Liability Insurance; Indemnity. (a) Tenant shall and hereby does indemnify and hold Landlord harmless from and against any and all claims brought against Landlord by a third party arising from: (i) Tenant’s use of the Premises or the conduct of Tenant’s business or profession therein; (ii) any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises, Common Area, or the Building; (iii) any breach or default in the performance of any obligation on Tenant’s part to be performed under the terms of this Lease; or (iv) any negligent or willful acts or omissions of Tenant, or of Tenant’s agents, employees or contractors, on or about the Premises, Common Area, or the Building. Tenant shall and hereby does further indemnify, defend and hold Landlord harmless from and against all costs, reasonable attorneys’ fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall defend same at Tenant’s expense by counsel reasonably satisfactory to Landlord. Except as set forth in this Lease and subject to Landlord’s obligations hereunder, Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises from any cause other than the negligence or intentional act or omission of a Landlord or its representatives, employees or agents. (b) Landlord shall and hereby does indemnify and hold Tenant harmless from and against any and all claims brought against Tenant by a third party arising from: (i) any breach or default in the performance of any obligation on Landlord’s part to be performed under the terms of this Lease; (ii) the presence of any hazardous materials in or under the Building or Land existing on or before the Commencement Date or introduced by Landlord and/or its employees, contractors, and agents; and (ii) the negligent or willful acts of Landlord, or of Landlord’s agents, employees or contractors, on or about the Premises, Common Area, or the Building. Landlord shall and hereby does further indemnify, defend and hold Tenant harmless from and against all costs, reasonable attorneys’ fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Tenant by reason of any such claim, Landlord, upon notice from Tenant, shall defend same at Landlord’s expense by counsel reasonably satisfactory to Tenant or selected by Landlord’s insurer. The indemnities herein shall survive the termination of this Lease and shall continue in effect until any and all claims, actions or causes of action with respect to any of the matters indemnified against are fully and finally barred by the applicable statute of limitations. In no event shall any of the insurance provisions set forth in this Lease be construed as a limitation on the scope of indemnification set forth herein. (c) Tenant, at Tenant’s expense, agrees to keep in force during the Lease Term: (i) Commercial general liability insurance which insures against claims for bodily injury, personal injury, and property damage based upon, involving, or arising out of the use, occupancy, or maintenance of the Premises and the Building. Such insurance shall afford, at a minimum, the following limits: Each Occurrence $ 1,000,000 General Aggregate $ 4,000,000 Products/Completed Operations Aggregate $ 1,000,000 Personal and Advertising Injury Liability $ 1,000,000 Fire Damage Legal Liability $ 100,000 Medical Payments $ 5,000 Tenant’s commercial general liability insurance shall include Landlord and Landlord’s mortgagees, as additional insureds. This coverage shall be written on the most current ISO CGL form (or its equivalent), shall include contractual liability, premises-operations and products-completed operations and shall contain an exception to any pollution exclusion which insures damage or injury arising out of heat, smoke, or fumes from a hostile fire. Such insurance shall be written on an occurrence basis and contain a standard separation of insureds provision. (ii) Business automobile liability insurance covering owned, hired and non-owned vehicles with minimum limits of $1,000,000 combined single limit per occurrence. (iii) Employer’s liability insurance in an amount not less than $1,000,000. (iv) Workers’ compensation insurance in accordance with Utah law. (v) Umbrella/excess liability insurance, on an occurrence basis, that applies excess of the required commercial general liability, business automobile liability, and employer’s liability policies with the following minimum limits: Each Occurrence: $ 5,000,000 Annual Aggregate: $ 5,000,000 Umbrella/Excess liability policies shall contain an endorsement stating that any entity qualifying as an additional insured on the insurance stated in the Schedule of Underlying Insurance shall be an additional insured on the umbrella/excess liability policies, and that they apply immediately upon exhaustion of the insurance stated in the Schedule of Underlying Insurance as respects the coverage afforded to any additional insured. The umbrella/excess liability policies shall also provide that they apply before any other insurance, whether primary, excess, contingent or on any other basis, available to an additional insured on which the additional insured is a named insured (which shall include any self-insurance), and that the insurer will not seek contribution from such insurance. (vi) Property insurance “the equivalent of causes of loss – special form” including earthquake, windstorm, theft, sprinkler leakage and boiler and machinery coverage on all of Tenant’s trade fixtures, furniture, inventory and other personal property in the Premises, and on any alterations, additions, or improvements made by Tenant upon the Premises all for the full replacement cost thereof. Tenant shall use the proceeds from such insurance for the replacement of trade fixtures, furniture, inventory and other personal property and for the restoration of Tenant’s improvements, alterations, and additions to the Premises. Landlord shall be named as loss payee with respect to alterations, additions, or improvements of the Premises where Tenant cannot remove at the end of the Lease Term wherein ownership then reverts to Landlord. (vii) Business income and extra expense insurance with limits not less than 100% of all income and charges payable by Tenant under this Lease for a period of 12 months. (d) All policies required to be carried by Tenant hereunder shall be issued by an insurance company licensed or authorized to do business in Utah with a rating of at least “A-: X” or better as set forth in the most current issue of Best’s Insurance Reports, unless otherwise approved by Landlord. Tenant shall not do or permit anything to be done that would invalidate the insurance policies required herein. Liability insurance maintained by Tenant shall be primary coverage on behalf of Landlord, its trustees, officers, directors, members, agents, and employees, Landlord’s mortgagees, and Landlord’s representatives and any policies of Landlord, its trustees, officers, directors, members, agents, and employees, Landlord’s mortgagees, and Landlord’s representatives shall be non-contributory. Certificates of insurance, acceptable to Landlord, evidencing the existence and amount of each insurance policy required hereunder shall be delivered to Landlord prior to delivery or possession of the Premises and 10 days following each renewal date. Certificates of insurance shall evidence that Landlord and Landlord’s mortgagees are included as additional insureds on liability policies so long as the names of such parties are provided to Tenant and that Landlord is included as loss payee on the property insurance as stated in subparagraph (c)(vi) above. In the event that Tenant fails to provide evidence of insurance required to be provided by Tenant in this Lease, prior to the Tenant’s entry upon the Premises for purposes of completing Tenant’s improvements prior to the Commencement Date and thereafter during the Term, within 10 days following Landlord’s request thereof, and 30 days prior to the expiration of any such coverage, Landlord shall be authorized (but not required) to procure such coverage in the amount stated with all costs thereof to be chargeable to Tenant and payable upon written invoice thereof. The limits of insurance required by this Lease, or as carried by Tenant, shall not limit the liability of Tenant or relieve Tenant of any obligation thereunder, except to the extent otherwise provided for herein. Any deductibles selected by Tenant shall be the sole responsibility of Tenant. Tenant insurance requirements stipulated in Paragraph 10 are based upon current industry standards. Landlord reserves the right to require additional coverage or to increase limits as industry standards change. (e) Should Tenant engage the services of any contractor or subcontractor to perform work in the Premises, Tenant shall ensure that such party complies with the requirements of this Paragraph 10 and carries commercial general liability, business automobile liability, umbrella/excess liability, worker’s compensation and employer’s liability coverages in substantially the same forms as required of the Tenant under this Lease and in amounts approved by landlord and/or landlord’s property manager. (f) Landlord shall procure and maintain the following, the cost of which shall be included in the Building Expenses: (i) Property insurance “the equivalent of causes of loss – special form” on the Building. Landlord shall not be obligated to insure any of Tenant’s Property or other furniture, equipment, trade fixtures, machinery, goods, or supplies which Tenant may keep or maintain in the Premises or any alteration, addition, or improvement which Tenant may make upon the Premises. In addition, Landlord may elect to secure and maintain rental income insurance. If the annual cost to Landlord for such property or rental income insurance exceeds the standard rates because of the nature of Tenant’s operations, Tenant shall, upon receipt of appropriate invoices, reimburse Landlord for such increased cost. (ii) Commercial general liability insurance, which shall be in addition to, and not in lieu of, insurance required to be maintained by Tenant. Tenant shall not be included as an additional insured on any policy of liability insurance maintained by Landlord. (g) Landlord waives any and all rights of recovery against Tenant for or arising out of damage to, or destruction of the Premises to the extent that Landlord’s property insurance policies then in force insure against such damage or destruction and permit such waiver and only to the extent of insurance proceeds actually received by Landlord for such damage or destruction. Tenant waives any and all rights of recovery against Landlord for or arising out of damage to or destruction of any property of Tenant to the extent that Tenant’s property insurance policies then in force or the policies required by this Lease, whichever is broader, insure against such damage or destruction. (h) Neither Landlord nor its agents shall be responsible for or liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connected with the Premises or any part of the Building, nor shall Landlord or its agents be liable for any damage to property entrusted to employees of the Building, nor for loss of or damage to any property by theft or otherwise, nor for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Building or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface, or from any other place or resulting from dampness or any other cause whatsoever, except to the extent due to the negligence or willful act or omission of Landlord, its agents, servants or employees. Neither Landlord nor Tenant will be liable under any circumstances to the other for any incidental or consequential damages; provided, however, that Landlord may recover consequential damages arising out of an unauthorized holdover by Tenant. Tenant shall give prompt notice to Landlord in case of fire or accident in the Premises or in the Building or of defects therein or in the fixtures or equipment. (i) Any and all “the equivalent of causes of loss – special form” insurance which is required to be carried by Tenant shall be endorsed with a subrogation clause, substantially as follows: “This insurance shall not be invalidated should the insured waive, in writing, prior to a loss, any and all right of recovery against any party for loss occurring to the property described herein”; and Tenant hereto waives all claims for recovery from Landlord, its officers, agents or employees for any loss or damage (whether or not such loss or damage is caused by negligence of Landlord, its officers, agents or employees, and notwithstanding any provisions contained in this Lease to the contrary) to any of its real or personal property insured under valid and collectible insurance policies to the extent of the collectible recovery under such insurance.
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Samples: Lease Agreement (Recursion Pharmaceuticals, Inc.), Lease Agreement (Recursion Pharmaceuticals, Inc.)
Liability Insurance; Indemnity. (a) Tenant shall and hereby does indemnify and hold Landlord harmless from and against any and all claims brought against Landlord by a third party arising from: (i) Tenant’s use of the Leased Premises or the conduct of Tenant’s business or profession thereinprofession; (ii) any activity, work, or thing done, permitted or suffered by the Tenant in or about the Premises, Building or Common Area, or the Building; (iii) any breach or default in the performance of any obligation on Tenant’s part to be performed under the terms of this Lease; or (iv) any negligent or willful acts or omissions of Tenant, or of Tenant’s agents, employees or contractors, on or about the Premises, Common Area, or the Building. Tenant shall and hereby does further indemnify, defend and hold Landlord harmless from and against all costs, reasonable attorneys’ attorney fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Landlord by reason of any such claim, Tenant, Tenant upon notice from Landlord, shall defend same at Tenant’s expense by counsel reasonably satisfactory to Landlord. Except as set forth in this Lease and subject to Landlord’s obligations hereunder, Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Leased Premises from any cause other than the gross negligence or intentional act or omission misconduct of a Landlord or its representatives, employees or agents.
(b) . Landlord shall and hereby does indemnify and hold Tenant harmless from and against any and all claims brought against Tenant and costs, reasonable attorneys’ fees or other liabilities incurred as a direct result of any claim or action or proceedings by a third party and directly arising fromfrom the following, exception to the extent of Tenant’s acts or omissions: (i) any breach or default in the performance of any obligation on Landlord’s part to be performed under the terms of this Lease; or (ii) the presence of any hazardous materials in or under the Building or Land existing on or before the Commencement Date or introduced by Landlord and/or its employees, contractors, and agents; and (ii) the grossly negligent or willful acts or omissions of Landlord, or of Landlord’s agents, employees or contractors, on or about the Premises, Common Area, or the Building. Landlord shall and hereby does further indemnify, defend and hold Tenant harmless from and against all costs, reasonable attorneys’ fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Tenant by reason of any such claim, Landlord, Landlord upon notice from Tenant, shall defend same at Landlord’s expense by counsel reasonably satisfactory to Tenant or selected by Landlord’s insurerTenant. The indemnities herein shall survive the termination of this Lease and shall continue in effect until any and all claims, actions or causes of action with respect to any of the matters indemnified against are fully and finally barred by the applicable statute of limitations. In no event shall any of the insurance provisions set forth in this Lease be construed as a limitation on the scope of indemnification set forth herein.
(cb) Tenant, at Tenant’s expense, agrees to keep in force during the Lease Term:
(i) Commercial general liability insurance shall be maintained on an occurrence basis, which insures against claims for premises/operations, bodily injuryinjury including death, personal injuryand advertising injury and mental anguish, property damage, products-completed operations, tenant’s legal liability and property damage contractual liability, based upon, involving, or arising out of the Tenant’s use, occupancy, or maintenance of the Premises and the BuildingProperty. Such insurance shall afford, at a minimum, the following limits: Each Occurrence $ $1,000,000 General Aggregate $ 4,000,000 $2,000,000 Products/Completed Operations Aggregate $ 1,000,000 $2,000,000 Personal and Advertising Injury Liability $ $1,000,000 Fire Damage Legal Liability $ $100,000 Medical Payments $ $5,000 Any general aggregate limit shall apply on a per-location basis. Tenant’s commercial general liability insurance shall include Landlord (including its trustees, lenders, officers, directors, members, agents, and employees) and Landlord’s mortgagees, mortgagees as additional insuredsinsureds on a primary and non-contributory basis, without privity of contract requirement, for claims arising out of Tenant’s use or occupancy in and about the Premises. This coverage shall be written on the most current ISO CGL form (or its equivalent), shall include contractual liability, premises-operations and products-completed operations and shall contain an exception to any pollution exclusion which insures damage or injury arising out of heat, smoke, or fumes from a hostile fire. Such insurance shall be written on an occurrence basis and contain a standard separation of insureds provision.
(ii) Business automobile liability insurance covering owned, hired any and non-owned all vehicles with minimum limits of $1,000,000 combined single limit per occurrence/per accident covering all owned, hired and non-owned automobiles naming Landlord and its entities as additional insured on a primary and noncontributory basis covering all owned, hired and non-owned vehicles.
(iii) Employer’s liability insurance in an amount not less than $1,000,0001,000,000 each accident and $1,000,000 bodily injury by disease per employee, and $1,000,000 bodily injury by disease policy limit, or such other limit as is acceptable to Tenant’s umbrella/excess carrier.
(iv) Workers’ compensation insurance in accordance with Utah law.
(v) Umbrella/excess liability insurance, on an a per occurrence basis and in the aggregate on a per location basis, that applies excess of the required commercial general liability, business automobile liability, and employer’s liability policies with forms no more restrictive than the underlying policies and with the following minimum limits: Each Occurrence: Occurrence $ 5,000,000 Annual Aggregate: Aggregate $ 5,000,000 Umbrella/Excess liability policies shall contain an endorsement stating that any entity qualifying as an additional insured on the insurance stated in the Schedule of Underlying Insurance shall be an additional insured on the umbrella/excess liability policies or that coverage is specifically follow form and no more restrictive than the underlying policies, and that they apply immediately upon exhaustion of the insurance stated in the Schedule of Underlying Insurance as respects the coverage afforded to any additional insured. The umbrella/excess liability policies shall also provide that they apply before any other insurance, whether primary, excess, contingent or on any other basis, available to an additional insured on which the additional insured is a named insured (which shall include any self-insurance), and that the insurer will not seek contribution from such insurance.
(vi) Other insurance shall be maintained as Landlord may reasonably require from time to time as is standard and reasonable for such assets located in similar geographic locations with similar operations and exposures.
(vii) Coverage under blanket or master policies may be approved by Landlord, provided coverage applies on the same basis as if the coverage was written outside of a blanket program and does not affect or lessen coverage available to the Premises herein, and otherwise meets the requirements set forth in this agreement unless otherwise approved by Landlord.
(viii) Property insurance “the equivalent of causes of loss – special form” including flood, earthquake, windstorm, theft, sprinkler leakage and boiler and machinery coverage on all of Tenant’s trade fixtures, furniture, inventory and other personal property in the Leased Premises, and on any alterations, additions, or improvements made by Tenant upon the Leased Premises all for the full replacement cost thereof. Tenant shall use the proceeds from such insurance for the replacement of trade fixtures, furniture, inventory and other personal property and for the restoration of Tenant’s improvements, alterations, and additions to the Leased Premises. Landlord shall be named as loss payee as its interests may appear with respect to alterations, additions, or improvements of the Leased Premises where Tenant cannot remove at the end of the Lease Term wherein ownership then reverts to Landlord.
(viiix) Business Property insurance required herein shall include business income and extra expense insurance with limits not less than 100% of all income and charges payable by Tenant under this Lease for a period of 12 twelve (12) months.
(dc) All policies required to be carried by Tenant hereunder shall be issued by an insurance company licensed or authorized to do business in Utah with a rating of at least “A-: XVIII” or better as set forth in the most current issue of Best’s Insurance Reports, unless otherwise approved by Landlord. Tenant shall not do or permit anything to be done that would invalidate the insurance policies required herein. Liability insurance maintained by Tenant shall name Landlord and Landlord’s Mortgagee as Additional Insured with no privity of contract requirement and be primary coverage on behalf of Landlord, its trustees, officers, directors, members, agents, and employees, Landlord’s mortgagees, and Landlord’s representatives and any policies of Landlord, its trustees, officers, directors, members, agents, and employees, Landlord’s mortgagees, and Landlord’s representatives shall be non-contributory. A waiver of subrogation, in favor of Landlord and Landlord’s Mortgagee, shall apply. Certificates of insurance, acceptable to Landlord, evidencing the existence and amount of each insurance policy required hereunder shall be delivered to Landlord prior to delivery or possession of the Premises and 10 ten (10) days following each renewal date. Certificates of insurance shall evidence that Landlord and Landlord’s mortgagees are included as additional insureds on liability policies so long as the names of such parties are provided to Tenant and that Landlord is included as loss payee on the property insurance as stated in subparagraph (c)(viSubsection 10(b)(vi) above. Further, each policy shall contain provisions giving Landlord and each of the other additional insureds at least thirty (30) days’ prior written notice of cancellation, non-renewal or material change in coverage. In the event that Tenant fails to provide evidence of insurance required to be provided by Tenant in this Lease, prior to the Tenant’s entry upon the Premises for purposes of completing Tenant’s improvements prior to the Commencement Date and thereafter during the Term, within 10 ten (10) days following Landlord’s request thereof, and 30 thirty (30) days prior to the expiration of any such coverage, Landlord shall be authorized (but not required) to procure such coverage in the amount stated with all costs thereof to be chargeable to Tenant and payable upon written invoice thereof. The limits of insurance required by this Lease, or as carried by Tenant, shall not limit the liability of Tenant or relieve Tenant of any obligation thereunder, except to the extent otherwise provided for herein. Any deductibles selected by Tenant shall be the sole responsibility of Tenant. Tenant insurance requirements stipulated in Paragraph this Section 10 are based upon current industry standards and shall be reasonably adjusted or supplemented from time to time, upon Landlord’s request, to conform to then-current industry standards. Landlord reserves In addition to the right insurance Tenant is required to require additional coverage or to increase limits as industry standards change.
(e) Should carry under this Lease, should Tenant engage the services of any contractor or subcontractor of any type or tier to perform work in the Premises, Tenant shall ensure ensure, via written and executed contract, that such party complies with the requirements of this Paragraph Section 10 and carries commercial general liability, business automobile liability, umbrella/excess liability, worker’s compensation and employer’s liability coverages in substantially the same forms as required of the Tenant under this Lease and in amounts approved by landlord and/or landlord’s property manager. Umbrella coverage shall be commensurate with their scope of risk and work performed but in no case less than $1,000,000 per occurrence. Contractor policies shall have zero restrictions for injuries to employees, or for the scope of work contemplated within their agreement. Certificates of insurance shall be made available to Landlord prior to work commencing on site evidencing all insurances as required herein, and include Tenant, Landlord and Landlord entities as additional insured for ongoing and completed operations on a primary and non-contributory basis. The required limits listed above are minimum limits established by Landlord and nothing contained herein shall be construed to mean the required limits are adequate or appropriate to protect Tenant or contractors of any type from greater loss.
(fd) Landlord shall procure and maintain the following, the cost of which shall be included in the Building Operating Expenses:
(i) Property insurance “with insured limits no less than 100% of the equivalent current replacement cost of causes of loss – special form” the Building, including Landlord Furnished Tenant Improvements, on the Building“All Risk” or Special Form, and any other perils which Landlord or Landlord’s lender deems reasonably necessary, including Loss of Rental Income coverage. Landlord shall not be obligated to insure any of Tenant’s Property or other furniture, equipment, trade fixtures, machinery, goodsstock, inventory, goods or supplies which Tenant may keep or maintain in or upon the Leased Premises or any alteration, addition, or improvement which Tenant may make upon to the Leased Premises. In addition, Landlord may elect to secure and maintain rental income insurance. If the annual cost to Landlord for such property or rental income insurance exceeds the standard rates because of the nature of Tenant’s operations, Tenant shall, upon receipt of appropriate invoices, reimburse Landlord for such increased cost.
(ii) Commercial general liability insurance, which shall be in addition to, and not in lieu of, insurance required to be maintained by Tenant. Tenant shall not be included as an additional insured on any policy of liability insurance maintained by Landlord.
(ge) Landlord waives any and all rights of recovery against Tenant for or arising out of damage to, or destruction of the Leased Premises to the extent that Landlord’s property insurance policies then in force insure or the policies required by this Lease, whichever is broader, insure against such damage or destruction and permit such waiver and only to the extent of insurance proceeds actually received by Landlord for such damage or destructionwaiver. Tenant waives any and all rights of recovery against Landlord for or arising out of damage to or destruction of any property of Tenant to the extent that Tenant’s property insurance policies then in force or the policies required by this Lease, whichever is broader, insure against such damage or destructiondestruction and permit such waiver.
(hf) Neither Landlord nor its agents shall be responsible for or liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connected with the Leased Premises or any part of the Building, nor shall Landlord or its agents be liable for any damage to property entrusted to employees of the Building, nor for loss of or damage to any property by theft or otherwise, nor for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Building or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface, or from any other place or resulting from dampness or any other cause whatsoever, except to as a result of the extent due to the negligence or willful act or omission intentional misconduct of Landlord, its agents, servants or employees. Neither of Landlord nor or Tenant will be liable under any circumstances to the other party for any incidental or consequential damages; provided, however, that Landlord may recover consequential damages arising out of an unauthorized holdover by Tenant. Tenant shall give prompt notice to Landlord in case of fire or accident in the Leased Premises or in the Building or of defects therein or in the fixtures or equipment.
(ig) Any and all “the equivalent of causes of loss – special form” insurance which is required to be carried by Tenant or Landlord shall be endorsed with a subrogation clause, substantially as follows: “This insurance shall not be invalidated should the insured waive, in writing, prior to a loss, any and all right of recovery against any party for loss occurring to the property described herein”; and each of Tenant hereto and Landlord waives all claims for recovery from Landlordthe other party, its officers, agents or employees for any loss or damage (whether or not such loss or damage is caused by negligence of Landlordthe other party, its officers, agents or employees, and notwithstanding any provisions contained in this Lease to the contrary) to any of its real or personal property insured under valid and collectible insurance policies to the extent of the collectible recovery under such insurance.
Appears in 1 contract
Liability Insurance; Indemnity. (a) Tenant shall and hereby does indemnify and hold Landlord harmless from and against any and all claims brought against Landlord by a third party arising from: (i) Tenant’s use of the Premises or the conduct of Tenant’s business or profession therein; (ii) any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises, Common Area, or the Building; (iii) any breach or default in the performance of any obligation on Tenant’s 's part to be performed under the terms of this Lease; or (iv) any negligent or willful acts or omissions of Tenant, or of Tenant’s 's agents, employees or contractors, on or about the Premises, Common Area, or the Building. Tenant shall and hereby does further indemnify, defend and hold Landlord harmless from and against all costs, reasonable attorneys’ ' fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall defend same at Tenant’s expense by counsel reasonably satisfactory to Landlord. Except as set forth in this Lease and subject to Landlord’s obligations hereunder, Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises from any cause other than the negligence or intentional act or omission of a Landlord or its representatives, employees or agents.
(b) Landlord shall and hereby does indemnify and hold Tenant harmless from and against any and all claims brought against Tenant by a third party arising from: (i) any breach or default in the performance of any obligation on Landlord’s part to be performed under the terms of this Lease; (ii) the presence of any hazardous materials in or under the Building or Land existing on or before the Commencement Date or introduced by Landlord and/or its employees, contractors, and agents; and (ii) the negligent or willful acts of Landlord, or of Landlord’s agents, employees or contractors, on or about the Premises, Common Area, or the Building. Landlord shall and hereby does further indemnify, defend and hold Tenant harmless from and against all costs, reasonable attorneys’ ' fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Tenant by reason of any such claim, Landlord, upon notice from Tenant, shall defend same at Landlord’s expense by counsel reasonably satisfactory to Tenant or selected by Landlord’s insurer. The indemnities herein shall survive the termination of this Lease and shall continue in effect until any and all claims, actions or causes of action with respect to any of the matters indemnified against are fully and finally barred by the applicable statute of limitations. In no event shall any of the insurance provisions set forth in this Lease be construed as a limitation on the scope of indemnification set forth herein.
(c) Tenant, at Tenant’s expense, agrees to keep in force during the Lease Term:
(i) Commercial general liability insurance which insures against claims for bodily injury, personal injury, and property damage based upon, involving, or arising out of the use, occupancy, or maintenance of the Premises and the Building. Such insurance shall afford, at a minimum, the following limits: Each Occurrence $ $1,000,000 General Aggregate $ $4,000,000 Products/Completed Operations Aggregate $ $1,000,000 Personal and Advertising Injury Liability $ $1,000,000 Fire Damage Legal Liability $ $100,000 Medical Payments $ $5,000 Tenant’s commercial general liability insurance shall include Landlord and Landlord’s mortgagees, as additional insureds. This coverage shall be written on the most current ISO CGL form (or its equivalent), shall include contractual liability, premises-operations and products-products- completed operations and shall contain an exception to any pollution exclusion which insures damage or injury arising out of heat, smoke, or fumes from a hostile fire. Such insurance shall be written on an occurrence basis and contain a standard separation of insureds provision.
(ii) Business automobile liability insurance covering owned, hired and non-owned vehicles with minimum limits of $1,000,000 combined single limit per occurrence.
(iii) Employer’s liability insurance in an amount not less than $1,000,000.
. (iv) Workers’ compensation insurance in accordance with Utah law.
(v) Umbrella/excess liability insurance, on an occurrence basis, that applies excess of the required commercial general liability, business automobile liability, and employer’s liability policies with the following minimum limits: Each Occurrence: $ 5,000,000 Annual Aggregate: $ 5,000,000 Umbrella/Excess liability policies shall contain an endorsement stating that any entity qualifying as an additional insured on the insurance stated in the Schedule of Underlying Insurance shall be an additional insured on the umbrella/excess liability policies, and that they apply immediately upon exhaustion of the insurance stated in the Schedule of Underlying Insurance as respects the coverage afforded to any additional insured. The umbrella/excess liability policies shall also provide that they apply before any other insurance, whether primary, excess, contingent or on any other basis, available to an additional insured on which the additional insured is a named insured (which shall include any self-insurance), and that the insurer will not seek contribution from such insurance.
(vi) Property insurance “the equivalent of causes of loss – special form” including earthquake, windstorm, theft, sprinkler leakage and boiler and machinery coverage on all of Tenant’s trade fixtures, furniture, inventory and other personal property in the Premises, and on any alterations, additions, or improvements made by Tenant upon the Premises all for the full replacement cost thereof. Tenant shall use the proceeds from such insurance for the replacement of trade fixtures, furniture, inventory and other personal property and for the restoration of Tenant’s improvements, alterations, and additions to the Premises. Landlord shall be named as loss payee with respect to alterations, additions, or improvements of the Premises where Tenant cannot remove at the end of the Lease Term wherein ownership then reverts to Landlord.
(vii) Business income and extra expense insurance with limits not less than 100% of all income and charges payable by Tenant under this Lease for a period of 12 months.
(d) All policies required to be carried by Tenant hereunder shall be issued by an insurance company licensed or authorized to do business in Utah with a rating of at least “A-: X” or better as set forth in the most current issue of Best’s Insurance Reports, unless otherwise approved by Landlord. Tenant shall not do or permit anything to be done that would invalidate the insurance policies required herein. Liability insurance maintained by Tenant shall be primary coverage on behalf of Landlord, its trustees, officers, directors, members, agents, and employees, Landlord’s mortgagees, and Landlord’s representatives and any policies of Landlord, its trustees, officers, directors, members, agents, and employees, Landlord’s mortgagees, and Landlord’s representatives shall be non-contributory. Certificates of insurance, acceptable to Landlord, evidencing the existence and amount of each insurance policy required hereunder shall be delivered to Landlord prior to delivery or possession of the Premises and 10 days following each renewal date. Certificates of insurance shall evidence that Landlord and Landlord’s mortgagees are included as additional insureds on liability policies so long as the names of such parties are provided to Tenant and that Landlord is included as loss payee on the property insurance as stated in subparagraph (c)(vi) above. In the event that Tenant fails to provide evidence of insurance required to be provided by Tenant in this Lease, prior to the Tenant’s entry upon the Premises for purposes of completing Tenant’s improvements prior to the Commencement Date and thereafter during the Term, within 10 days following Landlord’s request thereof, and 30 days prior to the expiration of any such coverage, Landlord shall be authorized (but not required) to procure such coverage in the amount stated with all costs thereof to be chargeable to Tenant and payable upon written invoice thereof. The limits of insurance required by this Lease, or as carried by Tenant, shall not limit the liability of Tenant or relieve Tenant of any obligation thereunder, except to the extent otherwise provided for herein. Any deductibles selected by Tenant shall be the sole responsibility of Tenant. Tenant insurance requirements stipulated in Paragraph 10 are based upon current industry standards. Landlord reserves the right to require additional coverage or to increase limits as industry standards change.
(e) Should Tenant engage the services of any contractor or subcontractor to perform work in the Premises, Tenant shall ensure that such party complies with the requirements of this Paragraph 10 and carries commercial general liability, business automobile liability, umbrella/excess liability, worker’s compensation and employer’s liability coverages in substantially the same forms as required of the Tenant under this Lease and in amounts approved by landlord and/or landlord’s property manager.
(f) Landlord shall procure and maintain the following, the cost of which shall be included in the Building Expenses:
(i) Property insurance “the equivalent of causes of loss – special form” on the Building. Landlord shall not be obligated to insure any of Tenant’s Property or other furniture, equipment, trade fixtures, machinery, goods, or supplies which Tenant may keep or maintain in the Premises or any alteration, addition, or improvement which Tenant may make upon the Premises. In addition, Landlord may elect to secure and maintain rental income insurance. If the annual cost to Landlord for such property or rental income insurance exceeds the standard rates because of the nature of Tenant’s operations, Tenant shall, upon receipt of appropriate invoices, reimburse Landlord for such increased cost.
(ii) Commercial general liability insurance, which shall be in addition to, and not in lieu of, insurance required to be maintained by Tenant. Tenant shall not be included as an additional insured on any policy of liability insurance maintained by Landlord.
(g) Landlord waives any and all rights of recovery against Tenant for or arising out of damage to, or destruction of the Premises to the extent that Landlord’s property insurance policies then in force insure against such damage or destruction and permit such waiver and only to the extent of insurance proceeds actually received by Landlord for such damage or destruction. Tenant waives any and all rights of recovery against Landlord for or arising out of damage to or destruction of any property of Tenant to the extent that Tenant’s property insurance policies then in force or the policies required by this Lease, whichever is broader, insure against such damage or destruction.
(h) Neither Landlord nor its agents shall be responsible for or liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connected with the Premises or any part of the Building, nor shall Landlord or its agents be liable for any damage to property entrusted to employees of the Building, nor for loss of or damage to any property by theft or otherwise, nor for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Building or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface, or from any other place or resulting from dampness or any other cause whatsoever, except to the extent due to the negligence or willful act or omission of Landlord, its agents, servants or employees. Neither Landlord nor Tenant will be liable under any circumstances to the other for any incidental or consequential damages; provided, however, that Landlord may recover consequential damages arising out of an unauthorized holdover by Tenant. Tenant shall give prompt notice to Landlord in case of fire or accident in the Premises or in the Building or of defects therein or in the fixtures or equipment.
(i) Any and all “the equivalent of causes of loss – special form” insurance which is required to be carried by Tenant shall be endorsed with a subrogation clause, substantially as follows: “This insurance shall not be invalidated should the insured waive, in writing, prior to a loss, any and all right of recovery against any party for loss occurring to the property described herein”; and Tenant hereto waives all claims for recovery from Landlord, its officers, agents or employees for any loss or damage (whether or not such loss or damage is caused by negligence of Landlord, its officers, agents or employees, and notwithstanding any provisions contained in this Lease to the contrary) to any of its real or personal property insured under valid and collectible insurance policies to the extent of the collectible recovery under such insurance.
Appears in 1 contract
Liability Insurance; Indemnity. (a) Tenant shall and hereby does indemnify and hold Landlord harmless from and against any and all claims brought against Landlord by a third party arising from: (i) Tenant’s use of the Leased Premises or the conduct of Tenant’s business or profession thereinprofession; (ii) any activity, work, or thing done, permitted or suffered by the Tenant in or about the Premises, Building or Common Area, or the Building; (iii) any breach or default in the performance of any obligation on Tenant’s part to be performed under the terms of this Lease; or (iv) any negligent or willful acts or omissions of Tenant, or of Tenant’s agents, employees or contractors, on or about the Premises, Common Area, or the Building. Tenant shall and hereby does further indemnify, defend and hold Landlord harmless from and against all costs, reasonable attorneys’ attorney fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Landlord by reason of any such claim, Tenant, Tenant upon notice from Landlord, shall defend same at Tenant’s expense by counsel reasonably satisfactory to Landlord. Except as set forth in this Lease and subject to Landlord’s obligations hereunder, Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Leased Premises from any cause other than the gross negligence or intentional act or omission misconduct of a Landlord or its representatives, employees or agents.
(b) . Landlord shall and hereby does indemnify and hold Tenant harmless from and against any and all claims brought against Tenant and costs, reasonable attorneys’ fees or other liabilities incurred as a direct result of any claim or action or proceedings by a third party and directly arising fromfrom the following, exception to the extent of Tenant’s acts or omissions: (i) any breach or default in the performance of any obligation on Landlord’s part to be performed under the terms of this Lease; or (ii) the presence of any hazardous materials in or under the Building or Land existing on or before the Commencement Date or introduced by Landlord and/or its employees, contractors, and agents; and (ii) the grossly negligent or willful acts or omissions of Landlord, or of Landlord’s agents, employees or contractors, on or about the Premises, Common Area, or the Building. Landlord shall and hereby does further indemnify, defend and hold Tenant harmless from and against all costs, reasonable attorneys’ fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Tenant by reason of any such claim, Landlord, Landlord upon notice from Tenant, shall defend same at Landlord’s expense by counsel reasonably satisfactory to Tenant or selected by Landlord’s insurerTenant. The indemnities herein shall survive the termination of this Lease and shall continue in effect until any and all claims, actions or causes of action with respect to any of the matters indemnified against are fully and finally barred by the applicable statute of limitations. In no event shall any of the insurance provisions set forth in this Lease be construed as a limitation on the scope of indemnification set forth herein.
(cb) Tenant, at Tenant’s expense, agrees to keep in force during the Lease Term:
(i) Commercial general liability insurance shall be maintained on an occurrence basis, which insures against claims for premises/operations, bodily injuryinjury including death, personal injuryand advertising injury and mental anguish, property damage, products-completed operations, tenant’s legal liability and property damage contractual liability, based upon, involving, or arising out of the Tenant’s use, occupancy, or maintenance of the Premises and the BuildingProperty. Such insurance shall afford, at a minimum, the following limits: Each Occurrence $ $1,000,000 General Aggregate $ 4,000,000 $2,000,000 Products/Completed Operations Aggregate $ 1,000,000 $2,000,000 Personal and Advertising Injury Liability $ $1,000,000 Fire Damage Legal Liability $ $100,000 Medical Payments $ $5,000 Any general aggregate limit shall apply on a per-location basis. Tenant’s commercial general liability insurance shall include Landlord (including its trustees, lenders, officers, directors, members, agents, and employees) and Landlord’s mortgagees, mortgagees as additional insuredsinsureds on a primary and non-contributory basis, without privity of contract requirement, for claims arising out of Tenant’s use or occupancy in and about the Premises. This coverage shall be written on the most current ISO CGL form (or its equivalent), shall include contractual liability, premises-operations and products-completed operations and shall contain an exception to any pollution exclusion which insures damage or injury arising out of heat, smoke, or fumes from a hostile fire. Such insurance shall be written on an occurrence basis and contain a standard separation of insureds provision.
(ii) Business automobile liability insurance covering owned, hired any and non-owned all vehicles with minimum limits of $1,000,000 combined single limit per occurrence/per accident covering all owned, hired and non-owned automobiles naming Landlord and its entities as additional insured on a primary and noncontributory basis covering all owned, hired and non-owned vehicles.
(iii) Employer’s liability insurance in an amount not less than $1,000,0001,000,000 each accident and $1,000,000 bodily injury by disease per employee, and $1,000,000 bodily injury by disease policy limit, or such other limit as is acceptable to Tenant’s umbrella/excess carrier.
(iv) Workers’ compensation insurance in accordance with Utah law.
(v) Umbrella/excess liability insurance, on an a per occurrence basis and in the aggregate on a per location basis, that applies excess of the required commercial general liability, business automobile liability, and employer’s liability policies with forms no more restrictive than the underlying policies and with the following minimum limits: Each Occurrence: $ Occurrence $5,000,000 Annual Aggregate: $ Aggregate $5,000,000 Umbrella/Excess liability policies shall contain an endorsement stating that any entity qualifying as an additional insured on the insurance stated in the Schedule of Underlying Insurance shall be an additional insured on the umbrella/excess liability policies or that coverage is specifically follow form and no more restrictive than the underlying policies, and that they apply immediately upon exhaustion of the insurance stated in the Schedule of Underlying Insurance as respects the coverage afforded to any additional insured. The umbrella/excess liability policies shall also provide that they apply before any other insurance, whether primary, excess, contingent or on any other basis, available to an additional insured on which the additional insured is a named insured (which shall include any self-insurance), and that the insurer will not seek contribution from such insurance.
(vi) Other insurance shall be maintained as Landlord may reasonably require from time to time as is standard and reasonable for such assets located in similar geographic locations with similar operations and exposures.
(vii) Coverage under blanket or master policies may be approved by Landlord, provided coverage applies on the same basis as if the coverage was written outside of a blanket program and does not affect or lessen coverage available to the Premises herein, and otherwise meets the requirements set forth in this agreement unless otherwise approved by Landlord.
(viii) Property insurance “the equivalent of causes of loss – special form” including flood, earthquake, windstorm, theft, sprinkler leakage and boiler and machinery coverage on all of Tenant’s trade fixtures, furniture, inventory and other personal property in the Leased Premises, and on any alterations, additions, or improvements made by Tenant upon the Leased Premises all for the full replacement cost thereof. Tenant shall use the proceeds from such insurance for the replacement of trade fixtures, furniture, inventory and other personal property and for the restoration of Tenant’s improvements, alterations, and additions to the Leased Premises. Landlord shall be named as loss payee as its interests may appear with respect to alterations, additions, or improvements of the Leased Premises where Tenant cannot remove at the end of the Lease Term wherein ownership then reverts to Landlord.
(viiix) Business Property insurance required herein shall include business income and extra expense insurance with limits not less than 100% of all income and charges payable by Tenant under this Lease for a period of 12 twelve (12) months.
(dc) All policies required to be carried by Tenant hereunder shall be issued by an insurance company licensed or authorized to do business in Utah with a rating of at least “A-: XVIII” or better as set forth in the most current issue of Best’s Insurance Reports, unless otherwise approved by Landlord. Tenant shall not do or permit anything to be done that would invalidate the insurance policies required herein. Liability insurance maintained by Tenant shall name Landlord and Landlord’s Mortgagee as Additional Insured with no privity of contract requirement and be primary coverage on behalf of Landlord, its trustees, officers, directors, members, agents, and employees, Landlord’s mortgagees, and Landlord’s representatives and any policies of Landlord, its trustees, officers, directors, members, agents, and employees, Landlord’s mortgagees, and Landlord’s representatives shall be non-contributory. A waiver of subrogation, in favor of Landlord and Landlord’s Mortgagee, shall apply. Certificates of insurance, acceptable to Landlord, evidencing the existence and amount of each insurance policy required hereunder shall be delivered to Landlord prior to delivery or possession of the Premises and 10 ten (10) days following each renewal date. Certificates of insurance shall evidence that Landlord and Landlord’s mortgagees are included as additional insureds on liability policies so long as the names of such parties are provided to Tenant and that Landlord is included as loss payee on the property insurance as stated in subparagraph (c)(viSubsection 10(b)(vi) above. Further, each policy shall contain provisions giving Landlord and each of the other additional insureds at least thirty (30) days’ prior written notice of cancellation, non-renewal or material change in coverage. In the event that Tenant fails to provide evidence of insurance required to be provided by Tenant in this Lease, prior to the Tenant’s entry upon the Premises for purposes of completing Tenant’s improvements prior to the Commencement Date and thereafter during the Term, within 10 ten (10) days following Landlord’s request thereof, and 30 thirty (30) days prior to the expiration of any such coverage, Landlord shall be authorized (but not required) to procure such coverage in the amount stated with all costs thereof to be chargeable to Tenant and payable upon written invoice thereof. The limits of insurance required by this Lease, or as carried by Tenant, shall not limit the liability of Tenant or relieve Tenant of any obligation thereunder, except to the extent otherwise provided for herein. Any deductibles selected by Tenant shall be the sole responsibility of Tenant. Tenant insurance requirements stipulated in Paragraph this Section 10 are based upon current industry standards and shall be reasonably adjusted or supplemented from time to time, upon Landlord’s request, to conform to then-current industry standards. Landlord reserves In addition to the right insurance Tenant is required to require additional coverage or to increase limits as industry standards change.
(e) Should carry under this Lease, should Tenant engage the services of any contractor or subcontractor of any type or tier to perform work in the Premises, Tenant shall ensure ensure, via written and executed contract, that such party complies with the requirements of this Paragraph Section 10 and carries commercial general liability, business automobile liability, umbrella/excess liability, worker’s 's compensation and employer’s 's liability coverages in substantially the same forms as required of the Tenant under this Lease and in amounts approved by landlord and/or landlord’s 's property manager. Umbrella coverage shall be commensurate with their scope of risk and work performed but in no case less than $1,000,000 per occurrence. Contractor policies shall have zero restrictions for injuries to employees, or for the scope of work contemplated within their agreement. Certificates of insurance shall be made available to Landlord prior to work commencing on site evidencing all insurances as required herein, and include Tenant, Landlord and Landlord entities as additional insured for ongoing and completed operations on a primary and non-contributory basis. The required limits listed above are minimum limits established by Landlord and nothing contained herein shall be construed to mean the required limits are adequate or appropriate to protect Tenant or contractors of any type from greater loss.
(fd) Landlord shall procure and maintain the following, the cost of which shall be included in the Building Operating Expenses:
(i) Property insurance “with insured limits no less than 100% of the equivalent current replacement cost of causes of loss – special form” the Building, including Landlord Furnished Tenant Improvements, on the Building“All Risk” or Special Form, and any other perils which Landlord or Landlord’s lender deems reasonably necessary, including Loss of Rental Income coverage. Landlord shall not be obligated to insure any of Tenant’s Property or other furniture, equipment, trade fixtures, machinery, goodsstock, inventory, goods or supplies which Tenant may keep or maintain in or upon the Leased Premises or any alteration, addition, or improvement which Tenant may make upon to the Leased Premises. In addition, Landlord may elect to secure and maintain rental income insurance. If the annual cost to Landlord for such property or rental income insurance exceeds the standard rates because of the nature of Tenant’s operations, Tenant shall, upon receipt of appropriate invoices, reimburse Landlord for such increased cost.
(ii) Commercial general liability insurance, which shall be in addition to, and not in lieu of, insurance required to be maintained by Tenant. Tenant shall not be included as an additional insured on any policy of liability insurance maintained by Landlord.
(ge) Landlord waives any and all rights of recovery against Tenant for or arising out of damage to, or destruction of the Leased Premises to the extent that Landlord’s property insurance policies then in force insure or the policies required by this Lease, whichever is broader, insure against such damage or destruction and permit such waiver and only to the extent of insurance proceeds actually received by Landlord for such damage or destructionwaiver. Tenant waives any and all rights of recovery against Landlord for or arising out of damage to or destruction of any property of Tenant to the extent that Tenant’s property insurance policies then in force or the policies required by this Lease, whichever is broader, insure against such damage or destructiondestruction and permit such waiver.
(hf) Neither Landlord nor its agents shall be responsible for or liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connected with the Leased Premises or any part of the Building, nor shall Landlord or its agents be liable for any damage to property entrusted to employees of the Building, nor for loss of or damage to any property by theft or otherwise, nor for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Building or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface, or from any other place or resulting from dampness or any other cause whatsoever, except to as a result of the extent due to the negligence or willful act or omission intentional misconduct of Landlord, its agents, servants or employees. Neither of Landlord nor or Tenant will be liable under any circumstances to the other party for any incidental or consequential damages; provided, however, that Landlord may recover consequential damages arising out of an unauthorized holdover by Tenant. Tenant shall give prompt notice to Landlord in case of fire or accident in the Leased Premises or in the Building or of defects therein or in the fixtures or equipment.
(ig) Any and all “the equivalent of causes of loss – special form” insurance which is required to be carried by Tenant or Landlord shall be endorsed with a subrogation clause, substantially as follows: “This insurance shall not be invalidated should the insured waive, in writing, prior to a loss, any and all right of recovery against any party for loss occurring to the property described herein”; and each of Tenant hereto and Landlord waives all claims for recovery from Landlordthe other party, its officers, agents or employees for any loss or damage (whether or not such loss or damage is caused by negligence of Landlordthe other party, its officers, agents or employees, and notwithstanding any provisions contained in this Lease to the contrary) to any of its real or personal property insured under valid and collectible insurance policies to the extent of the collectible recovery under such insurance.
Appears in 1 contract
Samples: Lease Agreement (Traeger, Inc.)
Liability Insurance; Indemnity. (a) Tenant A. Provider shall obtain and hereby does indemnify maintain in full force and hold Landlord harmless effect and throughout the term of this Agreement such policies of general liability, professional liability and other insurance of the types and amounts as are reasonably and customarily carried by pharmacies with respect to their operations. Provider shall obtain and maintain during the term of this Agreement, comprehensive general liability insurance coverage in the amount of at least $1,000,000 per occurrence, including pharmacist's professional liability insurance, for protection from claims for bodily injury and against personal injury to Members from Provider's operation under this Agreement. By signing this Agreement, Provider represents that these insurance requirements are being met. Provider shall furnish not less than 30 days' prior written notice to ESI in the event of termination or material modification of any such policies of insurance which renders Provider non-compliant with the foregoing. Upon ESI's request, Provider shall provide ESI with evidence of such insurance coverage satisfactory to ESI. If the insurance purchased to satisfy the requirements of this Section is of the "claims made" variety, Provider shall purchase an extended period of indemnity so that ESI is protected from any and all claims brought against Landlord ESI for a period of not less than three years subsequent to the date of termination of this Agreement.
B. With respect to any prescription orders filled by a third party Provider, ESI shall not be liable or suffer loss for any claim, injury, demand, or judgment of any kind whatsoever arising from: (i) Tenant’s out of the sale, compounding, dispensing, manufacturing, consultation or use of any prescription drug or any service provided by Provider pursuant to this Agreement. Regardless of the Premises or the conduct of Tenant’s business or profession therein; (ii) any activityinsurance coverage required herein above, work, or thing done, permitted or suffered by Tenant in or about the Premises, Common Area, or the Building; (iii) any breach or default in the performance of any obligation on Tenant’s part to be performed under the terms of this Lease; or (iv) any negligent or willful acts or omissions of Tenant, or of Tenant’s agents, employees or contractors, on or about the Premises, Common Area, or the Building. Tenant Provider shall and hereby does further indemnify, defend and hold Landlord harmless from ESI, its officers, directors and employees, against all costs, reasonable attorneys’ fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Landlord by reason the full amount of any such claim, Tenant, upon notice from Landlord, shall defend same at Tenant’s expense by counsel reasonably satisfactory to Landlord. Except as set forth in this Lease and subject to Landlord’s obligations hereunder, Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about the Premises from any cause other than the negligence or intentional act or omission of a Landlord or its representatives, employees or agents.
(b) Landlord shall and hereby does indemnify and hold Tenant harmless from and against any and all claims brought against Tenant loss, expense, claim, or damage (including expert and professional fees and attorneys fees) arising out of or attributable to any of the foregoing.
C. With respect to any prescription orders that are referred by a third party arising from: (i) Provider to ESI for fulfillment, Provider shall not be liable or suffer loss for any breach claim, injury, demand, or default in the performance judgment of any obligation on Landlord’s part to be performed under kind whatsoever arising out of the terms of this Lease; (ii) the presence of sale, drug or any hazardous materials service provided by ESI in or under the Building or Land existing on or before the Commencement Date or introduced by Landlord and/or its employees, contractors, and agents; and (ii) the negligent or willful acts of Landlord, or of Landlord’s agents, employees or contractors, on or about the Premises, Common Area, or the Buildingfulfilling such prescription order. Landlord ESI shall and hereby does further indemnify, defend and hold Tenant harmless from Provider, its officers, directors and employees, against all costs, reasonable attorneys’ fees, expenses and liabilities incurred in connection with any such claim or any action or proceeding brought thereon. In case any action or proceeding is brought against Tenant by reason the full amount of any such claim, Landlord, upon notice from Tenant, shall defend same at Landlord’s expense by counsel reasonably satisfactory to Tenant or selected by Landlord’s insurer. The indemnities herein shall survive the termination of this Lease and shall continue in effect until any and all claimsloss, actions expense, claim, or causes damage (including expert and professional fees and attorneys fees) arising out of action with respect or attributable to any of the matters indemnified foregoing as related to such prescriptions dispensed by ESI.
D. If any claim, injury, demand, or judgment (collectively, an "Indemnified Claim"), is asserted against are fully a person entitled to indemnification hereunder (an "Indemnified Party") in respect of which the Indemnified Party proposes to demand indemnification from the other party (the "Indemnifying Party") pursuant to Sections 4.B or 4.C above, such Indemnified Party will promptly notify the Indemnifying Party in writing. No failure of an Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from the obligation to indemnify the Indemnified Party unless and finally barred to the extent the Indemnifying Party is actually prejudiced by such failure. Such Indemnified Party will accord the Indemnifying Party the opportunity to assume entire control for the defense, compromise or settlement of any such Indemnified Claim through its own counsel and at its own expense; provided that no such compromise or settlement shall include any non-monetary terms and conditions applicable statute of limitations. In no event shall any to such Indemnified Party without the consent of the insurance provisions set forth in this Lease Indemnified Party, which consent shall not be construed as a limitation on unreasonably withheld or delayed. Notwithstanding the scope foregoing, the Indemnified Party may retain its own counsel at its own expense (the Indemnifying Party shall only be liable for the reasonable cost of indemnification set forth herein.
(cone such counsel for all Indemnified Parties) Tenant, at Tenant’s expense, agrees to keep in force during the Lease Term:
if (i) Commercial general liability insurance which insures against claims for bodily injurythe Indemnifying Party, personal injurywithin fifteen (15) days after notice of any Indemnified Claim, and property damage based upon, involving, fails to assume the defense of such Indemnified Claim or arising out of the use, occupancy, or maintenance of the Premises and the Building. Such insurance shall afford, at a minimum, the following limits: Each Occurrence $ 1,000,000 General Aggregate $ 4,000,000 Products/Completed Operations Aggregate $ 1,000,000 Personal and Advertising Injury Liability $ 1,000,000 Fire Damage Legal Liability $ 100,000 Medical Payments $ 5,000 Tenant’s commercial general liability insurance shall include Landlord and Landlord’s mortgagees, as additional insureds. This coverage shall be written on the most current ISO CGL form (or its equivalent), shall include contractual liability, premises-operations and products-completed operations and shall contain an exception to any pollution exclusion which insures damage or injury arising out of heat, smoke, or fumes from a hostile fire. Such insurance shall be written on an occurrence basis and contain a standard separation of insureds provision.
(ii) Business automobile liability insurance covering ownedthe representation of both the Indemnifying Party and the Indemnified Party would, hired and non-owned vehicles with minimum limits of $1,000,000 combined single limit per occurrence.
(iii) Employer’s liability insurance in an amount not less than $1,000,000.
(iv) Workers’ compensation insurance in accordance with Utah law.
(v) Umbrella/excess liability insurance, on an occurrence basis, that applies excess the reasonable judgment of the required commercial general liabilityparties, business automobile liability, and employer’s liability policies with be inappropriate due to actual or potential conflicting interests between them. If the following minimum limits: Each Occurrence: $ 5,000,000 Annual Aggregate: $ 5,000,000 Umbrella/Excess liability policies shall contain an endorsement stating that any entity qualifying as an additional insured on the insurance stated in the Schedule of Underlying Insurance shall be an additional insured on the umbrella/excess liability policies, and that they apply immediately upon exhaustion Indemnifying Party does not assume entire control of the insurance stated in defense, compromise or settlement of such Indemnified Claim, the Schedule of Underlying Insurance as respects the coverage afforded Indemnified Party may compromise or settle any such Indemnified Claim. Provider and ESI each agrees to any additional insured. The umbrella/excess liability policies shall also provide that they apply before any other insurance, whether primary, excess, contingent or on any other basis, available to an additional insured on which the additional insured is a named insured (which shall include any self-insurance), and that the insurer will not seek contribution from such insurance.
(vi) Property insurance “the equivalent of causes of loss – special form” including earthquake, windstorm, theft, sprinkler leakage and boiler and machinery coverage on all of Tenant’s trade fixtures, furniture, inventory and other personal property in the Premises, and on any alterations, additions, or improvements made by Tenant upon the Premises all for the full replacement cost thereof. Tenant shall use the proceeds from such insurance for the replacement of trade fixtures, furniture, inventory and other personal property and for the restoration of Tenant’s improvements, alterations, and additions to the Premises. Landlord shall be named as loss payee reasonably cooperate with respect to alterationsthe defense of any Indemnified Claim, additions, or improvements of the Premises where Tenant cannot remove at the end of the Lease Term wherein ownership then reverts to Landlord.
(vii) Business income and extra expense insurance with limits not less than 100% of all income and charges payable by Tenant under this Lease for a period of 12 months.
(d) All policies required to be carried by Tenant hereunder Indemnifying Party's expense.appropriate taxing authority. Provider shall be issued by an insurance company licensed or authorized to do business in Utah with a rating of at least “A-: X” or better as set forth in the most current issue of Best’s Insurance Reports, unless otherwise approved by Landlord. Tenant shall not do or permit anything to be done that would invalidate the insurance policies required herein. Liability insurance maintained by Tenant shall be primary coverage on behalf of Landlord, its trustees, officers, directors, members, agents, and employees, Landlord’s mortgagees, and Landlord’s representatives and any policies of Landlord, its trustees, officers, directors, members, agents, and employees, Landlord’s mortgagees, and Landlord’s representatives shall be non-contributory. Certificates of insurance, acceptable to Landlord, evidencing the existence and amount of each insurance policy required hereunder shall be delivered to Landlord prior to delivery or possession of the Premises and 10 days following each renewal date. Certificates of insurance shall evidence that Landlord and Landlord’s mortgagees are included as additional insureds on liability policies so long as the names of such parties are provided to Tenant and that Landlord is included as loss payee on the property insurance as stated in subparagraph (c)(vi) above. In the event that Tenant fails to provide evidence of insurance required to be provided by Tenant in this Lease, prior to the Tenant’s entry upon the Premises for purposes of completing Tenant’s improvements prior to the Commencement Date and thereafter during the Term, within 10 days following Landlord’s request thereof, and 30 days prior to the expiration of any such coverage, Landlord shall be authorized (but not required) to procure such coverage in the amount stated with all costs thereof to be chargeable to Tenant and payable upon written invoice thereof. The limits of insurance required by this Lease, or as carried by Tenant, shall not limit the liability of Tenant or relieve Tenant of any obligation thereunder, except to the extent otherwise provided for herein. Any deductibles selected by Tenant shall be the sole responsibility of Tenant. Tenant insurance requirements stipulated in Paragraph 10 are based upon current industry standards. Landlord reserves the right to require additional coverage or to increase limits as industry standards change.
(e) Should Tenant engage the services of any contractor or subcontractor to perform work in the Premises, Tenant shall ensure that such party complies with the requirements of this Paragraph 10 and carries commercial general liability, business automobile liability, umbrella/excess liability, worker’s compensation and employer’s liability coverages in substantially the same forms as required of the Tenant under this Lease and in amounts approved by landlord and/or landlord’s property manager.
(f) Landlord shall procure and maintain the following, the cost of which shall be included in the Building Expenses:
(i) Property insurance “the equivalent of causes of loss – special form” on the Building. Landlord shall not be obligated to insure any of Tenant’s Property or other furniture, equipment, trade fixtures, machinery, goods, or supplies which Tenant may keep or maintain in the Premises or any alteration, addition, or improvement which Tenant may make upon the Premises. In addition, Landlord may elect to secure and maintain rental income insurance. If the annual cost to Landlord for such property or rental income insurance exceeds the standard rates because of the nature of Tenant’s operations, Tenant shall, upon receipt of appropriate invoices, reimburse Landlord for such increased cost.
(ii) Commercial general liability insurance, which shall be in addition to, and not in lieu of, insurance required to be maintained by Tenant. Tenant shall not be included as an additional insured on any policy of liability insurance maintained by Landlord.
(g) Landlord waives any and all rights of recovery against Tenant for or arising out of damage to, or destruction of the Premises to the extent that Landlord’s property insurance policies then in force insure against such damage or destruction and permit such waiver and only to the extent of insurance proceeds actually received by Landlord for such damage or destruction. Tenant waives any and all rights of recovery against Landlord for or arising out of damage to or destruction of any property of Tenant to the extent that Tenant’s property insurance policies then in force or the policies required by this Lease, whichever is broader, insure against such damage or destruction.
(h) Neither Landlord nor its agents shall be solely responsible for or liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connected with the Premises or any part of the Building, nor shall Landlord or its agents be liable for any damage to property entrusted to employees of the Building, nor for loss of or damage to any property by theft or otherwise, nor for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Building or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface, or from any other place or resulting from dampness or any other cause whatsoever, except to the extent due to the negligence or willful act or omission of Landlord, its agents, servants or employees. Neither Landlord nor Tenant will be liable under any circumstances to the other for any incidental or consequential damages; provided, however, that Landlord may recover consequential damages arising out of an unauthorized holdover by Tenant. Tenant shall give prompt notice to Landlord in case of fire or accident in the Premises or in the Building or of defects therein or in the fixtures or equipment.
(i) Any and all “the equivalent of causes of loss – special form” insurance which is required to be carried by Tenant shall be endorsed with a subrogation clause, substantially as follows: “This insurance shall not be invalidated should the insured waive, in writing, prior to a loss, any and all right of recovery against any party for loss occurring to the property described herein”; and Tenant hereto waives all claims for recovery from Landlord, its officers, agents or employees for any loss or damage (whether or not such loss or damage is caused by negligence of Landlord, its officers, agents or employees, and notwithstanding any provisions contained in this Lease to the contrary) to any of its real or personal property insured under valid and collectible insurance policies to the extent of the collectible recovery under such insurance.any
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