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18-007 Proven Termite Solutions, Termite Abatement at Blackberry Farms Pool Pump and Lifeguard BuildingsCITY OF II PUBLIC WORKS CONTRACT WITH PROVEN TERMITE SOLUTIONS $45,000 OR LESS CUPERTINO 1. PARTIES This public works contract ("Contract") is made and entered into on January 22, 2018 ("Effective Date") by and between the City of Cupertino, a municipal corporation ("City"), and Proven Termite Solutions , a corporation ("Contractor") for termite abatement at Blackberry Farms Pool Pump and Lifeguard Buildings. 2. SCOPE OF WORK Contractor will perform and provide all labor, materials, equipment, supplies, transportation and any other items or work necessary to perform and complete the work required for the Project ("Work"), as required in the Scope of Work , attached here and incorporated as Exhibit A, and in accordance with the terms and conditions of this Contract. 3. TIME FOR COMPLETION 3.1 Term. This Contract begins on the Effective Date and ends on April 20, 2018 ("Contract Time") unless terminated earlier as provided herein. Contractor's Work shall begin on the date shown on a written Notice to Proceed ("NTP") and must be fully completed within the Contract Time or on the date specifically provided in the Notice to Proceed. The City Engineer will not issue a NTP until the Contract is fully executed by both parties and City has received satisfactory proof of insurance and any performance and payment bonds that may be required. 3.2 Time is of the essence for Contractor's performance and completion of the Work. Contractor must have sufficient time, resources, and qualified staff to deliver the work on time. 3.3 Liquidated damages of$ 200.00 will be charged for each day of unexcused delay , or City may deduct the amount from Contractor's payments. Liquidated damages are based on reasonably foreseeable consequences of delay and may include intangible losses which the Parties agree may be difficult to ascertain, such as loss of public confidence in City and its contractors, interference or loss of use of public facilities, and extended disruption to the public. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Work an amount that will based on actual costs but that will be capped so as not to exceed $3 ,211.00 ("Contract Price"), for all of Contractor 's direct and indirect costs , including all labor, materials, supplies, equipment, taxes , insurance , bonds and all overhead costs. 4.2 Invoices and Payments. Contractor must submit an invoice on the first day of each month, Public Works Project Termite A batement at Blackberry Farms Pool & Pump Buildings Public Works Contract $45,000 /Rev. Nov 3, 20 I 7 Page I of 11 describing the Work performed during the preceding month, itemizing labor, materials, equipment and any incidental costs incurred. Contractor will be paid 95% of the undisputed amounts billed within 30 days after City receives a properly submitted invoice. Any retained amounts will be included with Contractor's final payment within 60 days of City's acceptance of the Work as complete. 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee of City. Contractor is solely responsible for the means and methods of performing the Work and for the persons under this emplo yment. Contractor is not entitled to worker 's compensation or any other City benefits. 5.2 Contractor's Qualifications. Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Work in a competent and professional manner and according to the highest standards and best practices in the industry. 5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/or certified to perform the Work as required by law, and have procured a City Business License. Contractor shall possess a California Contractor's License in good standing for the following classification(s):no contractor license requirement, which must remain valid for the entire Contract Time . 5.4 Subcontractors. Only Contractor 's employees are authorized to work under this Contract. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Contract will apply to any approved subcontractor. 5.5 Tools, Materials and Equipment. Contractor will supply all tools , materials and equipment required to perform the Work under this Contract. 5.6 Payment of Taxes. Contractor must pay income taxes on the money earned under this Contract. Upon City's request, Contractor will provide proof of payment and will indemnify City for violation s pursuant to the indemnification provision of this Contract. 6. CHANGE ORDERS Amendments and change orders must be in writing and signed by City and Contractor. Contractor's request for a change order must specify the proposed changes in the Work, Contract Price, and Contract Time. Each request must include all the supporting documentation, including but not limited to plans/drawings, detailed cost estimates, and impacts on schedule and completion date. 7. ASSIGNMENTS; SUCCESSORS Contractor shall not assign , hypothecate, or transfer this Contract or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Contract and subject to City approval , which shall not be unreasonably withheld . Control means fifty percent (50%) or more of the voting power of the business entity . This Contract is binding on Contractor, its heirs , successors and permitted assigns Public Works Project Termite Abatement at Blackberry Farm s Pool & Pump Building s Public Works Con trac t $45 ,000 /Rev. No v 3, 2 01 7 Page 2 of 11 8. PUBLICITY I SIGNS Any publicity generated by Contractor for the Project during the Contract Time, and for one year thereafter must credit City contributions to the Project. The words "City of Cupertino" must be displayed in all pieces of publicity , flyers , press releases, posters, brochures , interviews , public service announcements and newspaper articles. No signs may be posted or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City. 9. SUBCONTRACTORS 9.1 Contractor must perform all the Work with its own forces , except that Contractor may hire qualified subcontractors to perform up to 25% of the Work, provided that each subcontractor is required by contract to be bound by the provisions of this Contract. Contractor must provide City with written proof of compliance with this provision upon request. 9.2 City may reject any subcontractor of any tier and bar a subcontractor from performing Work on the Project, if City in its sole discretion determines that subcontractor's Work falls short of the requirements of this Contract or constitutes grounds for rejection under Public Contract Code Section 4107 . If City rejects a subcontractor, Contractor at its own expense must perform the subcontractor's Work or hire a new subcontractor that is acceptable to City. A Notice of Completion must be recorded within 15 days after City accepts the Work if the Contract involves work by subcontractors. 10. RECORDS AND DAILY REPORTS 10.1 Contractor must maintain daily reports of the Work and submit them to City upon request and at completion of Project. The reports must describe the Work and specific tasks performed, the number of workers, the hours , the equipment, the weather conditions, and any circumstances affecting performance. City will have ownership of the reports , but Contractor will be permitted to retain copies. 10.2 If applicable, Contractor must keep a separate set of as-built drawings showing changes and updates to the Scope of Work or the original drawings as changes occur. Actual locations to scale must be identified for all major components of the Work , including mechanical , electrical and plumbing work ; HV AC systems; utilities and utility connections ; and any other components City determines should be included in the final drawings of the Project. Deviations from the original drawings must be shown in detail , and the location of all main runs, piping, conduit, ductwork, and drain lines must be shown by dimension and elevation. 10.3 Contractor must maintain complete and accurate accounting records of its Work , in accordance with generally accepted accounting principles , which must be available for City review and audit , kept separate from other records , and maintained for four years from the date of City 's final payment. 11. INDEMNIFICATION 11 .1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel , Contractor shall indemnify, defend , and hold harmless City , its City Council , boards and commissions, officers, officials , employees, agents, servants, volunteers and consultants ("Indemnitees"), through legal counsel acceptable to City, from and against any and all liability, damages, claims , stop notices , actions , causes of action, demands , Public Works Project Termite Abatement at Blackberry Farms Pool & Pump Buildings Public Works Contract $45,000 /Rev. Nov 3, 2017 Page 3 of 11 charges , losses 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 Contract or in any manner relating to any of the following: (a) Breach of contract, obligations, representations or warranties ; (b) Performance or nonperformance of the Work or of any obligations under the Contract by Contractor, its employees, agents , servants, subcontractors or subcontractors; (c) Payment or nonpayment by Contractor or its subcontractors or sub-subcontractors for Work performed on or off the Project Site; and (d) Personal injury, property damage , or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim, in accordance with California Public Contract Code Section 9201. At City 's request , Contractor will assist City in the defense of a claim, dispute or lawsuit arising out of this Contract. 11.3 Contractor's duties under this entire Section are not limited to Contract Price , Workers ' Compensation or other employee benefits , or the insurance and bond coverage required in this Contract. Nothing in the Contract shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other Indemnitee. 11.4 Contractor's payments may be deducted or offset to cover any money th e City lost due to a claim or counterclaim arising out of this Contract, a purchase order or other transaction. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit B. Contractor must provide satisfactory proof of insurance and maintain it for the Contract Time or longer as required by City. City will not execute the Contract until City has 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. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance at Contractor's expense , deducting the costs from Contractor 's compensation, or terminating the Contract. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all laws and regulations applicable to this Contract. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor 's ability to perform. Contractor is responsible for verifying the employment status of employees performing the Work, as required by the Immigration Reform and Control Act Public Works Project Termite Abatement at Blackb erry Farms Pool & Pump Buildings Public Works Con tract $45,000 /Rev. Nov 3, 2017 Page 4 of 11 13.2 Labor Laws. (a) Contracts of $1,000 or more are subject to the requirements of the California Labor Code, including but not limited to: (i) Prevailing wage laws under Labor Code Section 1775 , which require Contractor to pay prevailing wages applicable in Santa Clara County for each craft, classification, or type of worker needed to perform the Work, including health, pension and vacation. The prevailing wage rates are on file with the City Engineer's office and are available online at http://www.dir.ca.gov/DLSR; (ii) Apprenticeship requirements under Labor Code Section 1777.5 for Contacts $30 ,000 or more; (iii) Maintain certified payroll records in accordance with Labor Code Sections 1776 and 1812 , and electronically submit them to the Labor Commissioner as required by the regulations of California, Department of Industrial Relations ("DIR"); (iv) Comply with DIR Monitoring, Enforcement and Registration requirements of Labor Code Section 1725.5. (b) Contractor must compensate workers who are paid less than prevailing wages or required to work more than a legal day's work. Contractor will also be required to pay City a penalty of $ 200.00 per worker for each day of violation. ( c) As required by Labor Code Section 1861 , by signing this Contract Contractor certifies as follows: "I am aware of Labor Code Section 3700 which requires every employer to be insured against liability for workers ' compensation or to undertake self-insurance in accordance with the provisions of that code , and I will comply with such provisions before commencing the Work on this Contract." 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex , gender, sexual orientation, gender identity , Acquired-Immune Deficiency Syndrome (AIDS) or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777 and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee , a City employee, or any other person, by Contractor or Contractor's employees or sub-contractors will not be tolerated. 13.4 Conflicts of Interest. Contractor, its employees, subcontractors , servants and agents , may not have, maintain or acquire a conflict of interest in relation to this Contract in vio lation oflaw, including Government Code section 1090 and Government Code section 81000 and their accompanying regulations. No officer, official , employee, consultant, or other agent of the City ("City Representative") may have, maintain, or acquire a "financial interest" in the Contract, as that term is defined by state law, or in violation of a City ordinance or policy while serving as a City Representative or for one year thereafter. Contractor, its employees , subcontractors , servants and agents warrant they are not employees of City or have any relationship with City officials, officers or employees that creates a conflict of interest. Contractor may be required to file a conflict of interest Public Works Project Termite Abatement at Blackberry Farms Pool & Pump Buildings Public Works Contract $45 ,000 /Rev. Nov 3, 2017 Page 5 of 11 f01m if it makes ce1iain goverrunental decisions or serves in a staff capacity , as defined in section 18700 of the California Code of Regulations. Contractor agrees to abide by City rules governing gifts to public officials and employees. 13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating the Contract. City reserves all rights and remedies under the law and this Contract, including seeking indemnification. 14. BONDS For contracts of $25 ,000 or more, Contractor must obtain a payment bond and a performance bond , each in the penal sum of 100% of the Contract Price, using the Bond Forms attached and incorporated here as Exhibit C. Each bond must be issued by a surety admitted in California, with a financial rating from A.M. Best Company of Class A-or higher, or as otherwise acceptable to City. If an issuing surety cancels a bond or becomes insolvent, Contractor must provide a substitute bond from a surety acceptable to City within seven calendar days after written notice from City. If Contractor fails to do so , City may in its sole discretion and without prior notice , purchase bonds at Contractor 's expense, deduct the cost from payments due Contractor, or terminate the Contract. City will not execute the Contract nor issue the NTP until the required bonds are submitted. 15. UTILITIES, TRENCHING AND EXCAVATION 15 .1 Contractor must call the Underground Service A lert ("USA") 811 hotline and reque st marking of utility locations before digging or commencing Work. For underground service alerts for street lighting and traffic signal conduits , City 's Service Center must be called at (408) 777-3269. Goverrunent Code Section 4215 requires Contractor to notify City and Utility in writing if it discovers utilities or utility facilities not identified in the Contract. 15.2 Pursuant to Goverrunent Code Section 7104 , Contractor must stop work , notify City in writing , and wait for instructions if one of the conditions below is found at the worksite. City will work with Contractor to amend the Contract or issue a change order if the discovered conditions materially change the Wark/Performance, Contract Time or Contract Price. (a) Material believed to be hazardous waste under Health and Safety Code Section 25117 , and which requires removal to a Class I, Class II, or Class III disposal site pursuant to law; (b) Subsurface or latent physical conditions at the Project worksite differing from those indicated by information about the worksite made available to Contractor ; and ( c) Unknown physical conditions at the Project worksite of any unusual nature, materially different from those ordinarily encountered and from those generally recognized as inherent in the character of the Work. 15.3 For contracts $25 ,000 or higher that require excavation or involve trenches five feet or more in depth , Contractor must submit a detailed plan for City approval, per Labor Code Section 6705 prior to commencing work. The plan must show the design of shoring, bracing, sloping and other provisions for worker protection from caving ground and other hazards. The protective system must comply with Public Works Project Termite Abatement at Blackberry Farms Pool & Pump Buildings Public Works Co ntract $45 ,000 /Rev. Nov 3, 201 7 Pag e 6 of 11 all Construction Safety Orders. If the plan varies from shoring system standards , it must be prepared by a registered civil or structural engineer. 16. URBAN RUNOFF MANAGEMENT 16.1 All Work must fully comply with federal , state and local laws and regulations concerning storm water management. Contractor must avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, Contractor will use only the amount of water necessary to dampen the dust. Contractor will take all steps necessary to keep wash water out of the streets, gutters and storm drains. Prior to the start of the Work, Contractor will implement erosion and sediment controls to prevent pollution of storm drains , and must upgrade and maintain these controls based on weather conditions or as otherwise required by City. These controls must be in place during the entire Contract Time and must be removed at the end of construction and completion of the Work. Such controls must include, but will not be limited to , the following requirements: (a) Install storm drain inlet protection devices such as sand bag barriers , filter fabric fences , and block and gravel filters at all drain inlets impacted by construction. During the annual rainy season, October 15 through June 15 , storm drain inlets impacted by construction work must be filter-protected from onsite de-watering activities and saw-cutting activities. Shovel or vacuum saw-cut slurry and remove from the Work site ; (b) Cover exposed piles of soil or construction material with plastic sheeting. Store all construction materials in containers; ( c) Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain and at the end of each work day. When the Work is completed, wash the streets, collect and dispose of the wash water off site in lawful manner; ( d) After breaking old pavement, remove debris to avoid contact with rainfall/runoff; ( e) Maintain a clean work area by removing trash, litter, and debris at the end of each work day and when Work is completed. Clean up any leaks , drips , and other spills as they occur. 16.2 These requirements must be used in conjunction with the California Stormwater Quality Association and California Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, and any other applicable documents on stormwater quality controls for construction. Contractor's failure to comply with this Section will result in the issuance of noncompliance notices, citations, Work stop orders and regulatory fines. 17. PROJECT COORDINATION City Project Manager. City assigns Ken Tanase as the City representative for all purposes under this Contract, with authority to require compliance with the Scope of Work. City may substitute Project Managers at any time and without prior notice to Contractor. Contractor Project Manager. Subject to City approval , Contractor assigns Johnny Marez as its single representative for all purposes under this Contract, with the responsibility to ensure progress with the Work . Contractor's Project Manager is responsible for coordinating and scheduling the Work and must regularly update the City Project Manager about the status and any delays with the Work, consistent with the Scope of Work. Any substitutions must be approved in writing by City. Public Works Project Termite Abatement at Blackberry Farms Pool & Pump Buildings Public Works Con tract $45,000 /Rev. Nov 3, 2017 Page 7 of 11 18. ABANDONMENT AND TERMINATION 18.1 City may abandon or postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Work performed through the date of abandonment and will be given reasonable time to close out the Work. With City's pre-approval in writing , the time spent in closing out the Work will be compensated up to 10% of the total time expended in performing the Work. 18.2 City may terminate the Contract for cause or without cause at any time . Contractor will be paid for satisfactory Work rendered through the termination date and will be given reasonable time to close out the Work. 18.3 Final payment will not be made until Contractor delivers the Work and provides records documenting the Work , products and deliverables completed. Nothing in the Section below is intended to delay , abridge or bar City 's right under this Section. 19. GOVERNING LAW, VENUE AND DISPUTE RESOLUTION This Contract is governed by the laws of State of California. Venue for any legal action shall be the Superior Court of the County of Santa Clara, California. The dispute resolution procedures of Public Contract Code Section 20104, incorporated here by reference, apply to this Contract and Contractor is required to continue the Work pending resolution of any dispute. Prior to filing a lawsuit, Contractor must comply with the claim filing requirements of the California Government Code. 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. 20. 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 Contract, the prevailing party will be entitled to reasonable attorney fees and costs. 21. SIGNS/ADVERTISEMENT No signs may be displayed on or about City 's property, except signage which is required by law or by the Contract, without City 's prior written approval as to size, design and location. 22. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Contract. Public Works Project Ter mite Abatement at Blackberry Farms Pool & Pump Buildings Public Wo rks Co ntract $45,000 /Rev. Nov 3, 2017 Page 8 of 11 23. WAIVER Neither acceptance of the Work nor payment thereof shall constitute a waiver of any contract provision. City waiver of any breach shall not constitute waiver of another provision or breach. 26. WARRANTY Contractor warrants that materials and equipment used will be new, of good quality, and free from defective workmanship and materials, and that the Work will be free from material defects not intrinsic in the design or materials. All Work, materials and equipment should pass to City free of claims, liens or encumbrances. Contractor warrants the Work and materials for one year from the date of City's acceptance of the Work as complete ("Warranty Period"), except when a longer guarantee is provided by a supplier, manufacturer or is required by this Contract. During the Warranty Period, Contractor will repair or replace any Work defects or materials, including damage that arises from Contractor 's Warranty Work, except any wear and tear or damage resulting from improper use or maintenance. 27. ENTIRE CONTRACT This Contract and the attachments, documents, and statutes attached, referenced , or expressly incorporated herein, including authorized amendments or change orders constitute the final and complete contract between City and Contractor with respect to the Work and the Project. No oral contract or implied covenant will be enforceable against City. If any attachment or incorporated provisions conflict or are inconsistent with the terms of this Contract, the Contract terms will control. 28. SEVERABILITY IP ARTIAL INVALIDITY If a court finds any term or provision of this Contract to be illegal , invalid or unenforceable, the legal portion of said provision and all other contract provisions will remain in full force and effect. 28. SURVIVAL The contract provisions which by their nature should survive the Contract or Completion of Project, including without limitation all warranties, indemnities, payment obligations, insurance and bonds, shall remain in full force and effect after the Work is completed or Contract ends. 29. INSERTED PROVISIONS Each provision and clause required by la~ to be inserted in this Contract will be deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. 30. CAPTIONS The captions, titles, and headings in this Contract are for convenience only and may not be used in the construction or interpretation of the Contract or for any other purpose. Public Works Project Termite Abatement at Blackberry Farms Pool & Pump Buildings Public Works Contract $45,000 /Rev. Nov 3, 201 7 Page 9 of 11 31. COUNTERPARTS This Contract may be executed in counterparts, each of which is an original and all of which taken together shall form one single document. 20. NOTICES All notices, requests, and approvals must be sent in writing to the persons below and will be considered effective on the date of personal delivery, the date confumed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission : To City of Cupertino: 10300 Torre Avenue, Cupertino CA 95014 Attention: Ken Tanase Copy to: Carl Valdez Email: kent@cupertino.org 30. VALIDITY OF CONTRACT To Contractor: Proven Termite Solutions Attention: Jim Weed -~~~--------Copy to: ------------- Em ail: info@proventermitesolutions.com This Contract is valid and enforceable only if (a) it complies with the purchasing and contract provisions of Cupertino Municipal Code Chapters 3.22 and 3.23, (b) is signed by the City Manager or an authorized designee, and (c) is approved for form by the City Attorney's Office. 32. EXECUTION The persons signing below warrant they have the authority to enter into this Contract and to legally bind their respective Parties. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code Section 313. Public Works Project Termite Abatement at Blackberry Farms Pool & Pump Buildings Public Works Contract $45,000 !Rev. Nov 3, 201 7 Page JO of 11 IN WITNESS WHEREOF, the parties have caused this Contract to be executed as of th e Execution Date first above written. CONTRACTOR Proven Termite Solutions. a CITY OF CUPERTINO, corporation a Municipal Corporation By: .(/,,f ultt/ Jim Weed Title: Project Manager Signature Date: ___ 1_1_/_1-_1_/_1_7 __ APPROVE~ By:~ RANDOLPH STEVENSON HOM Cupertino City Attorney ATTEST: By: G~CE SCHMIDT /-( ]_ { f. City Clerk By:T~ Title: Director of Public Works Signature Date: _,,.../'-e_,_,_/_._t..,,,8"'--------7 I p D 'U)l i -?; 1<t, //JD . t 1' • 11.f I ~ .~;r Public Works Project Term ite Abatement at Blackberry Farms Pool & Pump Buildings Public Works Contract $45,000 /Rev. No v 3, 20/ 7 Page 11 of 11 ... ~ ~\'J~ ''"\'TERMITE ·_.,- s o Lu TI o N s Since 1989 South Bay (4 08) 929 -1992 II Penninsula (650) 322-6013 East Bay (510) 538-0162 FAX(408)446-5185 www.proventermitesolutions.com ESTIMATE AND WORK AUTHORIZATION OWNER/AGENT City of Cupertino HOME PHONE BILLIN G ADDRESS _______________________ WORK PHONE 916-802-0331 SERVICE ADDRESS 21979 San Fernando Avenue, Cupertino, CA. 95014 DATE INSPECTED _______ _ STRUCTURE DESCRIPTION & AREAS GUARANTEED Pool Pump Building and Lifeguard Building RECOMMENDED WORK A. Fumigate structure(s) with Vikane (Sutfuryl Fluoride) and Chloropicrin for the control of DRYWOOD TERMITES. 3 YEAR GUARANTEE B. Control SUBTERRANEAN TERMITES with a registered termiticide by the following methods. Drill & treat soil below concrete at patios , porches , walkways, and garage at appropriate intervals . Refill holes with masonry. Trench/rod and treat soil at exterior foundations. Treat subarea soil at foundation and pier posts (unless slab construction). C. D. PAYMENT TERMS 3 YEAR GUARANTEE D 25% down payment of $ _________ ; remaining balance of $ _3.,_,2_1_1_.0_0 _____ , due day of service. D CIC D II CC# Exp. Date ____ CVV# __ _ 3211.00 NIA ~ A minimum charge of $150.00 will be added to the total amount for prep work not completed upon arrival. 0 Other 10% Discount has been deducted from the total amount. TOTAL AMOUNT $ ____ 3~,2_1_1_.o_o DRYWOOD TERMITE GUARANTEE Proven Termite Solutions under th is agreement will provide service to control new infestations of DRYWOOD TERMITES in areas where live sp ecimens are found for 3 YEARS from date of completion. Th is guarantee will include fumigation , if necessary, in the sole judgement of Proven Term ite Solutions . SUBTERRANEAN TERMITE GUARANTEE Proven Termite Solutions under this agreement will provide service to control new infestations of SUBTERRANEAN TERMITES in areas where live specimens are found for 3 YEARS from date of completion . This guarantee applies to full or complete treatments only. EXTENDED PROTECTION PLAN (PLEASE SEE REVERSE FOR DETAILS) The completion of items A (Optional) above will qualify the structure for the Extended Protection Plan. Proven Termite Solutions hereby agrees to extend the term of the above Guarantee(s) from year to year in consideration of an annual extension fee of$ 419. 00 per year. GENERAL All terms of this agreement between parties are contained in this Work Authorization Agreement , Occupant(s) Fumigation Notice , and any other Proven Termite Solutions (PTS) documents related to this service. PTS at no time guarantees or is responsible for termite damage. Local treatment guarantees are for a period of ONE YEA R from the date of completion on the treated timbers or area treated only. All guarantees are null and void if this contract is not paid in full . In case of non -payment by the purchaser, reasonable attorney 's fees and costs of collections shall be paid by the purchaser. Interest at the max imum legal rate may be charged on all past due accounts . Th is estimate is valid for 60 DAYS , and if not accepted , PTS reserves the right to adjust any prices as necessary. Customer acknowledges that PTS is performing a serv ic e and waiv es any claims for personal or property damages related to services performed . For specific fumigat ion disclaimers refer to the OCCUPANT'S FUMIGATION NOTICE form. Soil treatments for subterranean termites requi re drilling through concrete . The customer waives any claims against PTS for damage to plumbing pipes , gas lines and /or sprinkler systems dur ing this se rvic e. See reverse for details . PTS does not invoic e and payment is due at the time of service . PTS is not responsible fo r inacessa ble are as and payment is due upon completion of accessible areas. This agreement and your cancelled check or credit card bill may serve as receipt. INSPECTOR Jim Weed LIC . # OPR9158 LF DATE October 10, 2017 I have read the tenns of this Estimate and Work Authorization, Occupant Fumigation Notice and statements on the reverse side, and having accepted a copy, hereby agree to all tenns thereof. There is a charge of $150.00 for jobs postponed or re-scheduled with less than 3 business days notice. OWN ER/AG ENT ___________________________ DAT E ________ _ 662 Giguere Court, Suite F • San Jose, California 95133-1742 PTSEstM'orkAIJ'lh7-13 EXH I B !T 11 A11 SOIL TREATMENT TERMS PREPARATIONS MUST BE DONE PRIOR TO SERVICE CREW'S ARRIVAL • Rake bake ALL rock, wood chips or other decorative ground cover to bare dirt at least 1 foot from the foundation. • Trim ALL shrubs or ground fo li age and water ALL the soi l at least 1 foot from the foundation. • Move ALL stored items away from the common garage wal ls and the exterior wal ls at least 3 feet. • Lay back carpet or remove floor covering along the wal ls as needed where interior drilling is recommended. • Create access to sub areas, sleeper floor spaces, basements , etc . for treatment. CAUTION: READ THE FOLLOWING CAREFULLY PRIOR TO THE SOIL TREATMENT Inaccessible areas, such as garages, sleeper floors, s lab foundations, any area inaccessible due to finished construction, etc., are the property owner's respons ib ility to make accessib le. Abnorma li t ies in construction may not all ow for comp lete subterranean termite control. It is the property owner 's responsibility to make these areas accessib le for inspection and treatment if necessary. Upon acces- sibi lity, Proven Termite So lutions w ill treat these areas at no add itiona l charge wh il e the subt erranean termite guarantee is act ive. Soi l treatments require drill ing into the concrete. It is possib le to dri ll into p lumbing pipes, sprinkler systems, "in floor" heating, gas lines, etc., therefore; PTS is not responsible for these damages and it is the property owner's responsibi lity to contact an appropriate tradesperson to perform repairs . GENERAL INFORMATION PESTIC IDE DISCLOSURE "Ca lifornia State Law requires that you be given the fol lowing information : CAUTION-PESTICIDES ARE TOXIC CHEMICALS. Structural pest control compan ies are registered & regu lated by the Structural Pest Control Board and apply pesticides which are registered and approved for use by the Ca lifornia Department of Pesticide Regulation and the United States Env ironmenta l Protection Agency. Reg is- trat ion is granted when the state finds that based on existing scient ific evidence there are no appreciable risks if proper use conditions are followed or that the risks are outweighed by the benefits. The degree of risk depends on the degree of exposure, so exposure should be minimized." If within 24 hours following application, you experience any symptoms that are sim il ar to a common seasona l ill ness comparable to the flu, contact your physician or poison control center and your pest control operator immediately. ADDITIONAL FUMIGATION DISCLOSURE INFORMATION: The warning agent, CHLOROPICRIN, can cause symptoms of tearing, respiratory distress and vomiting. ENTRY INTO THE SPACE DURING FUMIGATION CAN BE FATAL. FOR FURTHER INFORMATION CONTACT ANY OF THE FOLLOWING: Poison Control Health Department Agriculture Department Santa Clara County 800-876-4 766 408-918-3400 408-918-4600 SPCB Alameda County 800-876-4 766 510-267-8000 510 -670-5232 800-737-8188 San Mateo County 800-876-4766 650-573-2346 650-363-4700 PTS Santa Cruz County 800-876-4 766 831-454-4000 831-763-8080 408-929-1992 ANY PESTICIDES PTS PROPOSES TO APPLY AT THIS PROPERTY IS LISTED IN YOUR TERMITE REPORT. MECHANICS LIEN NOTICE Under the Cal iforn ia Mechanics Lien Law any Structural Pest Control Company which contracts to do work for you; contractors, laborers , supp liers or person who he lps to improve your property but is not paid for their work or supp lies, has a right to enforce a claim against your property. Th is means after a court hearing, your property could be so ld by a court officer and the proceeds of the sa le used to satisfy your indebtedness. This can happen even if you paid your Structural Pest Contro l Company in fu ll and the subcontractor, laborer or suppli er rema ins unpaid. To p reserve the ir right to fi le a claim or lien aga inst your property, certain claimants, such as subcontractors or material suppliers are required to provide you with a document entitled "Pre liminary Notice". EXTENDED PROTECTION PLAN TERMS The EXTENDED PROTECTION PLAN is one in which Proven Termite So lutions provides over a specified period of time inspections and treatments if necessary to control wood destroying pests and organisms . 1. The o riginal guarantee expires THREE YEARS from the origina l date of comp letion unless it is renewed by the customer. The guarantee may be renewed year to year for the li fe of the property. The annua l renewal amount may be increased every third year not to exceed 10% per increase. The guarantee may be cancelled by either party. T he structures and pests that qua lify under this agreement and the annual renewal amount are listed on the reverse s ide of this document. Proven Termite Solutions will not be responsible for any property or term ite damage past, present and/or future under this agreement. 2. The inspection is ONE TIME every THREE YEARS except at the customer's request in the interim which w ill be a lim ited inspect ion. Reference will be made to this agreement and the origina l termite report each inspection. 3. Common wood destroying pests and organisms that are like ly to lead to infestat ion and/or infection in our service area are SUBTERRANEAN, DRYWOOD AND DAMPWOOD TERMITES, certain types of wood infesting BEETLES, CARPENTER ANTS and wood destroying FUNGI. Proven Termite Solutions offers an extended protection p lan for SUBTERRANEAN and DRYWOOD TERMITES only and is specified on the reverse side of this document. 4. Re-treatments for drywood termites may include wood injection and/or microwave system treatment methods. This agreement wou ld inc lude fumigation in cases where control cannot be attained by loca l treatment methods. Re-treatments for subterranean termites would include soil injection treatment methods. Re-treatments wi ll be performed within SIX MONTHS of discovery, unless otherwise agreed to in wr iting and that all payments are current. Pk,! ·_l\'/~rl.. ,\·h, 13 EXHIBIT B -INSURANCE REQUIREMENTS A. Required Policies and Limits. The following insurance policies and limits are required for this Contract, unless otherwise specified in Exhibit A: (1) Commercial General Liability ("CGL') Insurance: The CGL policy must be issued on an occurrence basis, written on a comprehensive general liability form, and must include coverage for liability arising from Contractor's or its subcontractor's acts or omissions in the performance of the Work, including contractor's protected coverage, blanket contractual, completed operations, vehicle coverage and employer's non-ownership liability coverage, with limits of at least $2,000,000 per occurrence and $4,000,000 in the aggregate. The CGL policy must protect against any and all liability for personal injury, death, or property damage or destruction arising directly or indirectly in the performance of the Contract. The CGL coverage may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or umbrella policies, provided each such policy complies with the requirements set forth in this Contract. a. It will be a requirement under this agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits will be made available to the Additional Insured and will be (1) the minimum coverage and limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any Insurance policy, whichever is greater. b. The Additional Insured coverage under the Contractor's policy will be "primary and non-contributory" and will not seek contribution from the City's insurance or self-insurance and will be at least as broad as CG 20 01 04 12. c. The limits of Insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess Insurance. Any umbrella or excess Insurance will contain or be endorsed to contain a provision that such coverage will also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City's own insurance or self-insurance will be called upon to protect it as a named insured. Contractor will maintain insurance as required by this contract to the fullest amount allowed by law and will maintain insurance for a minimum of five years following the completion of this project. In the event contractor fails to obtain or maintain completed operations coverage as required by this agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by the contractor. (2) Comprehensive Automobile Liability Insurance: The automobile liability policy must be issued on an occurrence basis , with limits of at least $1,000 ,000 per occurrence for bodily injury and $1,000,000 per occurrence for property damage, or combined single limit of $1,000,000 per occurrence, covering owned , non-owned and hired automobiles . (3) Workers ' Compensation Insurance and Employer 's Liability Insurance : The workers' compensation and employer 's liability policy or policies must comply with the requirements of the California Workers ' Compensation Insurance and Safety Act, providing coverage of at least $1,000,000 or as otherwise required by the statute. If Contractor is self- insured, Contractor must provide its Certificate of Permission to Self-Insure, duly authorized by the DIR. B. Builder's Risk Insurance. Contractor must provide builder 's risk insurance only if the box below is checked. D Builder's Risk coverage is required for this Contact. The builder's risk policy must be issued for course of construction on an occurrence basis, for all-risk coverage on a I 00% completed value basis on the insurable portion of the Project for the benefit of City, and name the City as a loss payee as its interest may appear. If the Project does not involve new or major reconstruction , the City may elect, acting in its sole discretion , to accept an installation floater policy instead of builder's risk. The installation floater policy must provide property damage coverage for any building, structure, machinery, or equipment damaged, impaired , broken, or destroyed during the performance of the Work, including during transit , installation , and testing at the City 's site. C. Additional Insureds. City, including its City Council, boards and commission s, officers , officials, agents , employees , consultants and volunteers , must be named as additional insureds under Contractor's insurance policies required under this section, except under the worker 's compensation policy. The naming of an additional insured will not affect any recovery to which the additional insured would be entitled to under the policy if not named as an additional insured. An additional insured will not be held liable for any premium , deductible portion of any loss , or expense of any nature under the policy or any extension thereof. Any other insurance held by an additional insured will not be required to contribute anything toward any loss or expense covered by Contractor 's insurance. D. Notice. Each certificate of insurance must state that the coverage afforded by the policy or policies is in force and will not be reduced, cancelled or allowed to expire without at least 30 days advance written notice to City, unless due to non-payment of premiums, in which case ten days advance written notice must be provided to City. Such notice must be sent to City via certified mail and addressed to the attention of the City Manager. E. Waiver of Subrogation. Each required policy must include an endorsement providing that the carrier agrees to waive any right of subrogation it may have against City. F. Required Endorsements. The CGL policy, the automobile liability policy and the builder's risk or installation floater policy, ifrequired, must include the following endorsements: (I) The inclusion of more than one insured will not operate to impair th e rights of one insured against another, and the coverages afforded will apply as though separate polici es have been issued to each insured. (2) The insurance provided is primary and no insurance held or owned by City may be called upon to contribute to a loss. (3) This policy does not exclude explosion , collapse, underground excavation hazard , or removal of lateral support. G. Forms of Certificates of Insurance and Endorsements. Each certificate of insurance and endorsement must provide the name and policy number of each carrier and policy , using a form and format acceptable to City. H. Subcontractors. Contractor must ensure that each subcontractor maintains the same insurance coverage required under this section with respect to its performance of Work on the Project, including those requirements related to the naming of additional insureds and waivers of subrogation. END OF EXHIBIT B ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MMIDD/YYYY) ~ 12/11/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the pollcy(les) must have ADDITIONAL INSURED provisions or 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 Adobe Insurance Brokers, LLC ~~~~CT Tammy Goyette r.~~N,_t c-,. 855-236-2346 I r.e~ Nol: 408-465-0110 356 Digital Dr. i!D'll~ss: tammy@adobebrokers.com Morgan H ill CA 950 37 INSURER/Sl AFFORDING COVERAGE NAIC# INSURER A: Gemini Insurance Co . 10833 INSURED Proven Termite Solutions INSURER B: Natio nwide Mutual Insurance Co. 23787 Weed Enterprises, Inc. INSURER c: Granite State Insurance Co . 23809 662 GIGUERE CT UNIT F INSURER D: Platte River Ins. Co. 18619 SAN JOSE CA 95133 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 20171016143535496 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR TYPE OF INSURANCE ,.,.,n :urun POLICY NUMBER IMM/DD/YYYYl /MM/DD/YYYYl X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 -=:J CLAIMS-MADE 0 OCCUR DAMAGE TO RENTED PREMISES 1Ea occurronce\ $ 100,000 A ~ MED EXP (Any one person) $ 5,000 y y LGL0003550 02 07/14/2017 07/14/2018 PERSONAL & ADV INJURY $ 2,000,000 - GEN'L AGGREGATE LIMIT APPLIES PER : GENERAL AGGREGATE $ 4,000,000 ~ D PRO· O we PRODUCTS· COMP/OP AGG $ 4,000,000 POLICY JECT OTHER : $ AUTOMOBILE LIABILITY fi:~~:~~~llNGLE LIMIT $ 1,000,000 - ~ ANY AUTO BODILY INJURY (Per person) $ -OWNED SCHEDULED BODILY INJURY (Per accident) $ B AUTOS ONLY AUTOS x HIRED X NON-OWNED y y ACP7864 789899 12/09/2017 12/09/2018 PROPERTY DAMAGE $ >---AUTOS ONLY AUTOS ONLY /Per accidentl $ UMBRELLA LIAS H OCCUR EACH OCCURRENCE $ >--- EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED I I RETENTION$ $ WORKERS COMPENSATION I PER I I OTH- AND EMPLOYERS' LIABILITY X STATUTE ER Y I N C ANYPROPRIETOR/PARTNER/EXECUTIVE D N/A E.L. EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? N WC 019-39-7306 01/30 /2017 01 /30 /2018 (Mandatory In NH) E.L. DISEASE· EA EMPLOYEE $ 1,000 ,000 ~~it~iti1~~ ~ntgPERATIONS below E.L. DISEASE • POLICY LIMIT $ 1,000,000 B Auto Physical Damage N N Comp. & Coll Ded. ACP7864 789899 12/09/2017 12/09/2018 $1,000 D Bond N N 41132821 06/23/2017 06/23/2018 $12,500 DESCRIPTION OF OPERATIONS/ LOCATIONS / VEHICLES (ACORD 101, Addltlonal Remarks Schedule, may be attached If more space Is required) City of Cupertino, including its City Council, boards and commissions, officers, officials, agents, employees, consultants and volunteers are named additional insured per attached endorsement. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Cupertino THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 10555 Mary Avenue ACCORDANCE WITH THE POLICY PROVISIONS. Cupertino CA 95014 AUTHORIZED REPRESENTATIVE CY~ ~efbu I © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD POLICY NUMBE R: LGL0003550 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED (INCLUDING COMPLETED OPERATIONS) AUTOMATIC STATUS WHEN REQUIRED IN WRITTEN AGREEMENT WITH YOU The insurance provided by this endorsement shall not serve to increase our lirms of insurance as described in SECTION Ill-LIMITS OF INSURANCE This endorsement modifies insurance provided under the following : COMMERCIAL GENERAL LIABILITY COVERAGE PART A. Section II -'Mio Is An Insured is amended b include as an additional insured any person or organization br whom you are perfuming operations when you and such person or organization have agreed in writing in a contract or written agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only wi1h respect to liability br : 1. "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in pari by: a. Your ads or omssions; or b. The ac1s or omissions of those acting on your behalf in the perlbrmance of your ongoing operations and for that additional insured . 2. bodily injury" or "property damage" induded in the "products-completed operations hazard" (completed operations) in respect of "your work " perlbrmed for that additional insured B. This insurance shall be considered primary if any other valid and collectible insurance is available to any person or organization induded as an additional insured under this endorsement and such other insurance shall be excess of and will not contribute to the insurance afforded by U,is endorsement C. We will waive any right of recovery we may have against any person or organization whom you have agreed to waive such right of recovery in a written contract or written agreement because of payments we make br injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and induded within the "produc1s-completed operations hazard." D. Wth respect to the insurance afforded b these additional insureds, the bllowing additional exdusion applies: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, induding : 1. The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders , change orders or drawings and specifications; or 2. Supervisory, inspection, architectural or engineering activities. All other terms, conditions and exclusions under the policy are applicable to this Endorsement and remain unchanged. CG78270213 © 2013 Gemini Insurance Company (A Berkley Company) Pagel of1 POLICY NUMBER: ACP7864789899 COMMERCIAL AUTO AC 70 05 0316 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESS AUTO PROTECTION -GOLD This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM SUMMARY OF COVERAGES A. Effect of This Endorsement B. Newly Acquired or Formed Entities C . Employees as Insureds-Nonowned Autos D. Additional Insured by Contract, Permit or Agreement E. Supplementary Payments -Bail Bonds F. Supplementary Payments -Loss of Earnings G. Personal Effects and Property of Others Extension H. Prejudgment Interest Coverage I. Fellow Employee -Officer, Managers and Supervisors J. Hired Auto Physical Damage K. Temporary Substitute Autos-Physical Damage Coverage L. Expanded Towing Coverage M. Auto Loan or Lease Coverage N. Original Equipment Manufacturer Parts-Leased Private Passenger Types 0. Deductible Amendments P. Rental Reimbursement Coverage Q. Expanded Transportation Expense R. Extra Expense-Stolen Autos S. Physical Damage Limit of Insurance T. New Vehicle Replacement Cost U. Physical Damage Coverage Extension V. Transfer of Rights of Recovery Against Others To Us W. Section IV -Business Auto Conditions -Notice of and Knowledge of Occurrence X. Hired Car Coverage Territory Y. Emergency Lock Out Z. Cancellation Condition AC 70 05 0316 Includes copyrighted material of Insurance Services Office, Inc. with its permission ACP BA 78-6-4789899 LTTW 16327 INSURED COPY AC7005031600 0001 Page 1 of 7 47 0027784 COMMERCIAL AUTO AC 70 050316 A. EFFECT OF THIS ENDORSEMENT Coverage provided under this policy is modified by the provisions of this endorsement. If there is any conflict between the provisions of this endorsement and the provision(s) of any state- specific endorsement also attached to this poli- cy, then the provision(s) of the state-specific endorsement shall apply instead of the provi- sions of this endorsement that are in conflict, but only to the extent of the conflict, and only to the extent necessary to bring such provisions into conformance with the state requirement(s) contained in the provision(s) of the state-specific endorsement. B. NEWLY ACQUIRED OR FORMED ENTITIES The Named Insured shown in the Declarations is amended to include any organization you newly acquire or form, other than a partnership, joint venture, or limited liability company , and over which you maintain ownership or majority (more than 50%) interest; if there is no other similar in- surance available to that organization. Coverage under this provision is afforded until the 180th day after you acquire or form the organization or the end of the policy period, whichever is later. C. EMPLOYEES AS INSUREDS -NONOWNED AUTOS The following is added to paragraph A.1. Who Is An Insured of SECTION II -COVERED AUTOS LIABILITY COVERAGE: d. Any "employee" of yours is an "insured" while using a covered "auto" you don't own, hire or borrow in your business or your per- sonal affairs. D. ADDITIONAL INSURED BY CONTRACT, PERMIT OR AGREEMENT The following is added to A.1 . Who Is An In- sured of SECTION II -COVERED AUTOS LIABILITY COVERAGE: Any person or organization that you are re- quired to name as an additional insured in a written contract or agreement that is executed or signed by you prior to a "bodily injury" or "propert y damage" occurrence is an "insured" for Covered Auto Liability coverage. How- ever, with respect to covered "autos", such person or organization is an insured only to the extent that person or organization qualifies as an "insured" under A.1. Who is an Insured of SECTION II -COVERED AUTOS LIABILITY COVERAGE: If specifically required by the written contract or agreement referenced in the paragraph above, any coverage provided by this endorsement to an additional insured shall be primary and any other valid and collectible insurance avail- able to the additional insured shall be non- contributory with this insurance. If the written contract does not require this coverage to be primary and the additional insured's coverage to be non-contributory, then this insurance will be excess over any other valid and collectible insur- ance available to the additional insured. E. SUPPLEMENTARY PAYMENTS BAIL BONDS Supplementary Payments of SECTION II - COVERED AUTOS LIABILITY COVERAGE is revised as follows: (2) Up to $2,500 for cost of bail bonds (including bonds for related traffic law violations) required because of an "accident" we cover. We do not have to furnish these bonds. F. SUPPLEMENTARY PAYMENTS -LOSS OF EARNINGS Supplementary Payments of the SECTION II - COVERED AUTOS LIABILITY COVERAGE is revised as follows: (4) All reasonable expenses incurred by the "in- sured" at our request, including actual loss of earnings up to $500 a day because of time off from work. G. PERSONAL EFFECTS AND PROPERTY OF OTHERS EXTENSION 1 . The. Care, Custody or Control Exclusion of SECTION II COVERED AUTOS LIABILITY COVERAGE, does not apply to "property damage" to property, other than your property, up to an amount not exceed- ing $250 in any one "accident". Coverage is excess over any other valid and collectible insurance. 2. The following paragraph is added to A.4. Coverage Extensions of SECTION Ill - PHYSICAL DAMAGE COVERAGE: c. We will pay up to $500 for your property that is lost or damaged as a result of a covered "loss", without applying a de- ductible. Coverage is excess over any other valid and collectible in surance. Page 2 of 7 Includes copyrighted material of Insurance Serv ic es Office, Inc. with its permission AC 70 05 0316 ACP BA 78·6-4789899 LTTW 16327 INSURED COPY AC7005031600 0001 47 002n0s H. PREJUDGMENT INTEREST COVERAGE The following paragraph is added to SECTION II -COVERED AUTOS LIABILITY COVERAGE, 2. Coverage Extensions, a. Supplementary Payments: (7) Prejudgment interest awarded against the "insured " on that part of the judgment we pay. If we make an offer to pay the appli- cable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. I. FELLOW EMPLOYEE OFFICERS, MANAGERS, AND SUPERVISORS The Fellow Employee Exclusion in SECTION II -COVERED AUTOS LIABILITY COVERAGE is replaced as follows; A. "Bodily injury" to any fellow "employee" of the "insured" arising out of and in the course of the fellow "employee's" employment or while performing duties related to the con- duct of your business. This exclusion does not apply to an "insured" who occupies a position as an officer, manager, or supervi- sor. J. HIRED AUTO PHYSICAL DAMAGE If covered "auto" designation symbols 1 or 8 ap- ply to Liability Coverage and if at least one "au- to" you own is covered by this policy for Com- prehensive, Specified Causes of Loss, or Colli- sion coverages, then the Physical Damage coverages provided are extended to "autos" you lease, hire, rent or borrow without a driver; and provisions in the Business Auto Coverage Form applicable to Hired Auto Physical Damage apply up to a limit of $100,000. The deductible will be equal to the largest deductible applicable to any owned "auto" for that coverage. Any Compre- hensive deductible does not apply to fire or lightning. K. TEMPORARY SUBSTITUTE AUTOS PHYSICAL DAMAGE COVERAGE The following is added to paragraph C. Certain Trailers, Mobile Equ ipment And Temporary Substitute Autos of SECTION I -COVERED AUTOS: If Physical Damage Coverage is provided by this Coverage Form, the following types of vehicles are also covered "autos" for Physi- cal Damage Coverage: Any "auto" you do not own while used with the permission of its owner as a temporary COMMERCIAL AUTO AC 70 05 0316 substitute for a covered "auto" you own that is out of service because of its: a. Breakdown; b. Repair; c. Servicing; d. "Loss"; or e. Destruction The coverage that applies is the same as the coverage provided tor the vehicle being replaced. L. EXPANDED TOWING COVERAGE 1. We will pay up to: a. $100 for a covered "auto" you own of the private passenger type, or b. $500 for a covered "auto" you own that is not of the private passenger type, for towing and labor costs incurred each time the covered "auto" is disabled. Howev- er, the labor must be performed at the place of disablement. 2. This coverage applies only for an "auto" covered on this policy for Comprehensive or Specified Causes of Loss Coverage and Collision Coverages. 3. Payment applies in addition to the otherwise applicable amount of each coverage you have on a covered "auto". M. AUTO LOAN OR LEASE COVERAGE 1. In the event of a total "loss" to a covered "auto", we will pay any unpaid amount due on the loan or lease , including up to a max- imum of $500 for early termination fees or penalties, for your covered "auto" less: a. The amount paid under SECTION Ill - PHYSICAL DAMAGE COVERAGE of this policy; and b. Any: 1) Overdue lease/loan payments at the time of the "loss "; 2) Financial penalties imposed under a lease for excessive use , abnormal wear and tear or high mileage; 3) Security deposits not refunded by a lessor ; 4) Costs of extended warranties, Credit Life insurance, Health, Accident, or Disability insurance purchased with the lease; and AC 70 05 0316 Includes copyrighted material of Insurance Services Office, Inc., with its permission Page 3 of 7 ACP BA 78-6-4789899 L77W 16327 INSURED COPY AC7005031600 0001 47 0027786 COMMERCIAL AUTO AC 70 05 0316 5) Carry -over balances from previous leases. 2. This coverage only applies to a "loss" which is also covered under this policy for Com- prehensive, Specified Causes of Loss, or Collision coverage. 3. Coverage does not apply to any unpaid amount due on a loan for which the covered "auto" is not the sole collateral. N. ORIGINAL EQUIPMENT MANUFACTURER PARTS -LEASED PRIVATE PASSENGER TYPES Under Paragraph C. Limit of Insurance of SECTION Ill PHYSICAL DAMAGE COVERAGE, Section 4 is added as follows: 4. We will use new original equipment vehicle manufacturer parts for any private passen- ger type covered "auto" where required by the lease agreement which has a term of at least six months. If a new original equip- ment vehicle manufacturer part is not in pro - duction or distribution we may use a like, kind and quality replacement part. O. DEDUCTIBLE AMENDMENTS The following are added to the Deductible provi- sion of SECTION Ill -PHYSICAL DAMAGE COVERAGE: ff another policy or coverage form that is not an automobile policy or coverage form issued by this company applies to the same "accident", the following applies : 1 . ff the deductible under this coverage is the smaller (or smallest) deductible, it will be waived: 2. ff the deductible under this coverage is not the smaller (or smallest) deductible, it will be reduced by the amount of the smaller (or smallest) deductible. ff a Comprehensive or Specified Causes of Loss Coverage "loss" from one "accident" involves two or more covered "autos", only the highest deductible applicable to those coverages will be applied to the "accident," if the cause of the loss is covered for those vehicles. This provision only applies if you carry Comprehensive or Specified Causes of Loss Coverage for those vehicles, and does not extend coverage to any covered "autos " for which you do not carry such coverage. No deductible applies to glass if the glass is re- paired, in a manner acceptable to us, rather than replaced. P. RENTAL REIMBURSEMENT COVERAGE 1. This coverage applies only to a covered "au- to" for which Physical Damage Coverage is provided on this policy. 2. We will pay for rental reimbursement ex- penses incurred by you for the rental of an "auto" because of "loss" to a covered "auto". Payment applies in addition to the otherwise applicable amount of each coverage you have on a covered "auto." No deductibles apply to this coverage. 3. We will pay only for those expenses incurred during the policy period beginning 24 hours after the "loss" and ending, regardless of the policy's expiration, with the lesser of the following number of days: a. The number of days reasonably required to repair or replace the covered "auto". ff "loss" is caused by theft, this number of days is added to the number of days it takes to locate the covered "auto" and return it to you. b. The number of days shown in the Schedule. 4. Our payment is limited to the lesser of the following amounts: a. Necessary and actual expenses incurred. b. $75 for any one day or for a maximum of 30 days. 5. This coverage does not apply while there are spare or reserve "autos" available to you for your operations. 6. If "loss" results from the total theft of a cov- ered "auto" of the private passenger type, we will pay under this coverage only that amount of your rental reimbursement ex- penses which is not already provided for un- der SECTION Ill -PHYSICAL DAMAGE COVERAGE Coverage Extension . Q. EXPANDED TRANSPORTATION EXPENSE Paragraph A.4.a . of SECTION Ill -PHYSICAL DAMAGE COVERAGE is replaced by the follow- ing: We will pay up to $50 per day to a maximum of $1500 for temporary transportation expense in - curred by you because of the total theft of a Page 4of 7 Includes copyrighted material of Insurance Services Office, Inc with its permission. AC 70 05 0316 ACP BA 78·6-4789899 LTTW 16327 INSURED COPY AC7005031600 0001 47 0027787 covered "auto" of the private passenger type. We will only pay for those covered "autos" for which you carry Comprehensive or Specified Causes of Loss Coverage. We will pay for tem- porary transportation expenses incurred during the period beginning 24 hours after the theft and ending, regardless of the policy's expiration, when the covered "auto" is returned to use or we pay for its "loss". R. EXTRA EXPENSE -STOLEN AUTOS The following paragraph is added to Coverage Extensions of SECTION Ill -PHYSICAL DAMAGE COVERAGE: c. We will pay for up to $5,000 for the expense of returning a stolen covered "auto" to you. We will pay only for those covered "autos" for which you carry Comprehensive or Spec- ified Causes of Loss Coverage S. PHYSICAL DAMAGE LIMIT OF INSURANCE Under SECTION Ill -PHYSICAL DAMAGE COVERAGE, Paragraph C., Limit of Insurance is replaced by the following: C. Limit Of Insurance 1 . The most we will pay for "loss " in any one "accident" is the lesser of : a. The actual cash value of the damaged or stolen property as of the time of the "loss", or b. The cost of repairing or replacing the damaged or stolen property. 2. $1500 is the most we will pay for "loss" in any one "accident" to all electronic equip- ment that reproduces, receives or transmits audio, visual or data signals which, at the time of "loss ", is: a. Permanently installed in or upon the covered "auto" in a housing, opening or other location that is not normally used by the "auto" manufacturer for the in- stallation of such equipment. b. Removable from a permanently installed housing unit as described in Paragraph 2.a. above or is an integral part of that equipment; or c. An integral part of such equipment. 3. An adjustment for depreciation and physical condition will be made in determining actual cash value in the event of a total "loss". 4. The cost of repairing or replacing may: a. Be based on an estimate which includes parts furnished by the original equip- COMMERCIAL AUTO AC 70 05 0316 ment manufacturer or other sources in- cluding non-original equipment manu - facturers and b. If a repair or replacement results in bet- ter than like kind or quality, we will not pay for the amount of the net improve- ment. 5. If we offer to pay the actual cash value of the damaged or stolen property, we will value auto advertising wraps, paint customi- zat ion , and similar business related advertis- ing modifications, in addition to the actual cash value of the property. Auto advertising wraps, paint customization, and similar business related advertising modifications will be valued at the cost to replace them with an adjustment made for depreciation and physical condition. T. NEW VEHICLE REPLACEMENT COST The following is added to the Limit of Insurance prov1s1on of SECTION Ill PHYSICAL DAMAGE COVERAGE : 5. The provisions of paragraphs 1. and 3. do not apply to a covered "auto" of the private passenger type or a vehicle with a gross vehicle weight rating of 20,000 pounds or less which is a "new vehicle ." In the event of a total "loss" to your new ve- hicle to which this coverage applies, we will pay at your option : a. The verifiable "new vehicle" purchase price you paid for your damaged vehi- cle, not including any insurance or war- ranties purchased; b. If it is available, the purchase price, as negotiated by us, of a "new vehicle" of the same make, model, and equipment or the most similar model available , not including any furnishings, parts, or equipment not installed by the manufac- turer or manufacturers' dealership; or . c. The market value of your damaged ve- hicle, not including any furnishings, parts , or equipment not installed by the manufacturer or manufacturer's dealer- ship. We will not pay for initiation or set up costs associated with loans or leases As used in this endorsement, a "new vehicle" means an "auto" of which you are the original owner that has not been previ- AC 70 05 03 16 Includes copyrighted material of Insurance Services Office, Inc ., Page 5 of 7 with its permission ACP BA 78-6-4789899 L77W 16327 INSURED COPY AC7005031600 0001 47 0027788 COMMERCIAL AUTO AC 7005 0316 ously titled and which you purchased less than 365 days before the date of the "loss". U. PHYSICAL EXTENSIONS DAMAGE COVERAGE Under SECTION Ill -PHYSICAL DAMAGE COVERAGE, A. Coverage, Coverage Exten- sions, b. Loss of Use Expenses is replaced by the following: b. Loss of Use Expenses For Hired Auto Physical Damage, we will pay expenses for which an "insured" be- comes legally responsible to pay for loss of use of a vehicle rented or hired without a driver, under a written rental contract or agreement. We will pay tor loss of use ex- penses if caused by: (1) Other than collision if the Declarations indicate that Comprehensive Coverage is provided tor any covered "auto"; (2) Specified Causes of Loss only if the Declarations indicate that Specified Causes of Loss Coverage is provided tor any covered "auto"; or (3) Collision only if the Declarations indicate that Collision Coverage is provided for any covered "auto." However, the most we will pay for any expenses for loss of use is $50 per day, to a maximum of $1,500. The insurance provided by this provision is excess over any other collectible insurance. V. TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US The following is added to the Transfer Of Rights Of Recovery Against Others To Us Condition: We waive any right of recovery we may have against any person or organization to the extent required of you by a written con- tract executed prior to any "acc ident" be- cause of payments we make tor damages under this coverage form. W. NOTICE OF AND KNOWLEDGE OF OCCURRENCE SECTION IV -BUSINESS AUTO CONDITIONS, Paragraph A is amended as follows: 6. NOTICE OF AND KNOWLEDGE OF OCCURRENCE a. Your obligation in the Duties in the Event of Accident, Claim, Suit or Loss Condi- tion relative to notification requirements applies only when the "accident" or "loss" is known to: (1) You, if you are an individual ; (2) A partner, if you are a partnership; (3) A member, if you are a limited liability company; or (4) An executive officer or insurance manager, if you are a corporation. b. Your obligation in the. Duties in the Event of Accident, Claim, Suit or Loss Condition relative to providing us with documents concerning a claim or "suit" will not be considered breached unless the breach occurs after such claim or "suit" is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership; (3) A member, if you are a limited liability company; or (4) An executive officer or insurance manager, if you are a corporation . X. HIRED CAR -COVERAGE TERRITORY Item (5) of the Policy Period, Coverage Territory GeneralConditionss replaced by the following: (5) Anywheren the worldif a covered "auto" is leased, hired, rented or borrowed without a driver tor a period of 30 days or less ; and Y. EMERGENCY LOCKOUT We will reimburse you up to $100 tor reasonable expense incurred for the services of a locksmith to gain entry into your covered "auto" subject to these provisions: 1. Your door key, electronic key or key entry pad has been lost, stolen or locked in your covered "auto" and you are unable to enter such "auto" , or 2 . Your keyless entry device battery dies and you are unable to enter such "auto" as a re- sult, 3. Your key, electronic key or key entry pad has been lost or stolen and you have changed the lock to prevent an unauthorized entry; and Page 6 of 7 Includes copyrighted material of Insurance Services Office, Inc with its permission. AC 70 05 0316 ACP BA 78-6-4789899 L77W 16327 INSURED COPY AC7005031600 0001 47 002n09 4. Original copies of receipts for services of a locksmith must be provided before reim- bursement is payable. Z. CANCELLATION CONDITION Paragraph A.2. of the COMMON POLICY CONDITION -CANCELLATION applies except as follows: COMMERCIAL AUTO AC 70 05 0316 If we cancel for any reason other than non - payment of premium, we will mail or deliver to the First Named Insured written notice of cancellation at least 60 days before the ef- fective date of cancellation. This provision does not app ly in those states that require more than 60 days prior notice of cancella- tion. AC 70 05 0316 Includes copyrighted material of Insurance Services Office, Inc ., with its permission Page 7 of 7 ACP BA 78-6-4789899 L77W 16327 INSURED COPY AC7005031600 0001 47 002n90