Loading...
19-003 David Wellhouse & Associates, Inc., Preparation and Filing of Claims for State Mandated Cost ReimbursementCITY OF a CUPERTINO SERVICES AGREEMENT ($5,000 OR LESS) 1. Parties. This Agreement ("Agreement") is made and entered into as of January 3, 2019 ("Effective Date") by and between the City of Cupertino , a municipal corporation ("City") a nd David Wellhouse & Associates Inc. ("Contractor"), a_C_o_r~p_o_ra_t_io_n _______ _ 2. Services. Contractor agrees to provide the programs, classes or activities ("Services") set fotth in d etail in the Scope of Services , attached and incorporated here as Exhibit A. 3. Time of Performance. This Agreement begins on the Effective Date and ends on June 30, 2019. ("Contract Time"), unless terminated earlier as provided here in. Contractor must deli v er the Services in accordance with the Schedule of Performance included or attached to Exhibit A. Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources , and qualified staff to deliver the Services on time. 4. Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based upon actual costs but that will be capped so as not to exceed $---'4_,_,0"---0'---'0'--------- ("Contract Price"), based upon the Scope of Services and the budget and rates included in Exhibit A. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor's actual costs exceed the capped amount. Upon City approval of written in v oices , Contractor will be paid as follows: (check one; cross out others): [Z] A lump sum amount of$ 4 000 which shall not exc~ed the Contract Price. D At the rate of$ per hour for a total not to exceed the Contract Price . D Based on the payment schedule included or attached to Exhibit A which shall not exceed the Contract Price. 5. Independent Contractor. Contractor is an independent contractor and not an employee, partner, or joint venture of City . Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. Contractor is not entitled to health benefits, workers compensation or other benefits from the City. Contractor must have the skills and qualifications to perform the Services in a competent and professional manner, and must be licensed, registered , and/or certified and have a City Business License. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement. 6. Assignment. This Agreement is not assignable. Contractor may not substitute another or transfer any rights or obligations under this Agreement without prior written approval of City. Only those persons whose names are included in Exhibit A may perform the Services . Proj ect Prep aration and Filin g of Cl aims for State Mandat ed Cos t Reimbur sement Services Agreement ($5 ,000)/Rev. May 22, 2018 Page 1 of 6 7. Indemnification. To the fullest extent allowed by law and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers and consultants ("lndemnitees"), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs and expenses (including attorney fees, legal costs and expenses related to litigation and dispute resolution proceedings), of every nature, arising directly or indirectly from this Agreement or in any manner relating to any of the following : (a) Breach of contract, obligations, representations or warranties; (b) Negligent or willful acts or omissions committed during perfonnance of the Services; (c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors; Contractor must pay any costs City may incur in enforcing this provision and must accept a tender of defense upon receiving notice from City. Contractor's payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Agreement. 8. Insurance. Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit B, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City , at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor's compensation or terminating the Agreement. 9. Compliance with Laws. Contractor shall comply with all laws and regulations applicable to this Agreement, included without limitation the following laws: Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a "public works" component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. D Sole Proprietor. If Contractor is a sole proprietorship/individual, it must sign the Affidavit of No Employees included in this Agreement. Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS) or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735 , 1777 and 3077.5. Consistent with City policy, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or Contractor's employees or sub-contractors will not be tolerated. Project Preparation and Filing of Claims for State Mandated Cost Reimbursement Services Agreement ($5,000)/Rev. May 22, 2018 Page 2 of 6 Conflicts oflnterest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governme ntal decisions or serves in a staff capacity, as defined in Section 18700 of the California Code of Regulations. Contractor agrees to abide by the City's rules governing gifts to public officials and employees . 10. Abandonment. City may abandon or postpone the Project at any time. Contractor will be compensated for satisfactory Services performed through the date of abandonment. 11. Termination. City may terminate this Agreement for cause or without cause at any time. City reserves the right to terminate the Agreement and the remainder of the Services offered by Consultant without notice based upon Contractor's cancellation of a Service (i.e ., program , class or activity) without giving advance notice or obtaining written approval from City . 12. Governing Law. This Agreement is governed by the Jaws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator 's award must be supported by law and substantial evidence and include detailed written findings of law and fact. 13. Entire Agreement. This Agreement represents the full and complete understanding of every kind or nature between the Parties, and supersedes any other agreement or understanding , either oral or written, between the Parties. Any changes to this Agreement will be effective only if in writing and signed by each Party 's authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between the main Agreement and the attachments or exhibits thereto, the text of the main Agreement shall prevail. Each provision and clause required by law for this Agreement is deemed to be inserted and will be inferred herein. 14. Services Coordinator. The Parties designate the following persons as Services Coordinators for this Agreement. Contractor's designation and any substitution are subject to City approval. ~duo< ontact c~ Project Preparation and Filing of Cl aims for State Mand ated Cost Reimbursemen t Services Agreement ($5,000)/Rev. May 22, 2018 Page 3 of 6 15. Contract Interpretation. There are no intended third party beneficiaries of this Agreement. Neither acceptance of the Services nor payment therefor shall constitute a waiver of any contract provision. City 's waiver of a breach shall not constitute waiver of another provision or breach .The headings in this Agreement are for convenience only. The Indemnification and Governing Law sections expressly survive this Agreement. 16. Severability. If a term or provision of the Agreement or its application to a particular situation is found by the cou1t to be void , invalid, illegal or unenforceable, such term/ provision shall remain in effect to the extent allowed b such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. --- 17. Notices. All notices, demands, requests and approvals must be sent to the persons below in writing, and will be considered effective on the date of personal delivery, upon confirmation of delivery by a reputable overnight delivery service, on the fifth calendar day after deposit thereof in the United States Mail , postage prepaid , registered or certified, or the next business day following electronic submission: To City of Cupertino: To Contractor: 10300 Torre Ave., Cupertino, CA 95014 Attention: Grace Schmidt, City Clerk Attention: Rene e M. Wellhouse. President Emai 1: cityclerk@cupertino .org Email: dwa-renee@surewest.net 18. Validitv of Contract. This Agreement is valid and enforceable only if (a) it complies with the contract provisions of Cupertino Municipal Code Sections 3.22 and 3.23, (b) is signed by the City Manager or an authorized designee, and (c) is approved for form by the City Attorney's Office. 19. Execution. Contractor's signatory warrants that he or she is authorized to execute the Agreement and to legally bind Contractor. This Agreement may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. Project Preparation and Filing of Cl a ims for State Mandated Co st R e imbursement Services Agreement ($5 ,000)/Rev. May 22, 2018 Page4of6 IN WITNESS WHEREOF, the Paities have caused the Agreement to be executed as of the Effective Date written above. · CONTRACTOR By~ 111 ~ag{ , Nam~-::&nee hle;,~?l( re.A Title: ·-:Pres iden ... f Taxl.D. No .: lfl't-03 3/°I{) / APPi;R~ys TO FORM: By:_~ R CIO V. FIERRO Cupertino Acting City Attorney CITY OF CUPERTINO A Municipal Corporation By ~~?~~ Name: 1 1' ..,,,,. ~~ (" J-eoe:--,, Title: \ Y\k;""" L:\-u\ he, n 0j ::e.c::: Project Preparation and Filing of Claims for State Mandate d Cost Reimbursement SeNices Agreement ($5,000)/Rev. May 22, 2018 Page 5 of 6 Contractor's Affidavit of No Employees State of Cal(fornia County of Santa Clara City of Cupertino I, the undersigned, declare as follows: I am an independent contractor and the owner of Da.v:,'d ftJeJ!b&1.se+ A:.ssocJafe.s inc . I wish to enter into a services contract with the City of Cupertino. I am fully aware of the provisi~ns of section 3700 of the California Labor Code, which requires every employer to provide Workers' Compensation coverage for employees in accordance with the provisions of that Code. I am also aware that I must provide proof of workers' compensation insurance to the City of Cupertino for any and all employees I may have, pursuant to Section 12 of the City of Cupertino's contract. I hereby ce1tify that I do not have any employees nor will I have any employees working for me or my business during the term of any service contract with the City of Cupertino. I am not required to have Workers' Compensation insurance. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. -,t~ .-.-~- Executed on this _L_day of ... Jt;.tfl (/JL'!f 2018, at ~Y/i.,men-n.J , California. ·~e/Jee bikl!Aau.s~ ~~~ Project Preparation and Filing of Claims for State Mandated Cost Reimbursement Services Agreement ($5,000)/Rev. May 28, 201 B Page 6 of 6 Scope of Work Claims To Be Filed. CONSULTANT shall prepare and file with the State Controller's Office on behalf of CITY, the following state mandated cost (SB 90) claims during the 2017/2018 fiscal year. A. February 2019 Annual Claims for fiscal year 2018/2019 to be prepared and filed on or before February 15, 2019 as required by the State Controller's Claiming Instructions. CITY acknowledges that CONSULTANT does not warrant that claims will be filed for all of the mandates listed in Scope of Work. CONSUL TANT shall only prepare and file claims for those mandates listed in Scope of Work which the CITY has reimbursable costs. The claims and services described in this Section 1 shall hereinafter be referred to as "PROJECT". CONSULTANT hereby designates Renee Wellhouse to be sole contact and agent in all consultations with CITY during the performance of services as stated in PROJECT. Time For Performance CONSUL TANT shall file all claims in accordance with the State Controller's claim filing deadline contained in the applicable State Controller Claiming Instructions . City Assistance CITY shall assign a staff coordinator to work directly with CONSUL TANT in the performance of this agreement. CITY shall provide CONSULTANT with requested information in a timely manner, pursuant to PROJECT. CITY represents and warrants that all financial documents and other information provided are accurate and correct. CONSULTANT shall not be liable for claims that are not filed or incorrectly filed due to inaccurate or untimely data. Disposition Of Documents CONSULTANT shall furnish to CITY copies of all claims filed with the State within 30 days after filing . CONSUL TANT shall , upon written request, make copies of work papers available to CITY . CITY acknowledges that all such work papers are the property of CONSUL TANT, and may not be disclosed to any third party, provided, however, that such work papers may be disclosed to appropriate governmental authorities for audit purposes. CONSUL TANT shall be entitled to retain copies of all data prepared . Consultant Assistance If Audited Upon notice of audit, CONSUL TANT shall make available to CITY and state auditors claim file information, and provide assistance to CITY in defending claims submitted. Indirect Costs CONSUL TANT shall make every effort to prepare departmental Indirect Cost Rate Proposals for claims submitted, provided CITY financial information and departmental costs support such rates. CONSUL TANT ma-y: utilize the ten percent (10%) indirect cost rate allowed by the State Controller if financial information and departmental costs do not support a higher rate. -~ DATE (MM/DDIYYYY) AC:C>RD"" CERTIFICATE OF LIABILITY INSURANCE i:. ...., ... 01/07/2019 THIS CERTIFICATE IS ISSUED AS A MATIER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT USAA INSURANCE AGENCY INC/PHS NAME : 65812845 THE HARTFORD BUSINESS SERVICE CENTER 3600 WISEMAN BLVD PHONE FAX SAN ANTONIO, TX 78265 (A/C , No, Ext): (888) 242-1430 (A/C , No): (888) 443-6112 E-MAIL ADDRESS : INSURER(S) AFFORDING COVERAGE NAIC# INSURED INSURER A : The Sentinel Insurance Company 11000 DAVID WELLHOUSE & ASSOCIATES INSURER B : 3609 BRADSHAW RD STE H382 INSURERC: SACRAMENTO CA 95827-3275 INSURER D: INSURER E : INSURERF : COVERAGES CERTIFICATE NUMBER : REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BEL OW HAV E BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDI TION OF ANY CONTR AC T OR OTHER DOCUMENT WITH RESPECT TO WIH ICH THIS CERTIF ICATE MAY BE ISSUED OR MAY PERTAIN , THE INSURANCE AF FORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS , EXC LUS ION S AND CON DITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN RED UC ED BY PA ID CLA IMS . INS~ TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EF F POLICY EXP LI MI TS LTR INC:R WVD I MM/D DNVVV\ lMM/DDIYYYY\ COMM ERCIAL GENERAL LI ABILITY EACH OCCURRENC E $2,000,000 - D CLAIMS-MADE ~OCCUR DAMAG E TO RENTED PREM ISE S fEa occurrence\ $1,000,000 -.x General Liability X MED EXP (Any one person ) $10 ,000 A 65 SBA NH5072 08/31/2018 08/31/2019 PERSON AL & ADV INJURY $2 000 000 - GEN'L AGGREGAT E LIMIT APP LIE S PER : GENER AL AGGR EG ATE $4,000,000 : POLICY D ~:i 0 LOC PRODUCTS -COM P/O P AGG $4 ,000 ,000 OTHER : AUTOMOBILE LIABILITY COMB INED SINGLE LIMIT $2 ,000,000 (Ea accident) 1-- ANY AUTO BODILY IN JURY (Per pe rson ) 1--AL L OWNED -SCHEDULED A AUTOS AUTOS 65 SBA NH5072 08/31/2018 08/31/2019 BODILY INJ UR Y (Per accident) 1---NON -OIM/ED PROPERTY DAMAG E X HIRED ALrrOS X AU TOS <Per accide nt ! - UMBRELLA LIAB ~ OCC UR EACH OCCURRENCE ,__ EXCESS LIAB CLAIMS-MADE AGGR EGATE OED I I RETE NTION $ WORKERS COMPENSATION 'PE R I l~~H-AND EMPLOYERS' LIABILITY STATUTE ANY PROPRIETOR/PARTNER/EXECUTIVE YIN E.L. EACH ACCID ENT OFFIC ER/M EMBER EXC LUDE D? C NIA ,-- (Mandatory In NH) E.L. DISEAS E -EA EMPLO YEE If yes, desc1 ibe under .__ E.L. DISEA SE · POLI CY LIM IT DES CR IPTI ON OF OPERATI ONS below DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101 , Addition al Remark s Schedule , may be attached II more space Is required) Those usual to the lnsured's Operations . Please see Additional Remarks Sche dule Acord Form 101 atlached. CERTIFICATE HOLDER CANCELLATION CITY OF CUPERTINO SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 10300 TORRE AVE THE EXPIRATION DATE THEREOF , NOTICE WILL BE DELIVERED IN CUPERTINO CA 95014-3202 ACCORDANCE WITH THE POLICY PROVISIONS . AUTHORIZED REPRESENTATIVE a~£Ct74~ © 1988-2015 ACORD CORPORATION . All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID : LOC#: -------- ADDITIONAL REMARKS SCHEDULE Page _2_ of _2_ AGENCY NAMED INSURED USAA INSURANCE AGENCY INC/PHS DAVID WELLHOUSE & ASSOCIATES POLICY NUMBER 3609 BRADSHAW RD STE H-382 SACRAMENTO CA 95827 SEE ACORD 25 CARRIER NAICCODE SEE ACORD 25 EFFECTIVEDATE :SEE ACORD 25 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD Fc:ffiM FORM NUMBER : ACORD 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE City of Cupertino , its City council, boards and commissions , officers, agents, employers , servants and volunteers are an additional insured per Additional Insured : Owners, Lessees, or Contractors; Scheduled Person or Organization Form SS4170 and Add itional Insured : Owners, Lessees or Contractors ; Completed Operations form SS4171 , attached to this policy . ACORD 101 (2014/01) © 2014 ACORD CORPORATION . All rights reserved. The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 65 SBA NH5072 THIS ENDORSEMENT CHANGES THE POLICY . PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -PERSON-ORGANIZATION CITY OF CUPERTINO I TS CITY COUNCIL, BOARDS AND COMMISSIONS, OFFICERS, AGENTS, EMPLOYERS, SERVANTS AND VOLUNTEERS ARE AN ADDITIONAL INSURED PER ADDITIONAL INSURED: OWNERS, LE SSEES , OR CONTRACTORS; SCHEDULED PERSON OR ORGANIZATION FORM SS41 70 AND ADDITIONAL INSURED : OWNERS, LESSEES OR CONTRACTORS; COMPLETED OPERATIONS FORM SS41 71, ATTACHED TO THIS POLICY. 10300 TORRE AVE CUPER'TINO, CA 95014 Form IH 12 00 11 85 T SEQ. NO. 002 Printed in U.S.A. Page 001 Process Date: 01/16/19 Expiration Date: 08/31/19 POLICY NUMBER : 65 SBA NH5072 THIS ENDORSEMENT CHANGES THE POLICY . PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNER, LESSEES OR CONTRACTOR CITY OF CUPERTINO 10300 TORRE AVE CU PERTINO, CA 95014 CITY OF CUPERTINO, ITS CITY COUNCIL, BOARDS AND COMMISSIONS , OFFICERS , AGENTS, EMP LOYERS, SERVANTS AND VOLUNTEERS ARE AN ADDITIONAL INSURED PER ADDITIONAL INSURED: OWNERS, LESSEES, OR CONTRACTORS; SCHEDULED PERSON OR ORGANIZATION FORM SS4l 70 AND ADDITIONAL INSURED: OWNERS, LESS E ES OR CONTRACTORS ; COMPLETE D OPERATIONS FORM SS417 1 , ATTACHED T O TH I S POL I CY. Form IH 12 00 11 85 T SEQ . NO . 003 Printed in U.S.A. Page 001 Process Date: 01/16/19 Expiration Date: 08/31/1 9 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. HIRED AUTO AND NON-OWNED A UTO This endorsement mod ifies insurance provided under the following: BUSINESS LIABILITY COVERAGE FORM This coverage is subject to all prov1s1ons in the BUSINESS LIABILITY COVERAGE FORM not expressly modified herein : A. Amended Coverage: Coverage is extended to "bodily injury" and "property damage" arising out of the use of a "hired auto" and "non-owned auto". B. Paragraph B. EXCLUSIONS is amended as follows: 1. Exclusion g. Aircraft, Auto or Watercraft does nol apply lo a "hired auto" or a "non-owned auto". 2. Exclusion e. Employers Liability does not apply to "bodily inju ry" lo domestic "employees" not entitled to workers' compensation benefits or to liability assumed by the "insured" under an "insured contract". 3. Exclusion f. Pollution is replaced by the following: "Bodily injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants": a. That are, or that are contained in any property that is : (1) Being transported or towed by, handled, or handled for movement into, onto or from, the covered "auto": (2) Otherwise in the course of transit by or on behalf of the "insured": or (3) Being storecl, disposed of, treated or processed in or upon the covered "auto". b. Before the "pollutants" or any property in which the "pollutants" are contained are Form SS 04 38 09 09 moved from the place where they are accepted by the "insured" for movement into or onto the covered "auto "; or c. After the "pollutants" or any property in which the "pollutan ts" are contained are moved from the covered "auto" to the pla ce where they are finally delivered, disposed of or abandoned by the "insured". Paragraph a. above does not apply to fuels, lubricants , fluids, exhaust gases or other similar "p(!,llutants" that are needed for or resul t from the normal electrical, hydraulic or mechanical functioning of the covered "auto" or its parts, if: (1) The "pollutants" escape, seep, migrale, or are discharged or released directly from an "auto" part designed by its manufacturer to hold, store, receive , or dispose of such "pollutants"; and (2) The "bodily injury" and "property damage" does not arise out of the operation of any equipment listed in paragraphs 15.b. and 15.c. of the definition of "mobile equipment". Paragraphs b. and c. above do not apply to "accidents" that occur away from premises owned by or rented to an "insured" with respect to "pollutants" not in or upon a covered "auto" if: (1) The "pollutants" or any property in which the "pollutants" are contained are upset, overturned or damaged as a result of the main tenance or use of a covered "auto "; and Page 1 of 3 © 2009, The Hartford (Includes copyrighted material of ISO Properties, Inc ., with its permission) -------------· -·-·----·---- (2) The discharge, dispersal, seepage, migration, release or escape of the "pollutants" is caused directly by such upset, overturn or damage as a result of the maint enance or use of a covered "a uto". 4. With respec t to th is coverage, the following add iti onal exclusions apply: a. Fellow employee Coverage does not apply to "bodi ly injury" to any fellow "empl~" bf trre "i nsored·'- arising out of the operation of an "auto " owned by the "insured" in th e course of the fell ow "employe e's" employment. b. Care, custody or control Coverage does not apply to "property damage " involv ing property owned or transported by the "insured" or in the "insured's" care, custody or control. C. With respect lo "hired auto" and "non-owned auto" cov era ge , Paragraph C. WHO IS AN INSURED is deleted and replaced by th e following: The following are "insureds": a, You . b , Your "employee" while us ing with your permission: (1) An "auto" you hire or borrow; or (2) An "auto" you don't own, hire or borrow in your business or personal affairs; or (3) An "auto" hired or rented by your "employee" on your behalf and al your direction . c. Anyone else while using a "hired auto" or "non - owned auto" with your permission except: (1) The owner or anyone else from whom you hire or borrow an "auto". (2) Someone using an auto whi le he or she is working in a bu siness of se lling , servicing, repairing, parking or storing "autos " unless that business is yours. (3) Anyone other than your "employee s", partners (if you are a partnership), members (if you are a limited liability company), or a lessee or borrower or any of their ''employees", whi le moving property to or from an "auto". (4) A partner (if you are a partnership), or a member (if you are a limited liability Page 2 of 3 company) for an "auto" owned by him or her or a member of hi s or her household . d, Anyone liable for the conduct of an "insured" described above but only to the exten t of that lia bility . D. With re spect to the operation of a "hired auto" and "non-owned auto", the following additional conditions apply: 1. OTHERINSURANCE a. Excep t for any liability assumed und er an "insured contract" the in sur ance providedb y----- this Coverage Form is excess ov er any oth er co ll ect ible insuranc e. Ho we ver, if your bus iness is the selling, servicing, repairing, parking or storage of "autos", the insurance provided by this endorsement is primary when covered "bodily injury" or "properly damag e" arises out of the operation of a customer's "auto" by you or you r "employe e". b. When this Coverage Form and any ot he r Coverage Form or policy covers on the same basis, either exce ss or primary, we will pay only our sha re . Our share is th e proportion that the Limit of In surance of our Cov erage Form bears to the total of the lim its of all the Coverage Forms and policies covering on the sa me basis . 2. TWO OR MORE COVERAGE FORMS OR POLICIES ISSUED BY US If the Coverage Form and any other Coverage Form or po licy issued to you by us or any company affiliated with us apply to the same "accident", the aggregate maximum Limit of Insurance under all the Coverage Forms or policies shall not exceed the highest appl ica ble Limit of In surance under any one Coverage Form or policy . This condition does not apply to any Coverage Form or policy iss ued by us or an affiliated company specificall y to apply as excess insurance over this Coverage Form . E. The following definitions are added : G . LIABILITY AND MEDICAL EXPENSES DEFINITIONS : 1. "Hired auto" means any "auto" you lease, hire, rent or borrow . This does not include any auto you leas e, h ire, rent or borrow from any of your "employees", your partners (if you are a partnersh ip), memb ers (if you are a limiled liabili ty company), Form SS 04 38 09 09 or your "exec utiv e officers" or members of their hous eholds. This does not in clude a long-term leased "auto" that you insure as an owned "auto" under any other auto liability insurance policy or a temporary substitute for an "auto" you own that is out of service because of its breakdo wn, repair, servicing or destruct ion. 2. "Non-owned auto " means any "auto" you do no t own, lease , hire, rent or borrow which is used in connection with your business . This includes : a. "Autos" owned by your "e mployees" your partners (if you are a partnership), members (If you are a limited liability company), or your "executive officers", or members of their households, but only while used in your business or your personal affairs. b. Customer's "a uto" that is In your care, custody or control for service. Form SS 04 38 09 09 Page 3 of 3 ------·------.. -··--·--.. -----·-·-·----------