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AG 15-087 RETURN TO: EXT: CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING DEPT/DIN': PRCS/ 2. ORIGINATING STAFF PERSON: a.! a€ c(,oicy,oYl 5 EXT: L°I ZZ 3. DATE REQ.BY: 4. TYPE OF DOCUMENT(CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT(E.G.,RFB,RFP,RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES/CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT(E.G.BOND RELATED DOCUMENTS) ❑ ORDINANCE ❑ RESOLUTION ❑ CONTRACT AMENDMENT(AG#): ❑ INTERLOCAL ❑ OTHER 5. PROJECT NAME: Loon d SLOqe P Sr rV 1 ce 6. NAME OF CONTRACTOR: N iS Il,,,„•S Lowe, r,,,,a I_ )_12 S , I ( - ADDRESS: Po R . 3-1 fj O S, u P stA .l! VIA °l $3 $3 TELEPHONE: 3 6 O- b el S - 2-581 E-MAIL: FAX: SIGNATURE NAME: 1)„61ti tA C,,t,,, 1e r o ZLO TITLE: 7. EXHIBITS AND ATTACHMENTS:I SCOPE,WORK OR SERVICES )(COMPENSATION INSURANCE REQUIREMENTS/CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS CFW LICENSE# BL,EXP. 12/31/ UBI# ,EXP. / / 8. TERM: COMMENCEMENT DATE: V p rni e X&c1/4.0- o w COMPLETION DATE: 12 1 3k 1 (6 9. TOTAL COMPENSATION:$ 3 q S S , 00 (INCLUDE EXPENSES AND SALES TAX,IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE-ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑YES ❑NO IF YES,MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED: ❑YES ❑NO �IjF YES,$ r PAID BY: ❑CONTRACTOR ❑CITY ❑ PURCHASING: PLEASE CHARGE To: /1 ! T 2 0 7C/'"" J ci `� Y� 10. DOCUM T/CONTRACT REVIEW INITIAL/DATE REVI WED INITIAL/DATE APPROVED IS/PROJECT MANAGER Dt�/N/y'9^ (S ❑ SUPERVISOR ❑ DIRECTOR fffd ❑ RISK MANAGEMENT (IF APPLICABLE) ❑ LAW DEPT 11. COUNCIL APPROVAL(IF APPLICABLE) COMMITTEE APPROVAL DATE: COUNCIL APPROVAL DATE: 12. CONTRACT SIGNATURE ROUTING WINS- ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: 3/31/z oLS DATE REC'D:ATTACH: SIGNATURE AUTHORITY,INSURANCE CERTIFICATE,LICENSES,EXHIBITS��! INITIAL/DATE SIGNED 'r'E7 LAW DEPT il! L SIGNATORY(MAYOR OR DIRECTOR) =1©k *CITY CLERK sp "'ar'ASSIGNED AG# AG# 'pe► • SIGNED COPY RETURNED DATE SENT: 0 P 1/01 ❑RETURN ONE ORIGINAL COMMENTS: VANA a d -b s1.e- lu sfi r roil cT 51/.het 7 11/9 jai, CITY OF CITY HALL Federal Way 33325 8th Avenue South Federal Way,WA 98003-6325 (253) 835-7000 www crtyoffederalway.com MAINTENANCE AGREEMENT FOR LANDSCAPE SERVICES This Maintenance Agreement("Agreement") is made between the City of Federal Way, a Washington municipal corporation("City"),and His Hands Lawn Care& Services, Inc., a Washington State Corporation("Contractor"). The City and Contractor(together"Parties")are located and do business at the below addresses which shall be valid for any notice required under this Agreement: HIS HANDS LAWN CARE & SERVICES, INC. CITY OF FEDERAL WAY: Dustin Orozco Doug Nelson PO Box 3750 876 South 333rd Street Silverdale, WA 98383-3750 Federal Way, WA 98003-6325 360-698-2581 (telephone) 253-835-6930 (telephone) dustin@hishandslawncare.com 253-835-6929(facsimile) doug.nelson@cityoffederalway.com The Parties agree as follows: 1. TERM.The term of this Agreement shall commence upon the effective date of this Agreement,which shall be the date of mutual execution, and shall continue until the completion of the Work,but in any event no later than December 31,2016 ("Term"). This Agreement maybe extended for additional periods of time upon the mutual written agreement of the City and the Contractor. 2. WORK. 2.1 Work. The Contractor shall provide goods, materials or services and otherwise perform the work more specifically described in Exhibit"A", attached hereto and incorporated by this reference("Work"), performed to the City's satisfaction, within the time period prescribed by the City and pursuant to the direction of the Mayor or his or her designee. 2.2 Warranties.The Contractor warrants that it has the requisite training,skill,and experience necessary to provide the Work and is appropriately accredited and licensed by all applicable agencies and governmental entities,including but not limited to obtaining a City of Federal Way business registration. The Contractor warrants it will provide services in a manner consistent with the accepted practices for other similar services within the Puget Sound region in effect at the time those services are performed.The Contractor warrants goods are merchantable,are fit for the particular purpose for which they were obtained, and will perform in accordance with their specifications and Contractor's representations to City. The Contractor shall,at its sole cost and expense, correct all Work performed which the City deems to have defects in workmanship and material discovered within one (1) year after the City's final acceptance of the Work. This Agreement is subject to all warranty provisions established under the Uniform Commercial Code,Title 62A RCW.In the event any part of the goods are repaired, only original replacement parts shall be used—rebuilt or used parts will not be acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one(1)year from the date such correction is completed and accepted by the City.The Contractor shall begin to correct any defects within seven(7)calendar days of its receipt of notice from the City of the defect.If the Contractor does not accomplish the corrections within a reasonable time as determined by the City,the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 2.3 Time,Documentation,and Inspection.Work shall begin immediately upon the effective date of this Agreement. Work shall be subject,at all times,to observation and inspection by and with approval of the City,but the making(or failure or delay in making) such inspection or approval shall not relieve Contractor of responsibility for performance of the Work in MAINTENANCE AGREEMENT - 1 - 1/2015 CITY OF CITY HALL Federal Way 33325 8th Avenue South Federal Way:WA 98003-6325 (253)835-7000 www cityoffedoraiway corn accordance with this Contract, notwithstanding the City's knowledge of defective or non-complying performance, its substantiality or the ease of its discovery. 2.4 Clean Up.At any time ordered by the City and immediately after completion of the Work,the Contractor shall, at its own expense,clean up and remove all refuse and unused materials of any kind resulting from the Work.In the event the Contractor fails to perform the necessary clean up,the City may,but in no event is it obligated to,perform the necessary clean up and the costs thereof shall be immediately paid by the Contractor to the City and/or the City may deduct its costs from any remaining payments due to the Contractor. 3. TERMINATION.Either party may terminate this Agreement,with or without cause,upon providing the other party thirty(30)days written notice at its address set forth on the signature block of this Agreement. The City may terminate this Agreement immediately if the Contractor fails to maintain required insurance policies,breaches confidentiality,or materially violates Section 12 and may result in ineligibility for further City agreements. 4. COMPENSATION. 4.1 Amount.In return for the Work,the City shall pay the Contractor an amount not to exceed a maximum amount and according to a rate or method as delineated in Exhibit "B", attached hereto and incorporated by this reference. The Contractor agrees that any hourly or flat rate charged by it for its services contracted for herein shall remain locked at the negotiated rate(s)for the Term.Except as otherwise provided in Exhibit"B",the Contractor shall be solely responsible for the payment of any taxes imposed by any lawful jurisdiction as a result of the performance and payment of this Agreement. 4.2 Method of Payment.On a monthly basis,the Contractor shall submit a voucher or invoice in the form specified by the City,including a description of what Work have been performed,the name of the personnel performing such Work,and any hourly labor charge rate for such personnel. The Contractor shall also submit a final bill upon completion of all Work. Payment shall be made on a monthly basis by the City only after the Work has been performed and within thirty(30)days after receipt and approval by the appropriate City representative of the voucher or invoice. If the Work does not meet the requirements of this Agreement,the Contractor will correct or modify the work to comply with the Agreement.The City may withhold payment for such work until the work meets the requirements of the Agreement. 4.3 Defective or Unauthorized Work.If any goods,materials,or services provided under this Agreement are either defective,unauthorized,or otherwise do not meet the requirements of this Agreement,the Contractor will correct or modify the work to comply with the Agreement and the City reserves the right to withhold payment from the Contractor until the goods, materials,or services are acceptable to the City.If Contractor is unable,for any reason,to complete any part of this Agreement, the City may obtain the goods, materials or services from other sources, and Contractor shall be liable to the City for any additional costs incurred by the City."Additional costs"shall mean all reasonable costs,including legal costs and attorney fees, incurred by the City beyond the maximum Agreement price specified above.The City further reserves its right to deduct these additional costs incurred to complete this Agreement with other sources,from any and all amounts due or to become due the Contractor. 4.4 Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period,the City will not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period,and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated.No penalty or expense shall accrue to the City in the event this provision applies. 4.5 Final Payment:Waiver of Claims.Contractor's acceptance of final payment shall constitute a waiver of any and all claims, except those previously and properly made and identified by Contractor as unsettled at the time request for final payment is made. MAINTENANCE AGREEMENT -2 - 1/2015 ` CITY OF CITY HALL ;.,•,.. Federal Way 33325 8th Avenue South Federal Way,WA 98003-6325 (253)835-7000 www.cityoffederalway.com 5. INDEMNIFICATION. 5.1 Contractor Indemnification.The Contractor agrees to release indemnify,defend,and hold the City,its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers harmless from any and all claims, demands,actions,suits,causes of action,arbitrations,mediations,proceedings,judgments,awards,injuries,damages,liabilities, taxes, losses,fines,fees,penalties expenses,attorney's fees,costs, and/or litigation expenses to or by any and all persons or entities,including,without limitation,their respective agents,licensees,or representatives,arising from,resulting from,or in connection with this Agreement or the performance of this Agreement,except for that portion of the claims caused by the City's sole negligence. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115,then,in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City,the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. Contractor shall ensure that each sub-contractor shall agree to defend and indemnify the City, its elected officials,officers,employees,agents,representatives,insurers,attorneys,and volunteers to the extent and on the same terms and conditions as the Contractor pursuant to this paragraph.The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. 5.2 Industrial Insurance Act Waiver. It is specifically and expressly understood that the Contractor waives any immunity that may be granted to it under the Washington State industrial insurance act,Title 51 RCW,solely for the purposes of this indemnification. Contractor's indemnification shall not be limited in any way by any limitation on the amount of damages,compensation or benefits payable to or by any third party under workers'compensation acts,disability benefit acts or any other benefits acts or programs.The Parties further acknowledge that they have mutually negotiated this waiver. 5.3 City Indemnification. The City agrees to release, indemnify, defend and hold the Contractor, its officers, directors, shareholders,partners,employees, agents,representatives, and sub-contractors harmless from any and all claims, demands,actions,suits,causes of action,arbitrations,mediations,proceedings,judgments,awards,injuries,damages,liabilities, losses,fines,fees,penalties expenses,attorney's fees,costs,and/or litigation expenses to or by any and all persons or entities, including without limitation,their respective agents,licensees,or representatives,arising from,resulting from or connected with this Agreement to the extent solely caused by the negligent acts,errors,or omissions of the City. 5.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 6. INSURANCE.The Contractor agrees to carry insurance for liability which may arise from or in connection with the performance of the services or work by the Contractor, their agents, representatives, employees or subcontractors for the duration of the Agreement and thereafter with respect to any event occurring prior to such expiration or termination as follows: 6.1. Minimum Limits.The Contractor agrees to carry as a minimum,the following insurance,in such forms and with such carriers who have a rating that is satisfactory to the City: a. Commercial general liability insurance covering liability arising from premises,operations,independent contractors,products-completed operations,stop gap liability,personal injury,bodily injury,death,property damage,products liability, advertising injury, and liability assumed under an insured contract with limits no less than $1,000,000 for each occurrence and$2,000,000 general aggregate. b. Workers'compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the State of Washington; c. Automobile liability insurance covering all owned, non-owned, hired and leased vehicles with a minimum combined single limits in the minimum amounts required to drive under Washington State law per accident for bodily injury, including personal injury or death,and property damage. 6.2. No Limit of Liability.Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance,or otherwise limit the City's recourse to any remedy available at law or in equity.The Contractor's insurance coverage shall be primary insurance as respect the City.Any insurance,self-insurance,or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. MAINTENANCE AGREEMENT - 3 - 1/2015 CITY OF CITY HALL Federal Way 3333$ Avenue South Federal Way,WA 98003-6325 www.cityofl ederaiway.core 6.3. Additional Insured,Verification.The City shall be named as additional insured on all commercial general liability insurance policies. Concurrent with the execution of this Agreement,Contractor shall provide certificates of insurance for all commercial general liability policies attached hereto as Exhibit"C"and incorporated by this reference.At City's request,Contractor shall furnish the City with copies of all insurance policies and with evidence of payment of premiums or fees of such policies.If Contractor's insurance policies are"claims made,"Contractor shall be required to maintain tail coverage for a minimum period of three(3)years from the date this Agreement is actually terminated or upon project completion and acceptance by the City. 6.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement. 7. CONFIDENTIALITY.All information regarding the City obtained by Contractor in performance of this Agreement shall be considered confidential subject to applicable laws. Breach of confidentiality by the Contractor may be grounds for immediate termination.The Contractor will fully cooperate with the City in identifying and assembling records in case of any public disclosure request. 8. WORK PRODUCT. All originals and copies of work product, including plans,sketches, layouts, designs,design specifications,records,files,computer disks,magnetic media or material which may be produced or modified by Contractor while performing the Work shall belong to the City upon delivery.The Contractor shall delivery all needed or contracted for work project upon demand. All records submitted by the City to the Contractor will be safeguarded by the Contractor. Contractor shall make such data, documents, and files available to the City upon the City's request. At the expiration or termination of this Agreement,all originals and copies of any such work product remaining in the possession of Contractor shall be delivered to the City. 9. BOOKS AND RECORDS.The Contractor agrees to maintain books,records,and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of the Work and maintain such accounting procedures and practices as may be deemed necessary by the City to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject,at all reasonable times,to inspection,review or audit by the City,its authorized representative, the State Auditor,or other governmental officials authorized by law to monitor this Agreement. 10. INDEPENDENT CONTRACTOR/EMPLOYEE CONDITIONS. 10.1 Independence.The Parties intend that the Contractor shall be an independent contractor and that the Contractor has the ability to control and direct the performance and details of its work,the City being interested only in the results obtained under this Agreement. The City shall be neither liable nor obligated to pay Contractor sick leave, vacation pay or any other benefit of employment, nor to pay any social security, income, or other tax which may arise as an incident of employment, except as specifically provided in Section 4. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor,shall not be deemed to convert this Agreement to an employment contract.If the Contractor is a sole proprietorship or if this Agreement is with an individual,the Contractor agrees to notify the City and complete any required form if the Contractor retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Contractor's failure to do so. 10.2 Safety.Contractor shall take all necessary precautions and shall be responsible for the safety of its employees, agents,and subcontractors at the work site and in the performance of the contract work and shall utilize all protection necessary for that purpose.Contractor shall comply with all applicable provisions of federal,state and municipal safety and health laws and codes,including without limitation,all OSHA/WISHA requirements,Safety and Health Standards for Construction Work (Chapter 296-155 WAC), General Safety and Health Standards(Chapter 296-24 WAC),and General Occupational Health Standards(Chapter 296-62 WAC).Contractor shall erect and properly maintain,at all times,all necessary guards,barricades, signals and other safeguards at all unsafe places at or near the site for the protection of its employees and the public, safe passageways at all road crossings,crosswalks,street intersections,post danger signs warning against known or unusual hazards and do all other things necessary to prevent accident or loss of any kind.Contractor shall protect from damage all water,sewer, gas,steam or other pipes or conduits,and all hydrants and all other property that is likely to become displaced or damaged by the performance of the Work.The Contractor shall,at its own expense,secure and maintain a safe storage place for its materials and equipment and is solely responsible for the same. MAINTENANCE AGREEMENT -4 - 1/2015 AlkCITY OF CITY HALL ii,,:�... Federal Way 33325 8th Avenue South Federal Way,WA 98003-6325 (253) 835-7000 www cityoffederal vay.corn 10.3 Risk of Work. All work shall be done at Contractor's own risk,and Contractor shall be responsible for any loss of or damage to materials,tools,or other articles used or held for use in connection with the work.Industrial or any other insurance that is purchased for the benefit of the City,regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. Even though Contractor is an independent contractor,the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure satisfactory completion 10.4 Prevailing Wages. 10.4.1 Wages of Employees.This Agreement is subject to the minimum wage requirements of Chapter 39.12 of the Revised Code of Washington,as now existing or hereafter amended or supplemented.In the payment of hourly wages and fringe benefits to be paid to any of Contractor's laborers,workers and/or mechanics,Contractor shall not pay less than the"prevailing rate of wage"for an hour's work in the same trade or occupation in the locality within the State of Washington where such labor is performed,as determined by the Industrial Statistician of the Department of Labor and Industries of the State of Washington,which current"prevailing rates of wage"are attached hereto as Exhibit"D" and incorporated herein by this reference. Prevailing wages paid pursuant to this Agreement shall be the prevailing wage rates that are in effect on the date when the bids,proposals,or quotes were required to be submitted to the City. 10.4.2 Agreements Exceeding One Year.Pursuant to WAC 296-127-023,or hereafter amended,the City agrees to pay any increase in the current prevailing wages if and when this Contract is extended provided that the term of the Contract exceeds one year.The City further agrees to pay the current prevailing wages at the time of additional yearly extensions,and the Contractor agrees to pay its employees the increased prevailing wage. 10.4.3 Exemptions to Prevailing Wage. The prevailing wage requirements of Chapter 39.12 RCW, and as required in this Agreement do not apply to: Sole owners and their spouses; any partner who owns at least 30%of a partnership; the President, Vice President and Treasurer of a corporation if each one owns at least 30% of the corporation. 10.4.4 Reporting Requirements.Contractor shall comply with all reporting requirements of the Department of Labor and Industries of the State of Washington.Upon the execution of this Agreement,Contractor shall complete and file a Statement of Intent to Pay Prevailing Wages with the Department of Labor and Industries.Upon completion of the Work,Contractor shall complete and file an Affidavit of Wages Paid with the Department of Labor and Industries. Contractor shall deliver copies of both the Statement of Intent to Pay Prevailing Wages and the Affidavit of Wages Paid,certified by the Department of Labor and Industries,to the City. 10.4.5 Disputes. In the event any dispute arises as to what are the prevailing rates of wages for work of a similar nature and such dispute cannot be resolved by the City and the Contractor, the matter shall be referred for arbitration to the Director of the Department of Labor and Industries of the State of Washington and the decision therein shall be final and conclusive and binding on all parties involved in the dispute. 11. CONFLICT OF INTEREST.It is recognized that Contractor may or will be performing professional services during the Term for other parties;however, such performance of other services shall not conflict with or interfere with Contractor's ability to perform the Services. Contractor agrees to resolve any such conflicts of interest in favor of the City. Contractor confirms that Contractor does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in the Contractor's selection, negotiation, drafting, signing, administration, or evaluating the Contractor's performance. 12. EQUAL OPPORTUNITY EMPLOYER.In all services,programs,activities,hiring,and employment made possible by or resulting from this Agreement or any subcontract,there shall be no discrimination by Contractor or its subcontractors of any level,or any of those entities'employees,agents,subcontractors,or representatives against any person because of sex,age (except minimum age and retirement provisions),race,color,religion,creed,national origin,marital status,or the presence of any disability, including sensory,mental or physical handicaps, unless based upon a bona fide occupational qualification in MAINTENANCE AGREEMENT - 5 - 1/2015 CITY OF CITY HALL '�.. Federal Way 33325 8th Avenue South Federal Way,WA 98003-6325 ^.. (253)835-7000 www cityofederalway corn relationship to hiring and employment. This requirement shall apply, but not be limited to the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.Contractor shall comply with and shall not violate any of the terms of Chapter 49.60 RCW,Title VI of the Civil Rights Act of 1964,the Americans With Disabilities Act,Section 504 of the Rehabilitation Act of 1973,49 CFR Part 21,21.5 and 26,or any other applicable federal, state,or local law or regulation regarding non-discrimination. 13. GENERAL PROVISIONS. 13.1 Interpretation and Modification. This Agreement, together with any attached Exhibits, contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior statements or agreements,whether oral or written,shall be effective for any purpose.Should any language in any Exhibits to this Agreement conflict with any language in this Agreement,the terms of this Agreement shall prevail.The respective captions of the Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect any of the provisions of this Agreement.Any provision of this Agreement that is declared invalid,inoperative,null and void,or illegal shall in no way affect or invalidate any other provision hereof and such other provisions shall remain in full force and effect. Any act done by either Party prior to the effective date of the Agreement that is consistent with the authority of the Agreement and compliant with the terms of the Agreement,is hereby ratified as having been performed under the Agreement.No provision of this Agreement,including this provision,may be amended,waived,or modified except by written agreement signed by duly authorized representatives of the Parties. 13.2 Assignment and Beneficiaries.Neither the Contractor nor the City shall have the right to transfer or assign,in whole or in part,any or all of its obligations and rights hereunder without the prior written consent of the other Party.If the non- assigning party gives its consent to any assignment,the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent.Subject to the foregoing,the rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto.No other person or entity shall have any right of action or interest in this Agreement based on any provision set forth herein. 13.3 Compliance with Laws. The Contractor shall comply with and perform the Services in accordance with all applicable federal,state,local,and city laws including,without limitation,all City codes,ordinances,resolutions,regulations, rules,standards and policies,as now existing or hereafter amended,adopted,or made effective.If a violation of the City's Ethics Resolution No.91-54,as amended,occurs as a result of the formation or performance of this Agreement,this Agreement may be rendered null and void,at the City's option. 13.4 Enforcement.Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor.Adherence to completion dates set forth in the description of the Services is essential to the Contractor's performance of this Agreement.Any notices required to be given by the Parties shall be delivered at the addresses set forth at the beginning of this Agreement. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid,to the address set forth above. Any notice so posted in the United States mail shall be deemed received three(3)days after the date of mailing.Any remedies provided for under the terms of this Agreement are not intended to be exclusive,but shall be cumulative with all other remedies available to the City at law,in equity or by statute.The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement,or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements options, and the same shall be and remain in full force and effect. Failure or delay of the City to �' or declare any breach or default immediately upon occurrence shall not waive such breach or default.Failure of the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default.This Agreement shall be made in,governed by,and interpreted in accordance with the laws of the State of Washington.If the Parties are unable to settle any dispute,difference or claim arising from this Agreement,the exclusive means of resolving that dispute,difference,or claim, shall be by filing suit under the venue,rules and jurisdiction of the King County Superior Court,King County,Washington, unless the parties agree in writing to an alternative process.If the King County Superior Court does not have jurisdiction over such a suit, then suit may be filed in any other appropriate court in King County, Washington. Each party consents to the personal jurisdiction of the state and federal courts in King County,Washington and waives any objection that such courts are MAINTENANCE AGREEMENT - 6 - 1/2015 CITY OF CITY HALL , .., Federal Way Fed 8th Avenue South Federal Way,WA 98003-6325 (253)835-7000 www cityoffederaiway.corn an inconvenient forum.If either Party brings any claim or lawsuit arising from this Agreement,each Party shall pay all its legal costs and attorney's fees and expenses incurred in defending or bringing such claim or lawsuit,including all appeals,in addition to any other recovery or award provided by law;provided,however,however nothing in this paragraph shall be construed to limit the Parties' rights to indemnification under Section 5 of this Agreement. 13.5 Execution. Each individual executing this Agreement on behalf of the City and Contractor represents and warrants that such individual is duly authorized to execute and deliver this Agreement.This Agreement may be executed in any number of counterparts,each of which shall be deemed an original and with the same effect as if all Parties hereto had signed the same document.All such counterparts shall be construed together and shall constitute one instrument,but in making proof hereof it shall only be necessary to produce one such counterpart. The signature and acknowledgment pages from such counterparts may be assembled together to form a single instrument comprised of all pages of this Agreement and a complete set of all signature and acknowledgment pages.The date upon which the last of all of the Parties have executed a counterpart of this Agreement shall be the"date of mutual execution"hereof. [Signature page follows] MAINTENANCE AGREEMENT - 7 - 1/2015 ` CITY OF CITY HALL sv.i ice... Federal Way 33325 8th Avenue South Federal Way,WA 98003-6325 (253)835-7000 www cityoffederalway.com IN WITNESS,the Parties execute this Agreement below, effective the last date written below. CITY OF FEDERAL WAY ATTEST: i By: LI;P UMW + 14 John'Mn,�i Direct i r of Parks To lerk, Stephanie Courtney , C DATE: V/Z I /t'f APPROVED AS TO FORM: �-.,/City Attorney, Amy Jo Pearsall LAWN HIS HANDS LA C & SERVICES,INC. By: Yli 4 Printed Name: C..\NP tS N(..RC 6 Title: V DATE: 14 — 9 — Z615 STATE OF WASHINGTON ) ) ss. 1 COUNTY OF.,Vsap ) On this day personally appeared before me CiykQ v I t S Of C/CCO , to me known to be the V,t e p(* 4‘'s- of 1• ,S� cis)..p,.,,,v,eA,ALN,0,..&?.cUc,,`13,c. that executed the foregoing instrument,and acknowledged the said instrument to be the free and voluntary act and deed of said corporation,for the uses and purposes therein mentioned,and on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this 0\ day of NNy,\ , 206 , �.,��\� K. t��, Notary's signatureC . .,,,Z4,ioN,,,,,, J► Notary's printed name ��fir,, k-- a Y1 Q�'� .4,;,... .0_-o1-= Notary Public in and for the State of Washington. NOTARY - = My commission expires )a .1S- 6' N►= PUBLIC= C 'z . Op WASH` "iii1,1,11I1 MAINTENANCE AGREEMENT - 8 - 1/2015 ` CITY OF CITY HALL '�..,. Federal Way 33325 8th Avenue South 0/ Federal Way,WA 98003-6325 (253)835-7000 www cdyoffederatway com EXHIBIT "A" SCOPE OF SERVICES 1. The Contractor shall do or provide the following: Maintenance Specifications A. The Contractor will furnish all labor, tools, specialized equipment, materials, and disposal of waste material generated by the work,supervision and transportation to perform landscape maintenance services as specifically outlined in this Agreement. B. All fieldwork shall be performed under the supervision of qualified personnel.Operators will be licensed for all functions, including p esticide fertilizer, and herbicide application, and flagging cars when required. C. The Contractor will ensure that employees comply with all applicable City of Federal Way and Washington State regulations and practices with respect to work performed for the City. D. The Contractor's personnel will conduct themselves on site in a professional manner at all times. p p E. Each employee will wear or display the company's name and/or logo. F. The City will inspect work performed by the Contractor on a regular basis. In the event of work performance deficiencies,the City will notify the Contractor. Notification may be verbal or written. The City may choose to require the Contractor to rectify the deficiency within 48 hours or hold payment. G. Equipment intensive work such as mowing,edging and blowing shall not commence before 7:00 a.m.and end by 8:00 p.m. on weekdays, (weekend work not allowed without prior approval) and it is advisable that mowing be performed during non-peak use. H. Report any damage,or potential hazard,involving City property immediately to the City,(253)835-6930. After hours emergencies should be reported to the Police/Fire Communications Center- 911. I. Hazardous conditions shall be immediately remedied or secured to prevent further damage and/or protect public from injury. It is the Contractor's responsibility to provide close supervision of maintenance operations and management of the site. J. Incidents, altercations, or accidents involving the public shall be reported to the City within 24 hours. The City may require a written report from the Contractor describing the incident. K. The Contractor,at his or her expense,will remedy any damage to City structures or plant material due to Contractor negligence in a timely manner. L. Services will be performed on the same day each week with a preference of Thursday or Friday, or as mutually agreed upon by the City and Contractor. MAINTENANCE AGREEMENT - 9 - 1/2015 Ahhi CITY OF CITY HALL 33325 8th Avenue South Federal Way Federal Way,WA 98003-6325 (253)835-7000 www cityoffederalway com Turf A. Turf areas to be maintained include community center grounds,medians,and mow strips along paths. All turf shall be mowed to a height of 2 inches.Collection of grass clippings is required when large amounts of clumps are left on the turf. B. All grass around building,posts,fences,trees,enclosure boxes,vaults,valve boxes and other obstructions shall be edged or line trimmed for a neat appearance and kept level with the surrounding turf. g pP p C. All turf areas shall be edged at sidewalks,curbs and landscape beds. Extreme caution should be used to prevent chipping of concrete by edging equipment, and use proper guards and precautions for public safety. D. All formal turf areas shall be fertilized with an approved fertilizer on a schedule specified in the quote for services provided by the Contractor.Total application of turf fertilizer shall be applied at the rate of two pounds of nitrogen per 1,000 square feet of turf per year:May shall be a slow release 3-1-2 ratio fertilizer with iron. A 3-2-5 ratio will be used for the November application. Substitutions require prior approval from the City. Landscape beds and shrubs A. Bed areas shall be kept in a weed free condition. All beds shall be weeded by mechanical and/or appropriate chemical means. The City reserves the right to limit the use of specific herbicides and/or applications of said herbicides.Casoron shall be used only with the approval of the City and only in very limited areas. Applications will be applied according to label instructions and all laws and safety procedures adhered to. B. Ground cover shall be edged 4 to 6 inches behind all sidewalks, curbs and edges of landscape beds. C. Shrubs shall be trimmed or sheared to maintain desired shape and function as needed to provide a neat, trim appearance. Hard surfaces A. Sidewalks, curbs, and all other hard surfaces shall be kept free of leaves, litter and debris. The use of power blowers is acceptable; however, accumulations of debris must be removed from the site, legally disposed of, and not blown onto adjacent property or onto street surfaces. B. All vegetation in sidewalks,curbs and other hard surfaces shall receive an approved herbicide application and be removed at the next site visit. In no case shall any pre or post-emergent herbicides with residual characteristics (i.e. Casoron)be used in these areas. Other services A. All litter,debris and animal feces shall be removed from the grounds;including but not limited to:turf, shrubs, landscape beds, and hard surface areas. The Contractor shall remove litter from the site for disposal. Garbage cans will be emptied to an approved dumping station or City provided dumpster at each visit. Each garbage can will have a new liner installed. B. The Contractor shall remove windfall branches from all areas for disposal. Wind fallen trees are not MAINTENANCE AGREEMENT - 10- 1/2015 CITY OF CITY HALL liiii Federal Way Feder 8th Avenue 8003 Federal Way,WA 98003-6325 (253) 835-7000 www atyofedera/way corn included in the contract. Leaves,needles,cones and other vegetative material shall be removed from all formal areas. Vehicles A. Vehicles working on City sites will have company name and phone number displayed.No vehicle shall be driven onto any turf without prior approval from the City.Trucks and trailers shall remain in parking lots or parked along the adjacent street in a legal manner. Frequency by Month Task Jan Feb Mar A.r Ma Jun Jul Au• Se• Oct Nov Dec TURF Mowing 2 4 4 5 4 5 4 3 1 Trimming 2 5 4 4 5 4 4 4 1 Edging 2 2 2 3 2 3 2 2 1 Fertilize 1 _ 1 Ditches 1 1 1 1 1 1 1 1 1 LANDSCAPE BEDS Weeding 1 2 2 2 2 2 2 2 1 Edge grnd Covers 1 Herbicide 1 SHRUBS Shrubs, Hed•es 1 1 HARD SURFACES Sweeping/Blowing 1 1 2 5 4 4 5 4 4 4 1 Weed/Herbicide 1 OTHER Garbage Removal 1 1 2 _ 5 4 4 5 4 4 4 1 1 Litter Collection 1 1 2 5 4 4 5 4 4 4 1 1 Barking of beds 1 Fall Cleanu• 1 2 2 1 TOTAL TASK*** 3 3 14 33 28 28 34 27 28 30 13 3 MAINTENANCE AGREEMENT - 11 - 1/2015 44146„ CITY OF CITY HALL Federal Way 33325 8th Avenue South 0.,44■t...,_ Federal Way,WA 98003-6325 (253)835-7000 www cityoflederalway corn EXHIBIT `B" COMPENSATION 1. Total Compensation: In return for the Services,the City shall pay the Contractor a total amount not to exceed Thirty-Six Thousand Four Hundred and No/100 Dollars($36,400.00)and Washington State sales tax equal to Three Thousand Four Hundred Fifty-Eight and No/100 Dollars($3,458.00)for a total of Thirty-Nine Thousand Eight Hundred Fifty-Eight and No/100 Dollars ($39,858.00). based on the following: A.)Routine Services: Annual rate not to exceed Eighteen Thousand Two Hundred and No/100 ($18,200.00). This has been calculated based on the following: Tasks performed by month Total compensation January(3x) $180.68 February(3x) $180.68 March(14x) $1,427.23 April (33x) $1,987.43 May(28x) $1,686.30 June (28x) $1,686.30 July(34x) $2,047.65 August (27x) $1,626.08 September(28x) $1,686.30 October(30x) $1,806.75 November(13x) $782.93 December(3x) $180.68 B.) Additional Services: Hourly rate of Forty and No/100 ($40.00)plus Washington State sales tax. Additional services will be mutually agreed on by the Contractor and the City before such services are provided. MAINTENANCE AGREEMENT - 12 - 1/2015 ErA -(-tic ACORO® CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDIYYYY) �.. 03/26/2015 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 be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Kristen L.Peterson Olympic Northwest Insurance,Inc (A/cc.Nn o.Ext: 360-337-0116 (A G,No):360-337-0135 1480 NW Sid Uhinck Dr Suite 100 ADDRESS: kpeterson@olynorthwest.com Silverdale,WA 98383 INSURER(S)AFFORDING COVERAGE NAIC 0 INSURERA: Benchmark Insurance Company INSURED INSURER B: United Specialty Insurance Company 12537 His Hands Lawn Care&Services,Inc. INSURERC: PO Box 3750 INSURERD: Silverdale,WA 98383 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 00000000-0 REVISION NUMBER: 78 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADM OF INSURANCE AD SUBR POLICY EFF POLICY EXP LIMITS LTR IbSD W M/ VD POLICY NUMBER (MDD/YYYY) (MMIDD/YYYY) A X COMMERCIAL GENERAL LIABILITY Y BIC5011314 11/26/2014 11/26/2015 EACH OCCURRENCE $ 1,000,000 DAMAGE TO CLAIMS-MADE X OCCUR PREMISES(Ea RENTED $ 50,000 MED EXP(Any one person) $ 5,000 PERSONAL&ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 X POLICY, JET LOC PRODUCTS-COMP/OPAGG s INCLUDED OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ (Ea accident) ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ HIRED AUTOS $S NON-OWNED PROPERTY DAMAGE H R _ AUTOS (Per accident) , B UMBRELLA LIAB X OCCUR USA4065759 11/26/2014 11/26/2015 EACH OCCURRENCE $ 2,000,000 X EXCESS LAB CLAIMS-MADE AGGREGATE $ 2,000,000 DED X RETENTION$ 0 $ A WORKERS COMPENSATION BIC2011314 11/26/2014 11/26/2015 MUTE X FR-H- ^ AND EMPLOYERS'UABIUTY Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE E.L EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? IY I N/A+ (Mandatory in NH) E.L DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L DISEASE-POLICY OMIT $ 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Certificate holder is additional insured with respects the named insured's operations,subject to policy conditions, exclusions,and endorsements,per form G0101 (03.01.08). Coverage shall be primary to the extent provided by General Liability coverage form WA1-20(06.01.08). Workers Comp:Employers'Liability Only CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Federal Way THE EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN City Hall ACCORDANCE WITH THE POLICY PROVISIONS. 33325 8th Avenue South Federal Way,WA 98003 AUTHORIZED REPRESENTATIVE I i AAA■ l ��' 'A ,o0v) (KLP) ©19 8- ACORD CORPORATION. All rights reserved. ACORD 25(2014101) The ACORD name and logo are regis =d marks`of ACORD Printed by KLP on March 26,2015 at 08:49AM ENDORSEMENT ENDT.NO. I I 60101 (ED 03/01/00) BLANKET ADDITIONAL INSURED IT IS AGREED COVERAGE IS PROVIDED TO THE ADDITIONAL INSURED(S) AS FOLLOWS: 1. SECTION II OF THE POLICY (WHO IS AN INSURED) IS AMENDED TO INCLUDE ANY PERSON OR ORGANIZATION THAT THE NAMED INSURED HAS AGREED IN AN INSURED CONTRACT TO NAME AS AN ADDITIONAL INSURED PROVIDED THE BODILY INJURY OR PROPERTY DAMAGE OCCURS SUBSEQUENT TO THE EXECUTION OF THE INSURED CONTRACT AND THE BODILY INJURY OR PROPERTY DAMAGE ARISES FROM YOUR WORK PERFORMED DURING THE POLICY TERM. 2. THE APPLICABLE LIMIT OF THE COMPANY'S LIABILITY SHALL NOT BE INCREASED BY THE INCLUSION OF ANY NUMBER OF ADDITIONAL INSUREDS. 3. OTHER THAN AS EXPRESSLY MODIFIED HEREIN, COVERAGE FOR THE ADDITIONAL INSURED IS GOVERNED BY THE TERMS AND CONDITIONS OF THIS POLICY, INCLUDING THE INSURING AGREEMENTS. 4. THE COVERAGE PROVIDED FOR THE ADDITIONAL INSURED IS ONLY TO THE EXTENT THE ADDITIONAL INSURED IS HELD LIABLE FOR THE NEGLIGENCE OR STRICT LIABILITY OF THE NAMED INSURED. NO COVERAGE IS PROVIDED FOR LIABILITY BASED UPON THE ACTS, ERRORS OR OMISSIONS OF THE ADDITIONAL INSURED. 5. NO COVERAGE IS PROVIDED TO AN ADDITIONAL INSURED FOR DAMAGES BECAUSE OF BODILY INJURY TO AN EMPLOYEE OF THE NAMED INSURED, WHETHER SUIT IS BROUGHT OR CLAIM IS MADE BY THE EMPLOYEE OR THE PARENT, SPOUSE, CHILD OR SIBLING OF SUCH EMPLOYEE, OR ANY ENTITY SEEKING DAMAGES BECAUSE OF INJURY TO SUCH EMPLOYEE. ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED. Policy Number Insured Effective BIC5011314 His Hands Lawn Care&Services Inc 11/26/14 Countersignature of Authorized Representative BENCHMARK INSURANCE COMPANY 62 0 2008 WESTCAP ` CITY OF CITY HALL �...- 33325 8th Avenue South Federal Way Federal Way,WA 98003-6325 �../ (253)835-7000 www cityoffederaiway.corn EXHIBIT "D" PREVAILING WAGES -. County 'trade ��55If on Wage King - Landscape Construction Irrigation Or Lawn Sprinkler $13.56 1 Installers King Landscape Construction Landscape Equipment Operators Or $28.17 1 Truck Drivers King < Landscape Construction Landscaping or Planting Laborers $17.87 1 MAINTENANCE AGREEMENT - 13 - 1/2015 COMMERCIAL GENERAL LIABILITY COVERAGE FORM VARIOUS PROVISIONS IN THIS POLICY MAY (1) The bodily injury or property damage is BE MORE RESTRICTIVE THAN YOU ARE caused by an occurrence that takes FAMILIAR WITH OR HAVE PREVIOUSLY place in the coverage territory;and PURCHASED. READ THE ENTIRE POLICY CAREFULLY TO DETERMINE RIGHTS, DUTIES (2) The bodily injury or property damage is AND WHAT IS AND IS NOT COVERED. caused by an occurrence which takes place during the policy period regardless Throughout this policy the words you and your refer of whether or not such occurrence is to the named insured shown in the Declarations,and known or apparent to anyone;and any other person or organization qualifying as a (3) The bodily injury or property damage named insured under this policy. The words we,us resulting from such occurrence first and our refer to the company providing this insur- takes place during the policy period, ance. regardless of when the bodily injury or The word insured means any person or organization property damage becomes known or qualifying as such under Section II - Who Is An apparent to anyone. Insured. c. All bodily injury or property damage arising Other words and phrases that appear in bold face from an occurrence, or series of related have special meanings as set forth in Section V - occurrences, will be deemed to first take Definitions or as elsewhere defined in this policy. place at the time of the first such bodily SECTION I- COVERAGESry or property damage, even though the occurrence giving rise to such bodily injury COVERAGE A. BODILY INJURY AND PRQPERTY or property damage may be continuous or DAMAGE LIABILITY repeated exposure to the same generally INSURING AGREEMENT harmful conditions, and even though the nature, type or extent of such bodily injury a. We will pay those sums that an insured becomes or property damage may be continuous, legally obligated to pay as tort damages for bodily progressive, cumulative,changing or evolving, injury or property damage to which this regardless of when the bodily injury or insurance applies. We will have the right and duty property damage becomes known or to defend an insured as defined in paragraphs (1) apparent to anyone. If the date the bodily and (2) of Section II- Who Is An Insured, against injury or property damage first took place any suit seeking those damages. However,we will cannot be determined, then the date the have no duty or obligation to defend any insured bodily injury or property damage first took in any snit where another insurer is providing a place will be deemed to be the earliest date of defense to the insured, regardless of the number exposure to, or creation of, the condition, of claims or claimants joined in the suit and circumstance or process that led to the regardless of when the damage or injury occurred bodily injury or property damage. or is alleged to have occurred,and we will have no d. Our duty to defend is further limited as duty to contribute to or participate in the defense provided in paragraphs (1), (2), (3) and (4) provided by any other such insurer, and we will below. also have no duty or obligation to defend any insured who qualifies as an additional insured by way of an endorsement to this policy under any (1) We will have no duty to defend any suit circumstance. for bodily injury property We may at our discretion investigate any that was first made or filed before the occurrence and settle any claim or suit that may policy period, regardless of whether the result. But: insured was a party to, or any insured knew or was aware of, such snit at the (1) The amount we will pay for damages is limited time it was filed. This provision applies to as described in Section III - Limits Of all suits that are re-filed, amended or Insurance. consolidated among all or some of the (2) Our right and duty to defend end when parties, and the initial filing date of the first such suit will be determinative of we have used up the applicable limit of whether the suit was filed before the insurance by payment of judgments or period. settlements under Coverages A or B or medical policy� expenses under Coverage C. (2) When we have no duty to defend, we b. This insurance applies to bodily injury and retain the right at our sole election and property damage only if: discretion, to defend an insured or to intervene in any suit which may involve liability covered by this policy. WA1-20(Ed 06/01/08) C 2008 WESTCAP (3) We will have no duty to defend any All personal injury or advertising injury to the insured against any snit seeking same person or organization arising out of a damages to which this insurance does series of related or continuing offenses will be not apply. deemed to first take place at the time the first (4) We will have no obligation or duty to such offense is committed, regardless when the defend any suit where it is alleged, in personal injury or advertising injury becomes whole or in part, that any portion of the known or apparent to anyone. bodily injury or property damage first c. Our duty to defend is further limited as provided took place prior to the policy period. in paragraphs (1), (2) and (3)below. No other obligation or liability to pay sums or perform (1) We will have no duty to defend any suit for acts or services is covered unless explicitly provided personal injury or advertising injury that under Supplementary Payments-Coverages A and B. was first filed before the policy period, regardless of whether the insured was a COVERAGE B. PERSONAL INJURY AND party to, or any insured knew or was aware ADVERTISING INJURY LIABILITY of, such suit at the time it was filed. This INSURING AGREEMENT provision applies to all snits that are re-filed, amended or consolidated among all or some a. We will pay those sums that an insured becomes of the parties, and the initial filing date of the legally obligated to pay as tort damages because of first such suit will be determinative of personal injury or advertising injury to which whether the suit was filed before the policy this insurance applies. We will have the right and period. duty to defend an insured as defined in paragraphs (1) and (2) of Section II - Who Is An (2) When we have no duty to defend, we retain Insured, against any suit seeking those damages. the right at our sole election and discretion, However, we will have no duty or obligation to to defend an insured or to intervene in any defend any any in suit where another suit which may involve liability covered by Y insurer is providing a defense to the insured, this policy. regardless of the number of claims or claimants (3) We will have no duty to defend any insured joined in the suit and regardless of when the against any suit seeking damages for damage or injury occurred or is alleged to have personal injury or advertising injury to occurred, and we will have no duty to contribute which this insurance does not apply. to or participate in the defense provided by any No other obligation or liability to pay sums or perform other such insurer, and we will also have no duty or obligation to defend any insured who qualifies acts or services is covered unless explicitly provided as an additional insured by way of an for under Supplementary Payments - Coverages A and B. endorsement to this policy under any circumstance. EXCLUSIONS: COVE RAGES A AND B We may at our discretion investigate any offense This insurance does not apply to: and settle any claim or suit that may result. But: A. EXPECTED OR INTENDED INJURY OR CRIMINAL (1) The amount we will pay for damages is OR FRAUDULENT ACT limited as described in Section III - Limits Of ro damage Insurance. Bodil y injury or property P (2) Our right and duty to defend end when we (1) Expected or intended from the standpoint of any inanred have used up the applicable limit of insurance by payment of judgments or settlements under (2) Arising out of a criminal or fraudulent act Coverages A or B or medical expenses under committed by or at the direction of anyone. Coverage C. B. CONTRACTUAL LIABILITY b. This insurance only applies to: Bodily injury or property Pelt3dam�a for which an (1) Personal injury caused by an offense arising insured is obligated to pay damages by reason of out of your business, excluding advertising, the assumption of liability in a contract or publishing, broadcasting or telecasting done agreement. This exclusion does not apply to by or for you, but only if the offense was liability for bodily injury or property damage: committed in the coverage territory during (1) That you would have in the absence of a the policy period; contract or agreement; or (2) Advertising injury caused by an offense (2) That you assumed in a contract or agreement committed in the course of advertising your that is an insured contract, provided the goods, products or services, but only if the bodily injury or property damage occurs offense was committed in the coverage subsequent to the execution of the insured territory during the policy period. WA1-20(Ed 06/01/08) 2 C©2008 WESTCAP contract and the bodily injury or property SIMILAR LAWS damage arises from your work performed An obligation of any insured under a workers during the policy period, compensation, disability benefits, unemployment In the event that paragraph (2) above is satisfied, compensation law or any similar law regulation, and subject to all other policy terms and ruling or the like. conditions including exclusion GG. - Attorney E. LIABILITY TO EMPLOYEES Fees and Expert Fees of Others, our duty to indemnify you for any liability for bodily injury, Bodily injury, personal injury, or advertising property damage, attorney fees or the costs or injury to: expenses of litigation awarded against you in (1) An employee of any insured arising out of connection with an insured contract will be and in the course of: limited to your percentage of negligence or fault, as determined by the principles of comparative (a) Employment by an insured;or fault and will not exceed the amount derived by multiplying the percentage of fault allocated to (b) Performing duties related to the conduct of you by the trier-of-fact to the total damage sum an insured's business; awarded against you to your indemnitee by the (2) The spouse,child, parent, brother or sister of trier-of-fact. Under no circumstances will we pay that employee as a consequence of(1)above. more than this proportionate share of any This exclusion applies: damages awarded against you even if your liability under the insured contract is greater. (1)Whether an insured may be liable as an Coverage for liability you assume in an insured employer or in any other capacity; contract is subject to all of the other terms, (2) To any obligation to share damages with or conditions and exclusions of this policy. repay someone else who must pay damages Where pursuant to an insured contract you because of the injury; have assumed liability to another party for the (3)To any insured against whom a claim is cost of that party's defense, reasonable attorneys made or suit is brought for such bodily fees and litigation expenses for which you are injury, personal injury or advertising liable to that party are deemed damages because injury, whether by or on behalf of an of bodily injury or property damage so long as employee of that insured or any other those attorneys' fees and litigation expenses are insured;and for the defense of that party in a suit which seeks (4)To liability assumed in an insured contract. damages for bodily injury or property damage covered by this policy and such costs, fees and For the purpose of this exclusion the term expenses would otherwise be covered by this "employees includes loaned, rented, leased or policy. Payments made to you or on your behalf temporary employees, as well as persons who for such liability will reduce the applicable limits qualify as borrowed servants or employees or of insurance as set forth in Section III-Limits Of persons who are or may be deemed employees of Insurance. Except as set forth in this exclusion, any insured under the doctrines of borrowed the costs incurred by you for the defense of servant,borrowed employee,respondeat superior another are not covered. or any similar doctrine, or for whom any insured may be held liable as an employer. C. LIQUOR LIABILITY Bodily injury, property damage, personal F. POLLUTION injury or advertising injury for which any (1) Bodily injury, property damage or personal insured may be held liable by reason of: injury arising out of, aggravated by or as a (1) Causing or contributing to the intoxication of consequence of the actual, alleged or any person; threatened discharge, dispersal, seepage, migration, release or escape of pollutants, or (2) The furnishing of alcoholic beverages to a from the presence of,or exposure to, pollution person under the legal drinking age or under of any form whatsoever, including discharge, the influence of alcohol; or dispersal, seepage, migration, release or (3) Any statute, ordinance or regulation relating escape of pollutants, or the presence of or to the sale, gift, distribution or use of exposure to pollutants, arising, directly or alcoholic beverages. indirectly, out of your work or the actual or alleged negligence, misconduct, or any other This Exclusion applies only to an insured in the act or omission, of any insured or any other business of manufacturing, distributing, selling, person or entity. serving or furnishing alcoholic beverages. (2) This exclusion applies not only to traditional ( ) PP environmental contamination or pollutants, D. WORKERS COMPENSATION AND p WA1-20(Ed 06/01/08) 3 ®2008 WESTCAP but also to bodily injury, property damage (4) Liability assumed under an insured contract or personal injury arising out of pollutants in for the ownership, maintenance or use of common and everyday situations or involving aircraft or watercraft;or ordinary acts of negligence. (5) The operation of any of the machinery or (3) This exclusion applies to any loss, cost or equipment listed in paragraph f.(2) or f.(3) of expense arising out of: the definition of mobile equipment. (a)Any request,demand,order or requirement H. MOBILE EQUIPMENT by anyone that any insured or others test Bodily or damage arising out of: for, monitor, clean up, remove, contain, y fury g treat, detoxify or neutralize, or in any way (1) The transportation of mobile equipment by respond to, or assess the effects of an auto owned or operated by or rented or pollutants;or loaned to any insured;or (b) Any claim or suit by anyone for damages (2) The use of mobile equipment in, or while in arising out of testing for, monitoring, practice or preparation for, a prearranged cleaning up, removing, containing, treating, racing, speed or demolition contest or in any detoxifying or neutralizing, or in any way stunting activity;or responding to, or assessing the effects of (3) The transportation,movement, use, presence, pollutants. employment or existence of mobile Notwithstanding the provisions of this policy equipment on any public street or highway, regarding the duty to defend an insured as except this subparagraph does not apply to described in Section 1 -Coverages A and B of this liability arising out of the transportation or policy, where a suit is based in whole or in part movement of mobile equipment from one upon bodily injury, property damage or part of a job site to another part of a job site personal injury, liability for which is excluded by on any public street or highway immediately this exclusion, we will have the right, but not the adjoining a job site at which your work is obligation, to defend said suit. When we do not being performed. elect to defend an insured in such suit, we will I. WAR reimburse such insured for the reasonable attorneys'fees and litigation expenses incurred by Bodily injury, property damage, personal the insured, in accordance with paragraph 13 of injury or advertising injury arising out of or due Section IV - Commercial General Liability to war, whether or not declared, or any act or Conditions. condition incident to war. War includes civil war, G. AIRCRAFT,AUTO OR WATERCRAFT insurrection, rebellion, act of terrorism, or revolution, whether any other cause or causes of Bodily injury or property damage arising out of said bodily injury, property damage, personal the ownership, maintenance, use or entrustment injury, or advertising injury including the to others of any aircraft, auto or watercraft. Use negligence or misconduct of any insured, caused includes operation and loading or unloading. or contributed to such bodily injury, property This exclusion applies even if the claims against damage, personal Injury or advertising injury. any insured allege negligence or other J. DAMAGE TO PROPERTY wrongdoing in the supervision, hiring, Property damage to: employment, training or monitoring of others by any insured, if the occurrence which caused the (1) Property any insured owns, rents, or bodily injury or property damage involved the occupies, including any costs or expenses maintenance, use or entrustment to others of incurred by any insured, or any other any aircraft, auto or watercraft. person, organization or entity, for repair, This exclusion does not apply to: replacement, enhancement, restoration or maintenance of such property for any reason, (1) A watercraft while ashore on premises you including prevention of injury to a person or own or rent; damage to another's property; (2) A watercraft you do not own that is: (2) Premises an insured sells, gives away or (a) Less than 26 feet long; and abandons, if the property damage arises out of any part of those premises; (b) Not being used to carry persons or (3) Property, real or personal, loaned to any property for a charge; insured; (3) Parking an auto on, or on the ways next to, (4) Personal property in the care, custody or premises you own or rent, provided the auto control of any insured, whether or not such is not owned by, rented or loaned to any care, custody or control was exclusive at the insured; time of such dam property damage; WA1-20(Ed 06/01/08) 4 C 2008 WESTCAP (5) That particular part of real property on which N. RECALL OF PRODUCTS,WORK OR IMPAIRED you or any contractors or subcontractors PROPERTY working directly or indirectly on your behalf Damages claimed for any loss, cost or expense are performing operations, if the property incurred by you or others for the loss of use, damage arises out of those operations; or withdrawal, recall, inspection, repair, (6) That particular part of any property that replacement,adjustment,removal or disposal of: must be restored, repaired or replaced because your work was incorrectly performed (1) Your product; on it. (2) Your work;or Paragraph (2) of this exclusion does not apply if (3) Impaired property; the premises are your work and were never If such product, work, or property is withdrawn occupied,rented or held for rental by you. or recalled from the market or from use by any Paragraph (6) of this exclusion does not apply to person or organization because of a known or property damage included in the products- suspected defect, deficiency, inadequacy or completed operations hazard. dangerous condition in it. For purposes of paragraphs (5) and (6) of this This exclusion applies to property which is exclusion, if you are a general contractor, otherwise not physically injured or damaged but construction supervisor,construction manager or which must be demolished, removed, repaired, developer, the entire construction project or job replaced, altered or damaged in order to remove, site at which your work is being performed or repair or replace your work or your product services provided will be considered "that 0. ASBESTOS particular part"of real or other property. For purposes of paragraph (5), you or any Bodily wry, property damage or personal injury, contractors or subcontractors working directly or consequence out oft aggravated or eg or as a indirectly on your behalf will be deemed to be to of fa Lure, i alleged exposure "performing operations" from the time you or the to or the manufacture, mining, use, sales, contractors or subcontractors begin work until installation, distribution, removal, or such operations are complete as set forth in the encapsulation of asbestos products, asbestos fibers or asbestos dust, including such definition of products-completed operations hazard exposure or manufacture arising, directly or indirectly, out of your work or the actual or K. DAMAGE TO YOUR PRODUCT alleged negligence, misconduct, or any other Property damage to your product. act or omission, of any insured or any other person or entity. L. DAMAGE TO YOUR WORK This exclusion will apply without regard to the Property damage to your work or any part of it source or sources of such asbestos, or the basis and included in the products-completed of the insured's liability. This Exclusion includes operations hazard. any bodily injury, property damage or personal This exclusion does not apply if the damaged injury arising out of the presence of asbestos and work or the work out of which the damage arises bodily °' txiop y damage or personal was performed on your behalf by a injury arising out of the removal, eradication, subcontractor. detoxification, remediation or decontamination of asbestos or property containing asbestos, and M. DAMAGE TO IMPAIRED PROPERTY OR further includes any liability, cost or expense to PROPERTY NOT PHYSICALLY INJURED remediate or prevent property damage, bodily Property damage to impaired property or injury or personal injury from asbestos. property which has not been physically injured Notwithstanding the provisions of this policy arising out of: regarding the duty to defend an insured as (1) A delay or failure by you or anyone acting on described in Section 1-Coverages A and B of this your behalf to perform a contract or policy, where a suit is based in whole or in part agreement in accordance with its terms;or upon bodily injury, property damage or personal injury, liability for which is excluded by (2) A defect,deficiency, inadequacy or dangerous this exclusion,we will have the right,but not the condition in your product or your work. obligation, to defend said suit. When we do not This exclusion applies to property which is elect to defend an insured in such suit, we will otherwise not physically injured or damaged but reimburse an insured for the reasonable which must be demolished, removed, repaired, attorneys'fees and litigation expenses incurred by replaced, altered or damaged in order to remove, the insured, in accordance with paragraph 13 of repair or replace your work or your product. Section IV Commercial General Liability Conditions. WA1-20(Ed 06/01/08) 5 ®2008 WESTCAP P. PUNITIVE DAMAGES, EXEMPLARY natural phenomena, human activities or man- DAMAGES, MULTIPLICATION OF DAMAGES, made conditions. FINES OR PENALTIES Notwithstanding the provisions of this policy Claims or suits for punitive or exemplary regarding the duty to defend an insured as damages,fines or penalties of any nature whether described in Section 1-Coverages A and B of this or not imposed by or under any law, statute, or policy, where a suit is based in whole or in part ordinance of any federal, state or municipal upon bodily injury, property damage or g overnment agency including multiplication of pe rsonal injury for which is excluded by compensatory damages or multiplication of this exclusion,we will have the right,but not the attorney fees. obligation, to defend said suit. When we do not Q. AIRCRAFT PRODUCTS elect to defend an insured in such suit, we will reimburse such insured for the reasonable Bodily injury or property damage included attorneys'fees and litigation expenses incurred by within the products-completed operations the insured, in accordance with paragraph 13 of hazard relating to aircraft, including missiles or Section IV - Commercial General Liability spacecraft, any ground support or control Conditions. equipment and any article installed in aircraft, or S. NUCLEAR ENERGY used in connection with aircraft, or for spare parts for aircraft, or tooling used for the Bodily injury, property damage or personal manufacture thereof, including ground handling injury: tools and equipment, training aids, instruction Arising out of,aggravated by,or as a consequence manuals, blueprints, engineering or other data, advice and services and labor relating to such of the actual or alleged hazardous properties of aircraft or articles,or to any liability arising out of nuclear material, including such hazardous the grounding of any aircraft. properties arising, directly or indirectly, out of your work or the actual or alleged negligence, For the purpose of this exclusion "grounding" misconduct, or any other act or omission, of any means the withdrawal of one or more aircraft insured or any other person or entity. from flight operations or the imposition of speed, The following definitions apply only to this passenger or load restrictions on such aircraft,by exclusion: reason of the existence of or alleged or suspected existence of any defect,fault,or condition in such (1) "Hazardous properties" include radioactive, aircraft or any part thereof sold, handled or toxic or explosive properties. distributed by any insured, or manufactured, (2) "Nuclear material" means source material, assembled or processed by any other person or special nuclear material or by-product organization according to specifications, plans, material. suggestions, orders or drawings of any insured, or with tools, machinery or other equipment (3) "Source material," "special nuclear material," furnished to such persons or organizations by and "by-product material" have the meanings any insured, whether such aircraft so withdrawn given them in the Atomic Energy Act of 1954 are owned or operated by the same or different or in any law amendatory thereof. persons or organizations. For purposes of this exclusion, property damage R. EARTH MOVEMENT includes all forms of radioactive contamination of property, including such radioactive Bodily injury, property damage or personal contamination arising, directly or indirectly, injury arising out of, aggravated by, or as a out of your work or the actual or alleged consequence of actual or alleged earth movement, negligence, misconduct, or any other act or including earth movement arising, directly or omission, of any insured or any other person indirectly, out of your work or the actual or alleged negligence, misconduct, or any other act or entity. or omission, of any insured or any other person This exclusion includes any injury or damage or entity.As used in this exclusion the term earth actually or allegedly arising out of, aggravated by movement includes, but is not limited to, loss of or as a consequence of the removal, eradication, lateral support, avalanche, earthquake, tremors, detoxification, remediation or decontamination of aftershocks landslide, subsidence, mud flows, nuclear material or property containing nuclear sink holes, erosion or any change in the level of material, and further includes any liability, cost soil or earth by any cause including contracting, or expense to remediate or prevent bodily injury, sinking, shifting, expanding, heaving, rising, property damage or personal injury from removal of topsoil or any other movement of soil nuclear material. or earth. Notwithstanding the provisions of this policy This exclusion applies regardless of whether the regarding the duty to defend an insured as earth movement is the result of or arises out of described in Section 1-Coverages A and B of this WA1-20(Ed 06/01/08) 6 C 2008 WESTCAP policy, where a suit is based in whole or in part (2), (3),or(4) above. upon bodily injury, property damage or personal injury, liability for which is excluded by This exclusion applies whether an insured may this exclusion, we will have the right, but not the be held liable as an employer or in any other obligation, to defend said suit. When we do not capacity and to any obligation to share damages elect to defend an insured in such suit, we will with or to repay someone else who must pay reimburse such insured for the reasonable damages because of the injury. attorneys'fees and litigation expenses incurred by Notwithstanding the provisions of this policy the insured, in accordance with paragraph 13 of regarding the duty to defend an insured as Section IV - Commercial General Liability described in Section 1-Coverages A and B of this Conditions. policy, where a suit is based in whole or in part T. ELECTROMAGNETIC RADIATION upon bodily injury, property damage or personal injury liability for which is excluded by Bodily injury, property damage or personal this exclusion,we will have the right,but not the injury arising out of, aggravated by or as a obligation, to defend said suit. When we do not consequence of actual or alleged exposure to or elect to defend an insured in such suit, we will the existence of harmful levels or frequencies of reimburse such insured for the reasonable electromagnetic radiation, whether such attorneys'fees and litigation expenses incurred by electromagnetic radiation is naturally occurring the insured, in accordance with paragraph 13 of or artificially created, including such exposure to Section IV - Commercial General Liability or existence of radiation arising, directly or Conditions. indirectly, out of your work or the actual or alleged negligence, misconduct, or any other act V. MOLD,BACTERIA, FUNGI OR ORGANIC of omission, of any insured or any other person PATHOGENS or entity. This Exclusion will apply without regard Bodily injury,property damage or personal to the source or sources of such electromagnetic injury arising out of, aggravated by or as a radiation, or the allegations against an insured or consequence of: basis of an insured's liability. (1) Any actual, alleged or threatened inhalation, Notwithstanding the provisions of this policy ingestion, existence, presence, growth, regarding the duty to defend an insured as spread, dispersal, release or escape of, or contact with or exposure to, any fungi, mold, in SECTION 1 COVERAGES A and B p � Y $> > of this policy,where a suit is based in whole or in lichen, organic or inorganic pathogens, part upon bodily injury, property damage or pollen, bacteria or other living or dead personal injury liability for which is excluded by organisms, including any by-products that this exclusion, we will have the right, but not the have toxic, hazardous, noxious, pathogenic, obligation, to defend said suit. When we do not irritating or allergenic qualities or elect to defend an insured in such suit, we will characteristics, including actual, alleged or reimburse such insured for the reasonable threatened inhalation, ingestion, existence, attorneys'fees and litigation expenses incurred by presence, release, escape, contact or the insured, in accordance with paragraph 13 of exposure arising, directly or indirectly, out of Section IV -Commercial General Liability your work or the actual or alleged negligence, Conditions. misconduct, or any other act or omission, of U. EMPLOYMENT PRACTICES any insured or other person or entity,. Bodily injury or property damage or personal (2) Any toxic, hazardous, noxious, irritating, injury arising out of any: pathogenic or allergen qualities or characteristics of indoor air;or (1) Refusal to employ; (2) Termination of employment; (3) Any substance, material, mineral, or other product that is either alleged or deemed to be (3) Coercion, defamation, demotion, evaluation, hazardous, toxic, irritating, pathogenic or reassignment, humiliation, harassment, noxious in any way, or contributes in any discipline, discrimination or other way to an allergic reaction. employment-related practices, policies, acts or omissions;or This exclusion applies to any loss, cost or expense arising out of any: (4) Consequential injury as a result of any of the above. (a) Request, demand, order or requirement that any insured or others test for, monitor, clean (5) Claim or suit by a spouse, domestic partner, up, remove, contain, treat, detoxify or child, parent, brother or sister of any neutralize, or in any way respond to or assess employee or insured arising out of, or as a the effects of the matters addressed in consequence of any activities or paragraphs (1), (2) or(3)above;or circumstances described in paragraphs (1), WA1-20(Ed 06/01/08) 7 ©2008 WESTCAP (b) Claim or suit for damages because of testing personal injury from lead. for, monitoring, cleaning up, removing, Notwithstanding the provisions of this policy containing, treating, detoxifying or regarding the duty to defend an insured as neutralizing, or in any way responding to or described in Section 1-Coverages A and B of this assessing the effects of the matters addressed in paragraphs(1), (2)or(3)above. policy, where a suit is based in whole or in part upon bodily injury, property damage, or This exclusion applies regardless of the origin or personal injury liability for which is excluded by cause of the fungi, mold, lichen, organic or this exclusion,we will have the right,but not the inorganic pathogens, pollen, bacteria or other obligation, to defend said suit. When we do not living or dead organisms, including any by- elect to defend an insured in such suit, we will products that have toxic, hazardous, noxious, reimburse such insured for the reasonable pathogenic, irritating or allergenic qualities or attorneys'fees and litigation expenses incurred by characteristics. the insured, in accordance with paragraph 13 of Notwithstanding the provisions of this policy Section IV - Commercial General Liability regarding the duty to defend an insured as Conditions. described in Section 1 -Coverages A and B of this Y. CONDOMINIUM OR TOWNHOUSE LIABILITY policy, where a suit is based in whole or in part Property damage or bodily injury included upon bodily injury, property damage or within the products-completed operations personal injury liability for which is excluded by 1� hazard arising exclusion, we will have the right,but not the g from, related to or in any way obligation, to defend said suit. When We do not connected with your work or the work of any insured elect to defend an insured in such suit, we will that is performed on or in connection reimburse such insured for the reasonable with, or your product supplied or incorporated attorneys'fees and litigation expenses incurred by into or upon, a common ownership condominium, townhouse or similar project including the the insured, in accordance with paragraph 13 of common areas of such projects. This exclusion Section IV - Commercial General Liability applies to personal injury or advertising injury Conditions. arising or resulting from any insured's operations W. PAST PROJECTS performed upon,at or for such a project. Property damage included within the products- This exclusion also applies to property damage, completed operations hazard arising from,or in bodily injury, personal injury, or advertising any way related to, your work or your product, if injury arising from, related to or connected with your work was performed on or in connection your work or the work of any insured that is with, or your product was supplied or performed on or in connection with, or your incorporated into or upon, any real property product supplied or incorporated into or upon, improvement or project of construction including an apartment project or structure which, at the all associated common areas, before the policy time a claim for such property damage, bodily period. This exclusion does not apply if the injury,personal injury, or advertising injury is project of construction is specifically endorsed on first made, has been or is being converted into a this policy and a premium is charged therefor. common ownership condominium, townhouse or X. LEAD similar project, whether your operations, including your work or your product, were Bodily injury, property damage or personal performed, incorporated or supplied before or injury arising out of, aggravated by or as a after the apartment was converted to a consequence of the actual or alleged existence of condominium, townhouse or similar project or or exposure to lead,whether such lead is in pure structure. form or is or was combined with any other chemical or material, including the existence of or A project or development of condominiums, exposure to lead arising,directly or indirectly,out townhomes or similar projects includes such of your work or the actual or alleged negligence, projects or developments where any or all of the misconduct, or any other act or omission, of any units are held for rental or lease. insured or any other person or entity. This Z. FORMALDEHYDE exclusion will apply without regard to the allegations or basis of the insured's liability. Bodily injury, property damage or personal This exclusion includes any injury or damage cnry arising out the aggravated by or e a Y j r'1' g consequence of the actual or alleged arising out of, aggravated by or as a consequence manufacture, handling, distribution, sale, of the removal, eradication, detoxification, application, consumption, use or exposure to any remediation or decontamination of lead or product known as formaldehyde or which has the property containing lead, and further includes same chemical formula or which is a any liability, cost or expense to remediate or formaldehyde derivative or which is generally prevent property damage, bodily injury or known in the trade in which it is used as having a like formulation, structure or function by WA1-20(Ed 06/01/08) 8 C 2008 WESTCAP whatever name manufactured, sold or Property damage arising out of: distributed, including manufacture, handling, distribution, sale, application, consumption, use (1) The design, manufacture, construction, or exposure to such products arising, directly or fabrication, preparation, installation, indirectly, out of your work or the actual or application, maintenance or repair including alleged negligence, misconduct, or any other act remodeling, service, correction or or omission, of any insured or any other person replacement of an "exterior insulation and or entity. This exclusion will apply without finish system" (EFIS), commonly referred to regard to the basis of an insured's liability. This as synthetic stucco, or any part thereof or exclusion applies to any injury or damage arising any substantially similar system or any part out of, aggravated by or as a consequence of the thereof, including the application or use of removal, eradication, detoxification, remediation conditioners, primers,accessories,flashings, or decontamination of formaldehyde or property coatings, caulking or sealants in connection containing formaldehyde, and further includes with such a system;or any liability, cost or expense to remediate or prevent bodily injury, property damage or (2) Any work or operations with respect to any personal injury from formaldehyde. exterior component, fixture or feature of any Notwithstanding structure if EIFS is used in or on any part of otwithstanding the provisions of this policy that structure. regarding the duty to defend an insured as described in Section 1 -Coverages A and B of this "Exterior insulation and finish system" includes policy, where a suit is based in whole or in part an exterior cladding or finish system used on upon bodily injury, property damage or any part of any structure,and consisting of: personal injury, liability for which is excluded by (1) A rigid or semi-rigid insulation board made this exclusion, we will have the right, but not the of expanded polystyrene or other materials; obligation, to defend said suit, When we do not (2) The adhesive and/or mechanical fasteners elect to defend an insured in such suit, we will used to attach the insulation board to the reimburse such insured for the reasonable substrate; attorneys'fees and litigation expenses incurred by (3) A reinforced base coat; the insured, in accordance with paragraph 13 of (4) A finish coat providing surface texture and Section IV - Commercial General Liability color;and Conditions. (5) Any flashing, caulking or sealant used with the AA. PROFESSIONAL LIABILITY system for any purpose. Bodily injury, property damage, personal EE. CONCRETE SULFATES injury or advertising injury arising out of the Bodily injury or property damage arising out performance of professional services by anyone. of, aggravated by or as a consequence of the Notwithstanding the provisions of this policy actual or alleged exposure of concrete to, or the regarding the duty to defend an insured as absorption by concrete products of, sulfates, described in Section 1 -Coverages A and B of this acids or sulfides in any form whatsoever, policy, where a suit is based in whole or in part whether such sulfates are in pure form or are or upon bodily injury, property damage, personal were combined with any other chemical or injury or advertising injury liability for which is material, including such exposure to or excluded by this exclusion,we will have the right, absorption of sulfates, acids or sulfides arising, but not the obligation, to defend said suit. When directly or indirectly, out of your work or the we do not elect to defend an insured in such actual or alleged negligence, misconduct, or any suit, we will reimburse such insured for the other act or omission, of any insured or other reasonable attorneys'fees and litigation expenses person or entity. This exclusion will apply incurred by the insured, in accordance with without regard to the allegations or basis of the paragraph 13 of Section IV - Commercial General insured's liability. Liability Conditions. Notwithstanding the provisions of this policy BB.FINANCIAL SERVICES regarding the duty to defend an insured as described in Section 1 -Coverages A and B of Bodily injury, property damage, personal injury or advertising injury arising out of the this upon, where a suit is based in whole a e, rendering or failure to render financial services. part upon bodily which is excluded or property damage, liability for which is excluded by this exclusion, CC. BLASTING OPERATIONS we will have the right, but not the obligation, to Bodily injury, property damage, personal defend said suit. When we do not elect to defend injury or advertising injury arising out of an insured in such suit,we will reimburse such blasting or explosion operations. insured for the reasonable attorneys' fees and Iitigation expenses incurred by the insured, in DD. EXTERIOR INSULATION AND FINISH accordance with paragraph 13 of Section IV - SYSTEMS Commercial General Liability Conditions. WA1-20(Ed 06/01/08) 9 ©2008 WESTCAP FF. BREACH OF CONTRACT trademark, trade dress, trade secret, patent, Bodily injury, property damage,personal injury or advertising slogans or other intellectual or advertising injury arising directly or indirectly, property rights including, but not limited to out of the actual or alleged breach of any express infringement of another's architectural plans, or implied contract,agreement or warranty. drawings, or similar designs; GG. ATTORNEY FEES AND EXPERT FEES OF OTHERS (6) Arising out of the negligent or tortious interference with contract or prospective Any claim, suit, demand, request or award economic advantage; against any insured comprised, in whole or in part, of any attorney fees and costs, expert fees (7) Caused by or at the direction of any Insured with and costs, sanctions or any other cost or expense the knowledge that the act would violate incurred by any other party to any claim or snit, the rights of another and would inflict including any other insured under this policy. personal injury or advertising injury; This exclusion applies regardless of whether any of (8) Arising directly or indirectly out of any the expenses or costs described above were unsolicited advertising or communication, awarded in a suit as damages or costs. including but not limited to, telephone, This exclusion does not apply to our obligations telefax, or a mail, or any action or omission under an insured contract, that violates or is alleged to violate: HH. CONSOLIDATED INSURANCE PROGRAM(WRAP- (a)The Telephone Consumer Protection Act UP,OWNER CONTROLLED OR CONTRACTOR (TCPA), including any amendment of or CONTROLLED) addition to such law; Bodily injury or property damage included (b)The CAN-SPAM Act of 2003, including any within the products-completed operations amendment of or addition to such law;or hazard arising out of, resulting from, occurring at (c)Any statute,ordinance or regulation,other or connected with any location or premises which than the TCPA or CAN-SPAM Act of 2003, is or was at any time covered under any that prohibits or limits the sending, Consolidated Insurance Program (CIP), Owner transmitting, communicating or Controlled Insurance Program (OCIP), Contractor distribution of material or information; Controlled Insurance Program (CCIP), Wrap-Up or similar insurance program. (9) Arising out of the unauthorized use of another's name or product in any way, This exclusion applies regardless of whether the including but not limited to use in any e-mail CIP, OCIP, CCIP, Wrap-Up or similar insurance address, domain name or metatag, or any program provides coverage that is more restrictive other similar tactics to mislead another's than or identical to this policy, actually applies to potential customers. Use of another's the bodily injury or property damage, has limits product includes but is not limited to use of adequate to cover all claims or remains in effect or architectural plans, drawings, or similar is cancelled. designs; II. PERSONAL INJURY AND ADVERTISING INJURY (10) Arising out of an electronic chat room or Personal or advertising bulletin board any insured hosts, owns, or injury rtising injury: over which any insured exercises control. (1) Arising out of oral or written publication of material, if done by or at the direction of an JJ, ADVERTISING INJURY insured with knowledge of its falsity; Advertising injury arising out of: (2) Arising out of oral or written publication of the (1) The failure of goods, products or services to same or similar material, whose first conform to any statement of quality or publication took place before the beginning of performance made in any advertisement by the policy period, even if the publication an insured; continued after the inception date of the (2) The wrong description of the price of goods, policy; products or services or any wrong description (3) Arising out of a criminal or fraudulent act of the goods,products or services stated in an committed by or with the consent of any advertisement by an insured; insured or done at any insured's direction; (3) The misappropriation of advertising ideas or (4) For which an insured has assumed liability style of doing business;or in a contract or agreement. This exclusion (4) The oral or written publication of material does not apply to liability for damages that the insured would have in the absence of a that disparages a person's or organization's contract or an agreement; goods,products or services. (5) Arising out of infringement of copyright, title, Exclusions C. through N. do not apply to damage by WA1-20(Ed 06/01/08) 10 ©2008 WESTCAP fire to premises while rented to you or temporarily any insured, if benefits for the bodily injury occupied by you with permission of the property are payable or must be provided under a owner. A separate limit of insurance applies to such workers compensation or disability benefits coverage as described in Section III - Limits of law or a similar law. Insurance. E. ATHLETIC ACTIVITIES To a person injured while practicing, COVERAGE C. MEDICAL PAYMENTS instructing or participating in any physical 1. INSURING AGREEMENT exercises, games, sports, or athletic contests or the like. a. We will pay medical expenses as described F. EXCLUSIONS: COVERAGES A AND B below for bodily injury caused by an accident: Excluded under Exclusions: Coverages A and (1) On premises you own or rent;or B. (2) On ways next to premises you own or G. PRODUCTS-COMPLETED OPERATIONS HAZARD, rent; provided that: Included within the products-completed operations hazard. (1) The accident takes place in the coverage SUPPLEMENTARY PAYMENTS- COVERAGES A AND territory,during the policy period; (2) The expenses are incurred and reported 1. We will pay,with respect to any claim,or any suit to us within the policy period;and we defend: (3) The injured person submits to a.All expenses we incur. examination, at our expense, by physicians of our choice when and as b.Up to $250 for cost of bail bonds required often as we reasonably require. because of accidents or traffic law violations arising out of the use of any vehicle to b. We will make these payments regardless of which the Bodily Injury Liability Coverage fault. These payments will not exceed the applies. We do not have to furnish these applicable limit of insurance as described in bonds or provide security, collateral or Section III - Limits Of Insurance. Subject to financial guarantee for them. the foregoing and the exclusions in paragraph c. The cost of bonds to release attachments or to (2) below, we will pay reasonable expenses stay a judgment on appeal, but only for bond for: amounts within the applicable limit of (1) First aid at the time of an accident; insurance. We do not have to furnish these (2) Necessary medical, surgical, x-ray and bonds or provide security, collateral or financial ( ) g y guarantee for them. dental services, including prosthetic devices;and d.All reasonable expenses you incur at our (3) Necessary professional nursing, hospital request to assist us in the investigation or ambulance, and funeral services. defense of the claim or suit, including actual loss of earnings up to $250 a day because of 2. EXCLUSIONS time off from work. We will not pay expenses for bodily injury: e. Costs awarded against you in the snit for A. ANY INSURED damages, if awarded on a cause or causes of action covered by this insurance. However, we To any insured. will not pay costs which are awarded as B. HIRED PERSON attorney fees or expert fees to any party by reason of statute, court rule, decisional To a person hired to do work for or on behalf authority, regulation or a contractual of any insured or a tenant of any insured obligation,except as set forth in paragraph b. of C. INJURY ON NORMALLY OCCUPIED exclusions,Coverages A and B. PREMISES f. Prejudgment interest awarded against you on that part of the judgment we pay. If we make To a person injured on that part of premises an offer to pay the applicable limit of insurance, any insured owns or rents that such person normally occupies. we will not pay any prejudgment interest based on the period of time after the offer. D. WORKERS COMPENSATION AND SIMILAR LAWS g. All interest on the full amount of any judgment that accrues after entry of the judgment and To a person, whether or not an employee of before we have paid, offered to pay, or WA1-20(Ed 06/01/08) 11 ©2008 WESTCAP deposited in court that part of the judgment business; that is within the coverage of this policy and the applicable limit of insurance. (b) To the spouse, child, parent, brother or sister of anyone included in SECTION II- WHO IS AN INSURED paragraph (1](a) above; 1. If the named insured is designated in the (c) For which there is any obligation to declarations as: share damages with or repay someone else who must pay damages a. An individual, you and your spouse are because of the injury described in insureds,but only with respect to the conduct of a business of which you are the sole owner. Paragraphs (1)(a) or(1)(b) above;or b. A partnership or joint venture, you are an (d) Arising out of his or her providing or insured. Your members, your partners, and failing to provide professional health their spouses are also insureds, but only with care services. respect to the conduct of your business. (2) Property damage to property: c. A limited liability company, you are an (a) Owned or occupied or used by, insured,your members are also insureds,but (b) Rented or loaned to, in the care, only with respect to the conduct of your custody or control of, or over which business. Your managers are insureds, but physical control of any extent is being only with respect to their duties as your exercised for any purpose by; managers. d. A corporation or organization other than a You, or any of your employees, leased partnership, joint venture, or limited liability employees, temporary employees, volunteer p P J workers, special employees, any partners or company,you are an insured.Your executive officers and directors are insureds, but only members (if you are a partnership or joint with respect to their duties as your executive venture) or any member (if you are a limited officers or directors. Your stockholders are liability company). also insureds, but only with respect to their b. Any person(other than your employee) or any liabilities as your stockholders. organization while acting as your real estate manager. e. A trust,you are an insured. Your trustees are also insured's, but only with respect to c. Any person or organization having proper their duties as your trustees. temporary custody of your property if you 2. Each of the following is also an insured: die,but only: a. Your general or direct employees, but not (1) With respect to liability arising out of the including your executive officers (if you are maintenance or use of that property;and an organization other than a partnership,joint (2) Until your legal representative has been venture or limited liability company], your appointed. managers (if you are a limited liability d. Your legal representative if you die, but only company), or leased employees, special with respect to duties as such. That employees, temporary employees or volunteer representative will have all your rights and workers. However, your general or direct duties under this Coverage Part. employees are insureds only for acts within the scope of their employment by you or while 3. Any other person or entity that qualifies as an performing duties related to the conduct of additional insured by way of an endorsement to your business, and no employee is an insured this policy is an insured, but only to the extent for: and with the limitations set forth in said (1) Bodily injury, personal injury or endorsement. advertising injury: 4. No person or entity is an insured by virtue of the acquisition of all or any part of the assets of an (a) To you, to your partners or members insured. (if you are a partnership or joint venture), to your members (if you are 5. No person, corporation or organization, including a limited liability company), to your you, is an insured with respect to the conduct of executive officers, directors or any current or past corporation, organization, stockholders, leased employees, partnership, limited liability company, joint temporary employees, volunteer venture or trust that is not shown as a Named workers,special employees or to a co- Insured in the declarations. This applies employee while in the course of his or regardless of whether there is an increase in risk her employment or performing duties or hazard to us as a result of the conduct of any related to the conduct of your such current or past unnamed corporation, WA1-20(Ed 06/01/08) 12 C 2008 WESTCAP organization, partnership, limited liability claim or snit for bodily injury or property company,joint venture or trust. damage then,regardless of the number of claims SECTION III- LIMITS OF INSURANCE or claimants joined in the suit, and regardless of when the damage or injury occurred,the most we 1. The limits of insurance shown in the declarations will pay for all bodily injury or property damage and the rules below fix the most we will pay alleged in the claim or suit is the amount of the regardless of the number of: highest limit of any one of the policies issued by a. Insureds; us. b. Claims made or suits brought;or 4RCTTfN IV - COMMERCIAL GENERAL LIABILITY CONDITIONS c. Persons or organizations making claims or bringing snits We have no duty to provide coverage or defense under this insurance unless you and any other involved 2. The aggregate limit is the most we will pay for the insured have fully complied with each and every one sum of all: of the conditions contained in this policy. a. Damages under Coverage A; 1. BANKRUPTCY b. Damages under Coverage B;and Bankruptcy or insolvency of the insured or of the c. Medical expenses under Coverage C. insured's estate will not relieve us of our obligations under this policy. 3. Subject to paragraph 2. above, the personal injury and advertising injury limit is the most 2. CHANGES we will pay under Coverage B for the sum of all This policy contains all the agreements between damages because of all personal injury and all you and us concerning the insurance afforded. advertising injury sustained by any one person The first named insured shown in the or organization. declarations is authorized to make changes in the 4. Subject to paragraph 2. above, the each terms of this policy with our written consent.This occurrence limit is the most we will pay for the policy's terms can be amended or waived only by sum of all damages under Coverage A because of written endorsement issued by us and made a all bodily injury and property damage arising P of this policy. out of any one occurrence. 3. INSPECTIONS AND SURVEYS 5. Subject to paragraph 4. above, the damage to We have the right but are not obligated to: premises rented to you limit is the most we will pay under Coverage A for damages because of a. Make inspections and surveys at any time; property damage caused by fire to any one b. Give you reports on the conditions we find; premises while rented to you or temporarily and occupied by you with the permission of the c. Recommend changes. owner. 6. Subject to paragraph 4. above,the medical expense Any recommendations, inspections, surveys, or limit is the most we will pay under Coverage C for reports relate only to insurability and the all medical expenses because of bodily injury premiums to be charged. We do not make safety sustained by any one person. inspections. We do not undertake to perform the duty of any person or organization to provide for 7. For purposes of paragraph 4. above, all bodily the health or safety of workers or the public. We injury and property damage caused or alleged to do not warrant that conditions: have been caused by your work or your product a. Are safe or healthful;or that is incorporated into a project of construction, including a development of multiple distinct b. Comply with laws, regulations, codes or units, will be deemed to have been caused by a standards. single occurrence. 4. INSURED'S DUTIES IN THE EVENT OF AN 8. If a single occurrence as defined in the policy or OCCURRENCE,OFFENSE, CLAIM OR SUIT. as modified for purposes of the application of this a. Ton or any involved insured must see to it section in paragraph 7. above, causes bodily that we are notified as soon as possible of an injury or property damage in more than one occurrence or an offense which may result in policy period, we will only be liable for a pro-rata a claim or suit, whether or not covered by share of the highest per occurrence limit this policy, but notification to us must be purchased by an insured for any single policy year, even if purchased from another insurer. In made within thirty (30) days from your, or calculating our pro rata share, only one policy occ involved re ce insured T, first extent of an issued by us may be utilized. Should more than occurrence include: offense. To the extent possible, one policy of insurance issued by us apply to a notice should include: WA1-20(Ed 06/01/08) 13 C 2008 WESTCAP (1) How, when and where the occurrence or entered before notice to us giving us a offense took place; reasonable time in which to protect our (2) The names and addresses of any injured and the insured's interests. persons and witnesses;and Nothing in this paragraph d. will be (3) The nature and location of any injury or construed to expand upon coverage nor damage arising out of the occurrence or lengthen or expand the periods in which offense. claims or suits are to be reported as set forth in paragraphs a. through c. above. Notice of an occurrence or offense does not 5. LEGAL ACTION AGAINST US constitute notice of a claim or suit. b. If a claim is made or suit is brought against No person or organization has a right under this any insured, you must, as a condition to insurance: recovery under this policy: a. To join us as a party or otherwise bring us (1) Immediately record the specifics of the into a suit asking for damages from an claim or suit and the date received,and insured; or (2) Notify us as soon as practicable, but not b. To sue us on this insurance unless all of its more than fifteen (15) days following terms have been fully complied with. initial receipt of the claim or suit. Subject to paragraph 4. above, a person or (3) The requirement to notify us applies organization may sue us to recover on an without regard to whether an insured agreed settlement or on a final judgment believes, reasonably or otherwise, that against an insured obtained after an actual the claim or suit is not covered by this trial; but we will not be liable for damages policy. that are not payable under the terms of this policy or that are in excess of the applicable (4) The failure to provide the notice required e above within the time specified without means of insurance. agreed settlement legal cause or justification will be means a settlement and release of f liability presumed to materially prejudice us. signed by us,the insured and the claimant or the claimant's legal representative. c. You and any other involved insured must: 6. OTHER INSURANCE, DEDUCTIBLES AND SELF- (1) Immediately send us copies of any INSURED RETENTIONS demands, notices, summonses or legal If other insurance is available to indemnify an papers received in connection with the insured for a loss we cover under Coverage A or claim or suit; B of this policy, our indemnity obligations are (2) Authorize us to obtain records and other limited as follows: information; a. Excess Insurance (3) Cooperate with us in the investigation, This insurance is excess over any other settlement or defense of the claim or insurance, deductibles or self-insured suit;and amounts applicable to a loss,injury or damage (4) Assist us, upon our request, in the which indemnifies an insured for a claim or enforcement of any right against any suit whether the other insurance is stated to person or organization which may be be primary, pro rata, contributory, excess, liable to the insured because of injury or contingent, umbrella or on any other basis, damage to which this insurance may also and whether an insured is a named insured apply. or additional insured, unless the other d. Irrespective of reasons, excuse, justification, insurance is issued to the named insured and or prejudice to us: is specifically written to apply in excess of the limits of insurance of this policy. (1) We will not be liable for any cost, When this insurance is excess over other in- payment, expense (including legal surance, we will pay only our share of the expense) or obligation assumed or amount of the loss, if any, that exceeds the incurred by an insured or anyone acting sum of: for or on behalf of an insured, without our express consent, other than first aid; (1)The total amount that all such other and insurance would pay for the loss in the (2) We will have no liability for any default absence of this insurance; and judgment entered against any insured, (2)The total of all deductible and self-insured nor for any judgment, or settlement or amounts under all other insurance. determination of liability rendered or WA1-20(Ed 06/01/08) 14 ©2008 WESTCAP We will share the remaining loss, if any, with earned premium exceeds the MINIMUM AND any other insurance that is not described in DEPOSIT PREMIUM. In that case, the paragraph 6.a. and was not bought specifically amount by which the total earned premium to apply in excess of the limits of insurance exceeds the MINIMUM AND DEPOSIT shown in the declarations. PREMIUM will be due and payable on notice b. Primary Insurance to the first named insured. Where no other insurance is available to an c. We may examine and audit your books and insured, this insurance is primary. When records as they relate to this policy at any other insurance applicable to the loss, injury time during the policy period and up to three or damage on behalf of the insured also states (3) years afterward, including for the purpose that it is excess as set forth in paragraph 6.a. of calculating earned premium and verifying above, then we will share with all that other information submitted to us relating to this excess insurance by the method described in policy and the coverage provided hereunder. The paragraph 6.c. below, except that this first named insured must keep records insurance will always be excess over any other of the information we need for the premium insurance available to an insured who is not a computation, and send us copies at such named insured under this policy, and which times as we may request. is issued to such insured as a named d. If any named insured refuses to allow us insured. access to its records sufficiently to conduct c. Method of Sharing such audit, then we will, at our sole discretion, have the option to pursue either Where the loss, property damage or bodily one of the following: injury does not involve or arise from (1) To initiate all available legal and/or continuous or progressive bodily injury or property damage, or an exposure to equitable remedies available in a court of conditions in more than one policy year, the proper jurisdiction to enforce and following method of sharing will be followed, accomplish the subject audit;or subject to the per occurrence limits of (2) To invoice the first named insured for an coverage: additional premium equal to the greater (1) If all of the other contributing insurance of twenty-five percent (25%) of the permits contribution by equal shares, we original MINIMUM AND DEPOSIT will follow this method also, subject to the PREMIUM shown on the declarations policy limits, until the highest per page of this policy or five thousand occurrence limit of available insurance has dollars ($5,000)for each named Insured. been reached. e. Additional premiums invoiced under (2) If any of the other insurance does not paragraph 7.d.(2) above are due and payable permit contribution by equal shares we on such invoicing to the first named insured. will contribute by limits, up to the Interest allowed by the first named insured's applicable per occurrence policy limit as state laws, or if no such laws exist, then ten set forth in this policy. percent (10%) interest will begin to accrue thirty (30) days after such invoicing on all The above methods of sharing will also apply amounts due from the first named insured where no primary insurance, as set forth in under paragraph 7.d.(2) above. The first paragraph 6.b. above,is applicable to the loss. named insured further agrees to pay, upon In such instance, all applicable deductibles demand, all reasonable attorneys' fees, and/or self insured amounts must first be collection costs, and court costs incurred by exhausted before this insurance will apply. us to enforce our rights and remedies under 7. PREMIUM AUDIT either option (1) or (2) as set forth in paragraph 7.d. above. a. We will compute all premiums for this policy in accordance with our rules and rates. f. Any single waiver by us of auditing this b. If the premium for this policy is designated as policy, including but not limited to waiving a MINIMUM AND DEPOSIT PREMIUM, then the audit upon a return premium,will not act we will be entitled to retain that premium in as a continuing or permanent waiver,and we full, notwithstanding any subsequent audit will still have the right to audit at any time,at showing an earned premium to be less than our sole discretion, for a three (3) year period the amount designated as the MINIMUM AND following the expiration date of this policy. DEPOSIT PREMIUM. Notwithstanding the 8. PREMIUMS foregoing, a MINIMUM AND DEPOSIT The first named insured shown in the PREMIUM is subject to an upward adjustment if an audit shows that the total declarations: WA1-20(Ed 06/01/08) 15 C 2008 WESTCAP a. Is responsible for the payment of all anyone having proper temporary custody of your premiums; and property will have your rights and duties, but b. Will be the payee for any return premiums we only with respect to that property. pay. 13. REIMBURSEMENT OF DEFENSE COSTS 9. REPRESENTATIONS WHERE WE ELECT NOT TO DEFEND By accepting this policy,you agree: Where pursuant to an exclusion giving us the right, but not the obligation to defend a suit,we a. The statements you made, or any person or do not elect to defend such suit, at the organization made on your behalf, that conclusion or resolution of the suit we will appear in the declarations, application, reimburse the insured for the insured's audit(s), questionnaire(s) and inspection(s) reasonable attorneys' fees and litigation costs are accurate and complete in all respects; incurred in defending such suit which would b. We issued this policy in reliance upon your otherwise have been incurred by us, in representations; and accordance with the following: c. Any false, misleading, inaccurate or a. Upon a settlement or final judgment incomplete statements or omissions made comprised of liability covered by this policy intentionally by you, or any person or and liability excluded by an exclusion giving organization made on your behalf will render us the right but not the obligation to defend, this policy null and void as of the inception we will reimburse said fees and costs in the date of this policy. proportion to which damages not excluded therein bear to the entire amount of damages 10. SEPARATION OF INSUREDS paid by the insured or on behalf of the Except with respect to Section III - Limits Of insured. Insurance, and any rights or duties specifically b. Where no damages are awarded against the assigned to the first named insured, including insured in a final judgment and no any deductible(s) by endorsement to this policy, settlement is reached requiring payment by this insurance applies: the insured or on behalf of the insured, or (a) As if each insured were the only insured;and where no damages are paid for liability excluded by an exclusion giving us the right (b) Separately to each insured against whom but not the obligation to defend the insured, claim is made or suit is brought. we will agree to be bound with respect to 11. TRANSFER OF RIGHTS OF RECOVERY reimbursement of fees and costs incurred by AGAINST OTHERS TO US the insured by the decision of an impartial arbitrator who will review all invoices and If any insured has the right to recover all or part work performed by the insured's attorneys. of any payment we have made under this insurance, those rights are transferred to us. An c. As a condition precedent to the insured's insured must do nothing after loss to impair right to reimbursement, the insured and the these rights. At our request, an insured will insured's attorneys must keep us informed of bring suit and help us enforce these rights. Any the progress of the suit and provide us access recovery made by us will first be used to to all information necessary or appropriate to reimburse us for costs incurred by us in evaluate the claim, suit, or settlement and pursuing such recovery, then will be paid to the the reasonableness, amount and allocation of insured to the extent of any portion of the loss attorneys'fees and litigation expense. (other than deductibles or self insured d. In any proceeding to seek reimbursement of retentions) which was paid by any insured and costs and expenses incurred in defending the not recovered from any other source. The suit, the insured will bear the burden of remainder will be retained by us. proving the amount of damages allocable to 12. TRANSFER OF YOUR RIGHTS AND DUTIES claims or allegations excluded by an UNDER THIS POLICY exclusion giving us the right, but not the obligation to defend, the amount of damages Your rights and duties under this policy may not allocable for claims or allegations not be transferred without our written consent excluded by this exclusion, and the amount except in the case of death of an individual of reimbursement to which the insured is named insured. entitled. If you die, your rights and duties under this SECTION V-DEFINITIONS policy will be transferred to your legal representative, but only while acting within the 1. ADVERTISING INJURY scope of duties as your legal representative. Advertising injury means injury other than Until your legal representative is appointed, bodil y Waxy i arising out of one or more of the WA1-20(Ed 06/01/08) 16 ©2008 WESTCAP following offenses committed in the course of and c. All parts of the world if: through the means of your advertising activities: (1) The injury or damage arises out of: a. Oral or written publication of material that slanders or libels a person,or (a) Goods or products made and sold by you in the territory described in b. Oral or written publication of material that paragraph 6.a. above;or violates a person's right of privacy. (b) The activities of a person whose home 2. ADVERTISEMENT is in the territory described in Advertisement means a notice that is broadcast paragraph 6.a. above, but is away for or published to the general public or specific a period of less than thirty (30) days market segments about your goods, products or on your business;and services for the purpose of attracting customers (2) Your responsibility to pay damages is or supporters. For the purposes of this definition: determined in a suit on the merits, in the a. Notices that are published include material territory described in paragraph 6.a. placed on the Internet or on similar electronic above or in a settlement we agree to. means of communication; and 7. EXECUTIVE OFFICER b. Regarding web-sites, only that part of a web- Executive officer means a person holding any of site that is about your goods, products or the officer positions created by your charter, services for the purposes of attracting constitution, by-laws or any other similar customers or supporters is considered an governing document. advertisement. 8. FINANCIAL SERVICES 3. AUTO Financial services means services related to or Auto means a land motor vehicle, trailer or arising out of the following: semitrailer designed for travel on public roads, including any attached machinery or equipment. a. Planning,administering or advising on: Auto does not include mobile equipment. (1) Any investment, pension, annuity, savings, 4. BODILY INJURY checking or retirement plan, fund or Bodily injury means bodily injury, sickness or account; disease sustained by a person, including death (2) The issuance or withdrawal of any bond, resulting from any of these at any time. Bodily debenture,stock or other securities; injury does not include shock or emotional, (3) The trading of securities, futures, mental or psychological distress, injury, trauma commodities,or currencies; or anguish, or other similar condition, unless such condition results solely and directly from b. Acting as a dividend disbursing agent, prior physical injury, physical sickness or exchange agent, redemption or subscription physical disease otherwise covered under this agent,warrant or script agent,fiscal or paying policy. agent, tax withholding agent, escrow agent, 5. CLAIM clearing agent, or electronic funds transfer agent; Claim means a request or demand for money or services because of bodily c. Lending or arranging for the lending of y property including credit card, debit card, damage, personal injury or advertising injury, received by us or an insured, including the leasing or mortgage operations or activities, including securing financing, refinancing, or service of suit or institution of arbitration or interbank transfers; other proceedings against an insured. Claim does not include reports of accidents,acts, errors, c. Repossessing of real or personal property or occurrences, offenses or omissions which may acting as an assignee for the benefit of give rise to a claim under this policy. creditors; 6. COVERAGE TERRITORY e. Checking,evaluating or reporting of credit; Coverage territory means: f. Maintaining of financial accounts or records; a. The United States of America (including its g. Compliance with local, State or Federal tax territories and possessions), Puerto Rico and laws including but not limited to tax planning, Canada; tax advising or the preparation of tax returns; b. International waters or airspace,provided the h. Selling or issuing travelers checks, letters of injury or damage does not occur in the credit, certified checks, cashier checks, bank course of travel or transportation to or from checks, money orders or advances on payroll any place not included in a. above; or checks. WA1-20(Ed 06/01/08) 17 ©2008 WESTCAP 9. UNPAIRED PROPERTY permission of the owner. Impaired property means tangible property, other than your product or your work, that 12. LOADING OR UNLOADING cannot be used or is less useful because: a. It incorporates your product or your work Loading or unloading means the handling of that is known or thought to be defective, property: deficient,inadequate or dangerous;or a. After it is moved from the place where it is b. You have failed to fulfill the terms of a accepted for movement into or onto an contract or agreement; aircraft,watercraft or auto; If such property can be restored to use by: b. While it is in or on an aircraft, water craft or auto; or a. The repair, replacement, adjustment or c. While it is being moved from an aircraft, removal of your product or your work;or water craft or auto to the place where it is b. Your fulfilling the terms of the contract or finally delivered; agreement, even though such property may but loading or unloading does not include the be damaged in the course of the repair, movement of property by means of a mechanical replacement, adjustment or removal of your device, other than a hand truck, that is not product or your work. attached to the aircraft,watercraft or auto. 10. INSURED 13. MOBILE EQUIPMENT Insured means the named insured and any Mobile equipment means any of the following other person or organization qualifying as such under this policy, types of land vehicles, including any attached machinery or equipment: 11. INSURED CONTRACT a. Bulldozers, farm machinery, forklifts and Insured contract means that part of any written other vehicles designed for use principally off contract or written agreement pertaining to your public roads; business (including an indemnification of a b. Vehicles maintained for use solely on or next municipality in connection with work performed for a municipality) under which you assume the to premises you own or rent; tort liability of another party to pay for bodily c. Vehicles that travel on crawler treads; injury or property damage to a third person or d, Vehicles, whether self-propelled or not, organization, but only if such bodily injury or maintained primarily to provide mobility to property damage is not otherwise excluded by permanently mounted. this insurance. An insured contract does not include that part (1) Power cranes, shovels, loaders,diggers or of any contract or agreement: drills;or a. That indemnifies any person or organization (2) Road construction or resurfacing for bodil y c=y or property�Y dam a arising equipment such as graders, scrapers or rollers. out of construction or demolition operations, within fifty(50)feet of any railroad property; e. Vehicles not described in paragraphs a. b. That indemnifies an architect, engineer or through d. above that are not self-propelled surveyor for injury or damage arising out of: and are permanently primarily equipment provide mobility to permanently attached equipment (1) Preparing, approving or failing to prepare of the following types: or approve maps, drawings, opinions, (1) Air compressors, pumps and generators, reports, surveys, field orders, change including spraying, welding, building, orders, or drawings, designs or cleaning, geophysical exploration, lighting specifications;or and well servicing equipment;or (2) Giving directions or instructions, or failing to give them; (2) Cherry pickers and similar devices used to raise or lower workers. c. Under which you, if an architect, engineer or 1. Vehicles not described in paragraphs a. surveyor, assume liability for an injury or through d. above maintained primarily for damage arising out of your rendering or purposes other than the transportation of failure to render professional services; persons or cargo. d. That indemnifies any person or organization However, self-propelled vehicles with the for damage by fire to premises while rented to following types of permanently attached you or temporarily occupied by you with equipment are not mobile equipment but WA1-20(Ed 06/01/08) 18 ©2008 WESTCAP will be considered autos: substances are naturally occurring or otherwise. (1) Equipment designed primarily for: Waste includes but is not limited to any material (a) Snow removal; or substances to be recycled, reconditioned or reclaimed, and any substance or material (b) Road maintenance,but not produced as a by-product or side effect of any construction or resurfacing;or process. (c) Street Cleaning; Pollution as used herein means any form of (2) Cherry pickers and similar devices pollutant which forms the basis for liability, mounted on automobile or truck chassis whether the pollution is said to cause physical and used to raise or lower workers and injury or not, which by volume or timing or any other factor is said to give rise to liability. (3) Air compressors, pumps and generators, 19. PRODUCTS-COMPLETED OPERATIONS including spraying, welding, building, cleaning, geophysical exploration, lighting HAZARD and well servicing equipment. Products-completed operations hazard: a. Includes all bodily injury and property 14. NAMED INSURED damage occurring away from premises you Named insured means the person or own or rent and arising out of your product organization named in item 1 of the declarations or your work except: of this policy. (1) Products that are still in your physical 15. OCCURRENCE possession; or Occurrence means an accident, including a (2) Work that has not yet been completed or continuous or repeated exposure to substantially abandoned. the same generally harmful condition. b. Your work will be deemed completed at the 16. PERSONAL INJURY earliest of the following times: Personal injury means injury, other than bodily (1) When all of the work called for in your injury, arising out of one or more of the contract has been completed. following offenses: (2) When all of the work to be done at the job site has been completed if your contract a. False arrest,detention or imprisonment; calls for work at more than one job site. b. Malicious prosecution; (3) When that part of the work done at a job c. Actual and complete physical eviction of a site has been put to its intended use by person from a dwelling; any person or organization. d. Oral or written publication of material that (4) When you have stopped performing your slanders or libels a person or organization;or work for any reason at, or been e. Oral or written publication of material that terminated from, the project or job site. violates a person's right of privacy. Work that may need service, maintenance, 17. POLICY PERIOD correction, repair or replacement, but which is otherwise complete, will be treated as Policy period means the term of this policy from completed even though a contract requires its inception date to the earlier of its expiration such service, maintenance, correction, repair date, shown in the declarations, or the date of or replacement. any cancellation. c. This hazard does not include bodily injury or 18. POLLUTANT property damage arising out of: Pollutant means any solid, liquid, gaseous or (1) The transportation of property,unless the thermal irritants or contaminants, including but injury or damage arises out of a condition not limited to smoke, vapor, soot, fumes, acids, in or on a vehicle not owned or operated alkalis, chemicals, waste, biological elements by you and that condition was created by and agents, and intangibles such as noise, light the loading or unloading of that vehicle and visual esthetics, the presence of any or all of by any insured;or which adversely affects human health or welfare, unfavorably alters ecological balances or (2) The existence of tools, uninstalled degrades vitality des the vitali of the environment for equipment or abandoned or unused materials. esthetic,cultural or historical purposes,whether such substances would be or are deemed or 20. PROPERTY DAMAGE thought to be toxic, and whether such WA1-20(Ed 06/01/08) 19 ©2008 WESTCAP Property damage means physical injury to operations. tangible property, including all resulting loss of use of that property. All such loss of use will be b. Includes: deemed to occur at the time of the physical (1) Warranties or representations made at injury that caused it. Loss of use of tangible any time with respect to the fitness, property unaccompanied by physical injury to quality, durability, performance or use that property is not property damage. of your work;and 21. SUIT (2) The providing of or failure to provide Suit means a civil proceeding in which damage warnings or instructions. because of bodily injury, property damage, personal injury or advertising injury to which this insurance applies is alleged. Suit includes: a. An arbitration proceeding in which such damages are claimed and to which an insured must submit or does submit with our consent;or b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which an insured submits with our consent. 22. TORT Tort means liability or damages that would be imposed by law in the absence of any contract or agreement. 23. YOUR PRODUCT Your product means: a. Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (1) You; (2) Others trading under your name;or (3) A person or organization whose business or assets you have acquired;and b. Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. Your product includes: a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of your product;and b. The providing of or failure to provide warnings or instructions. Your product does not include vending machines or other property rented to or located for the use of others but not sold. 24. YOUR WORK a. Means: (1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or WA1-20(Ed 06/01/08) 20 ©2008 WESTCAP Business Licensing Service:License Query Search Page 1 of 1 • t:n t rls • • I';f�sl5 a fi1ut'us • ;-,,t;-.:11-your 1111005:. • Cig. or i}.:,.;3tr vow-Li, r ss w!.: ma; to rt renew your+ er s;, Search Business Licenses License Information: Entity Name: CHARLES DANIEL OROZCO Business Name: HIS HANDS LAWN CARE SERVICE License Type: Washington State Business ntaty,_T.ype; Sole Proprietor UBI: 601659019 Business ID:001 Location ID:0001 Status: To check the status of this business,go to Deuartrnent of Revenue. Location Address: Mailing Address: 4851 NW GUSTAFSON RD 4851 NW GUSTAFSON RD SII..VERDALE,WA,98383 SII..VERDALE,WA,98383 Status Expires First Issued Registered Trade Names: HIS HANDS[_AWN CARE:SE:RVI(I Active N/A 09/2:V1995 V.QVernin.g.._ egp.ie.. CHARLES DANIEL OROZCO Information Current as of 04,/14/2015 6:42AM Pacific Time New Search This site is limited to searching for business licenses issued through the Washington State Business Licensing Service. • Contact us • orms • About us • !'r vac. ©2011 Washington State Department of Revenue and its licensors.All rights reserved. http://bls.dor.wa.gov/LicenseSearch/lgsLicenseDetail.aspx?Ref D=1564172 4/14/2015