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HomeMy WebLinkAboutTory R. Walker Engineering Inc; 2021-11-30; PSA22-1655CADocuSign Envelope ID: D47CCFA3-7111-48C4-91 FC-80C7229DF283 (Attachment U) PSA22-1655CA MASTER AGREEMENT FOR WATER RESOURCES STUDIES AND ENGINEERING TORY R. WALKER ENGINEERING, INC. THIS AGREEMENT is made and entered into as of the ______ day of _________ , 2021, by and between the Carlsbad Municipal Water District, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, hereinafter referred to as "CMWD", and Tory R. Walker Engineering, Inc, a California corporation, hereinafter referred to as "Contractor." RECITALS A.CMWD requires the professional services of a consulting firm that is experiencedin the water resources studies and engineering 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 water resources studies and engineering. D.Contractor has submitted a proposal to CMWD 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, CMWD and Contractor agree as follows: 1.SCOPE OF WORKCMWD 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 whileexercising 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 Executive Manager of CMWD ("Executive Manager") mayamend 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, CMWD needs, and appropriation of funds by the CMWD Board of Directors. 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 CMWD and be completed within the time specified in the Task Description for the project (see paragraph 5 below). Extensions of time for General Counsel Approved Version 6/12/18 1 of 10 30th November DocuSign Envelope ID: D47CCFA3-7111-48C4-91 FC-80C7229DF283 PSA22-1655CA a specific Task Description may be granted if requested by Contractor and agreed to in writing by the Executive Manager (or designee) or General Manager of CMWD as authorized by the Executive Manager ("General Manager"). The Executive Manager (or designee) or General Manager 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 CMWD 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 one hundred fifty thousand dollars ($150,000) per agreement year. 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, CMWD shall prepare a Project Task Description and Fee Allotment (the "Task Description") which , upon signature by Contractor and for CMWD, the Executive Manager (or designee) or General Manager, 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 CMWD. Contractor will be under control of CMWD only as to the result to be accomplished, but will consult with CMWD as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of CMWD for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled . CMWD will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD 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 CMWD and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which CMWD may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD 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 CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to CMWD 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 CMWD. 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 CMWD. General Counsel Approved Version 6/12/18 2 of 10 DocuSign Envelope ID: D47CCFA3-7111-48C4-91 FC-80C7229DF283 PSA22-1655CA 8. OTHER CONTRACTORS CMWD reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad 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 CMWD or the City of Carlsbad incurs or makes to or on behalf of an injured employee under CMWD'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 the Risk Manager or Executive Manager for CMWD approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. CMWD, 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 CMWD 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 CMWD). $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 CMWD's satisfaction, a declaration stating this. General Counsel Approved Version 6/12/18 3 of 10 DocuSign Envelope ID: D47CCFA3-7111-48C4-91 FC-80C7229DF283 PSA22-16SSCA 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 CMWD will be named as an additional insured on 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 CMWD sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then CMWD 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 CMWD to obtain or maintain insurance and CMWD 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. CMWD 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 CMWD 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 CMWD. 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 CMWD. Contractor will have the right to make one ( 1) copy of the work product for Contractor's records. General Counsel Approved Version 6/12/18 4of 10 DocuSign Envelope ID: D47CCFA3-7111-48C4-91 FC-80C7229DF283 PSA22-1655CA 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of CMWD and on behalf of Contractor under this Agreement. ForCMWD: Name Eleida Felix Yackel Title Senior Contract Administrator Dept Public Works Carlsbad Municipal Water District Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone 760-602-2767 For Contractor: Name Tory R. Walker Title President Address 122 Civic Center Drive, Suite 206 --------~----- Phone Mobile Email VISTA, CA 92084 760-414-9212 760-420-7922 Tory@trwengineering.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. Yes0 NoO 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or CMWD 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 General Counsel Approved Version 6/12/18 5 of 10 DocuSign Envelope ID: D47CCFA3-7111-48C4-91 FC-80C7229DF283 PSA22-1655CA 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 Executive Manager. The Executive 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 Executive 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, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD 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 CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD 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 CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. 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. CMWD 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, CMWD 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 CMWD 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 CMWD, 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 CMWD 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 General Counsel Approved Version 6/12/18 6 of 10 DocuSign Envelope ID: D47CCFA3-7111-48C4-91 FC-80C7229DF283 PSA22-1655CA 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 CMWD 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 CMWD, 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. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill General Counsel Approved Version 6/12/18 7 of 10 DocuSign Envelope ID: D47CCFA3-7111-48C4-91 FC-80C7229DF283 PSA22-1655CA EXHIBIT "A" SCOPE OF SERVICES Perform a variety of water resources studies and engineering tasks as outlined in individual Project Task Description & Fee Allotments (PTD&FA) related to the following: A. Hydrology and hydraulics studies. B. Storm drain design. C. Coastal analyses and design. D. Sediment transport analyses. E. Bridge scour analyses. F. Hydromodification, detention, and retention analyses and design. G. Low Impact Design (LID) analyses and design. H. Storm Water Quality Management Plans (SWQMP). I. Storm Water Pollution Prevention Plans (SWPPP). J. Plan review for compliance. K. Support with Dam Inundation Modeling. Requests for work not listed above must be contracted under separate agreement. General Counsel Approved Version 6/12/18 9 of 10 SB146932G (Ed. 10-19) h. "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (1) The exceptions contained in Subparagraphs d. or f.; or (2) Such inspections, adjustments, tests or se rvicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connecti on with the distribution or sale of the products. 2. This insurance does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. 3. This provision 2. does not apply to any vendor included as an insured by an endorsement issued by us and made a part of this Policy. 4. This provision 2. does not apply if "bodily injury" or "property damage" included within the "products- completed operations hazard" is excluded either by the provisions of the Policy or by endorsement. B. MISCELLANEOUS ADDITIONAL INSUREDS 1. Who Is An Insured is amended to include as an insured any person or organization (called additional insured) described in paragraphs 3.a. through 3.j. below whom you are required to add as an additional insured on this policy under a "written contract." 2. However, subject always to the terms and conditions of this policy, including the limits of insurance, we will not provide the additional insured with: a. A higher limit of insurance than required by such "written contract;" b. Coverage broader than required by such "written contract" and in no event greater than that described by the applicable paragraph a. through k. below; or c. Coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard." But this paragraph c. does not apply to the extent coverage for such liability is provided by paragraph 3.j. below. Any coverage granted by this endorsement shall apply on ly to the extent permitted by law. 3. Only the following persons or organizations can qualify as additional insu reds under this endorsement: a. Controlling Interest Any persons or organizations with a controlling interest in you but only with respect to their liability arising out of: (1) such person or organization's financial control of you ; or (2) Premises such person or organization owns, maintains or controls while you lease or occupy these premises; provided that the coverage granted to such additional insu reds does not apply to structural alterations, new construction or demolition operations performed by or for such additional insured. b. Co-owner of Insured Premises A co-owner of a premises co-owned by you and covered under this insurance but only with respect to the co-owners liability for "bodily injury," "property damage" or "personal and advertising injury" as co- owner of such premises. c. Grantor of Franchise Any person or organization that has granted a franchise to you, but only with respect to such person or organization's liability for "bodily injury," "property damage," or "personal and advertising injury" as grantor of a franchise to you. SB146932G (10-19) Page 2 of 7 Copyright, CNA All Rights Reserved. ;;;;;;;;;;;; ---- !!!!!!!! d. Lessor of Equipment SB1 46932G (Ed. 10-19) Any person or organization from whom you lease equipment, but only with respect to liability for "bodily injury," "property damage" or "personal and advertising injury" caused in whole or in part by your maintenance, operation or use of such equipment, provided that the "occurrence" giving rise to such "bodily injury" or "property damage" or the offense giving rise to such "personal and advertising injury" takes place prior to the term ination of such lease. e. Lessor of Land Any person or organization from whom you lease land, but only with respect to liability for "bod ily injury," "property damage" or "personal and advertising injury" arising out of the ownership, maintenance or use of that specific part of the land leased to you, provided that the "occurrence" giving rise to such "bodily injury" or "property damage" or the offense giving rise to such "personal and advertising injury," takes place prior to the termination of such lease. The insurance hereby afforded to the additional insured does not apply to structural alterations, new construction or demolition operations performed by, on behalf of or for such additional insured. f. Lessor of Premises An owner or lessor of premises leased to you, or such owner or lessor's real estate manager, but only with respect to liability for "bodily injury," "property damage" or "personal and advertising injury" arising out of the ownership, maintenance or use of such part of the premises leased to you, and provided that the "occurrence" giving rise to such "bodily injury" or "property damage" or the offense giving rise to such "personal and advertising injury," takes place prior to the termination of such lease. The insurance hereby afforded to the additional insured does not apply to structural alterations, new construction or demolition operations performed by, on behalf of or for such additional insured. g. Mortgagee, Assignee or Receiver A mortgagee, assignee or receiver of premises but only with respect to such mortgagee, assignee, or receiver's liability for "bod ily injury," "property damage" or "personal and advertising injury" arising out of the ownership, maintenance, or use of a premises by you. This insurance does not apply to structural alterations, new construction or demolition operations performed by, on behalf of or for such additional insured. h. State or Political Subdivisions A state or government agency or subdivision or political subdivision that has issued a permit or authorization, but only with respect to such government agency or subdivision or political subdivision's liability for "bodily inj ury," "property damage" or "personal and advertising injury" arising out of: (1) The following hazards in connection with premises you own, rent, or control and to wh ich this insurance applies: (a) The existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoistaway openings, sidewalk vaults, street banners, or decorations and similar exposures; or (b) The construction, erection, or removal of elevators; or (c) The ownership, maintenance or use of any elevators covered by this insurance; or (2) The permitted or authorized operations performed by you or on your behalf. But the coverage granted by th is paragraph does not apply to: (a) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or government agency or subdivision or political subdivision; or (b) "Bodily injury" or "property damage" included within the "products-completed operations hazard." With respect to this provision's requirement that additional insured status must be requested under a "written contract," we will treat as a "written contract" any governmental permit that requires you to add the governmental entity as an additional insured. SB146932G (10-19) Page 3 of 7 Copyright, CNA All Rights Reserved. i. Trade Show Event Lessor SB1 46932G (Ed. 10-19) With respect to your participation in a trade show event as an exhibitor, presenter or displayer, any person or organization whom you are required to include as an additional insured, but only with respect to such person or organization's liability for "bodily injury," "property damage," or "personal and advertising injury" caused by: a. Your acts or omissions; or b. Acts or omissions of those acting on your behalf; in the performance of your ongoing operations at the trade show premises during the trade show event. j. Other Person or Organization Any person or organization who is not an additional insured under paragraphs a. through i. above. Such additional insured is an insured solely for "bodily injury," "property damage" or "personal and advertising injury" for which such additional insured is liable because of your acts or omissions. The coverage granted by this paragraph does not apply to any person or organization: (1) For "bodily injury," "property damage," or "personal and advertising injury" arising out of the rendering or failure to render any professional services; (2) For "bodily injury" or "property damage" included in the "products-completed operations hazard." But this provision (2) does not apply to such "bodily injury" or "property damage" if: (a) It is entirely due to your negligence and specifically results from your work for the additional insured which is the subject to the "written contract"; and (b) The "written contract" requires you to make the person or organization an additional insured for such "bodily injury" or "property damage"; or (3) Who is afforded additional insured coverage under another endorsement attached to this policy. C. ADDITIONAL PROVISIONS PERTINENT TO ADDITIONAL INSURED COVERAGE 1. With respect only to additional insured coverage provided under paragraphs A. and B. above: a. The BUSINESSOWNERS COMMON POLICY CONDITIONS are amended to add the following to the Condition entitled Other Insurance: This insurance is excess of all other insurance available to an additional insured whether primary, excess, contingent or on any other basis. However, if a "written contract" requires that this insurance be either primary or primary and noncontributing, then this insurance will be primary and non-contributory relative solely to insurance on which the additional insured is a named insured. b. Under Liability and Medical Expense Definitions, the following definition is added: "Written contract" means a written contract or agreement that requires you to make a person or organization an additional insured on this policy, provided the contract or agreement: (1) Is currently in effect or becomes effective during the term of this policy; and (2) Was executed prior to: (a) The "bodily injury" or "property damage;" or (b) The offense that caused the "personal and advertising injury"; for which the additional insu red seeks coverage. 2. With respect to any additional insured added by this endorsement or by any other endorsement attached to this Coverage Part, the section entitled Who Is An Insured is amended to ma ke the following natural persons insureds. If the additional insured is: a. An individual, then his or her spouse is an insured; SB146932G (10-19) Page 4 of 7 Copyright, CNA All Rights Reserved. = --- !!!!!!!!!!!!! b. A partnership or joint ventu re, then its partners, members and their spouses are insureds; c. A limited liability company, then its members and managers are insureds; SB146932G (Ed. 10-19) d. An organization other than a partnership, joint venture or limited liability company, then its executive officers, directors and shareholders are insureds; or e. Any type of entity, then its employees are insureds; but only with respect to locations and operations covered by the additional insured endorsement's provisions, and only with respect to their respective roles within their organizations. Furthermore, employees of additional insureds are not insureds with respect to liability arising out of: (1) "Bodily injury" or "personal and advertising injury" to any fellow employee or to any natural person listed in paragraphs a. through d. above; (2) "Property damage" to property owned, occupied or used by their employer or by any fellow employee; or (3) Providing or failing to provide professional health care services. II. LIABILITY EXTENSION COVERAGES It is understood and agreed that this endorsement amends the Businessowners Liability Coverage Form. If any other endorsement attached to this policy amends any provision also amended by this endorsement, then that other endorsement controls with respect to such provision, and the changes made by this endorsement to such provision do not apply. A. Bodily injury -Expanded Definition Under Liability and Medical Expenses Definitions, the definition of "Bodily injury" is deleted and replaced by the following: "Bodily injury" means physical injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury by that person at any time which results as a consequence of the physical injury, sickness or disease. B. Broad Knowledge of Occurrence Under Businessowners Liability Conditions, the Condition entitled Duties In The Event of Occurrence, Offense, Claim or Suit is amended to add the following: Paragraphs a. and b. above apply to you or to any additional insured only when such "occurrence," offense, claim or "suit" is known to: (1) You or any additional insured that is an individual; (2) An y partner, if you or an additional insured is a partnership; (3) Any manager, if you or an additional insured is a limited liability company; (4) Any "executive officer" or insurance manager, if you or an additional insured is a corporation ; (5) Any trustee, if you or an add itional insured is a trust; or (6) Any elected or appointed official, if you or an additional insured is a political subdivision or public entity. This paragraph applies separately to you and an y additional insured. C. Estates, Legal Representatives and Spouses The estates, heirs, legal representatives and spouses of any natural person insured shall also be insured under this policy; provided, however, coverage is afforded to such estates, heirs, lega l representatives and spouses only for claims arising solely out of their capacity as such and, in the case of a spouse, where such claim seeks damages from marital common property, jointly held property, or property transferred from such natural person insured to such spouse. No coverage is provided for any act, error or omission of an estate, heir, legal representative or spouse outside the scope of such person's capacity as such, provided however that the spouse of a natural person Named Insured and the spouses of members or partners of joint venture or partnership Named Insureds are insureds with respect to such spouses' acts, errors or omissions in the conduct of the Named lnsured's business. SB1 46932G (10-1 9) Page 5 of 7 Copyright, CNA All Rights Reserved. D. Fellow Employee First Aid Coverage In the section entitled Who Is An Insured, paragraph 2.a.1. is amended to add the following: SB146932G (Ed. 10-19) The limitations described in subparagraphs 2.a.1.(a), (b) and (c) do not apply to your "employees" for "bodily injury" that results from providing cardiopulmonary resuscitation or other first aid services to a co-"employee" or "volunteer worker" that becomes necessary while your "employee" is performing duties in the conduct of your business. Your "employees" are hereby insureds for such services. But the insured status conferred by this provision does not apply to "employees" whose duties in your business are to provide professional health care services or health examinations. E. Legal Liability -Damage To Premises 1. Under B. Exclusions, 1. Applicable to Business Liability Coverage, Exclusion k. Damage To Property, is replaced by the following: k. Damage To Property "Property damage" to: 1. Property you own, rent or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, 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 any real property on which you or any contractors or subcontractors working directly or indirectly in your behalf are performing operations, if the "property damage" arises out of those operations; or 6. That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it. Paragraph 2 of this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs 1, 3, and 4, of this exclusion do not apply to "property damage" ( other than damage by fire or explosion) to premises: (1) rented to you: (2) temporarily occupied by you with the permission of the owner, or (3) to the contents of premises rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in Section D - Liability and Medical Expenses Limits of Insurance. Paragraphs 3, 4, 5, and 6 of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraph 6 of this exclusion does not apply to "property damage" included in the "products- completed operations hazard." 2. Under B. Exclusions, 1. Applicable to Business Liability Coverage, the following paragraph is added, and replaces the similar paragraph, if any, beneath paragraph (14) of the exclusion entitled Personal and Advertising Injury: Exclusions c, d, e, f, g, h, i, k, I, m, n, and o, do not apply to damage by fire to premises while rented to you or temporarily occupied by you with permission of the owner or to the contents of premises rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to this coverage as described in Section D. Liability And Medical Expenses Limits Of Insurance. SB146932G (10-1 9) Page 6 of 7 Copyright, CNA All Rights Reserved. -----iiiiiii ---- !!!!!!!!!!!!!!! SB146932G (Ed. 10-19) 3. The first Paragraph under item 5. Damage To Premises Rented To You Limit of the section entitled Liability And Medical Expenses Limits Of Insurance is replaced by the following : The most we will pay under Business Liability for damages because of "property damage" to any one premises, while rented to you or temporarily occupied by you with the permission of the owner, including contents of such premises rented to you for a period of 7 or fewer consecutive days, is the Damage to Premises Rented to You Limit. The Damage to Premises Rented to You Limit is the greater of: a. $1,000,000; or b. The Damage to Premises Rented to You Limit shown in the Declarations. F. Personal and Advertising Injury -Discrimination or Humiliation 1. Under Liability and Medical Expenses Definitions, the defi nition of "personal and advertising injury" is amended to add the following: h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is: (1) Not done intentionally by or at the direction of: (a) The insured; or (b) Any "executive officer," director, stockholder, partner, member or manager (if you are a limited liability company) of the insured; and (2) Not directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person or person by any insured. 2. Under B. Exclusions, 1. Applicable to Business Liability Coverage, the exclusion entitled Personal and Advertising Injury is amended to add the following additional exclusions: (15) Discrimination Relating to Room, Dwelling or Premises Caused by discrimination directly or indirectly related to the sale, rental, lease or sub-lease or prospective sale, rental, lease or sub-lease of any room, dwelling or premises by or at the direction of any insured. (16) Employment Related Discrimination Discrimination or humiliation directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person by any insured. (17) Fines or Penalties Fi nes or penalties levied or imposed by a governmental entity because of discrimination. 3. This provision (Personal and Advertising Injury -Discrimination or Humiliation) does not apply if Personal and Advertising Injury Liability is excluded either by the provisions of the Policy or by endorsement. G. Personal and Advertising Injury ~ Broadened Eviction Under Liability and Medical Expenses Definitions, the definition of "Personal and advertising injury" is amended to delete Paragraph c. and replace it with the following: c. The wrongful eviction from, wrongfu l 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, land lord or lessor. H. Waiver of Subrogation -Blanket We waive any right of recovery we may have against: a. An y person or organization with whom you have a written contract that requires such a waiver. All other terms and conditions of the Policy remain unchanged. SB146932G (10-19) Page 7 of 7 Copyright, CNA All Rights Reserved. ;;;;;;;;;;; ----- !!!!!!!!!!!!!!! -- CNA SB1 46968C (Ed. 10-19) IMPORTANT: THIS ENDORSEMENT CONTAINS DUTIES THAT APPLY TO THE ADDITIONAL INSURED IN THE EVENT OF OCCURRENCE, OFFENSE, CLAIM OR SUIT. SEE PARAGRAPH C., OF THIS ENDORSEMENT FOR THESE DUTIES. BLANKET ADDITIONAL INSURED ENDORSEMENT WITH PRODUCTS-COMPLETED OPERATIONS COVERAGE AND BLANKET WAIVER OF SUBROGATION Architects, Engineers and Surveyors This endorsement modifies insurance provided under the following: BUSINESSOWNERS LIABILITY COVERAGE FORM BUSINESSOWNERS COMMON POLI CY CONDITIONS A. Who Is An Insured is amended to include as an insured any person or organization whom you are required to add as an additional insured on this policy under a written contract or written agreement; but the written contract or written agreement must be: 1. Crrently in effect or becoming effective during the term of this policy; and 2. Executed prior to the: a. "Bodily injury" or "property damage"; or b. Offense that caused the "personal and advertising injury"; for which the additional insured seeks coverage B. The insurance provided to the additional insured is limited as follows: 1. The person or organization 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: a. Your acts or omissions; or b. The acts or omissions of those acting on your behalf, in the performance of your ongoing operations specified in the written contract or written agreement; or c. "Your work" that is specified in the written contract or written agreement, but only for "bodily injury" or "property damage" included in the "products-completed operations hazard," and only if: (1) The written contract or written agreement requires you to provide the additional insured such coverage; and (2) This Coverage Part provides such coverage. 2. The Limits of Insurance applicable to the additional insured are those specified in the written contract or written agreement or in the Declarations of this policy, whichever is less. These Limits of Insurance are inclusive of, and not in addition to, the Li mits of Insurance shown in the Declarations. 3. The insurance provided to the additional insured does not apply to "bodily injury," "property damage" or "personal and advertising injury" arising out of an architect's, engineer's, or surveyor's rendering of or failure to render any professional services including: a. The preparing, approving, or failing to prepare or approve maps, shop drawings, opi nions, reports, surveys, field orders, change orders or drawings and specifications by any architect, engineer or surveyor performing services on a project of which you serve as construction manager; or b. Inspection, supervision, quality control, engineering or architectural services done by you on a project of which you serve as construction manager. 4. The insurance provided to the additional insured does not apply to "bodily injury," "property damage" or "personal and advertising injury" arising out of construction or demolition work while you are acti ng as a construction or demolition contractor. SB1 46968C (Ed. 10-19) Page 1 of 3 Copyright, CNA All Rights Reserved. SB146968C (Ed . 10-19) C. Under Businessowners Liability Conditions , the condition entitled Duties In The Event of Occurrence, Offense, Claim or Suit is amended to add the following: An additional insured under this endorsement wi ll as soon as practicable: 1. Give written notice of an occurrence or an offense to us which may result in a claim or "suit" under this insurance; 2. Tender the defense and indemnity of any claim or "suit" to us for a loss we cover under this Coverage Part; 3. Except as provided for in paragraph D.2. below: a. Tender the defense and indemnity of any claim or "suit" to any other insurer which also has insurance for a loss we cover under this Coverage Part; and b. Agree to make available any other insurance which the additional insured has for a loss we cover under this Coverage Part. We have no duty to defend or indemnify an additional insured under this endorsement until we receive written notice of a claim or "suit" from the additional insured. D. With respect only to the insurance provided by this endorsement, the condition entitled Other Insurance of the BUSINESSOWNERS COMMON POLICY CONDITIONS is amended to delete paragraphs 2. and 3. and replace them with the following: 2. This insurance is excess over any other insurance available to the additional insured, whether primary, excess, contingent or on any other basis, But if required by the written contract or written agreement, this insurance will be primary and noncontributory relative to insurance on which the additional insured is a Named Insured. 3. When this insurance is excess, we will have no duty under Business Liability insurance to defend the additional insured against any "suit" if any other insurer has a duty to defend the additional insured against that "suit" If no other insurer defends, we will undertake to do so, but we will be entitled to the additional 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: (a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (b) 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. E. Additional Insured -Extended Coverage When an additional insured is added by this or any other endorsement attached to this Coverage Part, the section entitled Who Is An Insured is amended to make the following natural persons insureds: If the additional insured is: 1. An individual, then his or her spouse is an insured; 2. A partnership or joint venture, then its partners, members and their spouses are insureds; 3. A limited liability company, then its members and managers are insureds; 4. An organization other than a partnership, joint venture or limited liability company, then its executive officers, directors and shareholders are insureds; or 5. Any type of entity, then its employees are insureds; but only with respect to locations and operations covered by the additional insured endorsement's provisions, and only with respect to their respective roles within their organizations. Furthermore, employees of additional insureds are not insureds with respect to liability arising out of: (1) "Bodily injury" or "personal and advertising injury" to any fellow employee or to any natural person listed in paragraphs 1. through 4. above; SB146968C (Ed. 10-19) Page 2 of 3 Copyright, CNA All Rights Reserved. ;;;;;;;;;;;;;;; -;;;;;;;;;;;;;;; --- -- SB146968C (Ed. 10-19) (2) "Property damage" to property owned, occupied or used by their employer or by any fellow employee; or (3) Providing or failing to provide professional health care services. F. The condition entitled Transfer of Rights of Recovery Against Others to Us of the BUSINESSOWNERS COMMON POLICY CONDITIONS is amended to deleted paragraph 2. and replace it with the following: ·2. We waive any right of recovery we may have against any person or organization with whom you have agreed to waive such right of recovery in a written contract or agreement 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 within the "products-completed operations hazard." All other terms and conditions of the Policy remain unchanged. SB146968C (Ed. 10-19) Page 3 of 3 Copyright, CNA All Rights Reserved.