110Indemnification, Bonding, and Insurance

110.1 Indemnification The Contractor agrees to indemnify, def end, and hold

harmless the Department and its officers, directors, employees, agents, and consultants from and against all claims, actions, torts, costs, losses, and damages for bodily injury (including sickness, disease, or death) and property damage arising out of or relating to this Contract or the performance of Work by the Contractor, its Subcontractors, subconsultants, engineers, suppliers, any individuals or entities directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, excepting only claims directly and solely caused by the negligence of the Department. Damages covered include, but are not limited to, all Dispute resolution costs, including court costs, attorney’s fees, and the fees of engineers and consultants, arbitrators, and other professionals related to Dispute defense and preparation. This indemnification obligation shall not be limited in any wa y by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Contractor or any Subcontractor, subconsultant, engineer, supplier, or other individual or entity under Workers’ Compensation acts, disability benefit acts, or other employee benefit acts.

110.2 Bonding

110.2.1 Bonds The Contractor shall provide signed, valid, and enforceable

Performance and Payment Bonds complying with the Contract. The Department may also require Warranty and Maintenance Bonds for specific items using a Contract specific special provision. For a related provision, see Section 103.5 - Award Conditions. The Contractor shall procure bonds from a company organized an d operating in the United States, licensed or approved to do business in the State of Maine by the State of Maine Department of Professional and Financial Regulation, Bureau of Insurance, and listed on the latest Federal Department of the Treasury listing for “Companies Holding Certificates 1-119 of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies.” The bonds shall each be in the full Contract amount, payable t o the “Treasurer - State of Maine,” and on the Department’s forms, on exact copies thereof, or on forms that do not contain any significant variations from the Department’s forms as solely determined by the Department. By issuing a bond, the Surety agrees to be bound by all terms of the Contract, including those related to payment, time of performance, quality, warranties, and the Department’s self-help remedy provided in Section 112.1 - Default to the same extent as if all terms of the Contract are contained in the bond(s). Regarding claims related to any obligations covered by these b onds, the Surety shall provide, within 60 Days of Receipt of written notice thereof, full payment of the entire claim or written notice of all bases upon which it is denying or contesting payment. Failure of the Surety to provide such notice within the 60-Day period constitutes the Surety’s waiver of any right to deny or contest payment and the Surety’s acknowledgment that the claim is valid and undisputed. If the Surety becomes financially insolvent, ceases to be lice nsed or approved to do business in the State of Maine, or stops operating in the United States, the Contractor shall file new bonds complying with this Section within 10 Days of the date the Contractor is notified or becomes aware of such change. For a related provision, see Section 106.9.4 - Other Warranty Provisions.

110.2.2 Bond for Use of Municipal Roads A bond for use of mun icipal Roads may

be required as provided in Section 105.5 - Hauling of Materials and Equipment.

110.2.3 Bonding for Landscape Maintenance Period The Contract or shall provide a

signed, valid, and enforceable Landscape Warranty Bond when specified in Special Provision 621. The Landscape Warranty Bond shall be presented to the Resident at the time of Physical Work Complete. Payment for the Landscape Warranty Bond shall be incidental to the Landscape Items. The bond shall be in the full amount for all Pay Items for work pursuant to Section 621 - Landscape, payable to the “Treasurer - State of Maine,” and on the Department’s forms, on exact copies thereof, or on forms that do not contain any significant variations from the Department’s forms as solely determined by the Department. The Contractor shall pay all premiums and take all other actio ns necessary to keep said bond in effect for the duration of the Landscape Establishment Period described in Special Provision 621.0036 - Maintenance Period. If the Surety becomes financially insolvent, ceases to be licensed or approved to do business in the State of Maine, or stops operating in the United States, the Contractor shall file new bonds complying with this Section within 10 Days of the date the Contractor is notified or becomes aware of such change. 1-120 All Bonds shall be procured from a company organized and opera ting in the United States, licensed or approved to do business in the State of Maine by the State of Maine Department of Business Regulation, Bureau of Insurance, and listed on the latest Federal Department of the Treasury listing for “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies.” By issuing a bond, the Surety agrees to be bound by all terms of the Contract, including those related to payment, time for performance, quality, warranties, and the Department’s self-help remedy provided in Section 112.1 - Default to the same extent as if all terms of the Contract are contained in the bond(s). Regarding claims related to any obligations covered by the bon d, the Surety shall provide, within 60 Days of Receipt of written notice thereof, full payment of the entire claim or written notice of all bases upon which it is denying or contesting payment. Failure of the Surety to provide such notice within the 60-Day period constitutes the Surety’s waiver of any right to deny or contest payment and the Surety’s acknowledgment that the claim is valid and undisputed.

110.3 Insurance The Contractor shall provide signed, valid, and enforceable

certificate(s) of insurance complying with this Section. All insurance must be procured from insurance companies licensed or approved to do business in the State of Maine by the State of Maine, Department of Business Regulation, Bureau of Insurance. The Contractor shall pay all premiums and take all other actions necessary to keep required insurances in effect for the duration of the Contract obligations, excluding warranty obligations.

110.3.1 Workers' Compensation For all operations performed by the Contractor and

any Subcontractor, the Contractor and each Subcontractor shall carry Workers’ Compensation Insurance or shall qualify as a self-insurer with the State of Maine Workers’ Compensation Board in accordance with the requirements of the laws of the State of Maine. If maritime exposures exist, coverage shall include United States Long Shore and Harbor Workers coverage.

110.3.2 Commercial General Liability With respect to all oper ations performed by

the Contractor and any Subcontractors, the Contractor and any Subcontractors shall carry commercial general liability insurance in an amount not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate. The coverage must include products, completed operations, and Contractual liability coverages, and Insurance Services Office (ISO) form #CG25031185 or equivalent. The Contractual liability insurance shall cover the Contractor’s obligations to indemnify the Department as provided in this Contract, including Section 110.1 - Indemnification. The coverage shall also include protection against damage claims due to use of explosives, collapse, and underground coverage if the Work involves such exposures. 1-121 When the work to be performed entails the use of barges, tug boats, work boats, supply boats, or other watercraft, Protection and Indemnity coverage for such work shall be provided at the limits called for under Commercial General Liability insurance.

110.3.3 Automobile Liability The Contractor shall carry Autom obile Liability

Insurance covering the operation of all motor vehicles, including any that are rented, leased, borrowed, or otherwise used in connection with the Project. The minimum limit of liability under this Section shall be $1,000,000.00 per occurrence.

110.3.4 Professional Liability Contractors and Subcontractor( s) who engage in

design Work, preliminary engineering Work, and environmental consulting Work for the Department shall maintain a Professional Liability policy for errors and omissions that provides a minimum liability of $1,000,000 per claim and annual aggregate. “Design Work” includes the design of temporary Structures and all other Work that requires design computations. This policy shall cover “Wrongful Acts,” meaning negligent acts, errors, or omissions by the Contractor, or any entity for whom the Contractor is legally liable, arising out of the performance of, or failure to perform, professional services. The Department reserves the right to adjust liability coverage on a project-by project basis as it deems appropriate.

110.3.5 Owners and Contractors Protective Liability If requir ed by Special

Provision, the Contractor shall carry an Owners and Contractors Protective (OCP) Policy covering all operations performed by the Contractor and any Subcontractor in an amount not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, naming the Department as the sole insured party under the policy.

110.3.6 Builders Risk Unless required by Special Provision, t he Department does

not require the Contractor to carry Builders Risk Insurance. However, the Contractor is advised of its risks for damage to the Work as provided in Section 104.3.10 - Responsibility for Damage to the Work. The Contractor is responsible for managing and insuring these risks as it deems appropriate.

110.3.7 Pollution Liability If required by Special Provision, the Contractor shall

carry Pollution Liability insurance to cover the risk of sudden or accidental discharge of pollutants during the prosecution of the Work. The limits of liability for this coverage shall be in the amount of $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate. Regardless of whether such insurance is carried by the Contractor, the Contractor is responsible for managing these risks as it deems appropriate.

110.3.8 Railroad Protective Liability When working adjacent t o a railroad, the

Contractor and Subcontractors shall carry Railroad Protective Liability Insurance as required by the Railroad.

110.3.9 Administrative & General Provisions

1-122 A. Additional Insured Each insurance policy, with the excepti on of Workers’ Compensation and Professional Liability insurance, shall list the Department of Transportation as an additional insured. B. Defense of Claims Each insurance policy shall include a pr ovision requiring the carrier to investigate, defend, indemnify, and hold harmless all named insureds against any and all claims for death, bodily injury, or property damage, even if groundless. The Contractor’s insurer shall name the Department as a released party (“Releasee”) on any release or settlement agreement for settled claims. C. Primary Insurance The insurance coverage provided by the C ontractor shall be primary insurance with respect to the State, its officers, agents, and employees. Any insurance or self-insurance maintained by the State for its officers, agents, and employees is in excess of the Agent’s insurance and shall not contribute with it. D. Reporting Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the State, its officers, agents, and employees. E. Separate Application The insurance provided by the Contrac tor shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. Nothing in this document constitutes a waiver of any defense, immunity or limitation of liability that may be available to the Department or its officers, agents, or employees under the Maine Tort Claims Act (14 M.R.S.A. § 8101, et seq.), and shall not constitute a waiver of other privileges or immunities that may be available to the Department.