WITH THE PROJECT SCHEDULE
OR (III) CONTRACTOR'S ABILITY TO PERFORM ANY MATERIAL OBLIGATION UNDER THIS
AGREEMENT; PROVIDED THAT CONTRACTOR COMPLIES WITH THE REQUIREMENTS SET FORTH IN
SECTIONS 6.2, 6.5 AND 6.9.
B.
UPON AND FROM THE OCCURRENCE OF
SUBSTANTIAL COMPLETION, OWNER SHALL ASSUME CARE, CUSTODY AND CONTROL OF THE
FACILITY AND SHALL BEAR THE FULL RISK OF PHYSICAL LOSS AND DAMAGE TO THE WORK
AND THE FACILITY; PROVIDED, HOWEVER, NOTWITHSTANDING THE FOREGOING, CONTRACTOR
SHALL REMAIN FULLY RESPONSIBLE AND LIABLE TO OWNER FOR ITS WARRANTY AND
CORRECTIVE WORK OBLIGATIONS UNDER THIS AGREEMENT.
Article 9
INSURANCE AND LETTER OF CREDIT
9.1
INSURANCE.
A.
PROVISION OF INSURANCE.
THE PARTIES SHALL
PROVIDE THE INSURANCE AS SPECIFIED IN ATTACHMENT O ON TERMS AND CONDITIONS
STATED THEREIN.
B.
NO CANCELLATION.
ALL POLICIES PROVIDING
COVERAGE HEREUNDER SHALL CONTAIN A PROVISION THAT AT LEAST THIRTY (30) DAYS'
PRIOR WRITTEN NOTICE SHALL BE GIVEN TO THE NON-PROCURING PARTIES AND ADDITIONAL
INSUREDS PRIOR TO CANCELLATION, NON-RENEWAL OR MATERIAL CHANGE IN THE COVERAGE.
C.
OBLIGATIONS NOT RELIEVED.
ANYTHING IN
THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE OCCURRENCE OF ANY OF THE
FOLLOWING SHALL IN NO WAY RELIEVE CONTRACTOR FROM ANY OF ITS OBLIGATIONS UNDER
THIS AGREEMENT: (I) FAILURE BY CONTRACTOR TO SECURE OR MAINTAIN THE INSURANCE
COVERAGE REQUIRED HEREUNDER; (II) FAILURE BY CONTRACTOR TO COMPLY FULLY WITH ANY
OF THE INSURANCE PROVISIONS OF THIS AGREEMENT; (III) FAILURE BY CONTRACTOR TO
SECURE SUCH ENDORSEMENTS ON THE POLICIES AS MAY BE NECESSARY TO CARRY OUT THE
TERMS AND PROVISIONS OF THIS AGREEMENT; (IV) THE INSOLVENCY, BANKRUPTCY OR
FAILURE OF ANY INSURANCE COMPANY PROVIDING INSURANCE TO CONTRACTOR; OR (V)
FAILURE OF ANY INSURANCE COMPANY TO PAY ANY CLAIM ACCRUING UNDER ITS POLICY.
D.
FAILURE TO PROVIDE INSURANCE.
IF ANY
PARTY FAILS TO PROVIDE OR MAINTAIN INSURANCE AS REQUIRED HEREIN, AND FAILS TO
CURE SUCH FAILURE WITHIN FOURTEEN (14) DAYS OF RECEIVING NOTICE OF SUCH FAILURE
(PROVIDED THAT SUCH FOURTEEN (14) DAY CURE PERIOD FALLS WITHIN THE APPLICABLE
SIXTY (60) DAY NOTICE PERIOD REQUIRED UNDER SECTION 2 OF ATTACHMENT O), THE
OTHER PARTY SHALL HAVE THE RIGHT BUT NOT THE OBLIGATION TO PURCHASE SUCH
INSURANCE AND SHALL BE ENTITLED TO RECOVER THE INSURANCE PREMIUM REASONABLY PAID
IN RESPECT OF SUCH INSURANCE FROM THE OTHER PARTY IN ACCORDANCE WITH THIS
AGREEMENT; PROVIDED THAT, PRIOR TO EXECUTION OF A CHANGE ORDER IN ACCORDANCE
WITH SECTION 7.1B FOR ANY ADDITIONAL AMOUNTS
57
OWED FOR THE PROJECT INSURANCES, OWNER SHALL NOT BE ENTITLED TO RECOVER FROM
CONTRACTOR ANY INSURANCE PREMIUMS PAID BY OWNER WITH RESPECT TO ANY AMOUNTS IN
EXCESS OF THE INSURANCE ALLOWANCE FOR PROJECT INSURANCES.
E.
UNAVAILABLE INSURANCE.
IF ANY INSURANCE
(INCLUDING THE LIMITS OR DEDUCTIBLES THEREOF) HEREBY REQUIRED TO BE MAINTAINED,
OTHER THAN INSURANCE REQUIRED BY APPLICABLE LAW TO BE MAINTAINED, SHALL NOT BE
REASONABLY AVAILABLE IN THE COMMERCIAL INSURANCE MARKET, OWNER AND CONTRACTOR
SHALL NOT UNREASONABLY WITHHOLD THEIR AGREEMENT TO WAIVE SUCH REQUIREMENT TO THE
EXTENT THAT MAINTENANCE THEREOF IS NOT SO AVAILABLE; PROVIDED, HOWEVER, THAT THE
PARTY SHALL FIRST REQUEST ANY SUCH WAIVER