SECTION 107 LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC
107.01 LAWS TO BE OBSERVED. In all operations connected with the work, the
Department will require strict compliance with all state, federal, and local ordinances, regulations, laws, and bylaws controlling or limiting in any way the actions of those engaged on the work, in such manner to save the Commonwealth, its agents, and employees harmless.
107.01.01 Safety, Health, and Sanitation. Comply with all applicable state,
federal, and local laws governing safety, hea lth, and sanitation. Provide all safeguards, safety devices, and protective equipment and take all other actions that are reasonably necessary to protect the life and health of all employees and personnel on the project, provide for the safety of the public, and protect all property affected by the performance of the work covered by the Contract, and as the Engineer directs. As provided in KRS Chapter 338 in the Kentucky Occupational Safety and Health Act and in subsequent regulations and standards promulgated by the Kentucky Occupational Safety and Health Standards Board, do not require any personnel employed in performance of the Contract, including employees of subcontractors, to work in surroundings or under working conditions that are unsanitary, hazardous, or dangerous to the employee’s health and safety. Ensure that all workers exposed to co nstruction equipment or highway traffic wear high visibility safety apparel that conforms to and is labeled as meeting Performance Class 2 or 3 of the ANSI/ISEA 107-2004 publication . Additionally, for nighttime work, the Department will require flaggers to wear ANSI Performance Class 3 apparel. Provide fall protection according to 29 CFR Part 1926 as adopted by Kentucky Administrative Regulations. Include but do not limit to the following protection: safety nets, safety belts, lifelines, lanyards, life ve sts, hand rails, temporary bridge flooring, or equivalent protection. For work over a navigable stream, unless working exclusively on a bridge deck, provide a manned power boat. Position the boat under personnel for rescue whenever work is in progress.
107.01.02 Motor Vehicle Laws. Obey all Motor Vehicle Laws on all state, federal,
and county roads and city streets, including roads and streets used as detours and roads and streets under construction beyond the limits of the proposed improvement specified in the Contract. Obey the specific provisions of such laws within the limits of construction when stated in the Contract for that particular type of construction.
107.01.03 Water Pollution. Conform to the Department’s requirements for abating
and minimizing water pollution as specified in Section 213.
107.01.04 Air Pollution. Perform construction activities in a manner that prevents
air pollution from occurring as the result of burning (where allowed), drilling, blasting, production of materials, hauling, or any othe r necessary construction operations of any kind. Conform to the applicable provisions of KRS Chapter 224 and regulations issued by the responsible state and federal agencies, and conform to regulations established by local governmental agencies pursuant to KRS Chapter 77. Apply water or other approved materials when, where, and as directed or approved by the Engineer in order to effectively prevent and control dust from becoming an air pollutant, safety hazard, or other type nuisance during the construction of a project. For failure to perform this item of work satisfactorily, the Department will defer the processing of any pay estimates due the Contractor for the project, until the work is in compliance. When dust results entirely from the performance of the work, include all costs for 107-1 providing dust control in the pay items for the work being performed. When dust is caused either partially or entirely by the traveling public, the Department will pay for the water at the Contract unit price per 1,000 gallons. The Contractor may use materials other than water to prevent and control dust caused partially or entirely by the traveling public, provided the Engineer approves the use of such materials and the Contractor furnishes and applies the materials at no expense to the Department. When the Contract designates blast cleaning concrete and steel surfaces, perform the blast cleaning as specified in the Contract. Choose a method allowed by the Contract that conforms to the air and water pollution regulations applicable to the county or city where the site of work is located and to the applicable safety and health regulations. Discontinue any method that does not consistently provide satisfactory work and conform to the above requirements, and replace it with an acceptable method. While blast cleaning, confine all debris of every type, including dirty water, resulting from the blast cleaning operation. Immediately and thoroughly clean debris from the blast–cleaned surfaces and all other areas where any escaped debris may have accumulated. Perform all drilling, grinding, and sawing of rock, shale, concrete, and other similar dust-producing materials with equipment provided with water sprays, fabric-filtered collection systems, or other suitable devices to prevent excessive dust from becoming airborne. Perform all burning according to Regulation 401 KAR 63:005.
107.01.05 Highways Through National Forests and National Parks. When the
construction of all or a portion of a project is through a National Forest, National Park, or other type of governmentally controlled property, perform the work according to the Clearing and Fire Plans stated herein, as applicable. The Contract will indicate the portion of a project that is within a National Forest, National Park, or other governmentally controlled property. The Contractor is responsible for determining the extent to which this subsection is applicable to a specific project.
107.02 RIGHT-OF-WAY AND UTILITIES. The Department will make every effort
to provide all necessary right-of-way and to clear all utility facilities on each project, but when the right of entry is lawfully withdraw n or invalidated, or when because of some other unforeseen reason either the right-of-way or the right of entry is obstructed resulting in delays, the Engineer may extend the Contract because of these delays, according to Subsection 108.07.
107.03 LABOR REQUIREMENTS. Comply with all state and federal labor laws and
with the wage requirements specified in the Contract. The Department will set forth these requirements in the Contract. Do not discriminate against any worker because of race, creed, color, sex, sexual orientation, national origin, age, or handicap.
107.04 PERMITS, LICENSES, TAXES. Procure all permits, licenses, inspections,
and memberships, pay all charges, fees, and taxes, and give all notices necessary and incidental to the due and lawful prosecution of the work. When any portion of the project is located in an Enterprise Zone as defined in KRS 154, Subchapter 45, the Department 107-3 will not seek an exemption from sales and use tax provided for in KRS Chapter 139. Accordingly, the Department will not execute any certificates of exemption for the purchase of building materials or any other tangible personal property to be incorporated into the project.
107.05 PATENTED DEVICES, MATERIALS, AND PROCESSES. When using
any design, device, material, or process covere d by letters of patent or copyright, provide for such use by suitable legal agreement with the patentee or owner. The Contractor and the Surety shall indemnify and save harmless the Commonwealth, any affected third party, or political subdivision from any and all claims for infringement by reason of the use of any such patented design, device, material, or process, or any trademark or copyright, and shall indemnify the Commonwealth for any costs, expenses, and damages which it may be obliged to pay by reason of an infringement, at any time during the prosecution or after the completion of the work. The use of such desi gns, devices, materi als, or processes on Federal aid projects must also be in compliance with FHWA’s proprietary item policy.
107.06 RESTORATION OF SURFACES OPENED BY PERMIT. Do not allow any
openings to be made in any surface or pavement except with the written permission of the Department. If the Department grants an encroachment permit to any person or corporation resulting in the need for an opening in the surface or pavement, perform necessary repair work at the opening as the Engineer directs and at the expense of the party to whom the permit was granted.
107.07 FEDERAL AID PARTICIPATION. When the Federal Government
participates in the cost of the work covered by the Contract, proceed with the work under the supervision of the Commonwealth, but subject to the inspection and approval of the proper officials of the Federal Government and according to the applicable federal statutes, rules and regulations. The Federal Government’s inspection will not make the Federal Government a party to this Contract and will not interfere with the rights of either party under this Contract.
107.08 PUBLIC CONVENIENCE AND SAFETY. Store materials and conduct work
to cause the minimum necessary obstruction to the traveling public. For roads under construction that are used by the traveling public, maintain the roadbed, subgrade, or newly laid surface in a condition that the public can travel over in comfort and safety. Whenever the alignment of the new roadway and the grade line specified in the Plans or as established by the Engineer require any excavation or the construction of an embankment on any part of the existing traveled road, perform the work through completion with continuous, successive operations as quickly as practical, and maintain the completed work in a smooth and acceptable condition. Maintain open, passable sections where the old road and the new road coincide with as little inconvenience to the traveling public as possible. Do not close any sections of the road without first obtaining the Engineer’s written permission. The Contractor is responsible for accidents that may have been caused by poor design, improper signing, poor maintenance or other deficiencies associated with temporary crossings.
107.09 RAILWAY-HIGHWAY PROVISIONS. When the Plans require hauling
materials across the tracks of any railway, the Department will arrange with the railway company for permission for the Contractor to cross the railway right-of-way and tracks, provided that the Contractor executes a lice nse agreement satisfactory to the railway company and agrees to reimburse the railway company for all costs associated with providing and removing temporary grade crossings, and for all costs of other work or items the railway company deems necessary for protection of its property and operations. When the Contractor desires railway crossing s for his convenience, the Contractor shall make his own arrangements for the use of such crossings. 107-4 Perform all work on the railway right-of-way at times and in a manner to not unnecessarily interfere with the movement of trains or traffic upon the track of the railway company, and according to all other requirements of the Contract. Take all precautions to avoid accidents, damage, delays or interference with the railway company’s trains or other property. When work includes construction, maintenance, or demolition of a railroad bridge, conform to the personnel safety rules for bridge workers. These rules are consistent with existing OSHA regulations, but the FRA will be the enforcement agency. The rules are published in the June 24, 1992 Federal Register.
107.10 Construction Over Or Adjacent To Navigable Waters.
Conduct all work over, on, or adjacent to navigable waters in a manner that does not interfere with the free navigation of the waterway and does not impair the existing navigable depths except as allowed by permit issued by either the US Coast Guard or the US Army Corps of Engineers.
107.11 USE OF EXPLOSIVES. Comply with Federal, State, and local regulations on
the purchase, transportation, storage, and use of explosive material. Furnish copies or other proof of all applicable permits and licenses to the Engineer. Regulations include but are not limited to the following:
107.12 Protection and Restoration of Property.
107.12.01 General. Do not enter upon private property for any purpose without
obtaining permission from the property owner. The Contractor is responsible for preservi ng all public and private property and shall use every precaution necessary to prevent such damage or injury. Exercise the necessary precautions to prevent damage to pipes, conduits, and other underground structures. Carefully protect from disturbance or damage all land monuments and property marks until the Engineer has witnessed or otherwise re ferenced their location, and do not remove them until directed. 107-6 The Contractor is responsible for all damage or injury to property resulting from any act, omission, neglect, or misconduct in the C ontractor’s manner or method of executing the work, or due to the Contractor’s non-execution of the work, or due to defective work or materials. When or where any direct or indirect dama ge or injury occurs to public or private property by or on account of any act, omission, neglect, or misconduct in the Contractor’s execution, or lack of execution of the work, the Contractor shall restore, at no expense to the Department, such property to a condition similar or equal to that existing before such damage or injury was done. If the Contractor fails to restore such property or repair such damage or injury within a reasonable time, then the Department may, upon 48 hours notice, proceed to repair, rebuild, or otherwise restore such property, and the Department will deduct the cost thereof from any monies due or that may become due to the Contractor under the Contract.
107.12.02 Preservation of Mailboxes. The Contractor is responsible for preserving
mailboxes within the right-of-way and easements for the project. Remove and relocate mailboxes as necessary during construction of the project, and reinstall at their permanent location as soon as is practical. During construction of the project, provide access to mailboxes for US Postal Service vehicles at all times. Install mailboxes at both their temporary and final locations according to the requirements of the Department and the US Postal Service. When a new post is necessary for the final installation, furnish a 4-inch by 4-inch by 7-foot treated wood post, conforming to Section 820. Install other types of posts conforming to the requirements of the Department and the US Postal Service when the post is furnished by the owner of the mailbox. Except for surfacing materials, perform all work necessary to preserve, remove, relocate, and reinstall mailboxes, and maintain access for US Postal Service vehicles, at no expense to the Department.
107.13 RESPONSIBILITY FOR DAMAGE CLAIMS. The Contractor shall
indemnify and save harmless the Commonwealth, the Department, and all its officers, agents, and employees from all suits, actions, or claims of any character brought on account of any of the following:
107.14 CONTRACTOR’S RESPONSIBILITY FOR WORK. Until the Department
makes final written acceptance of the work, protect against injury or damage to any part of the work by the action of the elements, or from any other cause, whether arising from the execution, or from the non-execution, of the work. Rebuild, repair, and restore any portion of the work damaged by any of the a bove causes. The Contractor shall bear the expense of such repairs except for damages to the work due to unforeseeable causes beyond the control of and without fault or negligence of the Contractor, including but not restricted to acts of God or of the public enemy, acts of the Government, slides that the Engineer finds to have been unavoidable, and ordinary wear and tear on any section of the 107-7 road that the Engineer orders opened to traffic. The Department may issue written encroachment permits to make openings in, along, or across the road, but in such cases the individuals or organizations obtaining the permit shall perform the work.
107.15 Contractor’S Responsibili Ty for Utility Property and
SERVICES. At points where the work is adjacent to the properties of utility companies or others to which damage from performing the work might result in considerable expense, loss, or inconvenience, do not start the work without first making all arrangements necessary to protect the adjacent property. Cooperate with the owners of any underground or overhead utility lines while they remove or relocate such utilities so that their operations progress in a reasonable manner with minimal duplication, and so that the services rendered by those parties is not unnecessarily interrupted. Use all possible care in excavating on the project to avoid damaging existing utilities, whether the utilities are or are not specified in the Plans. Elevations and locations of existing utilities specified in the Plans are approximate only. As specified in Subsection 107.12, the Contractor is responsible for pr otecting and restoring existing utility property specified in the Plans. In the event that water and utility services are interrupted as a result of accidental breakage, or as a result of being expose d or unsupported, promptly notify the proper authority and cooperate with that authority to restore services. When water service is interrupted, perform the repair work continuously until the service is restored. Do not perform work around fire hydrants until the local fire authority approves the plan for restoring service. Prior to any excavation activities, comply with the requirements for Excavators in the Underground Facility Damage Prevention Act of 1994 which is contained in KRS 367 Sections 1 through 10.
107.16 PERSONAL LIABILITY OF PUBLIC OFFICIALS. In carrying out any of
the provisions of the Contract, or in exercising any power or authority granted to them by or within the scope of the Contract, the Commissioner, Engineer, or their authorized representatives have no liability, either personally or as officials of the Commonwealth; in all such matters they act solely as agents and representatives of the Commonwealth.
107.17 NO WAIVER OF LEGAL RIGHTS. The Department is not precluded or
estopped, by any measurement, estimate, or certificate made either before or after the completion and acceptance of the work and payment for the work, from showing the true quantity and character of the Contractor’s work and materials furnished by the Contractor, or from showing that any such measurement, estimate, or certificate is untrue or incorrectly made, or that the Contractor’s work or materials that the Contractor furnishes do not conform to the Contract. The Department is not precluded or estopped, notwithstanding any such measurement, estimate, or certificate and pa yment according thereto, from recovering from the Contractor and his surety such damages as it may sustain by reason of the Contractor’s failure to comply with the terms of the Contract. Neither the Department’s acceptance, or the acceptance of any representatives of the Department, nor any payment for or acceptance of the whole or any part of the work, nor any extension of time, nor any Department possession of the work operate as a waiver of any portion of the Contract or of any power herein reserved, or any right to damages herein provided. A waiver of any breach of the Contract does not operate as a waiver of any other or subsequent breach. The Contractor, without prejudice to the terms of the Contract, is liable to the Department for latent defects, fraud or such gross mistakes as may amount to fraud, and the Department’s rights under any warranty or guaranty.
107.18 INSURANCE REQUIREMENTS. Procure and maintain during the life of the
Contract the following insurance in addition to the insurance required by law. Provide proof of coverage on the most current ACORD Form 25 Certificate of Liability Insurance. 107-8 The Certificate of Liability Insurance shall contain one of the following statements: a) “policy contains no deductible clauses” or b) “policy contains _________ (amount) deductible property damage clause but company will pay claim and collect the deductible from the insured.” All such policies of insurance, except Worker’s Compensation, shall name the Cabinet as an additional insured and shall be occurrence policies and the Certificate of Insurance provided to the Cabinet shall so specify. The policies must provide coverage for all damages arising out of injury to persons or property which allegedly occurred during the life of the contract regardless of when the claim is filed subject to statues of limitations. When Railroad Protective Liability insurance is required, the original policy shall be submitted to the railroad company with a copy transmitted to the Department. In addition, certificates of insurance shall be prov ided to the railroad, on forms satisfactory to the railroad, covering the Contractor’s Commercial general Liability and Business Automobile Liability insurance. Proof of renewal shall be furnished 15 days or more and advance of the policy expiration. If subject to cancellation, the insurance company, shall provide at least 30 days prior notice, and the insurer shall immediately notify the Department in writing of such impending cancellation. In the event of cancellation or expiration, all work on the contract shall be suspended except that necessary for traffic maintenance and the protection of life and property. No extension in the contract completion time or additional payment will be allowed on account of this requirement and contract time charges will continue. All subcontractors must meet the same minimum insurance requirements.
103.06.01 Commercial General Liability.
General Aggregate –$2,000,000 Minimum Products/Completed Aggregate –$2,000,000 Minimum Personal & Advertising – $1,000,000 Minimum Each Occurrence - $1,000,000 Minimum
103.06.02 Business Automobile Liability. The policy shall cover all owned,
non-owned and hired vehicles. The combined single limit of liability per accident is a minimum of $1,000,000.
103.06.03 Workers’ Compensation Insurance and Employer’s Liability Insurance. The Contractor shall give evidence for Worker’s Compensation
Insurance and Employer’s Liability Insurance, with a 30-day notice of cancelation. The Department will verify Workers’ Compensation Insurance coverage with the Kentucky Department of Labor prior to issuing a Notice to Proceed. The limits of employee liability insurance under this section shall be as follows: Each Accident Bodily Injury - $100,000 Minimum Policy Limit/Bodily Injury by Disease - $500,000 Minimum Each Employee/Bodily Injury by Disease - $100,000 Minimum 107-9