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Sierra Landscape/Jefferson St Parkway 10SECTION 1300 CONTRACT THIS CONTRACT, by and between the CITY OF LA QUINTA, a municipal corporation, herein referred to as "City," and Sierra Landscape Co., herein referred to as, "Contractor." WIT NESSETH: In consideration of their mutual covenants, the parties hereto agree as follows: 1. Contractor shall furnish all necessary labor, material, equipment, transportation and services for City Project No. 2009-16B, Jefferson Street Parkway Landscape Improvements, in the City of La Quinta, California pursuant to the Invitation to Bid, dated July 7, 2010, the project Specifications, and Contractor's Bid, dated July 21, 2010 all of which documents shall be considered a part hereof as though fully set herein. Should any provisions of Contractor's Bid be in conflict with the Notice Inviting Bids, Specifications, or this Contract, then the provisions of said Contract, Specifications, and Invitation to Bid shall be controlling, in that order of precedence. The time frame for construction work shall be in accordance with that specified in the Invitation to Bid. 2. Contractor will comply with all Federal, State, County, and La Quinta Municipal Code, which are, as amended from time to time, incorporated herein by reference. 3. All work shall be done in a manner satisfactory to the City Engineer. 4. Contractor shall commence work after the issuance of a written Notice to Proceed and agrees to have all work completed within 45 working days from the date of Notification to Proceed. 5. In consideration of said work, City agrees to pay Contractor such sums as shall be approved by the City Engineer at lump sums and/or unit prices stated in the Contractor's Bid, the base consideration Two Hundred and Ninety Nine Thousand, One Hundred and Thirty Three dollars and no cents. ($299,133). All payments shall be subject to approval by the City Engineer and shall be in accordance with the terms, conditions, and procedures provided in the Specifications. 6. The Contractor shall not knowingly pay less than the general prevailing rate for per diem wages, as determined by the State of California Department of Industrial Relations and referred to in the Invitation to Bid, to any workman employed for the work to be performed under this contract; and the Contractor shall forfeit as a penalty to the City the sum of Twenty -Five Dollars ($25.00) for each calendar day, or fraction thereof, for such workman paid by him or by any subcontractor under him in violation of this provision (Sections 1770-1777, Labor Code of California). 7. Concurrently with the execution of this Contract, Contractor shall furnish bonds of a surety satisfactory to City, as provided in said Specifications or Invitation to Bid, the cost of which shall be paid by Contractor. Contract 1300.1 8. Except for the gross negligence or willful misconduct of an Indemnified Party (as hereinafter defined), Contractor hereby assumes liability for and agrees to defend, (at Indemnified Parties' option), indemnify, protect and hold harmless City and its Project Consultants, and Engineers, officers, agents, and employees ("Indemnified Parties'), from and against any and all claims, charges, damages, demands, actions, proceedings, losses, stop notices, costs, expenses (including legal costs and attorneys' fees), judgments, civil fines and penalties, liability of any kind or nature whatsoever, which may be sustained or suffered by or secured against the Indemnified Parties arising out of or encountered in connection with this Contract or the performance of the Work, including, but not limited to, death or bodily or personal injury to persons or damage to property, including property owned by or under the care and custody of City, and for civil fines and penalties that may arise from or be caused, in whole or in part, by any negligent or other act or omission of Contractor, its officers, agents, employees or Subcontractors including, but not limited to, liability arising from: 1. Any dangerous, hazardous, unsafe or defective condition of, in or on the premises, of any nature whatsoever, which may exist by reason of any act, omission, neglect, or any use or occupation of the premises by Contractor, its officers, agents, employees, or subcontractors; 2. Any operation conducted upon or any use or occupation of the premises by Contractor, its officers, agents, employees, or subcontractors under or pursuant to the provisions of this contract or otherwise; 3. Any act, omission or negligence of Contractor, its officers, agents, employees, or Subcontractors; 4. Any failure of Contractor, its officers, agents or employees to comply with any of the terms or conditions of this Contract or any applicable federal, state, regional, or municipal law, ordinance, rule or regulation; and 5. The conditions, operations, uses, occupations, acts, omissions or negligence referred to in Sub -subsections (1), (2), (3), and (4), existing or conducted upon or arising from the use or occupation by Contractor on any other premises in the care, custody and control of City. The Contractor also agrees to indemnify City and pay for all damages or loss suffered by City including but not limited to damage to or loss of City property, to the extent not insured by City and loss of City revenue from any source, caused by or arising out of the conditions, operations, uses, occupations, acts, omissions or negligence referred to in Sub -subsections (1), (2), (3), (4) and (5). Contractor's obligations under this Section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnified Party. However, without affecting the rights of City under any provision of this contract, Contractor shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City's active negligence accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of City. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Contractor in the performance of this contract. In the event Contract 1300-2 Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Contractor and shall survive the termination of this contract or this section. This indemnity shall survive termination of the Contract or Final Payment hereunder. This Indemnity is in addition to any other rights or remedies that the Indemnified Parties may have under the law or under any other Contract Documents or Agreements. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, City may, in its sole discretion, reserve, retain or apply any monies to the Contractor under this Contract for the purpose of resolving such claims; provided, however, City may release such funds if the Contractor provides City with reasonable assurance of protection of the Indemnified Parties' interests. City shall, in its sole discretion, determine whether such assurances are reasonable. Approval of any insurance contracts by the City does not relieve the Contractor or subcontractors from liability under Section 1340-1.0, Indemnification of the Specifications. The City will not be liable for any accident, loss, or damage to the work prior to its completion and acceptance. 9. Except as otherwise required, Contractor shall concurrently with the execution of this contract, furnish the City satisfactory evidence of insurance of the kinds and in the amounts provided in said Specifications, Section 1340-2.0, Insurance Requirements. This insurance shall be kept in full force and effect by Contractor during this entire contract and all premiums thereon shall be promptly paid by it. Each policy shall further state that it cannot be canceled without 30 days unconditional written notice to the City and shall name the City as an additional insured. Contractor shall furnish evidence of having in effect, and shall maintain, Workers Compensation Insurance coverage of not less than the statutory amount or otherwise show a certificate of self-insurance, in accordance with the Workers Compensation laws of the State of California. Failure to maintain the required amounts and types of coverage throughout the duration of this Contract shall constitute a material breach of this Contract. 10. Contractor shall forfeit as a penalty to City $25.00 for each laborer, workman, or mechanic employed in the execution of this Contract by said Contractor, or any subcontractor under it, upon any of the work herein mentioned, for each calendar day during which such laborer, workman, or mechanic is required or permitted to work at other than a rate of pay provided by law for more than 8 hours in any one calendar day and 40 hours in any one calendar week, in violation of the provisions of Sections 1810-1815 of the Labor Code of the State of California. 11. In accepting this Contract, Contractor certifies that in the conduct of its business it does not deny the right of any individual to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex or age as provided in the California Fair Employment Practice Act (Government Code Sections 12900, et seq.) Contractor agrees that a finding by the State Fair Employment Practices Commission that Contractor has engaged during the term of this Contract in any unlawful employment practice shall be deemed a breach of this Contract and Contractor shall pay to City $1,607.00 liquidated damages for each such breach committed under this contract. Contract 1300-3 12. Contractor also agrees that for contracts in excess of $30,000 and more than 20 calendar days duration, that apprentices will be employed without discrimination in an approved program in a ratio established in the apprenticeship standards of the craft involved (Sections 1777.5 and 1777.6, Labor Code of California). Contractors who willfully fail to comply will be denied the right to bid on public projects for a period of six months in addition to other penalties provided by law. 13. This Contract shall not be assignable by Contractor without the written consent of City. 14. Contractor shall notify the City Engineer (in writing) forthwith when the Contract is deemed completed. 15. In accepting this Contract, Contractor certifies that no member or officer of the firm or corporation is an officer or employee of the City except to the extent permitted by law. 16. Contractor certifies that it is the holder of any necessary California State Contractor's License and authorized to undertake the above work. 17. The City, or its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of the Contractor records to the extent the City deems necessary to insure it is receiving all money to which it is entitled under the contract and/or is paying only the amounts to which Contractor is properly entitled under the Contract or for other purposes relating to the Contract. 18. The Contractor shall maintain and preserve all such records for a period of at least three years after termination of the contract. 19, The Contractor shall maintain all such records in the City of La Quinta. If not, the Contractor shall, upon request, promptly deliver the records to the City or reimburse the City for all reasonable and extra costs incurred in conducting the audit at a location other than at City offices including, but not Jimited to, such additional (out of the City) expenses for personnel, salaries, private auditors, travel, lodging, meals and overhead. 20. The further terms, conditions, and covenants of the Contract are set forth in the Contract Documents, each of which is by this reference made a part hereof. Contract 1300.4 IN WITNESS WHEREOF, the parties have executed this Contract as of the dates stated below. 11 Dated: �/y Z "CITY" CITY OF LA QUINTA a�Ca/liffo�Jrnia municipal corporat' n By: Thomas P. Genovese, City Manager ATTEST / 9",,Z�Lzn Dated: Veronica J. M ecino, CIVIC, City Clerk AP ROVED AS TO FORM: City Attorney Dated: 4a� 22 "CONTRACTOR" (If corporation, affix seal) Dated: By: sign Name: 2. 2-- Title: Proms( Dahl l F int name tits' street address city I state zip code Dated: By: signature Name: Title: print name Address: street address city state zip code Contract 1300-5 FIRST SEALORD SURETY, INC. 789 E. Lancaster Avenue P.O. Box 900 Villanova, PA 19085 (610)664-2324 PERFORMANCE BOND Bond No. 10-08604—PP Premium: 4,487.00 KNOW ALL MEN BY THESE PRESENTS, that we Sierra Landscape as Principal, hereinafter called Contractor, and FIRST SEALORD SURETY, INC., a corporation duly organized under the laws of the Commonwealth of Pennsylvania, as Surety, hereinafter called Surety, are held and firmly bound unto City of La Quinta as Obligee, hereinafter called Owner, in the amount of Two Hundred Ninety Nine Thousand One Hundred Thirty Three Pollard & 00/100 Dollars ($ 299,133.00*** for the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally by these presents. WHEREAS, Contractor has by written agreement dated Au Q . 4 , 2 0 10 (dated no later than this bond) entered into a contract with Owner for P r n No. 9 n n 9 1 6, Tpffprqnn Street Park-1@11cisGaPe total contract amount being $ 299 , 1 3 3 . 0 0 * * *and in accordance with Drawings and Specificationsppr o veiyn t s Tim Jonasson, City Engineer NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Contractor shall promptly and faithfully perform said Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect. The Surety hereby waives notice of any alteration or extension of time made by the Owner. Whenever Contractor shall be, and declared by Owner to be in default and terminated under the Contract, the Owner having performed Owner's obligations thereunder, the Surety may promptly remedy the default, or shall promptly 1. Complete the Contract in accordance with its terms and conditions, or 2. Obtain a bid or bids for completing the Contract in accordance with its terms and conditions and upon determination by Surety of the lowest responsible bidder, or, if the Owner elects, upon determination by the Owner and the Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and Owner, and make available as Work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the Performance Bond - Public(Ed. 8/02/07) Page 1 of 2 cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the contract price," as used in this paragraph, shall mean the total amount payable by Owner to Contractor under the Contract and any amendments thereto, less the amount properly paid by Owner to Contractor. Any suit under this bond must be instituted before the expiration of two (2) years (three (3) years for projects in North Carolina) from the date on which final payment under the Contract falls due, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof, such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. No right of action shall accrue on this bond to or for the use of any person or corporation other than the Owner named herein or the heirs, executors, administrators or successors of the Owner. Signed and sealed this 16 t h day of August 12010 (Witness) (Principal) (Seal) By: ('f i(%) FIRST SE LORD SURETY, INC. Diane M Nielsen (Attorney-m-Fact) Performance Bond -Public (Ed. 8/02/07) Page 2 of 2 STATE OF CALIFORNIA COUNTY OF RIVERSIDE ON ?�' 116 1 1y , BEFORE ME, LINDA ROCHA, Notary Public PERSONALLY APPEARED: Diane M. Nielsen Who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument & acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies), and that by his/her/their signatures (s) on the instrument the person (s), or the entity upon behalf of which the person (s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 4da Rocha, Notary LINDA ROCHA Commission # 1777932 -e Notary Public • California Riverside County MV Camm. Bpkes Nov 23, 2011 ALL PURPOSE ACKNOWLEDGMENT FIRST SEALORD SURETY, INC. 789 E. Lancaster Avenue P.O. Box 900 Villanova, PA 19085 (610)664-2324 LABOR & MATERIAL PAYMENT BOND Bond No. 10-08604—PP Premium: Included KNOW ALL MEN BY THESE PRESENTS that: as Principal, hereinafter called Principal, and FIRST SEALORD SURETY, INC., a corporation organized under the laws of the Commonwealth of Pennsylvania, as Surety, hereinafter called Surety, are held and firmly bound unto: ri r.. of T.n ni,inta as Obligee, hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined, in the amount of Two Hundered Ninety Nine Thousand One Hundred Thirty 7TOTIM($ 299,133.00**� for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Principal has by written agreement dated Aug 4 , 2 010 (dated no later than this bond) entered into a contract with Owner for Pro!. No. 2009-16, Jefferson Street Parkway Landscape Improvements total contract amount being S 2 9 9 , 13 3 . 0 0 * * * in accordance with Drawings and Specifications prepared by Tim Jonasson, City Engineer NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the following conditions: 1. A claimant is defined as one having a direct contract with the Principal or with a Subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the Contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract. 2. The above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant's work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit. Payment Bond - Pubhc(Ed. 08/07/07) Page 1 of 3. No suit or action shall be commenced hereunder by any claimant: a) Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transactions of business, or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer. b) After the expiration of one (1) year following the date on which the claimant last supplied labor or material or both, used or reasonably required for use in the performance of the Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof, such limitation shall be deemed to be amended so as to equal to the minimum period of limitation permitted by such law. c) Other than in a state court of competent jurisdiction in and for the county or other political subdivision of the state hereunder, inclusive of the payment by Surety of Mechanics' liens which may be filed of record against said improvement, whether or not claim for the amount of such lien be presented under and against this bond. 4. The amount of this bond shall be reduced by and to the extent of any payment or payments made in good faith hereunder, inclusive of the payment by Surety of Mechanics' liens which may be filed of record against said improvement, whether or not claim for the amount of such lien be presented under and against this bond. Signed and sealed this 16 th day of August 20 10 (Witness) Sierra Landscape Co. (Principal) (Seal) Ole By: a FIRST SEALORD SURETY, INC. - By:, Attorney-in=Fact) Diane M Nielsen (, Payment Bond - Public (Ed. 08/07/07) Page 2 of 2 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE ON C 161 J , BEFORE ME, LINDA ROCHA, Notary Public PERSONALLY APPEARED: Diane M. Nielsen Who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument & acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies), and that by his/her/their signatures (s) on the instrument the person (s), or the entity upon behalf of which the person (s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signatur da Rocha, Notary -------------------- LINDA ROCHA Commission # 1777932 <.-o Notary Public • California Riverside County '- MyCamm. B#es No✓23, 2011 ALL PURPOSE ACKNOWLEDGMENT First Sealord Surety, Inc. Power No: ACA-0796-09-14005 Power of Attorney KNOW ALL MEN BY THESE. PRESENTS: That First Sealord Surety, Inc., a corporation of the Commonwealth of Pennsylvania, (hereinafter the "Company") has made, constituted and appointed, and by these presents does make, constitute and appoint Van G. Tanner, Sal C. Sandoval, Mathew S. Costello, Paul W. Lewis, Diane M. Nielaen and/or Ann Willard all of Palm Desert, California its true and lawful Attorney -in -Fact, to make, execute and deliver on its behalf insurance policies, surety bonds, undertakings and other instruments of a similar nature as follows: --*- Such Not To Exceed Five Million Dollars --------- — ----------- --(56,000,000.00) Such insurance policies, surety bonds, undertakings and instruments for said purposes, when duly executed by the aforesaid Attorney -in -Fact, shall be binding upon the said Corporation as fully and to the same extent as if signed by the duly authorized officers of the Corporation and sealed with its - corporate seal; and all the acts of said Attorney in Fact pursuant to'- the _authority hereby given, are hereby ratified and confirmed - - - This appointment is made pursuant to the: following By -Laws which 'were duly adopted by the -Board of Directors of the said Corporation on April 7, 2003 - with all Amendments thereto and are still in full force and effect: "Article XII: Policies, Bonds, Recognitions, Stipulations, Consents of Surety, Underwriting Undertakings, and Instruments Relating Thereto. Section 12-1. Insurance policies, bonds, recognitions, stipulations, consents of surety and underwriting undertakings of the Corporation, and releases, agreements and other writings relating in any way thereto or to any Claim or loss thereunder, shall be signed in the name and onbehalf of the Corporation: a) by the Chairman of the Board, the President or a Vice President, and by the Secretary or an Assistant Secretary; or b) by an Attorney - in -Fact for the Corporation appointed and authorized by the Chairman of the Board, the President, or a Vice President to make such signature; or c) by such other officers or representatives as the Board may from time to time determine. The seal of the Corporation shall if appropriate be affixed thereto by any such officer, Attorney -in -Fact or representative. The authority of such Attorney -in -Fact and Agents shall be as prescribed in the instrument evidencing their appointment. Any such appointment and all authority granted thereby may be revoked at any time by the Board of Directors or by any person empowered to make such appointment." INiWITNESS. WHEREOF;,F First Sealord Surety Inc has ceusedStlu presents t"e duly signed and its -corporate seal to be hereunto affixed and duly attested this,Wth dof January, 2004 ay First Sealord Surety, Inc. , Y 199, 9�{ (Seal) Attest: Attest: By: •`'„+"'" Gary L. Bragg, Secretary Joel D: Cooperman, Vice President Commonwealth of Pennsylvania County of Montgomery On this 20th day of January, 2004, before me personally appeared Joel D. Cooperman, Vice President of First Sealord Surety, Inc., with whom I am personally acquainted, who, being by me duly sworn, said that he resides in the Commonwealth of Pennsylvania, that he is Vice President of First -.Sealord Surety, Inc the corporation described in and which executed the foregoing instrument; that he knows the corporate seal of the said +Corporation; that the seal'affixed to said instrument issuch corporate seal -that it was so affixed by order ,ofahe Board ofDirectors of said Corporation; and that hesi�, u,�n�d his name thereto as. Vice Presidanf of said Corp_orahon by like=authority -=� _ MONwEAtTN OF a?�ENNSYLYANIA. - (Seal) j a Y' iNotary Public r Kv `) CERTIFICATE Jrai i5a I, the undersigrieil Secretary of First Sealord Surety., Inc. do hereby certify that the original Power of Attorney of which the foregoing is a full, true and correct copy, is in full force andeffect on the date of this Certificate and I do further certify that the Offioer who executed the said Power of Attorney was one of the Officers authorized by the Board of Directors to appoint an Attorney -in -Fact as provided in Section 12-1 of the By -Laws of First Sealord Surety, Inc. This Certificate may be signed and sealed by facsimile under and by authority of the following provisions of the By -Laws of First Sealord Surety, Inc.: "Section 12-2. The use of a printed facsimile of the corporate seal of the Corporation and of the signature of the Secretary or an Assistant Secretary on any certification of the correctness of a copy of an instrument executed by an authorized person pursuant to Article XII, Section 12-1 of the By -Laws _ __= appointing -and authorizing an Attorney in -Fact tosign_in the :name -and _on_behalf of the Corporation surety _bonds, underwriting undertakings, or other - instruments Cescribed inlaid Section 72,7 wdh like_effect as dsu-ch seafand such signature -had been manually affixed and made _= - - In Witness Whereof, I have hereunto set my hand and affixed the corporate seal of the Corporation to these presents this 16t)dayof August ,20 10 This power of attorney is void unless the Bond number is inserted in this paragraph (insert Bond 4 herel 0 — 0 8 6 0 4 — P P ), the bond number is the same number as on the original bond, d the bond number has been inserted. by an officer or employee of the Company or by the agent - (seal) Ga L. Bragg, ecretary Firit_Sealord Surety POA_doc (Ed 01)20l2004) SECTION 1330 WORKERS' COMPENSATION INSURANCE CERTIFICATE In accordance with California Labor Code Section 1861, prior to commencement of work on the Contract, the Contractor shall sign and file with the City the following certification: "I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the perfpFinance of the work of this contract." Sig Fi Title R-1rID Date Workers Compensation Insurance Certificate 1330-1 SECTION 1340 LIABILITY AND INSURANCE REQUIREMENTS 1.0 INDEMNIFICATION Except for the gross negligence or willful misconduct of an Indemnified Party (as hereinafter defined), the Contractor hereby assumes liability for and agrees to defend (at Indemnified Parties' option), indemnify, protect and hold harmless City and its Project Consultants, and Engineers, officers, agents, and employees ("Indemnified Parties") from and against any and all claims, charges, damages, demands, actions, proceedings, losses, stop notices, costs, expenses (including counsel fees), judgments, civil fines and penalties, liabilities of any kind or nature whatsoever, which may be sustained or suffered by or secured against the Indemnified Parties arising out of or encountered in connection with this Contract or the performance of the Work including, but not limited to, death of or bodily or personal injury to persons or damage to property, including property owned by or under the care and custody of City, and for civil fines and penalties, that may arise from or be caused, in whole or in part, by any negligent or other act or omission of Contractor, its officers, agents, employees or Subcontractors including, but not limited to, liability arising from: 1. Any dangerous, hazardous, unsafe or defective condition of, in or on the premises, of any nature whatsoever, which may exist by reason of any act, omission, neglect, or any use or occupation of the premises by Contractor, its officers, agents, employees, or subcontractors; 2. Any operation conducted upon or any use or occupation of the premises by Contractor, its officers, agents, employees, or subcontractors under or pursuant to the provisions of this contract or otherwise; 3. Any act, omission or negligence of Contractor, its officers, agents, employees, or Subcontractors; 4. Any failure of Contractor, its officers, agents or employees to comply with any of the terms or conditions of this Contract or any applicable federal, state, regional, or municipal law, ordinance, rule or regulation; and 5. The conditions, operations, uses, occupations, acts, omissions or negligence referred to in Sub -subsections (1), (2), (3), and (4), existing or conducted upon or arising from the use or occupation by Contractor on any other premises in the care, custody and control of City. The Contractor also agrees to indemnify City and pay for all damages or loss suffered by City including but not limited to damage to or loss of City property, to the extent not insured by City and loss of City revenue from any source, caused by or arising out of the conditions, operations, uses, occupations, acts, omissions or negligence referred to in Sub -subsections (1), (2), (3), (4) and (5). Contractor's obligations under this Section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost expense, judgment, civil fine or penalty, or liability was caused in part or contributed Liability and Insurance Requirements 1340-1 to by an Indemnified Party. However, without affecting the rights of City under any provision of this Contract, Contractor shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by Contract between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City's active negligence accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of City. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Contractor in the performance of this Contract. In the event Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Contractor and shall survive the termination of this Contract or this section. This indemnity shall survive termination of the Contract or Final Payment hereunder. This Indemnity is in addition to any other rights or remedies that the Indemnified Parties may have under the law or under any other Contract Documents or Agreements. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, City may, in its sole discretion, reserve, retain or apply any monies to the Contractor under this Contract for the purpose of resolving such claims; provided, however, City may release such funds if the Contractor provides City with reasonable assurance of protection of the Indemnified Parties' interests. City shall, in its sole discretion, determine whether such assurances are reasonable. Approval of any insurance contracts by the City does not relieve the Contractor or subcontractors from liability under Section 1340-1.0, Indemnification. The City will not be liable for any accident, loss, or damage to the work prior to its completion and acceptance. 2.0 INSURANCE REQUIREMENTS 2.1 General Prior to the beginning of and throughout the duration of the Work, Contractor will maintain insurance in conformance with the requirements set forth below. Contractor will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, it will be amended to do so. Contractor acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to City in excess of the limits and coverage required in Liability and Insurance Requirements 13442 this Contract and which is applicable to a given loss, will be available to City. Contractor shall submit coverage verification for review and approval by the City upon execution of the Contract. The Notice to Proceed with the Work under this Contract will not be issued, and the Contractor shall not commence work, until such insurance has been approved by the City. The Contractor shall not allow any subcontractors to commence work on its subcontract until all similar insurance required of the subcontractor has been obtained and verified by Contractor. Such insurance shall remain in full force and effect at all times during the prosecution of the Work and until the final completion and acceptance thereof. The Notice to Proceed does not relieve the Contractor of the duty to obtain such insurance as required by Paragraph 1340-2.0 INSURANCE REQUIREMENTS. Contractor shall provide the following types and amounts of insurance: 2.2 Commercial General Liability Policy Commercial General Liability Insurance using Insurance Services Office "Commercial General Liability" policy form CG 00 01 or the equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits shall be no less than Two Million Dollars ($2,000,000) per occurrence for all covered losses and no less than Four Million Dollars ($4,000,000) general aggregate. Contractor's policy shall contain no endorsements limiting coverage beyond the basic policy coverage grant for any of the following: a. Explosion, Collapse or Underground Hazard(X CU). b. Products and Completed Operations. C. Pollution liability. d. Contractual liability. Coverage shall be applicable to City for injury to employees of: contractors, subcontractors or others involved in the project. Policy shall be endorsed to provide a separate limit applicable to this project. 2.3 Workers' Compensation Insurance Workers' Compensation on a state -approved policy form providing statutory benefits as required by law with employer's liability limits no less than $1,000,000 per accident for all covered losses. Liability and Insurance Requirements 1340.3 2.4 Business Auto Policy Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 06 92 including symbol 1 (Any Auto) or the equivalent. Limits shall be no less than $1,000,000 per accident, combined single limit. If Contractor owns no vehicles, this requirement may be satisfied by a non -owned auto endorsement to the general liability policy described above. 2.5 Excess or Umbrella Liability Insurance Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall provide coverage at least as broad as specified for the underlying coverage. Any such coverage provided under an umbrella liability policy shall include a drop down provision providing primary coverage for liability not covered by primary but covered by the umbrella. Self -insured retentions are not permitted. Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion precluding coverage for claims or suits by one insured against another. Coverage shall be applicable to City for injury to employees of Contractor, subcontractors or others involved in the Work. The scope of coverage provided is subject to approval of City following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than $1,000,000 per occurrence and aggregate 2.6 Course of Construction Course of Construction insurance shall provide "all risk" coverage for the completed value of the project. Policies shall contain the following provisions: (1) City shall be named as loss payee; and (2) the insurer shall waive all rights of recovery against the City. Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the state of California and with an A.M. Best rating of A- or better and a minimum financial size of VII. Contractor and City agree as follows: 1. Contractor agrees to endorse the third party general liability coverage required .herein to include as additional insureds City, its officials, employees and agents, using standard ISO endorsement No. CG 2010 with an edition date of 1985. Contractor also agrees to require all contractors, subcontractors, and anyone else involved in any way with the project contemplated by this Contract to do likewise. 2. Any waiver of subrogation express or implied on the part of City to any party involved in this Contract or related documents applies only to the extent of insurance proceeds actually paid. City, having required that it be named as an additional insured to all insurance coverage required herein, expressly retains the right to subrogate against any party for sums not paid by insurance. For its part, Contractor agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors, Liability and Insurance Requirements 1340-4 subcontractors or others involved in any way with the project(s) contemplated by this Contract, to do likewise. 3. All insurance coverage maintained or procured by Contractor or required of others by Contractor pursuant to this Contract shall be endorsed to delete the subrogation condition as to City, or to specifically allow Contractors or others providing insurance herein to waive subrogation prior to a loss. This endorsement shall be obtained regardless of existing policy wording that may appear to allow such waivers. 4. It is agreed by Contractor and City that insurance provided pursuant to these requirements is not intended by any party to be limited to providing coverage for the vicarious liability of City, or to the supervisory role, if any, of City. All insurance coverage provided pursuant to this or any other Contract (express or implied) in any way relating to City is intended to apply to the full extent of the policies involved. Nothing referred to here or contained in any Contract involving City in relation to the project(s) contemplated by this Contract is intended to be construed to limit the application of insurance coverage in any way. 5. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. 6. All coverage types and limits required are subject to approval, modification and additional requirements by the City, as the need arises. Contractor shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City's protection without City's prior written consent. 7. Proof of compliance with these insurance requirements, consisting of binders of coverage, or endorsements, or certificates of insurance, at the option of City, shall be delivered to City at or prior to the execution of this Contract. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Contractor or deducted from sums due Contractor, at City option. 8. Contractor agrees to endorse, and to require others to endorse, the insurance provided pursuant to these requirements, to require thirty (30) days notice to City and the appropriate tender prior to cancellation of such liability coverage and notice of any material alteration of non -renewal of any such coverage, and to require contractors, subcontractors, and any other party in anyway involved with the project contemplated by this Contract to do likewise. 9. It is acknowledged by the parties of this Contract that all insurance coverage required to be provided by Contractor or any subcontractor, is intended to apply first and on a primary non-contributing basis in relation to any other insurance or self insurance available to the City. Liability and Insurance Requirements 1340-5 10. Contractor agrees to ensure that subcontractors, and any other party involved with the project that is brought onto or involved in the project by contractor, provide the same minimum insurance coverage required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. 11. Contractor agrees not to self -insure or to use any self -insured retentions or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, Architect, Engineer or other entity or person in any way involved in the performance of work on the project contemplated by this Contract to self -insure its obligations to City. If contractor's existing coverage includes a deductible or self -insured retention, the deductible or self -insured retention must be declared to the City. At that time the City shall review options with the contractor, which may include reduction or elimination of the deductible or self - insured retention, substitution of other coverage, or other solutions. 12. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City will negotiate additional compensation proportional to the increased benefit to City. 13. For purposes of applying insurance coverage only, all contracts pertaining to the project will be deemed to be executed when finalized and any activity commences in furtherance of performance under this Contract. 14. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 15. Contractor will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this Contract. This obligation applies whether or not the Contract is canceled or terminated for any reason. The insurance shall include but not be limited to products and completed operations and discontinued operations, where applicable. Termination of this obligation is not effective until City executes a written statement to that effect. 16. Contractor agrees to waive its statutory immunity under any workers' compensation statute or similar statute, in relation to the city, and to require all subcontractors and any other person or entity involved in the project contemplated by this Contract to do likewise. 17. Requirements of specific coverage features are not intended as limitations on other requirements or as a waiver of any coverage normally provided by any given policy. Liability and Insurance Requirements 1340-6 Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be all- inclusive. 18. Any provision in any of the construction documents dealing with the insurance coverage provided pursuant to these requirements is subordinate to and superseded by the requirements contained herein. These insurance requirements are intended to be separate and distinct from any other provision in this Contract and are intended by the parties here to be interpreted as such. 19. All liability coverage provided according to these requirements must be endorsed to provide a separate aggregate limit for the project that is the subject of this Contract and evidencing products and completed operations coverage for not less than two years after issuance of a final certificate of occupancy by all appropriate government agencies or acceptance of the completed work by City. 20. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Contract. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto. 21. Contractor agrees to obtain and provide to City a copy of Professional Liability coverage for Architects or Engineers working on this project through Contractor. City shall determine the liability limit. 2.7 Change in Terms The Contractor shall provide immediate written notice to the City of any change in terms and conditions and/or reduction in the coverage of any nature to the insurance policies. The notice shall be sent to: Thomas P. Genovese, City Manager City of La Quinta P.O. Box 1504 La Quinta, CA 92247 Liability and Insurance Requirements 1340-7 CIIentriv sf -- - ACORD- CERTIFICATE OF LIABILITY INSURANCE 8//A,61zo,o"YY" PRODUCER Desert Empire Insurance Services, Inc. LIC # OF09643 77.564 Country Club Drive Palm Desert, CA 92211 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIL # INSURED Sierra Landscape Co Inc 73.771 Dinah Shore Drive, Ste 200 Palm Desert, CA 92211-4247 INSURER& Hartford Underwriters Insurance 30104 INSURER B: National Union Fire Ins Co of P 19445 INSURERC: SeaBright Insurance Company 15553 INSURER D: Philadelphia Indemnity 18058 INSURER E COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR A UM HM TYPE OF INSURANCE GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE O OCCUR X OCIP Excluded POLICY NUMBER 72UUNSR5943 POLICY EFFECTIVE DATE IMM1DDfYY1 04101110 POLICY EXPIRATION DATEM 04/01/11 LIMITS EACHOCCURENCE $1000000 PREMISES Ea occtinanCel$300000 MED EXP (Any one person) $1G 000 PERSONAL SADV INJURY $1 000 000 GENERAL AGGREGATE s2 GOO 000 PRODUCTS -COMP/OP AGO s2.000.000 GEN-L AGGREGATE LIMIT APPLIES PER: POLICY X PRo- LOC D AUTOMOBILE LIABILITY PHPKS60338 04/01/10 04/01/11 COMBINED SINGLE LIMIT (Ea accitlent) $,,000,00O X ANY AUTO ALL OWNED AUTOS BODILY INJURY (Par person) $ SCHEDULED AUTOS X HIRED AUTOS NON -OWNED AUTOS BODILY INJURY (Par accident) $ X PROPERTY DAMAGE (Per acciGPnt) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHERTHAN EA ACC AUTO ONLY: AGG $ $ B EXCESSAIMBRELLA LIABILITY X OCCUR CLAIMS MADE BE011565920 04101/10 04/01/11 EACH OCCURRENCE $10 000 000 AGGREGATE $1 O OOO OOO $ $ DEDUCTIBLE C RETENTION E WORKERS COMPENSATION AND EMPLOYERS' LIABILITY BB1091684 04101/10 04/01/11 WC - X STATU-OTH E.L. EACH ACCIDENT $1 000 000 E.L. DISEASE- EA EMPLOYEE $, 000 000 A ANY PROPRIETOR/PARTNER/EXECUTNE OFFICER/MEMBER EXCLUDED? If yea, tlesaibe antler SPECIAL PROVISIONS below OTHER Leased and Rented Equipment 72UUNSR5943 04/01/10 04/01/11 E.L. DISEASE - POLICY LIMIT $, 000,000 $300,000 Limit $1,000 Deductible DESCRIPTION OF OPERATIONS I LOCATIONS /VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS Project #2009.16, Jefferson Street Parkway Landscape Improvements Certificate holder is named as additional Insured per attached HG00010605 City of La Quinta P O Box 1504 La Quinta, CA 92253 I ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION IEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL An DAYS WRITTEN TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR ACOKU ZO EZUUT/UD) T OT Z TTJTO/fff lllYl lu 1 10, nnkuc o ACORD CORPORATION 198E PRIMARY & NON—CONTRIBUTORY — PAGE 14 WAIVER::OF SUBROGATION — PAGE 15 COMMERCIAL GENERAL LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is notcovered. Throughout this policy the words you and "your" refer to the Named Insured shown' in the Declarations, and any �p: other person or organization qualifying as a Named N'.Insured under this policy. The words "we", "us" and "our" refer to the stock insurance company member of The c, Hartford providing this insurance. ram.,. The. word ."insured" means. any person, or organization o qualifying as such under Section II — Who. Is An Insured. o Other words and phrases.that, appear in .quotation marks �n . aye special meaning.• Refer.to SectionV —Definitions. N SECTION I — COVERAGES.; : COVERAGE.-,Xl-BODILY "INJURY AND PROPERTY o DAMAGE LIABILITY_ d+ . 1. Insuring Agreement .a :We Wll'pay those sums that the insured: becomes <, legaliyzobligated to.pay as damages because of =: "bodily injury": or "property damage" to which this ® insurance applies. We_vill have the: right and. duty ®- to_ defend the: insured.. against any "suit". seeking those damages However, we will have no duty to ®F defend, the=:insuredin ,'.'agast any "suit" seeking damages for "bodily injury or "property damage": to which this insurance does not apply. We may, at our discretion, . investigate any. "occurrence" and settle` any claim or "suit" that may result. But: (1) The amount e will pay for damages is limited as , described' -,in Section III — Limits Of — ` lnsurance;.`and _ O Our 2 nht 'g and duty; to _defend ends when we have -used up the applicable; limit of insurance in ® the payment of judgments or settlements under Coverages A ,or B. or medical expenses under Coverage,,C No .:other obligation. or liability: to pay sums or perform acts or services is covered unless explicitly provided for under; Supplementary Payments — .: Coverages A and B. b. This' -insurance' applies to "bodily injury" and "propertydam-age" only if:. (1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; (2) The "bodily injury" or "property damage "occurs during the policy period; and (3) Prior : to . the policy' period, no insured listed under Paragraph .1. of Section II—. Who Is An Insured and no•".employeeZauthorized,by you to give or receivenotice of., an "occurrence" or claim, knew that the,".bodily injury".or,"property damage" had occurred,. in whole or, in part. If such a listed insured or authorized "employee" knew, prior to the policy period that {fie "bodily Lnjury" or "property damage" occurred, than any continuation, change or'resumption'of such .. "bodily injury" or "propert. y damage".. during or after the policy period will be deemed to have been known prior to the policy period. :13 c. "Bodily injury" or "property damage" will be deemed to have beew known tohave: occurred., at the parties(-ame :when any: insured I listed 'under Paragraph 1. of Section ll — Whorls An Insured or any "<"employee"_ authorized; by; you; =to give or receive notice of an "occurrence" or claim: (1) Reports all, or any part, of the bodily injury" or pmperty`damage" to us or any other insurer, (2),`Recerves a written or verbal..demand or claim for' damages because of the ."bodily injury" or (3) ;Becomes._ aware, by any -other means that bodily ,injury":.; or- "property. damage" has occurred or has begun to occur. d Damages .because of bodily,. injury" include damages claimed by any person: or organization for care, loss of services or death resulting at any time e. Incidental Medical Malpractice,.,_ (1),."Bodily, injury" arising out of the rendering of or failure'. to render..; professional health care services as a. physician, dentist, : nurse, emergency medical technician or paramedic shall be deemed to be caused by an "occurrence", but only if: << (a) The' physician, dentist, nurse; emergency medical technician or 'paramedic is employed by you to provide such.services; and (b) You are not engaged in the business or occupation of providing such services. HG 00 0106 05 . Page 1 of 18 m 2005 The Hartford (Includes copyrighted material of Insurance Services Office, Inc. with its permission.) (2) For the purpose of determining the limits of insurance for incidental medical malpractice, any act or omission together with all related acts or omissions in the furnishing of these services to any one person will be considered one "occurrence": 2. Exclusion's This insurance does not apply to: a. Expected Or Intended Injury "Bodily injury" or. "property damage" expected or intended from th6 standpoint of the insured. This exclusion, does not apply to "b6dily injury" or ."property': damage" resulting from -'the use of reasonable force to protect persons or property. br Contractual Liability Bodily injury." or."property damage for which the inauied is. obligated to pay dam ag.6i. by reason of ttid-, assumption of . IiabU ity , -in a_ contract or agreement. This exclusion does not apply to liability (1) That the insured would have in the absence of the ,contract or agreement; or,.., (2)� Assumed in a contract or agreement that is an insured contract", provided the "bodily injury' or "property damage"..' occurs I subseqUerit to the �exeCUUI)n of theycontrailoragreemerit. Sole . I f6rs tbe."purposes *-of�liabil*,,,assUrn6d in an.. -'insured contract", reasonable., attorney, fees and necessary.litigaLon expenses incurred y or for a party o than mbecause other an an insure are..deemed to be .- V- daages6& caus 6 of "bodily li f".'rn' "property prope. damage provided .-L.I.ab,ility,to such f5afty- for, odor cost ofj that party's diefenselhas alsobeen assumed in tb6siihe 1insuredcD'htra&r;and (b) Such attorney fees, and, litigation ,expenses. a are for defense of that party age in a civil or,. a it IPA ema.- a, dispute resoIirliob"proczWing in )which-0 M1Ch damages- t in surance guranC a applies are alleged' c. Liquor Uab!14.' it Z "Bodily injury or property damage" for 'Which any , iN§6W may Cie heldliabI6 by reason or (1) cadsipq or contributing to the rrrtowcation of any person; 6.3, on; The 'fumishing,:.of alcohok-beveriages; to a per;6jl under.the legal drinking age or under the_ influence of alcohol] or . 1(3).: Any statute, ordinance or r6g6lation relating to the sale,. gift, distribution or use of alcoholic bey ppges.. This, ex'clusiori.. applies;' only if you are in the business of manufacturing, distributing, selling, serving . g or furnishing alcoholic beverages. d. Workers' Compensation And Similar Laws Any obligation of the insured under a workers! compensation, disability benefits or unemployment compensation law or any similar law. e. Employers Liability "Bodily injury" to: (1) An "employee" of the insured arising out of, and, in the course off (a) Employment by the insured; or (b) Performing duties related to. the. conduct of the insured's business; or (2) The spouse, child, parent, brother or sister of that "employee" as a consequence of. Paragraph (1) above. This exclusion applies: may be liable': as an (11)'Wffethef the insured in � employer or in any other capacfty;:6n8 2)' To any ob.igaticb'to� share'dama-ges Aft* or - repay someone . els6 must pay -`damages;. because of the injury. This exclusion does- not. gpoly%W fla6JI0_,ziissum6dl by the insured under an "insured 66ntAcV!-.­' f. Pollution (1)"Bodily injury" or "property. darnage'L, arising out, ".:Of- the actual,. alleged or th,r"ten6di_dlsbhargE'i` :rmgraponj,f:release oL�, dispersal, seepage; escape ofrpollutanfs":�,.­� (a) At pr from any premises'," site or location,-.-r' `which Is. or' was at a'ri'y'."tim'eowned or,x-, occupied . by .1 0112. rented'6r loaned' to any Xil s UU&Mjraph does;; not apply fo­ Bodfly- in)ury"...,,-If-.'sustained .-,,within aM building, and, caused by srnokq] fumes,f_ vapo., or sobt'produ-ced.-by or onginafi,ng= from eciffibment that ig'usedf to heaL cooly or dehumidi1y'th&'building, br equipme than lsz.used to' -heat i4iat&-fo dsef,% by the. building's, occupants or. t6( guests*,- y injury' or property damage i which you may be heldliable; I . �!if you are contractor and.Jhei owner or.16sse6 such. premise!,: she• or locatf6n:. has bee added to'your- polici a's%'an,.:addi1Jon insured with -'respectl - to__:-y6ti'ongolr operations p,pli.forTned..for...that .addiUon insured at that premises,, site ..or IDCatiC and such premis6i, she ori-1664ion is n and never was owned or occupied by, i rented or loaned' to "' ;i ; arly insured, othi than that additional insured: or Page.2.01` 1s HG DO 01106 05 (iii) "Bodily injury" or "property damage" arising out of heat, smoke or fumes from a "hostile fire"; (b) At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste; (c) Which are or were at any time transported, handled, stored, treated, disposed of, or processed as waste by or for. (i)._Any insured; or (it). Any person or organization for whom you may be legally responsible; (d) At or from any premises, site or, location on which. any insured or. any contractors or subcontractors working directly or indirectly on any insured's behalf are performing operations if the "pollutants" are brought on or to 'the premises, ` site or location in oonnecion with such operations by such insured, contractor or subcontractor. However, this subparagraph does not apply to;-:: (i) "Bodily injury" or "property damage" arising out of the escape ` of fuels, lubricants or other operating fluids which. ara, needed to. perform the normal electrical, hydraulic or mechanical functions. necessary for the operation of "mobile equipment" or its parts,, if such fuels, lubricants or other operating fluids escape from a vehicle part designed to hold, store • - or receive. r them..` This exception does not apply if. the "bodily injury" or "property,damage arises out of the intentional.. discharge, dispersal or release of the fuels, lubricants or other operating fluids, or if such fuels, lubricants or other operating fluids. are brought on or to the premises,` site or location with ; the intent that they be discharged, dispersed or released as part , of.,the operations being performed by such, insured, contractor or subcontractor, (ii) ."Bodily., _ injury" or "property damage" sustained. within a building and caused by the release of gases, fumes or vapors from materials brought into that building in connection with operations being performed by you or on your behalf by a contractor or subcontractor, or (iii) "Bodily injury" or "property damage". arising out of heat, smoke or fumes from a "hostile fire"; or (e) At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any . insured's behalf are performing operations if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, "pollutants". (2): Any loss, cost or expense arising out of any: (a) Request, demand,, order or statutory or regulatory requirement that any insured or others test for, monitor, cean up, remove, contain; treat; detoxify or neutralize, or in any way respond to, or assess the effects of, "pollutants"; or (b) Claim or suit by or on behalf of a governmental . authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way. responding to, or assessing the effects of, $011ulants". However, this paragraph does not apply to liability for damages .because of "property damage" that the insured would have in the absence of such request, demand, order or j statutory .or regulatory requirement, or such daim or "suit" by -or on behalf of a governmental authority. g Aircraft, Auto, Or Watercraft "Bodilyinjury" or "property damage" arising out of the: ownership; maintenance, use or entrustment to others of any. aircraft; "auto" or watercraft owned or operated by. or rented or loaned to any insured. Use includes operation and "loading or unloading". This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring;. employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "propertyc,'damage" involved the ownership, n;airitenance, Use or entrustment to Others of any aircraft, I "auto":: or watercraft that' is owned or operated by or rented or loaned to any insured. This exclusion does not apply to: (1)'A watercraft while ashore on premises you own or rent; (2) A watercraft you do not own that is: (a) Less than 51 feet long; and (b) Not being used to corny persons for a charge; ., (3) Parking an "auto" on, or on the ways next to, premises you own or rent, provided the "auto" is not. owned by or rented or loaned to you or the insured: HG 00 0t 05 05 Paae 3 of 18 (4)_ Liability assumed under any "insured contract" for the ownership, maintenance or use of aircraft or watercraft; (5) "Bodily injury" or "property damage" arising out of the operation of any of the equipment listed in Paragraph: f.(2) or f.(3) of the definition of "mobile equipment"; or (Ei)"An aircraft that is not owned by any insured and is hired,. chartered or loaned with J. paid crew. However, this exception does not; apply if the insured has any other insurance for such "bodily injury" or "property damaged, whether the other insurance is primary, excess, contingent or on any other basis. - h. Mobile Equipment "Bodily injury" or "property damage" arising out of: (1) The transportation of "mobile equipment" by an "auto" owned of operated by or rented or loaned to any insured; or (2} The use,. of "mobile equipment" in, or while in practice for, or while being prepared for, any prearranged racing, speed, demolition, or stuntingactivity. p. r War. . "Bodily:Injury" or "propertydamage", however caused; arising, directly. or indirectly; out.of: (1) War, including undeclared or civil war, (2) Warlike action by a military force ,including action in hindering or defending against an -actual or expected attack, by: any government, sovereign or other ..authority . using military personnel or other agents; or: (3)=lnsurredion, ' rebellion,' : re46lution `usurped power,` or 'action 'taken 'by governmental 4 authority in hindenng or defending against any ofthese. t,. =y Damage To Property "Propeify damage" to (1).,.Property you. own, rent;proccupy,, including any costs. or expenses incurred by you; or -any other person,.i. organization:: or -entity;--forerepair replacement, : enhancement, _. restoration or maintenance of such property for. any, reason, including prevention of injury to a .person or damage to another's property; (2) Premises you sell, give away or. abandon, if the "property damage" arises out of any' part of those premises;: (3),. Propertyloaned to you; .(4) Personal property in the care, custody or control :ofthe insured; (5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or (6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it. Paragraphs (1), (3) and (4) of this exclusion do not apply to "property damage" (other than damage by fire) to premises, including .the contents of such premises, rented to you. for a period of 7 or fewer consecutive..days. A separate limit of insurance applies to Damage To Premises Rented To You as described in Section III — Limits Of Insurance. Paragraph (2) of this exclusion does not apply if the-. premises are "your 'work" and were never occupied, rented of held for rental by you. Paragraphs (3) and (4) of this exclusion do not - apply to `property damage" arising from the use of elevators. Paragraphs. (3), (4), (5) and (6) of this exclusion do' not apply to liability assumed under a sidetrack agreement. Paragraphs (3) and (4) of this exclusion do not. - apply to "property damage" to borrowed equipment while, not being. used to perform operations at the job site Baragraph. (6) of this exclusion does not apply to ;. "property damage" , included in the "products- i ::'.completed. operations hazard'. s: k ])Mnage To Your Product Property damage" to "your product" arising out of it '. .... _ _ 1 Dan iage,To.Your Work Properly damage." to "your work" arising out of it of ' and part of r'it; ` and included in the "products; complef6d aperabons hazard'. 93j This exclusion does not pippiy,fthe damaged work t orb the work out of which the, damage arises was perfotmed on,yourbehalf by, a_subcontraclor.. It' m Damage -To Impaired Property Or Property Not ' m Physipally Injured Property"`damage" to "impaired property" or property that has not been physically injured; arising out of. (1) A defect, deficiency; inadequacy or dangerous condition in "your product" or "your wont"; or (2) Adelay or failure by, you or anyone acting on yourbehalf to perform a contract or agreement in'ac,coidance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical_injury to "your product" or "your work" after ft has been put to its intended use. Page 4.of 18 HG 00 01 06 05 n Recall Of Products, Work Or Impaired Property Damages claimed for any loss, cost or expense incurred by you or others for the foss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: (1)'."Your product"; (2) "Your work"; or (I "impaired property"; if such product, work, or property is withdrawn or recalled from the market or from use by any person _ or organization because of a known or suspected defect,- deficiency, inadequacy or dangerous c condition in it. o. Personal And Advertising Injury o "Bodily injury" arising out of "personal and o advertising injury'. o:; p. Electronic Data a; barrages ansing,out of the loss,of, loss of use of, ,"',. , damage to_ corruption, of,.)nability to access, or N inability to manipulate electronic data. o Ps used in this exclusion, electronic data means mfomiatron. ' facts or programsstored as or on, '' created or used on, or transmitted to .or from Mai''computer software, including systems and applications software, hand or floppy disks, CD- ROM%; {apes, drives, .cells; -=data --processing devices or any other media which°are used with ,efectrenicallycontrolledequipment.: q Employment -Related Practices "Codrly injury" to: (1) A person arising out of:any "employment— related practices"; or' _ (2) The, spouse, child, parent, brother or, sister. of that personas a consequence of "bodily injury" to that `person at whom � any "employment- - relafed practices" are directed, M. This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity; and (2); To any . obligation to share- damages with or - repay someone else who must pay damages because of the injury. r.-Asbestos' . (1) "Bodily injury" or "property damage" arising out of the."asbestos hazard".. (2) Any d.amagesi judgments,' settlements, loss, costs or expenses that: (a) May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not have occurred in whole or in part but for the "asbestos hazard"; (b) Arise out of any request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, dean up, remove, encapsulate, contain, treat, detoxify or neutralize or in any way respond to or assess the effects of an "asbestos hazard"; or <_.. . (c) Arise `6bt of any claim or suit for damages because of testing for, monitoring, cleaning 'up; removing, encapsulating, containing, treating, detoxifying or neutralizing or in any wayresponding to or assessing the effects . of an "asbestos hazard". Daioage!Td Premises Rented To You - Exception For Damage By Fire, Lightning Or Explosion Exclusions. c. through h. and j. through n, do not apply to damage by fire, lightning or explosion to premises while rented to you or temporarily occupied by you with permission.of the owner. A separate limit of insurance applies to this coverage as described in Section III — Limits Of Insurance. COVERAGE B , PERSONAL AND ADVERTISING INJURY LIABILITY. vmlh"pay those sums that the insured becomes legally`o6ligated to "pay as damages because of "personal and advertising injury" to which this insurance; applies. We will have the right and duty to;_de�end tfie insured against any "suit",.seeking "yb damages; However, we will have no duty to A: defend the' insured against any "suit" seeking "damages°for "personal and advertising injury" to which this insurance does not apply. We may, at :our discretion, investigate any offense and settle any claim or "suit" that may result. But: (1)'-The'amount we will pay for damages is limited as described in Section III — Limits Of Insurance and . (2) gud.right. and duty to defend end when we have :. used up the applicable limit of insurance in the payment of judgments or settlements under Coverages A .or B or medical expenses under Coverage C. No other obligation or liability to. pay sums or pgr(oim`acis or services is covered unless explicitly provided :for under Supplementary Payments — Coverapes A and B. b. This insurance applies to "personal and advertising injury" caused by. an offense arising out of your, business but only if the offense was committed in the "coverage territory" during the policy period. HG 00 of N 65 . Pane 5 of 98 ' 2. Exclusions (2) Slogan, unless the slogan is also a trademark, This insurance does not apply to: trade name, service mark or other designation of origin or authenticity; a. Knowing Violation Of Rights Of Another is (3), Title of any literary or artistic work. "Personal and advertising injury" arising out of an j• Insureds In Media And Internet Type offense committed by, at the direction or with the consent or acquiescence of the insured with the Businesses expectation of inflicting "personal and advertising "Personal and advertising injury" committed by an injury". insured whose business is: b.' Material Published With Knowledge Of Falsity (1) Advertising, broadcasting, . publishing or "Personal and advertising injury" arising out of oral, telecasting; written or electronic. publication of material, if done (2), Designing or determining content of web sites by or at the direction of the insured vdth knowledge for others; or - of its falsity., (3) An Internet search, access; content or service c. Material Published Prior To Policy Period provider. "Personal and advertising injury" arising out of oral, However,. this exclusion • does- not apply to written or electronic. publication of.material,whose Paragraphs 17.a., .b..and c. of "personal and. first publication took place before the beginning of advertising injury" under the Definitions Section. the,policy period.. For the purposes of this exclusion,.- placing am d. Criminal Acts "advertisement" for or. linking to others on your web ^ Personal and advertising injury" arising tiut-of a site; by itself is not considered the business of. advertising, broadcasting publishing or telecasting. •' criminal ad committed by or of the directioir'of the insured. .Iz, L Electronic Chatrooms Or Bulletin Boards e. Contractual Liability Personal and_ advertising injury"; arising out of ar! . "' Personal and advertising mjury":for whit the electronic chatrom oor bulletin board the insured insured has assumed (lability in a contract or hosts owns . or over which the insured exercises, , agreement. This exclusion does not apply to tiabildy tbnfrol _ for;:damages that the insured would, have .in the Unnzed. UseOf Anotper's Name Or > .+ I autlso. absence of the contract or agreement Product I. f. Breach Of Contract": "Personal and advertising injury- ansmg "out of the Personal and advertising injury" arisng out of a unauthorized`use;'of:aaothers name or product iri ^. breach of1. contract except: an unp6ed'contiad to use your e-mail address,. domain name; or, metatags or anoth2i's "• " advertising idea in your advertisement any _ other similar tactics to mislead anothers z : potential customers g Quality Or performance Of Goods Failure To Conform,To Statements, „, m Pollution Y. x "Personal• and:. advertising injury" arising out of theme "Personal and advertising injury" arising out .of the „ s, actual ageged or threatened discfiart7e, :dispersalT failure` of goods;[ producis'Or service's to`conform - vrrtii any-statement.of quality or performance made seepage migration; release .'or,,escape of ; " in your advertisement . _ - "ollutants" at any time.., ,. p h Wrong Description Of Prices n Pollution Related` "Personal arid. advertising injury" arising out of the Any.loss cost. or expense ansm out of any: wrong description of the price of goods; products or J1) Request, :[demand,; ;_order ,or statutory or ; services: regulatory, . requlrerrent that any rnsured or i. Infringeme' i Of Intellecfual Property Rights. others test for ,, monitorclean ; up, remove certain, treat detoxify or neutralize, or in any "Personal and advertising.injuly" arising out of any way respond to or assess effects of violation of intellectual property fights. such as .the ^pollutants" or •.; y " copyright, patent, trademark, trade name;. trade (2) Claim or suit by or on behalf of iigovemmental secret; service mark or other designation, of origin or authenticity. authority for damages -because of testing for However,- this exclusion: does .not apply . to monitoring, cleaning up -:removing, contarmng treatm , detoxi ni or neutralizing, g fy g- g,: or in any :-infringement,in our"advertisement",of:` . y - way responding to, or assessing the effects of, (1) Copyright; °pollutants". Page, 6, of 18 HG 00,01.06 OS o. War "Personal and advertising injury", however caused, arising, directly or indirectly, out of (1) War, including undeclared or civil war, (2) Warlike action by a military force, including action in hindering or defending. against an actual or expected attack, by any government, sovereign or . other authority using military personnel or other agents; or (3) Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these. p. Internet Advertisements And Content Of Others N "Personal and advertising injury" arising out of.. i (1) An "advertisement" for others on your web site; (2) Placing a link to a web site of others on your web site; - (3) Content, including information, sounds, text, x graphics, or images from a web site of others displayed within a frame or border on your web `1 N site; or (4)'Computercode, software or programming used to enable: x (a) Your web site; or (b) The presentation or functionality of an "advertisement" or other content on your web site. q Right Of Privacy Created By Statute } "Personal and advertising injury" arising out of the .. violation of a person's right of privacy created by �.' any -state, or federal act However, this exclusion does not apply to liability ® for damages that the insured would have in the ®_ absence of such state or federal act. r..Violation Of Anti -Trust law . -' "Personal and advertising injury" arising out of a Violation of any anti-trust law. ;:.s. -Securities. "Personal and advertising injury" arising out of the -d; fluctuation in price or value of any stocks, bonds or other securities. t. Discrimination Or Humiliation "Personal and advertising injury" arising out of discrimination or humiliation committed by or at the direction of . any "executive officer", director, stockholder, partner or member of the insured. _ u. Employment -Related Practices "Personal and advertising injury"to: (1) A person arising out of any "employment - related practices"; or (2) The spouse, child, parent, brother or sister of that person as a consequence of "personal and "advertising injury" to that person at whom any "employment -related practices" are directed. This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity; and (2) To any obligation to share 'damages with or repay someone else who must pay damages because of the injury. v. Asbestos (1) "Personal and advertising injury" arising out of the "asbestos hazard". (2). Any damages, judgments, settlements, loss, costs or expenses that: (a) May be awarded or incurred by reason of any claim or suit alleging actual or threatened injury or damage of any nature or kind to persons or property which would not have occurred. in whole or in part but for the "asbestos hazard"; (b)Arise out of any request, demand, order or statutory or. regulatory requirement that any insured or others test for, monitor, clean up, remove, encapsulate, contain, treat,. detoxify or neutralize or in any way respond to or assess the effects of an "asbestos hazard"; or, (c) Arise out of'any claim or suit for'damages because -`of testing for, monitoring, cleaning up„-; removing, encapsulating; containing, treating, detoxifying or neutralizing or in any way responding to or, assessing the effects of an "asbestos hazard". COVERAGE C MEDICAL PAYMENTS 7 Insuring Agreement a. We will pay -medical expenses as described below for"bodily injury"_caused by,an.accident. (1) On premises you own or rent; _(2) ..-On ways next to premises you own or rent; ,or (3), Because of your operations; provided that (i) The accident takes place in the "coverage territory" and during the policy period; (2)The expenses are incurred and reported to us within three years of the date of the accident; and (3) The injured person submits to examination, at our expense, by physicians of our choice as often as we reasonably require. � HG ou 61 �06 06 Paaa 7 of 78 b. We will make these payments regardless. of fault. These payments will not exceed the applicable limit of Insurance. We will pay reasonable expenses for. (1) First aid administered at the time of.an accident; (2) Necessary medical, surgical, x-ray and dental services, including prosthetic devices: and (3). Necessary ambulance, hospital, professional nursing and funeral services. 2. Exclusions We will not pay expenses for "bodily injury": a. Any Insured To any insured, except "volunteer workers":. b. Hired Person To' a person hired to do work for or on behalf of any insured or a tenant of any insured. c. Injury On Normally Occupied Premises To, a. person injured on that part of premises you own or rent that the person normally occupies. d Workers Compensation And Similar Laws To a person, whether or not an'"employee" of any insured, if benefits for the "bodily injury` are payable or must be provided under a'workers' compensation or disability benefits law or a similar law. e Athletics Activities _ To a: person injure-d,while practicing, instructing or participating in any physical exercises or games, sports, or athletic contests. f Pr6ducis-Completed Operations Hazard Included within the "products -completed operations "1 g. Coverage "A Exclusions. ' Excluded under Coverage A SUPPLEMENTARY •PAYMENTS COVERAGES A AND B ix ti. r 1.'_We will pay with respect to any claim we mvesbgate or it" settle, or any "suagarnsf an insured we defend: ' a. All expenses we incur. ri b. Up to $1,bo0 for cost of bad `bonds 'required because of accidents or traffic law'violationsafisrng out of the use of any vehicle to'which, the Bodily Injury Liability Coverage applies. We do not have to fumM these bonds. c The cost of appeal bonds or bonds to release attachments, but only for bond amounts iaifhin. the applicable.limd of insurance. We do not have to furnish these bonds. d.: All reasonable expenses incurred by the insured at our request to assist Lis .in the irrvestigation or defense of the claim or "suit"; including actual loss of earnings up to $500 a day because of time off from work. e. All costs taxed against the insured in the "suit". f. Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. g, Ali interest on the full amount of any judgment that accrues`afier entry of the judgmentand before we have "paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance. These payments will not reduce the limits of insurance. 2 If we defend` an insured. against a "suit" and an indeinnitee'ofthe insured is also named as a party to the."sult",:we will defend that indemnitee if all of the following, conditions are met: a. The 'suit" against the indemnitee seeks damages. for which the insured has assumed the liability of. the indemnitee in a contract or agreement that is an,*, "insured ooniract"; b This insurance applies to such liability assumed by` the insured; c., The obligation to defend, or the cost of the. defense;.. of,thatindemnitee, has also been assumed by the'-'. insured in the same "insured contract"; d. The allegations in the "suit" and the. information we r= know, about the "occurrence" are such that nod; conflict appears to exist between the interests of the insured and the interests of the 6clemnftee; e. The mdemirftee and the insured ask us to conduct and. controLthe defense of that indemm- nftee agast such -"soft" and agree that we can assign the same '' counsel to defend the insured and the indemnitee and,;; I =f..Theindemnifee: (1) Agreesin- writing to:. Y . - (a) Cooperate with us in the investigation seftleinent or defense of the "suit"; (b) Immediately send us' copes:..of any demands, notices, summonses` or.legal papers received in connection with the "suit' µ` (c) Notify any other insurer whose coverage rs10 available to the indemnftee; and (d) Cooperate :with ' us with' respect to coordinating other applicable insurance' available to the indemnitee; and J' (2) Provides us"with written authorization to:. (a) Obtain records and other information related ,y to the "suit" and (b) Conduct and 'control the defense of the indemnitee in such "suit". So long as the above conditions are met, attorneys' fees incurred by us in the defense of that indemnitee; Page,B of 18. HG 00 0106 05 necessary litigation expenses incurred by us and necessary litigation expenses incurred by the indemnitee . at our request will be paid as Supplementary Payments. Notwithstanding the provisions of Paragraph 2.b.(2) of Section I — Coverage A — Bodily Injury And Property Damage Liability, .such payments will not be deemed to be damages for "bodily injury" and "property damage" and will not reduce the limits of insurance. Our obligation to defend an insured's indemnitee and to pay for attorneys' fees and necessary litigation expenses as Supplementary Payments ends when: a. We have used up the applicable limit of insurance in the payment of judgments or settlements; or N " b. The conditions set forth above, or the terms of the agreement described in Paragraph f. above, are no longer meta o"SECTION 11- WHO IS AN INSURED o, 1. If you are designated in the Declarations as: P4 A. An individual, you and your spouse are insureds, N . but only.with respect to the conduct of a business of which you are the sole owner. b. A partnership or jointventure, you are an insured. Your members, your partners,and their spouses are .also insureds, but. only, with respect to the s€ conduct of your business. c.-A limited liability company; you are an insured. Your members are also insureds, but only with respect„ to the conduct of your business. Your 3k managers. are insureds, but only with respell to their duties as your managers. �..:, d., An - organization. other. than a partnership, joint ® - venture or' limited, liability company, you are an . .insured ,Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. e. A irust, you are an insured. Your trustees are also insureds,' but only with' respect to their duties as 2: Each of the following is also an insured: a. Employees and Volunteer workers Your 'volunteer workers" only while performing ®ji duties related to the conduct of your business, or your "employees", other than either your "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 within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" or "volunteer workers" are insureds for. (1) "Bodily injury" or "personal and advertising injury": (a) To you,.to your partners or members (f you are a partnership or joint venture), to your members(if you are a limited liability company),.to a co -"employee" while in the course of his or her employment or performing duties related to the conduct of your business, or to your other "volunteer workers". while performing duties related to the conduct of your business; (b) To the spouse, child, parent, brother or sister " of that"co-"employee" or that "volunteer worker" as a consequence of Paragraph (1)(a) above; (c) For which there is any obligation to share -'damages with, or repay someone else who must pay damages because of the injury described in Paragraphs (1)(a) or (b) above; or (d) Arising out of his or her provldingbr failing to provide professional health care services. If. you ;are not' in the business of. providing professional health care services, Paragraph (d) does not apply to any nurse, 'emergency medical. technician or paramedic employed by you to' provide such services. (2) . "Property damage" to property: (a) Owned occupied or used by, (b) Rented to, in the care; custody or control of, or over which physical. control is being exercised for any purpose by, you, any of your "employees 'volunteer workers", any. partner .or member (if you, are a partnership orjo(nt venture), or'any'member (if you area limited liability company): b = Reai Estate Manager, Any person (other than your "employee" or vvouunfeer; worker); or any organization while ratting as your real estate manager. c. Temporary Custodians of Your Property Any person' or organization having proper temporary custody of your property if you die, but only: (1) :Wdit respect to liability arising, out of the mainterltm6e or use of that property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will HG'00 0106 05 Pen, P 9 of 9R S. Nonowned Watercraft have all your rights and duties under this Coverage Part e. Unnamed Subsidiary Any subsidiary, and subsidiary thereof, of yours which is, a legally incorporated entity of which you own a. financial interest, of more than 50% of the voting stock on the effective, date of the Coverage Part: The insurance afforded herein. for any subsidiary not named in this Coverage.. Part as a named insured does not apply to injury: or damage• with respect; to which an insured,, under. this Coverage Part is also an insured under another policy or would be an insured under such policy but for its .termination or the exhaustion of its limits of insurance. 3. Newly Acquired or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and: over which you maintain financial interest of more than=50%. of the.voting stock, will qualify as a Named Insured if there is no other similar insurance available to that,organtzation. However.., a Coverage under this provision is afforded only until the.. 1 80th day after you acquire, or form the organization. or. the end.; of the .policy period, whichever is earlier b_Coverage A;does notapply to:"bodily injury" or "property damage" that:: occurred::;before you acquired or formed the or izabp :and C. Coverage B does not, apply to "personal and advertising .,injury" ansing out . of ,an. offense _ - committed' before you' acqudr6eor`.ffonned the organization. soect to."mobile equipment",registered in, your person i5.- an insu'ied while dnvrng such equipment along a public highway with your permission. Any other person or organization responsible for-t}ie-condud of such person is also an insured; but only with respect to =liability. arising. out, of the operation of:.the equipment, and only if no: other insurance -of any kind is available to that person or,orgamzation.forthis frabiaty However, no person org or, anization is an insured with respect to: a. "Bodily. mfury".'to. a co -"employee" ,of the person driving the equipment; or ' b „"Property damage".to property, owned by rented to, in the charge of or occupied by you of the employer of any person who is an insured under. this provision.'.. . With respect to watercraft you do not own that is less than 51 .feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission: Any other. person or organization responsible for the conduct of such person is also an insured, but only 'with -respect to liability arising out of the operation of the watercraft,, and "only if noother insurance of any kind is available to that person or organization for this liability.,:. However; no person or organization is an insured with respect to: a: "Bodily injury" to a co -"employee" of the person operating the watercraft; or . b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer - of any person who is an insured under this. provision. . G. Additional Insureds When Required By Written= Contract, Written Agreement Or Permit The following person(s) or organization(s) are an''. additional insured when you have agreed, in a written. contract; written agreement or because . of a permit.. rssued'by a state'or political subdivision; that such parsont."or organization. be added` s5 an. additional , insured on your policy, provided the injury�or damage >:occurs;subsequent to the execution of the'contract or agreement' A person or organization. is an additional Insured under T ' thrs''pro`vision only for that period of time'.'r"equired by , the contract or agreement.. "` However; no such person or organization is an insured rl J't6ie nm:neinn If etlrh narcrin hr nman17a4inn Included, as an insured by an endorsement issued by sand made a part of this Coverage_Part a Vendors Any person(s)' or organizations) (referred to below as vendor)„ but only with, respect. to bodily injury" or "property damage•", arising out;of,. your products"; ivhioh are distributed or gold in the: regular course of the vendor's business and only if this Coverage Part provides` coverage for "bodrty injury" 'or "property damage"''fnciudecl within the "products= completed operations hazard"., .. .. (1) The insurance afforded the vendor is subject to the following additional exclusions; This insurance does not apply -to:. (a). 'Bodily ..injury."- : or.. "propertydamage" for which. the, vendor: is,. obligated,.: to pay damages by.reason of the assumption.of liability: in a. contractor :agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; Pace 10 of 18 HG 00 0106, 05 (b) Any express warranty unauthorized by you; (c) Any physical or chemical change in the product made intentionally by the vendor; (d) Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container, (e) Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes m to make in the usual course of business, in connection with the distribution or sale of the N products; (f) Demonstration, installation, servicing or repair operations, except such operations performed of the vendor's premises in o connection with the sale of the product; m (g) Products which, after distribution or sale by 0 you; have been labeled or relabeled or used as°a container, part or ingredient of any Nother -thing. or substance by or for the vendor,, or, 0 d (h) "Bodily injury" or "property damage" arising * out of the sole negligence of the vendor for Its. own . acts, or..omissions or. those of its ® employees : or anyone else acting on its behalf. However, this exclusion does not ®_ apply to; (i) The exceptions contained in Sub- paragraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in + the usual c .course :of business, in connection with the distribution or sale of Yhe. products. (2)'This insurance .does not apply to any insured —? r person'`or organization, from whom you have acqu5 ired such products, or any ingredient, part ® or container, entering into, accompanying or containing such products. b. Lessors of Equipment (1) Any person or organization from whom you lease equipment; but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use `of: equipment leased to you by such = person or -organization. (2) With respect to the insurance afforded to these additional : insureds: this insurance does not apply;.fo any "occurrence" which. takes place after the equipment lease expires. ' HG 00 Of 06 05 c. Lessors of Land or Premises Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. With . respect to the . insurance.. afforded these additional insureds the following additional exclusions apply: This insurance does not apply to: 1. Any "occurrence" which,.takes place after you cease to lease that land; or 2. Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. d. Architects, Engineers or Surveyors Any architect, engineer, or surveyor, but only with respect Jo liability for.;"bodily injury", "property damage". or "personal. and advertising injury" caused,. in .whole or in part, by your acts or omissionsor the acts or omissions of those acting on your behalf: (1) ` In connection with your premises; or: (2) In the performance of your ongoing operations performed by you or on your behalf. With respect to the insurance,- afforded these additional insureds-, the - following additional exclusion applies: _. This;irisurence does not. apply to "bodily injury", "property, damage" or, -"personal and advertising injury" arising out of the rendering of or the failure to render any professional services by or for you, including; 1. The preparing, approving, or failing to prepare. or approve, maps, .shop drawings, opinions, "reports; surveys, field orders, change orders or drawings and specifications; or 2. Supervisory, inspection, architectural: or engineering activities. e. Permits . Issued By -State or Political Subdivisions Any state. or political. subdivision, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. p. With respect to the insurance afforded these additional insureds, this insurance does not apply to:. (1) 'Bodily injury", 'property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (2) 'Bodily injury" or "property damage included within the 'products -completed operations hazard". Page 11 of 18 f. Any Other Party Anyother person or organization who is not an insured under Paragraphs a. through e. above, but only with, respect to liability for "bodily injury", "property damage" or "personal and advertising injury". caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: - - (1) In the performance of your ongoing operations; (2) In connection with your premises owned by or rented to you; or (3) In. connection with "your work and included within the "products -completed operations hazard", but only if (a) The written contract or agreement requires you to provide such coverage to such additional insured; and (b) This Coverage Part provides coverage for "bodily injury" or "property -damage" included T wifhinthe "products -completed -operations hazard". With respect to the insurance afforded to these additional:insureds; this insurance does not apply AM : ­ "Bodily "Bodily injury", "property' damage° or "personal and :..'advertising injury" arising out of the rendering of, or the failure to'rendet; any professional archttectural, engineering or surveying services, including: (1)=The preparing, approving;..or:failing .to, prepare or approve,.' maps, . drawings;' opinions, reports; aurveys, field orders, -change orders or drawings and specifications; or (2). Supervisory, inspection, architectural or, engineering activities. ,r ;The limits of insurer rice that apply to additional insureds under this provision. is described m Section, 111 —Limits Of insurance. .::. ,.. How' ,thW iriiiurance applies: when othei insurance is available to the additional insured is. described in the Other Insurance 'Condition in Section N Commercial General Liability Conditions. No` person or:organization -is an insured with respect to the condud'of any current' or past partnership, joint venture or limited: Liabilttycompany-that is not. shown as a:Named Insured in.the Declarations. SECTION III :; LIMITS OF. INSURANCE . 1. ;The Most We will.Pay The Limits of Insurance shown in the Declarations and ,_the rules below fox the most we will pay regardless of the number of; : a. Insureds; b' Claims made or "suits" brought, or c. Persons or organizations making claims or bringing "suits". 2. General Aggregate Limit The General Aggregate Limit is the most we will pay for the sum of a. Mediral expenses under Coverage C; b. Damages under Coverage A;' except damages because of "bodily injuryor "property, damage" included in the "products -completed operations hazard"; and C. Damages under Coverage B. 3. Products -Completed Operations Aggregate Limit The Products -Completed Operations Aggregate Limit:. is the, most we Will pay under Coverage A for damages - because of "bodily injury" and "property damage" included in, the "products -completed operations hazard". 4. Personal and Advertising )n,ury Limit Subject to 2. above, the Personal. and Advertising,; Injury. Limit is the most we will pay. under Coverage 13'. for -the sum of all damages because of all "personal and advertising injury" sustained by any one person or_ organization. 5. Each'Occurrence Limit i - Subject to 2. or 3: above; whichever applies; the Each' Occurrence' Lirnit is the most we will pay for the sum a. Damages under Coverage A; and b. Medical expenses under Coverage C. -: because.. of. all "bodily injury" and. _"property damage ansmg out of any one occurrence 6.0 pamage;To Premises, Rented To._You Limit a Subject to 5'above, the Damage To Premises Rented z To You Ltmil isthe most we will pay; under Coverage Ate„ for damages because of "properly"damage" to any one, premises, -;While. rented. .to,you, or,in the;.case otV damage. by fire, lightning or: explosion,% while rented to ypu o(iemporadly occupied. by you,with permission off the owner.:. .. 3 In the case of damage by:fire`'Irghtning'or explosion, the Damage to Premises RentedToYou Limit applies F. to all, damage proximately caused, by the same event; whether such damage results from, fire lightning of .y explosion`or any, combination. of these 7. Medical Expense Limit Subject to 5:`above; the Medical Expense=Limit is they, - most we will pay under' Coverage C for all medical% expenses because of "bodily injury" sustained by any one person: 8i` How Limits Apply To Additional Insureds if you have agreed. in a written contract. or written agreement that another person or "organization be Page,12.af 18 HG 00 0106,05 added as an additional insured on your policy, the most we will pay on behalf of such additional insured is the lesser of: a. The limits of insurance specified in the written contract or written agreement; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to Limits of Insurance shown in the Declarations and described in this Section. The Limits of Insurance of this Coverage Part apply separately to each consecutive annual period and to any rn remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, o:unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period for purposes of determining the Limits of Insurance. o SECTION -IV COMMERCIAL GENERAL LIABILITY o; CONDITIONS 1. oanKrupwy Bankruptcy or, insolvency of the insured or of the insured's' estate will not relieve us of our obligations under.this Coverage Part. 2. Duties In The Event Of Occurrence, Offense, Claim Or suit at. Notice Of Occurrence Or Offense You.or any additional insured must see to it that we are i-notified as soon as practicable- of an "occurrence" or an offense which may result in a claim. To the extent possible; notice should include: (1) How, when", and where the "oocurrence" or offense took place; (2) The. names and addresses of any injured persons and witnesses, and (3) The nature and location of any injury or damage arising out of the "occurrence" or offense. b Notice Of Claim If a claim is made or "suit" is brought against any insured, you or any. additional insured must:.. (1) Immediately record the specifics of the claim or "suit" and the date received; and (2) Notify us as soon as practicable. You or any additional insured must see to it that we ' receive -""ten notice of the taint or "suit" as soon as practicable. c. Assistance And Cooperation Of The Insured You and, any other involved insured must: (!)":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; ' HG` 00 01 06 05 (3)' Cooperate with us in the investigation or settlement of the claim or defense against the "suit": and (4) Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply. d. Obligations At The Insureds Own Cost No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation; or incur any expense, other than for first aid; without our consent. e:'Additional Insureds Other Insurance If we cover a claim or "suit" under this Coverage Part that may also be covered by other insurance available to an additional insured, such additional insured must submit such claim or "suit" to the other insurer for defense and indemnity. However, this provision does not apply to the extent that you have agreed in a written contract or written .agreement that this insurance is primary and'non-contributory with the additional insured's own insurance. f: Knowledge Of An Occurrence, Offense, Claim Paragraphs. a. and b. ,apply to. you or to any additional insured only, when such "occurrence", offense, claim or "suit" is known to: 'or any additional "insured that is an individual; (2);yAny partner; if you or an additional insured is a (3) Any, manager, if you or an additional insured is a limited liability company; _- (4) ,Any executive officer" or insurance manager, if you or an,add,itional insured is a corporation; (5) Any trustee, if -.you or an additional insured is a trust; or (6) : Any. elected or appointed official, if you or an a additio'nal,. insured is a political subdivision or public entity. U This duty applies separately to you and any additional insured. 3: Legal Action Against Us No person or' organization has a right under this Coverage Part: a 9 join us as a party or otherwise bring us into a "suit" asking fordamages from an insured; or b.,To.sue`us on this Coverage Partunless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this Coverage Part or Page 13 of 18 that are in excess of the applicable limit of insurance. An agreed settlement means a settlement.and release of liability signed by us, the insured and the claimant or the claimant's legal representative.' 4..Otherinsurance If other valid and collectible insurance is.available to the insured for a loss we cover under Coverages A or B of this,Coverage Part, our obligations are limited as follows; a. Primary Insurance This insurance is primary except' when to, below applies. If other insurance is also- primary; we will share: with all that other insurance. by the method described in c. below. b. Excess insurance Thisr.insurance is excess over: any, of the other insurance, whether primary, excess: contingent or on any other basis: (1) :Your Work That is Fire,'Fxtended Coverage, Buiider's Risk, Installation Risk or similar coverage'for "your work"; (2) Premises Rented To You That is fire; lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission'of the owner (3) Tenant Lrakridy That is., insurance purchas.ed,,by you,tq cover your liability as a tenant for "properly damage" to premises rented _to you_;. or. ,temporarily occupied by you with`penniss�on of the owner i.. —. • . .a f 4 (4) Aircraft, AUIO Vr MV 51414LL If the loss arises out_of the maintenance or use of aircraft, "autos" or vraterc`raft to the extent not ` subject to Exclusion 'g: of Section I,: n= rxofiv`InlurvAnae d ProrfyDamQe. Uability s (5) Property Damage fo'Borrowed Equipment Or Use Of Elevators . if'the loss anses'out`of "property damage" to b'orrowed'`egwpment or the use:, of elevators to the extent not subject to EXclu'sion J. of Section I. -• Coverage A - Bodily InjuryAndy Vibperty Damage Liability; - (6i When You Are -Added As' An Additional Insured, To. Otherinsurance::. Any other insurance available'' -to you covering liability,for damages arising out.. of the, premises, or. operations, Pr.;.products:: and „completed' operations, for which you have been added as an additional insured by that,insurance` or""' (7) When, You Add Others As An Adurtoonar Insured To This Insurance Any other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this coverage part.. (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a .written' contract or written agreement that this 'insurance be primary. If other insurance is.also primary, we.will share,with all .that - other insurance by. the method described in c. below. (b) Primary And Non -Contributory To Other Insurance When Required By Contract ; If you have agreed in a written contract, written agreement, or permit .that this., insurance is primaryand non-contributory, with the additional insured's own insurance,.' this insurance is; primary' and we will not seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to other- insurance.to which the additional insured has -,. been added as An additional insured" When ttris; insurance is excessr'. we.,will, have notes duty:undar Coverages A or B to defend the insured against any;"suit".:if any other insurer has a duty to-. defend the' insured against: that+"suit°'If no other- Jnsuret defends ,we will .undertake to do so, but wee yui114 be entitled. to the insureds: rigtrts against alb is excess over would pay for the loss in the bbsence. of tins insurance, and.. (2y The total 'of all deducti"' ble and self -insured 14.6mounts. under all that other insurance.` We V411 share the remaining loss; if any, with any:, other insurance that is not describedin`this. Fxcess insurance, provision and was not. bought specfically to apply, in,excess,of the Limits o.:Insurance showm; in the Declarations of this Coverage Part..: c :.Method Of Sharing,.:., .. If all of the other,insurance permits contribution by equal shares, we will follow this method also. Under; this approach each insurer `contributes equal amounts until it -has paid its, applicable limit of insurance or none of the loss remains; whichever comes first. HO 00.0106 05 Rine 14of18 If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 5. Premium Audit a. We will compute all premiums for this Coverage Part in accordance with our rules and rates. b. Premium shown in this Coverage Part as advance premium is a deposit premium only. At the close of o each audit period we will, compute the earned premium for that period and send notice to the first .Named Insured. The due date,. for audit and retrospective premiums is the date shown as the due date on the bill. If the, sum of the advance and o audit premiums paid for the policy period is greater o than the earned premium, we will return the excess m' to the.first Named Insured. c. The first Named Insured must keep records of the 63 information we need for premium computation, and send us copies, at such times as we may request. 0.. 6. Representations - 0 rn a .When You Accept.This Policy ey accepting this policy, you agree: (1). The statements in the Declarations are accurate ,`and complete;: (2)`. Those statements are based upon representations you made to us; and ® (3) We have issued this policy in reliance upon your ® representations. - - - - ® b. Unintentional Faiiure.36 Disclose Hazards If ;'unintentionally you, should Jail to disclose all hazards .relating to the conduct of your business that exist at the inception date of this Coverage ® <Part,,. We shall not .deny coverage under this cs, Coverage Part because of such failure. 7. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insured, this insurance applies: a As if each Named, insured were the only Named insured; and b .Separately to each insured against whom claim is made or "suit" is brought. .8.: Transfer. Of Rights Of Recovery Against Others To .Ms.r a.:- Transfer of Rights Of Recovery " If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our requests the insured will bring "suit" or transfer those rights to us and help us enforce them. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against . such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. 9. When We Do Not Renew If we decide not to renew this Coverage Part, we will mail or deliver to the first Named Insured shown in the Declarations written notice of the nonrenewal not less than 30 days before the expiration date. If notice, is mailed, proof.of mailing will be sufficient proof of notice. SECTION V — DEFINITIONS 1. "Advertisement" means the widespread . public dissemination of information or images that has the purpose of inducing the sale of goods, products or services through: . a. (1) Radio; (2) Television; (3) Billboard; (4) Magazine; (5) Newspaper, or b. Pny 9. er,.publication that is given widespread However "advertisement" does not include: a ,The design, printed material, information or images contained in,. on or. upon the packaging or labeling Of any goods or products; or: b. An interactive conversation between or among ,persons through a computer network. 2. "Advertising idea" means. any idea for an "advertisement". 3. "Asbestos hazard" means an exposure or threat of exposure to the actual or alleged properties of asbestos and includes the mere presence of asbestos in any form. 4. "Auto". means a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment. But "auto" does not include "mobile equipment". 5. "Bodily injury" means physical: a.. Injury, b:: Sickness; or c . Disease sustained by a person and, if arising out of the above, mental anguish or death at any time. HG DO 0f06 05 Page 15'of 18 6.. "Coverage territory" means: a. The United States of America (including its territories and possessions), Puerto Rico and Canada; b. Intemational waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in a. above;or c., All other.parts of the world if the injury or damage arises out of: (1) Goods or products made or sold by you in the territory described in a. above; (2)' The activities of a person whose home is in the territory described in a. above, but is away for a short time on your business; or (3)"Personal and advertising injury" offenses that take place through' the Internet or similar electronic means of communication provided the insured's responsibility to pay damages is determined in the United States of America (including its territories and possessions), Puerto Rico or Canada, in,a "suit". on the merits according:, to the substantive law in such territory or in a settlement we agree to. 7. - Empioyee includes a "leased worker. ."Employee" does not include a "temporary worker": ' 8. "Employment -Related Practices" means a.' Refusal to employ a person; b. Termination of a person's employment; or c. Employment -related practices, policies,; acts or . omissions, such as coercion demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or discrimination drected `at a person. 9. "Executive officer" means a person holding any of the officer positions created by'your`charter constitution, by lavis.br any othersimriar goveming,document 10.- Hostile fire" means one which becomes. uncontrollable or breaks out from where t "s intended to lie. 11"ImpAired property" means' 'tangrble propeity.`other.'` than "your product" or "your work", that cannot be used or is less useful because. a. It incorporates "your product" oe"your work" that is known � or Ahought' to be 'defective deficient, r -inadequate or dangerous; or b:'You have failed to fulfill the terms of a contract or agreement; if such proper ty caribe restored to use by a The, repair, replacement, adjustment; or removal of your product" or" your work"; or b.. Your fulfilling the terns of the, contract or agreement:.. 12."Insured contract" means: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises: that indemnifies any person or organization for damage >,by fire, lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the, owner is subject to the Damage to Premises Rented To You Limit described in Section III — Limits of Insurance; b. A sidetrack agreement; c. Any easement or license agreement, including an easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad; d. An, obligation, .as required by. ordinance, to indemnify a municipality, except in connection with work for municipality; a., An elevator maintenance agreement; f. That 'part of any other contract or agreement.. pertaining to your business '(including an indemnification of a municipality in connection with work performed for a municipality) urider which you assume the tort liability of another party to pay for-: "bodily injury" or "property damage" to a third: person or organization, provided the "bodily.injury ouproperty damage" is caused, in whole or in part;_ by; you or by those acting on your behalf. TorfL liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. includes. that part, of any contract or agreement that indemnifies a railroad for "bodily injury": or "property damage"." arising' out of construction or demolition operations; within So feet of any railroad property and affecting any railroad F badge; or, trestle, tracks, road -bads; `tunnel`., underpass or crossing.. . However, Paragraph f. does not include that partof+i any contract, or agreem_ ent (1) That indemnifies . an architect engineer o6 surveyor for injury or damage arising out of 51_ (a)f Preparing, approving, or failing to prepare or—;, approve, maps; shop. dravnngs opinions reports; surveysi:field orders; change orders' or drawings and specifications or k, (b) Giving directions or instructions or falling to ' , `.. giveth in, if thatis the primary cause of the injury ordamage or;; (2) _Under which the insured if an, architect, .engineer x or surveyor, assumes liability for an . injury or damage arising out of the insureds rendering or =q. failure to render professional seivices ``including those . listed in (1) .. above ' and ,'supervisoryr, inspection;,architect al or en activities, 13."Leased worker" means a person' leased to you' by k labor leasing fine .under an. agreement -,between ,l you and the labor leasing firm, to perform duties related to the conduct of your business "Leased worker" does '= not include d1emporary worker". . 14 "loading or unloading" means the handling of property: a.,, After 'it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or "auto"; Paoe.16 of 18 FIG.00 0106 0S b. While it is in or on an aircraft, watercraft or "auto"; or c. While it is being moved from an aircraft, watercraft or "auto" to the place where it is finally delivered; but "loading or unloading" does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or "auto". 15."Mobile equipment" means any of the following types of land vehicles, including any attached machinery or equipment: .-r a. Bulldozers, farm machinery, forklifts and other `-� vehicles designed for use principally off public o roads; b. Vehicles maintained for use solely on or next to premises you own or rent; c. Vehicles that travel on crawler treads; 0 m d. Vehicles, whether self-propelled or not, maintained primarilyto provide. mobility to permanently w mounted: '(1)'Power cranes, shovels, loaders, diggers or o - - -drills; or m`! (2). Road construction , or resurfacing equipment * such as graders, scrapers or rollers; e., Vehicles not described in a., b., c. or d. above that ® are not self-propelled and are maintained primarily to. provide mobility to permanently attached .equipment of the following types: (1) Air compressors; pumps '; and. generators, including spraying, welding,' building cleaning, geophysical exploration; lighting and well servicing equipment, or (2) Cherry pickers and similar devices used to raise �5. or lower workers; f. Vehicles not described in a., b:; c. or d. above maintained primarily for purposes other than the transportation of persons or cargo. ®; However„ self-propelled vehicles with.the following types of permanently attached. equipment are not "mobile equipment" but will be considered "autos": (1). Equipment„ of at. least 1,000 pounds gross vehicle weight, designed primarily for. (a) Snow removal; (b) Road, maintenance, but not construction or resurfacing; or. (c) Street cleaning; (2) Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or ®_ lower workers; and (3) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment 16."Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. 17."Personal and advertising injury" means injury, including consequential "bodily injury", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, ..dwelling or premises that, a person occupies, committed by or on behalf of its owner, landlord or lessor, d. Oral, written or electronic publication of material that slanders, or libels a person or organization or disparages a person's or organization's goods, products or services; e. Oral, written or. electronic publication of material that violates a person's right of privacy; f.:Copying, in your "advertisement", a person's or ...organization's "advertising idea" or style of "advertisement"; g Infringement of copyright, slogan, or title of any literary, or artistic work, in your "advertisement"-, or h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person::'":, 1B."Pollutants" mean any solid, liquid, gaseous or thermal irritant or contaminant, including„ smoke,, vapor;, soot, fumes, acids, alkalis, chemicals and waste:. Waste includes materials to be'recycled, reconditioned or reclaimed: 19 ' Prod66ts completed operations hazard'- ,A..Includes ail "bodily, injury"; and .."property. damage" occurring away from premises you own_orrent and arising out of "your product" or "your work"except: (1) ,Products. that are still in your,: physical possession; or. (2) Work that has not yet been completed or abandoned. However, "your work will_ be deemed_. completed at the earliest of the following fires: (a) When all of the work called for in your contract has been completed.- (b) When all of the work to be done afi the job site has been completed if your contract calls for work at more than one job site. (c) When that part of the work done at a job site has been put to its intended use by' any person or organization other than another contractor or subcontractor working on the same project. Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. HG'00 01`06 05 Page 17 of 16 b. Doesnot include "bodily injury" or "property damage" arising out of: (1) The transportation of property, unless the injury or damage arises out of.a condition in or on a vehicle not owned or operated by you, and that condition was created. by the "loading or unloading" of that vehicle by any insured; (2) The existence of tools, uninstalled equipment or abandoned or unused materials; of ` (3) Products or operations for which the classification; listed in the'Declarations or in a policy" schedule, states that `products - completed operations are subject to the General Aggregate Limit 20. "Property damage" means: a Physical, injury to.tangible property,. including all resultingloss of use of that propertyz.Allsuch loss of use shall be deemed to occur at the time of the "physicalinjury that caused it; or b. Loss 'of use of tangible property that is not physically injured. All such loss of use shalf be 'deemed to occur at the time of the "occurrence" that caused it As used rn this definition, computertied or electroncally'stored data, `programs or software are ,:. not -tangible ,. property. Electronic '`data -' means information, -facts or programs: ;'ar,Stored as or on; .. b Creoen; or T,ransmrtted to or from, . compute oftware, including systems :and applications software, -,hard or., -floppy disks,.. Cp_; ROMS; tapes dories cells; data processing devices of any othermedra'which ol are used vath-electronicall y. "coInrolled `equipni@iit. 211"Su Y means a civil proceeding rn zwlich damages ' because`' of "bodily injury", - "property_ damage" or °personal and advertising injury" to 'which this insurance -applies are alleged. "Sud"mcludes a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent, or" b Any . ` other alternative dispute resolution proceeding in'whrch such- damages' are claimed amid to' which 'the insured submits with our consent. 22."Temporary worker" means a person who is fumished to you to substitute for a permanent "employee" on leave or to meet seasonal or short- term workload conditions. 23. "Volunteer worker" means a person who a. Is not your''employee"; b. Donates his or her work; c. Acts at the direction of and within the scope of . duties determined by you; and d. Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. it"Your product": a. Means: (1) Any goods or products, other. than real.. property, manufactured, sold, handled, distributed or disposed of by: (a) You; (b) Others trading under your name; or (c) A, person. ororganization .whose business or assets you have acquired; and (2) Containe-rs (other. than. vehicles), materials,: parts.. or .equipment fumished 1n. connectiort - with such goods or producfs. b: Includes 3 (1) Warranties or: representatrons.rade at any time with respect•;= to thee -fitness.' quality durability, performance or; use of "your `- product"; and r (2) The pro idrng of or failure to. provide. wammgs �__,. or instructions - H ,. C.:._Does, not. .,lnclude -vending machmes;_or other-- property rented to or located.forthe use of othergl—tII ' but not sold..: a. Means (1) Work or'operatrons,%'pertortned by you.or one your behalf, and (2)` Matenalsparts or 'equrpment fumished m� _5- b. Includes' (1) Warranties or representahon_s.. made at any; time ` with respect'to the'" fitness; quality;; durability, performance or use of "your woW.-. and (2) The providingof or.failure to provide wamings'- or instructions: Page_ 18, of_18. HG 00 0106 05 2SIERLAN D- EVIDENCE OF PROPERTY INSURANCE DATE IMwDD� . .... _ 09/14/2010 �:.: ..... 1S EVIDENCETHAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED, IS IN FORCE, AND CONVEYS ALL THE kITS AND PRIVILEGES AFFORDED UNDER THE POLICY. PHONE ac No Eal : 760 360-4700 COMPANY prt Empire Insurance The Hartford Insurance Co. /rvices, Inc. LIC # OF09643 J7.564 Country Club Drive Palm Desert, CA 92211 CODE: SUB DGDE: AGENCY CUSTOMER ID 0: INSURED LOAN NUMBER POLICY NUMBER Sierra Landscape Co Inc Binder 73-771 Dinah Shore Drive, Ste 200 EFFECTIVE DATE EXPIRATION DATE Palm Desert, CA 92211-4247 10/14/10 12114110 TERMINATEDIF CNECKED THIS REPLACES PRIOR EVIDENCE DATED: PROPERTY INFORMATION .. LOCATIONIOESCRIPTION Jefferson Street Parkway, La Quints CA 92253 COVERAGE INFORMATION COVERAGEIPERILSIFORMS AMOUNT OF INSURANCE DEDUCTIBLE Course of Construction $299,133 $2500 REMARKS (Including Special Conditions) . _._.. CANCELLATION _.... 10 Days for Non-P0ymont THE POLICY IS SUBJECT TO THE PREMIUMS, FORMS, AND RULES IN EFPLCT VOR CACITI POLICY PG110D. OIK)UI,D 11111 POLICY BE TERMINATED, THE COMPANY WILL GIVE THE ADDITIONAL INTEREST IDI1N'fIPILD BI71,0W 10 . , DAYO WRITTEN NOTICE, AND WILL SEND NOTIFICATION OF ANY CHANGED TO THO POLICY THAT WOULI) AGPI'.CT TIIAT INTEREST IN ACCORDANCE WITH THE POLICY PROVISIONS OR AS RE IRED 0V LAW. - ADDITIONAL INTEREST NAME AND ADDRESS MORTGAGCO AUDI I IONA. INOUIICU City of Lo Quinta _[LOSS PAYtlE P.O. Box 1504 LOAN S La Qulnta CA 92253 AUTHORIZED REPRDSENTATIVD L ACORD 27 (3193), 1 of I M 8401 2LgOC.®ACORO CORPORATION 199 r: Tjhf 4 4 a" Sheet 1 of 1 CONTRACT: Jefferson Street Parkway Landscape Improvements PROJECT NO.2009-16B CONTRACTOR, Sierra Landscape Co. 73771 Dinah Shore Dr. Palm Desert, Ca. 92211 CONTRACT CHANGE ORDER NO.1 Pucsaatto the terms ofthe original ContmctAgreement, you are hereby directed to stake theherein descnbed changes ordothe following descrihedwork not included in the plans and spediloationa forthis Contract. Unless otherwise stated all work shall confor nto the trams, general conditions, and special provisions of the original Contract. DESCBIPTION4)FCAANGE This Contract Change Order allows for construction of 220 LF ofwrought iron fencing and one 20 foot wide gate around theperimeter of the City owned property on the northeast corner of Jefferson Street and Vista Grande. Total $29,860.00 By reason of this contract change order the time ofeomptepon is adjuated a tbllows: -3- days addedtdeleted to contract time, The rovhed contract completion date shall be. 12/14/10 Sbhmkted Appresed 2 Z We, rhaanderaignedContractor, harsglven cargl]tl eomldemiloit to theehmgepropared andhemby agree, if this proposal is approved thatwe will providsaff eguoriumi, jur nish aUmaterlals, perform all labor, exceptas may be noted above, andperform all services necessary tocmriplete the above spe4fledwak and hereby accept asfull payment the amount shown above, which Includes all direct and indirect overhead expenses for any delays. Aeeopted Date: TiMOMMQi0 SERVIB9 UMSIOn(CO')1Pa0raClSa_CgN]TRLIaII0Nn000.1W NUTEaSON amaT PARKWAY WiD Ms a OVa1ffinrSlOnSiRanrtO OORMPAY WSACC &TCOel ADDM0tQ MNCRATVWrAQMN0aDOC a T4hf 4 4 a" CONTRACT: Jefferson Street Parkway Landscape Improvements CONTRACTOR: Sierra Landscape Co. 73771 Dinah Shore Dr. Palm Desert, Ca. 92211 CONTRACT CHANGE ORDER NO.2 Sheet 1 of 2 PROJECT NO.2009-16B Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms, general conditions, and special provisions of the original Contract. DESCRIPTION OF CHANGE This Contract Change Order allows for construction of+/- 1,800 LF of electrical conduit and pullboxes for future lighting needs near the sidewalks on the east and west sides of the new Jefferson Street Parkway Landscape Improvements. $9,787.00 ..........................................................................................I Previous Contract Amount Through Change Order No. 1 $ 328,994.00 Add This Chan a Order No. 2 $ 9 787.00 Revised Contract Total $ 338,781.00 By reason of this contract change order the time of completion is adjusted as follows: -4- working days added to contract time. The revised contract completion date shall be: 12/20/10 Submitted Approved We, the undersigned Contractor, havegiven careful consideration to the change proposed and hereby agree, if this proposal is approved, that we will provide all equipment, furnish all materials, perform alllabor, except as may be noted above, and perform all services necessary to complete the above specified work, and hereby accept as full payment the amount shown above, which includes all direct and indirect overhead expenses for any delays. Accepted By: Contractor Title: Date: t Sheet 1 of 5 CONTRACT: Jefferson Street Parkway Landscape Improvements PROJECT NO.2009-16B CONTRACTOR: Sierra Landscape Co. 73771 Dinah Shore Dr. Palm Desert, Ca. 92211 CONTRACT CHANGE ORDER NO.3 ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Pursuant to the terms ofthe original Contract Agreement, you are hereby directed to make the herein described changes or do the following described work not included in the plans and specifications for this Contract Unless otherwise stated all work shall conform to the terms, general conditions, and special provisions of the original Contract. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ This Contract Change Order allows for a Contract Quantity Adjustment between the Bid Quantities and the Actual Quantities Installed Total S 17 757.00 This Contract Change Order allows for the additional installation of concrete driveway to match existing conditions Total 1,504.00 This Contract Change Order allows for a credit for the downsizing and substitution of tree species Total $ (3,951.00) Total $15,310.00 *+*****++#*+***+++*+***+*#*******#**#*+***+++****+*+#*****++##+*++#*+++**#+*#####+#**++++* Previous Contract Amount Through Change Order No. 2 $ 3387g0.00 Add This Change Order No. 3 1 $ 15 310.00 Revised Contract Total I $ 354 090.00 By reason of this contract change order the time of completion is adjusted as follows: -4- working days added to contract time. The revised contract completion date shall be: 12/24/10 Submitted Approved #+#**++++****+*********+#++*+**+*****++***+*#*++***+****++++***********++**++******#****#* We, the undersigned Contractor, haw 91Y n caxful coaddandaft to the chaageprop Mandhereby agree, if this proposal is approved that we will provide all equipment, frrnish all materials, perform all labor, except as may be noted above, andper,Jbrm all services necessary to complete the above specified work and hereby accept as f dl payment the amount shown above, which includes all direct and indirect overhead expenses for any delays. Accepted Title: Piv/ Contractor: 5/ At Date: I.1q, t! PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: VERONICA J. MONTECINO, City Clerk AND WHEN RECORDED MAIL TO: CITY OF LA QUINTA Attn: Veronica J. Montecino P 0 Box 1504 La Quinta, CA 92247 SPAT DOC # 2011-0065611 02/10/2011 08:00A Fee:NC Page 1 of 2 Recorded in Official Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder -71 I III IIIIIII I III II I I II II IIII III II II III III S I R I U IPAGEISIZEI DA IMISCILONGIRFDI COPY M I A I L 1 465 1 426 1 PCOR NOTICE OF COMPLETION Jefferson Street Landscape Improvements, Project No, 2009-16B Contractor: Sierra Landscape Co. Title of Document SMF CHI CTY UNI THIS AREA FOR RECORDERS USE ONLY THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION Exempt Recording Fees per Government Code... Sections 6103 and 27383 M PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: VERONICA J. MONTECINO, CMC, City Clerk AND WHEN RECORDED MAIL TO: CITY OF LA QUINTA Attn: Veronica J. Montecino P. O. Box 1504 La Quinta, CA 92247-1504 NOTICE IS HEREBY GIVEN: SPACE ABOVE FOR RECORDER'S USE ONLY NOTICE OF COMPLETION 1. That the interest or estate stated in paragraph 3 herein in the real property herein described is owned by: The City of La Quinta, California, a Municipal Corporation, organized and incorporated pursuant to the laws of the State of California. 2. The City Clerk of the City of La Quinta is authorized and directed to execute, on behalf of said City, any and all Notices of Completion. 3. That the nature of the life of the stated owner, or if more than one owner, then of the stated owner and co -owners is: In Fee. 4. That on the 1s` day of February 2011 a work of improvement on the real property herein described was completed. 5. The public work improvement is described as follows: Jefferson Street Parkway Landscape Improvements, Project No. 2009-166. 6. The name of the contractor for said work of improvement was: Sierra Landscape Co. 7. The property on which said public work of improvement was completed is in the City of La Quinta, County of Riverside, State of California, and is described as follows: East and West Sides of Jefferson Street between Westward Ho Drive and Vista Grande Street just North of Highway 111. DATED: February 2, 2011 CITY OF LA INTA, CALIFORNIA BY: TITLE: Clerk STATE OF CALIFORNIA I COUNTY OF RIVERSIDE I I hereby certify that I am the City Clerk of the governing board of the City Council of the City of La Quinta, the political subdivision which executed the foregoing notice and on whose behalf I make this verification: that I have read said notice, know its contents, and that the same is true. I certify under penalty of perjury that the foregoing is true and correct. Executed at La Quinta, California. VERONICA J/. ,AON`FECINO, City Clerk City of La Q lnta, California