Loading...
HomeMy WebLinkAboutTerris Barnes Walters Boigon Heath Lester Inc DBA TBWBH Props and Measures; 2022-02-11;AGREEMENT FOR REVENUE MEASURE FEASIBILITY ASSESSMENT SERVICES TERRIS BARNES WALTERS BOIGON HEATH LESTER, INC ... [DBA TBWBH PROPS & MEASURES] THIS AGREEMENT is ma9e and entered into as of the / /th day of February 2022, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Terris Barnes Walters Boigon Heath Lester, Inc. [DBA TBWBH Props & Measures], a California Corporation ("Contractor"). RECITALS A. City requires the professional services of a revenue measure strategy and communications consulting firm that is experienced in assessing the feasibility of potential municipal revenue measures. B. Contractor has the necessary experience in providing professional services and advice related to municipal revenue measure feasibility assessment. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor;s profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one year from the date first above written. The City Manager may amend the Agreement to extend it for two additional one-year periods or parts thereof. Extensions will be based upon a satisfacto·ry review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be ·performed during the initial Agreement term shall not exceed twenty thousand dollars ($20,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed one hundred thousand dollars ($100,000) per Agreement year. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". City Attorney Approved Version 6/12/18 Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and- in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment whiqh 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. SUBCO'NTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' · compensation is included as a loss, expense or cost for the purposes of this section, and that this secti.on 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 City Attorney Approved Version 6/12/18 2 carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an "occurrence" basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this projecUlocation or the general aggregate limit shall be twice the required occurrence limit. · 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase . replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or City Attorney Approved Version 6/12/18 3 maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Scott Chadwick Title City Manager Department City Manager's Office City of Carlsbad Address 1200 Carlsbad Village Drive Carlsbad, CA 92008 Phone No. 760-434-2820 For Contractor Name David Tick Title Business Manager Address 50 Osgood, 4th Floor San Francisco, CA 94133 Phone No. 415.291.1894 x224 Email dtick@propsandmeasures.com Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. City Attorney Approved Version 6/12/18 4 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. YesD No'~ 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten ( 10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will .be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable City Attorney Approved Version 6/12/18 5 under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. City Attorney Approved Version 6/12/18 6 EXHIBIT "A" SCOPE OF SERVICES Revenue Measure Feasibility Assessment TBWBH Props & Measures shall perform the following services as needed to assess the electoral feasibility of Revenue Measure(s) for the City: a. Collaborate with City staff and the City Council, as needed, to identify potential revenue approaches to be tested in scientific polling; b. Collaborate with City's pollster to design, conduct and analyze an opinion survey of voters within City's jurisdiction to assess the electoral feasibility of Revenue Measure(s); c. Conduct a demographic analysis of voters within the City's jurisdiction and how they break into key sub-groups by age, ethnicity, political party, length of reside·ncy, and other key criteria; d. Analyze past election results in the jurisdiction and region to understand voter turnout trends . and other relevant voting patterns; e. Research other local tax proposals that may be heading to an upcoming ballot that could compete with City's Measure(s); f. Make specific recommendations regarding the type of revenue measure to pursue, optimal election date, election type (polling place or mail-in), tax rate, tax structure and other important features; · g. Create a recommended timeline, including key milestones, for the recommended Revenue Measure(s); h. Present analysis and recommendations to City staff and City Council, as needed. Fee Schedule In consideration for the Services to be rendered by TBWBH Props & Measures pursuant to this Agreement, City shall pay a monthly fee of $7,000 to TBWBH Props & Measures, total not-to- exceed $20,000 for this Feasibility Assessment, estimated to last 2-3 months. Out-of-pocket expenses such as required travel, are reimbursable at cost. City Attorney Approved Version 6/12/18 8 I ADDITIONAL COVERAGES I ~ef # I Description I Coverage Code Form No. I Edition Date Non-owned NOWNO ~ _imit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium ~.000,000 I I ~ef # I Description I Coverage Code Form Nci. I Edition Date POLL POLL I _imit1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium 300,000 I I ~ef # I Description I Coverage Code Form No. I Edition Date State surcharge 4 STSR4 I _imit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium $54.00 I I ~ef # I Description I Coverage Code Form No. I Edition Date State surcharge 2 STSR2 I _imit1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium $39.00 I I ~ef # I Description I Coverage Code Form No. I Edition Date State Surcharge 5 STSR5 I _imit1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium $21.00 I I ~ef # I Description I Coverage Code Form No. I Edition Date State surcharge 3 STSR3 I _imit1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium $6.00 I I ~ef# I Description I Coverage Code Form No. I Edition Date Experience Mod Factor 1 EXP01 _imit1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium -$2, 178.00 I I ~ef # I Description I Coverage Code Form No. I Edition Date Schedule rate adjustment SRA I _imit1 I Limit2 I Umit3 I Deductible Amount I Deductible Type Premium -$4,003.00 I ~ef# I Description I Coverage Code Form No. I Edition Date STSR6 STSR6 _imit1 I Limit2 I Limit3 ., Deductible Amount I Deductible Type Premium $19.00 ~ef # I Descript_ion I Coverage Code Form No. I Edition Date State surcharge 1 STSR1 _imit1 I Limit2 I Limit3 I Deductible Amount I Deductible.Type Premium $187.00 ~ef # I Description I Coverage Code Form No. I Edition Date Premium discount POIS _imit 1 I Limit 2 I Limit3 I Deductible Amount I Deductible Type Premium '.:JFADTLCV Copyright 2001, AMS Services, Inc. ADDITIONAL COVERAGES Ref# I Description I Coverage Code Form No. I Edition Date Expense constant EXCNT · Limit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium $150.00 Ref# I Description I Coverage Code Form No. I Edition Date Waiver of Subrogation WVSUB Limit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium $267.00 Ref # I Description I Coverage Code Form No . I Edition Date Increased employer's liability . INEL Limit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium Ref# I Description I Coverage Code Form No. I Edition Date Limit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium Ref# I Description I Coverage Code Form No. I Edition Date Limit 1 I Limit2 · I Limit3 I Deductible Amount I Deductible Type Premium Ref# I Description I Coverage Code Form No. I Edition Date Limit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium Ref # I Description I Coverage Code Form No. I Edition Date Limit 1 I Limit2 .1 Limit3 I Deductible Amount I Deductible Type Premium Ref# I Description I Coverage Code Form No. I E.dition Date Limit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium Ref # I Description I Coverage Code Form No. I Edition Date Limit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium Ref# I Description I Coverage Code . Form No. I Edition Date Limit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium Ref # I Description , I Coverage Code· Form No. I Edition Date Limit 1 I Limit2 I Limit3 I Deductible Amount I Deductible Type Premium OFADTLCV Copyright 2001, AMS Services, l■c:. 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 lnc::luded 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 endorse.ment 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 required 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. 391-1006 0816 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 1 of 6 c. This provision does not apply: (1) Unless the written contract or written agreement was execu.ted or permit was i$sued prior to the "bodily InJuryfl, "property d~mage", or "personal injury and advertising injury". (2) To any person or organization included as an ins.ured by another endorsement issued by us and made part of this Coverage Part. (3) To any lessor of equipment: (a) After the equipment lease expires; or (b) If the "bodily injury", ~•property damage", "personal and· advertising injury" arises out of sole negligence of the lessor. (4) To any: (a) Owners or other interests from whom land has been leased if the "occurrence" takes place or the offense is committed after the lease for the land expires; or (b) Managers or lessors of premises if: (i) The ~occurrence" takes. place or the offense is committed after you cease to be a tenant in that premises; or (ii) The "bodily injury", "property damage",. "personal·. injurt' 9r "advertising injury" arises out of structural alterations, new construction or demolition operations performed by or on behalf of the manager or lessor, (5) To ,;bodily injury", "property damage" or "personal and i:idvertising ii:iji.Jry" arising out of the rendering of or the failure to render any professional services. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or mpnitoring of others by that insured, if the "occurrence" ' which caused the "bodily irijUry" or ;;property damage" or the offense which caused the "personal and advertising injury" involved the rendering of or. failure to render any professional services by or for you. d: With respect to the insurance afforded to these additional insureds, the following is added to SECTION II ,. LIABILITY, D. Liability and Medical Expense Limits of Insurance: · /&_\\Hanover ~ . Insurance Group- OBF 0431868 5D1518 The . most we will pay on behalf of the additional insured for a covered claim is the lesser of the amount of insurance: 1, Requir,ed l:>y the c911tract, agreement or permit described in Paragraph a.; or 2. Available under the applicable Limits of Insurance shown in the Declarations. This endorsement shall not increase the c1pplicable Limits of lnsura_nce shown in the Declarations e. All other insuring agreements, exclusions, and conditions of the policy apply. 2. Additional Insured -Broad Form Vendors The following is .added to SECTION II - LIABILITY, C. Who. ls An Insured: Additional Insured ~ Broad Form Vendors a. Any person .or organization. that .is a.vendor with Wh.o.rn you agreed in a Written contract or written agreement to include as an additional insured under this Coverage Part is <311 insured, but only with rel:lpect to' liability for "bodily injury" or "property damage" arising out of "your products" which are distribute.d or sold in the regular course of the vendor's business. b. The insurance afforded to such vendor described above: ' (1) Only applies to the extent permitted by law; (2) Will not be broader than the insurance which you are required by the contract or agreementto provide for such vendor; (:3) Will not be broader than coverage provided to any other insured; and (4) Qdes not app-ly . if the "bodily injury';, "property damage'' or "personal and advertising injury" is otherwise excluded from coverage under this Coverage Part, including any endorsements thereto c. With respect to . insurance afforded to such veridors, the following ad.diti6nal exclusions apply: The insurance afforded to the vendor does notapply to: .. . . . . . . . (1) "Bodily injury" or "property damage" for which the vendor iS obligated to pay damages by reasons of the assumption of liability in a contract or agreement. This exclusion does, not apply to liability for damages that the insured would have in the absence. of the contract or agreement; (2) Any expresl:l warranty urjauthorited l:ly you; 391'1006 08 16. Includes copyrighted materials of Insurance Service.s Offices, Inc., with its permission. (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; {?) Any failure to make such inspection, adjustments, tests or servicing as the vendor has agreed to make or normally 3. undertakes to make in the usual course of business in connection with the 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 Insurance 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 connection with the distribution or sale 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 anoth.er endorsement issued by us and made part of this Coverage Part. {11)Any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering 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 your premises nor to the use of elevators, b. For the purposes of this endorsement, the following definition 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 purpose of being: a. Worked on; or b. Used in your manufacturing process. c. The insurance afforded under this provision is excess over any other valid and collectible property insurance (including deductible) available 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, 391-1006 0816 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 3 of 6 emergency medical technician or paramedic ernployed by you if you are not engaged iri the business or occupation of providing medical, paramedical, surgical, dental, x-ray or nursing services, 6; Personal Injury -Broad Form a. SECTION II -LIABILITY, B. Exclusions, 2. Additional Exclusions Applic~ble only .to ''.Personal and Advertising Injury", para·graph e. is deleted. b. SECTION II -LIABILITY; F. Liability and Medical Expenses Definitions, 14. "Personal and ac:lv~rtising injury", paragraph b. is repl_acl3d by the following: b. Malicious prosecution or abuse of process. c. The following is a.dded to SECTION II - LIABILITY, F. LiabjHty and Me~:fical Expenses Definitions, Definition 14. "Personal and advertising injury": "Discrimination" (unless insurance thereof is prohibited by l~w} that res_ults in injury to the feelings or reputation of a natural person, bl.it only if such "discrimination" is: (1) Not done intentionally by or at the direction of: (a) . The insured; (b) Any officer of the corporation, director, stockholder, partner or member of the insured; and (2) Not directly or• indirectly relaJed to an "employee", not· to the employment, prospective employment or termination of any person or persons by an insured. d. For purposes of this endorsement, ~he follpwing defiriitic;in is aclded to SE_CTION II - LIABILITY, F. Liability and Medical Expenses Definitions: 1. "Oiscrimination" means the unlawful treatment of individuals based upon race; color, ethnic origin, gender, religion, age_, or sexual preference. "Discrimination" does not include the unlawful treatment ofindividuals bc1sed upon developmental, physical, cognitive; mental; sensory or emotional impairment or any combination bf these. e. This coverage does not apply if liability coverage for "personal and advertjsing injury" is excluded either by the provision_s of the Coverage Forni or any endorsement thereto. 7: -Product Recall Expense a. SEC.TION U -LIABILITY, B, Ex;clusions, 1. Applicable To Business Liability Coverage, &\\Hanover ~ Insurance Group- OBF 0431?68 5'D1518 o. Recall of Products, Work or Impaired Property is replaced by the following: o. Recall of Products, Work or Impaired Property · Damages claimed for any loss, cost or expense incurred by you _ or others for ttle loss of use, · withdraw.al, recall, inspection, repair, . replacement, adjustment, removal_ or disposal of: (1) "Your product"; (2) "Yo.ur work"; or (3) "Impaired property"; If such product, work or property is withdrawn or recalled from the market or from use by any person or organiz.ation because of a known o.r suspected defect, deficiency, inadequacy or dangerous condition in it, but this exclusion does not apply to "product recall expenses" that you incur for the "covered recall" of "your product", However; the exception to the excllis1on does not apply to "product recall expenses" resulting from: (4) Failure of any products to accomplish their intended purpose; (5) Breach of warranties of fitness, quality, durability or performance; (6) Loss of customer approval, or any cost incurred to regain customer approval; (7) Redistribution or replacemen't of "your proc!uct" wt,ich has been recalled by like products or substitutes; (8) Caprice or whim of the insured; (9) A condition likely to c.ause loss of which any insured _ knew or had reason to kriow at the inception of this insurance; (10)Asbestos, including loss, damage or clean up resulting from ;:isbestos or asbestos containing materials; or (11)Recall of "your products" that have no known or suspected defect solely because a known or suspected defec::t in ,mother of "your products" has been found. b. The following is added to SECTION II - LIABILITY, C. Who Is An Insured, paragraph 3.b .. : . "Product re.call expense" arising out of any withdrawal or recall that occurred before you acquired or formed the organization. 391-1006 0~ 16 Includes copyrighted materials of Insurance Servic~s Offices, Inc., with jts permission. Page 4 of 6 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 g'overnment 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; 391-1006 0816 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission .. Page 5 of 6 (2) Shipping the recalled products from any purchaser, distributor or user to .the place or places designated by you; (3) Remuneration paid to yo!Jr regular "employees'' for necessary overtime; (4) Hiring add.itional. persons, other than your regular ''employees''; (5) Expenses incurred by "employees" 8· including transportation and accqnimqdations; " (6) Expenses to rent adclitioncd warehouse or storag·e space; (7) Disposal of "your product", but only to .the e~tent that specific methods of destruct!on other than those employed fcir trash disc~rding or disposal are 9. required to avoid "bodily injury" or "property damage" as a resu.lt of such disposal, ·· you incur exclusively for the purpose of recalling "your product"; and b; Your lost prClfit resulting from such "covered recall". f.. Tbis Product Recall Expense Coverage does not apply: . ~~Hiinover .~ Insurance Group~ OBFD431868 5D1518 (1). 1.f tf1e "products -completed operations pl:iZa.rd.". is e~cluded from coverage under this Coverage Part including any endorsement thereto; or (2) To "product recall expense" arising out of any of "your products" that are otherwise excluded from coverage under this Coverage Part including endorsements thereto. llnintentional Failure to Disclose Hazards The following is added to SECTION II - LIABILITY; E. Liability ahd Medical Expenses General Conditions: Representations We will not disclaim coverage under this Cqverage Part if you fail to disclose all hazards existing as of the inception date of the policy provided such failure is not intentional. Unintentional Failure to Notify The following is added lo SECTION II - LIABILITY, E. Liability and Medical Expenses General Conditions, 2. Duties in the Event of Occurrence, Offense, Claim or Suit: Your tights afforded under this Coverage Part shall not be prejlldiced if . ycM fail .to give us notice, of ah "occurrence", offense, claim or "suit", solely due to your reasonable and documented belief that th.e "bodily injury", rrproperty damage" or "personal and advertising injqry" is ·not covered under this Policy. · · ALL OTHER TERMS, CONDITIONS, AND EXCLUSIONS REMAIN UNCHANGED. 391-1006 0816 Includes copyrlghted materials of lnsurance:Services Offices, Inc., with its permission. Page 6of~ Named Insured: Terris Barnes Walters Boigon Heath, Inc. Policy Number: OBFD431868 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 . the 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 this approach each insurer contributes equal amounts until it has paid its applicable Limit of Insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable Limit of Insurance to the total applicable limits of insurance of all insurers. ' f. When this 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 s_uch 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: 391-10030816 Includes copyrighted material of Insurance Services Office'. Inc., with its permission. Page80 of 81 &~Hanover ~ Insurance Croup- WZFD361933 5701518 WAIVER OF OlJR RIGHT TO RECOVER FROM OTHERS ENDOR$EMENT-CALIFO~NIA We have the right to recover our paynients from anyone liable for an injury covered by this policy. We wiU not enforc~ our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while. engaged in the work described in the ·Schedule. The additional premium for this endorsement shall be 2 % of the California workers' compensation premium otherwise due on such remuneration. -- Person or Organization ONLY WHERE REQUIRl;D BY CONTRACT Schedule Job De~cription This endorsement changes the policy to which it is attached an·d is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy:) Endorsement Effective Insured Policy No. WZF-D361933-03 Insurance CompanyTHE HA.NOVER AMERICAN INSURANCE C0MP,!1.NY Countersigned By WC 04 03 06 (Ed 04-84) Endorsement No.