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HomeMy WebLinkAboutEsgil Corporation/Safebuilt LLC; 2018-12-06;AGREEMENT FOR BUILDING INSPECTION SERVICES ESGIL CORPORATION/SAFEBUILT, LLC ~GREEMENT is made and entered into as of the /o't-11 day of -------"l~F--""'-"'=::....a...::c ..... 1.ber=~---' 20~, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and ESGIL CORPORATION/SAFEBUILT, LLC, a Delaware limited liability company, ("Contractor"). RECITALS A. City requires the professional services of a company that is experienced in building inspection services B. Contractor has the necessary experience in providing professional services and advice related to building inspection services C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. 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 practicing in the Metropolitan Southern California Area, 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 one (1) year from the date first above written. The Community & Economic Development Department Director may amend the Agreement to extend it for two (2) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of 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 during the initial Agreement term will not exceed thirty-five thousand dollars ($35,000). 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 thirty-five thousand dollars ($35,000) 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". City Attorney Approved Version 6/12/18 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 City Attorney Approved Version 6/12/18 2 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 project/location 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. City Attorney Approved Version 6/12/18 3 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 LICENSE 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 work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement 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. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 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 Mike Peterson Title Building Official Department CED City of Carlsbad Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone No. 760-602-2721 For Contractor Name Bill Elizarraras Regional California Operations Title Manager Address 9320 Chesapeake Drive, Suite 208 San Diego, CA 92123 Phone No. 858-560-1468 Email belizarraras@esgil.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. City Attorney Approved Version 6/12/18 4 16. CONFLICT 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. YesD No~ 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 notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. 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. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable City Attorney Approved Version 6/12/18 5 under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 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 Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. City Attorney Approved Version 6/12/18 6 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 Agreement. ESGIL CORPORATION/SAFEBUIL T, LLC, a Delaware limited liability company By:---~- (sign here) (Thomas Wilkas/Chief Financial Officer} By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California '!Q~Tfp:~B Community & Economic Development Director ATTEST: 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 City Attorney Approved Version 6/12/18 7 SAFEBUILT, LLC Secretary's Certificate August 9, 2017 I, Michael C. McCurdie, do hereby certify that I am the duly appointed and acting President and Chief Executive Officer of SAFEbuilt, LLC, a Delaware limited liability company (the "Company"). I further certify, in my capacity as President and Chief Executive Officer of the Company, that each of the officers of the Company listed on Exhibit A are, as of the date hereof, the duly elected or appointed, qualified, and acting incumbents of the offices set forth opposite their respective names and each is authorized to execute, in the name and on behalf of the Company, agreements, documents and instruments to which the Company is a party. [Signature page follows.] NAI-IS02924599vl IN WITNESS WHEREOF, I have hereunto set my hand on the day first set forth above. I, Bradley L. Resnick, Vice President and Secretary of the Company, do hereby certify that Michael C. McCurdie is the duly elected and qualified President and Chief Executive Officer of the Company, and that his signature set forth above is his genuine signature and that he is authorized on the Company's behalf to deliver the foregoing certificate. WITNESS, my hand as of the day first set forth above. By:~ Title: Vice President and Secretary NAl-1502924599 Name Michael C. McCurdie Loren J. Schlachet William White Bradley L. Resnick Daniel J. Haynes Thomas Wilkas NAI-I 502924599v I EXHIBIT A Officers of the Company Office President and Chief Executive Officer Vice President Vice President Vice President and Secretary Vice President and Treasurer Chief Financial Officer JONES l)AY® EsGil, LLC (CA) SAFEbuilt Wisconsin, LLC (DE) Florida Municipal Services, LLC (FL) M. T. Causley, LLC (FL) MTCI Private Provider Services, LLC (FL) SAFEBUILT HOLDING COMPANY ORGANIZATIONAL CHART Riverside Micro-Cap Fund III, L.P. (DE) SAFEbuilt Holdco, Inc. (DE) SAFE built Holding Company (DE) SAFEbuilt Arizona, LLC (DE) SAFEbuilt Carolinas, LLC (DE) SAFEbuilt Colorado, LLC (CO) SAFEbuilt Florida, LLC (DE) SAFEbuilt Georgia, LLC (GA) SAFEbuilt Illinois, LLC (IL) Independent Inspections, LLC (WI) SAFEbuilt, LLC (DE) SAFEbuilt Washington, LLC (DE) SAFEbuilt Louisiana, LLC (DE) SAFEbuilt Michigan, LLC (DE) SAFEbuilt New Mexico, LLC (NM) SAFEbuilt Ohio, LLC (OH) SAFEbuilt Oregon, LLC (DE) SAFEbuilt Texas, LLC (DE) Meritage Systems, Inc. (CO) Municipal Building Inspection Solutions, LLC LSL Planning, LLC (Ml) CLI: 202259026v I 1. ON-CALL INSPECTION SERVICES EXHIBIT "A" SCOPE OF SERVICES ✓ Consultant utilizes an educational, informative approach to improve the customer's experience. ✓ Perform consistent code compliant inspections to determine that construction complies with approved plans and/or applicable codes and ordinances ✓ Meet or exceed agreed upon performance metrics regarding inspections ✓ Provide onsite inspection consultations to citizens and contractors while performing inspections ✓ Return calls and emails from permit holders in reference to code and inspection concerns ✓ Identify and document any areas of non-compliance ✓ Leave a copy of the inspection ticket and discuss inspection results with site personnel 2. MUNICIPAL OBLIGATIONS ✓ Municipality will provide Consultant with a list of requested inspections and supporting documents 3. TIME OF PERFORMANCE Performed during normal business hours excluding Municipal holidays. ✓ Inspectors will be dispatched on an as-needed basis ✓ Consultants representative(s) will be available by cell phone and email Deliverables INSPECTION SERVICES Perform inspections received from the Municipality prior to 4:00 pm next business day 4. FEE SCHEDULE ✓ Beginning January 01, 2020 and annually thereafter, the hourly rates listed shall be increased based upon the increase in the Consumer Price Index, but not more than 4% annually ✓ Rates shall not decrease for the term of this agreement ✓ Consultant fees for Services provided pursuant to this Agreement will be as follows: Service Fee Schedule: Inspection Services 1$108.00 per hour-one (1) hour minimum • Certified ICC Building Inspector Time tracked will start when Consultant checks in at Municipalitv City Attorney Approved Version 6/12/18 8 Ae,---;l,(3 CERTIFICATE OF LIABILITY INSURANCE OA~~I THIS CERTIFICATE IS ISSUED AS A MATTER Of INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTtFICATE HOLDER. THIS CERTIFICATE DOES NOT AFARMATIVELY 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 potlcy(ias) must have ADDITIONAL INSURED pmvlslons or be endorsed. tf SUBROGATION IS WAIVED, subject to the tenns and conditions of the policy, certain policies may require an endorsement A. statement on this certificate does not confer r hts to the certificate holder in lieu of such endorseme s . PRODUCER RBN Insurance Services 303 E Wacker Dr Ste 650 Chicago IL 60601 INSURm SAFEbuilt Holding Company SAFEbuilt, LLC (See Attached) 3755 Precision Drive, Ste 140 Loveland CO 80538 COVERAGES SAFELLC-01 CERTIFICATE NUMBER: 1452462916 NSURERJSl AEf<lRDING c.OYERAGE. 1NSURERA: Hartford Fire Insurance Co. .IN!NRER ~. :. H.artrord CastJ:J.lty lrn;urance <::o ·-·· INSURERC_: Navigators Insurance Company INSURER o: Twin City Fire ln~urance Co, ___ . IM.INRERE:. Great Alllerica_n.E.&S lns .. co. INSURl!RF: F~ Mo: 312-856-9425 NAICf 19682 29424 42307 29459 37532 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOO INDICATED. NOTWffHSTANOlNG ANY REQUIREMENT, TERM OR CONDITION Of ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE SEEN REDUCED BY PAID CL.AJMS. IN$R. TYP£ 01' INSURA.HCI! ·AIIOl.:sUBR: 1:aM~,~~ LIMITS LTR W<ln..,.,... POLICY NUMBER A X COMMERCIAL GENERAL LIABILITY 83UENZV3951 lOo'J/2018 1013/2019 EACH OCCURRENCE $1,000,000 X . OMlAGl.TORI.NTE0 $300,000 Cl.AIMS.MADE OCCUR . PRE."41SES.tea.~.r.ool ~· . MEO EXP (~ooe p,,rsont $10,000 PERSONAL & IJ:)IJ INJURY s 1,000,000 GEN'LAGGREGl,TE LIMIT APPLIES PER: GENERAL A.GGREGATE . $2,000,000 X POLICY PRO-LOC PRODUCTS -COMP/OP AGG . gooo.ooo JECT OTHER: s B A.UTOlotOl!IIU! LIAIIIUTY 83UENPY9100 10I3n018 10I3/Z019 I ~"=1f~LE LIMIT • $ 1,000,000 X ANY AUTO BOOIL Y I1\UURY (Plllr p!lt'!IQn) $ -OWNEO SCHEOIJlED . . _ AUTOSONLY _. AUTOS BOOILY INJURY (Par acciCleflll $ X HIRED X NON-OWNED PROPERTY •AIMGE s _ AUTOS ONLY ~ AUTOSONLY . ll'er~rllJ $ C UMBREU.A LIAS X OCCUR CH1 SEXC885600FV 1013/2018 10/3/2019 . EACH OCClJRRENCE s 10,000.000 -X exeessuAe Cl.AIMS.MADE AGGREGATE $ 10.000,000 c-x ·--·•-" OED ~TENTIONSn s D WORKERS COMPENSATION 83WECE0623 5112/2018 5/12/2019 X PE:R : OTH• AND EMP\.OYERS' LIABILITY YIN STATUTI; . E~ "N~PRIETORIPAATNEM':XECU1IVc 0 NIA El. EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? ' (lllandatary In NHI EL DlSEA.§E :.EA EMl'LOY~ S 1,000,000 ~~~~~ ~~RATIONS below E L. OISEASE • POLICY LIMIT $1,000,000 E Pmh:,sianal Liability TER2475972 1013/2018 1013/2019 Ear:h Clam'Aggrcga!<t 5,000,000 DESCR .. TION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Addlllo<lal R...,a,b Sch..tule. may tM -.:h•d It mono sp-la ......,..wl City of Carlsbad is an Additional Insured as respects General Liability on a primary and non-contributory basis as required by a written contract. 30 days notice of cancellation to the certificate holder applies. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE VVILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Car1sbad 1635 Faraday Avenue AUTHORIZED Rl!PR£Sl'!NTATIVI! Cartsbad CA 92008 ,,-/~ ACORD 25 (2016/03) / © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ✓ ✓ _____..., ACORD* ....___,. AGBICY BN Insurance Services POUCY NUMl!IEA EE PAGE 1 EE PAGE 1 ADDITIONAL REMARKS AGENCY CUSTOMER ID: SAFELLC-01 LOC#: 0 ADDITIONAL REMARKS SCHEDULE NAICCOOE SEEP 1 NAIIIED INSURED SAFEbullt Holdln_g Company SAFEbullt. LLC fSff Attachad) 3755 Precision Drive, Sta 140 Loveland, CO 80538 EFFECTIV! Cb\T!: THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 25 FORM TITLE: Certificate of Liability Insurance Named Insureds (continued): SAFEbuilt Arizona, LLC SAFEbuilt Carolinas, LLC SAFEbuilt Colorado, LLC SAFEbuilt Florida, lLC SAFEbuilt Georgia, LLC SAFEbuilt Illinois, LLC SAFEbuilt Louisiana, LLC SAFEbuilt New Mexico, LLC SAFEbuilt Ohio, LLC SAFEbuilt Oregon, LLC SAFEbuilt Texas, LLC SAFEbuilt Michigan, LLC SAFEbullt Washington, LLC SAFEbuilt Wisconsin, LLC LSL Planning, LLC Meritage Systems, Inc. If required by a written contract. the following fonns apply on a blanket basis. General Liability: LNORTZ Page 1 of 1 Form HG0001 09 16 Additional Insureds; Primary and Non-contributory; Waiver of Transfer of Rights of Recovery Against Others to Us Auto Liability: HA9916 0312 Commercial Automobile Broad Form Endorsement includes Additional Insureds and Waiver of Subrogation Workers Compensation: WC 00 03 13 Waiver Of Our Right to Recover from Others ACORD 101 (2008/01) Cl 2008 ACORD CORPORATION. All rights reserved, The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 83 UEN ZV3951 COMMERCIAL GENERAL LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words ·you" and "your" refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy. The words "we", "us• and •our" refer to the stock insurance company member of The Hartford providing this insurance. The word "insured• means any person or organization qualifying as such under Section II - Who Is An Insured. Other words and phrases that appear in quotation marks have special meaning. Refer to Section V - Definitions. SECTION I -COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages bec:ause of ~bodily injury" or "property damage• to which this insurance applies. We will have the right and duty to defend the insured against any •suit" seeking those damages. However, we will have no duty to defend the insured against any ·suir seeking damages for "bodily injury" or "property damage• to which this insurance does not apply. We may, at our discretion, investigate any •occurrence" and settle any claim or ~uit" that may result. But: (1) The amount we will pay for damages is limited as described in Section Ill -Limits Of Insurance; and (2) Our right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments or settlements under Coverages A or B or medical expenses under Coverage C. No other obligation or liability to pay sums or perfonn acts or services is covered unless explicitly provided for under Supplementary Payments -Coverages A and B. b. This insurance applies to ,.bodily injury" and •property damage" only if: HG 00 01 0916 (1) The •bodily injury" or "property damage• is caused by an "occurrence· that takes place in the "coverage territory": (2) The •bodily injury" or "property damage• occurs during the policy period; and (3) Prior to the policy period, no insured listed under Paragraph 1. of Section II -Who Is An Insured and no •employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage• had occurred, in whole or in part. If such a listed insured or authorized •employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodlly injury,. or "property damage" during or after the policy period will be deemed to have been known prior to the policy period. c. "Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1. of Section II -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; (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 ftbodily injury". e. Incidental Medical Malpractice And Good Samaritan Coverage "Bodily injury" arising out of the rendering of or failure to render the following health care services by any "employee" or "volunteer worker" shall be deemed to be caused by an "occurrence" for: Page 1 of21 © 2016 The Hartford (Includes copyrighted material of Insurance Services Office, Inc. with its permission.) (1) Professional health care services such as: (a} Medical, surgical, dental, laboratory, x- ray or nursing services or treatment, advice or instruction, or the related furnishing of food or beverages; (b) Any health or therapeutic service, treatment, advice or instruction; or (c} The furnishing or dispensing of drugs or medical, dental, or surgical supplies or appliances; or (2) First aid services, which include: (a) Cardiopulmonary resuscitation, whether performed manually or with a defibrillator; or (b) Services performed as a Good Samaritan. For the purpose of determining the limits of insurance, any act or omission together with all related acts or omissions in the furnishing of these services to any one person will be considered one "occurrencefl. However, this Incidental Medical Malpractice And Good Samaritan Coverage provision applies only if you are not engaged in the business or occupation of providing any of the services described in this provision. 2. Exclusions This insurance does not apply to: a. Expected Or Intended Injury •Bodily injury'' or "property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to •bodily injury" or "property damage" resulting from the use of reasonable force to protect persons or property. b. Contractual Liability "Bodily injury" or "property damage" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement This exclusion does not apply to liability for damages: (1) That the insured would have in the absence of the contract or agreement; or (2) Assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement. Solely for the purposes of liability assumed in an Kinsured contracr, reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of •bodily injury" or "property damage•. provided: Page 2 of21 (a) Liability to such party for, or for the cost of, that party's defense has also been assumed in the same "insured contract"; and (b) Such attorney fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged. c. Liquor Llablllty "Bodily injury" or "property damage" for which any insured may be held liable by reason of: (1) Causing or contributing to the intoxication of any person: (2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute. ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in: (a) The supervision. hiring, employment, training or monitoring of others by that insured; or (b) Providing or failing to provide transportation with respect to any person that may be under the influence of alcohol; if the "occurrence• which caused the "bodily injury" or •property damage", involved that which is described in Paragraph (1), (2) or (3) above. However, this exdusion applies only if you are in the business of manufacturing. distributing, selling. serving or furnishing alcoholic beverages. For the purposes of this exclusion, permitting a person to bring alcoholic beverages on your premises, for consumption on your premises, whether or not a fee is charged or a license is required for such activity, is not by itself considered the business of 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: HG 00 01 0916 (a) Employment by the insured; or (b) Periorming 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 Paragraph (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) wBodily injury" or Nproperty damage" ansmg out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of wpollutants": (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 equipment that is used to heat. cool or dehumidify the building, or equipment that is used to heat water for personal use, by the building's occupants or their guests; (ii) "Bodily injury" or "property damage" for which you may be held liable, if you are a contractor and the owner or lessee of such premises, site or location has been added to your policy as an additional insured with respect to your ongoing operations 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 (ill) "Bodily injurt 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; HG 0001 0916 (c) Which are or were at any time transported, handled, stored, treated. disposed of, or processed as waste by or for: (I) Any insured; or (ii) Any person or organization for whom you may be legally responsible; (d) At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured's behalf are performing operations if the "pollutants• are brought on or to the premises, site or location in connection with such operations by such insured, contractor or subcontractor. However, this subparagraph does not apply to: (i) "Bodily injury" or "property damage· arising out of the escape of fuels, lubricants or other operating fluids which are needed to periorm the normal electrical, hydraulic or mechanical functions necessary for the operation of Nmobile equipment" or its parts, if such fuels, lubricants or other operating fluids escape from a vehicle part designed to hold, store or receive them. This exception does not apply if the "bodily injury" or "property damage" arises out of the intentional discharge, dispersal or release of the fuels, lubricants or other operating fluids, or if such fuels, lubricants or other operating fluids are brought on or to the premises, site or location with the intent that they be discharged, dispersed or released as part of the operations being perfonned by such insured, contractor or subcontractor; (II) "Bodily injurt 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 Page 3 of21 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•. (2) Any loss, cost or expense arising out of any: (a) Request, demand, order or statutory or regulatory requirement that any insured or others test for. monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, "pollutants"; or (b) Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of. "pollutants". However, this paragraph does not apply to liability for damages because of "property damage" that the insured would have in the absence of such request, demand, order or statutory or regulatory requirement, or such claim or "suit" by or on behalf of a governmental authority. 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 •oodily injury" or "property damage• involved the ownership, maintenance. use or entrustment to others of any aircraft, "auto" or watercraft that is owned or operated by or rented or loaned to any insured. This exclusion does not apply to: (1) A watercraft while ashore on premises you own or rent; (2) A watercraft you do not own that is: (a) Less than 51 feet long; and (b) Not being used to carry persons for a charge; (3) Parking an •auto• on, or on the ways next to, premises you own or rent, provided the "auto" is not owned by or rented or loaned to you or the insured; Page 4 of 21 (4) Liability assumed under any "insured contract• for the ownership, maintenance or use of aircraft or watercraft; (5) "Bodily injury" or "property damage· arising out of: (a) The operation of machinery or equipment that is attached to, or part of. a land vehicle that would qualify under the definition of "mobile equipmenr if it were not subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged; or (b) The operation of any of the machinery or equipment listed in Paragraph f.(2) or f.(3) of the definition of "mobile equipment''; or (6) An aircraft that is not owned by any 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 (2) The use of "mobile equipment" in, or while in practice for, or while being prepared for, any prearranged racing, speed, demolition, or stunting activity. i. War "Bodily injury'' or "property damage". however caused, arising, directly or indirectly, out of: (1) War, including undeclared or civil war: (2) Warlike action by a military force, including action in hindering 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. Damage To Property "Property damage" to: (1} Property you own, rent, or occupy, including any costs or expenses incurred by you, or any other person. organization or entity, for repair, replacement, HG 0001 0916 enhancement, restoration or maintenance of such property for any reason. including prevention of injury to a person or damage to another's property; (2) Premises you sell, give away or abandon, if the ·property damage• arises out of any part of those premises; (3) Property loaned to you; (4) Personal property in the care, custody or control of the insured; (5} That particular part of 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. 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 seven or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in Section Ill -Limits Of Insurance. Paragraph (2) of this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs (3) and (4) of this exclusion do not apply to "property damage" arising from the use of elevators. Paragraphs (3), (4), (5) and (6) of 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 the job site. Paragraph (6) of this exclusion does not apply to •property damage" included in the "products-completed operations hazard". k. Damage To Your Product ·Property damage" to ·your product" arising out of it or any part of it. I. Damage To Your Work "Property damage" to "your work" arising out of it or any part of it and included in the "products-completed operations hazard~. This exclusion does not apply if the damaged worl< or the work out of which the damage arises was performed on your behalf by a subcontractor. HG 00 01 0916 m. Damage To Impaired Property Or Property Not Physically Injured "Property damage• to "impaired property" or property that has not been physically injured, arising out of: (1) A defect, deficiency, inadequacy or dangerous condition in "your product" or "your work"; or (2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its 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 work0 after it has been put to its intended use. n. Recall Of Products, Work Or Impaired Property Damages claimed for any loss, cost or expense incurred by you or others for 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 from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it. o. Personal And Advertising Injury "Bodily injury• arising out of "personal and advertising injury". p. Access or Disclosure Of Confidential Or Personal lnfonnation And Data-related Liability Damages arising out of: (1) Any access to or disclosure of any person's or organization's confidential or personal information, including patents, trade secrets, processing methods, customer lists, financial information, credit card information, health information or any other type of nonpublic information; or (2) The loss of, loss of use of, damage to. corruption of. inability to access, or inability to manipulate electronic data. This exclusion applies even if damages are claimed for notification costs, credit monitoring expenses, forensic expenses, public relations expenses or any other loss, cost or expense incurred by you or others arising out of that which is described in Paragraph (1) or (2) above. Page 5of 21 However, unless Paragraph (1) above applies, this exclusion does not apply to damages because of ~bodily injury•. /Ji.s used in this exclusion, electronic data means information, facts or programs stored as or on, created or used on, or transmitted to or from computer software, including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. q. Employment-Related Practices ·Bodily injury" to: (1) A person arising out of any "employment- related practices•; or (2) The spouse, child, parent, brother or sister of that person as a consequence of ·bodily injury" to that person at whom any "employment-related practices· are directed. This exclusion applies: (1) Whether the injury-causing event described in the definition of "employment- related practices• occurs before employment, during employment or after employment of that person; (2) Whether the insured may be liable as an employer or in any other capacity; and (3) To any obligation to share damages with or repay someone else who must pay damages because of the injury. r. Asbestos (1) "Bodily injury-or "property damage" arising out of the "asbestos hazard". (2) Any damages, judgments, settlements. loss, costs or expenses that: (a) May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not have occurred in whole or in part but for the ~asbestos hazard~; (b) Arise out of any request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove. encapsulate, contain, treat, detoxify or neutralize or in any way respond to or assess the effects of an ~asbestos hazard"; or (c) Arise out of any claim or suit for damages because of testing for, monitoring, cleaning up, removing, encapsulating, containing, treating, Page 6 of 21 detoxifying or neutralizing or in any way responding to or assessing the effects of an ~asbestos hazard". s. Recording And Distribution Of Material Or lnfonnation In Violation Of Law "Bodily injury" or "property damage" arising directly or indirectly out of any action or omission that violates or is al1eged to violate: (1) The Telephone Consumer Protection Act (TCPA), including any amendment of or addition to such law; (2) The CAN-SPAM Act of 2003. including any amendment of or addition to such law; (3) The Fair Credit Reporting Act (FCRA), and any amendment of or addition to such law, including the Fair and Accurate Credit Transaction Act (FACTA): o, (4} Any federal, state or local statute, ordinance or regulation, other than the TCPA or CAN-SPAM Act of 2003 or FCRA and their amendments and additions. that addresses, prohibits or limits the printing, dissemination, disposal, collecting, recording, sending, transmitting, communicating or distribution of material or information. Damage To Premises Rented To You • Exception For Damage By Fire, Lightning Or Explosion Exclusions c. through h. and j. through n. do not apply to damage by fire, lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner. A separate limit of insurance applies to this coverage as described in Section Ill -Limits Of Insurance. COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any ·suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for ·personal and advertising injury-to which this insurance does not apply. We may, at our discretion, investigate any offense and settle any claim or "suit" that may result. But: (1) The amount we wUI pay for damages is limited as described in Section Ill -Limits Of Insurance; and (2) Our right and duty to defend end when we have used up the applicable limit of insurance in the payment of judgments or HG 00 01 0916 settlements under Coverages A or B or medical expenses under Coverage C. No other obligation or liability to pay sums or perfonn acts or services is covered unless explicitly provided for under Supplementary Payments -Coverages A and B. b. This insurance applies to "personal and advertising injury" caused by an offense arising out of your business but only if the offense was committed in the "coverage territ~ during the policy period. 2. Excluslons This insurance does not apply to: a. Knowing Vlolatlon Of Rights Of Another "Personal and advertising injury" arising out of an offense committed by, at the direction or with the consent or acquiescence of the insured with the expectation of inflicting ·personal and advertising injury". b. Material Published With Knowledge Of Falsity "Personal and advertising Injury" arising out of oral, written or electronic publication, in any manner, of material, if done by or at the direction of the insured with knowledge of its falsity. c. Material Published Prior To Policy Period "Personal and advertising injury" arising out of oral, written or electronic publication, in any manner, of material whose first publication took place before the beginning of the policy period. d. Criminal Acts "Personal and advertising injury" arising out of a criminal act committed by or at the direction of the insured. e. Contractual Liability "Personal and advertising injury" for which the insured has assumed liability in a contract or agreement. This exclusion does not apply to liability for damages that the insured would have in the absence of the contract or agreement. f. Breach Of Contract "Personal and advertising injury" arising out of a breach of contract, except an implied contract to use another's "advertising idea" in your "advertisement". g. Quality Or Performance Of Goods -Failure To Conform To Statements "Personal and advertising injury" arising out of the failure of goods. products or services to conform with any statement of quality or performance made in your "advertisement". HG 0001 0916 h. Wrong Description Of Prices "Personal and advertising injury" arising out of the wrong description of the price of goods, products or services. I. Infringement Of Intellectual Property Rights (1) "Personal and advertising injury" arising out of any actual or alleged infringement or violation of any intellectual property rights such as copyright, patent, trademark, trade name, trade secret, trade dress, service mark or other designation of origin or authenticity; or (2) Any injury or damage alleged in any clam or "suit" that also alleges an infringement or violation of any intellectual property right, whether such allegation of infringement or violation is made by you or by any other party involved in the claim or "suir, regardless of whether this insurance would otherwise apply. However, this exclusion does not apply if the only allegation in the claim or "suit" involving any intellectual property right is limited to: (1) Infringement, in your "advertisement", of: (a) Copyright: (b) Slogan; or (c) Title of any literary or artistic work: or (2) Copying, in your "advertisemenr. a person's or organization's "advertising idea" or style of "advertisement". j. Insureds In Media And Internet Type Businesses "Personal and advertising injury" committed by an insured whose business is: (1) Advertising, broadcasting, publishing or telecasting; (2) Designing or determining content of web sites for others; or (3) An Internet search, access, content or service provider. However, this exclusion does not apply to Paragraphs a., b. and c. of the definition of "personal and advertising injury" under the Definitions Section. For the purposes of this exclusion, the placing of frames, borders or links, or advertising, for you or others anywhere on the Internet, is not by itself, considered the business of advertising, broadcasting. publishing or telecasting. k. Electronic Chatrooms Or Bulletin Boards "Personal and advertising injury" arising out of an electronic chatroom or bulletin board the Page 7 of 21 insured hosts, owns, or over which the insured exercises control. I. Unauthorized Use Of Another's Name Or Product "Personal and advertising injury" 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 another's potential customers. m. Pollution "Personal and advertising injury" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants" at any time. n. Pollution-Related Any loss, cost or expense arising out of any: (1) Request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, "pollutants"; or (2) Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to, or assessing the effects of, "pollutants•. o. War •Personal and advertising injury•, however caused, arising, directly or indirectly, out of: (1) War, including undeclared or civil war; (2) Warlike action by a military force, including action in hindering or 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. p. Internet Advertisements And Content Of Others "Personal and advertising injury" arising out of: (1) An "advertisement• for others on your web site; (2) Placing a link to a web site of others on your web site; (3) Content, including information, sounds, text, graphics, or images from a web site of others displayed within a frame or border on your web site: or Page 8 of 21 (4) Computer ccx:le, software or programming used to enable: (a) Your web site; or (b) The presentation or functionality of an "advertisement" or other content on your web site. q. Right Of Privacy Created By Statute "Personal and advertising injury" arising out of the violation of a person's right of privacy created by any state or federal acl However, this exclusion does not apply to liability for damages that the insured would have in the absence of such state or federal act. r. Violation Of Anti-Trust law "Personal and advertising injury" arising out of a violation of any anti-trust law. s. Securities "Personal and advertising injury" arising out of the fluctuation in price or value of any stocks, bonds or other securities. t. Recording And Distribution Of Material Or lnfonnatlon In Violation Of Law "Personal and advertising injury" arising directly or indirectly out of any action or omission that violates or is alleged to violate: (1) The Telephone Consumer Protection Act (TCPA). including any amendment of or addition to such law: (2) The CAN-SPAM Act of 2003, including any amendment of or addition to such law; (3) The Fair Credit Reporting Act (FCRA), and any amendment of or addition to such law. including the Fair and Accurate Credit Transaction Act (FACTA); or (4} Any federal, state or local statute, ordinance or regulation, other than the TCPA or CAN-SPAM Act of 2003 or FCRA and their amendments and additions, that addresses, prohibits or limits the printing, dissemination, disposal, collecting, recording, sending, transmitting, communicating or distribution of material or information. u. Employment-Related Practices "Personal and advertising injury" to: (1) A person arising out of any •employment- related practices~; or (2) The spouse, child, parent, brother or sister of that person as a consequence of "personal and advertising injury• to that person at whom any "employment-related practices" are directed. HG 00 01 0916 This exclusion applies: (1) Whether the injury-causing event described in the definition of "employment- related practices• occurs before employment. during employment or after employment of that person; (2) Whether the insured may be liable as an employer or in any other capacity; and (3) To any obligation to share damages with or repay someone else who must pay damages because of the injury. v. Asbestos (1) "Personal and advertising injury'" arising out of the "asbestos hazard". (2) Any damages, judgments, settlements, loss, costs or expenses that: (a) May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not have occurred in whole or in part but for the "asbestos hazard"; (b) Arise out of any request, demand, order or statutory or regulatory 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". w. Access Or Disclosure Of Confldentlal Or Personal Information "Personal and advertising injury" arising out of any access to or disclosure of any person's or organization's confidential or personal information, including patents, trade secrets, processing methods, customer lists, financial information, credit card information, health information or any other type of nonpublic information. This exclusion applies even if damages are claimed for notification costs, credit monitoring expenses, forensic expenses, public relations expenses or any other loss, cost or expense incurred by you or others arising out of any access to or disclosure of any person's or organization's confidential or personal information. HG 00 01 0916 COVERAGE C MEDICAL PAYMENTS 1. Insuring Agreement a. We will pay medical expenses as described below for "bodily injury" caused by an accident: (1) On premises you own 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 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. 2. Exclusions We will not pay expenses for "bodily injury": a. Any Insured To any insured, except "volunteer workers". b. Hired Person To a person hired to do work for or on behalf of any insured or a tenant of any insured. c. Injury On Normally Occupied Premises To a person injured on that part of premises you own or rent that the person normally occupies. d. Workers Compensation And Similar Laws To a person, whether or not an "employee~ of any insured, if benefits for the ''bodily injury" are payable or must be provided under a workers' compensation or disability benefits law or a similar law. e. Athletics Activities To a person injured while practicing, instructing or participating in any physical exercises or games. sports, or athletic contests. Page 9 of 21 f. Products-Completed Operations Hazard Included within the "products-completed operations hazard·. g. Coverage A Exclusions Excluded under Coverage A. SUPPLEMENTARY PAYMENTS -COVERAGES AANDB 1. We will pay, with respect to any claim we investigate or settle, or any "suit" against an insured we defend: a. AJI expenses we incur. b. Up to $1,000 for cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We do not have to furnish these bonds. c. The cost of appeal bonds or bonds to release attachments, but only for bond amounts within the applicable limit of insurance. We do not have to furnish these bonds. d. AJI reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or •suit", including actual loss of earnings up to $500 a day because of time off from work. e. AJI court costs taxed against the insured in the "suit". However, such costs do not include attorneys' fees, attorneys' expenses, witness or expert fees, or any other expenses of a party taxed to the insured. f. Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. g. AJI 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. These payments will not reduce the limits of insurance. 2. If we defend an insured against a "suit• and an indemnitee of the insured is also named as a party to the "suit•. we will defend that indemnitee if all of the following conditions are met: a. 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•; b. This insurance applies to such liability assumed by the insured; c. The obligation to defend, or the cost of the defense of, that indemnitee, has also been Page 10 of 21 assumed by the insured in the same "insured contract''; d. The allegations in the "suit" and the information we know about the "occurrence" are such that no conflict appears to exist between the interests of the insured and the interests of the indemnitee; e. The indemnitee and the insured ask us to conduct and control the defense of that indemnitee against such ·suir and agree that we can assign the same counsel to defend the insured and the indemnitee: and f. The indemnitee: (1) Agrees in writing to: (a) Cooperate with us in the investigation. settlement or defense of the "suit•; (b) Immediately send us copies of any demands, notices. summonses or legal papers received in connection with the "suit•: (c} Notify any other insurer whose coverage is available to the indemnitee: and (d) Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and (2) Provides us with written authorization to: (a) Obtain records and other information related to the "suit•; and (b) Conduct and control the defense of the indemnitee in such "suit". So 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 2.b.(2) of Section I -Coverage A -Bodily Injury And Property Damage Liability, such payments will not be deemed to be damages for "bodily injury'' and "property damage" and will not reduce 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: a. We have used up the applicable limit of insurance in the payment of judgments or settlements: or b. The conditions set forth above, or the terms of the agreement described in Paragraph f. above, are no longer met HG 0001 0916 SECTION II • WHO IS AN INSURED 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. c. A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insureds, but only with respect lo their duties as your managers. d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. e. A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees. 2. Each of the following is also an insured: a. Employees And Volunteer Workers Your "volunteer wori(ers" 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 perfonning 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), 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 perfonning duties related to the conduct of your business; (b) To the spouse. child, parent, brother or sister of that co-"employee· or that HG 0001 0916 "volunteer wori(er" as a consequence of Paragraph (1)(a) above; (c) For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraphs (1)(a) or (1)(b) above; or (d) Arising out of his or her providing or failing to provide professional health care services. If you are not in the business of providing professional health care services: (a) Sub paragraphs (1)(a), (1 )(b) and (1 )(c) above do not apply to any "employee" or "volunteer worker"' providing first aid services; and (b) Subparagraph (1)(d) above does not apply to any nurse, emergency medical technician or paramedic employed by you to provide such services. (2) "Property damageM to property: (a} Owned. occupied or used by, (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 person (other than your "employee" or "volunteer wori(er"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this Coverage Part. e. Unnamed Subsidiary Any subsidiary, and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of the Coverage Part. Page 11 of 21 The insurance afforded herein for any subsidiary not named in this Coverage Part as a named insured does not apply to injury or damage with respect to which such insured is also a named insured under another policy or would be a named insured under such policy but for its termination or the exhaustion of its limits of insurance. 3. Newly Acqulred Or Formed Organization Any organization you newly acquire or form, 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; b. Coverage A does not apply to "bodily injury" or "property damage" that occurred before you acquired or formed the organization; and c. Coverage B does not apply to "personal and advertising injury· arising out of an offense committed before you acquired or formed the organization. 4. Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft 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 watercraft, 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. •eodily injury" to a co-0 employee" of the person operating the watercraft; 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. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The following person(s) or organization(s) are an additional insured when you have agreed, in a written contract, written agreement or because of a pennit 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. Page 12of21 A person or organization is an additional insured under this provision only for that period of time required by the contract or agreement. However, no such person or organization is an insured under this provision if such person or organization is included as an insured by an endorsement issued by us and made a part. of this Coverage Part.. a. Vendors Any person(s) or organization(s) (referred to below as vendor), but only with respect to "bodily injury" or "property damage" arising out of -your products· which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part. provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard". (1) The insurance afforded the vendor is subject to the following additional exclusions: This insurance does not apply to: (a) "Bodily injury'' or "property damage~ for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not 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 perfonne<I 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 HG 00010916 (h) "Bodily injury" or Kproperty 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 Sub- paragraphs (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 connection with the distribution or sale of the products. (2) This insurance does not apply to any insured person or organization. from whom you have acquired such products, or any ingredient, part or container. entering into, accompanying or containing such products. b. Lessors Of Equipment (1) Any person(s) or organization(s) from whom you lease equipment; but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part. by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). (2) With respect to the insurance afforded to these additional insureds this insurance does not apply to any "occurrence" which takes place after the equipment lease expires. c. Lessors Of Land Or Premises Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. With respect to the insurance afforded these additional insureds the following additional exclusions apply: This insurance does not apply to: 1. Any "occurrence" which takes place after you cease to lease that land; or 2. Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. d. Architects, Engineers Or Surveyors Any architect. engineer, or surveyor. but only with respect to liability for •bodily injury", •property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or HG 00 01 0916 omissions of those acting on your behalf: (1) In connection with your premises; or (2) In the performance of your ongoing operations performed by you or on your behalf. With respect to the insurance afforded these additional insureds, the following additional exclusion applies: This insurance does not apply to •bodily injury", •property damage" or "personal ~nd advertising injury" arising out of the rendenng of or the failure to render any professional services by or for you, induding: 1. The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions. reports, surveys, field orders, change orders or drawings and specifications; or 2. Supervisory, inspection. architectural or engineering activities. 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 Kbodily injury" or "property damage·, or the offense which caused the "personal and advertising injury", involved the rendering of or the failure to render any professional services by or for you. e. Permits Issued By State Or Political Subdivisions Any state or political subdivision, but only with respect to operations performed by you ~r-on your behalf for which the state or political subdivision has issued a permit. With respect to the insurance afforded these additional insureds. this insurance does not apply to: (1) "Bodily injury'", Kproperty damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (2) "Bodily injury" or "property damagefl included within the "products-completed operations hazard". f. Any Other Party Any other person or organization who is not an additional 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: (1) In the performance of your ongoing operations: Page 13 of 21 (2) In connection with your premises owned by or rented to you: or (3) In connection with "your work" and included within the "products-completed operations hazarcr, but only if (a) The written contract or agreement requires you to provide such coverage to such additional insured; and (b) This Coverage Part provides coverage for "bodily injury" or ~property damage" included within the "products- completed operations hazard". However: (1) The insurance afforded to such additional insured only applies to the extent permitted by law; and (2) If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. 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: (1) The preparing, approving, or failing to prepare or approve, maps, shop drawings. opinions, reports, surveys, field orders, change orders or drawings and specifications; or (2) Supervisory, inspection, architectural or engineering activities. 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 ~bodily injury" or "property damage~, or the offense which caused the •personal and advertising injury", involved the rendering of or the failure to render any professional services by or for you. The limits of insurance that apply to additional insureds is described in Section IH -Limits Of Insurance. How this insurance applies when other insurance is available to the additional insured is described in the Other Insurance Condition in Section IV - Commercial General Liability Conditions. Page 14of21 No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. SECTION Ill -LIMITS OF INSURANCE 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or •suits" brought; or c. Persons or organizations making claims or bringing •suits~. 2. General Aggregate Limit The General Aggregate Limit is the most we will pay for the sum of: a. Medical expenses under Coverage C; b. Damages under Coverage A, except damages because of "bodily injury" or "property damage" included in the "products- completed operations hazard"; and c. Damages under Coverage B. 3. Products-Completed Operations Aggregate limit The Products-Completed Operations Aggregate Limit is the most we will pay under Coverage A for damages because of "bodily injury" and •property damage" included in the "products- completed operations hazard". 4. Personal And Advertising Injury Limit Subject to 2. above, the Personal and Advertising Injury Limit is the most we will pay under Coverage B for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization. 5. Each Occurrence Limit Subject to 2. or 3. above, whichever applies, the Each Occurrence Limit is the most we will pay for the sum of: a. Damages under Coverage A; and b. Medical expenses under Coverage C because of all ·bodily injury" and "property damage" arising out of any one "occurrence". 6. Damage To Premises Rented To You Limit Subject to 5. above, the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages because of •property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. HG 0001 0916 In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event, whether such damage results from fire, lightning or explosion or any combination of these. 7. Medical Expense Limit Subject to 5. above, the Medical Expense Limit is the most we will pay under Coverage C for atl medical expenses because of "bodily injury" sustained by any one person. 8. How Limits Apply To Addltlonal Insureds If you have agreed in a written contract or written agreement that another person or organization be added as an additional insured on your policy, the most we will pay on behalf of such additional insured is the lesser of: a, The limits of insurance specified in the written contract or written agreement; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to Limits of Insurance shown in the Declarations and described in this Section. The Limits of Insurance of this Coverage Part apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period for purposes of determining the Limits of Insurance. SECTION IV COMMERCIAL GENERAL LIABILITY CONDITIONS 1. Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part. 2. Duties In The Event Of Occurrence, Offense, Claim Or Sult a. Notice Of Occurrence Or Offense You or any additional insured must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the •occurrence" or offense took place: (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the "occurrence" or offense. HG 00 01 0916 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 received; and (2) Notify us as soon as practicable. You or any additional insured must see to it that we receive written notice of the claim or •suit" as soon as practicable. c. Assistance And Cooperation Of The Insured You and any other involved insured must: (1) Immediately send us copies of any demands, notices, summonses or legal papers reoeived in connection with the claim or "suit"; (2) Authorize us to obtain records and other information; (3) Cooperate with us in the investigation or settlement of the claim or defense against the ·suit"; and (4) Assist us, upon our request. in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply. d. Obligations At The Insureds Own Cost No insured will. except at that insured's own cost, voluntarily make a payment. assume any obligation. or incur any expense, other than for first aid, without our consent. e. Additional Insureds Other Insurance If we cover a claim or •suit" under this Coverage Part that may also be covered by other insurance available to an additional insured, such additional insured must submit such claim or "suit• to the other insurer for defense and indemnity. However, this provision does not apply to the extent that you have agreed in a written contract or written agreement that this insurance is primary and non-contributory with the additional insured's own insurance. f. Knowledge Of An Occurrence, Offense, Clalm Or Sult Paragraphs a. and b. apply to you or to any additional insured only when such "occurrence", offense, claim or "suit· is known to: (1) You or any additional insured that is an individual; (2) Any partner, if you or the additional insured is a partnership; Page 15 of 21 (3) Any manager, if you or the additional insured is a limited liability company: (4) Any "executive officer" or insurance manager, if you or the additional insured is a corporation; (5) Any trustee, if you or the additional insured is a trust; or (6) Any elected or appointed official, if you or the additional insured is a political subdivision or public entity. This duty applies separately to you and any additional insured. 3. Legal Action Against Us No person or organization has a right under this Coverage Part: a. To join us as a party or otherwise bring us into a "suit• asking for damages from an insured; or b. To sue us on this Coverage Part unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this Coverage Part or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative. 4. other Insurance If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when b. below applies. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. b. Excesslnsurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis: (1) Your Work That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for flyour work~; (2) Premises Rented To You That is fire, lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; Page 16 of 21 (3) Tenant Liability That is insurance purchased by you to cover your liability as a tenant for flproperty damage" to premises rented to you or temporarily occupied by you with permission of the owner; (4} Aircraft, Auto Or Watercraft If the loss arises out of the maintenance or use of aircraft, Mautos" or watercraft to the extent not subject to Exclusion g. of Section I -Coverage A -Bodily Injury And Property Damage Liability; (5) Property Damage To Borrowed Equipment Or Use Of Elevators If the loss arises out of ~property damage· to borrowed equipment or the use of elevators to the extent not subject to Exclusion j. of Section I -Coverage A - Bodily Injury And Property Damage Liability; (6) When You Are Added As An Additional Insured To Other Insurance Any other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add others As An Additional Insured To This Insurance Any other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this coverage part. v (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract or written agreement that this insurance be primary. If other insurance is also primary, we will share with all that other insurance by the method described inc. below. ,1 (b) Primary And Non-Contributory To Other Insurance When Required By Contract If you have agreed in a written contract. written agreement, or permit that this insurance is primary and non- contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance. HG 00010916 Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under Coverages A or B to defend the insured against any "suir if any other insurer has a duty to defend the insured against that flsuit". 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. 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 of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it 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. 5. Premium Audit a. We will compute all premiums for this Coverage Part in accordance with our rules and rates. b. Premium shown in this Coverage Part as advance premium is a deposit premium only. At the close of each audit period we will compute the earned premium for that period and send notice to the first Named Insured. The due date for audit and retrospective premiums is the date shown as the due date on the bill. If the sum of the advance and audit premiums paid for the policy petiod is greater than the earned premium, we will return the excess to the first Named Insured. c. The first Named Insured must keep records of the information we need for premium HG 00 01 0916 computation, and send us copies at such times as we may request. 6. Representations a. When You Accept This Polley 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 (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 that exist at the inception date of this Coverage Part, we shall not deny coverage under this Coverage Part because of such failure. 7. Separation Of Insureds Except with respect to the Limits of Insurance. and any rights or duties specifically assigned in this Coverage Part to the first Named Insured. this insurance applies: a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom claim is made or "suit" is brought. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request. the insured will bring "suit" or transfer those rights to us and help us enforce them. 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. 9. When We Do Not Renew If we decide not to renew this Coverage Part, we will mail or deliver to the first Named Insured shown in the Declarations written notice of the Page 17 of 21 nonrenewal not less than 30 days before the expiration date. If notice is mailed, proof of mailing will be sufficient proof of notice. SECTION V -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; or b. Any other publication that is given widespread public distribution. However, "advertisement· does not include: a. The design, printed material, information or images contained in, on or upon the packaging or labeling of any goods or products; or b. An interactive conversation between or among persons through a computer network. 2. "Advertising idea" means any idea for an "advertisement". 3. "Asbestos hazard" means an exposure or threat of exposure to the actual or alleged properties of asbestos and indudes the mere presence of asbestos in any form. 4. "Auto" means: a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment: or b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged. However, "auto" does not include "mobile equipment". 5. "Bodily injury" means physical: a. Injury; b. Sickness; o, c. Disease sustained by a person and, if arising out of the above, mental anguish or death at any time. 6. "Coverage territory'" means: a. The United States of America (including its 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; or Page 18 of21 c. AU other parts of the world if the injury or damage arises out of: (1) Goods or products made or sold by you in the territory described in a. above; (2) The activities of a person whose home is in the territory described in a. above, but is away for a short time on your business; or (3) "Personal and advertising injury" offenses that take place through the Internet or similar electronic means of communication provided the insured's responsibility to pay damages is determined in the United States of America (including its territories and possessions), Puerto RiCO or Canada, in a "suit" on the merits according to the substantive law in such territory or in a settlement we agree to. 7. "Employee.. includes a "leased worker". "Employee• does not include a "temporary worker·. 8. "Employment-Related Practices" means: a. Refusal to employ that person: b. Termination of that person's employment: or c. Employment-related practices. policies. acts or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment. humiliation. discrimination or malicious prosecution directed at that person. 9. ..Executive officer'" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document. 10. "Hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. 11. "Impaired property" means tangible property, other than •your product" or •your work". that cannot be used or is less useful because: a. It incorporates "your product• or ffyour work" that is known or thought to be defective, deficient. inadequate or dangerous; or b. You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by the repair, replacement, adjustment or removal of "your product" or "your work", or your fulfilling the terms of the oontract 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 HG 00 01 0916 Premises Rented To You Limit described in Section Ill -Limits of Insurance; b. A sidetrack agreement; c:. Any easement or license agreement. including an easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad; d. An obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e. An elevator maintenance agreement; f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury" or "property damage· to a third person or organization, provided the ·bodily injury" or "property damage· is caused, in whole or in part, by you or by those acting on your behalf. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. includes that part of any contract or agreement that indemnifies a railroad for "bodily injury" or "property damage" arising out of construction or demolition operations, within 50 feet of any railroad property and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing. However. Paragraph f. does not include that part of any contract or agreement: (1) That indemnifies an architect, engineer or surveyor tor 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 or drawings and specifications; or (b) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; or (2) Under which the insured, if an architect, engineer or surveyor, assumes liabitity for an injury or damage arising out of the insured's rendenng or failure to render professional services, induding those listed in (1) above and supervisory. inspection, 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". HG 00 01 0916 14. "Loading or unloading" means the handling of property: a. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or "auto"; b. While it is in or on an aircraft, watercraft or "auto"; or c. While it ls being moved from an aircraft, watercraft or "auto" to the place where it is finally delivered; but "loading or unloading" does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or "auto". 15. '"Mobile equipment" means any of the following types of land vehicles, 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, maintained primarily to provide mobility to permanently mounted: (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 designed primarily for: (a) Snow removal; (b) Road maintenance, but not construction or resurfacing; or (c) Street cleaning; Page 19 of 21 (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, lighting and well servicing equipment. However, •mobile equipment" does not include any land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged. Land vehicles subject to a compulsory or financial responsibility law or other motor vehicle insurance law are considered "autos·. 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: c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person or organization occupies. committed by or on behalf of its owner. landlord or lessor: d. Oral, written or electronic publication. in any manner. of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; e. Oral, written or electronic publication, in any manner, of material that violates a person's right of privacy; f. Copying, in your "advertisement", a person's or organization's "advertising idea• or style of •advertisement"; or g. Infringement of copyright, slogan, or title of any literary or artistic work, in your ·advertisemenr. 18. "Pollutants" mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke. vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. 19. "Products-completed operations hazard": a. Includes all "bodily injury" and "property damage• occurring away from premises you own or rent and arising out of •your product" or "your work" except: (1) Products that are still in your physical possession; or Page 20of21 (2) Work that has not yet been completed or abandoned. However, "your work" will be deemed completed at the 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. Work that may need service, maintenance, correction, repair or replacement. but which is otheiwise complete, will be treated as completed. 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; (2) The existence of tools. uninstalled equipment or abandoned or unused materials; or (3) Products or operations for which the classification, listed in the Declarations or in a policy Schedule, states that products- completed operations are subject to the General Aggregate Limit. 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 physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the ~occurrence" that caused il As used in this definition, computerized or electronically stored data, programs or software are not tangible property. Electronic data means information, facts or programs: a. Stored as or on; b. Created or used on; or c. Transmitted to or from; computer software, including systems and applications software, hard or floppy disks, CD- HG 00 01 0916 ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically rontrolled equipment. 21. "Sult" means a civil proceeding in which damages because of ~bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies are alleged. "Suit" includes: a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or b. Any other alternative dispute resolution proceeding in which such damages are ciaimed 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"; 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, distributed or disposed of by: (a) You; (b) Others trading under your name; or (c) A person or organization whose business or assets you have acquired; and (2) Containers {other than vehicles), materials, parts or equipment furnished in connection with such goods or products. b. Includes (1) Warranties or representations made at any time with respect to the fitness, quality, durability, perfonnance or use of "your product"; and (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. HG00010916 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, perfonnance or use of "your work~, and (2) The providing of or failure to provide warnings or instructions. Page 21 of 21