MPL Indemnification And Insurance v1.docx

Indemnification And Insurance Indemnification of the Authority. The Contractor agrees to indemnify, save harmless, and defend the MBTA and all of its officers, agents, and employees from and against any and all third party suits, claims, or proceedings (“Claims”), and any losses, damages, charges or expenses, whether direct or indirect, and liability of every name and nature related to such Claims (“Liabilities”) for or due to any loss or injury to persons or damages to real or tangible property to the extent caused by the Contractor or its employees, subcontractors or agents.

The MBTA agrees that the Contractor shall not be responsible for any Claims or Liabilities that may be imposed upon or incurred by or asserted against the Contractor to the extent that those Claims or Liabilities are caused by any negligent act or negligent failure to act by MBTA or its agents, employees, or subcontractors.

The Contractor being bound by all applicable state and federal regulations hereby expressly agrees to hold the MBTA harmless against all audit exceptions or denials of the reimbursement arising from the Contractor's violation of the terms and conditions of state and federal laws. The Contractor shall make restitution to the MBTA of such amounts of money as are withheld from the Authority by state, federal, county or local agencies or organizations due to the Contractor's noncompliance with applicable state and federal law, provided that in the event of any claim for such restitution, the MBTA provides the Contractor with prompt notice of such claim and allows the Contractor to contest such claim. Restitution shall be made no later than sixty (60) days after receipt of notification from the MBTA that monies are due to the MBTA.

Defense of Indemnification. The Contractor shall be notified in writing by the MBTA within a reasonable period of time of the assertion of any Claim against it that the Contractor has agreed to indemnify above (the “Indemnified Claim”). If the MBTA decides to itself conduct the defense of an Indemnified Claim against it or to conduct any other response itself, the Contractor shall reimburse the MBTA for all reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) incurred by the MBTA in connection with the MBTA’s defense of the Indemnified Claim against it and/or the conduct of all response actions. If the MBTA decides to have the Contractor defend the Indemnified Claim or handle the response action, the MBTA shall notify the Contractor of that decision in writing. In such instances, the Contractor shall bear the entire cost thereof and shall have sole control of the defense of any Indemnified Claim and all negotiations for its settlement or compromise provided that the MBTA is fully indemnified by the Contractor and that the settlement or compromise shall not include the admission of guilt or comparable plea, wrongdoing or negligence, the permitting or imposition of civil or criminal penalties or indictments, the entering of consent decrees or orders of any kind by the Contractor on behalf of the MBTA, or any other action that would materially prejudice the rights of the MBTA without the MBTA’s express written approval. The MBTA shall cooperate fully with the Contractor in the defense of any Indemnified Claim.

Insurance to be Carried by the Contractor. The Contractor will carry and maintain, throughout the term of the Contract, including any extension thereof, all insurance required under this section.

Commercial General Liability Insurance. The Contractor shall carry and maintain Commercial General Liability insuring the Contractor and the MBTA, and the Contractor’s subcontractors and agents for all activities allowed hereunder including the Contractor’s indemnification obligations with minimum liability coverage for personal injury, bodily injury, and property damage with limits not less than One Million Dollars ($1,000,000) per occurrence and One Million Dollars ($1,000,000) in aggregate. Such insurance shall include:

Coverage for the “X, C, U” hazards (explosion, collapse, underground); and Completed operations hazard for a period of at least two (2) years following acceptance by the Authority or the completed Contract.

Automobile Liability Insurance. The Contractor shall carry and maintain Automobile Liability Insurance with limits not less than One Million Dollars ($1,000,000) combined single limit covering the use of all vehicles owned, non-owned, hired, rented or leased by the Contractor and its subcontractors and agents which are not covered under the Contractors’ Commercial General Liability Insurance.

Workers' Compensation Insurance. The Contractor shall carry and maintain Worker’s Compensation Insurance, including Employers Liability Insurance as provided by Massachusetts General Laws, Chapter 152, as amended, covering all work and services performed under the Contract. Such insurance shall contain a waiver of any and all subrogation rights against the MBTA.

Umbrella Liability Insurance. The Contractor shall carry and maintain Umbrella Liability Insurance with limits not less than Five Million Dollars ($5,000,000) per occurrence and annual aggregate covering all work and services performed under the Contract.

Railroad Protective Insurance. The Contractor shall furnish, with respect to the operations of the Contractor or any of the Contractor's subcontractors performing within the Railroad Right-Of-Way, broad form Railroad Protective Liability Insurance covering all work performed ($5,000,000) per occurrence, Ten Million Dollars ($10,000,000) aggregate combined bodily injury and property damage. The Contractor shall furnish to the MBTA and railroad companies a signed original of the policy for Railroad Protective Liability prior to entry upon the railroad right-of-way. The required Railroad Protective Insurance may be provided in forms commonly referred to as AAR/AASHTO or IS/RIMA but not Oregon.

Insurer; Additional Insurance Requirements. The required insurance coverage hereinbefore specified shall be placed with insurance companies licensed by the Massachusetts Division of Insurance to do business in the Commonwealth of Massachusetts and having a Best’s rating of B+ or better, shall be taken out before the Contract is commenced and be kept in full force and effect throughout the term of the Contract, shall be primary to and noncontributory to any coverage maintained by the MBTA, and shall require that the MBTA and other applicable insureds be given at least thirty (30) days advance written notice in the event of any cancellation or materially adverse change in coverage. All such required insurance shall be written on an occurrence basis form as opposed to a claim made basis form. The MBTA shall be named as an additional insured under the Commercial General Liability, Automobile Liability, and Umbrella Liability Insurance Policies. The MBTA and the applicable railroads shall be the named insureds on the Railroad Protective Insurance. The Workers’ Compensation Insurance Policies shall include a waiver of subrogation in favor of the MBTA. All such insurance as is required of the Contractor shall be provided by or in behalf of all subcontractors to cover their operations performed. The Contractor shall be responsible for any modifications, deviations or omissions in the compliance with these requirements by the subcontractors. At the inception date of the Contract and throughout the term of the Contract, the MBTA shall be provided with certificates of insurance evidencing that such insurance policies are in place and provide coverage as required.

Cancellation of Contractor Insurance. In the event of the cancellation of any policy during the term of this Contract, or the failure to keep in effect the insurance required by this section, the MBTA may, on twenty-four (24) hours notice and at its option, procure or renew such insurance on the account of the Contractor. The Contractor agrees to repay the MBTA’s expense with interest thereon at the rate of eighteen percent (18%) annually from the date of the expenditure by the MBTA.

Limitation Of Liability Notwithstanding anything herein to the contrary, the Contractor’s maximum aggregate liability for any loss or damages (other than death or personal injury) incurred by the MBTA as a result of or in consequence of the acts or omissions of the Contractor, its employees, subcontractors or agents in the performance of services covered by this Agreement shall not exceed one hundred percent (100%) of the Contract value plus any adjusted value per executed change order; provided, however, that if the Contractor’s applicable insurance coverage is greater than this amount, the limit of liability for the Contract shall be the total insurance coverage.

IT IS AGREED AND UNDERSTOOD THAT THE MBTA SHALL BE ENTITLED TO RECOVER DIRECT DAMAGES INCLUDING "BENEFIT-OF-THE-BARGAIN" EXPECTATION DAMAGES AND DAMAGES FOR BREACH OF WARRANTY SUBJECT TO THE LIMITATION OF LIABILITY, AND THAT IN NO EVENT SHALL CONTRACTOR BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF REVENUES OR LOSS OR FAILURE TO REALIZE ANTICIPATED SAVINGS OR EFFICIENCIES ARISING IN CONNECTION WITH THIS AGREEMENT.