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21-248 Subtronic Corporation, Inspection of Blackberry Farm Pool Deck DrainsPublic Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 1 of 12 PUBLIC WORKS CONTRACT $200,000 OR LESS 1. PARTIES This public works contract (“Contract”) is made by and between the City of Cupertino (“City”), and Subtronic Corporation (“Contractor”) for Inspection of Blackberry Farm Pool Deck Drains, and is effective on the last date signed below (“Effective Date”). 2. SCOPE OF WORK Contractor will perform and provide all labor, materials, equipment, supplies, transportation and any other items or work necessary to perform and complete the work required for the Project (“Work”), as required in the Scope of Work, attached here and incorporated as Exhibit A, and in accordance with the terms and conditions of this Contract. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 3. TIME FOR COMPLETION 3.1 Term. This Contract begins on the Effective Date and ends on June 30, 2022 (“Contract Time”) unless terminated earlier as provided herein. Contractor’s Work shall begin on the date shown on a written Notice to Proceed (“NTP”) and must be fully completed within the Contract Time or on the date specifically provided in the Notice to Proceed. The City Engineer will not issue a NTP until the Contract is fully executed by both parties and City has received satisfactory proof of insurance and any performance and payment bonds that may be required. The Director of Public Works may authorize the extension of the Contract Time by up to sixty (60) calendar days through a written amendment to this Agreement, provided such extension does not include additional contract funds. 3.2 Time is of the essence for Contractor’s performance and completion of the Work. Contractor must have sufficient time, resources, and qualified staff to deliver the work on time. 3.3 Liquidated damages of $200.00 will be charged for each day of unexcused delay, or City may deduct the amount from Contractor’s payments. Liquidated damages are based on reasonably foreseeable consequences of delay and may include intangible losses which the Parties agree may be difficult to ascertain, such as loss of public confidence in City and its contractors, interference or loss of use of public facilities, and extended disruption to the public. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Work an amount that will based on actual costs but that will be capped so as not to exceed $2,940.00 Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 2 of 12 (“Contract Price”), for all of Contractor’s direct and indirect costs, including all labor, materials, supplies, equipment, taxes, insurance, bonds, and all overhead costs. 4.2 Invoices and Payments. Contractor must submit an invoice on the first day of each month, describing the Work performed during the preceding month, itemizing labor, materials, equipment and any incidental costs incurred. Contractor will be paid ninety-five percent (95%) of the undisputed amounts billed within thirty (30) days after City receives a properl y submitted invoice. Any retained amounts will be included with Contractor’s final payment within sixty (60) days of City’s acceptance of the Work as complete. 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee of City. Contractor is solely responsible for the means and methods of performing the Work and for the persons under this employment. Contractor is not entitled to worker’s compensation or any other City benefits. 5.2 Contractor’s Qualifications. Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Work in a competent and professional manner and according to the highest standards and best practices in the industry. 5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/or certified to perform the Work as required by law, and have procured a City Business License, if required by the Cupertino Municipal Code. Contractor shall possess a California Contractor’s License in good standing for the following classification(s): A - General Engineering Contractor, which must remain valid for the entire Contract Time. 5.4 Subcontractors. Only Contractor’s employees are authorized to work under this Contract. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Contract will apply to any approved subcontractor. 5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and equipment required to perform the Work under this Contract. 5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City as a Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 3 of 12 result of such determination, so that the City’s total expenses under this Agreement are not greater than they would have been had the determination not been made. 6. CHANGE ORDERS Amendments and change orders must be in writing and signed by City and Contractor. Contractor’s request for a change order must specify the proposed changes in the Work, Contract Price, and Contract Time. Each request must include all the supporting documentation, including but not limited to plans/drawings, detailed cost estimates, and impacts on schedule and completion date. 7. ASSIGNMENTS; SUCCESSORS Contractor shall not assign, hypothecate, or transfer this Contract or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Contract and subject to City approval, which shall not be unreasonably withheld. Control means fifty percent (50%) or more of the voting power of the business entity. This Contract is binding on Contractor, its heirs, successors, and permitted assigns. 8. PUBLICITY / SIGNS Any publicity generated by Contractor for the Project during the Contract Time, and for one (1) year thereafter must credit City contributions to the Project. The words “City of Cupertino” must be displayed in all pieces of publicity, flyers, press releases, posters, brochures, interviews, public service announcements, and newspaper articles. No signs may be posted or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City. 9. SUBCONTRACTORS 9.1 Contractor must perform all the Work with its own forces, except that Contractor may hire qualified subcontractors to perform up to 25% of the Work, provided that each subcontractor is required by contract to be bound by the provisions of this Contract. Contractor must provide City with written proof of compliance with this provision upon request. 9.2 City may reject any subcontractor of any tier and bar a subcontractor from performing Work on the Project, if City in its sole discretion determines that subcontractor’s Work falls short of the requirements of this Contract or constitutes grounds for rejection under the Public Contract Code. If City rejects a subcontractor, Contractor at its own expense must perform the subcontractor’s Work or hire a new subcontractor that is acceptable to City. A Notice of Completion must be recorded within fifteen (15) days after City accepts the Work if the Contract involves work by subcontractors. 10. RECORDS AND DAILY REPORTS 10.1 Contractor must maintain daily reports of the Work and submit them to City upon request and at completion of Project. The reports must describe the Work and specific tasks performed, the number of workers, the hours, the equipment, the weather conditions, and any circumstances affecting performance. City will have ownership of the reports, but Contractor will be permitted to retain copies. Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 4 of 12 10.2 If applicable, Contractor must keep a separate set of as-built drawings showing changes and updates to the Scope of Work or the original drawings as changes occur. Actual locations to scale must be identified for all major components of the Work, including mechanical, electrical and plumbing work; HVAC systems; utilities and utility connections; and any other components City determines should be included in the final drawings of the Project. Deviations from the original drawings must be shown in detail, and the location of all main runs, piping, conduit, ductwork, and drain lines must be shown by dimension and elevation. 10.3 Contractor must maintain complete and accurate accounting records of its Work, in accordance with generally accepted accounting principles, which must be available for City review and audi t, kept separate from other records, and maintained for four (4) years from the date of City’s final payment. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers and consultants (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, stop notices, actions, causes of action, demands, charges, losses and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings), of every nature arising directly or indirectly from this Contract or in any manner relating to any of the following: (a) Breach of contract, obligations, representations or warranties; (b) Performance or nonperformance of the Work or of any obligations under the Contract by Contractor, its employees, agents, servants, subcontractors or subcontractors; (c) Payment or nonpayment by Contractor or its subcontractors or sub-subcontractors for Work performed on or off the Project Site; and (d) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim, in accordance with California Public Contract Code Section 9201. At City’s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Contract. 11.3 Contractor’s duties under this entire Section 11 are not limited to Contract Price, Workers’ Compensation, or other employee benefits, or the insurance and bond coverage required in this Contract. Nothing in the Contract shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other Indemnitee. 11.4 Contractor’s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Contract, a purchase order or other transaction. 11.5 Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 5 of 12 entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 11.6 This Section 11 shall survive termination of the Contract. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit B. Contractor must provide satisfactory proof of insurance and maintain it for the Contract Time or longer as required by City. City will not execute the Contract until City has approved receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance at Contractor’s expense, deducting the costs from Contractor’s compensation, or terminating the Contract. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all laws and regulations applicable to this Contract. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor’s ability to perform. Contractor is responsible for verifying the employment status of employees performing the Work, as required by the Immigration Reform and Control Act 13.2 Labor Laws. (a) The following provisions apply to contracts of $1,000 or more: (i) In General. For purposes of California labor law, this is a public works contract subject to the provisions of Part 7 of Division 2 of the California Labor Code (Sections 1720 et seq.). In accordance with Labor Code Section 1771, Contractor and all subcontractors shall pay not less than current prevailing wage rates as determined by the California Department of Industrial Relations (“DIR”) to all workers employed on this project. In accordance with Labor Code Section 1815, Contractor and all subcontractors shall pay all workers employed on this project 1 ½ the basic rate of pay for work performed in excess specified hour limitations. The work performed pursuant to this Contract is subject to compliance monitoring and enforcement by the Department of Industrial Relations. (ii) Registration. Contractor and all subcontractors shall not engage in the performance of any work under this Contract unless currently registered and qualified to perform public work pursuant to section 1725.5 of the California Labor Code. Contractor represents and warrants that it is registered and qualified to perform public work pursuant to section 1725.5 of the Labor Code and will provide its DIR registration number, along with the registration numbers of any subcontractors as required, to the City. Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 6 of 12 (iii) Posting. Contractor shall post at the job site the determination of the DIR director of the prevailing rate of per diem wages together with all job notices that are required by regulations of the DIR. (iv) Reporting. Contractor and any subcontractors shall keep accurate payroll records in accordance with Section 1776 of the Labor Code and shall furnish the payroll records directly to the Labor Commissioner in accordance with the law. (v) Report on Prevailing Rate of Wages. The City has obtained the general prevailing rate of per diem wages in the vicinity of the project for each type of worker needed, a copy of which is on file at the City of Cupertino City Hall, and shall be made available to any interested party upon request. (vi) Employment of Apprentices. Contractor’s attention is directed to the provisions in Sections 1777.5 and 1777.6 of the Labor Code concerning the employment of apprentices by the Contractor or any subcontractor. It shall be the responsibility of the Contractor to effectuate compliance on the part of itself and any subcontractors with the requirements of said sections in the employment of apprentices. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex-officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. (vii) Penalties. Contractor’s attention is directed to provisions in Labor Code Sections 1775 and 1813. In accordance with Labor Code Section 1775, Contractor and subcontractors may be subject to penalties for Contractor’s and subcontractors’ failure to pay prevailing wage rates. In accordance with Labor Code Section 1813, Contractor or subcontractors may be subject to penalties for Contractor’s or subcontractors’ failure to pay overtime pay rates for hours worked by workers employed on this project in excess specified hour limitations. (b) Contractor must compensate workers who are paid less than prevailing wages or required to work more than a legal day’s work. Contractor will also be required to pa y City a penalty of $200.00 per worker for each day of violation. (c) As required by Labor Code Section 1861, by signing this Contract Contractor certifies as follows: “I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self- insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the work of this contract.” 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 7 of 12 Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or Contractor's employees or sub-contractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 13.4 Conflicts of Interest. Contractor, its employees, subcontractors, servants and agents, may not have, maintain or acquire a conflict of interest in relation to this Contract in violation of law, including Government Code section 1090 and Government Code section 81000 and their accompanying regulations. No officer, official, employee, consultant, or other agent of the City (“City Representative”) may have, maintain, or acquire a “financial interest” in the Contract, as that term is defined by state law, or in violation of a City ordinance or policy while serving as a City Representative or for one year thereafter. Contractor, its employees, subcontractors, servants, and agents warrant they are not employees of City nor do they have any relationship with City officials, officers, or employees that creates a conflict of interest. Contractor may be required to file a conflict of interest form if it makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of Regulations. Contractor agrees to abide by City rules governing gifts to public officials and employees. 13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating the Contract. City reserves all rights and remedies under the law and this Contract, including seeking indemnification. 14. BONDS For contracts of $25,000 or more, Contractor must obtain a payment bond and a performance bond, each in the penal sum of 100% of the Contract Price, using the Bond Forms attached and incorporated here as Exhibit C. Each bond must be issued by a surety admitted in California, with a financial rating from A.M. Best Company of Class A- or higher, or as otherwise acceptable to City. If an issuing surety cancels a bond or becomes insolvent, Contractor must provide a substitute bond from a surety acceptable to City within seven (7) calendar days after written notice from City. If Contractor fails to do so, City may in its sole discretion and without prior notice, purchase bonds at Contractor’s expense, deduct the cost from payments due Contractor, or terminate the Contract. City will not execute the Contract nor issue the NTP until the required bonds are submitted. 15. UTILITIES, TRENCHING, AND EXCAVATION 15.1 Contractor must call the Underground Service Alert (“USA”) 811 hotline and request marking of utility locations before digging or commencing Work. For underground service alerts for street lighting and traffic signal conduits, City’s Service Center must be called at (408) 777-3269. Government Code Section 4215 requires Contractor to notify City and Utility in writing if it discovers utilities or utility facilities not identified in the Contract. 15.2 Pursuant to Government Code Section 7104, Contractor must stop work, notify City in writing, and wait for instructions if one of the conditions below is found at the worksite. City will work with Contractor to amend the Contract or issue a change order if the discovered conditions materially change the Work/Performance, Contract Time or Contract Price. Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 8 of 12 (a) Material believed to be hazardous waste under Health and Safety Code Section 25117, and which requires removal to a Class I, Class II, or Class III disposal site pursuant to law; (b) Subsurface or latent physical conditions at the Project worksite differing from those indicated by information about the worksite made available to Contractor; and (c) Unknown physical conditions at the Project worksite of any unusual nature, materially different from those ordinarily encountered and from those generally recognized as inherent in the character of the Work. 15.3 For contracts $25,000 or higher that require excavation or involve trenches five feet or more in depth, Contractor must submit a detailed plan for City approval, per Labor Code Section 6705, prior to commencing work. The plan must show the design of shoring, bracing, sloping, and other provisions for worker protection from caving ground and other hazards. The protective system must comply with all Construction Safety Orders. If the plan varies from shoring system standards, it must be prepared by a registered civil or structural engineer. 16. URBAN RUNOFF MANAGEMENT 16.1 All Work must fully comply with federal, state, and local laws and regulations concerning storm water management. Contractor must avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, Contractor will use only the amount of water necessary to dampen the dust. Contractor will take all steps necessary to keep wash water out of the streets, gutters, and storm drains. Prior to the start of the Work, Contractor will implement erosion and sediment controls to prevent pollution of storm drains, and must upgrade and maintain these controls based on weather conditions or as otherwise required by City. These controls must be in place during the entire Contract Time and must be removed at the end of construction and completion of the Work. Such controls must include, but will not be limited to, the following requirements: (a) Install storm drain inlet protection devices such as sand bag barriers, filter fabric fences, and block and gravel filters at all drain inlets impacted by construction. During the annual rainy season, October 15 through June 15, storm drain inlets impacted by construction work must be filter-protected from onsite de-watering activities and saw-cutting activities. Shovel or vacuum saw-cut slurry and remove from the Work site; (b) Cover exposed piles of soil or construction material with plastic sheeting. Store all construction materials in containers; (c) Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain and at the end of each work day. When the Work is completed, wash the streets, collect and dispose of the wash water offsite in lawful manner; (d) After breaking old pavement, remove debris to avoid contact with rainfall/runoff; (e) Maintain a clean work area by removing trash, litter, and debris at the end of each work day and when Work is completed. Clean up any leaks, drips, and other spills as they occur. 16.2 These requirements must be used in conjunction with the California Stormwater Quality Association and California Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, and any other applicable documents on stormwater quality controls for construction. Contractor’s failure to comply with this Section will result in the issuance of noncompliance notices, citations, Work stop orders and regulatory fines. Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 9 of 12 17. PROJECT COORDINATION City Project Manager. City assigns Jo Anne Johnson as the City representative for all purposes under this Contract, with authority to require compliance with the Scope of Work. City may substitute Project Managers at any time and without prior notice to Contractor. Contractor Project Manager. Subject to City approval, Contractor assigns Stephanie Mauler as its single representative for all purposes under this Contract, with the responsibility to ensure progress with the Work. Contractor’s Project Manager is responsible for coordinating and scheduling the Work and must regularly update the City Project Manager about the status and any delays with the Work, consistent with the Scope of Work. Any substitutions must be approved in writing by City. 18. ABANDONMENT AND TERMINATION 18.1 City may abandon or postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Work performed through the date of abandonment and will be given reasonable time to close out the Work. With City’s pre-approval in writing, the time spent in closing out the Work will be compensated up to ten percent (10%) of the total time expended in performing the Work. 18.2 City may terminate the Contract for cause or without cause at any time. Contractor will be paid for satisfactory Work rendered through the termination date and will be given reasonable time to close out the Work. 18.3 Final payment will not be made until Contractor delivers the Work and provides records documenting the Work, products and deliverables completed. Nothing in the Section below is intended to delay, abridge or bar City’s right under this Section. 19. GOVERNING LAW, VENUE AND DISPUTE RESOLUTION This Contract is governed by the laws of State of California. Venue for any legal action shall be the Superior Court of the County of Santa Clara, California. The dispute resolution procedures of Public Contract Code Section 20104, et seq., incorporated here by reference, apply to this Contract and Contractor is required to continue the Work pending resolution of any dispute. Prior to filing a lawsuit, Contractor must comply with the claim filing requirements of the California Government Code. If the Parties elect arbitration, the arbitrator’s award must be supported by law and substantial evidence and include detailed written findings of law and fact. 20. ATTORNEY FEES If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal, or other proceedings to enforce its rights or a judgment in connection with this Contract, the prevailing party will be entitled to reasonable attorney fees and costs. Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 10 of 12 21. SIGNS/ADVERTISEMENT No signs may be displayed on or about City’s property, except signage which is required by law or by the Contract, without City’s prior written approval as to size, design and location. 22. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Contract. 23. WAIVER Neither acceptance of the Work nor payment thereof shall constitute a waiver of any contract provision. City waiver of any breach shall not constitute waiver of another provision or breach. 24. WARRANTY Contractor warrants that materials and equipment used will be new, of good quality, and free from defective workmanship and materials, and that the Work will be free from material defects not intrinsic in the design or materials. All Work, materials and equipment should pass to City free of claims, liens or encumbrances. Contractor warrants the Work and materials for one year from the date of City’s acceptance of the Work as complete (“Warranty Period”), except when a longer guarantee is provided by a supplier, manufacturer or is required by this Contract. During the Warranty Period, Contractor will repair or replace any Work defects or materials, including damage that arises from Contractor’s Warranty Work, except any wear and tear or damage resulting from improper use or maintenance. 25. ENTIRE CONTRACT This Contract and the attachments, documents, and statutes attached, referenced, or expressly incorporated herein, including authorized amendments or change orders constitute the final and complete contract between City and Contractor with respect to the Work and the Project. No oral contract or implied covenant will be enforceable against City. If there is any inconsistency between any term, clause, or provision of the main Contract and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Contract shall prevail and be controlling. 26. SEVERABILITY/PARTIAL INVALIDITY If a court finds any term or provision of this Contract to be illegal, invalid, or unenforceable, the legal portion of said provision and all other contract provisions will remain in full force and effect. 27. SURVIVAL The contract provisions which by their nature should survive the Contract or Completion of Project, including without limitation all provisions regarding warranties, indemnities, payment obligations, insurance, and bonds, shall remain in full force and effect after the Work is completed or Contract ends. Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 11 of 12 28. INSERTED PROVISIONS Each provision and clause required by law to be inserted in this Contract will be deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. 29. CAPTIONS The captions, titles, and headings in this Contract are for convenience only and may not be used in the construction or interpretation of the Contract or for any other purpose. 30. COUNTERPARTS This Contract may be executed in counterparts, each of which is an original and all of which taken together shall form one single document. 31. NOTICES All notices, requests, and approvals must be sent in writing to the persons below and will be considered effective on the date of personal delivery, the date confirmed by a reputable overnight delivery service, on the fifth (5th) calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino: Office of the City Manager 10300 Torre Ave. Cupertino, CA 95014 cc: Representative/Coordinator: Jo Anne Johnson Email: joannej@cupertino.org To Contractor: Subtronic Corporation 5031 Blum Rd., #2 Martinez, CA 94553 cc: Representative/Coordinator: Stephanie Mauler Email: subtronic@subtronic.com 32. EXECUTION The persons signing below warrant they have the authority to enter into this Contract and to legally bind their respective Parties. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code Section 313. SIGNATURES CONTINUE ON THE FOLLOWING PAGE Public Works Project: Inspection of Blackberry Farm Pool Deck Drains Public Works Contract / October 2021 Page 12 of 12 IN WITNESS WHEREOF, the parties have caused this Contract to be executed as of the Execution Date first above written. CITY OF CUPERTINO, a Municipal Corporation By: __________________________________ Title: ________________________________ Signature Date: _________________________ SUBTRONIC CORPORATION By: __________________________________ Title: ________________________________ Signature Date: _________________________ APPROVED AS TO FORM: By: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: By: KIRSTEN SQUARCIA City Clerk Date: Stephanie Mauler Project Coordinator Nov 10, 2021 Christopher D. Jensen Susan Michael Nov 10, 2021 CIP Manager Nov 10, 2021 Estimate Date of Estimate 11/3/2021 Estimate #35612 BILL TO: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Attn: Joanne Johnson 408.777.3245 ESTIMATE TO: Subtronic Corporation 5031 Blum Rd, #2 Martinez, CA 94553 P.O. #: TERMS Net 30 SURVEYOR JT DAY Estimate # 35612 - PW C... COUNTYJOB DATE TIME This estimate is good for 30 days. To schedule this project, please sign and return this agreement.Signature & Date TOTAL DESCRIPTION QTY COST TOTAL PROJECT LOCATION: Blackberry Farm Pools - 21975 San Fernando Avenue, Cupertino, CA AREA OF INSPECTION: The area of inspection is defined by information received November 1, 2021 regarding the TV inspection and discharge confirmation of four pool deck drains that are believed to be connected to the sanitary sewer system. SCOPE OF WORK: We will endeavor to inspect and record defects and confirm the nature and location of cross connection(s) in the above lines. ASSUMPTIONS: 1. No provision for cleaning is included in this estimate. 2. We assume there are sufficient access points for scope of work. 3. Unless noted otherwise we assume this is a prevailing wage project and we are not obligated to a project labor agreement. Page 1 Exhibit A Estimate Date of Estimate 11/3/2021 Estimate #35612 BILL TO: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Attn: Joanne Johnson 408.777.3245 ESTIMATE TO: Subtronic Corporation 5031 Blum Rd, #2 Martinez, CA 94553 P.O. #: TERMS Net 30 SURVEYOR JT DAY Estimate # 35612 - PW C... COUNTYJOB DATE TIME This estimate is good for 30 days. To schedule this project, please sign and return this agreement.Signature & Date TOTAL DESCRIPTION QTY COST TOTAL METHODOLOGY: We will televise the above lines using a push/rod reel with self leveling color camera and footage counter. QUALIFICATIONS: TV Inspection will be performed by a certified PACP operator. PRESENTATION: Observations will be presented on a DVD and a report issued. Footage and Asset ID numbers will appear on screen for the duration of the survey. COMPENSATION: For work preformed as described above including equipment, personnel and travel costs for the sum of: Color TV - Push Cam and locate, 2 man team, travel & site time, per hour 6 440.00 2,640.00 DVD and Report Generation 1 300.00 300.00 Page 2 Estimate Date of Estimate 11/3/2021 Estimate #35612 BILL TO: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Attn: Joanne Johnson 408.777.3245 ESTIMATE TO: Subtronic Corporation 5031 Blum Rd, #2 Martinez, CA 94553 P.O. #: TERMS Net 30 SURVEYOR JT DAY Estimate # 35612 - PW C... COUNTYJOB DATE TIME This estimate is good for 30 days. To schedule this project, please sign and return this agreement.Signature & Date TOTAL DESCRIPTION QTY COST TOTAL PREVAILING WAGE: State & Federal prevailing wage rates apply to all public works contracts as set forth in Labor Code Sections 1720, 1720.2, 1720.3, 1720.4, 771. and DAVIS-BACON ACT Title 40 U.S.C. If the work is performed over a number of years an increase in the quoted fees of 3% per annum will be applied. Wage Determination Classification: Laborer Group 1 Area 1 This estimate is good for 60 days. Insurance Coverage: General Liability: $2,000,000 per occurrence $ 4,000,000 aggregate Excess/Umbrella Liability: $5,000,000 Worker’s Comp: $1,000,000 Employer's Liability Professional Liability: $1,000,000 per claim $2,000,000 annl aggr. Automobile:$1,000,000 Combined Single Limit Page 3 _____________________________________ This quotation is subject to our Specification and Standard Conditions of Contract. CA License # 940232 $2,940.00 Insurance Requirements for Construction Contracts Version: Oct. 2021 1 Contractor shall procure and maintain for the duration of the contract, and for five years following the completion of the Project, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (“CGL”): Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, written on a comprehensive general liability form, and must include coverage for liability arising from Contractor’s or Subcontractor’s acts or omissions, including Contractor’s protected coverage, blanket contractual, products and completed operations, vehicle coverage and employer’s non-ownership liability coverage, with limits of at least $2,000,000 per occurrence. The CGL policy must protect against any and all liability for personal injury, death, property damage or destruction, and personal and advertising injury. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. a. It shall be a requirement under this agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (1) the minimum coverage/limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Contractor's policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO CG 20 10 04 13 c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO Form CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, then hired autos (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory Limits, and Employer’s Liability Insurance of no less than $1,000,000 per accident for bodily injury or disease, or as otherwise required by statute. If Contractor is self-insured, Contractor must provide a Certificate of Permission to Self-Insure, duly authorized by the DIR. ☐ N/A if box checked (Contractor provides written verification it has no employees). 4. Professional Liability with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate. ☐ N/A if box checked (Contract is not design/build). 5. Builder’s Risk. Course of Construction insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. ☒ N/A if box checked (Project does not involve construction or improvements/installations to property). PUBLIC WORKS CONSTRUCTION CONTRACTS Small Projects – $200,000 or less Insurance Requirements: Exhibit B Insurance Requirements for Construction Contracts Version: Oct. 2021 2 6. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate. ☒ N/A if box checked (Project does not involve environmental hazards) If Contractor maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. At City’s option, either: (1) Contractor shall cause the insurer to reduce or eliminate self-insured retentions as respects City, its officers, officials, employees, and volunteers; or (2) Contractor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or the City. OTHER INSURANCE PROVISIONS The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are to be covered as additional insureds on the CGL and automobile liability policies with respect to liability arising out of the Services performed by or on behalf of Contractor including materials, parts, or equipment furnished. Endorsement of CGL coverage shall be at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used. Primary Coverage For any claims related to this Project, Contractor’s insurance coverage shall be “primary and non-contributory” and at least as broad as ISO CG 20 01 04 13 with respect to City, its officers, officials, employees and volunteers, and shall not seek contribution from City’s insurance. If the limits of insurance are satisfied in part by Umbrella/Excess Insurance, the Umbrella/Excess Insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a “primary and non-contributory” basis for the benefit of City. Notice of Cancellation Each insurance policy required shall provide that coverage shall not be canceled, except with notice to the City. Each certificate of insurance must state that the coverage afforded by the policy is in force and will not be reduced, cancelled or allowed to expire without at least 30 days advance written notice to City, unless due to non-payment of premiums, in which case ten days advance written notice must be provided to City. Such notice must be sent to City via certified mail and addressed to the attention of the City Manager. Builder’s Risk Contractor may submit Builder’s Risk insurance in the form of Course of Construction coverage, which shall name the City as a loss payee, as its interest may appear. The Builder’s Risk policy must be issued on an occurrence basis, for all-risk coverage on a 100% completed value basis on the insurable portion of the Project, with no coinsurance penalties, and for the benefit of City. If the Project does not involve new or major reconstruction, City may elect, acting in its sole discretion, to accept an Installation Floater policy instead of Builder’s Risk. For such projects, the Property Installation Floater shall include improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment, and shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Insurance Requirements for Construction Contracts Version: Oct. 2021 3 Work, including during transit, installation, and testing at the City’s site. Waiver of Subrogation Each required policy must include an endorsement providing that the carrier agrees to waive any right of subrogation it may have against City. Contractor agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors. Acceptability of Insurers Insurance must be issued by insurers acceptable to City and licensed to do business in the State of California, and each insurer must have an A.M. Best’s financial strength rating of “A” or better and a financial size rating of “VII” or better. Verification of Coverage Contractor shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this contract. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time. Subcontractors Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13. Surety Bonds As required by Contract and described in the Contract Documents. The Payment and Performance Bonds shall be in a sum equal to the Contract Price. If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the Contract is for longer than one year a Maintenance Bond equal to 10% of the Contract Price is required. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California. Special Risks or Circumstances City reserves the right to modify these requirements, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 11/7/2021 AssuredPartners Design Professionals Insurance Services,LLC 3697 Mt.Diablo Blvd.,Suite 230 Lafayette CA 94549 Nancy Ferrick 510-272-1400 nancy.ferrick@assuredpartners.com License#:6003745 State Compensation Ins.Fund of CA 35076 SUBTRCORP Hartford Fire Insurance Company 19682SubtronicCorporation 5031 Blum Road,Suite 2 Martinez CA 94553-5342 National Casualty Company Hartford Casualty Insurance Company 29424 Underwriters at Lloyd's,London 32727 862755708 B X 1,000,000 X 300,000 10,000 1,000,000 2,000,000 X Y Y 57UUNOL5543 4/19/2021 4/19/2022 2,000,000 B 1,000,000 X X X Y Y 57UENOL5544 4/19/2021 4/19/2022 D X 7,000,000 X Y 57RHUOL5545 4/19/2021Y 4/19/2022 7,000,000 A X N Y 90794232021 4/19/2021 4/19/2022 1,000,000 1,000,000 1,000,000 C E Professional Liability Pollution Liability JEO0000381 ENP000639701 4/19/2021 9/9/2021 4/19/2022 4/19/2022 $2,000,000 $2,000,000 $2,000,000 per Claim Annl Aggr. per Claim/Annl Agg RE:Blackberry Farm Pools -21975 San Fernando Avenue,Cupertino,CA The City of Cupertino,its City Council,officers,officials,employees,agents,servants and volunteers are named as additional insureds as respects general and auto liability as required per written contract or agreement.General Liability is Primary/Non-Contributory per policy form wording.Insurance coverage includes waiver of subrogation per the attached endorsement(s). 30 Days Notice of Cancellation City of Cupertino 10300 Torre Avenue Cupertino CA 95014 HG 00 01 09 16 Page 1 of 21 © 2016 The Hartford (Includes copyrighted material of Insurance Services Office, Inc. with its permission.) COMMERCIAL GENERAL LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy. The words "we", "us" and "our" refer to the stock insurance company member of The Hartford providing this insurance. The word "insured" means any person or organization qualifying as such under Section II - Who Is An Insured. Other words and phrases that appear in quotation marks have special meaning. Refer to Section V - Definitions. SECTION I - COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement a.We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any claim or "suit" that may result. But: (1)The amount we will pay for damages is limited as described in Section III - Limits Of Insurance; and (2)Our right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments or settlements under Coverages A or B or medical expenses under Coverage C. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments - Coverages A and B. b.This insurance applies to "bodily injury" and "property damage" only if: (1)The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; (2)The "bodily injury" or "property damage" occurs during the policy period; and (3)Prior to the policy period, no insured listed under Paragraph 1.of Section II - Who Is An Insured and no "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period. c."Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1.of Section II - Who Is An Insured or any "employee" authorized by you to give or receive notice of an "occurrence" or claim: (1)Reports all, or any part, of the "bodily injury" or "property damage" to us or any other insurer; (2)Receives a written or verbal demand or claim for damages because of the "bodily injury" or "property damage"; or (3)Becomes aware by any other means that "bodily injury" or "property damage" has occurred or has begun to occur. d.Damages because of "bodily injury" include damages claimed by any person or organization for care, loss of services or death resulting at any time from the "bodily injury". e. Incidental Medical Malpractice And Good Samaritan Coverage "Bodily injury" arising out of the rendering of or failure to render the following health care services by any "employee" or "volunteer worker" shall be deemed to be caused by an "occurrence" for: Policy Number: 57UUNOL5543 Page 2 of 21 HG 00 01 09 16 (1)Professional health care services such as: (a)Medical,surgical,dental,laboratory,x- ray or nursing services or treatment, advice or instruction,or the related furnishing of food or beverages; (b)Any health or therapeutic service, treatment,advice or instruction;or (c)The furnishing or dispensing of drugs or medical,dental,or surgical supplies or appliances;or (2)First aid services,which include: (a)Cardiopulmonary resuscitation, whether performed manually or with a defibrillator;or (b)Services performed as a Good Samaritan. For the purpose of determining the limits of insurance,any act or omission together with all related acts or omissions in the furnishing of these services to any one person will be considered one "occurrence". However,this Incidental Medical Malpractice And Good Samaritan Coverage provision applies only if you are not engaged in the business or occupation of providing any of the services described in this provision. 2.Exclusions This insurance does not apply to: a.Expected Or Intended Injury "Bodily injury"or "property damage"expected or intended from the standpoint of the insured.This exclusion does not apply to "bodily injury"or "property damage"resulting from the use of reasonable force to protect persons or property. b.Contractual Liability "Bodily injury"or "property damage"for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement.This exclusion does not apply to liability for damages: (1)That the insured would have in the absence of the contract or agreement;or (2)Assumed in a contract or agreement that is an "insured contract",provided the "bodily injury"or "property damage" occurs subsequent to the execution of the contract or agreement.Solely for the purposes of liability assumed in an "insured contract",reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of "bodily injury"or "property damage",provided: (a)Liability to such party for,or for the cost of,that party's defense has also been assumed in the same "insured contract";and (b)Such attorney fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged. c.Liquor Liability "Bodily injury"or "property damage"for which any insured may be held liable by reason of: (1)Causing or contributing to the intoxication of any person; (2)The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol;or (3)Any statute,ordinance or regulation relating to the sale,gift,distribution or use of alcoholic beverages. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in: (a)The supervision,hiring,employment, training or monitoring of others by that insured;or (b)Providing or failing to provide transportation with respect to any person that may be under the influence of alcohol; if the "occurrence"which caused the "bodily injury"or "property damage",involved that which is described in Paragraph (1),(2)or (3) above. However,this exclusion applies only if you are in the business of manufacturing, distributing,selling,serving or furnishing alcoholic beverages.For the purposes of this exclusion,permitting a person to bring alcoholic beverages on your premises,for consumption on your premises,whether or not a fee is charged or a license is required for such activity,is not by itself considered the business of selling,serving or furnishing alcoholic beverages. d.Workers'Compensation And Similar Laws Any obligation of the insured under a workers' compensation,disability benefits or unemployment compensation law or any similar law. e.Employer's Liability "Bodily injury"to: (1)An "employee"of the insured arising out of and in the course of: HG 00 01 09 16 Page 3 of 21 (a)Employment by the insured; or (b)Performing duties related to the conduct of the insured's business; or (2)The spouse, child, parent, brother or sister of that "employee" as a consequence of Paragraph (1) above. This exclusion applies: (1)Whether the insured may be liable as an employer or in any other capacity; and (2)To any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the insured under an "insured contract". f. Pollution (1)"Bodily injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants": (a)At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured. However, this subparagraph does not apply to: (i)"Bodily injury" if sustained within a building and caused by smoke, fumes, vapor or soot produced by or originating from equipment that is used to heat, cool or dehumidify the building, or equipment that is used to heat water for personal use, by the building's occupants or their guests; (ii)"Bodily injury" or "property damage" for which you may be held liable, if you are a contractor and the owner or lessee of such premises, site or location has been added to your policy as an additional insured with respect to your ongoing operations performed for that additional insured at that premises, site or location and such premises, site or location is not and never was owned or occupied by, or rented or loaned to, any insured, other than that additional insured; or (iii)"Bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire"; (b)At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste; (c)Which are or were at any time transported, handled, stored, treated, disposed of, or processed as waste by or for: (i)Any insured; or (ii)Any person or organization for whom you may be legally responsible; (d)At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured's behalf are performing operations if the "pollutants" are brought on or to the premises, site or location in connection with such operations by such insured, contractor or subcontractor. However, this subparagraph does not apply to: (i)"Bodily injury" or "property damage" arising out of the escape of fuels, lubricants or other operating fluids which are needed to perform the normal electrical, hydraulic or mechanical functions necessary for the operation of "mobile equipment" or its parts, if such fuels, lubricants or other operating fluids escape from a vehicle part designed to hold, store or receive them. This exception does not apply if the "bodily injury" or "property damage" arises out of the intentional discharge, dispersal or release of the fuels, lubricants or other operating fluids, or if such fuels, lubricants or other operating fluids are brought on or to the premises, site or location with the intent that they be discharged, dispersed or released as part of the operations being performed by such insured, contractor or subcontractor; (ii)"Bodily injury" or "property damage" sustained within a building and caused by the release of gases, fumes or vapors from materials brought into that building in connection with operations being performed by you or on your behalf by a contractor or subcontractor; or (iii)"Bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire"; or (e)At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured's behalf are performing operations if the Page 4 of 21 HG 00 01 09 16 operations are to test for,monitor, clean up,remove,contain,treat, detoxify or neutralize,or in any way respond to,or assess the effects of, "pollutants". (2)Any loss,cost or expense arising out of any: (a)Request,demand,order or statutory or regulator y requirement that any insured or others test for,monitor, clean up,remove,contain,treat, detoxify or neutralize,or in any way respond to,or assess the effects of, "pollutants";or (b)Claim or suit by or on behalf of a governmental authority for damages because of testing for,monitoring, cleaning up,removing,containing, treating,detoxifying or neutralizing,or in any way responding to,or assessing the effects of,"pollutants". However,this paragraph does not apply to liability for damages because of "propert y damage"that the insured would have in the absence of such request,demand, order or statutory or regulator y requirement,or such claim or "suit"by or on behalf of a governmental authority. g.Aircraft,Auto Or Watercraft "Bodily injury"or "property damage"arising out of the ownership,maintenance,use or entrustment to others of any aircraft,"auto"or watercraft owned or operated by or rented or loaned to any insured.Use includes operation and "loading or unloading". This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision,hiring, employmen t,training or monitoring of others by that insured,if the "occurrence"which caused the "bodily injury"or "property damage"involved the ownership, maintenance,use or entrustment to others of any aircraft,"auto"or watercraft that is owned or operated by or rented or loaned to any insured. This exclusion does not apply to: (1)A watercraft while ashore on premises you own or rent; (2)A watercraft you do not own that is: (a)Less than 51 feet long;and (b)Not being used to carry persons for a charge; (3)Parking an "auto"on,or on the ways next to,premises you own or rent,provided the "auto"is not owned by or rented or loaned to you or the insured; (4)Liability assumed under any "insured contract"for the ownership,maintenance or use of aircraft or watercraft; (5)"Bodily injury"or "property damage" arising out of: (a)The operation of machinery or equipment that is attached to,or part of,a land vehicle that would qualify under the definition of "mobile equipment"if it were not subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged;or (b)The operation of any of the machinery or equipment listed in Paragraph f.(2) or f.(3)of the definition of "mobile equipment";or (6)An aircraft that is not owned by any insured and is hired,chartered or loaned with a paid crew.However,this exception does not apply if the insured has any other insurance for such "bodily injury"or "property damage",whether the other insurance is primary,excess,contingent or on any other basis. h.Mobile Equipment "Bodily injury"or "property damage"arising out of: (1)The transportation of "mobile equipment" by an "auto"owned or operated by or rented or loaned to any insured;or (2)The use of "mobile equipment"in,or while in practice for,or while being prepared for, any prearranged racing,speed, demolition,or stunting activity. i.War "Bodily injury"or "property damage",however caused,arising,directly or indirectly,out of: (1)War,including undeclared or civil war; (2)Warlike action by a military force,including action in hindering or defending against an actual or expected attack,by any government,sovereign or other authority using military personnel or other agents; or (3)Insurrection,rebellion,revolution,usurped power,or action taken by governmental authority in hindering or defending against any of these. j.Damage To Property "Property damage"to: (1)Property you own,rent,or occupy, including any costs or expenses incurred by you,or any other person,organization or entity,for repair,replacement, HG 00 01 09 16 Page 5 of 21 enhancement,restoration or maintenance of such property for any reason,including prevention of injury to a person or damage to another's property; (2)Premises you sell,give away or abandon, if the "property damage"arises out of any part of those premises; (3)Property loaned to you; (4)Personal property in the care,custody or control of the insured; (5)That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations,if the "property damage"arises out of those operations;or (6)That particular part of any property that must be restored,repaired or replaced because "your work"was incorrectly performed on it. Paragraphs (1),(3)and (4)of this exclusion do not apply to "property damage"(other than damage by fire)to premises,including the contents of such premises,rented to you for a period of seven or fewer consecutive days.A separate limit of insurance applies to Damage To Premises Rented To You as describ ed in Section III -Lim its Of Insurance. Paragraph (2)of this exclusion does not apply if the premises are "your work"and were never occupied,rented or held for rental by you. Paragraphs (3)and (4)of this exclusion do not apply to "property damage"arising from the use of elevators. Paragraphs (3),(4),(5)and (6)of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraphs (3)and (4)of this exclusion do not apply to "property damage"to borrowed equipment while not being used to perform operations at the job site. Paragraph (6)of this exclusion does not apply to "property damage"included in the "products-comp leted operations hazard". k.Damage To Your Product "Property damage"to "your product"arising out of it or any part of it. l.Damage To Your Work "Property damage"to "your work"arising out of it or any part of it and included in the "products-comp leted operations hazard". This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. m.Damage To Impaired Property Or Property Not Physically Injured "Property damage"to "impaired property"or property that has not been physically injured, arising out of: (1)A defect,deficiency,inadequacy or dangerous condition in "your product"or "your work";or (2)A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to "your product"or "your work"after it has been put to its intended use. n.Recall Of Products,Work Or Impaired Property Damages claimed for any loss,cost or expense incurred by you or others for the loss of use,withdrawal,recall,inspection,repair, replacement,adjustment,removal or disposal of: (1)"Your product"; (2)"Your work";or (3)"Impaired property"; if such product,work,or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect,deficiency, inadequacy or dangerous condition in it. o.Personal And Advertising Injury "Bodily injury"arising out of "personal and advertising injury". p.Access or Disclosure Of Confidential Or Personal Information And Data-related Liability Damages arising out of: (1)Any access to or disclosure of any person's or organization's confidential or personal information,including patents, trade secrets,processing methods, customer lists,financial information,credit card information,health information or any other type of nonpublic information;or (2)The loss of,loss of use of,damage to, corruption of,inability to access,or inability to manipulate electronic data. This exclusion applies even if damages are claimed for notification costs,credit monitoring expenses,forensic expenses, public relations expenses or any other loss, cost or expense incurred by you or others arising out of that which is described in Paragraph (1)or (2)above. Page 6 of 21 HG 00 01 09 16 However,unless Paragraph (1)above applies,this exclusion does not apply to damages because of "bodily injury". As used in this exclusion,electronic data means information,facts or programs stored as or on,created or used on,or transmitted to or from computer software,including systems and applications software,hard or floppy disks,CD-ROMS,tapes,drives,cells,data processing devices or any other media which are used with electronically controlled equipment. q.Employment-Related Practices "Bodily injury"to: (1)A person arising out of any "employment- related practices";or (2)The spouse,child,parent,brother or sister of that person as a consequence of "bodily injury"to that person at whom any "employment-related practices"are directed. This exclusion applies: (1)Whether the injury-causing event described in the definition of "employment- related practices"occurs before employment,during employment or after employment of that person; (2)Whether the insured may be liable as an employer or in any other capacity;and (3)To any obligation to share damages with or repay someone else who must pay damages because of the injury. r.Asbestos (1)"Bodily injury"or "property damage" arising out of the "asbestos hazard". (2)Any damages,judgments,settlements, loss,costs or expenses that: (a)May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not have occurred in whole or in part but for the "asbestos hazard"; (b)Arise out of any request,demand, order or statutory or regulatory requirement that any insured or others test for,monitor,clean up,remove, encapsulate,contain,treat,detoxify or neutralize or in any way respond to or assess the effects of an "asbestos hazard";or (c)Arise out of any claim or suit for damages because of testing for, monitoring,cleaning up,removing, encapsulating,containing,treating, detoxifying or neutralizing or in any way responding to or assessing the effects of an "asbestos hazard". s.Recording And Distribution Of Material Or Information In Violation Of Law "Bodily injury"or "property damage"arising directly or indirectly out of any action or omission that violates or is alleged to violate: (1)The Telephone Consumer Protection Act (TCPA),including any amendment of or addition to such law; (2)The CAN-SPAM Act of 2003,including any amendment of or addition to such law; (3)The Fair Credit Reporting Act (FCRA),and any amendment of or addition to such law, including the Fair and Accurate Credit Transaction Act (FACTA);or (4)Any federal,state or local statute, ordinance or regulation,other than the TCPA or CAN-SPAM Act of 2003 or FCRA and their amendments and additions,that addresses,prohibits or limits the printing, dissemination,disposal,collecting, recording,sending,transmitting, communicating or distribution of material or information. Damage To Premises Rented To You - Exception For Damage By Fire,Lightning Or Explosion Exclusions c.through h.and j.through n.do not apply to damage by fire,lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner.A separate limit of insurance applies to this coverage as described in Section III -Limits Of Insurance. COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY 1.Insuring Agreement a.We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies.W e will have the right and duty to defend the insured against any "suit"seeking those damages. However,we will have no duty to defend the insured against any "suit"seeking damages for "personal and advertising injury"to which this insurance does not apply.We may,at our discretion,investigate any offense and settle any claim or "suit"that may result.But: (1)The amount we will pay for damages is limited as described in Section III -Limits Of Insurance;and (2)Our right and duty to defend end when we have used up the applicable lim it of insurance in the payment of judgments or HG 00 01 09 16 Page 7 of 21 settlements under Coverages A or B or medical expenses under Coverage C. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments -Coverages A and B. b.This insurance applies to "personal and advertising injur y"caused by an offense arising out of your business but only if the offense was committed in the "coverage territory"during the policy period. 2.Exclusions This insurance does not apply to: a.Knowing Violation Of Rights Of Another "Personal and advertising injury"arising out of an offense committed by,at the direction or with the consent or acquiescence of the insured with the expectation of inflicting "personal and advertising injury". b.Material Published With Knowledge Of Falsity "Personal and advertising injury"arising out of oral,written or electronic publication,in any manner,of material,if done by or at the direction of the insured with knowledge of its falsity. c.Material Published Prior To Policy Period "Personal and advertising injury"arising out of oral,written or electronic publication,in any manner,of material whose first publication took place before the beginning of the policy period. d.Criminal Acts "Personal and advertising injury"arising out of a criminal act committed by or at the direction of the insured. e.Contractual Liability "Personal and advertising injury"for which the insured has assumed liability in a contract or agreement.This exclusion does not apply to liability for damages that the insured would have in the absence of the contract or agreement. f.Breach Of Contract "Personal and advertising injury"arising out of a breach of contract,except an implied contract to use another's "advertising idea"in your "advertisement". g.Quality Or Performance Of Goods -Failure To Conform To Statements "Personal and advertising injury"arising out of the failure of goods,products or services to conform with any statement of quality or performance made in your "advertisement". h.Wrong Description Of Prices "Personal and advertising injury"arising out of the wrong description of the price of goods, products or services. i.Infringement Of Intellectual Property Rights (1)"Personal and advertising injury"arising out of any actual or alleged infringement or violation of any intellectual property rights such as copyright,patent, trademark,trade name,trade secret,trade dress,service mark or other designation of origin or authenticity;or (2)Any injury or damage alleged in any clam or "suit"that also alleges an infringement or violation of any intellectual property right,whether such allegation of infringement or violation is made by you or by any other party involved in the claim or "suit",regardless of whether this insurance would otherwise apply. However,this exclusion does not apply if the only allegation in the claim or "suit"involving any intellectual property right is limited to: (1)Infringement,in your "advertisement",of: (a)Copyright; (b)Slogan;or (c)Title of any literary or artistic work;or (2)Copying,in your "advertisement",a person's or organization's "advertising idea"or style of "advertisement". j.Insureds In Media And Internet Type Businesses "Personal and advertising injury"committed by an insured whose business is: (1)Advertising,broadcasting,publishing or telecasting; (2)Designing or determining content of web sites for others;or (3)An Internet search,access,content or service provider. However,this exclusion does not apply to Paragraphs a.,b.and c.of the definition of "personal and advertising injury"under the Definitions Section. For the purposes of this exclusion,the placing of frames,borders or links,or advertising,for you or others anywhere on the Internet,is not by itself,considered the business of advertising,broadcasting,publishing or telecasting. k.Electronic Chatrooms Or Bulletin Boards "Personal and advertising injury"arising out of an electronic chatroom or bulletin board the Page 8 of 21 HG 00 01 09 16 insured hosts,owns,or over which the insured exercises control. l.Unauthorized Use Of Another's Name Or Product "Personal and advertising injury"arising out of the unauthorized use of another's name or product in your e-mail address,domain name or metatags,or any other similar tactics to mislead another's potential customers. m.Pollution "Personal and advertising injury"arising out of the actual,alleged or threatened discharge, dispersal,seepage,migration,release or escape of "pollutants"at any time. n.Pollution-Related Any loss,cost or expense arising out of any: (1)Request,demand,order or statutory or regulatory requirement that any insured or others test for,monitor,clean up,remove, contain,treat,detoxify or neutralize,or in any way respond to,or assess the effects of,"pollutants";or (2)Claim or suit by or on behalf of a governmental authority for damages because of testing for,monitoring, cleaning up,removing,containing, treating,detoxifying or neutralizing,or in any way responding to,or assessing the effects of,"pollutants". o.War "Personal and advertising injury",however caused,arising,directly or indirectly,out of: (1)War,including undeclared or civil war; (2)Warlike action by a military force,including action in hindering or defending against an actual or expected attack,by any government,sovereign or other authority using military personnel or other agents; or (3)Insurrection,rebellion,revolution,usurped power,or action taken by governmental authority in hindering or defending against any of these. p.Internet Advertisements And Content Of Others "Personal and advertising injury"arising out of: (1)An "advertisement"for others on your web site; (2)Placing a link to a web site of others on your web site; (3)Content,including information,sounds, text,graphics,or images from a web site of others displayed within a frame or border on your web site;or (4)Computer code,software or programming used to enable: (a)Your web site;or (b)The presentation or functionality of an "advertisement"or other content on your web site. q.Right Of Privacy Created By Statute "Personal and advertising injury"arising out of the violation of a person's right of privacy created by any state or federal act. However,this exclusion does not apply to liability for damages that the insured would have in the absence of such state or federal act. r.Violation Of Anti-Trust law "Personal and advertising injury"arising out of a violation of any anti-trust law. s.Securities "Personal and advertising injury"arising out of the fluctuation in price or value of any stocks, bonds or other securities. t.Recording And Distribution Of Material Or Information In Violation Of Law "Personal and advertising injury"arising directly or indirectly out of any action or omission that violates or is alleged to violate: (1)The Telephone Consumer Protection Act (TCPA),including any amendment of or addition to such law; (2)The CAN-SPAM Act of 2003,including any amendment of or addition to such law; (3)The Fair Credit Reporting Act (FCRA),and any amendment of or addition to such law, including the Fair and Accurate Credit Transaction Act (FACTA);or (4)Any federal,state or local statute, ordinance or regulation,other than the TCPA or CAN-SPAM Act of 2003 or FCRA and their amendments and additions,that addresses,prohibits or limits the printing, dissemination,disposal,collecting, recording,sending,transmitting, communicating or distribution of ma terial or information. u.Employment-Related Practices "Personal and advertising injury"to: (1)A person arising out of any "employment- related practices";or (2)The spouse,child,parent,brother or sister of that person as a consequence of "personal and advertising injury"to that person at whom any "employment-related practices"are directed. HG 00 01 09 16 Page 9 of 21 This exclusion applies: (1)Whether the injury-causing event described in the definition of "employment- related practices"occurs before employment,during employment or after employment of that person; (2)Whether the insured may be liable as an employer or in any other capacity;and (3)To any obligation to share damages with or repay someone else who must pay damages because of the injury. v.Asbestos (1)"Personal and advertising injury"arising out of the "asbestos hazard". (2)Any damages,judgments,settlements, loss,costs or expenses that: (a)May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not have occurred in whole or in part but for the "asbestos hazard"; (b)Arise out of any request,demand, order or statutory or regulatory requirement that any insured or others test for,monitor,clean up,remove, encapsulate,contain,treat,detoxify or neutralize or in any way respond to or assess the effects of an "asbestos hazard";or (c)Arise out of any claim or suit for damages because of testing for, monitoring,cleaning up,removing, encapsulating,containing,treating, detoxifying or neutralizing or in any way responding to or assessing the effects of an "asbestos hazard". w.Access Or Disclosure Of Confidential Or Personal Information "Personal and advertising injury"arising out of any access to or disclosure of any person's or organization's confidential or personal information,including patents,trade secrets, processing methods,customer lists,financial information,credit card information,health information or any other type of nonpublic information. This exclusion applies even if damages are claimed for notification costs,credit monitoring expenses,forensic expenses, public relations expenses or any other loss, cost or expense incurred by you or others arising out of any access to or disclosure of any person's or organization's confidential or personal information. COVERAGE C MEDICAL PAYMENTS 1.Insuring Agreement a.We will pay medical expenses as described below for "bodily injury"caused by an accident: (1)On premises you own or rent; (2)On ways next to premises you own or rent;or (3)Because of your operations; provided that: (1)The accident takes place in the "coverage territory"and during the policy period; (2)The expenses are incurred and reported to us within three years of the date of the accident;and (3)The injured person submits to examination,at our expense,by physicians of our choice as often as we reasonably require. b.We will make these payments regardless of fault.These payments will not exceed the applicable limit of insurance.We will pay reasonable expenses for: (1)First aid administered at the time of an accident; (2)Necessary medical,surgical,X-ray and dental services,including prosthetic devices;and (3)Necessary ambulance,hospital, professional nursing and funeral services. 2.Exclusions We will not pay expenses for "bodily injury": a.Any Insured To any insured,except "volunteer workers". b.Hired Person To a person hired to do work for or on behalf of any insured or a tenant of any insured. c.Injury On Normally Occupied Premises To a person injured on that part of premises you own or rent that the person normally occupies. d.Workers Compensation And Similar Laws To a person,whether or not an "employee"of any insured,if benefits for the "bodily injury"are payable or must be provided under a workers' compensation or disability benefits law or a similar law. e.Athletics Activities To a person injured while practicing, instructing or participating in any physical exercises or games,sports,or athletic contests. Page 10 of 21 HG 00 01 09 16 f.Products-Completed Operations Hazard Included within the "products-completed operations hazard". g.Coverage A Exclusions Excluded under Coverage A. SUPPLEMENTARY PAYMENTS -COVERAGES A AND B 1.We will pay,with respect to any claim we investigate or settle,or any "suit"against an insured we defend: a.All expenses we incur. b.Up to $1,000 for cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We do not have to furnish these bonds. c.The cost of appeal bonds or bonds to release attachments,but only for bond amounts within the applicable limit of insurance.We do not have to furnish these bonds. d.All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to $500 a day because of time off from work. e.All court costs taxed against the insured in the "suit".However,such costs do not include attorneys'fees,attorneys'expenses, witness or expert fees,or any other expenses of a party taxed to the insured. f.Prejudgment interest awarded against the insured on that part of the judgment we pay.If we make an offer to pay the applicable limit of insurance,we will not pay any prejudgment interest based on that period of time after the offer. g.All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid,offered to pay,or deposited in court the part of the judgment that is within the applicable limit of insurance. These payments will not reduce the limits of insurance. 2.If we defend an insured against a "suit"and an indemnitee of the insured is also named as a party to the "suit",we will defend that indemnitee if all of the follo wing conditions are met: a.The "suit"against the indemnitee seeks damages for which the insured has assumed the liability of the indemnitee in a contract or agreement that is an "insured contract"; b.This insurance applies to such liabilit y assumed by the insured; c.The obligation to defend,or the cost of the defense of,that indemnitee,has also been assumed by the insured in the same "insured contract"; d.The allegations in the "suit"and the information we know about the "occurrence " are such that no conflict appears to exist between the interests of the insured and the interests of the indemnitee; e.The indemnitee and the insured ask us to conduct and control the defense of that indemnitee against such "suit"and agree that we can assign the same counsel to defend the insured and the indemnitee;and f.The indemnitee: (1)Agrees in writing to: (a)Cooperate with us in the investigation, settlement or defense of the "suit"; (b)Immediately send us copies of any demands,notices,summonses or legal papers received in connection with the "suit"; (c)Notify any other insurer whose coverage is available to the indemnitee;and (d)Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and (2)Provides us with written authorization to: (a)Obtain records and other information related to the "suit";and (b)Conduct and control the defense of the indemnitee in such "suit". So long as the above conditions are met, attorneys'fees incurred by us in the defense of that indemnitee,necessary litigation expenses incurred by us and necessary litigation expenses incurred by the indemnitee at our request will be paid as Supplementary Payments. Notwithstanding the provisions of Paragraph 2.b.(2)of Section I -Coverage A -Bodily Injury And Property Damage Liability,such payments will not be deemed to be damages for "bodily injury"and "property damage"and will not reduce the limits of insurance. Our obligation to defend an insured's indemnitee and to pay for attorneys'fees and necessary litigation expenses as Supplementary Payments ends when: a.We have used up the applicable limit of insurance in the payment of judgments or settlements;or b.The conditions set forth above,or the terms of the agreement described in Paragraph f. above,are no longer met. HG 00 01 09 16 Page 11 of 21 SECTION II -WHO IS AN INSURED 1.If you are designated in the Declarations as: a.An individual,you and your spouse are insureds,but only with respect to the conduct of a business of which you are the sole owner. b.A partnership or joint venture,you are an insured.Your members,your partners,and their spouses are also insureds,but only with respect to the conduct of your business. c.A limited liability company,you are an insured.Your members are also insureds,but only with respect to the conduct of your business.Your managers are insureds,but only with respect to their duties as your managers. d.An organization other than a partnership,joint venture or limited liability company,you are an insured.Your "executive officers"and directors are insureds,but only with respect to their duties as your officers or directors.Your stockholders are also insureds,but only with respect to their liability as stockholders. e.A trust,you are an insured.Your trustees are also insureds,but only with respect to their duties as trustees. 2.Each of the following is also an insured: a.Employees And Volunteer Workers Your "volunteer workers"only while performing duties related to the conduct of your business,or your "employees",other than either your "executive officers"(if yo u are an organization other than a partnership,joint venture or limited liability company)or your managers (if you are a limited liability company),but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However,none of these "employees"or "volunteer workers"are insureds for: (1)"Bodily injury"or "personal and advertising injury": (a)To you,to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company),to a co-"employee" while in the course of his or her employment or performing duties related to the conduct of your business,or to your other "volunteer workers"while performing duties related to the conduct of your business; (b)To the spouse,child,parent,brother or sister of that co-"employee"or that "volunteer worker"as a consequence of Paragraph (1)(a)above; (c)For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraphs (1)(a)or (1)(b)above;or (d)Arising out of his or her providing or failing to provide professional health care services. If you are not in the business of providing professional health care services: (a)Subparagraphs (1)(a),(1)(b)and (1)(c) above do not apply to any "employee" or "volunteer worker"providing first aid services;and (b)Subparagraph (1)(d)above does not apply to any nurse,emergency medical technician or paramedic employed by you to provide such services. (2)"Property damage"to property: (a)Owned,occupied or used by, (b)Rented to,in the care,custody or control of,or over which physical control is being exercised for any purpose by you,any of your "employees","volunteer workers",any partner or member (if you are a partnership or joint venture),or any member (if you are a limited liability company). b.Real Estate Manager Any person (other than your "employee"or "volunteer worker"),or any organization while acting as your real estate manager. c.Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1)With respect to liability arising out of the maintenance or use of that property;and (2)Until your legal representative has been appointed. d.Legal Representative If You Die Your legal representative if you die,but only with respect to duties as such.That representative will have all your rights and duties under this Coverage Part. e.Unnamed Subsidiary Any subsidiary,and subsidiary thereof,of yours which is a legally incorporated entity of which you own a financial interest of more than 50%of the voting stock on the effective date of the Coverage Part. Page 12 of 21 HG 00 01 09 16 The insurance afforded herein for any subsidiary not named in this Coverage Part as a named insured does not apply to injury or damage with respect to which such insured is also a named insured under another policy or would be a named insured under such policy but for its termination or the exhaustion of its limits of insurance. 3.Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership,joint venture or limited liability company,and over which you maintain financial interest of more than 50%of the voting stock,will qualify as a Named Insured if there is no other similar insurance available to that organization.However: a.Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period,whichever is earlier; b.Coverage A does not apply to "bodily injury" or "property damage"that occurred before you acquired or formed the organization;and c.Coverage B does not apply to "personal and advertising injury"arising out of an offense committed before you acquired or formed the organization. 4.Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge,any person is an insured while operating such watercraft with your permission.Any other person or organization responsible for the conduct of such person is also an insured,but only with respect to liability arising out of the operation of the watercraft,and only if no other insurance of any kind is available to that person or or ganization for this liability. However,no person or organization is an insured with respect to: a."Bodily injury"to a co-"employee"of the person operating the watercraft;or b."Property damage"to property owned by, rented to,in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5.Additional Insureds When Required By Written Contract,Written Agreement Or Permit The following person(s)or organization(s)are an additional insured when you have agreed,in a written contract,written agreement or because of a permit issued by a state or political subdivision, that such person or organization be added as an additional insured on your policy,provided the injury or damage occurs subsequent to the execution of the contract or agreement. A person or organization is an additional insured under this provision only for that period of time required by the contract or agreement. However,no such person or organization is an insured under this provision if such person or organization is included as an insured by an endorsement issued by us and made a part of this Coverage Part. a.Vendors Any person(s)or organization(s)(referred to below as vendor),but only with respect to "bodily injury"or "property damage"arising out of "your products"which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part provides coverage for "bodily injury"or "property damage"included within the "products-completed operations hazard". (1)The insurance afforded the vendor is subject to the following additional exclusions: This insurance does not apply to: (a)"Bodily injury"or "property damage"for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (b)Any express warranty unauthorized by you; (c)Any physical or chemical change in the product made intentionally by the vendor; (d)Repackaging,except when unpacked solely for the purpose of inspection, demonstration,testing,or the substitution of parts under instructions from the manufacturer,and then repackaged in the original container; (e)Any failure to make such inspections, adjustments,tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business,in connection with the distribution or sale of the products; (f)Demonstration,installation,servicing or repair operations,except such operations performed at the vendor's premises in connection with the sale of the product; (g)Products which,after distribution or sale by you,have been labeled or relabeled or used as a container,part or ingredient of any other thing or substance by or for the vendor;or HG 00 01 09 16 Page 13 of 21 (h)"Bodily injury"or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf.However,this exclusion does not apply to: (i)The exceptions contained in Sub- paragraphs (d)or (f);or (ii)Such inspections,adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business,in connection with the distribution or sale of the products. (2)This insurance does not apply to any insured person or organization,from whom you have acquired such products, or any ingredient,part or container, entering into,accompanying or containing such products. b.Lessors Of Equipment (1)Any person(s)or organization(s)from whom you lease equipment;but only with respect to their liability for "bodily injury", "property damage"or "personal and advertising injury"caused,in whole or in part,by your maintenance,operation or use of equipment leased to you by such person(s)or organization(s). (2)With respect to the insurance afforded to these additional insureds this insurance does not apply to any "occurrence"which takes place after the equipment lease expires. c.Lessors Of Land Or Premises Any person or organization from whom you lease land or premises,but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. With respect to the insurance afforded these additional insureds the following additional exclusions apply: This insurance does not apply to: 1.Any "occurrence"which takes place after you cease to lease that land;or 2.Structural alterations,new construction or demolition operations performed by or on behalf of such person or organization. d.Architects,Engineers Or Surveyors Any architect,engineer,or surveyor,but only with respect to liability for "bodily injury", "property damage"or "personal and advertising injury"caused,in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (1)In connection with your premises;or (2)In the performance of your ongoing operations performed by you or on your behalf. With respect to the insurance afforded these additional insureds,the following additional exclusion applies: This insurance does not apply to "bodily injury","property damage"or "personal and advertising injury"arising out of the rendering of or the failure to render any professional services by or for you,including: 1.The preparing,approving,or failing to prepare or approve,maps,shop drawings, opinions,reports,surveys,field orders, change orders or drawings and specifications;or 2.Supervisory,inspection,architectural or engineering activities. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision,hiring, employment,training or monitoring of others by that insured,if the "occurrence"which caused the "bodily injury"or "property damage",or the offense which caused the "personal and advertising injury",involved the rendering of or the failure to render any professional services by or for you. e.Permits Issued By State Or Political Subdivisions Any state or political subdivision,but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. With respect to the insurance afforded these additional insureds,this insurance does not apply to: (1)"Bodily injury","property damage"or "personal and advertising injury"arising out of operations performed for the state or municipality;or (2)"Bodily injury"or "property damage" included within the "products-comp leted operations hazard". f.Any Other Party Any other person or organization who is not an additional insured under Paragraphs a. through e.above,but only with respect to liability for "bodily injury","property damage" or "personal and advertising injury"caused,in whole or in part,by your acts or omissions or the acts or omissions of those acting on your behalf: (1)In the performance of your ongoing operations; Page 14 of 21 HG 00 01 09 16 (2)In connection with your premises owned by or rented to you;or (3)In connection with "your work"and included within the "products-completed operations hazard",but only if (a)The written contract or agreement requires you to provide such coverage to such additional insured;and (b)This Coverage Part provides coverage for "bodily injury"or "property damage" included within the "products- completed operations hazard". However: (1)The insurance afforded to such additional insured only applies to the extent permitted by law;and (2)If coverage provided to the additional insured is required by a contract or agreement,the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. With respect to the insurance afforded to these additional insureds,this insurance does not apply to: "Bodily injury","property damage"or "personal and advertising injury"arising out of the rendering of,or the failure to render,any professional architectural,engineering or surveying services,including: (1)The preparing,approving,or failing to prepare or approve,maps,shop drawings, opinions,reports,surveys,field orders, change orders or drawings and specifications;or (2)Supervisory,inspection,architectural or engineering activities. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision,hiring, employmen t,training or monitoring of others by that insured,if the "occurrence"which caused the "bodily injury"or "property damage",or the offense which caused the "personal and advertising injury",involved the rendering of or the failure to render any professional services by or for you. The limits of insurance that apply to additional insureds is described in Section III -Limits Of Insurance. How this insurance applies when other insurance is available to the additional insured is described in the Other Insurance Condition in Section IV - Commercial General Liability Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability compan y that is not shown as a Named Insured in the Declarations. SECTION III -LIMITS OF INSURANCE 1.The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a.Insureds; b.Claims made or "suits"brought;or c.Persons or organizations making claims or bringing "suits". 2.General Aggregate Limit The General Aggregate Limit is the most we will pay for the sum of: a.Medical expenses under Coverage C; b.Damages under Coverage A,except damages because of "bodily injur y"or "property damage"included in the "products- completed operations hazard";and c.Damages under Coverage B. 3.Products-Completed Operations Aggregate Limit The Products-Completed Operations Aggregate Limit is the most we will pay under Coverage A for damages because of "bodily injury"and "property damage"included in the "products- completed operations hazard". 4.Personal And Advertising Injury Limit Subject to 2.above,the Personal and Advertising Injury Limit is the most we will pay under Coverage B for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization. 5.Each Occurrence Limit Subject to 2.or 3.above,whichever applies,the Each Occurrence Limit is the most we will pay for the sum of: a.Damages under Coverage A;and b.Medical expenses under Coverage C because of all "bodily injury"and "property damage"arising out of any one "occurrence". 6.Damage To Premises Rented To You Limit Subject to 5.above,the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages because of "property damage"to any one premises,while rented to you,or in the case of damage by fire, lightning or explosion,while rented to you or temporarily occupied by you with permission of the owner. HG 00 01 09 16 Page 15 of 21 In the case of damage by fire,lightning or explosion,the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event,whether such damage results from fire,lightning or explosion or any combination of these. 7.Medical Expense Limit Subject to 5.above,the Medical Expense Limit is the most we will pay under Coverage C for all medical expenses because of "bodily injury" sustained by any one person. 8.How Limits Apply To Additional Insureds If you have agreed in a written contract or written agreement that another person or organization be added as an additional insured on your p olicy, the most we will pay on behalf of such additional insured is the lesser of: a.The limits of insurance specified in the written contract or written agreement;or b.The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to Limits of Insurance shown in the Declarations and described in this Section. The Limits of Insurance of this Coverage Part apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations,unless the policy period is extended after issuance for an additional period of less than 12 months.In that case,the additional period will be deemed part of the last preceding period for purposes of determining the Limits of Insurance. SECTION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS 1.Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part. 2.Duties In The Event Of Occurrence,Offense, Claim Or Suit a.Notice Of Occurrence Or Offense You or any additional insured must see to it that we ar e notified as soon as practicable of an "occurrence"or an offense which may result in a claim.To the extent possible, notice should include: (1)How,when and where the "occurrence"or offense took place; (2)The names and addresses of any injured persons and witnesses;and (3)The nature and location of any injury or damage arising out of the "occurrence"or offense. b.Notice Of Claim If a claim is made or "suit"is brought against any insured,you or any additional insured must: (1)Immediately record the specifics of the claim or "suit"and the date received;and (2)Notify us as soon as practicable. You or any additional insured must see to it that we receive written notice of the claim or "suit"as soon as practicable. c.Assistance And Cooperation Of The Insured You and any other involved insured must: (1)Immediately send us copies of any demands,notices,summonses or legal papers received in connection with the claim or "suit"; (2)Authorize us to obtain records and other information; (3)Cooperate with us in the investigation or settlement of the claim or defense against the "suit";and (4)Assist us,upon our request,in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply. d.Obligations At The Insureds Own Cost No insured will,except at that insured's own cost,voluntarily make a payment,assume any obligation,or incur any expense,other than for first aid,without our consent. e.Additional Insureds Other Insurance If we cover a claim or "suit"under this Coverage Part that may also be covered by other insurance available to an additional insured,such additional insured must submit such claim or "suit"to the other insurer for defense and indemnity. However,this provision does not apply to the extent that you have agreed in a written contract or written agreement that this insurance is primary and non-contributory with the additional insured's own insurance. f.Knowledge Of An Occurrence,Offense, Claim Or Suit Paragraphs a.and b.apply to you or to any additional insured only when such "occurrence",offense,claim or "suit"is known to: (1)You or any additional insured that is an individual; (2)Any partner,if you or the additional insured is a partnership; Page 16 of 21 HG 00 01 09 16 (3)Any manager,if you or the additional insured is a limited liability company; (4)Any "executive officer"or insurance manager,if you or the additional insured is a corporation; (5)Any trustee,if you or the additional insured is a trust;or (6)Any elected or appointed official,if you or the additional insured is a political subdivision or public entity. This duty applies separately to you and any additional insured. 3.Legal Action Against Us No person or organization has a right under this Coverage Part: a.To join us as a party or otherwise bring us into a "suit"asking for damages from an insured;or b.To sue us on this Coverage Part unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured;but we will not be liable for damages that are not payable under the terms of this Coverage Part or that are in excess of the applicable limit of insurance.An agreed settlement means a settlement and release of liability signed by us,the insured and the claimant or the claimant's legal representative. 4.Other Insurance If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part,our obligations are limited as follows: a.Primary Insurance This insurance is primary except when b. below applies.If other insurance is also primary,we will share with all that other insurance by the method described in c. below. b.Excess Insurance This insurance is excess over any of the other insurance,whether primary,excess, contingent or on any other basis: (1)Your Work That is Fire,Extended Coverage,Builder's Risk,Installation Risk or similar coverage for "your work"; (2)Premises Rented To You That is fire,lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; (3)Tenant Liability That is insurance purchased by you to cover your liability as a tenant for "property damage"to premises rented to you or temporarily occupied by you with permission of the owner; (4)Aircraft,Auto Or Watercraft If the loss arises out of the maintenance or use of aircraft,"autos"or watercraft to the extent not subject to Exclusion g.of Section I -Coverage A -Bodily Injury And Property Damage Liability; (5)Property Damage To Borrowed Equipment Or Use Of Elevators If the loss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion j.of Section I -Coverage A - Bodily Injury And Property Damage Liability; (6)When You Are Added As An Additional Insured To Other Insurance Any other insurance available to you covering liability for damages arising out of the premises or operations,or products and completed operations,for which you have been added as an additional insured by that insurance;or (7)When You Add Others As An Additional Insured To This Insurance Any other insurance available to an additional insured. However,the following provisions apply to other insurance available to any person or organization who is an additional insured under this coverage part. (a)Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract or written agreement that this insurance be primary.If other insurance is also primary,we will share with all that other insurance by the method described in c.below. (b)Primary And Non-Contributory To Other Insurance When Required By Contract If you have agreed in a written contract,written agreement,or permit that this insurance is primary and non- contributory with the additional insured's own insurance,this insurance is primary and we will not seek contribution from that other insurance. HG 00 01 09 16 Page 17 of 21 Paragraphs (a)and (b)do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess,we will have no duty under Coverages A or B to defend the insured against any "suit"if any other insurer has a duty to defend the insured against that "suit".If no other insurer defends, we will undertake to do so,but we will be entitled to the insured's rights against all those other insurers. When this insurance is excess over other insurance,we will pay only our share of the amount of the loss,if any,that exceeds the sum of: (1)The total amount that all such other insurance would pay for the loss in the absence of this insurance;and (2)The total of all deductible and self-insured amounts under all that other insurance. We will share the remaining loss,if any,with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c.Method Of Sharing If all of the other insurance permits contribution by equal shares,we will follow this method also.Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains,whichever comes first. If any of the other insurance does not permit contribution by equal shares,we will contribute by limits.Under this method,each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 5.Premium Audit a.We will compute all premiums for this Coverage Part in accordance with our rules and rates. b.Premium shown in this Coverage Part as advance premium is a deposit premium only. At the close of each audit period we will compute the earned premium for that period and send notice to the first Named Insured. The due date for audit and retrospective premiums is the date shown as the due date on the bill.If the sum of the advance and audit premiums paid for the policy period is greater than the earned premium,we will return the excess to the first Named Insured. c.The first Named Insured must keep records of the information we need for premium computation,and send us copies at such times as we may request. 6.Representations a.When You Accept This Policy By accepting this policy,you agree: (1)The statements in the Declarations are accurate and complete; (2)Those statements are based upon representations you made to us;and (3)We have issued this policy in reliance upon your representations. b.Unintentional Failure To Disclose Hazards If unintentionally you should fail to disclose all hazards relating to the conduct of your business that exist at the inception date of this Coverage Part,we shall not deny coverage under this Coverage Part because of such failure. 7.Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insured, this insurance applies: a.As if each Named Insured were the only Named Insured;and b.Separately to each insured against whom claim is made or "suit"is brought. 8.Transfer Of Rights Of Recovery Against Others To Us a.Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment,including Supplementary Payments,we have made under this Coverage Part,those rights are transferred to us.The insured must do nothing after loss to impair them.At our request,the insured will bring "suit"or transfer those rights to us and help us enforce them. b.Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment,including Supplementary Payments,we have made under this Coverage Part,we also waive that right,provided the insured waived their rights of recovery against such person or organization in a contract,agreement or permit that was executed prior to the injury or damage. 9.When We Do Not Renew If we decide not to renew this Coverage Part,we will mail or deliver to the first Named Insured shown in the Declarations written notice of the Page 18 of 21 HG 00 01 09 16 nonrenewal not less than 30 days before the expiration date. If notice is mailed,proof of mailing will be sufficient proof of notice. SECTION V -DEFINITIONS 1."Advertisement"means the widespread public dissemination of information or images that has the purpose of inducing the sale of goods, products or services through: a.(1)Radio; (2)Television; (3)Billboard; (4)Magazine; (5)Newspaper;or b.Any other publication that is given widespread public distribution. However,"advertisement"does not include: a.The design,printed material,information or images contained in,on or upon the packaging or labeling of any goods or products;or b.An interactive conversation between or among persons through a computer network. 2."Advertising idea"means any idea for an "advertisement". 3."Asbestos hazard"means an exposure or threat of exposure to the actual or alleged properties of asbestos and includes the mere presence of asbestos in any form. 4."Auto"means: a.A land motor vehicle,trailer or semitrailer designed for travel on public roads,including any attached machinery or equipment;or b.Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged. However,"auto"does not include "mobile equipment". 5."Bodily injury"means physical: a.Injury; b.Sickness;or c.Disease sustained by a person and,if arising out of the above,mental anguish or death at any time. 6."Coverage territory"means: a.The United States of America (including its territories and possessions),Puerto Rico and Canada; b.International waters or airspace,but only if the injury or damage occurs in the course of travel or transportation between any places included in a.above;or c.All other parts of the world if the injury or damage arises out of: (1)Goods or products made or sold by you in the territory described in a.above; (2)The activities of a person whose home is in the territory described in a.above,but is away for a short time on your business;or (3)"Personal and advertising injury"offenses that take place through the Internet or similar electronic means of communication provided the insured's responsibility to pay damages is determined in the United States of America (including its territories and possessions), Puerto Rico or Canada,in a "suit"on the merits according to the substantive law in such territory or in a settlement we agree to. 7."Employee"includes a "leased worker". "Employee"does not include a "temporary worker". 8."Employment-Related Practices"means: a.Refusal to employ that person; b.Termination of that person's employment;or c.Employment-related practices,policies,acts or omissions,such as coercion,demotion, evaluation,reassignment,discipline, defamation,harassment,humiliation, discrimination or malicious prosecution directed at that person. 9."Executive officer"means a person holding any of the officer positions created by your charter, constitution,by-laws or any other similar governing document. 10."Hostile fire"means one which becomes uncontrollable or breaks out from where it was intended to be. 11."Impaired property"means tangible property, other than "your product"or "your work",that cannot be used or is less useful because: a.It incorporates "your product"or "your work" that is known or thought to be defective, deficient,inadequate or dangerous;or b.You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by the repair,replacement,adjustment or removal of "your product"or "your work",or your fulfilling the terms of the contract or agreement. 12."Insured contract"means: a.A contract for a lease of premises.However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire,lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner is subject to the Damage to HG 00 01 09 16 Page 19 of 21 Premises Rented To You Limit described in Section III -Lim its of Insurance; b.A sidetrack agreement; c.Any easement or license agreement, including an easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad; d.An obligation,as required by ordinance,to indemnify a municipality,except in connection with work for a municipality; e.An elevator maintenance agreement; f.That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality)under which you assume the tort liability of another party to pay for "bodily injury"or "property damage"to a third person or organization, provided the "bodily injury"or "property damage"is caused,in whole or in part,by you or by those acting on your behalf.Tort liability means a liability that would be imposed b y law in the absence of any contract or agreement. Paragraph f.includes that part of any contract or agreement that indemnifies a railroad for "bodily injury"or "property damage"arising out of construction or demolition operations, within 50 feet of any railroad property and affecting any railroad bridge or trestle,tracks, road-beds,tunnel,underpass or crossing. However,Paragraph f.does not include that part of any contract or agreement: (1)That indemnifies an architect,engineer or surveyor for injury or damage arising out of: (a)Preparing,approving,or failing to prepare or approve,maps,shop drawings,opinions,reports,surveys, field orders,change orders or drawings and specifications;or (b)Giving directions or instructions,or failing to give them,if that is the primary cause of the injury or damage; or (2)Under which the insured,if an architect, engineer or surveyor,assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services,including those listed in (1)above and supervisory,inspection, architectural or engineering activities. 13."Leased worker"means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm,to perform duties related to the conduct of your business."Leased worker"does not include a "temporary worker". 14."Loading or unloading"means the handling of property: a.After it is moved from the place where it is accepted for movement into or onto an aircraft,watercraft or "auto"; b.While it is in or on an aircraft,watercraft or "auto";or c.While it is being moved from an aircraft, watercraft or "auto"to the place where it is finally delivered; but "loading or unloading"does not include the movement of property by means of a mechanical device,other than a hand truck,that is not attached to the aircraft,watercraft or "auto". 15."Mobile equipment"means any of the following types of land vehicles,including any attached machinery or equipment: a.Bulldozers,farm machinery,forklifts and other vehicles designed for use principally off public roads; b.Vehicles maintained for use solely on or next to premises you own or rent; c.Vehicles that travel on crawler treads; d.Vehicles,whether self-propelled or not, maintained primarily to provide mobility to permanently mounted: (1)Power cranes,shovels,loaders,diggers or drills;or (2)Road construction or resurfacing equipment such as graders,scrapers or rollers; e.Vehicles not described in a.,b.,c.or d.above that are not self-propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types: (1)Air compressors,pumps and generators, including spraying,welding,building cleaning,geophysical exploration,lighting and well servicing equipment;or (2)Cherry pickers and similar devices used to raise or lower workers; f.Vehicles not described in a.,b.,c.or d.above maintained primarily for purposes other than the transportation of persons or cargo. However,self-propelled vehicles with the following types of permanently attached equipment are not "mobile equipment"but will be considered "autos": (1)Equipment designed primarily for: (a)Snow removal; (b)Road maintenance,but not construction or resurfacing;or (c)Street cleaning; Page 20 of 21 HG 00 01 09 16 (2)Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers;and (3)Air compressors,pumps and generators, including spraying,welding,building cleaning,geophysical exploration,lighting and well servicing equipment. However,"mobile equipment"does not include any land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged.Land vehicles subject to a compulsory or financial responsibility law or other motor vehicle insurance law are considered "autos". 16."Occurrence"means an accident,including continuous or repeated exposure to substantially the same general harmful conditions. 17."Personal and advertising injury"means injury,including consequential "bodily injury", arising out of one or more of the following offenses: a.False arrest,detention or imprisonment; b.Malicious prosecution; c.The wrongful eviction from,wrongful entry into,or invasion of the right of private occupancy of a room,dwelling or premises that a person or organization occupies, committed by or on behalf of its owner, landlord or lessor; d.Oral,written or electronic publication,in any manner,of material that slanders or libels a person or organization or disparages a person's or organization's goods,products or services; e.Oral,written or electronic publication,in any manner,of material that violates a person's right of privacy; f.Copying,in your "advertisement",a person's or organization's "advertising idea"or style of "advertisement";or g.Infringement of copyright,slogan,or title of any literary or artistic work,in your "advertisement". 18."Pollutants"mean any solid,liquid,gaseous or thermal irritant or contaminant,including smoke, vapor,soot,fumes,acids,alkalis,chemicals and waste.Waste includes materials to be recycled, reconditioned or reclaimed. 19."Products-completed operations hazard": a.Includes all "bodily injury"and "property damage"occurring away from premises you own or rent and arising out of "your product" or "your work"except: (1)Products that are still in your physical possession;or (2)Work that has not yet been completed or abandoned.However,"your work"will be deemed completed at the earliest of the following times: (a)When all of the work called for in your contract has been completed. (b)When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site. (c)When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. Work that may need service, maintenance,correction,repair or replacement,but which is otherwise complete,will be treated as completed. b.Does not include "bodily injury"or "property damage"arising out of: (1)The transportation of property,unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by you,and that condition was created by the "loading or unloading"of that vehicle by any insured; (2)The existence of tools,uninstalled equipment or abandoned or unused materials;or (3)Products or operations for which the classification,listed in the Declarations or in a policy Schedule,states that products- completed operations are subject to the General Aggregate Limit. 20."Property damage"means: a.Physical injury to tangible property,including all resulting loss of use of that property.All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b.Loss of use of tangible property that is not physically injured.All such loss of use shall be deemed to occur at the time of the "occurrence"that caused it. As used in this definition,computerized or electronically stored data,programs or software are not tangible property.Electronic data means information,facts or programs: a.Stored as or on; b.Created or used on;or c.Transmitted to or from; computer software,including systems and applications software,hard or floppy disks,CD- HG 00 01 09 16 Page 21 of 21 ROMS,tapes,drives,cells,data processing devices or any other media which are used with electronically controlled equipment. 21."Suit"means a civil proceeding in which damages because of "bodily injury","property damage"or "personal and advertising injury"to which this insurance applies are alleged."Suit" includes: a.An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent;or b.Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. 22."Temporary worker"means a person who is furnished to you to substitute for a permanent "employee"on leave or to meet seasonal or short-term workload conditions. 23."Volunteer worker"means a person who a.Is not your "employee"; b.Donates his or her work; c.Acts at the direction of and within the scope of duties determined by you;and d.Is not paid a fee,salary or other compensation by you or anyone else for their work performed for you. 24."Your product": a.Means: (1)Any goods or products,other than real property,manufactured,sold,handled, distributed or disposed of by: (a)You; (b)Others trading under your name;or (c)A person or organization whose business or assets you have acquired; and (2)Containers (other than vehicles), materials,parts or equipment furnished in connection with such goods or products. b.Includes (1)Warranties or representations made at any time with respect to the fitness, quality,durability,performance or use of "your product";and (2)The providing of or failure to provide warnings or instructions. c.Does not include vending machines or other property rented to or located for the use of others but not sold. 25."Your work": a.Means: (1)Work or operations performed b y you or on your behalf;and (2)Materials,parts or equipment furnished in connection with such work or operations. b.Includes (1)Warranties or representations made at any time with respect to the fitness, quality,durability,performance or use of "your work",and (2)The providing of or failure to provide warnings or instructions. 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AGREEMENT WAIVER OF SUBROGATION BLANKET BASIS HOME OFFICE SAN FRANCISCO EFFECTIV AAAAEA AAAAAA AAAAAAAAAA A T 12. 01 A.M.AND EXPIRING AT 12.01 A.M.ALL EFFECTIVE DATES ARE AT 12:01 AM PACIFIC ST AND ARD TIME OR THE TIME INDICATED AT PACIFIC STANDARD TIME SUBTRONIC CORPORATION 5031 BLUM RD# 2 MARTINEZ, CA 94553 WE HAVE THE RIGHT TO RECOVER OUR PAYMENTS FROM ANYONE LIABLE FOR AN INJURY COVERED BY THIS POLICY. WE WILL NOT ENFORCE 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 YOO TO OBTAIN THIS AGREEMENT FROM US. THE ADDITIONAL PREMIUM FOR THIS ENDORSEMENT SHALL BE 2.00% OF THE TOTAL POLICY PREMIUM. SCHEDULE PERSON OR ORGANIZATION ANY PERSON OR ORGANIZATION FOR 'WHOM THE NAMED INSURED HAS AGREED BY WRITTEN CONTRACT TO FURNISH THIS WAIVER JOB DESCRIPTION BLANKET WAIVER OF SUBROGATION REP D8 9079423-2021 RENEWAL NA 1-00-38-40 PAGE 1 OF NOTHING IN THIS ENDORSEMENT SHALL BE HELD TO VARY, ALTER, WAIVE OR EXTEND ANY OF THE TERMS, CONDITIONS, AGREEMENTS, OR LIMITATIONS OF THIS POLICY OTHER THAN AS ABOVE STATED. NOTHING ELSEWHERE IN THIS POLICY SHALL BE HELD TO VARY, ALTER, WAIVE OR LIMIT THE TERMS, CONDITIONS, AGREEMENTS OR LIMITATIONS IN THIS ENDORSEMENT. COUNTERSIGNED AND ISSUED AT SAN FRANCISCO: AA �_. .JI-£�� 1 �ff..� PRESIDENT AND CEO 2572 SCIF FORM 10217 (REV.4·2018) OLD OP 217 AAAAAAAAAAPRIL 15, 2021AA APRIL 19, 2021APRIL 19,2022 Subtronic Corporation for Inspection of Blackberry Farm Pool Deck Drains Final Audit Report 2021-11-11 Created:2021-11-09 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAkWiOS9usmUO2XEulhTn4blb1iU9wsx9B "Subtronic Corporation for Inspection of Blackberry Farm Pool D eck Drains" History Document created by City of Cupertino (webmaster@cupertino.org) 2021-11-09 - 1:32:08 AM GMT- IP address: 35.229.54.2 Document emailed to Julia Kinst (juliak@cupertino.org) for approval 2021-11-09 - 1:34:45 AM GMT Document approved by Julia Kinst (juliak@cupertino.org) Approval Date: 2021-11-09 - 3:33:25 PM GMT - Time Source: server- IP address: 216.198.111.214 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2021-11-09 - 3:33:27 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2021-11-09 - 3:43:08 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Stephanie Mauler (subtronic@subtronic.com) for signature 2021-11-09 - 3:43:10 PM GMT Email viewed by Stephanie Mauler (subtronic@subtronic.com) 2021-11-09 - 3:49:56 PM GMT- IP address: 191.96.65.207 Document e-signed by Stephanie Mauler (subtronic@subtronic.com) Signature Date: 2021-11-10 - 9:29:44 PM GMT - Time Source: server- IP address: 96.90.203.57 Document emailed to Christopher D. Jensen (christopherj@cupertino.org) for signature 2021-11-10 - 9:29:46 PM GMT Email viewed by Christopher D. Jensen (christopherj@cupertino.org) 2021-11-10 - 9:34:01 PM GMT- IP address: 104.47.44.254 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2021-11-10 - 9:34:29 PM GMT - Time Source: server- IP address: 136.24.42.212 Document emailed to Susan Michael (susanm@cupertino.org) for signature 2021-11-10 - 9:34:31 PM GMT Email viewed by Susan Michael (susanm@cupertino.org) 2021-11-10 - 9:40:28 PM GMT- IP address: 104.47.73.126 Document e-signed by Susan Michael (susanm@cupertino.org) Signature Date: 2021-11-10 - 10:34:00 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2021-11-10 - 10:34:02 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2021-11-10 - 10:43:23 PM GMT- IP address: 162.245.20.145 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2021-11-11 - 1:16:13 AM GMT - Time Source: server- IP address: 162.245.20.145 Agreement completed. 2021-11-11 - 1:16:13 AM GMT