HomeMy WebLinkAboutHF&H Consultants LLC; 2021-11-30; PSA22-1683CA30thNovember
DocuSign Envelope ID: A6F8B23E-31 C9-4C38-904A-1 B53029F277E (Attachment AG)
PSA22-1683CA
MASTER AGREEMENT FOR POLICY AND SUSTAINABLE MATERIALS
MANAGEMENT (SMM) PROGRAM IMPLEMENTATION SERVICES
HF&H CONSULTANTS, LLC
THIS AGREEMENT is made and entered into as of the ______ day of
________ , 2021, by and between the CITY OF CARLSBAD, a municipal
corporation, hereinafter referred to as "City", and HF&H Consultants, LLC., a limited liability
company, hereinafter referred to as "Contractor."
RECITALS
A. City requires the professional services of a consulting firm that is experienced in
policy and SMM program implementation field.
B. The professional services are required on a non-exclusive, project-by-project
basis.
C. Contractor has the necessary experience in providing professional services and
advice related to policy and SMM program implementation.
D. Contractor has submitted a proposal to City under Request for Qualifications
(RFQ) No. 21-1449CA 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.
Contractor's obligations with respect to any project granted to Contractor under this Agreement
will be as specified in the Task Description for the project (see paragraph 5 below).
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 three (3) years from December 1, 2021,
through November 30, 2024. The City Manager may amend the Agreement to extend it for one
( 1) 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. PROGRESS AND COMPLETION
The work for any project granted to Contractor pursuant to this Agreement will begin within ten
(10) days after receipt of notification to proceed by City and be completed within the time specified
in the Task Description for the project (see paragraph 5 below). Extensions of time for a specific
Task Description may be granted if requested by Contractor and agreed to in writing by the City
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Manager or the Division Director as authorized by the City Manager ("Director"). The City
Manager or Director will give allowance for documented and substantiated unforeseeable and
unavoidable delays not caused by a lack of foresight on the part of Contractor, or delays caused
by City inaction or other agencies' lack of timely action. In no event shall a specific Task
Description exceed the term of this Agreement.
5. COMPENSATION
The cumulative total for all projects allowed pursuant to this Agreement will not exceed four
hundred fifty thousand dollars ($450,000) per Agreement term. Fees will be paid on a project-
by-project basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A". Prior
to initiation of any project work by Contractor, City shall prepare a Project Task Description and
Fee Allotment (the "Task Description") which, upon signature by Contractor and for City, the City
Manager or Director, will be considered a part of this Agreement. The Task Description will include
a detailed scope of services for the particular project being considered and a statement of
Contractor's fee to complete the project in accordance with the specified scope of services. The
Task Description will also include a description of the method of payment and will be based upon
an hourly rate, percentage of project complete, completion of specific project tasks or a
combination thereof.
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.
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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 willful misconduct
or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that this
section will survive the expiration or early termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The insurance
carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus
line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best's Key Rating Guide of at least "A:X''; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits
indicated below, unless 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. The limits for Commercial General Liability can be achieved through a
combination of primary and excess or umbrella liability insurance, provided that such coverage
will result in the same or greater coverage as the coverage required under this Section.
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.
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10.1.4 Professional Liability. Errors and om1ss1ons liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be
maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on Commercial General
Liability which shall provide primary coverage to the City.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to City sent
by certified mail pursuant to the Notice provisions of this Agreement. ,
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to maintain
the required coverages. Contractor is responsible for any payments made by City to obtain or
maintain insurance and City may collect these payments from Contractor or deduct the amount
paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, 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.
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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 are:
For City: For Contractor:
Name Eleida Felix Yackel Name Morgan McCarthy
Title Senior Contract Administrator Title Project Manager
Dept Public Works Address 201 N Civic Drive, Suite 230
CITY OF CARLSBAD Walnut Creek, CA 94596
Address 1635 Faraday Avenue Phone 925-977-6950
Carlsbad, CA 92008 Mobile
Phone 760-602-2767 Email morgan@hfh-consultants.com
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
16. 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.
Yes[}g No D
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations
wh ich 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
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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 at the 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
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. JURISDICTIONS 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.
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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.
26. PUBLIC AGENCY CLAUSE
Contractor agrees that any public agency as defined by Cal. Gov. Code section 6500, if authorized
by its governing body, shall have the option to participate in this contract at the same prices,
terms, and conditions. If another public agency chooses to participate, the term shall be for the
term of this contract, and shall be contingent upon Contractor's acceptance. Participating public
agencies shall be solely responsible for the placing of orders, arranging for delivery and/or
services, and making payments to the Contractor. The City of Carlsbad and Carlsbad Municipal
Water District shall not be liable, or responsible, for any obligations, including but not limited to
financial responsibility, in connection with participation by another public agency.
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EXHIBIT "A"
SCOPE OF SERVICES
Perform a variety of policy and sustainable materials management program implementation
services tasks as outlined in individual Project Task Description & Fee Allotments (PTD&FA)
related to the following:
A. Compliance with new regulations.
B. Program and contract implementation.
C. Enforcement and outreach for new regulations.
D. Program Regulatory Support/Compliance.
E. Compliance Training.
F. Program Evaluations/Assessments.
Requests for work not listed above must be contr~cted under separate agreement.
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Due Date: May 14, 2021
EXHIBIT B -SAMPLE MASTER AGREEMENT RATE SCHEDULE
Prices valid through Term of Agreement
STAFF
NAME TITLE HOURLY RATE
1. Robert C. Hilton President $315.00
2. Tracy Swanborn, Peter Deibler Sr. Project Manager $275.00
3. Morgan McCarthy, Nicole Gaetjens,
Scott Holt Phil Mainolfi Project Manager $235.00
4. Danielle Derby, Felisia Castaneda Senior Associate $210.00
5. Rachel Adell Associate Analyst $175.00
9. Meghan Taylor Assistant Analyst $150.00
10.
SUB-CONSULTANTS
NAME[FIRM TITLE HOURLY RATE
1. N/A
2.
3.
9.
10.
EXPENSES
DESCRIPTION COST % MARKUP
1. Mileage $0.56 / mile (1st Vear} neva11mg It\::> Kate \Lna
and 3rd Vear\
2. Copy services $0.75 I page 0%
3. Airfaire and Public Transit Actual Cost 0%
4.
PUBLIC VVORKS -REQUEST FOR QUAUF!CAT!ONS #RFQ21-1449CA
2021 Master Agreement Consultant Services 20
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Policy Number: OBF-D681476-04
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BUSINESSOWNERS LIABILITY SPECIAL BROADENING ENDORSEMENT
This endorsement modifies insurance provided under the following:
BUSINESSOWNERS COVERAGE FORM
SUMMARY OF COVERAGES Limits Page
1. Additional Insured by Contract, Agreement or Permit Included 1
2. Additional Insured -Broad Form Vendors Included 2
3. Alienated Premises Included 3
4. Broad Form Property Damage -Borrowed Equipment, Customers Included 3 Goods and Use of Elevators
5. Incidental Malpractice (Employed Nurses, EMT's and Paramedics) Included 3
6. Personal and Advertising Injury -Broad Form Included 4
7. Product Recall Expense Included 4
Product Recall Expense Each Occurrence Limit $25,000 5 Occurrence
Product Recall Expense Aggregate Limit $50,000 5 Aggregate
Product Recall Deductible $500 5
8. Unintentional Failure to Disclose Hazards Included 6
9. Unintentional Failure to Notify Included 6
This endorsement amends coverages provided under the Businessowners Coverage Form through new
coverages and broader coverage grants. This coverage is subject to the provisions applicable to the
Businessowners Coverage Form, except as provided below.
The following changes are made to SECTION II -
LIABILITY:
1. Additional Insured by Contract, Agreement or
Permit
The following is added to SECTION II -
LIABILITY, C. Who Is An Insured:
Additional Insured by Contract, Agreement or
Permit
a. Any person or organization with whom you
agreed in a written contract, written
agreement or permit to add such person or
organization as an additional insured on
your policy is an additional insured 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,
but only with respect to:
(1) "Your work" for the additional insured(s)
designated in the contract, agreement or
permit;
(2) Premises you own, rent, lease or
occupy; or
(3) Your maintenance, operation or use of
equipment leased to you.
b. The insurance afforded to such additional
insured described above:
(1) Only applies to the extent permitted by
law; and
(2) Will not be broader than the insurance
which you are required by the contract,
agreement or permit to provide for such
additional insured.
(3) Applies on a primary basis if that is
requ ired by the written contract, written
agreement or permit.
(4) Will not be broader than coverage
provided to any other insured.
(5) Does not apply if the "bodily injury",
"property damage" or "personal and
advertising injury" is otherwise excluded
from coverage under this Coverage Part,
including any endorsements thereto.
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(3) Any physical or chemical change in the
product made intentionally by the
vendor;
(4) Repackaging, unless unpacked solely for
the purpose of inspection,
demonstration, testing, or the
substitution of parts under instruction
from the manufacturer, and then
repackaged in the original container;
(5) Any failure to make such inspection,
adjustments, tests or servicing as the
vendor has agreed to make or normal ly 3.
undertakes to make in the usual course
of business in connection with th e sale
of the product;
(6) Demonstration, installation, servicing or
repair operations, except such
operations performed at the vendor's
premises in connection with the sale of
the product;
(7) Products which, after distribution or sale
The most we will pay on behalf of the vendor
for a covered claim is the lesser of the
amount of insurance :
1. Required by the contract or agreement
described in Paragraph a.; or
2. Available under the applicable Limits of
In surance shown in the Declarations;
This endorsement shall not increase the
applicable Limits of Insurance shown in the
Declarations.
Alienated Premises
SECTION II -LIABILITY, B. Exclusions, 1.
Applicable To Business Liability Coverage k.
Damage to Property, paragraph (2) is replaced by
the following:
(2) Premises you sell, give away or abandon, if
the "property damage" arises out of any part
of those premises and occurred from hazards
that were known by you , or should have
reasonably been known by you, at the time
the property was transferred or abandoned. 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;
4. Broad Form Property Damage -Borrowed
Equipment, Customers Goods, Use of Elevators
(8) "Bodily injury" or "property damage"
arising out of the sole negligence of the
vendor for its own acts or omissions or
those of its employees or anyone else
acting on its behalf. However, this
exclusion does not apply to:
(a) The exceptions contained within the
exclusion in subparagraphs (4) or (6)
above; or
(b) 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 con nection
with the distribution or sa le of the
products.
(9) "Bodily injury" or "property damage"
arising out of an "occurrence" that took
place before you have signed the
contract or agreement with the vendor.
(10)To any person or organization included
as an insured by another endorsement
issued by us and made part of this
Coverage Part.
(11)Any insu red person or organization ,
from whom you have acquired such
products, or any ingredient, part or
container, enteri ng into, accompanying 5.
or containing such products.
d. With respect to the insurance afforded to
these vendors, the following is added to
SECTION II -LIABILITY, D. Liability and
Medical Expense Limits of Insurance:
a. The following is added to SECTION II -
LIABILITY, B. Exclusions, 1. Applicable To
Business Liability Coverage, k. Damage to
Property:
Paragraph (4) does not apply to "property
damage" to borrowed equipment while at a
jobsite and not being used to perform
operations.
Paragraph (3), (4) and (6) do not apply to
"property damage" to "customers goods"
while on you r premises nor to the use of
elevators.
b. For the purposes of this endorsement, the
following defi nition is added to SECTION II -
LIABILITY, F. Liability and Medical Expenses
Definitions:
1. "Customers goods" means property of
your customer on your premises for the
pu rpose of being:
a. Worked on; or
b. Used in your manufactu ring process.
c. The insurance afforded under th is provision is
excess over any other va lid and collectible
property insurance (i ncluding deductible)
ava ilable to the insured whether primary,
excess, contingent or on any other basis.
Incidental Malpractice -Employed Nurses, EMT's
and Paramedics
SECTION II -LIABILITY, C. Who Is An Insured,
paragraph 2.a.(1)(d) does not apply to a nurse,
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c. The following is added to SECTION II -
LIABILITY, D. Liability and Medical Expenses
Limits of Insurance:
Product Recall Expense Limits of Insurance
a. The Limits of Insurance shown in the
SUMMARY OF COVERAGES of this
endorsement and the rules stated below
fix the most that we will pay under this
Product Recall Expense Coverage
regardless of the number of:
(1) Insureds;
(2) "Covered Recalls" initiated; or
(3) Number of "your products"
withdrawn.
b. The Product Recall Expense Aggregate
Limit is the most that we will reimburse
you for the sum of all "product recall
expenses" incurred for all "covered
recalls" initiated during the policy period.
c. The Product Recall Each Occurrence
Limit is the most we will pay in
connection with any one defect or
deficiency.
d. All "product recall expenses" in
connection with substantially the same
general harmful condition will be
deemed to arise out of the same defect
or deficiency and considered one
"occurrence".
e. Any amount reimbursed for "product
recall expenses" in connection with any
one "occurrence" will reduce the amount
of the Product Recall Expense Aggregate
Limit available for reimbursement of
"product recall expenses" in connection
with any other defect or deficiency.
f. If the Product Recall Expense Aggregate
Limit has been reduced by
reimbursement of "product recall
expenses" to an amount that is less than
the Product Recall Expense Each
Occurrence Limit, the remaining
Aggregate Limit is the most that will be
available for reimbursement of "product
recall expenses" in connection with any
other defect or deficiency.
g. Product Recall Deductible
We will only pay for the amount of
"product recall expenses" which are in
excess of the $500 Product Recall
Deductible. The Product Recall
Deductible applies separately to each
"covered recall". The limits of insurance
will not be reduced by the amount of this
deductible.
We may, or will if required by law, pay all
or any part of any deductible amount, if
applicable. Upon notice of our payment
of a deductible amount, you shall
promptly reimburse us for the part of the
deductible amount we paid.
The Product Recall Expense Limits of
Insurance 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
the purposes of determining the Limits of
Insurance.
d. The following is . added to SECTION II -
LIABILITY, E. Liability and Medical Expense
General Conditions, 2. Duties in the Event of
Occurrence, Offense, Claim or Suit:
You must see to it that the following are
done in the event of an actual or anticipated
"covered recall" that may result in "product
recall expense":
(1) Give us prompt notice of any discovery
or notification that "your product" must
be withdrawn or recalled. Include a
description of "your product" and the
reason for the withdrawal or recall;
(2) Cease any further release, shipment,
consignment or any other method of
distribution of like or similar products
until it has been determined that all
such products are free from defects that
could be a cause of loss under this
insurance.
e. For the purposs of this endorsement, the
following definitions are added to SECTION
II -LIABILITY, F. Liability and Medical
Expenses Definitions:
1. "Covered recall" means a recall made
necessary because you or a government
body has determined that a known or
suspected defect, deficiency,
inadequacy, or dangerous condition in
"your product" has resulted or will result
in "bodily injury" or "property damage".
2. "Product recall expense(s)" means:
a. Necessary and reasonable expenses
for:
(1) Communications, including radio
or television announcements or
printed advertisements including
stationary, envelopes and
postage;
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1. SECTION I -PROPERTY, if two or more of
this coverage part's coverages apply to
the same loss or damage, we will not pay
more than the actu al amount of the loss or
damage.
2. SECTION II -LIABILITY, it is our stated
intent that the various Coverage Parts,
forms, endorsements or policies issued to
the named insured by us, or any company
affiliated with us, do not provide any
duplication or overlap of coverage for the
same claim, "suit", "occurrence", offense,
accident, "wrongful act" or loss. We will
not pay more than the actual amount of
the loss or damage.
If this Coverage Part and any other
Coverage Part, form, endorsement or
policy issued to the named insured by us,
or any company affiliated with us, apply to
the same claim , "suit", occurrence,
offense, accident, "wrongful act" or loss,
the maximum Limit of Insurance under all
such Coverage Parts, forms,
endorsements or policies combined shall
not exceed the highest applicable Limit of
Insurance under any one Coverage Part,
form, endorsement or policy.
Th is condition does not apply to any
Excess or Umbrella Policy issued by us
specifically to apply as excess insurance
over this policy.
G. Liberalization
If we adopt any revision that would broaden
the coverage under this policy without
additional premium within 45 days prior to or
during the policy period, the broadened
coverage will immediately apply to this policy.
H. Other Insurance
1. SECTION I -PROPERTY
If there is other insurance covering the
same loss or damage, we will pay only for
the amount of covered loss or damage in
excess of the amount due from that other
insurance, whether you can collect on it or
not. But, we will not pay more than the
applicable Limit of Insurance of SECTION I
-PROPERTY.
2. SECTION II -LIABILITY
If other valid and collectible insurance is
available to the insured for a loss we
cover under SECTION II -LIABILITY, our
obligations are limited as follows:
a. Primary Insurance
This insurance is primary except when
paragraph b. below applies. If this
insurance is primary, our obligations
are not affected unless any of the
other insurance is also primary. Then,
we will share with all that other
insurance by the method described in
paragraph c. below.
~~Hanover ~ Insurance Group ..
OBF D681476 5701751
However, if you agree in a written
contract, written agreement, or
written permit that the insurance
provided to any person or
organization included as an
Additional Insured under this
Coverage Part is primary and
non-contributory, we will not seek
contribu tion from any other
insurance available to that Additional
Insured which covers the Additional
Insured as a Named Insured except:
(1) For the sole negligence of the
Additional Insured; or
(2) When the Additional Insured is
an Additional Insured under
another liability policy.
b. Excess Insurance
This insurance is excess over:
(1) Any of the other insurance,
whether primary, excess,
contingent or on any other basis:
(a) That is Fire, Extended
Coverage, Builder's Risk,
Installation Risk or similar
coverage for "your work";
(b) That is Property Insurance for
premises rented to you or
temporarily occupied by you
with permission of the owner;
(c) That is insurance purchased
by you to cover your liability
as a tenant for "property
damage" to premises rented
to you or temporarily
occupied by you with
permission of the owner; or
(d) If the loss arises out of the
maintenance or use of
aircraft, "autos" or watercraft
to the extent not subject to
SECTION II -LIABILITY,
Exclusion g. Aircraft, Auto or
Watercraft; and
(2) Any other primary insurance
available to you covering liability
for damages arising out of the
premises or operati ons, or the
products and completed
operations, for wh ich you have
been added as an additional
insured by attachment of an
endorsement.
When this insurance is excess, we
will have no duty under SECTION II -
LIABILITY to defend the insured
against any "suit" if any other
insurer has a duty to defend the
insured against that "suit". If no other
insurer defends, we will undertake to
do so, but we will be entitled to the
391-1003 08 16 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 79 of 81
insured's rights against all those other
insurers.
c. 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
th e absence of this insurance; and
(2) The total of all deductible and
self-insured amounts under all that
other insurance.
d. We will share the remaining loss, if any,
with any other insurance that is not
described in this provision and was not
bought specifically to apply in excess of
the Limits of Insurance shown in the
Declarations for this Coverage.
e. Method of Sharing
If all of the other insurance permits
contribution by equal shares, we will
follow this method also. Under th is
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.
f. When th is insurance is excess, we will
have no duty under Business Liability
Coverage to defend any claim or "suit"
that any other insurer has a duty to
defend. 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.
I. Premiums
1. The first Named Insured shown in the
Declarations:
a. Is responsible for the payment of all
premiums; and
b. Will be the payee for any return
premiums we pay.
2. The premium shown in the Declarations was
computed based on rates in effect at the time
the policy was issued. On each renewal,
continuation or anniversary of the effective
date of this policy, we will compute the
premium in accordance with our rates and
rules then in effect.
3. With our consent, you may continue this
policy in force by paying a continuation
premium for each successive one-year
period. The premium must be:
a. Paid to us prior to the anniversary
date; and
b. Determined in accordance with
paragraph 2. above.
Our forms then in effect will apply. If you
do not pay the continuation premium, this
policy will expire on the first anniversary
date that we have not received the
premium.
4. Undeclared exposures or change in your
business operation, acquisition or use of
locations may occur during the policy
period that is not shown in the
Declarations. If so, we may require an
additional premium. That premium will be
determined in accordance with our rates
and rules then in effect.
J. Premium Audit
1. This policy is subject to audit if a premium
designated as an advance premium is
shown in the Declarations. We will
compute the final premium due when we
determine your actual exposures.
2. Premium shown in this policy 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 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 period is
greater than the earned premium, we will
return the excess to the first Named
Insured.
3. The first Named Insured must keep
records of the information we need for
premium computation and send us copies
at such times as we may request.
K. Transfer of Rights of Recovery Against Others
to Us
1. Applicable to SECTION I -PROPERTY
Coverage:
If any person or organization to or for
whom we make payment under this policy
has rights to recover damages from
another, those rights are transferred to us
to the extent of our payment. That person
or organization must do everything
necessary to secure our rights and must
do nothing after loss to impair them. But
you may waive your rights against another
party in writing:
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a. Prior to a loss to your Covered
Property.
b. After a loss to your Covered Property
only if, at time of loss, that party is
one of the following :
(1) Someone insured by this
insurance;
(2) A business firm:
(a) Owned or controlled by you;
or
(b) That owns or controls you; or
(3) Your tenant.
You may also accept the usual bills of
lading or shipping receipts limiting the
liability of carriers.
This will not restrict your insurance.
2. Applicable to SECTION II -LIABILITY
Coverage:
If the insured has rights to recover all or
part of any payment we have made
under this Coverage Part, those rights
are transferred to us. The insured must
do nothing after loss to impair such
rights. At our request, the insured will
bring "suit" or transfer those rights to us
and help us enforce them.
~~Hanover ~ Insurance Group ..
OBF D681476 5701751
We waive any right of recovery we may
have against any person or
organization with whom you have a
written contract, permit or agreement
to waive any rights of recovery against
such person or organization because of
payments we make for injury or
damage arising out of your ongoing
operations or "your work" done under a
contract with that person or
organization and included in the
"products-completed operations
hazard".
This conditi on does not apply to
Medical Expenses Coverage.
L. Transfer of Your Rights and Duties Under
This Policy
Your rights and duties under this policy
may not be transferred without our written
consent except in the case of death of an
individual Named Insured. If you die, your
rights and duties will be transferred to your
legal representative but only while that
legal representative is acting within the
scope of their duties as your legal
representative. Until your legal
representative is appointed, anyone with
proper temporary custody of your property
will have your rights and duties but only
with respect to that property.
391-1003 08 16 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 81 of 81