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HomeMy WebLinkAboutFare Share Enterprises - 2016-11-21Dept. ID ED 16-36 Page 1 of 2 Meeting Date: 11/21/2016 CITY OF HUNTINGTON BEACH REQUEST FOR. CITY COUNCIL ACTION MEETING DATE: 11/21/2016 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Ken Domer, Assistant City Manager Kellee Fritzal, Deputy Director, Business Development SUBJECT: Approve and authorize execution of a three-year License Agreement between the City and Fare Share Enterprises for coin operated telescopes on the Pier Statement of Issue: The City Council is asked to approve a three (3) year License Agreement between the City of Huntington Beach and Fare Share Enterprises to install and maintain coin operated telescopes on the Pier. Financial Impact: License Agreement provides for a 50% share of all revenue received from the public's use of the telescopes. The previous License generated revenue for the City in the amount of approximately $3,000 annually. Recommended Action: Approve and authorize the Mayor and City Clerk to execute the "License Agreement Between the City of Huntington Beach and Fare Share Enterprises for Coin Operated Telescopes on Huntington Beach Pier." Alternative Action(s): Do not approve the Amendment and provide direction to staff. Analysis: The City has provided for coin operated telescopes on the Pier for the pleasure of visitors. Since 2008, "See Scopes" has been the operator of the telescopes on the Pier. However, due to the corrosive nature of the sea air and the resulting maintenance and upkeep needs for the current telescopes, the City released a Request for Proposals (RFP) for new a provider. The City received two (2) proposals and selected "Fare Share Enterprises" as the new provider of telescope operations on the Pier. The selection was made due to Fare Share's proposal of a 50/50 split, no -charge to install the telescopes, maintenance plan, and references for similar operations. If approved, Fare Share will install and maintain six (6) new telescopes in January 2017. Based on use, an additional six telescopes could be installed. The installation will be coordinated with the Community Services Department. Fare Share currently has telescopes on the pier in Santa Monica and also at the Griffith Observatory in Los Angeles. FHB _3)65_ Item 9. - I Dept. ID ED 16-36 Page 2 of 2 Meeting Date: 11/21/2016 The license fee is fifty percent (50%) of their gross monthly receipts. This fee will continue over the term of the Agreement. Environmental Status: Not Applicable Strategic Plan Goal: Strengthen economic and financial sustainability Attachment(s): 1. License Agreement between the City of Huntington Beach and Fare Share Enterprises Item 9. - 2 HB -366- n LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND FARE SHARE ENTERPRISES FOR COIN OPERATED TELESCOPES ON HUNTINGTON BEACH PIER This License Agreement is made and entered into by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ("CITY") and FARE SHARE ENTERPRISES, a New York corporation ("LICENSEE") WHEREAS, CITY is the owner of certain real property located on the western part of Main Street, Huntington Beach, west of Pacific Coast Highway in the City of Huntington Beach, Orange County, California, with an address of 103 Pacific Coast Highway, and commonly known as the Huntington Beach Pier and Pier Plaza (hereafter referred to as "the Property"); and LICENSEE desires to install, maintain and operate a number of Coin Operated Telescopes (hereinafter referred to as "Telescopes") on the Property for a fee to users under the terms contained in this License Agreement; and CITY desires to grant LICENSEE a license (hereafter referred to as "the License") to install, maintain and operate the Telescopes on specific locations within the Property area as determined at the sole discretion of the Community Services Director in the manner set forth in this License Agreement; and CITY and LICENSEE wish to enter into this License Agreement defining their respective rights and responsibilities concerning said License. NOW, THEREFORE, in consideration of the promises and Agreements hereinafter made and exchanged, the CITY and LICENSEE covenant and agree as follows: RLS 9/6/16/16-5426/143473/DO 1 SECTION 1. SCOPE OF LICENSE; STATEMENT OF WORK; ACCEPTANCE OF RISK LICENSEE may enter upon the Property for the purpose of installing, operating and maintaining the Telescopes as set forth in Exhibit A attached hereto and incorporated herein by reference. Installation shall take place on March 1, 2017 ("Installation Date"). Prior to Installation Date, CITY and LICENSEE shall meet to determine a work schedule and specific locations for the Telescopes. CITY may at its sole discretion set forth the date of installation as well as the number and location of Telescopes. However, the installation date shall be no later than five (5) months from the Contract Implementation Date and the number of Telescopes shall be no less than six, unless otherwise agreed to in writing. LICENSEE shall furnish, at its own expense, all labor, plans, tools, equipment, supplies, transportation, utilities and all other items, services, applicable permits, and Telescopes necessary to complete and construct/install the Telescopes in a good and workmanlike manner. Maintenance: In the event one of the Telescopes becomes inoperable, including coin intake, as determined by CITY or LICENSEE, the machine shall be immediately repaired or replaced. LICENSEE agrees to assume the risk of all loss or damage arising out of the nature of the scope of this License, during its progress or prior to acceptance, from the action of the elements, from any unforeseen difficulties which may arise or be encountered in the prosecution of work, and for all other risks of any description connection with the work, including, but not limited to, all expenses incurred by or in RLS 9/6/16/16-5426/143473/DO 2 consequence of the suspension or discontinuance of work, except such as are herein expressly stipulated to be borne by CITY, and for well and faithfully completing the work within the stipulated time and in the manner shown and described in this Agreement, and in accordance with the requirements of CITY under them for the compensation set forth in the accepted proposal for coin operated viewing instruments from LICENSEE. to CITY ("Proposal") If a service was not included in the Proposal, LICENSEE may provide the service at CITY request on a time and materials basis. LICENSEE acknowledges that it is fully familiar with all the terms, conditions and obligations of this Agreement, the location of the job site, and the conditions under which the work is to be performed, and that it enters into this Agreement based upon its investigation of all such matters and is relying in no way upon any opinions or representations of CITY. It is agreed that the terms of the Proposal, Specifications of the Coin Operated Telescopes as well as any construction documents if any are incorporated into this Agreement by this reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its subcontractors, if any, shall be bound by said documents insofar as they relate in part or in any way, directly or indirectly, to the work covered by this Agreement. Should there be any conflict between the terms of this License, the Proposal, or any construction documents, then this License shall control and nothing herein shall be considered as an acceptance of the terms of said proposal which is in conflict herewith. RLS 9/6/16/16-5426/143473/DO 3 SECTION 2. TERM This License shall commence upon its approval by CITY and shall terminate in three (3) years, unless extended, or sooner terminated, as provided for herein. SECTION 3. LICENSE FEE In consideration of this License, LICENSEE agrees to pay to CITY a fee ("License Fee") of fifty percent (50%) of the gross monthly receipts of each Telescope for the use of the Property to operate the Telescopes. Gross monthly receipts shall include each time the Telescope is activated regardless of whether compensation was actually received by LICENSEE. LICENSEE shall pay the License Fee quarterly on or before the 15' day of each month the License Fee is due during the term of this License Agreement to the CITY at the City Treasurer's Office, P.O. Box 711, Huntington Beach, California, 92648, or at such other place or places as CITY may from time -to -time designate by written notice delivered to LICENSEE in the manner set forth in the Notice Section of this License Agreement. SECTION 4. LATE CHARGE AND PENALTY If the License Fee is not received by the City Treasurer by the fifteenth day of each month during the term of this License Agreement, or the next business day if the fifteenth day falls on a weekend or holiday, LICENSEE shall pay the following late charge and penalty: (1) a late charge of ten percent (10%) per week shall be applied to any outstanding balance after any payment hereunder is due but unpaid; and (2) one and a half percent (2%) penalty per month shall be added for each month the License Fee is due but unpaid. RLS 9/6/16/16-5426/143473/DO 4 SECTION 5. BOOKS AND RECORDS LICENSEE shall keep true and accurate books and records showing all of its business transactions in separate records of account of the fee for Telescopes use in a manner acceptable to CITY, and CITY and/or its designated representatives shall have the right, at all reasonable times, to inspect such books and records including, without limitation, State of California sales or use tax returns or other State return records, and LICENSEE hereby agrees that all such records and instruments shall promptly be delivered and made available to CITY and/or its designated representatives within thirty (30) days of receiving written request therefor. LICENSEE shall furnish to CITY and/or its designated representatives copies of its quarterly California sales and use tax returns related to this License at the time each is filed with the State of California. The books and records shall show the total amount of Gross Sales made each calendar month in, on, or from the Property. LICENSEE agrees to maintain at its central offices all records, books of account and cash register tapes, showing, or in any way pertaining to the Gross Sales made in, on, or from the Property during such calendar month, including, without limitation, State of California sales or use tax returns or other State tax returns, for a period of five (5) years following the close of each calendar month. SECTION 6. RESERVATIONS, ENCUMBRANCES AND RIGHTS -OF -WAY A. CITY expressly reserves the right to convey or encumber the Property, in whole or in part, for any purpose not inconsistent or incompatible with the rights or privileges of LICENSEE under this License Agreement. In addition, LICENSEE agrees to subordinate this LICENSE to any existing or future CITY financing RLS 9/6/16/16-5426/143473/D0 5 regarding the Property or any portion thereof. LICENSEE also agrees to cooperate and provide any documentation necessary for CITY to obtain any such financing. B. This License is subject to pre-existing contracts, licenses, easements, encumbrances and claims affecting the Property, if any, and it is made without warranty by CITY of title, condition or fitness of the land for the stated or intended use. SECTION 7. TIME OF ESSENCE Time shall be of the essence of this License Agreement and each and all of its terms, covenants or conditions in which performance is a factor. SECTION 8. TERMINATION This License Agreement may be terminated by either party with or without cause upon thirty (30) days written notice delivered to the other party to this License Agreement in the manner set forth in the Notice Section of this License Agreement. SECTION 9. MAINTENANCE LICENSEE agrees to care for and maintain the Telescopes, at LICENSEE's sole cost and expense, during the entire term of this License Agreement or any extension thereof, in good and satisfactory condition as acceptable to the CITY. Care for and maintenance includes but is not limited to removal of graffiti. In the event LICENSEE does not maintain the Property or Telescopes in a satisfactory manner, LICENSEE authorizes CITY to perform such maintenance on LICENSEE's behalf. All costs incurred performing said maintenance shall be assessed to and billed directly to the LICENSEE. LICENSEE agrees to pay such costs within ten (10) days of billing. RLS 9/6/16/16-5426/143473/DO 6 SECTION 10. CONTROL OF EOUIPMENT LICENSEE shall keep any equipment used or brought onto the Property for the purposes of operating or maintaining the Facility under its absolute and complete control at all times and said equipment shall be used on the Property at the sole risk of LICENSEE. SECTION 11. REMOVAL OF THE TELESCOPES UPON TERMINATION Upon termination of this License Agreement, LICENSEE will remove the Telescopes placed on the property and restore the Property to its natural condition to the satisfaction of, and at no cost to, the CITY. SECTION 12. ADDITIONS, ALTERATIONS AND REMOVAL A. No modifications, alterations or additions to the Property or Telescopes, including, without limitation, landscape design, construction of additional structures or changes to the structural design of the Property or Telescopes, shall be constructed or made by LICENSEE without first obtaining the prior written approval of CITY, which may be withheld by CITY in its sole and complete discretion. B. Except as provided under this License Agreement, no alteration or removal of the Telescopes or Property or natural features of the Property shall be undertaken without LICENSEE first obtaining the prior written approval of CITY. C. LICENSEE's obligation to obtain CITY's prior written approval is separate and independent of LICENSEE's obligation to obtain any permits from CITY, including without limitation, building permits. RLS 9/6/16/16-5426/143473/DO 7 SECTION 13. CITY' S CONTRACT ADMINISTRATOR CITY's Deputy Director of Business Development, or his or her designee, shall be CITY's Contract Administrator for this License Agreement with the authority to act on behalf of CITY for the purposes of this License Agreement, and all CITY approvals and notices required to be given herein to CITY shall be so directed and addressed. SECTION 14. INDEMNIFICATION. DEFENSE AND HOLD HARMLESS LICENSEE hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation (including arbitration) of every nature or liability of any kind or nature) arising directly or indirectly out of the grant of the License under this License Agreement including that arising from the passive concurrent negligence of CITY, but save and except those which arise out of the active concurrent negligence, sole negligence, or the sole willful misconduct of CITY. LICENSEE will conduct all defense at its sole cost and CITY shall approve selection of LICENSEE's counsel. The CITY shall be reimbursed by LICENSEE for all costs and attorney's fees incurred by CITY in enforcing the obligations set forth in this Section. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by LICENSEE. SECTION 15. WORKERS' COMPENSATION INSURANCE. Pursuant to the California Labor Code Section 1861, LICENSEE acknowledges awareness of Section 3700 et seq. of said code, which requires every employer to be RLS 9/6/16/16-5426/143473/DO 8 insured against liability for workers' compensation; LICENSEE covenants that it will comply with all such laws and provisions prior operating the Facility on the Property pursuant to this license. LICENSEE shall maintain such Workers' Compensation Insurance in an amount of not less than One Hundred Thousand Dollars ($100,000) bodily injury by accident, each occurrence, One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee, and Two Hundred Fifty Thousand Dollars ($250,000) bodily injury by disease, policy limit, at all times incident hereto, in forms and underwritten by insurance companies satisfactory to CITY. SECTION 16. GENERAL LIABILITY INSURANCE In addition to LICENSEE's covenant to defend, hold harmless and indemnify CITY, LICENSEE shall carry at all times, on all activities to be performed on the Property and/or the Facility as contemplated herein, general liability insurance, including coverage for bodily injury and property damage. All insurance shall be underwritten by insurance companies in forms satisfactory to CITY. Said insurance shall name the CITY, its officers, agents and employees and all public agencies as determined by the CITY as Additional Insureds. LICENSEE shall subscribe for and maintain said insurance policies in full force and effect during the life of this License Agreement, in an amount of not less than One Million Dollars ($1,000,000) combined single limit coverage. If coverage is provided under a form which includes a designated general aggregate limit, such limit shall be not less than One Million Dollars ($1,000,000). In the event of aggregate coverage, LICENSEE shall immediately notify CITY of any known depletion of limits. LICENSEE shall require its insurer to waive its subrogation rights against CITY and RLS 9/6/16/16-5426/143473/DO 9 agrees to provide certificates evidencing the same. Under no circumstances shall said above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage. SECTION 17. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENT LICENSEE shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this License Agreement; said certificates shall provide the name and policy number of each carrier and policy, and shall state that the policy is currently in force and shall promise to provide that such policies will not be canceled without thirty (30) days prior written notice to CITY. LICENSEE shall maintain the foregoing insurance coverages in force until this License Agreement is terminated. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of CITY by LICENSEE under this License Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance. LICENSEE shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement to each of LICENSEE'S insurance policies, naming the CITY, its officers and employees as Additional Insureds shall be provided to the City Attorney for approval upon execution of this License Agreement by LICENSEE. RLS 9/6/16/16-5426/143473/DO 10 SECTION 18. INSURANCE HAZARDS LICENSEE shall not commit or permit the commission of any acts on the Property or Telescopes nor use or permit the use of the Property or Telescopes in any manner that will increase the existing rates for, or cause the cancellation of any liability, property, or other insurance policy for the Property required by this License Agreement. LICENSEE shall, at its sole cost and expense, comply with all requirements of any insurance carrier providing any insurance policy for the Property and/or Telescopes or required by this License Agreement necessary for the continued maintenance of these policies at reasonable rates. SECTION 19. RELEASE LICENSEE hereby releases and forever discharges CITY of and from any and all claims, demands, actions or causes of action whatsoever which LICENSEE may have, or may hereafter have, against the CITY specifically arising out of the matter of the entry of LICENSEE onto the Property or the operation of the Telescopes. This is a complete and final release and shall be binding upon LICENSEE and the heirs, executors, administrators, successors and assigns of LICENSEE'S use of the Property and Telescopes under this License Agreement. LICENSEE hereby expressly waives any rights under or benefit of any law of any jurisdiction whatsoever providing to the contrary. Neither the acceptance of this RELEASE nor any payment made hereunder shall constitute any admission of any liability of CITY. SECTION 20. WASTE LICENSEE shall not alter, damage or commit any kind of waste upon the Property of Facility or any improvement, equipment or personal property thereon and RLS 9/6/16/16-5426/143473/DO 11 shall not interfere in any manner with the operations or activities of CITY. LICENSEE shall not cause any workmen's or materialmen's liens to be placed upon the Property or Facility and agrees to indemnify and hold CITY harmless against any such liens including but not limited to the payment of attorneys' fees. SECTION 21. DAMAGE. DESTRUCTION OR NUISANCE LICENSEE shall not commit or permit the commission by others of any damage or destruction of, on, or to the Property or Telescopes. LICENSEE shall not maintain, commit or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Property; and LICENSEE shall not use or permit the use of the Property or Telescopes for any unlawful purpose. SECTION 22. PAYMENT OF OBLIGATIONS LICENSEE shall promptly pay, at its sole cost and expense, before they become delinquent, any and all bills, debts, liabilities and obligations incurred by LICENSEE in connection with LICENSEE's use of the Property and operation of the Telescopes. Upon request, LICENSEE shall promptly furnish to CITY satisfactory evidence establishing such payment. SECTION 23. SIGNS AND ADVERTISING CITY shall have the right to approve in its sole discretion and at any time require LICENSEE to change or remove signs, names, placards, decorations or advertising placed on, or inscribed, painted or affixed upon the Telescopes. Should CITY approve of any sign, name, placard, decoration or advertising, LICENSEE shall maintain the same at all times during the entire term of this License Agreement or any renewals or extensions RLS 9/6/16/16-5426/143473/DO 12 thereof. All signs, names, placards, decorations or advertising must comply with all requirements of any governmental authority with jurisdiction. SECTION 24. ASSIGNMENT The parties acknowledge that CITY is entering into this License Agreement in reliance upon the experience and abilities of LICENSEE and its principals. Consequently, LICENSEE shall not voluntarily assign, encumber or otherwise transfer its interest in the License Agreement or allow any other person or entity (except LICENSEE's authorized representatives) to occupy or use all or any part of the Property or Telescopes without the prior written consent of CITY, which consent may be withheld at CITY's sole discretion. Provided, however, that CITY's consent shall not relieve LICENSEE from any and all of its obligations, liabilities, duties or responsibilities under this License Agreement. Any assignment, encumbrance, occupation or use of the Property or Telescopes without such consent shall be voidable and, at CITY's sole discretion, shall constitute a Default of this License Agreement. SECTION 25. TERMS BINDING ON SUCCESSORS All the terms, covenants and conditions of this License Agreement shall inure to the benefit of, and be binding upon, the parties and their successors, including, without limitation, their assignees, users, or other transferees. The provisions of this Section shall not be deemed as a (1) waiver of any of the prohibitions and conditions against assignments, or uses, or other transfers hereinbefore set forth, or (2) CITY's consent thereto. RLS 9/6/16/16-5426/143473/DO 13 SECTION 26. WAIVER OF CLAIMS LICENSEE hereby waives any claim against CITY, its officers, elected or appointed officials, employees, agents or volunteers for damage or loss caused by any suit or proceeding directly or indirectly attacking the validity of this License Agreement, or any part thereof, or caused by any judgment or award in any suit or proceeding declaring this License Agreement null, void or voidable, or delaying the License Agreement or any part thereof from being carried out. SECTION 27. DESTRUCTION Should the Property or Telescopes be partially destroyed, this License Agreement shall continue in full force and effect, and LICENSEE, at LICENSEE's sole cost and expense, shall complete the work of repairing and restoring the Property and Telescopes to their prior condition providing such work can be accomplished under all applicable governmental laws and regulations within one hundred eighty (180) days. Should the Property or Telescopes be so far destroyed that in CITY's reasonable judgment they cannot be repaired or restored to their former condition within one hundred eighty (180) days, CITY shall give LICENSEE notice of such determination in writing and each party may, in that party's sole discretion: (a) Continue this License Agreement in full force and effect in which case LICENSEE shall repair and restore, at LICENSEE's sole cost and expense, the Property and Facility to their former condition; or (b) Terminate this License Agreement by giving the other party thirty (30) days' written notice of its election to terminate the License Agreement. In the event that either party elects to terminate this License Agreement, the RLS 9/6/16/16-5426/143473/DO 14 entire amount of any insurance proceeds, if any, shall be paid to CITY. The proceeds of any such insurance payable to CITY may be used, in the sole discretion of CITY, for rebuilding or repair as necessary to restore the Property or for any other such purpose(s) as CITY sees fit. In addition, if LICENSEE elects to terminate the License Agreement, LICENSEE must still comply with all of its obligations, liabilities, duties and responsibilities under the License Agreement, including, without limitation, paying any License Fee up to the time of termination. SECTION 28. CITY'S OPTION TO CLOSE THE PROPERTY CITY may close the Property without liability and without advance notice to LICENSEE therefor at any time as CITY in its sole discretion deems necessary for the protection of life, limb or property, or for public health, safety or welfare purposes, or upon reasonable notice to effect any repair, remodeling or rebuilding deemed necessary by CITY in its sole discretion. The length of time of any closing of the Property by CITY longer than two (2) weeks during a period when the Facility would otherwise be operating shall extend the term of the License Agreement by the same amount of time. If this occurs, LICENSEE and CITY shall memorialize this extension in writing. SECTION 29. CONFLICT OF INTEREST LICENSEE warrants and covenants that no official or employee of CITY, nor any business entity in which an official or employee of CITY is interested, (1) has been employed or retained by LICENSEE to solicit or aid in the procuring of this License Agreement; or (2) shall be employed by LICENSEE in the performance of this License Agreement without the immediate written divulgence of such fact to CITY. In the event RLS 9/6/16/16-5426/143473/DO 15 CITY determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of CITY, LICENSEE, upon request of CITY, shall terminate such employment immediately. For breaches or violation of this Section, CITY shall have the right both to terminate this License Agreement without liability and, in its discretion, recover the full amount of any such compensation paid to such official, employee or business entity. No official or employee of CITY shall have any financial interest in this License Agreement in violation of the applicable provisions of the California Go>>ernment Code. SECTION 30. NO TITLE INTEREST No title interest of any kind is hereby given and LICENSEE shall never assert any claim or title to the Property. SECTION 31. NOTICE All notices, certificates, or other communications required to be given hereunder shall be in writing and made in the following manner, and shall be sufficiently given and deemed received when (a) personally delivered; or (b) three (3) business days after being sent via United States certified mail — return receipt requested; or (c) one (1) business day after being sent by reputable overnight courier, in each case to the addresses specified below; provided that CITY and LICENSEE, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent: CITY: City of Huntington Beach ATTN: Deputy Director of Business Development 2000 Main Street LICENSEE: David Lockrow, President Fare Share Enterprise 201 W. Genesee Street, #242 Fayetteville, NY 13066 RLS 9/6/16/16-5426/143473/DO 16 Huntington Beach, CA 92648 SECTION 32. COMPLIANCE WITH LAWS LICENSEE, at its sole cost and expense, shall comply with all statutes, ordinances, regulations and requirements of all governmental entities, including, without limitation, Federal, State, county or municipal, relating to LICENSEE's use of the Property and/or operation of the Telescopes whether such statutes, ordinances, regulations and requirements be now in force or hereinafter enacted. This License Agreement is expressly subject to the laws, regulations and policies of CITY. LICENSEE shall deliver to CITY a copy of any notice from any governmental entity received by LICENSEE regarding any alleged violation of law regarding the License Agreement, the Property or the Telescopes or from any person allegedly entitled to give notice under any conditions, covenants, or restrictions binding or affecting the Property or Facility. The judgment of any court of competent jurisdiction, or the admission by LICENSEE in a proceeding brought against LICENSEE by any government entity, that LICENSEE has violated any such statute, ordinance, regulation or requirement shall be conclusive as between CITY and LICENSEE and shall be grounds for termination of this License Agreement by CITY. SECTION 33. INTERPRETATION OF THIS License Agreement The language of all parts of this License Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this License Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this License Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly RLS 9/6/16/16-5426/143473/DO 17 provided here. As used in this License Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this License Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. SECTION 34. SURVIVAL Terms and conditions of this License Agreement, which by their sense and context survive the expiration or termination of this License Agreement, shall so survive. SECTION 35. MODIFICATION No waiver or modification of any language in this License Agreement shall be valid unless in writing and duly executed by both parties. SECTION 36. SECTION HEADIN The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this License Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this License Agreement. RLS 9/6/16/16-5426/143473/DO 18 SECTION 37. ATTORNEYS FEES Except as expressly set herein, in the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this License Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the non - prevailing party. SECTION 38. GOVERNING LAW This License Agreement shall be governed and construed in accordance with the laws of the State of California. SECTION 39. DUPLICATE ORIGINAL The original of this License Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who signed it. SECTION 40. ENTIRETY The parties acknowledge and agree that they are entering into this License Agreement freely and voluntarily following extensive arm's length negotiations, and that each has had the opportunity to consult with legal counsel prior to executing this License Agreement. The parties also acknowledge and agree that no representations, inducements, promises, License Agreements or warranties, oral or otherwise, have been made by that party, or anyone acting on that party's behalf, which are not embodied in this License Agreement, and that that party has not executed this License Agreement in reliance on any RLS 9/6/16/16-5426/143473/DO 19 representation, inducement, promise, License Agreement, warranty, fact or circumstance not expressly set forth in this License Agreement. This License Agreement, and the attached exhibits, contain the entire License Agreement between the parties respecting the subject matter of this License Agreement, the Property, Telescopes, or the License created under this License Agreement and supersede all prior understandings and License Agreements, whether oral or in writing between the parties respecting the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have caused this License Agreement to be executed by and through their authorized officers on /3 .2016. C'vc c.cx/L xiW---na&PC 2-1, 1o16) LICENSEE FAIR SHARE ENTERPRISES, a New York corporation B,. 1 Lat'l,6, print name ITS: (circle one) ChairmamTresiden ice President AND By: petit name Jt7i ITS: (circle one) Secretary/Chief Financial Officer/Asst Secre�t7 n Tiea CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California M — ?A ity Clerk n 01'0 D) INITIATED AND APPROVED: Deputy Director bf Business Development RLS 9/6/16/16-5426/143473/DO 20 \+111 4 c on f4elCfiPKf T City of Huntington Beach 2000 Main Street ♦ Huntington Beach, CA 92648 (714) 536-5227 ♦ www.huntingtonbeachca.gov Office of the City Clerk Robin Estanislau, City Clerk November 22, 2016 Fare Share Enterprise ATTN: David Lockrow, President 201 W. Genesee Street, #242 Fayetteville, NY 13066 Dear Mr. Lockrow: Enclosed is a copy of the fully executed "License Agreement Between the City of Huntington Beach and Fare Share Enterprises for Coin Operated Telescopes on Huntington Beach Pier." Sincerely, Robin Estanislau, CIVIC City Clerk RE:pe Enclosure Sister Cities: Anjo, Japan ♦ Waitakere, New Zealand S i` INSURANCE AND INDEMNIFICATION WAIVER H MODIFICATION REQUEST 1. Requested by: Max Daffron 2. Date: November 14, 2016 3. Name of contractor/permittee: Fare Share Enterprises 4. Description of work to be performed: Per Telescope Instalation 5. Value and length of contract: Three Years 6. Waiver/modification request: Waiver of Completed Ops Endorsement and City named Al Endors. 7. Reason for request and why it should be granted: NY Company cannot include 8. Identify the risks to the City in approving this waiver/modification: NA Depa Signature �I�►�i�IG Date: APPROVALS Approvals must be obtained in the order listed on this form. Two approvals are required for a request to be granted. Approval om the City Manager's Office is only required if Risk Management and e City Attorney's Office disagree. 1. Rk Management Approved ❑ Denied Si nature Date 2. City Attorney's Office Approved ❑ Denied Signature Date 3. City Manager's Office ❑ Approved ❑ Denied Signature Date If approved, the completed waiver/modification request is to be submitted to the City Attorney's Office along with the contract for approval. Once the contract has been approved, this form is to be filed with the Risk Management Division of Human Resources Insurance Waiver Form (2).docm CITY OF HUNTINGTON BEACH Phone: 714-374-5378 Fax 714-5365212 Waiver Procedure To request a waiver, indicate he44nd provide a brief description ( l — 2 sentences) of the proposed work/project, its dollar value (if not a specific dollar amount, use an average, annual estimate or non-profit) and projected timeframe (per job or as -needed basis). For substantial dollar deductibte/M amounts, a financial smemem is required (Balance Budget Reports, Dun & Bradstreet Report, etc.). WaiverRegnested-0 +-�,�e`,,�./Ct Encroachment Men Proposed work: Dollar Value: Projected Tuneflame Serviceso At Cw ACORO CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDIYYYY) k0/31/2016 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 pollcy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements . PRODUCER OneGroup NY, Inc. 706 N. Clinton Street CONTANAME: Cheri Green, CISR PHONE 315-413-4419 FAx 315-457-7902 C. No) Syracuse NY 13204 E-MAIL . cgreen@bhlinsurance.com INSURERS AFFORDING COVERAGE NAIC # INSURER A: Hartford Fire Insurance Company 19682 INSURED FARSH Fare Share Enterprises, Inc. 5530 Gulf Road INSURER B : INSURERC: INSURER D : Chittenango NY 13037 INSURER E : INSURER F : COVERAGES CFRTIFICATF MliMRFR• 1322822417 oovi���u --win nannuErC 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 ADDL INSD SUBR WVD POLICY NUMBER MM/DDYYYYYI IMMIDDIYYYYI LIMITS A X COMMERCIAL GENERAL LIABILITY Y 01SBAAR4816SB 9/25/2016 9/25/2017 EACH OCCURRENCE $1,000,000 DAMAGE TO RENTED PREMISES Ea occurrence _ $300,000 CLAIMS -MADE X OCCUR MED EXP (Any one person) $10,000 PERSONAL & ADV INJURY $1,000,000 AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE $2,000,000 GEN'L X POLICY ❑ PRO ❑ ECT LOC PRODUCTS - COMP/OP AGG $2,000,000 OTHER: AUTOMOBILE LIABILITY MBINED 9M7LE LIMIT Ea accident $ BODILY INJURY (Per person) $ ANY AUTO - ALL OWNED SCHEDULED BODILY INJURY (Per accident) $ AUTOS AUTOS HIREDAUTOS NON -OWNED OS PROPERTY DAMAGE Per accident $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $ DED RETENTIONS $ WORKERS COMPENSATION PER OTH- AND EMPLOYERS' LIABILITY YIN STATUTE ER -E-I,—EArH ACCIDENT $ ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICERIMEMBER EXCLUDED? ❑ N I A B DIS SE - EA EMPLOYEE $ (Mandatory in NH) If yes, describe under MI HAE E. ATES5EZ E L DISEASE - POLICY LIMIT I $ DESCRIPTION OF OPERATIONS below CITY ATTORNEY OF HUN NGTON BEACH DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: Viewing Machine on Huntington Beach Pier Huntington Beach CA 92648 City of Huntington Beach Offices 2000 Main Street Huntington Beach CA 92648 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2014/01) V 1VBB-2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: FARSH LOC #: AI' ni'r1/1AIA1 00IIAAnWL- c+nu�n1u r- - — ........ Page I of I AGENCY NAMED INSURED OneGroup NY, Inc. Fare Share Enterprises, Inc. POLICY NUMBER 210 W. Genesee St #242 Fayetteville, NY 13066 CARRIER NAIC CODE EFFECTIVE DATE: ►lull l IL"114 All KIC.IVIH K1La THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE Coverage applies per form(s): General Liability: SS0008 (04/05) - Business Liability Form - Who is an Insured ACORD 101 (2008/01) © 2008 ACORD CORPORATION_ All rinhtc romrvo.i I ne ACUHU name and logo are registered marks of ACORD I s1 -%;Q%MUULn i IVU. CUUO-OS CITY OF HUNTINGTON BEACH 2000 Main Street, Huntington Beach, CA 92648-2702 e Declaration of Non -Employer Status The State of California requires every enterprise or business to provide workers compensation insurance coverage. If you have no employees, you may make a declaration to that effect by completing and signing this form and returning to: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648-2702 I certify that in the performance of the activity or work for which this permit is Issued, 1 shall not employ any person In any manner so as to become subject to California Workers' Compensation Insurance requirements. I authorize the City of Huntington Beach to immediately and retroactively revoke the license or permit issued under this declaration if I hire any employee(s) or become subject to the provision of the laws requiring Workers' Compensation Insurance. Company / Organization: Ma;LI Address: v.l - 211 t F,�-<+ *?AZ I S a e{�e•t,(le �1 Applicant [Please print]; Title, if any: Applicant's Signature: Date Signed: yes& !V � / 6 Telephone Number: S/S 1/9/ 762(0 ATTACHMENT *7 Rocniidinn Wn InAg-Al CITY OF HUNTINGTON BEACH 2000 Main Street, Huntington Beach, CA 92648-2702 DECLARATION OF PERMITTEE I certify that no vehicle(s) will be used or operated in the performance of the task(s) or event(s) for which this permit is granted. i authorize the City of Huntington Beach to immediately and retroactively revoke the license or permit issued In connection with or in the performance of said task(s) or events(s) if any vehicle(s) is used. Signature of Permitte�e�:� I Print Name: Company Name (if applicable): eS�'"�e �P�'--S Date Signed: c 16407 00aw l ATTACHMENT #tS AGENCY CUSTOMER ID: FARSH LOC #: ACE ADDITIONAL REMARKS SCHEDULE Page I of I AGENCY OneGroup NY, Inc. NAMED INSURED Fare Share Enterprises, Inc. 210 W. Genesee St #242 Fayetteville, NY 13066 POLICY NUMBER CARRIER NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE Coverage applies per form(s): General Liability: SS0008 (04/05) - Business Liability Form - Who is an Insured ACORD 101 (2008/01) @2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 nc� 9nn5_ Tha Hnrttnrd QUICK REFERENCE BUSINESS LIABILITY COVERAGE FORM READ YOUR POLICY CAREFULLY BUSINESS LIABILITY COVERAGE FORM A. COVERAGES Business Liability Medical Expenses Coverage Extension - Supplementary Payments B. EXCLUSIONS C. WHO IS AN INSURED D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE Beginning on Page 1 1 2 2 3 10 E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 1. Bankruptcy 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit 3. Financial Responsibility Laws 4. Legal Action Against Us 5. Separation Of Insureds 6. Representations 7. Otherinsurance 8. Transfer Of Rights Of Recovery Against Others To Us F. OPTIONAL ADDITIONAL INSURED COVERAGES Additional Insureds G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 14 15 15 15 16 16 16 16 16 17 18 18 20 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the stock insurance company member of The Hartford providing this insurance. The word "insured" means any person or organization qualifying as such under Section C. - Who Is An Insured. Other words and phrases that appear in quotation marks have special meaning. Refer to Section G. - Liability And Medical Expenses Definitions. A. COVERAGES (a) The "bodily injury" or "property 1. BUSINESS LIABILITY COVERAGE (BODILY damage" is caused by an "occurrence" INJURY, PROPERTY DAMAGE, PERSONAL that takes place in the "coverage AND ADVERTISING INJURY) territory"; Insuring Agreement {b} The "bodily injury" or "property damage" occurs during the policy a. We will pay those sums that the insured period; and becomes legally obligated to pay as (c) Prior to the policy period, no insured damages because of "bodily injury", listed under Paragraph 1. of Section "property damage" or "personal and C. — Who Is An Insured and no advertising injury" to which this insurance "employee" authorized by you to give applies. We will have the right and duty to or receive notice of an "occurrence" defend the insured against any "suit" or claim, knew that the "bodily injury" seeking those damages. However, we will or "property damage" had occurred, have no duty to defend the insured against in whole or in part. If such a listed any "suit" seeking damages for "bodily insured or authorized "employee" injury", "property damage" or "personal and knew, prior to the policy period, that advertising injury" to which this insurance the "bodily injury" or "property does not apply. pp y. damage" occurred, then any We may, at our discretion, investigate any continuation, change or resumption "occurrence" or offense and settle any claim of such "bodily injury" or "property or "suit" that may result. But: damage" during or after the policy (1) The amount we will pay for damages is period will be deemed to have been limited as described in Section D. - known prior to the policy period. Liability And Medical Expenses Limits (2) To "personal and advertising injury" Of Insurance; and caused by an offense arising out of your (2) Our right and duty to defend ends when business, but only if the offense was we have used up the applicable limit of committed in the "coverage territory" insurance in the payment of judgments, during the policy period, settlements or medical expenses to which c. "Bodily injury" or "property damage" will be this insurance applies, deemed to have been known to have No other obligation or liability to pay sums or occurred at the earliest time when any perform acts or services is covered unless insured listed under Paragraph 1. of Section explicitly provided for under Coverage C. — Who Is An Insured or any "employee" Extension - Supplementary Payments. authorized by you to give or receive notice b. This insurance applies: of an "occurrence" or claim: (1) To "bodily injury" and "property (1) Reports all, or any part, of the "bodily „ damage" only if: injury" or property damage" to us or any other insurer; Form SS 00 08 04 05 Page 1 of 24 Cc, 9005_ ThP Hartford BUSINESS LIABILITY COVERAGE FORM (2) Receives a written or verbal demand or claim for damages because of the "bodily injury" or "property damage"; or (3) Becomes aware by any other means that "bodily injury" or "property damage" has occurred or has begun to occur. d. Damages because of "bodily injury" include damages claimed by any person or organization for care, loss of services or death resulting at any time from the "bodily injury". e. Incidental Medical Malpractice (1) "Bodily injury" arising out of the rendering of or failure to render professional health care services as a physician, dentist, nurse, emergency medical technician or paramedic shall be deemed to be caused by an "occurrence", but only if: (a) The physician, dentist, nurse, emergency medical technician or paramedic is employed by you to provide such services; and (b) You are not engaged in the business or occupation of providing such services. (2) For the purpose of determining the limits of insurance for incidental medical malpractice, any act or omission together with all related acts or omissions in the furnishing of these services to any one person will be considered one "occurrence". 2. MEDICAL EXPENSES Insuring Agreement a. We will pay medical expenses as described below for "bodily injury" caused by an accident: (1) On premises you own or rent; (2) On ways next to premises you own or rent; or (3) Because of your operations; provided that: (1) The accident takes place in the "coverage territory" and during the policy period; (2) The expenses are incurred and reported to us within three years of the date of the accident; and (3) The injured person submits to examination, at our expense, by physicians of our choice as often as we reasonably require. b. We will make these payments regardless of fault. These payments will not exceed the applicable limit of insurance. We will pay reasonable expenses for: (1) First aid administered at the time of an accident; (2) Necessary medical, surgical, x-ray and dental services, including prosthetic devices; and (3) Necessary ambulance, hospital, professional nursing and funeral services. 3. COVERAGE EXTENSION - SUPPLEMENTARY PAYMENTS a. We will pay, with respect to any claim or "suit" we investigate or settle, or any "suit" against an insured we defend: (1) All expenses we incur. (2) Up to $1,000 for the cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which Business Liability Coverage for "bodily injury" applies. We do not have to furnish these bonds. (3) The cost of appeal bonds or bonds to release attachments, but only for bond amounts within the applicable limit of insurance. We do not have to furnish these bonds. (4) All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to $500 a day because of time off from work. (5) All costs taxed against the insured in the "suit". (6) Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. (7) All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance. Any amounts paid under (1) through (7) above will not reduce the limits of insurance. Paoe 2 of 24 Form SS 00 08 04 05 b. If we defend an insured against a "suit" and an indemnitee of the insured is also named as a party to the "suit", we will defend that indemnitee if all of the following conditions are met: (1) The "suit" against the indemnitee seeks damages for which the insured has assumed the liability of the indemnitee in a contract or agreement that is an "insured contract"; (2) This insurance applies to such liability assumed bythe insured; (3) The obligation to defend, or the cost of the defense of, that indemnitee, has also been assumed by the insured in the same "insured contract"; (4) The allegations in the "suit" and the information we know about the "occurrence" are such that no conflict appears to exist between the interests of the insured and the interest of the indemnitee; (5) The indemnitee and the insured ask us to conduct and control the defense B. of that indemnitee against such "suit" and agree that we can assign the same counsel to defend the insured and the indemnitee: and (6) The indemnitee; (a) Agrees in writing to: (1) Cooperate with us in the investigation, settlement or defense of the "suit"; (ii) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the "suit"; (111) Notify any other insurer whose coverage is available to the indemnitee; and (iv) Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and (b) Provides us with written authorization to: (1) Obtain records and other information related to the "suit"; and (11) Conduct and control the defense of the indemnitee in such "suit". BUSINESS LIABILITY COVERAGE FORM So long as the above conditions are met, attorneys' fees incurred by us in the defense of that indemnitee, necessary litigation expenses incurred by us and necessary litigation expenses incurred by the indemnitee at our request will be paid as Supplementary Payments. Notwithstanding the provisions of Paragraph 1.b.(b) of Section B. — Exclusions, such payments will not be deemed to be damages for "bodily injury" and "property damage" and will not reduce the Limits of Insurance. Our obligation to defend an insured's indemnitee and to pay for attorneys' fees and necessary litigation expenses as Supplementary Payments ends when: (1) We have used up the applicable limit of insurance in the payment of judgments or settlements; or (2) The conditions set forth above, or the terms of the agreement described in Paragraph (6) above, are no longer met. EXCLUSIONS 1. Applicable To Business Liability Coverage This insurance does not apply to: a. Expected Or Intended Injury (1) "Bodily injury" or "property damage" expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury" or "property damage" resulting from the use of reasonable force to protect persons or property; or (2) "Personal and advertising injury" arising out of an offense committed by, at the direction of or with the consent or acquiescence of the insured with the expectation of inflicting "personal and advertising injury". b. Contractual Liability (1) "Bodily injury" or "property damage'; or (2) "Personal and advertising injury" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages because of: (a) "Bodily injury', "property damage" or "personal and advertising injury" that the insured would have in the absence of the contract or agreement; or Form SS 00 08 04 05 Ill 3 of 24 BUSINESS LIABILITY COVERAGE FORM (b) "Bodily injury' or "property damage" assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement. Solely for the purpose of liability assumed in an "insured contract", reasonable attorneys' fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of "bodily injury" or "property damage" provided: (i) Liability to such parry for, or for the cost of, that party's defense has also been assumed in the same "insured contract", and (11) Such attorneys' fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged. c. Liquor Liability "Bodily injury" or "property damage" for which any insured may be held liable by reason of: (1) Causing or contributing to the intoxication of any person; (2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages. d. Workers' Compensation And Similar Laws Any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law. e. Employer's Liability "Bodily injury" to: (1) An "employee" of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of the insured's business, or (2) The spouse, child, parent, brother or sister of that "employee" as a consequence of (1) above. This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the insured under an "insured contract". f. Pollution (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants": (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to any insured. However, this subparagraph does not apply to: (1) "Bodily injury" if sustained within a building and caused by smoke, fumes, vapor or soot produced by or originating from equipment that is used to heat, cool or dehumidify the building, or equipment that is used to heat water for personal use, by the building's occupants or their guests; (ii) "Bodily injury" or "property damage" for which you may be held liable, if you are a contractor and the owner or lessee of such premises, site or location has been added to your policy as an additional insured with respect to your ongoing operations performed for that additional insured at that premises, site or location and such premises, site or location is not and never was owned or occupied by, or rented or loaned to, any insured, other than that additional insured; or Paae 4 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (iii) "Bodily injury" or "property released as part of the damage" arising out of heat, operations being performed smoke or fumes from a by such insured, contractor or "hostile fire"; subcontractor; (b) At or from any premises, site or (it) "Bodily injury" or "property location which is or was at any damage" sustained within a time used by or for any insured or building and caused by the others for the handling, storage, release of gases, fumes or disposal; processing or treatment vapors from materials brought of waste; into that building in connection (c) Which are or were at any time with operations being performed transported, handled, stored, by you or on your behalf by a treated, disposed of, or processed contractor or subcontractor; or as waste by or for: (Ili) "Bodily injury" or "property (i) Any insured; or damage" arising out of heat, smoke or fumes from a (ii) Any person or organization for "hostile fire'; or whom you may be legally responsible; (e) At or from any premises, site or location on which any insured or any (d) At or from any premises, site or contractors or subcontractors location on which any insured or working directly or indirectly on any any contractors or subcontractors insured's behalf are performing working directly or indirectly on operations if the operations are to any insured's behalf are test for, monitor, clean up, remove, performing operations if the contain, treat, detoxify or neutralize, "pollutants" are brought on or to or in any way respond to, or assess the premises, site or location in the effects of, "pollutants". connection with such operations by such insured, contractor or (2) Any loss, cost or expense arising out subcontractor. However, this of any: subparagraph does not apply to: (a) Request, demand, order or statutory (t) "Bodily injury" or "property or regulatory requirement that any damage" arising out of the insured or others test for, monitor, escape of fuels, lubricants or clean up, remove, contain, treat; other operating fluids which are detoxify or neutralize, or in any way needed to perform the normal respond to, or assess the effects of, electrical, hydraulic or "pollutants"; or mechanical functions (b) Claim or suit by or on behalf of a necessary for the operation of governmental authority for "mobile equipment" or its parts, damages because of testing for, if such fuels, lubricants or other monitoring, cleaning up, removing, operating fluids escape from a containing, treating, detoxifying or vehicle part designed to hold, neutralizing, or in any way store or receive them. This responding to, or assessing the exception does not apply if the effects of, "pollutants", "bodily injury" or "property However, this paragraph does not damage" arises out of the apply to liability for damages because intentional discharge, dispersal of "property damage" that the insured or release of the fuels, would have in the absence of such lubricants or other operating request, demand, order or statutory or fluids; or if such fuels, regulatory requirement, or such claim lubricants or other operating or "suit" by or on behalf of a fluids are brought on or to the governmental authority. premises, site or location with the intent that they be discharged, dispersed or Form SS 00 08 04 05 Paae 5 of 24 BUSINESS LIABILITY COVERAGE FORM g. Aircraft, Auto Or Watercraft (2) The use of "mobile equipment" in, or "Bodily injury' or "property damage" arising while in practice or preparation for, a out of the ownership, maintenance, use or prearranged racing, speed or entrustment to others of any aircraft, "auto" demolition contest or in any stunting or watercraft owned or operated by or rented activity. or loaned to any insured. Use includes I. War operation and "loading or unloading'. "Bodily injury", "property damage" or This exclusion applies even if the claims "personal and advertising injury", however against any insured allege negligence or caused, arising, directly or indirectly, out of: other wrongdoing in the supervision, hiring, (1) War, Including undeclared or civil war; employment, training or monitoring of others by that insured, if the "occurrence" which (2) Warlike action by a military force, caused the "bodily injury' or "property including action in hindering or damage" involved the ownership, defending against an actual or maintenance, use or entrustment to others of expected attack, by any government, any aircraft, "auto" or watercraft that is sovereign or other authority using owned or operated by or rented or loaned to military personnel or other agents; or any insured. (3) Insurrection, rebellion, revolution, This exclusion does not apply to: usurped power, or action taken by governmental authority in hindering or (1) watercraft while ashore on premises defending against any of these. you own or rent; y j. Professional Services (2) A watercraft you do not own that is: "Bodily injury", "property damage" or (a) Less than 51 feet long; and "personal and advertising injury" arising (b) Not being used to carry persons out of the rendering of or failure to render for a charge; any professional service. This includes (3) Parking an "auto" on, or on the ways but is not limited to: next to, premises you own or rent, (1) Legal, accounting or advertising provided the "auto" is not owned by or services; rented or loaned to you or the insured; (2) Preparing, approving, or failing to (4) Liability assumed under any "insured prepare or approve maps, shop contract" for the ownership, drawings, opinions, reports, surveys, maintenance or use of aircraft or field orders, change orders, designs or watercraft; drawings and specifications; (5) "Bodily injury" or "property damage" (3) Supervisory, inspection, architectural arising out of the operation of any of or engineering activities; the equipment listed in Paragraph f.(2) (4) Medical, surgical, dental, x-ray or or f.(3) of the definition of "mobile nursing services treatment, advice or equipment"; or instruction; (6) An aircraft that is not owned by any (5) Any health or therapeutic service insured and is hired. chartered or loaned treatment; advice or instruction; with a paid crew. However, this (6) Any service, treatment, advice or exception does not apply if the insured "bodily instruction for the purpose of has any other insurance for such "property appearance or skin enhancement, hair injury" or damage", whether removal or replacement or personal the other insurance is primary, excess, contingent or on any other basis. grooming; h. Mobile Equipment (7) Optical or hearing aid services including the prescribing, preparation, "Bodily injury" or "property damage" fitting, demonstration or distribution of arising out of: ophthalmic lenses and similar (1) The transportation of "mobile equipment" products or hearing aid devices; by an "auto" owned or operated by or rented or loaned to any insured; or Paae 6 of 24 Form SS 00 08 04 05 (8) Optometry or optometric services including but not limited to examination of the eyes and the prescribing, preparation, fitting,demonstration or distribution of ophthalmic lenses and similar products: (9) Any: (a) Body piercing (not including ear piercing); (b) Tattooing, including but not limited to the insertion of pigments into or under the skin; and (c) Similar services; (10) Services in the practice of pharmacy; and (11) Computer consulting, design or programming services, including web site design. Paragraphs (4) and (5) of this exclusion do not apply to the Incidental Medical Malpractice coverage afforded under Paragraph 1.e. in Section A. - Coverages. k. Damage To Property "Property damage" to: (1) Property you own, rent or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property; (2) Premises you sell, give away or abandon, if the "property damage" arises out of any part of those premises; (3) Property loaned to you; (4) Personal property in the care, custody or control of the insured; (5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or (6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it. BUSINESS LIABILITY COVERAGE FORM Paragraphs (1), (3) and (4) of this exclusion do not apply to "property damage" (other than damage by fire) to premises, including the contents of such premises, rented to you for a period of 7 or fewer consecutive days. A separate Limit of Insurance applies to Damage To Premises Rented To You as described in Section D. - Limits Of Insurance. Paragraph (2) of this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs (3) and (4) of this exclusion do not apply to the use of elevators. Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraphs (3) and (4) of this exclusion do not apply to "property damage" to borrowed equipment while not being used to perform operations at a job site. Paragraph (6) of this exclusion does not apply to "property damage" included in the "products -completed operations hazard". I. Damage To Your Product "Property damage" to "your product" arising out of it or any part of it. m. Damage To Your Work "Property damage" to "your work" arising out of it or any part of it and included in the "products -completed operations hazard". This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. n. Damage To Impaired Property Or Property Not Physically Injured "Property damage" to "impaired property" or property that has not been physically injured, arising out of: (1) A defect, deficiency, inadequacy or dangerous condition in "your product" or "your work'; or (2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to "your product" or "your work" after it has been put to its intended use. Form SS 00 08 04 05 Paae 7 of 24 BUSINESS LIABILITY COVERAGE FORM o. Recall Of Products, Work Or Impaired (c) Title of any literary or artistic work; Property (8) Arising out of an offense committed by Damages claimed for any loss: cost or an insured whose business is: expense incurred by you or others for the (a) Advertising, broadcasting, loss of use, withdrawal, recall, inspection, publishing or telecasting; repair, replacement, adjustment, removal (b) Designing or determining content or disposal of: of web sites for others: or (1) "Your product'; (c) An Internet search, access, (2) "Your work'; or content or service provider. (3) "Impaired property"; However, this exclusion does not if such product, work or property is apply to Paragraphs a., b. and c. withdrawn or recalled from the market or under the definition of "personal and from use by any person or organization advertising injury" in Section G. — because of a known or suspected defect, Liability And Medical Expenses deficiency, inadequacy or dangerous Definitions, condition in it. For the purposes of this exclusion, p. Personal And Advertising Injury placing an "advertisement" for or "Personal and advertising injury": linking to others on your web site, by (1) Arising out of oral, written or electronic itself, is not considered the business of advertising, broadcasting, publication of material, if done by or at publishing or telecasting; the direction of the insured with knowledge of its falsity; (9) Arising out of an electronic chat room (2) Arising out of oral, written or electronic or bulletin board the insured hosts, publication of material whose first owns, or over which the insured publication took place before the exercises control; beginning of the policy period; (10) Arising out of the unauthorized use of (3) Arising out of a criminal act committed another's name or product in your e-mail by or at the direction of the insured; address, domain name or metatags, or any other similar tactics to mislead (4) Arising out of any breach of contract, another's potential customers; except an implied contract to use "advertising (11) Arising out of the violation of a another's idea" in your person's right of privacy created by "advertisement"; any state or federal act. (5) Arising out of the failure of goods, However, this exclusion does not products or services to conform with apply to liability for damages that the any statement of quality or insured would have in the absence of performance made in your such state or federal act; "advertisement"; (6) Arising out of the wrong description of (12) Arising out of: the price of goods, products or services; (a) An "advertisement" for others on (7) Arising out of any violation of any your web site; intellectual property rights such as (b) Placing a link to a web site of copyright, patent, trademark, trade others on your web site; name, trade secret, service mark or (c) Content from a web site of others other designation of origin or displayed within a frame or border authenticity. on your web site. Content includes However, this exclusion does not information, code, sounds, text, apply to infringement, in your graphics or images; or "advertisement", of (d) Computer code, software or (a) Copyright; programming used to enable: (b) Slogan, unless the slogan is also (I) Your web site; or a trademark, trade name, service (ii) The presentation or functionality mark or other designation of origin of an "advertisement" or other or authenticity; or content on your web site; Paoe 8 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (13) Arising out of a violation of any anti- (a) May be awarded or incurred by trust law; reason of any claim or suit (14) Arising out of the fluctuation in price or alleging actual or threatened injury value of any stocks, bonds or other or damage of any nature or kind to securities; or persons or property which would not have occurred in whole or in (15) Arising out of discrimination or part but for the "asbestos hazard"; humiliation committed by or at the direction of any "executive officer", (b) Arise out of any request, demand, director, stockholder, partner or order or statutory or regulatory member of the insured. requirement that any insured or others test for, monitor, clean up, q. Electronic Data remove, encapsulate, contain, Damages arising out of the loss of, loss of treat, detoxify or neutralize or in use of, damage to, corruption of, inability any way respond to or assess the to access, or inability to manipulate effects of an "asbestos hazard"; or "electronic data". (c) Arise out of any claim or suit for r. Employment -Related Practices damages because of testing for, "Bodily injury" or "personal and advertising monitoring, cleaning up, removing, injury" to, encapsulating, containing, treating, (1) A person arising out of any, detoxifying or neutralizing or in any way responding to or assessing the (a) Refusal to employ that person; effects of an "asbestos hazard". (b) Termination of that person's t. Violation Of Statutes That Govern E- employment; or Mails, Fax, Phone Calls Or Other (c) Employment -related practices, Methods Of Sending Material Or policies, acts or omissions, such as Information coercion, demotion, evaluation, "Bodily injury", "property damage", or reassignment, discipline, "personal and advertising injury' arising defamation, harassment, humiliation directly or indirectly out of any action or or discrimination directed at that omission that violates or is alleged to person; or violate: (2) The spouse, child, parent, brother or (1) The Telephone Consumer Protection sister of that person as a Act (TCPA), including any amendment consequence of "bodily injury" or of or addition to such law; "personal and advertising injury" to the (2) The CAN-SPAM Act of 2003, including person at whom any of the any amendment of or addition to such employment -related practices law; or described in Paragraphs (a), (b), or (c) above is directed. (3) Any statute, ordinance or regulation, This exclusion applies: other than the TCPA or CAN-SPAM Act of 2003, that prohibits or limits the (1) Whether the insured may be liable as sending, transmitting, communicating or an employer or in any other capacity; distribution of material or information. and Damage To Premises Rented To You — (2) To any obligation to share damages Exception For Damage By Fire, Lightning with or repay someone else who must or Explosion pay damages because of the injury. Exclusions c. through h. and k. through o. do s. Asbestos not apply to damage by fire, lightning or (1) "Bodily injury", "property damage" or explosion to premises rented to you or "personal and advertising injury" temporarily occupied by you with permission of arising out of the "asbestos hazard". the owner. A separate Limit of Insurance (2) Any damages, judgments, settlements, applies to this coverage as described in loss, costs or expenses that: Section D. - Liability And Medical Expenses Limits Of Insurance. Form SS 00 08 04 05 Paae 9 of 24 BUSINESS LIABILITY COVERAGE FORM 2. Applicable To Medical Expenses Coverage We will not pay expenses for "bodily injury": a. Any Insured To any insured, except "volunteer workers". b. Hired Person To a person hired to do work for or on behalf of any insured or a tenant of any insured. c. Injury On Normally Occupied Premises To a person injured on that part of premises you own or rent that the person normally occupies. d. Workers' Compensation And Similar Laws To a person, whether or not an "employee" of any insured, if benefits for the "bodily injury" are payable or must be provided under a workers' compensation or disability benefits law or a similar law. e. Athletics Activities To a person injured while practicing, instructing or participating in any physical exercises or games, sports or athletic contests. f. Products -Completed Operations Hazard Included with the "products -completed operations hazard". g. Business Liability Exclusions Excluded under Business Liability Coverage. C. WHO IS AN INSURED 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. c. A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insureds, but only with respect to their duties as your managers. d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. e. A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees. 2. Each of the following is also an insured: a. Employees And Volunteer Workers Your "volunteer workers" only while performing duties related to the conduct of your business, or your "employees", other than either your "executive officers" (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" or "volunteer workers" are insureds for: (1) "Bodily injury" or "personal and advertising injury": (a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), or to a co -"employee" while in the course of his or her employment or performing duties related to the conduct of your business, or to your other "volunteer workers" while performing duties related to the conduct of your business; (b) To the spouse, child, parent, brother or sister of that co - "employee" or that "volunteer worker" as a consequence of Paragraph (1)(a) above; (c) For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraphs (1)(a) or (b) above; or (d) Arising out of his or her providing or failing to provide professional health care services. If you are not in the business of providing professional health care services, Paragraph (d) does not apply to any nurse, emergency medical technician or paramedic employed by you to provide such services. (2) "Property damage" to property: (a) Owned, occupied or used by, Paae 10 of 24 Form SS 00 08 04 05 (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this insurance. e. Unnamed Subsidiary Any subsidiary and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of this Coverage Part. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and BUSINESS LIABILITY COVERAGE FORM b. Coverage under this provision does not apply to: (1) "Bodily injury" or "property damage" that occurred; or (2) "Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment' registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co -"employee" of the person driving the equipment; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5. Operator of Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co -"employee" of the person operating the watercraft; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 6. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a. through f. below are additional insureds when you have agreed, in a written Form SS 00 08 04 05 Paae 11 of 24 BUSINESS LIABILITY COVERAGE FORM contract, written agreement or because of a (e) Any failure to make such permit issued by a state or political inspections, adjustments, tests or subdivision, that such person or organization servicing as the vendor has be added as an additional insured on your agreed to make or normally policy, provided the injury or damage occurs undertakes to make in the usual subsequent to the execution of the contract or course of business, in connection agreement, or the issuance of the permit. with the distribution or sale of the A person or organization is an additional products; insured under this provision only for that (f) Demonstration, installation, period of time required by the contract, servicing or repair operations, agreement or permit. except such operations performed However, no such person or organization is an at the vendor's premises in connection with the sale of the additional insured under this provision if such product; person or organization is included as an additional insured by an endorsement issued (g) Products which, after distribution by us and made a part of this Coverage Part, or sale by you, have been labeled including all persons or organizations added or relabeled or used as a as additional insureds under the specific container, part or ingredient of any additional insured coverage grants in Section other thing or substance by or for F. —Optional Additional Insured Coverages. the vendor; or a. Vendors (h) "Bodily injury" or "property damage" arising out of the sole Any person(s) or organization(s) (referred to negligence of the vendor for its below as vendor), but only with respect to own acts or omissions or those of "bodily injury' or in "property darising damage" g its employees or anyone else out of "your products" which are distributed acting on its behalf. However, this or sold in the regular course of the vendor's exclusion does not apply to: business and only if this Coverage Part provides coverage for "bodily injury" or (I) The exceptions contained in "property damage" included within the Subparagraphs (d) or (f); or "products -completed operations hazard". (ii) Such inspections, adjustments, (1) The insurance afforded to the vendor tests or servicing as the vendor is subject to the following additional has agreed to make or normally exclusions: undertakes to make in the usual This insurance does not apply to: course of business, in connection with the distribution (a) "Bodily injury" or "property or sale of the products. damage" for which the vendor is (2) This insurance does not apply to any obligated to pay damages by insured person or organization from reason of the assumption of whom you have acquired such products, liability in a contract or agreement. or any ingredient, part or container, This exclusion does not apply to entering into, accompanying or liability for damages that the containing such products. vendor would have in the absence of the contract or agreement; b. Lessors Of Equipment (b) Any express warranty (1) Any person or organization from unauthorized by you; whom you lease equipment; but only with respect to their liability for "bodily (c) Any physical or chemical change injury", "property damage" or in the product made intentionally 'personal and advertising injury" by the vendor; caused, in whole or in part, by your (d) Repackaging, except when maintenance, operation or use of unpacked solely for the purpose of equipment leased to you by such inspection, demonstration, testing, person or organization. or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; Paae 12 of 24 Form SS 00 08 04 05 (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. c. Lessors Of Land Or Premises (1) Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a) Any "occurrence" which takes place after you cease to lease that land or be a tenant in that premises; or (b) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. d. Architects, Engineers Or Surveyors (1) Any architect, engineer, or surveyor, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (a) In connection with your premises; or (b) In the performance of your ongoing operations performed by you or on your behalf. (2) With respect to the insurance afforded to these additional insureds, the following additional exclusion applies: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services by or for you, including: (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. BUSINESS LIABILITY COVERAGE FORM e. Permits Issued By State Or Political Subdivisions (1) Any state or political subdivision, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (b) "Bodily injury" or "property damage" included within the "products - completed operations hazard". f. Any Other Party (1) Any other person or organization who is not an insured under Paragraphs a. through e. above, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (a) In the performance of your ongoing operations; (b) In connection with your premises owned by or rented to you; or (c) In connection with "your work" and included within the "products - completed operations hazard", but only if (1) The written contract or written agreement requires you to provide such coverage to such additional insured; and (ii) This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products - completed operations hazard". (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: Form SS 00 08 04 05 Paae 13 of 24 BUSINESS LIABILITY COVERAGE FORM (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. The limits of insurance that apply to additional insureds are described in Section D. — Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. — Liability And Medical Expenses General Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 2. Aggregate Limits The most we will pay for: a. Damages because of "bodily injury" and "property damage" included in the "products -completed operations hazard" is the Products -Completed Operations Aggregate Limit shown in the Declarations. b. Damages because of all other "bodily injury", "property damage" or "personal and advertising injury", including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations" owned by or rented to you. "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. This General Aggregate limit does not apply to "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a. or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one 'occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Personal And Advertising Injury Limit Subject to 2.b. above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. 5. Damage To Premises Rented To You Limit The Damage To Premises Rented To You Limit is the most we will pay under Business Liability Coverage for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same. event, whether such damage results from fire, lightning or explosion or any combination of these. 6. How Limits Apply To Additional Insureds The most we will pay on behalf of a person or organization who is an additional insured under this Coverage Part is the lesser of: a. The limits of insurance specified in a written contract, written agreement or permit issued by a state or political subdivision; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section. Paae 14 of 24 Form SS 00 08 04 05 If more than one limit of insurance under this policy and any endorsements attached thereto applies to any claim or "suit", the most we will pay under this policy and the endorsements is the single highest limit of liability of all coverages applicable to such claim or "suit". However, this paragraph does not apply to the Medical Expenses limit set forth in Paragraph 3. above, The Limits of Insurance of this Coverage Part 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 purposes of determining the Limits of Insurance. E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 1. Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part. 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit a. Notice Of Occurrence Or Offense You or any additional insured must see to it that we are notified as soon as practicable of an 'occurrence" or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the "occurrence" or offense took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the "occurrence" or offense. b. Notice Of Claim If a claim is made or "suit" is brought against any insured; you or any additional insured must: (1) Immediately record the specifics of the claim or "suit" and the date received; and (2) Notify us as soon as practicable. You or any additional insured must see to it that we receive a written notice of the claim or "suit" as soon as practicable. c. Assistance And Cooperation Of The Insured You and any other involved insured must: BUSINESS LIABILITY COVERAGE FORM (1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit"; (2) Authorize us to obtain records and other information; (3) Cooperate with us in the investigation, settlement of the claim or defense against the "suit"; and (4) Assist us, upon our request, in the enforcement of any right against any person or organization that may be liable to the insured because of injury or damage to which this insurance may also apply. d. Obligations At The Insured's Own Cost No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. e. Additional Insured's Other Insurance If we cover a claim or "suit" under this Coverage Part that may also be covered by other insurance available to an additional insured, such additional insured must submit such claim or "suit" to the other insurer for defense and indemnity. However, this provision does not apply to the extent that you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own insurance. f. Knowledge Of An Occurrence, Offense, Claim Or Suit Paragraphs a, and b. apply to you or to any additional insured only when such "occurrence", offense, claim or "suit" is known to: (1) You or any additional insured that is an individual; (2) Any partner, if you or an additional insured is a partnership; (3) Any manager, if you or an additional insured is a limited liability company; (4) Any "executive officer" or insurance manager, if you or an additional insured is a corporation; (5) Any trustee, if you or an additional insured is a trust; or (6) Any elected or appointed official, if you or an additional insured is a political subdivision or public entity, Form SS 00 08 04 05 Paae 15 of 24 BUSINESS LIABILITY COVERAGE FORM This Paragraph f. applies separately to you and any additional insured. 3. Financial Responsibility Laws a. When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, the insurance provided by the policy for "bodily injury" liability and "property damage" liability will comply with the provisions of the law to the extent of the coverage and limits of insurance required by that law. b. With respect to "mobile equipment" to which this insurance applies, we will provide any liability, uninsured motorists, underinsured motorists, no-fault or other coverage required by any motor vehicle law, We will provide the required limits for those coverages. 4. Legal Action Against Us No person or organization has a right under this Coverage Form: a. To join us as a party or otherwise bring us into a "suit" asking for damages from an insured; or b. To sue us on this Coverage Form unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this insurance or that are in excess of the applicable limit of insurance, An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative. 5. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this policy to the first Named Insured, this insurance applies: a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom a claim is made or "suit" is brought. 6. Representations a. When You Accept This Policy By accepting this policy, you agree: (1) The statements in the Declarations are accurate and complete; (2) Those statements are based upon representations you made to us; and (3) We have issued this policy in reliance upon your representations. b. Unintentional Failure To Disclose Hazards If unintentionally you should fail to disclose all hazards relating to the conduct of your business at the inception date of this Coverage Part, we shall not deny any coverage under this Coverage Part because of such failure. 7. Other Insurance If other valid and collectible insurance is available for a loss we cover under this Coverage Part, our obligations are limited as fol lows: a. Primary Insurance This insurance is primary except when b. below applies. If other insurance is also primary, we will share with all that other insurance by the method described in c. below, b. Excess Insurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis: (1) Your Work That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work"; (2) Premises Rented To You That is fire, lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; (3) Tenant Liability That is insurance purchased by you to cover your liability as a tenant for "property damage" to premises rented to you or temporarily occupied by you with permission of the owner; (4) Aircraft, Auto Or Watercraft If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Section A. —Coverages. (5) Property Damage To Borrowed Equipment Or Use Of Elevators If the loss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion k. of Section A. — Coverages. Paae 16 of 24 Form SS 00 08 04 05 (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add Others As An Additional Insured To This Insurance That is other insurance available to an additional insured. However, the fallowing provisions apply to other insurance available to any person or organization who is an additional insured under this Coverage P art: (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary, If other insurance is also primary, we will share with all that other insurance by the method described in c. below. (b) Primary And Non -Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's awn insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. BUSINESS LIABILITY COVERAGE FORM When this insurance is excess over other insurance, we will pay only our share of the amount of the lass, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the lass in the absence of this insurance; and (2) The total of all deductible and self - insured amounts under all that other insurance. We will share the remaining lass, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other insurance permits contribution by equal shares, we will fallow this method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the lass remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Underthis method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after lass to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. Form SS 00 08 04 05 Pace 17 of 24 BUSINESS LIABILITY COVERAGE FORM F. OPTIONAL ADDITIONAL INSURED COVERAGES If listed or shown as applicable in the Declarations, one or more of the following Optional Additional Insured Coverages also apply. When any of these Optional Additional Insured Coverages apply, Paragraph 6. (Additional Insureds When Required by Written Contract, Written Agreement or Permit) of Section C., Who Is An Insured, does not apply to the person or organization shown in the Declarations. These coverages are subject to the terms and conditions applicable to Business Liability Coverage in this policy, except as provided below: 1. Additional Insured - Designated Person Or Organization WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: a. In the performance of your ongoing operations; or b. In connection with your premises owned by or rented to you. 2. Additional Insured - Managers Or Lessors Of Premises a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Designated Person Or Organization; but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Declarations. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) Any 'occurrence" which takes place after you cease to be a tenant in that premises; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 3. Additional Insured -Grantor Of Franchise WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Grantor Of Franchise, but only with respect to their liability as grantor of franchise to you, 4. Additional Insured - Lessor Of Leased Equipment a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Lessor of Leased Equipment, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. 5. Additional Insured - Owners Or Other Interests From Whom Land Has Been Leased a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Owners Or Other Interests From Whom Land Has Been Leased, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land leased to you and shown in the Declarations. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) Any "occurrence" that takes place after you cease to lease that land; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 6. Additional Insured - State Or Political Subdivision — Permits a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the state or political subdivision shown in the Declarations as an Additional Paae 18 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Insured — State Or Political Subdivision - (e) Any failure to make such Permits, but only with respect to inspections, adjustments, tests or operations performed by you or on your servicing as the vendor has agreed behalf for which the state or political to make or normally undertakes to subdivision has issued a permit. make in the usual course of b. With respect to the insurance afforded to business, in connection with the these additional insureds, the following distribution or sale of the products; additional exclusions apply: (f) Demonstration, installation, This insurance does not apply to: servicing or repair operations, except such operations performed 1 "Bodily injury", "property damage" or () Y 1 �'��� P P Y 9 at the vendor's premises in "personal and advertising injury" connection with the sale of the arising out of operations performed for product; the state or municipality; or (g) Products which, after distribution (2) "Bodily injury" or "property damage" or sale by you, have been labeled included in the "product -completed or relabeled or used as a operations" hazard. container, part or ingredient of any 7. Additional Insured —Vendors other thing or substance by or for a. WHO IS AN INSURED under Section C. is the vendor; or amended to include as an additional (h) "Bodily injury" or "property insured the person(s) or organization(s) damage" arising out of the sole (referred to below as vendor) shown in the negligence of the vendor for its Declarations as an Additional Insured - own acts or omissions or those of Vendor, but only with respect to "bodily its employees or anyone else injury" or "property damage" arising out of acting on its behalf. However, this "your products" which are distributed or exclusion does not apply to: sold in the regular course of the vendor's (i) The exceptions contained in business and only if this Coverage Part Subparagraphs d () or (�; or provides coverage for "bodily injury" or "property damage" included within the (I I) Such inspections, "products -completed operations hazard". adjustments, tests or servicing as the vendor has agreed to b. The insurance afforded to the vendor is make or normally undertakes subject to the following additional exclusions: to make in the usual course of (1) This insurance does not apply to: business, in connection with (a) "Bodily injury" or "property the distribution or sale of the damage" for which the vendor is products. obligated to pay damages by (2) This insurance does not apply to any reason of the assumption of insured person or organization from liability in a contract or agreement. whom you have acquired such This exclusion does not apply to products, or any ingredient, part or liability for damages that the container, entering into, vendor would have in the absence accompanying or containing such of the contract or agreement; products, (b) Any express warranty 8. Additional Insured — Controlling Interest unauthorized by you; WHO IS AN INSURED under Section C. is (c) Any physical or chemical change amended to include as an additional insured in the product made intentionally the person(s) or organization(s) shown in the by the vendor; Declarations as an Additional Insured — (d) Repackaging, unless unpacked Controlling Interest, but only with respect to solely for the purpose of inspection, their liability arising out of: demonstration, testing, or the a. Their financial control of you; or substitution of parts under b. Premises they own, maintain or control instructions from the manufacturer, while you lease or occupy these premises. and then repackaged in the original container; Form SS 00 08 04 05 Paae 19 of 24 BUSINESS LIABILITY COVERAGE FORM This insurance does not apply to structural alterations, new construction and demolition operations performed by or for that person or organization. 9. Additional Insured — Owners, Lessees Or Contractors — Scheduled Person Or Organization a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Owner, Lessees Or Contractors, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whale or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (1) In the performance of your ongoing operations for the additional insured(s); or (2) In connection with "your work" performed for that additional insured and included within the "products - completed operations hazard", but only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products -completed operations hazard". b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to "bodily injury", "property damage" or "personal an advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: (1) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (2) Supervisory, inspection, architectural or engineering activities. 10. Additional Insured — Co -Owner Of Insured Premises WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or Organization(s) shown in the Declarations as an Additional Insured — Co - Owner Of Insured Premises, but only with respect to their liability as co-owner of the premises shown in the Declarations. The limits of insurance that apply to additional insureds are described in Section D. — Limits Of Insurance. Haw this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. — Liability And Medical Expenses General Conditions. G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 1. "Advertisement" means the widespread public dissemination of information or images that has the purpose of inducing the sale of goads, products or services through: a. (1) Radio; (2) Television; (3) Billboard; (4) Magazine; (5) Newspaper; b. The Internet, but only that part of a web site that is about goads, products or services for the purposes of inducing the sale of goads, products or services; or c. Any other publication that is given widespread public distribution. However, "advertisement" does not include: a. The design, printed material, information or images contained in, on or upon the packaging or labeling of any goads or products; or b. An interactive conversation between or among persons through a computer network. 2. "Advertising idea" means any idea for an "advertisement". 3. "Asbestos hazard" means an exposure or threat of exposure to the actual or alleged properties of asbestos and includes the mere presence of asbestos in any farm. 4. "Auto" means a land motor vehicle, trailer or semi -trailer designed for travel on public roads, including any attached machinery or equipment. But "auto' does not include "mobile equipment". 5. "Bodily injury" means physical. a. I nj ury; b. Sickness; or c. Disease sustained by a person and, if arising out of the above, mental anguish or death at any time. 6. "Coverage territory" means: Paae 20 of 24 Form SS 00 08 04 05 a. The United States of America (including its territories and possessions), Puerto Rico and Canada; b. International waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in a. above; c. All other parts of the world if the injury or damage arises out of: (1) Goods or products made or sold by you in the territory described in a. above; (2) The activities of a person whose home is in the territory described in a. above, but is away for a short time on your business; or (3) "Personal and advertising injury" offenses that take place through the Internet or similar electronic means of communication provided the insured's responsibility to pay damages is determined in the United States of America (including its territories and possessions), Puerto Rico or Canada, in a "suit" on the merits according to the substantive law in such territory, or in a settlement we agree to. 7. "Electronic data" means information, facts or programs: a. Stored as or on; b. Created or used on; or c. Transmitted to or from computer software, including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. 8. "Employee" includes a "leased worker". "Employee" does not include a "temporary war ke r". 9. "Executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document. 10. "Hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. 11. "Impaired property" means tangible property, other than "your product" or "your work", that cannot be used or is less useful because: a. It incorporates "your product' or "your work" that is known or thought to be defective, deficient, inadequate or dangerous; or BUSINESS LIABILITY COVERAGE FORM b. You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by: a. The repair, replacement, adjustment or removal of "your product" or "your work"; or b. Your fulfilling the terms of the contract or agreement. 12. "Insured contract" means: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire, lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner is subject to the Damage To Premises Rented To You limit described in Section D. — Liability and Medical Expenses Limits of Insurance. b. A sidetrack agreement; c. Any easement or license agreement, including an easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad; d. Any obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e. An elevator maintenance agreement; or f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization, provided the "bodily injury" or "property damage" is caused, in whole or in part, by you or by those acting on your behalf. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. includes that part of any contract or agreement that indemnifies a railroad for "bodily injury" or "property damage" arising out of construction or demolition operations within 50 feet of any railroad property and affecting any railroad bridge or trestle, tracks, road -beds, tunnel, underpass or crossing. However, Paragraph f. does not include that part of any contract or agreement: Form SS 00 08 04 05 Pace 21 of 24 BUSINESS LIABILITY COVERAGE FORM (1) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; or (2) Under which the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in (1) above and supervisory, inspection, architectural or engineering activities. 13. "Leased worker" means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. "Leased worker" does not include a "temporary worker". 14. "Loading or unloading" means the handling of property: a. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or "auto"; b. While it is in or on an aircraft, watercraft or "auto" or c. While it is being moved from an aircraft, watercraft or "auto" to the place where it is finally delivered; but "loading or unloading" does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or "auto". 15. "Mobile equipment" means any of the following types of land vehicles, including any attached machinery or equipment: a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; b. Vehicles maintained for use solely on or next to premises you own or rent; c. Vehicles that travel on crawler treads; d. Vehicles, whether self-propelled or not, on which are permanently mounted: (1) Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equipment such as graders, scrapers or rollers; e. Vehicles not described in a., b., c., or d. above that are not self-propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types: (1) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment; or (2) Cherry pickers and similar devices used to raise or lower workers; f. Vehicles not described in a., b., c., or d. above maintained primarily for purposes other than the transportation of persons or cargo. However, self-propelled vehicles with the following types of permanently attached equipment are not "mobile equipment" but will be considered "autos": (1) Equipment, of at least 1,000 pounds gross vehicle weight, designed primarily for: (a) Snow removal; (b) Road maintenance, but not construction or resurfacing; or (c) Street cleaning; (2) Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and (3) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment. 16. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. 17. "Personal and advertising injury" means injury, including consequential "bodily injury", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; Paae 22 of 24 Form SS 00 08 04 05 c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a roam, dwelling or premises that the person occupies, committed by or on behalf of its owner, landlord or lessor; d. Oral, written or electronic publication of material that slanders or libels a person or organization or disparages a person's or organization's goads, products or services; e. Oral, written or electronic publication of material that violates a person's right of privacy; f. Copying, in your "advertisement", a person's or organization's "advertising idea" or style of "advertisement"; g. Infringement of copyright, slogan, or title of any literary or artistic work, in your "advertisement"; or h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person. 18. "Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. 19. "Products -completed operations hazard"; a. Includes all "bodily injury" and "property damage" occurring away from premises you awn or rent and arising out of "your product" or "your work" except: (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned. However, "your work" will be deemed to be completed at the earliest of the fallowing times: (a) When all of the work called for in your contract has been completed. (b) When all of the work to be done at the jab site has been completed if your contract calls for work at more than one jab site. (c) When that part of the work done at a jab site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. BUSINESS LIABILITY COVERAGE FORM Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. The "bodily injury" or "property damage" must occur away from premises you awn or rent, unless your business includes the selling, handling or distribution of "your product" for consumption on premises you awn or rent. b. Does not include "bodily injury" or "property damage" arising out of: (1) The transportation of property, unless the injury or damage arises out of a condition in or on a vehicle not awned or operated by you, and that condition was created by the "loading or unloading" of that vehicle by any insured; or (2) The existence of tools, uninstalled equipment or abandoned or unused materials. 20. "Property damage" means: a. Physical injury to tangible property, including all resulting lass of use of that property. All such lass of use shall be deemed to occur at the time of the physical injury that caused it; or b. Lass of use of tangible property that is not physically injured. All such lass of use shall be deemed to occur at the time of "occurrence" that caused it, As used in this definition, "electronic data" is not tangible property. 21. "Suit" means a civil proceeding in which damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies are alleged. "Suit" includes: a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. 22. "Temporary worker" means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions. 23. "Volunteer worker" means a person who a. Is not your "employee"; Form SS 00 08 04 05 Pace 23 of 24 BUSINESS LIABILITY COVERAGE FORM b. Donates his or her work; c. Acts at the direction of and within the scope of duties determined by you; and d. Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. 24. "Your product': a. Means: (1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (a) You; (b) Others trading under your name; or (c) A person or organization whose business or assets you have acquired; and (2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your product; and (2) The providing of or failure to provide warnings or instructions. c. Does not include vending machines or other property rented to or located for the use of others but not sold. 25. "Your work": a. Means: (1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or operations. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your work"; and (2) The providing of or failure to provide warnings or instructions. Paae 24 of 24 Form SS 00 08 04 05