Requiring public construction contracts to include a mutual waiver of consequential damages.

SENATE BILL No. 335
AN ACT concerning public construction contracts; amending the Kansas fairness in public
construction contract act; requiring such contracts to include a mutual waiver of
consequential damages; amending K.S.A. 16-1901 and 16-1907 and repealing the
existing sections.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) On and after the effective date of this act, any
contract for public construction entered into by a public entity and a
contractor shall include a mutual waiver of consequential damages.
Such mutual waiver of consequential damages shall be substantially in
the following form:
Waiver of claims for consequential damages
The contractor and owner waive claims against each other for
consequential damages arising out of or relating to this contract. This
mutual waiver includes, but is not limited to:
(1) Damages incurred by the owner for rental expenses, for loss of
use, income, profit, financing, business and reputation and for loss of
management or employee productivity or of the services of such
persons; and
(2) damages incurred by the contractor for principal office
expenses, including, but not limited to, the compensation of personnel
stationed in such principal office, for losses of financing, business and
reputation and for loss of profit, except anticipated profit arising
directly from the construction.
(b) The public entity and contractor may identify in such contract
additional items of consequential damage that are waived as
specifically needed for the applicable construction project. Such mutual
waiver is applicable, without limitation, to all consequential damages
due to either party's termination rights in accordance with the contract.
Nothing contained in this section shall preclude:
(1) An owner's claims of liquidated damages or a contractor's
claims for extended general conditions, when applicable, in accordance
with the requirements of the contract; or
(2) either party's claims of direct damages arising from delay to
the extent not otherwise liquidated, limited or prohibited by the
applicable terms of the contract.
(c) On and after the effective date of this act, if a public entity and
a contractor enters into any contract containing language that conflicts
with the provisions of this section, the provisions of this section shall
control.
(d) This section shall be a part of and supplemental to the Kansas
fairness in public construction contract act, K.S.A. 16-1901 et seq., and
amendments thereto.
Sec. 2. K.S.A. 16-1901 is hereby amended to read as follows: 16-
1901. (a) K.S.A. 16-1901 through 16-1908 16-1909, and amendments
thereto, and section 1, and amendments thereto, shall be known and
may be cited as the Kansas fairness in public construction contract act.
(b) Except as provided in section 1, and amendments thereto:
(1) The rights and duties prescribed by this act shall not be
waivable or varied under the terms of a contract.; and
(2) the terms of any contract waiving the rights and duties
prescribed by this act shall be unenforceable.
Sec. 3. K.S.A. 16-1907 is hereby amended to read as follows: 16-
1907. Except as provided in section 1, and amendments thereto, any
provision in a contract that purports to waive the rights of a party to the
contract to collect damages for delays caused by another party to the
contract shall be void, unenforceable and against public policy. This
provision is not intended to create a contract between parties where a
contract did not otherwise exist.
Sec. 4. K.S.A. 16-1901 and 16-1907 are hereby repealed.
SENATE BILL No. 335—page 2
Sec. 5. This act shall take effect and be in force from and after its
publication in the statute book.
I hereby certify that the above BILL originated in the
SENATE, and passed that body
_________________________
_________________________
President of the Senate.
_________________________
Secretary of the Senate.

Passed the HOUSE ________________________
_________________________
Speaker of the House.
_________________________
Chief Clerk of the House.
APPROVED ____________________________
_________________________
Governor.