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HomeMy WebLinkAboutPLHA - Insurance and Indemnity Agreement - 05.24.23INSURANCE AND INDEMNITY AGREEMENT THIS AGREEMENT (Agreement) is made and entered into as of this 1,1 day of C%- Y 2023, between the CITY OF FRESNO, a municipal corporation (City), and APLC International, Inc., a California corporation (originally referenced in the PLHA Agreement as "Subcontractor" but referenced herein as "Contractor"). RECITALS Broadway Plaza Family Apartments, LP, (Owner) and City entered into a Permanent Local Housing Allocation Agreement on May 11 2023 , (PLHA Agreement). A condition of the PLHA Agreement requires Contractor to construct the Project, of which eleven units will be PLHA-assisted units preserved as floating Lower -Income rental housing, including construction of on -site and off -site improvements. Contractor is performing work as a subcontractor (as defined in the PLHA Agreement) for the Owner. The PLHA Agreement requires Contractor to indemnify, hold harmless, and defend City. The City and Contractor desire to enter into this Agreement to comply with any and all insurance requirements as dictated in the PLHA Agreement with the Contractor. AGREEMENT NOW, THEREFORE, in consideration of the above recitals, which recitals are contractual in nature, the mutual premises herein contained, and for other good and valuable consideration hereby acknowledge, the parties agree as follows: 1. To the furthest extent allowed by law, the Contractor 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), 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 the Contractor , its principals, officers, employees, agents, or volunteers, in the performance of this Agreement. If the Contractor should subcontract all or any portion of the services to be performed under this Agreement, the Contractor 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. Contractor shall comply with the insurance requirements as described in Attachment "A," attached hereto and incorporated herein by reference. [SIGNATURE PAGE TO FOLLOW] IN WITNESS THEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY: CITY OF FRESNO, A California municipal corporation By: Name: Ge r eanne A. White Title: City nager APPROVED AS TO FORM: ANDREW JANZ City Attorney By Name: Tracy . Parvanian Date Title: Supervisi g Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: V Name: 05a4l"'- �AOC Title: Deputy City Clerk Attachment "A" — Insurance Requirements CONTRACTOR: APEC International, Inc., a California corporation By: A-� Name: Title: (If corporation or LLC, Board Chair, President or Vice Pres.) 2 Attachment A Insurance Requirements (a) Throughout the life of this Agreement, the CONTRACTOR shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, the CONTRACTOR or any of its Contractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately 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 sufficient cause for the CITY to terminate this Agreement. No action taken by the CITY pursuant to this section shall in any way relieve the CONTRACTOR of its responsibilities under this 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. (c) The fact that insurance is obtained by the CONTRACTOR shall not be deemed to release or diminish the liability of the CONTRACTOR, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify 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 CONTRACTOR. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the CONTRACTOR, vendors, suppliers, invitees, contractors, sub -contractors, Contractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: (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: $2,000,000 per occurrence for bodily injury and property damage 3 $2,000,000 per occurrence for personal and advertising injury $4,000,000 aggregate for products and completed operations $4,000,000 general aggregate applying separately to work performed under the Agreement (ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as 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. (iii) 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. (vi) CONTRACTOR POLLUTION with 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 $2,000,000 general aggregate per annual policy period In the event the work 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 CONTRACTOR pursuant to the PLHA Agreement. In the event the work involves any lead -based environmental hazard (e.g., lead- based paint), the CONTRACTOR's Pollution Liability insurance policy shall be endorsed to include coverage for lead based environmental hazards. In the event the CONTRACTOR involves any asbestos environmental hazard (e.g., asbestos remediation), the CONTRACTOR's Pollution Liability insurance policy shall be endorsed to include coverage for asbestos environmental hazards. In the event the PLHA 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. UMBRELLA OR EXCESS INSURANCE In the event the CONTRACTOR purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of Insurance," 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. DEDUCTIBLES AND SELF -INSURED RETENTIONS The CONTRACTOR shall be responsible for payment of any deductibles contained in any 4 insurance policy(ies) required herein and the CONTRACTOR shall also be responsible for payment of any self -insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS All 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 CONTRACTOR 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 the CITY, the CONTRACTOR 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, Pollution and Automobile Liability insurance policies shall be written on an occurrence 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 for ongoing and completed operations. All such policies of insurance shall be endorsed so the CONTRACTOR'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 CONTRACTOR 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 CONTRACTOR. 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 CONTRACTOR 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 his/her designee before work commences. Upon request of the CITY, the CONTRACTOR 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. 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 CONTRACTOR shall promptly reconstruct, repair, replace, or restore all work or materials so destroyed or injured at his/her sole cost and expense. Nothing herein provided for shall in any way excuse the CONTRACTOR or his/her insurance 5 company from the obligation of furnishing all the required materials and completing the work in full compliance with the terms of this Agreement. CONTRACTORS If CONTRACTOR subcontracts any or all of the services to be performed under this Agreement, CONTRACTOR shall require, at the discretion of the CITY Risk Manager or designee, Contractor(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 Contractor must be reviewed and preapproved by the CITY Risk Manager or designee. If no Side Agreement is required, the CONTRACTOR will be solely responsible for ensuring that its Contractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. Indemnification. To the furthest extent allowed by law, the CONTRACTOR shall indemnify, mold 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 CONTRACTOR 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 CONTRACTOR'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. If CONTRACTOR should subcontract all or any portion of the work to be performed under this Agreement, CONTRACTOR shall require each Contractor to indemnify, hold harmless and defend the 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.