16-121.   Construction contracts, motor carriertransportation contracts, dealer agreements, franchise agreements; certainindemnification provisions and additional insured provisions void,when.(a) When used in this section:

      (1)   "Construction contract" means an agreement for the design,construction, alteration, renovation, repair or maintenance of a building,structure, highway, road, bridge, water line, sewerline, oil line, gas line, appurtenance or other improvement to realproperty, including any moving, demolition or excavation, except that nodeed, lease, easement, license or other instrument granting an interest in orthe right to possess property shall be deemed to be a construction contracteven if the instrument includes the right to design, construct, alter,renovate, repair or maintain improvements on such real property."Construction contract" shall not include any design,construction, alteration, renovation, repair or maintenance of:(A) Dirt or gravel roads used to access oil and gas wells andassociated facilities; or (B) oil flow lines or gas gatheringlines used in association with the transportation of productionfrom oil and gas wells from the wellhead to oil storagefacilities or gas transmission lines.

      (2)   "Contract" means any construction contract, motorcarrier transportation contract, dealer agreement or franchiseagreement.

      (3)   "Damages" means personal injury damages, propertydamages or economicloss.

      (4)   "Dealership agreement" means an oral or writtenagreement of definite or indefinite duration between an equipmentmanufacturer or service provider and an equipment or servicedealer which provides for the rights and obligations of theparties with respect to the purchase or sale of such equipment orservices.

      (5)   "Franchise agreement" means any contract or franchise orany other terminology used to describe the contractualrelationship between manufacturers,distributors and dealers, by which:

      (A)   A right is granted one party to engage in the businessof offering, selling or otherwise distributing goods or servicesunder a marketing plan or system prescribed in substantial partby the other party, and in which there is a community of interestin the marketing of goods or services at wholesale or retail, bylease, agreement or otherwise; and

      (B)   the operation of the grantee's business pursuant tosuch agreement is substantially associated with the grantor'strademark, service mark, trade name, logotype, advertising or other commercialsymbol designating the grantor or an affiliateof the grantor.

      (6)   "Indemnification provision" means a covenant, promise,agreement,clause orunderstanding in connection with, contained in, or collateral to acontract that requires thepromisor to hold harmless, indemnify or defend the promisee or others againstliability for loss or damages.

      (7)   "Motor carrier transportation contract" means, withrespect to a motor carrier as defined in K.S.A. 66-1,108, andamendments thereto, a contract, agreement or understandingcovering:

      (A)   The transportation of property by a motor carrier;

      (B)   the entrance on property by the motor carrier for thepurpose of loading, unloading or transporting property; or

      (C)   a service incidental to activity described in clause (A)or (B) including, but not limited to, storage of property.

      "Motor carrier transportation contract" shall not include theuniform intermodal interchange and facilities access agreementadministered by the intermodal association of North America orother agreements providing for the interchange, use or possessionof intermodal chassis, containers or other intermodal equipment.

      (8)   "Mutual indemnity obligation" means an indemnityobligation ina contract in which the parties agree toindemnify each other and each other's contractors and theiremployees against loss, liability or damages arising inconnection with bodily injury, death and damage to property ofthe respective employees, contractors or their employees, andinvitees of each party arising out of or resulting from theperformance of the agreement.

      (9)   "Promisee" shall include an agent, employee or independentcontractor who is directly responsible to the promisee.

      (10)   "Unilateral indemnity obligation" means an indemnityobligation ina contract in which one of the parties as promisor agreesto indemnify the other party as promisee withrespect to claims for personal injury or death to the promisor'semployees or agents or to the employees or agents of thepromisor's contractors but in which the promisee does not make areciprocal indemnity to the promisor.

      (b)   An indemnification provision in a contract which requires thepromisor to indemnify thepromisee for the promisee's negligenceor intentional actsor omissions is against publicpolicy and is void and unenforceable.

      (c)   A provision in a contract which requires a partytoprovide liability coverage to another party, as an additional insured, for suchother party's own negligence or intentional acts or omissions is against publicpolicy and is void and unenforceable.

      (d)   This act shall not be construed to affect or impair:

      (1) Thecontractualobligation of a contractor or owner to provide railroad protective insurance orgeneral liability insurance;

      (2)   an agreement under which an owner, a responsible partyor a governmental entity agrees to indemnify a contractordirectly or through another contractor with respect to strictliability under environmental laws;

      (3)   an indemnification agreement that is an integral part ofan offer to compromise or a settlement of a disputed claim, if:(A) The settlement is based on consideration; (B) the disputerelates to an alleged event that is related to a constructioncontract and that occurred before the settlement is made; and (C)the indemnification relates only to claims that have arisen ormay arise from the past event;

      (4)   the validity of any insurance contract, constructionbond or other agreement lawfully issued by an insurer or bondingcompany;

      (5)   a separately negotiated provision or provisions wherebythe parties mutually agree to a reasonable allocation of risk, ifeach such provision is: (A) Based on generally accepted industryloss experience; and (B) supported by adequate consideration; and

      (6)   an agreement that provides for indemnity if the partiesagree in writing that the indemnity obligation will be supportedby liability insurance coverage to be furnished by the promisorsubject to the following limitations:

      (A)   With respect to a mutual indemnity obligation, theindemnity obligation is limited to the extent of the coverage anddollar limits of insurance or qualified self-insurance each party as promisorhas agreed to obtain for the benefit of the otherparty as promisee.

      (B)   With respect to a unilateral indemnity obligation, theindemnity obligationis limited to the extent of the coverage and dollar limits of insurancethe promisor has agreed to obtain for thebenefit of the other party as promisee. Such indemnity obligationshall be at the promisee's expenseand shall be a separate liability insurancepolicy.

      (e)   Notwithstanding any contractual provision to thecontrary, the laws of the state of Kansas shall apply to andgovern every contract to be performed in this state. Anylitigation, arbitration or other dispute resolution proceedingarising from such contract shall be conducted in this state. Anyprovision, covenant or clause in such contract that conflictswith the provisions of this subsection shall be void andunenforceable.

      (f)   This section applies only to indemnification provisionsand additional insured provisions entered intoafter January 1, 2009.

      History:   L. 2004, ch. 70, § 1;L. 2008, ch. 132, § 1; Jan. 1, 2009.