107Legal Relations and Responsibility to the Public

107.10 Environmental Protection. The contractor shall comply with all federal, state and local laws and

regulations controlling pollution of the environment. Pollution of streams, lakes, ponds and reservoirs with fuels, oils, bitumens, chemicals or other harmful material and pollution of the atmosphere from particulate and gaseous matter shall be avoided.

107.10.1 Fording of streams and fill for temporary work not specified on design plans will not be permitted

unless the plan for such operation is authorized by the Corps of Engineers, meets the approval of the engineer, complies with the current MoDOT Pollution Plan and results in minimum siltation to the stream. Temporary stream crossings shall not be constructed unless specifically designated as a condition of the Corps of Engineers Section 404 permit or a permit is obtained, and the temporary stream crossing is in accordance with Sec 806.

107.10.2 When work areas or pits are located in or adjacent to streams, the areas shall be separated from the

main stream by a dike or barrier to keep sediment from entering the stream. Care shall be taken during the construction and removal of such barriers to minimize siltation of the stream.

107.10.3 Disposal of Portland cement concrete residue and wash water, water from aggregate washing, or other

operations producing sediment laden runoff shall be treated in accordance with Sec 806.

107.10.4 Oil distributors or tanker trucks used for the transport or application of any petroleum-based products,

and that have a capacity greater than 1,320 gallons, shall not be left unattended on MoDOT right of way within the project limits during non-construction hours unless secondary containment is deployed as per the Spill Prevention Control and Countermeasure rule. Parking of these vehicles on MoDOT right of way outside of the project limits, or on any MoDOT owned property, shall not be allowed without the aforementioned secondary containment and prior authorization from the engineer.

107.11 Responsibility for Claims for Damage or Injury. The contractor and insurance company shall

indemnify and save harmless the State, the Commission, the Commission’s agents, employees and assigns from all claims or suits made or brought for bodily injury, death or property damage, arising from performance of the work to the extent of:

107.11.1 The contractor will not be required to defend, indemnify or hold harmless any other person, including

the State, the Commission, or the Commission’s agents, employees or assigns for any acts, omissions or negligence of other persons.

107.11.2 Neither the Commission nor the contractor, by execution of a contract, shall intend to or create a new

or enlarge an existing cause of action in any third party. This provision shall not be interpreted to create any new liability that does not exist under the law, or to waive or extinguish any defense that either party to this contract or their respective agents and employees may have to an action or suit by a third party.

107.12 Contractor's Responsibility for Work. From the earlier of the date of commencement of the work or

the effective date of the notice to proceed, and until any work is accepted by the engineer, the work shall be in the custody and under the charge and care of the contractor. Issuance of a payment estimate on any part of the work done will not be considered as final acceptance of any work completed up to that time.

107.12.1 Damages to any portion of the work before the work is completed and accepted, caused by the action

of the elements or from any other reason, shall be repaired or replaced at the contractor's expense. The contractor, at the contractor’s option, may insure against any such damages. The Commission may, in its discretion, make such a payment, determined in accordance with Sec 109.4, for damage to the work due to unforeseeable causes beyond the control of, and without fault or negligence on the part of the contractor, unless the contractor has been reimbursed for such damages by the contractor’s insurer. Prior to reimbursement, the contractor shall furnish documentary evidence of all efforts to recover such repair costs.

107.12.2 The contractor shall immediately give written notice to the engineer of any pedestrian, worker and/or

vehicular accident. The contractor may be directed by the engineer to repair permanent Commission facilities that have been damaged by events that are beyond the control of the contractor. Reimbursement will be provided by the Commission, determined in accordance with Sec 109.4, for the actual direct cost of labor, equipment and material, exclusive of overhead, indirect or consequential costs of profit. The Commission may elect to make such repairs in lieu of the contractor.

107.13 General Insurance Requirements. The Contractor shall procure and maintain at the Contractor’s

expense until Final Acceptance of the project by the engineer, insurance for all damages and losses imposed by law and assumed under the contract, of the kinds and in the amounts specified in Secs 107.13.1 through

107.13 8.

107.13.1 Sovereign Immunity Limits for Missouri Public Entities. The Contractor shall procure and maintain

at least minimum insurance coverages to meet meet the sovereign immunity limits for Missouri public entities as calculated by the Missouri Department of Insurance and published annually in the Missouri Register pursuant to Section 537.610, RSMo for Sec 107.13.2 through 107.13.5, unless specified otherwise for each type of insurance coverage. Each policy shall provide additional insured status for the Missouri Highways and Transportation Commission (Commission), the Missouri Department of Transportation (MoDOT) and its employees up to Missouri’s sovereign immunity limits.

107.13.2 Commercial General Liability Insurance. The Contractor shall procure, and maintain during the

term of the project, commercial general liability insurance with coverage at least as broad as Insurance Services Office (ISO) policy form CG 00 01. The general aggregate limit shall, by endorsement or otherwise, provide a designated aggregate limit solely for this project using ISO form CG 25 03 05 09 or an equivalent form. General liability policies shall be endorsed to add the Commission, MoDOT, and its employees as additional insureds (the “Additional Insureds”) using Insurance Services Office forms CG 20 10 or the equivalent under such policy. For construction contracts, an endorsement providing completed operations coverage to the Additional Insureds, ISO form CG 20 37 or the equivalent, is also required. This form, CG 20 37, shall be endorsed on each subsequent commercial general liability policy issued to the Contractor for three (3) years after final acceptance of the project. The contractor could provide extended completed operations for specific project needs. Discontinued operations coverage shall be provided for three (3yrs) when applicable. Coverage shall not be reduced by insured versus insured exclusions or by explosion, collapse and underground (XCU) exclusions.

107.13.3 Commercial Automobile Liability Insurance. The Contractor shall procure and maintain automobile

liability coverage at least as broad as ISO policy form CA 00 01 covering owned, hired, and non-owned autos. The policy shall include as insureds anyone liable for the conduct of an insured as described by policy provision or by endorsement added to the policy.

107.13.3 4 Contractor’s Pollution Liability (CPL) Insurance. The Contractor shall procure and maintain

contractor’s pollution liability insurance for liability arising out of sudden, accidental, and gradual pollution and remediation. The policy shall have minimum limits of $1,000,000. The Commission, MoDOT, and its employees shall be endorsed as additional insureds under such policy. The policy shall provide coverage for hauling of waste from the project site to the final disposal location including non-owned disposal sites. Completed operations coverage for pollution liability shall extend a minimum of three (3) years after final acceptance of the project. The policy shall specifically provide a duty to defend on the part of the insurer. Contractor shall require any subcontractor that performs environmental remediation, hazardous material removal or related work including the transportation, disposal, or environmental engineering work, to provide contractor’s pollution liability insurance with limits and scope of coverage appropriate to the exposure. The Commission, MoDOT, and its employees shall be endorsed as additional insured under such policy. The policy shall not contain a cross suits exclusion or other provisions that would eliminate additional insured claims against the subcontractor.

107.13.5 Aircraft Liability Insurance. If aircraft, including unmanned aircraft, will be used on the project,

Contractor shall provide, or cause to be provided, aircraft liability insurance protecting against claims for damages resulting from such use in all cases where any aircraft that is owned, leased or chartered by any Contractor-Related Entity used on the Project. The policy shall have minimum limits of $1,000,000 and the Commission, MoDOT and its employees shall be additional insureds on the policy by endorsement or policy provision. The use of any aircraft in performance of the Work, the aircraft crew, flight path and altitude, including landing of any aircraft on the Site or on any property owned by the Commission, MoDOT or other parties at interest, shall be subject to review and written acceptance by the Commission prior to any such usage. If any aircraft are leased or chartered with crew and/or pilot, evidence of non-owned aircraft liability insurance will be acceptable to meet these requirements but must be provided prior to use of the aircraft. For use of unmanned aircraft vehicles, the contractor may provide insurance either through an aircraft liability insurance policy, or by endorsement to the Contractor’s commercial general liability insurance policy and excess liability policies. Use of unmanned aircraft must comply with all state and federal rules and regulations, including FAA requirements.

107.13.6 Excess or Umbrella Liability Insurance. The Contractor may satisfy the required limits for Secs

107.13.2 through 107.13.5 by use of excess or umbrella liability insurance policies in any combination that

meets the contract limits requirements. Such policies shall include as insureds, the Missouri Highways and Transportation Commission (Commission), the Missouri Department of Transportation (MoDOT) and its employees.

107.13.7 Workers' Compensation Insurance. The Contractor shall provide evidence to the engineer that the

Contractor has obtained workers' compensation insurance and employers liability insurance as required by the state or is exempt and provides proper documentation to the engineer. Coverage shall include all statutory workers’ compensation benefits to Contractor employees who may sustain work-related injury, death or disease. If applicable, commensurate with the requirements of the U.S. Longshore and Harbor Workers’ Compensation Act (USL&H) and the Jones Act, with a minimum limit of $2,000,000 per occurrence and in the aggregate, or as may be specified by law, for each.

107.13.8 Railroad Protective Liability Insurance. In addition to other forms of required insurance, the

Contractor shall provide railroad protective liability insurance when any of the Contractor’s work is to be performed within any railroad right of way and in some cases may be required when the project improvements are near a railroad right of way. The name or names of the railroad companies known to be in the vicinity of the contract improvements will be specified in each contract, but the Contractor shall confirm the railroad companies impacted and the final insurance needed with each railroad. The minimum limits of the insurance indicated by each railroad to the Commission will be included in the contract bid documents for informational purposes, but the Contractor shall be bound by each individual railroad company requirements. Each railroad agency has final determination in the content and coverage limits of the policies required. No work will be permitted within any railroad’s right of way until the railroad involved has reviewed and approved the insurance policy. Any day upon which the Contractor cannot perform work due to such a policy not being approved by the railroad will not be counted as a contract day under Sec 108.7.

107.13.9 Evidence of Insurance. Required evidence of insurance providing confirmation of compliance with

these requirements shall consist of a certificate of insurance, an endorsement to any workers compensation policy waiving the subrogation by the insurer, and any endorsements adding the Commission, MoDOT and its employees as additional insureds where specified. “Blanket” or “automatic” additional insured endorsements providing additional insured coverage “where required by contract,” may be used, provided that such forms provide coverage at least as broad as provided by the specified endorsement forms required. The contractor and any subcontract work shall not commence under the contract until the contractor obtains the applicable insurance coverage required and receives approval for such insurance from the engineer. All evidence of insurance for the prime contractor, including certificates of insurance and required endorsements, and notices shall be submitted electronically by the insurance agent to ContractorSupport@MoDOT.mo.gov. The Contractor shall promptly furnish the engineer with a complete copy of its policy upon request. Failure to furnish evidence of proper insurance, or complete insurance policies when requested, may result in the suspension of work as provided in Sec 108, and may result in other claims or actions for breach of contract or otherwise, as may be recognized at law or in equity.

107.13.9 1 Work Performed by Subcontract. Prior to its commencement of the applicable work, the contractor

shall cause each of its subcontractors to provide insurance that complies with the requirements for contractor- provided insurance. Contractor’s determination of such insurance shall not be interpreted as relieving Contractor or its insurer of any liability otherwise imposed on Contractor or its insurers under these Contract Documents. The Contractor shall promptly furnish the engineer with a complete copy of its subcontractor policies upon request. Failure to furnish evidence of proper insurance, or complete insurance policies when requested, may result in the suspension of work as provided in Sec 108, and may result in other claims or actions for breach of contract or otherwise, as may be recognized at law or in equity.

107.13.10 Other Conditions and Requirements.

107.13.10 1 Acceptability of Insurance Companies. All insurers must be authorized to transact business under

the laws of the State of Missouri and hold an AM Best rating of no less than A-: VI.

107.13.10 2 Waiver of Right of Recovery. All insurance coverage maintained or procured pursuant to this

agreement shall be endorsed to waive subrogation against the Commission, MoDOT and its employees or shall specifically allow the Contractor, or others providing insurance evidence in compliance with these specifications, to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the Commission, MoDOT and its employees.

107.13.10 3 Enforcement of Contract Provisions (non estoppel). Contractor acknowledges and agrees that

any actual or alleged failure on the part of the Commission, MoDOT or its employees to inform Contractor of non-compliance with any requirement imposes no additional obligations on the Commission, MoDOT or its employees, nor does it waive any rights hereunder.

107.13.10 4 Primary and Non-contributory. For any claims related to this contract, the Contractor’s insurance

coverage shall be primary insurance with respects to the Commission, MoDOT and its employees as the additional insureds. Any other insurance or self-insurance maintained by any of these parties shall be excess of the Contractor’s insurance and shall not contribute with the Contractor’s insurance.

107.13.10 5 Specifications not Limiting. Requirements of specific coverage features, or limits contained in this

Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.

107.13.10 6 Notice of Cancellation and Change in Insurance Carrier. Contractor agrees to oblige its

insurance agent or broker, and insurers by endorsement to the policy, to provide to the engineer with thirty (30) days advance notice of cancellation, except for nonpayment for which ten (10) days’ notice is required, or nonrenewal of coverage for each required coverage. If any policy is canceled or the insurance carrier is planned to change before the contract work is complete, a satisfactory replacement policy shall be obtained and in force, with notice and evidence of insurance submitted to the engineer, prior to the effective date of cancellation of the former policy.

107.13.10 7 Self-insured Contractors and Self-insured Retentions. A self- insured contractor will not be

considered to comply with these specifications unless approved by the engineer prior to beginning work. A contractor with insurance policies arranged with self-insured retentions must be declared to and approved by the engineer prior to beginning work. The Commission reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible or other policy type.

107.13.10 8 Timely Notice of Claims. Contractor shall give the engineer prompt and timely notice of claims

made or suits instituted that arise out of or result from Contractor’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. The Commission and MoDOT will provide timely notice to the contractor of any claims or lawsuits that it receives. If the Commission demands that the contractor defend the suit and/or indemnify the Commission, the contractor or its insurance company shall acknowledge that demand within 20 days of receiving it and the contractor shall respond within a total of 45 days of the claim receipt the intent of the contractor to defend.

107.13.10 9 Exhaustion of Policy Limits. It shall be the contractor’s responsibility to notify the engineer

promptly when any provided insurance limits are not able to be maintained during the contract period or provide verification that additional coverage or excess coverage is also available.

107.14 Cooperation in Defense. The indemnified party shall cooperate with the indemnifying party in the

defense of a third-party claim subject to the foregoing, (1) the indemnified party shall not have any obligation to participate in the defense of or to defend any third-party claim, and (2) the indemnified party’s defense of or its participation in the defense of any third-party claim shall not in any way diminish or lessen its right to indemnification as provided in this section.

107.15 Third Party Liability. Neither the State of Missouri, including the Commission, nor the contractor, by

execution of the contract including these specifications, intend to create a right of action in a third-party beneficiary, except as specifically set out in these specifications and the contract. It is not intended by any required contractual liability in the contract or in these specifications that any third-party beneficiary has a cause of action arising out of the condition of the project when completed in accordance with the plans and accepted by the Commission.

107.16 Personal Liability of Public Officials. There shall be no personal liability upon the Chief Engineer, or

any member, employee or agent of the Commission in carrying out any of the provisions of the contract or in exercising any power or authority granted to the individual, it being understood that in such matters the individual acts as an agent and representative of the State, with official and public duty doctrine immunity. If any provision of the contract appears to impose a duty on such an individual, the duty will remain exclusively that of the Commission and will not be a personal duty or obligation of the individual.

107.17 Contractors That Are Not Resident In Missouri. Any contractor that is not a permanent resident of or

domiciled in Missouri shall provide to the Commission proof of compliance with the Missouri "nonresident employers" financial assurance laws at Sections 285.230 to 285.234, RSMo, before the contractor performs any work on a project.

107.17.1 A nonresident contractor that is a "transient employer" as that term is defined in Section 285.230.1,

RSMo, and 12 CSR 10-2.017(1)(A), shall file with the Commission a photocopy of the contractor’s current transient employer's certificate of registration issued by the Missouri Department of Revenue before performing any work on a project. A nonresident contractor that is not classified by the Missouri Department of Revenue as a "transient employer" because the nonresident contractor has properly registered with the Missouri Department of Revenue and the Missouri Division of Employment Security, and has filed and paid Missouri state income taxes for more than 24 consecutive months, shall file with the Commission a photocopy of the contractor’s certificate of registration, issued by the Missouri Department of Revenue, that it is not a "transient employer" before performing any work on a project.

107.17.2 The contractor shall require a nonresident subcontractor to file with the Commission a photocopy of

the subcontractor’s current transient employer's or alternate certificate of registration, as issued by the Missouri Department of Revenue, before that subcontractor performs any work on a project.

107.17.3 Any nonresident contractor or subcontractor that fails to file the financial assurance forms with the

Missouri Department of Revenue as required by Missouri law will be prohibited from contracting for or performing labor on any project for a period of one year.

107.18 Basis of Payment. No direct payment will be made for compliance with Sec 107, except as provided by

Sec 618.

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