Attachment 12 Insurance

Transcription

1 Attachment 12 Insurance

2 PART A DESIGN/BUILD PERIOD INSURANCES PART A(I): RTD DESIGN/BUILD PERIOD INSURANCES 1. OWNER CONTROLLED INSURANCE PROGRAM 1.1 Eligibility and Enrollment RTD shall procure an owner controlled insurance program (the OCIP), which shall provide the insurance coverages described in Section 1.2 (OCIP Insurance Coverages) to the Enrolled Contractors in connection with the Eligible Work. For the purposes of this Attachment 12 (Insurance): Approved Site means any location (other than a Site), including a staging area, dedicated office space or warehousing area that has been approved by RTD (in its sole discretion) in accordance with the OCIP Manual for inclusion in the coverage under the OCIP. Covered Sites means (i) the Sites, (ii) any Approved Sites and (iii) with respect to the insurance procured under Section 2.4 (Rolling Stock Insurance) of Part A of this Attachment 12 (Insurances) only, the FRA's Transportation Technology Center near Pueblo, Colorado managed by Transportation Technology Center, Inc., a wholly owned subsidiary of the Association of American Railroads. Eligible Work means all direct labor services performed at the Covered Sites including as part of any Temporary Work, but excluding any Excluded Activities. Enrolled Contractor means (i) the Concessionaire, (ii) the Design/Build Contractor, (iii) any Design/Build Subcontractor that is performing Eligible Work, (iv) the O&M Contractor to the extent it is performing Eligible Work and (v) any O&M Subcontractor that is performing Eligible Work and, in each case, to the extent such Person is enrolled in the OCIP in accordance with the requirements of the OCIP Manual. Excluded Activities means any activities (i) undertaken under any excluded contract described in Section I.B. of the OCIP Manual or (ii) performed pursuant to the Rolling Stock Supply Contract. OCIP has the meaning given to it in Section 1.1 of this Part A(I) of Attachment 12 (Insurance). OCIP Manual means the RTD FastTracks Owner Controlled Insurance Program Manual, a copy of which is attached as Annex 1 of this Attachment 12 (Insurance), as amended from time to time. Page 2

3 1.2 OCIP Insurance Coverages RTD will procure the following insurance coverage for the benefit of each Enrolled Contractor pursuant to the OCIP: Worker's Compensation/Employer's Liability (i) (ii) (iii) Worker's Compensation coverage providing statutory coverage in the State of Colorado and Other States coverage; an individual Worker's Compensation policy in the name of the Enrolled Contractor; and Employer's Liability coverage with the following limits: (A) (B) (C) U.S.$1,000,000 Bodily Injury by Accident, Each Accident; U.S.$1,000,000 Bodily Injury by Disease, Policy Limit; and U.S.$1,000,000 Bodily Injury by Disease, Each Employee. Commercial General Liability (i) (ii) Commercial General Liability coverage on ISO form CG or equivalent, including coverage for Bodily Injury, Property Damage and Personal Injury Liability. Completed Operations coverage with respect to each Commuter Rail Project, the CRMF and the DUS Rail Segment for eight years from the relevant Final Completion Date for such facility. Products Liability coverage is limited to Eligible Work performed at a Covered Site that is intended to permanently remain as part of the Commuter Rail Network after completion of the Design/Build Period. Commercial General Liability coverage in accordance with the following limits: (A) (B) (C) (D) U.S.$2,000,000 Each Occurrence Limit; U.S.$4,000,000 General Aggregate Limit; U.S.$4,000,000 Products/Completed Operations Aggregate Limit; and U.S.$2,000,000 Personal & Advertising Injury Limit. (iii) Commercial General Liability limits are shared. All Enrolled Contractors will be named insureds on the Commercial General Liability policies described above and will therefore share the limits specified above. The Each Occurrence, General Aggregate and Personal & Advertising Injury Limits will be reinstated annually during the Design/Build Period, but will not be reinstated during the subsequent eight year coverage period referenced in Section 1.2(i) of this Part A(I) of Attachment 12 (Insurance). Page 3

4 (c) Excess Liability (i) Excess Liability coverage with limits of not less than: (A) (B) U.S.$100,000,000 per occurrence and in the aggregate; and U.S.$100,000,000 Products/Completed Operations in the aggregate. (ii) Excess Liability coverage is excess of the coverages described in Sections 1.2(ii) and 1.2 of this Part A(I) of Attachment 12 (Insurance). The total limit of liability is per occurrence and in the aggregate regardless of the number of insureds under the policy. (iii) Completed Operations coverage for eight years from the last Final Completion Date. 1.3 OCIP Manual The Concessionaire shall comply with, and shall ensure that the other Enrolled Contractors comply with, the OCIP Manual which shall be incorporated by reference into the Design/Build Contract and all contracts with Design/Build Subcontractors (whether or not such Design/Build Subcontractors are Enrolled Contractors at the time of incorporation). 2. ADDITIONAL RTD EAGLE PROJECT DESIGN/BUILD PERIOD INSURANCES In addition to the OCIP, RTD will procure insurance coverage for the during the Design/Build Period or, in the case of the Rolling Stock, for such shorter period as provided under Section 2.4 (Rolling Stock Insurance), as described below: 2.1 Contractor Pollution Liability Insurance Contractor Pollution Liability Insurance for claims arising out of defined pollution conditions resulting from the operations of the Concessionaire, the Design/Build Contractor and the Design/Build Subcontractors, naming RTD, the Concessionaire, the Design/Build Contractor and the Design/Build Subcontractors as insureds subject to policy provisions and with limits of U.S.$10,000,000 per Claim and Policy Aggregate. 2.2 Builder's Risk Insurance Builder's Risk Insurance on an "All-Risk" basis including permanent and temporary works and materials to be incorporated into the in an amount not less than the probable maximum loss of U.S.$122,000,000 in accordance with the terms of the relevant policy, which policy shall include a LEG 3/96 or alternatively, at RTD's discretion, LEG 3/06 Defects Exclusion. The following sublimits shall apply: (i) (ii) U.S.$50,000,000 Earthquake per Occurrence and Annual Aggregate Limit; U.S.$100,000,000 Flood per Occurrence and Annual Aggregate Limit; Page 4

5 (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) the greater of 10% of the loss or U.S.$10,000,000 Debris Removal per Occurrence Limit; the greater of 10% of the loss or U.S.$10,000,000 Expediting Expense per Occurrence Limit; U.S.$1,000,000 Fire Department Service Charges/Protective Systems per Occurrence Limit; U.S.$100,000 Inventory, Appraisal & Loss Adjustment Expenses per Occurrence Limit; U.S.$10,000,000 Ordinance or Law per Occurrence Limit; U.S.$500,000 Pollutant Clean-up/Removal per Occurrence Limit; U.S.$10,000,000 Temporary Storage per Occurrence Limit; U.S.$2,500,000 Transit per Occurrence Limit; and U.S.$500,000 Valuable Papers & Records per Occurrence Limit. (c) (d) Soft Costs under the Builder's Risk Insurance in an amount not less than U.S.$58,519,864 per Occurrence Limit. Builder's Risk Insurance coverage shall insure RTD, the Concessionaire, the Design/Build Contractor, Design/Build Subcontractors, any other Enrolled Contractors, the Lenders and, subject to RTD's prior written approval, others nominated by the Concessionaire, as named insured. In accordance with Section 34.6(f) of the Agreement, a waiver of subrogation will be included in this policy other than for an insured party in breach of the applicable multiple insureds non-vitiation clause, which clause also will be included in this policy. The Design/Build Subcontractor shall be the primary Loss Payee and the Design/Build Contractor, the Concessionaire, RTD and the Lenders shall each be additional Loss Payees as their interests appear. Delay In Startup under the Builder's Risk Insurance in an amount not less than U.S.$13,754,143 per Occurrence Limit. 2.3 Railroad Protective Liability Insurance RTD shall procure policies of Railroad Protective Liability coverage in accordance with the requirements of the Railroad Agreements. 2.4 Rolling Stock Insurance Subject to Section 2.4, RTD shall procure full replacement cost coverage for the Rolling Stock under RTD's existing all-risk Permanent Property Insurance policy or an equivalent policy, including coverage for systems performance demonstration, testing and commissioning or other similar operations. Page 5

6 (c) RTD shall procure coverage under Section 2.4 for each part of Rolling Stock that is on a Covered Site and is necessary to support the service requirements for Commuter Rail Services on each Commuter Rail Project, as determined by reference to Attachment 10 (O&M Specifications), from the date of delivery of each Car to a Covered Site until the Revenue Service Commencement Date for the applicable Commuter Rail Service. Insurance coverage procured by RTD under this Section 2.4 (Rolling Stock Insurance) of Part A of this Attachment 12 (Insurances) shall insure RTD, the Concessionaire, the Design/Build Contractor, the Design/Build Subcontractors, the Rolling Stock Supplier and its Subcontractors, any other Enrolled Contractors, the Lenders and, subject to RTD's prior written approval, others nominated by the Concessionaire, as named insured. In accordance with Section 34.6(f) of the Agreement, a waiver of subrogation will be included in this policy other than for an insured party in breach of the applicable nonvitiation clause. 3. DEDUCTIBLES Notwithstanding the Concessionaire's obligations to pay amounts due under Part II.E (Payments for Property Damage to Others) of the OCIP Manual, RTD will bear the risk of and pay any deductibles or self-insured retention applicable to any coverages obtained by RTD in accordance with this Part A(I) of Attachment 12 (Insurance). Page 6

7 PART A(II): CONCESSIONAIRE DESIGN/BUILD PERIOD INSURANCES 1. MARINE INSURANCE The Concessionaire shall procure and maintain Inland and/or Ocean Marine Insurance, as relevant, to cover the Rolling Stock from the time that risk in the first elements of the Rolling Stock is transferred to the Concessionaire until, for each part of the Rolling Stock, the date of delivery of the relevant Car to a Covered Site and for each part of the Rolling Stock, from the Revenue Service Commencement Date for the applicable Commuter Rail Service until the end of the Lease Period, provided that the Concessionaire shall not be required to procure and maintain such insurance for any Rolling Stock to the extent such Rolling Stock is otherwise covered or required to be covered with respect to the same risks by RTD in accordance with Section 2.4 (Rolling Stock Insurance) of Part A(I) of this Attachment 12 (Insurance). The policy shall provide "All Risks" coverage for the full replacement cost of the Rolling Stock, including the perils of collision, upset and overturn. The deductible or self-insured retention shall not exceed U.S.$250,000. Insurers that would qualify as Qualifying Insurers but for such insurer not being admitted in the State of Colorado are permissible for Inland and/or Ocean Marine Insurance coverage, provided that they otherwise comply with the requirements specified in the Agreement and this Attachment 12 (Insurance). 2. ADDITIONAL INSURANCES 2.1 General requirements Subject to Section 2.1, throughout the Design/Build Period the Concessionaire shall procure and maintain, and/or shall ensure that the Project Contractors and each of their Subcontractors (whether or not such Project Contractors or Subcontractors are also Enrolled Contractors) procure and maintain, the insurances specified in this Section 2 (Additional Insurances) of this Part A(II) of Attachment 12 (Insurance). The Design/Build Contractor (if it is not directly providing engineering or design work), the Design/Build Subcontractors (other than the lead engineering firm, the geotechnical consultant and any other Design/Build Subcontractor providing design work), the O&M Contractor and the O&M Subcontractors shall not be required to be covered by or to otherwise procure and/or maintain the insurances specified in Section 2.2 (Professional Liability Insurance) below. 2.2 Professional Liability Insurance and Commercial Automobile Liability Insurance Professional Liability Insurance (i) (ii) Professional Liability Insurance including full retroactive coverage for damages arising out of negligent acts, errors or omissions of the professional design and engineering service providers. Named insureds shall include the Design/Build Contractor (if it is directly providing engineering or design work), the lead engineering firm (if different from the Design/Build Contractor), the geotechnical consultant and any other Design/Build Subcontractor providing design work. The Professional Liability Insurance policies covering the Design/Build Contractor (if it is directly providing engineering or design work), or, if different Page 7

8 from the Design/Build Contractor, the lead engineering firm, shall provide a coverage limit of not less than U.S.$25,000,000 per claim and in the aggregate dedicated exclusively to work related to the Concessionaire's obligations under the Agreement These Professional Liability Insurance policies shall provide an extended reporting period of not less than two years following completion of the relevant covered party's services, provided that the total policy term is not required to be greater than 10 years including the extended reporting period following the completion of the covered party's services. (iii) (iv) Professional Liability Insurance policy limits for firms required to be covered under Section 2.2(i) of this Part A(II) of Attachment 12 (Insurance) (other the Design/Build Contractor (if it is directly providing engineering or design work), or, if different from the Design/Build Contractor, the lead engineering firm) shall be not less than U.S.$2,000,000 per claim and in the aggregate. Insurers that would qualify as Qualifying Insurers but for such insurer not being admitted in the State of Colorado are permissible for this Professional Liability Insurance coverage, provided that such insurers shall otherwise comply with the requirements specified in the Agreement and this Attachment 12 (Insurance). Commercial Automobile Liability Insurance Commercial Automobile Liability Insurance for bodily injury (including death) and property damage with limits of liability of not less than (i) U.S.$1,000,000 combined single limit per occurrence applicable for all owned, non-owned and hired vehicles and (ii) U.S.$5,000,000 per occurrence of Transport of Hazardous Materials including Hazardous Waste coverage applicable for all owned, non-owned and hired vehicles engaged in activities that may customarily be covered by such a policy. 2.3 Additional Required Insurances Extension of Additional Required Insurance Coverage to Excluded Activities on the Covered Sites and to Activities Off the Covered Sites The insurances specified in Sections 2.3 (Worker's Compensation and Employer's Liability Insurance) and 2.3(c) (Commercial General Liability Insurance) below shall include coverage of (i) Excluded Activities on the Covered Sites and (ii) activities off the Covered Sites. Worker's Compensation and Employer's Liability Insurance Worker's Compensation coverage providing statutory coverage in the State of Colorado and Employer's Liability Insurance with limits of not less than U.S.$1,000,000 per incident for all employees engaged in activities under the Agreement. The policy shall include Broad Form All States/Other States coverage. Page 8

9 (c) Commercial General Liability Insurance (i) (ii) (iii) (iv) (v) (vi) Commercial General Liability Insurance on ISO form CG or equivalent, including coverage for Bodily Injury and Property Damage. The Commercial General Liability Insurance policies placed by the Design/Build Contractor and the O&M Contractor shall provide limits of not less than U.S.$5,000,000 per occurrence, U.S.$10,000,000 annual general aggregate, and U.S.$10,000,000 Products/Completed Operations aggregate. The maximum deductible shall be no more than U.S.$1,000,000 per occurrence. The policies shall not include any exclusion for work within any railroad right of way. The Commercial General Liability Insurance policies placed by the Design/Build Subcontractors and the O&M Subcontractors shall provide limits of not less than U.S.$1,000,000 per occurrence, U.S.$2,000,000 annual general aggregate, and U.S.$2,000,000 Products/Completed Operations aggregate. The maximum deductible shall be no more than U.S.$1,000,000 per occurrence. The policies shall not include any exclusion for work within any railroad right of way. Commercial General Liability Insurance policies shall include a stipulation that the insurance is primary insurance and that no insurance or self-insurance of RTD, its directors, officers, representatives, agents, and employees will be called upon to contribute to a loss. If Commercial General Liability Insurance coverage is provided on a "claims made" basis, an extended reporting period that allows the reporting of claims for no less than five years after the last Final Completion Date must be provided. The Concessionaire may satisfy the Commercial General Liability Insurance coverage requirements under this Section 2.3 (Commercial General Liability Insurance) by obtaining other insurance policies pursuant to which equivalent coverage is provided. 3. GENERAL REQUIREMENTS All insurances described in this Part A(II) of Attachment 12 (Insurance) shall be primary and non-contributing with any other insurance. The insurance limits may be provided through a combination of primary and excess policies, including the umbrella form of policy. All insurance policies and certificates of insurance will include a requirement providing for 30 days' prior written notice to RTD of any cancellation or non-renewal. If any such notice is given, RTD will have the right to require that a substitute policy be obtained prior to cancellation with appropriate evidence thereof at the discretion of RTD. The Concessionaire will notify RTD and will ensure that the Project Contractors and each of their Subcontractors immediately notify the Concessionaire of any cancellation and will cease Work on the occurrence of any such cancellation or non-renewal and will not resume Work until the required insurance is in force and new certificates of insurance have been filed with RTD. Page 9

10 (c) (d) RTD and its directors, officers, representatives, agents, and employees shall be named as additional insureds on all insurance policies procured in accordance with Sections 2.2 (Commercial Automobile Liability Insurance) and 2.3(c) (Commercial General Liability Insurance) of this Part A(II) of Attachment 12 (Insurance). All policies procured in accordance with Sections 2.2 (Commercial Automobile Liability Insurance), 2.3 (Worker's Compensation and Employer's Liability Insurance) and 2.3(c) (Commercial General Liability Insurance) of this Part A(II) of Attachment 12 (Insurances) shall include a waiver of subrogation in favor of RTD, its directors, officers, representatives and agents. Page 10

11 1. REQUIRED INSURANCES PART B OPERATING PERIOD INSURANCES Throughout the Operating Period, the Concessionaire shall procure and maintain, and/or shall ensure that the O&M Contractor and all O&M Subcontractors procure and maintain, the insurances specified in this Section 1 (Required Insurances) of this Part B of Attachment 12 (Insurance). RTD and its directors, officers, representatives, agents, and employees shall be named as additional insureds on all insurance policies procured in accordance with Sections 1.1 (Railroad Liability Insurance) and 1.3 (Commercial Automobile Liability Insurance) of this Part B of Attachment 12 (Insurances). All insurance policies procured in accordance with Sections 1.1 (Railroad Liability Insurance), 1.2 (Worker's Compensation and Employer's Liability Insurance) and 1.3 (Commercial Automobile Liability Insurance) of this Part B of Attachment 12 (Insurances) shall include a waiver of subrogation in favor of RTD, its directors, officers, representatives and agents. 1.1 Railroad General Liability Insurance (c) Railroad General Liability Insurance to cover operations under the Agreement with limits of (i) not less than U.S.$400,000,000 (or such other limit as may be established by Congress as required under the Railroad Agreements) solely with respect to any portion of the Sites governed by a Railroad Agreement between RTD and the Union Pacific Corporation (or any of its Affiliates) that is a flyover easement as identified in Attachment 22 (Railroad Agreements) and (ii) not less than U.S.$200,000,000 (or such other limit as may be established by Congress as required under the Railroad Agreements) with respect to the remainder of the Sites, in each case in accordance with the requirements of the Railroad Agreements. Any deductible or self-insured retention may not exceed the maximum level stipulated in the relevant Railroad Agreement. The Concessionaire may claim a Relief Event under Section 38.1(y) of the Agreement (provided the other requirements of Section 38 (Relief Events) are satisfied) if RTD executes any Railroad Agreement after the Technical Proposal Due Date (i) in form and substance different from the copy of such Railroad Agreement attached in draft form in Annexes 1, 2 and 3 to Attachment 22 (Railroad Agreements) (other than Annexes 1.1, 3.1 and 3.2), including with respect to the applicable insurance requirements under such agreement, or (ii) other than the Railroad Agreements (including agreements in draft form) attached in Annexes 1, 2 and 3 to Attachment 22 (Railroad Agreements). Railroad General Liability Insurance shall include a stipulation that the insurance is primary insurance and that no insurance or self-insurance of RTD, its directors, officers, representatives, agents, and employees will be called upon to contribute to a loss. Policy form or endorsements shall include coverages for (i) Pollution Liability; (ii) Federal Employers' Liability Act (FELA); (iii) Incidental Medical Malpractice Liability; (iv) Terrorism coverage for both certified and non-certified acts. Coverage may be provided on an "occurrence" or "claims made" basis. If the policy is "claims made", coverage must be continued without interruption for the life of the Agreement, effective from the start of the Operating Period. If "claims made" coverage Page 11

12 is terminated at any time, then an extended reporting period of five years must be included. 1.2 Worker's Compensation and Employer's Liability Insurance Statutory Worker's Compensation and Employer's Liability Insurance with limits of not less than U.S.$1,000,000 per incident for all employees engaged in services or operations under the Agreement. The policy shall include Broad Form All States/Other States coverage 1.3 Commercial Automobile Liability Insurance Commercial Automobile Liability Insurance for bodily injury (including death) and property damage with limits of liability of not less than U.S.$1,000,000 combined single limit per occurrence applicable for all owned, non-owned and hired vehicles. Such insurance shall be endorsed to affirm that it is primary and that no insurance or self-insurance of RTD, its directors, officers, representatives, agents, and employees will be called upon to contribute to a loss. 1.4 Property Insurance Property Insurance on an "All-Risks", replacement cost basis, and in any event in an amount not less than U.S.$105,000,000 per occurrence, in respect of all elements of the Commuter Rail Network, including flood, earthquake, terrorism and equipment breakdown insurance. This policy shall be subject to a deductible not to exceed U.S$250,000 applicable to each and every occurrence for which coverage applies, except with respect to the perils of flood and earthquake each of which shall be subject to an annual aggregate and written with a percentage deductible not to exceed U.S.$1,000,000 unless otherwise approved by RTD. 1.5 Directors and Officers Liability Insurance With respect to the Concessionaire only, Directors and Officers Liability Insurance in an amount not less than U.S.$10,000,000 per claim. If any retroactive date is included, then such date shall be no later than the earlier of the Early Work Effective Date and the Phase 1 Effective Date. Policies written on a claims-made basis shall remain in force for a period no less than three years following the Termination Date or the Expiry Date, as applicable. 1.6 Inland Marine "All Risks" Inland Marine policy of insurance for the Operating Period subject to the same terms and conditions as specified in Section 1 (Marine Insurance) of Part A(II) of Attachment 12 (Insurance). Page 12

13 ANNEX 1 RTD FASTRACKS OWNER CONTROLLED INSURANCE PROGRAM MANUAL EAGLE PROJECT [Attached], Annex 1 Page 13