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City of Buffalo Indemnity - 2/2/11
City of Buffalo Indemnity - 2/2/11
In a previous alert we identified critical insurability issues of the City of Buffalo indemnity requirements inserted in contracts for design services. Broad, uninsurable, indemnity is still showing up in city contracts we are asked to review. Our concern is that despite the earlier warning, many design professionals are agreeing to these contractual provisions.
The COB indemnity requires defense and indemnity by the design professional “… from and against any and all claims, demands, suits, proceedings, liabilities, judgments, damages, losses or costs, including attorney’s fees, of every name and description…arising out of, or relating to in any degree or manner whatsoever from or in connection with the CONSULTANTS activities in the performance of or failure to perform this contract …resulting from, but not limited to, the alleged negligence…of the CONSULTANT, or the alleged joint negligence …of the City, its or their employees, agents, or subcontractors…”.
Since the indemnity goes beyond established negligence the design professional may not have the benefit of their insurance to respond to demands of the City for defense and payment of virtually any claim against the city that even remotely involves the design professional.
If the design professional were providing construction phase services it could easily be argued that the design professional is responsible for claims caused by, or against, construction contractors providing services to the city.
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