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17-149 Lewis and Tibbitts Inc., De Anza Median Island Water Lateral ProjectRECORDING REQUESTED BY City of Cupertino WHEN RECORDED MAIL TO City Clerk's Office City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 NO FEE IN ACCORDANCE WITH GOV. CODE 27283 23832572 Regina Alcamend~as Santa Clara County -Clerk-Recorder 12/21/2017 09:58 AM Pages: 3 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) NOTICE OF COMPLETION CITY PROJECT NAME: Install Water Service to De Anza Blvd Median Landscape ,.ey Original D For Fast Endorsement "NO FEE" City of Cupertino NOTICE OF COMPLETION is hereby given in order to comply with the provisions of Section 27283 of the Government Code. This is to certify that the Notice of Completion dated December 20, 2017 for CITY PROJECT NAME: Install Water Service to De Anza Blvd Median Landscape and the City of Cupertino, a governmental agency is hereby accepted by the City of Cupertino on December 20, 2017 and the grantee consents to recordation thereof by its duly authorized officer. I certify under Penalty of Perjury under the laws of the State of California that the foregoing paragraph is true and correct. Dated: December 21, 2017 By ei!,, - Senior Office Assistant CUPERTINO Recording Requested By: When Recorded Mail To: City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 NOTICE OF COMPLETION Civil Code§§ 8182, 8184, 9204, and 9208 NOTICE IS HEREBY GIVEN THAT: 1. The undersigned is the agent of the owner of the project described below. 2. Owner's full name is: City of Cupertino, California. 3. Owner's address is: City Hall, 10300 Torre Ave., Cupertino, CA 95014. 4. The nature of owner's interest in the project is: L.Fee Ownership Lessee _ Other: Right-of-Way 5. Construction work on the project performed on the owner's behalf is generally described as follows: Install water service to De Anza Blvd Median Landscape 6. The name of the original contractor for the project is: Lewis and Tibbitts, Inc. 7. The project was completed on: October 15, 2017. 8. The project is located at: near 10385 S. De Anza Blvd, Cupertino, CA. Verification: In signing this document, I, the undersigned, declare under penalty of perjury under the laws of the State of California that I have read this notice, and I know and understand the contents of this notice, and that the facts stated in this notice are true a~ct. t ;;l, ,;zD 17 · Santa Clara Count ~ • Date nd Place S g11ature Timm Borden Director of Public Works and City Engineer CITY OF CUPERTINO CONTRACT For Public Works Projects of $45,000 or Less This public works contract ("Contract") is entered into by and between the City of Cupertino, a municipal corporation ("City"), and Lewis and Tibbitts Inc., a corporation, ("Contractor"), pursuant to Public Contract Code Section 22032, for work on the De Anza Blvd Median Island Water Lateral Project ("Project"). 1. SCOPE OF WORK Contractor will perform and provide all labor, materials, equipment, supplies, transportation, and any and all other items or services necessary to perform and complete the work required for the Project ("Work"), as specified in Attachment A, Scope of Work, and according to the terms and conditions of this Contract, including all attachments to the Contract and any other documents and statutes incorporated by reference. To the extent that any attachment contains provisions that conflict or are inconsistent with the terms set forth in the body of this Contract, the Contract terms will control. 2. TIME FOR COMPLETION The City Engineer will not issue Contractor a written notice to proceed ("NTP") with the Work for the Project until the Contract is fully executed by both parties and City has received all insurance documentation pursuant to Section 13 below and any required bonds, if applicable, pursuant to Section 14 below. Contractor must fully complete the Work within 5 days from the commencement date given in the NTP ("Contract Time"). Time is of the essence for completion of the Work within the Contract Time. 3. COMPENSATION AND PAYMENT For satisfactory completion of the Work, performed in full compliance with this Contract, City will pay Contractor $20,000.00. Contractor must submit an invoice on the first day of each month during the Contract Time for the Work performed during the preceding month, itemizing labor, materials, equipment and any incidental costs incurred. City will pay Contractor 95% of the undisputed amount(s) billed, within 30 days after City's receipt of each properly submitted invoice. Any undisputed retention will be released and included with the final payment to Contractor within 60 days after City accepts the Work for the Project as complete. Contractor warrants that title to all work, materials and equipment incorporated into the Work will pass to City free of any claims, liens, or encumbrances upon payment to Contractor. Payment and performance bonds are required for this Contract if the Contract Price is $25,000 or more. 4. LIQUIDATED DAMAGES If Contractor fails to complete the Work within the Contract Time, Contractor must pay liquidated damages in the amount of $150.00 per day for each day of unexcused delay in completion. The liquidated damages amount is based on the reasonably foreseeable consequences of delay, which may include actual costs incurred by City due to the delay as well as intangible damages, including loss of or interference with use of public property or inconvenience to the public. Unavoidable delay caused by unanticipated events or circumstances which are entirely outside of Contractor's control may be excused, provided Contractor gives City prompt written notice of any such delay, but excused delay will not entitle Contractor to additional compensation, subject to the limits of Public Contract Code Section 7102. City may deduct liquidated damages from payment due or to become due to Contractor under this Contract. 5. LICENSES AND PERMITS Contractor must possess a California Contractor's License in good standing for the following classification(s): Class A. Contractor must also obtain a City business license before beginning Work on the Project. Contractor is solely responsible for obtaining any required building permits or similar governmental authorizations for the Work, at Contractor's sole expense. 6. LABOR CODE COMPLIANCE Unless the Contract Price is $1,000 or less, the Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, beginning at Section 1720, and the related regulations, including but not limited to requirements pertaining to wages, working hours and workers' compensation insurance. The Work is subject to compliance monitoring and enforcement by the Department of Industrial Relations ("DIR") pursuant to Labor Code Section 1725.5, and Contractor and any subcontractors must be registered with the DIR to perform public works projects. Contr.actor must also post all job site notices required by laws or regulations pursuant to Labor Code Section 1771.4. A. Prevailing Wages. The Contract is subject to the prevailing wage requirements applicable in Santa Clara County for each craft, classification or type of worker needed to perform the Work, including but not limited to employer payments for health and welfare, pension, vacation, and apprenticeship. The prevailing wage rates are on file with the City Engineer's office and are available online at http://www.dir.ca.gov/DLSR. Pursuant to Labor Code Section 1775 , Contractor and any subcontractor will forfeit to City as a penalty up to $200 for each calendar day, or portion of a day, for each worker paid less than the applicable prevailing wage rate, in addition to paying each worker the difference between the applicable wage rate and the amount actually paid . 8. Working Day. Pursuant to Labor Code Section 181 O, eight hours of labor consists of a legal day's work. Pursuant to Labor Code Section 1813, Contractor will forfeit to City as a penalty the sum of $25 for each day during which a worker employed by Contractor or any subcontractor is required or permitted to work more than eight hours during any one calendar day, or more than 40 hours per calendar week, unless such workers are paid overtime wages under Labor Code Section 1815. All Work must be carried out during regular City working days and hours unless otherwise specified in Attachment A or authorized in writing by City. C. Payroll Records. Contractor and its subcontractors must maintain certified payroll records in compliance with Labor Code Sections 1776 and 1812, and all implementing regulations promulgated by the DIR. For each payroll record, Contractor and its subcontractors must certify under penalty of perjury that the information in the record is true and correct, and that it has complied with the requirements of Labor Code Sections 1771, 1811 and 1815. Contractor must submit certified payroll records to the Labor Commissioner as required under California law and regulations. D. Apprentices. If the Contract Price is $30,000 or more, Contractor must comply with the apprenticeship requirements in Labor Code Section 1777.5. E. Workers' Compensation Certification. Pursuant to Labor Code Section 1861, by signing this Contract, Contractor certifies as follows: "I am aware of the provisions of Labor Code Section 3700 which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing performance of the Work on this Contract." 7. AMENDMENTS AND CHANGE ORDERS The provisions of this Contract may not be modified except by a written amendment or change order that is duly authorized and executed by both City and Contractor. Any Contractor request for a change order must be submitted in writing, specifically identifying the proposed change to the Contract and the Work, and the proposed adjustment, if any, to the Contract Price or the Contract Time. Each such request must be accompanied by all substantiating documentation, including, but not limited to, the drawings, detailed cost estimates, and schedule analysis for the change order. 8 . STANDARDS AND COMPLIANCE Contractor will use its best efforts to complete the Work in a professional and expeditious manner, in compliance with this Contract and all applicable permit requirements . Contractor's workmanship must meet or exceed all applicable standards and must comply with all applicable local, state , and federal laws, regulations, rules, and requirements, including City ordinances . By executing this Contract, Contractor warrants that all Work will be performed by a qualified and experienced workforce, and that neither Contractor nor its subcontractors or employees are employees of City or have any other relationship with City officials, employees or consult~nts that would create an unlawful conflict of interest. 9. INDEPENDENT CONTRACTOR City and Contractor intend that Contractor will perform the Work under this Contract as an independent contractor. Contractor is solely responsible for its means and methods in performing the Work . Contractor is not an employee of City and is not entitled to participate in health, retirement or any other employee benefits from C ity. 10 . IMMIGRATION REFORM AND CO NTROL ACT ("IRC A") Contractor is solely responsible for verifying the identity and employment authorization of all of its employees and subcontractors performing the Work, pursuant to the IRCA or simil.ar federal or state rules and regulations governing employment of immigrants. Contractor must indemnify and hold City harmless from and against any loss , damage, liability, costs or expenses arising from Contractor's failure to comply with this section. 11. NON-DISCRIMINATION Discrimination against any prospective o r present employee of Contractor because of race , color, ancestry national origin, ethnicity , religion, sex, sexual orientation, age, disability or marital status is strictly prohibited. Contractor, its employees and its subcontractors , must comply with all applicable local , state and federal nondiscrimination laws, including but not limited to the California Fair Employment and Housing Act, Government Code Section 11135 and Labor Code Sections 1735 and 3077 .5 . Any violation of this section constitutes a material breach of this Contract. 12 . INDEMNITY To the fullest extent allowed by law, Contractor must indemnify, defend , and hold harmless City, its City Council, boards and commissions, officers, officials , agents, employees, consultants and volunteers (individually, an "lndemnitee," and collectively , the "lndemnitees") from and against any and all liability, claims, stop notices, actions, causes of action, demands, losses, damages, and expenses (including legal expenses) whatsoever, including liability arising from an injury to or death of any person or damage to property or other liability of any nature, arising out of, pertaining to, or related to the performance of this Contract or the Work (collectively, "Liability"), including failure to comply with any obligations herein by Contractor or Contractor's directors, officers, officials, employees, agents or subcontractors . This indemnity obligation does not extend to Liability caused by the active negligence, sole negligence, or willful misconduct of an lndemnitee(s). Contractor's failure or refusal to timely accept a tender of defense pursuant to this Contract will be deemed a material breach of the Contract. City will timely notify Contractor upon City's receipt of any third-party claim relating to the Contract, as required by Public Contract Code Section 9201 . No lndemnitee will be personally liable to Contractor or Contractor's directors , officers, officials, employees, agents or subcontractors for any Liability. Contractor's indemnity obligations under this Contract are not limited by any limitation of the amount or type of damages or compensation payable under the workers' compensation laws or other employee benefit statutes, or by the insurance coverage or bond limits required under this Contract, and will survive the expiration or any early termination of the Contract. 13. INSURANCE Contractor must maintain the insurance coverage required in this section through the date of City's acceptance of the Work. The coverage must include the policy types and limits specified below, insuring against claims for injuries to persons or damages to property that may arise or relate to Contractor's performance under the Contract. City will not execute the Contract and issue the NTP until Contractor has submitted to City satisfactory certificates of insurance and endorsements , evidencing the type, amount, class of operations covered, and the effective dates and dates of expiration of the insurance coverage required below. The insurance must be issued by a company or companies acceptable to City and licensed to do business in the State of California, and each insurer must have an AM. Best's financial strength rating of "A" or better and a financial size rating of "VII" or better. If Contractor fails to provide or maintain any of the required insurance coverage, City may, in its sole discretion and without prior notice to Contractor, purchase such insurance at Contractor's expense and deduct the cost from payments otherwise due to Contractor, or terminate the Contract for default. A. Required Policies and Limits . The following insurance policies and limits are required for this Contract, unless otherwise specified in Attachment A: (1) Commercial General Liability ("CGL'? Insurance : The CGL policy must be issued on an occurrence basis, written on a comprehensive general liability form, and must include coverage for liability arising from Contractor's or its subcontractor's acts or omissions in the performance of the Work, including contractor's protected coverage, blanket contractual, completed operations, vehicle coverage and employer's non-ownership liability coverage, with limits of at least $2,000,000 per occurrence and $4,000,000 in the aggregate. The CGL policy must protect against any and all liability for personal injury, death, or property damage or destruction arising directly or indirectly in the performance of the Contract. The CGL coverage may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or umbrella policies, provided each such policy complies with the requirements set forth in this Contract. a. It will be a requirement under this agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits will be made available to the Additional Insured and will be (1) the minimum coverage and limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any Insurance policy, whichever is greater. b. The Additional Insured coverage under the Contractor's policy will be "primary and non-contributory" and will not seek contribution from the City's insurance or self- insurance and will be at least as broad as CG 20 01 04 12. c. The limits of Insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess Insurance. Any umbrella or excess Insurance will contain or be endorsed to contain a provision that such coverage will also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City's own insurance or self- insurance will be called upon to protect it as a named insured. Contractor will maintain insurance as required by this contract to the fullest amount allowed by law and will maintain insurance for a minimum of five years following the completion of this project. In the event contractor fails to obtain or maintain completed operations coverage as required by this agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by the contractor. (2) Comprehensive Automobile Liability Insurance: The automobile liability policy must be issued on an occurrence basis, with limits of at least $1,000,000 per occurrence for bodily injury and $1,000,000 per occurrence for property damage, or combined single limit of $1,000,000 per occurrence, covering owned, non- owned and hired automobiles. (3) Workers' Compensation Insurance and Employer's Liability Insurance : The workers' compensation and employer's liability policy or policies must comply with the requirements of the California Workers' Compensation Insurance and Safety Act, providing coverage of at least $1,000,000 or as otherwise required by the statute . If Contractor is self-insured, Contractor must provide its Certificate of Permission to Self-Insure, duly authorized by the DIR. B. Builder's Risk Insurance. Contractor must provide builder's risk insurance only if the box below is checked. D Builder's Risk coverage is required for this Contact. The builder's risk policy must be issued for course of construction on an occurrence basis, for all -risk coverage on a 100% completed value basis on the insurable portion of the Project for the benefit of City, and name the City as a loss payee as its interest may appear. If the Project does not involve new or major reconstruction, the City may elect, acting in its sole discretion, to accept an installation floater policy instead of builder's risk. The installation floater policy must provide property damage coverage for any building, structure, machinery, or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City's site. C. Additional Insureds. City, including its City Council, boards and commissions, officers, officials, agents, employees, consultants and volunteers, must be named as additional insureds under Contractor's insurance policies required under this section, except under the worker's compensation policy. The naming of an additional insured will not affect any recovery to which the additional insured would be entitled to under the policy if not named as an additional insured. An additional insured will not be held liable for any premium, deductible portion of any loss, or expense of any nature under the policy or any extension thereof. Any other insurance held by an additional insured will not be required to contribute anything toward any loss or expense covered by Contractor's insurance. D. Notice. Each certificate of insurance must state that the coverage afforded by the policy or policies is in force and will not be reduced, cancelled or allowed to expire without at least 30 days advance written notice to City, unless due to non-payment of premiums, in which case ten days advance written notice must be provided to City. Such notice must be sent to City via certified mail and addressed to the attention of the City Manager. E. Waiver of Subrogation. Each required policy must include an endorsement providing that the carrier agrees to waive any right of subrogation it may have against City . F. Required Endorsements. The CGL policy, the automobile liability policy and the builder's risk or installation floater policy, if required, must include the following endorsements: (1) The inclusion of more than one insured will not operate to impair the rights of one insured against another, and the coverages afforded will apply as though separate policies have been issued to each insured . (2) The insurance provided is primary and no insurance held or owned by City may be called upon to contribute to a loss. (3) This policy does not exclude explosion, collapse, underground excavation hazard, or removal of lateral support. G. Forms of Certificates of Insurance and Endorsements. Each certificate of insurance and endorsementmust provide the name and policy number of each carrier and policy, using a form and format acceptable to City. H. Subcontractors. Contractor must ensure that each subcontractor maintains the same insurance coverage required under this section with respect to its performance of Work on the Project, including those requirements related to the naming of additional insureds and waivers of subrogation. 14. BONDS If the Contract Price is $25,000 or more, City will not execute the Contract and issue the NTP until Contractor has provided City with a payment bond and a performance bond for the Work, each in the penal sum of not less than 100% of the Contract Price, using the bond forms included in this Contract under Attachment B, Bond Forms. Each bond must be issued by a surety admitted in California. If an issuing surety cancels a bond or becomes insolvent, Contractor must provide a substitute bond from a surety acceptable to City , within seven calendar days after written notice from City . If Contractor fails to substitute an acceptable surety within the specified time, City may, in its sole discretion and without prior notice to Contractor, purchase such bond(s) at Contractor's expense and deduct the cost from payments otherwise due to Contractor, or terminate the Contract for default. 15. ASSIGNMENT AND SUCCESSORS Contractor may not transfer or assign its rights or obligations under this Contract, in part or in whole, 'without City's prior written consent. The terms and conditions of this Contract are binding on Contractor's heirs, successors, and assignees. 16. SUBCONTRACTORS Contractor may use qualified, competent subcontractors to perform up to 20 % of the Work under this Contract, provided each subcontract expressly requires the subcontractor to be bound by the provisions of this Contract, including, but not limited to, the indemnity and insurance requirements. City reserves the right to reject any subcontractor of any tier, and to bar a subcontractor from performing further Work on the Project, if City, acting in its sole discretion, determines that the subcontractor's performance or failure to perform does not meet the requirements of this Contract, or for any of the reasons set forth in Public Contract Code Section 4107. If City rejects a subcontractor pursuant to this section, Contractor must either self-perform the Work of that subcontractor or replace the subcontractor with one that is acceptable to City, at no additional cost to City. 17. UTILITIES, TRENCHING AND EXCAVATION A. Contractor must call the Underground Service Alert ("USA") 811 hotline for marking of utility locations before digging. For underground service alerts for City street lighting and traffic signal conduits, Contractor must also, before commencing any Work, call the City of Cupertino Service Center at (408) 777-3269. B. As required by Government Code Section 4215, if, while performing the Work, Contractor discovers utilities or utility facilities not identified by City, Contractor must immediately provide written notice to City and to each known utility. C . As required by Government Code Section 7104, Contractor must promptly notify City in writing if Contractor finds any of the three conditions listed below, and wait for further direction from City before disturbing such condition(s). Following such notice, City will promptly investigate and if City finds that one or more of the following three conditions is or are present and that the presenters of any such condition will cause a decrease or increase in Contractor's cost of or time required for performance of the Work, City will amend the Contract Time or Contract Price for the Work as required by law: (1) Material that Contractor believes may be a hazardous waste as defined in Health and Safety Code Section 25117, that is required to be removed to a Class I, Class II, or Class Ill disposal site in accordance with the law; (2) Subsurface or latent physical conditions at the Project worksite differing from those indicated by information about the worksite made available to Contractor; and (3) Unknown physical conditions at the Project worksite of any unusual nature, materially different from those ordinarily encountered and from those generally recognized as inherent in the character of the Work. D. As required by Labor Code Section 6705, if the Contract Price exceeds $25,000 and the Work includes the excavation of any trench or trenches of five feet or more in depth, a detailed plan must be submitted to City, or its civil or structural engineer, for acceptance in advance of the excavation. The detailed plan must show the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation. If the plan varies from the shoring system standards, it must be prepared by a registered civil or structural engineer. Use of a shoring, sloping, or protective system less effective than that required by the Construction Safety Orders is prohibited. 18 . DAILY REPORTS Contractor must maintain daily reports on the Work and submit them to City upon completion of the Project, or at any time upon request by City. Each daily report must describe: the Work performed that day; the number of workers performing the Work and hours worked; the equipment and hours of labor used for each task; a description of weather conditions; and any circumstances affecting the planned progress of the Work. All such reports are the exclusive property of City, but Contractor is permitted to retain copies of the daily reports for its records . 19 . RECORDS Unless otherwise specified in Attachment A, Contractor must maintain and update a separate set of as-built drawings while the Work is being performed, showing any changes from the Work as planned in Attachment A, or any drawings incorporated into this Contract. The as-built drawings must be updated as changes occur, on a daily basis if necessary. Actual locations to scale must be identified on the as-built drawings for all major components of the Work, including but not limited to , as applicable : mechanical, electrical and plumbing work; HVAC systems; utilities and utility connections; and any other components City determines should be included in the final record drawings of the Project. Deviations from the original drawings must be shown in detail, and the location of all main runs, including but not limited to piping, conduit, ductwork, and drain lines, must be shown by dimension and elevation. 20. NOTICES All notices, demands, requests or approvals under this Contract must be given or made in writing and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, facsimile, or by email as a PDF (or comparable) file. Notice is deemed effective upon delivery unless otherwise specified. Notice for each party must be given as follows: City: City of Cupertino 10300 Torre Avenue Cupertino CA 95014 Attention: Jo Anne Johnson Contractor: Lewis and Tibbitts Inc 1470 Industrial Ave Attention: Todd Giovannoni 21. URBAN RUNOFF MANAGEMENT All Work on the Project must fully comply with federal, state, local and City regulations concerning stormwater management. Contractor must avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, Contractor will use only the amount of water necessary to dampen the dust. Contractor will take all steps necessary to keep wash water out of the streets, gutters and storm drains. Contractor will also develop and implement erosion and sediment controls to prevent pollution of storm drains. Contractor must implement these controls prior to the start of the Work, upgrade them due to weather conditions or as otherwise required by City, maintain them during construction or other Work phases to provide adequate protection , and remove them at the end of construction and completion of the Work. Such controls must include , but will not be limited to , the following requirements: A. Install storm drain inlet protection devices such as sand bag barriers, filter fabric fences, and block and gravel filters at all drain inlets impacted by construction. During the annual rainy season, from October 15 through June 15, storm drain inlets impacted by construction work must be filter-protected. Storm drain inlets will be filter-protected from onsite de-watering activities and saw-cutting activities. Shovel or vacuum saw-cut slurry and remove from the Work site. B. Cover exposed piles of soil or construction material with plastic sheeting . Store all construction materials in containers. C. Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain as well as at the end of each work day. When the Work is completed , wash the streets and collect and dispose of the wash water offsite, in an appropriate location and lawful manner. D. After breaking old pavement, remove all debris to avoid contact with rainfall or runoff. E. Maintain a clean work area by removing trash, litter, and debris at the end of each work day and also when the Work is completed. Clean up any leaks, drips, and other spills as they occur. F. The requirements stated above are intended to be used in conjunction with the California Stormwater Quality Association and California Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, and any other applicable documents on stormwater quality controls for construction. Contractor's failure to comply with this section will result in the issuance of noncompliance notices, citations , Work stop orders and regulatory fines . 22. EARLY TERMINATION City may terminate this Contract for convenience , upon written notice to Contractor. City may also terminate this Contract for cause . If Contractor fails or refuses to perform the Work as required under this Contract, Contractor will be deemed in default. If the default is not cured to City's satisfaction within two days after delivery of written notice of default to Contractor, City may, in its sole discretion , elect to do one or more of the following: A. Terminate the Contract immediately, upon written notice to Contractor. B. Complete the Work using City 's own forces and charge Contractor for all resulting costs and expenses, including City staff time. C. Retain another contractor to complete the Work and charge Contractor for all resulting costs and expenses . D. Require the performance bond surety to pay for completion of the Work. E. Pursue any other remedy available to City at law or under this Contract. If City terminates the Contract for convenience or for cause, City will only owe Contractor payment for the Work satisfactorily performed before Contract termination . Nothing in Section 23 below is intended to delay, abridge or bar City's right to terminate this Contract early pursuant to th is section. 23. DISPUTE RESOLUTION, LAW AND V ENUE Any dispute arising under or relating to this Contract is subject to the dispute resolution procedures of Public Contract Code Section 20104 et seq ., which are incorporated by reference. Interpretation and enforcement of this Contract is governed by California law. Venue for any legal action filed in relation to this Contract is the Superior Court for the County of Santa Clara , California, and no othe r place . 24. ADVERTISEMENT Contractor may not post, exhibit, or display any advertising sign age at the Project s ite without prior written approval from City . This section does not apply to signage intended or required for general safety while the Work is in progress. 25. WAIVER A waiver by City of any breach of any term , covenant, or condition in this Contract will not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, regardless of the character of any such breach . 26. WARRANTY Contractor guarantees and warrants the Work and the materials used or provided for the Project for a period of one year, beginning upon City 's acceptance of the Work for the Project as complete ("Warranty Period "). During the Warranty Period, upon notice from the City of any defect in the Work or the materials , Contractor must, at its sole expense, promptly repair or replace the defective Work or materials , including repair or replacement of any other Work or materials that is or are displaced or damaged during the warranty work, excepting any damage resulting from ordinary wear and tear. 27 . INTEGRATION This Contract, Attachments A and B, and the documents and statutes attached, referenced or expressly incorporated herein, including any duly authorized and executed amendments or change orders to the Contract, constitute the full and complete understanding of every kind or nature whatsoever between City and Contractor with respect to the Work and the Project. No oral agreement or implied covenant will be enforceable against City. If any provision or authorized modification to this Contract is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable, all other provisions will remain in full force and effect. 28. SURVIVAL Section 12 (Indemnity), Section 23 (Dispute Resolution), and Section 26 (Warranty) expressly survive termination or expiration of the Contract. 29. INSERTED PROVISIONS Each provision and clause required by law to be inserted in this Contract is deemed to be inserted, and the Contract will be construed and enforced as though each was included . If through mistake or otherwise any such provision was not inserted, or not correctly inserted, the Contract will be deemed amended accordingly. 30. CAPTIONS The captions in this Contract are for convenience only and are not a part of the Contract. They do not affect, limit or amplify the terms or provisions of the Contract. 31. AUTHORIZATION Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code Section 313 . The parties agree to this Contract as witnessed by the signatures below: Lew i s and Tibbitt s, Inc . <insert full name of Contractor above> By ~£ Name Buster Se gura Title President Date October 06 , 2017 By __________ _ Name ----------Title ----------Date ----------- CITY OF CUPERTINO :~ Timm Borden Director of Public Works Date / 0/1 7P Z RECOMMENDED FOR APPROVAL: APPROVED AS TO FORM : df%_ (J+}-j ~ Name l?..Jtl\.JOO CP r\ rto fVl City Attorney ~ \ 'L Date \ D 1 \ 9. \.. L ---r- ~ ti: Grace Schmidt g:re Clerk (() ·-1!)-(i Contract Amount:(/;~, .1?J1) P.O. No. tfD l i --....... ~---=1=----- Account No . 2-W · tlO ~1 '9 f 'f<aJ ~'la 6 Attachment A: Scope of Work Attachment A Scope of Work Contractor will perform the following Work for the Project, within the Contract Time set forth in Section 2 and for the Contract Price set forth in Section 3 of this Contract: Install 1" coper irrigation service from back of water moated at 10382 South De Anza Blvd to 5' inside the median island. Includes restoration of concrete sidewalk and asphalt pavement. 1470 Industrial Ave San Jose, CA 95112 Attachment A Phone: ( 408) 925-0220 Fax: ( 408) 925-0240 t. October 4, 2017 City of Cupertino Public Works Department Revised Lie.# 281666 General A, C-10, C-36, C-42 WE ARE A UNION CONTRACTOR Proposal for 1" Irrigation Service at 10382 South De Anza Blvd. This proposal is for installing a new 1" copper irrigation water service from the back of the existing San Jose Water meter in the sidewalk to 5' inside the ex ist ing median . (SOlf +/-) This price indudes the removal and repl acement of the concrete sidewalk (6' x 4') and the asphalt for trench work in the street. The st reet work will be finished paved . We will have to hand excavate and vacuum excavate this service due to the amount of existing utilities in the service cross ing . Bidltem Bid Description Bid Quantity Units Bid Total 1 Install 1" Irrigation Service 1 LS $20,000.00 TOTAL $20,000.00 GEN ERAL EXC LUSION S (A p pli es unless otherwise spec ified a bov e o r i n the bid); • Any de -watering trench to perform work. • Any handling of contaminated material. • Any work not specified In the bid Items, Inclusions or scope of work . · Staking / survey by others. • Permits, Inspection and testing costs and fees. • Restoration of landscaped areas . • Addit ional costs Incurred due to ablllty to access work area to efficiently complete task(s) includ ing but not limited to ot hers job site material/debris and other contracto rs scheduled in same area . Thank you. TODD GIOVANNONI LEWIS AND TIBBITTS, INC. 1470 INDUSTRIAL AVENUE SAN JOSE, CA 95112 X~----------------- OFFICE 408·925-0220 Signature for Acceptance FAX 408 -925-0240 CELL 408-590-2379 tglovannonl@ lewis-tiHbitts.com J ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 10/6/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 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 rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Cass Hamann NAME : Woodruff-Sawyer & Co. f.~~NJ~ ~ ..• , 415-391-2141 I rt.~ .,_,_ 415-989-9923 50 California Street, Floor 12 ~;...M~A~~c:c:-chamann@wsandco.com San Francisco CA 94111 INSURER/SI AFFORDING COVERAGE NAIC# INSURER A: Hartford Fire Insurance Company 19682 INSURED LEWIAND-01 INSURER B : Hartford Underwriters Insurance Com 30104 Lewis and T ibbitts , Inc. INSURER c: Hartford Casualty Insurance Company 29424 14701ndu~ria1Avenue INSURER D : San Jose CA 95112 INSURER E: INSURER F : COVERAGES CERTIFICATE NUMBER· 2056468863 REVISION NUMBER· THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN , THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS , EXCLUSIONS AND CONDITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS . INSR ,. /~~gg~l /~~~Jg~l LTR TYPE OF INSURANCE INSD WVD POLICY NUMBER LIMITS B X COMMERCIAL GENERAL LIABILITY y y 57U EAZM14 13 1/1/2017 1/1/2018 EAC H OCCURRENCE $1 ,000,000 -D CLAIMS-MADE ~ OCCUR DAMAGE TO RENTED PREMISES /Ea occ urrence\ $300,000 MED EXP (An y one person ) $10,000 - PERSONAL & ADV INJURY $1,000,000 - GEN'L AGGREGATE LIMIT APPLIES PER: GENERA L AGGREGAT E $2 ,000 ,000 ~ 0 PRO-D LOC PRODUCTS -COMP/OP AGG $2,000,000 POLICY JECT OTHER: $ A AUTOMOBILE LIABILITY y y 57U EAZM1416 1/1/2017 1/1/2018 /Eaacci d~~lN(jlc. LIMI I $1,000,000 -X ANY AUTO BODILY INJURY (Per person ) $ -ALL OWNED -SCHEDULED AUTOS AUTOS BODILY IN JURY (Per acc ide nt) $ --NON-OWNED PROPERTY DAMAGE X HIRED AUTOS X AUTOS (Per accident) $ -$ C UMBRELLA LIAS H OCCUR y y 57RHAZM1556 1/1 /2017 1/1 /2018 EACH OCCURRENCE $2,000 ,000 - X EXCESS LIAS CLAIMS-MADE AGGREGATE $2 ,000 ,000 DED I I RETENTION$ $ A WORKERS COMPENSATION y 57WEAPK7544 1/1/2017 1/1/2018 XI ~ffruTE I I OTH-ER AND EMPLOYERS' LIABILITY Y/N ANY PROPRIETOR/P ARTNER/EXECUTI VE D NIA E.L. EACH ACC IDEN T $1 ,000 ,000 OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $1,000,000 II yes , describe under E.L. DISEASE -POLICY LIMIT $1 ,000,000 DESCR IPTI ON OF OPERATIONS be low DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101 , Additional Remarks Schedule, may be attached if more space is requi red) L&T job #17-7897, De Anza Blvd Median Island Water Lateral Project The City of Cupertino including its City Counc il , boards and commissions, officers, officials, agents, employees, consultants and volunteers are additional insured are named additional insured per form attached . Coverage is pri mary & non-contributory per the attached. A waiver of subrogation applies per the attached. X CU, Separation of the Insured is included in the policy form .. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of C upertino , Dept of Public Works THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 10300 Torre Ave ACCORDANCE WITH THE POLICY PROVISIONS. Cupertino CA 95014 AUTHORIZED REPRESENTATIVE I ~-u. ...... © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD Po licy Number: 57UEAZM1416 COMMERCIAL AUTOMOBILE HA 9 9 1 6 0312 THIS ENDORSEMENT CHANGES THE PO LI CY. 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 FO RM INSURED A. Subsidi a ries and Newl y Acquired or Formed Organizations The Named Insured shown in the Declarations is amended to include: (1) Any legal business entity other than a partnership or joint venture, formed as a subsidiary in which you have an 01Nnership interest of more than 50% 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 or joint venture, (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 II -LIABIL ITY COVERAGE is amended to add: d. Any "employee" of yours while using a covered "auto" you d on'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 1he 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 covered "auto" you hire. D . Additional Insured if Required by Contract (1) Paragraph A.1 . -WHO IS A N 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 "bodily injury" or "property damage" caused by 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." Form HA 9916 0312 © 2011, The Hartford (Includes copyrighted material of ISO Properties, Inc., with its permission .) Page 1 of 5 The insurance afforded to any such additional insure d 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 t he expiration of the period of time that the written contract requires such insurance be provided to the additional insu red. (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 Insu rance shown in the Declarations and described in this Section. (3) Add it ional Insureds Other Insurance If we cover a cla i m or "suit" under thi s Coverage Part that may also be covered by other insurance available t o 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 writt en agreement 1hat this insurance is primary and non- contributory with the additional insu red'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 addit ion al 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 . E. Primary and Non-Contributory if Required by Contract On ly with respect to insurance provided to an additional insured in 1.0. -Add itional 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 insuran ce is also primary, we wi ll 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 Con tra ct 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. Paragraphs (3) and (4) 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 th e i nsured against any "suit'' if any other insurer has a duty to defend the insure d against t hat "su it". If no other insurer defends, we will undertake to do so, but we will be entitled to the insure d'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: Form HA 99 16 0312 © 20 11, The Hartford (Includes copyrighted material of ISO Pro pertie s, Inc., with its permission.) Page 2 of 5 If an "employee's" personal insurance also applies on an excess basis to a covered "auto" hired or rented by your "employee" on your behalf and at your direction, this insurance will be primary to the "em ployee's'' personal insurance. 3 . AMENDED FELLOW EMPLOYEE EXCLUSION EXCLUSION 5. -FELLOW EMPLOYEE -of SECTION II -LIABILITY COVERAGE does not apply if you have workers' compensa ti on insurance in-force covering all of your "employees". Coverage is excess over any other collect i ble insurance . 4. HIRED AUTO PHYSICAL DAMAGE COVERAGE If hired "autos" are covered "autos" for Liability Coverage and if Comprehensive, Specified Causes of Loss , or Collision coverages are provided under this Coverage Form for any "auto" you own , then the Physical Damage Coverages provided are extended to "au tos" you hire or borrow, subject to the following limit. The most we will pay for "loss" to any hired "auto" is: (1) $100 ,000; (2) The actual cash value of the damaged or stolen property at the time of the "loss"; or (3) The cost of repairing or replacing the damaged or stolen property, whichever is smallest, minus a deductible. The deductible will be equal to the largest deductible app licable to any owned "auto" for that coverage. No deductible applies to "loss" caused by fire or lightn i ng. Hired Auto Physical Damage coverage is excess over any other collecti ble insurance. Subject to the above limit, deductible and excess provisions , we will provide coverage equal to the broadest coverage applicable to any covered "auto" you own. We will also cover loss of use of the hired "auto" if it resu lts from an "accid ent", you are legally liable and the lessor incurs an actual financial loss, subject to a maximum of $1000 per "accident". This extension of coverage does not apply to any "auto" you hire o r borrow from any of your "employees", partners (if you are a partnership), members (if you are a limited liability company), or members of their households. 5. PHYSICAL DAMAGE ADDITIONAL TEMPORARY TRANSPORTATION EXPENSE COVERAGE Paragraph A.4.a. of SECTION Ill -PHYSICAL DAMAGE COVERAGE is amended to provide a limit of $50 per day and a maximum limit of $1,000. 6. LOAN/LEASE GAP COVERAGE Under SECTION Ill -PHYSICAL DAMAGE COVERAGE , in the event of a total "loss" to a covered "auto", we will pay your additional legal obl igation for any difference between the act ual cash value of the "auto" at the time of the "loss" and the "outstan ding balance" of the loan/lease. "Outs tanding balance" means the amount you owe on the loan /lease at the time of "loss" less any amounts representing taxes; overdue payments; penalties, interest or charges resulting from overdue payments; additional mileage charges; excess wear and tear charges; lease termination fees; security deposit s not returned by the lessor ; costs for extended warranties, credit life Insurance, health, accident or disabil ity i nsurance purchased with the loan or lease; and carry-over balances from previous loans or leases. 7. AIRBAG COVERAGE Under Paragraph B. EXCLUSIONS -of SECTION Ill PHYSICAL DAMAGE COVERAGE , the following is added: The exclus ion relating to mechanical breakdown does not apply to the acc identa l discharge of an airbag. 8. ELECTRONIC EQUIPMENT -BROADENED COVERAGE a. The exceptions to Paragraphs B.4 EXCLUSIONS -of SECTION Ill -PHYSICAL DAMAGE COVERAGE are rep laced by the following: Exclusions 4.c. and 4.d. do not apply to equipment designed to be operated solely by use of the power from the "auto 's" electrical system that, at the time of "loss", is: (1) Permanently installed in or upon the covered "auto"; (2) Removable from a housing unit which is permanently installed in or upon the covered "auto"; (3) An integral part of the same unit hous ing any electronic equipment described i n Paragraphs (1) and (2) above; or Form HA 99 16 03 12 ©2011, The Hartford (Includes copyrighted material of ISO Properties, Inc., with its perm iss ion.) Page 3 of 5 (4) Necessary for the norma l operation of the covered "auto" or the monitoring of the covered "auto's" operating system. b.Section Ill -Version CA 00 01 03 10 of the Business Auto Coverage Form, Physical Damage Coverage, Limit of Insura nce, Paragraph C.2 and Version CA 00 01 10 01 of the Business Auto Coverage Form, Physical Damage Coverage , Limit of Insurance, Paragraph C are each amended to add the following: $1,500 is the most we will pay for "loss" in any one "accident" to all electronic equipment (other than equipment designed solely for the reproduction of sound, and accessories used with such 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 uni t as descri bed in Paragraph 2.a. 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, repa ir, return or replace damaged or sto len electronic equipment will be reduced by the applicable deductible shown in the Declarations, or $250, whichever deducti ble i s less. 9. EXTRA EXPENSE BROADENED COVERAGE Under Paragraph A -COVERAGE -of SECTION Ill -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 Ill -PHYSICA L 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 Ill -PHYSICAL DAMAGE COVERAGE , t he following is added : If anot her 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 th e deductible under this Business Auto Coverage Form is the smaller (o r smallest) deductible, it will be wa ived; (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,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 insuran ce manager, if you are a corporation . 13. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS If you unintentionally fail to d isclose any hazards existing at the inception date of your policy , we will not deny coverage under t his Coverage Form because of such fa il ure. 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 t o Liabi li ty Coverage is anywhere in the world provided that if the "insured's" responsibility to pay damages for "bodily injury" or "property damage" is determ ine d in a "suit," the "suit" is brought i n the Un ited States of America , the territories and possessions of the Un it ed States of America, Puerto Rico or Canada or in a settlement we agree to. 15. WAIVER OF SUBROGATION TRANSFER OF R IG HTS OF RECOVERY AGAINST OTHERS TO US -of SECTION IV - BUSINESS AUTO CONDITIONS is amended by adding the following: Form HA 9916 03 12 ©2011 , The Hartford (Includes copyrighted material of ISO Properties, Inc., with its permission .) Page 4 of 5 We waive any rig ht of recovery we may have against any person or organization with whom you have a written contract that requ ires such waiver because of payments we make for damages under thi s Coverage Form. 16. RESULTANT MENTAL ANGUISH COVERAGE The definition of "bodily injury" in SECTION V- DEFINITIONS is replaced by th e following: "Bodily inj ury" means bodily injury , sickness or disease susta ined by any person, includin g 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: If we cancel for any reason other than nonpayment of premium, we will mail or deliver to the first Named Insured written notice of cancellation at least 60 days before the effective date of cancellation. 18. HYBRID, ELECTRIC, OR NATURAL GAS VEHICLE PAYMENT COVERAGE In the event of a tota l loss to a "non-hybrid" auto for which Comprehensive, Specified Causes of Loss, or Collision coverages are provided under this Coverage Form, then such Physical Damage Coverages are amended as follows: a. If the auto is replaced with a "hybrid" auto or an auto powered solely by electricity or natural gas , we will pay an additional 10%, to a maximum of $2 ,500 , of the "non-hybrid" auto 's actual cash value or replacement cost, whichever i s less, b. The auto must be replaced and a copy of a bill of sale or new lease agreement received by us within 60 calendar days of t he date of "loss," c. Regardless of the number of autos deemed a total loss, the most we will pay under this Hybrid, Electric, or Natural Gas Vehicle Payment Coverage provision for any one "loss" is $10 ,000 . For the purposes of th e coverage provision, a.A "non-hybrid" auto is defined as an auto that uses only an internal combustion engine to move th e auto but does not include autos powered sole ly by electricity or natural gas. b .A "hybrid" auto is defined as an auto with an internal combustion engine and one or more electric motors; and that uses the internal oombustion engine and one or more electric motors to move the auto, or the internal oombustion engine to charge one or more electric motors, which move the auto . 19. VEHICLE WRAP COVERAGE In the event of a total loss to an "auto" for which Comprehensive, Specified Causes of Loss. or Co llision coverages are provided under this Coverage Form, then such Physical Damage Coverages are amended to add the following: In addition to the actual cash value of the "auto", we will pay up to $1,000 for vinyl vehicle wraps which are displayed on the covered "auto" at the time of total loss . Regardless of the number of autos deemed a total loss, the most we will pay under this Vehicle Wrap Coverage provision for any one "loss" is $5 ,000 . For purposes of this ooverage provision, signs or other graphics painted or magnetically affixed to the veh icle are not considered vehicle wraps. Form HA 9916 0312 ©2011, The Hartford (Includes copyrighted material of ISO Properties, Inc., wit h its perm i ss ion.) Page 5 of 5 PolicyNo. 57UEAZ.Ml416 Paragraph a. above does not apply to fuels, lubricants, fluids, exhaust gases or other similar "pollutants" that are needed for or result from the normal electrical, hydraulic or mechanical functioning of the covered "auto" or its parts, if: (1) The "pollutants" escape, seep, migrate or are discharged, dispersed or released direcUy from an "auto" part designed by its manufacturer to hold, store, receive or dispose of such "pollutants"; and (2) The "bodily injury", "property damage" or ''covered pollution cost or expense" does not arise out of the operation of any equipment listed in Paragraph 6.b. or 6.c. of the definition of "mobile equipment". Paragraphs b. and c. above do not apply to "accidents " that occur away from premises owned by or rented to an "insured" with respect to "pollutants" not in or upon a covered "auto" if: (a) The "pollutants" or any property in which the "pollutants" are contained are upset, overturned or damaged as a result of the maintenance or use of a covered "auto"; and (b) The discharge, dispersal, seepage, migration, release or escape of the "pollutants'' is caused directly by such upset, overturn or damage. E. "Diminution in value" means the actual or perceived loss in market value or resale value which results from a direct and accidental "loss". F. "Employee" includes a "leased worker". "Employee" does notinclude a "temporary worker". G. "Insured" means any person or organization qualifying as an insured in the Who Is An Insured provision of the applicable coverage . Except with respect to the Limit of Insurance , the coverage afforded applies separately lo each insured who is seeking coverage or against whom a claim or "suit" is brought. H. "Insured contract" means: 1. A lease of premises; 2. A sidetrack agreement; 3. Any easement or license agreement, except in connection with construction or demolition operations on or within 50 feet of a railroad; 4. An obligation, as required by ordinance, to indemnify a municipal ity, except in connection with work for a municipality; 5. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connect ion with work performed for a municipality) under which you assume the tort liability of another to pay for "bodily inj ury" or "property damage" to a third party or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement; or 6. That part of any contract or agreement entered into, as part of your business, pertaining to the rental or lease, by you or any of your "employees", of any "auto". However, such contract or agreement shall not be considered an "insured contract" to the extent that it obligates you or any of your "employees" to pay for "prope rty damage" to any "auto" rented or leased by you or any of your "employees". An "insured contract" does not include that part of any contract or agreement: a. That indemnifies a railroad for "bodily injury" or "property damage" arising out of construction or demolition operations, within 50 feet of any railroad property and affecting any railroad bridge or t rest le, tracks, roadbeds, tunnel, underpass or crossing; b. That pertains to the loan, lease or renta l of an "auto" to you or any of your "employees", if the "auto" is loaned, leased or rented with a driver; or c. That holds a person or organization engaged in the business of transporting property by "auto" for hire harmless for your use of a covered "auto" over a route or territory that person or organization is authorized to serve by public authority. I. "Leased worker" means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm to perform duties related to the conduct of your business. "Leased worker" does not include a "tempora ry worker". J. "Loss" means direct and accidental loss or damage . K. "Mobi le equipment" means any of the following types of land vehicles, including any attached machinery or equipment: 1. Bulldozers , farm machinery, forklifts and other vehicles designed for use principally off public roads; 2. Vehicles maintained for use solely on or next to premises you own or rent; 3. Vehicles that travel on crawler treads; CA 00 01 10 13 © Insurance Services Office, Inc., 2011 Page11of12 Policy No. 57UEAZM1 4 I3 necessary litigation expenses incurred by us and necessary litigation expenses incurred by the indemnitee at our request will be paid as Supplementary Payments. Notwithstanding the provisions of Paragraph 2.b.(2 ) of Section I - Coverage A -Bodily Injury And Property Damage Liability, su ch payments wi ll not be deemed to be damages for "bodily injury" and "property damage" and will not reduce the limits of insurance. Our ob li gation to defend an insured's indemnitee and to pay for attorneys' fees and necessary litigation expenses as Supplementary Payments ends when: a. We have used up the applicable limi t of insurance in the payment of judgments or settlements ; or b. The conditions set forth above, or the terms of the agreement described i n Paragraph f . above, are no longer met. SECTION II -WHO IS AN INSURED 1 . If you are designated in the Declarations as: a . An ind iv idual , you and your spouse are insureds, but only w ith respect to the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members , your partners, and their spouses are also insureds , but only with respect to the conduct of your business. c. A limited liabil ity company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business . Your managers are insureds, but only with respect to their duties as your managers. d. An organization other than a partnership, jo int venture or limited liability company , you are an insured . Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also i nsureds, but only with respect to their liability as stockholders. e. A trust, you are an insured . Your truste es are also insureds, but only with respect to their duties as trustees. 2. Each of t he following is also an insured: a. Employees and Volunteer workers Your "volunteer workers" only while performing duties related to the conduct of your busi ness, or your "employees", other than either your ''executive officers" (if you are an organization other than a partnership , joint venture or limited liability company) or your managers (if you are a limite d liability company), but only for acts within the scope of their emp loyment by you or whil e performing du tie s related to the conduct of your business. HG 00 010605 However, none of th ese "emp loyees" or "volunteer workers" are i nsureds for : (1) "Bodi ly injury" or "personal and advertising injury": (a) To you , to your partners or members (if you are a partnersh ip or joint venture), to your members (if you are a limited liability company), to a co-"employee" while in the course of his or her emp loyment or performing duties related to the co nduct of your business, or to your other "volunteer wor kers" wh il e performing duties re lated to the co n duct of your business; (b ) To the spouse, child , parent , brother or sister of that co -"employee" or that "volunteer worker" as a consequence of Paragraph (1 )(a ) above; (c ) For wh ich there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraphs (1)(a) or (b) above ; or (d) Aris ing out of his or her prov idin g or failing to provi de professional health care services. If you are not in the business of providing profess ional health care services, Paragraph (d) does not apply to any nurse, emergency medical technicia n or paramed ic employed by you to provide such services. (2) "Property damage" to property : (a) Owned, occupied or used by, (b) Ren ted t o, in the care , custody or control of, or over which physical control is be i ng exercised for any purpose by you , any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), o r any member (if you are a limited liabil ity company). b. Real Estate Manager Any person (ot her than your "emp lo yee " or ''volunteer worker"), or any organi zati on while acti ng as your real estate manager. c. Temporary Custodians of Your Property Any person or organ izati on having proper temporary custody of your property if you die , but only: (1) With respect to liabi lity arising out of the maintenance or use of that property ; and (2) Until your legal rep rese ntative has been appointed . d. Legal Representative If You Die Your legal representativ e if you d ie, bu t only w ith respect to dutie s as such . That represe nt ative will Page 9 of 18 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 insu red 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 tha n a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of th e 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 8 does not apply to "personal and advertising injury" arising out of an offense com mitted 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 wit h 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. Page 10 of 18 5. Nonowned 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 wh ile operating such watercraft with your permission . Any other person or organization respons ib le 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 ki nd 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 emp loyer of any person who is an insured under this provision. 6. Additional In sureds 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 i njury 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 th is 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 "bodil y injury" or "property damage" included within the "products- completed operations hazard". (1) The insurance afforded the vendor is subject to the following additional exclusions: This 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 i n a co ntract or agreement. Th is exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; HG 00 01 06 05 (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 inspe ction, demonstration , testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (e) Any fai l ure to make such inspections, adjustments, tests or servicing as the vendor has agreed t o make or normally undertakes to make in the usual course of bus in ess , 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 "prope rty 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 except ions contained in Sub- paragraphs (d) or (f); or (ii) Such inspections , adjustments , tests or servicing as the vendor has agreed to make or nonnally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. (2) This insurance does no t apply to any insured person or organ ization, from whom you have acquired such products, or any ingredient, part or conta i ner, entering into , accompanying or conta i ning such products. b. Lessors of Equipment (1) My person or organizat ion from whom you lease equipment ; bu t only with respect to their liability for "bodily injury", "property damage" or "pe rsonal and advertising injury" caused, in whole or in part , by your mai ntenance, operation or use of equipment leased to you by such person or organization . {2) With respect to the insu rance afforded to these additional insureds this insurance does not apply to any "occurrence" which takes place after the equipment lease expires. HG 00 01 06 05 c. Lessors of Land or Premises Any person or organization from whom you lease land or premises, but only w ith respe ct to liability arising out of the ownership , maintenance or use of that part of the land or prem ises leased to you. With respect to the insurance afforded t hese additional insureds the following additional exclusions apply: Th is 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 inj ury", "property damage" or "personal and advertis in g injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your beha lf: (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 t he 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, arch itectural or engineering activitie s. e. Permits Issued By State Or Political Subdivisions Any state or pol iti cal 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 insuran ce afforded these additional insureds, this insurance does not app ly to: (1) "Bodily injury'', "property damage" or "personal and advertising i njury" arising out of operations performed for the state or municipality; or (2) "Bodily injury" or "prope rty damage" included within the "products -comple te d operations hazard". Page11of18 f. Any Other Party Any other person or organization who is not an insured under Paragraphs a. through e . above, 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 the performance of your ongoing operations; (2) In connection with your premises owned by or rented to you; or (3) In connection with "your work" and included within the "products-completed operations hazard", but only if (a) The written contract or agreement requires you to provide such coverage to such additional insured; and (b) This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard". With respect to the insurance afforded to these additional insureds, 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 architectural, engineering or surveying services, 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. The lim its of insurance that apply to additional insureds under this provision is described in Sect ion Il l -Limits Of Insurance . How this insurance applies when other insurance is available to the additional insured is described in the Other Insu rance Condition in Section IV -Commerc ial General Liability Conditions . No person or organization is an insured with respect to the conduct of any current or past partnership , joint venture or limited liability company th at is not shown as a Named Insured in the Declarations . SECTION Ill -LIMITS OF INSURANCE 1. The Most We will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or Page 12 of 18 c. Persons or organizations making claims or bringing "suits". 2. General Aggregate Limit The General Aggrega t e Limit is the most we will pay for the sum of: a. Medical expenses under Coverage C; b. Damages under Coverage A, except damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard"; and c. Damages under Coverage B. 3. Products-Completed Operations Aggregate Limit The Products -Completed Operations Aggregate Limit is the most we will pay under Coverage A for damages because of "bodily injury" and "property damage" incl uded in the "products-completed operations hazard". 4. Personal and Advertising Inju ry Limit Subject to 2. above , the Personal and Advertis in g Inju ry Limit is the most we will pay under Coverage B for the sum of all damages because of all "personal and advertising injury" susta i ned by any one person or organiza ti on . 5. Each Occurrence Limit Subject t o 2. or 3. above, whichever applies , the Each Occurrence Limit is the most we wi ll pay for the sum of: a. Damages under Coverage A; and b. Medical expenses under Coverage C because of all "bodily injury" and "property damage" arising out of any one "occurrence". 6. Damage To Premises Rented To You Limit Subject t o 5. above , the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages because of "property damage" to any one prem i ses, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you wit h permission of the owner. In the case of damage by fire, lightn ing or explosion , the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event , whether such damage results from fire, lightning or explosion or any combination of these. 7. Medical Expense Limit Subject to 5. above, the Med ica l Expense Limit is the most we will pay under Coverage C for all medical expenses because of "bodily injury" sustained by any one person. 8. How Limits Apply To Additional Insureds If you have ag reed in a written contract or written agreement that another person or organ izat ion be HG 00 01 06 05 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. The Limits of Insurance of this Coverage Part apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case , the additional period will be deemed part of the last preceding period for purposes of determining the Limits of Insurance. SECTION IV -COMMERC IAL GENERAL LIABILITY CONDITIONS 1. Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part. 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit a. Notice Of Occurrence Or Offense You or any additional insured must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a daim. To the extent possible , notice should include: (1) How, when and where the "occurrence" or offense took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the "occurrence" or offense . b . Notice Of Claim If a claim is made or "suit" is brought against any insured, you or any additional insured must: (1) Immediately record the specifics of the claim or "suit" and the date received; and (2) Notify us as soon as practicable. You or any add it ional insured must see to it that we receive written notice of the claim or "suit" as soon as practicable. c. Assistance And Cooperation Of The Insured You and any other involved insured must: (1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit"; (2) Authorize us to obtain records and other information; HG 00 01 06 05 (3) Cooperate with us in the investigation or sett lement of the claim or defense against the "suit"; and (4) Assist us, upon our request , in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply. d . Ob ligations At The Insureds Own Cost No insured will , except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, ot her than for first aid, without our consent. e. 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 additiona l insured, such additional insured must subm it 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-contributory w ith the add iti onal insured's own insurance. f. Knowledge Of An Occurrence, Offense, Claim Or Suit Paragraphs a. and b. apply to you or to any additional insured only when such "occurrence", offense, claim or "suit" is known to: (1) You or any additional insured that is an individual; (2) Arly partner, if you or an additional insured is a partnership; (3) Arly manager, if you or an additional in sured is a limited liabil ity company; (4) Any "executive officer" or insurance manager, if you or an additiona l insured is a corporation; (5) Arly trustee , if you or an additional insured is a trust; or (6) Arly elected or appointed official , if you or an add iti onal i nsured is a political subdiv ision or public entity. This duty applies separately to you and any add iti onal insured. 3. Legal Action Against Us No person or organization has a right under this Coverage Part: a. To joi n us as a party or otherwise bring us into a "suit" asking for damages from an insured; or b . To sue us on this Coverage Part unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement o r on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this Coverage Part or Page 13 of 18 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 obl igations 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 pri mary , 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; (3) Tenant Liability That is insurance purchased by you to cover your liabi lity as a tenant for "property damage" to prem i ses ren t ed to you or temporarily occupied by you with permission of the owner; (4) Aircraft, Auto Or Watercraft If the loss ari ses out of the ma inten ance 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 lo the extent not subject to Exclusion j. of Secti on I -Coverage A -Bodily Injury And Property Damage Liability; (6) When You Are Added As An Additional Insured To Other Insurance Any other insurance ava ilable 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 i nsured by that insurance; or Page 14 of 18 (7) When You Add Others As An Additional Insured To This Insurance Any other insurance ava il able lo an add ition al insured. However , the following provisions apply to other insurance available to any person or organization who is an add itional 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 t hat 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 pem,it that this insurance is primary and non-contributory wit h the additional insured's own insurance, this i nsurance is primary and we will not seek contribut ion 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 "su it" if any other in surer has a duty to defend t he 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 th ose othe r 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 deductib le and self-insured amounts under all that other insurance. We will share the remaining loss, if any, with any other i nsurance that is not described i n this Excess Insurance provision and was not bought specifica lly 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 con t ribution 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. HG 00 01 06 05 If any of the other insurance does not permit contribu t ion by equal shares, we will contribute by limits. Under this me t hod , each insurer's share is based on the ratio of its appli cab le 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 prem i um is a deposit premium only. At the close of each audit period we will compute the earned prem i um 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 ad van ce 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 th e information we need for prem i um computation , and send us copies at such times as we may request. 6. Representations a. When You Accept This Policy By accepting thi s 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 di sclose 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 Cove rage 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 t o recover all or part of any payment, including Supplementary Payments, we have made under thi s Coverage Part, those rights are transferred to us. The insu red must do nothing after loss to impair them . At our request, the HG 00 01 06 05 insured will bring "suit" or transfer those rights to us 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 right s of recovery against such person or organization in a contract, agreement or permit that was executed pr ior to the injury or damage. 9. When We Do Not Renew If we decide not to renew this Coverage Part, we wi ll mail or deliver to the first Named Insu red 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 1. "Advert iseme nt" means the widespread public dissemination of information or images that has the pu rp ose of inducing t he 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 conversat i on between or among persons through a computer netwo rk. 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, traile r or semitrailer designed for travel on public roads, inc luding 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 deat h at any time. Page 15 of 18 Policy No 57\i\TEAPK7544 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT -CALIFORNIA 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 the person or organization named in the Schedule . (This agreement applies only to the ex tent that you perform work under a written contract that requires you to obtain th is agreement from us.) You must maintain payroll records accurately seg regat i ng the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be otherwise due on such remunerat ion. % of the California workers' compensation premium SCHEDULE Person or Organization All persons and/or orginizations that are required by written contract or agreement with the insured, executed prior to the accident or loss. That a waiver of subrogation be provided under this policy for work performed by you for that person and/or organization Job Description Ca ss Hamann Countersigned by -------------------- Form WC 04 03 06 Process Date: (1) Printed in U.S.A. Authorized Representative Policy Expiration Date: