Section 125.3 Performance Bonds and Deposits

TITLE 17. DEPARTMENT OF TRANSPORTATION

CHAPTER IV. HIGHWAYS

Section 125.3 Performance bonds and deposits.

(repealed)

PART 127. INSURANCE

(repealed in its entirety and replaced with the new Part 127)

Part 127. FINANCIAL SECURITY REQUIREMENTS

Section127.1 Financialsecurity requirements, generally.

As a condition to the issuance of any permits to perform work or other operations upon state right-of-way pursuant to Parts 125, 126, 129, 131 and 134 of this Title, permittees are required to furnish proof of financial responsibility sufficient to protect the People of the State of New York and/or the Commissioner of Transportation and all employees of the State Department of Transportation from the following costs, expenses and liabilities:

(1)Any claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of any claim, including but not limited to claims for personal injuries, property damage or wrongful death and/or environmental claims, in any way associated with the permittees, activities or operations.

(2)The reasonable costs necessary to restore state property damaged by permittees work/activities to substantially the same or equivalent condition as existed before such work was undertaken as determined by the Commissioner or his/her designee.

(3)The reasonable costs associated with the review, modification and approval of permit applications, plans, and designs, as well as the inspection of on-going and/or completed work as may be deemed appropriate by the Commissioner or his/her designee.

(4)The payment of all contractors and material suppliers engaged by permittee to make improvements within the bounds of the state right-of-way and to secure the release of any liens asserted in connection therewith.

Section 127.2 Indemnification requirement.

New York State Department of Transportation shall not be liable for any damage or injury to the permittee, his or her agents, employees, or to any other person, or to any property, occurring on the site or in any way associated with permittee’s activities or operations for which a license or permit from the Department is required; whether such activities or operations are undertaken by permittee’s own forces or by contractors or other agents working on permittee’s behalf. As a condition of any permit issued under Parts 125, 126, 129, 131 and 134 of this Title, permittees shall agreethat to the fullest extent permitted by law, the permittee shall defend, indemnify and hold harmless the People of the State of New York and/or the Commissioner of Transportation and all employees of the State Department of Transportation, and their agents, from and against all claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of any claim, including but not limited to claims for personal injuries, property damage or wrongful death and/or environmental claims, that are in any way associated with the permitted work/operations.

Section127.3 General liabilityinsurance requirements.

Liability insurance is required, not only for the protection of the State of New York, but also as a means of assuring the accountability of permittees to the traveling public. The type and limits of liability insurance required from permittees shall vary depending upon the type of permit, the nature of the work being performed, and the dollar-value of the improvements, construction, work or operations.

Policies of insurance shall be endorsed to provide coverage to “The People of the State ofNew York and/or the Commissioner of Transportation and all employees of the State Department of Transportation” for claims arising from the permitted work.

The required insurance shall be documented by means of a certificate of insurance, upon a form satisfactory to the department, furnished by the permittee before the commencement of any work/operations.

Self-insurance is permissible from municipalities, federal agencies, public authorities, public benefit corporations, public utilities, transportation corporations and railroads, by use of an undertaking agreement acceptable to the department. Self-insurance from other permittees in lieu of the required liability insurance may be accepted upon satisfactory proof that permittee has the financial resources and an established self-insurance program to adjust and pay liability claims.

(1)Residential driveways: Any contractor engaged to construct a residential driveway permitted under section 125.9 of this Title shall be required to have a commercial general liability insurance policy with limits of liability of not less than $500,000 per claim/occurrence.

The permittee shall provide proof of the insurance for any contractor being utilized to do the work, and shall be required to comply with the indemnity and other security requirements set forth in this Part.A homeowner that performs such work on his/her own residence without the use of a contractor shall be exempt from the requirement to maintain commercial general liability insurance coverage.

(2)Commercial driveways: Any permittee seeking a permit for a commercial driveway permitted under section 125.10 (a) of this Title, including those driveways described as either major or minor commercial driveways under sections 125.1 (e) and125.1 (f) of this Title, shall be required to have a commercial general liability insurance policy with limits of liability of not less than $1,000,000 per claim/occurrence except that if any of the following conditions apply to the permitted work, the limits of liability shall be not less than $5,000,000 per claim/occurrence:

(a)The estimated value of permitted work in state right-of-way is $250,000 or more;

(b)The permitted work requires or includes the construction, alteration or maintenance of underground features at any depth five feet or more below grade;

(c)The permitted work requires or includes the construction, alteration or maintenance of overhead features that include, but are not limited to, traffic signals, overhead sign structures, retaining walls or other grade separation structures.

(3)Utility work: Any permittee seeking a permit to perform utility work under Part 126 of this Title; whether an original installation, maintenance or repair or miscellaneous work, shall be required to have a commercial general liability insurance policy with limits of liability of not less than $1,000,000 per claim/occurrence except that if any of the following conditions apply to the permitted work, the limits of liability shall be not less than $5,000,000 per claim/occurrence:

(a)The estimated value of permitted work in state right-of-way is $250,000 or more.

(b)The permitted work requires or includes the construction, alteration or maintenance of underground features at any depth five feet or more below grade.

(4)Vegetation control: Any permittee seeking a permit to control vegetation in connection with any outdoor advertising sign permitted under Part 134 of this Title shall be required to have a commercial general liability insurance policy with limits of liability of not less than $1,000,000 per claim/occurrence.

(5)Adopt-a-Highway: Individuals or community organizations seeking a permit to adopt a highway under Part 126 of this Part, shall not be required to have a liability insurance policy, but shall be required to provide proof of the insurance for any contractor being utilized to do the work.

(6)Other non-utility work. Permittee seeking a permit to perform other nonutility work under Part 126 of this Title, including roadway improvements, tree work, miscellaneous construction, encroachment, or other miscellaneous work operations, shall be required to have a commercial general liability insurance policy with limits of liability of not less than $1,000,000 per claim/occurrence except that if any of the following conditions apply to the permitted work, the limits of liability shall be not less than $5,000,000 per claim/occurrence:

(a)The estimated value of permitted work in state right-of-way is $250,000 or more;

(b)The permitted work requires or includes the construction, alteration or maintenance of underground features at any depth five feet or more below grade;

The permittee shall provide proof of the insurance for any contractor being utilized to do the work, and shall be required to comply with the indemnity and other security requirements set forth in this Part. A homeowner that performs such work on his/her own residence without the use of a contractor shall be exempt from the requirement to maintain commercial general liability coverage.

(7)Annual maintenance permits: Any permittee seeking an annual maintenance permit to, maintain or replace existing under-ground or above-ground facilities permitted under Part 129 of this Title, including electric power, communications, poles, gas or water lines shall be required to have a commercial general liability insurance policy with limits of liability of not less than $5,000,000 per claim/occurrence.

(8)Traffic signal permits: Any permittee seeking a permit to install a traffic signal permitted under section 125.11 of this Title, or to construct maintain or alter other overhead features on or attached to traffic signals, bridges or sign structures shall be required to have a commercial general liability insurance policy with limits of liability of not less than $5,000,000 per claim/occurrence.

(9)Special use permits: Any permittee seeking a permit to conduct a special event in the highway right-of-way such as a race, festival, parade or filming of a movie or commercial shall be required to have a commercial general liability insurance policy with limits of liability of not less than $5,000,000 per claim/occurrence. Where registered motor vehicles will be utilized as part of the event, permittee shall also be required to have automobile liabilityinsurance with limits of liability of not less than $1,000,000 per claim/occurrence.

Section 127.4 Protective liability insurance requirements.

In addition to the requirement to provide general liability coverage, permittees will be required to provide protective liability insurance coverage under the following conditions:

(a)The permittee is a homeowner constructing a residential driveway at his/her own home, as permitted under section 125.9 of this Title;

(b)The estimated value of permitted work in state right-of-way is $250,000 or more.

Such policy of protective liability insurance shall be issued to, in the name of and covering the liability of the "the People of the State of New York and/or the Commissioner of Transportation and all employees of the State Department of Transportation." Such policy shall carry limits of liability of not less than $1,000,000 per occurrence/$2,000,000 aggregate. The policy shall be written for the permitted project and shall be kept in force at the expense of the permittee for the duration of the project. The policy shall provide primary coverage to the State of New York against any claim arising in any way from the permitted work within the area covered by the permit. Annual maintenance permits are exempt from the requirement to provide protective liability insurance coverage as stated above.

If the permittee is a homeowner constructing a residential driveway at his/her own home, theyare eligible to pay an optional insurance fee that supports a blanket insurance policy for the State of New York, as an alternative to the requirement to provide protective liability insurance coverage.

Section 127.5 Workers’ compensation insurance requirements.

As a condition of the issuance of any permit to perform work or other operations upon state right-of-way pursuant to Parts 125, 126, 129, 131 and 134 of this Title,permittees are required to furnish proof that is duly subscribed by an insurance carrier, that compensation for all employees has been secured as required by Section 57 of the Workers’ Compensation Law of the State of New York, or that the person or persons performing such work are exempted from the requirements of that law.

Section127.6 Required performance and payment security.

In the event that permitted work/operations might reasonably be expected to include construction, maintenance or alteration to any feature of the state highway, or in the event that the permit requires engineering review or inspections, permittees shall be required to post sufficient security to assure the completion of all work, the restoration of the state property, the payment for all labor and materials, and the recovery of reasonable state expenses. The levels of performance and payment security as set forth in section 127.7 and section 127.8 shall be set forth in the permit and shall be calculated as follows:

(1)Residential driveways. Performance and payment security may be required for any driveway that requires the installation of drainage structures or includes cuts to the curb or pavement of the state highway. In such cases, the amount of security required shall be $1,000 that shall be refundable upon satisfactory project completion. No performance security shall be required for residential driveways where the work for which the permit is required does not affect the pavement, curb or drainage structures or other appurtenances of the highway.

(2)Commercial driveways, subdivision streets, and temporary access entrances. The performance and payment security required for any permit for a commercial driveway, subdivision street, or temporary access permitted under section 125.10 (a) of this Title shall be for an amount sufficient to ensure the completion of the permitted work and the payment of all associated expenses, including the expenses for which the permittee is responsible to the department of transportation. The amount of performance security required shall not exceed the collective value of all work to be performed by or for the permittee in that portion of the project location that is on state land. The permit shall require as the minimum amount of performance security, an amount that is 50% of the estimated value of all work to be performed by or for the permittee in that portion of the project location that is on state land.

(3)Permit traffic signals or other overhead features on or attached to traffic signals, bridges or sign structures. The performance and payment security required for any permit for to install a traffic signal permitted under section 125.11 of this Title, or to construct maintain or alter other overhead features on or attached to traffic signals, bridges or sign structures,shall be for an amount sufficient to ensure the completion of the permitted work and the payment of all associated expenses, including the expenses for which the permittee is responsible to the department of transportation. The amount of performance security required shall not exceed the estimated cost of the traffic signal or other work. The permit shall require as the minimum amount of performance security, an amount that is 50% of the estimated value of all work to be performed by or for the permittee in that portion of the project location that is on state land. Performance security shall be limited to the period of time that extends until the satisfactory completion of the work and the release of liens, except that for traffic signals, the department may elect to retain performance security in the amount of $1,000 for a period of time extending one year beyond the date that the work is satisfactorily completed in order to provide adequate time to assure that the signal is free from defects or that the cost of maintenance or necessary repairs is paid.

(4)Annual maintenance permit. The performance and payment security required for any annual maintenance permit to maintain or replace existing under-ground or above-ground facilities permitted under Part 129 of this Title, including electric power, communications, poles, gas or water lines shall take the form of an undertaking or shall consist of some other form of security in the amount of $100,000.

(5)Vegetation control permit. The performance and payment security required for any permit to control vegetation in connection with any outdoor advertising sign permitted under Part 134 of this Title shall be in the amount of $10,000.

(6)Special use permit. The performance and payment security required for any permit to conduct a special event in the highway right-of-way such as a race, festival, parade or filming of a movie or commercial shall be in the amount sufficient to assure the restoration of the state lands to their condition prior to the event. The amount of performance security required shall be at the discretion of the department based upon the projected cost of assuring restoration. Such security shall not exceed $10,000.

(7) Other permits. The performance and payment security required for any permit for any other purpose shall be in the amount sufficient to assure the restoration of the state lands to their condition prior to the event. The amount of performance security required shall be at the discretion of the department based upon the projected cost of assuring restoration. Such security shall not exceed $10,000.

Section127.7 Acceptable forms of performance security.

In order to ensure the completion of work allowed under a highway work permit or annual permit issued pursuant to Parts 125, 126, 129, 131 and 134 of this Title, and to ensure that the state highway is restored to the condition it was in before permitted work was undertaken without any liens or encumbrances, performance and payment security is required. Forms of performance security acceptable to the department are as follows:

(1)A cash deposit in funds of the United States paid to the permitting office.

(2)A performance/payment bond in a form prescribed by the department.

(3)A letter of credit issued by any bank authorized to do business in the state of New York.

Section 127.8 Special Accommodations for Municipalities, Federal Agencies, Public Utilities, Transportation Corporations, Public Authorities, Public Benefit Corporations and Railroads.

Municipalities, federal agencies, public utilities, transportation corporations, public authorities, public benefit corporations, or railroads, may elect to furnish an Undertaking form that is acceptable to the Department as a substitute for or to supplement the security provided under this Part. Such Undertaking shall require full indemnification of the State without specifying limits of liability and may be utilized to satisfy the security requirements for all permits issued to the permittee.

Section 129.3 Required conditions

(a) (1) Except in emergencies, the applicant will notify the regional director and resident engineer in writing, at last 72 hours before work is started. This notice will contain a complete description of the work to be done, including sketches where essential.