Brian,
The contract was approved at Council last night and the changes that were agreed to have been inserted. Please have the contract executed. I will return one to you once it has been
executed by the Town.
If you have any questions, please let me know.
Thanks,
Clay Barnett, P.E.
Town Engineer
Town of Addison
16801 Westgrove Drive
Addison, TX 75001-2818
Office: (972) 450-2857
From: Brian J. LaFoy [mailto:blafoy@ndmce.com]
Sent: Monday, June 27, 2011 5:06 PM
To: Clay Barnett
Subject: FW: Addison Agreement
Clay:
We can agree to this now. Thanks for helping facilitate.
Brian J. LaFoy, P.E.
Vice President
Nathan D. Maier Consulting Engineers, Inc.
8080 Park Lane, Suite 600
Dallas, Texas 75231
Ph. 214-739-4741 / Fax 214-739-5961
blafoy@ndmce.com
________________________________
From: Clay Barnett [mailto:cbarnett@addisontx.gov]
Sent: Friday, June 24, 2011 2:35 PM
To: 'Brian J. LaFoy'
Subject: FW: Addison Agreement
Brian,
Could you all have a look at this?
Thanks,
Clay Barnett, P.E.
Town Engineer
Town of Addison
16801 Westgrove Drive
Addison, TX 75001-2818
Office: (972) 450-2857
From: Ext_mail John Hill
Sent: Friday, June 24, 2011 1:38 PM
To: Clay Barnett
Subject: RE: Addison Agreement
Clay, I’m ok with the changes except for changes to Article VIII (indemnity). As to change to the change to the insurance provision (on page 13 of what you sent), you might ask Randy
(as the Town’s risk manager) to review.
Regarding the indemnity, attached is a copy of that section alone with proposed changes. The “base” version of the attached is the language originally included in Article VIII (it does
not include the changes proposed in red marking). That “base” version is then marked with a few additions (underlined) and deletions (struck-through). The language that begins in the
middle of the first paragraph (sentence in all caps) and continues until the end of the paragraph has been left in, with one change (deleting “DEFENSE”). The reason for doing so is
attempted to be explained below.
The reason for the capitalized language – providing for indemnity by Talley for the City’s negligence, etc. – is to satisfy the express negligence test. That test essentially provides
that an indemnity clause will not be interpreted to require an indemnitor to indemnify an indemnitee against damages or losses that are caused by the indemnitee's own negligence unless
the clause expressly provides for such a result. If a clause does not expressly provide that the indemnitor will indemnify the indemnitee against losses caused by the indemnitee's own
negligence, the clause is largely unenforceable. If the indemnitee is found to have caused the loss by its own negligence, either in whole or in part, the express-negligence doctrine
means that the indemnitee cannot recover any indemnification from the indemnitor, even indemnification for the negligence of the indemnitor. Texas law provides that, even where comparative
indemnity is sought, the express negligence test must be satisfied. Ethyl Corp. v. Daniel Construction Co., 725 S.W.2d 705 (Tex. 1987).
In this case, the indemnity clause provides, in the capitalized language in the first paragraph, that the Company indemnifies the Town for Town's negligence, etc., which should satisfy
the express negligence test. However, the next two sentences limit the Company’s indemnity obligations by providing that when there is co-negligence, etc. of the parties, the Company’s
indemnity obligations will be reduced by the Town's proportionate share of the negligence.
Please let me know if you have any questions/comments or would like to discuss.
John
From: Clay Barnett [mailto:cbarnett@addisontx.gov]
Sent: Friday, June 24, 2011 10:50 AM
To: John Hill
Subject: FW: Addison Agreement
John,
Could you have a look at their request?
Thanks,
Clay Barnett, P.E.
Town Engineer
Town of Addison
16801 Westgrove Drive
Addison, TX 75001-2818
Office: (972) 450-2857
From: Brian J. LaFoy [mailto:blafoy@ndmce.com]
Sent: Friday, June 24, 2011 10:49 AM
To: Clay Barnett
Subject: Addison Agreement
<<...>>
Clay:
Please find attached some requested changes to your agreement from our professional liability carrier. The biggest concern is the obligation to
"Defend." Us agreeing to that voids our professional liability insurance so we would not be covered in such an instance which in turn means the town is also not covered. Please consider
these requested changes. In the meantime, We'll prepare the exhibit for and have it ready by Tuesday.
Brian J. LaFoy, P.E.
Vice President
Nathan D. Maier Consulting Engineers, Inc.
8080 Park Lane, Suite 600
Dallas, Texas 75231
Ph. 214-739-4741 / Fax 214-739-5961
blafoy@ndmce.com