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18-018 Tripepi Smith & Associates, Graphic Design ServicesCITY OF II PROFESSIONAL/SPECIALIZED SERVICES AGREEMENT WITH Tripepi Smith & Associates CUPERTINO 1. PARTIES This Agreement is made and entered into as of January 1, 2018 ("Effective Date ") by and between the City of Cupertino , a municipal corporation ("City"), and Tri pepi Smith & Associates ______________ , a corporation [corporation, partnership, limited liability company, and s ole proprietorship/individual} ("Contractor") for graphic design services [identify category of services}. 2. SERVICES Contractor agrees to provide the services and perform the tasks ("Services ") set forth in detail in Scope of Services, attached here and incorporated as Exhibit A. 3. TIME OF PERFORMANCE 3.1 This Agreement begins on the Effective Date and ends on June 30 , 2018 ("Contract Time "), unless terminated earlier as provided herein. Contractor 's Services shall begin on January 1, 2018 and shall be completed by _J_un_e_3_o_, 2_0_1_8 ______ _ 3.2 Schedule of Performance. Contractor must deliver the Services in accordance with the Schedule of Performance , attached and incorporated here Exhibit B. 3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources , and qualified staff to deliver the Services on time. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $ $10 ,000 ("Contract Price "), based upon the scope of service s in Exhibit A and the budget and rates included. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor 's actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City. 4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable completed and the amount due for the preceding month. Within thirty (30) days of completion of Services , Contractor must submit a requisition for final and complete payment of costs and pending claims for City approval. Failure to timely submit a complete and accurate payment requisition relieves City of any further payment or other obligation s under the Agreement. City Project/Program Cupertino Scene Pro fess io na l/Spec ia lize d Se rvice Ag ree ment /Rev. N o v 3 , 2 01 7 Page I of 8 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. Contractor is not entitled to health benefits , worker's compensation or other benefits from the City. 5.2 Contractor's Qualifications . Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Services in a competent and professional manner and according to the highest standards and best practices in the industry. 5.3 Permits and Licenses . Contractor warrants on behalf of itself and its subcontractors that they are properly licensed , registered, and/or certified to perform the Services as required by law and have procured a City Business License . 5.4 Subcontractors. Only Contractor's employees are authorized to work under this Agreement. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Agreement will apply to any approved subcontractor. 5.5 Tools, Materials and Equipment. Contractor will supply all tools , materials and equipment required to perform the Services under this Agreement. 5.6 Payment o( Taxes. Contractor must pay income taxes on the money earned under this Agreement. Upon City's request, Contractor will provide proof of payment and will indemnify City for violations pursuant to the indemnification provision of this Agreement. 6. PROPRIETARY /CONFIDENTIAL INFORMATION In performing this Agreement, Contractor may have access to private or confidential information owned or controlled by the City, which may contain proprietary or confidential details the disclosure of which to third parties may be damaging to City . Contractor shall hold in confidence all City information provided by City to Contractor and use it on ly to perform this Agreement. Contractor shall exercise the same standard of care to protect City information as a reasonably prudent contractor would use to protect its own proprietary data . 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Any interest (including copyright interests) of Contractor in any product, memoranda, study , report, map , plan , drawing, specification , data , record, document or other information or work, in any medium (collectively, "Work Product"), prepared by Contractor in connection with this Agreement will be the exclusive property of the City and shall not be shown to any third-party without prior written approval of City. 7.2 Copyright. To the extent permitted by Title 17 of U.S. Code, all Work Product arising out of this Agreement is considered "works for hire " and all copyrights to the Work Product will City Project/Program._C_up_e_rti_no_s_c_en_e ____ _ Profess iona l/Speci a li zed Servic e Ag ree ment /Re v. No v 3, 2017 Pag e 2 o f8 be the property of City . Alternatively, Contractor assigns to City all Work Product copyrights. Contractor may use copies of the Work Product for promotion onl y with City 's written approval. 7.3 Patents and Licenses. Contractor must pay royalties or license fees required for authorized use of any third party intellectual property, including but not limited to patented , trademarked , or copyrighted intellectual property if incorporated into the Services or Work Product of this Agreement. 7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City may use or modify the Work Product of Contractor or its sub-contractors prepared or created under this Agreement, to execute or implement any of the following : (a) The original Services for which Contractor was hired ; (b) Completion of the original Services by others; (c) Subsequent additions to the original Services; and/or (d) Other City projects. 7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work Product, on recycled paper and copied on both sides , except for one single-sided original. 8. RECORDS Contractor must maintain complete and accurate accounting records relating to its performance in accordance with generally accepted accounting principles. The records must include detailed information of Contractor's performance, benchmarks and deliverables , which must be available to City for review and audit. The records and supporting documents must be kept separate from other records and must be maintained for four years from the date of City 's final payment. 9. ASSIGNMENT Contractor shall not assign , sublease, hypothecate, or transfer this Agreement, or any interest therein , directly or indirectly, by operation of law or otherwise, without prior written consent of City . Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Agreement and subject to City approval , which shall not be unreasonably withheld. Control means fifty percent (50%) or more of the voting power of the business entity. 10. PUBLICITY / SIGNS Any publicity generated by Contractor for the project under this Agreement, during the term of this Agreement and for one year thereafter, will reference the City 's contributions in making the project possible. The words "City of Cupertino" will be displayed in all pieces of publicity , including flyers, press releases , posters , brochures, public service announcements, interviews and newspaper articles . No signs may be posted , exhibited or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City . C ity Project/Program_C_up_e_rti_no_S_c_en_e ____ _ Pro fess ional/Spec iali ze d Service Ag ree ment /Rev . Nov 3, 201 7 Pa ge 3 o f 8 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law , and except for losses caused by the sole and active negligence or willful misconduct of City personnel , Contractor shall indemnify, defend , and hold harmless City, its City Council , boards and commissions , officers , officials , employees , agents , servants , volunteers and consultants ("Indemnitees "), through legal counsel acceptable to City, from and against any and all liability, damages , claims , actions , causes of action, demands , charges, losses, costs and expenses (including attorney fees , legal costs and expenses related to litigation and dispute resolution proceedings), of every nature , arising directly or indirectly from this Agreement or in any manner relating to any of the followin g : (a) Breach of contract, obligations , representations or warranties; (b) Negligent or willful acts or omissions committed during performance of the Services ; (c) Personal injury , property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors; (d) Unauthorized use or disclosure of City's confidential and proprietary Information; (e) Claim of infringement or violation of a U .S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights of any third party. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim , in accordance with California Public Contract Code Section 9201. At City 's request, Contractor will a ssist City in the defense of a claim , dispute or lawsuit arising out of this Agreement. 11.3 Contractor 's duties under this section are not limited to the Contract Price , workers ' compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any Indemnitee. 11.4. Contractor's payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Agreement, a purchase order, or other transaction. 12. INSURANCE Contractor shall comply with the Insurance Requirements , attached and incorporated here as Exhibit C, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered , and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor's compensation or terminating the Agreement. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all local , state and federal laws and regulations applicable to this Agreement. Contractor will promptly notify City of changes in the la w or other conditions that may affect the Project or Contractor 's ability to perform . Contractor C ity Project/Program Cupertino Scene Pro fess ion al/S peci a li ze d Serv ice Agre em ent /Rev. N ov 3, 2017 Page 4 of 8 is responsible for v erifying the employment authorization of employees performing the Services , as required by the Immigration Reform and Control Act. 13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a "public works " component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race , religious creed , color, ancestry, national origin, ethnicity , handicap , disability, marital status , pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS) or any other protected classification . Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735 , 1777 and 3077.5 . Consistent with City policy prohibiting harassment and discrimination , Contractor understands that harassment and discrimination directed toward a job applicant , an employee, a City employee , or any other person , by Contractor or its employees or sub- contractors will not be tolerated. 13.4 Conflicts oflnterest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official , employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of the California Code of Regulations. Contractor agrees to abide by the City 's rules governing gifts to public officials and employees . 13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements or terminating this Agreement. City reserves all other rights and remedies available under the law and this Agreement, including the right to seek indemnification under Section 11 of this Agreement. 14. PROJECT COORDINATION City Project Manager. The City assigns PIO Brian Babcock as the City 's representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. City reserves the right to substitute another Project manager at an y time , and without prior notice to Contractor. Contractor Project Manager. Subject to City approval , Contractor assigns Ryder Smith ______ as its single Representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. Contractor 's Project manager is responsible for coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule of Performance. Contractor must regularly update the City 's Project Manager about the progress with the work or any delays , as required under the Scope of Services . City written approval is required prior to substituting a new Representative. C ity Project/Program Cupertino Scene P rofess ion al/S peci a li ze d Se rvice Agreeme nt /Rev. Nov 3 , 2 01 7 Page 5 of8 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Services performed through the date of abandonment, and will be given reasonable time to assemble the work and close out the Services . With City 's pre-approval in writing, the time spent in closing out the Services will be compensated up to a maximum of ten percent (10%) of the total time expended to date in the performance of the Services. 16. TERMINATION City may terminate this Agreement for cause or without cause at any time. Contractor will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Contractor closes out the Services and delivers the Work Product. 17. GOVERNING LAW, VENUE AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California . Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises , Contractor must continue to provide the Services pending resolution of the dispute . If the Parties elect arbitration , the arbitrator's award must be supported by law and substantial evidence and include detailed written findings of law and fact. 18. ATTORNEY FEES If City initiates legal action , files a complaint or cross-complaint, or pursues arbitration , appeal , or other proceedings to enforce its rights or a judgment in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs . 19. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Agreement. 20. WAIVER Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City's waiver of a breach shall not constitute waiver of another provision or breach. 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of every kind or nature between the Parties, and supersedes any other agreement(s) and understanding(s), either oral or written, between the Parties . Any modification of this Agreement will be effective only if in writing and signed by each Party 's authorized representative. No verbal agreement or implied covenant will City Project/Program Cupertino Scene Profe ss io nal/Speciali ze d Servi ce Ag reem e nt /Re v. N o v 3 , 2017 Page 6 o f 8 be valid to amend or abridge this Agreement. If there is any inconsistency between the main Agreement and the attachments or exhibits thereto , the te x t of the main Agreement shall prev ail. 22. INSERTED PROVISIONS Each provision and clause required by law for this Agreement is deemed to be included and will be inferred herein . Either party may request an amendment to cure mistaken insertions or omissions of required provisions . The Parties will collaborate to implement this Section , as appropriate . 23. HEADINGS The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. 24. SEVERABILITY IP ARTIAL INVALIDITY If any term or provision of this Agreement, or their application to a particular situation , is found by the court to be void , invalid , illegal or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. The Parties agree to w o rk in good faith to amend this Agreement to carry out its intent. 25. SURVIVAL All provisions which by their nature must continue after the Agreement expires or is terminated , including the Indemnification, Ownership of Materials/Work Product, Records , Governing Law and Attorney Fees, shall survive the Agreement and remain in full force and effect. 26. NOTICES All notices , requests and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery or the date confirmed by a reputable overnight delivery service , on the fifth calendar day after deposit in the United States Mail , postage prepaid, registered or certified , or the next business day following electronic submission : To City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention : Brian Babcock Email : brianb@cupertino .org C ity Project/Program Cupertino Scene To Contractor: Tripepi Smith and Associates P.O . Box 52152 Irvine , CA 92619 Attention: Ryder Smith --------------Em a i 1: ryder @tripepismith .com Pro fess io nal/S pec ia li zed Se rvice Agreeme nt /Rev. Nov 3, 20 17 Page 7 o f 8 27. VALIDITY OF CONTRACT This Agreement is valid and enforceable only if (a) it complies with the purchasing and contract provisions of Cupertino Municipal Code Chapters 3.22 and 3.23 , as amended from time to time , (b) is signed by the City Manager or an authorized designee , and (c) is approved for form by the City Attorney's Office. 28. EXECUTION The person executing this Agreement on behalf of Contractor represents and warrants that Contractor has full right , power, and authority to enter into and carry out all actions contemplated by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Contractor. This Agreement may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONTRACTOR Tripepi Smith and Associates, Inc By ~~~ I Name Ryder Todd Smith Title President Date 1/31/2018 Tax l.D. No.: 73-1642614 ~P-P-R9 VED AS TO FORM: £~oVQ_ifrr RANDOLR H STEVENS0NHOM Cupe1tino 6-ity Attorney ATTEST: (""'")~. ~ ~~(ft CITY OF CUPERTINO A Municipal Corporation GRACE SCHMIDT J_ r-( ~-( g City Clerk City Project/Program Cupertino Scene Profess ion al/Sp eci a li ze d Serv ice Ag re e me nt /Rev. N o v 3, 201 7 Page 8 o f 8 EXHIBIT A: SERVICES The Contractor will perform graphic design services monthly (January 2018 through June 2018) for a 12- page newsletter (The Cupertino Scene) and deliver a final PDF based on the schedule in Exhibit 8. Rate : • 15 hours at $85 standard rate • 5 hours at $65 contingency rate • Monthly invoice will not exceed: $1,600 EXHIBIT B: SCHEDULE OF PERFORMANCE The Contractor will complete graphic design services and deliver a final PDF version of the newsletter on the following dates: • Tuesday, February 20, 2018 • Tuesday, March 20, 2018 • Tuesda~April24,2018 • Tuesday, May 22, 2018 • Tuesday, June 19, 2018 EXHIBIT C: INSURANCE *Attached State Farm A g State Far m Specialty Produ cts CERTIFICATE OF INSURANCE : anuary , ISSUE DATE J 8 2018 Producer Tori Gonzales THIS CERTIFICATE IS ISSUED AS A MATIER OF MARK HILL STATE FARM AGENCY INFORMATION ONLY AND CONFERS NO RIGHTS UPON 17395 17th St Ste F THE CERTIFICATE HOLDER . THIS CERTIFICATE DOES Tustin , CA 92780-1971 NOT AMEND , EXTEND OR ALTER THE COVERAGE , TERMS , EXCLUSIONS AND CONDITIONS AFFORDED Producer Code #: 753000 BY THE POLICIES BELOW. Producer Fax#.: (714) 505-4152 INSURER AFFORDING COVERAGE Named Insured State Farm Fire and Casualty Company TRIPEPI , SMITH , AND ASSOCIATES, INC BLOOMINGTON , IL 1520 Voyager Drive Tustin, CA 92782 COVERAGES 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 POLICY(IES) DESCRIBED HEREIN IS SUBJECT TO ALL THE COVERAGE , TERMS , EXCLUSIONS AND CONDITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS . POLICY NUMBER POLICY EFFECTIVE DATE POLICY EXPIRATION DATE PS0000004006506 April 8, 2017 April 8 , 2018 TYPE OF INSURANCE LIMIT OF LIABILITY Technology Services Errors and Omissions Liability Insurance $2,000,000 -Limit of Liability Policy Each Wrongful Act $2,000,000 -Total Limit of Liability CANCELLATION CERTIFICATE HOLDER SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF , THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS The City of Cupertino WRITIEN NOTICE TO THE CERTIFICATE HOLDER NAMED 10300 Torre Avenue TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL Cupertino, CA 95014 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER , ITS AGENTS OR REPRESENTATIVES . ~ f'o ·,~ ---\) ~. AUTHORIZED HEPl=fESEtflY'.TIVE - CERT(Rev5) (08/11) TRIPSMl-01 VFOSTER ACC>RD CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 06/19/2017 I THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS ERTi Fi CATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND . OR ALTER THE COVERAGE AFFORDED BY THE POLICIES .ELOW. 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 have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION 15 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 License# OG19762 ~2~l~cT Victoria Foster Momentous Insurance Brokerage Inc rA~8.Ntro , Ext): (818) 933-9868 I FAX 5990 Sepulveda Blvd., #550 (A/C , No):(818) 933-9888 Van Nuys, CA 91411 i~l~~ss, victoria.foster@mmibi.com INSURERCSl AFFORDING COVERAGE NAIC# INSURER A, Sentinel Insurance Comoanv 11000 INSURED IN SURER B : Tripepi Smith & Associates INSURER C: c/o Nicole Smith PO Box 52152 INSURER D : Irvine, CA 92619 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER · REVISION NUMBER· THIS JS 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 15 SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS . INSR TYPE OF INSURANCE ~J>.,0.(-~~ POLICY NUMBER ,_POLIC Y EFF (~g~~SY EXP .. LIMITS I TR A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 -:J CLAIMS-MAD E [Kl OCCUR g~~b~H9E~';.~;,~~ncel X 72SBAAP9446 06/20/2017 06/20/2018 $ 1,000,000 MED EXP /Anv one oersonl $ 10,000 - PERSONAL & ADV INJURY $ 2,000,000 t-- 4 ,000,000 H'L AGGREGATE LIMI T APPLIES PER : GENERAL AGGREGATE $ POLICY O ft8i O LOG PRODUCTS -COMP/OP AGG $ 4,000,000 OTHER : $ AUTOMOBILE LIABILITY ~~~~~~;~,flNGLE LIMIT $ 2,000,000 - ANY AUTO 72SBAAP9446 06/20/2017 06/20/2018 BODILY INJURY (Per oerson l $ -OWNED ~ SCHEDULED AUTOS ONLY AUTOS BODILY INJURY /Per acci dent\ $ --X ~~TEf:?soNLY X NON-OWNED fp~9~2c,\}l;,~l~AMAGE $ --AUTOS ONLY $ A X UMBRELLA LIAB ~ OCCUR EACH OCCURR EN CE $ 1,000,000 t-- 725BAAP9446 06/20/2017 06/20/2018 1,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $ OED I X I RETENTION$ 10,000 $ A WORKERS COMPENSATION XI ~ffrnTE I I ~~H-AND EMPLOYERS' LIABILITY YIN 72WECGF7491 06/20/2017 06/20/2018 1,000,000 ANY PROPRIETOR/PARTNER/E XECUTIV E D E.L. EACH ACCIDENT $ ~FFI CER/MEMBER EXCL UDED ? N/A 1,000,000 Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $ If yes , describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLI CY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule , may be attached if more space is required) , City, its C ity Council, boards and commissions, officers , employees and volunteers shall be named as an additional insured as respects to General Liability Insurance in regards to the operations of the named insured and as required by this Agreement, per form SS00080405 (pages 11 -13 of 24). The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured . An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. The General Liabi lity is Primary and Non-Contributory where required by written contract, per form S500080405 (page 17 of 24). CERTIFICATE HOLDER I City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 ACORD 25 (2016/03) CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE © 1988-2015 ACORD CORPORATION . All rights reserved. The ACORD name and logo are registered marks of ACORD QUICK REFERENCE BUSINESS LIABILITY COVERAGE FORM READ YOUR POLICY CAREFULLY BUSINESS LIABILITY COVERAGE FORM Beginning on Page A. COVERAGES 1 Business Liability 1 Medical Expenses 2 Coverage Extension -Supplementary Payments 2 8. EXCLUSIONS 3 C. WHO IS AN INSURED 10 D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 14 E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 15 1. Bankruptcy 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit 3. Financial Responsibility Laws 4. Legal Action Against Us 5. Separation Of Insureds 6. Representations 7 . Other Insurance 8. Transfer Of Rights Of Recovery Against Others To Us F. OPTIONAL ADDITIONAL INSURED COVERAGES Additional Insureds G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS Form SS 00 08 04 05 15 15 16 16 16 16 16 17 18 18 20 BUSINESS LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage . Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the stock insurance company member of The Hartford providing this insurance . The word "insured" means any person or organization qualifying as such under Section C. -Who Is An Insured . Other words and phrases that appear in quotation marks have special meaning . Refer to Section G . -Liability And Medical Expenses Definitions. A. COVERAGES 1. BUSINESS LIABILITY COVERAGE (BODILY INJURY, PROPERTY DAMAGE, PERSONAL AND ADVERTISING INJURY) Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies . We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury", "property damage" or "personal and advertising injury" to which this insurance does not apply. We may, at our discretion , investigate any "occurrence" or offense and settle any claim or "suit" that may result. But: (1) The amount we will pay for damages is limited as described in Section D. - Liability And Medical Expenses Limits Of Insurance; and (2) Our right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments , settlements or medical expenses to which this insurance applies . No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Coverage Extension -Supplementary Payments . b. This insurance applies : (1) To "bodily injury" and "property damage" only if: Form 55 00 08 04 05 © 2005, The Hartford (a) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; (b) The "bodily injury" or "property damage" occurs during the policy period; and (c) Prior to the policy period, no insured listed under Paragraph 1. of Section C. -Who Is An Insured and no "employee" authorized by you to give or receive notice of an "occurrence" or claim , knew that the "bodily injury" or "property damage" had occurred , in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period . (2) To "personal and advertising injury" caused by an offense arising out of your business, but only if the offense was committed in the "coverage territory" during the policy period . c. "Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1. of Section C. -Who Is An Insured or any "employee" authorized by you to give or receive notice of an "occurrence" or claim: (1) Reports all, or any part, of the "bodily injury" or "property damage" to us or any other insurer; Page 1 of 24 BUSINESS LIABILITY COVERAGE FORM (2) Receives a written or verbal demand or claim for damages because of the "bodily injury" or "property damage"; or (3) Becomes aware by any other means that "bodily injury" or "property damage" has occurred or has begun to occur. d. Damages because of "bodily injury" include damages claimed by any person or organization for care , loss of services or death resulting at any time from the "bodily injury". e. Incidental Medical Malpractice (1) "Bodily injury" arising out of the rendering of or failure to render professional health care services as a physician , dentist, nurse , emergency medical technician or paramedic shall be deemed to be caused by an "occurrence", but only if: (a) The physician, dentist, nurse , emergency medical technician or paramedic is employed by you to provide such services ; and (b) You are not engaged in the business or occupation of providing such services . (2) For the purpose of determining the limits of insurance for incidental medical malpractice , any act or omission together with all related acts or omissions in the furnishing of these services to any one person will be considered one "occurrence". 2. MEDICAL EXPENSES Insuring Agreement a. We will pay medical expenses as described below for "bodily injury" caused by an accident: (1) On premises you own or rent ; (2) On ways next to premises you own or rent ; or (3) Because of your operations; provided that: (1) The accident takes place in the "coverage territory" and during the policy period ; (2) The expenses are incurred and reported to us within three years of the date of the accident ; and (3) The injured person submits to Page 2 of 24 examination , at our expense , by physicians of our choice as often as we reasonably require . b. We will make these payments regardless of fault. These payments will not exceed the applicable limit of insurance . We will pay reasonable expenses for : (1) First aid admin istered at the time of an accident ; (2) Necessary medical , surgical, x-ray and dental services , including prosthetic devices; and (3) Necessary ambulance , hospital, professional nursing and funeral services. 3. COVERAGE EXTENSION - SUPPLEMENTARY PAYMENTS a. We will pay , with respect to any claim or "suit" we investigate or settle , or any "suit" against an insured we defend: (1) All expenses we incur. (2) Up to $1 ,000 for the cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which Business Liability Coverage for "bodily injury" applies. We do not have to furnish these bonds . (3) The cost of appeal bonds or bonds to release attachments , but only for bond amounts within the applicable limit of insurance . We do not have to furnish these bonds . (4) All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to $500 a day because of time off from work. (5) All costs taxed against the insured in the "suit". (6) Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. (7) All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay , or deposited in court the part of the judgment that is within the applicable limit of insurance . Any amounts paid under (1) through (7) above will not reduce the limits of insurance . Form 55 00 08 04 05 b. If we defend an insured against a "suit" and an indemnitee of the insured is also named as a party to the "suit", we will defend that indemnitee if all of the following conditions are met: (1) The "suit" against the indemnitee seeks damages for which the insured has assumed the liability of the indemnitee in a contract or agreement that is an "insured contract"; (2) This insurance applies to such liability assumed by the insured; (3) The obligation to defend, or the cost of the defense of, that indemnitee, has also been assumed by the insured in the same "insured contract"; (4) The allegations in the "suit" and the information we know about the "occurrence" are such that no conflict appears to exist between the interests of the insured and the interest of the indemnitee; (5) The indemnitee and the insured ask us to conduct and control the defense of that indemnitee against such "suit" and agree that we can assign the same counsel to defend the insured and the indemnitee; and (6) The indemnitee : (a) Agrees in writing to : (i) Cooperate with us in the investigation, settlement or defense of the "suit"; (ii) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the "suit"; (iii) Notify any other insurer whose coverage is available to the indemnitee; and (iv) Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and (b) Provides us with written authorization to: (i) Obtain records and other information related to the "suit"; and (ii) Conduct and control the defense of the indemnitee in such "suit". Form 55 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM So long as the above conditions are met, attorneys' fees incurred by us in the defense of that indemnitee, 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 1.b.(b) of Section B. - Exclusions, such payments will not be deemed to be damages for "bodily injury" and "property damage" and will not reduce the Limits of Insurance. Our obligation to defend an insured's indemnitee and to pay for attorneys' fees and necessary litigation expenses as Supplementary Payments ends when : (1) We have used up the applicable limit of insurance in the payment of judgments or settlements ; or (2) The conditions set forth above, or the terms of the agreement described in Paragraph (6) above, are no longer met. 8. EXCLUSIONS 1. Applicable To Business Liability Coverage This insurance does not apply to : a. Expected Or Intended Injury (1) "Bodily injury" or "property damage" expected or intended from the standpoint of the insured . This exclusion does not apply to "bodily injury" or "property damage" resulting from the use of reasonable force to protect persons or property; or (2) "Personal and advertising injury" arising out of an offense committed by, at the direction of or with the consent or acquiescence of the insured with the expectation of inflicting "personal and advertising injury". b. Contractual Liability (1) "Bodily injury" or "property damage"; or (2) "Personal and advertising injury" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages because of: (a) "Bodily injury", "property damage" or "personal and advertising injury" that the insured would have in the absence of the contract or agreement ; or Page 3 of 24 BUSINESS LIABILITY COVERAGE FORM (b) "Bodily injury" or "property damage" assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement. Solely for the purpose of liability assumed in an "insured contract", reasonable attorneys' fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of "bodily injury" or "property damage" provided : (i) Liability to such party for , or for the cost of, that party 's defense has also been assumed in the same "insured contract", and (ii) Such attorneys' fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged . c. Liquor Liability "Bodily injury" or "property damage" for which any insured may be held liable by reason of: (1) Caus ing or contributing to the intoxication of any person; (2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute, ordinance or regulation relating to the sale, gift , distribution or use of alcoholic beverages . This exclusion applies only if you are in the business of manufacturing, distributing , selling, serving or furnishing alcoholic beverages. d. Workers' Compensation And Similar Laws Any obligation of the insured under a workers' compensation , disability benefits or unemployment compensation law or any similar law . e. Employer's Liability "Bodily injury" to : (1) An "employee" of the insured arising out of and in the course of: (a) Employment by the insured; or Page 4 of 24 (b) Performing duties related to the conduct of the insured's business , or (2) The spouse , child, parent, brother or sister of that "employee" as a consequence of (1) above . This exclusion applies : (1) Whether the insured may be liable as an employer or in any other capacity ; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury . This exclusion does not apply to liability assumed by the insured under an "insured contract". f. Pollution (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of the actual , alleged or threatened discharge , dispersal, seepage , migration , release or escape of "pollutants": (a) At or from any premises , site or location which is or was at any time owned or occupied by , or rented or loaned to any insured . However, this subparagraph does not apply to: (i) "Bodily injury" if sustained within a building and caused by smoke, fumes, vapor or soot produced by or originating from equipment that is used to heat , cool or dehumidify the building, or equipment that is used to heat water for personal use , by the building's occupants or their guests; (ii) "Bodily injury" or "property damage" for which you may be held liable, if you are a contractor and the owner or lessee of such premises, s~e or location has been added to your policy as an additional insured w~h respect to your ongoing operations performed for that additional insured at that premises , site or location and such premises , site or location is not and never was owned or occupied by , or rented or loaned to, any insured , other than that additional insured ; or Form SS 00 08 04 05 (iii) "Bodily injury" or "property damage" arising out of heat , smoke or fumes from a "hostile fire"; (b) At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste; (c) Which are or were at any time transported, handled, stored , treated, disposed of, or processed as waste by or for : (i) Any insured; or (ii) Any person or organization for whom you may be legally responsible; (d) At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured's behalf are performing operations if the "pollutants" are brought on or to the premises, site or location in connection with such operations by such insured, contractor or subcontractor. However, this subparagraph does not apply to : (i) "Bodily injury" or "property damage" arising out of the escape of fuels, lubricants or other operating fluids which are needed to perform the normal Form 55 00 08 04 05 electrical, hydraulic or mechanical functions necessary for the operation of "mobile equipment" or its parts, if such fuels, lubricants or other operating fluids escape from a vehicle part designed to hold , store or receive them . This exception does not apply if the "bodily injury" or "property damage" arises out of the intentional discharge, dispersal or release of the fuels , lubricants or other operating fluids , or if such fuels , lubricants or other operating fluids are brought on or to the premises, site or location with the intent that they be discharged , dispersed or BUSINESS LIABILITY COVERAGE FORM released as part of the operations being performed by such insured, contractor or subcontractor; (ii) "Bodily injury" or "property damage" sustained within a building and caused by the release of gases , fumes or vapors from materials brought into that building in connection with operations being performed by you or on your behalf by a contractor or subcontractor; or (iii) "Bodily injury" or "property damage" arising out of heat , smoke or fumes from a "hostile fire"; or (e) At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured 's behalf are performing operations if the operations are to test for, monitor, clean up, remove , contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, "pollutants". (2) Any loss, cost or expense arising out of any: (a) Request, demand , order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize , or in any way respond to, or assess the effects of, "pollutants"; or (b) Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring , cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to , or assessing the effects of, "pollutants". However, this paragraph does not apply to liability for damages because of "property damage" that the insured would have in the absence of such request, demand, order or statutory or regulatory requirement , or such claim or "suit" by or on behalf of a governmental authority . Page 5 of 24 BUSINESS LIABILITY COVERAGE FORM g. Aircraft, Auto Or Watercraft "Bodily injury" or "property damage" arising out of the ownership , maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading or unloading". This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision , hiring , employment , training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage" involved the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft that is owned or operated by or rented or loaned to any insured. This exclusion does not apply to: (1) A watercraft while ashore on premises you own or rent; (2) A watercraft you do not own that is: (a) Less than 51 feet long; and (b) Not being used to carry persons for a charge; (3) Parking an "auto" on , or on the ways next to, premises you own or rent , provided the "auto" is not owned by or rented or loaned to you or the insured; (4) Liability assumed under any "insured contract" for the ownership, maintenance or use of aircraft or watercraft; (5) "Bodily injury" or "property damage" arising out of the operation of any of the equipment listed in Paragraph f.(2) or f.(3) of the definition of "mobile equipment"; or (6) An aircraft that is not owned by any insured and is hired, chartered or loaned with a paid crew. However, this exception does not apply if the insured has any other insurance for such "bodily injury" or "property damage", whether the other insurance is primary, excess , contingent or on any other basis . h. Mobile Equipment "Bodily injury" or "property damage" arising out of: (1) The transportation of "mobile equipment" by an "auto" owned or operated by or rented or loaned to any insured; or Page 6 of 24 (2) The use of "mobile equipment" in , or while in practice or preparation for, a prearranged racing, speed or demolition contest or in any stunting activity . i. War "Bodily injury", "property damage" or "personal and advertising injury", however caused, arising, directly or indirectly, out of: (1) War , including undeclared or civil war; (2) Warlike action by a military force , including action in hindering or defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or (3) Insurrection , rebellion, revolution, usurped power , or action taken by governmental authority in hindering or defending against any of these . j. Professional Services "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or failure to render any professional service . This includes but is not limited to : (1) Legal, accounting or advertising services ; (2) Preparing , approving, or failing to prepare or approve maps , shop drawings, opinions, reports, surveys, field orders , change orders , designs or drawings and specifications ; (3) Supervisory, inspection , architectural or engineering activities ; (4) Medical, surgical, dental, x-ray or nursing services treatment, advice or instruction; (5) Any health or therapeutic service treatment , advice or instruction; (6) Any service, treatment , advice or instruction for the purpose of appearance or skin enhancement , hair removal or replacement or personal grooming; (7) Optical or hearing aid services including the prescribing , preparation, fitting, demonstration or distribution of ophthalmic lenses and similar products or hearing aid devices ; Form SS 00 08 04 05 (8) Optometry or optometric seNices including but not limited to examination of the eyes and the prescribing , preparation, fitting.demonstration or distribution of ophthalmic lenses and similar products; (9) Any: (a) Body piercing (not including ear piercing); (b) Tattooing , including but not limited to the insertion of pigments into or under the skin; and (c) Similar seNices; (10) SeNices in the practice of pharmacy; and (11) Computer consulting , design or programming seNices, including web site design. Paragraphs (4) and (5) of this exclusion do not apply to the Incidental Medical Malpractice coverage afforded under Paragraph 1.e. in Section A. -Coverages . k. Damage To Property "Property damage" to : (1) Property you own , rent or occupy, including any costs or expenses incurred by you, or any other person , organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason , including prevention of injury to a person or damage to another's property; (2) Premises you sell, give away or abandon, if the "property damage" arises out of any part of those premises; (3) Property loaned to you; (4) Personal property in the care, custody or control of the insured; (5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations ; or (6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it. Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Paragraphs (1), (3) and (4) of this exclusion do not apply to "property damage" (other than damage by fire) to premises , including the contents of such premises, rented to you for a period of 7 or fewer consecutive days . A separate Limit of Insurance applies to Damage To Premises Rented To You as described in Section D. -Limits Of Insurance. Paragraph (2) of this exclusion does not apply if the premises are "your work" and were never occupied , rented or held for rental by you . Paragraphs (3) and (4) of this exclusion do not apply to the use of elevators . Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraphs (3) and (4) of this exclusion do not apply to "property damage" to borrowed equipment while not being used to perform operations at a job site . Paragraph (6) of this exclusion does not apply to "property damage" included in the "products-completed operations hazard". I. Damage To Your Product "Property damage" to "your product" arising out of it or any part of it. m. Damage To Your Work "Property damage" to "your work" arising out of it or any part of it and included in the "products-completed operations hazard". This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. n. Damage To Impaired Property Or Property Not Physically Injured "Property damage" to "impaired property" or property that has not been physically injured , arising out of: (1) A defect, deficiency , inadequacy or dangerous condition in "your product" or "your work"; or (2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms . This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to "your product" or "your work" after it has been put to its intended use . Page 7 of 24 BUSINESS LIABILITY COVERAGE FORM o. Recall Of Products , Work Or Impaired Property Damages claimed for any loss , cost or expense incurred by you or others for the loss of use , withdrawal , recall, inspection , repair , replacement, adjustment , removal or disposal of: (1) "Yourproduct"; (2) "Your work"; or (3) "Impaired property"; if such product, work or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency , inadequacy or dangerous condition in it. p. Personal And Advertising Injury "Personal and advertising injury": (1) Arising out of oral , written or electronic publication of material, if done by or at the direction of the insured with knowledge of its falsity; (2) Arising out of oral , written or electronic publication of material whose first publication took place before the beginning of the policy period ; (3) Arising out of a criminal act committed by or at the direction of the insured ; (4) Arising out of any breach of contract, except an implied contract to use another's "advertising idea" in your "advertisement"; (5) Arising out of the failure of goods , products or services to conform with any statement of quality or performance made in your "advertisement"; (6) Arising out of the wrong description of the price of goods, products or services; (7) Arising out of any violation of any intellectual property rights such as copyright , patent , trademark , trade name , trade secret , service mark or other designation of origin or authenticity . Page 8 of 24 However, this exclusion does not apply to infringement, in your "advertisement", of (a) Copyright ; (b) Slogan , unless the slogan is also a trademark , trade name, service mark or other designation of origin or authenticity ; or (c) Title of any literary or artistic work ; (8) Arising out of an offense committed by an insured whose business is : (a) Advertising , broadcast ing , publishing or telecasting ; (b) Designing or determining content of web sites for others ; or (c) An Internet search , access, content or service provider. However, th is exclusion does not apply to Paragraphs a., b . and c. under the definition of "personal and advertising -injury" in Section G. - Liability And Medical Expenses Definitions . For the purposes of this exclusion, placing an "advertisement" for or linking to others on your web site , by itself, is not considered the business of advertising , broadcasting , publishing or telecasting ; (9) Arising out of an electronic chat room or bulletin board the insured hosts , owns, or over which the insured exercises control ; . (10) Arising out of the unauthorized use of another's name or product in your e-mail address , domain name or metatags , or any other similar tactics to mislead another's potential customers ; (11) Arising out of the violation of a person's right of privacy created by any state or federal act. However , this exclusion does not apply to liability for damages that the insured would have in the absence of such state or federal act ; (12) Arising out of: (a) An "advertisement" for others on your web site ; (b) Placing a link to a web site of others on your web site ; (c) Content from a web site of others displayed within a frame or border on your web site . Content includes information, code, sounds , text , graphics or images ; or (d) Computer code , software or programming used to enable : (i) Your web site; or (ii) The presentation or functionality of an "advertisement" or other content on your web site; Form SS 00 08 04 05 (13) Arising out of a violation of any anti- trust law ; (14) Arising out of the fluctuation in price or value of any stocks , bonds or other securities ; or (15) Arising out of discrimination or humiliation committed by or at the direction of any "executive officer", director, stockholder, partner or member of the insured . q. Electronic Data Damages arising out of the loss of, loss of use of, damage to, corruption of, inability to access, or inability to manipulate "electronic data". r. Employment-Related Practices "Bodily injury" or "personal and advertising injury" to: (1) A person arising out of any: (a) Refusal to employ that person ; (b) Termination of that person's employment; or (c) Employment-related practices , policies, acts or omissions, such as coercion, demotion , evaluation , reassignment, discipline , defamation , harassment , humiliation or discrimination directed at that person ; or (2) The spouse , child , parent, brother or sister of that person as a consequence of "bodily injury" or "personal and advertising injury" to the person at whom any of the employment-related practices described in Paragraphs (a), (b), or (c) above is directed . This exclusion applies : (1) Whether the insured may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury. s. Asbestos (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of the "asbestos hazard". (2) Any damages , judgments, settlements, loss , costs or expenses that: Form 55 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (a) May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not have occurred in whole or in part but for the "asbestos hazard"; (b) Arise out of any request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, encapsulate , contain, treat, detoxify or neutralize or in any way respond to or assess the effects of an "asbestos hazard"; or (c) Arise out of any claim or suit for damages because of testing for, monitoring, cleaning up, removing , encapsulating, containing , treating, detoxifying or neutralizing or in any way responding to or assessing the effects of an "asbestos hazard". t. Violation Of Statutes That Govern E- Mails , Fax, Phone Calls Or Other Methods Of Sending Material Or Information "Bodily injury", "property damage", or "personal and advertising injury" arising directly or indirectly out of any action or omission that violates or is alleged to violate : (1) The Telephone Consumer Protection Act (TCPA), including any amendment of or addition to such law ; (2) The CAN-SPAM Act of 2003 , including any amendment of or addition to such law ; or (3) Any statute, ordinance or regulation, other than the TCPA or CAN-SPAM Act of 2003, that prohibits or limits the sending , transmitting, communicating or distribution of material or information . Damage To Premises Rented To You - Exception For Damage By Fire, Lightning or Explosion Exclusions c. through h. and k. through o. do not apply to damage by fire , lightning or explosion to premises rented to you or temporarily occupied by you with permission of the owner. A separate Limit of Insurance applies to this coverage as described in Section D. -Liability And Medical Expenses Limits Of Insurance . Page 9 of 24 BUSINESS LIABILITY COVERAGE FORM 2. Applicable To Medical Expenses Coverage We will not pay expenses for "bodily injury": a. Any Insured To any insured , except "volunteer workers". b. Hired Person To a person hired to do work for or on behalf of any insured or a tenant of any insured . c. Injury On Normally Occupied Premises To a person injured on that part of premises you own or rent that the person normally occupies. d. Workers' Compensation And Similar Laws To a person , whether or not an "employee" of any insured , if benefits for the "bodily injury" are payable or must be provided under a workers' compensation or disability benefits law or a similar law . e. Athletics Activities To a person injured while practicing, instructing or participating in any physical exercises or games, sports or athletic contests. f. Products-Completed Operations Hazard Included with the "products-completed operations hazard". g. Business Liability Exclusions Excluded under Business Liability Coverage . C. WHO IS AN INSURED 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with 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 liability 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 , joint 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 insureds , but only with respect to their liability as stockholders. Page 10 of 24 e. A trust , you are an insured. Your trustees are also insureds , but only with respect to their duties as trustees. 2. Each of the following is also an insured : a. Employees And Volunteer Workers Your "volunteer workers" only while performing duties related to the conduct of your business, 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 limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business . However, none of these "employees" or "volunteer workers" are insureds for: (1) "Bodily injury" or "personal and advert ising injury": (a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), or to a co-"employee" while in the course of his or her employment or performing duties related to the conduct of your business , or to your other "volunteer workers" while performing duties related to the conduct 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 which 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) Arising out of his or her providing or failing to provide professional health care services. If you are not in the business of providing professional health care services, Paragraph (d) does not apply to any nurse , emergency medical technician or paramedic employed by you to provide such services. (2) "Property damage" to property : (a) Owned , occupied or used by , Form SS 00 08 04 05 (b) Rented to, in the care , custody or control of, or over which physical control is being exercised for any purpose by you , any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative ha.s been appointed. d. Legal Representative If You Die Your legal representative if you die , but only with respect to duties as such. That representative will have all your rights and duties under this insurance . 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 this Coverage Part. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization . However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and Form 55 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM b. Coverage under this provision does not apply to: (1) "Bodily injury" or "property damage" that occurred; or (2) "Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment" registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission . Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability . However, no person or organization is an insured wijh 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. 5. Operator of 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 while operating such watercraft with your perm1ss1on . Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to : a. "Bodily injury" to a co-"employee" of the person operating the watercraft; or b. "Property damage" to property owned by , rented to , in the charge of or occupied by you or the employer of any person who is an insured under this provision . 6. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a. through f. below are additional insureds when you have agreed , in a written Page 11 of 24 BUSINESS LIABILITY COVERAGE FORM contract , written agreement or because of a permit issued by a state or political subdivision, that such person or organization be added as an additional insured on your policy , provided the injury or damage occurs subsequent to the execution of the contract or agreement, or the issuance of the permit. A person or organization is an additional insured under this provision only for that period of time required by the contract, agreement or permit. However, no such person or organization is an additional insured under this provision if such person or organization is included as an additional insured by an endorsement issued by us and made a part of this Coverage Part, including all persons or organizations added as additional insureds under the specific additional insured coverage grants in Section F. -Optional Additional Insured Coverages . a. Vendors Any person(s) or organization(s) (referred to below as vendor), but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard". (1) The insurance afforded to the vendor is subject to the following additional exclusions : Page 12 of 24 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 in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (b) Any express warranty unauthorized by you; (c) Any physical or chemical change in the product made intentionally by the vendor ; (d) Repackaging , except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (e) Any failure to make such inspections , adjustments , tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; (f) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (g) Products which , after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to : (i) The exceptions contained in Subparagraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. (2) This insurance does not apply to any insured person or organization from whom you have acquired such products , or any ingredient, part or container, entering into, accompanying or containing such products . b. Lessors Of Equipment (1) Any person or organization from whom you lease equipment ; but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person or organization . Form SS 00 08 04 05 (2) With respect to the insurance afforded to these additional insureds , this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. c. Lessors Of Land Or Premises (1) Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership , maintenance or use of that part of the land or premises leased to you . (2) With respect to the insurance afforded to these additional insureds , this insurance does not apply to : (a) Any "occurrence" which takes place after you cease to lease that land or be a tenant in that premises; or (b) Structural alterations , new construction or demolition operations performed by or on behalf of such person or organization . d. Architects, Engineers Or Surveyors (1) Any architect , engineer , or surveyor, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused , in whole or in part , by your acts or omissions or the acts or omissions of those acting on your behalf: (a) In connection with your premises ; or (b) In the performance of your ongoing operations performed by youoronyourbeha~ (2) With respect to the insurance afforded to these additional insureds, the following additional exclusion applies : This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services by or for you, including : (a) The preparing , approving, or failure to prepare or approve, maps , shop drawings , opinions , reports , surveys, field orders, change orders , designs or drawings and specifications ; or (b) Supervisory, inspection, architectural or engineering activities . Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM e. Permits Issued By State Or Political Subdivisions (1) Any state or political subdivision , but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to : (a) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (b) "Bodily injury " or "property damage" included within the "products- completed operations hazard". f. Any Other Party (1) 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: (a) In the performance of your ongoing operations ; (b) In connection with your premises owned by or rented to you ; or (c) In connection with "your work" and included within the "products- completed operations hazard", but only if (i) The written contract or written agreement requires you to provide such coverage to such additional insured ; and (ii) This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products- completed operations hazard". (2) 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 : Page 13 of 24 BUSINESS LIABILITY COVERAGE FORM (a) The preparing, approving, or failure to prepare or approve , maps, shop drawings, opinions, reports, surveys , field orders , change orders, designs or drawings and specifications; or (b) Supervisory, inspection , architectural or engineering activities . The limits of insurance that apply to additional insureds are described in Section D. -Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. -Liability And Medical Expenses General 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 that is not shown as a Named Insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES 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 c. Persons or organizations making claims or bringing "suits". 2. Aggregate Limits The most we will pay for: a. Damages because of "bodily injury" and "property damage" included in the "products-completed operations hazard" is the Products-Completed Operations Aggregate Limit shown in the Declarations . b. Damages because of all other "bodily injury", "property damage" or "personal and advertising injury", including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations" owned by or rented to you . "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. Page 14 of 24 This General Aggregate limit does not apply to "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion . 3. Each Occurrence Limit Subject to 2.a. or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one "occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations . 4. Personal And Advertising Injury Limit Subject to 2.b. above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. 5. Damage To Premises Rented To You Limit The Damage To Premises Rented To You Limit is the most we will pay under Business Liability Coverage for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire , lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning 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 . 6. How Limits Apply To Additional Insureds The most we will pay on behalf of a person or organization who is an additional insured under this Coverage Part is the lesser of: a. The limits of insurance specified in a written contract , written agreement or permit issued by a state or political subdivision ; or b. The Limits of Insurance shown in the Declarations . Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section . Form SS 00 08 04 05 If more than one limit of insurance under this policy and any endorsements attached thereto applies to any claim or "suit", the most we will pay under this policy and the endorsements is the single highest limit of liability of all coverages applicable to such claim or "suit". However, this paragraph does not apply to the Medical Expenses limit set forth in Paragraph 3. above . 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. E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 1. Bankruptcy Bankruptcy or insolvency bf 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 claim. 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 additional insured must see to it that we receive a 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: Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (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; (3) Cooperate with us in the investigation, settlement 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 that may be liable to the insured because of injury or damage to which this insurance may also apply . d. Obligations At The lnsured's Own Cost No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation , or incur any expense , other than for first aid , without our consent. e. Additional lnsured's Other Insurance If we cover a claim or "suit" under this Coverage Part that may also be covered by other insurance available to an additional insured, such additional insured must submit such claim or "suit" to the other insurer for defense and indemnity. However, this provision does not apply to the extent that you have agreed in a written contract , written agreement or permit that this insurance is primary and non-contributory with the additional 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) Any partner, if you or an additional insured is a partnership ; (3) Any manager, if you or an additional insured is a limited liability company; (4) Any "executive officer" or insurance manager, if you or an additional insured is a corporation; (5) Any trustee, if you or an additional insured is a trust; or (6) Any elected or appointed official, if you or an additional insured is a political subdivision or public entity . Page 15 of 24 BUSINESS LIABILITY COVERAGE FORM This Paragraph f. applies separately to you and any additional insured . 3. Financial Responsibility Laws a. When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, the insurance provided by the policy for "bodily injury" liability and "property damage" liability will comply with the provisions of the law to the extent of the coverage and limits of insurance required by that law. b. With respect to "mobile equipment" to which this insurance applies, we will provide any liability, uninsured motorists, underinsured motorists, no-fault or other coverage required by any motor vehicle law. We will provide the required limits for those coverages . 4. Legal Action Against Us No person or organization has a right under this Coverage Form : a. To join 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 Form unless all of its terms have been fully complied with . A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured ; but we will not be liable for damages that are not payable under the terms of this insurance or 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. 5. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this policy 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 a claim is made or "suit" is brought. 6. Representations a. When .You Accept This Policy By accepting this policy, you agree : (1) The statements in the Declarations are accurate and complete ; (2) Those statements are based upon representations you made to us ; and Page 16 of 24 (3) We have issued this policy in reliance upon your representations . b. Unintentional Failure To Disclose Hazards If unintentionally you should fail to disclose all hazards relating to the conduct of your business at the inception date of this Coverage Part, we shall not deny any coverage under this Coverage Part because of such failure . 7. Other Insurance If other valid and collectible insurance is available for a loss we cover under this Coverage Part, our obligations are limited as follows : a. Primary Insurance This insurance is primary except when b. below applies . If other insurance is also primary, we will share with all that other insurance by the method described in c. below. b. Excesslnsurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis : (1) Your Work That is Fire, Extended Coverage , Builder's Risk, Installation Risk or similar coverage for "your work"; (2) Premises Rented To You That is fire, lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; (3) Tenant Liability That is insurance purchased by you to cover your liability as a tenant for "property damage" to premises rented to you or temporarily occupied by you with permission of the owner; (4) Aircraft, Auto Or Watercraft If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Section A. -Coverages. (5) Property Damage To Borrowed Equipment Or Use Of Elevators If the loss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion k. of Section A. - Coverages . Form SS 00 08 04 05 (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arrs1ng out of the premises or operations , or products and completed operations, for which you have been added as an additional insured by that insurance ; or (7) When You Add Others As An Additional Insured To This Insurance That is other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this Coverage Part: (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary . If other insurance is also primary , we will share with all that other insurance by the method described in c. below. (b) Primary And Non-Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance . Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess , we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so , but we will be entitled to the insured's rights against all those other insurers . Form 55 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any , that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance ; and (2) The total of all deductible and self- insured amounts under all that other insurance . We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other insurance permits contribution by equal shares , we will follow this method also . Under this approach , each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares , we will contribute by limits . Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments , we have made under this Coverage Part, those rights are transferred to us . The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them . This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment , including Supplementary Payments, we have made under this Coverage Part , we also waive that right , provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. Page 17 of 24 BUSINESS LIABILITY COVERAGE FORM F. OPTIONAL ADDITIONAL INSURED COVERAGES If listed or shown as applicable in the Declarations, one or more of the following Optional Additional Insured Coverages also apply. When any of these Optional Additional Insured Coverages apply, Paragraph 6. (Additional Insureds When Required by Written Contract, Written Agreement or Permit) of Section C., Who Is An Insured, does not apply to the person or organization shown in the Declarations . These coverages are subject to the terms and conditions applicable to Business Liability Coverage in this policy , except as provided below: 1. Additional Insured -Designated Person Or Organization WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations, 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: a. In the performance of your ongoing operations ; or b. In connection with your premises owned by or rented to you. 2. Additional Insured -Managers Or Lessors Of Premises a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Designated Person Or Organization; but only wijh respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Declarations. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to : (1) Any "occurrence" which takes place after you cease to be a tenant in that premises ; or (2) Structural alterations, new Page 18 of 24 construction or demolition operations performed by or on behalf of such person or organization . 3. Additional Insured -Grantor Of Franchise WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Grantor Of Franchise, but only with respect to their liability as grantor of franchise to you. 4. Additional Insured -Lessor Of Leased Equipment a. WHO IS AN INSURED urider Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured -Lessor of Leased Equipment, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. 5. Additional Insured -Owners Or Other Interests From Whom Land Has Been Leased a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured -Owners Or Other Interests From Whom Land Has Been Leased, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land leased to you and shown in the Declarations . b. With respect to the insurance afforded to these additional insureds , the following additional exclusions apply: This insurance does not apply to : (1) Any "occurrence" that 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. 6. Additional Insured -State Or Political Subdivision -Permits a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the state or political subdivision shown in the Declarations as an Additional Form SS 00 08 04 05 Insured -State Or Political Subdivision - Permits , but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply : This insurance does not apply to : (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (2) "Bodily injury" or "property damage" included in the "product-completed operations" hazard . 7. Additional Insured -Vendors a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) (referred to below as vendor) shown in the Declarations as an Additional Insured - Vendor, but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard". b. The insurance afforded to the vendor is subject to the following additional exclusions: (1) 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 in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (b) Any express warranty unauthorized by you; (c) Any physical or chemical change in the product made intentionally by the vendor; (d) Repackaging , unless unpacked solely for the purpose of inspection , demonstration, testing , or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; Form 55 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (e) Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection wrth the distribution or sale of the products; (f) Demonstration , installation , servicing or repair operations , except such operations performed at the vendor's premises in connection with the sale of the product; (g) Products which , after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor ; or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to : (i) The exceptions contained in Subparagraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business , in connection with the distribution or sale of the products. (2) This insurance does not apply to any insured person or organization from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. 8. Additional Insured -Controlling Interest WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Controlling Interest , but only with respect to their liability arising out of: a. Their financial control of you; or b. Premises they own, maintain or control while you lease or occupy these premises. Page 19 of 24 BUSINESS LIABILITY COVERAGE FORM This insurance does not apply to structural alterations, new construction and demolition operations performed by or for that person or organization . 9. Additional Insured -Owners, Lessees Or Contractors Scheduled Person Or Organization a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured -Owner, Lessees Or Contractors, 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 for the additional insured(s); or (2) In connection with "your work" performed for that additional insured and included within the "products- completed operations hazard", but only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard". b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to "bodily injury", "property damage" or "personal an 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 failure to prepare or approve , maps, shop drawings , opinions, reports , surveys, field orders , change orders, designs or drawings and specifications; or (2) Supervisory, inspection, architectural or engineering activities . 10. Additional Insured -Co-Owner Of Insured Premises WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or Organization(s) shown in the Declarations as an Additional Insured -Co- Owner Of Insured Premises , but only with respect to their liability as co-owner of the premises shown in the Declarations. Page 20 of 24 The limits of insurance that apply to additional insureds are described in Section D. -Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. - Liability And Medical Expenses General Conditions . G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 1. "Advertisement" means the widespread public dissemination of information or images that has the purpose of inducing the sale of goods, products or services through: a. (1) Radio; (2) Television ; (3) Billboard; (4) Magazine; (5) Newspaper; b. The Internet, but only that part of a web site that is about goods, products or services for the purposes of inducing the sale of goods, products or services; or c. Any other publication that is given widespread public distribution . However, "advertisement" does not include : a. The design , printed material, information or images contained in , on or upon the packaging or labeling of any goods or products; or b. An interactive conversation between or among persons through a computer network . 2. "Advertising idea" means any idea for an "advertisement". 3. "Asbestos hazard" means an exposure or threat of exposure to the actual or alleged properties of asbestos and includes the mere presence of asbestos in any form . 4. "Auto" means a land motor vehicle, trailer or semi-trailer designed for travel on public roads , including any attached machinery or equipment. But "auto" does not include "mobile equipment". 5. "Bodily injury" means physical : a. Injury; b. Sickness ; or c. Disease sustained by a person and, if arising out of the above, mental anguish or death at any time . 6. "Coverage territory" means: Form SS 00 08 04 05 a. The United States of America (including its territories and possessions), Puerto Rico and Canada ; b. International waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in a. above ; c. All other parts of the world if the injury or damage arises out of: (1) Goods or products made or sold by you in the territory described in a. above; (2) The activities of a person whose home is in the territory described in a . above, but is away for a short time on your business; or (3) "Personal and advertising injury" offenses that take place through the Internet or similar electronic means of communication provided the insured's responsibility to pay damages is determined in the United States of America (including its territories and possessions), Puerto Rico or Canada , in a "suit" on the merits according to the substantive law in such territory , or in a settlement we agree to . 7. "Electronic data" means information, facts or programs : a. Stored as or on; b. Created or used on; or c. Transmitted to or from computer software , including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. 8. "Employee" includes a "leased worker". "Employee" does not include a "temporary worker". 9. "Executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document. 10. "Hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. 11. "Impaired property" means tangible property, other than "your product" or "your work", that cannot be used or is less useful because : a. It incorporates "your product" or "your work" that is known or thought to be defective, deficient, inadequate or dangerous ; or Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM b. You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by : a. The repair , replacement, adjustment or removal of "your product" or "your work"; or b. Your fulfilling the terms of the contract or agreement. 12. "Insured contract" means : a . A contract for a lease of premises . However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire , lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner is subject to the Damage To Premises Rented To You limit described in Section D. -Liability and Medical Expenses Limits of Insurance. b. A sidetrack agreement ; c. Any easement or license agreement, including an easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad; d. Any obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e. An elevator maintenance agreement; or f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization, provided the "bodily injury" or "property damage" is caused, in whole or in part, by you or by those acting on your behalf. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. includes that part of any contract or agreement 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 trestle, tracks, road-beds, tunnel, underpass or crossing . However, Paragraph f. does not include that part of any contract or agreement: Page 21 of 24 BUSINESS LIABILITY COVERAGE FORM (1) That indemnifies an architect , engineer or surveyor for injury or damage arising out of: (a) Preparing , approving or failing to prepare or approve maps , shop drawings, opinions , reports , surveys , field orders , change orders , designs or drawings and specifications ; or (b) Giving directions or instructions , or fail i ng to give them , if that is the primary cause of the injury or damage ; or (2) Under which the insured, if an architect, engineer or surveyor , assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services , including those listed in (1) above and supervisory, inspection , architectural or engineering activities . 13. "Leased worker" means a person leased to you by a labor leasi ng 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 "temporary worker". 14. "Loading or unloading" means the handling of property : a. After it is moved from the place where it is accepted for movement into or onto an aircraft , watercraft or "auto "; b. While it is in or on an aircraft, watercraft or "auto"; or c . While it is being moved from an aircraft , watercraft or "auto " to the place where it is finally delivered ; but "loading or unloading" does not include the movement of property by means of a mechanical device , other than a hand truck, that is not attached to the aircraft , watercraft or "auto". 15. "Mobile equipment" means any of the following types of land veh icles , including any attached machinery or equipment: a. Bulldozers , farm machinery, forklifts and other vehicles designed for use principally off public roads; b. Vehicles maintained for use so lely on or ne xt to prem ises you own or rent ; c . Vehicles that travel on crawler treads ; d. Veh icles , whether self-propelled or not , on which are permanently mounted : Page 22 of 24 (1) Power cranes , shovels, loaders , diggers or drills ; or (2) Road construction or resurfacing equipment such as graders , scrapers or rollers ; e . Vehicles not de scribed in a., b., c., or d. above that are not self-propelled and are maintained pr imarily to provide mobility to permanently attached equ ipment of the following types : (1) Air compressors , pumps and generators , including spraying , welding , building cleaning , geophysical exploration, lighting and well servicing equipment; or (2) Cherry pickers and similar devices used to raise or lower workers ; f. Vehicles not described in a., b., c., or d. above mainta ined primarily for purposes other than the transportation of persons or cargo . Howe ver , self-propelled vehicles with the following types of permanen t ly attached equipment are not "mobile equipment" but will be considered "autos": (1) Equipment, of at least 1,000 pounds gross vehicle weight, des igned primarily for: (a) Snow removal ; (b) Road maintenance , but not construction or resurfacing ; or (c) Street cleaning ; (2) Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lowe r workers; and (3) Air compressors , pumps and generators , including spraying , welding , building cleaning , geophysical exploration, lighting and well servicing equipment. 16 . "Occurrence" means an accident , including continuous or repeated exposure to substantially the same general harmful conditions . 17. "Personal and advertising injury" means injury , including consequential "bodily injury", arising out of one or more of the following offenses: a . False arrest , de tention or imprisonment; b. Ma licious prosecution ; Form SS 00 08 04 05 c. The wrongful eviction from , wrongful entry into, or invasion of the right of private occupancy of a room , dwelling or premises that the person occupies, committed by or on behalf of its owner , landlord or lessor; d. Oral , written or electronic publication of material that slanders or libels a person or organization or disparages a person's or organization's goods , products or services ; e. Oral , written or electronic publication of material that violates a person's right of privacy ; f. Copying, in your "advertisement", a person 's or organization 's "advertising idea" or style of "advertisement"; g. Infringement of copyright, slogan, or title of any literary or artistic work , in your "advertisement"; or h. Discrimination or hum iliation that results in injury to the feelings or reputation of a natural person . 18. "Pollutants" means any solid , liquid , gaseous or thermal irritant or contaminant, including smoke , vapor , soot , fumes, acids , alkalis , chemicals and waste . Waste includes materials to be recycled , recond itioned or reclaimed. 19. "Products-completed operations hazard"; a. Includes all "bodily injury" and "property damage" occurring away from premises you own or rent and aris ing out of "your product" or "your work" except: (1) Products that are still in your physical possession ; or (2) Work that has not yet been completed or abandoned . However, "your work" will be deemed to be completed at the earliest of the following times : (a) When all of the work called for in your contract has been completed . (b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site. (c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Work that may need service, maintenance , correction , repair or replacement , but which is otherwise complete , will be treated as completed . The "bodily injury" or "property damage" must occur away from premises you own or rent , unless your business includes the selling , handling or distribution of "your product" for consumption on premises you own or rent. b. Does not include "bod ily injury" or "property damage " arising out of: (1) The transportat ion of property, unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by you , and that condition was created by the "loading or unloading" of that vehicle by any insured ; or (2) The ex istence of tools , uninstalled equipment or abandoned or unused materials . 20. "Property damage" means : a. Physical injury to tangible property , including all resulting loss of use of that property . All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of "occurrence" that caused it. As used in this definition , "electronic data" is not tangible property. 21. "Suit" means a civil proceeding in which damages because of "bodily injury", "property damage " or "personal and advertising injury" to which this insurance applies are alleged . "Suit" includes : a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent ; or b. Any other alternative dispute resolution proceeding in which such damages are cla imed and to which the insured submits with our consent. 22. "Temporary worker" means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions . 23. "Volunteer worker" means a person who : a. Is not your "employee "; Page 23 of 24 BUSINESS LIABILITY COVERAGE FORM b. Donates his or her work ; c. Acts at the direction of and within the scope of duties determined by you ; and d. Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you . 24. "Your product": a. Means: (1) Any goods or products , other than real property, manufactured, sold, handled, distributed or disposed of by : (a) You; (b) Others trading under your name; or (c) A person or organization whose business or assets you have acquired; and (2) Containers (other than vehicles), equipment with such materials, parts or furnished in connection goods or products . b. Includes: (1) Warranties or representations made at any time with respect to the fitness , quality, durability, performance or use of "your product"; and Page 24 of 24 (2) The providing of or failure to provide warnings or instructions . c. Does not include vending machines or other property rented to or located for the use of others but not sold . 25. "Your work": a. Means : (1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or operations. b. Includes : (1) Warranties or representations made at any time with respect to the fitness , quality, durability, performance or use of "your work"; and (2) The providing of or failure to provide warnings or instructions . Form SS 00 08 04 05 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT -CALIFORNIA Policy Number: 72 WEC GF7491 Endorsement Number: 02 Effective Date: 10 / 0 9 / 14 Effective hour is the same as stated on the Information Page of the policy. Named Insured and Address: TRI PEPI SMITH & ASSOCIATES PO BOX 52152 IRVINE, CA 92619 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 extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule . The additional premium for this endorsement shall be premium otherwise due on such remuneration. % of the California workers' compensation SCHEDULE Person or Organization ANY PERSON OR ORGANIZATION FROM WHOM YOU ARE REQUIRED BY WRITTEN CONTRACT OR AGREEMENT TO OBTAIN THIS WAIVER OF RIGHTS FROM US Countersigned by Form WC 04 03 06 (1) Printed in U.S.A. Process Date: 10/09/14 Job Description BLANKET OPERATIONS -----------.,---------Authorized Representative Policy Expiration Date: 06/20/15