PART 13 - INDEMNIFICATION AND WAIVER Flashcards
GC 13.1 INDEMNIFICATION
13.1.1
Without restricting the parties’ obligation to indemnify respecting toxic and hazardous substances, patent fees and defect in title
claims all as described in paragraphs 13.1.4 and 13.1.5, the Owner and the Contractor SHALL each indemnify and hold harmless the
other from and against all claims, demands, losses, costs, damages, actions, suits, or proceedings whether in respect to losses
suffered by them or in respect to claims by third parties that arise out of, or are attributable in any respect to their involvement as
parties to this Contract, provided such claims are:
1) Caused by:
a) The negligent acts or omissions of the party from whom indemnification is sought or anyone for whose negligent acts or omissions that party is liable; or b) a failure of the party to the Contract from whom indemnification is sought to fulfill its terms or conditions; and
2) made by Notice in Writing within a period of 6 years from the Ready-for-Takeover date or within such shorter period as may
be prescribed by any limitation statute of the Province or Territory of the Place of the Work.
The parties expressly waive the right to indemnity for claims other than those provided for in this Contract.
GC 13.1 INDEMNIFICATION
13.1.2
The obligation of either party to indemnify as set forth in paragraph 13.1.1 shall be limited as follows:
1) In respect to losses suffered by the Owner and the Contractor for which insurance is to be provided by either party pursuant to GC 11.1 – INSURANCE, the minimum liability insurance limit for one occurrence, of the applicable insurance policy, as referred to in CCDC 41 in effect at the time of bid closing.
2) In respect to losses suffered by the Owner and the Contractor for which insurance is not required to be provided by either party in accordance with GC 11.1 – INSURANCE, the greater of the Contract Price as recorded in Article A-4 – CONTRACT PRICE or $2,000,000, but in NO event SHALL the sum be greater than $20,000,000.
3) In respect to indemnification by a party against the other with respect to losses suffered by them, such obligation SHALL be
restricted to direct loss and damage, and NEITHER party SHALL have any liability to the other for indirect, consequential, punitive
or exemplary damages.
4) In respect to indemnification respecting claims by third parties, the obligation to indemnify is without limit.
GC 13.1 INDEMNIFICATION
13.1.3
The obligation of either party to indemnify the other as set forth in paragraphs 13.1.1 and 13.1.2 SHALL be inclusive of interest and all legal costs.
GC 13.1 INDEMNIFICATION
13.1.4
The Owner and the Contractor SHALL indemnify and hold harmless the other from and against all claims, demands, losses, costs,
damages, actions, suits, or proceedings arising out of their obligations described in GC 9.2 – TOXIC AND HAZARDOUS
SUBSTANCES.
GC 13.1 INDEMNIFICATION
13.1.5
The Owner SHALL indemnify and hold harmless the Contractor from and against all claims, demands, losses, costs, damages, actions, suits, or proceedings:
1) as described in paragraph 10.3.2 of GC 10.3 – PATENT FEES, and
2) arising out of the Contractor’s performance of the Contract which are attributable to a lack of or defect in title or an alleged lack of or defect in title to the Place of the Work.
GC 13.1 INDEMNIFICATION
13.1.6
In respect to any claim for indemnity or to be held harmless by the Owner or the Contractor:
1) Notice in Writing of such claim SHALL be given within a reasonable time after the facts upon which such claim is based become known; and
2) should any party be required as a result of its obligation to indemnify another to pay or satisfy a final order, judgment or award made against the party entitled by this contract to be indemnified, then the indemnifying party upon assuming all liability for any costs that might result shall have the right to appeal in the name of the party against whom such final order or judgment has been made until such rights of appeal have been exhausted
GC 13.2 WAIVER OF CLAIMS
13.2.1
Subject to any lien legislation applicable to the Place of the Work, the Contractor waives and releases the Owner from all claims which the Contractor has or reasonably ought to have knowledge of that could be advanced by the Contractor against the Owner under the Contract, including, without limitation, those arising from negligence or breach of contract in respect to which the cause of action is based upon acts or omissions which occurred prior to or on the Ready-for-Takeover date, except as follows:
1) claims arising prior to or on the Ready-for-Takeover date for which Notice in Writing of claim has been received by the Owner from the Contractor no later than 5 calendar days before the expiry of the lien period provided by the lien legislation applicable at the Place of the Work or 20 calendar days following the Ready-for-Takeover date, whichever is later;
2) indemnification for claims advanced against the Contractor by third parties for which a right of indemnification may be asserted by the Contractor against the Owner pursuant to the provisions of this Contract;
3) claims respecting toxic and hazardous substances, patent fees and defect in title matters for which a right of indemnity could be asserted by the Contractor pursuant to the provisions of paragraphs 13.1.4 or 13.1.5 of GC 13.1 – INDEMNIFICATION; and
4) claims resulting from acts or omissions which occur after the Ready-for-Takeover date.
GC 13.2 WAIVER OF CLAIMS
13.2.2
The Contractor waives and releases the Owner from all claims resulting from acts or omissions which occurred after the Readyfor- Takeover date except for:
1) indemnification respecting third party claims, and claims respecting toxic and hazardous substances, patent fees and defect in title matters, all as referred in paragraphs 13.2.1.2 and 13.2.1.3; and
2) claims for which Notice in Writing of claim has been received by the Owner from the Contractor within 395 calendar days following the Ready-for-Takeover date.
GC 13.2 WAIVER OF CLAIMS
13.2.3
Subject to any lien legislation applicable to the Place of the Work, the Owner waives and releases the Contractor from all claims which the Owner has or reasonably ought to have knowledge of that could be advanced by the Owner against the Contractor under the Contract, including, without limitation, those arising from negligence or breach of contract in respect to which the cause of action is based upon acts or omissions which occurred prior to or on the Ready-for-Takeover date, except as follows:
1) claims arising prior to or on the Ready-for-Takeover date for which Notice in Writing of claim has been received by the Contractor from the Owner no later than 20 calendar days following the Ready-for-Takeover date;
2) indemnification for claims advanced against the Owner by third parties for which a right of indemnification may be asserted by the Owner against the Contractor pursuant to the provisions of this Contract;
3) claims respecting toxic and hazardous substances for which a right of indemnity could be asserted by the Owner against the Contractor pursuant to the provisions of paragraph 13.1.4 of GC 13.1 – INDEMNIFICATION;
4) damages arising from the Contractor’s actions which result in substantial defects or deficiencies in the Work. “Substantial defects or deficiencies” mean those defects or deficiencies in the Work which affect the Work to such an extent or in such a manner that a significant part or the whole of the Work is unfit for the purpose intended by the Contract Documents;
5) claims arising pursuant to GC 12.3 – WARRANTY; and
6) claims arising from acts or omissions which occur after the Ready-for-Takeover date.
GC 13.2 WAIVER OF CLAIMS
13.2.4
Respecting claims arising upon substantial defects and deficiencies in the Work, as referenced in paragraph 13.2.3.4, and notwithstanding paragraph 13.2.3.5, the Owner waives and releases the Contractor from all claims except claims for which Notice in Writing of claim has been received by the Contractor from the Owner within a period of six years from the Ready-for-Takeover date, provided that any limitation statute of the Province or Territory of the Place of the Work permit such agreement. If the applicable limitation statute does not permit such agreement, the time within which any such claim may be brought shall be such shorter period as may be prescribed by any limitation statute of the Province or Territory of the Place of the Work.
GC 13.2 WAIVER OF CLAIMS
13.2.5
The Owner waives and releases the Contractor from all claims arising from acts or omissions which occur after the Ready-for- Takeover date, except for:
1) indemnification for claims advanced against the Owner by third parties, as referenced in paragraph 13.2.3.2;
2) claims respecting toxic and hazardous substances for which a right of indemnity could be asserted by the Owner against the Contractor, as referenced in paragraph 13.2.3.3;
3) claims arising under GC 12.3 – WARRANTY; and
4) claims for which Notice is Writing has been received by the Contractor from the Owner within 395 calendar days following the Ready-for-Takeover date.
GC 13.2 WAIVER OF CLAIMS
13.2.6
“Notice in Writing of claim” as provided for in GC 13.2 – WAIVER OF CLAIMS to preserve a claim or right of action which would otherwise, by the provisions of GC 13.2 – WAIVER OF CLAIMS, be deemed to be waived, must include the following:
1) a clear and unequivocal statement of an intention to claim;
2) a statement as to the nature of the claim and the grounds upon which the claim is based; and
3) a statement of the estimated quantum of the claim.
GC 13.2 WAIVER OF CLAIMS
13.2.7
A claim for lien asserted under the lien legislation prevailing at the Place of the Work shall qualify as notice of claim for the
purposes of this Contract.
GC 13.2 WAIVER OF CLAIMS
13.2.8
The party giving the Notice in Writing of claim as provided for in GC 13.2 – WAIVER OF CLAIMS shall submit within a reasonable time a detailed account of the amount claimed.
GC 13.2 WAIVER OF CLAIMS
13.2.9
Where the event or series of events giving rise to a claim made under paragraphs 13.2.1 or 13.2.3 has a continuing effect, the detailed account submitted under paragraph 13.2.8 shall be considered to be an interim account and the party making the claim SHALL submit further interim accounts, at reasonable intervals, giving the accumulated amount of the claim and any further grounds upon which such claim is based.
The party making the claim SHALL submit a final account after the end of the effects resulting from the event or series of events.
