 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 omissions affect the quality or source of supply. These
materials become the Contractor’s property 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.
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 the landowner. When using private property for borrow,
obtain all permits and clearances required 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 agreement with the landowner. Submit a reclamation
plan to the Engineer for the Engineer’s approval. After ceasing to use private 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 both the excavation of such materials 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 shall 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.

106.3 SAMPLING, TESTING, AND CITED SPECIFICATIONS
The Engineer, Inspector, or both may inspect, test, and approve or reject all materials before, during, and
after incorporation into the work.

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