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HomeMy WebLinkAboutZOUBEK CONSULTING LLCINSURANCE ON FILE N-2019-021 WORK MAY PROCEED NTIL INSURANCE PIRES a �9 GLSd=�wC� CONSULTANT AGREEMENT CLERK OF COUNCIL CITY OF SANTA ANA (�a�PSIGREEMENT 1 5 j,918 20�c1 �" 10 ' is made and entered into this 17th day of December, 2018 by and between 2i .. Consulting, LLC, ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of electrical safety program assistance for the Water Resources Division of the Public Works Agency on an as -needed basis. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES On an as -needed basis, and at the City's sole discretion, Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Exhibit A, attached hereto and incorporated by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit A. The total amount to be expended under this Agreement shall not exceed $25,000 during the term of this Agreement, including any extension periods exercised under Section 3. b. Payment by City shall be made within 45 days (forty-five) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date stated above and continue through December:16, 7619, unless terminated earlier in accordance with Section 16, below. The term of this Agreement may be Page Iof8 extended for up to a one-year period upon a writing executed by the City Manager and the City Attorney. 4. PREVAILING WAGES Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws, 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial GeneralLiability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and Page 2 of 8 representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal hrrjury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (e) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident, d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per clahn with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: i. Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. iv. Consultant shall supply City with a fully executed additional insured endorsement. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination, Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. Page 3 of 8 8. INDEMNIFICATION Consultant agrees to defend,, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives frorn liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; aid (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising Brom this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement, City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimmn period of three (3) years, or for any longerperiod required by law, from the date of final payment to Consultant minder this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years fiom the date of final payment to Consultant under this Agreement. 11. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or Page 4of8 disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any mariner with performance of services specified under this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terns of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null acid void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. Page 5 of 8 16. TERMINATION This Agreement may be terminated by the City upon thirty (3 0) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 17. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 18. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venire for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 19. PROFESSIONAL LICENSES Consultant shall, throughout the tern of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such pen -nits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 20. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. Page 6 of 8 b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 21, NOTICE Any notice, tender, demand, delivery, or other commurdeation pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the maxwer provided in this Section, to the following persons: To City: Cleric of the City Council City of Sarta Ana . 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 With courtesy copies to: Executive Director, Public Works City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, California 92702 To Consultant: Paul A Zoubek President Zoubek Consulting, LLC 3047 University Ave, Suite 211 San Diego, CA 92104 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. if sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above, if sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. Page 7 of 8 N-2019-021 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: m Y Maria D. Huizar ' Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: N. n� v John 6.Funk Assistant City Attorney FOR APPROVAL: RRMAM Fuad S. SweiAA, PE, PLS Executive Dir for Public Works Aizencv CITY OF SANTA ANA Signed in counterpart Raul Godinez II City Manager CONSULTANT: Paul A Zoubek President Tax ID# 2 -f 2 Page 8 of 8 N-2019-021 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA XMaria D. Ruizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: r John Funk Assistant City Attorney Fuad S. S, Executive Public We FOR APPROVAL: PE, PLS Agency 11�-� Raul Godinez II City Manager CONSULTANT: Paul A Zoubek President Tax ID# 2q-12G-f/b--01 Page 8 of 8 Exhibit A 3 � k r •Consulting, Workplace Safety Solutions *ctober 26, 2018 Mr, Bryan Lopez Public Works Safety Coordinator City of Santa Ana Water Resources Division 220 S. Daisy Ave. Santa Ana, CA 92703 714-604-6090 blopez5@santa-ana.arg RE: City of Santa Ana Electrical Safety Consultation Dear Mr. Lopez, Zoubek Consulting, LLC is pleased to submit this quote for electrical safety services. Electrical Safety Pro¢rarn Assistance Provide electrical safety consultation, including but not limited to the following: 1. Consultation for electrical safety program including, but not limited to written electrical safety program generation, revisions to existing programs, and on-site observations. 2. Audit existing electrical safety compliance efforts. 3. Provide training to qualified persons, 4, Justify recommendations based on requirements of Cal/OSHA 8CCR2320.2 and NFPA 70E (2018 edition), NFPA 70 (2017 edition), and NFPA 79. Proiect Casts: 1. Hourly rate of $189.00/hour not to exceed 66 hours during 2019 or $12,474.00. 2. Travel time billed at hourly rate, mileage absorbed in hourly rate. 3. Reimbursables such as the costs of training materials will be charged at cost phis 15% and part of the $12,474.00 not to exceed charge for 2019. Thank you for the opportunity to submit this quote. Submitted: Date: 10/26/18 Paul A Zoubek, CIH, CSP, CESCP, SMS President Zoubek Consulting, LLC paul&L(, ubekconsulting.com 619-677-8682 3047 University Ave, Suite 211 • San Diego, CA 92104 Ph: 619-431-5705 • www.zoubekconsulting,com + lnfo@zoubekconsulting,com YL�111:iHQiStL .1BROKAW <.....--� CERTIFICATE OF LIABILITY INSURANCE DaTE(MM/DDmrY) 12/05/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must 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 CONTACTNAME: NC NNo, Ext 520 795-8511 FAX 1 ( ) Wq No):(520) 795-8542 The Mahoney Group - Tucson 5330 N. La Cholla Blvd Tucson, AZ 85741 N-2019-021 E-MAIL ADDRESS: INSURER 5 AFFORDING COVERAGE NAIC # INSURERA: Continental Casualty Company 20443 INSURED INSURER B: TechnologTlndsurance Com an 42376 INSURERC-Philadel hia Indemni Ins. Co 18058 Zofatiek,'Consuhing, LLC Attn: Paul Zoubek CLAIMS -MADE � OCCUR 3047 University Ave, Suite 211 INSURER D : INSURER E: San Diego, CA 92104 INSURER F: PREMISES Ea oceu ecce $ 300,000 COVERAGES CERTIFICATE NUMBER: 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 T TYPE OF INSURANCE ADDL SD SUBR Me POLICY NUMBER POLICY EFF MMIDDIYYV POLICY EXP MMIDDNYYY LIMITS A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 CLAIMS -MADE � OCCUR X X 4017910125 12/01/2018 12/01/2019 PREMISES Ea oceu ecce $ 300,000 MED EXP (Anyone Parsem $ 10'000 PERSONAL&ADV INJURY $ 1'000'000 AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2'000'000 GEN'L PRODUCTS-COMPIOPAGG $ 2,000,000 POLICY ❑ PECT 1:1 LOC $ OTHER'. A AUTOMOBILE LIABILITY CEOMBa I tlED SINGLE LIMIT GA $ 1,000,000 (daANY BODILY INJURY Per erson AUTO 4017910125 12/01/2018 12/01/2019 BODILY INJURY Per -accident $ OWNED SCHEDULED AUTOS ONLY AUTOS PROPERTY errucis un MAGE $ X AUTOS ONLY X AUTOS ONLLV UMBRELLA LIAB OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAIMS -MADE DED RETENTION$ $ B WORKERS COMPENSATION AND EMPLOYERS'LIABILITY YIN ANY INERIE ECUTIVE TWC3754562 12101/2018 12/01%2019 X PER ORH 1,000,000 EL EACH ACCT DENT $ OFFICEgOMFMB6REXC (Mandatory In NH) NIA 1000'000 EL.DISEASE -EA EMPLOYE__ _$1 1,000,000 E.L. DISEASE -POLICY LIMIT $ If yes, describe under DESCRIPTION OF OPERATIONS below C Professional Liab PHSD1390161 12/01/2018 12/0112019 10,000 Ded 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) City of Santa Ana, its officers, employees, agents, volunteers & representatives are additional insured including Primary/Non-Contributory & Waiver of Subrogation per attached form #SB146932F(B-16). City of Santa Ana Attn: Water Resources Division 220 S. Daisy Ave. Santa Ana, CA 92703 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE (/ ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SB146932F (Ed. 6-16) BLANKET ADDITIONAL INSURED AND LIABILITY EXTENSION ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESSOWNERS LIABILITY COVERAGE FORM REVIEWED BY: BUSINESSOWNERS COMMON POLICY CONDITIONS tea I. BLANKET ADDITIONAL INSURED PROVISIONS A. ADDITIONAL INSURED —BLANKET VENDORS Who Is An Insured is amended to include as an additional insured any person or organization (referred to below as vendor) with whom you agreed under a "written contract" to provide insurance, but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business, subject to the following additional exclusions: 1. The insurance afforded the vendor does not apply to: a. "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b. Any express warranty unauthorized by you; c. Any physical or chemical change in the product made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; SB146932F (6-16) Page 1 of 7 Copyright, CNA All Rights Reserved. TABLE OF CONTENTS I. Blanket Additional Insured Provisions A. Additional Insured — Blanket Vendors B. Miscellaneous Additional Insureds C. Additional Provisions Pertinent to Additional Insured Coverage 1. Primary — Noncontributory provision 2. Definition of "written contract." II. Liability Extension Coverages A. Bodily In ury — Expanded Definition B. Broad Knowledge of Occurrence C. Estates, Legal Representatives and Spouses D. Legal Liability — Damage to Premises E. Personal and Advertising Injury — Discrimination or Humiliation F. Personal and Advertising Iniury — Broadened Eviction G. Waiver of Subrogation - Blanket I. BLANKET ADDITIONAL INSURED PROVISIONS A. ADDITIONAL INSURED —BLANKET VENDORS Who Is An Insured is amended to include as an additional insured any person or organization (referred to below as vendor) with whom you agreed under a "written contract" to provide insurance, but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business, subject to the following additional exclusions: 1. The insurance afforded the vendor does not apply to: a. "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b. Any express warranty unauthorized by you; c. Any physical or chemical change in the product made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; SB146932F (6-16) Page 1 of 7 Copyright, CNA All Rights Reserved. CNA SB146932F CNA (Ed. 6-16) e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; f. Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's promises in,connection with the sale of the product; g. Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or Ingredient of any other thing or substance by or for the vendor; or h. "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those -of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (1) The exceptions contained in Subparagraphs d. or f.; or (2) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. 2. This insurance does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. 3. This provision 2. does not apply to any vendor included as an insured by an endorsement issued by us and made a part of this Policy. 4. This provision 2. does not apply if "bodily injury" or "property damage" included within the "products - completed operations hazard" is excluded either by the provisions of the Policy or by endorsement. B. MISCELLANEOUS ADDITIONAL INSUREDS 1. Who Is An Insured is amended to include as an insured any person or organization (called additional insured) described in paragraphs 3.a. through 3.j. below whom you are required to add as an additional insured on this policy under a "written contract.": 2. However, subject always to the terms and conditions of this policy, including the limits of insurance, we will not provide the additional insured with: a. A higher limit of insurance than required by such "written contract'; b. Coverage broader than required by such "written contract" and in no event greater than that described by the applicable paragraph a. through k. below; or c. Coverage for "bodily injury" or "property damage" included within the "products -completed operations hazard." But this paragraph c, does not apply to the extent coverage for such liability is provided by paragraph 3.j. below. Any coverage granted by this endorsement shall apply only to the extent permitted by law. 3. Only the following persons or organizations can qualify as additional insureds under this endorsement: a. Controlling Interest SB146932F (6-1 Page 2 of 7 Any persons or organizations with a controlling interest in you but only with respect to their liability arising out of: (1) such person or organization's financial control of you; or (2) Premises such person or organization owns, maintains or controls while you lease or occupy these premises; provided that the coverage granted to such additional insureds does not apply to structural alterations, new construction or demolition operations performed by or for such additional insured. REVIEWED BY: Copyright, CNA All Rights Reserved. S OF q Lq1 /_1 SB146932F (Ed. 6-16) b. Co-owner of Insured Premises A co-owner of a premises co -owned by you and covered under this insurance but only with respect to the co-owners liability for "bodily injury", "property damage" or "personal and advertising injury" as co-owner of such premises. c. Grantor of Franchise Any person or organization that has granted a franchise to you, but only with respect to such person or organization's liability for "bodily injury", "property damage", or "personal and advertising injury" as grantor of a franchise to you. d. Lessor of Equipment Any person or organization from whom you lease equipment, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused in whole or in part by your maintenance, operation or use of such equipment, provided that the "occurrence" giving rise to such "bodily injury" or "property damage" or the offense giving rise to such "personal and advertising injury" takes place prior to the termination of such lease. e. Lessor of Land Any person or organization from whom you lease land, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" arising out of the ownership, maintenance or use of that specific part of the land leased to you, provided that the "occurrence" giving rise to such "bodily injury" or "property damage" or the offense giving rise to such "personal and advertising injury", takes place prior to the termination of such lease. The insurance hereby afforded to the additional insured does not apply to structural alterations, new construction or demolition operations performed by, on behalf of or for such additional insured. f. Lessor of Premises An owner or lessor of premises leased to you, or such owner or lessor's real estate manager, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" arising out of the ownership, maintenance or use of such part of the premises leased to you, and provided that the "occurrence" giving rise to such "bodily injury" or "property damage" or the offense giving rise to such "personal and advertising Injury", takes place prior to the termination of such lease. The insurance hereby afforded to the additional insured does not apply to structural alterations, new construction or demolition operations performed by, on behalf of or for such additional insured. g. Mortgagee, Assignee or Receiver A mortgagee, assignee or receiver of premises but only with respect to such mortgagee, assignee, or receiver's liability for "bodily injury", "property damage" or "personal and advertising injury" arising out of the ownership, maintenance, or use of a premises by you. This insurance does not apply to structural alterations, new construction or demolition operations performed by, on behalf of or for such additional insured. h. State or Political Subdivisions A state or government agency or subdivision or political subdivision that has issued a permit or authorization, but only with respect to such government agency or subdivision or political subdivision's liability for "bodily injury", "property damage" or "personal and advertising injury" arising out of: (1) The following hazards in connection with premises you own, rent, or control and to which this insurance applies: (a) The existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoistaway openings, sidewalk vaults, street banners, or decorations and similar exposures; or SB146932F (6-16) Page 3 of 7 (b) The construction, erection, or removal of elevators; or (c) The ownership, maintenance or use of any elevators covered by this Copyright, CNA All Rights Reserved. �` OF SB146932F CNA (Ed. 6-16) (2) The permitted or authorized operations performed by you or on your behalf. But the coverage granted by this paragraph does not apply to: (a) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or government agency or subdivision or political subdivision; or (b) "Bodily injury" or "property damage" included within the "products -completed operations hazard." With respect to this provision's requirement that additional insured status must be requested under a "written contract", we will treat as a "written contract" any governmental permit that requires you to add the governmental entity as an additional insured. i. Trade Show Event Lessor With respect to your participation in a trade show event as an exhibitor, presenter or displayer, any person or organization .whom you are required to include as an additional insured, but only with respect to such person or organization's liability for "bodily injury", "property damage", or "personal and advertising injury" cause by: a. Your acts or omissions; or b. Acts or omissions of those acting on your behalf; in the performance of your ongoing operations at the trade show premises during the trade show event. j. Other Person or Organization Any person or organization who is not an additional insured under paragraphs a. through I. above. Such additional insured is an insured solely for "bodily injury", "property damage" or "personal and advertising injury" for which such additional insured is liable because of your acts or omissions. The coverage granted by this paragraph does not apply to any person or organization: (1) For "bodily injury," "property damage," or "personal and advertising injury" arising out of the rendering or failure to render any professional services; (2) For "bodily injury" or "property damage" included in the "products -completed operations hazard." But this provision (2) does not apply to such "bodily injury" or "property damage" if: (a) It is entirely due to your negligence and specifically results from your work for the additional insured which is the subject to the "written contract"; and (b) The "written contract" requires you to make the person or organization an additional insured for such "bodily injury" or "property damage'; or (3) Who is afforded additional insured coverage under another endorsement attached to this policy. C. ADDITIONAL PROVISIONS PERTINENT TO ADDITIONAL INSURED COVERAGE With respect only to additional insured coverage provided under paragraphs A. and B. above: The BUSINESSOWNERS COMMON POLICY CONDITIONS are amended to add the following to the Condition entitled Other Insurance: This insurance is excess of all other insurance available to an additional insured whether primary, excess, contingent or on any other basis. However, if a "written contract" requires that this insurance be either primary or primary and noncontributing, then this insurance will be primary and non-contributory relative solely to insurance on which the additional insured is a named insured. 2. Under Liability and Medical Expense Definitions, the following definition is added: "Written contract" means a written contract or agreement that requires you to make a person or organization an additional insured on this policy, provided the contract or agreement: a. Is currently in effect or becomes effective during the term of this policy; and b. Was executed prior to: R E V I E Y: S B 146932F (6-1 f Page 4 of 7 Copyright, CNA All Rights Reserved. PAGE f ',:)F 8 r CA, L (1) The "bodily injury" or "property damage"; or (2) The offense that caused the "personal and advertising injury'; for which the additional insured seeks coverage. II. LIABILITY EXTENSION COVERAGES SB146932F (Ed. 6-16) It is understood and agreed that this endorsement amends the Businessowners Liability Coverage Form. If any other endorsement attached to this policy amends any provision also amended by this endorsement, then that other endorsement controls with respect to such provision, and the changes made by this endorsement to such provision do not apply. A. Bodily Injury— Expanded Definition Under Liability and Medical Expenses Definitions, the definition of "Bodily injury" is deleted and replaced by the following: "Bodily injury" means physical injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury by that person at any time which results as a consequence of the physical injury, sickness or disease. B. Broad Knowledge of Occurrence Under Businessowners Liability Conditions, the Condition entitled Duties In The Event of Occurrence, Offense, Claim or Suit is amended to add the following: Paragraphs a. and b. above apply to you or to any additional insured only when such "occurrence," offense, claim or "suit" is known to: (1) You or any additional insured that is an individual; (2) Any partner, if you or an additional insured is a partnership; (3) Any manager, if you or an additional insured is a limited liability company; (4) Any "executive officer" or insurance manager, if you or an additional insured is a corporation; (5) Any trustee, if you or an additional insured is a trust; or (6) Any elected or appointed official, if you or an additional insured is a political subdivision or public entity. This paragraph applies separately to you and any additional insured. C. Estates, Legal Representatives and Spouses The estates, heirs, legal representatives and spouses of any natural person insured shall also be insured under this policy; provided, however, coverage is afforded to such estates, heirs, legal representatives and spouses only for claims arising solely out of their capacity as such and, in the case of a spouse, where such claim seeks damages from marital common property, jointly held property, or property transferred from such natural person insured to such spouse. No coverage is provided for any act, error or omission of an estate, heir, legal representative or spouse outside the scope of such person's capacity as such, provided however that the spouse of a natural person Named Insured and the spouses of members or partners of joint venture or partnership Named Insureds are insureds with respect to such spouses' acts, errors or omissions in the conduct of the Named Insured's business. D. Legal Liability — Damage To Premises 1. Under B. Exclusions, 1. Applicable to Business Liability Coverage, Exclusion k. Damage To Property, is replaced by the following: k. Damage To Property "Property damage" to: 1. Property you own, rent or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancghlept i t e of SB146932F (6-16) Page 5 of 7 Copyright, CNA All Rights Reserved. __. 1 O F-._� . __-_ !%lo CNA SB146932F (Ed. 6-16) such property for any reason, including prevention of injury to a person or damage to another's property; 2. Premises you sell, give away or abandon, if the "property damage" arises out of any part of those premises; 3. Property loaned to you; 4. Personal property in the care, custody or control of the insured; 5. That particular part of any real property on which you or any contractors or subcontractors working directly or indirectly in your behalf are performing operations, if the "property damage" arises out of those operations; or 6. That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it. Paragraph 2 of this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs 1, 3, and 4, of this exclusion do not apply to "property damage" (other than damage by fire or explosion) to premises: (1) rented to you: (2) temporarily occupied by you with the permission of the owner, or (3) to the contents of premises rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in Section D — Liability and Medical Expenses Limits of Insurance. Paragraphs 3, 4, 5, and 6 of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraph 6 of this exclusion does not apply to "property damage" included in the "products -completed operations hazard." 2. Under B. Exclusions, 1. Applicable to Business Liability Coverage, the following paragraph is added, and replaces the similar paragraph, if any, beneath paragraph (14) of the exclusion entitled Personal and Advertising injury: Exclusions c, d, e, f, g, h, i, k, I, m, n, and o, do not apply to damage by fire to premises while rented to you or temporarily occupied by you with permission of the owner or to the contents of premises rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to this coverage as described in Section D. Liability And Medical Expenses Limits Of Insurance. 3. The first Paragraph under item 5. Damage To Premises Rented To You Limit of the section entified Liability N And Medical Expenses Limits Of Insurance is replaced by the following: s The most we will pay under Business Liability for damages because of "property damage" to any one " premises, while rented to you or temporarily occupied by you with the permission of the owner, including contents of such premises rented to you for a period of 7 or fewer consecutive days, is the Damage to Premises Rented to You limit shown in the Declaration. E. Personal and Advertising Injury — Discrimination or Humiliation 1. Under Liability and Medical Expenses Definitions, the definition of "personal and advertising injury" is amended to add the following: h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is: (1) Not done intentionally by or at the direction of: (a) The insured; or REViEWEF BY: SB146932F (6-16) Page 6 of 7 - Copyright, CNA All Rights Reserved. SB146932F (Ed. 6-16) (b) Any "executive officer," director, stockholder, partner, member or manager (if you are a limited liability company) of the insured; and (2) Not directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person or person by any insured. 2. Under B. Exclusions, 1. Applicable to Business Liability Coverage, the exclusion entitled Personal and Advertising injury is amended to add the following additional exclusions: (15) Discrimination Relating to Room, Dwelling or Premises Caused by discrimination directly or indirectly related to the sale, rental, lease or sub -lease or prospective sale, rental, lease or sub -lease of any room, dwelling or premises by or at the direction of any insured. (16)Employment Related Discrimination Discrimination or humiliation directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person by any insured. (17) Fines or Penalties Fines or penalties levied or imposed by a governmental entity because of discrimination. 3. This provision (Personal and Advertising Injury — Discrimination or Humiliation) does not apply if Personal and Advertising Injury Liability is excluded either by the provisions of the Policy or by endorsement. F. Personal and Advertising Injury - Broadened Eviction Under Liability and Medical Expenses Definitions, the definition of "Personal and advertising injury" is amended to delete Paragraph c. and replace it with the following: c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room dwelling or premises that a person or organization occupies committed by or on behalf of its owner, landlord or lessor. G. Waiver of Subrogation — Blanket We waive any right of recovery we may have against: a. Any person or organization with whom you have a written contract that requires such a waiver. All other terms and conditions of the Policy remain unchanged. SB146932F (6-16) Page 7 of 7 Copyright, CNA All Rights Reserved. REVIEWED BY.