PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON BEACH AND
FPL AND ASSOCIATES, INC.
ON-CALL TRANSPORTATION ENGINEERING SERVICES
THIS AGREEMENT ("Agreement") is made and entered into by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and FPL AND ASSOCIATES, INC.., a California Corporation hereinafter referred to as "CONSULTANT."
WHEREAS, CITY desires to engage the services of a consultant to provide On-Call Transportation Engineering Services; and
Pursuant to documentation on file in the office of the City Clerk, the provisions of the Huntington Beach Municipal Code, Chapter 3.03, relating to procurement of professional service contracts have been complied with; and
CONSULTANT has been selected to perform these services, NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows:
SCOPE OF SERVICES
CONSULTANT shall provide all services as described in Exhibit "A," which is attached hereto and incorporated into this Agreement by this reference. These services shall sometimes hereinafter be referred to as the "PROJECT."
CONSULTANT hereby designates Shin-Jiun Irene Lee Wyatt who shall represent it and be its sole contact and agent in all consultations with CITY during the performance of this Agreement.
CITY STAFF ASSISTANCE
CITY shall assign a staff coordinator to work directly with CONSULTANT in the performance of this Agreement.
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TERM; TIME OF PERFORMANCE
Time is of the essence of this Agreement. The services of CONSULTANT are to commence on → 20 _(the "Commencement Date"). This Agreement shall automatically terminate three (3) years from the Commencement Date, unless extended or sooner terminated as provided herein. All tasks specified in Exhibit "A" shall be completed no later than three (3) years from the Commencement Date. The time for performance of the tasks identified in Exhibit "A" are generally to be shown in Exhibit "A." This schedule may be amended to benefit the PROJECT if mutually agreed to in writing by CITY and CONSULTANT.
In the event the Commencement Date precedes the Effective Date, CONSULTANT shall be bound by all terms and conditions as provided herein.
4. COMPENSATION
In consideration of the performance of the services described herein, CITY agrees to pay CONSULTANT on a time and materials basis at the rates specified in Exhibit "B," which is attached hereto and incorporated by reference into this Agreement, a fee, including all costs and expenses, not to exceed Five Hundred Thousand Dollars ($500,000.00).
EXTRA WORK
In the event CITY requires additional services not included in Exhibit "A" or changes in the scope of services described in Exhibit "A," CONSULTANT will undertake such work only after receiving written authorization from CITY. Additional compensation for such extra work shall be allowed only if the prior written approval of CITY is obtained.
6. METHOD OF PAYMENT
CONSULTANT shall be paid pursuant to the terms of Exhibit "B." 22-11017/276004 2 of 11
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DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS
CONSULTANT agrees that title to all materials prepared hereunder, including, without limitation, all original drawings, designs, reports, both field and office notices, calculations, computer code, language, data or programs, maps, memoranda, letters and other documents, shall belong to CITY, and CONSULTANT shall turn these materials over to CITY upon expiration or termination of this Agreement or upon PROJECT completion, whichever shall occur first. These materials may be used by CITY as it sees fit.
HOLD HARMLESS
A. CONSULTANT hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with CONSULTANT's (or CONSULTANT's subcontractors, if any) negligent (or alleged negligent) performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by CONSULTANT, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of CITY. CONSULTANT will conduct all defense at its sole cost and expense and CITY shall approve selection of CONSULTANT's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by CONSULTANT.
B. To the extent that CONSULTANT performs "Design Professional Services" within the meaning of Civil Code Section 2782.8, then the following Hold Harmless provision applies in place of subsection A above:
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"CONSULTANT hereby agrees to protect, defend, indemnify and hold harmless CITY and its officers, elected or appointed officials, employees, agents and volunteers, from and against any and all claims, damages, losses, expenses, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) to the extent that the claims against CONSULTANT arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT. In no event shall the cost to defend charged to CONSULTANT exceed CONSULTANT's proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more other defendants to the claims and/or litigation is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, CONSULTANT shall meet and confer with CITY and other defendants regarding unpaid defense costs. The duty to indemnify, including the duty and the cost to defend, is limited as provided in California Civil Code Section 2782.8.
C. Regardless of whether subparagraph A or B applies, CITY shall be reimbursed by CONSULTANT for all costs and attorney's fees incurred by CITY in enforcing this obligation.
This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT.
PROFESSIONAL LIABILITY INSURANCE
CONSULTANT shall obtain and furnish to CITY a professional liability insurance policy covering the work performed by it hereunder: This policy shall provide coverage for CONSULTANT's professional liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate. The above-mentioned insurance shall not contain a self-insured retention without the express written consent of CITY; however an insurance 22-11017/276004 4 of 11
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policy "deductible" of Ten Thousand Dollars ($10,000.00) or less is permitted. A claims-made policy shall be acceptable if the policy further provides that:
A. The policy retroactive date coincides with or precedes the initiation of the scope of work (including , subsequent policies purchased as renewals or replacements).
B. CONSULTANT shall notify CITY of circumstances or incidents that might give rise to future claims.
CONSULTANT will make every effort to maintain similar insurance during the required extended period of coverage following PROJECT completion. If insurance is terminated for any reason, CONSULTANT agrees to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this Agreement.
If CONSULTANT fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the CITY with required proof that insurance has been procured and is in force and paid for, the CITY shall have the right, at the CITY's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. CONSULTANT waives the right to receive compensation and agrees to indemnify the CITY for any work performed prior to approval of insurance by the CITY.
10. CERTIFICATE OF INSURANCE
Prior to commencing performance of the work hereunder, CONSULTANT shall furnish to CITY a certificate of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; the certificate shall:
A. provide the name and policy number of each carrier and policy; B. state that the policy is currently in force; and
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C. shall promise that such policy shall not be suspended, voided or canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice; however, ten (10) days' prior written notice in the event of cancellation for nonpayment of premium.
CONSULTANT shall maintain the foregoing insurance coverage in force until the work under this Agreement is fully completed and accepted by CITY.
The requirement for carrying the foregoing insurance coverage shall not derogate from CONSULTANT's defense, hold harmless and indemnification obligations as set forth in this Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of the policy of insurance. CONSULTANT shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required.
11. INDEPENDENT CONTRACTOR
CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of CITY. CONSULTANT shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONSULTANT and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services to be performed hereunder.
12. TERMINATION OF AGREEMENT
All work required hereunder shall be performed in a good and workmanlike manner.
CITY may terminate CONSULTANT's services hereunder at any time with or without cause, and whether or not the PROJECT is fully complete. Any termination of this Agreement by CITY shall be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. In the 22-11017/276004 6 of 11
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event of termination, all finished and unfinished documents, exhibits, report, and evidence shall, at the option of CITY, become its property and shall be promptly delivered to it by CONSULTANT.
13. ASSIGNMENT AND DELEGATION
This Agreement is a personal service contract and the work hereunder shall not be assigned, delegated or subcontracted by CONSULTANT to any other person or entity without the prior express written consent of CITY. If an assignment, delegation or subcontract is approved, all approved assignees, delegates and subconsultants must satisfy the insurance requirements as set forth in Sections 9 and 10 hereinabove.
14. COPYRIGHTS/PATENTS
CITY shall own all rights to any patent or copyright on any work, item or material produced as a result of this Agreement.
15. CITY EMPLOYEES AND OFFICIALS
CONSULTANT shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code.
16. NOTICES
Any notices, certificates, or other communications hereunder shall be given either by personal delivery to CONSULTANT's agent (as designated in Section 1 hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below. CITY and CONSULTANT may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party via personal delivery, a reputable overnight carrier or U. S. certified mail-return receipt requested:
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TO CITY: TO CONSULTANT:
City of Huntington Beach FPL and Associates, Inc.
ATTN: Director of Public Works ATTN: Shih-Jiun Irene Lee Wyatt 2000 Main Street 30 Corporate Park, Suite 401
Huntington Beach, CA 92648 Irvine, CA 92606
17. CONSENT
When CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event.
18. MODIFICATION
No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties.
19. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement.
20. INTERPRETATION OF THIS AGREEMENT
The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator of court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or 22-11017/276004 8 of 11
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neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law.
21. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it.
22. IMMIGRATION
CONSULTANT shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification.
23. LEGAL SERVICES SUBCONTRACTING PROHIBITED
CONSULTANT and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONSULTANT understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONSULTANT.
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24. ATTORNEY'S FEES
In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the nonprevailing party.
25. SURVIVAL
Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive.
26. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the State of California.
27. SIGNATORIES
Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
28. ENTIRETY
The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiation, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this 22-11017/276004 10 of 11
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Agreement. This Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Agreement, and supersede all prior understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof.
29. EFFECTIVE DATE
This Agreement shall be effective on the date of its approval by the City Council.
This Agreement shall expire when terminated as provided herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers.
CONSULTANT, CITY OF HUNTINGTON BEACH, a
FPL AND ASSOCIATES, INC. municipal corporation of the State of California
By:_ Titiste
Fong- Lee Mayor
ITS: (circle one) Chairmany resident Vice President
City Clerk
INITIATED AND APPROVED:
TreM Lee
print name
ITS: (circle one Secretary Chief Financial Officer/Asst.
Secretary - Treasurer
REVIEWED AND APPROVED:
Seanage
APPROVED AS TORORM:
haas
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EXHIBIT "A"
A. STATEMENT OF WORK: (Narrative of work to be performed) To provide on-call transportation and engineering services.
B. CONSULTANT'S DUTIES AND RESPONSIBILITIES:
Prepare Traffic Design Plans.
2. Prepare Traffic Signal Timing Plans.
3. Design Plan Check Review.
4. Construction Support.
5. Prepare Traffic Impact Analysis Reports.
6. Prepare Parking Demand Analysis Reports.
Grant Preparation and Administration Assistance.
CITY'S DUTIES AND RESPONSIBILITIES:
D. WORK PROGRAM/PROJECT SCHEDULE:
EXHIBIT A
EXHIBIT "B"
Payment Schedule (Hourly Payment)
A. Hourly Rate
CONSULTANT'S fees for such services shall be based upon the following hourly rate and cost schedule:
SEE ATTACHED EXHIBIT "B"
B. Travel Charges for time during travel are not reimbursable.
C. Billing
All billing shall be done monthly in fifteen (15) minute increments and matched to an appropriate breakdown of the time that was taken to perform that work and who performed it.
2. Each month's bill should include a total to date. That total should provide, at a glance, the total fees and costs incurred to date for the project.
A copy of memoranda, letters, reports, calculations and other documentation prepared by CONSULTANT may be required to be submitted to CITY to demonstrate progress toward completion of tasks. In the event CITY rejects or has comments on any such product, CITY shall identify specific requirements for satisfactory completion.
CONSULTANT shall submit to CITY an invoice for each monthly payment due.
Such invoice shall:
A) Reference this Agreement;
B) Describe the services performed;
C) Show the total amount of the payment due;
D) Include a certification by a principal member of CONSULTANT's firm that the work has been performed in accordance with the provisions of this Agreement; and
For all payments include an estimate of the percentage of work completed.
Upon submission of any such invoice, if CITY is satisfied that CONSULTANT is making satisfactory progress toward completion of tasks in accordance with this Agreement, CITY shall approve the invoice, in which event payment shall be made within thirty (30) days of receipt of the invoice by CITY. Such approval shall not be unreasonably withheld. • If CITY does not approve an invoice, CITY shall notify CONSULTANT in writing of the reasons for non-approval and the schedule of performance set forth in Exhibit "A" may at the option of CITY be suspended until the parties agree that past performance by CONSULTANT is in, or has been brought into compliance, or until this Agreement has expired or is terminated as provided herein.
1 Exhibit B
Any billings for extra work or additional services authorized in advance and in writing by CITY shall be invoiced separately to CITY. Such invoice shall contain all of the information required above, and in addition shall list the hours expended and hourly rate charged for such time. Such invoices shall be approved by CITY if the work performed is in accordance with the extra work or additional services requested, and if CITY is satisfied that the statement of hours worked and costs incurred is accurate.
Such approval shall not be unreasonably withheld. Any dispute between the parties concerning payment of such an invoice shall be treated as separate and apart from the ongoing performance of the remainder of this Agreement. 2 Exhibit B
EXHIBIT B
FPL and Associates, Inc.
FPL 30 Corporate Park, Suite 310 Telephone: (949) 252-168 Irvine, California 92606 Facsimile: (949) 252-0088
Consulting Engineers • Traffic • Transportation • Civil • Facilities City of Huntington Beach "On-Call" Hourly Rates
Classification 2021 2022 2023 2024
Principal-in-Charge $276 / hr $284/hr $292/hr $301/hr
Project Manager $251 / hr $258/hr $266 / hr $274/hr
Quality Manager $213 / hr $220 / hr $226 / hr $233/hr
Senior Design Engineer Il $220 /hr $226/hr $233/hr $240/hr Sr. Design Engineer I/Transportation Engineer $198/hr $204 /hr $210 /hr $217/ hr Associate Design Engineer Il $161 /hr $166/hr $171 / hr $176 / hr Associate Design Engineer ! $149 / hr $153 /hr $158 / hr $162 / hr Assistant Design Engineer II $127 / hr $132/hr $136 / hr $141 / hr Assistant Design Engineer l $111/hr $115 / hr $119 /hr $123/hr Administrative Support $103 / hr T $106/hr | $109/hr $112/hr
DATE (MM/DD/YYYY)
ACORD® CERTIFICATE OF LIABILITY INSURANCE 2125/2022
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 INSURERS), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
MPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to he terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to th certificate holder in lieu of such endorsements).
PRODUCER CONTACT Dawn Stephens-Wright NAME:
Wood Gutmann & Bogart Insurance Brokers PHONE A: 714-573-1770 License #0679263 PC, No, Ext): 714-824-8348
E-MAIL
15901 Red Hill Ave., Suite 100 ADDRESs: [email protected]
Tustin CA 92780 INSURERS) AFFORDING COVERAGE NAIC #
License#: 0679263 INSURERA: Arch Insurance Company
INSURED FPLAS-1 INSURER B: American Fire and Casualty Co 24066 FPL and Associates, Inc. 44393
30 Corporate Park, Ste 401 INSURER : Western American Insurance Co Irvine CA 92606 INSURER D: REPUBLIC IND CO OF AMER 22179 INSURER E:
INSURER F:
CERTIFICATE NUMBER: 1633670050 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWTHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
ERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERN XCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIN INSR
LTR POLICY NUMBER
COMMERCIAL GENERAL LIABILITY BKW57091393 1/12/2022 1/12/2023 $ 1,000,000 CLAIMS MADE X OCCUR PREMISES (Ea occurrence) $ 500,000
MED EXP (Any one person) $ 15,000
PERSONAL&ADV INJURY $1,000,000
GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 PRO.
POLICY EC LOC PRODUCTS - COMP/OP AGG $2,000,000
$
OTHER:
AUTOMOBILE LIABILITY BAS57091393 1/1212022 1/12/2023 La can SINGLE LIMIT $ 1000,000 BODILY INJURY (Per person) $
ANY AUTO
ALL OWNED | SCHEDULED BODILY INJURY (Per accident)
AUTOS AUTOS
NON-OWNED PROPERTY DAMAGE
HIRED AUTOS AUTOS APPROVED AS TO FORM (Per accident)
$
UMBRELLA LIAB ESA57091393 1/12/2022 1/12/2023 EACH OCCURRENCE $ 5,000,000 OCCUR
By:_
EXCESS LIAB CLAIMS-MADE AGGREGATE $ 5,000,000
MICHAEL E. GATES
DED RETENTIONS CITY ATTORNEY
WORKERS COMPENSATION 2551060 CITY OF HUNTINGTON BEG 2021 9/1/2022 X STATUTE I OTH
AND EMPLOYERS' LIABILITY YIN
ANY PROPRIETOR/PARTNER/EXECUTIVE EL. EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? NIA
(Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ 1,000,000 , describe und
ESCRIPTION OF OPERATIONS belo E.L. DISEASE - POLICY LIMIT $1,000,000 192092 /1/202
/12/202
Valuable Papers $100,000
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED I
ICCORDANCE WITH THE POLICY PROVISIONS
The City of Huntington Beach
2000 Main Street
Huntington Beach CA 92648 AUTHORIZED REPRESENTATIVE
Kaish Madyieux
© 1988-2014 ACORD CORPORATION. All rights reserved.
ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD Policy Number: BAS57091393
COMMERCIAL AUTO
CA 88 66 05 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
DESIGNATED INSURED - NONCONTRIBUTING
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
GARAGE COVERAGE FORM
MOTOR CARRIER COVERAGE FORM
TRUCKERS COVERAGE FORM
Vith respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unles nodified by this endorsemen
This endorsement identifies person(s) or organization(s) who are "insureds" under the Who Is An Insure Provision of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form Schedule
Name of Person(s) or Organization(s):
Blanket Additional Insured agreed
written contract, agreement, permit
Regarding Designated Contract or Project:
Any location (s) when You have agreed in a
written contract, agreement or permit that person
or organization be added as an additional insured
eage. Bus nor toge eiten hat person or organe of on endors as an an ener or in a.
Insured Provision contained in Section I of the Coverage Form.
The following is added to the Other Insurance Condition:
If you have agreed in a written agreement that this policy will be primary and without right of contribu- tion from any insurance in force for an Additional Insured for liability arising out of your operations, and the agreement was executed prior to the "bodily injury" or "property damage", then this insurance will be primary and we will not seek contribution from such insurance. © 2013 Liberty Mutual Insurance. All rights reserved.
CA 88 66 05 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 1 of 1 Policy Number: BKW57091393
COMMERCIAL GENERAL LIABILITY
CG 88 10 04 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
COMMERCIAL GENERAL LIABILITY EXTENSION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
INDEX
SUBJECT PAGE
NON-OWNED AIRCRAFT 2
NON-OWNED WATERCRAFT 2
PROPERTY DAMAGE LIABILITY - ELEVATORS 2
EXTENDED DAMAGE TO PROPERTY RENTED TO YOU (Tenant's Property Damage) 2 MEDICAL PAYMENTS EXTENSION 3
EXTENSION OF SUPPLEMENTARY PAYMENTS - COVERAGES A AND B 3 ADDITIONAL INSUREDS - BY CONTRACT, AGREEMENT OR PERMIT 3 PRIMARY AND NON-CONTRIBUTORY- ADDITIONAL INSURED EXTENSION 5 ADDITIONAL INSUREDS - EXTENDED PROTECTION OF YOUR "LIMITS OF INSURANCE" 6
WHO IS AN INSURED - INCIDENTAL MEDICAL ERRORS/MALPRACTICE AND WHO IS AN INSURED - FELLOW EMPLOYEE EXTENSION - MANAGEMENT EMPLOYEES 6
NEWLY FORMED OR ADDITIONALLY ACQUIRED ENTITIES
FAILURE TO DISCLOSE HAZARDS AND PRIOR OCCURRENCES 7
KNOWLEDGE OF OCCURRENCE, OFFENSE, CLAIM OR SUIT 7
LIBERALIZATION CLAUSE 7
BODILY INJURY REDEFINED 7
EXTENDED PROPERTY DAMAGE 8
WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US - 8
WHEN REQUIRED IN A CONTRACT OR AGREEMENT WITH YOU
© 2013 Liberty Mutual Insurance
CG 88 10 04 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 1 of 8 With respect to coverage afforded by this endorsement, the provisions of the policy apply unless modified by the endorsement.
A. NON-OWNED AIRCRAFT
Under Paragraph 2. Exclusions of Section I - Coverage A - Bodily Injury And Property Damage Liability, exclusion g. Aircraft, Auto Or Watercraft does not apply to an aircraft provided:
1. It is not owned by any insured;
2. It is hired, chartered or loaned with a trained paid crew; The pilot in command holds a currently effective certificate, issued by the duly constituted authority of the United States of America or Canada, designating her or him a commercial or airline pilot; and
4. It is not being used to carry persons or property for a charge.
However, the insurance afforded by this provision does not apply if there is available to the insured other valid and collectible insurance, whether primary, excess (other than insurance written to apply specifically in excess of this policy), contingent or on any other basis, that would also apply to the loss covered under this provision.
B. NON-OWNED WATERCRAFT
Under Paragraph 2. Exclusions of Section I - Coverage A - Bodily Injury And Property Damage Liability, Subparagraph (2) of exclusion g. Aircraft, Auto Or Watercraft is replaced by the following:
This exclusion does not apply to:
(2) A watercraft you do not own that is:
(a) Less than 52 feet long; and
(b) Not being used to carry persons or property for a charge.
C. PROPERTY DAMAGE LIABILITY - ELEVATORS
damage"
vehicle lifts. Vehicle lifts are lifts or hoists used in automobile service or repair operations.
2. The following is added to Section IV - Commercial General Liability Conditions, Condition 4. Other Insurance, Paragraph b. Excess Insurance:
The insurance afforded by this provision of this endorsement is excess over any property insurance, whether primary, excess, contingent or on any other basis.
D. EXTENDED DAMAGE TO PROPERTY RENTED TO YOU (Tenant's Property Damage) If Damage To Premises Rented To You is not otherwise excluded from this Coverage Part:
1. Under Paragraph 2. Exclusions of Section I - Coverage A - Bodily Injury and Property Damage Liability:
a. The fourth from the last paragraph of exclusion j. Damage To Property is replaced by the follow- Paragraphs (1), (3) and (4) of this exclusion do not apply to "property damage" (other than damage by fire, lightning, explosion, smoke, or leakage from an automatic fire protection system to:
(i) Premises rented to you for a period of 7 or fewer consecutive days; or (ii) Contents that you rent or lease as part of a premises rental or lease agreement for a period of more than 7 days.
Paragraphs (1), (3) and (4) of this exclusion do not apply to "property damage" to contents of premises rented to you for a period of 7 or fewer consecutive days.
A separate limit of insurance applies to this coverage as described in Section III - Limits of Insurance.
© 2013 Liberty Mutual Insurance
CG 88 10 04 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 2 of 8 b. The last paragraph of subsection 2. Exclusions is replaced by the following:
Exclusions c. through n. do not apply to damage by fire, lightning, explosion, smoke or leakage from automatic fire protection systems to premises while rented to you or temporarily occupied by you with permission of the owner. A separate limit of insurance applies to Damage To Premises Rented To You as described in Section III - Limits Of Insurance.
2. Paragraph 6. under Section III - Limits Of Insurance is replaced by the following:
. Subiect to Paragraph 5. above the Damage To Premises Rented To You Limit is the most we wi ay under Coverage A tor damages because of "property damage" to a. Any one premise:
(1) While rented to you; or
(2) Wanage bed te, lou on g, explain, scupied or lea getrom missinatic the clone for b. Contents that you rent or lease as part of a premises rental or lease agreement.
3. As regards coverage provided by this provision D. EXTENDED DAMAGE TO PROPERTY RENTED TO YOU (Tenant's Property Damage) - Paragraph 9.a. of Definitions is replaced with the following:
9.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, explosion, smoke, or leakage from automatic fire protection systems to premises while rented to you or temporarily occupied by you with the permission of the owner, or for damage to contents of such premises that are included in your premises rental or lease agreement, is not an "insured contract".
E. MEDICAL PAYMENTS EXTENSION
If Coverage C Medical Payments is not otherwise excluded, the Medical Payments provided by this policy are amended as follows:
Under Paragraph 1. Insuring Agreement of Section I - Coverage C - Medical Payments, Subparagraph (b) of Paragraph a. is replaced by the following:
(b) The expenses are incurred and reported within three years of the date of the accident; and F. EXTENSION OF SUPPLEMENTARY PAYMENTS - COVERAGES A AND B
1. Under Supplementary Payments - Coverages A and B, Paragraph 1.b. is replaced by the following:
b. Up to $3,000 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.
2. Paragraph 1.d. is replaced by the following:
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.
G. ADDITIONAL INSUREDS - BY CONTRACT, AGREEMENT OR PERMIT
1. Paragraph 2. under Section I - Who Is An Insured is amended to include as an insured any person or organization whom you have agreed to add as an additional insured in a written contract, written agreement or permit. Such person or organization is an additional insured but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused in whole or in part by:
a. Your acts or omissions, or the acts or omissions of those acting on your behalf, in the performance of your on going operations for the additional insured that are the subject of the written contract or written agreement provided that the "bodily injury" or "property damage" occurs, or the "per- sonal and advertising injury" is committed, subsequent to the signing of such written contract or written agreement;
© 2013 Liberty Mutual Insurance
CG 88 10 04 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 3 of 8 b. Premises or facilities rented by you or used by you; or The maintenance, operation or use by you of equipment rented or leased to you by such person or organization; or
d. Operations performed by you or on your behalf for which the state or political subdivision has issued a permit subject to the following additional provisions:
(1) This insurance does not apply to "bodily injury", "property damage", or "personal and ad- vertising injury" arising out of the operations performed for the state or political subdivision; This insurance does not apply to "bodily injury" or "property damage" included within the "completed operations hazard".
Insurance applies to premises you own, rent, or control but only with respect to the following hazards:
(a) The existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, away openings, sidewalk vaults, street banners, or decorations and similar expo- (b) The construction, erection, or removal of elevators; or (c) The ownership, maintenance, or use of any elevators covered by this insurance.
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 insur- ance 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 Paragraph 1.a. above, a person's or organization's status as an additional insured under this endorsement ends when:
(1) All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or of "your work" out of which the injury or damage arises has been put to its use by any person or organization other than another contractor or subcontractor operations for a principal as a part of the same project.
With respect to Paragraph 1.b. above, a person's or organization's status as an additional insured endorsement ends when their written contract or written agreement with you for such premises or facilities
With respects to Paragraph 1.c. above, this insurance does not apply to any "occurrence" which takes place after the equipment rental or lease agreement has expired or you have returned such equipment to the lessor.
The insurance provided by this endorsement applies only if the written contract or written agreement is signed prior to the "bodily injury" or "property damage".
We have no duty to defend an additional insured under this endorsement until we receive written notice of a "suit" by the additional insured as required in Paragraph b. of Condition 2. Duties In the Event Of Occurrence, Offense, Claim Or Suit under Section IV - Commercial General Liability Condi- tions.
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CG 88 10 04 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 4 of 8
2. With respect to the insurance provided by this endorsement, the following are added to Paragraph 2.
Exclusions under Section 1 - Coverage A - Bodily Injury And Property Damage Liability:
This insurance does not apply to:
a. "Bodily injury" or "property damage" arising from the sole negligence of the additional insured b. "Bodily injury" or "property damage" that occurs prior to you commencing operations at the location where such "bodily injury" or "property damage" occurs. "Bodily injury", "property damage" or "personal and advertising injury" arising out of the render- ing of, or the failure to render, any professional architectural, engineering or surveying services, (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 "occur- rence" 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 architectural, engineering or surveying services.
d. "Bodily injury" or "property damage" occurring after:
(1) All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or (2) That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. e. Any person or organization specifically designated as an additional insured for ongoing operations by a separate ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS endorsement is- sued by us and made a part of this policy.
3. With respect to the insurance afforded to these additional insureds, the following is added to Section III - Limits Of Insurance:
If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance:
a. Required by the contract or agreement; or
b. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less.
This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations.
H. PRIMARY AND NON-CONTRIBUTORY ADDITIONAL INSURED EXTENSION This provision applies to any person or organization who qualifies as an additional insured under any form or endorsement under this policy.
Condition 4. Other Insurance of SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS is amend- ed as follows:
a. The following is added to Paragraph a. Primary Insurance:
If an additional insured's policy has an Other Insurance provision making its policy excess, and you have agreed in a written contract or written agreement to provide the additional insured coverage on a primary and noncontributory basis, this policy shall be primary and we will not seek contribution from the additional insured's policy for damages we cover.
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CG 88 10 04 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 5 of 8 b. The following is added to Paragraph b. Excess Insurance:
a written contract or written agreement, other than a premises lease, facilities rental contract or agreement, an equipment rental or lease contract or agreement, or permit issued by a state or political between you and an additional insured does not require this insurance to be primary or primary and non-contributory, this insurance is excess over any other insurance for which the addi- tional insured is designated as a Named Insured.
1. ADDITIONAL INSUREDS - EXTENDED PROTECTION OF YOUR "LIMITS OF INSURANCE" applies to any person or organization who qualifies as an additional insured under any form or endorsement under this policy.
1. The following is added to Condition 2. Duties In The Event Of Occurrence, Offense, Claim or Suit:
An additional insured under this endorsement will as soon as practicable:
a. Give written notice of an "occurrence" or an offense that may result in a claim or "suit" under this insurance to us;
b. Tender the defense and indemnity of any claim or "suit" to all insurers whom also have insurance available to the additional insured; and
c. Agree to make available any other insurance which the additional insured has for a loss we cover under this Coverage Part.
d. We have no duty to defend or indemnify an additional insured under this endorsement until we receive written notice of a "suit" by the additional insured
2. The limits of insurance applicable to the additional insured are those specified in a written contract or written agreement or the limits of insurance as stated in the Declarations of this policy and defined in Section III - Limits of Insurance of this policy, whichever are less. These limits are inclusive of and not in addition to the limits of insurance available under this policy.
WHO IS AN INSURED - INCIDENTAL MEDICAL ERRORS / MALPRACTICE
WHO IS AN INSURED - FELLOW EMPLOYEE EXTENSION - MANAGEMENT EMPLOYEES Paragraph 2.a.(1) of Section II - Who Is An Insured is replaced with the following:
(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 employ- ment 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 "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 (b) above; or (d) Arising out of his or her providing or failing to provide professional health care services. However; if you are not in the business of providing professional health care services or providing profes- sional health care personnel to others, or if coverage for providing professional health care ser- vices is not otherwise excluded by separate endorsement, this provision (Paragraph (d)) does not apply.
Paragraphs (a) and (b) above do not apply to "bodily injury" or "personal and advertising injury" caused by an "employee" who is acting in a supervisory capacity for you. Supervisory capacity as used herein means the "employee's" job responsibilities assigned by you, includes the direct supervision of other "employ- ees" of yours. However, none of these "employees" are insureds for "bodily injury" or "personal and © 2013 Liberty Mutual Insurance
CG 88 10 04 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 6 of 8 advertising injury" arising out of their willful conduct, which is defined as the purposeful or willful intent to cause "bodily injury" or "personal and advertising injury", or caused in whole or in part by their intoxica- tion by liquor or controlled substances.
The coverage provided by provision J. is excess over any other valid and collectable insurance available to your "employee".
K. NEWLY FORMED OR ADDITIONALLY ACQUIRED ENTITIES
Paragraph 3. of Section II - Who Is An Insured is replaced by the following:
3. Any organization you newly acquire or form and over which you maintain ownership or majority interest, 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 expiration of the policy period in which the entity was acquired or formed by you;
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. d. Records and descriptions of operations must be maintained by the first Named Insured. venture or limited liability company that is not shown
as an insured under this provision.
L. FAILURE TO DISCLOSE HAZARDS AND PRIOR OCCURRENCES
Under Section IV - Commercial General Liability Conditions, the following is added to Condition 6. Repre- sentations:
Your failure to disclose all hazards or prior "occurrences" existing as of the inception date of the policy shall not prejudice the coverage afforded by this policy provided such failure to disclose all hazards or prior "occurrences" is not intentional.
M. KNOWLEDGE OF OCCURRENCE, OFFENSE, CLAIM OR SUIT
Under Section IV - Commercial General Liability Conditions, the following is added to Condition 2. Duties In The Event of Occurrence, Offense, Claim Or Suit:
Knowledge of an "occurrence" offense, claim or "suit" by an agent, servant or "employee" of any insured shall not in itself constitute knowledge of the insured unless an insured listed under Paragraph
1. of Section II - Who Is An Insured or a person who has been designated by them to receive reports of "occurrences", offenses, claims or "suits" shall have received such notice from the agent, servant or "employee".
N. LIBERALIZATION CLAUSE
If we revise this Commercial General Liability Extension Endorsement to provide more coverage without additional premium charge, your policy will automatically provide the coverage as of the day the revision is effective in your state.
O. BODILY INJURY REDEFINED
Under Section V - Definitions, Definition 3. is replaced by the following:
3. "Bodily Injury" means physical injury, sickness or disease sustained by a person. This includes mental anguish, mental injury, shock, fright or death that results from such physical injury, sick- ness or disease.
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CG 88 10 04 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 7 of 8 P. EXTENDED PROPERTY DAMAGE
Exclusion a. of COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY is replaced by the following:
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.
Q. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US - WHEN REQUIRED IN A
CONTRACT OR AGREEMENT WITH YOU
Under Section IV - Commercial General Liability Conditions, the following is added to Condition 8. Trans- fer Of Rights Of Recovery Against Others To Us:
We waive any right of recovery we may have against a person or organization because of payments we 57081393 make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products-completed operations hazard" provided:
1. You and that person or organization have agreed in writing in a contract or agreement that you waive such rights against that person or organization; and
2. The injury or damage occurs subsequent to the execution of the written or written agree- ment.
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