§ 57-06 Assumption of Risk, Indemnification, and Insurance.
(a) Assumption of Risk. The permittee and contractor assume the risk of, and shall be responsible for any loss or damage to property of the City of New York or the Water Board, arising out of or in any way related to operations for which the Department has issued a permit.
(b) Indemnification. The permittee and the contractor shall defend, indemnify, and hold harmless the City of New York and the Water Board, including their respective officials and employees, against any and all claims, liens, demands, judgments, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature (including, without limitation, attorneys' fees and disbursements), known or unknown, contingent or otherwise, allegedly arising out of or in any way related to operations for which the Department has issued a permit and/or the permittee's and/or contractor's failure to comply with any of the requirements set forth herein or law. Insofar as the facts and law would preclude the City of New York, Water Board, or their respective officials and employees from being completely indemnified by the permittee and contractor, the City of New York and the Water Board, including their respective officials and employees, shall be partially indemnified by the permittee and contractor to the fullest extent permitted by law.
(c) Insurance.
(1) Workers' Compensation, Employers' Liability, Disability Benefits, and Paid Family Leave Benefits Insurance.
(i) The permittee must maintain workers' compensation insurance, employers' liability insurance, disability benefits insurance, and paid family leave benefits insurance in accordance with the laws of the State of New York on behalf of, or in regard to, all employees engaged in operations under the permit.
(ii) The permittee shall submit proof of its workers' compensation insurance, disability benefits insurance, and paid family leave benefits insurance or a Certificate of Attestation of Exemption to the Department in a form approved by the New York State Workers' Compensation Board. ACORD forms are not acceptable proof of such insurance. The following forms are acceptable:
• Form C-105.2, Certificate of Workers' Compensation Insurance;
• Form U-26.3, State Insurance Fund Certificate of Workers' Compensation Insurance;
• Form SI-12, Certificate of Workers' Compensation Self- Insurance;
• Form GSI-105.2, Certificate of Participation in Workers' Compensation Group Self-Insurance;
• Form DB-120.1, Certificate of Disability and Paid Family Leave Benefits Insurance;
• Form DB-120.2, Certificate of Participation in Disability or Disability and Paid Family Leave Benefits Group Self- Insurance;
• Form DB-155, Certificate of Disability and Paid Family Leave Benefits Self-Insurance;
• Form CE-200, Certificate of Attestation of Exemption from New York State Workers' Compensation and/or Disability and Paid Family Leave Benefits Insurance Coverage; • Other forms approved by the New York State Workers' Compensation Board; or
• Other proof of insurance in a form acceptable to the Department.
(2) Commercial General Liability Insurance.
(i) The permittee must maintain commercial general liability insurance ("CGL") for the operations under this permit. Such insurance must meet the following requirements:
a. Unless otherwise approved by the Department, the CGL limits must be at least twenty million dollars ($20,000,000) per occurrence, one million dollars ($1,000,000) for personal and advertising injury, twenty million dollars ($20,000,000) products/ completed operations coverage, and twenty million dollars ($20,000,000) aggregate on a "per project basis."
i. Such limits may be satisfied by a primary policy or a combination of a primary policy, an umbrella policy, and/or an excess policy, so long as all policies provide the scope of coverage required herein.
ii. The products/completed operations coverage must be maintained for at least three years after the completion of operations under this permit.
b. The CGL policy must be at least as broad as that provided by the most recently issued Insurance Services Office ("ISO") Form CG 00 01 and it must not include any exclusions or limitations other than those incorporated in the standard form. By way of example and not limitation, no CGL and excess/ umbrella policy maintained hereunder shall include the following exclusions:
i. XCU exclusion for property damage from explosion, collapse or underground hazard, or construction defects;
ii. "Labor Law" or other gravity-related injuries exclusions;
iii. independent contractors exclusion;
iv. an insured contract exclusion broader than any contained in the most recent edition of ISO Form CG 00 01;
v. exclusion for work performed in New York City;
vi. exclusion for any of the operations allowed under the permit;
vii. exclusions with respect to the Additional Insureds for claims arising from the permittee's employees or the permittee's contractor's employees.
c. The CGL policy shall be "occurrence" based, not "claims-made."
d. The CGL policy must list the City of New York and the Water Board, including their respective officials and employees ("the Additional Insureds"), with coverage at least as broad as that provided by the most recently issued ISO Form CG 20 26 and CG 20 37.
i. The coverage for the Additional Insureds under ISO Form CG 20 37 must be maintained for at least three years after the completion of operations under this permit.
ii. The Additional Insureds' limits of CGL shall be the greater of (i) the minimum limits set forth in these rules or (ii) the limits provided to the permittee under all primary, excess, and umbrella policies covering operations under a permit.
e. The CGL policy must be "occurrence" based (not "claims-made") and primary and non-contributing to any insurance or self-insurance maintained by the Additional Insureds.
f. The CGL coverage must be provided by a company or companies that may lawfully issue such policy and have an A.M. Best rating of at least A-/"VII," a Standard & Poor's rating of at least A, a Moody's Investors Service rating of at least A3, a Fitch Ratings rating of at least A- or a similar rating by any other nationally recognized statistical rating organization acceptable to the Department unless prior written approval is obtained from the Department.
(ii) If the permittee enters into a contract for any of the work done under the permit, the permittee shall cause its contractor to maintain CGL insurance compliant with this 15 RCNY § 57-06(c), including the requirement that such CGL insurance cover the Additional Insureds.
(iii) Proof of Insurance.
a. The permittee must submit the following proof of its and its contractors' (if any) CGL insurance to the Department: (1) a certificate of liability insurance; (2) a Certification of Insurance Broker or Agency; and (3) the required additional insured endorsement(s) covering ongoing and products/ completed operations.
b. Prior to the expiration of the CGL insurance policy for which proof has been provided, proof of a new or renewal CGL insurance policy in the form required in (c)(2)(iii)a., above, must be provided.
c. Acceptance or approval by the Department of proof of insurance or any other insurance-related document does not waive the permittee's obligation to ensure that insurance fully consistent with the requirements of these rules is maintained, nor does it relieve the permittee from liability for its failure to do so.
d. Upon request of the Department, Water Board or the New York City Law Department, the permittee must provide or shall cause its contractor to provide to the City and the Water Board the CGL insurance policy required by this rule.
e. If the permittee or its contractor receives notice, from an insurance company or other person that the CGL policy will expire or be cancelled or terminated (or has expired or has been cancelled or terminated) for any reason, the permittee shall or shall cause its contractor to immediately forward a copy of such notice to the Department. Notwithstanding the abovementioned, the permittee must ensure that there is no interruption in any of the insurance coverage required under these rules.
(iv) Miscellaneous.
a. The Additional Insureds shall not be responsible for the payment of any premiums, deductibles, self-insured retentions, or other costs relating to the insurance required by this section.
b. There must be no self-insurance program.
c. Where a CGL policy, maintained in accordance with these rules, requires a notice of a claim or of an occurrence or an offense that may result in a claim, the permittee must provide and cause its contractors (if any) to provide a written notice to the CGL insurance carriers within the time required by the policy that expressly states that, "this notice is being given on behalf of the City of New York and the New York City Water Board, including their respective officials and employees as Additional Insureds as well as the Named Insureds." Such notice must also contain the following information to the extent known: the number of the insurance policy, the name of the named insured, the date and location of the damage, occurrence, or accident, and the identity of the persons or things injured, damaged, or lost. Simultaneously, a copy of such notice must be sent to the City of New York c/o Insurance Claims Specialist, Affirmative Litigation Division, New York City Law Department, 100 Church Street, New York, NY 10007.
d. The failure to secure and maintain insurance in complete conformity with these rules, or to give the insurance carrier timely notice on behalf of the Additional Insureds, or to do anything else required by these rules will constitute violation of these rules. Such breach is not waived or otherwise excused by any action or inaction by an Additional Insured at any time.
e. Insurance coverage in the minimum amounts provided for in these rules shall not relieve the permittee or contractors of any liability under a permit, nor must it preclude the Additional Insureds from exercising any rights or taking such other actions as are available to it under these rules or the law.
f. In the event of any occurrence or offense that does or can give rise to a claim under the CGL insurance policy required under these rules, the permittee must at all times fully cooperate and must cause its contractors to fully cooperate with the City and the Water Board with regard to such potential or actual claim.
g. Where notice to the Department is required under this 15 RCNY § 57-06, such notice must be in writing and must be sent by certified mail, return receipt requested or by nationally recognized overnight mail courier to the New York City Department of Environmental Protection, Attention: Commissioner, 59-17 Junction Boulevard, Flushing, NY 11373.
(Added City Record 7/22/2019, eff. 8/21/2019)
