HomeMy WebLinkAboutAGMT - HF&H Consultants LLC (Contracting Assistance for Senate Bill 1383)PROFESSIONAL SERVICES AGREEMENT
Between
City of Seal Beach
211 8th Street
Seal Beach, CA 90740
P
HF&H Consultants, LLC
19200 Von Karman Ave, Ste 360
Irvine, CA 92612
949-251-8902
This Professional Service Agreement ("the Agreement") is made as of March 28, 2022
(the "Effective Date"), by and between HF&H Consultants, LLC ("Consultant"), a
California limited liability company, and the City of Seal Beach ("City"), a California
charter city, (collectively, "the Parties").
S7296-0001 \2624660v2.doc
RECITALS
A. City desires certain professional services.
B. Pursuant to the authority provided by its City Charter and Seal Beach
Municipal Code § 3.20.025(C), City desires to engage Consultant to provide
professional services with, respect to Solid Waste SB 1383 Contracting
Assistance (the "Project') in the manner set forth herein and more fully described
in Section 1.0.
C. Consultant represents that its principal members are fully qualified and
able by virtue of their training, experience and expertise to provide City with such
services for the Project in a good and professional manner, and it desires to
perform such services.
NOW THEREFORE, in consideration of the Parties' performance of the
promises, covenants, and conditions stated herein, the Parties hereto agree as
follows.
AGREEMENT
1.0 Scope of Services
1.1. Consultant shall provide those professional services ("Services") for
the Project as set forth in the attached Exhibit A, which is hereby incorporated by
this reference. To the extent that there is any conflict between Exhibit A and this
Agreement, this Agreement shall control.
1.2. Consultant shall perform all Services under this Agreement in
accordance with the standard of care generally exercised by like professionals
under similar circumstances and in a manner reasonably satisfactory to City.
1.3. In performing this Agreement, Consultant shall comply with all
applicable provisions of federal, state., and local law.
1.4. As a material inducement to City to enter into this Agreement,
Consultant hereby represents that it has the experience necessary to undertake
the Services. In light of such status and experience, Consultant hereby
covenants that it shall follow the customary professional standards in performing
all Services. The City relies upon the skill of Consultant, and Consultant's staff, if
any, to do and perform the Services in accordance with such professional
standards, and Consultant and Consultant's staff, shall perform the Services in
such manner. Consultant shall, at all times, meet or exceed any and all
applicable professional standards of care. The acceptance of Consultant's work
by City shall not operate as a release of Consultant from such standard of care.
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1.5. Consultant will not be compensated for any work performed not
specified in the Scope of Services unless City authorizes such work in advance
and in writing. The City Manager may authorize extra work to fund unforeseen
conditions up to the amount approved at the time of award by the City Council.
Payment for additional work in excess of this amount requires prior City Council
authorization.
2.0 Term
The term of this Agreement shall commence as of the Effective Date and shall
remain in full force and effect for 18 months ("Term"), unless previously
terminated as provided in Section 5.0 of this Agreement.
3.0 Consultant's Compensation
3.1. In consideration of Consultant's performance of the Services set
forth in Exhibit A, City, will pay Consultant in accordance with the fee schedule set
forth in Exhibit A for Services and expenses incurred in the performance of this
Agreement, but in no event will City pay more than the total not -to -exceed
amount of $75,000 (seventy-five thousand dollars and 00/100) for the Term,
except as authorized by City pursuant to Section 3.2 hereafter. .
3.2. Payment for any additional work authorized by City pursuant to
Section 1.5 will be compensated in accordance with the fee schedule set forth in
ExhibitA and shall not exceed the cumulative amount established by the City
Council at the time of the award for the Term.
4.0 Method of Payment
4.1. Consultant shall submit to City monthly invoices for all Services
rendered pursuant to this Agreement. Such invoices shall be submitted within 15
days of the end of the month during which the Services were rendered and shall
describe in detail the Services rendered during the period, the days worked,
number of hours worked, the hourly rates charged, and the Services performed
for each day in the period. City will pay Consultant within 30 days of receiving
Consultant's invoice. City will not withhold any applicable federal or- state payroll
and other required taxes, or other authorized deductions from payments made to
Consultant.
4.2. Upon 24-hour notice from City, Consultant shall allow City or City's
agents or representatives to inspect at Consultant's offices during reasonable
business hours all records, invoices, time cards, cost control sheets and other
records maintained by Consultant in connection with this Agreement. City's rights
under this Section 4.2 shall survive for three years following the termination of
this Agreement.
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5.0 Termination
5.1. This Agreement may be terminated by City, without cause, or by
Consultant based on reasonable cause, upon giving the other party written notice
thereof not less than 30 days prior to the date of termination.
5.2. This Agreement may be terminated by City upon 10 days' notice to
Consultant if Consultant fails to provide satisfactory evidence of renewal or
replacement of comprehensive general liability insurance as required by this
Agreement at least 20 days before the expiration date of the previous policy.
6.0 Party Representatives
6.1. The City Manager is City's representative for purposes of this
Agreement.
6.2: Laith Ezzet is Consultant's primary representative for purposes of
this Agreement. Laith Ezzet shall be responsible during the term of this
Agreement for directing all activities of Consultant and devoting sufficient time to
personally supervise the Services hereunder. Consultant may not change its
representative without the prior written approval of City, which approval shall not
be unreasonably withheld.
7.0 - Notices
7.3. All notices permitted or required under this Agreement shall be
deemed made when personally delivered or when mailed 48 hours after deposit
in the United States Mail, first class postage prepaid and addressed to the Party
at the following addresses:
To City: City of Seal Beach
211 8th Street
Sear Beach, California 90740
Attn: City. Manager
To Consultant: HF&H Consultants, LLC
2081 Business Center Drive, Suite 265
Irvine, CA 92612
Attn: Laith Ezzet
7.4. Actual notice shall be deemed adequate notice on the date actual
notice occurred, regardless of the method of service.
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8.0 Permits and Licenses
Consultant and all of Consultant's employees and other personnel shall obtain
and maintain during the Agreement term all necessary licenses, permits and
certificates required by law for the provision of the Services under this
Agreement, including a business license as required by the Seal Beach
Municipal Code.
9.0 Independent Contractor
9.1. Consultant is an independent contractor and not an employee of
the City. All Services provided pursuant to this Agreement shall be performed by
Consultant or under its supervision. Consultant will determine the means,
methods, and details of performing the services by which Consultant and its
personnel will perform the Services. Consultant shall be solely responsible for the
satisfactory work performance of all personnel engaged in performing the
Services and compliance with the customary professional standards..
9.2. All of Consultant's employees and other personnel performing the
Services under this Agreement on behalf of Consultant shall also not be
employees of City and shall at all times be under Consultant's exclusive direction
and control. Consultant and Consultant's personnel shall not supervise any of
City's employees, and City's employees shall not supervise Consultant's
personnel. Consultant's personnel shall not wear or display any City uniform,
badge, identification number, or other information identifying such individual as
an employee of City; and Consultant's personnel shall not use any City e-mail
address or City telephone number in the performance of any of the Services
under this Agreement. Consultant shall acquire and maintain at its sole cost and
expense such vehicles, equipment and supplies as Consultant's personnel
require to perform any of the Services required by this Agreement. Consultant
shall perform all Services off of City premises at locations of Consultant's choice,
except as otherwise may from time to time -be necessary in order for Consultant's
personnel to receive projects from City, review plans on file at City, pick up or
deliver any work product related to Consultant's performance of any Services
under this Agreement, or as may be necessary to inspect or visit City locations
and/or private property to perform such Services. City may make a computer
available to Consultant from time to time for Consultant's personnel to obtain
information about or to check on the status of projects pertaining to the Services
under this Agreement.
9.3. Consultant shall be responsible for and pay all wages, salaries, and
other amounts due such personnel in connection with their performance of
services under this Agreement and as required by law. Consultant shall be
responsible for all reports and obligations respecting such additional personnel,
including, but not limited to: social security taxes, income tax withholding,
unemployment insurance, disability insurance, and workers' compensation
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insurance. Notwithstanding any other agency, State, or federal policy, rule,
regulation, statute or ordinance to the contrary, Consultant and any of its officers,
employees, agents, and subcontractors providing any of the Services under this
Agreement shall not become. entitled to, and hereby waive any claims to, any
wages, salaries, compensation, benefit or any incident of employment by City,
including but not limited to, eligibility to enroll in, or reinstate to membership in,
the California Public Employees Retirement System ("PERS") as an employee of
City, and entitlement to any contribution to be paid by City for employer
contributions or employee contributions for PERS benefits.
9.4. Consultant shall indemnify and hold harmless City and its elected
officials, officers, employees, servants, designated volunteers, and those City
agents serving as independent contractors in the role of City officials, from any
and all liability, damages, claims, costs and expenses of any nature to the extent
arising from Consultant's personnel practices or to the extent arising from,
caused by or related to Consultant's violation of any of the provisions of this
Section 9.0. In addition to any other remedies available under law, City shall
have the right to offset against the amount of any fees due to Consultant under
this Agreement any amount due to City from Consultant as a result of
Consultant's failure to promptly pay to City any reimbursement or indemnification
arising under this Section. This duty of indemnification is in addition to
Consultant's duty to defend, indemnify and hold harmless as set forth in any
other provision of this Agreement. Consultant's indemnification obligations under
this Section shall survive the termination and/or expiration of this Agreement.
10.0 PERS Compliance and Indemnification
10.1. General Requirements. The Parties acknowledge that City is a local
agency member of PERS, and as such has certain pension reporting and
contribution obligations to PERS on behalf of qualifying employees. Consultant
agrees that, in providing its employees and any other personnel to City to
perform any work or other Services under this Agreement, Consultant shall
assure compliance with the Public Employees' Retirement Law, commencing at
Government.Code § 20000, the regulations of PERS, and the Public Employees'
Pension Reform Act of 2013, as amended. Without limitation to the foregoing,
Consultant shall assure compliance with regard to personnel who have active or
inactive membership in PERS and to those who are retired annuitants and in
performing this Agreement shall not assign or utilize any of its personnel in a
manner that will cause City to be in violation of the applicable retirement laws
and regulations.
10.2. Indemnification. Consultant shall defend (with legal counsel
approved by City, whose approval shall not be unreasonably withheld), indemnify
and hold harmless City, and its City and its elected officials, officers, employees,
servants, designated volunteers, and those City agents serving as independent
contractors in the role of City officials, from any and all liability, damages, claims,
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costs and expenses of any nature to the extent arising from, caused by, or
relating to Consultant's violation of any provisions of this Section 10.0. This duty
of indemnification is in. addition to Consultant's duty to defend, indemnify and
hold harmless as set forth in any other provision of this Agreement. Consultant's
indemnification obligations" under this Section, shall survive the termination
and/or expiration of this Agreement.
11.0 Confidentiality
11.1. Consultant covenants that all data, reports, documents, surveys,
studies, drawings, plans, maps, models, photographs, images, video files, media,
discussion, or other information (collectively Data & Documents") developed or
received by Consultant or provided for performance of this Agreement are
deemed confidential and shall not be disclosed. by Consultant without prior
written authorization by City. City shall grant such authorization if applicable law
requires disclosure. Consultant, its officers, employees, agents, or
subcontractors shall not without written authorization from the City Manager or
unless requested in writing by the City Attorney, voluntarily provide declarations,
letters of support, testimony at depositions, response to interrogatories or other
information concerning the Services performed under this Agreement or relating
to any project or property located within City. Response to a subpoena or court
order shall not be considered voluntary," provided Consultant gives City notice
of such court order or subpoena.
11.2. Consultant shall promptly notify City should Consultant, its officers,
employees, agents or subcontractors be served with any summons, complaint,
subpoena, notice of deposition, request for documents, interrogatories, request
for admissions or other discovery request, court order or subpoena from any
party regarding this Agreement and the work performed thereunder or with
respect to any project or property located within the City. City may, but has no
obligation to, represent Consultant or be present at any deposition, hearing or
similar proceeding. Consultant agrees to cooperate fully with City and to provide
City with the opportunity to review any response to discovery requests provided
by Consultant. However, City's right to review any such response does not imply
or mean the right by City to control, direct or rewrite the response.
11.3. Consultant's covenants under this Section shall survive the
termination and/or expiration of this Agreement.
12.0 Ownership of Documents and Work Product
12.1. All Data & Documents shall be and remain the property of City
without restriction or limitation upon its use, duplication or dissemination by City.
All Data & Documents shall be considered "works made for hire," and all Data &
Documents and any and all intellectual property rights arising from their creation,
including, but not limited to, all copyrights and other proprietary rights, shall be
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and remain the property of City without restriction or limitation upon their use,
duplication or dissemination by City. Consultant shall not obtain or attempt to
obtain copyright protection as to any Data & Documents.
12.2. Consultant hereby assigns to City all ownership and any and all
intellectual property rights to the Data & Documents that are not otherwise vested
in City pursuant to the paragraph directly above this one.
12.3. Consultant warrants and represents that it has secured all
necessary licenses, consents or approvals to use any instrumentality, thing or
component as to which any intellectual property right exists, including computer
software, used in the rendering of the Services and the production of all Written
Products produced under this Agreement, and that City has full legal title to and
the right to reproduce the Data & Documents. Consultant shall defend, indemnify
and hold City, and its elected officials, officers, employees, servants, attorneys,
designated volunteers,* and agents serving as independent contractors in the role
of City officials, harmless from any loss, claim or liability in any way related to a
claim that City's use of any of the Data & Documents is violating federal, state or
local laws, or any contractual provisions, or any laws relating to, trade names,
licenses, franchises, copyrights, patents or other means of protecting intellectual
property rights and/or interests in products or inventions. Consultant shall bear all
costs arising from the use of patented, copyrighted, trade secret or trademarked
documents, materials., equipment, devices or processes in connection with its
provision of the Services and Data & Documents produced under this
Agreement. In the event the use of any of the Written Products or other
deliverables hereunder by City is held to constitute an infringement and.the use
of any of the same is enjoined, Consultant, at its expense, shall: (1) secure for
City the right to continue using the Data & Documents and other deliverables by
suspension of any injunction, or by procuring a license or licenses for City; or (2)
modify the Data & Documents and other deliverables so that they become non -
infringing while remaining in compliance with the requirements of this Agreement.
These covenants shall survive the expiration and/or termination of this
Agreement.
12.4. Upon expiration or termination of the Agreement, Consultant shall
deliver to City all Data & Documents and other deliverables related to any
Services performed pursuant to this Agreement without additional cost or
expense to City. If Consultant prepares a document on a computer, Consultant
shall provide City with said document both in a printed format and in an electronic
format that is acceptable to City.
13.0 Subcontractors
No portion of this, Agreement shall be subcontracted without the prior written
approval of the City. Consultant is fully responsible to City for the performance of
any and all subcontractors.
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14.0 Prohibition Against Assignment or Delegation
Consultant shall not assign any of its rights or delegate any of its duties under
this Agreement either in whole or in part, without City's prior written consent. Any
purported assignment or delegation in violation of this Section shall be void and
without effect, and shall entitle City to terminate this Agreement. As used in this
Section, "assignment' and "delegation" means any sale, gift, pledge,
hypothecation, encumbrance or other transfer of all or any portion of the rights,
obligations, or liabilities in or arising from this Agreement to any person or entity,
whether by operation of law or otherwise, and regardless of the legal form of the
transaction in which the attempted transfer occurs.
15.0 Inspection and Audit of Records
Consultant shall maintain complete and accurate records with respect to all
Services and other matters covered under this Agreement, including but
expressly not limited to, all Services performed, salaries, wages, invoices, time
cards, cost control sheets, costs, expenses, receipts and other records with
respect to this Agreement. Consultant shall maintain adequate records on the
Services provided in sufficient detail to permit an evaluation of all Services in
connection therewith. All such records shall be clearly identified and readily
accessible. At all times during regular business hours, Consultant shall provide
City with free access to such records, and the right to examine and audit the
same and"to make copies and transcripts as City deems necessary, and shall
allow inspection of all program data, information, documents, proceedings and
activities and all other matters related to the performance of the Services under
this Agreement. Consultant shall retain all financial and program service records
and all other records related to the Services and performance of this Agreement
for at least three (3) years after expiration, termination or .final payment under this
Agreement, whichever occurs later. City's rights under this Section 15.0 shall
survive for three (3) years after expiration, termination or final payment under this
Agreement, whichever occurs later.
16.0 Safety Requirements
All work performed under this Agreement shall be performed in such a manner
as to provide safety to the public and to meet or exceed the safety standards
outlined by CAL OSHA and other applicable local, state and federal laws,
industry safety orders and/or health orders. Consultant's obligations shall include
but are not limited to, the requirement to comply with all applicable COVID-19
social distancing requirements, daily monitoring and recordkeeping requirements
when Consultant's employees come onsite, and other applicable provisions of
any applicable industry safety standards and/or health orders issued by the
County of Orange, City of Seal Beach, and/or any other federal, state or local
agency with jurisdiction over City and/or Consultant, during Consultant's
performance of the Project. City may issue restraint or cease and desist orders to
Consultant when unsafe or harmful acts are observed or reported relative to the
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performance of the Services. Consultant shall maintain the work sites free of
hazards to persons and property resulting from its operations. Consultant shall
immediately report to City any hazardous condition noted by Consultant.
17.0 Insurance
17.1. General Requirements. Consultant shall not commence work under
this Agreement until it has provided evidence satisfactory to the City that
Consultant has secured all insurance required under this Section.
17.2. Minimum Scope and Limits of Insurance. Consultant shall, at its
sole cost and expense, procure, maintain and keep in full force and effect for
the duration of the Agreement, insurance against claims for injuries to persons
or damages to property that may arise from or in connection with the
performance of this Agreement, as follows:
17.2.1. Commercial General Liability Insurance: Consultant
shall maintain limits no less than $2,000,000 per occurrence for bodily injury,
personal injury and property damage; and if Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to this Agreement/location or the general
aggregate limit shall be twice the required occurrence limit: Coverage shall be at
least as broad as the latest version of Insurance Services Office Commercial
General Liability coverage (occurrence form CG 0001). If Consultant is a limited
liability company, the commercial general liability coverage shall be amended so
that Consultant and its managers, affiliates, employees, agents and other
persons necessary or incidental to its operation are insureds;
17.2.2. Automobile Liability Insurance: Consultant shall
maintain limits no less than $1,000,000 per accident for bodily injury and property
damage. Coverage shall be at least as broad as Automobile Liability: Insurance
Services Office Business Auto Coverage form number CA 0001, code 1 (any
auto);
17.2.3. Workers' Compensation Insurance in the amount
required by law; and Employer's Liability:. $1,000,000 per accident and in the
aggregate for bodily injury or disease;
17.2.4. Professional Liability (or Errors and Omissions)
Liability: Consultant shall maintain minimum limits of $1,000,000 per
claim/aggregate. If a "claims made" policy is provided, then the policy shall be
endorsed to provide an extended reporting period of not less than three years:
17.2.5. Cyber Liability: Consultant shall maintain cyber
liability insurance coverage with a limit of not less than $1,000,000 per
occurrence providing protection against claims and liabilities arising from: (1)
errors and omissions in connection with maintaining security of City Data; (2)
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data breach including theft, destruction, and/or unauthorized use of City Data; (3)
identity theft including bank charges assessed; and (4) violation of privacy rights
due to a breach of City Data. "City Data" means any and all electronic data
provided or made accessible to Consultant in connection with this Agreement.
17.3. Acceptability of Insurers. The Insurance policies required under this
Section shall be placed with insurers with a current A.M. Best's rating no less
than A:VIII, licensed to do business in California, and satisfactory to the City.
17.4. Additional Insured.
17.4.1. For general liability insurance, City, its elected and
appointed officials, officers, employees, agents, designated volunteers and those
City agents acting as independent contractors in the role of City officials shall be
covered as additional insureds with respect to the services or operations
performed by or on behalf of the Consultant, including materials, parts or
equipment furnished in connection with such work.
17.4.2. For automobile liability, City, its elected and
appointed officials, officers, employees, agents, designated volunteers and
those City agents serving as independent contractors in the role of City officials,
shall be covered as additional insureds with respect to the ownership,
operation, maintenance, use, loading or unloading of any auto owned, leased,
hired or borrowed by the Consultant or for which the Consultant is responsible.
17.4.3. These additional insured provisions shall also apply to
any excess/umbrella liability policies.
17.5. Cancellations or Modifications to Coverage. The insurance
policies shall contain the following provisions, or Consultant shall provide
endorsements on forms supplied or approved by City to state: (1) coverage
shall not be suspended, voided, reduced or canceled except after 30 days prior
written notice by certified mail, return receipt requested, has been given to City;
(2) any failure to comply with reporting or other provisions of the policies,
including breaches of warranties, shall not affect coverage provided to City, its
elected and appointed officials, officers, employees, agents, designated
volunteers, and those City agents serving as independent contractors in the
role of City officials;
17.6. Primary and Non -Contributing. Coverage shall be primary
insurance as respects the City, its elected officials, officers, employees, agents,
designated volunteers designated volunteers and agents serving as
independent contractors in the role of City officials, or if excess, shall stand in
an unbroken chain of coverage excess of the Consultant's scheduled
underlying coverage and that any insurance or self-insurance maintained by
City, its elected officials, officers, employees, agents. designated volunteers
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designated volunteers and agents serving as independent contractors in the
role of City officials, shall be excess of the Consultant's insurance and shall not
be called upon to contribute with it;
17.7. Separation of Insureds. All insurance required by this Section shall
contain standard separation of insureds provisions and shall not contain any
special limitations on the scope of protection afforded to City, its elected and
appointed officials, officers, employees, agents, designated volunteers and those
City agents serving as independent contractors in the role of City officials.
17.8. Deductibles and Self -Insured. Retentions. Any deductibles or self-
insured retentions shall be declared to and approved by City. Consultant
guarantees that, at the option of City, either: (1) the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects City, its elected
and appointed officials, officers, employees, agents, designated volunteers and
those City agents serving as independent contractors in the role of City officials;
or (2) Consultant shall procure a bond guaranteeing payment of losses and
related investigation costs, claims and administrative and defense expenses.
17.9. Waiver of Subrogation. Each insurance policy required by this
Agreement shall expressly waive the insurer's right of subrogation against City
and its elected and appointed officials, officers, employees, agents, designated
volunteers and those City agents serving as independent contractors in the role
of City officials. Consultant hereby waives all rights of subrogation against City.
17.10. City Remedy for Noncompliance. If Consultant does not maintain
the policies of insurance required under this Section in full force and effect during
the term of this Agreement, or in the event any of Consultant's policies do not
comply with the requirements under this Section, City may either immediately
terminate this Agreement or, if insurance is available at a reasonable cost, City
may, but has no duty to, take out the necessary insurance and pay, at
Consultant's expense, the premium thereon. Consultant shall promptly reimburse
City for any premium paid by City or City may withhold amounts sufficient to pay
the premiums from payments due to Consultant.
17.11. Evidence of Insurance. Prior to the performance of Services under
this Agreement, Consultant shall furnish City with original certificates of
insurance and all original endorsements evidencing and effecting the coverages
required under this Section on forms satisfactory to and approved by City. The
certificates and endorsements for each insurance policy shall be signed by a
person authorized by that insurer to bind coverage on its behalf, and shall be on
forms provided by City if requested. Consultant may provide complete, certified
copies of all required insurance policies to City. Consultant shall maintain current
endorsements on file with City's Risk Manager. All certificates and endorsements
shall be received and approved by the City before work commences. City
reserves the right to require complete, certified copies of all required insurance
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policies, at any time. Consultant shall also provide proof to City that insurance
policies expiring. during the term of this Agreement have been renewed or
replaced with other policies providing at least the same coverage. Consultant
shall furnish such proof at least two weeks prior to the expiration of the
coverages.
17.12. Indemnity Requirements Not Limiting. Procurement of insurance by
Consultant shall not be construed as a limitation of Consultant's liability or as full
performance of Consultant's duty to indemnify City under Section 18.0.
17.13. Broader Coverage/Higher Limits. If Consultant maintains broader
coverage and/or higher limits than the minimums required above, City requires
and shall be entitled to the broader coverage and/or the higher limits maintained
by Consultant. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to City.
17.14. Subcontractor Insurance Requirements. Consultant shall require
each of its subcontractors that perform Services under this Agreement to
maintain insurance coverage that meets all of the requirements of this Section.
18.0 Indemnification, Hold Harmless, and Duty to Defend
18.1. Consultant's Duty.
18.1.1. To the fullest extent permitted by law, Consultant. shall, at its
sole cost and expense, protect, defend, hold harmless and indemnify City and its
elected and appointed officials, officers, attorneys, agents, employees,
designated volunteers, successors, assigns and those City agents serving as
independent contractors in the role of City officials (collectively "Indemnitees" in
this Section 18.0), from and against any and all damages, costs, expenses,
liabilities, claims, demands, causes of action, proceedings, judgments, penalties,
bid protests, stop notices, liens and losses or injury of any nature whatsoever, in
law or equity, to persons or property, including bodily injury, death, personal
injury, property damage, including but not limited to fees of accountants,
attorneys and other professionals, and all costs associated therewith, and the
payment of all consequential damages (collectively "Liabilities"), whether actual,
alleged or threatened, which arise out of, pertain to, or relate to any breach of
this Agreement and/or the negligent acts or omissions of Consultant, its officers,
agents, servants, employees, subcontractors, materialmen, suppliers, or
contractors, or their officers, agents, servants or employees (or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance
of this Agreement, including the Indemnitees' active or passive negligence,
except for Liabilities arising from the sole negligence or willful misconduct of the
Indemnitees, as determined by final arbitration or court decision or by the
agreement of the Parties. Consultant shall defend the Indemnitees in any action
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or actions filed in connection with any Liabilities with counsel of the Indemnitees'
choice, and shall pay all costs and expenses, including all attorneys' fees and
experts' costs actually incurred in connection with such defense. Consultant shall
reimburse the Indemnitees for any and all legal expenses and costs incurred by
the Indemnitees in connection therewith.
18.1.2. Consultant shall indemnify and hold harmless City in
accordance with Sections 9.0 and 10.0.
18.2. Subcontractor Indemnification. Consultant shall obtain executed
indemnity agreements with provisions identical to those in this Section 18.0 from
each and every subcontractor or any other person or entity involved by, for, with
or on behalf of Consultant in the performance of this Agreement. If Consultant
fails to obtain such indemnities, Consultant shall be fully responsible and
indemnify, hold harmless and defend the Indemnitees from and against any and
all Liabilities in law or equity, whether actual, alleged or threatened, which arise
out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of
Consultant's subcontractor, its officers, agents, servants, employees,
subcontractors, matetialmen, contractors or their officers, agents, servants or
employees (or any entity or individual that Consultant's subcontractor shall bear
the legal liability thereof) in the performance of this Agreement, including the
Indemnitees' active or passive negligence, except for Liabilities arising from the
sole negligence or willful misconduct of the Indemnitees, as determined. by final
arbitration or court decision or by the agreement of the Parties.
18.3. Workers' Compensation Acts Not Limiting. Consultant's
indemnification obligations under this Section, or any other provision of this
Agreement, shall not be limited by the provisions of any workers' compensation
act or similar act. Consultant expressly waives its statutory immunity under such
statutes or laws as to City, its elected and appointed officers, officials, agents,
employees, designated volunteers and those City agents serving as independent
contractors in the role of City officials.
18.4. Insurance Requirements Not Limiting. City does not, and shall not,
waive any rights that it may possess against Consultant because of the
acceptance by City, or the deposit with City, of any insurance policy or certificate
required pursuant to this Agreement. The indemnities and obligations in this
Section shall apply regardless of whether or not any insurance policies are
determined to be applicable to the Liabilities asserted against City or any of the
other Indemnitees.
18.5. Survival of Terms. Consultant's indemnifications and obligations
under this Section 18.0 shall survive the termination and/or expiration of this
Agreement for a period not to exceed 12 months..
19.0 Non -Discrimination and Equal Opportunity
14 of 20
Consultant affirmatively represents that it is an equal opportunity employer.
Consultant shall not discriminate against any subcontractor, employee, or
applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex, gender, sexual orientation, gender identity, gender
expression, marital status, national origin, ancestry, age, physical disability,
mental disability, medical condition, genetic information, or any other basis
prohibited by law. Consultant will take affirmative action to ensure that
subcontractors and applicants are employed, and that employees are treated
during employment, without regard to their race, color, religious creed, sex,
gender, gender identity, gender expression, marital status, national origin,
ancestry, age, physical disability, mental disability, medical condition, genetic
information or sexual orientation, or any other basis prohibited by law..
20.0 Labor Certification
By its signature hereunder, Consultant certifies that it is aware of the provisions
of Section 3700 of the California Labor Code that 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 agrees to comply with such
provisions before commencing the performance of the Services.
21.0 Entire Agreement
This Agreement contains the entire agreement of the parties with respect to the
subject matter hereof, and supersedes all prior negotiations, understandings, or
agreements. This Agreement may only be modified by a writing signed by both
parties.
22.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not
void or affect the validity of the other provisions of this Agreement.
23.0 Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws
of the State of California, except that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied in
interpreting this Agreement. If any action is brought to enforce or interpret this
Agreement, or arises out of or relates to this Agreement, the action shall be
brought in a state or federal court situated in the County of Orange, State of
California.
15 of 20
24.0 \No Third Party Beneficiaries
This Agreement is made solely for the benefit of the Parties to this Agreement
and their respective successors and assigns, and no other person or entity shall
be deemed to have any rights hereunder against either Party by virtue of this
Agreement.
26.0 Waiver
No delay or omission to exercise any right, power or remedy accruing to City
under this Agreement shall impair any right, power or remedy of City, nor shall it
be construed as a waiver of, or consent to, any breach or default. No waiver of
any breach, any failure of a condition, or any right or remedy under this
Agreement shall be (1) effective unless it is in writing and signed by the Party
making the waiver, (2) deemed to be a waiver of, or consent to, any other
breach, failure of a condition, or right or remedy, or (3) deemed to constitute a
continuing waiver unless the writing expressly so states.
26.0 Prohibited Interests; Conflict of Interest
26.1. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the Services, or
which would conflict in any' manner with the performance of the Services.
Consultant further covenants that, in performance of this Agreement, no person
having any such interest shall be employed by it. Furthermore, Consultant shall
avoid the appearance of having any interest, which would conflict in any manner
with the performance of the Services. Consultant shall not accept any
employment or representation during the term of this Agreement which is or may
likely make Consultant "financially interested" (as provided in California
Government Code §§1090 and 87100) in any decision made by City on any
matter in connection with which Consultant has been retained.
26.2. Consultant further warrants and maintains that it has not employed
or retained any person or entity, other than a bona fide employee working
exclusively for Consultant, to solicit or obtain this Agreement. Nor has
Consultant paid or agreed to pay any person or entity, other than a bona. fide
employee working exclusively for Consultant, any fee, commission, gift,
percentage, or any other consideration contingent upon the execution of this
Agreement. Upon any breach or violation of this warranty, City shall have the
right, at its sole and absolute discretion, to terminate this Agreement without
further liability, or to deduct from any sums payable to Consultant hereunder the
full amount or value of any such fee, commission, percentage or gift.
26.3. Consultant warrants and maintains that it has no knowledge that
any officer or employee of City has any interest, whether contractual, non -
contractual, financial, proprietary, or otherwise, in this transaction or in the
16 of 20
business of Consultant, and that if any such interest comes to the knowledge of
Consultant at any time during the term of this Agreement, Consultant shall
immediately make a complete, written disclosure of such interest to City, even if
such interest would not be deemed a prohibited "conflict of interest" under
applicable laws as described in this subsection.
27.0 Final Payment Acceptance Constitutes Release
The acceptance by Consultant of the final payment made under this Agreement
shall operate as and be a release of City from all claims and liabilities for
compensation to Consultant for anything done, furnished or relating to
Consultant's work or services. Acceptance of payment shall be any negotiation of
City's check or the failure to make a written extra compensation claim within ten
calendar days of the receipt of that check. However, approval or payment by City
shall not constitute, nor be deemed, a release of the responsibility and liability of
Consultant, its employee's, subcontractors and agents for the accuracy and
competency of the information provided and/or work performed; nor shall such
approval or payment be deemed to be an assumption of such responsibility or
liability by City for any defect or error in the work prepared by Consultant, its
employees, subcontractors and/or agents.
28.0 Corrections
In addition to the indemnification obligations set forth above, Consultant shall
correct, at its expense, all errors in the work which may be disclosed during City's
review of Consultant's report or plans. Should Consultant fail to make such
correction in a reasonably timely manner, such correction may be made by City,
and the cost thereof shall be charged to Consultant. In addition to all other
available remedies, City may deduct the cost of such correction from any
retention amount held by City or may withhold payment otherwise owed
Consultant under this Agreement up to the amount of the cost of correction.
29.0 Non -Appropriation of Funds
Payments to be made to Consultant by City for any Services performed within
the current fiscal year are within the current fiscal budget and within an available,
unexhausted fund. In the event that City does not appropriate sufficient funds for
payment of -Consultant's Services beyond the current fiscal year, this Agreement
shall cover payment for Consultant's Services only to the conclusion of the last
fiscal year in which City appropriates sufficient funds and shall automatically
terminate at the conclusion of such fiscal year.
30.0 Mutual Cooperation
30.1. City's Cooperation. City shall provide Consultant with all pertinent
Data, documents and other requested information as is reasonably available for
Consultant's proper performance of the Services required under this Agreement.
17 of 20
30.2. Consultant's Cooperation. In the event any claim or action is
brought against City relating to Consultant's performance of Services rendered
under this Agreement, Consultant shall render any reasonable assistance that
City requires.
31.0 Time of the Essence
Time is of the essence in respect to all provisions of this Agreement that specify
a time for performance; provided, however, that the foregoing 'shall not be
construed to limit or deprive a Party of the benefits_.of any grace or use period
allowed in this Agreement. j:
32.0 Attorneys' Fees
If either Party commences an action against the other party, either legal,
administrative or otherwise, arising out of or in connection with this Agreement,
the prevailing party in such litigation shall be entitled to have and recover from
the losing party all of its attorneys' fees and other costs incurred in connection
therewith.
33.0 Exhibits
All exhibits referenced in this Agreement are hereby incorporated into the
Agreement as if set forth in full herein. In the event of any material discrepancy
between the terms of any exhibit so incorporated and the terms of this
Agreement, the terms of this Agreement shall control.
34.0 Corporate Authority
The person executing this Agreement on behalf of Consultant warrants that he or
she is duly authorized to execute this Agreement on behalf of said Party and that
by his or her execution, the Consultant is formally bound to the provisions of this
Agreement.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized
representatives have executed this Agreement as of the date and year first
above written.
18 of 20
CITY OF SEAL BEACH
0
Attest:
Gloria Harper,
Approved as to
Ao-
raig A. Steele, City Attorney
S7296-000112624660v2.doc
CONSULTANT
By: -�
Name: Laith Ezzet
Its:
Senior Vice President
EXHIBIT A
CONSULTANT'S PROPOSAL DATED OCTOBER 29, 2021
(Acta
t�
.,.
20 of 20
S7296-0001 \2624660v2.doc
CITY OF SEAL BEACH
_• •��57�5®; W(Colla , ffilk, 112
SCOPE OF WORK AND FEE. ESTIMATE FOR
SOLID WASTE SB 1383 CONTRACTING ASSISTANCE
Scope of Work
Task 1. Prepare for and Conduct Kickoff Meeting with City Staff to Finalize
Updated Negotiation Strategy
HF&H staff will prepare for and facilitate a virtual kick-off meeting with City staff to confirm the
contracting objectives and project schedule, and confirm the approach to the contract
negotiations. The result of the meeting will be a document confirming the contracting strategy
and project schedule.
Task 2: Develop List of Contract Service Enhancements
HF&H staff will prepare a document that will identify the City's desired contract terms and
service enhancements based on discussions with City staff following our analysis of the City's
existing contract.
Task 3: Negotiations to Confirm Services, Terms and Conditions
We will meet with the Republic to review the City's list of requested contract and service
enhancements. Republic and the City can then negotiate rates that are consistent with the
City's desired terms and conditions. The result of the initial meeting with the hauler will likely
be a series of points that they wish to address and proposed rates that may or may not be
satisfactory. HF&H will then assist in negotiating reasonable rates. We will also work with City
staff to guide the City through its determination of which service provider concerns are minor
and which are valuable enough not to negotiate without a substantial offsetting gain for the
City.
HF&H will assist the City by scheduling the necessary negotiation meetings and conference calls
with all relevant parties from the City and Republic, creating meeting documents, and drafting
meeting notes based on the discussions.
Task 4: Review and Analyze Proposed Rate Impacts
We will request Republic to provide supporting cost and operating assumptions related to any
of the requested services or contract requirements that the contractor believes may increase
their costs. We will review this information for overall reasonableness based on our industry
knowledge, and review the contractor's supporting information to confirm the reasonableness
of any requested adjustments to the current rates.
October 29, 2021 1 HF&H Consultants, LLC
City of Seal Beach Scope of Work and Fee Estimate
SB 1383 Contracting Assistance
Task 5: Develop Undated Agreement
Based on the discussions and direction provided by City staff described above, we will prepare
an updated draft franchise agreement for the desired services and contract terms. City staff,
including the City Attorney, will subsequently review the draft document, and the City will be
responsible for consolidating comments from the City's various reviewers into a single "redline"
of the draft work product, which we will then use to prepare an updated draft work product.
We will update the draft agreement to reflect the negotiated terms with Republic. After the
negotiations are complete, City staff will be responsible for` finalizing the format of the
agreement consistent with City standards and obtaining signatures, bonds, and endorsements.
Task 6: Prepare for and Attend One City Council Meeting
We have budgeted to attend one meeting of the City Council when the Council considers the
new agreement for award.
October 29, 2021 2 HF&H Consultants, LLC
City of Seal Beach Scope of Work and Fee Estimate
SB 1383 Contracting Assistance
Cost
The cost for the SB 1383 Contract Negotiations is estimated to be $75,000. Please see the
attached workplan for the detailed breakdown. Our actual costs may be higher or lower than
this amount, depending on the level of support requested, and we will notify you in writing if a
budget amendment is required. The cost estimate assumes that all contract negotiations and
other meetings are conducted virtually. We will bill you once per month based on the number
of hours worked, multiplied by our hourly billing rates, plus out-of-pocket expenses incurred.
Payment is due within 30 days. Hourly rates through December 31st, 2022, are as follows and
will be adjusted each January 1st by 2.5%:
Position
Senior Vice President
Senior Manager
Senior Associate/Project Manager
Associate Analyst
Assistant Analyst
Administrative Staff
Expenses will be billed as follows:
Automobile Travel
Outside document reproduction/couriers/postage
Public conveyances and parking
All other out-of-pocket expenses
Schedule
Rate
$305
$285
$189 to $259
$169 to $185
$145 to $165
$99 to $129
Prevailing IRS Mileage Rate
Actual
Actual
Actual
We will commence the project after January 1, 2022. The goal is to complete the negotiations
within one year of project initiation, assuming that timely agreement on proposed rates and
services can be reached with the waste hauler.
October 29, 2021 3 HF&H Consultants, LLC
CITY OF SEAL BEACH
HF&H Workplan for SB 1383 Contracting Assistance
(1) Hours may be shifted among tasks.
10/29/2021 4 HF&H Consultants, LLC
'-, ®
A`� o CERTIFICATE OF LIABILITY INSURANCE
DATE (MMIDD/YYYY)
08/31/2021
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to
the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).
PRODUCER
Newfront Insurance Services, LLC
55 2nd Street
Floor 18
San Francisco CA 94105
CONTACT Jessica Thai
NAME:
P"CAIC.NENo, E,I. (415) 754-3635 FAX No):
E-MAIL
ADDRESS: jessica.thai@newfront.com
INSURERS AFFORDING COVERAGE NAIC #
INSURERA: Citizens Ins Co of America 31534
INSURED
HF&H Consultants, LLC
201 N Civic Dr Ste 230
Walnut Creek CA 94596
INSURERS: Hartford Casualty Ins CO 29424
INSURERC: Gemini Insurance Company 10833
INSURERD: Hudson Excess Insurance CO 14484
INSURER E:
INSURER F:
rnVl:Qer.1=c rFRTIFIrATF NIIMRFR! REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSRITR
TYPE OF INSURANCE
ADDLSUBR
AUTHORIZED REPRESENTATIVE
POLICY NUMBER
POLICY EFF
MM/DPOLID EXP
LIMITS
X COMMERCIALGENERALLIABIUTY
EACH OCCURRENCE $ 2,000,000
CLAIMS -MADE FRI OCCUR
DAMAGE
PREMISESEa occu ante $ 1,000,000
MED EXP (Any one person) $ 10,000
PERSONAL & ADV INJURY $ 2,000,000
A
X
OBF-D681476-04
09/06/2021
09/06/2022
GEN'L AGGREGATE LIMIT APPLIES PER:
GENERALAGGREGATE $ 4,000,000
PRODUCTS - COMP/OP AGG $ 3,000,000
X POLICY PRO LOC
J ECT
$
OTHER:
AUTOMOBILE LIABILITY
SINGLE $ 1,000,000
COMBEaIaccidentd.nII
BODILY INJURY (Per person) $
ANY AUTO
BODILY INJURY (Per accident) $
A
ALL OWNEDSCHEDULED
AUTOS AUTOS NON -OWNED
X HIRED AUTOS X AUTOS
OBF-D681476-04
09/06/2021
09/06/2022
PROPS 7 DAMAGE
Per acc $ident
$
X
UMBRELLA LIAB
X
OCCUR
EACH OCCURRENCE $ 3,000,000
AGGREGATE $ 3,000,000
A
EXCESS LIAB
CLAIMS -MADE
OBF-D681476-04
09/06/2021
09/06/2022
DED I I RETENTION $
$
B
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY YIN
ANYPROPRIETORIPARTNER/EXECUTIVE
OFFICERIMEMBEREXCLUDED?
(Mandatory In NH)
NIA
57WECZR5765
09/06/2021
09/06/2022
ER
X STATUTE ER
E.L. EACH ACCIDENT $ 1,000,000
E.L. DISEASE -EA EMPLOYEE $ 1,000,000
E.L. DISEASE - POLICY LIMIT S
If yes, describe under1,000,000
DESCRIPTION OF OPERATIONS below
C
Errors and Omissions
Claims -made
VNPL008121
09/06/2021
09/06/2022
Each claim: $2,000,000
General aggregate: $2,000,000
Deductible: $10,000
DESCRIPTION OF OPERATIONS / LOCATIONS /VEHICLES (ACORD 101, Additional Remarks Schedule, maybe attached if more space is required)
Insured D: Cyber. Policy Number: CYB-3015118-00. Effective date: (03/31/2021-09/06/2022). Each Claim: $1,000,000.
City of Seal Beach is included as an additional insured as required by a written contract with respect to General Liability.
f�CI�T�G�f�I�TC uru MCM rANrFI 1 ATInN
U 3W5tf-LU74 ACUKU t.UKrUr-AI IUIY. lilt r1CyMb re5mt veu.
ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
City of Seal Beach; Patrick Gallegos
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
Assistant City Manager
AUTHORIZED REPRESENTATIVE
211 Eighth Street
^1Q��
Seal Beach CA 90740
U 3W5tf-LU74 ACUKU t.UKrUr-AI IUIY. lilt r1CyMb re5mt veu.
ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD
i
POLICY NUMBER: OBF-D681476-04
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BUSINESSOWNERS LIABILITY SPECIAL BROADENING ENDORSEMENT
This endorsement modifies insurance provided under the following:
BUSINESSOWNERS COVERAGE FORM
SUMMARY OF COVERAGES
Limits
Page
1. Additional Insured by Contract, Agreement or Permit
Included
1
2. Additional Insured - Broad Form Vendors
Included
2
3. Alienated Premises
Included
I 3
4. Broad Form Property Damage - Borrowed Equipment, Customers
Goods and Use of Elevators
Included
3
5. Incidental Malpractice (Employed Nurses, EMT's and Paramedics)
Included
I 3
6. Personal and Advertising Injury - Broad Form
Included
4
7. Product Recall Expense
Included
4
Product Recall Expense Each Occurrence Limit
$25,000
Occurrence
5
Product Recall Expense Aggregate Limit
$50,000 (
Aggregate
5
Product Recall Deductible
$500 I
5
8. Unintentional Failure to Disclose Hazards
Included
6
9. Unintentional Failure to Notify
Included
6
This endorsement amends coverages provided under the Businessowners Coverage Form through new
coverages and broader coverage grants. This coverage is subject to the provisions applicable to the
Businessowners Coverage Form, except as provided below.
The following changes are made to SECTION II -
LIABILITY:
1. Additional Insured by Contract, Agreement or
Permit
The following is added to SECTION 11 -
LIABILITY, C. Who Is An Insured:
Additional Insured by Contract, Agreement or
Permit
a. Any person or organization with' whom you
agreed in a written contract, written
agreement or permit to add such person or
organization as an additional insured on
your policy is an additional insured only with
respect to liability for "bodily injury",
"property damage", or "personal and
advertising injury" caused, in whole or in
part, by your acts or omissions, or the acts
or omissions of those acting on your behalf,
but only with respect to:
(1) "Your work" for the additional insured(s)
designated in the contract, agreement or
permit;
(2) Premises you own, rent, lease or
occupy; or
(3) Your maintenance, operation or use of
equipment leased to you.
b. The insurance afforded to such additional
insured described above:
(1) Only applies to the extent permitted by
law; and
(2) Will not be broader than the insurance
which you are required by the contract,
agreement or permit to provide for such
additional insured.
(3) Applies on a primary basis if that is
required by the written contract, written
agreement or permit.
(4) Will not be broader than coverage
provided to any other insured.
(5) Does not apply if the "bodily injury",
"property damage" or "personal and
advertising injury"is otherwise excluded
from coverage under this Coverage Part,
including any endorsements thereto.
391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 1 of 6
e
.11
. The
Hanover
Insurance Group -
013F D681476 5701751
c. This provision does not apply:
(1) Unless the written contract or written
agreement was executed or permit was
issued prior to the "bodily injury",
"property damage", or "personal injury
and advertising injury".
(2) To any person or organization included
as an insured by another endorsement
issued by us and made part of this
Coverage Part.
(3) To any lessor of equipment:
(a) After the equipment lease expires; or
(b) If the "bodily injury", "property
damage", "personal and advertising
injury" arises out of sole negligence
of the .lessor.
(4) To any:
(a) Owners or other interests from whom
land has been leased if the
"occurrence" takes place or the
offense is committed after the lease
for the land expires; or
(b) Managers or lessors of premises if:
(i) The "occurrence" takes place or
the offense is committed after
you cease to be a tenant in that
premises; or
,(ii) The "bodily injury", "property
damage", "personal injury" or
"advertising injury" arises out of
structural alterations, new
construction or demolition
operations performed by or on
behalf of the manager or lessor.
(5) To "bodily injury", "property damage" or
"personal and advertising injury" arising
out of the rendering of or the failure to
render any professional services.
This exclusion applies even if the claims
against any insured allege negligence or
other wrongdoing in the supervision,
hiring, employment, training or
monitoring of others by that insured, if
the "occurrence" which caused the
"bodily injury" or "property damage" or
the offense which caused the "personal
and advertising injury" involved the
rendering of or failure to render any
professional services by or for you.
d. With respect to the insurance afforded to
these additional insureds, the following is
added to SECTION 11 - LIABILITY, D. Liability
and Medical Expense Limits of Insurance:
The most we will pay on behalf of the
additional insured for a covered claim is the
lesser of the amount of insurance:
1. Required by the contract, agreement or
permit described in Paragraph a.; or
2. Available under the applicable Limits of
Insurance shown in the Declarations.
This endorsement shall not increase the
applicable Limits of Insurance shown in the
Declarations
e. All other insuring agreements, exclusions,
and conditions of the policy apply.
2. Additional Insured - Broad Form Vendors
The following is added to SECTION II -
LIABILITY, C. Who Is An Insured:
Additional Insured - Broad Form Vendors
a. Any person or organization that is a vendor
with whom you agreed in a written contract
or written agreement to include as an
additional insured under this Coverage Part
is an insured, but only with respect to liability
for "bodily injury" or "property damage"
arising out of "your products" which are
distributed or sold in the regular course of
the vendor's business.
b. The insurance afforded to such vendor
described above:
(1) Only applies to the extent permitted by
law;
(2) Will not be broader. than the insurance
which you are required by the contract or
agreement to provide for such vendor;
(3) Will not be broader than coverage
provided to any other insured; and
(4) Does not apply if the "bodily injury",
"property damage" or "personal and
advertising injury" is otherwise excluded
from coverage under this Coverage Part,
including any endorsements thereto
c. With respect to insurance afforded to such
vendors, the following additional exclusions
apply:
The insurance afforded to the vendor does
not apply to:
(1) "Bodily injury" or "property damage" for
which the vendor is obligated to pay
damages by reasons of the assumption of
liability in a contract or agreement. This
exclusion does not apply to liability for
damages that the insured would have in
the absence of the contract or
agreement;
(2) Any express warranty unauthorized by
you;
391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 2 of 6
iL
(3) Any physical or chemical change in the
product made intentionally by the
vendor;
(4) Repackaging, unless unpacked solely for
the purpose of inspection,
demonstration, testing, or the
substitution of parts under instruction
from the manufacturer, and then
repackaged in the original container;
(5) Any failure to make such inspection,
adjustments, tests or servicing as the
vendor has agreed to make or normally
undertakes to make in the usual course
of business in connection with the sale
of the product;
(6) Demonstration, installation, servicing or
repair operations, except such
operations performed at the vendor's
premises in connection with the sale of
the product;
(7) Products which, after distribution or sale
by you, have been labeled or relabeled
or used as a container, part or
ingredient of any other thing or
substance by or for the vendor;
(8) "Bodily injury" or "property damage"
arising out of the sole negligence of the
vendor for its own acts or omissions or
those of its employees or anyone else
acting on its behalf. However, this
exclusion does not apply to:
(a) The exceptions contained within the
exclusion in subparagraphs (4) or (6)
above; or
(b) Such inspections, adjustments, tests
or servicing as the vendor has,
agreed to make or normally
undertakes to make in the usual
course of business, in connection
with the distribution or sale of the
products.
(9) "Bodily injury" or "property damage"
arising out of an "occurrence" that took
place before you have signed the
contract or agreement with the vendor.
(10)To any person or organization included
as an insured by another endorsement
issued by us and made part of this
Coverage Part.
(11)Any insured person or organization,
from whom you have acquired such
products, or any ingredient, part or
container, entering into, accompanying
or containing such products.
d. With respect to the insurance afforded to
these vendors, the following is added to
SECTION 11 - LIABILITY, D. Liability and
Medical Expense Limits of Insurance:
The most we will pay on behalf of the vendor
for a covered claim is the lesser of the
amount of insurance:
1. Required by the contract or agreement
described in Paragraph a.; or
2. Available under the applicable Limits of
Insurance shown in the Declarations;
This endorsement shall not increase the
applicable Limits of Insurance shown in the
Declarations.
3. Alienated Premises
SECTION 11 - LIABILITY, B. Exclusions, 1.
Applicable To Business Liability Coverage k.
Damage to Property, paragraph (2) is replaced by
the following:
(2) Premises you sell, give away or abandon, if
the "property damage" arises out of any part
of those premises and occurred from hazards
that were known by you, or should have
reasonably been known by you, at the time
the property was transferred or abandoned.
4. Broad Form Property Damage - Borrowed
Equipment, Customers Goods, Use of Elevators
a. The following is added to SECTION II -
LIABILITY, B. Exclusions, 1. Applicable To
Business Liability Coverage, k. Damage to
Property:
Paragraph (4) does not apply to "property
damage" to borrowed equipment while at a
jobsite and not being used to perform
operations.
Paragraph (3), (4) and (6) do not apply to
"property damage" to "customers goods"
while on your premises nor to the use of
elevators.
b. For the purposes of thisendorsement, the
following definition is added to SECTION II -
LIABILITY, F. Liability and Medical Expenses
Definitions:
1. "Customers goods" means property of
your customer on your premises for the
purpose of being:
a. Worked on; or
b. Used in your manufacturing process.
c. The insurance afforded under this provision is
excess over any other valid and collectible
property insurance (including deductible)
available to the insured whether primary,
excess, contingent or on any other basis.
5. Incidental Malpractice - Employed Nurses, EMT's
and Paramedics
SECTION 11- LIABILITY, C. Who Is An Insured,
paragraph 2.a.(1)(d) does not apply to a nurse,
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emergency medical technician or paramedic
o. Recall of Products, Work or Impaired
employed by you if you are not engaged in the
Property is replaced by the following:
business or occupation of providing medical,
o. Recall of Products, Work or Impaired
paramedical, surgical, dental, x-ray or nursing
Property
services.
6. Personal Injury - Broad Form
Damages claimed for any loss, cost or
expense incurred by you or others for
a. SECTION 11 - LIABILITY, B. Exclusions, 2.
the loss of use, withdrawal, recall,
Additional Exclusions Applicable only to
inspection, repair, replacement,
"Personal and Advertising Injury", paragraph
adjustment, removal or disposal of:
e. is deleted.
(1) "Your product';
b. SECTION II - LIABILITY, F. Liability and
"Personal
(2) "Your work"; or
Medical Expenses Definitions, 14.
and advertising injury", paragraph b. is
(3) "Impaired property";
replaced by the following:
If such product, work or property is
b. Malicious prosecution or abuse of
withdrawn or recalled from the market or
process.
from use by any person or organization
c. The following is added to SECTION 11 -
because of a known or suspected defect,
deficiency, inadequacy or dangerous
LIABILITY, F. Liability and Medical Expenses
condition in it, but this exclusion does
Definitions, Definition 14. "Personal and
not "product to e
advertising injury":
ncurforhe "coveredexpenses"
that youl�i
of
"Discrimination" (unless insurance thereof is
"your product".
prohibited by law) that results in injury to the
However, the exception to the exclusion
feelings or reputation of a natural person,
"discrimination"
does not apply to "product recall
but only if such is:
expenses" resulting from:
(1) Not done intentionally by or at the
(4) Failure of any products to accomplish
direction of:
their intended purpose;
(a) The insured;
(5) Breach of warranties of fitness,
(b) Any officer of the corporation,
quality, durability or performance;
director, stockholder, partner or
(6) Loss of customer approval, or any
member of the insured; -and
cost incurred to regain customer
(2) Not directly or indirectly related to an
approval;
"employee", not to the employment,
(7) Redistribution or replacement of
prospective employment or termination
"your product" which has been
of any person or persons by an insured.
recalled by like products or
d. For purposes of this endorsement, the
substitutes;
following definition is added to SECTION 11 -
(8) Caprice or whim of the insured;
LIABILITY, F. Liability and Medical Expenses
Definitions:
(9) A condition likely to cause loss of
1. "Discrimination" means the unlawful
which any insured knew or had
reason to know at the inception of
treatment of individuals based upon race,
this insurance;
color, ethnic origin, gender, religion, age,
or sexual preference. "Discrimination"
(10)Asbestos, including loss, damage or
does not include the unlawful treatment
clean up resulting from asbestos or
of individuals based upon developmental,
asbestos containing materials; or
physical, cognitive, mental, sensory or
(11)Recall of "your products" that have
emotional impairment or any
no known .or suspected defect solely
combination of these.
because a known or suspected
e. This coverage does notapply if liability
defect in another of "your products"
coverage for "personal and advertising
has been found.
injury" is excluded either by the provisions of
b. The following is added to SECTION 11 -
the Coverage Form or any endorsement
LIABILITY, C. Who Is An Insured, paragraph
thereto.
3.b.:
7. Product Recall Expense
"Product recall expense" arising out of any
a. SECTION II - LIABILITY, B. Exclusions, 1.
withdrawal or recall that occurred before you
Applicable To Business Liability Coverage,
acquired or formed the organization.
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c. The following is added to SECTION 11 -
LIABILITY, D. Liability and Medical Expenses
Limits of Insurance:
Product Recall Expense Limits of Insurance
a. The Limits of Insurance shown in the
SUMMARY OF COVERAGES of this
endorsement and the rules stated below
fix the most that we will pay under this
Product Recall Expense Coverage
regardless of the number of:
(1) Insureds;
(2) "Covered Recalls" initiated; or
(3) Number of "your products"
withdrawn.
b. The Product Recall Expense Aggregate d.
Limit is the most that we will reimburse
you for the sum of all "product recall
expenses" incurred for all "covered
recalls" initiated during the policy period.
c. The Product Recall Each Occurrence
Limit is the most we will pay in
connection with any one defect or
deficiency.
d. All "product recall expenses" in
connection with substantially the same
general harmful condition will be
deemed to arise out of the same defect
or deficiency and considered one
"occurrence".
e. Any amount reimbursed for "product
recall expenses" in connection with any
one 'occurrence" will reduce the amount
of the Product Recall Expense Aggregate
Limit available for reimbursement of
"product recall expenses" in connection
with any other defect or deficiency.
f. If the Product Recall Expense Aggregate
Limit has been reduced by
reimbursement of "product recall
expenses" to an amount that is less than
the Product Recall Expense Each
Occurrence Limit, the remaining
Aggregate Limit is the most that will be
available for reimbursement of "product
recall expenses" in connection with any
other defect or deficiency.
g. Product Recall Deductible
We will only pay for the amount of
"product recall expenses" which are in
excess of the $500 Product Recall
Deductible. The Product Recall
Deductible applies separately to each
"covered recall". The limits of insurance
will not be reduced by the amount of this
deductible.
We may, or will if required by law, pay all
or any part of any deductible amount, if
applicable. Upon notice of our payment
of a deductible amount, you shall
promptly reimburse us for the part of the
deductible amount we paid.
The Product Recall Expense Limits of
Insurance apply separately to each
consecutive annual period and to any
remaining period of less than 12 months,
starting with the beginning ofthe policy
period shown in the Declarations, unless the
policy period is extended after issuance for
an additional period of less than 12 months.
In that case, the additional period will be
deemed part of the last preceding period for
the purposes of determining the Limits of
Insurance.
The following is added to SECTION II -
LIABILITY, E. Liability and Medical Expense
General Conditions, 2. Duties in the Event of
Occurrence, Offense, Claim or Suit:
You must see to it that the following are
done in the event of an actual or anticipated
"covered recall" that may result in "product
recall expense":
(1) Give us prompt notice of any discovery
or notification that "your product" must
be withdrawn or recalled. Include a
description of "your product' and the
reason for the withdrawal or recall;
(2) Cease any further release, shipment,
consignment or any other method of
distribution of like or similar products
until it has been determined that all
such products are free from defects that
could be a cause of loss under this
insurance.
e. For the purposs of this endorsement, the
following definitions are added to SECTION
II - LIABILITY, F. Liability and Medical
Expenses Definitions:
1. "Covered recall" means a recall made
necessary because you or a government
body has determined that a known or
suspected defect, deficiency,
inadequacy, or dangerous condition in
"your product" has resulted or will result
in "bodily injury" or "property damage".
2. "Product recall expense(s)" means:
a. Necessary and reasonable expenses
for:
(1) Communications, including radio
or television announcements or
printed advertisements including
stationary, envelopes and
postage;
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(2) Shipping the recalled products
from any purchaser, distributor or
user to the place or places
designated by you;
(3) Remuneration paid to your
regular "employees" for
necessary overtime;
(4) Hiring additional persons, other
than your regular "employees";
(5) Expenses incurred by "employees"
including transportation and
accommodations;
(1) If the "products - completed operations
hazard" is excluded from coverage under
this Coverage Part including any
endorsement thereto; or
(2) To "product recall expense" arising out of
any of "your products" that are otherwise
excluded from coverage under this
Coverage Part including endorsements
thereto.
8. Unintentional Failure to Disclose Hazards
(6) Expenses to rent additional
warehouse or storage space;
(7) Disposal of "your product", but
only to the extent that specific
methods of destruction other than
those employed for trash
discarding or disposal are 9.
required to avoid "bodily injury"
or "property damage" as a result
of such disposal,
you incur exclusively for the purpose
of recalling "your product"; and
b. Your lost profit resulting from such
"covered recall".
f. This Product Recall Expense Coverage does
not apply:
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The following is added to SECTION II -
LIABILITY, E. Liability and Medical Expenses
General Conditions:
Representations
We will not disclaim coverage under this
Coverage Part if you fail to disclose all hazards
existing as of the inception date of the policy
provided such failure is not intentional.
Unintentional Failure to Notify
The following is added to SECTION II -
LIABILITY, E. Liability and Medical Expenses
General Conditions, 2. Duties in the Event of
Occurrence, Offense, Claim or Suit:
Your rights afforded under this Coverage Part
shall not be prejudiced if you fail to give us
notice of an 'occurrence", offense, claim or "suit",
solely due to your reasonable and documented
belief that the "bodily injury", "property damage"
or "personal and advertising injury" is not
covered under this Policy.
ALL OTHER TERMS, CONDITIONS, AND EXCLUSIONS REMAIN UNCHANGED.
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