HomeMy WebLinkAboutBamhart-Benson Builders Inc Insurance & Indemnity Agreement 3.1.2023 Uuuuolyll CIIvulupC IU. UV/'JU/UO-JOU5-44:J:J-�UCJ-r VJCGCJ:I'#r CJ
INSURANCE AND INDEMNITY AGREEMENT
THIS AGREEMENT (Agreement) is made and entered into as of this �;r day of
Mare _ 2023, between the CITY OF FRESNO, a municipal corporation (City), and
Barnhart-Benson Builders Inc, a California corporation (Subcontractor),
RECITALS
The Housing Authority of the City of Fresno, California (Developer) entered into a
Repair Services Agreement on or about June 7, 2022. A condition to the Agreement requires
Developer to repair and rehabilitate Valley Inn, aka Sage Commons, a one-hundred and five
(105) room transitional housing facility.
Subcontractor is performing work as a subcontractor for the Developer.
The City and Subcontractor desire to enter into this Agreement to comply with any
and all insurance requirements herein.
AGREEMENT
NOW, THEREFORE, the parties agree that the aforesaid Agreement be amended as
follows:
1. To the furthest extent allowed by law, Subcontractor shall indemnify, hold
harmless and defend City and each of its officers, officials, employees, agents and volunteers
from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in
contract, tort or strict liability, including but not limited to personal injury, death at any time
and property damage), and from any and all claims, demands and actions in law or equity
(including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or
relate to the negligence, recklessness or willful misconduct of Subcontractor, its principals,
officers, employees, agents, or volunteers, in the performance of this Agreement-resulting
from Subcontractor's work hereunder.
If Subcontractor should subcontract all or any portion of the services to be performed
under this Agreement, Subcontractor shall require each subcontractor to indemnify, hold
harmless and defend City, and each of its officers, officials, employees, agents, and
volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
2. Subcontractor shall comply with the insurance requirements as described in
Attachment "A," attached hereto and incorporated herein by reference.
(SIGNATURES FOLLOW ON THE NEXT PAGE.]
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IN WITNESS THEREOF, the parties have executed this Amendment at Fresno,
Callfomia, the day and year first above written.
CITY: SUBCONTRACTOR:
CITY OF FRESNO, Barnhart-Benson Builders Inc
A California municipal corporation A Califomia corporation
pocuSigned by: /
By By:
Georgeanne A. White
City Manager Name: v �J
Title: �JG'f � C V
ATTEST: (If corporation or LLC., Board Chair,
TODD STERMER, CMC Pres. or Vice Pres.)
City Clerk
€7oru Signed by:
By: i�a9$��y6eQuy
G V L 384G9_.� --
Deputy
APPROVED AS TO FORM:
ANDREW JANZ
City Attomey
DocuSigned by:
B bVAJ4hV1 (hW 5/11/2023
B orr) I ° ollet Date
Supervising Deputy City Attomey
Attachment"A"— Insurance Requirements
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INSURANCE REQUIREMENTS
Without waiver of limitation, the parties agree as follows regarding Subcontractor Insurance
and Indemnity Obligations:
9.1 insurance Reriiiirements. Throughout the life of this Agreement, Subcontractor
shall pay for and maintain in full force and effect all policies of insurance hereunder with an
insurance company(ies) either (i) admitted by the California Insurance Commissioner to do
business in the State of California and rated not less than "A-VII" in Best's Insurance Rating
Guide, or(ii) authorized by the City's Risk Manager. The following policies of insurance are
required:
Best's Insurance Rating Guide, or (ii) authorized by the City's Risk Manager. The following
policies of Insurance are required:
(i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as
broad as the most current version of Insurance Services Office (ISO)
Commercial General Liability Coverage Form CG 00 01 and include insurance
for"bodily injury," "property damage" and "personal and advertising injury"with
coverage for premises and operations (including the use of owned and non-
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement)with limits of liability of not less than the following:
$1,000,000 per occurrence for bodily injury and property damage
$1,000,000 per occurrence for personal and advertising Injury
$2,000,000 aggregate for products and completed operations
$2,000,000 general aggregate applying separately to work performed
under the Agreement
(ii) COMMr=RCIAL AUTO LIABILITY insurance which shall be at as bGar-d
broad as the most current version of Insurance Service Office (ISO) Business
Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and
non-owned automobiles or other licensed vehicles (Code 1-Any Auto) with
limits of liability of not less than $1,000,000 per accident for bodily injury and
property damage.
(iil) WORKERS' COMPENSATION insurance as required under the California
Labor Code.
(iv) EMPLOYEE LIABILITY insurance with limits of liability of not less than
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000
diseased each employee.
(v) BUILDERS RISK (Course of Construction) insurance, obtained by the
DEVELOPER or subcontractor in an amount equal to the mropletion value of
the Project with no coinsurance penalty provisions. (Only required it the project
includes new construction of s building; or renovatlbh of, or addition to, an
existing building.)
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1. (vi) CONTRACTOR POLLUTION LIABILITY (Unless waived in writing by the
City's Risk Manager or designee, Pollution Liability is required, by the Developer
or the Contractor for all environmental and water remediation work and for all
work transporting fuel. Pollution insurance shall provide coverage for bodily
injury, property damage or pollution clean-up costs that could result from of
pollution condition, both sudden and gradual. Including a discharge of pollutants
brought to the work site, a release of pre-existing pollutants at the site, or other
pollution conditions with limits of liability of not less than the following:
$1,000,000 per occurrence or claim
$2,000,000 general aggregate per annual policy period
In the event the Subcontractor purchases an Umbrella or Excess insurance policy(ies) to
meet the minimum limits of insurance set forth above, this insurance policy(ies) shall ''follow
form" and afford no less coverage than the primary insurance policy(ies), In addition, such
Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory
basis for the benefit of the City, its officers, officials, employees, agents and volunteers.
In the event the Subcontractor involves any lead-based, mold or asbestos environmental
hazard, either the Automobile Liability insurance policy or the Pollution Liability insurance
policy shall be endorsed to include Transportation Pollution Liability insurance covering
materials to be transported by the Developer pursuant to the Agreement.
In the event the Subcontractor Developer involves any lead-based environmental hazard
(e.g., lead- based paint), the Subcontractors Pollution Liability Insurance policy shall be
endorsed to include coverage for lead based environmental hazards. In the event the
Subcontractor involves any asbestos environmental hazard (e.g., asbestos remediation);the
Subcontractor Pollution Liability insurance policy shall be endorsed to include coverage for
asbestos environmental hazards. In the event the Agreement Involves any mold
environmental hazard (e.g., mold remediation), the Pollution Liability insurance policy shall
be endorsed to include coverage for mold environmental hazards and "microbial matter
including mold"within the definition of"Pollution" under the policy.
The Subcontractor shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and the Subcontractor shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must be
declared to, and approved by, the City's Risk Manager or designee. At the option of the
City's Risk Manager or designee, either (i) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects to the City, its officers, officials, employees,
agents and volunteers; or (ii) the Subcontractor shall provide a financial guarantee,
satisfactory to the City's Risk Manager or designee, guaranteeing payment of losses and
related investigations, claim administration and defense expenses, At no time shall the City
be responsible for the payment of any deductibles or self-insured retentions.
II policies of insurance_ required hereunder shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30)
calendar day written notice has been given to the City. Upon issuance by the insurer, broker,
or agent of a notice of cancellation, non-renewal, or reduction in Coverage or in limits, the
Subcontractor shall furnish the CITY with a new certificate and applicable endorsements for
such policy(ies). In the event any policy is due to expire during the work to be performed for
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the City, the Subcontractor shall provide a new certificate, and applicable endorsements,
evidencing renewal of such policy not less than fifteen (15) calendar days prior to the
expiration date of the expiring policy.
The General Liability and Automobile Liability insurance policies shall be written on an
occurrence form. The Pollution Liability insurance policy shall be written on either an
occurrence form, or a claims-made form. The General Liability, Automobile Liability and
Pollution Liability insurance policies shall name the City, its officers, officials, agents,
employees and volunteers as an additional insured. All such policies of insurance shall be
endorsed so the Subcontractor's insurance shall be primary and no contribution shall be
required of the City. The coverage shall contain no special limitations on the scope of
protection afforded to the City, its officers, officials, employees, agents and volunteers, if the
Subcontractor maintains higher limits of liability than the minimums shown above, the City
requires and shall be entitled to coverage for the higher limits of liability maintained by the
Subcontractor. The General Liability Insurance policy shall also name the City, its officers,
officials, agents, employees and volunteers as additional insureds for all ongoing and
completed operations. The Builders Risk (Course of Construction) insurance policy shall be
endorsed to name the City as loss payee. All insurance policies required including the
Workers' Compensation insurance policy shall contain a waiver of subrogation as to the City,
its officers, officials, agents, employees and volunteers.
The Subcontractor shall furnish the City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements are to
be received and approved by the City's Risk Manager or designee before work commences.
Upon request of the City, the Subcontractor shall immediately furnish the City with a complete
copy of any insurance policy required under this Agreement, including all endorsements, with
said copy certified by the underwriter to be a true and correct copy of the original policy. This
requirement shall survive expiration or termination of this Agreement.
Claims-Made Policies- If any coverage required is written on a claims-made coverage form:
(i) The retroactive date must be shown and must be before the effective date of
the commencement of work by the Subcontractor.
(ii) Insurance must be maintained, and evidence of Insurance must be provided
for at least five (5) years after completion of the work or termination of the
Agreement, whichever first occurs.
(iii) If coverage is canceled or non-renewed, and not replaced with another claims-
made policy form with a retroactive date prior to the effective date of the
Agreement, or work commencement date, the Subcontractor Must purchase
extended reporting period coverage for a minimum of five (5) years after
completion of the work or termination of the Agreement, whichever first occurs.
(iv)A copy of the claims reporting requirements must be submitted to the City for
review.
(v) These: requirements shall survive expiration or termination of the Agreement.
If at any time during the life of the Agreement or any extension, the Subcontractor, its
contractor, or any of it6 subcontractors Fail to maintain any required insurance In full farce
and effect, all work under this Subcontractor Agreement shall be discontinued immediately,
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and all payments due or that become due to the shall be withheld until notice is received by
the City that the required insurance has been restored to full force and effect and that the
premiums therefore have been paid for a period satisfactory to the City. Any failure to
maintain the required insurance shall be suffclent cause for the City to terminate the
Agreement. No action taken by City hereunder shall in any way relieve the Subcontractor of
Its responsibilities under the Agreement. The phrase"fail to maintain any required insurance"
shall include, without limitation, notification received by the City that an insurer has
commenced proceedings, or has had proceedings commenced against it, indicating that the
insurer is insolvent.
The fact that insurance is obtained by the Subcontractor shall not be deemed to release or
diminish the liability of the Subcontractor, including, without limitation, liability under the
indemnity provisions of the Agreement. The duty to indemnify the City shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy limits do
not act as a limitation upon the amount of indemnification to be provided by the
Subcontractor. Approval or purchase of any insurance contracts or policies shall in no way
relieve from liability nor limit the liability of the Subcontractor, its principals, officers, agents,
employees, persons under the supervision of the Subcontractor, vendors, suppliers, invitees,
consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by
any of them.
In the event of a partial or total destruction by the perils insured against of any or all of the
work and/or materials herein provided for at any time prior to the final completion of the
Agreement and the final acceptance by the City of the work or materials to be performed or
supplied thereunder, the Subcontractor shall promptly reconstruct, repair, replace, or restore
all work or materials so destroyed or injured at its sole cost and expense. Nothing herein
provided for shall in any way excuse the Subcontractor or its insurance company from the
obligation of furnishing all the required materials and completing the work in full compliance
with the terms of the Agreement.
SUBCONTRACTORS - If Subcontractor subcontracts any or all of the services to be
performed under this Agreement, Subcontractor shall require, at the discretion of the City
Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with
the City to provide required indemnification and insurance protection. Any required Side
Agreement(s) and associated insurance documents for the subcontractor must be reviewed
and preapproved by City Risk Manager or designee. If no Side Agreement is required,
Contractor will be solely responsible for ensuring that its Subcontractors maintain insurance
coverage at levels no less than those required by applicable law and is customary in the
relevant industry.
A. The above-described policies of insurance shall be endorsed to provide
an unrestricted 30 day written notice in favor of the City, of policy cancellation, change or
reduction of coverage. In the event any policy is due to expire during the term of this
Agreement, a new certificate evidencing renewal of such policy shall be provided not less
than 15 days prior to the expiration date of the expiring policy(les). Upon issuance by the
Insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, the
Developer or its contractors, as the case may be, shall file with the City a certified copy of
the new or renewal policy and certificates for such policy.
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B. The Subcontractor shall furnish the City with the certificate(s) and
applicable endorsements for ALL required insurance prior to the City's execution of this
Agreement. The Subcontractor shall furnish the City with copies of the actual policies upon
the request of the City at any time during the life of the Agreement or any extension.
At all times hereunder the Subcontractor shall maintain the required
insurance in full force and effect.
9.2 Indemnity. To the furthest extent allowed by law, the Subcontractor shall
indemnify, hold harmless and defend the City and each of its officers, officials, employees,
agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and
damages(whether in contract, tort or strict liability, including but not limited to personal injury,
death at any time and property damage) incurred by the City, the Subcontractor or any other
person, and from any and all claims, demands and actions in law or equity (including
attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly
out of performance of this Agreement. The Subcontractor's obligations under the preceding
sentence shall apply regardless of whether the City or any of its officers, officials, employees,
agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines,
penalties, forfeitures, costs or damages caused by the active negligence or by the willful
misconduct of the City or any of its officers, officials, employees, agents or volunteers.
resulting from Subcontractor work hereunder.
A. This section shall survive termination or expiration of this Agreement.
0.3 Property Insurance. The Developer shall maintain in full force and effect,
throughout the remaining life of this Agreement, a policy(ies) of property insurance
acceptable to the City, covering the Project premises, with limits reflective of the value of the
Project premises upon issuance of the Certificate of Completion or substantial completion of
the project referenced in this agreement, including fire and Extended Comprehensive
Exposure (ECE) coverage in an amount, form, substance, and quality as acceptable to the
City's Risk Manager. The City shall be added by endorsement as a loss payee thereon.
9.4 Bond Oblic ativns. The Developer or its General Contractor shall obtain, pay
for and deliver good and sufficient payment and performance bonds along with a Primary
Obligee, Co-Obligee or Multiple Obligee Rider in a form acceptable to the City from a
corporate surety, admitted by the California Insurance Commissioner to do business in the
State of California and Treasury-listed, in a form satisfactory to the City and naming the City
as Obligee.
A. The "Faithful Performance Bond" shall be at least equal to one hundred
(100) percent of the Subcontractor's estimated construction costs as reflected in the
Developer's pro forma budget, attached hereto as Exhibit C, to the guarantee faithful
performance of the Project, within the time prescribed, In a manner satisfactory to the City,
consistent with this Agreement, and that all material and workmanship will be free from
original or developed defects.
S. The "Payment Bond" shall be at least equal to 100% of construction
costs approved by the City to satisfy claims of material supplies and of mechanics and
laborers employed for this Project. The bond shall be maintained by Subcontractor in full
force and effect until the Project is completed and until all claims for materials and labor are
paid and as required by the applicable provisions of Chapter 7, Title 15, Part 4, Division 3 of
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the California Civil Code.
C. The "Material and Labor Bond" shall be at least equal to 100% of the
Subcontractor's estimated construction costs as reflected In the Developer's pro forma
budget, attached hereto as Exhibit C, to satisfy claims of material supplies and of mechanics
and laborers employed for this Project. The bond shall be maintained by the Subcontractor
In full force and effect until the Project is completed, and until all claims for materials and
labor are paid, released, or time barred, and shall otherwise comply with any applicable
provision of the California Code.
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