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203. INSURANCE AND INDEMNIFICATION REQUIREMENTS

Prior to commencement of any work under the Contract and until completion and final payment is made for the work under the Contract (unless otherwise stated herein), Contractor/Consultant (Contractor/Consultant shall be referred to singularly as “Covered Party”) shall, at its sole expense, maintain the following insurance on its own behalf, with an insurance company or companies having an A.M. Best Rating of “A-: Class X” or better, and furnish to Borough of East Stroudsburg, (hereinafter referred to as the “Owner” Certificates of Insurance evidencing same. The companies shall be listed on the Pennsylvania Department of Insurance website as licensed to do business in the Commonwealth of

PA.

Notwithstanding anything herein contained to the contrary, if any part of the work under this Contract is to be performed by a subcontractor of a Contractor, such Contractor shall be responsible for each subcontractor maintaining insurance or in the alternative, maintaining insurance on behalf of each subcontractor as specified in, and in accordance with, the paragraphs below. The Contract that the Owner is entering is solely with Contractor, and Contractor shall be solely responsible for all acts or failures to act of each of its subcontractors as if the actions or failures to act are the actions or failures to act of Contractor. Contractor expressly acknowledges and agrees that the Owner’s willingness to enter into the Contract is premised on Contractor taking responsibility for, and indemnifying Owner, and the Borough’s Engineer against the acts and failures to act or each of its respective subcontractors. Nothing herein shall otherwise limit or alter Contractor’s obligation (if any) to seek prior approval of subcontractors from Owner as such requirement may be set forth in the Contract.

1. Workers Compensation and Employers Liability: In the state in which the work is to be performed and elsewhere as may be required and shall include:

a) Workers Compensation Coverage: In such amounts necessary to satisfy applicable statutory requirements.

b) Employers Liability Limits not less than:

Bodily Injury by Accident: $1,000,000.00 each accident Bodily Injury by Disease: $1,000,000.00 each employee Bodily Injury by Disease: $1,000,000.00 policy limit

c) Waiver of Right to Recover from Others Endorsement (WC 00 0313) where permitted by law.

2. Commercial General Liability: (including Premises – Operations, Independent Contractors, Broad Form Property Damage, Contractual Liability (including Liability for Employee Injury assumed under a Contract), and Explosion, Collapse and Underground Coverages).

a) Occurrence Form with the following limits:

(1) General Aggregate: $2,000,000.00

(2) Each Occurrence: $1,000,000.00

(3) Personal and Advertising Injury: $1,000,000.00

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b) The General Aggregate Limit must apply on a per location/per project basis.

c) No Professional Exclusion

d) No Insured vs. Insured or “Cross Suits” Exclusion on the Policy.

3. Automobile Liability including Physical Damage:

Coverage to include:

a) All Owned, Hired and Non-Owned Vehicles

b) Contractual Liability Coverage (including Liability for Employee Injury assumed under a Contract)

c) Per Accident Combined Single Limit $1,000,000.00

d) Physical Damage Coverage must be included as Owner is not responsible for any property damage to the Covered Party’s vehicles.

4. Commercial Umbrella Liability:

a) Occurrence Limit: $5,000,000.00

b) Aggregate Limit (where applicable): $5,000,000.00

c) Policy to apply excess of the Commercial General Liability (following form per location/per project limit), Commercial Automobile Liability and Employers Liability Coverages

d) No Insured vs. Insured or “Cross Suits” Exclusion on the policy. If it is determined by Owner that higher limits are required, The Covered Party shall have thirty (30) days to secure such coverage.

5. Pollution/Environmental Impairment Liability Coverage:

The Contractor/Consultant shall be responsible for the following insurance:

Pollution/Environmental Impairment Liability:

Per Occurrence Bodily Injury/Property Damage $1,000,000.00 Policy Aggregate $2,000,000.00

6. Owner’s Protective Liability Insurance:

a) Each Occurrence: $1,000,000.00

b) Aggregate: $2,000,000.00 per location/per project limit

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c) Owners and Professional named as insureds

d) No Insured vs. Insured or “Cross Suits” exclusion on the policy.

All insurance coverage shall survive until all hazardous materials are disposed of in an ultimate EPA licensed disposal facility, and until federal, state and local environmental requirements have been complied with, whether such compliance is the obligation of the Covered Party, subcontractors, Owner, and the Borough’s Engineer.

All disposal facilities shall provide the Owner, the Covered Party with written evidence that they are licensed EPA disposal facilities and that they maintain pollution liability insurance of not less than $2,000,000.00 which covers all claims arising from the disposal facilities’ handling and stores of hazardous materials. Pollution liability insurance for the transportation of the hazardous material may be carried by the transporter with limits not less than $1,000,000.00 per occurrence and, unless otherwise waived, shall name the Covered Party, Owner, and the Borough’s Engineer, its directors, employees, agents and assignees as Additional Insured on the policy.

7. Professional Liability Coverage. – N/A.

8. Riggers Liability Insurance: - N/A

9. Inland Marine: - N/A

Deductibles or Self Insured Retentions:

All deductibles and self-insured retentions are the sole responsibility of the Covered Party. Deductibles or Self-Insured Retentions must be shown on the Certificate of Insurance and shall not exceed $5,000.00.

Financial Rating of Insurance Companies:

The Financial Rating of all Insurance Companies must meet the minimum A.M. Best Ratings below:

a) A.M. Best Rating: A- (Excellent) or Higher

b) A.M. Best Financial Size Category: Class X or Higher

The Covered Party must notify Owner of any change in the financial rating of its insurance carriers.

Primary Additional Insureds:

The Certificate of Insurance is to name Owner, the Borough’s Engineer, and the owners of their property, and his/her/their/its (heirs and assigns, or directors, agents, employees) and assignees as ADDITIONAL INSUREDS. The Owner shall have the right to cause Contractor to add additional third

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parties to the insurance certificates as additional insureds as it alone deems necessary. All parties to be added to the applicable policy by endorsement.

The Certificate is also to indicate that the Covered Party’s policies are primary. The coverage offered to the Additional Insureds on the Covered Party’s liability policies (except Professional Liability) shall be primary coverage to any other coverage maintained by the Additional Insureds and shall not permit or require such other coverage to contribute to the payment of any loss.

Covered Party shall continue to maintain Owner, the Borough’s Engineer, and his/her/their/its (heirs and assigns, or directors, agents, employees) and assigns as Additional Insureds for at least three (3) years after final payment under the Contract.

30 Days Notice of Cancellation, Non-Renewal and Material Change:

It is agreed the Covered Party’s insurance will not be canceled, materially changed or non-renewed without at least thirty (30) days advance written notice to Owner by Certified Mail – Return Receipt Requested.

Waiver of Rights of Recovery and Waiver of Rights or Subrogation:

The Certificate of Insurance must evidence a Waiver of Recovery and Waiver of Subrogation in favor of Owner, the Borough’s Engineer and all Additional Insureds where applicable on all policies including Workers’ Compensation and Employers Liability:

a) The Covered Party waives all rights of recovery against Owner and all the additional insureds for loss or damage covered by any of the insurance maintained by the Covered Party pursuant to this Contract.

b) The Covered Party hereby waives, and shall cause its insurance carriers to waive, all rights of subrogation against Owner and all the additional insureds for loss or damage covered by any of the insurance maintained by the Covered party pursuant to this Contract.

c) If any of the policies of insurance required under this Subcontract require an endorsement to provide for the waiver of subrogation set forth in b, above, then the named insureds of such policies will cause them to be so endorsed.

Claims Made Policy Forms:

Should any of the required liability coverages be on a “Claims Made” Basis, coverage must be available for the duration of the Contract and for a minimum of three (3) years following the completion of the Contract.

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Review of Insurance Requirements by the Covered Party’s Insurance Representative:

The Covered Party WARRANTS that this Contract has been thoroughly reviewed by the Covered Party’s insurance agent(s)/broker(s), who have been instructed by the Covered Party to procure the insurance coverage required by this Contract.

The amount of insurance provided in the aforementioned insurance coverages, shall not be construed to be a limitation of the liability on the part of the Covered Party or any of their subcontractors.

Any type of insurance or any increase in limits of liability not described above which the Covered Party requires for its own protection or on account of statute shall be its own responsibility and at its own expense.

The carrying of insurance described herein shall in no way be interpreted as relieving the Covered Party of any responsibility or liability under the Contract.

Prior to the commencement of work and/or Owner making any payment under the Contract, the Covered Party shall file Certificates of Insurance with Owner that shall be subject to Owner’s approval of adequacy of protection and the satisfactory character of the insurer. The Certificates of Insurance should be mailed within five (5) days of receipt of these insurance requirements to Ann Wingert, UTRS Civil and Environmental Engineering, at 112 North Courtland Street, East Stroudsburg, PA 18301. A project description and job number must be shown on all Certificates of Insurance. A copy of the endorsements will be required. The Covered Party’s obligation to provide the insurance set forth herein shall not be waived by any failure to provide a Certificate of Insurance, the Covered Party’s acceptance of a Certificate of Insurance showing coverage varying from these requirements or by the Covered Party’s direction to commence work. The Covered Party agrees to provide Owner an updated Certificate of Insurance upon the request of Owner or the Borough Engineer.

In the event of a failure of the Covered Party to furnish and maintain said insurance and to furnish satisfactory evidence thereof, Owner shall have the right (but not the obligation) to take out and maintain the same for all parties on behalf of the Covered Party who agrees to furnish all necessary information thereof and to pay the cost thereof to the Covered Party immediately upon presentation of an invoice.

In no event shall the Covered Party begin work until Certificates of Insurance showing coverage in the aforementioned amounts required for the Contract is received and approved by the Borough Engineer.

INDEMNIFICATION

To the fullest extent permitted by law, the Covered Party agrees to indemnify, defend and hold Owner, the Borough’s Engineer, (his/her/their/its heirs and assigns directors, servants, employees, agents, assigns and affiliates) (collectively, the “Indemnified Parties”) harmless from and against, any and all liabilities, losses, claims, damages, and expenses including, without limitation, costs of investigation and defense, expert witness fees, legal fees (e.g., fees for attorneys, paralegals and other legal professionals), expenses and diminution of value, whether or not involving a third party claim, arising out of or in any manner connected with the Work to be performed for the Indemnified Parties, including, but not limited

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to, Work performed under this Contract, Work performed under a Change Order, or any such other Work performed for the Indemnified Parties, to the extent caused, in whole or in part, by the acts or omissions of the Covered Party, its agents, servants, employees, Subcontractors, subconsultants, anyone directly or indirectly employed by them or anyone for whose acts or omissions they may be legally liable regardless of whether or not such liabilities, losses, claims, damages or expenses, including, without limitation, costs of investigation and defense, expert witness fees, legal fees, expenses and diminution of value are caused in part by even for and if caused in whole or in part by any act, omission or negligence of the Indemnified Parties.

It is expressly agreed that the indemnification contained in this Contract covers claims against the Indemnified Parties, Covered Party or the agents, servants, employees, Subcontractors or subconsultants of the Covered Party. It is further expressly agreed that the Covered Party assumes to the fullest extent permitted by law all obligations to indemnify and defend all parties whom Owner is obligated to indemnify and defend the Contract (whether or not such obligations may extend to items beyond those addressed in this Contract).

If there are any liabilities, losses, claims, damages or expenses of any kind or nature unsettled when the Work under the Contract is finished, any unpaid amounts owed by Owner to the Covered Party shall be deferred until all such liabilities, losses, claims, damages or expenses are: (1) settled; (2) evidence of insurance coverage acceptable to the Borough Engineer or indemnification acceptable to Owner is provided by the Covered Party’s insurance carrier; or (3) a bond acceptable to Owner is provided by the Covered Party to secure payment of all liabilities, losses, claims, damages and expenses owed by the Covered Party to Owner.

The terms and conditions of this indemnification section and hold harmless shall survive any cancellation, expiration or termination of this Contract. The laws of the Commonwealth of Pennsylvania shall apply to the construction of the indemnification set forth above without regard to any conflicts of law provisions.

SETTLEMENT OF INSURANCE CLAIMS

The Covered Party shall make every effort to settle all claims in an expeditious and equitable manner.

The Covered Party shall provide Owner with the name, address, and telephone number of the person authorized to act on behalf of the Insurance Company for the project at the preconstruction conference.

The Covered Party shall promptly inform Owner and the Borough Engineer and the insurance company in writing, of any written or oral notification of an alleged claim.

Failure to settle claims within ten (10) days after notification will result in Owner selecting a professional adjusting service to settle all claims of a value less than the policy deductible. Claim settlement costs and service fees charged will be deducted from any monies due the Contractor.

204. PATENTS

The Contractor shall hold and save the Owner, its officers, and employees, harmless from liability of any nature or kind, including costs and expenses, for, or on account of, any patented or unpatented invention, process, article, or appliance manufactured, or used in the performance of the Contract,