Common Subcontract Indemnification Provision Clauses and California Limitations
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Understand the different types of indemnity provisions and what the new changes mean for you.Learn about the differences in types of indemnity provisions typically found in construction contracts. Learn about the benefits and limitations of these different types of indemnity provisions. You will also learn about the limitations on indemnity provisions that are provided by recently enacted California laws. You will also learn about various techniques and strategies for enforcing indemnity provisions in construction contracts.
AuthorsMark D. Johnson, Snell & Wilmer L.L.P.
• Indemnity Provisions Usually Require the General Contractor to Reimburse the Owner
• Indemnity Provisions Between General Contractors and Subcontractors
• Indemnity Provisions May Impose a Duty to Defend the Indemnified Party
'Type I' Indemnification of a General Contractor by a Subcontractor
• In California, No Indemnity Permitted for a General Contractor's Active Negligence or Willful Misconduct
• Previously, Type 1 Provisions Were Enforceable as Long as They Did Not Require Indemnification for Its 'Sole Negligence or Willful Misconduct'
'Type II' Indemnity Agreements, Which Allow a Party to Be Indemnified for Another Party's Passive, as Opposed to Active, Negligence Are Still Legal and Enforceable
Under New and Current California Law Regarding Indemnification:
• May Not Be Required to Provide an Immediate Defense Upon Tender
• Indemnity Provisions in Construction Contracts With Public Agencies Entered Into on or After January 1, 2013
• Indemnity Provisions in Construction Contracts Entered Into on or After January 1, 2013 Indemnification of the Owner
• Indemnification Provisions in Design Professional Contracts for Public Works