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HomeMy WebLinkAboutAGMT - HF&H Consultants LLC (Consulting for SB 1383 Implementation and Contracting Assistance with the City's Waste Hauler PROFESSIONAL SERVICES AGREEMENT Between % SEAL E�,,� V *,pRPORq j4,,P. _e�Ilitplow i*d o%*i io 5 Qi �.kr '',<.9 27 �°'_=��. 'h,% NTy,Ga_= City of Seal Beach 211 8th Street Seal Beach, CA 90740 & HF&H Consultants, LLC 2081 Business Center Drive, Ste 265 Irvine, CA 92612 949-251-8902 This Professional Service Agreement ("the Agreement") is made as of June 10, 2024 (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\1236808v1.doc RECITALS A. City desires certain professional services. B. Consultant represents that it is qualified and able to provide City with 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 services ("Services") 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. Consultant will not be compensated for any work performed not specified in the Scope of Services unless the City authorizes such work in advance and in writing. The City Manger 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 This term of this Agreement shall commence as of the Effective Date and shall continue for a term of 2-year unless previously terminated as provided by this Agreement. 3.0 Consultant's Compensation City will pay Consultant in accordance with the fee schedule set forth in Exhibit A for Services. Any additional work authorized by the City pursuant to Section 1.4 will be compensated in accordance with the fee schedule set forth in Exhibit A. 2 of 9 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 two years following the termination of this Agreement. 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 the City's representative for purposes of this Agreement. 6.2. Laith Ezzet is the Consultant's primary representative for purposes of this Agreement. 7.0 Notices 7.1. 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: 3 of 9 To City: City of Seal Beach 211 8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: HF&H Consultants, LLC 2081 Business Center Drive, Suite 265 Irvine, CA 92612 Attn: Laith Ezzet 7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 8.0 Independent Contractor 8.1. 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. Any additional personnel performing 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 shall 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 insurance. 8.2. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and 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. 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. 9.0 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. 4 of 9 10.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any purported assignment without such consent shall be void and without effect. 11.0 Insurance 11.1. 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. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the 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 the City if requested. All certificates and endorsements shall be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 11.2. Consultant shall, at its expense, procure and maintain 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. Insurance is to 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. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and, if required by the City, (3) Professional Liability. Consultant shall maintain limits no less than: (1) General Liability: $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; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Professional Liability: $1,000,000 per claim/aggregate. 11.3. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the 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 the City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, 5 of 9 employees, agents and volunteers, 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 the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its directors, officials, officers, employees, agents and volunteers 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; and (5) for automobile liability, that the City, its directors, officials, officers, employees, agents and volunteers 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. 11.4. 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 the City, its directors, officials, officers, employees, agents, and volunteers. 11.5. Any deductibles or self-insured retentions shall be declared to and approved by the City. Consultant guarantees that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 12.0 Indemnification, Hold Harmless, and Duty to Defend Consultant shall defend, indemnify, and hold the City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively "Indemnitees") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any negligent acts or omissions of Consultant, its employees, or its agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses, except for such loss or damage arising from the sole negligence or willful misconduct of the City. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in 6 of 9 enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its directors, officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement. 13.0 Equal Opportunity 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, sexual orientation, or age. Such non-discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 14.0 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. 15.0 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. 16.0 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. 17.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 18.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 7 of 9 19.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 20.0 Prohibited Interests; Conflict of Interest 20.1. 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. 20.2. 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. 20.3. 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 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. 21.0 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 8 of 9 the losing party all of its attorneys' fees and other costs incurred in connection therewith. 22.0 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. 23.0 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. CITY OF SEAL BEACH CONSULTANT • By: ' f ,aa, I / :y: W. Ingram, City Manager filrGf � g d � Name: Laith Ezzet Attest: Its: Senior Vice President By: Gloria ar , Ci Appr By: IVII:IIUIdS V. VI IIICIII, Vll�/ /1LLUIIicy 9 of 9 A ® DATE(MMIDD/YYYV) CERTIFICATE OF LIABILITY INSURANCE 09/05/2023 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(ies)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT y Ashle Mack NAME: Newfront Insurance Services,LLC PHONE 415 754-3635 FAX (A/C.No.Ezt1: ( ) (AX:.No): 450 Sansome Street E-PARE ashley.mack@newfront.com Suite 300 INSURER(8)AFFORDING COVERAGE NAIL/ San Francisco CA 94111 INSURER A: Citizens Insurance Company of America 31534 INSURED INSURER B: Hartford Casualty Insurance Company 29424 HF&H Consultants,LLC INSURERC: Gemini Insurance Company 10833 INSURER D: 590 Ygnacio Valley Rd.Suite 105 INSURERE: Walnut Creek CA 94596 INSURER F: COVERAGES CERTIFICATE NUMBER: 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. INSR TYPE OF INSURANCE ADDL SUBRJ POLICY EFF POLICY EXP LIABTS LTR INSD WVD POLICY NUMBER (MM /Y IDDYYY).(MMIDD/YYYY1 X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCEDAMAGE TO $ 2,000,000 CLAIMS-MADE 'X_J OCCUR PREMISES(EaENTED occurrence) $ 1,000,000 • MED EXP(Any one person) $ 10,000 A X OBF-D681476-06 09/06/2023 09/06/2024 PERSONAL S ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 4,000,000 X POLICY JECT LOC PRODUCTS-COMP/OP AGG $ 3,000,000 OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ INCLUDED (Ea accident) ANY AUTO BODILY INJURY(Per person) $ A OWNED SCHEDULED OBF-D681476-06 09/06/2023 09/06/2024 BODILY INJURY(Per accident) $ AUTOS ONLY AUTOS X HIRED V NON-OWNED PROPERTY DAMAGE AUTOS ONLY /� AUTOS ONLY (Per accident) $ X UMBRELLA UAB X OCCUR EACH OCCURRENCE $ 3,000,000 A ' EXCESS UAB CLAIMS-MADE OBF-D681476-06 09/06/2023 09/06/2024 AGGREGATE $ 3,000,000 DED RETENTION$ $ WORKERS COMPENSATION X PERTUTE OTH AND EMPLOYERS'LIABILITY - B OFFICER/MEMBER EXCLUDED?ECUTIVE ER YIN NIA 57 WEC ZR5765 09/06/2023 09/06/2024 E.L.EACH ACCIDENT $ 1,000,000 (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 H yes,desaibe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 Aggregate 2,000,000 Professional Liability C VNPL013999 09/06/2023 09/06/2024 Each Loss Ded 10,000 Each Claim 2,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached if more space is required) City of Seal Beach is included as an additional insured as required by a written contract with respect to General Liability. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Seal Beach ACCORDANCE WITH THE POLICY PROVISIONS. Patrick Gallegos,Assistant City Manager AUTHORIZED REPRESENTATIVE 211 Eighth Street Seal Beach CA 90740 ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: OBF-D681476-06 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 3 4. Broad Form Property Damage - Borrowed Equipment, Customers Included 3 Goods and Use of Elevators 5. Incidental Malpractice (Employed Nurses, EMT's and Paramedics) Included 3 6. Personal and Advertising Injury- Broad Form Included 4 7. Product Recall Expense Included 4 Product Recall Expense Each Occurrence Limit $25,000 5 Occurrence Product Recall Expense Aggregate Limit $50,000 5 Aggregate Product Recall Deductible $500 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 - (2) Premises you own, rent, lease or LIABILITY: occupy; or 1. Additional Insured by Contract, Agreement or (3) Your maintenance, operation or use of Permit equipment leased to you. The following is added to SECTION II - b. The insurance afforded to such additional LIABILITY, C.Who Is An Insured: insured described above: Additional Insured by Contract, Agreement or (1) Only applies to the extent permitted by Permit law; and a. Any person or organization with whom you (2) Will not be broader than the insurance agreed in a written contract, written which you are required by the contract, agreement or permit to add such person or agreement or permit to provide for such organization as an additional insured on additional insured. your policy is an additional insured only with (3) Applies on a primary basis if that is respect to liability for "bodily injury", "property damage", or "personal and agreement required the written contract, written advertising injury" caused, in whole or in or permit. part, by your acts or omissions, or the acts (4) Will not be broader than coverage or omissions of those acting on your behalf, provided to any other insured. but only with respect to: (5) Does not apply if the "bodily injury", (1) "Your work" for the additional insured(s) "property damage" or "personal and designated in the contract, agreement or advertising injury"is otherwise excluded permit; 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 Hanover Insurance Group_ OBF D681476 5701751 c. This provision does not apply: The most we will pay on behalf of the (1) Unless the written contract or written additional insured for a covered claim is the agreement was executed or permit was lesser of the amount of insurance: issued prior to the "bodily injury", 1. Required by the contract, agreement or "property damage", or "personal injury permit described in Paragraph a.; or and advertising injury". 2. Available under the applicable Limits of (2) To any person or organization included Insurance shown in the Declarations. as an insured by another endorsement This endorsement shall not increase the issued by us and made part of this applicable Limits of Insurance shown in the Coverage Part. Declarations (3) To any lessor of equipment: e. All other insuring agreements, exclusions, (a) After the equipment lease expires; or and conditions of the policy apply. (b) If the "bodily injury", "property 2. Additional Insured - Broad Form Vendors damage", "personal and advertising The following is added to SECTION II - injury" arises out of sole negligence LIABILITY, C.Who Is An Insured: of the lessor. (4) To any: Additional Insured -Broad Form Vendors Owners or other interests from whom a. Any person or organization that is a vendor (a) with whom you agreed in a written contract land has been leased if the or written agreement to include as an "occurrence" takes place or the additional insured under this Coverage Part offense is committed after the lease is an insured, but only with respect to liability for the land expires; or for "bodily injury" or "property damage" (b) Managers or lessors of premises if: arising out of "your products" which are (i) The "occurrence" takes place or distributed or sold in the regular course of the offense is committed after the vendor's business. you cease to be a tenant in that b. The insurance afforded to such vendor premises; or described above: (ii) The "bodily injury", "property (1) Only applies to the extent permitted by damage", "personal injury" or law; "advertising injury" arises out of (2) Will not be broader than the insurance structural alterations, new which you are required by the contract or construction or demolition agreement to provide for such vendor; operations performed by or on behalf of the manager or lessor. (3) Will not be broader than coverage (5) To "bodilyinjury", "property damage" or provided to any other insured; and 1 Y ' r i P g . Does not apply if the "bodilyinjury", "personal and advertising injury" arising (4) PP Y out of the rendering of or the failure to "property damage" or "personal and render any professional services. advertising injury" is otherwise excluded even if the claims from coverage under this Coverage Part, This exclusion appliesincluding any endorsements thereto against any insured allege negligence or other wrongdoing in the supervision, c. With respect to insurance afforded to such hiring, employment, training or vendors, the following additional exclusions monitoring of others by that insured, if apply: the "occurrence" which caused the The insurance afforded to the vendor does "bodily injury" or "property damage" or not apply to: the offense which caused the "personal (1) "Bodilyinjury" or "property dama e" for and advertising injury" involved the l Y . 9 rendering of or failure to render any which the vendor is obligated to pay professional services by or for you. damages by reasons of the assumption of liability in a contract or agreement. This d. With respect to the insurance afforded to exclusion does not apply to liability for these additional insureds, the following is damages that the insured would have in added to SECTION II - LIABILITY, D. Liability the absence of the contract or and Medical Expense Limits of Insurance: 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 (3) Any physical or chemical change in the The most we will pay on behalf of the vendor product made intentionally by the for a covered claim is the lesser of the vendor; amount of insurance: (4) Repackaging, unless unpacked solely for 1. Required by the contract or agreement the purpose of inspection, described in Paragraph a.; or demonstration, testing, or the 2. Available under the applicable Limits of substitution of parts under instruction Insurance shown in the Declarations; from the manufacturer, and then repackaged in the original container; This endorsement shall not increase the (5) Any failure to make such inspection, applicable Limits of Insurance shown in the adjustments, tests or servicing as the Declarations. vendor has agreed to make or normally 3. Alienated Premises undertakes to make in the usual course SECTION II - LIABILITY, B. Exclusions, 1. of business in connection with the sale Applicable To Business Liability Coverage k. of the product; Damage to Property, paragraph (2) is replaced by (6) Demonstration, installation, servicing or the following: repair operations, except such (2) Premises you sell, give away or abandon, if operations performed at the vendor's the "property damage" arises out of any part premises in connection with the sale of of those premises and occurred from hazards the product; that were known by you, or should have (7) Products which, after distribution or sale reasonably been known by you, at the time by you, have been labeled or relabeled the property was transferred or abandoned. or used as a container, part or 4. Broad Form Property Damage - Borrowed ingredient of any other thing or Equipment,Customers Goods, Use of Elevators substance by or for the vendor; a. The following is added to SECTION II - (8) "Bodily injury" or "property damage" LIABILITY, B. Exclusions, 1. Applicable To arising out of the sole negligence of the Business Liability Coverage, k. Damage to vendor for its own acts or omissions or Property: those of its employees or anyone else Paragraph (4) does not apply to "property acting on its behalf. However, this damage" to borrowed equipment while at a exclusion does not apply to: jobsite and not being used to perform (a) The exceptions contained within the operations. exclusion in subparagraphs (4) or (6)above; or (3), ( ) and ( ) apply Paragraph 4 6 do not a I to "property damage" to "customers goods" (b) Such inspections, adjustments, tests while on your premises nor to the use of or servicing as the vendor has elevators. agreed to make or normally b. For the purposes of this endorsement, the undertakes to make in the usual following definition is added to SECTION II - course of business, in connection with the distribution or sale of the LIABILITY, F. Liability and Medical Expenses products. Definitions: (9) "Bodily injury" or "property damage" 1. 'Customers goods" means property of arising out of an "occurrence" that took your customer on your premises for the place before you have signed the purpose of being: contract or agreement with the vendor. a. Worked on; or (10)To any person or organization included b. Used in your manufacturing process. as an insured by another endorsement c. The insurance afforded under this provision is issued by us and made part of this excess over any other valid and collectible Coverage Part. property insurance (including deductible) (11)Any insured person or organization, available to the insured whether primary, from whom you have acquired such excess, contingent or on any other basis. products, or any ingredient, part or container, entering into, accompanying 5. Incidental Malpractice - Employed Nurses, EMT's or containing such products. and Paramedics d. With respect to the insurance afforded to SECTION II - LIABILITY, C.Who Is An Insured, these vendors, the following is added to paragraph 2.a.(1)(d) does not apply to a nurse, SECTION II - LIABILITY, D. Liability and Medical Expense Limits of Insurance: 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc.,with its permission. Page 3 of 6 4r1P Hanover Insurance Group_ OBF D681476 5701751 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 II - 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 (2) "Your work"; or Medical Expenses Definitions, 14. "Personal 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 II - because of a known or suspected defect, LIABILITY, F. Liability and Medical Expenses coditi inadequacybuthior dangerous Definitions, Definition 14. "Personal and condition in it, but this exclusion does advertising injury": not apply to "product recall expenses" that you incur for the "covered recall" 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, does not apply to "product recall but only if such "discrimination" 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 II - (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 treatment of individuals based upon race, reason to know at the inception of 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 not apply 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 II - 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. 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 4 of 6 c. The following is added to SECTION II - of a deductible amount, you shall LIABILITY, D. Liability and Medical Expenses promptly reimburse us for the part of the Limits of Insurance: deductible amount we paid. Product Recall Expense Limits of Insurance The Product Recall Expense Limits of a. The Limits of Insurance shown in the Insurance apply separately to each SUMMARY OF COVERAGES of this consecutive annual period and to any endorsement and the rules stated below remaining period of less than 12 months, fix the most that we will pay under this starting with the beginning of the policy Product Recall Expense Coverage period shown in the Declarations, unless the regardless of the number of: policy period is extended after issuance for an additional period of less than 12 months. (1) Insureds; In that case, the additional period will be (2) "Covered Recalls" initiated; or deemed part of the last preceding period for Number of " our products" the purposes of determining the Limits of (3) y Insurance. withdrawn. b. The Product Recall ExpenseAggregate d. The following is added to SECTION II - LIABILITY, E. Liability and Medical Expense Limit is the most that we will reimburse General Conditions, 2. Duties in the Event of you for the sum of all "product recall Occurrence, Offense, Claim or Suit: expenses" incurred for all "covered recalls" initiated during the policy period. You must see to it that the following are done in the event of an actual or anticipated c. The Product Recall Each Occurrence "covered recall" that may result in "product Limit is the most we will pay in recall expense": connection with any one defect or deficiency. (1) Give us prompt notice of any discovery d. All "product recall expenses" in or notification that "your product" must be withdrawn of recalled. Include a connection with substantially the same harmful condition will be description of "your product" and the generalreason for the withdrawal or recall; deemed to arise out of the same defect or deficiency and considered one (2) Cease any further release, shipment, "occurrence". consignment or any other method of e. Any amount reimbursed for "product distribution of like or similar products recall expenses" in connection with any untilit hasbeendeterminedthat all are one "occurrence" will reduce the amount such products free from defects f that could be a cause of loss under this of the Product Recall Expense Aggregate insurance. Limit available for reimbursement of "product recall expenses" in connection e. For the purposs of this endorsement, the with any other defect or deficiency. following definitions are added to SECTION f. If the Product Recall Expense Aggregate II - LIABILITY, F. Liability and Medical Limit has been reduced by Expenses Definitions: reimbursement of "product recall 1. "Covered recall" means a recall made expenses" to an amount that is less than necessary because you or a government the Product Recall Expense Each body has determined that a known or Occurrence Limit, the remaining suspected defect, deficiency, Aggregate Limit is the most that will be inadequacy, or dangerous condition in available for reimbursement of "product "your product" has resulted or will result recall expenses" in connection with any in "bodily injury" or"property damage". other defect or deficiency. 2. "Product recall expense(s)" means: g. Product Recall Deductible a. Necessary and reasonable expenses We will only pay for the amount of for: "product recall expenses" which are in (1) Communications, including radio excess of the $500 Product Recall or television announcements or Deductible. The Product Recall printed advertisements including Deductible applies separately to each stationary, envelopes and "covered recall". The limits of insurance postage; 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 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc.,with its permission. Page 5 of 6 .c.....li r„- Hanover Insurance Group_ OBF D681476 5701751 (2) Shipping the recalled products (1) If the "products - completed operations from any purchaser, distributor or hazard" is excluded from coverage under user to the place or places this Coverage Part including any designated by you; endorsement thereto; or (3) Remuneration paid to your (2) To "product recall expense" arising out of regular "employees" for any of "your products" that are otherwise necessary overtime; excluded from coverage under this (4) Hiring additional persons, other Coverage Part including endorsements thereto. than your regular "employees"; (5) Expenses incurred by"employees" 8. Unintentional Failure to Disclose Hazards including transportation and The following is added to SECTION II - accommodations; LIABILITY, E. Liability and Medical Expenses (6) Expenses to rent additional General Conditions: warehouse or storage space; Representations (7) Disposal of "your product", but We will not disclaim coverage under this only to the extent that specific Coverage Part if you fail to disclose all hazards methods of destruction other than existing as of the inception date of the policy those employed for trash provided such failure is not intentional. discarding or disposal are 9. Unintentional Failure to Notify required to avoid "bodily injury" or "property damage" as a result The following is added to SECTION II - of such disposal, LIABILITY, E. Liability and Medical Expenses General Conditions, 2. Duties in the Event of you incur exclusively for the purpose Occurrence, Offense, Claim or Suit: of recalling "your product"; and Your rights afforded under this Coverage Part b. Your lost profit resulting from such shall not be prejudiced if you fail to give us "covered recall". notice of an "occurrence", offense, claim or "suit", f. This Product Recall Expense Coverage does solely due to your reasonable and documented not apply: 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. 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 6 of 6