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2200 - Mulholland Consulting, Inc. - Design, Bid Process & Costruction Management of Rosemead Park Walking Trail Replacement Project SECOND AMENDMENT TO DESIGN, BID PROCESS MANAGEMENT AND CONSTRUCTION MANAGEMENT OF THE ROSEMEAD PARK WALKING TRAIL REPLACEMENT PROJECT (MULHOLLAND CONSULTING, INC.) Tp. SECOND AMENDMENT ("Amendment") is made and entered into this 24 day of i ' , 201.1 ("Effective Date"), by and between the City of Rosemead, a municipal organi'ation, organized under the laws of the State of California with its principal place of business at 8838 East Valley Blvd., Rosemead, California 91770 ("City") and Mulholland Consulting, Inc., with its principal place of business at 3200 E. Guasti Road, Suite 100, Ontario, CA 91761 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties." WHEREAS, City and Consultant entered into an agreement on January 23, 2020, for Design, Bid Process Management and Construction Management of the Rosemead Park Walking Trail Replacement Project (the "Agreement"); and P WHEREAS, this Agreement is set to expire on December 31, 2020; and WHEREAS, the City and the Consultant may mutually agree to extend the term of this Agreement to June 30, 2021. NOW, THEREFORE, the Parties agree as follows: SECTION 1. Section 3.1.2 of the Agreement shall be amended to read: 3.1.2 Term. The term of this Agreement shall be from the Effective Date shown above to June 30, 2021, with the extension at the sole and absolute discretion of the City, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. SECTION 2. All other terms, conditions, and provisions of the Agreement not in conflict with this Addendum, shall remain in full force and effect. SECTION 3. The City Clerk shall certify the adoption of this Addendum and hereafter the same shall be in full force and effect. IN WITNESS WHEREOF, City and Contractor have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written. CITY OF ROSEMEAD MULHOLLAND CONSULTING, INC. ,, BY: , .1 IT i I , %\ i BY: a Gloria Molleda, City Manager rWr Name: Brian Nieckula, P.E. IIillil Attest: Title: President City Clerk (If Corporation, TWO SIGNATURES, President OR Vice President AND Secretary, AND CORPORATE SEAL OF CONTRACTOR REQUIRED) BY: BY: SO Nioathri, FiLellng Rachel Richman, City Attorney Name: Samantha Eklund Title: Secretary 2 FIRST AMENDMENT TO DESIGN, BID PROCESS MANAGEMENT AND CONSTRUCTION MANAGEMENT OF THE ROSEMEAD PARK WALKING TRAIL REPLACEMENT PROJECT (MULHOLLAND CONSULTING, INC.) Thi FIRST AMENDMENT ("Amendment") is made and entered into this CJS dayof NOvLYAYoUr , 20 (Effective Date"), by and between the City of Rosemead, a municipal organization, organized under the laws of the State of California with its principal place of business at 8838 East Valley Blvd., Rosemead, California 91770 ("City") and Mulholland Consulting, Inc., with its principal place of business at 3200 E. Guasti Road, Suite 100, Ontario, CA 91761 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties". WHEREAS, City and Consultant entered into an agreement on January 23, 2020, for Design, Bid Process Management and Construction Management of the Rosemead Park Walking Trail Replacement Project (the "Agreement"); and WHEREAS, this Agreement is set to expire on June 30, 2020; and WHEREAS,the City and the Consultant may mutually agree to extend the term of this Agreement for up to December 31, 2020. NOW, THEREFORE, the Parties agree as follows: SECTION 1. Section 3.1.2 of the Original Service Agreement shall be amended to read as follows: 3.1.2 Term. The term of this Agreement shall be from the Effective Date shown above to December 31, 2020, with extension at the sole and absolute discretion of the City, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. SECTION 2. All other terms, conditions, and provisions of the Original Agreement not in conflict with this Addendum, shall remain in full force and effect. SECTION 3. The City Clerk shall certify to the adoption of this Addendum and hereafter the same shall be in full force and effect. IN WITNESS WHEREOF, City and Consultant have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written. [Signatures on next page] 1 CITY OF ROSEMEAD MULHOLLAND CONSULTING, INC. A , 1� �.i u ! �i IIIQi2 BY: elir % October 13, 2020 Fria Molleda, City Manager Date Date Name: Brian M. Nieckula, P.E. Attest: = ' it/6/262,6 Title: President Ericka Hernandez, City Clerk Date (If Corporation, TWO SIGNATURES, President or Vice President AND Secretary, AND CORPORATE SEAL OF CONSULTANT REQUIRED) BY: Wit., ElidOctober 13, 2020 Date Name: Samantha L. Eklund Title: Secretary 2 r .' E M 9 CIVIC %1!),r '�ORPOMTEG 1959 PROFESSIONAL SERVICES AGREEMENT DESIGN, BID PROCESS MANAGEMENT AND CONSTRUCTION MANAGEMENT OF THE ROSEMEAD PARK WALKING TRAIL REPLACEMENT PROJECT 1. PARTIES AND DATE. This Agreement is made and entered into this this 23'4 Day ofcn 20 2.0 (Effective Date) by and between the City of Rosemead, a municipal organization organized under the laws of the State of California with its principal place of business at 8838 E. Valley Blvd., Rosemead, California 91770 ("City") and Mulholland Consulting, Inc. a Corporation with its principal place of business at 3200 E. Guasti Road, Suite 100, Ontario, CA 91761 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing Design and Bid Process Management consulting services to public clients, is licensed in the State of California and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such ongoing professional Design, Bid Process Management, and Construction Management of the Rosemead Park Walking Trail Replacement Project ("Services") as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. MULHOLLAND CONSULTING, INC. Page 2 of 19 3.1.1 General Scope of Services: Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional Design and Bid Process Management services necessary for the Project, herein referred to a "Services". The Services are more particularly described in "Exhibit A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from the Effective Date shown above to June 30, 2020, with extension at the sole and absolute discretion of the City, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional 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 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. 3.2.2 Schedule of Services: Consultant shall perform the Services expeditiously, within the term of this Agreement. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3, Conformance to Applicable Requirements: All work prepared by Consultant shall be subject to the approval of City. • MULHOLLAND CONSULTING, INC. Page 3 of 19 3.2.4 Substitution of Key Personnel: Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. • 3.2.5 City's Representative: The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Consultant shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.6 Consultant's Representative: Consultant hereby designates Brian Nieckula, P.E. or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services: Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees: Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant represents that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, MULHOLLAND CONSULTING, INC. Page 4 of 19 Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. 3.2.9 Laws and Regulations: Consultant shall keep itself fully informed of and in compliance with applicable local state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any liability to the extent found tobe arising out of any failure to comply with such laws, rules or regulations. 3.2.10 Insurance: Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit B attached to and part of this agreement. 3.2.11 Safety:\Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the. safety of its employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees and Payments. 3.3.1 Compensation: Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement and Sha excee.oH.', V�h asap.o ,I e :H indr d :i et line!:OM OE, rd tame rda betwithEm n's propios _ateD.ecemo `.ia.; 20 �. Consultant's proposal is hereby incorporated and found in Exhibit"A". Extra Work may be authorized in writing, as described below, and will be compensated at the rates and manner set forth in this Agreement. MULHOLLAND CONSULTING, INC. Page 5 of 19 3.3.2 Payment of Compensation: Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 30 days of receiving such statement, review the statement and pay all approved charges thereon. • 3.3.3 Reimbursement for Expenses: Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work: At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City's Representative. 3.3.5 Prevailing Wages: Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 1600, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws to the extent they are applicable to Consultant. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft; classification or type of worker needed to execute the Services available to interested parties upon request and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection: Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, MULHOLLAND CONSULTING, INC. Page 6 of 19 and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 . Grounds for Termination: City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.5.1.2 Effect of Termination: If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents/Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 Additional Services: In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices: All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: Mulholland Consulting, Inc. 3200 E. Guasti Road, Suite 100 Ontario, CA 91761 Attn: Brian Nieckula, P.E. Tel: (909) 654- 5563 CITY: City of Rosemead 8838 Valley Boulevard Rosemead, CA 91770 Attn: Chris Daste, Director of Public Works Tel: (626) 569-2158 • MULHOLLAND CONSULTING, INC. Page 7 of 19 Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours by certified mail or deposit in the U.S. Mail, first-class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and.Confidentiality. 3.5.3.1 Documents & Data; Licensing of Intellectual Property: This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents &Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. The Documents & Data are intended for use solely with respect to the project for which they were prepared. Any reuse or modification by City shall be at City's sole risk. 3.5.3.2 Confidentiality: All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the'Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. , 3.5.4 Cooperation; Further Acts: The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees: If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection MULHOLLAND CONSULTING, INC. Page 8 of 19 with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all costs of such action as part of prevailing party's total damages as determined by court of competent jurisdiction or as agreed upon by the parties in settlement. 3.5.6 Indemnity and Defense. A. Indemnity and Defense To the fullest extent permitted by law, Consultant shall indemnify and hold harmless Agency and any and all of its officials, employees and agents ("Indemnified Parties")from and against any and all losses, liabilities, damages, costs and expenses, including legal counsel's fees and costs, to the extent caused by the negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any agency or individual that Consultant shall bear the legal liability thereof) in the performance of services under this agreement. Consultant's duty to indemnify and hold harmless Agency shall not extend to the Agency's sole or active negligence. B. Duty to Defend In the event the Agency, its officers, employees, agents and/or volunteers are made a party to any action, lawsuit, or other adversarial proceeding arising from the performance of the services encompassed by this agreement, and upon demand by Agency, Consultant shall defend the Agency at Consultant's cost or at Agency's option, to reimburse Agency for its costs of defense, including reasonable attorney's fees and costs incurred in the defense of such matters to the extent the matters arise from, relate to or are caused by Consultant's negligent acts, errors or omissions. Payment by Agency is not a condition precedent to enforcement of this provision. In the event of any dispute between Consultant and Agency, as to whether liability arises from the sole or active negligence of the Agency or its officers, employees, or agents, Consultant will be obligated to pay for Agency's defense until such time as a final judgment has been entered adjudicating the Agency as solely or actively negligent. In no event shall the cost to defend charged to the design professional exceed the design professional's proportionate percentage of fault. 3.5.7 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. 3.5.8 Governing Law: This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County. MULHOLLAND CONSULTING, INC. Page 9 of 19 3.5.9 Time of Essence: Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Consultants: City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns: This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer: Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References; Captions: Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees,' agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification: No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 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. 3.5.16 No Third-Party Beneficiaries: There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability: If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. • MULHOLLAND CONSULTING, INC. Page 10 of 19 3.5.18 Prohibited Interests: Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City's Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment: Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification: By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's 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. 3.5.21 Authority to Enter Agreement: Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts: This Agreement may be signed in counterparts, each of which shall constitute an original. 3.6 Subcontracting. 3.6.1 Prior Approval Required: Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written MULHOLLAND CONSULTING, INC. Page 11 of 19 approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. [Signatures on next Page] • MULHOLLAND CONSULTING, INC. Page 12 of 19 CITY OF ROSEMEAD Y L 'C.x-1-'` k' ' d SU ITBM14,1a 4 -e &lb Gloria Molle•a, City Manager [rate "rile , _ g • WiAky Title: P3ro v) iJ c IGLU k w Attest: , *o p'or- on YY0 IGNATUiR' Pres'dera1,• oR " 're bent CM) ee - arn_ +0a,c®R\ A %' � Ericka Hernandez, City Clerk D ie BY: JAIL Name: ,q1rnoorAinc, Ekluv\dk Title: Ser;rp-r.Nr y `; (. ‘1( ; fr, ,„ �!((llll(I II{IllA MULHOLLAND CONSULTING, INC. Page 13 of 19 EXHIBIT A SCOPE OF SERVICES/ RATE SCHEDULE mulholland* FEES FEES A breakdownof the fees associated with each Task can be found below: Task 1. Conceptual Design $2,400.00 Task 2. Cost Estimate $600.00 Task 3. Preparation of Specifications and Bid Documents $6,000.00 Task 4. Bid Phase Support $6,000.00 Reimbursable Expenses $599.00 The total "not to exceed" fee is fifteen thousand, five hundred ninety-nine and 00/100 dollars ($15,599.00). Assumptions o Mulholland assumes any survey required for the project will be performed by the contractor during construction. o Mulholland assumes City will provide regular inspections using its own forces. o The durations presented are estimates. However,Tasks depend on many factors Mulholland does not have control of. o Mulholland applies a fifteen percent (15%) mark-up to printing costs and miscellaneous expenses. o Mileage will be invoiced at the current Internal Revenue Service (IRS) standard mileage rate. o Mulholland assumes that meetings will take place at City Hall or the selected contractor's job site trailer. Exclusions o Utility Coordination/Notification o Topographic Survey o Inspection o Labor Compliance o As-builts o Plan Check/Encroachment Permit Fees o Construction Staking/Survey Control o Qualified SWPPP Practitioner/Qualified SWPPP Developer Services o Environmental Compliance 3200 E. Guasti Rd., Suite 100, Ontario, CA 91761 A 1 15 MULHOLLAND CONSULTING, INC. Page 14 of 19 EXHIBIT B INSURANCE REQUIREMENTS Prior to the beginning of and throughout the duration of the Work, Consultant will maintain insurance in conformance with the requirements set forth below. Consultant will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Consultant agrees to amend, supplement or endorse the existing coverage to do so. Consultant acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to City in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to City. Consultant shall provide the following types and amounts of insurance: Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended.Any endorsement restricting standard ISO "insured contract" language will not be accepted. Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described above. If Consultant or Consultant's employees will use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability coverage for each such person. Workers Compensation on a state-approved policy form providing statutory benefits as required by law with employer's liability limits no less than $1,000,000 per accident or disease. Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall provide coverage at least as broad as specified for the underlying coverages. Any such coverage provided under an umbrella liability policy shall include a drop-down provision providing primary coverage above a maximum $25,000 self-insured retention for liability not covered by primary but covered by the umbrella. Coverage shall be provided on a "pay on behalf basis, with defense costs payable in addition to policy limits. Policy shall contain a provision obligating insurer at the time insured's liability is determined, not requiring actual payment by the insured first. There shall be no cross- MULHOLLAND CONSULTING, INC. Page 15 of 19 liability exclusion precluding coverage for claims or suits by one insured against another. Coverage shall be applicable to City for injury to employees of Consultant, subconsultants or others involved in the Work. The scope of coverage provided is subject to approval of City following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than $1 Million per occurrence. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the consultant and "Covered Professional Services" as designated in the policy must include work performed under this agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf of the insured and must include a provision establishing the insurer's duty to defend the Named Insured. The policy retroactive date shall be on or before the effective date of this agreement. Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the state of California and with an A.M. Best's rating of A- or better and a minimum financial size VII. General conditions pertaining to provision of insurance coverage by Consultant. Consultant and City agree to the following with respect to insurance provided by Consultant: 1. Consultant agrees to have its insurer endorse the third-party general liability coverage required herein to include as additional insureds City, its officials, employees and agents, using standard ISO endorsement No. CG 2010 (or otherwise consistent with the insurer's endorsement). Consultant also agrees to require all contractors, and subcontractors to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractors to do likewise. 3. All insurance coverage and limits provided by Contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations limits the application of such insurance coverage. MULHOLLAND CONSULTING, INC. Page 16 of 19 4. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. 5. No liability policy shall contain any provision or definition that would serve to eliminate so-called "third party action over" claims, including any exclusion for bodily injury to an employee of the insured or of any contractor or subcontractor. 6. All coverage types and limits required are subject to approval, modification and additional requirements by the City, as the need arises. Consultant shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City's protection without City's prior written consent. 7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Consultant's general liability policy, shall be delivered to City at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City option. 8. Certificate(s) are to reflect that the insurer will provide 30 days notice to City of any cancellation of coverage. A ten (10) day notice to City shall apply to nonpayment of premiums. Consultant agrees to require its insurer to modify such certificates to delete any'exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the certificate. 9. It is acknowledged by the parties of this agreement that all insurance coverage (except Professional Liability and Workers' Compensation) required to be provided by Consultant or any subcontractor, is intended to apply first and on a primary, noncontributing basis in relation to any other insurance or self-insurance available to City. MULHOLLAND CONSULTING, INC. Page 17 of 19 10. Consultant agrees to ensure that subcontractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. 11. Consultant agrees not toself-insure or to use any self-insured retentions or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, Architect, Engineer or other entity or person in any way involved in the performance of work on the project contemplated by this agreement to self-insure its obligations to City. If Consultant's existing coverage includes a deductible or self-insured retention, the deductible or self-insured retention must be declared to the City. At that time the City shall review options with the Consultant, which may include reduction or elimination of the deductible or self-insured retention, substitution of other coverage, or other solutions. 12. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City will negotiate additional compensation proportional to the increased benefit to City. 13. For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. 14. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 15. Consultant will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this agreement. This obligation applies whether or not the agreement is canceled or terminated for any reason. Termination of this MULHOLLAND CONSULTING, INC. Page 18 of 19 obligation is not effective until City executes a written statement to that effect. 16. Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Consultant's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 17. The provisions of any workers' compensation or similar act will not limit the obligations of Consultant under this agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials and agents. 18. Requirements of specific coverage features, Or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all inclusive. 19. These insurance requirements are intended to be separate and distinct from any other provision in this agreement and are intended by the parties here to be interpreted as such. 20. The requirements in this Section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this Section. • 21. Consultant agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Consultant for the cost of additional insurance coverage required by this agreement.Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto. MULHOLLAND CONSULTING, INC. Page 19of19 Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the work performed under this agreement. City assumes no obligation or liability by such notice but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Aco CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 01/13/2020 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 NAME: Pearl Insurance • PHONE FAX (A/C.No,Ext): (A/C,No): 1200 E Glen Ave E-MAIL ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC# _ Peoria Heights,IL.61611 INSURER A: Hanover Insurance Company 22292 INSURED INSURER B: Mulholland Consulting, Inc. - 3200 E Guasti Rd INSURER C: Ste 100 INSURER D: Ontario, CA 91761-8661 INSURER E: 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 LTR TYPE OF INSURANCE NSD Swvo POLICY NUMBER POLICY EFF POLICY EXP LIMITS (M M/D D/YWYJ_(M M I D D/Y YY Yl X COMMERCIAL GENERALLIABILITY EACH OCCURRENCE $ 1,000,000 DAMAGE TO RENTED CLAIMS-MADE X OCCUR PREMISES(Ea occurrence) $ 300,000 MED EXP(Any one person) $ 5,000 A . Y Y ODC-H003053-00 08/01/2019 08/01/2020 PERSONAL&ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE _ $ 2,000,000 X POLICY 'E C LOC PRODUCTS-COMP/OP AGG $ 2,000,000 OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1,000,000 (Ea accident) ANY AUTO BODILY INJURY(Per person) $ A AWNED AUTOS ONLY SCHEDULED AUTOS yY ODC-H003053-00 08/01/2019 08/01/2020 BODILY INJURY(Per accident) $ _ X HIRED NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY (Per accident) $ UMBRELLA LIAB _ OCCUR EACH OCCURRENCE _ $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED RETENTION$ $ WORKERS COMPENSATION PER OTH- AND EMPLOYERS'LIABILITY Y/N STATUTE ER ANYPROPRIETORIPARTNER/EXECUTIVE E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L DISEASE-POLICY LIMIT $ Professional Liability $1,000,000 per claim A Retroactive Date:08/02/2019 N Y LHC H003074 00 08/02/2019 08/02/2020 $1,000,000 aggregate DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached If more space is required) City of Rosemeadis,when required by written agreement or permit,afforded General Liability additional insured coverage per form 391-1006 08 16.Policy includes waiver of subrogation and is primary and non-contributory. CERTIFICATE HOLDER CANCELLATION City of Rosemead SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 8838 E.Valley Blvd. THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Rosemead, CA 91770 - ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988-2015 ORD CORPORATION. All rights reserved. ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD 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", required by the written contract, written "property damage", or "personal and agreement or permit. advertising injury" caused, in whole or in 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 .. .. 4HTinover Insurance Group.. ODCH003053 1305259 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 Insu 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", "propertydamage" or provided to any other insured; and g (4) Does not apply if the "bodilyinjury", "personal and advertising injury" arising 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 and advertising injury" involved the (1) "Bodily injury" or "property damage" for 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 • J • (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) Anyfailure to make such inspection, applicable Limits of Insurance shown in the p Declarations. adjustments, tests or servicing as the 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 anyonese of • (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) Paragraph (3), (4) and (6) do not apply to above; or "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 LIABILITY, F. Liability and Medical Expenses with the distribution or sale of the Definitions: products. (9) "Bodily injury" or "property damage" 1. "Cuyour cmers ustomer stomero nson youreans emeses for the arising out of an "occurrence" that took 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 w 4 Hanover Insurance Group.. ODCH003053 1305259 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 InjuryBroad 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 ABILITY, 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 condition inadequacyit, buthior dangerous Definitions, Definition 14. "Personal and condition in it, but this exclusion does dtig injury": not apply to "producrecall expenses" that you incur for the "covered recall" of "Discrimination" (u less 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, but only if such "discrimination" is: does not apply to "product recall 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" w ich has been of any person or persons by an insured. c 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, insurance; eason to know at the inception of color, ethnic origin, gender, religion, age, this 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 ABILITY, 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 (3) Number of "your products" ' the purposes of determining the Limits of withdrawn. Insurance. 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 rOccurrencedone in the event of an actual or anticipated c. The Product Recall Each the most wewillpayin "covered recall" that may result in "product Limit connection with any one defect or recall expense deficiency. (1) Give pt tany ouctmust d. All "product recall expenses" in be withdrawn or recalled. Include a connection with substantially the same description of "your product" and the general harmful condition will be reason 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 until it has been determined that all such products are free from defects one "occurrence" will reduce the amount of the Product Recall Expense Aggregate could be a cause of loss under this that 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 S500 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 4Hanover Insurance Group.. ODCH003053 1305259 (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" or any of "your products" t at 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" The following is added to SECTION II or "property damage" as a result LIABILITY, Liability and Medical Expenses off such disposal, 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