The URL can be used to link to this page

18-079 LSA Associates, Inc., Final Environmental Impact Report at Apple Campus 2CITY OF 1111 DESIGN PROFESSIONAL SERVICES AGREEMENT (SINGLE) .. WITH LSA ASSOCIATES, INC. FOR FINAL ENVIRONMENTAL IMPACT CUPERTINO REPORT AT APPLE CAMPUS 2 1. PARTIES This Agreement is made and entered into as of-=--M---=-a:..:..yL....::...1,_, 2=-0.::....c....18:c.._ ______________ _ ("Effective Date"), by and between the City of Cupertino, a municipal corporation ("City"), and LSA Associates Inc . ("Consultant"), a Corooration for preparation of an eighth Addendum to the Apple Campus 2 Project Final Environmental Impact Report ("Project"). 2. SERVICES 2.1 Basic Services. Consultant agrees to provide the Basic Services for the Project, which are set forth in detail in the Scope of Services, attached here and incorporated as Exhibit A, and as further specified in Consultant's written Proposal as approved by City, except for any provision in the Proposal which conflicts or is inconsistent with this Agreement and the Exhibits hereto , or as otherwise expressly rejected by City . 2.2 Additional Services. City may request at any time during the Contract Time that Consultant provide additional services for the Project, which are not already encompassed , expressly or implicitly, in the Agreement, the Scope of Services, or the Proposal ("Additional Services"). Additional Services must be authorized in writing by City and Consultant will not be paid for unauthorized Additional Se rvices rendered. Additional Services are subject to a ll the provisions applicable to Basic Services , except and only to the extent otherwise specified by City in writing. All references to "Services" in the Agreement include Basic Serv ices and Additional Services, unless otherwise stated in writing. The Services may be divided into separate sequential tasks, as further specified in this Agreement, the Scope of Services, and Consultant's Proposal. Consultant is solely responsible for its errors and omissions and those of its subconsultants, and must promptly correct them at its sole expense. Consultant must take appropriate measures to avoid or mitigate any delay , liability , and costs resulting from its errors or omissions. 3. TIME OF PERFORMANCE 3.1 Term. This Agreement begins on the Effective Date and ends on June 30, 2 019 unless terminated earlier as provided herein ("Contract Time"). 3 .2 Schedule of Performance. All Services must be provided within the times specified in Exhibit B, Sched ule of Performance, attached and incorporated here . Consultant must promptly notify City of any actual or potential delay in providing the Services as scheduled to afford the Parties adequate opportunity to address or mitigate delays. If the Se rvices are divided by tasks, Consultant must begin work on each separate task upon receiving City's Notice to Proceed ("NTO"), and must complete each task within the time specified in Exhibit B. Project Apple Campus 2 Design Professional Agreement (single) /Rev. Dec. 201 7 Page I of 10 3.3 Time is of the essence for the performance of all the Services. Consultant must have sufficient time , resources , and qualified staff to deli ver the Services on time. 4 . COMPENSATION 4.1 Maximum Compensation . City will pay Consultant for satisfactory performance of the Basic Serv ices and Additional S ervices , if approved , a cumulative total amount that will be capped so as not to exceed $ 5000 ("Contract Price"), as specified in Exhibit C, Compensation, attached and incorporated here. The Contract Price includes all ex penses and re imbursements and will remain in place even if Consultant's actual costs exceed the capped amount. No extra work or payment is permitted in excess of the Contract Price. 4.2 Basic Services. City will pay Consultant$ 5000 ("Lump Sum Price") for the complete and satisfactory performance of the Basic Services in accordance with Exhibit C. The Lump S um Price is inclusive of all time and expenses, including, but not limited to , subConsultant's costs, materials , supplies , eq uipment, travel , taxes , overhead and profit. If the Basic Serv ices are not full y completed , Consultant will be compensated a percentage of the Lump Sum Price proportionate to the percentage of Basic Serv ices that were completed to City's reasonable satisfaction . 4.3 Additional Services. City has the disc retion , but not the obligation , to authorize Additional Services up to an amount not to exceed $ . Additional Services provided to City's reasonable satisfaction will be compensated on a lump sum basis or based on time and expenses , in accordance will the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C. If paid on an hourly basis , Consultant will be compensated for actual costs only of normal business expenses and overhead , with no markup or surcharge ("Reimbursable Expenses"). Cons ultant will not be entitled to reimbursement for copying, printing, faxes , telephone charges , employee overtime, or travel to City offices or to the Project site. 4.4 Invoices and Payments. Monthly invoices must describe the Services completed and the amount due for the preceding month. City will pay Consultant within 30 days following receipt of a properly submitted and approved invoice for Services. The invoice must separately itemize and provide subtotals for Basic Services a nd Additional Services, and must state the percentage of completion for each task, as specified in Exhibit C . City will notify Consultant in writing of any disagreements with the invoice or the stated percentage of completion of tasks. If the disagreement is unresolved , City will pay Consultant only for the undisputed portion of the Services. Disputed amounts shall be subject to the Dispute Resolution provision of this Agreement. Project a. Time and Expenses. For Additional Services provided on an hourly basis, each invoic e must also include , for each day of Services provided: (i) name and title of each person providing Services; (ii) a succinct summary of the Services performed by each person; (iii) the time s p e nt per person , in 30 minute increments ; (iv) the hourl y billing rate or Sub- Consultant charge and payment due ; and (v) an itemized list with amounts and explanation for all permitte d reimbursable expenses. Apple Ca mpus 2 Design Professional Agreem ent (s in g le) /Rev. Dec. 2017 Page 2 o f I 0 b. Rates and Receipts. All hourly rates and reimbursable expenses must conform to the City- approved rates set fo1th in Exhibit C, which will be in effect for the entire Contract Time. Each invoice must attach legible , dated receipts for Reimbursable Expenses. 5. INDEPENDENT CONTRACTOR 5.1 Status. Consultant is an independent Consultant and not an employee, partner, or joint venture of the City. Consultant is solely responsible for the means and methods of performing the Services and shall exercise full control over the employment, direction , compensation and discharge of all persons assisting Consultant in performing the Services . Consultant is not entitled to health benefits, worker 's compensation, retirement, or any City benefit. 5.2 Qualifications and Standard of Care. Consultant represents on behalf of itself and its subConsultants that they have the qualifications and skills to perform the Services in a competent and professional manner, as exercised by design professionals performing similar services in the San Francisco Bay Area. Services may only be performed by qualified and experienced personnel or subconsultants who are not employed by City and do not have any contractual relationship with City excepting this Agreement. All Services must be performed as specified to City's reasonable satisfaction. 5.3 Permits and Licenses. Consultant warrants on behalf of itself and any subConsultants that they are properly licensed , registered , and/or certified to perform the Services, as required by law, and that they have procured a valid City Business License . 5.4 SubConsultants. Unless prior written approval from City is obtained, only Consultant's employees and subConsultants whose names are included in this Agreement and incorporated Exhibits may provide Services under this Agreement. Consultant must require all subConsultants to furnish proof of insurance for workers' compensation, commercial liability, auto , and professional liability in reasonable conformity to the insurance required of Consultant. The terms and conditions of this Agreement shall be binding on all subConsultants relative to the portion of their work. 5.5 Tools, Materials and Equipment. Consultant will supply and shall be responsible for all tools, materials and equipment required to perform the Services under this Agreement. 5.6 Payment of Taxes. Consultant must pay income taxes on the money earned under this Agreement. Upon City's request , Consultant will provide proof of payment and will indemnify City for any violations pursuant to the indemnity provision of this Agreement. 5.7 Errors and Omissions. Consultant is solely responsible for its errors and omissions and those of its SubConsultants, and must take prompt measures to avoid , mitigate, and correct them at its sole expense. 6. PROPRIETARY/CONFIDENTIAL INFORMATION During the Contract Time Consultant 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. Consultant shall hold in confidence all City information and use Proj ect Ap p le Campus 2 Design Prof essional Agree ment (sing le ) /Re v. Dec. 20 I 7 Page 3 of 10 it only to perform this Agreement. Consultant shall exercise the same standard of care to protect City information as a reasonably prudent Consultant would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Subject to City meeting its payment obligations for the Services , any interest (including copyright interests) of Consultant in any product, memoranda, study, report, map, plan , drawing, specification, data , record , document, or other information o r work, in any medium , prepared by Consu ltant under this Agreement ("Work Product"), will be the exclusive property of the City and shall not be shown to a third-party without prior written approval by City 7.2 Copyright. To the extent permitted by Title 17 of U.S. Code, all copyrights to the Work Product prepared/created by Consultant and its SubConsu lt ants and all copyrights in such Work Product shall constitute City property. If it is determined under federal law that the Work Product is not "works for hire", Consultant and SubConsultants hereby assign to City all copyrights to the Work Product when and as created . Consultant may retain copyrights to its standard details , but hereby grants City a perpetual , non-exclusive license to use such details. 7.3 Patents and Licenses. Consultant must pay royalties or license fees required for authorized use of any third party intellectual property, including but not limited to patented, trademarked , or copy righted 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 Consultant and its SubConsultants to execute or implement any of the following , but Consultant shall not be responsible or liable for City's re-use of Work Product: (a) For work related to the original Services for which Consultant was hired; (b) To complete the original Services with City personnel, agents or other Consultants; (c) To make subsequent additions to the original Services; and/or (d) For other City projects. 7.5 Deliverables and Format. Electronic and hard copies of the Work Product const itute part of the Deliverables required under this Agreement, which shall be provided to City on recycled paper and copied on both sides , except for one single-sided original. Large-scale architectural plans and similar items must be in CAD and PDF formats, and unless otherwise specified, other documents must be in Microsoft Office applications and PDF formats. 8. RECORDS 8.1 Consultant must maintain complete, accurate, and detailed accounting records relating to the Serv ic es and Compensation, in accordance with generally accepted accounting principles and procedures. The records must include detailed information about Consultant's performance, benchmarks and deliverables. The records and supporting documents must be kept separate from other files and maintained for a period of four years from the date of City's final payment. 8.2 Consultant will provide City full access to Consultant'~ books and records for review and audit, to make transcripts or copies , and to conduct a preliminary examination o f all the work, data, documents, proceedings, and activities related to thi s A g reement. If a supplemental examination or Proj ect A pple Campus 2 Desig n Profess ional Agree m ent (s in g le) /Rev. Dec. 20 I 7 Pa ge 4 o f IO audit of Consultant's records discloses non-compliance with appropriate internal financial controls, a con tract breach , or a failure to act in good faith , City will be entitled to recover from Consultant the costs of the supplemental examination. If this is a lump sum fee Agreement, City will be provided access to records of reimbursable expenses and the instruments of service/deliverables for re v iew and audit. This Section survives the expiration/termination of this Agreement. 9. ASSIGNMENT Consultant shall not assign , sublease, hypothecate , or transfer this Agreement, or any interest therein , directly or indirectly, by operation of law or otherwise , without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Consultant as a legal entity will be considered an Assignment subject to City approval , which shall not be unreasonably withheld . For purposes of this provision, control means 50% or more of the voting power of the business entity. This Agreement binds Consultant, its heirs , successors and assignees. 10. PUBLICITY / SIGNS Any publicity generated by Consultant 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 Cupe1tino " will be displayed in all piece s of publicity, including flyers , press releases, posters , brochures , public service announcements , int e rviews and newspaper articles. No sign s may be posted , exhibited or displayed on or about C ity property, except signage required by law or this Agreement, without prior written approval from th e City. 11. INDEMNIFICATION 1 1.1 To the fullest extent allowed by law and except for losses caused by the sole or active negligence or willful misconduct of City personnel , Consultant agrees to indemnify, defend , and hold harmless the City, its City Council , boards and commissions , officers , officials , employees, agents , servants , volunteers and consultants (collectively, "Indemnitees"), as follows : a. Indemnity Obligations Subject to Civil Code Section 2782.8. With respect to the Services performed in connection with the Agreement, Consultant shall indemnify, defend , and hold harmless Indemnitees from and against any and all liability, claims , actions , causes of action, demands or charges whatsoever against any Indemnitee, including any injury to or death of any person or damage to property or other liability of any nature ( collectively, "Liability"), that arise out of, pertain to , or relate to the negligence, recklessness , or willful misconduct of Consultant, its officers, officials, employees, agents or SubConsultants. Such costs and expenses shall include reasonable attorney fees for legal counsel of City's choice, expert fees , and all other costs and fees of litigation. In addition to its indemnity obligations, Design Professional will provide its immediate and active cooperation and assistance to the City, at no additional cost to the City, in analyzing, defending, and resolving such Liability. b. C laims Involving Intellectual Property. Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any claim involving intellectual property, infringement or violation of a United States patent right or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights , which arises out of, pertains to , or relates to Consultant's Proj ect Apple Camp us 2 Des ign Professiona l Agreement (s in gle) /Rev. Dec. 2017 Page 5 of I 0 negligence, recklessness , or willful misconduct. Such costs and expenses will include reasonable a ttorney fees for legal counsel of City's choice, expert fees and all other costs and fees of litigation. c. Claims for Other Liability. For all other liabilities not included in provisions "b" and "c" above, Consultant shall indemnify, defend , and hold harmless the Indemnitees against any and all liability, claims, actions, causes of action or de mands whatsoever, including any injury to or death of any person or damage to prope11y , or other liability of any nature arising out of, pertaining to , or relating to the performance of this Agreement by Design Professional , its employees, officers, officials, agents or subconsultants, including liability based on breach of contract, obligations, or warranties , or any unauthorized use or disclosure of City's confidential and proprietary information . 11.2 Consultant will assist City, at no additional cost, in the defense of any claim , dispute or lawsuit arising out of this Agreement. Consultant's duties herein are not limited to or subject to the Contract Price , to Workers' Compensation claims, or to the Insuranc e or Bond limits and provisions. Nothing in this Agreement shall be construed to give rise to an implied right of indemnity in favor of Consultant against any Indemnitee. 11 .3 If this Agreement is entered into or amended on or after January I , 2018 , Consultant's duty to pay for any of Indemnitees ' defense related costs will be lim ite d to its proportionate share of fault , as determined by final decision by a court of competent jurisdiction, subject to any applicable exceptions in Civil Code section 2 782.8. 11,4 Consultant agrees to pay the reasonable costs City may incur in enforcing this provision related to Consultant's indemnification duties , including reasonable attorney fees, fees for legal counsel acceptable to City, expert fees , and all other costs and expenses related to a claim or counterclaim , a purchase order, another transaction , litigation , or dispute resolution. Without waiving any rights , City may deduct money from Consultant's payments to cover moneys due to City. Section 11 survives expiration or termination of this Agreement. 12. INSURANCE On or before the Contract Time commences, Consultant shall furnish City with proof of compliance with City Insurance Requirements, attached and incorporated here as Exhibit D. City will not execute the Agreement until Consultant has submitted and City has reasonably approved receipt of satisfactory certificates of insurance and endorsements evidencing the type , amount, class of operations covered , and the effective and expiration dates of coverage . Alternatively, City may terminate this Agreement or in its sole discretion purchase insurance at Consultant's expense and deduct costs from payments to Consultant. 13. COMPLIANCE WITH LAWS 13 .1 General Laws. Consultant shall comply with all laws and regulations applicable to this Agreement. Consultant will promptly notify City of changes in the law or other conditions that may affect the Project or Consultant's ability to perform . Consultant is responsible for verifying the employment authorization of employees performing the Services , as required by the Immigration Reform and Control Act, or other federal or state law, rule or regulation. Project Apple Campus 2 Des ig n Professional Agreemen t (s in g le) /Rev. Dec. 2017 Pa ge 6 of IO 13.2 Labor Laws. Consultant shall comply with all labor laws applicable to this Agreement. If the Services include a "public works" component, Consultant must comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. To the extent applicable, Consultant must comply with City's Labor Compliance Program and with state labor laws pertaining to working days , overtime, payroll records and DIR Registration and Oversight. If the Contract Price is $30,000 or more , Consultant must comply with the apprenticeship requirement in Labor Code Section 1777.5. 13.3 Discrimination L aws. Consultant shall not discriminate on the basis of race, religious creed , color, ancestry, national origin , ethnicity, handicap , disability, marital status , pregnancy, age, sex , gender, sexual o r ientation , gender identity , Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Consultant shall comply with all anti-discrimination laws , including Government Code Section 12900 and 11135, and Labor Code Section. 1735, 1777 and 3077.5. Consistent with City policy prohibiting, Consultant understands that harassment and discrimination by Consultant or any of its subConsultants toward a job applicant, an employee, a City employee, or any other person is strictly prohibited . 13.4 Conflicts of Interest. Consultant shall comply with all conflict of interest laws and regulations applicable to this Agreement and must avoid any conflict of interest. Consultant 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 I 090 et seq . Consultant may be required to file a conflict of interest form if Consultant makes ce11ain governmental decisions or serves in a staff capacity, as provided in Section 18700 of the California Code of Regulations and other laws. Services may only be performed by persons who are not employed by City and who do not have any contractual relationship with City, with the exception of this Agreement. Consultant is familiar with and agrees to abide by th e City's rules governing gifts to public officials and employees . 13.5 Remedies. A violation of this Section constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating this Agreement. City reserves all its rights and remedies under law and this Agreement, including the right to seek indemnification under Section 1 I. Consultant agrees to indemnify, defend, and hold City harmless from and against any loss , liability, and expenses arising from noncompliance with this Section . 14. PROJECT COORDINATION 14.1 City Project Manager. The City's Project Manager for all purposes under this Agreement will be Catarina Kidd , who shall have the authority to manage this Agreement and oversee the progress and performance of the Services. City in its sol e discretion may substitute another Project Manager at any time and will advise Consultant of the new representative. 14 .2 Consultant Project Manager. Subject to City's reasonable approval, Consultant's Project Manager for all purposes under this Agreement will be Judith Malamut ----------------- who shall be the single representative for Consultant with the authority to manage compl iance with this Agreement and oversee the progress and performance of the Services. This includes responsibility for coordinating and scheduling the Services in accordance with City instructions, service orders , and the Schedule of Performance , and providing regular updates to the City's Project Manager on the Project status , progress , and any delays . City written approval is required prior to Consultant substituting a new Project Manager, w hich shall result in no additional costs to City or Project dela y s. Proj ect App le Camp us 2 Desig n Prof ess ional Agree m ent (s in g le) !Rev. Dec. 2 0 I 7 Page 7 of I 0 15. ABANDONMENT OF PROJECT C ity may abandon or postpone the Project with thirty (30) calendar days written notice to Consultant. Co nsultant 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 . No close out work shall be conducted without City reasonable approval of closure costs, which may not exceed ten percent (10%) of the total time expended to the date of abandonment. All charges including job closure costs will be paid in accordance with the provisions of this Agreement and within thirty (30) days of Consultant's final invoice reasonably approved by the City. 16. TERMINATION City may terminate this Agreement for cause or without cause at any time, following reasonable written notice to Consultant at least thirty (30) calendar days prior to the termination date . Consultant will be paid for satisfactory Services rendered through the date of termination , but final payment will not be made until Consultant closes out the Services and delivers all Work Product to City. All charges approved by City including job closure costs will be paid within 30 days of Consultant's final invoice. 17. GOVERNING LAW, VENUE AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California, excepting any choice of law rules which may direct the application of laws of another jurisdiction. Any lawsuits filed related to this Agreement must be filed with the S uperior Cou1t for the County of Santa Clara, State of California. Consultant must comply with the claims filing requirements under the Government Code prior to filing a civil action in court against City. The Agreement and obligations of the parties are subject to all valid laws , orders, rules , and regulations of the authorities having jurisdiction over this Agreement ( or the successors of those authorities). If a dispute arises , Consultant must continue to provide the Services pending resolution of the dispute. If the Paities e lect arbitration , the arbitrator's award must be supported by law and substantial evidence and include d eta iled 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. This Section survives the expiration/termination of this Agreement. 19. THIRD PARTY BENEFICIARIES There are no intended third paity 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 any breach shall not be deemed to constitute waiver of another term , provision , covenant or condition , or a subsequent breach , whether of the same or a different character. Project Apple Camp us 2 Design Profess ional Agree ment (s in g le) /Rev. Dec. 2017 Page 8 of I 0 21. ENTIRE AGREEMENT This Agreement and all its Sections represent the full and comp lete understanding of the Parties, of every kind or nature , and supersedes any and all other agreements and und erstandin gs, either oral or written , between them. Any modification of this Agreement will be effective only if in writing and signed by each Party's authorized representative. No verbal agreem ent or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between this main Agreement and the attachments or exh ibi ts thereto , the text of the main Agreement shal l prevail. 22. INSERTED PROVISIONS Each contractual provision or clause that may be required by law is deemed to be included and will be inferred in this Agreement. Either party may request an amendment to cure any mistaken insertion or omission of a required provision. 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 amp lify the terms or provisions of this Agreement. 24. SEVERABILITY/PARTIAL INVALIDIT Y If any term or provision of this Agreement, or their app li cation 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 a ll owed by such ruling. A ll other terms and provisions of this Agreement or their appl ication to specific situations shall re main in full force and effect. 25. SURVIVAL All provisions which by their nature must continue after the Agreement ends, including without limitation those referenced in specific Sections herein , surv ive this Agreement and shall remain in full force and effect. 26. NOTICES All notices, requests and approvals must be sent to the persons below in writi n g to the persons below, and will be con sidered effective on the date of personal delivery, the delivery date. confirmed by a reputable overnight delivery service, on the fifth calendar day after d eposit in the United States Mail, postage prepaid, registered or certified , or the n ext business day following e lectronic s ubmi ssion: To City of Cupertino 10300 Torre Ave . Cupertino CA 95014 Attention: Catarina Kidd Ema i 1: CatarinaK@cupertino.org Project Apple Ca mpus 2 To Consultant: LSA Associates , Inc. 22 15 Fifth St. Berkeley, CA 94710 Attention: Judith Malamut Email: Judith.Malamut@ lsa.net Des ign Professiona l Agree m ent (s ingle) /Rev. Dec. 201 7 Page 9 of 10 27. VALIDITY OF CONTRACT This Agreement is valid and enforceable only if it complies with the contract provisions of Cupertino Municipal Code Chapters 3.22 and 3.23 , is signed by the City Manager or authorized designee, and is approved for form by the City Attorney 's Office. 28. EXECUTION Th e person executing this Agreement on behalf of Consultant represents and warrants that Consultant has the right, power, and authority to enter into this Agreement and carry out all actions herein, and that he or she is authorized to execute this Agreement , which constitutes a legally binding obligation of Consultant. 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 on the Effective Date stated earlier in this Agreement. By b""'~=-:..,~-H"-:...=--'--~~~ Nam e .L..-'W..::::::..:::...i.""'--~!.l-"'l..£.><...""---- Ti tl e ~ e e re..{a (j Date ---------- Ta x I.D. No .: 9'-1-J.,J'/ J IJ/f ATTEST: ~ I ~~, ,._,ti: GACicHMITJT ~ CityClerk 5"-,~-/ g Pro ject Apple Ca mpus 2 CITY OF CUPERTINO Name Aarti Shrivastava Titl e Assistant City Manager Date tJ~g' I Desig11 l'rofessio11a f Agree ment (.rin gle) /Rev. Dec. 20 f 7 Page 10 of 10 UNANIMOUS WRITTEN CONSENT TO ACTlON WITHOUT A MEETING OF THE BOARD OF DIRECTORS OF LSA ASSOCIATES, INC. a California Corporation The undersigned , being all of the members of the Board of Directors (the "Board") of LSA Associates, Inc., a California corporation (the "Corporation") who would be entitled to notice of a special meeting of the Board for the purpose of taking the actions and adopting the resolutions set forth below, do hereby waive such notice, take the following actions, adopt the following resolutions by unanimous written consent to action without a meeting pursuant to Section 307 of the Corporations Code of the State of California, and direct that this consent be filed with the minutes of the Corporation: SfGNING AUTHORITY WHEREAS, the Board is authorized , pursuant to the Bylaws of the Corporation, to elect or appoint officers, assistant officers and agents of the Corporation and to expressly del egate to said officers or agents such duties and authority as the Board shall deem necessary and as the needs of the Corporation may require including, without limitation, specific signatory rights on behalf of the Corporation; WHEREAS, pursuant to the Bylaws of the Corporation, the Board previously elected the following officers and agents of the Corporation effective June I, 2017: Rob McCarm Mike Trotta Jeff Bray Nicole Dubois Rosalena Evans Chief Executive Officer President Executive Vice President Secretary Chief Financial Officer; and WHEREAS, pursuant to the Bylaws the Board desires to expressly grant to the foregoing officers of the Corporation certain rights and powers of signatory, including the right to make, execute, sign, acknowledge, file and deliver contracts for the performance of profe ss iona l services provided by the Corporation. NOW, THEREFORE, BE IT RESOLVED, Rob McCann, Mike Trotta, Jeff Bray, a nd Nichole Dubois or any one of them acting alone, are authorized to sign on behalf of the Corporat ion contracts for the performance of profes siona l services provided by this Corporation. Rosalena Evans is authorized to sign when the contract require s two officers. The signature of .any one of said officers upon any such con tracts shall be binding upon this Corporation; 49301489.v 3 provided, however, that any contract involving professional services valued at more than $250,000 shall also be signed by the Chief Executive Officer Rob McCann) or the President (Mike Trotta) or the Executive Vice President (Jeff Bray) in addition to one other authorized signer. No other persons are authorized to sign contracts for the performance of professional services. RESOLVED, that all acts and deeds heretofore done or action taken by any officer or agent of the Corporation for and on behalf of the Corporation, in entering into , executing, acknowledging or attesting to any airangements, agreements, instruments or documents which carry out the terms and intentions of any of the foregoing resolutions are hereby in all respects ratified, approved and confomed; and it is further RESOLVED, that this Unanimous Written Consent may be signed in any number of counterparis, each of which (including any facsimile or "PDF" copies) shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and that such counterparts (including any facsimile or "PDF" copies) shall together constitute but one and the same instrument; and RESOLVED, that the fully executed copy of this Unanimous Written Consent shall be delivered to the Secretary of the Corporation for inclusion in the minutes of the proceedings of the Board. [Remainder of Page Intentionally Left Blank} 49301489. v3 IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written Consent of the Board of Directors in Li eu of Special Meeting as of May 25, 2017. BOARD : Dan Airola Jeff Bra y Mike Trotta Doug Frost Tom Ni elsen Caro llyn Lobell 4930 1489 .v3 IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written Consent of the Board of Directors in Lieu of Special Meeting as of May 25, 20 17. BOARD: Les Card ~e_ Dan Airola Jeff Bray Mike Trotta Doug Frost Tom Nielsen Carollyn Lobell 4930 1489 .v) IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written Consent of the Board of Directors in Lieu of Special Meeting as of May 25, 2017. BOARD: Les Card Mike Trotta Doug Frost Tom Nielsen Carollyn Lobell 49301489.v] IN WITNESS WHEREOF, the under signed have executed this Unanimous Written Consent of the Board of Directors in Lieu of Special Meeting as of May 25, 2017. 49301489 .v) BOARD: Les Card Dan Airola Jeff Bray ----· Mike Trotta Doug Frost Tom Nielsen Carollyn Lobell IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written Consent of the Board of Directors in Lieu of Special Meeting as of May 25, 20 17. BOARD: Les Card Dan Airola Jeff Bray Mike Trotta Tom Nielsen Carollyn Lobell 493014&9.v3 TN WITNESS WHEREOF, the undersigned have executed this Unanimous Written Consent of the Board of Directors in Lieu of Special Meeting as of May 25, 20 17. BOARD: Les Card Dan Airo la Jeff Bray Mike Trotta Carollyn Lobell 4930 1489.vJ IN WITNESS WHEREOF, the undersigned have executed this Unanimous Writ1en Consent of the Board of Directors in Lieu of Special Meeting as of May 25, 2017. BOARD: Les Card Dan Airola Jeff Bray Mike Trotta Doug Frost Tom Nielsen 49301489.v3 EXHIBIT A Scope of Work description : LSA will conduct a peer review of the Ramboll Environ Apple Campus 2 Construction Emissions Evaluation for the revised Site B of Phase 2 const r uction, and, based on the findings of that review, prepare an eighth Addendum to the Apple Campus 2 Project Final Environmental Impact Report. EXHIBIT B Schedule of Performance: LSA w i ll complete the scope of work within three months of the Notice to Proceed. EXHIBIT C Compensatio n : LSA will complete the scope of work for a Not-to-Exceed amount of $5 ,000.00. The work will be billed as a single invoice following agreed -upon method and form of delivery of eigh t h Addendum . EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in Califomia and acceptable to City. INSURANCE POLICIES AND MINIMUMS REQUIRED I. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contr ibution from City's insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 OJ (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insuranc e, provided each po li cy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall a lso apply on a primary and non -contr ibutory basis for the benefit of City before the City 's own insurance or self-insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 00 0 I covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compe11sation: As required by the State of Ca lifornia, with Statuto1y Limits and Employer's Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. D Not required. Consultant has provided written verification of no employees. 4. Professional Liability for professional acts , errors and omissions, as appropriate to Consultant's profession, with limits no less tha n $2,000,000 per occurrence or $2,000,000 aggregate . lf written on a claims made form: a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five (5) years after completion of the Services. c. If coverage is canceled or non -re newed , and not replaced with another claims-made policy fonn with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase "extended reporting " coverage for a minimum of five (5) years after completion of the Services . OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Er h. D-lnsurance Requiremenls for Design Professionals & Cons11/1an 1s Contracls Form Updated Feb. 20/8 1 Additional I11sured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers ("Additional Insureds") are to be covered as additional insureds on Consultant's CGL policy. General Liability coverage can be provided in the form of an endorsement to Consultant's insurance (at least as broad as ISO Form CG 20 IO (I I/ 85) or both CG 20 IO and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/ Additional Insureds sha ll be primary inswunce. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant's insurance and shall not contribute to it. Notice of Ca11cel/ation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or l O days in advance if due to non-payment of premiums. Waiver of Subrogation Consultant waives any right to subrogation against City/Additional l.nsureds for recovery of damages to the extent said losses are covered by the insurance policies required herein . Specifically, the Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles am/ Self-Insured Rete11tions Any deductible or self-insured retention must be declared to and approved by the City. At City's option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations , claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Ra t ing of A-VII, or better. Verification of Coverage Cons ultant must furnish acceptable insurance ce1tificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time duringthe Contract term. Suhco11sulta11ts Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant's insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained byConsultant. Adequ(lcy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. Exh. D-lnsurance Requirements/or Design Professionals & Consu ltan ts Con tra cts Form Updated Feb. 2018 2 EXHIBIT D Insurance Following execution of the agreement LSA will provide a certificate of insurance in compliance with City requirements. Contact information : Judith H. Malamut, AICP, Principal Judith.malamut@lsa.net 2215 Fifth Street Berkeley, CA 94710 510 -540-733 1 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM /DD /YYYY) ~ 5 /8/2018 THIS CERTI FICATE IS ISSUED AS A MATTER OF I NFORMATI ON ONLY AND CONFERS NO RIGHTS UPON THE CERTI F ICATE H O LDER. THIS CERTIF ICATE DOES NOT AFF I RMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITU T E A CONTRACT BETWEEN THE ISSUING I NSURER(S), AUTH O RIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed . If SUBROGATION IS WAIVED, subject to the terms an d condit ions of the policy, certain policies may require an end orsement. A statement o n this certificate does not confer rights to the certi fic ate hol der in lieu of such e ndo rseme nt(s). PRODUC ER ~~~~~C T Robin Lee Dealey, Renton & Associates i A~,QNJn i=,o, 714-427-6810 I FAX Lie. #0020739 (AJC Nol : 714-427-6818 P .O. Box 10550 ~i:iMl~~ss : rlee(a)dealevrenton .com Santa Ana CA 92711 -0550 INSU RER/SI AFFOR DIN G COVERAGE NA IC# INSURER A : Hartford Fire Ins. Co. 19682 INSURED LSAASSOCl1 INSURER B : Twin Citv Fi re Ins. Co. 29459 LSA Associates , Inc. INSURER c: Berklev Insura nce Comoanv 32603 20 E x ecut ive Park, Suite 200, I rvine CA 92614 INSURER D : INSUR ER E : INS URER F: COVERAGES CERTIFICATE N UMBER: 475282181 REVISI O N NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED . NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THI S CERTIFICATE MAY BE ISSUED OR MAY PERTAIN , THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS , EXCLUSIONS AND COND ITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IN SR TYP E OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR ""'" WVD POLI CY NUMBER IMM/DD/YYYYI IMM/DD/YYYYl I A GENERAL LIABILITY y 57CESOF4492 9/30/2017 9/30/2018 EAC H OCCURRENCE S 1,000 ,000 X DAMAG E TO RENTED COMM ER CIAL GENERA L LIABILITY PRE MISES (Ea occurrence) S 300 ,000 -D CLAIMS-MAD E 0 OCCUR MEO EXP (Any one person) S 10,000 PERSON AL & ADV INJ URY S 1,000 ,000 - GENERAL AGGREGAT E f-- S 2,000 ,000 GEN'L AGGR EGATE LIMIT APP LIES PER : PRODUCTS -COM P/O P AGG S 2,000 ,000 n POLICY fxl ~f ,QT n LOC s I A AUTOMOBILE LIABILITY 57UUN IF1488 9/30/2017 9/30/2018 COMBI NED SINGLE LIMIT f--fEa acc ident) S 1000000 X ANY AUTO BODILY INJURY (Per person ) s I f--~ I ALL OWNED SCHEDUL ED BODILY INJURY (Per accid ent ) s AUTOS AUTOS -f--NON-OWNED PROPERT Y DAMAGE l X HIRED AUTOS X AUTOS /Per accident) s -- $ B X UMBRELLA LIAB N OCCUR 57HUON0012 9/30/2017 9/30/20 18 EACH OCCURRENCE SS ,000 ,000 f-- EXCESS LIAB CLAIMS-MADE AGGR EG ATE S 5,000 ,000 DED I I RETENTION s s A WORKERS COMPENSATION 57WEGG5794 9/30/2017 9/30/20 18 X I WC ST ATU -I jOTH-T"'>Y 1.J MIT S ER AN D EMPLOYER S' LI ABILI TY Y/N ANY PROPRIETOR/PAR TNE R/EXECUTI VE D N/A EL EAC H ACCI DENT S 1,000 ,000 OF FI CER /MEMBER EXC LUDED? (Mandatory in NH) EL DISEASE -EA EMP LOYEE S 1,000 ,000 If yes, describe under EL DISE ASE -POLICY LIM IT S 1,000 ,000 DE SCRIPTION OF OP ERATIONS below C Professional AEC90 1701401 9/30 /2017 9/30/20 18 $2 ,000 ,000 per Clai m and Pollut ion $4 ,000 ,000 Ann i Aggr. Liability DESCRI PTI ON OF OPERATIONS/ LOC ATIONS / VEHIC LES (Attach ACOR D 101 , Additional Remarks Schedule, if more space is required) Umbrella policy is a follow-form to underlying General Liability/Auto Liability/Employers Liability Re : COC1 802 , Apple Campus 2 C onst. Study. The City o f C upertino, its City Council , officers , officials , employees, agents , servants and volunteers are Additional Insured a s required by written contract. Pri mary and Non-Contributory as requ ired by written contract. Waiver of Subrogation as required by written c ontract. CERTIFICATE HOLDER CANCELLATION 30 Dav Notice of Cance at1on SH OULD ANY OF THE ABOVE DESCR IBED POLICIES BE CANCE L LED BEFORE THE EXPIRATION DATE THEREOF, NOTICE W IL L BE DELIVERED IN C ity of Cupertino* ACCORDANCE WITH THE POLICY PROVISIONS . Attn : Haley McKee 10300 Torre Avenue ~HORIZED REPRESENTATIVE Cupertino CA 95014 . [?h I ~ <.n.p © 1988-2010 ACORD CORPORATIO N. All rights reserved . ACORD 25 (2010/05) T he ACORD name and logo are registered marks o f ACORD POLICY NUMBER 57 CES OF4492 COMME RCIAL GE NER AL LIAB!UTY CG 20 37 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CA REF ULLY. ADDITIONAL IN S URED ... OVVNERS, LE S SEES OR CONTRACTORS -CO M PLETED O P ERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE IAny =~~ne: ~d~:~:::::::~~::s:-:-:-~-yo_u_, -+: A_L_~-~-a:_i~--~-iJ-:-:-.:-~-e:-;-r__,i;'--c~--~-:-t-~-:-~-:-m_c,_:-~-~e-/-ed-~..,_:-~--~a-~:-i:_n_s-.i !have agreed i n a written contract, lt h :i.s pol:i.,::y . l 1a g reement, o r perm,t. . ! ----------·--------···-------~ I . I II I I I i------t------------------------------------------------------ 1 I 1 I [i~f~~;-;ti~~--;;q~/~~dt~ complete this Schedule, if not sh~wn above, wm~sho~~ihe Declarations . A. Section II -Who Is An Insured is amended to include as an additiona l insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part. by "your work" at the location designated and described in the Schedule of this endorsement performed for that additional insured and included in th e "products-completed operations hazard". However: 1. The insurance afforded to such additional insured only applies to the extent permitted by iaw: and 2 . If coverage provided to tt,e additional insured is required by a contract or agreement , the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such addition a l ins ured . B. With respect to the insurance afforded to these additional insureds, the following is added to Section m -Limits Or Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2 . Available under the applicable Limits of insurance shown in the Declarations; which ever is less. This endorsement shall not increase the app li cable Limits of insurance shown in the Declarations . CG 20 37 04 13 © Insura nc e Se rvic es Offi ce , Inc., 201 2 Pa ge 1 of 1 POLICY NUMBER: 57 CES 01?4492 COMMERCIAL GENERAL LIABILITY CG 2010 0413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL nNSURED ~ OWNERS, LESSEES OR CONTRACTORS -SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SC HEDULE ------------·-------·-----------------·; -----··-····--------·---------·----i Name Of Additional Insured Person(s) ! I t--------O_r_O_;~a_ni_z_a_ti_o_n(s) i Location(s) Of Covered Operations __j I Any person or organi.z ation with whom you have l All projects or locat i ons covered under thi.sl ! agreed in a wri tt.en contract, agreement, or I policy. I I permH I I ;......-------------------'-------------------~ ! lnformationrequired to com~lete this Schedule, if_not shown above. will be shown in the Declarations. ----~ A. Section ii -Who Is An insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or ''personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured{s) at the location(s) designated above. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreemen t to provide for such additional insured _ 8. With respect to the insurance afforded to these additional ins ureds , the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work. including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be petiormed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which t he injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. CG 2010 0413 © Insurance Serv ices Office, Inc., 2012 Page 1 of 2 Policy Number: 57CES0F4492 COMMERClft,.L GENERAL. 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 , and any other person or organization qualifying as a Named Insured under this policy. 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 I! - Who Is An insured. Other words and phrases that appear in quotation marks t1ave special meaning. Refer to Section V - Definitions. SECTION I -COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seek ing those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any claim or ··suit'' that may resu lt. But: (1) The amount we will pay for damages is limited as described in Section 1H -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 or settlements under Coverages A or a or medical expenses under Coverage C. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments -Coverages A and B. b. This insurance applies to "bodily injury" and "property damage" only if: HG 00 0 1 0916 {1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; (2) The "bodily injury" or "property damage" occurs during the policy period; and (3) Prior to the policy period, no insured listed under Paragraph 1. of Section II -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. 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 !I -Who Is An Insured or any "emp loyee" 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; (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 beglm 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 ''bodi ly injury". e . incidental Medical Malpractice And Good Samaritan Coverage "Bodily injury" arising out of the rendering of or failure to render the following health care services by any "emp loyee" or "volunteer worker" shall be deemed to be caused by an "occurrence" for: Page 1 of 21 © 2016 The Hartford (Inc ludes copyrigt1ted material of Insurance Services Office , Inc. with its permission.) Policy Number: 5 7C ES0F4492 (1) Professional health care services such as: (a) Medical, surgical, dental, laboratory , x- ray or nursing services or treatment, advice or instruction, or the related furnishing of food or beverages; (b) Any health or therapeutic service, treatment, advice or instruction; or {c} The furnishing or dispensing of drugs or medical , dental, or surgical supplies or appliances; or (2) First aid seNices, which include (a) Cardiopulmonary resuscitation, whether performed manually or with a defibrillator; or (b} Services performed as a Good Samaritan. For the purpose of determining the limits of insurance, any act or omission together with all related acts or omissions in the furnishing of these services to any one person will be cons idered one "occurrence''. However, this Incidental Medical Malpractice And Good Samaritan Coverage provision applies only if you are not engaged in the business or occupation of providing any of the services described in this provision. 2. E~clusions This insurance does not apply to: a. Expected Or Intended Injury "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. b. Contractual Uabmty "Bodily injury" or "property damage" 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: ('i) That the insured would have in the absence of the contract or agreement; or (2} 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 purposes of liability assumed in an "insured contract", reasonable attorney 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 : Page 2 of 21 (a) Liability to such party for, or for the cost of, that party's defense has also been assumed in the same "insured contract"; and (b} Such attorney fees and litigation expenses are for defense of that party against a civil or alternative dispute resoiution proceeding in which damages to which this insurance applies are alleged. c. Liquor Liability "Bodily injury" or "property damage" for wt1ich any insured may be t1eld liable by reason of: (1) Causing 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 even if the claims against any insured allege negligence or other wrongdoing in: (a) Tt,e supervision, hiring, employment, training or monitoring of others by that insured ; or (b} Providing or failing to provide transportation with respect to any person that may be unde r the influence of alcohol; if the "occurrence" which caused the ''bodily injury" or "property damage", involved that which is described in Paragraph (1 ), (2) or (3) above. However, this exclusion appl ies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcollolic beverages. For the purposes of this exclusion, permitting a person to bring alcollolic beverages on your premises, for consumption on your prem ises, whether or not a fee is charged or a license is required for such activity, is not by itself considered tf1e business of selling, serving or furnishing alcoholic beverages. d. Workers' Compensation And Similar Laws Any obligation of Hie 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: HG 00 01 0916 Policy Number: 5 7CES0 F44 92 (a) Emp loyment by the insured; or (b) Performing duties related to the conduct of the insured's business; or (2) The spouse, child , parent, brother or sister of tl1at "employee" as a consequence of Paragraph (1) above. Tl1is exclusion applies (1) Whether the insured may be liable as an employer or in any otl1er 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" or "property damage" arising out of t he 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 sustai ned within a building and caused by smoke, fumes, vapor or soot produced by or originating from equipment that is used to lleat, 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, site or location has been added to your policy as an additional insured with respect to your ongoing operations pe,iormed for that additional insured at that premises, site or location and such premises , site or location is not and never was own ed or occupied by, or rented or loaned to, any insured , other than that additional insured; or (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 whicl1 is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste; HG 00 01 0916 (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 ott,er operating fluids which are needed to perform the normal 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 released as paii 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 locat ion on whict1 any insured or any contractors or subcontra ctors working directly or indirectly on any insured's behalf are performing operations if the Page 3 of 21 Policy Number: 57CES0F4492 operations are to test for. monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to , or assess ihe 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 "su it" by or on behalf of a governmental authority. g. Aircraft, Auto Or Watercraft "Bodily injury" or "property damage" arising out of tl1e 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 tt1e 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. Tllis exclusion does not apply to: (1) A watercraft whi!e 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; Page 4 of 21 {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: (a) The operation of machinery or equ ipment that is attached to, or part of, a !and vehicle that would qualify under the definition of "mobile equipment" if it were not subject to a compulsory or financial responsibility iaw or other motor vehicie insurance law where it is licensed or principally garaged; or (b) The operation of any of the machinery or 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 in sured and is hired, chartered or loaned with a paid crew . However, this exception does not apply if tile insured has any other insurance for such "bodily injury" or "property damage", whether the ottH3r 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 {2) The use of "mobile equipment" in, or while in practice for, or wt1ile being prepared for, any prearranged racing, speed, demolition, or stunting activity. i. War "Bodily injury" or "property damage", 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 o r defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or {3) In surrection, reb ellion , revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these. j. 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, HG 00 010916 Policy Number: 5 7CES0F4492 enhancement, restoration or maintenance of such property for any 1·eason, 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. Paragrapl1s (1}, (3) and (4} of ttiis 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 seven or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as descdbed in Section m -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 "property damage" arising from the use of elevators. Paragraphs {3), (4), (5) and (6} of th is 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 the job site. Paragraph (6) of this exc!usion does not apply to "property damage'' included in the "products-completed operations hazard". k. Damage To Yom Product "Property damage" to "your product" arising out of it or any part of it. I. 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. HG 00 0 1 0916 m. 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 term s. This exclusion does not apply to tl1e 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. n. Recall Of Products, Work Or Impaired Property Damages claimed for any loss, cost or expense incurred by you or others for tile Joss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: (1) "Your product"; (2) "Your work"; or (3) "Impaired property"; if sucl1 product, work, or property is withdrawn or recalled from the market or from use by any person or organ ization because of a known or suspected defect, deficiency, inadequacy or dangerous cond ition in it. o. Personal And Advertising Injury "Bod ily injury" arising out of "personal and advertising injury", p . Access or Disclosure Of Confidential Or Personal lnformation Anc.! Data-related Liabi!ity Damages arising out of: (i) Any access to or disclosure of any person's or organization's confidential or personal information, including patents, trade secrets , processing methods, customer lists, financial information , credit ca rd info rmation, health information or an y other type of nonpublic information; or (2.) The loss of. loss of use of, damage to, corruption of, inability to access, or inability to manipulate electronic data. This exclusion applies even if damages are claimed for notification costs, credit monitoring expenses, forensic expenses, public relations expenses or any otlle1· !os s, cost or expense incurred by you or others arising out of that which is described in Paragraph ('i) or (2) above. Page 5 of 21 Policy Number: 57CES0F4492 However, unless Paragraph (1) above applies, this exclusion does not appiy to damages because of "bodily injury". As used in this exclusion, electronic data means information, facts or programs stored as or on, created or used on, or 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. q. Employment-Related Practices "Bodily injury" to: {1) A person arising out of any "employment- related practices"; or (2} The spouse, child, parent , brother or sister of ttiat person as a consequence of "bodily injury" to that person at whom any "employment-related practices" are directed. This exclusion applies: (1) Whether the injury-caus in g event described in the definition of "ernployment- related practices" occurs before employment, during employment or after employment of that person; {2} Whett1er the insured may be liable as an employer or in any other capacity; and (3) To any obligation to share damages wilt, or repay someo ne else who must pay damages because of the injury. r. Asbestos (1) "Bodily injury" or "property damage" ar ising out of the "asbestos hazard". (2) Any damages, judgments, settiernents, loss , costs or expenses that: (a) May be awarded or incurred by reason of any claim or suit alleging actual or threatened inju ry 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, Page 8 of 21 detoxifying or neutralizing or in any way responding to or assessing the effects of an "asbestos hazard". s. Recording And Distribution Of Material Or lnfonnation In Violation Of Law "Bodily injury" or "property damage" arising d irectl y or indirectly out of any action or omission that violates or is alleged to violate; (1 } The Telephone Consumer Pmtection 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 su ch law; (3) The Fair Credit Reporting Act (FCRA), and any amendment of or addition lo sucl1 !aw, including the Fai r and Accurate Credit Transaction Act (FACTA); or {4) Any federal, state or local statute, ordinance or regu lation, other than the TCPA or CAN-SPAM Act of 2003 or FCRA and their amendments and additions, that addresses, prohibits or limits the printing, dissemination, disposal, collecting, recording, sending, transmitting, communicating or distribution of material or information. Damage To Premises Rented To You - Exception For Damage By Fire, Lightning Or E1{plosion Exclusions c . through h . and j. through n. do not apply to damage by fire, lightning or explosion to premises while 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 m -Limits Of Insurance. COVERAGE S PERSONAL AND ADVERT!SiNG !NJURV U/-.\BH..!TY 1. Insuring J1,greement a. We will pay those sums tt1at the ins ured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We wili have the right and duty to defend the insured against any "suit" seeking ttwse damages. Howeve r, we will l1ave no duty to defend the insured against any "suit" seeking damages for "persona! and advertising injury" to which this insurance does not apply. We may, at our discretion, investigate any 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 Ill -Limits Of Insurance; and (2.) Our right and duty to defend end when we ~1ave used up the app licable limit of insu rance in the payment of judgments or HG 00 01 09 16 Policy Number: 57CESOF4492 settlements under Coverages A or B or medical expenses under Coverage C. No other obligation or liability to pay sums or perform acts or services is cove!·ed unless explicitly provided for unde r Supplementary Payments -Coverages A and B. b. This insurance applies 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. 1.. Exclusions This insurance does not apply to: a. Knowing Violation Of Rights Of Another "Personal and advertising injury" arising out of an offense committed by, at the direction or with the consent or acquiescence of the insured with the expectation of inflicting "personal and advertising injury". b. Material ?ub:ished With ~{nowledgs Of Falsity "Personal and adve1i ising injury" arising out of oral, written or electronic publication, in any manner, of material, if done by or at the direction of the insured with knowledg e of its falsity. c . Material Published Prior To Policy Period "Personal and adve1iising injury" arising out of oral, written or electronic publication, in any manner, of material whose first publication took place before the beginning of the policy period. d. Criminal Acts "Personal and advertising injury" arising out of a criminal act committed by or at the direction of the insured . e. Contractuai Liability "Personal and advertising injury" for which the insured has assumed liability in a contract or agreement. This exclusion does not apply to liability for damages that the insured would have in the absence of the contract or agreement. f. Breach Of Contract "Personal and advertising injury" arising out of a breach of contract, except an implied contract to use another's "advertising idea" in your "advertisement". g. Quality Or Performance Of Goods -Failure To Conform To Statements "Personal and advertising injury" arising out of the failure of goods, products or services to conform with any statement of quality or pe1iormance made in your "adve1iisement". HG 00 01 0916 h. Wrong Description Of Prices "Personal and advertising injury'' arising out of the wrong description of the price of goods, products or services. i. infringement Of Intellectual Property Rights {1) "Personal and adve1iising injury" arising out of any actual or alleged infringement or violation of any intellectual property rights such as copyright, patent, trademark. trade name, trade secret. trade dress, service mark or other designation of origin or authenticity; or (2) Any injury or damage alleged in any clam or "suit" tt1at also alleges an infringement or violation of any intellectual property right, whether such allegation of infringement or violation is made by you or by any other party involved in the claim or "suit", regardless of whether this insurance would otherwise apply. However, this exclusio n does not apply if the only allegation in the claim or "suit" in vo lving any intellectual property right is limited to: (1) Infringement, in your "advertisement", of: (a) Copyright; (b) Slogan; or (c} Title of any literar\j or artistic work; or (2) Copying, in your "adve1iisement", a person's or organization's "advertising idea" or style of "adve1iisement". j. Insureds In Media And Internet Type Businesses "Personal and advertising inju ry" committed by an insured whose business is: {1} Advertising, broadcasting, publishing or telecasting; (2) Designing or determining content of web sites for others; or (3) An Internet search, access, content or service provider. However, tl1is exclusion does not apply to Paragraphs a., b. and c. of the definition of "personal and advertising in jury" under tl1e Definitions Section. For the purposes of this exclusion , the placing of frames, borders or links, or adve1i ising, for you or others anywhere on the Internet, is not by itself, considered the business of advertising, broadcasting, publishing or telecasting. k. Electronic Chatrooms Or Bullstn Boards "Personal and advertising injury" arising out of an electronic chatroom or bulletin board the Page 7 of 21 Policy Number: 57CES0F4492 insured hosts, owns, or over which the insured exercises control. L Unauthorized Use Of Another's Name Or Product "Personal and advertising injury" arising out of tt,e 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. m. Pollution "Personal and advertising injury" aris ing out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants" at any time. n. Pollution-Related Any loss, cost or expense aris ing out of any: (1) 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 th e effects of, "pollutants"; or (2) C laim 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" o. War "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 defe nding against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or (3) Insurrection , rebeliion , revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these. p. Internet. Advertisements And Content Of Others "Personal and adve1tising injury" arising out of: · (1} An "advertisement" for others on your web s ite; (2) Placing a link to a web site of others on your web site; (3) Content, including infoJTnation, sounds, text , graphics, or images from a web site of others displayed within a frame or border on your web site; or Page 8 of 21 (4) Computer code, software or programming used to enable: (a} Your web site; or (b) The presentation or functionality of an "advertisement'' or other content on your web site. q. Right Of Privacy Created By Statute "Persona: and advertising injury" 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. r. Violation Of Anti-Trust law "Personal and advertising injury" arising out of a violation of any anti-trust law. s. Securities "Personal and adve1iising injury" arising out of the fluctuation in price or value of any stocks, bonds or other securities. t. Recording And Distribution Of Material Or Information In Violation Of Law "Personal and advertising injury" arising directly or indirectly out of any action or omission that violates or is alleged to violate: {1) The Tele phone 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 suet, law; {3} Tile Fair Credit Reporting Act (FCRA), and any amendment of or addition to s uch law, including the Fair and Accurate Credit Transaction Act (FACTA); or (4) Any federal, state or local statute, ordinance or regulation, other than the TCPA or CAN-SPAM Act of 2003 or FCRA and their amendments and additions, that addresses, prohibits or limits the printing, dissemination, disposal, collecting, recording, sending, transmitting, communicating or distribution of material or information. u. Emp!oymenU~e:ated Practices "Personal and advertising injury" to: {'t) A person arising out of any "employment- related pract ices"; or {2} The spouse , child, parent. brother or sister of that person as a consequence of "personal and advertising inju ry" to that person at wt,om any "employment-related practices" are directed . HG 00 010916 Policy Number: 57CES0F4492 This exclusion applies : (1) Whether the injury-causing event described in the definition of "employment- related practices" occurs before employment, during employment or after employment of that person; (2) Whether the insured may be liable as an employer or in any other capacity; and (3) To any obligation to share damages with or repay someone else who must pay damages because of the injury. v. Asbestos ("i) "Personal and adveriis ing injury" arising out of the "asbestos hazard". (2) Any damages, judgments, settlements, loss , costs or expenses that: (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 requ irement 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". w. Access Or Disclosure Of Confidential Or Personai Information "Personal and advertising injury" arising out of any access to or disclosure of any person's or organization's confidential or personal information , including patents, trade secrets , processing methods, customer lists, financial information, credit card information, health information or any other type of nonpublic information. This exclusion applies even if damages are claimed for notification costs, credit mon itoring expenses, forensic expenses, public relations expenses or any other loss, cost or expense incurred by you or others arising out of any access to or disclosure of any person's or organization's confidential or personal information . HG00010916 COVERAGE C MEDICAL PAYMENTS 1. insuring Agreement a. We will pay medical expenses as described below for "bodily injury" caused by an accident: (1) On premises you own orrent; (2} On ways next to premises you own or rent; or (3) Because of your operations; provided that: {~) The accident takes place in the ''coverage territory" and during the policy period; {2) The expenses are incurred and reported to us witt1in tt1ree years of the date of the accident; and (3) The injured person submits to 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 administered at the time of an accident; (2) Necessary medical, surgical, X-ray and dental services, including prosthetic devices; and (3} Necessary ambulance, flospital , professional nursing and funeral services. 2. Exclusions 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 tfle person normally occupies. d . Workers Compensation And Similar Laws To a person, wt1ether 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. Page 9 of 21 Policy Number: 57CES0F4492 f. Products-Completed Operations Hazard Included within the "products-completed operations hazard". g. Coverage A Exclusions Excluded under Coverage A. SUPPLEMENTARY PAYMENTS -COVERAGES AANDB 1. We will pay, with respect to any claim we investigate or settle, or any "suit" against an insured we defend: a. Aii expenses we incur. b. Up to $1,000 for cost of bail bonds required because of accidents 01· traffic iaw violations arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We do not have to furnish these bonds . c. 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. d. 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. e. All court costs taxed against the insured in the "suit". However, such costs do not include attorneys' fees, attorneys ' expenses, witness or expert fees, or any other expenses of a party taxed to the insured. f. 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 wili not pay any prejudgment interest basecl on that period of time after the offer. g. All interest on the full amount of an11 judgment that accrues after entry of the judgment and before we have paid, offered to pay, or deposited in couii the part of the judgment that is within the applicable limit of insurance . These payments wili not reduce the limits of insurance. 2. If we defend an insured against a "suit" and an indemnitee of the insured is also named as a paiiy to the "suit". we will defend that indemnitee if all of the following conditions are met a. The "suit" against the indemnitee seeks damages fo r which the insured has assumed the liability of the indernnitee in a contract or agreement that is an "insured contract"; b. This insurance applies to such liability assumed by the insured; c. The obligation to defend, or the cost of the defense of, that !ndemnitee, has also been Page 10 of .21 assumed by the insured in the same "insured contract"; d. 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 interests of tt1e indernnitee; e. The indernnitee 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 counse l to defend the insured and the indemn itee; and f. The indemnitee: (i) Agrees in writing to: (a) Cooperate witt1 us in the investigation, settlement or defense of the "suit"; (b) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the "suit"; (c) Notify any other insurer whose coverage is available to the indemnitee ; and {d} Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and (2} Provides us with written authorization to: (a) Obtain records and other information related to the "suit": and {b) Conduct and control the defense of the indemnitee in such "suit". So Jong as the above conditions are met, attorneys' fees incurred by us in the defense of that indemnitee, necessary litigation expenses incurred by us and necessaiy litigation expenses incurred by the indemnitee at our request will be paid as Supp lementary Payments Notwithstanding the provisions of Paragraph 2.b.(2) of Section i -Coverage !:.. . Bodily Injury And Property Damage Liability, such payments will not be deemed to be damages for "bodily injury" and "property damage" and will not reduce tf1e 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 wilen: a. We have used up the applicable limit of insurance in the payment of judgments or settlements; or b. T he conditions set fortt, above , or the terms of the agreement described in Paragraph f. above, are no longer met. HG 00 01 0916 Polic y Number: 5 7CES0F4492 SECTION !I -WHO IS AN INSURED 1. If you are designated in the Declarations as : a. An ind ividual , 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 iimited liability company, you are an insured . Your members are also ins ureds, but oniy 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 . e. A trust, you are an insured. Your trustees are also insureds, but only witt1 respect to their duties as trustees. 2. Each of the following is also an insured: a. Empioyees And Volunteer Workeri;; 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 tor: (1) ''Bodily rnjury" or "personal and advertising 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), 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 spo use , chiid, parent, brother or sister of that co-"empioyee" or that HG 00 01 0916 "volunteer worker" as a consequence of Paragraph (1 )(a) above; (c} For which t11ere 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 (1 ){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: (a) Subparagraphs ('! )(a), (1 )(b) and (1 )(c) above do not apply to any "employee" or "volunteer worker" providing first aid services; and (b) Subparagraph {1 )(d} above does not apply to any nurse, emergency medica l technician or paramedic employed by you to provide such services. {2.) "Property damage" to property: (a} Owned, occupied or used by, {b) Rented to, in the care, custody or contro i 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 partnersl1ip 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) V\lith respect to iiability arising out of the maintenance or use of that property; and (2) Until your legat representative has been appointed. ct Lega! Representative if You Die Your iegal representative if you die, but only with respect to duties as such . That representative will have all your rights and duties under ttlis Coverage Part. e. Unnamed Subsidiary Any subsid iary, and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the vot ing stock on th e effective date of the Coverage Part . Page 11 of 21 Policy Number: 57CES0F4492 The insurance afforded herein for· any subsidiary not named in this Coverage Part as a named insured does not apply to injury or damage with respect to which such insured is also a named insured under another po licy or would be a named insured under such po licy but for its termination or the exhaustion of its limi ts of insurance. 3. Newly Acquired Or Formed Organizat ion Any organization you newly acquire or form, other than a partnership, joint venture or limited l iab ility company , and over which you maintain fi nanc ial interest of more than 50% of the voting stock, wi ll qua lify as a Named Insured if there is no other s imilar insurance available to that organization. However: a. Coverage under this prov ision is afforded only until the 180th day after you acqu ire or form the organization or the end of the policy period, whicheve r is earli er; b. Coverage A does not app ly to "bodily injury" or "property damage" that occurred before you acqu ired or formed the organ ization; and c. Coverage B does not apply to "personal and advertising injury" arising out of an offense committed before you acquired or formed the organizat ion. 4. Nonownad 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 c harge, any person is an insured whi le operating such watercraft with your permission. Any other person or organization respons ible for the cond uct of such person is also an in sured, but on ly with respect to liab ili t y arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organ iza tion for this liabili ty. However, no person or organization is an insured with respect to: a. "Bodi ly in j ury" to a co .. ''employee" of the person operating t he watercraft; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the emp loyer of any pe rson who is an insured under th is prov ision. 5. t\dditional lnsurecis When Required By Written Contract, Written Agreement Oi Permit The follow ing person(s) or organizat ion(s) are an addit ional insured when you have agreed, in a written contract , written agreement or because of a permit issued by a sta t e or po lit ical subdivision, that such person or organization be added as an additional insured on your policy , provided the in jury or damage occurs subsequent to the execution of the contract or agreement. Page 12 of 21 A pe rson or organization is an additional insured under this provision only for that period of time required by the contract or agreement. However, no such person or organ ization is an insured under this provis ion if such person or organization is included as an insured by an endorsement issued by us and made a part of this Coverage Part. a. Vendors Any person(s) or organization(s) (referred to below as vendor), but only with respect to "bodily injury" or "property da mage" aris ing out of "your products" which are distributed or so ld in the regular course of tt1e vendor's business and only if this Coverage Part provides coverage for "bod il y injury " or "property damage" inc luded within the "products-completed operations hazard". (1) The insurance afforded the vendor is subject to the followi ng add it ional exclusions: This insurance does not apply to: (a} "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not app ly to liability for damages that the vendor would t1ave in the absence of the contract or agreement; {b) Any express warranty unauthorized by you: (c) Any phys ical or chemical change in the product made intentio nally by the vendor; (d) Repackaging, except when unpacked sole ly for the purpose of inspect ion, demonstration, testing, or t he substitution of parts under instruct ions from the manufacturer, and then repackaged in the original conta iner; (e} Any failure to make such inspect ions, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of bus iness, in connection witl1 the distribution or sale of the products; {f) Demonstration , installation, servicing or repa ir operations, except such operations performed at the vendor's premises in connection with the sa le of the product; (g} Products which, after distribut ion or sale by you, have been labeled or relabeled or used as a container, part or ingred ient of any ot her thing or substance by or for the vendor; or HG 00 010916 Policy Number: 57 CES0F4492 (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 exclus ion does not apply to: (i) The exceptions contained in Sub- paragraphs (d) or (f); or (ii) Such inspections, acjjustments, 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 insumnce 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(s) or organization(s) from whom you lease equipment; but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in wl1ole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). {.2} With respect to the insurance afforded to these additional insureds this insurance does not app ly to any "occurrence" which takes place after the equipment lease expires. c. Lessors Of Land Or Premises Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. With respect to the insurance afforded these additional insu reds tl1e following additional exc lusions apply: This insurance does not apply to: 1. Any "occurrence" which takes place after you cease to lease that land; or .2. Structural alterations, new construction or demol ition operations performed by or on behalf of such person or organization. d. Architects, Engineers Or Surveyors Any architect, engineer, or surveyor, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or HG 00 01 0916 omissions of those acting 011 your behalf: (1) In connection with your premises; or (2) In tt1e performance of your ongoing operations performed by you or on your behalf. With respect to the insurance afforded these additional insureds, the following additional exclusion applies: This insurance does not apply to "bodily injury", "property damage" or "personal and adveriising injury" arising out of the renderrng of or the failure to render any professional services by or for you, including: 1. The preparing, approvi ng, or fail ing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or 2. Supervisory, inspection, architectural or engineering activities. Th is exclusion applies even if the cla ims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" whict1 caused the "bodily injury" or "property damage", or the offense which caused the "personal and advertising injury", invo lved the rendering of or the fai lure to render any professional services by or for you. e. Permits Issued By State Or Pomical Subdivisions Any state or political subdivision, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. With respect to the insurance afforded these additional insureds, this i nsurance does not apply to: (1) "Bodily injury", "property damage" or "personal and advertising injury" ar ising out of operations performed for the state or municipality; or {2} "Bodily injury" or "property damage" included within the "products-completed operations hazard". f. Any Other Party Any other person or organization w~10 is not an additional insured under Paragraphs a. throuah e. above, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, ,n whole or in part, by your acts or omiss ions or the acts or omissions of those acting on your behalf: {1) In the performance of your ongoing operations; Page 13 of 21 Polic y Number: 57CES0F4492 (2) In connection with your prem ises owned by or rented to you; or (3) In connection with "your work" and included w ithin t he "products-completed operations hazard", but only if (a) The written contract or agreement requires you to provide such coverage to such additional insured; and (b) This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products- completed operations hazard". However: ('I) The insurance afforded to such additional insured only applies to the extent permitted by law; and (2) If coverage provicied to the additional insured is requ ired by a contract or ag reement, the insurance afforded to such add itional insured will not be broader than that which you are required by the contract or agreement to provide for such add itiona l insured. With respect to the insurance afforded to these additional insureds , this insurance does not apply to: "Bodily in j ury", "property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or su rveying services , including: (1) The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, swveys , field orders , change orders or drawi ngs and specifications; o r (2) Supervisory, inspection, arcl1it ectu ral o r engineeri ng activities. Th is exclusion applies even if the claims ag ainst any ins u red 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", or the offense which caused the "persona l and adve rtising inju ry", in volved the rendering of or the fa ilure to rende r any profess ional services by or for you. The limits of insu rance that apply to additional in s ureds is described in Section m -Limits Of Insurance. How this insurance app li es when other insurance is available to the addit ional insured is described in the Other Insurance Condition in Section IV - Commercia l General Liability Conditions . Page 14 of 21 No person or organization is an insured with respect to the conduct of any current or past partnership, jo!nt venture or limited liability company that is not sfwwn as a Named Insured in the Declarations . SECTION rn -UMITS OF INSURANCE 1. The Most We Wil! Pay T he Limits of Insurance shown in the Declarations and the rules below fix tt1e most we wil! pay regardless of the number of: a, Insureds; b. Claims made or "suits" brougtit; or c. Persons or organizat ions making claims or bring ing "suits". 2. General Aggregate Limit The General Aggregate Limit is the most we wi ll pay fo r t he s um of: a. Medical expenses under Coverage C; b, Damages under Coverage A, except damages because of "bodily inj ury" or "property damage" included in the "products- completed operations t.azard"; and c, Damages under Coverage B. 3. Products -Complete d Operations Aggregate lim it The Products-C ompleted Operations Aggregate Lim it is the most we will pay under Coverage A for damages because of "bodily injury" and "property damage" included in the "products- completed operations hazard". 4. Personal And Advertising Injury Limit Subject to 2 . above, the Pe rsonai and Advertisi ng Injury L imit is the most we will pay under Coverage B for the sum of all damages because of all "personal and advertising injury" sustained by a n1, one person o r organization 5. Each Occurren ce Limit Subject to 2. or 3. above, whichever applies, the Eac h Occurrence Limit is the most we will pay for the sum of: a. Damages under Coverage A; and b. Med ica l expenses under Coverage C because of ail "bodiiy in j ury" and "prope1iy damage" arising out of any one "occurrence". · 6. Damage To P remises Rented To You Umit Subject to 5. above, the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages beca use of "prope1iy damage" to any one premises, wh il e rented to you, or in the case of damage by fire , lightning or explosion , while ren t ed to you or t e m p orarily occu p ied by you with permission of the owner. HG 00 010916 Policy Number: 57 CES0F4492 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. 7. Medical Expense Limit Subject to 5. above, the Medical Expense Limit is the most we will pay under Coverage C for all medical expenses because of "bodily injury" sustained by any one person. 8. How Limits Apply To Additional Insureds if you l1ave agreed in a written contract or written agreement that another person or organization be added as an additional insured on your policy, the most we will pay on behalf of such additional insured is the lesser of: a. The limits of insurance specified in the written contract or written agreement; or b. The Limits of Insurance shown in the Declarations. Such amount shail be a part of and not in addition to Limits of Insurance shown in the Declarations and described in this Section. The Limits of Insurance of this Coverage Part apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period tor purposes of determining the Limits of insurance. SECTION IV COMMERCIAL GENERAL LIABILITY CONDITIONS 1 .. Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part. 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit a. Notice Of Occurrence Or Offense You or any additional insured must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: {1) How, when and where the "occurrence" or offense took piace; {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. HG oo en os rn b. Not i ce Of Cla i m If a claim is made or "suit" is brought aga inst 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 written notice of the claim or "suit" as soon as practicable. c. Assistance And Cooperation Of The Insured You and any other involved insured must: (1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection wit!, the claim or "suit"; (2) Authorize us to obtain records and other information; (3) Cooperate with us in the investigation or settlement of the claim or defense against the "suit"; and (') Assist us, upon our request, in the enforcem ent of any right against any person or organization which may be !iable to the insured because of injury or damage to which this insurance may aiso apply. d . Obligations At The Insureds Own Cost No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, w ithout our consent. e. Additional Insureds Other Insurance If we cover a claim or "suit" under this Coverage Part that may also be covered by other insurance available to an additional insured, such additional insured must submit such claim or "suit" to the other insurer for defense and indemnity. However, this provision does not apply to the extent that you have agreed in a written contract or written agreement that th is insurance is primary and non -contributory witi, the additional insured's own insurance. r. ~tnowfedge Of Ar. Occur:rencs, Offense, Claim Or Suit Paragraphs a. and b. apply to you or to any additional insured only when such "occurrence", offense, ciaim or "suit" is known to: ('i} You or any additional insured that is an individual; {2) Any partner, if you or the additional insured is a partnership; Page 15 of 21 Policy Number: 5 7CES0F4492 (3) Any manager, if you or the additiona l insured is a limited liability company ; (4) Any "executive officer" or insurance manager, if you or the additional insured is a corporation; (5) Any trustee, if you or the additional insured is a trust; or (6) Any elected or appointed official, if you or the additional insured is a political subdivision or public entity. This duty applies separately to you and any additional insured. 3. Legal Action Against Us No person or organization has a right under this Coverage Part: a. To join us as a party or otl1erwise bring us into a "suit" asking for damages from an insured; or b. To sue us on this Coverage Part unless al! 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 Coverage Part or that are in excess of the applicable limit of insurance. An agreed settlement means a settlernenl and release of liability signed by us, the insured and the claimant or the claimant 's legal representative. 4. Other Insuranc e If other valid and collectible insurance is availab le to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when b. below appl ies . If other insurance is also primary, we will share with all that other insurance by the method described in c. below. b. Excess Insurance This insurance is excess over any of the other insurance, whether primary , excess , contingent or on any other basis: {1) Your Work That is Fire , Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work"; (2} Pre m ises 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; Page 16 of 2 1 (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 ihe loss arises out of tl1e maintenance or us e of aircraft, "autos'' or watercraft to the extent not subject to Exclusion g. of Section I -Coverage A -Bodily Injury And Property Damage Liability; (5) Property Damage To Borrowed Equipment Or Use Of Elevators If the Joss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion j. of Section I -Coverage A - Bodily Injury And Property Damage Liability; (6} When You Are Added As Ar. ~.ddWonal Insured To Other insurance Any other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations , for which you have been added as an additional insured by that insurance; or (7) When You Add Others As P.n Additional Insured To This Insurance Any other insurance available to an additiona l insured . However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this coverage pa11 . (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract or written agreement that this insurance be primary. If other insurance is also primary, we will share with all that ott1er insurance by the method described in c. below. {b) Primary And Non-Contributory Tc 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. HG 00 01 09 16 Policy Number: 57CES0F4492 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 t1ave no duty under Coverages A or B to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends , we will undertake to do so , but we will be entitled to the insured's rights against all those other insurers. Wtien this insurance is excess over other insurance, we will pay only our share of tl,e 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 s hare 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 Cf Sharing if all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it ha s paid its applicable limit of insurance or none of the loss remains, whichever comes first. if any of the ot!1er 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 Lmit of insurance to the total applicable limits of insurance of all insurers. 5. Premium Audit a. We will compute all premiums for this Coverage Part in accordance with our rules and rates. b. Premium shown in this Coverage Part as advance premium is a deposit premium only. At the close of each audit period we will compute the earned premium for that period and send notice to the first Named Insured. The due date for audit and retrospective premiums is the date shown as the due date on the bill. If the sum of the advance and audit premiums paid for the policy period is greater than the earned premium, we will return the excess to the first Named Insured. c . The first Named insured must keep records of the information we need for premium HG 00 01 OS Hi computation, and send us copies at such times as we may request. 6. Representations a. When You Accept This Policy By accepting this policy, you agree: (·i) The statements in the Declarations are accurate and complete; (2) Those statements are based upon representations you made to us; and (3) We have issued this policy in reliance upon your representations. b. Unintentional Failure To Disclose Hazards If unintentionally you shouid fail to disclose al! hazards relating to the conduct of your business that exist at the inception date of this Coverage Part, we shai! not deny coverage under this Co verage Part because of such failure . 7. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insured, this insurance applies: a. As if each Named insured were the oniy Named Insured ; and b. Separately to each insured against whom claim is made or "suit" is brought. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those r ights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured wiii bring "suit" or transfer those rights to us and help us enforce them. b. Waiver Of Rights ill Recovery (Waiver Of Subrogation} If tt1e 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 Pa1i, we also waive that rigl1t, provided the insured waived their rights of recovery against such person or orga nization in a contract, agreement or permit that was executed prior to the injury or damage . 9. When We Do Not Renew If we decide not to renew this Coverage Part, we will mail or deliver to the first Named Insured shown in the Declarations written notice of the Page 17 of 21 Policy Number: 57CES0F4492 nonrenewal not less than 30 days before the expiration date. If notice is mailed , proof of mailing will be sufficient proof of notice. SECTION V -DEF!NrflONS 1. "Advertisement" means the widespread public dissemination of information or images that has the purpose of inducing the sa ie of goods, products or services through: a. (1) Radio; (2} Television; (3) Billboard; (4.} Magazine; (5) Newspaper; or b. Any other publication that is given widespread public distribution . However, "advertisement" does not includ e : a. Tl1e 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 inc ludes the mere presence of asbestos in any form. 4. "Auto" means: a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached mach inery or equipment; or b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged. However, "auto" does not include "mobile equipment". 5. uBodily injury" means physical: a. Injury; b. Sickness ; or c. Disease s ustained by a person and, if arising out of the above, mental anguish or death at any time. 6. "Coverage territory" means: a. The United States of America (including its terr itories 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; or Page 18 of 21 c . All other parts of th e 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 detennined in the United States of America (including its territories and possess ions), 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. "Employee" includes a "leased worker". "Employee" does not include a "temporary worker". 8. "Employment-Related Practices" means: 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, discrimination or malicious prosecution directed at that person. 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. lt incorporates "your product" or "your work" that is known or thought to be defective, deficient, inadequate or dangerous ; or b. You have failed to fulfill trie terms of a contract or agreement; if such property can be restored to use by the repair, rep lacement, adjustment or removal of "your product" or "your work", or your fulfilring tile 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 HG00010916 P olicy N umber: 57CESOF4492 Premises Rented To You Limit described in Section Ill -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. An obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality: e . An elevator maintenance agreement; 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 rnilroad bridge or trestle, tracks, road-beds, tunnel, underpass or cross ing . However, Paragraph f. does not include that part of any contract or agreement: (1} That indemnifies an architect, engineer or surveyor for injury or damage aris ing out of: {a) Preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or (b) Giv ing directions or instructions , or failing 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 liabiiity for an injury or damage aris ing out of the in sured's rendering or fa ilure to render professional services, including those listed in (1} above and supervisory, inspection. arct1iiectural or engineering activities . 13. "Leased worker" means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business . "Leased worker" does not include a "temporary worker". HG 00 01 0916 14. "Loading or unloading" means the handling of property: a. After it is moved from the place wt1ere 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 vehicles, incl uding any attached machinery or equipment: a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off pub lic roads; b. Vehicles maintained for use solely on or next to premises you own or rent; c . Vehicles that travel on crawler treads; d. Veh icle s, whether self-propelled or not. maintained primarily to provid e mobility to permanently mounted: (1 l Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equ ipment such as grnders, scrapers or rollers ; e. Vehicles not described in a., b., c. or d. above that are not self-propelled and are maintained primarily to provide mobility to permanently attached equ ipmen t 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 maintained primarily for purposes other than the transportation of persons or cargo. However, self-propelled vehicies with the following types of permanently attached equipment are not "mobile equipment" but will be considered "a utos": (1) Equipment designed primarily for: (a) Snow removal; (b) Road maintenance, but not construction or resu 1iacing; or (c) Street cleaning; Page 19 of 21 Policy Number: 57CES 0 F4492 {2) Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and {3) Air compressors, pumps and generators . including spraying, we1di ng, building cleaning, geophysical exploration, lighting and well servicing equipment. However, "mobile equipment" does not include any land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged. Land vehicles subject to a compulsory or financial responsibility law or other motor vel1icle insurance law are considered "autos". 16. "Occurrence" rneans an accident, includ ing continuous or repeated exposure to substantially the same general t1armful conditions . 17. "Personal and advertising injury" means in jury, including consequential "bodily injury", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Ma li cious prosecution; c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person or organization occupies , committed by or on behalf of its owner, landlord or lessor; d. Orai , written or electronic publication, in any manner. cf mater1al that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; e. Ora l, written or electronic pubiication, in any man ner, of material that vio lates a person's right of privacy; f. Copying, in your "advertisement", a person's or organization's "advertising idea" or style of "adveriisement"; or g. Infringement of copyright , slogan, or title of any literary or artistic work, in your "advertisement". 18 . "f>oHutant.s" mean any solid, l iquid, gaseous or therma l irrita nt or contaminant, includ ing smoke, vapor, soot , fumes, acids , alkalis, chemicals and waste . Waste includes materials to be recycled, recondit ioned or reclaimed. 1 S. "Products~completed operations hazard": a. Includes all "bod ily injury" and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except: ('!) Products that are still i n your physicai possession ; or Page 20 of 21 (2) Work that has not yet been completed or abandoned . However, "your work" will be deemed completed at the earliest of the follow ing 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 organ ization other· than another contractor or subcontractor working on the same project. Work that may need service, main tenance , correction, repair or replacement, but which is otherwise complete , will be treated as completed b. Does not include "bodily injury" or "property damage" arising out of: (1} The transpo1iation of property, unless the injury or damage arises out of a condition in or on a veh icle not owned or operated by you , and that condition was created by tt1e "loading or unloading" of that vehicle by any insured; (2} The existence of tools, uninstalled equipment or abandoned or unused materiais ; or (3} Products or operations for which ttie classification, listed in the Declarations or in a policy Schedu le , states that products- comp leted operations are subject to the General Aggregate Limit. 20. "Property damage" means: a. Phys ical injury to tang ible property , incl uding all resulting loss of use of that prope rty. Al l such loss of use shall be deemed to occur at the time of tt1e 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 the "occurrence" that caused it. As used in t his defin ition, computerized or electronically stored data, programs or software are not tangible property. 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 - HG 00 01 0916 Policy Number : 5 7CE S0F4492 ROMS, tapes , drives, cells, data processing devices or any other media which are used with electro n ically control led equipment. 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 reso lu tion proceeding in which such damages are claimed and to whi ch the insured submits w ith 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"; b. Donates his or her work; c. Acts at the d irection of and within the scope of duties determined by you ; and d. Is not paid a fee, salary or other compe nsation by you or anyone else for their work performed for you . 24. "Your product": a. Means: ('i) Any goods or products, other than real property, manufactured, sold, handled . distributed or disposed of by: (a} You; (b) Othe rs trading under your name; or (c) A person or orga ni zation whose business or assets you have acquired ; and (2 i Conta ine rs (other than veh icles), mate rials, parts or equ ipment furnished in connection witl1 such goods or products. b. !n cludes {1 ) Warranties or representations made at any time with respect to the fitness , qualiti1, durability, performance or use of "your product": and (2) The prov iding of or failure to provide warnings or instruct ions. c. Does not include vending machines or other property rented to or located for the use of bthers but not sold . H G 00 01091 6 25. "Your work": a. Means: ("I) 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) Warrant ies or representations made at any time with respect to the fitness , quality, durability, performance or use of "your work", and (2) The prov id ing of or failure to provide warnings or instructions. Pag e 21 of 21 57UUN IF1488 EXCERPTS FROM CA 0001 (1013) HARTFORD BUSINESS AUTO COVERAGE Additional Insured: SECTION II -COVERED AUTO LIABILITY COVERAGE A.1. WHO IS AN INSURED: The following are "i nsureds" c . Anyone liable for the conduct of an "insured" ... but only to the extent of that liability. Primary Insurance: SECTION IV -BUSINESS AUTO CONDITIONS B. General Conditions -5. Other Insurance a. For any covered "auto" you own, this Coverage Form provides primary insurance. For any covered "auto" you don 't own, the insurance provide by this Coverage Form is excess over any other collectible insurance . c. Regardless of the provisions of paragraph a . above, this Coverage Form's Covered Auto Liability Coverage is primary for any liability assumed under an "insured contract". Cross Liability Clause: SECTION V -DEFINITIONS G. "Insured" means any person or organization qualifying as an insured in the Who is An Insured provision of the applicable coverage . Except with respect to the Limit of Insurance, the coverage afforded applies separately to each ins ured who is seeking coverage or against whom a claim or "suit" is brought. EXCERPTS FROM HA9916 (0312) HARTFORD COMMERCIAL AUTOMOBILE BROAD FORM ENDORSEMENT 15. WAIVER OF SUBROGATION -We waive any right of recovery we may have against any person or organization with whom you have a written contract that requires such waiver because of payments we make for damages under this Coverage Form. Workers' Compensation and Employers' Liability Insurance Policy Waiver of Our Right to Recover From Others Endorsement -California WC 04 03 06 If th e following information is not complete, refer to the appropriate S chedule attached to the policy. Insured: LSA Associates , Inc. Producer : Dealey , Renton & Associates Schedule Person or Organization City of Cupertino* Attn: Haley McKee 10300 Torre Avenue C upertino CA 95014 Ad di ti onal Premium % We have th e r ight to recover our payments from any- one liable for an injwy -covered by this policy . W e w ill not enforce our right against the person or organization named in the Schedule . (This agreement app lies only to the ex tent that y ou perform w ork under a written contract that requires yo u to obtain this agreement from us.) Auth o ri zed Re pr ese ntati ve WC040306 Policy Number 57WEGG5794 Effective Date 9/30/2017 Job Description Re: COC 1802 , Apple Campus 2 Const. Study. * its Ci ty Council , officers, officials , employees, agents , servants and volunteers You must maintain payroll records accurate ly segre- gating the remuneration of your employees while en- gaged in th e work describ ed in the Schedule. T he additional premium for this endorsement shall be the percentage , as shown in the Schedule applicabl e to this endorsement , of the California workers ' compensation premium otherwise due on such remuneration .