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HomeMy WebLinkAboutBELISLE, WILLIAM 1-2004 C. : "eJe> {R.S~ p INSlrRANCE NOT ON FILE WORK MAY NOT PROCEED CLERK OF COUNCIL DATE: 1- (~~o5" CONSULTANT AGREEMENT THIS AGREEMENT made and entered into this 2- q+- day of :D~.(y, 2004 by and between William Belisle dba Belisle and Associates, a sole proprietor (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). N-2004-l5l RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of teaching web-based writing and editing skills and techniques. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected trom a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall provide employee training in web-based writing and editing skills and techniques to assist City employees in maintaining the City's internet and intranet web pages. Consultant will provide one set of training materials, including the "Gregg Reference Manuel" , a workbook and handouts for each employee attending the training sessions. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services $1,800.00 for each full day (8 hours) training class and $900.00 for each half day (4 hours) training class. Consultant shall be reimbursed, at his cost for training materials provided to City employees. The total sum to be expended under this Agreement shall not exceed $10,000.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2005, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of Personnel Services and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting trom any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit A upon execution of this Agreement and shall be approved in form by the City Attorney. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: 2 (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (ii) (iii) d. 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. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives trom liability: (I) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise trom the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising trom this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason ofthe events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. 3 Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault ofthe Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Executive Director of Personnel Services City of Santa Ana 20 Civic Center Plaza (M-24) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6930 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant: Belisle and Associates P.O. Box 5252 Garden Grove, California 92846 4 <. A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms ofthis Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent ofthe City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property ofthe City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. 5 . '. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations ofthe United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. 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, including reasonable costs and attorney's fees, 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. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. II II II II 6 . . . . IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. PATRICIA E. HEALY Clerk of the Council CITY OF SANTA ANA ~/ I~~ AVIDN. REAM City Manager ATTEST: APPROVED AS TO FORM: JOSEPH W. FLETCHER :~~~ß7 La Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: CONSULTANT ~~~~ WILLIAM BELISLE TITLE) C<> - o...-'~ Tax ID# S 3- 01 -F(. ?<;"Z- 7 . , . EXHIBIT A ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to , this endorsement form as a part of Named Insured Countersigned by Authorized Representative 8 '. . OF LIABILITY INSURANC' RHV -~;;;---i UODC 01-07-2005 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMAl ION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR AL TER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE /!CDBD,. CERTIFICA PRODUCER USAA INSURANCE AGENCY, 812846 P:(888)242-1430 P. O. BOX 33015 SAN ANTONIO TX 78265 INC/PHS F: (877)905-0457 INSURflJ INSUR~R A: Hartford Casual t ---- Ins Co WILLIAM & BELINDA BELISLE DBA ~E~LE & ASSOCIATES ~ ~L{ ./~ j.. PO BOX 5252 / OV" W GARDEN GROVE CA 2846 COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABCVE FQq THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REOUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT W!TH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE PO:...ICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITlm/S OF SUCH POliCIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE POl/CV MJM8ER POlffY£fffCTN£ POUCY EXftRATION INSURER B. INSURERC: INSURER Q. INSURER E: "MITS GENERAL LIA8IL"Y I A ~-i COMMERCIAL GENERAL lIAB!UTY ! 65 CLAIMS MADE [K] OCCUR! X Business Liab >- : OEN'L AGGREGATE LIMIT APPliES PER: PRO. X ~OC AIJTOMOBlLE LlA8IlffY , PERSCNAL & AOV INJURY ~ GENERAL AGGREGATE Û,OOO,OOO ,300 000 ,10 000 i,l,OOO,ooo ,2 000 000 .2 000 000 EACH OCCURRENCE SBM FM8438 09/01/04 09/01/05 ~IRE DAMAGE (Anyone 'Ire) MEDEXP(Anyo''''pllrson) PRODUCTS. COlI.4'tOP AGG ANY AUTO '~ AlL OWt~EO AUTOS ¡ SCHEDULED AUTOS I HIRED AUTOS 8NON:~Nm Aum, I~AGf UABtlfTY rl ANY AUTO COMBINED SINGLE UMIT (Ea ilcddðll1) , , , I BODilY INJURY (P~I persorÜ =t-----------i ! ---+..-------.--- BODilY INJURY I (P~r ~ccjclem) ; PROPERTY DAMAGE (f>~r ~e<::idem¡ i , -----.-.--- AUTO ONLY. EA ACCIDENT OTHER THAN AUTO ONLY EAAce $ AGG $ EXCESS LIABILITY OeCUR D CLAIMS MADE i , rORM 1/1/1 EACH OCCURRENCE I AGGREGATE , -¡, ~- r ! DEDUCTIBLE I RETENTION WORKERS COMPENSA TJON AN/) EMPlOVERS'lIA8IL"¥ , we STATU- .1JMI E.l. EACH ACCIDENT E.l. DISEASE EA EMPlOYEE I ~ EL DISEASE. POLICY LIMIT : ~ OTHER --- j -. -- DESCRIFTlON OF OFERATlDNSlLOCATIONS/VEHlCLES/EXClUSJONS ADDED 8 Y EMJORSEMElVTISPEClAL PRQVISIONS I Coverage is Primary & Non-Contributory Form S80008, attached to this policy. per the Business Liability Coverage CERTIFICATE HOLDCR ADDITfDNAIINSURED.: fNSURERlETTEFt CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POliCIES BE CANCELLED BEFORE: : H~ I EXPIRATION DATE fHEREOF, THE ISSUING INS:.JRER WILL ENDEAVOR T.] MAil 30 DAYS WRI~TEN NOTICE (10 DAYS FOR NON-PAYMENT) fa THE CERTIFICATE ¡"';OLDER NAMED TO THE lEFT, BUT FAILURE fa DO so SHALL IMPOSE NO I OBLIGATION D.A LIABILITY OF ANY KIND UPON THE INSURER, ¡rs AGENTS 0"-1 REPRESENT A TlVES. RRQEPflESENT~ I ~ ".,..\,-,,- ~ ACORD CORPORATION 1988 City of Santa Ana Attn: Jim Stikeleather 20 Civic Center Plaza Santa Ana, CA 92701 ACORD 25-S (7/971 . . 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 soia 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 co:-~u:' c" your business. Your managers ¿:e insureds, but onlY with respec1 !G :'-:e~( duties as your manager. d. An organization other than a partnersh:o or joint venture or limited liability company you are an insured. Y"ur "execu,;ve officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockhoiders are also insureds, but only with respect to their liability as stockholders. 2. Each of the following is aiso an inscred: a. Your lIemployeesll, other than eithe: ~ ',-,,,,, "executive officers" (if you 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 wi1hin the scope of their employment by you or while performing duties related to the condl.d of your business. However, no~e of these "employees" is an insured for: (1) "Bodily injury" or "person,,: "n~ advertising injury": (a) To you, 10 your panners or members (if you are a partnersn;p or joint venture), to your members (if you are a limited liability company) ) or to a cC-"emplüyee'! while that co-"employee" is either in the course of his or her employment or performing duties related to the conduct of your business; (b) To the spouse, ani:d, p".ry:, brother or sister of tha: :c- "employee II as a consequence of Paragraph (1)(a) above; (c) For which there is any obLga¡ion to share damages w:tn or repay someone else who must pay damages because of the injury described in Paragraphs (1ì(a) or (b) above; or (d) Arising out of his or her providing or faiJîng to provide professbnái health care services. (2) "Property damage" to property: (a) Owned, occupied or used by; or (d) Any structure, basin, excavation, premises or place prepared or used for the storage or disposal of "waste"; and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations; "Nuclear materiaP' means Jlsource material", ¡¡special nuclear material" or "byproduct material"; "Nuclear reactor" means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material; "Property damage" includes all forms of radioactive contamination of property; "Source material" has the meaning given it in the Atomic Energy Act of 1954 or in any law amendatory thereof; "Special nuclear material" has the meaning given it in the Atomic Energy Act of 1954 or in any law amendatory thereof; "Spent fuel" means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a IInuclear reactor!!; "Wastall means any waste materiaL (a) Containing "byproduct material" other than the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its "source material" content; and (b) Resulting from the operation by any person or organization of any "nuclear facility" included under paragraphs (a) and (d) of the definition of "nuclear facility". C. WHO IS AN INSURED 1. APPROVED AS I U ¡" c , '~S" '__/Jil- Laura ' L~: .~ Assistaut LHJ {H,utOey ,..--- t::'t" nn nn A'" AA . (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 Llemployees" any partner or member (if you are a partnership or joint venture). or any member (if you are a limited liability company). b. Any person (other than your "employee"), or any organization while acting as your real estate manager. c. 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. 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 policy. e. Any "employee" of the insured while acting in the scope of his/her duties as a retail pharmacist, or optician or optometrist. 1. Additional Insureds by Contract, Agreement or Permit Any person or organization with wnom you agreed, because of a written contract or agreement or permit, to provide insurance such as is afforded under this Business Liability Coverage Form, but only with respect to your operations, "your work" or facilities owned or used by you. However, coverage under this provision does not apply: (1) Unless the written contract or agreement has been executed or a permit has been issued prior to the "bodily injury", "property damage" or "personal and advertising injury". (2) To any person or organization included as an insured under provision g. (Broad Form Vendors). (3) To any other person or organization shown in the Declarations as an Additional Insured. r"'-..- ro~ ^n An ^" ^^ . Coverage under this provision includes the following: (1) When an engineer, architect or surveyor becomes an insured under provision 2.1., the foliowing acicn:.)C,e. exclusion applies: "Bodily injury", "property damage" or upersonal and advertising injurl arising out of the rendering o.¡ or the failure to render any pi'Ofessiona: services by or for you including: (a) The preparing, approving, or failure to prepare or appt'Ov," maps, drawings, opinions, reports, surveys, change orders, designs or specifications; and (b) Supervisory, inspector, engineering services. (2) When a lessor of leased equipment becomes an insured under provIsion 2.f., the following additiona' exclusions apply: (a) To any uoccurrencell which takes place after the equipmem lease expires; or (b) To "bodily injury" or "property damage" arising out cf ::'" 3:.3 negligence of the lessor (3) When owners or other interesIs from whom land has been leased become an insured under provision 2.1., the following additional exclusions apply: (a) Any "occurrence" which takes' place after you cease to lease :hat land; or (b) Structural alterations, new construction or detT':)¡¡::or. operations performed by c: c', behalf of the owners or 0"(:3' interests from whom land has been leased. (4) When managers or lessors of premises become a.t~ ir.sured uilde¡ provision 2.f., the following exclusions apply: (a) Any "occurrence" which takes place after you cease 10 oe a tenant in that premises: or v A.PPROVED I',;) 10 fO,tM i~.3//I__,,_- í\ssiS[Q¡" ---d., . .,. -" ,.., J, :i";Y . . g. (b) Structural alterations, new construction or demolition operations performed by or on behalf of the manager or lessors of the premises. Additional Insured Vendors Any person or organization with whom you agreed, because of a written contract or agreement to provide insurance, 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, subject to the following additional exclusions: (1) The insurance afforded the vendor 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; (e) Any physical or chemical change in product made intentionally by the vendor; (d) Repackaging, unless unpacked solely for the purpose of inspection, demonstration, testing, or substitution of parts under instructions from the manufacturer, and then repackaged in the original container: (g) Products which, arter Öis:r;cu',on or sale by you, have been iabeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor. (2) This insurance aoes Dt app'y coo Yj insured person or organizatior";, Trc¡n whom you have acquired SL.;ch products, or any ingredient, part or container, entering into accompanying or containing SuCh products. (3) This provision g. does nct apply to any vendor included as Ó.n itiSUreCl D\j an endorsement issued by us and made a part of this Coverage Part. (4) This provision g. does not apply if "bodily injury" or "property dam¿ge' included wHhin me IIproc~cts- completed operation hazard" is excluded either by the provisions of the Coverage Part or by endorsen-,ent. h. Broad Form Named Insured Broad Form Any organization you newly acquire or form, other than a partnership ~,' ioint venture, ana over which VOL ma:'iìtain ownership or majority imerest, wili qualify as a Named Insured if there is no other similar insurance available tc ,t..,á~ organization. However: (1) Coverage under this provision ,3 afforded only until the 180th day after you acquire or form the organizati01 or the end of the policy per,od, whichever is earner; ana (2) Coverage under this provision does not apply to: (a) "Bodily injury"~r "propeny damage" that occurred; or (b) "Personal and advertising arising out cf an offense committed before you acquired or formed the organization. Newly Formed or Organizations Any subsidiary and subsidiary thereof, of yours which is a legally incorporated e1tity of which you own a financial interest of more than 50% of the voting stock on the effective date of this policy. (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 ~sual course of business, in connection with the distribution or sale of the products; (1) Demonstration, installation, servicing or repair operations except such operations performed at the vendor's premises in connection with the sale of the pr°'XWROVED AS TO FORM i ¡:q~ ill/ Laura Stitt Sheedy Assistant City Attorne" i. Aeq uired r"-...- ~c=- ^^ ^ft ^~ ^^ . j. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this policy is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. Additional Insured - Volunteers Any person(s) who are volunteer worker(s) for you, but only while acting at the direction of, and within the scope of their duties for you. (1) However, no volunteer worker(s) are insureds for: (a) "Bodily injury", "property damage" or "personal and advertising injury" arising out of rendering or the failure to render professional services. (b) "Bodily injury" or "personal and advertising injury": (I) 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). your other volunteer worker(s) or to your "employees" arising out of and in the course of their duties for you; (ii) To the spouse, child, parent, brother or sister of your volunteer worker(s) or your "employeesll as a consequence of paragraph (1) (a) above; or (c) "Property damage" to property; (i) Owned, occupied or used by, (ii) 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 other volunteer workers, your "employees", any partner or member (if you are a partnership or joint venture) or any member (if you are a limited liability company). (2) Exclusion 8.2.a. Applicable to Medical Expenses çOj{eraç ~U....J:epla.c;ed l>y the followin!f.-t't'KUV.I:IU A:s TO FOR!v, /!33 ,-11/ c/c/~II 'Laura Stilt Sheedy --. Assistant City Attorn..;, r""--- C"C' ^^ An ^." ^n . 2.a. To any insured, except volunteer workers. (3) When used in this prevls;on j., volunteer worker(s) means a person who is not paid a fee, salary Dr other compensation. 3. Additional Insured - Mobile Equipment With respect to "mobile equipment" registereci in your name under any mo1or veh;cle registration law, éiny person is an i:1.S:Y6'J while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is a!so an ¡.~:sured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is avaiiab!e to 1hat person or organization for this iiat:;,ilÎ1y However, no person or organization is an insured with respect to: a. "Bodily injury" to a co-"employee' :.. . ,,, person driving the equip~'9¡¡t; 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. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 1. The Limits of Insurance shown in the Declarations and the rules below fix the mOS1 we will pay regardless of number of: a. Insureds; b. Claims made or "suits" brought: or c. Persons or organizations making claims or bringing "suits", 2. Aggregate Limits The most we will pay for: a. injury or damages under ¡~e "procucls- completed operations hazard" arising f!'Om all "occurrences" during Ihe policy period is the Products-Completed Operations Aggregate limit shown :n the Declarations. b. All other injury or damages. including medical expenses, arising from all "occurrences" during the policy period is the General Aggregate Limit shown in the Declarations. . This General Aggregate Limit applies separately to eaoh of your "locations" owned by or rented to you. II Location!1 means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. This aggregate limit does not apply to "property damage" to premises rented to you arising out of fire, lightning or explosion. 3. Subject to item 2. above, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of anyone I'occurrence" is the liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Subject to item 2. above, the most we will pay for the sum of a!i damages because of all "personal and advertising injury" sustained by anyone person or organization is the Personal and Advertising Injury Limit shown in the Declarations. 5. The most we will pay under Business Liability Coverage for damages because of "property damage" to premises rented to you, or in the case of fire, while rented to you or temporarily occupied by you with permission of the owner, is the Damage To Premises Rented To You Limit shown in the Declarations. 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 the three. If more than one limit of insurance under this policy and any endorsements attached thereto applies to any claim or "suit", the most we will pay under this policy and the endorsements is the single highest limit of liability of all coverages applicable to such claim or "suit". However, this paragraph does not apply to the Medical Expenses limit set forth in paragraph 3. above. The limits of this policy 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 ex1ended after issuance for an additional ¡;¡w;i¡:¡Q...Qf, \§¡I!i' tl;¡>w TO l 12 months. In that case, the 1MdIíiffMlv¡jSfi6c1'Wì11 J , ß5 é~/!( . Laura Stitt Sh¥ Assistant Citv ..\ r_..- C"C" ^^ nn ^'" ^n . be deemed part of the last preceding perioe ior purposes of determining the Limits of Insurance. E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 1. Ba n kru ptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under the policy. 2. Duties in The Event of Occurrence, Claim or Suit 3. You must see to it 1hæ we afS .:,3-0 promptly of an "occurrence" or an offense which may result in a claim. To the eX1ert possible, notioe should include: (1) How, when and where ;he'ocourrence" or offense took place; and (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injUry or damage arising out cf the "occurrencell or offense, This condition appiies on!y whet: ,r,¿ "occurrence" or offense is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership: or (3) A manager if you are a limited liability company; (4) An "executive officer" or insurance manager, if you are a corporation; or (5) Any elected or appointed official if you are a political subdivision O~ c ;.~::'::~~ entity. b. If a claim is made or "suit" is brought against any insured, you must: (1) Immediately record the specifics of the claim or ¡¡suit1! and the date rece;ved: and (2) Notify us as soon as practioacle. You must see to it that we receive a written notice of the claim or "suit" as soon as practicable. But this condition will not be cons u,'sc breached uriiess the breach CCCL.:rs E~T1e~ such claim or "suit" is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership; or (3) A manager if you are a limiteo :iaoi:!t., company; (4) An lIexecutive officer" or insurance manager, if you are a corporation, or . c. 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, settlement of the claim or defense against the IIsuitll; and (4) Assist us, upon our request, in the enforcement of any right against any person or organization that may be liable to the insured because of injury or damage to which this insurance may also apply. d. No insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. 3. Financial Responsibility Laws a. When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, the insurance provided by the policy for "bodily injury" liability and "property damage" liability will comply with the provisions of the law to the extent of the coverage and limits of insurance required by that law. b. With respect to "mobile equipment" to which this insurance applies, we will provide any liability, uninsured motorists, underinsured motorists, no-fault or other coverage required by any motor vehicle law. We will provide the required limits for those coverages. 4. Legal Action Against Us No person or organization has a right under this coverage form: 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 form 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 obtained after an actual trial; but we will not be liable for damages that are not payable under the terms of this policy 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. (d) If the loss arises out of the maintenance or use of aircraft, Ilautos'. or watercraft to the extent Form 55 00 08 03 00 . 5. Separation of Insureds Except with respect to the Limi;s of Insurac,:e, and any rights or duties specifically assignee in this policy to the first Named Insured. this insurance applies: a. As if each Namea Insurea W81e ths onty Named Insured; and b. Separately to each insured against whom a claim is made or "suit" is brought 6. Unintentional Failure to Disclose Hazards It is agreed that based on our reliance en your representations as 10 existing :ìaza¡\:;;.; , unintentionaily you should fai: fo OiSClOS2 ~:. such hazards at the inception date of your policy, we shall not deny any coverage under this Coverage Form because of such failure. 7. Other Insurance - Primary Additional Insured If the written contract or agreement or pew,;t requires this insurance to be primary for any person or organization with whom you agree to include in WHO IS AN INSURED. this Other Insurance Provision is applicable. If other valid and cOllectible insur""Ci. .. available for a loss we cover under tnis Business Liability Coverage Form, our obligations are limited as follows: a. Primary Insurance This insurance is primary. VI/e wHì nm seek contributions from other insurance available to the person or organization with whom you agree to include in WHO IS AN INSURED, except when b. app:ies. b. Excess Insurance This insurance is excess over: (1) Any other insurance, whether primary, excess, contingent or on any other basis: (a) That is Fire, Extend6J Coverage, Builder's Risk, Instaliation Risk or ~ ~ similar coverage for "you. r work"; o¿ (b) That is Fire insur"nce for f2 \ \ . premises rented to you or 0 1\ \ '" t;> temporarily occupied by you with ~ '. \ '? ~ permission of the 0w:~¡er: <zJ ~' j,!.(~ That is insurance purcnasec D\j ~ i .:- you to cover your liabiii¡y as a C) \' J j tenant for "property damage" to e? ". ~ premises rented to you 0;- é .';¡ temporarily occupiec! by you with r£' ~ a permission of the owner; or ç ~ ( not subject to Exclusion g. of Section A. - Coverages. . . APPROVED AS TO FOR]" !f¿-S~ 5'1// / t...-'''''- Laura Stitt Sn~":llY Assistant City Altorn.:"" 1. Additional Insured - Designated Person or Organization WHO IS AN INSURED under Seciicn C.5 amended to include as an insured ~h6 peíSCi] or organizaiion shown in ihe Declaraiions, bui only wiih respeci io liabiliiy arising oui of your operaiions or premises owned by or renied io you. 2. Additional Insured - Managers or Lessors of Premises a. WHO IS AN INSURED under Seciion C. is amended io include as an insured ihe person(s) or organization(s) shown in the Declarations; but only with respec 'J liability arising out of the OWne'3.llp maintenance or use of lhat part of -;:P8 premises leased to you and shown in ihe Declarations and subject to the following additional exclusions: b. Additional Exclusions This insurance does not apply to: (1) Any "occurrence!. which 1akes piace after you cease to be a 1enant in the:, premises; or (2) Struciural aliera1ior,s, cons1ruc1ion or demolition opera':cn2 performed by or for :ha; per"on or organiza1ion. 3. Additional Insured - Grantor of Franchise WHO IS AN iNSURED under Sec':~~ C. " amended 10 include as an insured the person(s) or organiza1ion(s) shown in ihe Declara1ions, bu1 only wi1h respect 1c 1neir liability as grantor of franchise to you. 4. Additional Insured - Lessor of Leased Equipment a. WHO IS AN INSURED under Sectien 8.s amended to include as an ¡nsure~ 1he person(s) or organization(s) shown in the Declarations, but only with respect 1c iheir liability arising oui of the maintenance, operation or use by YOL of equipmen1 leased to you by such person(s) or organization(s). b. Addiiional Exclusions: This insurance does not apply: (1) To any "occurrence" whice, :ske,' place after the equipme.11 ,a¿s~ expires; or (2) To "bodily injUlY" or "property damagell arising out of "the sole negligence of the lesser. .<2v, (2) Any oiher primary insurance available io you covering liability for damages arising out of the premises or operations for which you have been added as an addiiional insured by atfachmeni of an endorsement When this insurance is excess over other insurance, we will pay only our share of the amount of ihe loss, if any, that exceeds the sum of: (1) The total amouni that all such oiher insurance would pay for the loss in the absence ofihis insurance; and (2) The total of all deductible and self- insured amounts under all thai other insurance. We will share the remaining loss, if any, with any oiher insurance ihat is not described in ihis excess of ihe Limiis of Insurance shown in ihe Declarations of ihis Coverage Part. c. Method of Sharing If all ihe oiher insurance permits contribuiion by equal shares, we will follow this meihod also. Under this approach, each insurer coniributes equal amounts uniil it has paid its applicable limit of insurance or none of the Icss remains. whichever comes first If any of ihe other insurance does not permit coniribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on ihe rai;o of iis applicable limit of insurance io the iotal applicable limits of insurance of all insurers. This provision provides such insurance as is afforded under this policy, bui only wiih respect io your operations, "your work" or facilities owned or used by you. F. OPTIONAL COVERAGES If lisied or shown as applicable in ihe Declarations, one or more of ihe following Opiional Coverages also apply. These coverages are subject to the terms and conditions applicable to Business Liability Coverage in this policy, except as provided below: 11""--- ~r" ""I'll. ^'"' ^~ A" . 5. Additional Insured - Owners or Other Interests From Whom Land Has Been Leased WHO is AN iNSURED under Section C. is amended to include as an insured the person or organization shown in the Declarations, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land leased to you and shown in the Declarations and subject to the following additional exclusion: This insurance does not apply to: a. Any "occurrence" that takes place after you cease to lease that land; or b. Structural alterations, new construction or demolition operations performed by or for the person or organization shown in the Declarations. 6. Additional Insured - State or Political Subdivision - Permits a. WHO IS AN INSURED under Section C. is amended to include as an insured the state or political subdivision shown in the Declarations, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. b. Additional Exclusions This insurance does not apply to: (1) "Bodily injury", "property damage" or "personal and advertising injuryll arising out of operations performed for the state or political subdivision; or (2) "Bodily injury" or "property damage" included in the "product-completed operationsll hazard. 7. Additional Insured - Vendors a. WHO IS AN INSURED under Section C. is amended to include as an insured the person(s) or organization(s) (referred to below as vendor) shown in the Declarations, 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. b. Additional Exclusions (1) The insurance afforded the vendor 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. r_..- cor:- ^^ An ^"" ^n '> ~ ~ (~ ~ u.. \ " ~ " ~~' g g(2) f. ..C' t tI:I . ~ [/) -< -:; ';> , ) ß ](3) :> ~ 0 2 ~' < . 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 war'" :'tv unaûthorized by Yúc: (c) Any physical or chemica! change in the product made intentionaily by the vendor: (d) Repackaging, unless unpacKed solely for the purpose of inspection, demonst'5.:¡on, testing. or the substitution of pailS uneer instructions from the manufacturer, and tne" repackaged in tile container; (e) Any failure to make sue" inspections, adjustments, tests or servicing as the vendoc has agreed to make cr rormaily undertakes to make in ¡he "sUal course of business, in connection with the distribution or sale úf ¡he products; (f) Demonstration, instaliation, servicing or repair OC3~2.~jC'ÎS except such operaTions p6f1(::r~¡e: at the vendor's prern!S8S ';¡ connection with the sale of the product; (g) Products which, after distribution or sale by you, have beef) ;a.beI2d or relabeled cr used as a container, part or ingredient of a!lY other thing or substance by or for the vendor. (2) This insurance does not apply to any insured person or organ;zatio,"., -~'-~::9 whom you have acquireD :.::.....c;": products, or any ingredient, pan or container, entering inte, accompanying or containing such products. This Provision 7. dúes ¡,¡o¡ app.y ~o any vendor included as an insured by an endorsement issued by us and made a part of this Coverage Form. This Provision 7. does nO! apply if Jlbodily injuryll or ¡¡property darre.gell included wí1hin the '¡Pi'0C-"--':-:s- comple1ed operations hazam'. is excluded either by the provisions of this Coverage Form cr by endorsement. . . 8. Additional Insured - Controlling Interest WHO IS AN INSURED under Section C. is amended to include as an insured the person(s) or organization(s) shown in the Declarations but only with respect to their liability arising out of: a. Their financial control of you; or b. Premises they own, maintain or control while you lease or occupy these premises. This insurance does not apply to structural alterations, new construction and demolition operations performed by or for that person or organization. 9. Additional Insured - Owners, Lessees or Contractors Scheduled Person Organization. WHO IS AN INSURED under Section C. is amended to include as insured the person or organization shown in the Declarations, but only with respect to liability arising out of your ongoing operations performed for that insured. 10. Additional Insured - Co-Owner of Insured Premises WHO IS AN INSURED under Section C. is amended to include as an insured the person(s) or Organization(s) shown in the Declarations, but only with respect to their liability as co-owner of the premises shown in the Declarations. b. Any other publication that is given widespread public distribution. However, "advertisement., does not include the design, printed materia:, information or images contained in, on or upon the packaging or labeling of any goods or products. 2. "Advertising ideal! means any !OGB. for an lIadvertisemen111, 3. "Auto" means a land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment. But lIautoll does n01 ¡nc!~ce IImob¡¡e equipment" . or 4. "Bodily Injury" means bodily injury, sickness or disease sustained by a person, including mental anguish cr death resulting from any oj these at any time. 5. "Coverage territory" means: a. The United States oj America (including its territories and possessions), Puerto Rico and Canada; b. International waters or airspace, provided the injury or damage does not occur in the course of travel or transportation to or from any place not included in a. above; or c. All parts of the world if: (1) The injury or damage arises out of: (a) Goods GO proCUGts made or sold by you ;r, the territory described in a. above; or (b) 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; and (2) The insured's responsibility to pay damages is determined in a Usuit" on 1he merits in the terntory described in a. asettlement to which we agree. G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 1. ::;s ¡:;r:: 0 JJ:.. \. >, 0 ~\\ -5' e ~ '<1) 0 ,-, ,,- -.\::'; t!;¿ "- ::; è aû "AdvertisementLL means a 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 VJ ~ Ci ~ >- 0 ¡:;r:: ~ ~ -t Form 55 00 08 03 00 . . 6. "Employee" includes a "leased workerll, UEmployeell does not include a "temporary workerll, 7. "Executive officer" means a person holding any of 1he officer posi1ions crea1ed by your charter, cons1i1u1ion, by-laws or any 01her similar governing document 8. "rlosliie fire!! means one which becomes uncon1rollable or breaks ou1 from where i1 was in1ended 10 be. 9. "Impaired property" means 1angible property, oiher ihan "your product" or "your work", 1hat cannot be used or is less useful because: a. It incorporates "your produc1" or "your work" that is known or thought to be defective, deficien1, inadequate or dangerous; or b. You have failed to fulfill the 1erms of a contrac1 or agreement: if such property can be restored to use by: a. The repair, replacemen1, adjus1ment or removal of "your productlt or Uyour work"; or Your fulfilling the terms of 1he con1rac1 or agreemem. APPROVED AS TO FORM f!t: // /1L- Lauta Stitt Sheedy Assistant City Attorm:y Form 55 00 08 03 00