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HomeMy WebLinkAboutUrbanTrans North America; 2019-08-29;PROFESSIONAL SERVICES AGREEMENT FOR TRANSPORTATION DEMAND MANAGEMENT SERVICES URBANTRANS NOliJH AMERICA THIS AGREEMENT is made and entered into as of the l<t\\A.day of A~~x, 2019, by and between the CITY OF CARLSBAD, a municipal corporation, ("City''),an rbanTrans North America, a Colorado corporation ("Contractor"). RECITALS A. City requires the professional services of a transportation planning provider that is experienced in providing transportation demand management services. B. Contractor has the necessary experience in providing professional services and advice related to the transportation demand management plans and achieving quantitative performance mode change for widely dispersed employee base. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work in accordance with the proposal. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of two years from the date first above written. The Agreement may be extended by the City Manager for three (3) additional one (1) periods or parts thereof by mutual agreement. Extensions will be based upon a satisfactory review of Contractor's performance by the City, City needs, and appropriation of any necessary funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed shall not exceed one hundred ninety nine thousand dollars ($199,000) per year for two years. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the agreement, the amount shall not exceed $199,000 per agreement year. The City reserves the right to withhold a ten percent ( 10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an "occurrence" basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this projecUlocation or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS UCENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP Of DOCUMENTS All reports and operational data in relation to the services provided under Exhibit "A" produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement ("work product") is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. For the avoidance of doubt, 'work product' does not include any of Contractor's proprietary technology or any updates, modifications, improvements or customizations to the same, whether carried out during the term of this Agreement or otherwise. 14. COPXBIGHJS Contractor agrees that all copyrights that arise in work product will be vested in City and Contractor relinquishes all claims to the copyrights in the work product in favor of City. Contractor will retain all copyrights and other intellectual property rights in Contractor's proprietary technology and any service-related metrics. City acknowledges and agrees that the Contractor's proprietary technology is provided under license on the terms of the end user license agreements and terms of service provided with or presented through the applications or dashboards in connection with such technology and these terms will be binding on all users of Contractor's technology. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Claudia Huerta Title Village Manager Community & Economic Department Development City of Carlsbad Address 1635 Faraday Ave. Carlsbad, CA 92008 Phone No. 760-602-4759 For Contractor Name Aaron Gaul Title Director Address 811 Wilshire Blvd,# 1950 Los Angeles, CA 90017 Phone No. 310-929-5946 Email GaulA@Urban Trans. com Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONfUCT Of INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. YesGJ NoO 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by first notifying Contractor by certified mail of the breach and providing a cure period of at least 10 days and if the cure is not provided in that time frame, City may provide further notice of termination. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. The City is a public entity that is subject to an annual budgetary appropriation process. Notwithstanding any other provision of this Agreement, if funds for the continued fulfillment of this Agreement are, at any time, not forthcoming or insufficient through failure of the City Council to appropriate funds or otherwise, the City may terminate this Agreement upon thirty (30) days written notice and with no penalties. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the applicable purchase order and documents incorporated by reference will supersede any conflicting terms of this Agreement. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agr: em nt. :~SL, Aaron Gaul, Board Vice President {print name/title) By: (sign here) Matthew Kaufman, Board Treasurer (print name/title) ARLSBAD, a municipal of the State of California BARBARA ENGLESON City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A BREWER, City Attorney BY:_1A}_a, __ Assistant City Attorney EXHIBIT "A" SCOPE OF SERVICES UrbanTrans North America as Contractor, agrees to complete the following scope of services for professional transportation demand management (TOM) consultant services in accordance with the city's Citywide TOM plan. Task 1: Project Management and Quality Assurance Invoiced as Percent Complete of Lump Sum Contractor will develop a project management and quality assurance process. This will ensure clarity of expectations, maintain vital timelines, transfer valuable institutional knowledge, and ensure all project goals are met on time and on budget. Project management efforts will include: • Kick-off meeting designed to elaborate upon city goals, special considerations, risk mitigation efforts, approval processes, timelines, existing data collection inventory, and unique circumstances to aid in facilitating the project and to build momentum. • Create project Gantt charts that are purposefully updated on a recurring basis throughout the course of the project. These visualized project task road maps will help the city's project manager, the contractor project manager, project team members, and stakeholders maintain the course. • Schedule quarterly "pulse check" meetings with the city's project manager/team to ensure the project strategies are working towards and achieving the objectives, mitigating any risks, and capitalizing on any pivot points. These will occur every three months in-person (or teleconference if requested by the city) and the Contractor will prepare core project updates, facilitate key decision points, and updated project priorities. • Monthly Progress Reports -Contractor will provide a monthly progress report outlining key progress towards each scope item and in accordance with the city's project manager ensure an explicit project structure, process and appropriate project tools. Task 1 Deliverables include: • Kick-off meeting and presentation materials • Weekly meetings with materials for at least the first three months/pre-launch of voluntary program • Quarterly pulse check meetings with materials after launch of voluntary program • Monthly progress reports & invoices • Quarterly Project Gantt charts (per project year) Task 2: Review Existing TDM Ordinance, Research, and Resources Invoice as Percent Complete of Lump Sum Contractor will create a data collection process that features: • Background Information Matrix: Include data from TOM efforts in Carlsbad and regionally. The matrix will summarize core themes; identify goals/objectives/task, target completion dates, interrelated efforts, associated resources, and other vital details. Documents will include, but not be limited to city's Climate Action Plan, TOM ordinance, TOM handbook, Sustainability Mobility Plan, TOM blueprint plan (underway), TOM website, and SANDAG's recent TOM service adjustments. • Data Visualization: Collect and develop a series of data visualizations to aid issue identification and decision making. During the background and information review the Contractor will collect visualized data that may include maps that show employer clusters, employee travel patterns, residential density, and transportation networks. The Contractor will also identify infographics that show transportation information and goals. Gaps in key information will be identified and applicable visualizations will be made by the Contractor. While the Contractor will focus on visualization at the start of the project, it will remain a continuous focus of their efforts. This focus will show the program's foundational context and continued story to varied audiences. The review will occur in coordination with city staff to assure that all applicable ordinances, plans, research, and resources are included. The city agrees to share relevant data such as business license list data. The matrix and visualization documents will be provided to the city for comment, and the Contractor will make applicable edits based on consolidated comments provided by the city. Task 2 Deliverables • Draft background information matrix • Draft visualizations (at minimum 8) • Final background information matrix • Final visualizations Task 3: Explore Feasibility of Expanded TDM Program Billed as Percent Complete of Lump Sum Following the review of the existing TOM ordinance and city efforts that relate to, support, and align with the TOM program, the Contractor will coordinate with City and stakeholders to determine feasibility to expand TOM programming. In the first year of the program, the Contractor will leverage the city's efforts to date surrounding Safe Routes to School to review opportunities coordinate a pilot project into TOM programming. This includes reviewing/advising on pilot project concepts and design, and including pilot program results into TOM reporting for Year 1. In Year 2 of the contract, the Contractor will provide high-level advisory assistance as needed surrounding TOM integration to HOAs and community districts with further direction and definition of those terms by City Council following the presentation of Year 1 results. Task 3 deliverables include: • Inclusion of Safe Routes to School pilot program results into TOM reporting for Year 1. • As needed advisory assistance regarding HOAs and community district TOM integration Task 4: Establish Stakeholder Advisory Committee Billed as Percent Complete of Lump Sum The Contractor will develop, facilitate, and maintain a stakeholder advisory committee to help the city achieve multiple TOM goals. They will ensure committee participation is easy, enjoyable, valuable, and transparent. The City will assist the Contractor to leverage the stakeholders and momentum established recently from the Sustainable Mobility Plan process to prioritize stakeholder interviews and advisory committee membership. To ensure Carlsbad builds a high-performing TOM program, the Contractor will deploy active listening throughout all phases of the Advisory Committee development, facilitation, maintenance, and growth. The Contractor will include trained facilitators and strategic planning experts to conduct the following: Execute Priority Stakeholder Interviews: The Contractor will work with the city to establish a list of recommended priority stakeholder interviews and recommended stakeholder inputs. Upon finalization of this list, the Contractor will facilitate one-on-one discussions with up to 12 new stakeholders throughout the contract. Establish an Advisory Committee Framework: A TOM advisory committee will require iterative phases that prioritize the types of members based on organizational development criteria. The Contractor will develop a framework document that will outline how the committee will function, inputs/outputs it will generate, and facilitation methods over the course of two years. This will include committee roles and responsibilities and the development of a memorandum of understanding for participants. We will also update this framework throughout the project, as it will likely and purposefully evolve during that time. Transition Members and Facilitate Meetings: Based on findings from stakeholder interviews, the Contractor will generate a final list of priority advisory members for the Contractor to recruit. This effort will include an initial focus for founding membership and then ongoing recruitment throughout the course of the project. The Contractor will establish a calendar of events for committee meetings, manage meeting logistics (location, refreshments, invitations, etc.), develop content and facilitate each meeting. The Contractor will summarize each meeting with minutes including actionable next steps. This includes all direct expenses associated with the meeting. Research expansion of provision of TOM services by forming a TMA: This analysis will examine the feasibility of forming a TMA to serve the organizations covered by the ordinance or voluntarily participating in the program. The TMA feasibility will be based on how an area scores with regards to criterion organized into four core areas: transportation challenges, area characteristics, stakeholder commitment, and financial sustainability. The feasibility analysis will be informed by existing conditions, stakeholder meetings, and an investigation of potential partnerships and funding sources. Task 4 deliverables include: • Committee framework document (roles and responsibilities, schedule, format, and goals) • Committee memorandum of understanding • Stakeholder interviews (at minimum 12 Stakeholders) • Meeting coordination and facilitations (at minimum 6 advisory committee meetings) • TMA formation high-level analysis and recommendations Task 5: Update Framework and Monitoring Structure for TDM Program Billed as Percent Complete of Lump Sum Task 5.1 Gather Baseline Data The Contractor will review the mode-share baseline data for employees working in the City of Carlsbad including current data from the 2006 to 2010 American Community Survey 5-Year Estimate and the new ACS 5-year data set covering 2012 to 2016 that was released on March 31, 2019. They will review this new data set and compare them to data sets available from SANOAG. The Contractor will also identify other sources of data and their limitations to help understand the TOM program impacts. The nexus between TOM strategies and data sources varies, and will be considered as a part of the analysis. In addition, the Contractor will consider how surveys conducted at properties mandated to implement TOM programs can be used to understand program impacts and how those vary based on geography within Carlsbad. While these surveys are likely to be a significant and beneficial data source in time, their immediate benefit is limited due to the lack of properties covered by the TOM ordinance. The baseline analysis will result in a final agreed up existing baseline data set for use throughout this project. Task 5.2 Develop Evaluation Framework The Contractor will use data from Task 5.1 along with input from the city's project management team, the stakeholder advisory committee, and guidance from planning and policy documents to select data sources to track TOM program results. This effort will consider the cost and resources necessary to collect the data versus the available funding and staffing to collect and monitor data. It is anticipated that multiple data sources will be selected for ongoing tracking. As part of this task it will be determined: (1) what will be measured; (2) how it will be measured; (3) when it will be measured (frequency); and (4) how it will be tracked. With a goal of regular data reporting, the Contractor will create a TOM evaluation dashboard as part of this task that will include monitored metrics in a dashboard format. The dashboard will include: • Progress stages of voluntary businesses in the TDM program • Number of active TDM Ordinance Plans (broken up by voluntary and mandatory) • Number of ADTs covered by the program • Total square feet covered by the program • Date of specific activities • Summary of notes, comments and conversations • Permit number • Amount of GHG reductions (TBD aggregate or individual) • Percent mode share per employer (TBD aggregate or individual) The form of the dashboard will depend on the data being tracked, desired functionality, and budget. File sharing for this project will leverage the city's OneDrive site. Task 5.3 Gap Analysis and Resource Development Based on the results of the background information matrix, subtasks 5.2, expert consultant knowledge, and input from the City, the Contractor will identify priority gaps in the existing TDM resources. At the beginning of the contract the Contractor will conduct a thorough priority gap analysis to identify key resources for development and prioritization of these resources in the initial stages of the project. The Contractor will present these findings to the city and finalize agreed upon resources for development. To the extent possible, methodology and data collection should align with regional data efforts led by SANDAG so that local information feeds into regional transportation analysis. Task 5 deliverables • TDM baseline data gathering and on-going methodology • TDM dashboard and development review tracking • Priority gap analysis Task 6: Technical Review of Development Plans Billed as Time and Materials Contractor will review TDM plans submitted by developers for city approval and work with the developer to ensure that the proposed plan is appropriate given the development context and expected tenants. Contractor will also help ensure that the TDM plan is robust enough for an individual development to meet the alternative mode share goals required to meet the city's GHG reduction targets. Staff will work with the developer to finalize the plan and to make sure that the developer fully understands the implementation details to avoid lack of compliance in the future. In parallel with reviews, the Contractor will develop additional guidance to be incorporated into the TDM handbook where needed. The Contractor and the City will ensure that the TDM handbook's content is maximized for applicability across all developer mandated TDM plans and associated contexts, identify future phased iterative reviews, and suggest content updates to the handbook and protocols based on interrelated tasks within this scope of service. City will establish a shared digital platform where Contractor will input detailed interactions with TOM plans in review, direction provided to development applicants, dates of relevant interactions and an overall status of each TOM plan. The Contractor, in coordination with city staff, will establish a time reporting process that will monitor the amount of resources associated with all aspects of the TOM plan review, including analysis, communication with developers, and plan approval. This time tracking will be sufficient for utilization in a potential fee structure that complies with state and federal regulations for development related fees. The Contractor will work with ·city staff to investigate the feasibility and structure of a TOM plan fee that could be implemented to cover administrative expenses related to the program. Task 6 deliverables • Review and create all associated documents in accordance with the TOM handbook and developer process, including detailed updates of the feedback provided to project applicants • Detailed development review platform of interactions with applicants that is accessible to Contractor and City staff • Time and activity reporting resource estimations • Cost structure for development reviews Task 7: Ongoing Monitoring of Approved TDM Plans Billed as Percent Complete of Lump Sum To monitor compliance with approved TOM plans over time, the Contractor will ensure that developments comply with the requirements, including review of infrastructure-based strategies during pre-occupancy inspection, periodic follow-up with the development's TOM contact to ensure that programs are being implemented, and assistance to developers with required baseline and follow-up survey efforts and reporting. A standardized commuter survey, compatible with regional TOM efforts like iCommute, will be created to ensure consistency in data collection and accuracy of reporting. In addition, a reporting process will be identified that meets the city's overall Climate Action Plan reporting goals. The Contractor will develop a tracking system that will ensure that developments comply with their reporting schedules. The system will include information on the TOM strategies and infrastructure that a development committed to, the mode split goal for the development, permit data, reporting requirements, contact information, and results from reports. The system will likely be hosted in the cloud to allow access by City of Carlsbad planning staff. It is anticipated that it will be built using a cloud-based database, such as Airtable. The tracking system will be used to remind developers of reporting deadlines and identify and follow up with those who fail to participate in the process. When monitoring reports are submitted by property managers/owners, the Contractor will review the results and work with those developments that have not met their goals on ways to amend their plan to achieve compliance going forward. Results will be tracked over time, both by development as well as program-wide, and will feed into the overall program evaluation and dashboard. Task 7 deliverables • Ongoing monitoring process • Standardized survey instrument and guidelines • Review and create all associated documents in accordance with the TOM handbook and developer development monitoring process Task 8: Existing Business Community Outreach for Voluntary Program Billed as Percent Complete of Lump Sum 8.1 Identity The Contractor will conduct a branding process in coordination with city communication staff to develop a comprehensive identity system for the Carlsbad TOM program including a brand name, logo, tagline, brand guidelines, target audience overview, and core marketing objectives. 8.2 Annual Workplan The Contractor will develop a draft workplan covering the following elements for this outreach effort: • Program Mission (static) • Program Multi-Year Goals (moderately static) • Program Services (updated annually) • Program Staffing and Roles (updated annually) • Program Objectives (updated annually) • Program Strategies (updated annually) • Program Metrics (updated annually) • Advisory Committee (updated annually) • Funding Source/Budget (updated annually) Based on feedback from the city project team, the Contractor will finalize the inaugural workplan and begin immediate implementation. Depending on the findings in Task 3, the stakeholder advisory committee may play a role in the finalization of this document (either in both years or in year two). 8.3 Member Recruitment The following showcase the strategies the Contractor will use to recruit and retain existing business members. Recruitment Plan and Execution: Based on previous task findings, the Contractor will generate a high-level recruitment plan that targets priority organizations for membership. This plan will target and identify employers by: • First year focus on larger organizations that offer more opportunity to affect change via critical mass • Well-connected and leading organizations whose memberships can lead to prospects such as chambers, human resource management associations, and/or industry leaders • Organizations with household name recognition to showcase legitimacy by many audiences • Employers eager to participate or mandated to participate via developer plans • Employers in high-priority areas based on gee-spatial analysis of infrastructure, transit service, density, and other variables Member Plans, Events and CRM: Each employer and developer member will require unique approaches reflective of their specific worksite while also being provided efficient services/tools that allow Carlsbad to achieve its measurable goals. A valuable and tangible product to guide those approaches is the development of annual engagement plans that identify unique worksite commuter attributes, strategies and campaigns to employ for behavior change, services provided by Carlsbad, and measurable goals to achieve. These mini-plans will create engagement with the member partner, focus the program's finite resources to the best of their ability, and create measurable and achievable goals. Member Evaluation: The Contractor will build evaluation into the membership plans and provide appropriate tools and guidance to members. This work will be based in the monitoring plan in Task 5. This will include providing employer members with a survey tool/methodology, incentives, and analysis support allowing the development and measurement of TOM programming at their site while also allowing the Contractor to consolidate all evaluations into a city-wide measurement for reporting. 8.4 Member Outreach and Marketing To achieve the workplan goals and metrics, the Contractor will implement outreach and marketing efforts including: Campaign Management and Delivery: Efficient and effective delivery of the TOM programing relies on leveraging existing regionally developed marketing/tools and maximizing custom developed events/campaigns/services. Not all employers will utilize the annual regional campaigns-such as Bike to Work Week/Day, Clean Air Month and California Rideshare Week, but by providing access to these events throughout the calendar year, we ensure each employer partner can participate in an event that is convenient and relevant to their specific needs. Based on regional campaign dates and local custom opportunities, the Contractor will determine outreach schedules and maintain an events calendar of when materials should be distributed, incentives offered, modes of transportation promoted, and lobby or break room events set up, etc. The Contractor will also host informational sessions as needed to inform members on transportation changes happening near their site and engage members in facilitated, fun events to actively listen to the employer and their commuters' needs. Program Toolkit: The Contractor has found incredible efficiencies in the development and maintenance of toolkit materials. The idea being that an effective TOM brand will have an umbrella kit with customizable content pieces that vary among the target audiences such as: employers, developers, stakeholders, press, advisory committee, clients, and others. As well, as content for sub-audiences at scientifically proven "change moments" such as new orientation kits, new resident kits, and other moments are the types of valuable content that the Contractor will build for the program. Annual Champion Celebration and Designations: The Contractor will host an annual meeting, inviting all existing employer/property manager/stakeholder members to discover inspiring insights from our international best practices of similar commuter programs, share best practices, be celebrated for their efforts, network, and identify how to improve their existing program. This could be combined with a recruitment meeting to attract prospective members. This event will be designed to become an annual event for members to ensure brand awareness, inspire participation increases, reward member participation, meet requirements, and recruit new members. The celebration should calibrate awardee criteria with those of the larger region to highlight Carlsbad's contribution to the regional transportation network. Marketing Materials and Outreach Events: The Contractor will help facilitate annual events including Bike to Work day events and Rideshare Week on behalf of the city and the TOM program. Digital Marketing: The Contractor will facilitate the development of account content, identify metrics for usage, and manage all social media and electronic marketing content. Digital strategies will be finalized in the workplan and based on final services. Task 8 deliverables include: • Annual workplans • Brand identity system • Recruitment plan including target member goals • Marketing and outreach activities identified in the annual workplan • Employer toolkit • Rideshare Week and Bike to Work annual event facilitation • Completed engagement plans by member companies Task 9: Program Monitoring and Maintenance Billed as Time and Materials The outcomes from Task 4 will provide the process to monitor and maintain the TOM efforts for Carlsbad. These consolidated efforts include the following core subtasks. Task 9.1 TDM Program Monitoring Ongoing outputs the Contractor will conduct in the TOM monitoring of the program include: • Dashboard: Ongoing management, inputs, and exports of the TOM Dashboard as needed (ex: addition of employer partner survey results) including at minimum a monthly cohesive update and discussion with Carlsbad project team. This will showcase inputs, outcomes and associated impacts. • CRM: Management and updates to the CRM as needed (ex: new employer partner recruited) including at minimum a monthly cohesive update and discussion with Carlsbad project team. This will reveal key stakeholder contacts, communication efforts/results, partnerships, memberships and program network. • Participation: Depending on what tools, services, and other commuter services deployed, the Contractor will monitor participation in each and report back metrics such as reach, participation rates, data recency, behavioral impacts, and overall outcomes. • Survey Schedules, Response Rates, and Behavior Change: The Contractor will collect data as directed in previous Tasks and ensure surveys for mandated and voluntary programs are conducted on time, with the prescribed confidence levels, and are measuring change in behavior. This will result in key inputs for the Dashboard and CRM. Task 9.2 Project Year in Review and Recommended Next Steps The Contractor will summarize the annual comprehensive TOM efforts in a digestible and valuable manner to generate actionable next steps for this TOM program's evolution. This will include: • Facilitated annual project debrief meeting: The Contractor will hold this meeting with the Carlsbad project management team and/or advisory committee during where they will present an overview of all the entire efforts conducted that year, lessons learned, key successes and barriers, and recommended priority next steps. The Contractor will also facilitate a dialogue to identify inputs from the Carlsbad project team and/or advisory committee to identify forward-thinking opportunities and concepts for consideration in the next year's efforts. • TDM Program next steps: Based on the meeting and results to date, we will prepare a brief document to succinctly capture priority considerations and next steps for Carlsbad to achieve their TOM goals. This document will play a vital role in the TOM program's second Annual Workplan and subsequent scopes of work. Task 9.3 On-Call Technical Advisory Assistance A key element of the project approach is to ensure that it is dynamic and reactive to the variables at hand. With a two-year project, the Contractor will provide on-call/as needed technical advisory assistance where TOM tasks and needs are identified and approved by the Carlsbad Project Manager. This will allow the Contractor to flex resources for tasks with variability such as TOM Developer Review -so if Carlsbad experiences an unforeseen flurry of developer applications and thus requires additional effort, this subtask can fill that resource. Most often technical advisory assistance varies based on external variables such as funding source changes, technology advancements, and/or partnership changes. The value in this task is being able to address them within the contract. Tasks could include: • City's internal TOM program development • Technology solutions and advisory • Legal and best practice research • Funding opportunities such as grant writing or research • Facilitated presentations/meetings and presentation materials • Best Practice reviews on key TOM topics • Benchmarks and standard processes for consideration • Addressing new services and/or regional coordination efforts • Policy development and content • White papers on key TOM topics Task 9 deliverables include: • Updates to TOM dashboard, including all key metrics and inputs identified • Up-to-date data in CRM tool • Annual meeting materials • TOM program next steps memo • Technical advisory assistance progress report and agreed upon outputs Budget Carlsbad 2-Year Budget Task 1 Project Management $ 15,250 T&M Review Existing TDM Ordinance, Research & Task 2 Resources $ 12,500 Lump Task 3 Explore Feasibility of Expanded TDM Program $ 7,500 Lump Task4 Establish Stakeholder Advisory Committee $ 18,000 Lump Update Framework and Monitoring Structure Task 5 for TDM Program $ 33,500 Lump Task 6 Technical Review of Development Plans $ 36,550 T&M Task 7 Ongoing Monitoring of Approved TDM Plans $ 23,000 Lump Task 8 Outreach to Existing Businesses $ 230,650 Lump Task 9 Program Monitoring and Maintenance $ 21,050 T&M Total $ 398,000 The Contractor will provide Carlsbad with an updated hourly rate sheet upon award and maintain an updated rate sheet throughout the course of the project. ~ URBACON-01 KPArwmN ACORD. CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYYYY) ~ 8/3/2019 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 endorsementlsi. PRODUCER License # 0757776 ijiij!~cT Autumn Williamson HUB International Insurance Services (COL) FlJ8,Nrio, Ext): 71-9884-0716 PAX 2000 S. Colorado Blvd., (A/C, No): Tower 2, Suite 150 · i~DA~~"": Autumn.Williamsonl@hubinternational.com Denver, CO 80222 INSURERtS\ AFFORDING COVERAGE NAIC# INSURER A: Sentinel Insurance Comoanv Ltd. 11000 ' INSURED , . INSURER B: Llovd's of London 15792 .. UrbanTrans.Cc:i~ultants Inc I INSURERC: 1543 Champa$treet, #201'.· INSURER D: Denver~ q01l0202 .. •' INSURERE: .. V :; INSURERF: COVERAGES ·•, CERTiFICAT~;NlJMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POUCiES OI= JNSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY; REQUIREMENT, TERM 0.R CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY.}'ER'rAIN, THE •INSllAANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCHPOtlCIES. LIMITS SHOWN·MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ~.~.Pk ~ · '.·. ,; POLIC'.l'NUMBER POLICY EFF POLICY EXP LIMITS I TR A X COMMERCIAL GENERAL LIABILITY .. ,. EACH OCCURRENCE $ 2,000,000 -□ CLAIMS-MADE [Kl OCCUR X 34SBAll9973 8/1/2019 8/1/2020 ~~~~[i:iJ9E~~~c\'r?ence\ $ .. MED EXP tAnv one =rson\ $ 10,000 f----: PERSONAL & ADV INJURY $ 2,000,000 f---- ~'L AGGREGATE UMl~~S ~ER: " GENERAL AGGREGATE $ 4,000,000 POLICY □ !i'!\9f:· LOC ', 4,000,000 .. PRODUCTS -COMP/OP AGG $ OTHER · .. ,: ... ,•, .. $ A AUTOMOBILE UASIUTY .... .· fic~~~~~~llNGLE LIMIT 2,000,000 f----'..·:·· $ f----ANY AUTO·: -X 34SBAll9973 8/1~2019 8n/2020 BODILY INJURY IPer nerson\ $ OWNED SCHEDULED / / f----AUTOS ONLY e----.AUTOS •:: BODIL y INJURY IPer accident\ $ X ~LRT~SONLY 'c.!. ,~ffil~"mW. ... .. fp119~afJeit~AMAGE f----' ,:, $ ., .. .. ,.:.--, ' •· : $ UMBRELLA LIAB H OCCUR'· . ' l!ACH l'>CCURRENCE $ f----CLAIM$-t,1ADE EXCESS LIAB ,,, > AGG~l'>AT" $ DED I I RETENTION $ '' .. $ WORKERS COMPENSATION ••: ... . . I PER ' l I OTH-AND EMPLOYERS' LIABILITY vii.-'· . : ", ,;. ' .. , ' "TATIITE'. ER ,-•·, ANY PROPRIETOR/PARTNER/EXECUTIVE □ N/A E:L ·i;:u-H ACCIDENT $ filFICER/MEMBER EXCLUDED? ( andatory In NH) ;.:.-E.L ·DiSEASE -EA EMPLOYE'l $ ~~i~~ri+ri~ ~l~PERATIONS below E.L. DISEA""·--=ucY LIMtT' s B Errors & Omissions/P IP!SCMPL0000~-:()1 8/1/2019 8/1/2020 • Per Clal't'n E&O Loss 2,000,000 .I '• -, ,.., -· .. .. •· .. .. DESCRIPTION OF OPERATIONS/ LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedute,:mall be •ttachlld If IQOre space la required) City of Carlsbad is an additional insured on a primary & non-contributory basi' ::~ ... :"rtains fo the general liability. . , . . CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Carlsbad THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 1635 Faraday Avenue Carlsbad, CA 92008 AUTHORIZED REPRESENTATIVE I 1:oVl-f ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD QUICK REFERENCE BUSINESS LIABILITY COVERAGE FORM READ YOUR POLICY CAREFULLY BUSINESS LIABILITY COVERAGE FORM Beginning on Page A. COVERAGES 1 Business Liability 1 Medical Expe11ses 2 Coverage ~><tension -Supplementary Payments 2 B. EXCI-USIONS 3 C. WHO IS AN INSURED 10 D. LIABILITY AND ·MEDICAL EXPENSES LIMITS OF INSURANCE 14 E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 15 1. Bankruptcy 2. Duti~s-ln Tpe Event Of Occurrence, Offense, Claim Qr'Sµit 3. Financial Responsibility Laws 4 ... Legal Action Against Us 5. Separation Of Insureds 6. RepresentatiQns 7. Other Insurance .. ' <• , .,, .. • 8. Transfer Of Rights Of Recovery ~ainst Others To Us F. OPTIONAL ADDITIONAL,JNSURED COVERAGES Additional Insureds G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS Form SS 00 08 04 05 15 15 16 16 16 16 16 17 18 18 20 . · BUSINESS LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the stock insurance company member of The Hartford providing this insurance. The word "insured" ~,eans any person or organization qualifying as such under Section C. -Who Is An Insured. Other words and ~ses th~t appear in quotation marks have special meaning. Refer to Section G. -Liability And Medical Expenses::C)efinitiops/ · -\'., _- A. COVERAGES·~ .. ·-' 1. sus1NES·S LIABttirv ,C'QVERAGE (BODIL v INJURY, PROPERTY'J)AMAGE. PERSONAL AND ADVERTIS~~;JN-J'URY).:'_: •_: ,:,· Insuring Agre~~~t" ... a. We will pay those\~yms tti~f :the insured becomes legally "-o,bligated' '.to pay a~ damages because· \ot;,_ ''.Qogily inju~\; "property damage" or: :·"personal '· ·and a.dVitrti$ing injury" to which this j(l~qfilnce . ~Jipiies. ·· W~ will have the right c:iri~ 'auty to · 1defend the ,,insured against ~~y "suit" , . seeking tho~ damages. Howevettwe wiU ., :, ·:· have no duty to defend the insured'Etga~nsf<' ... any "suit" seeking_ ,:dc:images for "bodfly "ilJjlMY\ "prop~ dam-'.! or "personal and a·dvertisin1;r'i'1Jury" to whitjh this insurance does not.apply. . ·' We may; ·at, our discreti~,:investigate any "occurren'C'e" or offensl:) .~nd settle ~ny claim or "suit" thatmay re~1t/aut: .... : ) •. :., , (1) The amount.,;~ -~ill pat-ic/dam~g,esis limited as describecL'ih ::$action 1;k - Liability And Med~' Experis-~ t;;lmits Of Insurance; and "''·' ·, (2) Our right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments~. settlements or medical expenses to wl1ic:f{ this insurance applies. · · -· No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Coverage Extension -Supplementary Payments. b. This insurance applies: (1) To "bodily injury" and "property damage" only if: Form 55 00 08 04 05 © 2005, The Hartford (a) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; (b) The "bodily injury" or "property damage" occurs during the policy period; and (c) Prior to the policy period, no insured listed under Paragraph 1. of Section C. -Who Is An Insured and no "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the.·: "bodily injury" or "property ~mage,:' occurred, then any .,;&,ntinU~Oq, change or resumption gf such -~qily injury" or "property ctam~e" during or after the policy peiio<il')vill be deJ:Jmed to have been known 'prior tp·th& po~y period. (2) Tc;>, <';personal;,~~d adv~sing injury" caused by aru:iffense arising.out of your business-;::~irt only if the.· 'offense was committed'. \n the "coverage territory" during the pQl~y,periP,d,: · c. "Bodily injury" or 11ptoperty' damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1. of Section C. -Who Is An Insured or any "employee" authorized by you to give or receive notice of an "occurrence" or claim: (1) Reports all, or any part, of the "bodily injury" or "property damage" to us or any other insurer; Page 1 of 24 BUSINESS LIABILITY COVERAGE FORM (2) Receives a written or verbal demand or claim for damages because of the "bodily injury" or "property damage"; or (3) Becomes aware by any other means that "bodily injury" or "property damage" has occurred or has begun to occur. d. Damages because of "bodily injury" include damages claimed by any person or organization for care, loss of services or death resulting at any time from the "bodily injury". e. Incidental Medh;al Malpractice (1) "Bodily injury" arising out of the .• rendering of or failure to render professional health care services as a physician, dentist, nurse, emergency medical technician or paramedic shall be deen,,ed to be caused by an "occurrenc~\but only. if: {a) The physician, dentist, nurse, emergency medical technician or paramedic is employed by you to provide such services; and {b) You are not engaged i.n the business or occupation of providing such services. ·· {2) For the .purpose of determining the limits of insurance for incidentai medical malpractice, any act or omission . together with . all related acts or .. i omission$ .in . the furnishing of these services to any one · person will be considered one "occur-r-e.nce". 2. MEDICAL EXPENSES Insuring Agreement a. We will pay medical expenses .$S described below for "bodily injury" · caused by an accident: (1) On premises you own or rent; ' · (2) On ways next to premises you own or rent; or (3) Because of your operations; provided that: (1) The accident takes place in the "coverage territory" and during the policy period; (2) The expenses are incurred and reported to us within three years of the date of the accident; and (3) The injured person submits to Page2 of 24 examination, at our expense, by physicians of our choice as often as we reasonably require. b. We will make these payments regardless of fault. These payments will not exceed the applicable limit of insurance. We will pay reasonable expenses for: (1) First aid administered at the time of an accident; (2) Necessary medical, surgical, x-ray and dental services, including prosthetic devices; and (3) Necessary ambulance, hospital, professional nursing and funeral services. 3. COVERAGE EXTENSION - SUPPLEMENTARY PAYMENTS a. We will pay, with respect to any claim or "suit" we investigate or settle, or any "suit" against an insured we defend: (1) All expenses we incur. (2) Up to $1,000 for the cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which Business Liability Coverage for "bodily injury" applies. We do not have to furnish these bonds. (3) The cost of appeal bonds or bonds to release attachments, but only for bond amounts within the applicable limit of insurance. We do not have to furnish · these bonds. (4) All reasonable expenses incurred by the ·· insured.at our request to assist us in the · investigation or defense of the claim or "stJit",-including actual loss of earnings up t-0 $500 a day because of time off from work. (5.) All costs .. taxed again~t the insured in the "suit". · (6) Prejudgment interest awarded against the insured. on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejuqgmentJnterest based on that period of time after the offer. (7) All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance. Any amounts paid under (1) through (7) above will not reduce the limits of insurance. Form SS 00 08 04 05 b. If we defend an insured against a "suit" and an indemnitee of the insured is also named as a party to the "suit", we will defend that indemnitee if all of the following conditions are met: (1) The "suit" against the indemnitee seeks damages for which the insured has assumed the liability of the indemnitee in a contract or agreement that is an "insured contract"; (2) This. in.lii:irance applies to such liability a~siJiY,led by the insured; (3) Toe'obligati~to defend, or the cost of ·• .. the defeQ~'..:of, that indemnitee, has . •d also .. b~en· :~sumed by the insured in the·$arne "h1sured contract"· :,·· "'_,',. ,-}-;,-,, , (4) The allegE11Jons irt:'the "suit" and the iriformatii;:iri . ~ii. know . aQQUt the "occurren~\fi•a:re such •thafno ¢9nflict appears'tO~~ist betw~en.the interests of the insured aoo: the )nteresf of the ,,. ' .'• ' indemnitee; . .,_. •· (5) The indemnitee :and. the insured ask ' us to conduct and 6(jntr9f; the defens~ ... QfJhat indemnitee agaihst suc;ti.c!'-Si.Jit" _·. ·::>,:•~rid, agree that we can asstgn the .. same counsel to defend the "Ynsured and the lndemnitee; and . ·,l-, (6) The indemnitee: (a)_ Agrees iii ~f}~Og to: (i) ::¢,oope~at~·• With us in the .• :tnvestigation, • ·.settlement or :.:',defense of tha}t.suit"; , , .. ~;, . :C ,, (ii) •tmmediately:.t~t'ld us oop[es of .ar,iy Q~mands, · ~notices, sttmmohses or. ·(egal p·ap'ers received in .yOllr.JEiction with,· the "suit"; (iii) Notify any other insurer:wtio~e coverage is available to the indemnitee; and (iv) Cooperate with us with respect to coordinating other .. applicable insurance available to the indemnitee; and · · · · (b) Provides us with written authorization to: (i) Obtain records and other information related to the "suit"; and (ii) Conduct and control the defense of the indemnitee in such "suit". Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM So long as the above conditions are met, attorneys' fees incurred by us in the defense of that indemnitee, necessary litigation expenses incurred by us and necessary litigation expenses incurred by the indemnitee at our request will be paid as Supplementary Payments. Notwithstanding the provisions of Paragraph 1.b.(b) of Section B. - Exclusions, such payments will not be deemed to be damages for "bodily injury" and "property damage" and will not reduce the Limits of Insurance. Our obligation to defend an insured's indemnitee and to pay for attorneys' fees and necessary litigation expenses as Supplementary Payments ends when: (1) We have used up the applicable limit of insurance in the payment of judgments or settlements; or (2) The conditions set forth above, or the terms of the agreement described in Paragraph (6) above, are no longer met. 8. EXCLUSIONS : 1. Applicable To Business Liability Coverage .This insurance does not apply to: : ·,a. ,.:,.Expected Or Intended Injury .' <v.:"<••· ·· '.{-if• "Bodily injury" or "property damage" • ~xpected or intended from the /standpoint of the insured. This excluajQn does not apply to "bodily injuryh:1r.;·property damage" resulting fi:::@rlf the>lJ~El, of reasonable force to ; /p~tect persotl~ or property; or ;-{zf>"P~i$.qnal and: advertising injury" arising . . out of anioffense ~itted by, at the fYdirectiori · of or •~'ifh. ,.the consent or · fiCA:LJiescenqa::Qf the in~d with the expectati9JJ:.of inflicting '"personal and advertlslflq lnjury". _b. Contractuait.iability . (1) "Bodily injury":Qr'~p~~rtfdamage"; or (2) "Personal and advertising injury" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages because of: (a) "Bodily injury", "property damage" or "personal and advertising injury" that the insured would have in the absence of the contract or agreement; or Page 3 of24 BUSINESS LIABILITY COVERAGE FORM (b) "Bodily injury" or "property damage" assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement. Solely for the purpose of liability assumed in an "insured contract", reasonable attorneys' fees and necessary litigation expenses incurred by or for .a. (?arty other than an insured are · ·oeemed tQ be damages because of ;'bodily1njury" or "property damage" provided: Ji} Liability to such party for, or for the cbst of, that party's defense has alsoJ:,~n assumed in the same "insured contract", and .. ',. •-, ·:.-, (ii) euctf attorn~ys; fees· and litigation . expenses are for defenseof lhat p~rty against a civil or.·· alternative dispute resolution ·pr:oceedilig in which damages . ·to ·. which ,, this. insurance applies are afleged. c;. '. f.;iq~or liabi_lity "Bodily injury~• or "property damage" for which any insured may be held liat>J.e by reason of: (1)·: C~using . or · contributing to the •·· •,• fntoxicatipn of any person; (2) The ftimishing of alcoholic beverages to a person under the le~l .drinking age or underttie influence of:alcohol; or. (3) Any statote, orcliriance gr: regula,ion relating to the sale, gift,.(fistributiorr or use of alcoholic beverage~. · This exclusion applies only if you ate in the business of manufacturing, distHbuting, selling, serving or furnishing alcoholic beverages. d. Workers' Compensation And Similar Laws Any obligation of the insured under : a workers' compensation, disability benefits or unemployment compensation law or any similar law. e. Employer's Liability "Bodily injury" to: (1) An "employee" of the insured arising out of and in the course of: (a) Employment by the insured; or Page 4 of 24 (b) Performing duties related to the conduct of the insured's business, or (2) The spouse, child, parent, brother or sister of that "employee" as a consequence of (1) above. This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the insured under an "insured contract". f. Pollution (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants": (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to any insured. However, this subparagraph does not apply to: (i) "Bodily injury" if sustained within a building and caused by smoke, fumes, vapor or soot · produced by or originating from eq'uipment that is used to heat, coot.Qr dehumidify the building, or e~lpment that is used to .·.h~at water fqr personal use, by :tne buildj119:s·0<,cupants or their guests;:· · . . (ii) "Boo~ injury" or "property damage" for which you may be held liable, if" ;,you are a conb:actor and · :the owner or lessee of sool) premises, site or location ha;been added to your policy as an additional insured with respect to your ongoing operations performed for that additional insured at that premises, site or location and such premises, site or location is not and never was owned or occupied by, or rented or loaned to, any insured, other than that additional insured; or Form SS 00 08 04 05 (iii) "Bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire"; (b) At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste; (c) Which are or were at any time . -transported, handled, stored, ·· treatedl d,lsposed of, or processed as w~~te by or for: (I} Any insured; or _'(Ii) Any person:or'organization for wt)Qm you' may be legally responsible; . · .. (d) At or. from any pr~liiises, site or location on which .~ny insured or any contractors or $tjbcontractors working directly or .indirectly on any insured'!:i t,ehalf are performing opera~ns if the · "pollutants" are brought on::'pr to the premises, site or location in connection with such dp~rations by such insured, contractpr or subcontractor. However:·, tliis. subparagri:lph does not apply to: · (i) "Bodily· injury" or "property damage" arising out of the escape of fuels, lubricants or Form SS 00 08 04 05 · •, other operating fluids which are needed to pelfdrm tbe: normal ete.ctrical, · · hydrault6. or methatilca1 .. :: functi()ns necessary for.ttnfoperation of "mobile equipment" drJts parts, if such fuels; 'lubricants 9r. other operating fluids escape from a vehicle part designed to hold, store or receive them. This exception does not apply if the .. "bodily injury" or "property· damage" arises out of the intentional discharge, dispersal or release of the fuels, lubricants or other operating fluids, or if such fuels, lubricants or other operating fluids are brought on or to the premises, site or location with the intent that they be discharged, dispersed or BUSINESS LIABILITY COVERAGE FORM • ,-(2) released as part of the operations being performed by such insured, contractor or subcontractor; (ii) "Bodily injury" or "property damage" sustained within a building and caused by the release of gases, fumes or vapors from materials brought into that building in connection with operations being performed by you or on your behalf by a contractor or subcontractor; or (iii) "Bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire"; or (e) At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured's behalf are performing operations if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, "pollutants". Any loss, cost or expense arising out of any: (.a) Request demand, order or statutory or regulatory requirement that any insured or others test for, monitor, cl~. up, remove, contain, treat, • . detoxify .or neutralize, or in any way respondJ>, or assess the effects of, • :.pollutant~~ or (b) Claim or suit by .or on behalf of a govetnmentci!l .. .:a,uthority for damages, because 9f testing for, monitorliig,· cleaning·~p. removing, containlrlg, treating, detoxifying or neutralizing, or in. any way resporiqing to, or ~ssessing the effects al; "poH~~nts". However, this paragraph does not apply to liability for damages because of "property damage" that the insured would have in the absence of such request, demand, order or statutory or regulatory requirement, or such claim or "suit" by or on behalf of a governmental authority. Page 5 of 24 BUSINESS LIABILITY COVERAGE FORM g. Aircraft, Auto Or Watercraft "Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading or unloading". This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that· insured, if the "occurrence" which caused the "bqciily injury" or "property damage" . involved the ownership, . maintenance, use or entrustment to others of any aircraft, · "auto" or Y.'.atercraft that is owned or operated by -or rented or loaned to any insured. . This exclusiorf does not apply to: (1) A watercraft while ashore on premises you own or rent; (2) A watercraft you do not OWJ:l that is: (a) Less than 51 feet !ong; ·c;1nd (b) Not being used to carry persons for a charge; ·· · l3) Parking an "auto" on, or on the ways next to, premises you own or rent, provided the "auto" is not ownedby·or rented or loaned to you or the insured;· (4):.: Liability assumed under any "insured · contract'.-" · · for the ownership, maintenance or use . of aircraft or waterer.aft; (5) "Bodiiy injury" or "property d~mage" arising out .of the operation of any .of the equipment listed in Paragraph t':(2) or f.(3) of the definitrort of "mobile equipment"; or · · (6) An aircraft that is not owned ·by any insured and is hired, chartered or loaned with a paid crew. However, this exception does not apply if the insured has any other insurance for such "bodily_ injury" or "property damage", whether the other insurance is primary, excess, contingent or on any other basis. h. Mobile Equipment "Bodily injury" or "property damage" arising out of: (1) The transportation of"mobile equipment'' by an "auto" owned or operated by or rented or loaned to any insured; or Page 6 of 24 (2) The use of "mobile equipment" in, or while in practice or preparation for, a prearranged racing, speed or demolition contest or in any stunting activity. i. War "Bodily injury", "property damage" or "personal and advertising injury", however caused, arising, directly or indirectly, out of: (1) War, including undeclared or civil war; (2) Warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or (3) Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these. j. Professional Services "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or failure to render any professional service. This includes but is not limited to: .(1) Legal, accounting or advertising services; (2) Preparing, approving, or failing to prepare or approve maps, shop · ·drawings, opinions, reports, surveys, field orders, change orders, designs or drawings ahd specifications; (3) Supervisory, inspection, architectural · or erig,ineering activities; (4) Medical, · surgical, -dental, x-ray or . . nursing. services ·treatment, advice or • instruction; · (5) Any health. or therapeutic service treatment, advice or instruction; (6) Any service, treatment: advice or instruction for the purpose of appearance or skin enhancement, hair removal or replacement or personal grooming; (7) Optical or hearing aid services including the prescribing, preparation, fitting, demonstration or distribution of ophthalmic lenses and similar products or hearing aid devices; Form SS 00 08 04 05 (8) Optometry or optometric services including but not limited to examination of the eyes and the prescribing, preparation, fitting.demonstration or distribution of ophthalmic lenses and similar products; (9) Any: (a) Body piercing (not including ear piercing); (b) Tattooing, including but not limited t(t the insertion of pigments into or _· under the_skin; and (cf Simi_lar s'.ervices; (10') Servi~s in the practice of pharmacy; ancl ·· .. · (11) Computer consulting, design or programming services, including web site design.--::: .. · Paragraphs~4)-and (5) of tl1is.exclusion do not apply to th~ lncid~ntal Medical Malpractice cove~ge affOJ"ded 0nder Paragraph 1.e. in Se~icin A. -('.:overages. > k. Damage To Property "_Pi'.Qperty damage" to: · 11f Property. you own, rent or. occupy, including . any costs or expenses incurred ·by you, or any other ~rs.on, organization or entity, for repair;' .. _ replacement, ·: . enhancement, . :: restoratiQO .. or . maintenance of such property for any reason, including preve~tton of injury to: a person or damaQe to another's property; (2) Premises you self· give away or abandon, ·if.Iha "property damage" arises out of any part of those pr~ises; ·· · (3) Property loaned to yOl!; (4) Personal property irt the care, custody or control of the insured; (5) That particular part of real property on which you or any contractors or subcontractors working directly or_ -: indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or (6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it. Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Paragraphs (1 ), (3) and (4) of this exclusion do not apply to "property damage" (other than damage by fire) to premises, including the contents of such premises, rented to you for a period of 7 or fewer consecutive days. A separate Limit of Insurance applies to Damage To Premises Rented To You as described in Section D. -Limits Of Insurance. Paragraph (2) of this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs (3) and (4) of this exclusion do not apply to the use of elevators. Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraphs (3) and (4) of this exclusion do not apply to "property damage" to borrowed equipment while not being used to perform operations at a job site. Paragraph (6) of this exclusion does not apply to "property damage" included in the "products-completed operations hazard". I. Damage To Your Product . "Property damage" to "your product" . · -arising out of it or any part of it. m. Damage To Your Work "Property damage" to "your work" arising out"of it or.any part of it and included in the "producm,-.ci>nipleted operations hazard". This:,::exdusidri · ,does not apply if the dam&Q!:td work ·or the work out of which •. the da~ge arises was performed on your behalf by a .$ubcontractoi:, n. Damage T~ lmpalred Property Or Pro~ Not Pns,stcally lnj~-red "Property damage" to "impaii:ed property" or property that has not been physically injured, arislng•out of: · (1) A defect, deficien.cy, inadequacy or dangerous condition in "your product" or "your work"; or (2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to "your product" or "your work" after it has been put to its intended use. Page 7 of 24 BUSINESS LIABILITY COVERAGE FORM o. Recall Of Products, Work Or Impaired Property Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: (1) "Your product"; (2) "Your work"; or (3) "Impaired property"; if such·. product, work or property is withdrawn or recalled from the market or frorn" use by any person or organization because of a known or suspected defect, . deficiency, inadequacy or dangerous condition Ii, it. . p. Personal And Advertising Injury "Personal and advertising injury'': (1) Arising out of oral, written or electronic publication of material, if done by or at the direction of the insured with knowledge of its faJ~ity; (2) Arising out of oral, written or electronic publication of material whose·. first publication took place before the beginning of the policy period; (3) Arising out of a criminal act committed by or at the direction of the insured; · {4) Arising out of any breach of contract, ·• . :. e~ept . an. inipiled contract to use another's· "advertising idea" in your "advertisement"; (5) Arising'• out of the failure of goods, products or services to conform with any statement of . q!,Jslity or performance made · in your "advertisement"; (6) Arising out of the wrong description of the price of goods, products or services; (7) Arising out of any violation of any intellectual property rights such as copyright, patent, trademark, trade . name, trade secret, service mark or other designation of origin .or authenticity. Page 8 of 24 However, this exclusion does not apply to infringement, in your "advertisement", of (a) Copyright; (b) Slogan, unless the slogan is also a trademark, trade name, service mark or other designation of origin or authenticity; or (c) Title of any literary or artistic work; (8) Arising out of an offense committed by an insured whose business is: (a) Advertising, broadcasting, publishing or telecasting; (b) Designing or determining content of web sites for others; or (c) An Internet search, access, content or service provider. However, this exclusion does not apply to Paragraphs a., b. and c. under the definition of "personal and advertising injury" in Section G. - Liability And Medical Expenses Definitions. For the purposes of this exclusion, placing an "advertisement" for or linking to others on your web site, by itself, is not considered the business of advertising, broadcasting, publishing or telecasting; (9) Arising out of an electronic chat room or bulletin board the insured hosts, .owns, or over which the insured exercises control; (10) Arising out of the unauthorized use of another's name or product in your e-mail address, domain name or metatags, or any other similar tactics to mislead ~nother's potential customers; (11}-Arising out of the violation of a person's right of privacy created by any.state ~r federal act. . However, this exclusion does not · apply to liabffity for damages that the insu·red would have .in the absence of . such state or fed~i act; (12).Arising out of; . (a) An "a_dvertisement" for others on your web site; (b) Placing· a link to a · web site of others on your web site; (c) Content from a web site of others displayed within a frame or border on your web site. Content includes information, code, sounds, text, graphics or images; or (d) Computer code, software or programming used to enable: (i) Your web site; or (ii) The presentation or functionality of an "advertisement'' or other content on your web site; Form 55 00 08 04 05 (13) Arising out of a viol.ation of any anti- trust law; (14) Arising out of the fluctuation in price or value of any stocks, bonds or other securities; or (15) Arising out of discrimination or humiliation committed by or at the direction of any "executive officer", director, stockholder, partner or member of the insured. :: ., q. ElectroRIC Data ' ~ . ~ Da~~~e,s:arisi~R:P.•:·ut of the _loss of,_ los~ _of u_se or; dam,c1ge;Ap; corruption of, 1nab1hty tQ-.,::. access, >or <inability to manipulate • · "electromc data'1t," r. Employ.,:;~nt~~1ated<f;!tactices "Bodlly.injury.r~;r ".pe~nal and..idvertising injury" to: :/ :,:::: > > : < ,:_ · (1) A person~Mng out of any: (a) Refus~I to employ that person;" ,. •., .. .,. -· ' (b) Terminatior'f · of that . person's employmen(*f~ (~) Employment-related pra~ees, · · .r policies, acts or omissions,,~l:iph as coercion, demotion, evaluation, reassignment, df~pline, defamation, harassment, hurol{iation or discrimination directed aftnat perso~ar. (2-F· Th~ spl!n;ise, ~hild; parent, brother or sister: ·' of that ~tson as a conseqbence of "b()dily injury" or "pers6rta.l and adverti$'ing injury''. to the person.·. at wh~-any .. -9fo the employme~r~lalf:ld . . praetip3s described in Paragrap~~}, (b), or {9} above is directed. · ' · This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity; and (2) To any obligation to share damages: with or repay someone else who musf pay damages because of the injury. s. Asbestos (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of the "asbestos hazard". (2) Any damages, judgments, settlements, loss, costs or expenses that: Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (a) May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not have occurred in whole or in part but for the "asbestos hazard"; (b) Arise out of any request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, encapsulate, contain, treat, detoxify or neutralize or in any way respond to or assess the effects of an "asbestos hazard"; or (c) Arise out of any claim or suit for damages because of testing for, monitoring, cleaning up, removing, encapsulating, containing, treating, detoxifying or neutralizing or in any way responding to or assessing the effects of an "asbestos hazard". t. Violation Of Statutes That Govern E- Mails, Fax, Phone Calls Or Other Methods Of Sending Material Or Information "Bodily injury", "property damage", or .. "personal and advertising injury" arising ·. :;. :·,directly or indirectly out of any action or omission that violates or is alleged to vfo~te: J1.> ·:·l'he Telephone Consumer Protection Act (~Pf>A), including any amendment of olactditieQ to such law; (2) . ,The:CAN~SPAM Act of 2003, including , ,:,:':'.anf~{Tlendment of or addition to such law;'of.: · (3)i;-:Any statGte, qfdi"mttWe, or regulation, -~ther than th~~:1:CPA or-CAN-SPAM Act 0(·2003, -~ 'prohibits'\or limits the sending;,;(rarismitting, con'11'1'iunicating or distributionpf material or tnformation. Damage To Premi$QS ijented To You - Exception For Damage By' Fire, Lightning or Explosion Exclusions c. through h. and k. through o. do not apply to damage by fire, lightning or explosion to premises rented to you or temporarily occupied by you with permission of the owner. A separate Limit of Insurance applies to this coverage as described in Section D. -Liability And Medical Expenses Limits Of Insurance. Page 9 of 24 BUSINESS LIABILITY COVERAGE FORM 2. Applicable To Medical Expenses Coverage We will not pay expenses for "bodily injury": a. Any Insured To any insured, except "volunteer workers". b. Hired Person To a person hired to do work for or on behalf of any insured or a tenant of any insured. c. Injury On Normally Occupied Premises To a pers<;:m injured on that part of premises you own or rent that the person normally9ccupie§,. d. Work;rs' Comp~nsation And Similar _W,IY,,S . . ·· To a · person, . whether or not an "employee" of any in.sµrei:I, if benefits for the "bodily injury" c1r:e.payable or must be provided under.a, workers' compensation or disability ~nefits law ora:similar law. . •· ' ~ ... . .. e. Athletics Actjvities . To a person inju.red· while practicing, instructing or particip~ting in any physical exercises or games; . :sports ·.or athletic contests. · · · f. P.R>duct$..;completed Operations 11$Zard ilncluded with the "products-completed operations hafard". ·· .9:. Business Liability Exclusions \ Excluded under BUSll')e$s Liability Coverage. C. WHO IS"l~N· INSURED 1. If you are desf~ated in the D~Pl~rations as: a. An indiv1dt1al, you and your spouse are insureds, but only with respect" to the conduct of a business of which you· are the sole owner. · b. A partnership or joint v~nWre, Y® are an insured. Your members,. 'your partner,;;, and their spouses are also insureds, but only with respect to the conduct of your business. c. A limited liability company, you are an insured. Your members are also insureds, .. · but only w~h respect to the conduct of YQUr' business. Your managers are insureds; but only w~h respect to their duties as your managers. d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only w~h respect to their liability as stockholders. Page 10 of 24 e. A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees. 2. Each of the following is also an insured: a. Employees And Volunteer Workers Your "volunteer workers" only while performing duties related to the conduct of your business, or your "employees", other than either your "executive officers" (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" or "volunteer workers" are insureds for: (1) "Bodily injury" or "personal and advertising injury": (a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), or to a co-"employee" while in the course of his or her employment or performing duties related to the conduct of your business, or to your other "volunteer workers" while performing duties related to the co~duct of your business; (b}To .tt.:ie spouse, child, parent, . . brothet · .or sister of that co- . "employ.1' or that "volunteer WQrker" as a consequence of Para9raph (1)(Q).-above; ·(c) For which :t~re .is any obligation to share:oamages .¥,fith or repay someor,~-r else who: · must pay dam~ges because. of the injury described in Parag~phs (1)(a) or (b) above; qr · (d) Arising out ofhis or her providing or failing to provide professional health care services. If you are not in the business of providing professional health care services, Paragraph (d) does not apply . to any nurse, emergency medical technician or paramedic employed by you to provide such services. (2) "Property damage" to property: (a) Owned, occupied or used by, Form SS 00 08 04 05 (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any per~Pri (other than your "employee" or "volur;iteef: worke('), or any organization whi!&-~cling as.YQOr real estate manager. c. Temporary 1 :/Ci.stodians Of Your • .:'Property . .• . . . Any pe~6n or :6tgani_:z;a,iprt having proper temporary cus,tQdy of ;yoi.ir property if you die but only:·::.<:" ·. •· ,;::,.· · ' •• •"-'.!, ,, (1) With res~~ tp::•iiability-~~si;J bUt.(?f the maintena~ or use of ff1~tpropeizy; and (2) Until your leg~J: ~epre't$ntative has been appointed:• · · ·• · d. Legal Representativ;~l(¥:011Die YQµr)~gal representative i(you die':i::,out onfywitb respect to duties as such; :That ·. :,i'epresentative will have all your rl£tl'lts and duties underlf,is insurance. ·-•~ Unnamed Subsidiary ,•' ,, :·: A.r)y SJJbsidiary arid, i-sµbsidiary thereof, of ypurs which,~;a l~gaffy ind<)rporated entity of which .yfii own a fina~ial interest of more thatj 50% of the voting stock on the effective ~ of this Cove.~ge Part. The insu~~ affordeif:.herein:}or _any subsidiary not:sh~ Jn the -:~arattQO~ as a named insured does,·:ttot apply Jo • • • , , ~_;': t-:, ' ,;', 0 InJury or damage with resi,ect-~which M insured under this insrJr:ance. is'' alscf a~:- insured under another policy or w~uld be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or forfuf other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM b. Coverage under this provision does not apply to: (1) "Bodily injury" or "property damage" that occurred; or (2) "Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment'' registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co-"employee" of the person driving the equipment; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. -5~\ 01),~ator of Nonowned Watercraft . With r~pect to watercraft you do not own that :_ is lessJl'ian 51 feet long and is not being used :,.,'{t9:t4)'1'y,"perso~ for a charge, any person is an , .: inslireld whi!EJJ>p~rating such watercraft with . ?your p~ission/ .. Any other person or · ·'· · organiZEi~n respo~ple for the conduct of SU@" persotHs also ~n insured, but only with r~~ct to llarli~ arising out of the operation of lfte. watercraft, and, .only if no other insuri3-oce of any kino ·1s avaltable to that person "or otganiZc;i~d~ for this ii~6llity. 0 ,,,, However, no . ~)'$tin or organl%alion is an insured with resp~t. to: -"a. "Bodily injury";t9_ 1;1 cc;>~':'.~r:nployee" of the person operatingtnewatercraft; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 6. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a. through f. below are additional insureds when you have agreed, in a written Page 11 of 24 BUSINESS LIABILITY COVERAGE FORM contract, written agreement or because of a permit issued by a state or political subdivision, that such person or organization be added as an additional insured on your policy, provided the injury or damage occurs subsequent to the execution of the contract or agreement, or the issuance of the permit. A person or organization is an additional insured under this provision only for that period of time required by the contract, agreement or permit. However, no such person or organization is an additional insured uhder this provision if such person or organization is included as an ac;iqitioiial insured by· an endorsement issued by us and made a ~rt of this. Coverage Part, including all persOJ'ls or org~nizations added as additional insureds under the specific additional insured coverage grantsJn Section F. -Optional Additional lnsur9(1 Coverages. a. Vendors Any person(s) or organization(s) (referred to below as vendor), bl!t only with, respect. tq "bodily injury" or "property,,damage" arising out of "your products" which are distributed or.°sold ill the regular course of the W3ndor's business and only if this Coverage Part provides CQVerage for "bodily injury" or "property damage" included within. the "products-completed operations hazard". (1) The insurance afforded to the vendor ... is · subje<:t to the following additional exclus1qns: Page 12 of 24 This irtsurance does not apply to: (a) "Bodily injury" or "property damagel' fqr which ttle. vendor)s obligated to . pay . damages .. by reason of the assumption of liability in a contract or agreement This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (b) Any express warranty.· unauthorized by you; (c) Any physical or chemical change in the product made intentionally by the vendor; (d) Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (e) Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; (f) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (g) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (i) The exceptions contained in Subparagraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in ce>nne,ction with the distribution or sale of the products. (2) This' Insurance does_ not apply to any . insured person Qt ·:organization from · ·.· whom you have acquirechuch products, . or any ingredient, part: or container, entering infu, accompanying or containing such products. ·· b. Lessors Of Equipment (1) Any person: or organization from whom you lease equipment; but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person or organization. Form 55 00 08 04 05 (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. c. Lessors Of Land Or Premises (1) Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of t~at part of the land or premises leased to you_. (2) :with respectto the insurance afforded to these additional insureds, this insu,:ance does not apply to: (@f Any "occurref)CEl" which takes · · place. ~-fter yc,u: cease to lease that land :. or. , oe a tenant in that premi~.es; or (b) Structural alte~,tions, new construction or . demolition operations ·.performed. by or on behalf of such person or organization. d. Arcl:'tltects, Engineers Or Survey~~$ .· Jf) Any.architect, engineer, or sur:veyor, but only with respect to liability f0r. "bodily injury",. •property damage" or "~ooal and advertising injury" caused, in whole· .. .· or in part, by your acts or omissions or .,::-:>~ acts.or omissions of those acting on your behaif: (a) ln.~xmnection with.your premises; or· (b) In the performance ·of your ongoing operations p~rformecf by you or on your be~aifi: .. (2) With respect to the ln$uranbe c1fforded to these additionai insureds1 · the following additional exclusion applies: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury". · arising out of the rendering of or ttie failure to render any professional services by or for you, including: (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM e. Permits Issued By State Or Political Subdivisions (1) Any state or political subdivision, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (b) "Bodily injury" or "property damage" included within the "products- completed operations hazard". f. Any Other Party (1) Any other person or organization who is not an insured under Paragraphs a. through e. above, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (a) In the performance of your ongoing operations; •(b) In. connection with your premises owned by or rented to you; or (~) tn connection with "your work" and •. · included . within the "products- ·. C()mpleted Operations hazard", but odlY,if (i) 'The W(jtten &mtract or written agreem,ent reqt.,lires you to provide such · ooverage to $UCh additional insured; and (ii) · Th,is Coverage Part provides coverc19e f9r:. "bodily injury" or "property • --damage" included within the "products- completed operations hazard". (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: Page 13 of 24 BUSINESS LIABILITY COVERAGE FORM (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. The limits of insurance that apply to additional insureds ar~ .de.scribed in Section D. -Limits Of lnsurarice •. How this: insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E~·.;.. Liability And Medical Expenses General Conditions. · · No person or orga,:iiz1?tion .. fs an insured with respect to the condµc;f·of any .curreflt or. past partnership, joint .verifure or limited liability company that is not shown lllf? a Named Insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 1. The.M,ostWe Will Pay l'h~ · · Limits of Insurance shown 'tn the Declarations and the rules below fix the most .ie will pay regardless of the number of: ' · a; -. Insureds; b. Cijiims ma~~ or "suits" brought; or c. Persons or organizations making claims or bringing •~uits". .. 2. Aggregate Lltriits The most we wilt pay for: a. Damages bec~use ~f "bodily injury" and "property damage" included in tn~ "products-completed opEtfations ha.zarq" is the Products-Completed Operations Aggregate Limit shown in the Declarations. b. Damages because of all other "bodily injury", "property damage" or "personal.· · and advertising injury", including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations" owned by or rented to you. "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. Page 14 of 24 This General Aggregate limit does not apply to "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a. or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one "occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Personal And Advertising Injury Limit Subject to 2.b. above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. · 5. Damage To Premises Rented To You Limit :The Damage To Premises Rented To You Umit _is the most we will pay under Business LiabiUty Coverage for damages because of "property damage" to any one premises, while · · rented-fp you, or in the case of damage by fire, :)ightning or e~Josion, while rented to you or _ temporarily occupied by you with permission of the owner.·•·· ·· ·· In the "case. of damage by fire, lightning or e~plosion, tne:Qamage to Premises Rented To You ·.Limit applies to all dfl!ti'\age proximately caused· by the same: 'event, ¥Jhether such damage.results from-fire, lightn"ih~ or explosion or any combinatiottofthese. ·· 6. How Limits Al)p~Y To AdditionaJ_lnsureds The most we will pay on be.half Of a person or organization who is an ._additional insured under this Coverage Part is the lesser of: a. The limits of insurance specified in a written contract, written agreement or permit issued by a state or political subdivision; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section. Form 55 00 08 04 05 If more than one limit of insurance under this policy and any endorsements attached thereto applies to any claim or "suit", the most we will pay under this policy and the endorsements is the single highest limit of liability of all coverages applicable to such claim or "suit". However, this paragraph does not apply to the Medical Expenses limit set forth in Paragraph 3. above. The Limits of Insurance of this Coverage Part apply separately to each consecutive annual period and to any remaining period~f less than 12 months, starting with the beginnifffd the policy period shown in the Declarations,'-•,jnless the_: :policy period is extended after issuc;ince for an additiohal period of less than 12 months«·: Ill that ~>:the additional period will be deemed part of tt:,e)ast pr~eding period for purposes of determiningtt,e Limitspf lnsu~~- E. LIABILITY .AND.JviEDJCAL EXf>ENSES GENERAL C0NDt"TI:ONS ;• . ·'.. : : •/. ,'. 1. Bankruptcy Bankruptcy or ins.olven9tof th~.ih~urector of the insured's estate wilt" not relie\le us of ou~ obligations under this CoVtrage Par:t. 2. Duties In The Event . :.Of' '.:'.bccurrer)ce, Off!mS:ti·Cialm Or Suit · ··• a'. .; N:~tice Of Occurrence Or Offense: '( ,, • • ,o You or anY:additional insured must ~e to it that we · are notified as soon ~s .. practicable of aq .''occurrence" or 'an · :·:o~nse which may ·res1;1lt. in a claim. To tf'ie?'extent ~Ible, noticeishould include: (1) How, W.~n and whereiftie "occurrence" or offet\se took place; '.:" · (2) The ttaines and , ad~~esses :of any injured· pe~nl~~ 'witne~8$/aq~, , . (3) The nature a~d locatiQ:rtj:,l any injury or damage aristng: out, .. of ttts: "occurrence" or offer,$8. ·: . b. Notice Of Claim If a claim is made or "suit" is brought against any insured, you or any additional insured must: (1) Immediately record the specifics of the claim or "suit" and the date receivett; and (2) Notify us as soon as practicable. You or any additional insured must see to it that we receive a written notice of the claim or "suit" as soon as practicable. c. Assistance And Cooperation Of The Insured You and any other involved insured must: Form 55 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit"; (2) Authorize us to obtain records and other information; (3) Cooperate with us in the investigation, settlement of the claim or defense against the "suit"; and (4) Assist us, upon our request, in the enforcement of any right against any person or organization that may be liable to the insured because of injury or damage to which this insurance may also apply. d. Obligations At The lnsured's Own Cost No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. e. Additional lnsured's Other Insurance If we cover a claim or "suit" under this Coverage Part that may also be covered by other insurance available to an additional insured, such additional insured must submit such claim or "suit" to the other insurer for defense and indemnity. • ·.:However, this provision does not apply to the extent that you have agreed in a wiiften contract, written agreement or R8~it that this insurance is primary and ••'m)r'i-contrit',)1.Jtory with the additional insured's~Wnjnsurance. , • f. Kn9Wf~dge .. OfAn Occurrence, Offense, .¢lalri1.:Qr Suit · · ' ' "f>aragrapf\S.~'. and b. apply to you or to any additio~I insu~i:f"':9fl,IY when such "occorrence" offense; dairtt, or "suit" is kn~wn to: , , ,· ., . ·'/· ', (1) You or:~Y· additional i~red that is an indi\l!dital; (2) Any pari~~t,.if you, oi:ian additional insured is a partneistiip; (3) Any manager, if you or an additional insured is a limited liability company; (4) Any "executive officer" or insurance manager, if you or an additional insured is a corporation; (5) Any trustee, if you or an additional insured is a trust; or (6) Any elected or appointed official, if you or an additional insured is a political subdivision or public entity. Page 15 of 24 BUSINESS LIABILITY COVERAGE FORM This Paragraph f. applies separately to you and any additional insured. 3. Financial Responsibility Laws a. When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, the insurance provided by the policy for "bodily injury" liability and "property damage" liability will comply with the provisions of the law to the ext~nt of. the coverage and limits of insurance required by that law. ' :· ," b. With· respect :to "mobile equipment" to which this Insurance applies, we will .provide any ,liability, uninsured motorists, · underinsiired moforists, no-fault or other coverage required l:W ~~y motor vehicle law. We will provicle·the required limits for those coverages.-,-' . 4. Legal Action Amii:rist Us No person or organization has a right under this Coverage Form: · · · a. To join us as a party•Ot:.o,therwise bring us ·.· into a "suit" asking for damages fro~ aff ir1suted; or · b. : 'f6 sue ·us on this Coverage For01'.unless · all of its temis have been fully complied with. 'A person or organization may sue us to recover on :em _agreed settlem8'it·.C>f on a final judgment against an· insu~;.:but ·we wiU: not be liable for damages that aie not payable Under the terms of this insurance :or that are irt .excess of the applicable limit of insuran~~ An agreed settlement me~ns a settlerneint and r~se of liability signed by us, , the insur89 anCii .,the claimant or the claimant's legal repn9Sentative. . 5. Separation Of Insureds · '· Except with respect to the Limits of lns~rande, and any rights or duties specifically assigned in this policy to the first Named Insured, this insurance applies: a. As if each Named Insured were the only ... Named Insured; and b. Separately to each insured against whom a claim is made or "suit" is brought. 6. Representations a. When You Accept This Policy By accepting this policy, you agree: (1) The statements in the Declarations are accurate and complete; (2) Those statements are based upon representations you made to us; and Page 16 of 24 (3) We have issued this policy in reliance upon your representations. b. Unintentional Failure To Disclose Hazards If unintentionally you should fail to disclose all hazards relating to the conduct of your business at the inception date of this Coverage Part, we shall not deny any coverage under this Coverage Part because of such failure. 7. Other Insurance If other valid and collectible insurance is available for a loss we cover under this Coverage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when b. below applies. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. b. Excess Insurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis: (1) YourWork That is Fire, Extended Coverage, Builder's Risk, Installation Risk or .~imilar coverage for "your work"; . (2) .-Premises Rented To You ; , .. ," .· (3) That Js fire, lightning or explosion jryst1rance::1·for premises rented to you or temporat~~ occupied by you with . · pennission oftl'te owner; Ten~ritLiability : ... That is i~~urance{pur¢hased by you to · cqver your .,liability as.:,a tenant for "property dl;lmage" to premises rented to you 0.r. temporarily occupied by you with pertrti$sion of the owner; '. •" (4) Aircraft, Auto.Or W-atertraft If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Section A. -Coverages. (5) Property Damage To Borrowed Equipment Or Use Of Elevators If the loss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion k. of Section A. - Coverages. Form 55 00 08 04 05 (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add Others As An Add.ltlonal Insured To This Insurance . -· .. . ·. That is 6ttter insurance available to an additional insured. However, the fqff.6v.,ing provisions ·· apply to Qtner insurance available to any person _or organizatio~: who is an additionat_.iiis'ured underttiisCc,verage Part: (a) Primary Insurance ·when Required By Contra~ This insurance:· is prin').ary if you. •·. have agreed in a ·written contract, · written agreement or per:mifthat tti.is. insurance be primary, •jt other insur~nce is also primary,:,We will share: with all that other insuran~e by the method described· in c~ below . . :--(b; Primary And Non-Contributory To·:.··. ·other Insurance When Re.quired By Contract If. }-0u have agreed in <:!:Written contract, written · agreement or permit thaf this insurance.>'is primary and. non-GOl'lw!butory with the additional insi:ire,d's own insurance, this .. insurance .·· is primary and we will not · seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to . · other insurance to which the additional insured has been added as ari additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self- insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other insurance permits contribution by equal shares, we will follow this method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each /'.insurer's share is based on the ratio of its · · applicable limit of insurance to the total applicable limits of insurance of all insurers. fl. '. Transf• Of Rights Of Recovery Against ·' )lthers To Us ···.a. Transfe.r:Of Rlg_hts Of Recovery If th~ insured ha$ rights to recover all or ... part ·· · ·c,f _ any · payment, including • :supple~ntary Payments, we have made ·tinqer this Coverage fait,.>those rights are transferred to us ... The insured must do nothing after loS~ tb impair:them. At our request, the 1nsured will bring "suit" or transfer those rights to us, .and help us enforce them.' · This condition does not apply to Medical Expen.~s Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. Page 17 of 24 BUSINESS LIABILITY COVERAGE FORM F. OPTIONAL ADDITIONAL INSURED COVERAGES If listed or shown as applicable in the Declarations, one or more of the following Optional Additional Insured Coverages also apply. When any of these Optional Additional Insured Coverages apply, Paragraph 6. (Additional Insureds When Required by Written Contract, Written Agreement or Permit) of Section C., Who Is An Insured, does not apply to the person or organization shown in the Declarations. Tnese coverages are subject to the terms and cond.itlons ;3pplicable to Business Liability Coverage in )his policy, except as provided below: · 1. AcfWtt6nal l!l&Ur~d .;,;• Designated Person Or Organization WHO IS AN INSURED _unaer Section C. is amended to incluae.. as an additional insured the person(s) or pr~riization(s) shbwn ~ the Declarations, blit,only with respect to Hability for "bodily injury", "property· damage"· or "personal and advertising injury0 caused, in whole or in part, by your -~ts or on:iissions or: • the acts or omissions of those acting on your· . behalf;_ . . a, . In · the · performance of your ongoing :operations; or b, In connection• with your premises· owned · :, by or rented to you. · 2. Aclditional_ Insured • ·M.anagers Or Lessors Of Premises · a. WHO IS AN INSURED unqet Section C. is amended tQ include as an aclditional insured the person(s) or organizatiOtl(s) shown in the Declarations as an Additional Insured - Designated P~on Or Organizati:on; but only with respect to liability arising out of the ownership, maintenance or US€ of that part of the premises leased to you and shown in tile Declarations. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) Any "occurrence" which takes plate after you cease to be a tenant in that premises; or (2) Structural alterations, new Page 18 of 24 construction or demolition operations performed by or on behalf of such person or organization. 3. Additional Insured -Grantor Of Franchise WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Granter Of Franchise, but only with respect to their liability as granter of franchise to you. 4. Additional Insured -Lessor Of Leased Equipment a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured -Lessor of Leased Equipment, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. • 5. Additional Insured -Owners Or Other -Interests From Whom Land Has Been ·Leased \·' . a. · \/VHO IS AN INSURED under Section C. is amended to include as an additional inst.ifod the person(s) or organization(s) stiown in the Declarations as an Additional Insured -OWQers Or Other Interests From Whom t:.:and Has Been Leased, but only with :respect fo • liability arising out of the . owhelihip,, maintenance or use of that part • ·· of the !arid leased to you and shown in the Oeglarations. · · b. With r~spect toJt.Je. insurance_ afforded to these aclditional }tnsureds, ···the following additional e>«,hlsions apply: :: This insurartCE3:does not appJ'y-to: (1) Any "occurrence"· ·that takes place after you cease to lease that land; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 6. Additional Insured -State Or Political Subdivision -Permits a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the state or political subdivision shown in the Declarations as an Additional Form SS 00 08 04 05 Insured -State Or Political Subdivision - Permits, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) "Bodily injury", "property damage" or "pert;pnsf and advertising injury" arislng out of.,,operations performed for the state odnunicipality; or (2) ,::, "Bodily :Ir:lj~' or "property damage" · inclwded · · iJt '.Jhe "product-completed opetations'.' tjazar~. · 7. Additionafinsur~:-V.•ri~ors .. a. WHO IS AN ;fN'Sftt.REiD undijr Sectioo C. is amended to(,:Jriclude as,s-1:li'n add{tional insured the· person{s.), or'.Qf'ganiz~tion(s) (referred to below aifvendor)'.shown in the Declarations as ar( Additional 1nsured ... Vendor, but only with( :f!:l,SP,eetHo "boc:tilY. ·•· injury" or "property daniage11 ;srising 04,fof ''.your-:-:products" which are distriQ(.tfec! or . -~ici in the regular course of the:.i~n-dor's -:'business and, only if this Coverag'e Part , · provides coverage for "bodily injUfy" ,or "property damage" included withfri th~ · .·. "p~oducts-comp_let~i:tJ~p~rations hazard". b. Toe irisuri:w~.,:afforded:!!p . the vendor is subject to tl)efollowing additk:>rial exclusions: (1) This iniurance does nbf~pply to: (a) "B~ily injury,'(:/ .;br '.'prciperty darnaQe" focwl'!ich the vendor is obligat~d lo· .. : pay . damage·~ :,cl~y reason of the . ••u'!llPtion -of liability in a contract oragr:eeme~t:. This exclusion' does not ~,ppiy :to liability for damages th.at the vendor would have in the absence of the contract or agreement; (b) Any express warranty •~ ·· unauthorized by you; · · (c) Any physical or chemical change in the product made intentionally by the vendor; (d) Repackaging, unless unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; Form 55 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (e) Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; (f) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (g) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (i) The exceptions contained in Subparagraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes · 't<:> make in the usual course of .bi;isiness, in connection with the :distribution or sale of the _:,. procf~ts. ·i'(ij Thittiis.~rance doe$. not apply to any ·-,;:,,.insured: p'erson .~/-o:rg,anization from / <wt,om you /have ,a~uired such ptbducts, .gr?a'hy ingreijient, part or container;·,> · entering:, · into, accomp~hying or corit~ning such . productst/· . . 8. Additional Insured ~•¢ootrotii~g Interest WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Controlling Interest, but only with respect to their liability arising out of: a. Their financial control of you; or b. Premises they own, maintain or control while you lease or occupy these premises. Page 19 of 24 BUSINESS LIABILITY COVERAGE FORM This insurance does not apply to structural alterations, new construction and demolition operations performed by or for that person or organization. 9. Additional Insured -Owners, Lessees Or Contractors -Scheduled Person Or Organization a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured,;: Owner, Lessees Or Contractors, but;oniy-with re~pect to liability for "bodily injury", "property" damage" or "personal . anti adveijislrig injury" caused, in whole or · in part, 'by your _acts or. omissions or the acts -ot omissions of thqse acting on your behalf:· .. . . (1) In the perfo):'mance of your ongoing operation~· for the adciltional insured(s); or (2) In connectiorr , with ~your work" performed for th.at. additiOhal insured and included withi,n :. the "products~: completed operations hazardll; :but ·,only if this Coverage Part provides . coverage for "bodily injluy" or "property damage" included within the "products~completed oper~tlons hazard". b. · With respect to the 'Jnsorance afforded to these 'additi11nal insureds, this insurance does not apply to "bodily i,:ijury", "property damage" , pr "personal \an advertising injury" arising out of the rendering of, or the failure t9 render, ·"any proft!ssional architectural, ·engineering or· surveying services, including: · · (1) The preparing, approV,ing, or failur~.:tt> prepare or approve, maps~ , shop· drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (2) Supervisory, inspection, architectural :, · or engineering activities. 10. Additional Insured -Co-Owner Of Insured Premises WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or Organization(s) shown in the Declarations as an Additional Insured -Co- Owner Of Insured Premises, but only with respect to their liability as co-owner of the premises shown in the Declarations. Page 20 of 24 The limits of insurance that apply to additional insureds are described in Section D. -Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. - Liability And Medical Expenses General Conditions. G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 1. "Advertisement" means the widespread public dissemination of information or images that has the purpose of inducing the sale of goods, products or services through: a. (1) Radio; (2) Television; (3) Billboard; (4) Magazine; (5) Newspaper; b. The Internet, but only that part of a web site that is about goods, products or services for the purposes of inducing the sale of goods, products or services; or c. Any other publication that is given widespread public distribution . . :However, "advertisement" does not include: a: · the design, printed material, information or in,ages contained in, on or upon the packaging or labeling of any goods or ·· . products; c;,r . ~ ' '• · ·b. An in~I/~. conversation between or am~g'persons through a computer network. 2.' "Advel'ti~lng,_ idea" 'rrfeans any idea for an "advertisement". · 3. "Asb~.tos haz~rd" means··en exposure or threat of exposure to::tt,e actt;,al or alleged properties of asbe.sros :l':md inclt:i:d¢s the mere presence ofasbestos:ln any form/ 4. "Auto" means ~{ tand motor velniQle, trailer or semi-trailer deslgi:lfild for travel on public roads, including ahy-~tta~ed machinery or equipment. But "auto" does not include "mobile equipment". 5. "Bodily injury" means physical: a. Injury; b. Sickness; or c. Disease sustained by a person and, if arising out of the above, mental anguish or death at any time. 6. "Coverage territory" means: Form 55 00 08 04 05 a. The United States of America (including its territories and possessions), Puerto Rico and Canada; b. International waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in a. above; c. All other parts of the world if the injury or damage arises out of: (1) Goods or products made or sold by you in ~ territory described in a. above; ', ' (2) The.activities of a person whose home 'rs• in the · territory described in a. above, but is. away for a short time on your..busines~; or . (3) "Personal . and . ,apvertising injury" offenses that t~~ place through the Internet or Sif:nilar electroni~rtleans of communication provided the irisured's responsibility to pay damages is determined in the Uh«:ed States of America (including its territories and possessions), Puerto Rfcif or Gaoada, in. a_ •·· "suit" on the merits acoordtng to. .the· substantive· law in such territory, or'•:in a se*errient we agrne to. :'"' ,, 7. uEl~ctronic data" means information, :(acts or ptograms: a~ Stored as or on; b. ·Q~ated or used on: or c. TransmittetU6 or from computer soff,ware, including .. systems and applications ~~are, hard .. Qr floppy disks, CD-ROMS, tapes, drives, cell:$.,::. data processing devl~S· or .ar:iy other ~dia Wh_ich are used with electronic;3Uy ·. controlled equipment. '; ,·:. " 8. "Employee" includes a "leased Worker''.' "Employee" does not include a "terliporary worker". 9. "Executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document. · 10. "Hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. 11. "Impaired property" means tangible property, other than "your product" or "your work", that cannot be used or is less useful because: a. It incorporates "your product'' or "your work" that is known or thought to be defective, deficient, inadequate or dangerous; or Form 55 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM b. You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by: a. The repair, replacement, adjustment or removal of "your product" or "your work"; or b. Your fulfilling the terms of the contract or agreement. 12. "Insured contract" means: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire, lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner is subject to the Damage To Premises Rented To You limit described in Section D. -Liability and Medical Expenses Limits of Insurance. b. A sidetrack agreement; c. Any easement or license agreement, including an easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad; . J:I, ,Any obligation, as required by ordinance, 1o indemnify a municipality, except in connection with work for a municipality; e. AA elevator maintenance agreement; or :_f; -fh~t part of any other contract or agreement p~rtaining to your business (includfrig ah · . indemnification of a ml,lf)'iclpality in ·•-~nnection with work ... perfor~d. fpr a rnanicipality) under which '.you assurrte · the tort li9bility of another par.ty to pay for "bodily· ii'tjocy" or "property danu~ge" to a third' person.or.organization, provided the "bqdily injury"· -or "property damage" is caused, in whole or in part, by you or by .itlose acting on .your behalf. Tort liability means a liabi!lty that would be imposed by law: in th,i'f..absence of any contract or agreement. Paragraph f. includes that part of any contract or agreement that indemnifies a railroad for "bodily injury" or "property damage" arising out of construction or demolition operations within 50 feet of any railroad property and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing. However, Paragraph f. does not include that part of any contract or agreement: Page 21 of 24 BUSINESS LIABILITY COVERAGE FORM (1) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Giving directions or instructions, or fa1ling to give them, if that is the primary cause of the injury or damage;or (2) .; Under which the insured, if an architect, .engineer or surveyor, assumes liability for an injury or damage atising out of the insured's rendering or failure lo render professional -services, inch.ming those listed in (1) above and supervisory, inspectiori, architectural or engineering activities. 13. "Leased worker" means a. person , leased to you by a labor leasing· .firm under an agreement between you and the labor leasing firm, ·to·perform duties related to the conduct of your business. "Leased worker" does not include a "temporary worker". 14. "Loading or unloading" means the handitng. of property: a. ·· After It is moved from the place where it is a·ccepted _for· movement int_o or onto an aircraft, watercraft or "auto"; b. While it is 'in or on an aircraft, watercraft or "auto"; or C. While it is being moved from an aircraft, watercraft or "auto" to the pla98· where it is finally delivered; but "loading or unloading" does not indude the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or "auto". 15. "Mobile equipment" means any of the following . types of land vehicles, including any attached machinery or equipment: a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; b. Vehicles maintained for use solely on or next to premises you own or rent; c. Vehicles that travel on crawler treads; d. Vehicles, whether self-propelled or not, on which are permanently mounted: Page 22 of 24 (1) Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equipment such as graders, scrapers or rollers; e. Vehicles not described in a., b., c., or d. above that are not self-propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types: (1) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment; or (2) Cherry pickers and similar devices used to raise or lower workers; f. Vehicles not described in a., b., c., or d. above maintained primarily for purposes other than the transportation of persons or cargo. However, self-propelled vehicles with the following types of permanently attached equipment are not "mobile equipment" but will be considered "autos": (1) Equipment, of at least 1,000 pounds gross vehicle weight, designed primarily for: (a) Snow removal; ·(b) Road maintenance, but not construction or resurfacing; or (c) Streetcleaning; (2) Cherry pickers and similar devices mounted on automobile or truck chassis. and used to raise or lower workers; and (3) Air compressors, pumps and generators, · including: spraying, welding, ·. building . cleaning, geophysical exploration,_ iighting and well servicing equipment. 16. "Occurrence" means an . accident, including continuous or repeated exposure to substantially the same general harmful conditions. 17. "Personal and advertising injury" means injury, including consequential "bodily injury", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; Form 55 00 08 04 05 c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that the person occupies, committed by or on behalf of its owner, landlord or lessor; d. Oral, written or electronic publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; e. Oral, w~itteri or electronic publication of material that viol.ates a person's right of priv.etcy; · · · f. Copying, in. your "advertisement", a :pefaon's . or. ~rganization's "advertising · idea" orstyle of "i;:idverti$ement"; g. Infringement ofcopyright: slogan, or title of any literary : or artistic work, in your "advertisemenf'._; or ·.. . ,. . h. Discrimination or humiliation that results in injury to the feelings· or reputation of a natural person. · ·· 18. "Pollutants" means any solid, .liquid, gaseous or thermal irritant or contaminant, 'including SlllQke, vapor.,-~t,· fumes, acids, alkalis, chemicals and w8$te'., ·Waste .includes materials to be recycled, reconditioned or ~claimed. . . 19. ''Products-completed operations hazard"; • ·a; Includes all "bodily injury" and "property· :·:damage" occurring .away from premises y~u -own qr rent and arising out of "your product" or "your work" exc.ept: (1) Prodµ$ that are still-,Jn your physical possession; or (2) Work th~t has pot yet beer,_ ¢ornplf;lt~d or abandoned:. Howevetr;::ryour work''. will be deemed to be completed at toe earliest of the following times: ' (a) When all of the work called·for in your contract has been completed. (b) When all of the work to be done at the job site has been completed if your contract calls for work at. •. more than one job site. (c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. The "bodily injury" or "property damage" must occur away from premises you own or rent, unless your business includes the selling, handling or distribution of "your product" for consumption on premises you own or rent. b. Does not include "bodily injury" or "property damage" arising out of: (1) The transportation of property, unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by you, and that condition was created by the "loading or unloading" of that vehicle by any insured; or (2) The existence of tools, uninstalled equipment or abandoned or unused materials. 20. "Property damage" means: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the :/ .. J:>hysical injury that caused it; or b. · Loss of use of tangible property that is not phy$ically injured. All such loss of use ~tia,11 be deemed to occur at the time of ' "occurrence" that caused it. •·· .As used in :this definition, "electronic data" is • • • · not tang~le property. 21. "Sµir meal)$ a civil. proceeding in which darjlages bece1use of "bodily injury", "property damagf;)" or "personal ar:id ·advertising injury" to which this insura,:ice .appli~g are alleged. "Suit" includes: a. An arbitratiQn proceeding in· which such damages are claimed and•·to which the insured must submit o~ does submit with our consent; or · ·· · b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. 22. "Temporary worker" means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions. 23. "Volunteer worker" means a person who: a. Is not your "employee"; Page 23 of 24 BUSINESS LIABILITY COVERAGE FORM b. Donates his or her work; c. Acts at the direction of and within the scope of duties determined by you; and d. Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. 24. "Your product": a. Means: (1) Any goods or products, other than real property; manufactured, sold, handled, dist!'lbuted or disposed of by: (a) You; (b) Other.s trading under your name; or (~) · A person or organization whose business or :assets you have acquired; ahd · (2) Containe~ ·.·· ·(other than vehicles), equipment with such materials, parts or furnished . in connection goods or products. b. Includes: (1) Warranties or representations made at · any time with respect to the fitness, quailty, durability, performance or use of "your product"; and Page 24 of24 (2) The providing of or failure to provide warnings or instructions. c. Does not include vending machines or other property rented to or located for the use of others but not sold. 25. "Your work": a. Means: (1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or operations. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your work"; and (2) The providing of or failure to provide warnings or instructions. Form 55 00 08 04 05