107 - LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC 100 - 58
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 inconsistencies (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 operation 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 Railroad 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 RESPONSIBILITY TO THE PUBLIC 100 - 59
107.3 Patented Devices, Materials, and 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 are 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 Contractor 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 residents 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 Engineer 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, regulatory agencies, if any, in securing and marking stored explosives. 107 - LEGAL RELATIONS AND RESPONSIBILITY 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 Property, 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 historical or archaeological artifacts. 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 allow 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 located 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 into any water body by natural 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 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. 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 RESPONSIBILITY 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 insurance, 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 Insurance 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 General Liability Insurance coverage extends to claims made after Notice of Acceptance and before 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’ certificates of insurance or insurance policies. 107 - LEGAL RELATIONS AND RESPONSIBILITY 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 the 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 cancellation 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 RESPONSIBILITY 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 contract 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 indemnify 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 contaminated 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 unless the Engineer prohibits 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 RESPONSIBILITY 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 the 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 benefits 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.
Referenced in this section
Sections that cite this one
Legal Relations and Responsibility to The Public in other states
- Alaska 107 · LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC
- Alabama 107 · LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC
- Arizona 107 · LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC
- Colorado 107 · LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC
- Delaware 107 · LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC
- Idaho 107 · LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC
- Indiana 107 · LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC
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Source: Standard Specifications for State Road and Bridge Construction, 2015 Edition. Pages 71–77 of 978. View official source ↗