14-032 Mark Thomas & Company for McClellan Rd Union Pacific Permit ApplicationOFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014 -3255
TELEPHONE: (408) 777 -3223 • FAX: (408) 777 -3366
WEBSITE: www.cupertino.org
CUPERTINO
March 12, 2014
Re: Agreement for consultant services
Enclosed for your records is a fully executed original copy of the agreement with the City
of Cupertino. If you have any questions, please contact the Public Works Department at
(408) 777 -3354.
Sincerely,
Andrea Sanders
Senior Office Assistant
City Clerk's Office
Enclosure
cc: Public Works
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND MARK
THOMAS & COMPANY FOR CONSULTANT SERVICES
FOR
MCCLELLAN ROAD UNION PACIFIC PERMIT APPLICATION
" THIS AGREEMENT, for reference dated February 17, 2014, is by and between
CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as
"City "), and Mark Thomas & Company, a California corporation, whose address
is (hereinafter referred to as "Consultant "), and
is made with reference to the following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing
under the laws of the State of California with the power to carry on its business
as it is now being conducted under the Constitution and the statutes of the State
of California and the Cupertino Municipal Code.
B. Consultant is specially trained, experienced and competent to
perform the special services which will be required by this Agreement; and
C. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement
on the terms and conditions described herein..
D. City and Consultant desire to enter into an agreement for
upon the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties as follows:
1. TERM:
The term of this Agreement shall commence on the date this agreement is
executed and shall terminate on September 1, 2014, unless terminated earlier as
set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A"
titled "Scope of Services" which is attached hereto and incorporated herein by
this reference.
Page 1 of 12
Design Professional Agreement
3. SCHEDULE OF PERFORMANCE:
The Services of Consultant are to be completed according to the schedule
set out in Exhibit A, which is attached hereto and incorporated herein by this
reference.
4. COMPENSATION TO CONSULTANT:
The maximum compensation to be paid to Consultant under this
agreement shall not exceed Fourteen Thousand Four Hundred Sixty Four Dollars
($14,464). The rate of payment is set out in Exhibit A, titled "First Approach —
Minimum Effort Approach ", which is attached hereto and incorporated herein.
Consultant shall furnish to City a detailed statement of the work performed for
compensation during the term of this Agreement. Consultant may submit
monthly invoices-for interim progress payments during the course of each phase,
clearly stating as a minimum the total Contract amount, amount paid to date,
percent complete and amount due.
5. TIME IS OF THE ESSENCE:
Consultant and City agree that time is 6f the essence regarding the
performance of this Agreement.
6. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner
commensurate with the prevailing standards of like professionals in the San
Francisco Bay Area and agrees that all services shall be performed by qualified
and experienced personnel who are not. employed by the City nor have any
contractual relationship with City.
7. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by
this Agreement is that of employer - independent contractor. The manner and
means of conducting the work are under the control of Consultant, except to the
extent they are limited by statute, rule or regulation and the express terms of this
Agreement. No civil service status or other right of employment will be acquired
by virtue of Consultant's services. None of the benefits provided by City to its
employees, including but not limited to, unemployment insurance, workers'
compensation plans, vacation and sick leave are available from City to
Consultant, its employees or agents. Deductions shall not be made for any state
or federal taxes, FICA payments, PERS payments, or other purposes normally
associated with an employer- employee relationship from any fees due
Consultant. Payments of the above items, ii: required, are the responsibility of
Consultant.
Page 2 of 12
Design Professional Agreement
8. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Consultant assumes any and all responsibility for verifying the identity
and employment authorization of all of his /her employees performing work
hereunder, pursuant to all applicable IRCA or other federal, or state rules and
regulations. Consultant shall indemnify and hold City harmless from and
against any loss, damage, liability, costs or expenses arising from any
noncompliance of this provision by Consultant.
9. NON - DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are
unacceptable employer /employee conduct, C`:onsultant agrees that harassment or
discrimination directed toward a job applicant, a City employee, or a citizen by
Consultant or Consultant's employee or subcontractor on the basis of race,
religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, or sexual orientation will not be tolerated.
Consultant agrees that any and all violations of this provision shall constitute a
material breach of this Agreement.
10. PROJECT COORDINATION
CITY: Director of Public Works shall be representative of City for all
purposes under this Agreement. Roger Lee, Assistant Director of Public Works,
is hereby designated as the Director of :Public Works' designee and Project
Manager, and shall supervise the progress and execution of this Agreement.
CONSULTANT: Consultant shall assign a single Consultant Project
Manager to have overall responsibility for the progress and execution of this
Agreement for Consultant. Should circumstances or conditions subsequent to
the execution of the Agreement require a substitute Consultant Project Manager
for any reason, the Consultant Project Manager designee shall be subject to the
prior written acceptance and approval of the City Project Manager. The
designated Consultant Project Manager shall be Richard Tanaka, Principal in
Charge.
11. HOLD HARMLESS:
Indemnification:
A. Claims for Professional Liability. Where the law establishes a standard
of care for Consultant's professional services, and to the extent the
Consultant breaches or fails to meet such established standard of care, or
is alleged to have breached or failed to meet such standard of care,
Page 3 of 712
Design Professional Agreement
Consultant shall, to the fullest extent allowed by law, with respect to all
services performed in connection with the Agreement, indemnify, defend,
and hold harmless the City and its officers, officials, agents, employees
and volunteers from and against any and all liability, claims, actions,
causes of action or demands whatsoever against any of them, including
any injury to or death of any person or damage to property or other
liability of any nature, that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of Consultant or
Consultant's employees, officers, officials, agents or independent
contractors. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation. Consultant shall not be obligated I under this Agreement to
indemnify City to the extent that the damage is caused by the sole or
active negligence or willful misconduct of City, its agents or employees.
B. Claims for Other Liability. - Consultant shall, to the fullest extent
allowed by law, with respect to all services performed in connection with
the Agreement, indemnify, defend, and hold harmless the City and its
officers, officials, agents, employees and volunteers against any and all
liability, claims, actions, causes of action or demands whatsoever from
and against any of them, including any injury to or death of any person or
damage to property or other liability of any nature, that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct
of Consultant or Consultant's employees, officers, officials, agents or
independent contractors. Such costs and expenses shall include
reasonable attorneys' fees of counsel of City's choice, expert fees and all
other costs and fees of litigation. Consultant shall not be obligated under
this Agreement to indemnify City to the extent that the damage is caused
by the sole or active negligence or wiillful misconduct of City, its agents or
employees.
C. Claims involving intellectual ntellectual property. In addition to the
obligations set forth in (A) and (B) above, Consultant shall indemnify,
defend, and hold the City, its elected and appointed officers, employees,
and volunteers, harmless from and against any Claim in which a violation
of intellectual property rights, including but not limited to copyright or
patent rights, is alleged that arises out of, pertains to, or relates to
Consultant's negligence, recklessness or willful misconduct under this
Agreement. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation.
Page 4 of 1'2
Design Professional Agreement
12. INSURANCE:
On or before the commencement of the term of this Agreement,
Consultant shall furnish City with certificates showing the type, amount, class of
operations covered, effective dates and dates of expiration of insurance coverage
in compliance with- paragraphs 12A, B, C, D and E. Such certificates, which do
not limit Consultant's indemnification, shall also contain substantially the
following statement: "Should any of the above insurance covered by this
certificate be canceled or coverage reduced before the expiration date thereof, the
insurer affording coverage shall provide thirty (30). days' advance written. notice
to the City of Cupertino by certified mail, Attention: City Manager." It is agreed
that Consultant shall maintain in force at all times during the performance of this
Agreement all appropriate coverage of insurance required by this Agreement
with an insurance company.that is acceptable to City and licensed to do
insurance business in the'State of California. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following
minimum limits:
Bodily Injury: $500,000
each occurrence
$1,000,000
aggregate - all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate
limits in the amounts of $1,000,000 will be considered
equivalent to the'required minimum limits shown above.
(3) Automotive:
Comprehensive automotive liability coverage in the
following minimum limits:
Bodily Injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
Page 5 of ] 2
Design Professional Agreement
(4) Professional Liability:
Professional liability insurance which includes coverage for
the professional acts, errors and omissions of Consultant in
the amount of at least $1,000,000.
B. SUBROGATION WAIVER:
Consultant agrees that in the event of loss due to any of the perils for
which he /she has agreed to provide comprehensive general and automotive
liability insurance, Consultant shall look solely to his /her insurance for recovery.
Consultant hereby grants to City, on behalf of any insurer providing
comprehensive general and automotive liability insurance to either Consultant or
City with respect to the services of Consultant herein, a waiver of any right to
subrogation which any such insurer of said Consultant may acquire against City
by virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Consultant at any time during the term hereof should fail to secure or
maintain the foregoing insurance, City shall be permitted to obtain such
insurance in the Consultant's name or as an agent of the Consultant and shall be
compensated by the Consultant for the costs of the insurance premiums at the
maximum rate permitted by law and computed from the date written notice is
received that the premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards and commissions, officers, employees and
volunteers shall be named as an additional insured under all insurance
coverages, except any professional liability insurance, required by this
Agreement. The naming of an additional insured shall not affect any recovery to
which such additional insured would be entitled under this policy if not named
as such additional insured. An additional insured named herein shall not be
held liable for any premium, deductible portion of any loss, or expense of any
nature on this policy or any extension thereof. Any other insurance held by an
additional insured shall not be required to contribute anything toward any loss
or expense covered by the insurance provided by this. policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being
sufficient to protect Consultant. Consultant is advised to confer with
Consultant's insurance broker to determine adequate coverage for Consultant.
13. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to
perform the services required by this Agreement. Consultant may be required to
fill out a conflict of interest form if the services provided under this Agreement
require Consultant to make certain governmental decisions or serve in a staff
Page 6 of 12
Design Professional Agreement-
capacity as defined in Title 2, Division 6, Section 18700 of the California Code of
Regulations.
14. PROHIBITION AGAINST TRANSFERS:
Consultant shall not assign, sublease, hypothecate, or transfer this
Agreement, or any interest therein, directly or indirectly, by operation of law or
otherwise, without prior written consent of City. Any attempt to do so without
said consent shall be null and void, and any assignee, sublessee, hypothecate or
transferee shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer. However, claims for money by
Consultant from City under this Agreement may be assigned to a bank, trust
company or other financial institution without prior written consent. Written
notice of such assignment shall be promptly-furnished to City by Consultant.
The sale, assignment, transfer or othE!r disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner
or joint venturer or syndicate member or cotenant, if Consultant is a partnership
or joint venture or syndicate or cotenancy, which shall result in changing the
control of Consultant, shall be construed as an assignment of this Agreement.
Control means fifty percent (50 %) or more of the voting power of the
corporation.
15. SUBCONTRACTOR APPROVAL:
Unless prior written consent from Ciiy is obtained, only those people and
subcontractors whose names are included in this Agreement shall be used in the
performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors
shall be required to furnish proof of workers' compensation insurance and shall
also be required to carry general, automobile and professional liability insurance
in reasonable conformity to the insurance carried by Consultant. In addition,
any work or services subcontracted hereunder shall be subject to each provision
of this Agreement.
16. PERMITS AND LICENSES:
Consultant, at his /her sole expense, shall obtain and maintain during the
term of this Agreement, all appropriate permits, certificates and licenses
including, but not limited to, a City Business; License, that may be required in
connection with the performance of services hereunder.
17. REPORTS:
A. Each and' every report, draft, work product, map, record and other
document, hereinafter collectively referred to as "Report ", reproduced, prepared
or caused to be prepared by Consultant pursuant to or in connection with this
Page 7 of 12
Design Professional Agreement
Agreement, shall be the exclusive property of City. Consultant shall not
copyright any Report required by this Agreement and shall execute appropriate
documents to assign to City the copyright to Reports created pursuant to this
Agreement. Any Report, information and data acquired or required by this
Agreement shall become the property of City, and all publication rights are
reserved to City. Consultant may retain a copy of any report furnished to the
City pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in
execution or implementation of:
(1) The original Project for which Consultant was hired;
(2) Completion of the original Project by others;
(3) Subsequent additions to, the original project; and /or
(4) Other City projects as appropriate.
C. Consultant shall, at such time and in such form as City may
require, furnish reports concerning the status of services required under this
Agreement.
D. All Reports required to be provided by this Agreement shall be
printed on recycled paper. All Reports shall be copied on both sides of the paper
except for one original, which shall be single sided.
E. No Report, information or other data given to or prepared or
assembled by Consultant pursuant to this Agreement shall be made available to
any individual or organization by Consultant without prior approval by City.
F. Electronic and hard copies of Consultant's work product shall
constitute the Project deliverables. Plans to be in CAD and PDF formats, and
other documents to be in Microsoft Word and PDF formats. City holds
Consultant harmless for any modifications to the documents.
18. RECORDS:
Consultant shall maintain complete and accurate records with respect to
sales, costs, expenses, receipts and other such. information required by City that
relate to the performance of services under this Agreement.
Consultant shall maintain adequate records of services provided in
sufficient detail to permit an evaluation of services. All such records shall be
maintained in accordance with generally accepted accounting principles and
shall be clearly identified and readily accessible. Consultant shall provide free
access to such books and records to the representatives of City or its designees at
all proper times, and gives City the right to examine and audit same, and to
make transcripts there from as necessary, and to allow inspection of all work,
data, documents, proceedings and activities related to this Agreement. Such
records, together with supporting documents, shall be kept separate from other -
documents and records and shall be maintained for a period of three (3) years
after receipt of final payment.
Page 8 of 12
Design Professional Agreement
If supplemental examination or audit of the records is necessary due to
concerns raised by City's preliminary examination or audit of records, and the
City's supplemental examination or audit of the records discloses a failure to
adhere to appropriate internal financial controls, or other breach of contract or
failure to act in good faith, then Consultant shall reimburse City for all
reasonable costs and expenses associated with the supplemental examination or
audit.
19. NOTICES:
All notices, demands, requests or approvals to be given under this
Agreement shall be given in writing and conclusively shall be deemed served
when delivered personally or on the second business day after the deposit
thereof in the United States Mail, postage prepaid, registered or certified,
addressed as hereinafter
provided.
All notices, demands, requests, or approvals from Consultant to City shall
be addressed to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Roger Lee
All notices, demands, requests, or approvals from City to Consultant shall
be addressed to Consultant at:
Mark Thomas & Company
1960 Zanker Road
San Jose, CA 95112
20. TERMINATION:
In the event Consultant fails or refuse; to perform any of the provisions
hereof at the time and in the manner required hereunder, Consultant shall be
deemed in default in the performance of this Agreement. If such default is not
cured within the time specified after receipt by Consultant from City of written
notice of default, specifying the nature of such default and the steps necessary to
cure such default, City may terminate the Agreement forthwith by giving to the
Consultant written notice thereof.
City shall have the option, at its sole discretion and without cause, of
terminating this Agreement by giving seven (7) days' prior written notice to
Consultant as provided herein. Upon termination of this Agreement, each party
shall pay to the other party that portion of compensation specified in this
Agreement that is earned and unpaid prior to the effective date of termination.
Page 9 of 12
Design Professional Agreement
In the event of termination, Consultant shall deliver to City, copies of all
reports, documents, and other work performed by Consultant under this
Agreement.
21. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances,
rules and regulations enacted or issued by City.
22. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of
the State of California excepting any choice of law rules which may direct the
application of laws of another jurisdiction. The Agreement and obligations of the
parties are subject to all valid laws, orders, rules, and regulations of the
authorities having jurisdiction over this Agreement (or the successors of those
authorities.)
Any suits brought pursuant to this Agreement shall be filed with the
courts. of the County of Santa Clara, State of California.
23. ADVERTISEMENT:
Consultant shall not post, exhibit, display or allow to be posted, exhibited,
displayed any signs, advertising, show bills, lithographs, posters or cards of any
kind pertaining to the services performed under this Agreement unless prior
written approval has been secured from City to do otherwise.
24. WAIVER:
A waiver by City of any breach of any term, covenant, or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant, or condition contained herein, whether of
the same or a different - character.
22. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all preliminary
negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions
hereof. Any modification of this Agreement Will be effective only by written
execution signed by both City and Consultant.
Page 10 of 12
Design Professional Agreement
25. GIFTS:
A. Consultant is familiar with City's prohibition against the acceptance of
any gift by a City officer or designated employee, which prohibition is found in
City Administrative Procedures.
B. Consultant agrees not to offer any City officer or designated employee any
gift prohibited by the Administrative Procedures.
C. The offer or giving of any prohibited gift shall constitute a material breach
of this Agreement by Consultant. In addition to any other remedies, City may
have in law or equity, City may terminate this Agreement for such breach as
provided in Section 19 of this Agreement.
26. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the
Agreement shall be deemed to be enacted herein, and the Agreement shall be
read and enforced as though each were included herein. If through mistake or
otherwise, any such provision is not inserted or is not correctly inserted, the
Agreement shall be amended to make such insertion on application by either
party.
27. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of
the Agreement and in no way affect, limit or amplify the terms or provisions of
this Agreement.
Page 11 of 12
Design Professional Agreement
P.O. No.: �%� 12 U
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed.
CONSULTANT CITY OF CUPERTINO
Mark Thomas & Company, Inc.
By �
Name R�%CVNayc� � -T
Title C,�Fo
Date 0 k -1 a - a0d
Tax I.D. No.: C `1-1 y 51 L( °kO
Address: 1 a (p O.hke,�
Sa'y' ;o s.R, C A a 6-11&
A Iv[unicipal Corporation
Timm Borden, Director of Public Works
Date
APPROVED AS TO FORM:
i/
Carol Korade, City Attorney
ATTEST:
Grace Schmidt, City Clerk
Contract Amount:
Account No.
Page 12 of 12
Design Professional Agreement
arn-- Ctbi�3c�
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M
MARK THOMAS & COMPANY, JNC.
i�
December 12, 2013
Mr. Roger Lee
Assistant Director of Public Works
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Re: McClellan Road UP Crossing Permit Proposal
Dear Roger:
We are pleased to submit our scope and budget for the next: phase of the Elm Court Drainage
Improvement Project. I am providing two approaches to the scope of work for the UP Permit Process.
The first scope is the minimum effort approach and second approach would be more comprehensive.
FIRST APPROACH= A17WMUMEFFORTAPPROACH.
This scope of work is the minimum effort approach to secw� encroachment permit approval from Union
Pacific. This scope of work would be as follows:
1) Field survey 100 feet of each side of the UP track to crea6e base map. Use existing data to establish
UP right of way. Secure as- builts of SCV WD water tru ik line paralleling UP track.
2) Prepare UP draft agreement for preliminary engineering and the required exhibits (location map,
site and layout)
3) Assist City with approval from UP for preliminary engineering. We anticipate UP will require
advance deposit for their effort for preliminary engineering review and approval, ,most likely in the
amount of $5,000.
4) Prepare draft. plan and profile (assume alignment at 5 foot offset from existing 27" storm drain main
and same profile grade as existing 27" storm main.
5) Prepare encroachment permit application for approval from UP for the 27" storm drain crossing,
with steel casing.
6) Submit permit application. Assist City with UP review process and approval from UP.
Our fee for the above scope is:
Project Manager 10 hrs @ $255.00 2,550.00
Project Engineer 44 hrs @ $162.00 7,128.00
Design Engineer 30 hrs @ $101.00 3,030.00
Survey 8 hrs @ $182.00 1,456.00
Direct Cost — Reproductions. Etc. _ $300.00
Subtotal Mark Thomas & Company $14,464.00
Cupertino Storm - UP Crossing Scope Page 1
SECOND APPROACH (TASK 2) — ' DESIGNAPPROACH.
This approach is to perform more comprehensive design of-the overall drainage system as outlined in
our report. This scope of work would include all of the above, but in addition perform preliminary
engineering scope of services as follows:
1) Develop 1 "=40" scale planimetric map that covers McClellan and September Drive (See attached
exhibit). This will require us to set 5 photo crosses and paint all manhole and valve covers.
2) Gather PG &E, water, storm and sewer maps and create existing utility mapping on the 1 "=40'
planimetric.
3) Pothole minimum SCVWD water main.
4) Develop preliminary engineering plan and profile of the entire drainage system as recommended in
our study report.
5) Based on above, create UP permit drawing in lieu of minimum effort approach.
In addition to above, our added fee for the above scope is:
Project Manager
30 hrs @ $255.00
7,650.00
Project Engineer
84 hrs @ $162.00
13,608.00
Design Engineer
120 hrs @ $101.00
12,120.00
Survey
16 hrs @ $182.00
2,912.00
Potholing (2)
3,000.00
Radman Aerial Manning
_ _
4,150.00
Task 2 Added Cost
$43,440.00
If you have any questions, please contact me.
Very Truly Yours,
MARK THOMAS & COMPANY, INC.
Richard K. Tanaka
Enc: Radman Aerial Photo Layout
Cupertino Storm - UP Crossing Scope y Page 2
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ACORD CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDNY)
2/14/2014
THIS CERTIFICATE IS ISSUED ASA MATTER OF INFORMATION ONLY AND CONF ERS NO RIGHTS UPON THI. ( ERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY
AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),
AUTHORIZED REPRESENTATIVE OR PRODUCER; AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an
endorsement. A statement on this certificate does not confer ri htsdo the certificate holder in lieu of such endorsement(s).
Producer License Number: 0A91339 CONTACTNAME:
UESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space Is required)
RE. Job # CU- 14107 McClellan Road Union Pacific Permit Application
City of Cupertino, its City Council, boards and commissions, officers, employees and'.volunteers are named as additional insureds per endorsements
attached.Waiver of Subrogartion applies to General Liability and Auto Liability.
THIS INSURANCE IS PRIMARY. ANY OTHER INSURANCE AVAILABLE TO THAT PERSON OR ORGANIZATION IS EXCESS AND NON-CONTRIBUTORY WHEN REQUIRED BY CONTRACT.
NOTE: 30 DAYS NOTICE OF CANCELLATION WILL BE GIVEN EXCEPT 10 DAY FOR NON-PAYMENT.
CERTIFICATEHOLDER CANCEi CATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH
City of Cupertino THE POLICY PROVISIONS
10300 Torre Ave.
Cupertino CA 95014 AUTHORIZED REPRESENTATIVE
-wal�
rn VIN Its g66- 966 -8928 I FAX
IA/C, No, Ext): (A/C No) 408 -271 -1802
Y.A. Tittle & Associates Insurance Services
E MAIL
P.O. Box 1960
ADDRESS:
Cegs @yatittleins.com
San Jose, CA 95109 -1960
—
INSURER(S) AFFORDING COVERAGE
NAIC#
INSURED
INSURER A:
Hartford Insurance Co. of Mid -West 37478
Mark Thomas & Company, Inc.
INSURER B:
Hartford Fire Insurance Co. 19682
1960 Zanker Road
INSURER C:
Hartford Casualty Ins. Co. 29424
San Jose, CA 95112
INSURER D:
INSURER E'
INSURER F:
COVERAGES CERTIFICATE NUMBER:
REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSUFED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
REQUIREMENT,
TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE
ANY
MAY
POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.
BE ISSUED OR MAY PERTAIN, THE INSURANCE
AFFORDED
BY THE
INSR
LIMITS
SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
TYPE OF INSURANCE ADDL SUBR
LTR INSR WVD POLICY NUMBER
POLICY EFF
POLICY EXP
LIMITS
GENERAL LIABILITY
MM /DD /YYYY
—
MMDD/YYYY
® COMMERCIAL GENERAL LIABILITY
EACM-
NCE
$
1,000,000
❑ ❑ CLAIMS -MADE 19OCCUR
DAMTED
$
300,000
® CONTRACTUAL LIABILITY
PREcurrence)
57UUNAT5222
A Cl
<
09 15/13
09/15/14 MED on person)
p )
$
10,000
PERV INJURY
$
1,000,000
GEN'LAGGREGATE LIMIT APPLIES PER:
GENERAL
GENEGATE
$
2,000,000
❑ POLICY ® PROJECT ❑ LOC
PRODUCTS-COMP/OP AGG
$
2,000,000
AUTOMOBILE LIABILITY
—
$
® ANY AUTO
COMBINED SINGLE LIMIT
$
] 000,000
El ALL OWNED AUTOS
(Ea accident)
B [I SCHEDULED AUTOS 57UUNAT5222
09/15
BODILY INJURY (Per Person)
09/15/14
$
® HIRED AUTOS
BODILY INJURY (Per Accident)
$
® NON -OWNED AUTOS
PROPERTY DAMAGE
$
® $500 COMP. DED.
(Per accident)
®$1,000 COLL. DIED.
® UMBRELLA LIAB ® OCCUR
$
4;000;000
❑' EXCESS LIAB El CLAIMS-MADE
EACH OCCURRENCE
AGGREGATE
$
4,000,000
C
57XHUAT5232
09/15/13
09/15/14
❑ DEDUCTIBLE
❑ RETENTION $
WORKERS'COMPENSATION
AND EMPLOYERS' LIABILITY
L9 WC STATU- LJ OTH-
57WEDZ4070
09/15/13
09/15/14
TORY LIMITS ER
ANY PROPRIETOR /PARTNER /EXECUTIVE Y/N
E.L. EACH ACCIDENT
$
1,000,000
B
OFFICER/MEMBERrEXCLUDED7 ❑
(Mandatory In NH)
NIA
E.L. DISEASE – EA EMPLOYEE
$
1,000,000
If yes, describe under DESCRIPTION OF
OPERATION below
E.L. DISEASE – POLICY LIMIT
$
1.000-000
UESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space Is required)
RE. Job # CU- 14107 McClellan Road Union Pacific Permit Application
City of Cupertino, its City Council, boards and commissions, officers, employees and'.volunteers are named as additional insureds per endorsements
attached.Waiver of Subrogartion applies to General Liability and Auto Liability.
THIS INSURANCE IS PRIMARY. ANY OTHER INSURANCE AVAILABLE TO THAT PERSON OR ORGANIZATION IS EXCESS AND NON-CONTRIBUTORY WHEN REQUIRED BY CONTRACT.
NOTE: 30 DAYS NOTICE OF CANCELLATION WILL BE GIVEN EXCEPT 10 DAY FOR NON-PAYMENT.
CERTIFICATEHOLDER CANCEi CATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH
City of Cupertino THE POLICY PROVISIONS
10300 Torre Ave.
Cupertino CA 95014 AUTHORIZED REPRESENTATIVE
-wal�
Insured: Mark Thomas & Company, Inc.
Policy Number: 57UUNAT5222
have all your rights and duties under this Coverage
Part.
e. Unnamed Subsidiary
Any subsidiary, and subsidiary thereof, of yours which is a
legally incorporated entity of which you own a financial
interest of more than 50 % of the voting stock on the effective
date of the Coverage Part.
The insurance afforded herein for any subsidiary not named in
this Coverage Part as a named insured does not apply to injury
or damage with respect to which an insured under this
Coverage Part is also an insured under another policy or
would be an insured under such policy but for its termination
or the exhaustion of its limits of insurance.
3. Newly Acquired or Formed Organization
Any organization you newly acquire or form, other than a
partnership, joint venture or limited liability company, and
over which you maintain financial interest of more than 50%
of the voting stock, will qualify as a Named Insured if there is
no other similar insurance available to that organization.
However:
a. Coverage under this provision is afforded only
until the 180th day after you acquire or form
the organization or the end of the policy
period, whichever is earlier;
b. Coverage A does not apply to "bodily injury"
or "property damage" that occurred before you
acquired or formed the organization; and
c. Coverage B does not apply to "personal and
advertising injury" arising out of an offense
committed before you acquired or formed the
organization.
4. Mobile Equipment
With respect to "mobile equipment" registered in your name
under any motor vehicle registration law, any person is an
insured while driving such equipment along a public highway
with your permission. Any other person or organization
responsible for the conduct of such person is also an insured,
but only with respect to liability arising out of the operation of
the equipment, and only if no other insurance of any kind is
available to that person or organization for this liability.
However, no person or organization is an insured with respect
to:
a. "Bodily injury" to a co- "employee" of the person driving
the equipment; or
b. "Property damage" to property owned by, rented to, in the
charge of or occupied by you or the employer of any
person who is an insured under this provision.
HG 00 0106 05
Page 1 of 2
SNonowned Watercraft
With respect to watercraft you do not own that is less than
51 feet long and is not being used to carry persons for a
charge, any person is an insured while operating such
watercraft with your permission. Any other person or
organization responsible for the conduct of such person is
also an insured, but only with respect to liability arising out
of the operation of the watercraft, and only if no other
insurance of any kind is available to that person or
organization for this liability.
However, no person or organization is an insured with
respect to:
a. "Bodily injury" to a co- "employee" of the person
operating the watercraft; or
b. "Property damage" to property owned by, rented to, in
the charge of or occupied by you or the employer of
any person who is an insured under this provision.
* * *6. Additional Insureds When Required By Written
Contract, Written Agreement Or Permit
The following person(s) or organization(s) are an additional
insured when you have agreed, in a written contract, written
agreement or because of a permit issued by a state or
political subdivision, that such person or organization be
added as an additional insured on your policy, provided the
injury or damage occurs subsequent to the execution of the
contract or agreement.
A person or organization is an additional insured under this
provision only for that period of time required by the
contract or agreement.
However, no such person or organization is an insured
under this provision if such person or organization is
included as an insured by an endorsement issued by us and
made a part of this Coverage Part.
a. Vendors
Any person(s) or organization(s) (referred to below as
vendor), but only with respect to "bodily injury or "property
damage" arising out of "your products" which are
distributed or sold in the regular course of the vendor's
business and only if this Coverage Part provides coverage
for "bodily injury" or "property damage" included within the
"products completed operations hazard ".
(1) The insurance afforded the vendor is subject to the
following additional exclusions:
"Phis insurance does not apply to:
(a) "Bodily injury" or "property damage" for which the
vendor is obligated to pay damages by reason of the
assumption of liability in a contract or agreement. This
exclusion does not apply to liability for damages that the
vendor would have in the absence of the contract or
agreement;
Insured: Mark Thomas & Company, Inc.
Policy Number: 57UUNAT5222
(b) Any express warranty unauthorized by you;
(c) Any physical or chemical change in the product made
intentionally by the vendor;
(d) Repackaging, except when unpacked solely for the
purpose of inspection, demonstration, testing, or the
substitution of parts under instructions from the
manufacturer, and then repackaged in the original container;
(e) Any failure to make such inspections, adjustments, tests
or servicing as the vendor has agreed to make or normally
undertakes to make in the usual course of business, in
connection with the distribution or sale of the products;
(f) Demonstration, installation, servicing or repair
operations, except such operations performed at the vendor's
premises in connection with the sale of the product;
(g) Products which, after distribution or sale by you, have
been labeled or relabeled or used as a container, part or
ingredient of any other thing or substance by or for the
vendor; or
(h) "Bodily injury" or "property damage" arising out of the
sole negligence of the vendor for its own acts or omissions
or those of its employees or anyone else acting on its behalf.
However, this exclusion does not apply to:
(i) The exceptions contained in Sub- paragraphs (d) or (f);
or
(ii) Such inspections, adjustments, tests or servicing as the
vendor has agreed to make or normally undertakes to make
in the usual course of business, in connection with the
distribution or sale of the products.
(2) This insurance does not apply to any insured person or
organization, from whom you have acquired such products,
or any ingredient, part or container, entering into,
accompanying or containing such products.
b. Lessors of Equipment
(1) Anyperson or organization from whom you lease
equipment; but only with respect to their liability for
"bodily injury", "property damage" or "personal and
advertising injury" caused, in whole or in part, by
your maintenance, operation or use of equipment
leased to you by such person or organization.
(2) With respect to the insurance afforded to these
additional insureds this insurance does not apply to
any "occurrence" which takes place after the
equipment lease expires.
HG 00 0106 05
Page 2 of 2
c. Lessors of Land or Premises
Any person or organization from whom you lease
land or premises, but only with respect to liability
arising out of the ownership, maintenance, or use of
that part of the land or premises leased to you.
With respect to the insurance afforded these additional
insureds the following additional exclusions. apply:
This insurance does not apply to:
1. Any "occurrence" which takes place after, you
cease to lease that land; or
2. Structural alterations, new construction or
demolition operations performed by or on behalf
of such person or organization.
d. Architects, Engineers or Surveyors
Any architect, engineer, or surveyor, but only with
respect to liability for "bodily injury ", "property damage"
or "personal and advertising injury" caused, in whole or
in part, by your acts or omissions or the acts or omissions
of those acting on your behalf:
(1) In connection with your premises; or
(2) In the performance of your ongoing operations
performed by you or on your behalf.
With respect to the insurance afforded these additional
insureds, the following additional exclusion applies:
This insurance does not apply to "bodily injury ", "property
damage" or "personal and advertising injury" arising out of
the rendering of or the failure to render any professional
services by or for you, including:
1. The preparing, approving, or failing to prepare or
approve, maps, shop drawings, opinions, reports,
surveys, field orders, change orders or drawings
and specifications; or
2. Supervisory, inspection, architectural or
engineering activities.
c:. Permits Issued By State Or Political Subdivisions
Any state or political subdivision, but only with
respect to operations performed by you or on your
behalf for which the state or political subdivision has
issued a permit.
With respect to the insurance afforded these additional
insureds, this insurance does not apply to:
(1) "Bodily injury ", "property damage" or "personal and
advertising injury" arising out of operations
performed for the state or municipality; or
(2) Bodily injury" or "property damage" included within
the "products- completed operations hazard ".
Insured: Mark Thomas & Company, Inc.
Policy Number: 57UUNAT5222
that are in excess of the applicable limit of insurance.
An agreed settlement means a settlement and
release of liability signed by us, the insured and the
claimant or the claimant's legal representative.
4. Other Insurance
If other valid and collectible insurance is available to
the insured for a loss we cover under Coverages A or
B of this Coverage Part, our obligations are limited as
follows:
a. Primary Insurance
This insurance is primary except when b. below
applies. If other insurance is also primary, we will
share with all that other insurance by the method
described in c. below.
b. Excess Insurance
This insurance is excess over any of the other
insurance, whether primary, excess, contingent or on
any other basis:
(1) Your Work
That is Fire, Extended Coverage, Builder's Risk,
Installation Risk or similar coverage for "your work ";
(2) Premises Rented To You
That is fire, lightning or explosion insurance for
premises rented to you or temporarily occupied by
you with permission of the owner;
(1) Tenant Liability
That is insurance purchased by you to cover your
liability as a tenant for "property damage" to premises
rented to you or temporarily occupied by you with
permission of the owner;
(4) Aircraft, Auto Or Watercraft
If the loss arises out of the maintenance or use of
aircraft, "autos" or watercraft to the extent not subject
to Exclusion g. of Section I — Coverage A — Bodily
Injury And Property Damage Liability;
5) Property Damage to Borrowed Equipment Or
Use Of Elevators
If the loss arises out of "property damage" to
borrowed equipment or the use of elevators to the
extent not subject to Exclusion j. of Section I --
Coverage A - Bodily Injury And Property Damage
Liability; .
(6) When You Are Added As An Additional
Insured To Other Insurance
Any other insurance available to you covering liability
for damages arising out of the premises
or operations, or products and completed operations,
for which you have been added as an additional
insured by that insurance; or
HG 00 0106 05
Page 1 of 1
(7) When You Add Others As An
Additional Insured To This Insurance
Any other insurance available to an additional
insured.
However, the following provisions apply to other
insurance available to any person or organization
who is an additional insured under this coverage part.
* ** (a) Primary Insurance When Required By
Contract
This insurance is primary if you have agreed in a
written contract or written agreement that this
insurance be primary. If other insurance is also
primary, we will share with all that other insurance by
the method described in c. below.
(b) Primary And Non - Contributory To Other
Insurance When Required By Contract
If you have agreed in a written contract,
written agreement, or permit that this insurance is
primary and non- contributory with the additional
insured's own insurance, this insurance is primary
and we will not seek contribution from that other
insurance.
Paragraphs (a) and (b) do not apply to other
insurance to which the additional insured has been
added as an additional insured.
When this insurance is excess, we will have no duty
under Coverages A or B to defend the insured
against any "suit" if any other insurer has a duty to
defend the insured against that "suit ". If no other
insurer defends, we will undertake to do so, but we
will be entitled to the insured's rights against all those .
other insurers.
When this insurance is excess over other insurance,
we will pay only our share of the amount of the loss, if
any, that exceeds the sum of:
(1) The total amount that all such other insurance
would pay for the loss in the absence of this
insurance; and
(2) The total of all deductible and self- insured
amounts under all that other insurance.
We will share the remaining loss, if any, with any
other insurance that is not described in this Excess
Insurance provision and was not bought specifically
to apply in excess of the Limits of Insurance shown in
the Declarations of this Coverage Part.
c. Method Of Sharing
If all of the other insurance permits contribution by
equal shares, we will follow this method also. Under
this approach each insurer contributes equal amounts
until it has paid its applicable limit of
insurance or none of the loss remains, whichever
comes first.
Policy No: 57UUNAT5222
Insured: Mark Thomas & Company, Inc.
If any of the other insurance does not permit contribution by
equal shares, we will contribute by limits. Under this
method, each insurer's share is based on the ratio of its
applicable limit of insurance to the total applicable limits of
insurance of all insurers.
5. Premium Audit
a. We will compute all premiums for this Coverage Part in
accordance with our rules and rates
b. Premium shown in this Coverage Part as advance
premium is a deposit premium only. At the close each
audit period we will compute the earned premium for
that period and send notice to the first Named Insured.
The due date for audit and retrospective premiums is
the date shown as the due date on the bill. If the sum of
the advance and audit premiums paid for the policy
period is greater than the earned premium, we will
return the excess to the first Named Insured.
c. The first Named Insured must keep records of the
information we need for premium computation, and
send us copies at such times as we may request.
6. Representations
a. When You Accept This Policy
By accepting this policy, you agree:
(1) The statements in the Declarations are accurate
and complete;
(2) Those statements are based upon
representations you made to us; and
(3) We have issued this policy in reliance upon your
representations.
b. Unintentional Failure To Disclose Hazards
If unintentionally you should fail to disclose all hazards
relating'to the conduct of your business that exist at the
inception date of this Coverage Part, we shall not deny
coverage under this Coverage Part because of such
failure.
7. Separation Of Insureds
Except with respect to the Limits of Insurance, and any rights
or duties specifically assigned in this Coverage
Part to the first Named Insured, this insurance applies:
a. As if each Named Insured were the only Named Insured;
and
b. Separately to each insured against whom claim is
made or "suit" is brought.
8. Transfer Of Rights Of Recovery Against Others To Us
a. Transfer of Rights Of Recovery
If the insured has rights to recover all or part of any payment,
including Supplementary Payments, we have made under this
Coverage Part, those rights are transferred to us. The insured
must do nothing after loss to impair them. At our request, the
insured will bring "suit" or transfer those rights to and
help us enforce them.
"b. Waiver Of Rights Of Recovery (Waiver Of
Subrogation)
If the insured has waived any rights of recovery
against any person or organization for all or part of any
payment, including Supplementary Payments, we
have made under this Coverage Part, we also waive
that right, provided the insured waived their rights of
recovery against such person or organization in a
contract, agreement or permit that was executed prior
to the injury or damage.
9. When We Do Not Renew
If we decide not to renew this Coverage Part, we
will mail or deliver to the first Named Insured shown
in the Declarations written notice of the nonrenewal
not less
than 30 days before the expiration date.
If notice is mailed, proof of mailing will be sufficient
proof of notice.
SECTION V — DEFINITIONS
"Advertisement" means the widespread public
dissemination of information or images that has the
purpose of inducing the sale of goods, products or
services through:
a. (1) Radio;
(2) Television;
(3) Billboard;
(4) Magazine;
(5) Newspaper; or
b. Any other publication that is given widespread
public distribution.
However, "advertisement" does not include:
a. The design, printed material, information or images
contained in, on or upon the packaging or labeling
of any goods or products; or
b. An interactive conversation between or among
persons through a computer network.
2. "Advertising idea" means any idea for an
"advertisement"
3. "Asbestos hazard" means an exposure or threat of
exposure to the actual or alleged properties of
asbestos and includes the mere presence of asbestos
in any form.
4. "Auto" means a land motor vehicle, trailer or
semitrailer designed for travel on public roads,
including any attached machinery or equipment. But
"auto" does not include "mobile equipment ".
5. "Bodily injury" means physical:
a. Injury;
b. Sickness; or
c. Disease
sustained by a person and, if arising out of the above,
mental anguish or death at any time.
Policy No. 57WEDZ4070
Insured: Mark Thomas & Company, Inc.
EXTENDED OPTIONS
1. Employers' Liability Insurance 4. Foreign Voluntary Compensation and
Item 3.B. of the Information Page is replaced by Employers' Liability Reimbursement
the following: A. How This Reimbursement Applies
B. Employers' Liability Insurance:
1. Part Two of the policy applies to work in
each state listed in Item 3.A.
The Limits of Liability under Part Two are
the higher of:
Bodily Injury
by Accident $500,000 Each Accident
Bodily Injury
by Disease $500,000 Policy Limit
Bodily Injury
by Disease $500,000 Each Employee
OR
2. The amount shown in the Information
Page.
This provision 1 of EXTENDED OPTIONS does not
apply in New York because the Limits Of Our
Liability are unlimited.
In this provision the limits are changed from
$500,000 to $1,000,000 in California.
2. Unintentional Failure to Disclose Hazards
If you unintentionally should fail to disclose all
existing hazards at the inception date of your
policy, we shall not deny coverage under this
policy because of such failure.
3. Waiver of Our Right To Recover From Others
A. We have the right to recover our payments
from anyone liable for an injury covered by this
policy. We will not enforce our right against
any person or organization for whom you
perform work under a written contract that
requires you to obtain this agreement from us.
This agreement shall not operate directly or
indirectly to benefit anyone not named in the
agreement.
B. This provision 3. does not apply in the states
of Pennsylvania and Utah.
This reimbursement provision applies to bodily
injury by accident or bodily injury by disease.
Bodily injury includes resulting death.
1. The bodily injury must be sustained by an
officer or employee.
2. The bodily injury must occur in the course
of employment necessary or incidental to
work in a country not listed in Exclusion
C.1. of this provision.
3. Bodily injury by accident must occur
during the policy period.
4. Bodily injury by disease must be caused
or aggravated by the conditions of your
employment. The officer or employee's
last exposure to those conditions of your
employment must occur during the policy
period.
B. We Will Reimburse
We will reimburse you for all amounts paid by
you whether such amounts are:
1. voluntary payments for the benefits that
would be required of you if you and your
officers or employees were subject to any
workers' compensation law of the state of
hire of the individual employee.
2. sums to which Part Two (Employers'
Liabilitylnsurance) would apply if the
Countryof Employment were shown in
Item 3.A. of the Information Page.
C. Exclusions
This insurance does not cover:
1. any occurrences in the United States,
Canada, and any country or jurisdiction
which is the subject of trade or economic
sanctions imposed by the laws or
regulations of the United States of
America in effect as of the inception date
of this policy.
2. any obligation imposed by a workers'
compensation or occupational disease
law, or similar law.
3. bodily injury intentionally caused or
aggravated by you.
Form WC 99 03 03 B Printed in U.S.A. (Ed. 8/00) - Page 4 of 6
Policy No. 57UUNAT5222
Insured: Mark Thomas & Company, Inc.
Commercial Automobile
HA 99 1609 10
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
COMMERCIAL AUTOMOBILE BROAD FORM
ENDORSEMENT
This endorsement modifies insurance provided under the following-
BUSINESS AUTO COVERAGE FORM
To the extent that the provisions of this endorsement provide broader benefits to the "insured" than other
provisions of the Coverage Form, the provisions of this endorsement apply.
1. BROAD FORM INSURED
A.Subsidiaries and Newly Acquired or
Formed Organizations
The Named Insured shown in the
Declarations is amended to include:
(1) Any legally incorporated subsidiary in
which you own more than 50% of the
voting stock on the effective date of the
Coverage Form. However, the Named
Insured does not include any subsidiary
that is an "insured" under any other
automobile policy or would be an
insured" under such a policy but for its
termination or the exhaustion of its Limit
of Insurance.
(2) Any organization that is acquired or
formed by you and over which you
maintain majority ownership. However,
the Named Insured does not include any
newly formed or acquired organization:
(a) That is a partnership, joint venture
or limited liability company
(b) That is an "insured" under any other
policy,
(c) That has exhausted its Limit of
Insurance under any other policy, or
(d) 180 days or more after its
acquisition or formation by you,
unless you have given us notice of
the acquisition or formation.
Coverage does not apply to "bodily
injury" or "property damage" that results
from an "accident" that occurred before
you formed or acquired the organization.
B. Employees as Insureds
Paragraph A.1. - WHO IS AN INSURED - of
SECTION 11 - LIABILITY COVERAGE is
amended to add:
d.Any "employee" of yours while using a
covered "auto" you don't own, hire or
borrow in your business or your personal
affairs.
C. Lessors as Insureds
Paragraph A.1. - WHO IS AN INSURED — of
Section II - Liability Coverage is amended to add:
e. The lessor of a covered "auto" while the
"auto" is leased to you under a written
agreement if:
(1) The agreement requires you to
provide direct primary insurance for
the lessor and
(2) The "auto" is leased without a driver.
Such a leased "auto" will be considered a covered
"auto" you own and not a coveredauto" you hire
* * *D. Additional Insured if Required by Contract
(1) Paragraph A.1. - WHO IS AN INSURED
- of Section II - Liability Coverage is
amended to add:
f. When you have agreed, in a written
contract or written agreement, that a
person or organization be added as
an additional insured on your
business auto policy, such person or
organization is an "insured ", but only to
the extent such person or organization is
liable for "bodilyinjury" or "property damage"
causedby the conduct of an "insured" under
paragraphs a. or b. of Who Is An
Insured with regard to the
ownership, maintenance or use of a
covered "auto."
Policy. No. 57U UNAT5222
Insured: Mark Thomas & Company, Inc.
The insurance afforded to any such
additional insured applies only if the
"bodily injury" or "property damage"
occurs:
(1) During the policy period, and
(2) Subsequent to the execution of such
written contract, and
(3) Prior to the expiration of the period
of time that the written contract
requires such insurance be provided
to the additional insured.
(2) How Limits Apply
If you have agreed in a written contract
or written agreement that another
person or organization be added as an
additional insured on your policy, the
most we will pay on behalf of such
additional insured is the lesser of:
(a) The limits of insurance specified in
the written contract or written
agreement; or
(b) The Limits of Insurance shown in
the Declarations.
Such amount shall be a part of and not
in addition to Limits of Insurance shown
in the Declarations and described in this
Section.
(3) Additional Insureds Other Insurance
If we cover a claim or "suit" under this
Coverage Part that may also be covered
by other insurance available to an
additional insured, such additional
insured must submit such claim or "suit"
to the other insurer for defense and
indemnity.
However, this provision does not apply
to the extent that you have agreed in a
written contract or written agreement
that this insurance is primary and non -
insurance contributory with the additional
insured's own insurance.
(4) Duties in The Event Of Accident, Claim,
Suit or Loss
If you have agreed in a written contract
or written agreement that another
person or organization be added as an
additional insured on your policy, the
additional insured shall be required to
comply with the provisions in LOSS
CONDITIONS 2. - DUTIES IN THE
EVENT OF ACCIDENT, CLAIM, SUIT
OR LOSS — OF SECTION IV —
BUSINESS AUTO CONDITIONS, in the
same manner as the Named. Insured.
Commercial Automobile
HA 99 1609 10
E.Primary and Non - Contributory if
Required by Contract
Only with respect to insurance provided to
an additional insured in 1.D. - Additional
Insured If Required by Contract, the
following provisions apply:
(3) Primary Insurance When Required By
Contract
This insurance is primary if you have
agreed in a written contract or written
agreement that this insurance be
primary. If other insurance is also
primary, we will share with all that other
insurance by the method described in
Other Insurance 5.d.
(4) Primary And Non - Contributory To Other
Insurance When Required By Contract
If you have agreed in a written contract .
or written agreement that this insurance
is primary and non- contributory with the
additional insured's own insurance, this
insurance is primary and we will not
seek contribution from that other
insurance.
(3) (4) Paragraphs do not apply to other
insurance to which the additional insured
has been added as an additional insured.
When this insurance is excess, we will have no
duty to defend the insured against any "suit" if
any other insurer has a duty to defend the
insured against that. "suit ". If no other insurer
defends, we will undertake to do so, but we will
be entitled to the insured's rights against all
those other insurers.
When this insurance is excess over other
insurance, we will pay only our share of the
amount of the loss, if any, that exceeds the sum
of:
(1) The total amount that all such other
Insurance would pay for the loss in the
absence of this insurance; and
(2) The total of all deductible and self- insured
amounts under all that other insurance.
We will share the remaining loss; if any, by the
method described in Other Insurance 5.d.
2. AUTOS RENTED BY EMPLOYEES
Any "auto" hired or rented by your "employee" on
your behalf and at your direction will be
considered an "auto" you hire.
The OTHER, INSURANCE Condition is amended
by adding the following:
Policy No. 57UUNAT5222
Insured: Mark Thomas & Company, Inc.
b.$1,500 is the most we will pay one "accident" to
all electronic equipment that reproduces, receives
or transmits audio, visual or data signals which, at
the time of "loss ", is:
(1) Permanently installed in or upon the covered
"auto" in a housing, opening or
other location that is not normally used by
the "auto" manufacturer for the
installation of such equipment;
(2) Removable from a permanently installed
housing unit as described in Paragraph
b.(1) above or is an integral part of that
equipment; or
(3) An integral part of such equipment.
c.For each covered "auto ", should loss be
limited to electronic equipment only, our
obligation to pay for, repair, return or replace
damaged or stolen electronic equipment will be
reduced by the applicable deductible shown
in the Declarations, or $250, whichever
deductible is less.
9. EXTRA EXPENSE - BROADENED COVERAGE
Under Paragraph A. - COVERAGE - of SECTION III
- PHYSICAL DAMAGE COVERAGE, we will pay for
the expense of returning a stolen covered "auto" to
you.
10. GLASS REPAIR - WAIVER OF DEDUCTIBLE
Under Paragraph D. - DEDUCTIBLE - of SECTION
III - PHYSICAL DAMAGE COVERAGE, the
following is added:
No deductible applies to glass damage if the glass
is repaired rather than replaced.
11. TWO OR MORE DEDUCTIBLES
Under Paragraph D. - DEDUCTIBLE - of SECTION
III - PHYSICAL DAMAGE COVERAGE, the
following is added: If another Hartford Financial
Services Group, Inc. company policy or coverage
form that is not an automobile policy or coverage
form applies to the same "accident ", the following
applies:
(1) If the deductible under this Business Auto
Coverage Form is the smaller (or smallest)
deductible, it will be waived;
(2) If the deductible under this Business Auto
Coverage Form is not the smaller (or
smallest) deductible, it will be reduced by the
amount of the smaller (or smallest)
deductible.
12. AMENDED DUTIES IN THE EVENT OF
ACCIDENT, CLAIM, SUIT OR LOSS
The requirement in LOSS CONDITIONS 2.a.
DUTIES IN THE EVENT OF ACCIDENT
Commercial Automobile
HA 99 1609 10
CLAIM, SUIT OR LOSS - of SECTION IV -
BUSINESS AUTO CONDITIONS that you must
notify us of an "accident" applies only when the
"accident" is known to:
(1) You, if you are an individual;
(2) A partner, if you are a partnership;
(3) A member, if you are a limited liability
company; or
(4) An executive officer or insurance manager, if
you are a corporation.
13. UNINTENTIONAL FAILURE TO DISCLOSE
HAZARDS
If you unintentionally fail to disclose any hazards
existing at the inception date of your policy, we
will not deny coverage under this Coverage
Form because of such failure.
14. HIRED AUTO - COVERAGE TERRITORY
Paragraph e. of GENERAL CONDITIONS 7. -
POLICY PERIOD, COVERAGE TERRITORY -
of SECTION IV - BUSINESS AUTO
CONDITIONS is replaced by the following:
e. For short-term hired "autos ", the coverage
territory with respect to Liability Coverage is
anywhere in the world provided that if the
"insured's" responsibility to pay damages for
"bodily injury" or "property damage" is
determined in a "suit," the "suit" is brought in
the United States of America, the territories
and possessions of the United States of
America, Puerto Rico or Canada or in a
settlement we agree to.
'"`15. WAIVER OF SUBROGATION
TRANSFER OF RIGHTS OF RECOVERY
AGAINST OTHERS TO. US - of SECTION IV -
BUSINESS AUTO CONDITIONS is amended by
adding the following:
We waive any right of recovery we may have
against any person or organization with whom
you have a written contract that requires such
waiver because of payments we make for
damages under this Coverage Form.
16. RESULTANT MENTAL ANGUISH
COVERAGE
The definition of "bodily injury" in SECTION V(
DEFINITIONS is replaced by the following:
"Bodily injury" means bodily injury, sickness or
disease sustained by any person, including
mental anguish or death resulting from any of
these.
17. EXTENDED CANCELLATION CONDITION
Paragraph 2. of the COMMON POLICY
CONDITIONS - CANCELLATION - applies
except as follows: