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HomeMy WebLinkAboutClearwater Construction & Management - Columbia East FM - CP9-SR-2A-17-01 10.15.2018CITY OF PASCO INFORMATIONAL COVER SHEET FOR DOCUMENTS REQUIRING CITY MANAGER SIGNATURE (Print on Blue Paper when completed.) Project 'Name: 17003 Columbia East Pump Station and Force Main Date: 8/23/2018 Contract Number: CP9-SR-2A-17-01 G/L Account #: 460,90.666-56.6562 Amount seeking approval for: $ 2,669,751.81 DIVISION: ❑ Administration ® Engineering ❑ Operations ❑ Sewer ❑ Water ❑ Irrigation ❑ Treatment Plants ❑ Reuse ❑ Other AGREEMENT TOPIC & BACKGROUND: The Columbia East Pump Station project involves the construction of a regional industrial pump station located east of downtown Pasco, at the intersection of the Pasco-Kahlotus Highway and Commercial Avenue. This contract represents the first stage of a two-stage project and will have 180 working days for completion. Council Approval — September 17, 2018 *Budget amendment planned prior to the end of 2018 CONTRACT SELECTION PROCESS: ❑ Consultant Roster ❑ RFQ ® Formal Bid ❑ Small Works Roster ❑ Negotiated ❑ N/A or Other BUDGET/FINANCIAL IMPACTS: �,,,l,,a,1 1';7v ,4-�xp'+ US EDA 2016 Grant $65,000 Preliminary Engineering (PE) $ 639,843 WA Dept Commerce - D. Approp. $2,575,000 0.09 Franklin Co. ED (2017 &2018) $1,000,000 Right -of -Way (RW) $675,328 City of Pasco - Debt Service $5,932,671 US EDA 2018 *planned $3,000,000 Construction CN 1,257,500 Total Funds Available $12,572,671 Total Est. Expenditures $ 12,572,671 CONTRACT EXPIRATION DATE: 180 working days ❑ Council action needed for future renewal r 0 11 &UP, oject anager Date ® Federal debarment/suspension re4iremerats met ❑ N/A N/A Legal Date ❑ Contract language ❑ Insurance coverage reviewed ® Performance & payment bond approval ATTACHMENTS: Contract with Clearwater Construction — 3 originals INSURANCE EXPIRATION DATE: 5/1/2019 i City Engineer Date t0 1 Zv w Fir6rici Dire or Date ❑ Funding source approval DOCUMENT DISTRIBUTION AFTER SIGNED: • Original to City Clerk with copy of blue sheet • Original or Copy to vendor (their choice) • Copy to Public Works Department • Copy to Finance Department 0 CITY Or PASCO CONTRACT 17003 COLUMBIA EAST PUMP STATION Project No. CP9-SR-2A-17-01 STATE OF WASHINGTON COUNTY OF FRANKLIN This agreement and contract iiC�ttl?�Ir-�r-sgl,�a+r`- 2018, by hereinafter called the City and hereinafter called the Contractor. WITNESSETH: )Ss made and entered into in triplicate this day of and between e City of Pasco a municipal corporation, n-A-ru te r-, �6- O n,Wnw,,a )„ t- ; .I c , That whereas, the City has caused to be prepared certain plans and specifications for improvements in and for the City of Pasco and the Contractor did on the day of t�t✓ ems; 2018, file with the Office of the City Clerk of the City of Pasco, Washington, a Proposal to furnish all equipment, labor, materials and appurtenances and to pay for the same, and agreed to accept for and in full consideration of the sums fully stated and set forth in said Proposal as full compensation for the completed work. WHEREAS, the said plans, specifications and proposal fully and accurately described the terms and conditions upon which the contractor proposes to furnish said equipment, labor, tools, materials and appurtenances and perform work, together with the manner and time of furnishing the same. It is therefore agreed, first that a co y of said specifications, plans and proposal, filed as aforesaid on the �] "O- day of ,l , 2018, be attached hereto and the same are hereby made the items and conditions of this agreement by and between the City and Contractor in all matters and things therein set forth and described; and further that the City and the Contractor accept and agree to the terms and conditions of said plans, specifications and proposal as filed as completely as if said terms and conditions and plans are herein set out in full. In witness whereof the parties hereto have caused this agreement to be executed the day and year herein above written this day of /S'/ , 2018. CITY OF PASCO BY: -6cxo� Dav Za ATTEST: Daniela E Approved as to form: City Attorney Co tractor Signature By: Printed Na AUGUST 2018 Co- 1 17003 COLUMBIA EAST PUMP STATION PROJECT No. CP9-SR-2A-17-01 CITY OF PASCO Bond No. 106981467 PERFORMANCE BOND BOND TO THE CITY OF PASCO KNOW ALL MEN BY THESE PRESENTS: That we, the undersigned, Clearwater Construction & Management, LLC as principal, and Travelers Casualty and Surety Company of America a corporation organized and existing under the laws of the State of Washington, as a surety corporation, and qualified under the laws of the State of Washington to become surety upon bonds of contractors with Municipal Corporations, as surety, are jointly and severally held and firmly bound to the City of Pasco in the penal sum of ---Two Minion Six Hundred Sixty-nine Thousand_ for the payment of which sum on demand we bind ourselves and our successors, heirs, administrators, or personal representatives, as the case maybe. *Seven Hundred Fifty-one and 81/100--- ($2,669,751.81) This obligation is entered into a pursuance of the statutes of the State of Washington, and ordinances of the City of Pasco. Dated at Spokane , Washington, this 21 st day of September , 2018. Nevertheless, the conditions of the above obligation are such that: WHEREAS, pursuant to action taken by the City Council of the City on September 17 _ 2018, the Mayor and City Clerk of the City of Pasco have let or are about to let to the said Clearwater Construction & Management, LLC , the above bounden principal, a certain contract, the same contract being numbered CP9-SR-2A-17-01 and providing for 17003 COLUMBIA EAST PUMP STATION (which contract is referred to herein and is made a part hereof as though attached hereto). WHEREAS, the said principal has accepted, or is about to accept the said contract, and undertake to perform the work wherein provided for in the manner and within the time set forth. NOW, THEREFORE, if the said Clearwater Construction & Management, LLC shall faithfully perform all of the provisions of said contract in the manner and within the time therein set forth, or within such extensions of the time as may be granted under the contract, and shall pay all laborers, mechanics, subcontractors, and material men, and all persons who shall supply said principal or subcontractors with provisions and supplies for the carrying on of said work, and shall indemnify and hold said City of Pasco harmless from any loss or damage occasioned to any person or property by reason of any carelessness or negligence on the part of said principal, or any subcontractor in the performance of said work, and shall indemnify and hold the City of Pasco harmless from any damage or expense by reason or failure of performance as specified in said contract or from defects appearing or developing in the material or workmanship provided or performed under said contract after its acceptance thereof by the City of Pasco, thea a- no irl that event this obligations shall be void; but otherwise it shall be and remain in full force and effect. Approved as to Form: Trave - 9nsualt* and r Company of America n Surety Chris La n, ttorney-in-Fact Cleate Constr t & Management, LLC Contractor AUGUST 2013 PB-- 1 17003 COLUMBIA EAST PUMP STATION PROJECT No. CP9-SR-2A-17-01 Travelers Casualty and Surety Company of America Adw Travelers Casualty and Surety Company TRAVELERS J St. Paul Fire and Marine Insurance Company POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That Travelers Casualty and Surety Company of America, Travelers Casualty and Surety Company, and St. Paul Fire and Marine Insurance Company are corporations duly organized under the laws of the State of Connecticut (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Chris Larson, of Spokane, Washington, their true and lawful Attorney -in -Fact to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed, and their corporate seals to be hereto affixed, this 3rd day of February, 2017. r r A*a two p �y 6 � COWLt t { 'r O cow State of Connecticut r� f By: _J City of Hartford ss. Robert L. Raney, Se or Vice President On this the 3rd day of February, 2017, before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of Travelers Casualty and Surety Company of America, Travelers Casualty and Surety Company, and St. Paul Fire and Marine Insurance Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. In Witness Whereof, I hereunto set my hand and official seal. a My Commission expires the 30th day of June, 2021 0* *�y i Mane C. Tetreault, Notary Public This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Travelers Casualty and Surety Company of America, Travelers Casualty and Surety Company, and St. Paul Fire and Marine Insurance Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary of Travelers Casualty and Surety Company of America, Travelers Casualty and Surety Company, and St. Paul Fire and Marine Insurance Company, do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which remains in full force and effect. Dated this 21st day of September , 2018 �yi,1:M(rj, O*�ZY ANps 4 COpM. $ °' COWL 1pFA � �Zf Ftp Kevin E. Hughes, Assi. tant Secretary To verify the authenticity of this Power ofAttorney, please call us at 1-800-421-3880. Please refer to the above-named Attorney -in -Fact and the details of the bond to which the power is ahtached. WILLBRO-02 BSOU ACORO` CERTIFICATE OF LIABILITY INSURANCE DATE 09/25/2018Y) ��- 09/2512018 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(les) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER AME, Spokane Office PHONE Paynewest Insurance, Inc. ,vc, NNE. Ext : (509 838-3501 FAX No):(509) 838-3511 501 N. Riverp,int Blvd., Ste 403 E-MAIL Spokane, WA 99202 INSURER(S) AFFORDING COVERAGE NAIC INSURED I INSURER B: The Clearwater Construction & Management LLC 5711 W. Garden Springs Road Spokane, WA 99224 INSURER F: •�n�n. RPVI_CInN NIIMRFR' COVERAGES %'r_M I irn.r+r r_ nUIno�n. -- — — 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 TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF pfDDIYYM •85,101/2018 POLICY EXP 05F01/3019 LIMITS A X COMMERCIAL GENERAL LIABILITY GtA1MS-MADE � OCCUR X X ACEP308380 EACH OCCURRENCE $ 1'000'000 DAMM 3ET0 RENCED n� $ 300,000 25, MED EXP (Any oneperson) $ ,000 PERSONAL & ADV INJURY $ 1'00000'000 � GEN'L AGGREGATE LIMIT APPLIES PER: X POLICY PRO ❑ LOC JECT GENERAL AGGREGATE 2,000,000 PRODUCTS - COMP/OP AGG $ 2'000'000 STOP GAP WA 1,000,000 B OTHER: AUTOMOBILE LIABILITY I Ea aci den SINGLE LIMIT $ 1,000,000 BODILY INJURY Perperson) $ X ANY AUTO X X lEBA0248370 05/01/2018 05/01/2019 BODILY INJURY Per accident $ OWNED SCHEDULED AUTOS ONLY AUTOS HIRED NON -OWNED AUTOS ONLY AUTOS ONLY PROPERTY AMAGE Per accident $ C X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE EXC308331 05/01/2018 05101/2019 EACH OCCURRENCE $ 9'000'000 AGGREGATE DED I X I RETENTION $ 0 COMPENSATION AND AND EMPLOYERS' LIABILITY Y I N ANY PROPRIETOR/PARTNER/EXECUTIVE PER 0A 'TTE EAT E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYE Mandatory in E 'EXCLUDED? a NIA, DISEASE -POLICY LIMIT 1,000,000 A If yes, describe under DESCRIPTION OF OPERATIONS belowE.L. Pollution PACEP308380 05/01/2018 05101/2019 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: 17003 Columbia East Pump Station / Project No. CP -9 -SR -2A-17-01 City of Pasco, The Contracting Agency and its officers, elected officials, employees, agents and volunteers are additional insured as per the attached forms. Coverage is primary and non-contributory. Waiver of subrogation and per project aggregate applies per attached forms. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Pasco ACCORDANCE WITH THE POLICY PROVISIONS - Public Works/Engineering Division PO Box 293 Pasco, WA 99301 AUTHORIZED REPRESENTATIVE )S ACORD 25 (2016/03) nn 4jwlma The ACORD name and logo are registered marks of ACORD (2) Property damage or environmental: damage to property: (a) Owned, occupied or used by; or (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your employees, volunteer workers, any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Any person (other than your employee or volunteer worker), or any organization while acting as your real estate manager. C. Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this Policy. 3. Any subsidiary, associated, affiliated or allied company or corporation, including subsidiaries thereof, of which you have more than 50% ownership interest as of the inception date is a Named Insured; however, such entities shall cease to be a Named Insured if you cease to maintain more than a 50% ownership interest. 4. Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain ownership or majority interest, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; b. Coverage under this Policy does not apply to any bodily injury, property damage, environmental damage or pollution condition that took place, or an offense or wrongful act committed, before you acquired or formed the organization. 5. Any person or organization wi-r, whoa you agree to include as ars insured pursuant to a written} contract.. written agrecme^•t or permit is an insured, but: (i) only with respect to bodily injury, property damage. personal and advertising injury, environmental damage or clean-up costs caused �n whole car in part, by your acts or omissions or the acts or ornissions of triose acting on your behalf and arising out of your operations, your work, equ`pn-grit or premises leased. rented or owned by yo:.:. or your products which are distrl'buted or suld in the regular course of a uelidor's business-. (is) oniy for the lesser of the applicable limits of liability set forth in section XXI. LIMITS OF LIABILITY AND DEDUCTIBLE or the minimum limits of liability required by such writ'en con'Tract; (iii) the insurance afforded only applies to the extent permitted by law; (iv) the insurance afforded will not be broader than that which you are required by the contract or agree went to -ovirc for such insured. However• EPACE001-0415 Page 135 7. Solely with respect to Coverage 1F (Employee Benefits Administration Liability), each of the following is an insured: a. Each of your employees who is or was authorized to administer your employee benefits program. b. Any persons, organizations or employees having proper temporary authorization to administer your employee benefits program if you die, but only until your legal representative is appointed. 8. Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this Policy. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. Applicable to Coverage 3 — Professional' t_iabtity The following person(s) or entity(ies) are an insured under Coverage 3 - Professional Liability: 1. the first named insured and other named insured(s) expressly added to Item 1 of the Declarations; 2. any of your current or former directors, officers, partners, members, employees, or shareholders, as applicable, while acting within the scope of his or her duties as such, but only while rendering professional services on behalf of a named insured; and 3. the estate, heirs, executors, administrators and legal representatives of each named insured in the event of death, incapacity or bankruptcy of such insured, but only with respect to liability arising out of professional services rendered by a named insured prior to such death, incapacity or bankruptcy, and only to the extent that coverage would have been provided under Coverage 3 - Professional Liability. XXI. LIMITS OF LIABILITY AND DEDUCTIBLE Regardless of the number of claims, suits, claimants or insureds, the following limits of liability apply: 1. Limits applicable to Part 1 Coverages a. General Aggregate Limit and General Aggregate Cap (1) The General Aggregate Limit set forth in Item 3 of the Declarations is the most we will pay for all loss under all Part 1 Coverages except: (i) damages because of bodily injury, property damage or environmental damage included in the products -completed operations hazard, and (ii) crisis management costs that result from a crisis management event arising directly from your product. (2) Subject to subparagraph (3) below, the General Aggregate ate Li"t app es separa>lety to: EPACE001-0415 Page 137 (a) toss covered under Coverages 1A and 1 E arising from occurrences at any one location that you own or rent; and (b) loss covered under Coverages 1 A and 1 E arising from your on- going operations at any one job site. (3) Regardless of the number of locations or job sites, the General Aggregate Cap set forth in Item 3 of the Declarations is the most we will pay for all loss under all Part 1 Coverages except: (i) damages because of bodily injury, property damage or environmental damage included in the products -completed operations. hazard, and (ii) crisis management costs that result from a crisis management event arising directly from your product. b. Products—Completed Operations Aggregate Limit The Products -Completed Operations Aggregate Limit set forth in Item 3 of the Declarations is the most we will pay for all: (i) damages under Coverages 1 A and 1 D because of bodily injury, property damage or environmental damage included in the products -completed operations hazard, and (ii) crisis management costs that result from a crisis management event arising directly from your product. C. Each Occurrence Limit Subject to Paragraph 1.a. or 1.b. above, whichever applies, the Each Occurrence Limit set forth in Item 3 of the Declarations is the most we will pay for all loss under Coverages 1 A, i C. 1 D and 1 E arising out of the same, related, continuous or repeated occurrence(s) or pollution condition(s). d. Personal and Advertising Injury Limit Subject to Paragraph 1.a. above, the Personal and Advertising Injury Limit set forth in Item 3 of the Declarations is the most we will pay for all loss under Coverage 1 B sustained by any one .person or organization. e. Employee Benefits Administration Limit Subject to Paragraph 1.a. above, the Employee Benefits Administration Limit of Liability set forth in Item 3 of the Declarations is the most we will pay under Coverage 1 F for all loss sustained by any one employee, including loss sustained by such employee's dependents and beneficiaries, arising out of the same, related, continuous or repeated wrongful act(s). However, the amount paid under this Policy shall not exceed, and will be subject to, the limits and restrictions that apply to the payment of benefits in any plan included in the employee benefits program. f. Crisis Management Costs Limit — Coverage 1 G Subject to Paragraph 1.a. or 1.b. above, whichever applies, the Crisis Management Costs Limit set forth in Item 3 of the Declarations is the most we will pay for all crisis management costs under Coverage 1 G. g. Damage to Premises Rented to You Limit Subject to Paragraph 1.c. above, the Damage to Premises Rented to You Limit set forth in Item 3 of the Declarations is the most we will pay under Coverage 1A for all toss because of property damage to any one premises, while rented to EPACE001-0415 Page 138 where the claim arose or is being defended. in addition, we may exercise our right to require that such counsel: a. meet certain minimum qualifications with respect to competency, including possessing a minimum of five (5) years experience in defending claims similar to those asserted against the insured; b. maintain suitable errors and omissions insurance coverage; and C. agree, in writing, to respond in a timely manner to our requests for information regarding the claim. An insured may, at any time, waive any right it may have to select independent counsel. 13. Inspection and Audit With reasonable notice to you, we shall be permitted, but not obligated, to inspect, sample and monitor on a continuing basis your property, equipment and/or operations. Neither our right to make inspections, sample and monitor, nor the actual undertaking thereof, nor any report thereon shall constitute an undertaking, on behalf of or for the benefit of you or others, to determine or warrant that such property or operations are safe, healthful or conform to acceptable engineering practice or are in compliance with environmental laws, or any other law, rule or regulation. Further, the first named insured agrees on behalf of all insureds, to grant us both the right to interview, and access to, any insured whom we reasonably believe may have relevant information pertaining to any claim or pollution condition potentially covered under this Policy. 14. Other lnsurance If other valid and collectible insurance is available for any loss subject to coverage under this Policy, our obligations are limited as follows: a. Primary Insurance Except as provided in paragraph b. below, this insurance is primary. When this insurance is primary, our obligations are'not affected unless any of the other insurance is also primary, in which case we will share with all other primary insurance by the method described in paragraph c. below. However, in the event that a written contract, written agreement or permit requires this insurance to be primary for any person or organization that you agreed to insure, and provided such person or organization is an insured under this Policy, this insurance will be primary and we will not seek contribution from any other insurance issued to such person or organization. b. Excess Insurance This insurance is excess over: (1) Any other insurance, whether primary, excess, contingent or on any other basis that is: (i) Fire, Extended Coverage, Builder's Risk, installation Risk or similar coverage for your work; (ii) Fire insurance for premises rented to you or temporarily occupied by you with permission of the owner; (iii) insurance purchased by you to cover your liability as a tenant for property damage to premises rented to you or temporarily occupied by you with permission of the owner; or (iv) insurance applicable to loss arising out of the maintenance or use of aircraft, autos or watercraft; EPACE001-0415 Page 145 Misrepresentation or concealment by one insured shall not prejudice the interest or coverage for another insured under this Policy, except where such latter insured is a parent, subsidiary, or affiliate of the insured that committed such misrepresentation or concealment. For the purposes of this condition, an "affiliate" means an entity that directly or indirectly is controlled by, or is under common control with, the insured that committed such misrepresentation or concealment. Notwithstanding the forgoing, nothing stated herein shall preclude us from seeking and obtaining rescission of this Policy in the event of a material misrepresentation in the application for insurance. In addition, nothing stated herein shall operate to increase the limit(s) of liability provided hereunder. 16. Sole Agent The first named insured shalt act on behalf of all insureds for the payment of the Deductible, payment or return of premium, receipt and acceptance of any endorsement issued to form a part of this Policy, giving and receiving notice of cancellation, and the exercise of the rights provided in section XXIV. EXTENDED REPORTING PERIODS. 17. Subrogation in the event of any payments made pursuant to this Policy, we shall be subrogated to any insured's rights of recovery against any person, entity or organization. The insured shall execute and deliver instruments and papers and do whatever is necessary to secure and perfect such rights. No insured shall do anything to prejudice such rights. Any recovery obtained as a result of subrogation, after such expenses incurred in the subrogation proceedings are deducted by us, shall accrue first to the insured to the extent of any payments in excess of the Limit of Liability, then us to the extent of any payments made under this Policy; and then to the insured to the extent of its Deductible. However. solely with respect to Coverage Part 1 or Coverage Part 2, if the insured has waived rights of recovery against any person, entity or organization prior to a loss or claim, we waive any right to recovery we may have under the policy atga"nst such person, entity or organization. 18. Voluntary Payments The insured shall not settle any claim or suit or, with the exception of emergency expenses, make any voluntary payments without our prior written consent. If we recommend a settlement, the insured shall have the opportunity to consent to it, such consent not to be unreasonably withheld or delayed. If we recommend a settlement that is acceptable to a claimant for a total amount in excess of the applicable Deductible and within the applicable Limits of Liability and the insured refuses to consent to such settlement, then our liability for loss shall be limited to that portion of the recommended settlement, and the legal defense costs incurred as of the date of the insured's refusal, which exceeds the Deductible and falls within the applicable Limit of Liability. XXIV. EXTENDED REPORTING PERIODS This section XXIV. applies to Coverages 2C, 2D and 3 only. We will provide one or more Extended Reporting Periods, as described below, if this Policy is terminated for any of the following reasons: a. Cancellation by us for any reason other than failure to pay a premium when due or fraud or material misrepresentation; EPACE001-0415 Page 147 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CinciPlus® BUSINESS AUTO XC+® (EXPANDED COVERAGE PLUS) ENDORSEMENT This endorsement modifies insurance provided by the following: BUSINESS AUTO COVERAGE FORM With respect to the coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. A. Blanket Waiver of Subrogation SECTION IV - BUSINESS AUTO CONDI- TiONS, A. Loss Conditions, S. Transfer of Rights of Recovery Against Others to Us is amended by the addition of the following: We waive any right of recovery we may have against any person or organization because of payments we make for "bodily injury" or "property damage" arising out of the operation of a covered "auto" when you have assumed liability for such "bodily injury" or "property damage" under an "insured contract", provid- ed the "bodily injury" or "property damage" oc- curs subsequent to the execution or the "in- sured contract". B. Noncontributory Insurance SECTION iV - BUSINESS AUTO CONDI- TIONS, B. General Conditions, S. Other In- surance c. is replaced by the following: c. Regardless of the provisions of Par- agraph a. above, this Coverage Form's Liability Coverage is primary and we will not seek contribution from any other insurance for any lia- bility assumed under an "insured contract" that requires liability to be assumed on a primary noncontributo- ry basis. C. Additional insured by Contract SECTION II - LIABiLITi( COVERAGE, A. Coverage, 1. Who is an Insured is amended to include as an insured any person or organi- zation with which you have agreed in .a valid written contract to provide insurance as is af- forded by this policy. This provision is limited to the scope of the valid written contract. This provision does not apply unless the valid written contract has been: 1. Executed prior to the accident causing "bodily injury" or "property damage"; and 2. Is still in force at the time of the "accident" causing "bodily injury" or "property dam- age". D. Employee Hired Auto 1. Changes in Liability Coverage The following is added to the Section II - Liability Coverage, A. Coverage, 1. Who is an Insured: An "employee" of yours is an "insured" while operating an "auto" hired or rented under a contract or agreement in that "employee's" name, with your permission, while performing duties related to the conduct of your business. 2. Changes in Generai Conditions SECTION IV - BUSINESS AUTO CON- DITIONS, B. General Conditions, 5. Other Insurance is amended by replac- ing Paragraph 5.b. with the following: b. For Hired Auto Physical Damage Coverage the following are deemed to be covered "autos" you own: (1) Any covered "auto" you lease. hire, rent or borrow; and (2) Any covered "auto" hired or rented byyour "employee" under a contract in that individual "em- ployee's" name, with your per- mission, while performing duties related to the conduct of your business. Includes copyrighted material of ISO AA 288 01 16 Properties, inc., with its permission. Page 1 of 4 However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto". E. Audio, Visual and Data Electronic Equip- ment SECTION IiI - PHYSICAL DAMAGE COV- ERAGE, C. Limit of Insurance is amended by adding the following: 4. The most we will pay for all "loss" to au- dio, visual or data electronic equipment and any accessories used with this equipment as a result of any one "acci- dent" is the lesser of. a. The actual cash value of the dam- aged or stolen property as of the time of the "accident"; b. The cost of repairing or replacing the damaged or stolen property with oth- er property of like kind and quality; or c. $2,500. Provided the equipment, at the time of the "loss" is: a. Permanently installed in or upon the covered "auto" in a housing, opening or other location that is not normally used by the "auto" manufacturer for the installation of such equipment; b. Removable from a permanently in- stalled housing unit as described in Paragraph 2.a. above; or c. An integral part of such equipment. F. Who is an Insured - Amended SECTION 11 - LIABILITY COVERAGE, A. Coverage, 1. Who is an insured is amended by adding the following: The following are "insureds": 1. Any subsidiary which is a legally incorpo- rated entity of which you own a f"inanciai interest of more than 50% of the voting stock on the effective date of this cover- age form. However, the insurance afforded by this provision does not apply to any subsidiary that is an "insured" under any other au- tomobile liability policy, or would be an "Insured" under such policy but for termi- nation of such policy or the exhaustion of such policy's limits of insurance. 2. Any organization that is newly acquired or formed by you and over which you main- tain majority ownership. The insurance provided by this provision: a. Is effective on the date of acquisition or formation, and is afforded for 180 days after such date; b. Does not apply to "bodily injury" or "property damage" resulting from an "accident" that occurred before you acquired or formed the organization; c. Does not apply to any newly acquired or formed organization that is a joint venture or partnership; and d. Does not apply to an insured under any other automobile liability policy, or would be an insured under such a policy but for the termination of such policy or the exhaustion of such poli- cy's limits of insurance. 3. Any of your "employees" while using a covered "auto" in your business or your personal affairs, provided you do not own, hire or borrow that "auto". G. Liability Coverage Extensions - Supple- mentary Payments - Higher Limits SECTION 11 - LIABILITY COVERAGE, A. Coverage, 2. Coverage Extensions, a. Sup- plementary Payments is amended by: 1. Replacing the $2,000 Limit of Insurance for bail bonds with $4.000 in (2); and 2. Replacing the $250 Limit of Insurance for reasonable expenses with $500 in (4). H. Amended Fellow Employee Exclusion SECTION 11 - LIABILITY COVERAGE, B. Ex- clusions, S. Fellow Employee is modified as follows: Exclusion S. Fellow Employee is deleted. 1. Hired Auto - Physical Damage If hired "autos" are covered "autos" for Liability Coverage, then Comprehensive and Collision Physical Damage Coverages as provided un- der SECTION 111 - PHYSICAL DAMAGE COVERAGE of this Coverage Part are ex- tended to "autos" you hire, subject to the fol- lowing: 1. The most we will pay for "loss" to any hired "auto" is $50,000 or the actual cash value or cost to repair or replace, which- ever is the least, minus a deductible. 2. The deductible will be equal to the largest deductible applicable to any owned "auto" for that coverage, or $1,000, whichever is less. 3. Hired Auto - Physical Damage coverage is excess over any other collectible insur- ance. Includes copyrighted material of ISO AA 288 01 16 Properties, Inc., with its permission. Page 2 of 4 4. Subject to the above limit, deductible, and excess provisions we will provide cover- age equal to the broadest coverage appli- cable to any covered "auto" you own in- sured under this policy. Coverage includes loss of use of that hired au- to, provided it results from an "accident" for which you are legally liable and as a result of which a monetary loss is sustained by the leasing or rental concern. The most we will pay for any one "accident" is $3,000. If a limit for Hired Auto - Physical Damage is shown in the Schedule, then that limit replac- es, and is not added to, the $50,000 limit indi- cated above. J. Rental Reimbursement SECTION III - PHYSICAL DAMAGE is amended by adding the following: 1. We will pay for rental reimbursement ex- penses incurred by you for the rental of an "auto" because of a "loss" to a covered "auto". Payment applies in addition to the otherwise applicable amount of each cov- erage you have on a covered "auto". No deductible applies to this coverage. 2. We will pay only for those expenses in- curred during the policy period beginning 24 hours after the "loss" and ending, re- gardless of the policy's expiration, with the lesser of the following number of days: a. The number of days reasonably re- quired to repair the covered "auto". If "loss" is caused by theft, this number of days is added to the number of days it takes to locate the covered "auto" and return it to you; or b. 30 days. 3. Our payment is limited to the lesser of the following amounts: a. Necessary and actual expenses in- curred; or b. $50 per day. 4. This coverage does not apply while there are spare or reserve "autos" available to you for your operations. K. Transportation Expense - Higher Limits SECTION III - PHYSICAL DAMAGE COV- ERAGE, A. Coverage, 4. Coverage Exten- sions is amended by replacing $20 per day with $50 per day, and $600 maximum with $1,500 maximum in Extension a. Transpor- tation Expenses. L. Airbag Coverage SECTION 111 - PHYSICAL DAMAGE COV- ERAGE, B. Exclusions, 3.a. is amended by adding the following: However, the mechanical and electrical breakdown portion of this exclusion does not apply to the accidental discharge of an airbag. This coverage for airbags is excess over any other collectible insurance or warranty. M. Loan or Lease Gap Coverage 1. SECTION III - PHYSICAL DAMAGE COVERAGE, C. Limit of Insurance is deleted in its entirety and replaced by the following. but only for private passenger type "autos" with an original loan or lease, and only in the event of a "total loss" to such a private passenger type "auto": a. The most we will pay for "loss" in any one "accident" is the greater of: (1) The amount due under the terms of the lease or loan to which your covered private passenger type "auto" is subject. but will not include: (a) Overdue lease or loan pay- ments; (b) Financial penalties imposed under the lease due to high mileage, excessive use or abnormal wear and tear; (c) Security deposits not re- funded by the lessor; (d) Costs for extended warran- ties, Credit Life Insurance, Health, Accident or Disabil- ity Insurance purchased with the loan or lease; and (e) Carry-over balances from previous loans or leases, or S. We will pay under this coverage only that (2) Actual cash value of the stolen amount of your rental reimbursement ex- penses which is not already provided for or damaged property. under SECTION III - PHYSICAL DAM- b, An adjustment for depreciation and AGE COVERAGE, A. Coverage, 4. physical condition will be made in de - Coverage Extensions, termining actual cash value at the time of "loss". Includes copyrighted material of ISO AA 288 01 16 Properties, Inc., with its permission. Page 3 of 4 2. SECTION V - DEFINITIONS is amended by adding the following, but only for the purposes of this Loan or Lease Gap Coverage: "Total loss" means a "loss" in which the cost of repairs plus the salvage value ex- ceeds the actual cash value. N. Glass Repair - Waiver of Deductible SECTION III - PHYSICAL DAMAGE COV- ERAGE, D. Deductible is amended by adding the following: No deductible applies to glass damage if the glass is repaired in a manner acceptable to us rather than replaced. O. Duties in the Event of an Accident, Claim, Suit or Loss - Amended SECTION IV - BUSINESS AUTO CONDI- TIONS, A. Loss Conditions, 2. Duties in the Event of Accident, Claim, Suit or Loss, a. is amended by adding the following: This condition applies only when the "acci- dent" or "loss" is known to: 1. You, if you are an individual; 2. A partner, if you are a partnership; 3. An executive officer or insurance manag- er, if you are a corporation; or 4. A member or manager, if you are a lim- ited liability company. P. Unintentional Failure to Disclose Hazards SECTION IV - BUSINESS AUTO CONDI- TIONS, B. General Conditions, 2. Conceal- ment, Misrepresentation or Fraud is amended by adding the following: However, if you unintentionally fail to disclose any hazards existing on the effective date of this Coverage Form, we will not deny cover- age under this Coverage Form because of such failure. Q. Mental Anguish Resulting from Bodily Inju- ry SECTION V - DEFINITIONS, C. "Bodily inju- ry" is deleted in its entirety and replaced by the following: "Bodily injury" means bodily injury, sickness or disease sustained by a person, including men- tal anguish and death sustained by the same person that results from such bodily injury, sickness or disease. 'Bodily injury" does not include mental anguish or death that does not result from bodily injury, sickness or disease. R. Coverage for Certain Operations in Con- nection with Railroads With respect to the use of a covered "auto" in operations for or affecting a railroad: 1. Section V - Definitions, H. "Insured con- tract". 1.c. is amended to read: c. An easement or license agreement; 2. Section V - Definitions, H. "Insured con- tract", 2.a. is deleted. Includes copyrighted material of ISO AA 288 01 16 Properties, Inc., with its permission. Page 4 of 4