Loading...
HomeMy WebLinkAboutPlans and Specifications Proposal Menominee Park Tennis Courts1313-i PROFESSIONAL SERVICES AGREEMENT PLANS AND SPECIFICATIONS PROPOSAL—MENOMINEE PARK TENNIS COURTS THIS AGREEMENT, made on the 13TH day of FEBRUARY 2018 by and between the CITY of OSHKOSH, hereinafter referred to as CITY, and FRED KOLKMANN TENNIS & SPORT SURFACES LLC, 1921 MAYFAIR ROAD, GRAFTON WI 53024, hereinafter referred to as the CONSULTANT. WITNESSETH: That the CITY and the CONSULTANT, for the consideration hereinafter named, enter into the following Agreement. COMPONENT PARTS OF THE AGREEMENT This Agreement consists of the following component parts, all of which are as fully a part of this Agreement as if herein set out verbatim, or if not attached, as if hereto attached: 1. This Instrument 2. Consultant's Professional Services Proposal dated AUGUST 27, 2017, and attached hereto. In the event that any provision in any of the above component parts of this Agreement conflicts with any provision in any other of the component parts, the provision in the component part first enumerated above shall govern over any other component part which follows it numerically except as may be otherwise specifically stated. CITY REPRESENTATIVE The CITY shall assign the following individual to manage this Agreement: (RAY MAURER, CITY OF OSHKOSH PARKS DIRECTOR) SCOPE OF WORK The CONSULTANT shall provide the services described in the CONSULTANT's attached Professional Services Proposal. CITY may make or approve changes within the general Scope of Services contained within the Professional Services Proposal and in this AGREEMENT. If such changes affect CONSULTANT's cost or time required for performance of the services, an equitable adjustment will be made through an amendment to this AGREEMENT. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 http://www.ci.oshkosh.wi.us RECORDS AND INSTRUMENTS OF SERVICE All reports, drawings, software, data, computer files, and other materials, documents and instruments prepared by the CONSULTANT as instruments of service shall remain the property of the CITY. Any document related to this agreement, whether in electronic or paper form, is considered a public record and shall be provided to the City upon request. The contractor may provide the City with an explanation of why they believe any document should not be released to the public. The City shall make all final determinations regarding the existence or release of any document related to this agreement. TERM AND TERMINATION A. Term. This Agreement shall commence upon the date indicated above and shall terminate on AUGUST 3, 2018, unless terminated earlier by one of the parties as provided below. B. Termination. 1. For Cause. If either party shall fail to fulfill in timely and proper manner any of the obligations under this Agreement, the other party shall have the right to terminate this Agreement by written notice. In this event, the CONSULTANT shall be entitled to compensation to the date of delivery of the Notice. 2. For Convenience. The CITY may terminate this Agreement at any time by giving written notice to the CONSULTANT no later than 30 calendar days before the termination date. TIME OF COMPLETION The CONSULTANT shall perform the services under this Agreement with reasonable diligence and expediency consistent with sound professional practices. The CITY agrees that the CONSULTANT is not responsible for damages arising directly or indirectly from any delays for causes beyond the CONSULTANT's control. For the purposes of this Agreement, such causes include, but are not limited to, strikes or other labor disputes, severe weather disruptions or other natural disasters, or failure of performance by the CITY. If the delays resulting from any such causes increase the time required by the CONSULTANT to perform its services in an orderly and efficient manner, the CONSULTANT shall be entitled to an equitable adjustment in schedule. SUSPENSION, DELAY, OR INTERRUPTION OF WORK CITY may suspend, delay, or interrupt the Services of CONSULTANT for the convenience of CITY. In such event, CONSULTANT's contract price and schedule shall be equitably adjusted. ASSIGNMENT Contractor shall not have the right to assign this Agreement without the written prior consent of the City. INDEPENDENT CONTRACTOR CONSULTANT is an independent contractor and is not an employee of the CITY. COOPERATION IN LITIGATION AND AUDITS Contractor shall fully and completely cooperate with the City, the City's insurer, the City's attorneys, the City's Auditors or other representative of the City (collectively, the "City" for purposes of this Article) in connection with (a) any internal or governmental investigation or administrative, regulatory, arbitral or judicial proceeding (collectively "Litigation") or internal or governmental Audit, with respect to matters relating to this Agreement; other than a third party proceeding in which Contractor is a named party and Contractor and the City have not entered into a mutually acceptable joint defense agreement. Such cooperation may include, but shall not be limited to, responding to requests for documents and/or other records, and making Contractor's employees available to the City (or their respective insurers, attorneys or auditors) upon reasonable notice for: (i) interviews, factual investigations, and providing declarations or affidavits that provide truthful information in connection with any Litigation or Audit; (ii) appearing at the request of the City to give testimony without requiring service of a subpoena or other legal process; (iii) volunteering to the City all pertinent information related to any Litigation or Audit; and (iv) providing information and legal representations to auditors in a form and within a timeframe requested. City shall reimburse Contractor for reasonable direct expenses incurred in connection with providing documents and records required under this paragraph and may require, at the City's sole discretion, such expenses to be documented by receipts or other appropriate documentation. Reasonable direct expenses include costs, such as copying, postage and similar costs; but do not include wages, salaries, benefits and other employee compensation. Contractor shall not be entitled to additional compensation for employee services provided under this paragraph. STANDARD OF CARE The standard of care applicable to CONSULTANT's Services will be the degree of skill and diligence normally employed by professional CONSULTANTs or consultants performing the same or similar Services at the time said services are performed. CONSULTANT will re -perform any services not meeting this standard without additional compensation. CITY RESPONSIBILITIES The CITY shall furnish, at the CONSULTANT's request, such information as is needed by the CONSULTANT to aid in the progress of the project, providing it is reasonably obtainable from City records. CONSULTANT may reasonably rely upon the accuracy, timeliness, and completeness of the information provided by CITY. To prevent any unreasonable delay in the CONSULTANT's work, the CITY will examine all reports and other documents and will make any authorizations necessary to proceed with work within a reasonable time period. PAYMENT A. The Agreement Sum. The CITY shall pay to the CONSULTANT for the performance of the Agreement the amount as outline in the Cost portion of the Consultant's Professional Services Proposal. B. Method of Payment. The CONSULTANT shall submit itemized monthly statements for services. The CITY shall pay the CONSULTANT within 30 calendar days after receipt of such statement. If any statement amount is disputed, the CITY may withhold payment of such amount and shall provide to CONSULTANT a statement as to the reason(s) for withholding payment. C. Additional Costs. Costs for additional services shall be negotiated and set forth in a written amendment to this Agreement executed by both parties prior to proceeding with the work covered under the subject amendment. HOLD HARMLESS The CONSULTANT covenants and agrees to protect and hold the City of Oshkosh harmless against all actions, claims, and demands which may be to the proportionate extent caused by or result from the intentional or negligent acts of the CONSULTANT, its agents or assigns, its employees, or its subcontractors related to the performance of this Agreement or be caused or result from any violation of any law or administrative regulation, and shall indemnify or refund to the CITY all sums including court costs, attorney fees, and punitive damages which the CITY may be obliged or adjudged to pay on any such claims or demands within thirty (30) days of the date of the CITY's written demand for indemnification or refund for those actions, claim, and demands caused by or resulting from intentional or negligent acts as specified in this paragraph. Subject to any limitations contained in Sec. 893.80 and any similar statute, of the Wisconsin Statutes, the City further agrees to hold CONTRACTOR harmless from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), which may be to the proportionate extent caused by or result from the intentional or negligent acts of the CITY, its agents or assigns, its employees, or its subcontractors related to the performance of this Agreement or be caused or result from any violation of any law or administrative regulation, where such liability is founded upon or grows out of the acts or omission of any of the officers, employees or agents of the City of Oshkosh while acting within the scope of their employment. It is the intention of the parties to this Agreement that each party shall be solely responsible for its own actions and activities and the actions and activities of its own officers, employees and agents while acting within the scope of their employment INSURANCE The CONSULTANT agrees to abide by the attached City of Oshkosh Insurance Requirements for Professional Services. WHOLE AGREEMENT / AMENDMENT This document and any specified attachments contain all terms and conditions of the Agreement and any alteration thereto shall be invalid unless made in writing, signed by both parties and incorporated as an amendment to this Agreement. NO THIRD -PARTY BENEFICIARIES This AGREEMENT gives no rights or benefits to anyone other than CITY and CONSULTANT and has no third -party beneficiaries. AGREEMENT NOT TO BE CONSTRUED AGAINST ANY PARTY This Agreement is the product of negotiation between the parties hereto and no term, covenant or provision herein or the failure to include a term, covenant or provision shall be construed against any party hereto solely on the basis that one party or the other drafted this Agreement or any term, covenant or condition contained herein. NO WAIVER Failure of either party to insist upon the strict performance of terms and provisions of this agreement, or any of them, shall not constitute or be construed as a waiver or relinquishment of that party's right to thereafter enforce such term or provision, and that term of the provisions shall continue in full force and effect. NON-DISCRIMINATION The Operator agrees not to discriminate in its operations under this Agreement on the basis of race, color, creed, age, and gender, or as otherwise prohibited by law. A breach of this covenant may be regarded as a material breach of this Agreement SEVERABILITY If any term, covenant, condition or provision of this agreement shall be invalid or enforceable, the remainder of this agreement shall not be affected thereby the remainder of the agreement shall be valid and enforceable to the fullest extent permitted by law. CHOICE OF LAW AND VENUE The laws of the State of Wisconsin shall govern the interpretation and construction of this Agreement. Winnebago County shall be the venue for all disputes arising under this Agreement. IN WITNESS WHEREOF, the City of Oshkosh, Wisconsin, has caused this contract to be sealed with its corporate seal and to be subscribed to by its City Manager and City Clerk and countersigned by the Comptroller of said City, and CONSULTANT hereunto set its hand and seal the day and year first above written. In the Presence of: (Seal of Contractor if a Corporation.) APPROVED: ttorney CONTRACTOR Name of Com any/Firm By: (Specify Title) CITY OF OSHKOSH By: 11 /( y��z �11r-i Mark A. ohloff, City Manager And: Pamela R. Ubrig, City Clerk I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract l�.l � i. A ►JAL City Comptroller CER'nFIED FRED KOLKMANN TENNIS & SPORT SURFACES, LLC TENNIS COURT 1921 MAYFAIR RD10CAN s 8U3tt�6�GRAFTON, WI 53024+Ex{�'� assc�tru7�# .r✓,,`'"�,�+r 262 - 685 - 7507 '*�► ON STAFF Email: courtbuilder@ameritech.net vwvw.kolkmanneourtbuilder.com August 27, 2017 Mr. Raymond Maurer Parks Director City of Oshkosh 805 Witzel Avenue PO Box 1130 Oshkosh, WI 54903 - 1130 Re: Plans and Specifications Proposal — Menomonie Park Tennis Courts Dear Ray, In accordance with your email of August 24th, I am pleased to submit the following proposal to create plans, specifications, and provide inspection services for the reconstruction of the tennis courts at Menomonie Park, located in Oshkosh, WI. PROJECT DESCRIPTION It is our understanding that the project is to reconstruct the tennis courts per one of our 4 concepts sent to you on July 15th, 2017. SCOPE OF WORK PHASE I - DESIGN SERVICES • We will re-evaluate the site and shoot additional elevations as necessary for reconstruction. • Develop construction plans and technical specifications for the tennis and pickleball court project for contractor bidding. Construction plans will include details showing how the various components of the project are to be constructed and the types of materials to be used. Technical specifications will be provided to assure quality control and to aid the contractor in materials and product selection and use. Specifications will be developed along with your assistance concerning insurance, performance bonds, construction schedule, wage rates and other items relevant to the project. • Prior to construction bidding, we will contact several contractors that typically perform this type of work to inform them of the project and to solicit bids. We will also make additional plan sets available for other interested bidders. • Conduct a Pre -Bid Meeting on-site with Owner and Contractors to review the scope of work, view the work site and to answer any questions about the project prior to the bid date. • Provide a bid tabulation form for the bid opening and assist with the analysis of the bid results to determine the low bidder. Exceptions: Our price does not include storm water management plans or soil borings if required. City of Oshkosh - Menomonie Park Tennis, Pickleball Court Plans, Specifications & Inspection Proposal Page 1 FRED KOLKMANN TENNIS & SPORT SURFACES, LLC 1921 MAYFAIR RD GRAFTON, WI 53024 262 - 685 - 7507 Email: courtbuilder@ameritech.net www.kolkmanncourtbuilder.com PHASE II — CONSTRUCTION ADMINISTRATION AND INSPECTION When construction of the project is authorized by the Owner, we will conduct and document the pre - construction conference, review submittals, verify payment requests, prepare a construction photo log, and provide intermittent inspection as needed. We will also conduct the pre -final and final inspections, and obtain a signed and dated guarantee. At completion, the project progress book, which includes both the construction documents and construction administration records, will be presented to the Owner for future reference. SCHEDULE Schedule of work to be determined, however, all work is to be completed for anticipated fall of 2017 bidding and summer of 2018 construction. INSURANCE We will maintain insurance for General Liability, Workers Comp., and a Professional Liability policy. FEES For the plans and specifications, we propose to perform the work described herein for a fee of five thousand five hundred dollars and no cents ($5,500.00), in accordance with our Standard Terms and Conditions. For the Inspection services we propose to perform the work described herein for a fee of eight thousand five hundred dollars and no cents ($8,500.00), in accordance with our Standard Terms and Conditions. Any change orders agreed to by both parties will be subject to a 10% fee. If the services covered by this agreement have not been completed within 12 months of the date of beginning work through no fault of ours, the amounts of compensation, rates and multiples set herein shall be adjusted. Our terms and conditions apply to this contract and are attached. This proposal is good for 90 days. This contract shall be governed by the laws of the State of Wisconsin. Sincerely, Fred Kolkmann Tennis & Sport Surfaces, LLC. /fed lrol / a vy Fred Kolkmann, CTCB President is could _. City of Oshkosh - Menomonie Park Tennis, Pickleball Court Plans, Specifications & Inspection Proposal Page 2 FRED KOLKMANN TENNIS & SPORT SURFACES, LLC 1921 MAYFAIR RD GRAFTON, WI 53024 262 - 685 - 7507 Email: courtbuilder@ameritech.net www.kolkmanneourtbuilder.com FRED KOLKMANN TENNIS & SPORT SURFACES, LLC. Terms and Conditions 1. Invoicing and payments: Invoices shall be rendered monthly on all projects. Payment is due within 30 days of invoice unless other terms are specified in the body of the contract. If payments are not received in a timely manner per the payment schedule, Fred Kolkmann Tennis & Sport Surfaces, LLC, reserves the right to file a Mechanics' Lien against the property. Any invoice unpaid after 60 days from the invoice date, may cause Fred Kolkmann Tennis & Sport Surfaces, LLC to withdraw permanently from any and all future activity on the project, and all other projects. 2. Interest and Unpaid Balance Due: If any amount is not paid by Client when due, the unpaid balance shall accrue interest at annual effective rate of 18%. 3. Document Ownership: All original calculations, sketches and construction document drawings shall remain the property of Fred Kolkmann Tennis & Sport Surfaces, LLC. City of Oshkosh - Menomonie Park Tennis, Pickleball Court Plans, Specifications & Inspection Proposal Page 3 FRFnvni -n1 KKFI_LER CERTIFICATE OF LIABILITY INSURANCE F DATE(MMIDD/YIYY) 02/12/2018 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 Robertson Ryan -Milwaukee 330 East n Ryan Avenue, Suite 650 Milwaukee, WI 53202 CONTACT NAME: (AHico,Nlu , Ext): (414) 271-3575 jac, No):(414) 271-0196 ADDRESS: INSURERS AFFORDING COVERAGE NAIC # INSURER A: Hanover 22292 INSURED Fred Kolkmann Tennis & Sport Surfaces LLC 1921 Mayfair Rd Grafton, WI 53024 INSURER 13: WEST BEND MUTUAL INSURANCE COMPANY 15350 INSURER C :THE HANOVER INSURANCE COMPANY 22292 INSURER D: INSURER E INSURER F: rvo*rrrrrAro K1H"0DD• RFVISION NtIMBFR' 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 T A TYPE OF INSURANCE X COMMERCIAL GENERAL LIABILITY ADDL INSD SUBR WVD POLICY NUMBER POLICY EFF MMIDDMlYY POLICY EXP MM/DDIYYYY LIMITS 1,000,000 EACH OCCURRENCE $ DAMAGE occu a $ 300'000 CLAIMS -MADE �X OCCUR OHI D189770 03/06/2017 03/06/2018 MED EXP (Any oneperson) $ 5'000 PERSONAL & ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY [ PRO ❑LOC JECT GENERAL AGGREGATE $ 2,000,000 PRODUCTS-COMP/OPAGG $ Included OTHER:$ A AUTOMOBILE LIABILITY Eaa acc ldeDtSINGLE LIMIT $ BODILY INJURY Perperson) $ ANY AUTO OHID189770 03/06/2017 03/06/2018 BODILY INJURY Per accident $ OWNED SCHEDULED AUTOS ONLY AUTOS X HIRED X NON -OWNED AUTOS ONLY AUTOS ONLY peOP.ER DAMAGE $ A X UMBRELLA LIAB EXCESS LIAB X OCCUR I CLAIMS -MADE OHI D189770 03/06/2017 03/06/2018 EACH OCCURRENCE $ 2,000,000 AGGREGATE $ 2,000,000 DED I X I RETENTION $ 0 $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y/ N ANFICER/MEMBOR EXCLUDED? ECUTIVE ❑ (Mandatory in NH) N /A A203269 11/10/2017 11/10/2018 H STATUTE ER 100,000 E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ 100,000 500,000 E.L. DISEASE -POLICY LIMIT $ If yes, descr be under DESCRIPTION OF OPERATIONS below C Professional LHIA995255 08/01/2017 08/01/2018 occurrence 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) City of Oshkosh, and its officers, council members, agents, employees and authorized volunteers are addltlonal insureds on a primary and noncontributory basis with respects to general liability arising out of project work and per written contract. Explosion, collapse and underground coverage is not excluded. 30 day notice of cancellation applies. r Corlrl IArC unl ncD CANCELLATION ATION ACORD 25 (2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Ci of Oshkosh Attn: Cit Clerk City Y THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 215 Church Avenue P O Box 1130 Oshkosh, W154903-1130 AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. 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 Goods and Use of Elevators Included 3 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 Occurrence 5 Product Recall Expense Aggregate Limit $50,000 Aggregate 5 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 — LIABILITY: 1. Additional Insured by Contract, Agreement or Permit The following is added to SECTION 11 — LIABILITY, C. Who Is An Insured: Additional Insured by Contract, Agreement or Permit a. Any person or organization with whom you agreed in a written contract, written agreement or permit to add such person or organization as an additional insured on your policy is an additional insured only with respect to liability for "bodily injury', "property damage", or "personal and advertising injury" caused, in whole or in part, by your acts or omissions, or the acts or omissions of those acting on your behalf, but only with respect to: (1) "Your work" for the additional insured(s) designated in the contract, agreement or permit; (2) Premises you own, rent, lease or occupy; or (3) Your maintenance, operation or use of equipment leased to you. b. The insurance afforded to such additional insured described above: (1) Only applies to the extent permitted by law; and (2) Will not be broader than the insurance which you are required by the contract, agreement or permit to provide for such additional insured. (3) Applies on a primary basis if that is required by the written contract, written agreement or permit. (4) Will not be broader than coverage provided to any other insured. (5) Does not apply if the "bodily injury", "property damage" or "personal and advertising injury' is otherwise excluded from coverage under this Coverage Part, including any endorsements thereto. 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 1 of 6 c. This provision does not apply: (1) Unless the written contract or written agreement was executed or permit was issued prior to the "bodily injury", "property damage", or "personal injury and advertising injury". (2) To any person or organization included as an insured by another endorsement issued by us and made part of this Coverage Part. (3) To any lessor of equipment: (a) After the equipment lease expires; or (b) If the "bodily injury", "property damage", "personal and advertising injury" arises out of sole negligence of the lessor (4) To any: (a) Owners or other interests from whom land has been leased if the "occurrence" takes place or the offense is committed after the lease for the land expires; or (b) Managers or lessors of premises if: (i) The "occurrence" takes place or the offense is committed after you cease to be a tenant in that premises; or (ii) The "bodily injury", "property damage", "personal injury" or "advertising injury" arises out of structural alterations, new con- struction or demolition operations performed by or on behalf of the manager or lessor. (5) To "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage" or the offense which caused the "personal and advertising injury" involved the rendering of or failure to render any professional services by or for you. d. With respect to the insurance afforded to these additional insureds, the following is added to SECTION II — LIABILITY, D. Liability and Medical Expense Limits of Insurance: The most we will pay on behalf of the additional insured for a covered claim is the lesser of the amount of insurance: 1. Required by the contract, agreement or permit described in Paragraph a.; or 2. Available under the applicable Limits of Insurance shown in the Declarations. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations e. All other insuring agreements, exclusions, and conditions of the policy apply. 2. Additional Insured — Broad Form Vendors The following is added to SECTION II — LIABILITY, C. Who Is An Insured: Additional Insured — Broad Form Vendors a. Any person or organization that is a vendor with whom you agreed in a written contract or written agreement to include as an additional insured under this Coverage Part is an insured, but only with respect to liability for "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business. b. The insurance afforded to such vendor described above: (1) Only applies to the extent permitted by law; (2) Will not be broader than the insurance which you are required by the contract or agreement to provide for such vendor; (3) Will not be broader than coverage provided to any other insured; and (4) Does not apply if the "bodily injury", "property damage" or "personal and advertising injury" is otherwise excluded from coverage under this Coverage Part, including any endorsements thereto c. With respect to insurance afforded to such vendors, the following additional exclusions apply: The insurance afforded to the vendor does not apply to: (1) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reasons of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the insured would have in the absence of the contract or agreement; (2) Any express warranty unauthorized by you; 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 2 of 6 (3) Any physical or chemical change in the product made intentionally by the vendor; (4) Repackaging, unless unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instruction from the manufacturer, and then repackaged in the original container; (5) Any failure to make such inspection, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business in connection with the sale of the product; (6) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (7) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; (8) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (a) The exceptions contained within the exclusion in subparagraphs (4) or (6) above; or The most we will pay on behalf of the vendor for a covered claim is the lesser of the amount of insurance: 1. Required by the contract or agreement described in Paragraph a.; or 2. Available under the applicable Limits of Insurance shown in the Declarations; This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. 3. Alienated Premises SECTION 11 — LIABILITY, B. Exclusions, 1. Applicable To Business Liability Coverage k. Damage to Property, paragraph (2) is replaced by the following: (2) Premises you sell, give away or abandon, if the "property damage" arises out of any part of those premises and occurred from hazards that were known by you, or should have reasonably been known by you, at the time the property was transferred or abandoned. 4. Broad Form Property Damage — Borrowed Equipment, Customers Goods, Use of Elevators a. The following is added to SECTION II — LIABILITY, B. Exclusions, 1. Applicable To Business Liability Coverage, k. Damage to Property: (b) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. b (9) "Bodily injury" or "property damage" arising out of an "occurrence" that took place before you have signed the contract or agreement with the vendor. (10)To any person or organization included as an insured by another endorsement issued by us and made part of this Coverage Part. (11)Any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. d. With respect to the insurance afforded to these vendors, the following is added to SECTION II — LIABILITY, D. Liability and Medical Expense Limits of Insurance: Paragraph (4) does not apply to "property damage" to borrowed equipment while at a jobsite and not being used to perform operations. Paragraph (3), (4) and (6) do not apply to "property damage" to "customers goods" while on your premises nor to the use of elevators. For the purposes of this endorsement, the following definition is added to SECTION II — LIABILITY, F. Liability and Medical Expenses Definitions: 1. "Customers goods" means property of your customer on your premises for the purpose of being: a. Worked on; or b. Used in your manufacturing process. c. The insurance afforded under this provision is excess over any other valid and collectible property insurance (including deductible) available to the insured whether primary, excess, contingent or on any other basis. 5. Incidental Malpractice — Employed Nurses, EMT's and Paramedics SECTION II — LIABILITY, C. Who Is An Insured, paragraph 2.a.(1)(d) does not apply to a nurse, 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 3 of 6 emergency medical technician or paramedic employed by you if you are not engaged in the business or occupation of providing medical, paramedical, surgical, dental, x-ray or nursing services. 6. Personal Injury — Broad Form a. SECTION II — LIABILITY, B. Exclusions, 2. Additional Exclusions Applicable only to "Personal and Advertising Injury", paragraph e. is deleted. b. SECTION II — LIABILITY, F. Liability and Medical Expenses Definitions, 14. "Personal and advertising injury", paragraph b. is replaced by the following: b. Malicious prosecution or abuse of process. c. The following is added to SECTION II — LIABILITY, F. Liability and Medical Expenses Definitions, Definition 14. "Personal and advertising injury": "Discrimination" (unless insurance thereof is prohibited by law) that results in injury to the feelings or reputation of a natural person, but only if such "discrimination" is: (1) Not done intentionally by or at the direction of: (a) The insured; (b) Any officer of the corporation, director, stockholder, partner or member of the insured; and (2) Not directly or indirectly related to an "employee", not to the employment, prospective employment or termination of any person or persons by an insured. d. For purposes of this endorsement, the following definition is added to SECTION II — LIABILITY, F. Liability and Medical Expenses Definitions: 1. "Discrimination" means the unlawful treatment of individuals based upon race, color, ethnic origin, gender, religion, age, or sexual preference. "Discrimination" does not include the unlawful treatment of individuals based upon developmental, physical, cognitive, mental, sensory or emotional impairment or any combination of these. e. This coverage does not apply if liability coverage for "personal and advertising injury" is excluded either by the provisions of the Coverage Form or any endorsement thereto. o. Recall of Products, Work or Impaired Property is replaced by the following: o. Recall of Products, Work or Impaired Property Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: (1) "Your product; (2) "Your work"; or (3) "Impaired property"; If such product, work or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it, but this exclusion does not apply to "product recall expenses" that you incur for the "covered recall' of "your product'. However, the exception to the exclusion does not apply to "product recall expenses" resulting from: (4) Failure of any products to accomplish their intended purpose; (5) Breach of warranties of fitness, quality, durability or performance; (6) Loss of customer approval, or any cost incurred to regain customer approval; (7) Redistribution or replacement of "your product" which has been recalled by like products or substitutes; (8) Caprice or whim of the insured; (9) A condition likely to cause loss of which any insured knew or had reason to know at the inception of this insurance; (10)Asbestos, including loss, damage or clean up resulting from asbestos or asbestos containing materials; or (11)Recall of "your products" that have no known or suspected defect solely because a known or suspected defect in another of "your products" has been found. b. The following is added to SECTION II — LIABILITY, C. Who Is An Insured, paragraph 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 — LIABILITY, D. Liability and Medical Expenses Limits of Insurance: Product Recall Expense Limits of Insurance a. The Limits of Insurance shown in the SUMMARY OF COVERAGES of this endorsement and the rules stated below fix the most that we will pay under this Product Recall Expense Coverage regardless of the number of: (1) Insureds; (2) "Covered Recalls initiated; or (3) Number of "your products" withdrawn. b. The Product Recall Expense Aggregate Limit is the most that we will reimburse you for the sum of all "product recall expenses" incurred for all "covered recalls" initiated during the policy period. c. The Product Recall Each Occurrence Limit is the most we will pay in connection with any one defect or deficiency. d. All "product recall expenses" in connection with substantially the same general harmful condition will be deemed to arise out of the same defect or deficiency and considered one "occurrence". e. Any amount reimbursed for "product recall expenses" in connection with any one "occurrence" will reduce the amount of the Product Recall Expense Aggregate Limit available for reimbursement of "product recall expenses" in connection with any other defect or deficiency. f. If the Product Recall Expense Aggregate Limit has been reduced by reimbursement of "product recall expenses" to an amount that is less than the Product Recall Expense Each Occurrence Limit, the remaining Aggregate Limit is the most that will be available for reimbursement of "product recall expenses" in connection with any other defect or deficiency. g. Product Recall Deductible We will only pay for the amount of "product recall expenses" which are in excess of the $500 Product Recall Deductible. The Product Recall Deductible applies separately to each "covered recall". The limits of insurance will not be reduced by the amount of this deductible. We may, or will if required by law, pay all or any part of any deductible amount, if applicable. Upon notice of our payment of a deductible amount, you shall promptly reimburse us for the part of the deductible amount we paid. The Product Recall Expense Limits of Insurance apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period for the purposes of determining the Limits of Insurance. d. The following is added to SECTION II — LIABILITY, E. Liability and Medical Expense General Conditions, 2. Duties in the Event of Occurrence, Offense, Claim or Suit: You must see to it that the following are done in the event of an actual or anticipated "covered recall" that may result in "product recall expense": (1) Give us prompt notice of any discovery or notification that "your product" must be withdrawn or recalled. Include a description of "your product" and the reason for the withdrawal or recall; (2) Cease any further release, shipment, consignment or any other method of distribution of like or similar products until it has been determined that all such products are free from defects that could be a cause of loss under this insurance. e. For the purposs of this endorsement, the following definitions are added to SECTION II — LIABILITY, F. Liability and Medical Expenses Definitions: 1. "Covered recall" means a recall made necessary because you or a government body has determined that a known or suspected defect, deficiency, inadequacy, or dangerous condition in "your product" has resulted or will result in "bodily injury" or "property damage". 2. "Product recall expense(s)" means: a. Necessary and reasonable expenses for: (1) Communications, including radio or television announcements or printed advertisements including stationary, envelopes and postage; 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 6 of 6 f (2) Shipping the recalled products from any purchaser, distributor or user to the place or places designated by you; (3) Remuneration paid to your regular "employees" for necessary overtime; (4) Hiring additional persons, other than your regular "employees"; (5) Expenses incurred by .employees" including transportation and accommodations; (6) Expenses to rent additional warehouse or storage space; (7) Disposal of "your product", but only to the extent that specific methods of destruction other than those employed for trash discarding or disposal are required to avoid "bodily injury" or "property damage" as a result of such disposal, you incur exclusively for the purpose of recalling "your product"; and b. Your lost profit resulting from such "covered recall". This Product Recall Expense Coverage does not apply: (1) If the "products — completed operations hazard" is excluded from coverage under this Coverage Part including any endorsement thereto; or (2) To "product recall expense" arising out of any of "your products" that are otherwise excluded from coverage under this Coverage Part including endorsements thereto. 8. Unintentional Failure to Disclose Hazards The following is added to SECTION II — LIABILITY, E. Liability and Medical Expenses General Conditions: Representations We will not disclaim coverage under this Coverage Part if you fail to disclose all hazards existing as of the inception date of the policy provided such failure is not intentional. 9. Unintentional Failure to Notify The following is added to SECTION II — LIABILITY, E. Liability and Medical Expenses General Conditions, 2. Duties in the Event of Occurrence, Offense, Claim or Suit: Your rights afforded under this Coverage Part shall not be prejudiced if you fail to give us notice of an `occurrence", offense, claim or "suit", solely due to your reasonable and documented belief that the "bodily injury", "property damage" or "personal and advertising injury" is not covered under this Policy. ALL OTHER TERMS, CONDITIONS, AND EXCLUSIONS REMAIN UNCHANGED. 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 6 of 6