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Home My WebLink AboutReso 26-20 Approving a Consulting Services Agreement with Procure AmericaReso No. 26-20, Item 4.2, Adopted 04/21/20 Page 1 of 1 RESOLUTION NO. 26 - 20 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * APPROVING A CONSULTING SERVICES AGREEMENT WITH PROCURE AMERICA FOR BUSINESS INTELLIGENCE SERVICES WHEREAS, the City of Dublin strives to be a good steward of public monies by operating in an efficient and effective manner; and WHEREAS, Procure America assists agencies by analyzing existing bills and contracts to identify potential savings in expense categories for utilities, telecommunications, document management, waste and recycling, and treasury services; and WHEREAS, Procure America will conduct these analyses for free and will only charge a fee based off of a percentage of the total amount of savings actualized; and WHEREAS, the City anticipates this work may result in a cost savings to the City for which the fee to Procure America may exceed the City Manager’s contract signing authority. NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Dublin does hereby approve a Consulting Services Agreement with Procure America for Business Intelligence Services, as attached hereto as Exhibit A to this Resolution; and, BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Agreement, attached hereto, and may any necessary, non -substantive changes to carry out the intent of this Resolution. PASSED, APPROVED AND ADOPTED this 21st day of April 2020, by the following vote: AYES: Councilmembers Goel, Hernandez, Josey, Kumagai and Mayor Haubert NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: ________________________________ City Clerk DocuSign Envelope ID: 299E7757-5D30-419E-8B76-498E01221F5B Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 1 of 13 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND PROCURE AMERICA, INC. FOR BUSINESS INTELLIGENCE SERVICES THIS AGREEMENT for consulting services is made by and between the City of Dublin (“City”) and Procure America, Inc. (“Consultant”) (together sometimes referred to as the “Parties”) as of May 1, 2020 (the “Effective Date”). Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on April 30, 2025, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as referenced in Section 8. Notwithstanding the foregoing this Agreement may be extended on a month to month basis for up to 6 months upon the written consent of the Consultant and the City Manager, provided that: a) sufficient funds have been appropriated for such purchase, b) the price charged by the Consultant for the provision of the serves described in Exhibit A does not increase. None of the foregoing shall affect the City’s right to terminate the Agreement as provided for in Section 8. 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged. 1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Subsection 1.2 above and to satisfy Consultant’s obligations hereunder. Section 2. COMPENSATION. There will be no up-front fees and Consultant shall only be compensated as set forth in Exhibit B for work performed in accordance with Exhibit A. City shall have no obligation to pay any sum in excess of that specified in Exhibit B, unless authorized by amendment in accordance with Section 1.1 of this Agreement. Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 2 of 13 In the event of a conflict between this Agreement and Consultant’s proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person. 2.1 Invoices. The Consultant shall submit invoices to City on Consultant’s letterhead. Each invoice shall have a unique number and shall include, at minimum, the following information: a.Consultant’s name and address (as specified in this Agreement) b.Consultant’s remittance address, if difference from (a.) above c.Name of City department/contact person d.Contract or PO number must be reference on all invoices e.Delivery/Service address f.Service Date g.Consultant’s Tax Identification Number (TIN) or Employer’s Identification Number (EIN) h.Description of services i.Total dollar amount of invoice j.The Consultant’s signature 2.2 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.3 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.4 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date. 2.5 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 3 of 13 Section 3. FACILITIES AND EQUIPMENT.Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before fully executing this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid or proposal. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence to City that such insurance is in effect. VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED AND MADE PART OF THIS AGREEMENT PRIOR TO EXECUTION. Consultant shall maintain all required insurance listed herein for the duration of this Agreement. 4.1 Workers’ Compensation. 4.1.1 General Requirements. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than $1,000,000 per accident. In the alternative, Consultant may rely on a self-insurance program to meet these requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the Consultant, its employees, agents, and subcontractors. Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 4 of 13 4.1.2 Submittal Requirements. To comply with Subsection 4.1, Consultant shall submit the following: a.Certificate of Liability Insurance in the amounts specified in the section; and b. Waiver of Subrogation Endorsement as required by the section. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General Requirements. Consultant, at its own cost and expense, shall maintain commercial general liability insurance for the term of this Agreement in an amount not less than $1,000,000 and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles. 4.2.2 Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001, Code 1 (any auto). No endorsement shall be attached limiting the coverage. 4.2.3 Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy: a. The Insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. b. City, its officers, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of work or operations performed by or on behalf of the Consultant; or automobiles owned, leased, hired, or borrowed by the Consultant. c. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation. Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 5 of 13 d. For any claims related to this Agreement or the work hereunder, the Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. 4.2.4 Submittal Requirements. To comply with Subsection 4.2, Consultant shall submit the following: a.Certificate of Liability Insurance in the amounts specified in the section; b.Additional Insured Endorsement as required by the section; c.Waiver of Subrogation Endorsement as required by the section; and d.Primary Insurance Endorsement as required by the section. 4.3 Professional Liability Insurance. 4.3.1 General Requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $2,000,000 covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim. 4.3.2 Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least 5 years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant shall purchase an extended period coverage for a minimum of 5 years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be submitted to the City for review prior to the commencement of any work under this Agreement. Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 6 of 13 4.3.3 Additional Requirements. A certified endorsement to include contractual liability shall be included in the policy. 4.3.4 Submittal Requirements. To comply with Subsection 4.3, Consultant shall submit the Certificate of Liability Insurance in the amounts specified in the section. 4.4 All Policies Requirements. 4.4.1 Acceptability of Insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of Coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with complete copies of all Certificates of Liability Insurance delivered to Consultant by the insurer, including complete copies of all endorsements attached to the policies. All copies of Certificates of Liability Insurance and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Consultant beginning work, it shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time. 4.4.3 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. 4.4.4 Wasting Policies. No policy required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense). 4.4.5Endorsement Requirements. Each insurance policy required by Section 4 shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days’ prior written notice has been provided to the City. 4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 7 of 13 are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach: Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES. Refer to the attached Exhibit C, which is incorporated herein and made a part of this Agreement. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Consultant’s failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract. Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 8 of 13 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, sex, gender, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition (including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed, pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran status, or any other classification protected by applicable local, state, or federal laws (each a “Protected Characteristic”), against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 30 days’ written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 9 of 13 agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but are not limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 10 of 13 those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties. 9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Subsection 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of 3 years after final payment under the Agreement. Section 10. MISCELLANEOUS PROVISIONS. 10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 11 of 13 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties. 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Section 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous 12 months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of California Government Code Section 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of California Government Code Section 1090 et seq., and, if applicable, will be disqualified from holding public office in the State of California. At City’s sole discretion, Consultant may be required to file with the City a Form 700 to identify and document Consultant’s economic interests, as defined and regulated by the California Fair Political Practices Commission. If Consultant is required to file a Form 700, Consultant is hereby advised to contact the Dublin City Clerk for the Form 700 and directions on how to prepare it. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by the City Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Procure America Inc. Attn: Fred Armendariz 31103 Rancho Viejo Rd., #D2102 Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 12 of 13 San Juan Capistrano, CA 92675 Any written notice to City shall be sent to: City of Dublin Attn: City Manager 100 Civic Plaza Dublin, CA 94568 10.11 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A, B, C, and D represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. Exhibit A Scope of Services Exhibit B Compensation Schedule Exhibit C Indemnification Exhibit D Orange County Regional Cooperative Agreement 10.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 10.13 Certification per Iran Contracting Act of 2010. In the event that this contract is for one million dollars ($1,000,000.00) or more, by Consultant’s signature below Consultant certifies that Consultant, and any parent entities, subsidiaries, successors or subunits of Consultant are not identified on a list created pursuant to subdivision (b) of Section 2203 of the California Public Contract Code as a person engaging in investment activities in Iran as described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b) of Section 2202.5 of the California Public Contract Code, as applicable. SIGNATURES ON FOLLOWING PAGE Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 13 of 13 The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear below certify that they are authorized to sign on behalf of the respective Party. CITY OF DUBLIN PROCURE AMERICA INC. Linda Smith, City Manager Fred Armendariz, CEO Attest: Caroline Soto, City Clerk Approved as to Form: City Attorney 3070368.1 Consulting Services Agreement between City of Dublin and Last revised [04/02/2020] Procure America Inc. for Business Intelligence Services Exhibit A – Page 1 of 4 EXHIBIT A SCOPE OF SERVICES Procure America is the Country’s leading business intelligence firm supporting government agencies with Enterprise Strategic Plans (ESP) specifically designed to deliver expense reduction and operational efficiency. With over 2 billion dollars of client expenses under management, our expertise and track record are second to none in this space. Each of the Procure America’s 6 practice groups: Utilities, Waste & Recycling, Document Management, Telecommunications, Treasury and Risk Management are staffed with highly experienced professionals who come directly from the industry in which they practice delivering insight, innovation, intelligence and results. In 2019, Procure America was awarded a Regional Cooperative Agreement (OC-RCA 017-19010018) by the County of Orange, for the services under consideration by City of Dublin. The following Scope of Work mirrors the OC-RCA in project scope, compensation and mission deliverables. A copy of the Regional Cooperative Agreement can be found in Exhibit D. OBJECTIVE Procure America’s mission objective is to deliver the City of Dublin (Client) an Enterprise Strategic Plan (ESP) to minimize the City’s utility, telecommunications, document management and treasury costs. Our team of professionals will use their best efforts to obtain cost savings for the City by analyzing the Client’s policies, procedures, supplier contracts, inventory of meters and services, equipment, past invoices and other pertinent information as it relates to the expense categories stated in this proposal. Procure America cost reviews require minimal staff time, with no disruptions to the City’s daily operations. Our teams are self-contained with analytics, technology and any resources needed to accomplish the assigned review as outlined in this proposal. UTILITIES- Tariff Rate Optimization Study – TROS® This analysis is unique and highly specialized in that our work is primarily a legal review of tariff rates, transmission fees and surcharge structures. The study also includes: a forensic legal review of the California Public Utility Commission's (CPUC) rulings; interpretations and regulations as it applies to commercial and governmental tariff rate assignments; and how the providers are applying said rates structures to the City. Further, our team has deep experience in municipal tax code applications and apply this expertise to our client's various North American Industry Classification System (NAICS) designations in search of exemptions and cost mitigation opportunities through individual meter rate modeling and other measures. Procure America conducts TROS® reviews using methods, technology, and human capital that are highly specialized and proprietary. Procure America staff’s qualifications to conduct a TROS® review requires both a legal background and operational-engineering experience in order to understand, identify and implement the most “favorable” CPUC adjudicated rate structures available, and to recognize less than apparent tariff rate designations and tax mitigation that may benefit our clients. TELECOMMUNICATIONS COST REVIEW The Telecommunications Cost Review seeks to reduce the City’s landline voice, data and wireless costs while maintaining or improving service levels. This detailed and specialized review goes far beyond a typical telecom bill audit which is focused on identifying past carrier billing errors. Bringing decades of industry experience, Procure America’s team will review every phone line, circuit and wireless device to identify services that are not on the most appropriate plan offered by the carrier. Legacy services that can be replaced by more efficient Consulting Services Agreement between City of Dublin and Last revised [04/02/2020] Procure America Inc. for Business Intelligence Services Exhibit A – Page 2 of 4 technologies will be identified along with specific recommendations to the City. Contract optimization plays a role in identifying savings opportunities; therefore, we conduct a forensic review of contract terms and compare to industry best practices, cost model comparisons and governmental program modeling. Our goal is to optimize the agreement to the Client’s specific goals and needs. Our team has extensive knowledge of public-sector telecom purchasing contracts and will apply this expertise to identify any contracting vehicles that will benefit the City of Dublin. DOCUMENT MANAGEMENT COST REVIEW While Procure America has experience working with all manufacturers and service providers in the industry including Xerox, HP, Sharp, Ricoh, Konica and others, we remain completely vendor and hardware neutral. We have access to databases of vendors, pricing and performance-related metrics providing insight into how various brands and models perform in different environments. Our process includes establishing the historical cost and objective assessment of all copier and printer devices, all pages, everywhere throughout the organization, including scanning and faxing processes. We focus on optimization from the very start of the assessment through the acquisition, and ultimately the daily management of devices. In the end, our comprehensive analysis will provide recommendations on print cost reduction and management, including operation and service enhancements. Procure America will work to develop cost savings strategies to meet the City's needs, goals, and efficiencies with reduced pricing. TREASURY COST REVIEW Procure America specializes in minimizing costs associated with accepting credit cards and other forms of electronic payment. As vendor neutral experts in the payments industry, we employ a comprehensive strategy to redirect those fees back to our clients. In contract to belief, pricing is only part of the equation. In order to minimize the City’s credit card processing costs, Procure America provides very specific pricing and terms to ensure transactions are clearing at the lowest cost method. Further, our recommendations strive to increase efficiency and a better, more transparent relationship with your processing vendors. A comprehensive ESP will be generated with our findings and recommendations will be presented to the City, along with a discussion on the various options presented to pursue savings. Additionally, we will also advise on methods or emerging technology that could further reduce costs for the City. Enterprise Strategic Plan (ESP) Process: 1. Gathering Historical Data - Procure America will gather and organize historical billing information for all the City’s utility, telecommunications, document management and treasury (electronic payment processing) accounts. Where data is not readily available, Procure America will dedicate staff to work with the individual departments and providers to gather the needed billing information. This process would require limited time from City staff with the vast majority of the required information available directly to Procure America through online access with the providers. 2. Tariff Rate Analysis - Procure America analyzes the data accumulated in light of applicable tariffs, statutes, California Public Utilities Commission (CPUC) decisions and specific rate structures. All utility accounts are reviewed to determine whether they are being billed correctly, and whether they have been billed appropriately in the past. Procure America’s analysis includes but is not limited to the investigation of billing calculations, inappropriate rate schedules, proper metering of services, optional rates, applicability of taxes and surcharges, baseline and lifeline allowance calculations, meter multipliers, and rules and regulations affecting billing. Consulting Services Agreement between City of Dublin and Last revised [04/02/2020] Procure America Inc. for Business Intelligence Services Exhibit A – Page 3 of 4 Where the TROS® review starts with the historical aspect of the client’s expenses associated to rate structures, the more significant and long-term value associated to the study stems from the alternative rates available to the client moving forward. In the rate modeling component of a TROS® review, the analyst mathematically tests alternate tariff rates the client is entitled to use per CPUC rules and regulations. These alternative tariffs are based on a myriad of qualifiers including various industry NAICS codes designations, specific usage rates, load profiles, technology, 15-minute interval data and other influencers, including the new PG&E Time-of-Use structures (see section 8 for additional detail). The go-forward cost reduction aspect of the rate modeling element of a TROS® review has an extended shelf life that will continue for many years into the future. 3. Telecommunications Cost Analysis - Procure America utilizes historical billing information and carrier Customer Service Records to create a complete and current inventory of all landline voice, data and wireless services by location. Each account is reviewed to determine if services are being billed correctly per the terms of the contract and whether they have been billed appropriately in the past. Procure America’s analysis includes a review of monthly recurring costs, usage charges, equipment charges, feature charges and the applicability of taxes and surcharges. Opportunities to reduce ongoing costs with improved carrier pricing or by utilizing available purchasing contracts are identified. Based on line-by-line usage studies, Procure America will recommend the most cost-effective carrier plans for each phone line, circuit and wireless device. Usage reports, dial studies and data traffic studies are used to identify phone lines, circuits and wireless devices that appear to be unused and may no longer be needed. 4. Document Management Cost Analysis – Procure America’s team will gather information from the City and from the City's vendors including service history information for the past months, purchase and/or lease information and service contract information. Thereafter, we will assess the current pricing, printing, copying, scanning and faxing environment to provide recommendations related to the deployment of devices, policies, and procedures in order to obtain the advantages of a more streamlined and efficient document output fleet for the City. Procure America will also obtain data from the devices, interview key personnel, conduct a site visit to couple equipment with location, review service histories and supply pricing to establish cost and service benchmarking. A complete equipment list of inventory, establishing a baseline in pricing and the detailed print environment will be complied into a report with recommendations on print cost reduction and management. This detailed ESP includes an Excel file with a comprehensive cost analysis report at the individual asset level for all devices including all costs of operation for hardware/software, service, and supplies (ink/toner). Our analysis may recommend the City conducts a Request for Proposal (RFP) for Managed Print Services. If so, Procure America will work with the City's staff to develop the RFP specifications and assist writing the RFP, aligning the overall strategy and goals of the City. Procure America will assist the City evaluating the technical specifications of various models, advise on the selection of devices and ultimately awarding the contract for equipment, supplies and services specific to optimize the City’s document management needs. 5. Treasury Cost Analysis – After a preliminary review of 4 months of recent processing statements, we will request a call with the City’s designated staff member(s) to get a deep understanding of Interchange and Interchange Compliance, as well as all the alternative models that could work given the City’s needs. Thereafter, we will do our analysis to Consulting Services Agreement between City of Dublin and Last revised [04/02/2020] Procure America Inc. for Business Intelligence Services Exhibit A – Page 4 of 4 deliver a savings strategy by reducing fees associated with accepting credit, debit and other forms of electronic payment. A comprehensive report will be generated with our findings and recommendations will be presented to the City of Dublin. Based on our analysis will work with the City to determine if remaining with the existing processor (our preference), consolidating to one of the existing processors (if there are multiple providers) or if selecting an alternative trusted vendor is the best course to achieve cost savings. Thereafter, Procure America can either negotiate on behalf of the City or advise the City on how to drive price and operations toward the desired targets. 6. Report Submission - The ESP reports will summarize the results of the Telecommunications, Document Management, Treasury and TROS® reviews. The reports will contain an explanation of legal grounds for all refunds and cost reduction opportunities identified for each account, including calculations of the estimated savings and refunds expected to be achieved. 7. Implementation of Changes/Recovery of Refunds - Procure America takes all necessary steps to implement the City’s approved recommended changes and collect refunds for past billing errors. This work includes preparing documentation supporting Procure America’s recommended rate applications and if necessary, communicating or meeting with provider personnel to discuss each request. No involvement is required by City staff other than in an advisory capacity and for final approval. ESP DELIVERABLES 1. Analysis of historical usage data on all reviewed accounts 2. Legal and performance review of Power Purchase Agreements (PPA) 3. Complete inventory of all telecommunications services, hardware and phonelines 4. Complete inventory of all print management devices by location 5. Strategic go-forward findings report with recommendations to reduce costs 6. Implement all City approved recommendations 7. Evaluate any requests denied by utility provider and appeal to CPUC if appropriate and approved by the Client 8. Direct communication with carriers to confirm proper implementation 9. Work on behalf or advise the City on merchant account recommendations 10. Document and collect refunds for past overcharges 11. Monthly auditing of vendor invoices to verify cost reduction 12. Ongoing cost reduction review Consulting Services Agreement between City of Dublin and Last revised [04/02/2020] Procure America Inc. for Business Intelligence Services Exhibit B – Page 1 of 1 EXHIBIT B COMPENSATION SCHEDULE Procure America’s compensation proposal to the City is 100% contingency based. The ESP report will document the Established Rates and specific recommendations for cost reduction and outline the methodology used. If the City elects to proceed with any or all of the recommendations as set forth in the ESP report. City will pay fees at the following percentage rate of cost savings/refunds, per audit review, after City approves and receives Consultant recommendations in accordance with the provisions of this Agreement. x30% of actual cost recovered for each month in the targeted expense category(s), for sixty (60) consecutive months. Consulting Services Agreement between City of Dublin and Last revised [04/02/2020] Procure America Inc. for Business Intelligence Services Exhibit C – Page 1 of 1 EXHIBIT C INDEMNIFICATION Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, elected officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the services called for or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City. Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of Consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782. The Consultant’s obligation to defend and indemnify shall not be excused because of the Consultant’s inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within 30 days to the tender of any claim for defense and indemnity by the City. 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છԒకखޭ҈?చĔޮଡ଼ۖଷచǼࡄࡅࣕޯ஄ȶచް҉చĕޱۗજࣖǽʲઝ޲ࣗৄచࣽћࡆ޳ॊ৅@చ ҡ؄И৆చࡇࣘచ ̔޴ʳ௥ٯЙۘઞেచৈوǾ؅؆చۙ޵ટచɘКచଢ଼৉Л̕చǿ৊చȀచˑџҞۚোМచəேచĖ޶ۛଧʴઠ޷ࣙచպۜచȩ܇ைచȁʵડջ޸۝చɚН૞஫ОƍП۞చઢԓРచė޹டણସచȂ̖۟చ Ę߷૲±ʶત޺ࣚచఖ̗చଋСచࣛТࡈ޻ࣜ଩AచҔ֖؇Уৌచŧࣝచ̘޼ʷ୪٫Ф۠થ্చ஠֥حخచɛХచࣞЦଭۡЧ̙చદ޽చę߸ଣȃʸધ޾ࣟచҕߧ࣠చʹ޿सШʺ଑߀ۢBచ ¤ÃņЩ஡ৎ؈Ũ࣡٢Ȅનռ߁ۣచūЪȅ৏ЫØచ ŲԨЬచĚ߂ۤ૟ࣾȆʻૠߨ࣢చȇӚЭЮ৐઩ɜȈપսగచ஢վأؤచۥ߃ફచտ৑৒୞Яచȹ௉చۦаண৓చࣣбإќȿв৔చ߄ࣤ ٣ȉטгచȪ܈ொ௧ʼ߅ۧબȊʽભதրમԔచયԕдచ٤е֗̚ȟచ֦܍చěŎ؉ئا؊Ĝĝર֨߭ۨచƀց઱Ԗచж֫ૣԗзࣥచલԘиచ ȋ஥Ȭँ̛చ߆Ҋળԙւ৕చı߇۩઴ࣦȌʾવ߈ࣧȳ۪ࣨ ৖ୟɢৗйࡢୠк۫શచȍ٥ѡ܊̫٬л۬ષచ߉ҋßచߊࣩచмҌҭेచ୳ܔ̜н࣪చଌփ৘௨ĞߩۿତȎʿસCచğߋۭଥȏˀଗ࣫৙చ܀§ୡ৚હచҤ৛઺చߌɝૹքۮచ࣬оஅօп஦చȐۯ̝ ȑࡉࡊ࣭ߍஆȒ؋చߎқ৭ȓ֤̮۰р஧ড়చ٦с̞ֆȔచˁߏ۱઻ȕ˂઼చҲߐ٧చઽԚтచĠߑ୺ાோచિԛҖȠୢӑԜచૡԦуచ௕àߒ୻ߪచĪŘðచ ïܖௌచ࣮ఘࡣ଒фঢ়ી৞ҍߓ࣯ և۲ુхॐ֘ѝநয়చߔࣰచֈ۳ҮऩȖૂ֩߮۴చࣱц˃ч։இш̟చɞ்చૃԝщచ٨ъ̠֙ȡచৠԞߕୣ،̡చɟыచࣲьҎచэहю̢చ̣׋я˄ૄ؍௎చૅߖచ૆ԟѐచġߗ୤۵ે௏ Ģߘ۶ଦȗ˅ૢ߫ीచ۷Äૈచȭ୫ૉԠߙ֚ࣿ௔ё̤చҚ߬చৡђ॑ѓచȘৢచșచ¸є̥֢ȯచৣࡋߵѕ৴іࣳ৤ߚढ৥చүࣴచģߛ୥۸ହచࡌࣵߴїˆ૊০చன֊ોԡߜ୦ૌచҗ֛ࣶ১્ ߝɠ૎Ț֋ܘӒࡍјप֜৪২֌ߞ۹చҳߟ٩చ ĤߠŸ܁଺ఙ ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? INSR ADDL SUBRLTR INSD WVD PRODUCER CONTACTNAME: FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATIONAND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH-STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD PROCU-1 OP ID:FD 04/03/2020 Frank Dungan Brakke-Schafnitz Ins. Brokers License #0K07568 28202 Cabot Road, Suite 600 Laguna Niguel, CA92677-1251 Frank Dungan 949-365-5116 frank.dungan@sig.us Sentinel Insurance Company Procure America 31103 Rancho Viejo Rd. #D2102 San Juan Capistrano, CA 92675 A X 2,000,000 X Y 72SBAAP4101 01/06/2020 01/06/2021 1,000,000 10,000 2,000,000 4,000,000 X 4,000,000 2,000,000A 72SBAAP4101 01/06/2020 01/06/2021 XX XX 1,000,000A 72SBAAP4101 01/06/2020 01/06/2021 1,000,000 10,000X The City of Dublin, its officers, officials, employees, and volunteersareincluded as additional insured per SS00080405, includes Primary Non-Contributory Wording and Waiver of Subrogation CITYDUB City of Dublin 100 CIvic Plaza Dublin, CA 94568 949-365-5116 11000 BUSINESS LIABILITY COVERAGE FORM Form SS 00 08 04 05 © 2005, The Hartford QUICK REFERENCE BUSINESS LIABILITY COVERAGE FORM READ YOUR POLICY CAREFULLY BUSINESS LIABILITY COVERAGE FORM Beginning on Page A. COVERAGES 1 1Business Liability 2Medical Expenses 2Coverage Extension - Supplementary Payments B. EXCLUSIONS 3 C. WHO IS AN INSURED 10 D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 14 E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 15 1.15Bankruptcy 2.15Duties In The Event Of Occurrence, Offense, Claim Or Suit 3.16Financial Responsibility Laws 4.16Legal Action Against Us 5.16Separation Of Insureds 6.16Representations 7.16Other Insurance 8.17Transfer Of Rights Of Recovery Against Others To Us F. OPTIONAL ADDITIONAL INSURED COVERAGES 18 18Additional Insureds G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 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. CThe word "insured" means any person or organization qualifying as such under Section . - Who Is An Insured. GOther words and phrases that appear in quotation marks have special meaning. Refer to Section . - Liability And Medical Expenses Definitions. (a)The "bodily injury" or "propertyA. COVERAGES damage" is caused by an1. BUSINESS LIABILITY COVERAGE (BODILY "occurrence" that takes place in theINJURY, PROPERTY DAMAGE, PERSONAL "coverage territory";AND ADVERTISING INJURY) (b)The "bodily injury" or "propertyInsuring Agreement 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 insureddamages because of "bodily injury",1.listed under Paragraph of Section"property damage" or "personal and C.– Who Is An Insured and noadvertising injury" to which this insurance "employee" authorized by you to giveapplies. 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 listedany "suit" seeking damages for "bodily insured or authorized "employee"injury", "property damage" or "personal and knew, prior to the policy period, thatadvertising injury" to which this insurance the "bodily injury" or "propertydoes not apply.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 period will be deemed to have been(1)The amount we will pay for damages is known prior to the policy period.D.limited as described in Section - (2)To "personal and advertising injury"Liability And Medical Expenses Limits caused by an offense arising out of yourOf Insurance; and business, but only if the offense was(2)Our right and duty to defend ends when committed in the "coverage territory"we have used up the applicable limit of during the policy period.insurance in the payment of judgments, c."Bodily injury" or "property damage" will besettlements or medical expenses to which deemed to have been known to havethis insurance applies. occurred at the earliest time when anyNo other obligation or liability to pay sums or 1.insured listed under Paragraph of Sectionperform acts or services is covered unless C.– Who Is An Insured or any "employee"explicitly provided for under Coverage authorized by you to give or receive noticeExtension - Supplementary Payments.of an "occurrence" or claim:b.This insurance applies:(1)Reports all, or any part, of the "bodily(1)To "bodily injury" and "property injury" or "property damage" to us ordamage" only if:any other insurer; Form SS 00 08 04 05 Page1of24 © 2005, The Hartford BUSINESS LIABILITY COVERAGE FORM (2) b.Receives a written or verbal demand or We will make these payments regardless of claim for damages because of the "bodily fault. These payments will not exceed the injury" or "property damage"; or applicable limit of insurance. We will pay reasonable expenses for:(3)Becomes aware by any other means that (1)"bodily injury" or "property damage" has First aid administered at the tim eofan occurred or has begun to occur. accident; d. (2)Damages because of "bodily injury" include Necessary medical, surgical,x-ray and damages claimed by any person or dental services, including prosthetic organization for care, loss of services or devices; and death resulting at any time from the "bodily (3)Necessary ambulance, hospital,injury".professional nursing and funeral e. Incidental Medical Malpractice services. (1)"Bodily injury" arising out of the 3. COVERAGE EXTENSION - rendering of or failure to render SUPPLEMENTARY PAYMENTS professional health care services as a a.We will pay, with respect to any claim orphysician, dentist, nurse, emergency "suit" we investigate or settle, or any "suit"medical technician or paramedic shall against an insured we defend:be deemed to be caused by an (1)All expenses we incur."occurrence", but only if: (2)Up to $1,000 for the cost of bail bonds(a)The physician, dentist, nurse,required because of accidents or trafficemergency medical technician or law violations arising out of the use ofparamedic is employed by you to any vehicle to which Business Liabilityprovide such services; and Coverage for "bodily injury" applies. We(b)You are not engaged in the do not have to furnish these bonds.business or occupation of providing (3)The cost of appeal bonds or bonds tosuch services.release attachments, but only for bond(2)For the purpose of determining the amounts within the applicable limit oflimits of insurance for incidental medical insurance. We do not have to furnishmalpractice, any act or omission these bonds.together with all related acts or (4)All reasonable expenses incurred by theomissions in the furnishing of these insured at our request to assist us in theservices to any one person will be investigation or defense of the claim orconsidered one "occurrence"."suit", including actual loss of earnings2. MEDICAL EXPENSES up to $500 a day because of time off Insuring Agreement from work. a.We will pay medical expenses as described (5)All costs taxed against the insured in below for "bodily injury" caused by an the "suit". accident:(6)Prejudgment interest awarded against (1)On premises you own or rent;the insured on that part of the judgment we pay. If we make an offer to pay the(2)On ways next to premises you own or applicable limit of insurance, we will notrent; or pay any prejudgment interest based on(3)Because of your operations;that period of time after the offer.provided that:(7)All interest on the full amount of any(1)The accident takes place in the judgment that accrues after entry of the "coverage territory" and during the judgment and before we have paid, policy period;offered to pay, or deposited in court the part of the judgment that is within the(2)The expenses are incurred and reported applicable limit of insurance.to us within three years of the date of the accident; and (1) (7)Any amounts paid under through above will not reduce the limits of insurance.(3)The injured person submits to examination, at our expense, by physicians of our choice as often as we reasonably require. Page 2 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM b.If we defend an insured against a "suit" So long as the above conditions are met, and an indemnitee of the insured is also attorneys' fees incurred by us in the named as a party to the "suit", we will defense of that indemnitee, necessary defend that indemnitee if all of the litigation expenses incurred by us and following conditions are met: necessary litigation expenses incurred by the indemnitee at our request will be(1)The "suit" against the indemnitee paid as Supplementary Payments.seeks damages for which the insured has assumed the liability of the Notwithstanding the provisions of 1.b.(b) B.indemnitee in a contract or agreement Paragraph of Section – that is an "insured contract"; Exclusions, such payments will not be deemed to be damages for "bodily(2)This insurance applies to such liability injury" and "property damage" and willassumed by the insured;not reduce the Limits of Insurance.(3)The obligation to defend, or the cost of Our obligation to defend an insured'sthe defense of, that indemnitee, has indemnitee and to pay for attorneys' feesalso been assumed by the insured in and necessary litigation expenses asthesame"insuredcontract";Supplementary Payments ends when:(4)The allegations in the "suit" and the (1)We have used up the applicable limitinformation we know about the of insurance in the payment of"occurrence" are such that no conflict judgments or settlements; orappears to exist between the interests (2)of the insured and the interest of the The conditions set forth above, or the indemnitee; terms of the agreement described in (6)Paragraph above, are no longer met.(5)The indemnitee and the insured ask us to conduct and control the defense B. EXCLUSIONS of that indemnitee against such "suit"1. Applicable To Business Liability Coverageand agree that we can assign the This insurance does not apply to:same counsel to defend the insured and the indemnitee; and a. Expected Or Intended Injury (6)The indemnitee:(1)"Bodily injury" or "property damage" expected or intended from the(a)Agrees in writing to: standpoint of the insured. This(i)Cooperate with us in the exclusion does not apply to "bodilyinvestigation, settlement or injury" or "property damage" resultingdefense of the "suit";from the use of reasonable force to (ii)Immediately send us copies of protect persons or property; or any demands, notices,(2)"Personal and advertising injury" arisingsummonses or legal papers out of an offense committed by, at thereceived in connection with direction of or with the consent orthe "suit";acquiescence of the insured with the (iii)Notify any other insurer whose expectation of inflicting "personal and coverage is available to the advertising injury". indemnitee; and b. Contractual Liability (iv)Cooperate with us with (1)"Bodily injury" or "property damage"; orrespect to coordinating other (2)"Personal and advertising injury"applicable insurance available to the indemnitee; and for which the insured is obligated to pay damages by reason of the assumption of(b)Provides us with written liability in a contract or agreement.authorization to: This exclusion does not apply to liability(i)Obtain records and other for damages because of:information related to the "suit"; and (a)"Bodily injury", "property damage" or "personal and advertising injury" that(ii)Conduct and control the the insured would have in thedefense of the indemnitee in absence of the contract orsuch "suit". agreement; or Form SS 00 08 04 05 Page3of24 BUSINESS LIABILITY COVERAGE FORM (b) (b)"Bodily injury" or "property damage" Performing duties related to the assumed in a contract or agreement conduct of the insured’s business, or that is an "insured contract",(2)The spouse, child, parent, brother or provided the "bodily injury" or sister of that "employee" as a "property damage" occurs (1)consequence of above. subsequent to the execution of the This exclusion applies:contract or agreement. Solely for (1)Whether the insured may be liable asthe purpose of liability assumed in an employer or in any other capacity;an "insured contract", reasonable andattorneys' fees and necessary litigation expenses incurred by or for (2)To any obligation to share damages a party other than an insured are with or repay someone else who must deemed to be damages because of pay damages because of the injury. "bodily injury" or "property damage"This exclusion does not apply to liabilityprovided:assumed by the insured under an "insured (i)Liability to such party for, or for contract". the cost of, that party’s defense f. Pollutionhas also been assumed in the (1)"Bodily injury", "property damage" orsame "insured contract", and "personal and advertising injury"(ii)Such attorneys' fees and arising out of the actual, alleged orlitigation expenses are for threatened discharge, dispersal,defense of that party against a seepage, migration, release or escapecivil or alternative dispute of "pollutants":resolution proceeding in which (a)At or from any premises, site ordamages to which this location which is or was at anyinsurance applies are alleged.time owned or occupied by, orc. Liquor Liability rented or loaned to any insured. "Bodily injury" or "property damage" for However, this subparagraph does which any insured may be held liable by not apply to: reason of:(i)"Bodily injury" if sustained within (1)Causing or contributing to the a building and caused by intoxication of any person;smoke, fumes, vapor or soot produced by or originating from(2)The furnishing of alcoholic beverages to equipment that is used to heat,a person under the legal drinking age or cool or dehumidify the building,under the influence of alcohol; or or equipment that is used to(3)Any statute, ordinance or regulation heat water for personal use, byrelating to the sale, gift, distribution or the building's occupants or theiruse of alcoholic beverages.guests; This exclusion applies only if you are in the (ii)"Bodily injury" or "propertybusiness of manufacturing, distributing,damage" for which you may beselling, serving or furnishing alcoholic held liable, if you are abeverages.contractor and the owner ord. Workers' Compensation And Similar lessee of such premises, site orLawslocation has been added to your Any obligation of the insured under a policy as an additional insured workers' compensation, disability benefits with respect to your ongoing or unemployment compensation law or operations performed for that any similar law.additional insured at that premises, site or location ande. Employer’s Liability such premises, site or location"Bodily injury" to:is not and never was owned or(1)An "employee" of the insured arising occupied by, or rented orout of and in the course of:loaned to, any insured, other (a)Employment by the insured; or than that additional insured; or Page4of24 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) (ii)At or from any premises, site or "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 with operations being performed(c)Which are or were at any time by you or on your behalf by atransported, handled, stored,contractor or subcontractor; ortreated, disposed of, or processed (iii)as waste by or for: "Bodily injury" or "property damage" arising out of heat,(i)Any insured; or smoke or fumes from a(ii)Any person or organization for "hostile fire"; orwhom you may be legally (e)At or from any premises, site orresponsible;location on which any insured or any(d)At or from any premises, site or contractors or subcontractorslocation on which any insured or working directly or indirectly on anyany contractors or subcontractors insured’s behalf are performingworking directly or indirectly on operations if the operations are toany 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 assessthe premises, site or location in the effects of, "pollutants".connection with such operations (2)Any loss, cost or expense arising outby such insured, contractor or of any:subcontractor. However, this (a)subparagraph does not apply to:Request, demand, order or statutory or regulatory requirement that any(i)"Bodily injury" or "property insured or others test for, monitor,damage" arising out of the clean up, remove, contain, treat,escape of fuels, lubricants or detoxify or neutralize, or in any wayother operating fluids which are respond to, or assess the effects of,needed to perform the normal "pollutants"; orelectrical, hydraulic or (b)mechanical functions 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 notdamage" arises out of the apply to liability for damages becauseintentional discharge, dispersal of "property damage" that the insuredor release of the fuels,would have in the absence of suchlubricants or other operating request, demand, order or statutory orfluids, or if such fuels,regulatory requirement, or such claimlubricants or other operating or "suit" by or on behalf of afluids 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 Page5of24 BUSINESS LIABILITY COVERAGE FORM g. Aircraft, Auto Or Watercraft (2)The use of "mobile equipment" in, or while in practice or preparation for, a"Bodily injury" or "property damage" arising prearranged racing, speed orout of the ownership, maintenance, use or demolition contest or in any stuntingentrustment to others of any aircraft, "auto"activity.or watercraft owned or operated by or rented i. Waror loaned to any insured. Use includes 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 (2)Warlike action by a military force,by that insured, if the "occurrence" which including action in hindering orcaused the "bodily injury" or "property defending against an actual ordamage" involved the ownership,expected attack, by any government,maintenance, use or entrustment to others of sovereign or other authority usingany aircraft, "auto" or watercraft that is military personnel or other agents; orowned or operated by or rented or loaned to (3)Insurrection, rebellion, revolution,any insured. usurped power, or action taken byThis exclusion does not apply to:governmental authority in hindering or(1)A watercraft while ashore on premises defending against any of these.you own or rent;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 out of the rendering of or failure to render(b)Not being used to carry persons any professional service. This includesfor a charge; but is not limited to:(3)Parking an "auto" on, or on the ways (1)Legal, accounting or advertisingnext to, premises you own or rent, services;provided the "auto" is not owned by or rented or loaned to you or the insured;(2)Preparing, approving, or failing to prepare or approve maps, shop(4)Liability assumed under any "insured drawings, opinions, reports, surveys,contract" for the ownership, field orders, change orders, designs ormaintenance or use of aircraft or drawings and specifications;watercraft; (3)Supervisory, inspection, architectural(5)"Bodily injury" or "property damage" or engineering activities;arising out of the operation of any of f.(2)the equipment listed in Paragraph (4)Medical, surgical, dental, x-ray or f.(3)or 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 orexception does not apply if the insured instruction for the purpose ofhas any other insurance for such "bodily appearance or skin enhancement, hairinjury" or "property damage", whether removal or replacement or personalthe other insurance is primary, excess,grooming;contingent or on any other basis.(7)Optical or hearing aid servicesh. Mobile Equipment including the prescribing, preparation, "Bodily injury" or "property damage"fitting, demonstration or distribution of arising out of:ophthalmic lenses and similar products or hearing aid devices;(1)The transportation of "mobile equipment" by an "auto" owned or operated by or rented or loaned to any insured; or Page6of24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (8)(1) (3) (4)Optometry or optometric services Paragraphs , and of this including but not limited to examination exclusion do not apply to "property of the eyes and the prescribing, damage" (other than damage by fire) to preparation, fitting,demonstration or premises, including the contentsofsuch distribution of ophthalmic lenses and premises, rented to you for a periodof7or similar products; fewer consecutive days. A separate Limit of Insurance applies to Damage To(9)Any:Premises Rented To You as described in(a)Body piercing (not including ear D.Section - Limits Of Insurance.piercing);(2)Paragraph of this exclusion does not(b)Tattooing, including but not limited apply if the premises are "your work" andto the insertion of pigments into or were never occupied, rented or held forunder the skin; and rental by you. (c)Similar services;(3) (4)Paragraphs and of this exclusion do (10)Services in the practice of pharmacy;not apply to the use of elevators. and (3) (4) (5) (6)Paragraphs , , and of this (11)Computer consulting, design or exclusion do not apply to liability assumed programming services, including web under a sidetrack agreement. site design.(3) (4)Paragraphs and of this exclusion do (4) (5)Paragraphs and of this exclusion do not apply to "property damage" to not apply to the Incidental Medical borrowed equipment while not being used Malpractice coverage afforded under to perform operations at a job site. 1.e. A.Paragraph in Section - Coverages.(6)Paragraph of this exclusion does not k. Damage To Property apply to "property damage" included in the "products-completed operations hazard"."Property damage" to: l. Damage To Your Product(1)Property you own, rent or occupy, including any costs or expenses "Property damage" to "your product" incurred by you, or any other person,arising out of it or any part of it. organization or entity, for repair,m. Damage To Your Workreplacement, enhancement,"Property damage" to "your work" arisingrestoration or maintenance of such out of it or any part of it and included in theproperty for any reason, including "products-completed operations hazard".prevention of injury to a person or damage to another's property; This exclusion does not apply if the damaged work or the work out of which(2)Premises you sell, give away or the damage arises was performed on yourabandon, if the "property damage" arises behalf by a subcontractor.out of any part of those premises; n. Damage To Impaired Property Or(3)Property loaned to you;Property Not Physically Injured(4)Personal property in the care, custody "Property damage" to "impaired property"or control of the insured;or property that has not been physically(5)That particular part of real property on injured, arising out of:which you or any contractors or (1)A defect, deficiency, inadequacy orsubcontractors working directly or dangerous condition in "your product"indirectly on your behalf are performing or "your work"; oroperations, if the "property damage" (2)arises out of those operations;or A delay or failure by you or anyone acting on your behalf to perform a(6)That particular part of any property contract or agreement in accordancethat must be restored, repaired or with its terms.replaced because "your work" was incorrectly performed on it. 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 Page7of24 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: (a)expense incurred by you or others for the Advertising, broadcasting, loss of use, withdrawal, recall, inspection, publishing or telecasting; repair, replacement, adjustment, removal (b)Designing or determining contentor 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 a. b. c.apply to Paragraphs , and withdrawn or recalled from the market or under the definition of "personal and from use by any person or organization G.advertising injury" in Section – 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 linking to others on your web site, by"Personal and advertising injury":itself, is not considered the business(1)Arising out of oral, written or electronic of advertising, broadcasting,publication of material, if done by or at publishing or telecasting;the direction of the insured with (9)Arising out of an electronic chat roomknowledge of its falsity;or bulletin board the insured hosts,(2)Arising out of oral, written or electronic owns, or over which the insuredpublication of material whose first exercises control;publication took place before the (10)Arising out of the unauthorized use ofbeginning of the policy period;another's name or product in your e-mail(3)Arising out of a criminal act committed address, domain name or metatags, orby or at the direction of the insured;any other similar tactics to mislead (4)Arising out of any breach of contract,another's potential customers; except an implied contract to use (11)Arising out of the violation of aanother’s "advertising 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 notproducts or services to conform with apply to liability for damages that theany statement of quality or insuredwouldhaveintheabsenceofperformance made in your such state or federal act;"advertisement";(12)Arising out of:(6)Arising out of the wrong description of (a)An "advertisement" for others onthe price of goods, products or services;your web site;(7)Arising out of any violation of any (b)Placing a link to a web site ofintellectual property rights such as others on your web site;copyright, patent, trademark, trade 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 information, code, sounds, text,However, this exclusion does not graphics or images; orapply to infringement, in your "advertisement", of (d)Computer code, software or programming used to enable:(a)Copyright; (i)Your web site; or(b)Slogan, unless the slogan is also 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; Page8of24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (13) (a)Arising out of a violation of any anti- May be awarded or incurred by trust law; reason of any claim or suit alleging actual or threatened injury(14)Arising out of the fluctuation in price or or damage of any nature or kind tovalue of any stocks, bonds or other persons or property which wouldsecurities; or 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 (b)Arise out of any request, demand,direction of any "executive officer",order or statutory or regulatorydirector, stockholder, partner or requirement that any insured ormember of the insured.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, monitoring, cleaning up, removing,"Bodily injury" or "personal and advertising encapsulating, containing, treating,injury" to: detoxifying or neutralizing or in any(1)Apersonarisingoutofany:way responding to or assessing the (a)Refusal to employ that person;effectsofan"asbestoshazard". (b)Termination of that person's t. Violation Of Statutes That Govern E- employment; or Mails, Fax, Phone Calls Or Other Methods Of Sending Material Or(c)Employment-related practices, Informationpolicies, acts or omissions, such as 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 oror 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 Protectionsister 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, includingperson at whom any of the any amendment of or addition to suchemployment-related practices law; or(a) (b) (c)described in Paragraphs , , or (3)Any statute, ordinance or regulation,above is directed.other than the TCPA or CAN-SPAM ActThis exclusion applies: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.c. h. k. o.Exclusions through and through dos. Asbestos not apply to damage by fire, lightning or explosion to premises rented to you or(1)"Bodily injury", "property damage" or temporarily occupied by you with permission of"personal and advertising injury" the owner. A separate Limit of Insurancearising out of the "asbestos hazard". applies to this coverage as described in(2)Any damages, judgments, settlements,D.Section - Liability And Medical Expensesloss, costs or expenses that:Limits Of Insurance. Form SS 00 08 04 05 Page9of24 BUSINESS LIABILITY COVERAGE FORM 2. Applicable To Medical Expenses Coverage e.A trust, you are an insured. Your trustees are also insureds, but only with respect toWe will not pay expenses for "bodily injury":their duties as trustees.a. Any Insured 2.Each of the following is also an insured:To any insured, except "volunteer workers". a. Employees And Volunteer Workersb. Hired Person Your "volunteer workers" only whileTo a person hired to do work for or on behalf performing duties related to the conduct ofof any insured or a tenant of any insured.your business, or your "employees", otherc. Injury On Normally Occupied Premises than either your "executive officers" (if you To a person injured on that part of are an organization other than a premises you own or rent that the person partnership, joint venture or limited liability normally occupies.company) or your managers (if you are a limited liability company), but only for actsd. Workers' Compensation And Similar within the scope of their employment byLaws you or while performing duties related toTo a person, whether or not an the conduct of your business."employee" of any insured, if benefits for However, none of these "employees" orthe "bodily injury" are payable or must be "volunteer workers" are insureds for:provided under a workers' compensation or disability benefits law or a similar law.(1)"Bodily injury" or "personal and advertising injury":e. Athletics Activities (a)To you, to your partners orTo a person injured while practicing,members (if you are a partnershipinstructing or participating in any physical or joint venture), to your membersexercises or games, sports or athletic (if you are a limited liabilitycontests. company),ortoaco-"employee"f. Products-Completed Operations Hazard while in the course of his or her Included with the "products-completed employment or performing dutiesoperations hazard".related to the conduct of your business, or to your otherg. Business Liability Exclusions "volunteer workers" whileExcluded under Business Liability Coverage.performing duties related to theC. WHO IS AN INSURED conduct of your business; 1.If you are designated in the Declarations as:(b)To the spouse, child, parent, brother or sister of that co-a.An individual, you and your spouse are "employee" or that "volunteerinsureds, but only with respect to the worker" as a consequence ofconduct of a business of which you are the (1)(a)Paragraph above;sole owner. (c)For which there is any obligationb.A partnership or joint venture, you are an to share damages with or repayinsured. Your members, your partners, and someone else who must paytheir spouses are also insureds, but only with damages because of the injuryrespect to the conduct of your business.(1)(a)described in Paragraphs orc.A limited liability company, you are an (b)above; orinsured. Your members are also insureds,(d)Arising out of his or her providingbut only with respect to the conduct of your or failing to provide professionalbusiness. Your managers are insureds, but health care services.only with respect to their duties as your managers.If you are not in the business of providing professional health cared.An organization other than a partnership,(d)services, Paragraph does not applyjoint venture or limited liability company, you to any nurse, emergency medicalare an insured. Your "executive officers" and technician or paramedic employed bydirectors are insureds, but only with respect youtoprovidesuchservices.to their duties as your officers or directors. Your stockholders are also insureds, but only (2)"Property damage" to property: with respect to their liability as stockholders.(a)Owned, occupied or used by, Page 10 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (b) b.Rented to, in the care, custody or Coverage under this provision does not control of, or over which physical apply to: control is being exercised for any (1)"Bodily injury" or "property damage"purpose by you, any of your that occurred; or"employees", "volunteer workers",(2)"Personal and advertising injury"any partner or member (if you are arising out of an offense committeda partnership or joint venture), or before you acquired or formed theany member (if you are a limited organization.liability company). 4. Operator Of Mobile Equipmentb. Real Estate Manager With respect to "mobile equipment" registered inAny person (other than your "employee" or your name under any motor vehicle registration"volunteer worker"), or any organization law, any person is an insured while driving suchwhile acting as your real estate manager. equipment along a public highway with yourc. Temporary Custodians Of Your permission. Any other person or organizationPropertyresponsible for the conduct of such person isAny person or organization having proper also an insured, but only with respect to liabilitytemporary custody of your property if you arising out of the operation of the equipment, anddie, but only:only if no other insurance of any kind is available (1)With respect to liability arising out of the to that person or organization for this liability. maintenance or use of that property; and However, no person or organization is an insured with respect to:(2)Until your legal representative has been appointed.a."Bodily injury" to a co-"employee" of the person driving the equipment; ord. Legal Representative If You Die b."Property damage" to property owned by,Your legal representative if you die, but rented to, in the charge of or occupied byonly with respect to duties as such. That you or the employer of any person who isrepresentative will have all your rights and an insured under this provision.duties under this insurance. 5. Operator of Nonowned Watercrafte. Unnamed Subsidiary With respect to watercraft you do not own thatAny subsidiary and subsidiary thereof, of is less than 51 feet long and is not being usedyours which is a legally incorporated entity to carry persons for a charge, any person is anof which you own a financial interest of insured while operating such watercraft withmore than 50% of the voting stock on the your permission. Any other person oreffective date of this Coverage Part.organization responsible for the conduct ofThe insurance afforded herein for any such person is also an insured, but only withsubsidiary not shown in the Declarations respect to liability arising out of the operationas a named insured does not apply to of the watercraft, and only if no otherinjury or damage with respect to which an insurance of any kind is available to thatinsuredunderthisinsuranceisalsoanperson or organization for this liability.insured under another policy or would be However, no person or organization is anan insured under such policy but for its insured with respect to:termination or upon the exhaustion of its limits of insurance.a."Bodily injury" to a co-"employee" of the person operating the watercraft; or3. Newly Acquired Or Formed Organization b."Property damage" to property owned by,Any organization you newly acquire or form,rented to, in the charge of or occupied byother than a partnership, joint venture or you or the employer of any person who islimited liability company, and over which you an insured under this provision.maintain financial interest of more than 50% of the voting stock, will qualify as a Named 6. Additional Insureds When Required By Insured if there is no other similar insurance Written Contract, Written Agreement Or available to that organization. However:Permit a.Coverage under this provision is afforded The person(s) or organization(s) identified in only until the 180th day after you acquire a. f.Paragraphs through below are additional or form the organization or the end of the insureds when you have agreed, in a written policy period, whichever is earlier; and Form SS 00 08 04 05 Page 11 of 24 BUSINESS LIABILITY COVERAGE FORM (e)contract, written agreement or because of a 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 products;A person or organization is an additional (f)Demonstration, installation,insured under this provision only for that servicing or repair operations,period of time required by the contract,except such operations performedagreement or permit.at the vendor's premises inHowever, no such person or organization is an connection with the sale of theadditional insured under this provision if such product;person or organization is included as an (g)Products which, after distributionadditional insured by an endorsement issued or sale by you, have been labeledby us and made a part of this Coverage Part,or relabeled or used as aincluding all persons or organizations added container, part or ingredient of anyas additional insureds under the specific other thing or substance by or foradditional insured coverage grants in Section the vendor; orF.– Optional Additional Insured Coverages. (h)"Bodily injury" or "propertya. Vendors damage" arising out of the soleAny person(s) or organization(s) (referred to negligence of the vendor for itsbelow as vendor), but only with respect to own acts or omissions or those of"bodily injury" or "property damage" arising its employees or anyone elseout of "your products" which are distributed acting on its behalf. However, thisor sold in the regular course of the vendor's exclusion does not apply to:business and only if this Coverage Part (i)The exceptions contained inprovides coverage for "bodily injury" or (d) (f)Subparagraphs or ; or"property damage" included within the (ii)"products-completed operations hazard". Such inspections, adjustments, tests or servicing as the vendor(1)The insurance afforded to the vendor has agreed to make or normallyis subject to the following additional undertakes to make in the usualexclusions:course of business, inThis insurance does not apply to: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 anyobligated to pay damages by insured person or organization fromreason 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 orliability for damages that the containing such products.vendor would have in the absence b. Lessors Of Equipmentof the contract or agreement; (1)Any person or organization from(b)Any express warranty whom you lease equipment; but onlyunauthorized by you;with respect to their liability for "bodily(c)Any physical or chemical change injury", "property damage" orin 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; Page 12 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (2) e. Permits Issued By State Or PoliticalWith respect to the insurance afforded Subdivisionsto these additional insureds, this insurance does not apply to any (1)Any state or political subdivision, but"occurrence" which takes place after only with respect to operationsyouceasetoleasethatequipment.performed by you or on your behalf for c. Lessors Of Land Or Premises which the state or political subdivision has issued a permit.(1)Any person or organization from (2)whom you lease land or premises, but With respect to the insurance afforded only with respect to liability arising out to these additional insureds, this of the ownership, maintenance or use insurance does not apply to: of that part of the land or premises (a)"Bodily injury", "property damage"leased to you.or "personal and advertising (2)With respect to the insurance afforded injury" arising out of operations to these additional insureds, this performed for the state or insurance does not apply to: municipality; or (a) (b)Any "occurrence" which takes "Bodily injury" or "property damage" place after you cease to lease that included within the "products- land or be a tenant in that completed operations hazard". premises; or f. Any Other Party (b)Structural alterations, new (1)Any other person or organization whoconstruction or demolition a.is not an insured under Paragraphsoperations performed by or on ethrough . above, but only withbehalf of such person or respect to liability for "bodily injury",organization."property damage" or "personal and d. Architects, Engineers Or Surveyors advertising injury" caused, in whole or in part, by your acts or omissions or(1)Any architect, engineer, or surveyor, but the acts or omissions of those actingonly with respect to liability for "bodily on your behalf:injury", "property damage" or "personal (a)and advertising injury" caused, in whole In the performance of your or in part, by your acts or omissions or ongoing operations; the acts or omissions of those acting on (b)In connection with your premisesyour behalf:ownedbyorrentedtoyou;or (a)In connection with your premises;(c)In connection with "your work" andorincluded within the "products- (b)In the performance of your completed operations hazard", but ongoing operations performed by only if you or on your behalf.(i)The written contract or written (2)With respect to the insurance afforded agreement requires you to to these additional insureds, the provide such coverage to following additional exclusion applies: such additional insured; and (ii)This insurance does not apply to This Coverage Part provides "bodily injury", "property damage" or coverage for "bodily injury" or "personal and advertising injury" "property damage" included arising out of the rendering of or the within the "products- failure to render any professional completed operations hazard". services by or for you, including:(2)With respect to the insurance afforded (a)The preparing, approving, or to these additional insureds, this failure to prepare or approve, insurance does not apply to: maps, shop drawings, opinions,"Bodily injury", "property damage" orreports, surveys, field orders,"personal and advertising injury"change orders, designs or arising out of the rendering of, or thedrawings and specifications; or failure to render, any professional (b)Supervisory, inspection, architectural, engineering or surveying architectural or engineering services, including: activities. Form SS 00 08 04 05 Page 13 of 24 BUSINESS LIABILITY COVERAGE FORM (a)The preparing, approving, or This General Aggregate limit does not failure to prepare or approve, apply to "property damage" to premises maps, shop drawings, opinions, while rented to you or temporarily reports, surveys, field orders, occupied by you with permission of the change orders, designs or owner, arising out of fire, lightning or drawings and specifications; or explosion. (b) 3. Each Occurrence LimitSupervisory, inspection, architectural or engineering 2.a. 2.bSubject to or above, whicheveractivities.applies, the most we will pay for the sum of all The limits of insurance that apply to additional damages because of all "bodily injury", D.insureds are described in Section – Limits "property damage" and medical expenses Of Insurance. arising out of any one "occurrence" is the Liability and Medical Expenses Limit shown inHow this insurance applies when other the Declarations.insurance is available to an additional insured is described in the Other Insurance Condition The most we will pay for all medical expenses E.in Section – Liability And Medical Expenses because of "bodily injury" sustained by any General Conditions. one person is the Medical Expenses Limit shown in the Declarations.No person or organization is an insured with 4. Personal And Advertising Injury Limitrespect to the conduct of any current or past partnership, joint venture or limited liability 2.b.Subject to above, the most we will pay forcompanythatisnotshownasaNamedInsuredinthe sum of all damages because of allthe Declarations."personal and advertising injury" sustained by any one person or organization is the PersonalD. LIABILITY AND MEDICAL EXPENSES and Advertising Injury Limit shown in theLIMITS OF INSURANCE Declarations.1. TheMostWeWillPay 5. Damage To Premises Rented To You LimitThe Limits of Insurance shown in the The Damage To Premises Rented To YouDeclarations and the rules below fix the most Limit is the most we will pay under Businesswe will pay regardless of the number of:Liability Coverage for damages because ofa.Insureds;"property damage" to any one premises, while b.Claims made or "suits" brought; or rented to you, or in the case of damage by fire, lightning or explosion, while rented to you orc.Persons or organizations making claims or temporarily occupied by you with permission ofbringing "suits". the owner.2. Aggregate Limits Inthecaseofdamagebyfire,lightningorThe most we will pay for:explosion, the Damage to Premises Rented Toa.Damages because of "bodily injury" and You Limit applies to all damage proximately"property damage" included in the caused by the same event, whether such"products-completed operations hazard" is damage results from fire, lightning or explosionthe Products-Completed Operations or any combination of these.Aggregate Limit shown in the 6. HowLimitsApplyToAdditionalInsuredsDeclarations. The most we will pay on behalf of a person orb.Damages because of all other "bodily organization who is an additional insuredinjury", "property damage" or "personal under this Coverage Part is the lesser of:and advertising injury", including medical a.The limits of insurance specified in aexpenses, is the General Aggregate Limit written contract, written agreement orshown in the Declarations. permit issued by a state or politicalThis General Aggregate Limit applies subdivision; orseparately to each of your "locations" b.The Limits of Insurance shown in theowned by or rented to you. Declarations."Location" means premises involving the Such amount shall be a part of and not insame or connecting lots, or premises addition to the Limits of Insurance shown inwhose connection is interrupted only by a the Declarations and described in this Section.street, roadway or right-of-way of a railroad. Page 14 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (1)If more than one limit of insurance under this Immediately send us copies of any policy and any endorsements attached thereto demands, notices, summonsesor applies to any claim or "suit", the most we will pay legal papers received in connection under this policy and the endorsements is the with the claim or "suit"; single highest limit of liability of all coverages (2)Authorize us to obtain records andapplicable to such claim or "suit". However, this other information;paragraph does not apply to the Medical Expenses (3)Cooperate with us in the investigation,3.limit set forth in Paragraph above.settlement of the claim or defenseThe Limits of Insurance of this Coverage Part apply against the "suit"; and separately to each consecutive annual period and to (4)Assist us, upon our request, in theany remaining period of less than 12 months, starting enforcement of any right against anywith the beginning of the policy period shown in the person or organization that may beDeclarations, unless the policy period is extended liable to the insured because of injuryafter issuance for an additional period of less than 12 or damage to which this insurancemonths. In that case, the additional period will be may also apply.deemed part of the last preceding period for purposes d. Obligations At The Insured's Own Costof determining the Limits of Insurance. No insured will, except at that insured's ownE. LIABILITY AND MEDICAL EXPENSES cost, voluntarily make a payment, assumeGENERAL CONDITIONS any obligation, or incur any expense, other than for first aid, without our consent.1. Bankruptcy e. Additional Insured's Other InsuranceBankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our If we cover a claim or "suit" under this obligations under this Coverage Part.Coverage Part that may also be covered by other insurance available to an2. Duties In The Event Of Occurrence, additional insured, such additional insuredOffense, Claim Or Suit must submit such claim or "suit" to thea. Notice Of Occurrence Or Offense other insurer for defense and indemnity.You or any additional insured must see to However, this provision does not apply toit that we are notified as soon as the extent that you have agreed in apracticable of an "occurrence" or an written contract, written agreement oroffense which may result in a claim. To permit that this insurance is primary andthe extent possible, notice should include:non-contributory with the additional(1)How, when and where the "occurrence"insured's own insurance.or offense took place;f. Knowledge Of An Occurrence, Offense,(2)The names and addresses of any Claim Or Suitinjured persons and witnesses; and a. b.Paragraphs and apply to you or to(3)The nature and location of any injury any additional insured only when suchor damage arising out of the "occurrence", offense, claim or "suit" is"occurrence" or offense.known to: b. Notice Of Claim (1)You or any additional insured that is an individual;If a claim is made or "suit" is brought against any insured, you or any additional (2)Any partner, if you or an additionalinsured must:insured is a partnership; (1)Immediately record the specifics of the (3)Any manager, if you or an additionalclaim or "suit" and the date received;insured is a limited liability company;and (4)Any "executive officer" or insurance(2)Notify us as soon as practicable.manager, if you or an additional insured is a corporation;You or any additional insured must see to it that we receive a written notice of the (5)Any trustee, if you or an additionalclaim or "suit" as soon as practicable.insured is a trust; or c. Assistance And Cooperation Of The (6)Any elected or appointed official, if youInsuredor an additional insured is a political subdivision or public entity.You and any other involved insured must: Form SS 00 08 04 05 Page 15 of 24 BUSINESS LIABILITY COVERAGE FORM f. (3)This Paragraph applies separately to We have issued this policy in reliance you and any additional insured. upon your representations. 3. Financial Responsibility Laws b. Unintentional Failure To Disclose Hazardsa.When this policy is certified as proof of financial responsibility for the future under If unintentionally you should fail to disclose the provisions of any motor vehicle all hazards relating to the conduct of your financial responsibility law, the insurance business at the inception date of this provided by the policy for "bodily injury"Coverage Part, we shall not deny any liability and "property damage" liability will coverage under this Coverage Part comply with the provisions of the law to because of such failure. the extent of the coverage and limits of 7. Other Insuranceinsurance required by that law.If other valid and collectible insurance isb.With respect to "mobile equipment" to available for a loss we cover under thiswhich this insurance applies, we will Coverage Part, our obligations are limited asprovide any liability, uninsured motorists,follows:underinsured motorists, no-fault or other a. Primary Insurancecoverage required by any motor vehicle b.law. We will provide the required limits for This insurance is primary except when those coverages. below applies. If other insurance is also primary, we will share with all that other4. Legal Action Against Us c.insurance by the method described inNo person or organization has a right under below.this Coverage Form:b. Excess Insurancea.To join us as a party or otherwise bring us This insurance is excess over any of theintoa"suit"askingfordamagesfroman other insurance, whether primary, excess,insured; or contingent or on any other basis:b.To sue us on this Coverage Form unless (1) Your Workall of its terms have been fully complied with.That is Fire, Extended Coverage, Builder's Risk, Installation Risk orA person or organization may sue us to recover similar coverage for "your work";on an agreed settlement or on a final judgment against an insured; but we will not be liable for (2) PremisesRentedToYoudamages that are not payable under the terms of That is fire, lightning or explosionthis insurance or that are in excess of the insurance for premises rented to youapplicable limit of insurance. An agreed or temporarily occupied by you withsettlement means a settlement and release of permission of the owner;liability signed by us, the insured and the (3) Tenant Liabilityclaimant or the claimant's legal representative. That is insurance purchased by you to5. Separation Of Insureds cover your liability as a tenant forExcept with respect to the Limits of Insurance,"property damage" to premises rentedand any rights or duties specifically assigned to you or temporarily occupied by youin this policy to the first Named Insured, this with permission of the owner;insurance applies: (4) Aircraft, Auto Or Watercrafta.As if each Named Insured were the only If the loss arises out of the maintenanceNamed Insured; and or use of aircraft, "autos" or watercraft tob.Separately to each insured against whom g.the extent not subject to Exclusion ofa claim is made or "suit" is brought.A.Section – Coverages.6. Representations (5) Property Damage To Borroweda. When You Accept This Policy Equipment Or Use Of Elevators By accepting this policy, you agree:If the loss arises out of "property damage" to borrowed equipment or(1)The statements in the Declarations the use of elevators to the extent notare accurate and complete; k. A.subject to Exclusion of Section –(2)Those statements are based upon Coverages.representations you made to us; and Page 16 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (6) When You Are Added As An When this insurance is excess over other Additional Insured To Other insurance, we will pay only our share of Insurance the amount of the loss, if any, that exceeds the sum of:That is other insurance available to (1)you covering liability for damages The total amount that all such other arising out of the premises or insurance would pay for the loss in the operations, or products and completed absence of this insurance; and operations, for which you have been (2)The total of all deductible and self-added as an additional insured by that insured amounts under all that otherinsurance; or insurance. (7) When You Add Others As An We will share the remaining loss, if any, withAdditional Insured To This any other insurance that is not described inInsurancethis Excess Insurance provision and was not That is other insurance available to an bought specifically to apply in excess of the additional insured. Limits of Insurance shown in the Declarations of this Coverage Part.However, the following provisions c. Method Of Sharingapply to other insurance available to any person or organization who is an If all the other insurance permitsadditional insured under this Coverage contribution by equal shares, we will followPart:this method also. Under this approach, (a) Primary Insurance When each insurer contributes equal amounts Required By Contract until it has paid its applicable limit of insurance or none of the loss remains,This insurance is primary if you whichever comes first.have agreed in a written contract, written agreement or permit that If any of the other insurance does not permit this insurance be primary. If other contribution by equal shares, we will insurance is also primary, we will contribute by limits. Under this method, each share with all that other insurance insurer’s share is based on the ratio of its c.by the method described in applicable limit of insurance to the total below. applicable limits of insurance of all insurers. (b) Primary And Non-Contributory 8. Transfer Of Rights Of Recovery Against To Other Insurance When Others To Us Required By Contract a. Transfer Of Rights Of Recovery If you have agreed in a written If the insured has rights to recover all orcontract, written agreement or part of any payment, includingpermit that this insurance is Supplementary Payments, we have madeprimary and non-contributory with under this Coverage Part, those rights arethe additional insured's own transferred to us. The insured must doinsurance, this insurance is nothing after loss to impair them. At ourprimary and we will not seek request, the insured will bring "suit" orcontribution from that other transfer those rights to us and help usinsurance.enforce them. This condition does not (a) (b)Paragraphs and do not apply to apply to Medical Expenses Coverage. other insurance to which the additional b. Waiver Of Rights Of Recovery (Waiverinsured has been added as an Of Subrogation)additional insured.If the insured has waived any rights ofWhen this insurance is excess, we will recovery against any person orhave no duty under this Coverage Part to organization for all or part of any payment,defend the insured against any "suit" if any including Supplementary Payments, weother insurer has a duty to defend the have made under this Coverage Part, weinsured against that "suit". If no other also waive that right, provided the insuredinsurer defends, we will undertake to do waived their rights of recovery againstso, but we will be entitled to the insured's such person or organization in a contract,rights against all those other insurers.agreement or permit that was executed prior to the injury or damage. Form SS 00 08 04 05 Page 17 of 24 BUSINESS LIABILITY COVERAGE FORM 3. Additional Insured - Grantor Of FranchiseF. OPTIONAL ADDITIONAL INSURED C.WHO IS AN INSURED under Section isCOVERAGES amended to include as an additional insuredIf listed or shown as applicable in the Declarations,the person(s) or organization(s) shown in theone or more of the following Optional Additional Declarations as an Additional Insured -Insured Coverages also apply. When any of these Grantor Of Franchise, but only with respect toOptional Additional Insured Coverages apply,their liability as grantor of franchise to you.6.Paragraph (Additional Insureds When Required 4. Additional Insured - Lessor Of Leasedby Written Contract, Written Agreement or Permit) EquipmentC.of Section , Who Is An Insured, does not apply to the person or organization shown in the a. C.WHO IS AN INSURED under Section is Declarations. These coverages are subject to the amended to include as an additional terms and conditions applicable to Business insured the person(s) or organization(s) Liability Coverage in this policy, except as shown in the Declarations as an Additional provided below:Insured – Lessor of Leased Equipment, but only with respect to liability for "bodily1. Additional Insured - Designated Person Or injury", "property damage" or "personalOrganization and advertising injury" caused, in whole orC.WHO IS AN INSURED under Section is in part, by your maintenance, operation oramended to include as an additional insured use of equipment leased to you by suchthe person(s) or organization(s) shown in the person(s) or organization(s).Declarations, but only with respect to liability b.With respect to the insurance afforded tofor "bodily injury", "property damage" or these additional insureds, this insurance"personal and advertising injury" caused, in does not apply to any "occurrence" whichwhole or in part, by your acts or omissions or takes place after you cease to lease thatthe acts or omissions of those acting on your equipment.behalf: 5. Additional Insured - Owners Or Othera.In the performance of your ongoing Interests From Whom Land Has Beenoperations; or Leasedb.In connection with your premises owned a. C.WHO IS AN INSURED under Section isby or rented to you. amended to include as an additional2. Additional Insured - Managers Or Lessors insured the person(s) or organization(s)Of Premises shown in the Declarations as an Additionala. C.WHO IS AN INSURED under Section is Insured – Owners Or Other Interests Fromamended to include as an additional insured Whom Land Has Been Leased, but onlythe person(s) or organization(s) shown in the with respect to liability arising out of theDeclarations as an Additional Insured -ownership, maintenance or use of that partDesignated Person Or Organization; but only of the land leased to you and shown in thewith respect to liability arising out of the Declarations.ownership, maintenance or use of that part of b.With respect to the insurance afforded tothepremisesleasedtoyouandshowninthethese additional insureds, the followingDeclarations.additional exclusions apply:b.With respect to the insurance afforded to This insurance does not apply to:these additional insureds, the following (1)Any "occurrence" that takes placeadditional exclusions apply: after you cease to lease that land; orThis insurance does not apply to: (2)Structural alterations, new(1)Any "occurrence" which takes place construction or demolition operationsafter you cease to be a tenant in that performed by or on behalf of suchpremises; or person or organization.(2)Structural alterations, new 6. Additional Insured - State Or Politicalconstruction or demolition operations Subdivision – Permitsperformed by or on behalf of such a. C.WHO IS AN INSURED under Section isperson or organization. amended to include as an additional insured the state or political subdivision shown in the Declarations as an Additional Page 18 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (e)Insured – State Or Political Subdivision - 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 business, in connection with theb.With respect to the insurance afforded to distribution or sale of the products;these additional insureds, the following (f)Demonstration, installation,additional exclusions apply: servicing or repair operations,This insurance does not apply to:except such operations performed(1)"Bodily injury", "property damage" or at the vendor's premises in"personal and advertising injury"connection with the sale of thearising 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 labeledincluded in the "product-completed or relabeled or used as aoperations" hazard.container, part or ingredient of any 7. Additional Insured – Vendors other thing or substance by or for the vendor; ora. C.WHO IS AN INSURED under Section is 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 inbusiness and only if this Coverage Part (d) (f)Subparagraphs or ; orprovides coverage for "bodily injury" or (ii)Such inspections,"property damage" included within the adjustments, tests or servicing"products-completed operations hazard".as the vendor has agreed tob.The insurance afforded to the vendor is make or normally undertakessubject to the following additional exclusions:to make in the usual course of (1)This insurance does not apply to:business, in connection with the distribution or sale of the(a)"Bodily injury" or "property products.damage" for which the vendor is obligated to pay damages by (2)This insurance does not apply to any reason of the assumption of insuredpersonororganizationfrom 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;C.WHO IS AN INSURED under Section 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 – Controlling Interest, but only with respect to(d)Repackaging, unless unpacked their liability arising out of:solely for the purpose of inspection, demonstration, testing, or the a.Their financial control of you; or substitution of parts under b.Premises they own, maintain or controlinstructions from the manufacturer,while you lease or occupy these premises.and then repackaged in the original container; Form SS 00 08 04 05 Page 19 of 24 BUSINESS LIABILITY COVERAGE FORM This insurance does not apply to structural The limits of insurance that apply to additional D.alterations, new construction and demolition insureds are described in Section – Limits Of operations performed by or for that person or Insurance. organization.How this insurance applies when other insurance 9. Additional Insured – Owners, Lessees Or is available to an additional insured is described in Contractors – Scheduled Person Or E.the Other Insurance Condition in Section – Organization Liability And Medical Expenses General Conditions.a. C.WHO IS AN INSURED under Section is amended to include as an additional G. LIABILITY AND MEDICAL EXPENSESinsured the person(s) or organization(s)DEFINITIONSshown in the Declarations as an Additional 1."Advertisement" means the widespread publicInsured – Owner, Lessees Or Contractors,dissemination of information or images thatbut only with respect to liability for "bodily has the purpose of inducing the sale of goods,injury", "property damage" or "personal products or services through:and advertising injury" caused, in whole or in part, by your acts or omissions or the a. (1)Radio; acts or omissions of those acting on your (2)Television;behalf:(3)Billboard;(1)In the performance of your ongoing (4)Magazine;operations for the additional (5)Newspaper;insured(s); or b.The Internet, but only that part of a web(2)In connection with "your work"site that is about goods, products orperformed for that additional insured services for the purposes of inducing theand included within the "products-sale of goods, products or services; orcompleted operations hazard", but c.Any other publication that is givenonly if this Coverage Part provides widespread public distribution.coverage for "bodily injury" or "property damage" included within the However, "advertisement" does not include:"products-completed operations a.The design, printed material, informationhazard".or images contained in, on or upon theb.With respect to the insurance afforded to packaging or labeling of any goods orthese additional insureds, this insurance products; ordoes not apply to "bodily injury", "property b.An interactive conversation between ordamage" or "personal an advertising among persons through a computer network.injury" arising out of the rendering of, or 2."Advertising idea" means any idea for anthe failure to render, any professional "advertisement".architectural, engineering or surveying services, including:3."Asbestos hazard" means an exposure or threat of exposure to the actual or alleged(1)The preparing, approving, or failure to properties of asbestos and includes the mereprepare or approve, maps, shop presence of asbestos in any form.drawings, opinions, reports, surveys, field orders, change orders, designs or 4."Auto" means a land motor vehicle, trailer or drawings and specifications; or semi-trailer designed for travel on public roads, including any attached machinery or(2)Supervisory, inspection, architectural equipment. But "auto" does not includeor engineering activities. "mobile equipment".10. Additional Insured – Co-Owner Of Insured 5."Bodily injury" means physical:Premises a.Injury;C.WHO IS AN INSURED under Section is amended to include as an additional insured b.Sickness; or the person(s) or Organization(s) shown in the c.DiseaseDeclarations as an Additional Insured – Co-sustained by a person and, if arising out of theOwner Of Insured Premises, but only with above, mental anguish or death at any time.respect to their liability as co-owner of the premises shown in the Declarations.6."Coverage territory" means: Page 20 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM a. b.The United States of America (including its You have failed to fulfill the terms of a territories and possessions), Puerto Rico contract or agreement; and Canada;if such property can be restored to use by: b.International waters or airspace, but only if a.The repair, replacement, adjustment orthe injury or damage occurs in the course removal of "your product" or "your work";of travel or transportation between any ora.places included in above;b.Your fulfilling the terms of the contract orc.All other parts of the world if the injury or agreement.damage arises out of:12."Insured contract" means:(1)Goods or products made or sold by you a. A contract for a lease of premises.a.in the territory described in above;However, that portion of the contract for a(2)The activities of a person whose home lease of premises that indemnifies anyais in the territory described in .person or organization for damage by fire,above, but is away for a short time on lightning or explosion to premises whileyour business; or rented to you or temporarily occupied by (3)"Personal and advertising injury" you with permission of the owner is offenses that take place through the subject to the Damage To Premises Internet or similar electronic means of Rented To You limit described in Section D.communication – Liability and Medical Expenses Limits of Insurance.provided the insured's responsibility to pay b.damages is determined in the United States of A sidetrack agreement; America (including its territories and c.Any easement or license agreement,possessions), Puerto Rico or Canada, in a including an easement or license"suit" on the merits according to the agreement in connection with constructionsubstantive law in such territory, or in a or demolition operations on or within 50settlement we agree to.feet of a railroad; 7."Electronic data" means information, facts or d.Any obligation, as required by ordinance,programs:to indemnify a municipality, except in a.Stored as or on; connection with work for a municipality; b.Created or used on; or e.An elevator maintenance agreement; or c.Transmitted to or from f.That part of any other contract or agreement pertaining to your businesscomputer software, including systems and (including an indemnification of aapplications software, hard or floppy disks, municipality in connection with workCD-ROMS, tapes, drives, cells, data performed for a municipality) under whichprocessing devices or any other media which you assume the tort liability of anotherare used with electronically controlled party to pay for "bodily injury" or "propertyequipment. damage" to a third person or organization,8."Employee" includes a "leased worker".provided the "bodily injury" or "property"Employee" does not include a "temporary damage" is caused, in whole or in part, byworker".you or by those acting on your behalf.9."Executive officer" means a person holding Tort liability means a liability that would beany of the officer positions created by your imposed by law in the absence of anycharter, constitution, by-laws or any other contract or agreement.similar governing document.f.Paragraph includes that part of any10."Hostile fire" means one which becomes contract or agreement that indemnifies auncontrollable or breaks out from where it was railroad for "bodily injury" or "propertyintended to be.damage" arising out of construction or demolition operations within 50 feet of any11."Impaired property" means tangible property, railroad property and affecting any railroadother than "your product" or "your work", that bridge or trestle, tracks, road-beds, tunnel,cannot be used or is less useful because: underpass or crossing.a.It incorporates "your product" or "your work" f.However, Paragraph does not includethat is known or thought to be defective, that part of any contract or agreement:deficient, inadequate or dangerous; or Form SS 00 08 04 05 Page 21 of 24 BUSINESS LIABILITY COVERAGE FORM (1) (1)That indemnifies an architect, Power cranes, shovels, loaders, engineer or surveyor for injury or diggers or drills; or damage arising out of:(2)Road construction or resurfacing (a)Preparing, approving or failing to equipment such as graders, scrapers prepare or approve maps, shop or rollers; drawings, opinions, reports,e. a. b. c. d.Vehicles not described in , , , orsurveys, field orders, change above that are not self-propelled and areorders, designs or drawings and maintained primarily to provide mobility tospecifications; or permanently attached equipment of the (b)Giving directions or instructions, following types: or failing to give them, if that is the (1)Air compressors, pumps andprimary cause of the injury or generators, including spraying,damage; or welding, building cleaning, (2)Under which the insured, if an geophysical exploration, lighting and architect, engineer or surveyor, well servicing equipment; or assumes liability for an injury or (2)Cherry pickers and similar devicesdamage arising out of the insured's used to raise or lower workers;rendering or failure to render f. a. b. c. d.Vehicles not described in , , , orprofessional services, including those above maintained primarily for purposes(1)listed in above and supervisory,other than the transportation of persons orinspection, architectural or cargo.engineering activities. However, self-propelled vehicles with the13."Leased worker" means a person leased to following types of permanently attachedyou by a labor leasing firm under an equipment are not "mobile equipment" butagreement between you and the labor leasing will be considered "autos":firm, to perform duties related to the conduct of (1)Equipment, of at least 1,000 poundsyour business. "Leased worker" does not gross vehicle weight, designedinclude a "temporary worker". primarily for:14."Loading or unloading" means the handling of (a)Snow removal;property: (b)Road maintenance, but nota.After it is moved from the place where it is construction or resurfacing; oraccepted for movement into or onto an aircraft, watercraft or "auto";(c)Street cleaning; b.While it is in or on an aircraft, watercraft or (2)Cherry pickers and similar devices "auto"; or mountedonautomobileortruck chassis and used to raise or lowerc.While it is being moved from an aircraft, workers; andwatercraft or "auto" to the place where it is finally delivered;(3)Air compressors, pumps and generators, including spraying,but "loading or unloading" does not include the welding, building cleaning,movement of property by means of a mechanical geophysical exploration, lighting anddevice, other than a hand truck, that is not well servicing equipment.attached to the aircraft, watercraft or "auto". 16."Occurrence" means an accident, including15."Mobile equipment" means any of the following continuous or repeated exposure to substantiallytypes of land vehicles, including any attached the same general harmful conditions.machinery or equipment: 17."Personal and advertising injury" means injury,a.Bulldozers, farm machinery, forklifts and including consequential "bodily injury", arisingother vehicles designed for use principally out of one or more of the following offenses:off public roads; a.False arrest, detention or imprisonment;b.Vehicles maintained for use solely on or next to premises you own or rent;b.Malicious prosecution; c.Vehicles that travel on crawler treads; d.Vehicles, whether self-propelled or not, on which are permanently mounted: Page 22 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM c.The wrongful eviction from, wrongful entry Work that may need service, maintenance, into, or invasion of the right of private correction, repair or replacement, but occupancy of a room, dwelling or which is otherwise complete, will be premises that the person occupies, treated as completed. committed by or on behalf of its owner,The "bodily injury" or "property damage"landlord or lessor;must occur away from premises you own d.Oral, written or electronic publication of or rent, unless your business includes the material that slanders or libels a person or selling, handling or distribution of "your organization or disparages a person's or product" for consumption on premises you organization's goods, products or services; own or rent. e. b.Oral, written or electronic publication of Does not include "bodily injury" or material that violates a person's right of "property damage" arising out of: privacy;(1)The transportation of property, unless f.Copying, in your "advertisement", a the injury or damage arises out of a person’s or organization’s "advertising condition in or on a vehicle not owned idea" or style of "advertisement";or operated by you, and that condition was created by the "loading org.Infringement of copyright, slogan, or title of unloading" of that vehicle by anyany literary or artistic work, in your insured; or"advertisement"; or (2)The existence of tools, uninstalledh.Discrimination or humiliation that results in equipment or abandoned or unusedinjury to the feelings or reputation of a materials.natural person. 20."Property damage" means:18."Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke,a.Physical injury to tangible property, vapor, soot, fumes, acids, alkalis, chemicals and including all resulting loss of use of that waste. Waste includes materials to be recycled,property. All such loss of use shall be reconditioned or reclaimed.deemed to occur at the time of the physical injury that caused it; or19."Products-completed operations hazard"; b.Loss of use of tangible property that is nota.Includes all "bodily injury" and "property physically injured. All such loss of usedamage" occurring away from premises shall be deemed to occur at the time ofyou own or rent and arising out of "your "occurrence" that caused it.product" or "your work" except: As used in this definition, "electronic data" is(1)Products that are still in your physical not tangible property.possession; or 21."Suit" means a civil proceeding in which(2)Work that has not yet been completed damages because of "bodily injury", "propertyor abandoned. However, "your work" damage" or "personal and advertising injury"will be deemed to be completed at the to which this insurance applies are alleged.earliest of the following times: "Suit" includes:(a)When all of the work called for in a.An arbitration proceeding in which suchyour contract has been completed. damages are claimed and to which the(b)When all of the work to be done at insured must submit or does submit withthe job site has been completed if our consent; oryour contract calls for work at b.Any other alternative dispute resolutionmore than one job site. proceeding in which such damages are(c)When that part of the work done at claimed and to which the insured submitsa job site has been put to its with our consent.intended use by any person or 22."Temporary worker" means a person who isorganization other than another furnished to you to substitute for a permanentcontractor or subcontractor "employee" on leave or to meet seasonal orworking on the same project. short-term workload conditions. 23."Volunteer worker" means a person who: a.Is not your "employee"; Form SS 00 08 04 05 Page 23 of 24 BUSINESS LIABILITY COVERAGE FORM b. (2)Donates his or her work; The providing of or failure to provide warnings or instructions.c.Acts at the direction of and within the c.scope of duties determined by you; and Does not include vending machines or d.Is not paid a fee, salary or other other property rented to or located for the compensation by you or anyone else for use of others but not sold. their work performed for you.25. "Your work": 24."Your product":a.Means: a.Means:(1)Work or operations performed by you (1)Any goods or products, other than real or on your behalf; and property, manufactured, sold, handled,(2)Materials, parts or equipmentdistributed or disposed of by:furnished in connection with such work (a)You; or operations. (b) b.Others trading under your name; Includes: or (1)Warranties or representations made at (c)A person or organization whose any time with respect to the fitness, business or assets you have quality, durability, performance or use acquired; and of "your work"; and (2) (2)Containers (other than vehicles), The providing of or failure to provide materials, parts or equipment warnings or instructions. 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 Page 24 of 24 Form SS 00 08 04 05 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY ! "#!$ %&&&'() * *+, - -. $ / - # $$0 , 12 034$ 56.* #78) / 9 :* ;4($&77&(<=( $) $)$ < ,-> *> * 94 $ /? 478& @$## @## Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 1 of 13 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND PROCURE AMERICA, INC. FOR BUSINESS INTELLIGENCE SERVICES THIS AGREEMENT for consulting services is made by and between the City of Dublin (“City”) and Procure America, Inc. (“Consultant”) (together sometimes referred to as the “Parties”) as of May 1, 2020 (the “Effective Date”). Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on April 30, 2025, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as referenced in Section 8. Notwithstanding the foregoing this Agreement may be extended on a month to month basis for up to 6 months upon the written consent of the Consultant and the City Manager, provided that: a) sufficient funds have been appropriated for such purchase, b) the price charged by the Consultant for the provision of the serves described in Exhibit A does not increase. None of the foregoing shall affect the City’s right to terminate the Agreement as provided for in Section 8. 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged. 1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Subsection 1.2 above and to satisfy Consultant’s obligations hereunder. Section 2. COMPENSATION. There will be no up-front fees and Consultant shall only be compensated as set forth in Exhibit B for work performed in accordance with Exhibit A. City shall have no obligation to pay any sum in excess of that specified in Exhibit B, unless authorized by amendment in accordance with Section 1.1 of this Agreement. EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 2 of 13 In the event of a conflict between this Agreement and Consultant’s proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person. 2.1 Invoices. The Consultant shall submit invoices to City on Consultant’s letterhead. Each invoice shall have a unique number and shall include, at minimum, the following information: a.Consultant’s name and address (as specified in this Agreement) b.Consultant’s remittance address, if difference from (a.) above c.Name of City department/contact person d.Contract or PO number must be reference on all invoices e.Delivery/Service address f.Service Date g.Consultant’s Tax Identification Number (TIN) or Employer’s Identification Number (EIN) h.Description of services i.Total dollar amount of invoice j.The Consultant’s signature 2.2 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.3 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.4 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date. 2.5 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 3 of 13 Section 3. FACILITIES AND EQUIPMENT.Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before fully executing this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid or proposal. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence to City that such insurance is in effect. VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED AND MADE PART OF THIS AGREEMENT PRIOR TO EXECUTION. Consultant shall maintain all required insurance listed herein for the duration of this Agreement. 4.1 Workers’ Compensation. 4.1.1 General Requirements. Consultant shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than $1,000,000 per accident. In the alternative, Consultant may rely on a self-insurance program to meet these requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the Consultant, its employees, agents, and subcontractors. EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 4 of 13 4.1.2 Submittal Requirements. To comply with Subsection 4.1, Consultant shall submit the following: a.Certificate of Liability Insurance in the amounts specified in the section; and b. Waiver of Subrogation Endorsement as required by the section. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General Requirements. Consultant, at its own cost and expense, shall maintain commercial general liability insurance for the term of this Agreement in an amount not less than $1,000,000 and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles. 4.2.2 Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an “occurrence” basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001, Code 1 (any auto). No endorsement shall be attached limiting the coverage. 4.2.3 Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy: a. The Insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. b. City, its officers, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of work or operations performed by or on behalf of the Consultant; or automobiles owned, leased, hired, or borrowed by the Consultant. c. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation. EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 5 of 13 d. For any claims related to this Agreement or the work hereunder, the Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. 4.2.4 Submittal Requirements. To comply with Subsection 4.2, Consultant shall submit the following: a.Certificate of Liability Insurance in the amounts specified in the section; b.Additional Insured Endorsement as required by the section; c.Waiver of Subrogation Endorsement as required by the section; and d.Primary Insurance Endorsement as required by the section. 4.3 Professional Liability Insurance. 4.3.1 General Requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $2,000,000 covering the licensed professionals’ errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim. 4.3.2 Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least 5 years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant shall purchase an extended period coverage for a minimum of 5 years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be submitted to the City for review prior to the commencement of any work under this Agreement. EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 6 of 13 4.3.3 Additional Requirements. A certified endorsement to include contractual liability shall be included in the policy. 4.3.4 Submittal Requirements. To comply with Subsection 4.3, Consultant shall submit the Certificate of Liability Insurance in the amounts specified in the section. 4.4 All Policies Requirements. 4.4.1 Acceptability of Insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of Coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with complete copies of all Certificates of Liability Insurance delivered to Consultant by the insurer, including complete copies of all endorsements attached to the policies. All copies of Certificates of Liability Insurance and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Consultant beginning work, it shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time. 4.4.3 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. 4.4.4 Wasting Policies. No policy required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense). 4.4.5Endorsement Requirements. Each insurance policy required by Section 4 shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days’ prior written notice has been provided to the City. 4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 7 of 13 are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach: Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES. Refer to the attached Exhibit C, which is incorporated herein and made a part of this Agreement. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Consultant’s failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract. EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 8 of 13 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, sex, gender, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition (including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed, pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran status, or any other classification protected by applicable local, state, or federal laws (each a “Protected Characteristic”), against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 30 days’ written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 9 of 13 agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but are not limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 10 of 13 those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties. 9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Subsection 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of 3 years after final payment under the Agreement. Section 10. MISCELLANEOUS PROVISIONS. 10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 11 of 13 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties. 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Section 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous 12 months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of California Government Code Section 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of California Government Code Section 1090 et seq., and, if applicable, will be disqualified from holding public office in the State of California. At City’s sole discretion, Consultant may be required to file with the City a Form 700 to identify and document Consultant’s economic interests, as defined and regulated by the California Fair Political Practices Commission. If Consultant is required to file a Form 700, Consultant is hereby advised to contact the Dublin City Clerk for the Form 700 and directions on how to prepare it. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by the City Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Procure America Inc. Attn: Fred Armendariz 31103 Rancho Viejo Rd., #D2102 EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 12 of 13 San Juan Capistrano, CA 92675 Any written notice to City shall be sent to: City of Dublin Attn: City Manager 100 Civic Plaza Dublin, CA 94568 10.11 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A, B, C, and D represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. Exhibit A Scope of Services Exhibit B Compensation Schedule Exhibit C Indemnification Exhibit D Orange County Regional Cooperative Agreement 10.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 10.13 Certification per Iran Contracting Act of 2010. In the event that this contract is for one million dollars ($1,000,000.00) or more, by Consultant’s signature below Consultant certifies that Consultant, and any parent entities, subsidiaries, successors or subunits of Consultant are not identified on a list created pursuant to subdivision (b) of Section 2203 of the California Public Contract Code as a person engaging in investment activities in Iran as described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b) of Section 2202.5 of the California Public Contract Code, as applicable. SIGNATURES ON FOLLOWING PAGE EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Last revised 04/02/2020 Procure America Inc. for Business Intelligence Services Page 13 of 13 The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear below certify that they are authorized to sign on behalf of the respective Party. CITY OF DUBLIN PROCURE AMERICA INC. Linda Smith, City Manager Fred Armendariz, CEO Attest: Caroline Soto, City Clerk Approved as to Form: City Attorney 3070368.1 EXHIBIT A TO THE RESOLUTION Consulting Services Agreement between City of Dublin and Procure America Inc. for Business Intelligence Services Last revised 04/02/2020 Exhibit A – Page 1 of 4 EXHIBIT A SCOPE OF SERVICES Procure America is the Country’s leading business intelligence firm supporting government agencies with Enterprise Strategic Plans (ESP) specifically designed to deliver expense reduction and operational efficiency. With over 2 billion dollars of client expenses under management, our expertise and track record are second to none in this space. Each of the Procure America’s 6 practice groups: Utilities, Waste & Recycling, Document Management, Telecommunications, Treasury and Risk Management are staffed with highly experienced professionals who come directly from the industry in which they practice delivering insight, innovation, intelligence and results. In 2019, Procure America was awarded a Regional Cooperative Agreement (OC-RCA 017-19010018) by the County of Orange, for the services under consideration by City of Dublin. The following Scope of Work mirrors the OC-RCA in project scope, compensation and mission deliverables. A copy of the Regional Cooperative Agreement can be found in Exhibit D. OBJECTIVE Procure America’s mission objective is to deliver the City of Dublin (Client) an Enterprise Strategic Plan (ESP) to minimize the City’s utility, telecommunications, document management and treasury costs. Our team of professionals will use their best efforts to obtain cost savings for the City by analyzing the Client’s policies, procedures, supplier contracts, inventory of meters and services, equipment, past invoices and other pertinent information as it relates to the expense categories stated in this proposal. Procure America cost reviews require minimal staff time, with no disruptions to the City’s daily operations. Our teams are self-contained with analytics, technology and any resources needed to accomplish the assigned review as outlined in this proposal. UTILITIES- Tariff Rate Optimization Study – TROS® This analysis is unique and highly specialized in that our work is primarily a legal review of tariff rates, transmission fees and surcharge structures. The study also includes: a forensic legal review of the California Public Utility Commission's (CPUC) rulings; interpretations and regulations as it applies to commercial and governmental tariff rate assignments; and how the providers are applying said rates structures to the City. Further, our team has deep experience in municipal tax code applications and apply this expertise to our client's various North American Industry Classification System (NAICS) designations in search of exemptions and cost mitigation opportunities through individual meter rate modeling and other measures. Procure America conducts TROS® reviews using methods, technology, and human capital that are highly specialized and proprietary. Procure America staff’s qualifications to conduct a TROS® review requires both a legal background and operational-engineering experience in order to understand, identify and implement the most “favorable” CPUC adjudicated rate structures available, and to recognize less than apparent tariff rate designations and tax mitigation that may benefit our clients. TELECOMMUNICATIONS COST REVIEW The Telecommunications Cost Review seeks to reduce the City’s landline voice, data and wireless costs while maintaining or improving service levels. This detailed and specialized review goes far beyond a typical telecom bill audit which is focused on identifying past carrier billing errors. Bringing decades of industry experience, Procure America’s team will review every phone line, circuit and wireless device to identify services that are not on the most appropriate plan offered by the carrier. Legacy services that can be replaced by more efficient Consulting Services Agreement between City of Dublin and Procure America Inc. for Business Intelligence Services Last revised 04/02/2020 Exhibit A – Page 2 of 4 technologies will be identified along with specific recommendations to the City. Contract optimization plays a role in identifying savings opportunities; therefore, we conduct a forensic review of contract terms and compare to industry best practices, cost model comparisons and governmental program modeling. Our goal is to optimize the agreement to the Client’s specific goals and needs. Our team has extensive knowledge of public-sector telecom purchasing contracts and will apply this expertise to identify any contracting vehicles that will benefit the City of Dublin. DOCUMENT MANAGEMENT COST REVIEW While Procure America has experience working with all manufacturers and service providers in the industry including Xerox, HP, Sharp, Ricoh, Konica and others, we remain completely vendor and hardware neutral. We have access to databases of vendors, pricing and performance-related metrics providing insight into how various brands and models perform in different environments. Our process includes establishing the historical cost and objective assessment of all copier and printer devices, all pages, everywhere throughout the organization, including scanning and faxing processes. We focus on optimization from the very start of the assessment through the acquisition, and ultimately the daily management of devices. In the end, our comprehensive analysis will provide recommendations on print cost reduction and management, including operation and service enhancements. Procure America will work to develop cost savings strategies to meet the City's needs, goals, and efficiencies with reduced pricing. TREASURY COST REVIEW Procure America specializes in minimizing costs associated with accepting credit cards and other forms of electronic payment. As vendor neutral experts in the payments industry, we employ a comprehensive strategy to redirect those fees back to our clients. In contract to belief, pricing is only part of the equation. In order to minimize the City’s credit card processing costs, Procure America provides very specific pricing and terms to ensure transactions are clearing at the lowest cost method. Further, our recommendations strive to increase efficiency and a better, more transparent relationship with your processing vendors. A comprehensive ESP will be generated with our findings and recommendations will be presented to the City, along with a discussion on the various options presented to pursue savings. Additionally, we will also advise on methods or emerging technology that could further reduce costs for the City. Enterprise Strategic Plan (ESP) Process: 1. Gathering Historical Data - Procure America will gather and organize historical billing information for all the City’s utility, telecommunications, document management and treasury (electronic payment processing) accounts. Where data is not readily available, Procure America will dedicate staff to work with the individual departments and providers to gather the needed billing information. This process would require limited time from City staff with the vast majority of the required information available directly to Procure America through online access with the providers. 2. Tariff Rate Analysis - Procure America analyzes the data accumulated in light of applicable tariffs, statutes, California Public Utilities Commission (CPUC) decisions and specific rate structures. All utility accounts are reviewed to determine whether they are being billed correctly, and whether they have been billed appropriately in the past. Procure America’s analysis includes but is not limited to the investigation of billing calculations, inappropriate rate schedules, proper metering of services, optional rates, applicability of taxes and surcharges, baseline and lifeline allowance calculations, meter multipliers, and rules and regulations affecting billing. Consulting Services Agreement between City of Dublin and Procure America Inc. for Business Intelligence Services Last revised 04/02/2020 Exhibit A – Page 3 of 4 Where the TROS® review starts with the historical aspect of the client’s expenses associated to rate structures, the more significant and long-term value associated to the study stems from the alternative rates available to the client moving forward. In the rate modeling component of a TROS® review, the analyst mathematically tests alternate tariff rates the client is entitled to use per CPUC rules and regulations. These alternative tariffs are based on a myriad of qualifiers including various industry NAICS codes designations, specific usage rates, load profiles, technology, 15-minute interval data and other influencers, including the new PG&E Time-of-Use structures (see section 8 for additional detail). The go-forward cost reduction aspect of the rate modeling element of a TROS® review has an extended shelf life that will continue for many years into the future. 3. Telecommunications Cost Analysis - Procure America utilizes historical billing information and carrier Customer Service Records to create a complete and current inventory of all landline voice, data and wireless services by location. Each account is reviewed to determine if services are being billed correctly per the terms of the contract and whether they have been billed appropriately in the past. Procure America’s analysis includes a review of monthly recurring costs, usage charges, equipment charges, feature charges and the applicability of taxes and surcharges. Opportunities to reduce ongoing costs with improved carrier pricing or by utilizing available purchasing contracts are identified. Based on line-by-line usage studies, Procure America will recommend the most cost-effective carrier plans for each phone line, circuit and wireless device. Usage reports, dial studies and data traffic studies are used to identify phone lines, circuits and wireless devices that appear to be unused and may no longer be needed. 4. Document Management Cost Analysis – Procure America’s team will gather information from the City and from the City's vendors including service history information for the past months, purchase and/or lease information and service contract information. Thereafter, we will assess the current pricing, printing, copying, scanning and faxing environment to provide recommendations related to the deployment of devices, policies, and procedures in order to obtain the advantages of a more streamlined and efficient document output fleet for the City. Procure America will also obtain data from the devices, interview key personnel, conduct a site visit to couple equipment with location, review service histories and supply pricing to establish cost and service benchmarking. A complete equipment list of inventory, establishing a baseline in pricing and the detailed print environment will be complied into a report with recommendations on print cost reduction and management. This detailed ESP includes an Excel file with a comprehensive cost analysis report at the individual asset level for all devices including all costs of operation for hardware/software, service, and supplies (ink/toner). Our analysis may recommend the City conducts a Request for Proposal (RFP) for Managed Print Services. If so, Procure America will work with the City's staff to develop the RFP specifications and assist writing the RFP, aligning the overall strategy and goals of the City. Procure America will assist the City evaluating the technical specifications of various models, advise on the selection of devices and ultimately awarding the contract for equipment, supplies and services specific to optimize the City’s document management needs. 5. Treasury Cost Analysis – After a preliminary review of 4 months of recent processing statements, we will request a call with the City’s designated staff member(s) to get a deep understanding of Interchange and Interchange Compliance, as well as all the alternative models that could work given the City’s needs. Thereafter, we will do our analysis to Consulting Services Agreement between City of Dublin and Procure America Inc. for Business Intelligence Services Last revised 04/02/2020 Exhibit A – Page 4 of 4 deliver a savings strategy by reducing fees associated with accepting credit, debit and other forms of electronic payment. A comprehensive report will be generated with our findings and recommendations will be presented to the City of Dublin. Based on our analysis will work with the City to determine if remaining with the existing processor (our preference), consolidating to one of the existing processors (if there are multiple providers) or if selecting an alternative trusted vendor is the best course to achieve cost savings. Thereafter, Procure America can either negotiate on behalf of the City or advise the City on how to drive price and operations toward the desired targets. 6. Report Submission - The ESP reports will summarize the results of the Telecommunications, Document Management, Treasury and TROS® reviews. The reports will contain an explanation of legal grounds for all refunds and cost reduction opportunities identified for each account, including calculations of the estimated savings and refunds expected to be achieved. 7. Implementation of Changes/Recovery of Refunds - Procure America takes all necessary steps to implement the City’s approved recommended changes and collect refunds for past billing errors. This work includes preparing documentation supporting Procure America’s recommended rate applications and if necessary, communicating or meeting with provider personnel to discuss each request. No involvement is required by City staff other than in an advisory capacity and for final approval. ESP DELIVERABLES 1. Analysis of historical usage data on all reviewed accounts 2. Legal and performance review of Power Purchase Agreements (PPA) 3. Complete inventory of all telecommunications services, hardware and phonelines 4. Complete inventory of all print management devices by location 5. Strategic go-forward findings report with recommendations to reduce costs 6.Implement all City approved recommendations 7. Evaluate any requests denied by utility provider and appeal to CPUC if appropriate and approved by the Client 8. Direct communication with carriers to confirm proper implementation 9. Work on behalf or advise the City on merchant account recommendations 10. Document and collect refunds for past overcharges 11. Monthly auditing of vendor invoices to verify cost reduction 12. Ongoing cost reduction review Consulting Services Agreement between City of Dublin and Procure America Inc. for Business Intelligence Services Last revised 04/02/2020 Exhibit B – Page 1 of 1 EXHIBIT B COMPENSATION SCHEDULE Procure America’s compensation proposal to the City is 100% contingency based. The ESP report will document the Established Rates and specific recommendations for cost reduction and outline the methodology used. If the City elects to proceed with any or all of the recommendations as set forth in the ESP report. City will pay fees at the following percentage rate of cost savings/refunds, per audit review, after City approves and receives Consultant recommendations in accordance with the provisions of this Agreement. •30% of actual cost recovered for each month in the targeted expense category(s), for sixty (60) consecutive months. Consulting Services Agreement between City of Dublin and Procure America Inc. for Business Intelligence Services Last revised 04/02/2020 Exhibit C – Page 1 of 1 EXHIBIT C INDEMNIFICATION Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, elected officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the services called for or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City. Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of Consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782. The Consultant’s obligation to defend and indemnify shall not be excused because of the Consultant’s inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within 30 days to the tender of any claim for defense and indemnity by the City. If the Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the tender of defense, whichever occurs first. C<HmQ! ojt)range, Count.p E,xecudve (JjJice CostRecovery and Reduction Services Contr4ct: R,CA.-017�19010018 l]roc1tre'A�efiC111,,Inc. l 1. Child SupJ)ort i;:ntorCcement ��quircmenti;: Contra9tor certifies n1s in full toinpUartce with allappriqabJe fiederal, � state reporting requlrerneqts regarding its ernployee5and with all lawfully �erred Wage and Earnfogs Assignment Orders and Notices of Assignmerits andwiU continue to be in coropUance thr9ughout 1P� tei;m of.the .OoJltract with the Corutt.y. of,orange .. Failure to comply shall cQnstitute a rnateriaLbr¢ach. of the Contract and failure to cure such breach within 60 calenciar days. ofnotice ,frc>1n th¢County shall constitute grounds fotterininatfo11 ofilie •. Contract. 12.ownership of Oocuments: The. Court� has permaite�t ownership Qf all dltectly coruiected ap(ideri\o'ative materials produced under thisG011tracthy tbe Contract9r .. All d9cu�nents, repgrtsandnther Incidental Qt d�rivatiye work <>r.mat,erials fru11ished t.e.-ew1der sball ge99rne and remafns thesole property Qf the County (1114 m!Iy pe ll§ecl, PY t\l.e C<>unty as it lnay require withoµt ad4itiopal�ost tp the C:0µ11tx. Nolle of tl.1e. qqcu.ments, repqrts ail4 <>ther foci<fer,taJ m-derivative WQrk 9tfuraj$becl. inaterials sh.a! I .. ge • \/-sec!, QY the Contraetor without tbe express written eon;sent of theGPUAl)'i ll Da,ta - TltJe; To: All Ul{lJed�ls, dOCl!Iil¢ll�S. d.ata or infqrrnadon. Qbtained from the Counw data f'jles Qrany Qpunty me4iurn furpJshed to the Contractodn the performance Cir this contract WiU at :i.ll. times .. 1:en1aiu fu�. prqpe� ()f' lhe . Co\lnty. guch data or .. information n1ay not lie used 6rcqpiedfor dire¢t pr 111d,irect u!e by·. the9mtractor after co111pletion or tert11U1atfo11 of this ?ontraet without the express written consent oflhc. County. All rrtat�rialsrdocurnents, data Qr hiforrttation, including copies, mustbe returned to the County .lit tlie end of this Gontra¢t. 14.Publication: . �ti co�ies of ske!ches, schedu.Ies, \'yritten �ocwnerits! c9fuputer q�sed �ta,phot()gtaphsl niaps or !¥�phs, Juclu�i�ggrap.hic art \\'Ork� resulJin� from. Pefforrn;tqqe or preP.!!tedin porinectio1t W,ith this Co�tract;. are t9. be reiea.scd PY Cpnti:1!,ctor @g/-pr imyoµe aetj11g µnqef th.esqpervjsjcm of Con)taqtor 't(), �lly pi!):!lQO; partµership, epmpiny, c9i:pprati9p, Qf, ,agt1ncy, w1U19µtpriprwniten .!lPPl'.QYal by the ('.!o\lnty, e:-ccept !lS Jlt'!gess�ry for th� pert1;>r(�ance P[ we serviC¢S pfthj.s C,ontrac;t. Ail press coµt11,ct.s, .. inc14dfp.g gnJPhi� !;ti.splatlnfprmali()n tp b.e pqblished innewspapers,.magazines •. etc.�.arn to• be adroip.illtered only afterCQ.ruttY 11,pprov.al. ts. Ertprs and ()pdsstons: . All. report�; files. and .ot�er.di,eume�ts prepared and $�bll1itted. byContractor shall be �on1Rlete. and . shall . be carefllllY checke(I, by. the prof e�sfonal(s) ide�dfi�d . by CQntJ;actor as Project Mana�ct and key personnel a«ache� l1etcto, prior to submission to the Corutty. Contractbr agrees that County review is discretionai-y and Contractor shall not assume that the CoU11ty ,vin discfrver errors arid/or omissioris. If the Cotuity discovers any errors or Omissiohs priorto approvirig;Coritracfor's repprts, files and other written documents, the .reports. files or docuinerits win be returned to Contractor for correcHon, Shoutd the County or others discqver errors or omissiohs in the repprts, files or pther written do9U([!Cnts sµllmittecl 1:>y the Contractpr .after Cpunty approval th�reof, County approval of Contractor's report;s, files pr docµments sllall not be used as a clefense by Contractor in any action betwe_en the Cowtty and Cont,r11ctor" �d the reports, files Qr documents will be returned to Contractor for correction, 16.News/lQ(Qrmation Release: The Contractor agreestbati� will not issue any news releases ormake any·contactwith the media in COllllCCtion With either the award ofthis Gontract.or.a:nrsub.sequent amendment of; or effo.rt under this·Contract, Contractors n1ust first obtain review andapproval ofsaidnews media contact from the County thfaugh the {;ouno/ DPA. An:y r�qtiestsforinterviews or information received by the media should be ref erred directly to the County.Contractors are n6t authorized fo serve as a 1nedia spokespersoris for County projects without firstobtaining.permission from the CoUnty� Page /Oof 19