MARINE TERMINAL OPERATING AGREEMENT
THIS MARINE TERMINAL OPERATING AGREEMENT (herein "Agreement") is made and entered into as of the 19th day of May _ 20_09 (herein the "Effective Date") by and between The Port of Richmond (herein "Port"), and TRANSLOGIX, L.L.C., a Washington limited liability company (herein "Vendor").
WHEREAS, the Port provides certain administrative and clerical terminal operation and dock side services to vessel operators transporting vehicles to and from the Port of Richmond; and
WHEREAS, the Port and Vendor desire that Vendor provide such services as an independent contractor for and on behalf of the Port on the terms and conditions of this Agreement.
Now, therefore, the parties hereto agree as follows:
1. SERVICES OF VENDOR.
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Vendor shall provide certain administrative and clerical terminal operation and dock side services as related to the unloading and loading of vehicles from incoming and outgoing vessels at the terminal facility provided by the Port for such services ("Terminal Facility"). Vendor warrants that all services under this Agreement will be provided in a competent, professional and satisfactory manner in accordance with the standards prevalent for similar vendors.
1.2 Compliance with Law. All services rendered under this Agreement shall be furnished in accordance with all ordinances, resolutions, statutes, rules and regulations of any federal, state or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Vendor shall obtain at its sole cost; and expense such licenses, permits and approvals as may be required by law for the performance of this Agreement. Vendor shall also have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Vendor's performance of this Agreement.
1.4 Care of Work. Vendor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the vehicles and other materials and components thereof in its care, custody, control or possession to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by Port, except such losses or damages as may be caused by the negligence or willful misconduct of 1 - MARINE TERMINAL OPERATING AGREEMENT
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2. COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, Vendor shall be compensated, directly by vessel operators off-loading vehicles for processing at the Port, at a rate, per vehicle, as mutually agreed to by Vendor and said vessel operators and as approved by the Port. Deducted from the compensation collected from the vessel operators, on a per vehicle basis, shall be a charge of (a) Two and 50/100 Dollars ($2.50) with respect to HONDA or ACURA vehicles or other vehicles manufactured by Honda Motor Co., or (b) Three and No/100 Dollars ($3.00) with respect to any other vehicles. Such charge shall be then payable to the Port.
3. PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Force Majeure. The time period for performance under this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the party seeking the delay, including, but not restricted to, acts of God or of the public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, and acts of any governmental agency, if the party seeking the delay shall within fifteen (15) days of the commencement of such delay notify the other party in writing of the causes of the delay. The time for performance shall then be extended retroactively for the period of the enforced delay.
3.3 Term. Unless and until terminated in accordance with Section 8.6 or 8.7 of this Agreement, the term of this Agreement shall run concurrently with the term of the lease agreement between the City of Richmond, as lessor, and Auto Warehousing Co., as lessee, for the operation of the auto processing facility..
4. COORDINATION OF WORK
4.1 Representative of Vendor. The following representative of Vendor is hereby designated as being the representative of Vendor authorized to act on its behalf with respect to the work specified herein and make all decisions in connection therewith: Marek Bocian. Either Colton McMillan or Jim Strong shall be Vendor's representative at times when Marek Bocian is unavailable. The foregoing representative(s) shall be responsible during the term of this Agreement for directing all activities of Vendor and devoting sufficient time to personally supervise the services hereunder. The foregoing representatives) may be changed by Vendor only upon prior written notice to the Port.
Contract Officer. The Contract Officer shall be such person as may be designated by Port. It shall be Vendor's responsibility to assure that the Contract Officer is kept, informed of the progress of the performance of the services and Vendor shall refer any decisions which must be made by Port to the Contract Officer. Initially, Port designates its Contract Officer for day-to-day operational matters to be Tom Wilson. Port designates its Contract Officer for contractual and compensation matters to be Jim Matzorkis.
4.3 Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Vendor, its officers, agents, employees' and 2 - MARINE TERMINAL OPERATING AGREEMENT
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subcontractors were a substantial inducement for Port to enter into this Agreement. Therefore, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of Port. Unless specifically stated to the contrary in any written consent to any assignment, no assignment will release or discharge Vendor from any duty or responsibility under this Agreement. Notwithstanding the foregoing, Port understands that Vendor shall use certain subcontractor suppliers for service and materials in the performance of this Agreement. In such instances, Vendor shall be as fully responsible to Port for the acts and omissions of its subcontractors) as it is for the acts and omissions of persons it directly employs. Nothing contained in this Agreement shall create any contractual relationship between any subcontractor and Port.
4.4 Independent Contractor. Vendor shall perform all services required herein as an independent contractor of Port and shall remain at all times as to Port, a wholly independent contractor with only such obligations as are consistent with that role. Vendor shall not at any time or in any manner represent that it orany of its officers, agents, subcontractors or employees are agents or employees of Port.
5. INSURANCE AND INDEMNIFICATION
5.1 Insurance. Vendor shall procure and maintain for the duration of the Agreement the insurance requirements set forth in Exhibit B attached hereto and incorporated herein by this reference.
5.2 Indemnification. Vendor shall defend, indemnify and hold harmless Port and Surplus Property Authority of the Port of Richmond ("SPA"), their officers, agents and employees, from and against any and all actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death of person(s), for damages to property (including property owned by Port and/or SPA), and for errors and omissions caused by Vendor, its officers, agents, subcontractors, suppliers and employees, arising out of or related to Vendor's performance under this Agreement, including Vendor's handling, storage, discharge, transportation or disposal of Hazardous Substances, as defined herein. Without limitation of the foregoing, Vendor further indemnifies Port and SPA, their officers, agents and employees from all indemnified losses, costs and expenses which fall within the deductible on any and all insurance carried by Vendor.
As used in this Agreement, "Hazardous Substances" shall mean such substances, materials, wastes, pollutants, oils, or regulated substances, or contaminants as are defined or designated as, hazardous, toxic, radioactive, dangerous, or any other similar term in or under any Environmental Law, and shall specifically include asbestos and asbestos-containing materials, petroleum products, including' crude oil or any fraction thereof, and urea' formaldehyde, or any other substance (covered by Environmental Law) that, because of its quantity, concentration, or physical, chemical or infectious characteristics, may cause or threaten a present or potential hazard to human health or the environment. As used herein, "Environmental Law" shall include any and all federal, state, and local statutes, regulations, rules, ordinances, orders or permits now or hereafter in effect, as the same may be amended from time to time, which govern Hazardous Substances or relate to the protection of human health or the environment and which apply to any activity of either party on the Terminal 3 - MARINE TERMINAL OPERATING AGREEMENT
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Facility as defined in Section 1.1 above, including but not limited to, the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. §6901 et seq.); the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C. §9601, et seq.); the Toxic Substances Control Act (15 U.S.C. §2601, et seq.); Superfund Amendment and Reauthorization Act of 1986 (SARA) (P,L, 99-499, October 17, 1986); the Solid Waste Disposal Act (42 U.S.C. 3251, et seq.); the Federal Fungicide and Rodenticide Act/Pesticide Act (7 U.S.C. §13 et seq.); the Clean Air Act (42 U.S.C. §7401 et seq.); the Clean Water Act (33 U.S.C. § 1251 et seq.); the Oil Pollution Control Act of 1990(33 U.S.C. §2761 et seq.); any similar or equivalent laws; and any implementing laws, regulations, rules, and ordinances. Such damages, costs, liabilities and expenses shall include such as are determined to be owed by any regulating and administering agency.
The provisions of this Section shall survive any termination or expiration of this Agreement.
5.3 Environmental.
(a) Vendor shall comply with all applicable Environmental Laws related to Vendor's activities at the Terminal Facility. In connection with Vendor's activities at the Terminal Facility, Vendor shall take measures to minimize the potential for pollutants to enter the San Francisco Bay and/or Port of Richmond's storm water drainage system. The targeted pollutants include heavy metals, toxic materials, floatable materials, oxygen demanding substances (e.g. plant debris, street litter and organic substances), oil and grease, bacteria and viruses, sediment, and nutrients (e.g. nitrogen and phosphorous). Theses measures shall pertain to the extent related to Vendor's activities at the Terminal Facility, and shall include, but not be limited to, taking all steps reasonably necessary in:
(1) Preventing fuel spills and leaks and reducing the impact to storm water by not topping off fuel tanks; using secondary containment when transferring fuel from tanker trucks to fuel tanks; using absorbent material on small spills and for general cleaning rather than hosing; carrying out all Environmental Laws regarding underground storage tanks or installing above ground tanks; fueling mobile equipment at designated fueling areas; and designing fueling areas to prevent the run-on of storm water and the run-off of spills. "Secondary containment" means a back-up system that prevents the spread of pollutants should any spill, leak or otherwise escape.
(2) Preventing the discharge of pollutants to storm water from vehicle, boat and equipment maintenance and repair by containing waste oil under cover with absorbent material under each container; keeping drip pans or containers under the areas that might drip pollutants; using a vehicle maintenance area designed to prevent storm water pollution; cleaning storm drain inlets regularly, especially after large storms; not pouring materials down storm drains; dry sweeping instead of hosing down work areas; storing idle equipment under cover, switching to non-toxic chemicals for maintenance when possible; cleaning small spills with rags and larger spills with absorbent materials; and minimizing the use of solvents. 4 - MARINE TERMINAL OPERATING AGREEMENT
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(3) Preventing the discharge of pollutants to storm water from outdoor equipment and operations by reducing the amount of waste created; enclosing or covering all or some of the equipment; and installing secondary containment. (4) Preventing the discharge of pollutants to storm water from vehicle and equipment washing and steam cleaning by maintaining designated wash areas, preferably covered, to prevent contact with storm water; and not permitting any wash water to enter the storm drains.
Preventing the discharge of pollutants to storm water from outdoor loading/unloading of materials by parking tank trucks or delivery vehicles so that spills or leaks can be contained; covering the loading and unloading docks to reduce exposure of materials to rain; and using drip pans under hoses.
(6) Preventing the discharge of pollutants to storm water from outdoor storage areas by installing appropriate safeguards against accidental release; installing secondary containment where reasonably required; conducting regular inspections. (7) Protecting materials from rainfall run-on, run-off and wind dispersal by storing materials indoors; complying with specific Environmental Laws regarding storage of oil and hazardous material; enclosing or covering materials; periodically sweeping parking lots or other surfaces near bulk material storage areas to remove debris blown or washed from storage areas; and installing pellet traps at storm water discharge points where plastic pellets are loaded and unloaded.
(8) Preventing the discharge of pollutants to storm water from waste handling and disposal by tracking waste generation, storage, and disposal; reducing waste generation and disposal through source reductions, reuse and recycling; preventing run-on and run-off from waste management areas; and covering dumpsters and garbage cans during the rainy season. (9) Preventing the discharge of pollutants to storm water from contaminated or erodible surface areas by leaving as much vegetation on-site as reasonably possible; minimizing soil exposure; stabilizing exposed soils; and preventing storm water run-on and run- off.
(10) Preventing the discharge of pollutants to storm water from buildings and grounds maintenance by washing and cleaning up with as little water as reasonably possible; preventing and cleaning up spills immediately; and keeping debris from entering the storm drains.
(11) Preventing the discharge of pollutants to storm water from building repair, remodeling, and construction by using appropriate containment and erosion controls; and enclosing or covering building material storage areas.
(12) Preventing the discharge of pollutants to storm water and receiving waters from over water activities by minimizing over water maintenance; limiting over water hull surface maintenance to sanding and minor painting; not spray painting vessels while they are on the water; avoid washing down boats with soap and detergent; using phosphate-free and biodegradable detergent for hull washing; keeping organic and inorganic wastes out of the water; 5 - MARINE TERMINAL OPERATING AGREEMENT
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and cleaning up spills and wastes immediately. "Over water activities" refers to activities undertaken by Vendor on the waters of San Francisco Bay or waters flowing into San Francisco Bay.
(13) Preventing the discharge of pollutants to storm water by using ground cloths when painting boats on land; using tarps, plastic sheeting, or other material to contain spray paint and blasting sand; properly disposing of surface paint chips, used blasting sand, residual paints, and other material; and sweeping any dry-docks before flooding them.
Notwithstanding anything in this Agreement to the contrary, Vendor shall have no liability or obligation with respect Hazardous Substances which are present on the Effective Date or are subsequently introduced by SPA or PORT, their respective tenants, subtenants or licensees, or the employees, contractors and agents of any of the foregoing.
6. Records and Reports
6.1 Reports. Vendor shall periodically prepare and submit to Port such reports concerning the performance of this Agreement as Port shall reasonably require, including but not limited to dockage reports.
6.2 Records. Vendor shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable Port to evaluate the performance of, and charges for, such services. Such records shall include, but not be limited to, documentation of payments to Port in accordance with Section 2 of the Agreement. Such records shall be maintained by Vendor for seven (7) years following the close of the year to which they pertain.
7. Lawful Conduct
Conduct. Vendor shall obey and observe and shall use due diligence to require all persons entering upon the Terminal Facility to obey and observe all terms of this Agreement, all laws of the United States, and all applicable orders, regulations and rules and requirements adopted from time to time by the Maritime Administration, the Department of Homeland Security or by any other department or agency of the government of the United States and all applicable laws, orders, rules, regulations, ordinances and requirements adopted by state, municipal or harbor authorities relating to the use of the Terminal Facility (but not the condition thereof unless required by the terms of this Agreement) and appurtenant facilities, including but not limited to, laws, orders, rules, regulations, ordinances and requirements with respect to health, fire, police, environment and pollution. To the extent required by the City of Richmond's ordinances, this obligation shall include, without limitation, the duty to abide by all legal requirements of the City of Richmond's Living Wage Ordinance (Richmond Municipal Code Chapter 2.60) which is incorporated into this Agreement by this reference and Sections 1770 et seq. of the California Labor Code and regulations issued pursuant thereto. Vendor shall indemnify, hold harmless and defend (with counsel reasonably acceptable to City of Richmond, Port and the SPA) the City of Richmond, Port and SPA against any claims or claims, losses, liabilities, damages (direct or consequential), compensation, fines, penalties, causes of action, administrative and judicial proceedings and orders, judgments, remedial action or requirements, enforcement actions of any kind, and all costs and expenses incurred therewith (including but not limited to attorneys' fees and costs) or other amounts arising out of the failure or alleged failure of any person or entity (including Vendor, its contractor and subcontractors) to pay prevailing 6 - MARINE TERMINAL OPERATING AGREEMENT
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wages as determined pursuant to Labor Code Section 1720 et seq. and implementing regulation or comply with the other applicable provisions of Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations as and when required under this Agreement or applicable law.
ENFORCEMENT OF AGREEMENT
8.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Contra Costa, State of California, or any other appropriate court in such county, and Vendor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
8.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefore.
The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such dispute within five (5) days of service of such notice and completes the cure of such dispute within five (5) days after service of the notice, or such longer period as may be permitted in writing by the injured party. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit Port's right to terminate this Agreement without cause pursuant to Section 8.6.
8.3 Waiver. No delay or omission in the exercise of any right or remedy of a non- defaulting party on any default shall impair such right or remedy or be construed as a waiver.
Port's consent or approval of any act by Vendor requiring Port's consent or approval shall not be deemed to waive or render unnecessary Port's consent to or approval of any subsequent act of Vendor. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
8.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of the other rights or remedies for the same default or any other default by the other party.
8.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
8.6 Termination of Auto Facility Lease. Each party reserves the right to terminate this Agreement, upon prior written notice to the other party, at any time after the termination of the lease agreement between the City of Richmond, as lessor, and Auto Warehousing Co., as lessee, for the operation of the auto processing facility. Upon the effective date of termination, Vendor shall immediately (a) cease all activities hereunder and remove its personnel and property from the Terminal Facility, and (b) deliver all work, materials, locator lists, and other Port property to Port. Vendor shall be entitled to compensation in accordance 7 - MARINE TERMINAL OPERATING AGREEMENT
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with Section 2 of the Agreement for all services rendered prior to the effective date of termination.
8.7 Termination for Default of Vendor. If termination is due to failure of Vendor to fulfill its obligations under this Agreement, Port may, after compliance with the provisions of Section 8.2, terminate the Agreement immediately by sending written notice thereof to Vendor as provided in Section 10.1. Further, Port may take over the work and prosecute the same to completion by contract or otherwise, and Vendor shall be liable to the extent the total cost for completion of Vendor's obligations hereunder exceeds the compensation herein stipulated (provided that Port shall use reasonable efforts to mitigate such damages) and Port may withhold any payments to Vendor for the purpose of setoff or partial payment of such amounts. Upon the effective date of termination, Vendor shall immediately (a) cease all activities hereunder and remove its personnel and property from the Terminal Facility; and (b) deliver all work, materials, locator lists, and other Port property to Port.
9. OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
9.1Non-liability of Officers and Employees. No officer or employee of either party shall be personally liable to the other party, or any successor in interest, in the event of any default or breach by a party or for any amount which may become due to the other party or to its successor, or for breach of any obligation of the terms of this Agreement.
9.2 Covenants against Discrimination. Vendor covenants that, by and for itself, its successors and assigns, and all persons claiming under or through them, that there will be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the performance of this Agreement.
10. MISCELLANEOUS PROVISIONS
10.1 Notice. Any notice, demand, request, consent, approval or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail or overnight delivery to the address set forth below. Either party may change its address by notifying the other party of the change of address in of receipt by the individual addressee is-received.
To: Port of Richmond
City Hall
P.O. Box 4046
Richmond, California 94804
Attention: Executive Director
James C. Matzorkis
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With a copy to: City Attorney
City Hall
P.O. Box 4046
Civic Center Plaza
Richmond, California 94804
To Vendor: Translogix, L.L.C.
2810 Marshall Ave., #B
Tacoma, WA 98421
Attention: Steve Seher
With a copy to: Dennis A. Ostgard
Schwabe, Williamson & Wyatt, P.C.
U.S. Bank Centre, Suite 3010
1420 Fifth Avenue
Seattle, WA 98101
10.2 Integrated Agreement. This Agreement contains all of the agreements of the parties, supersedes any and all other prior agreements, whether oral or in writing, between the parties, and cannot be amended or modified except by a written amendment (designated as such) signed by duty authorized representatives of each party.
10.3 Severability. If any term or provision of this Agreement, or the application thereof to any person or circumstance, shall be contrary to law or shall be adjudged by any court or government agency of competent jurisdiction to be invalid, void or unenforceable, such term or provision shall be deemed deleted from this Agreement and the remaining provisions and any application thereof shall continue in full force and effect. Further, the parties agree to substitute for such invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision.
10.4 Captions. The captions of the Sections of this Agreement are for reference only and are not to be construed in any way as part of this Agreement.
10.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement.
10.6 Multiple Originals; Counterparts. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. [ Signatures on following pages. ]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date stated in the opening paragraph of page 1.
PORT OF RICHMOND, a California municipal
corporation
ATTEST:
Diase Holmes > C. Mana
By:
Executive Director
City Clerk James C. Matzorkis
Reviewed by:
beyon
ort Attorney
TRANSLOGIX, L.L.C., a Washington limited
liability company
ATTEST:
By:
Secretary Stephen L. Seher, Mananger
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date stated in the opening paragraph of page 1.
PORT OF RICHMOND, a California municipal
corporation
ATTEST:
By:
Executive Director
City Clerk James C. Matzorkis
Reviewed by:
Port Attorney
TRANSLOGIX, L.L.C., a Washington limited
liability company
ATTEST:
Secretary Stephen L. Seher, Mananger
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Exhibit A
SCOPE OF SERVICES
Vendor shall provide the following operation and dock side services for Port at the Terminal Facility as described in Section 1.1, including, but not limited to, the management, supervision and administration of experience labor necessary for the, following services:
ROUTINE SERVICES
1. Plan and designate the first place of rest for incoming import on a vessel-by- vessel basis.
2. Control the flow of vehicles to the first place of rest on the dock, for import or export, segregated as needed for distribution. Vendor's Routine Services charges are based on up to four (4) segregation sorts per vessel.
3. Vendor may bill/invoice ocean carriers delivering vehicles to Port for service and facility charges and/or terminal fees on a vessel-by-vessel basis for Vendor's own account.
Vendor shall not be required to bill/invoice wharfage charges, as Port has already assigned such responsibility to a third party.
INGRESS AND EGRESS
For the specific purpose of providing the services required by this Agreement Vendor, its agents, employees, suppliers of service and furnishers of materials, shall have the right to ingress and egress to and from the Terminal Facility and the vehicle processing facility at the Port of Richmond. Ingress and egress to and from the Terminal Facility or the vehicle processing facility for any other purpose shall require Port's prior written consent.
REPAIRS AND MAINTENANCE
Vendor shall keep the berthing facilities at Berths 6 and 7 (including the supporting pier structure, deck surface and berth areas, the "Wharves") free of debris and in a reasonably neat and clean condition. Vendor shall sweep the Wharves and remove therefrom snow, ice, debris and obstructions as reasonably necessary for operations. Vendor shall maintain the IL WU building in the same state of repair as exists upon the Effective Date, except for ordinary wear and tear or damage or destruction by fire, earthquake, flood or other casualty or by eminent domain. Except as otherwise provided herein, the Port shall have responsibility for repair and maintenance of the Wharves. 11 - MARINE TERMINAL OPERATING AGREEMENT - EXHIBIT A
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Exhibit B
INSURANCE REQUIREMENTS
Vendor shall procure and maintain in force (or cause to be procured and maintained in force), at its sole cost throughout the term of this Agreement the following insurance:
(a) Commercial General Liability Insurance, at least as broad as ISO CG 0001 1001 or successor form, which shall provide protection against claims arising from property damage and personal and bodily injury, including death resulting therefrom, arising out of Vendor's operations at the Port of Richmond. In addition, AWC's Commercial General Liability Insurance shall:
be written on an occurrence basis (if available) with a minimum combined single limit of not less than five million dollars ($5,000,000.00); (ii) include coverage for products and completed operations; (iii) include contractual liability coverage for liabilities assumed under this Agreement for claims insured under the policy arising out of personal injury, as well as bodily injury and property damage;
(iv) include an endorsement naming both Port and the SPA, their officers, directors, as additional insureds on ISO form CG 2011.
Workers' Compensation Insurance as required by applicable law. In the event AWC is self-insured for Workers' Compensation Insurance, AWC shall furnish a current Certificate of Permission to Self-Insure signed by the Department of Insurance, Division of Worker's Compensation. Employer's Liability Insurance with policy limits of not less than five million dollars ($5,000,000.00) per occurrence for bodily injury by accident or disease.
Commercial Auto Liability Insurance with a combined limit of not less than five million dollars ($5,000,000.00) for bodily injury and property damage per accident, covering liability arising out of any auto (including owned, hired and non-owned autos). 2 Port shall procure and maintain in force (or cause to be procured and maintained in force) at its sole cost and expense throughout the Term of this Agreement property insurance on the Wharves (including but not limited to the supporting pier or structure and deck surface).
Such property insurance shall be written on an All-Risk basis excluding earthquake and flood coverage, and such policy shall be written on an ISO Special Form, or its functional equivalent. for the full replacement cost to then current ordinances and laws. Vendor shall be included as an insured under the Port's property insurance as its interests may appear. 3 The policies described in Sections 1 and 2 of these Insurance Requirements shall all comply with the following general requirements:
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(d) All required coverage shall be issued by insurance companies with minimum A.M. Best ratings of A- and VIII and shall be under forms of policies reasonably satisfactory in all respects to Port's counsel.
(e) All required liability policies described in Section 1 shall provide that coverage shall be primary; no insurance maintained by Port shall be called upon to contribute with any other insurance coverage that covers losses suffered by AWC or any subtenant, and that coverage shall not be canceled or materially changed without at least thirty (30) days written notice to Port.
(f) All required policies shall provide, or shall be endorsed to provide that the carrier waives its rights of subrogation against Port and Vendor; Any deductibles or self-insurance retentions of more than $50,000 must, in advance, be declared to and approved in writing by counsel for Port and Vendor, whose approval shall not be unreasonably withheld; provided however, Port may increase its general liability self-insurance retention upon notice to Vendor to an amount not exceeding $500,000 so long as the Port maintains fully funded reserves in the amount of such self-insurance that are dedicated and available to the Port with respect to claims for which Port's liability insurance is primary. If approval of Port's counsel is reasonably withheld, the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects Port, its officials, employees, agents and volunteers, or Vendor shall provide a financial guarantee satisfactory to Port guaranteeing payment of the deductible or self-insured portion of losses and related investigations, claim administration and defense expenses under Vendor's liability insurance with respect to claims for which Vendor's liability insurance coverage is primary. (h) Each party shall deliver to the other, immediately prior to this Agreement going into effect, and thereafter within thirty (30) days of expiration of each such policy required hereunder, certificates of insurance evidencing the coverages required to be provided by such party under this Agreement clearly and fully showing insurance in full compliance with such party's obligations hereunder, together with satisfactory evidence of the payment of the premiums therefor. Each party shall also direct all of its present and future insurance brokers and insurance providers to cooperate with and promptly provide each other party with all information necessary to document full compliance with the terms of Sections 1 and 2 of these Insurance Requirements and to provide such documentation in such a manner as to be binding upon the insurers.
(i) Each party shall pay the premiums for maintaining the insurance required to be provided by it when due. If such party fails to obtain such insurance or to pay the premiums therefor, any other party may, (but shall not be obligated to) if necessary to avoid a lapse in coverage, make such payment, or carry such policy. The amount of premium paid therefore, plus interest at the rate of eight percent (8%) per annum, shall forthwith be reimbursed to the party making such payment by the party responsible for maintaining the insurance. ) On the fifth anniversary of the Effective Date, and thereafter not more frequently than every five years during the Term of this Agreement, if in the opinion of any party, the insurance coverage carried by the other party (or stipulated value of improvements 13 - MARINE TERMINAL OPERATING AGREEMENT - EXHIBIT B
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insured under any property policy) at that time is not adequate, taking into consideration the standard for commercial operations of a similar nature, such other party shall notify the other party of its concern for alternate insurance requirements. Each party shall meet to discuss such concerns and if changes are mutually agreed upon, such agreement shall be placed in writing as an amendment to this Agreement.
(k) Any failure by a party to maintain the required insurance will constitute an event of default under this Agreement.
(1) If any party fails to procure and maintain any of the insurance required of it by this Agreement, such party shall indemnify the other parties to the extent such other party suffers or incurs loss, damage, liability or expense which would not have been suffered or incurred except for such failure.
4 Port hereby releases (and shall cause SPA to release in writing) Vendor, any parent or subsidiary corporation of Vendor, and their officers, directors, agents, and employees from any and all liability and waive SPA's and Port's rights of recovery against Vendor, any parent or subsidiary corporation of Vendor, subtenant, and their respective officers, directors, agents and employees, for any loss or damage to SPA's and/or Port's property resulting from any hazard insurable under the form of insurance policy which SPA and/or Port agrees to carry under this Agreement and/or actually carries and SPA and Port hereby waives the subrogation rights of their insurance carriers (including "self-insurance") under any policies of insurance providing coverage against loss or damage to the property of SPA and Port on or about the Premises. Port shall take such steps as are necessary to inform its insurance carriers of this provision and to have endorsements, if necessary, placed on said insurance policies to carry into effect the provisions of this paragraph.
5 Vendor hereby releases SPA, Port, any parent or subsidiary corporation of SPA, Port, and their officers, directors, agents, and employees from any and all liability and waives Vendor's right of recovery against SPA or Port, any parent or subsidiary corporation of SPA or Port, and their officers, directors, agents and employees, for any loss or damage to Vendor's property resulting from any hazard insurable under the form of insurance policy which Vendor agrees to carry under this Agreement, and Vendor hereby waives the subrogation rights of its insurance carriers (including "self-insurance") under any policies of insurance providing coverage against loss or damage to the property of Vendor on or about the Premises. Vendor shall take such steps as are necessary to inform its insurance carriers of this provision and to have endorsements, if necessary, placed on said insurance policies to carry into effect the provisions of this paragraph.
14 - MARINE TERMINAL OPERATING AGREEMENT - EXHIBIT B
PDX/000528/141187/DAO/2237651.11