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6113 - Original, Mod. 1 and Mod. 2
_____________________________________________________________________________ Public Works & Utilities │ 100 Oyster Bay Ave. N., Bremerton, WA 98312 * Phone (360) 473-5315 * Fax (360) 473-5018 Executive Correspondence Routing Memo Date: July 15, 2020 Description: Contract Modification Agreement No. 1 between the City of Bremerton and AquaTechnex LLC. Original Contract approved by Council May 20, 2020. Already reviewed by PW Director and Legal. Action Requested: Signature Originator: Chance Berthiaume Coordination / Approval / Recommendation: Public Works Director: Recommended Initials/date ________ City Attorney: Recommended Initials/date ________ Mayor: Approval / Signature City Clerk: Recommended Initials/date ________ Please return to Chance Berthiaume (Public Works) for final processing upon approval / signature. DocuSign Envelope ID: 10D8EF37-0EF5-4D6C-8271-D358E37AC8E7 7/16/2020 7/21/2020 7/21/2020 _____________________________________________________________________________ Public Works & Utilities │ 100 Oyster Bay Ave. N., Bremerton, WA 98312 * Phone (360) 473-5315 * Fax (360) 473-5018 Executive Correspondence Routing Memo Date: July 15, 2020 Description: Contract Modification Agreement No. 1 between the City of Bremerton and AquaTechnex LLC. Original Contract approved by Council May 20, 2020. Already reviewed by PW Director and Legal. Action Requested: Signature Originator: Chance Berthiaume Coordination / Approval / Recommendation: Public Works Director: Recommended Initials/date ________ City Attorney: Recommended Initials/date ________ Mayor: Approval / Signature City Clerk: Recommended Initials/date ________ Please return to Chance Berthiaume (Public Works) for final processing upon approval / signature. DocuSign Envelope ID: 10D8EF37-0EF5-4D6C-8271-D358E37AC8E7 7/16/2020 7/21/2020 7/21/2020 DocuSign Envelope ID: E8732949-E423-484A-AA9D-83A365611F9E DocuSign Envelope ID: E8732949-E423-484A-AA9D-83A365611F9E 8/11/2020 DocuSign Envelope ID: E8732949-E423-484A-AA9D-83A365611F9E DocuSign Envelope ID: E8732949-E423-484A-AA9D-83A365611F9E Page 1 of 4 Contract Modification Rev. 10/2019 CONTRACT MODIFICATION AGREEMENT NO. 1 BETWEEN THE CITY OF BREMERTON AND AquaTechnex LLC. PROJECT Phoslock Treatment of Kitsap Lake CONSULTANT AquaTechnex LLC. DATE July 6, 2020 THIS CONTRACT MODIFICATION AGREEMENT SPECIFICALLY AMENDS THE Phoslock Treatment of Kitsap Lake AGREEMENT (the "Contract") entered into between the City of Bremerton and AquaTechnex LLC. on May 20th, 2020, contract number 6113. All provisions in the Contract shall remain in full force and effect except as expressly modified by this document. For valuable consideration and by mutual consent of the parties, the modifications to the Contract are as follows: I. Section I. Scope , is modified as follows: See Amended Scope of Work attached as Exhibit A Section II. Term , is modified as follows: The Consultant shall complete the work described in this Contract Modification Agreement by December 31, 2020. Section III. Compensation , is modified as follows: The original contract amount was $205,692.00. The City shall pay the Consultant for the additional work described above, based on time and materials, an amount not to exceed $24,879.25 for a total amended contract amount of $230,571.25, including this Contract Modification. II. Consultant accepts all requirements of this Contract Modification by endorsing below. Consultant further agrees that this Contract Modification constitutes full and final settlement of all of the Consultant’s claims for contract time and for all costs of any kind, including without limitation, costs of delays related to any work either covered or affected by this Contract Modification, claims related to on-site or home office overhead, or lost profits. This Contract Modification does not limit the City’s right to bring a claim for past performance. The undersigned consultant approves the foregoing Contract Modification as to the changes, if any, in the contract price specified for each item, including any and all supervision costs and other miscellaneous costs relating to the change in work, and as to the extension of time allowed, if any, for completion of the entire work due to said Contract Modification. DocuSign Envelope ID: 10D8EF37-0EF5-4D6C-8271-D358E37AC8E7 DocuSign Envelope ID: 10D8EF37-0EF5-4D6C-8271-D358E37AC8E7 7/16/2020 7/21/2020 7/21/2020 7/21/2020 Page 3 of 4 Contract Modification Rev. 10/2019 Exhibit A Additionally, AquaTechnex LLC. will perform lake wide aquatic vegetation harvesting and herbicide application as recommended in the Kitsap Lake Aquatic Plant Management Plan Draft Update, AquaTechnex LLC. December 2019. The Aquatic Plant and Algae Management NPDES permit (Permit) has been approved and issued. Permit requirements will be followed and is the sole responsibility of AquaTechnex LLC. Task 1: Treatment of Lily and shoreline emergent noxious aquatic weeds: Target White Water Lily and emergent noxious weed growth with aquatic herbicide treatments. Two locations where invasive White-Water Lily are present will be treated with aquatic herbicides. Significant populations of Yellow Flag Iris on the shoreline will be controlled with an herbicide application. Follow the necessary steps to provide written notice and get approval from all shoreline property owners prior to application on their property. Property owners will be required to complete a permission form and may opt- out if they wish to keep their Yellow Flag Iris. Provide a copy of signed permission forms to the City prior to application of herbicide. Per the Permit, notify all property owners adjacent to and within a quarter mile of the planned treatment at least 10 days prior to application. Signage is required to be posted on each shoreline property 10 days prior to treatment. Herbicide application will be made by a licensed applicator in compliance with the Permit. Task 2: Contract harvesting: Contract with and manage harvester operators and equipment to harvest 15 acres of aquatic vegetation in Kitsap Lake. The offload site will be at Kitsap Lake Park boat launch and the city will accept harvested vegetation for composting. The December 2019 report identified 17 acres of the lake as containing aquatic plant growth, about 50% of that is in the southern end of the lake. The focus of this effort is to cut the outside edge of the lake and fully manage areas in front of the park and public access areas with one cut in late July through August. Harvesting in the southern end of the lake will include the area adjacent to the Kitsap Lake Park boat launch, north of waterskiing buoys and 100’ south of the buoys. There may be a touch up in September, depending on remaining available contract funds. Task 3: NPDES Permit Requirements The Vendor shall be responsible for compliance with the Permit which includes project notification requirements in accordance with Section S6. This includes but is not limited to posting signs at publicly accessible areas; on shoreline private property areas; and on the water. This task also includes conducting advanced notification to all residents; and recording and retaining records. o TIME OF COMPLETION. Vendor shall complete the work and provide all goods, materials and services by December 31, 2020. Herbicide application and harvesting to be completed as defined in the following schedule: Herbicide application to occur between July 15th and September 30th DocuSign Envelope ID: 10D8EF37-0EF5-4D6C-8271-D358E37AC8E7 Page 4 of 4 Contract Modification Rev. 10/2019 o Harvesting to occur between July 15th and September 30th I. COMPENSATION. The City shall pay the Vendor no more than total amount of $24,900, including applicable Washington State Sales Tax, for the goods, materials and services contemplated in this Agreement. The City shall pay the Vendor the following amounts according to the following schedule: Action Year one budget Annual renewal for NPDES budget $675 Mailing for permit compliance $150 Treatment of emergent noxious weeds $3,000 Harvesting Operations $15,000 Contingency $4,000 Tax 9% 2,054.25 Totals $24,879.25 DocuSign Envelope ID: 10D8EF37-0EF5-4D6C-8271-D358E37AC8E7 DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Page 1 of 12 Goods and Services Agreement Rev. 10/2019 GOODS AND SERVICES AGREEMENT THIS AGREEMENT is entered into between the City of Bremerton, a Washington Municipal Corporation ("City"), and AquaTechnex LLC ("Vendor"), whose mailing address 1801 Van Wormer, Suite 1, Centralia, WA 98531. The parties agree as follows: I. VENDOR SERVICES. The Vendor shall provide the following materials and perform the following services for the City: Perform lake wide water column stripping using Phoslock in late May or early June and a late summer application for approximately 32 acres of the lake that are deeper than 24 feet. The initial Phoslock application rate will be based on water testing prior to application and calculated to provide a rate of 150 pounds of Phoslock to 1 pound of phosphorus. If costs exceed contract amount, application rate will be adjusted but not to less than 100 pounds of Phoslock per pound of phosphorus. The City expects the following tasks and services to be provided: COVID-19 Worker Health Protection Plan and Implementation Consistent with the Governor’s Stay Home, Stay Healthy Proclamation only essential work is being completed during the Covid-19 pandemic. Kitsap Lake phosphorus control is an activity that falls under environmental protection to protect public health by maintaining water quality and preventing toxic algae blooms. Due to the COVID-19 health risks all work will be completed in compliance with the State mandated social distancing guidance at a minimum. The Vendor shall develop a worker safety plan for all work to be completed under this contract and shall ensure workers have all appropriate Personal Protective Equipment necessary to complete the work. Task 1: Submittals, Mobilization, Demobilization The Vendor is responsible for complying with submittal requirements specified. The Vendor shall mobilize equipment to the specified staging area at Kitsap Lake with the equipment necessary to treat the lake between June 1 -15th, or on alternative agreed dates. For the late summer application, dates of service will be determine based on water quality tests to determine the need and dosage. The Vendor shall remove all treatment equipment from the staging area upon completion of the treatment as agreed in separate agreement. The Vendor is responsible for all public notification in accordance with the Aquatic Plant and Algae Management General Permit from the Washington State Department of Ecology. Task 2: Materials The Vendor shall have appropriate equipment and adequate quantities of Phoslock on hand for the phosphorus column stripping application to Kitsap Lake. Quantity cost estimates will be based on lake water collected and analyzed by the Vendor prior to DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Page 2 of 12 Goods and Services Agreement Rev. 10/2019 application. Phoslock quantity will be determined by testing water prior to application and costs will be adjusted accordingly. Task 3: Phoslock Treatment • The Vendor shall apply Phoslock to complete a water column stripping in Kitsap Lake as required to sequester phosphorus. The City may delay or suspend a portion of the treatment if water quality or wildlife impacts are observed. A late summer application of Phoslock will be required in areas of deep water to sequester phosphorus in sediment (approx. 32 acres are deeper than 24 feet) under this contract. Task 4: NPDES Permit Requirements The City and AquaTechnex LLC. have applied for an Aquatic Plant and Algae Management NPDES General Permit for this project. The Vendor shall be responsible for compliance with all aspects of the permit, including project notification requirements in accordance with Section S6 of the permit. The effort includes, but is not limited to, posting signs at publicly accessible areas; on shoreline private property areas; and on the water. This task also includes conducting advanced notification to all residents; and recording and retaining records. . Scope of Work The purpose of this project is to reduce soluble phosphorus to eliminate blue-green algae blooms and restore water quality to acceptable conditions for use by human, animal and fish. It is expected that Phoslock application will achieve this goal and if applied per manufacturer specifications it will further reduce phosphorus to less than 0.1 mg/L. The NPDES Permit has been issued for this work. Notice of application will be sent to all residents and businesses located on the lake shoreline at least 10 days prior to Phoslock application, as required by the NPDES Permit. AquaTechnex has the mailing list and will perform the required mail notification and lake posting in a time frame to meet the treatment window and comply with the permit requirement. AquaTechnex is responsible for compliance with all terms and condition of the NPDES Permit. Phoslock is generally applied based on an application rate in the range of 100 lbs. of Phoslock to treat 1 lb. of phosphorus to 150 lbs. of Phoslock to treat for 1 lb. phosphorus dissolved in the water column. The fall 2019 sampling indicated that there was 33.9 ug/l of phosphorus present which would result in an application of 39,854 to 59,780 pounds of Phoslock to remove all phosphorus (the higher range is recommended when performing stripping application). Phoslock is shipped on pallets that contain 2200 pounds of product so the maximum amount would be approximately 26 pallets. Additional sampling may be performed by the City prior to determining the final dose required. Vendor has a spreadsheet that calculates the required amount of Phoslock based on water quality data and lake volume. They will work with the City to enter new numbers into the spreadsheet and determine if an increase or decrease in Phoslock is warranted. This will be the final determination as to amounts needed. This material would be shipped from Fresno, California to the Public Works Operation Center located at 100 Oyster Bay Ave N. for staging and temporary storage. A portion of the Kitsap Lake Park parking lot will be provided for daily storage and boat loading. DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Page 3 of 12 Goods and Services Agreement Rev. 10/2019 II. TIME OF COMPLETION. Vendor shall complete the work and provide all goods, materials and services by December 31, 2020. Phoslock application will be completed as defined in Exhibit B, below. III. COMPENSATION. Payment to the Vendor shall not exceed $205,692, including applicable Washington State Sales Tax, for the goods, materials and services in this Agreement. The City shall pay the Vendor the following amounts according to the following schedule upon completion of work: Exhibit B A. Defective or Unauthorized Work. The City reserves its right to withhold payment from Vendor for any defective or unauthorized goods, materials or services. If Vendor is unable, for any reason, to complete any part of this Agreement, the City may obtain the goods, materials or services on its own or from a third party, and Vendor shall be liable to the City for any additional Spec Sec. Description Qty Unit Unit Price Total Cost June Application Mobilization Move equipment to the lake, rental of forklift 1 lump $3,500.00 $3,500.00 Phoslock High estimate 150-1 ratio 59,000 Pounds $1.80 $106,200.00 Equipment Posting Boats, Application boats 1 Lump $3,500.00 $3,500.00 Labor All work processes and permit compliance 1 Lump $30,000.00 $30,000.00 Demobilization 1 Lump $1,000.00 $1,000.00 August Application Mobilization Move equipment to the lake, rental of forklift 1 Lump $1,500.00 $1.500.00 Phoslock Material estimated 20,000 Pounds $1.80 $36,000.00 Equipment Boats 1 Lump $1,500.00 $1,500.00 Labor All work processes and permit compliance 1 Lump $5,000.00 $5,000.00 Demobilization 1 Lump $500.00 $500.00 Contingency Cost of Phoslock is estimated at $1.80 per pound but may be less and project cost adjusted accordingly. Estimate is based on application rate of 150-1 so may be lower require less product and is dependent on sampling and determination of team. Bremerton will provide a storage and staging area for Phoslock prior to the June application and will allow storage of excess product until August application. A detailed agreement will be developed and signed by both points of contact. Sales Tax 9% $16,983.00 Total Project Cost $205,692.00 DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Page 4 of 12 Goods and Services Agreement Rev. 10/2019 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 the cost to complete this Agreement, including any Additional Costs, from any and all amounts due or to become due the Vendor. IV. INDEPENDENT CONTRACTOR. Vendor is and shall be at all times acting as an independent contractor and not as an employee of the City. The Vendor shall secure at its expense and shall be responsible for all payments of income tax, social security, state disability insurance compensation, unemployment compensation, and all other payroll deductions for the Vendor, officer, agents, employees and subcontractors. The Vendor shall also secure all applicable business licenses, if required, in connection with the contract services, including all required licenses for Vendor's officers, agents, employees and subcontractors. V. TERMINATION. The City may terminate this Agreement for good cause. "Good cause" shall include, without limitation, any one or more of the following events: A. The Vendor's refusal or failure to supply a sufficient number of properly skilled workers or proper materials for completion of this Agreement. B. The Vendor's failure to complete this Agreement within the time specified in this Agreement. C. The Vendor's failure to make full and prompt payment to subcontractors or for material or labor. D. The Vendor's failure to comply with federal, state or local laws, rules or regulations. E. The Vendor's filing for bankruptcy or becoming adjudged bankrupt. If the City terminates this Agreement for good cause, the Vendor shall not receive any further monies due under this Agreement until the goods, materials, and services required by this Agreement are completed and fully performed by the City or a third party of the City’s choosing. VI. CHANGES. The City may issue a written change order for any change in the goods, materials or services to be provided during the performance of this Agreement. If the Vendor determines, for any reason, that a change order is necessary, Vendor must submit a written change order request to an authorized agent of the City within fourteen (14) calendar days of the date Vendor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Vendor's costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Vendor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Vendor shall proceed with the change order work upon receiving either a written change order from the City or an oral order from the City before actually receiving the written change order. If the Vendor fails to require a change order within the time allowed, the Vendor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work. If the DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Page 5 of 12 Goods and Services Agreement Rev. 10/2019 Vendor disagrees with the equitable adjustment the Vendor must complete the change order work; however, the Vendor may elect to protest the adjustment as provided below: A. Procedure and Protest by the Vendor. If the Vendor disagrees with anything required by a change order, another written order, or an oral order from the City, including any direction, instruction, interpretation, or determination by the City, the Vendor shall: 1. Immediately give a signed written notice of protest to the City; 2. Supplement the written protest within fourteen (14) calendar days with a written statement that provides the following information: a. The date of the Vendor's protest. b. The nature and circumstances that caused the protest. c. The provisions in this Agreement that support the protest. d. The estimated dollar cost, if any, of the protested work and how that estimate was determined. e. An analysis of the progress schedule showing the schedule change or disruption if the Vendor is asserting a schedule change or disruption. 3. The Vendor shall keep complete records of extra costs and time incurred as a result of the protested work. The City shall have access to any of the Vendor's records needed for evaluating the protest. The City will evaluate all protests, provided the procedures in this section are followed. If the City determines that a protest is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. B. Vendor's Duty to Complete Protested Work. In spite of any protest, the Vendor shall proceed promptly to provide the goods, materials and services required by the City under this Agreement. C. Vendor's Acceptance of Changes. The Vendor accepts all requirements of a change order by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides. A change order that is accepted by Vendor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change. D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Vendor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Vendor completely waives any claims for protested work and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Page 6 of 12 Goods and Services Agreement Rev. 10/2019 VII. CLAIMS. The Vendor shall give written notice to the City of all claims other than change orders within fourteen (14) calendar days of the occurrence of the events giving rise to the claims. Any claim for damages, additional payment for any reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively deemed to have been waived by the Vendor unless a timely written claim is made in strict accordance with the applicable provisions of this Agreement; or, if (and only if) no such provision is applicable, unless that claim is set forth in detail in writing and received by the City within seven (7) calendar days from the date Vendor knew, or should have known, of the facts giving rise to the claim. At a minimum, a Vendor's written claim must include the information set forth regarding protests in Section VI(A)(2)(a)-(e). FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. Vendor must, in any event, file any claim or bring any suit arising from or connected with this Agreement within 120 calendar days from the date the contract work is complete. VIII. WARRANTY. The Vendor shall correct all defects in workmanship and materials within one year from the date of the City's acceptance of the contract work. When defects are corrected, the warranty for that portion of the work shall extend for one year from the date such correction is completed and accepted by the City. The Vendor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Vendor does not accomplish the corrections within a reasonable time, the City may complete the corrections and the Vendor shall pay all costs incurred by the City in order to accomplish the correction. IX. INDEMNIFICATION. Vendor shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the performance of this Agreement. Vendor’s obligation to indemnify shall not extend to that portion of damages caused by the City’s sole negligence. The City's inspection or acceptance of any of Vendor's work when completed shall not be grounds to avoid any of these covenants of indemnification. 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 Vendor and the City, its officers, officials, employees, agents and volunteers, the Vendor's liability hereunder shall be only to the extent of the Vendor's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THIS INDEMNIFICATION CONSTITUTES THE VENDOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES ACKNOWLEDGE THAT THEY HAVE MUTUALLY DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Page 7 of 12 Goods and Services Agreement Rev. 10/2019 NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. X. INSURANCE. The Vendor shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the contract work by the Vendor, its agents, representatives, employees or subcontractors. Before beginning work on the project described in this Agreement, the Vendor shall provide a Certificate of Insurance evidencing: A. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and B. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; and employer's liability. C. Excess Liability insurance with limits not less than $1,000,000 limit per occurrence and aggregate. D. Professional Liability insurance with limits no less than $1,000,000 limit per occurrence/claim. E. Workers Compensation insurance as statutorily required by the Industrial Insurance Act of the State of Washington, Title 51, Revised Code of Washington and employer's liability with limits not less than $1,000,000. Any payment of deductible or self-insured retention shall be the sole responsibility of the Vendor. All required policies shall be provided on an “occurrence” basis except professional liability insurance (if required), which shall be provided on a “claims-made” basis. The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Vendor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all the required insurance policies. The Vendor's Commercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Page 8 of 12 Goods and Services Agreement Rev. 10/2019 The Vendor's insurance shall be primary and non-contributory insurance as respects the City and shall contain a waiver of subrogation against the City for claims arising out of any operations, liabilities and obligations to which coverage applies. It shall be an affirmative obligation upon Vendor to advise the City’s Risk Manager by fax at (360) 473-5161, or by certified mail, return receipt requested to City of Bremerton, Attn: Risk Management, 345 6th Street, Suite 100, Bremerton, WA 98337 within two days of the cancellation, suspension or substantive change of any insurance policy required herein, and failure to do so shall be construed to be a breach of this Agreement. The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. XI. MISCELLANEOUS. A. Licenses and Taxes. Vendor shall possess a current Bremerton Business License and any regulatory license required to fulfill Vendor's obligations under this Agreement. B&O taxes shall be paid when due, and Vendor, by this Agreement, assigns any payments due under this Agreement to the City Clerk for payment of such taxes which have been declared delinquent. B. Conflict and Precedence. In the event of a conflict between the contract documents, the document which rates higher on the following list shall take precedence: 1. Amendments / Change Orders to Goods and Services Agreement 2. Goods and Services Agreement 3. Specifications 4. Terms and Conditions 5. Vendor’s Proposal C. Documents Incorporated by Reference. The following documents are incorporated by reference, including but not limited to: 1. Terms and Conditions, 2. Specifications, 3. Proposal, and 4. Non-Collusion Affidavit. D. Use of Photographs and Images. Vendor shall not use or distribute photographs or images depicting City officials, personnel, property, or equipment whether prepared by Vendor or provided by City without prior written consent of the City. The City will not unreasonably withhold its consent. E. Nondiscrimination. In the hiring of employees for the performance of work under this Agreement the Vendor, its subcontractors, or any person acting on behalf of Vendor shall not, by reason of race, religion, color, sex, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Page 9 of 12 Goods and Services Agreement Rev. 10/2019 F. Compliance with Laws. Vendor shall comply with all federal, state and local laws, rules and regulations throughout every aspect in the performance of this Agreement. G. Prevailing Wages. Labor and Industries has determined that prevailing wages do not apply to work being completed under this Goods and Services Agreement. That determination is attached as Exhibit “C”. The original email is in the project file. H. Work Performed at Vendor's Risk. Vendor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of this Agreement. All work shall be done at Vendor's own risk, and Vendor 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. I. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between the City and Vendor under any of the provisions of this Agreement, resolution of that dispute shall be available exclusively under the jurisdiction, venue and rules of the Kitsap County Superior Court, Kitsap County, Washington. J. Attorney's Fees. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall be responsible for payment of its own legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit; however, nothing in this subsection shall limit the City's right to indemnification under Section IX of this Agreement. K. Written Notice. All communications regarding this Agreement shall be sent to the parties at the addresses listed below, unless otherwise notified. Any written notice shall become effective upon delivery, but in any event three (3) calendar days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement. Notices to be sent to: Notices to be sent to: CITY: VENDOR: Attn: Chance Berthiaume Attn: Terry McNabb City of Bremerton AquaTechnex LLC. 100 Oyster Bay Ave N. 1801 Van Wormer, Suite 1 Bremerton, WA 98312 Centralia, WA 98531 L. Assignment. Any assignment of this Agreement by the Vendor without the written consent of the City shall be void. M. Modification. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Vendor. DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC 5/20/20 DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC 5/21/2020 Page 11 of 12 Goods and Services Agreement Rev. 10/2019 R:\Legal\Legal\Forms\FORMS ON COBWEB\Goods and Services Agreement Rev 10 2019.docx Exhibit C Labor and Industries Prevailing Wage Determination, April 30, 2020 From: Herman, Laura E (LNI) <herq235@LNI.WA.GOV> Sent: Thursday, April 30, 2020 9:02 AM To: Chance Berthiaume <Chance.Berthiaume@ci.bremerton.wa.us> Cc: tmcnabb@aquatechnex.com Subject: RE: Question on Prevailing Wages CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Chance, Thank you for your prevailing wage question. The city intends to contract for work to chemically treat Kitsap Lake with a product called Phoslock to reduce phosphorus levels in the lake’s water. The active ingredient in Phoslock is lanthanum. Phoslock’s major, clay component controls the free lanthanum levels to avoid impacts to organisms while still allowing the lanthanum to bind with and remove phosphorus. This reduces the phosphorus levels in the lake water. This work involves significant lab work to analyze water samples. Lab work and grabbing samples typically does not involve the work of laborers, workers, or mechanics, the type of worker that may be entitled to prevailing wages on public works. That means the lab work is not going to require prevailing wages under chapter 39.12 RCW and our remaining prevailing wage question is about the application of the Phoslock material. RCW 39.12.030 instructs state and local government agencies to include prevailing wage specifications in their public works contracts to perform any “construction, reconstruction, maintenance or repair”. This RCW 39.12.030 requirement is more specific than the general requirement to pay prevailing wages for work “upon all public works” stated in RCW 39.12.020. That more specific requirement helps us discern the work that the law intended to include in these prevailing wage requirements. Phoslock is applied using shore or boat based equipment. Shore based application involves slurrying the dry granules on site using site water and spraying the slurry onto the water using a pressure hose. Boat based application also involves slurrying, using on-board equipment and broadcasting by hose and a spray boom. This Phoslock application does not amount to building or constructing a structure or other improvement to real property. The application does not rebuild or reconstruct a previously constructed improvement. Finally, the application does not maintain or repair any improvement to real property. Although the Phoslock application likely does involve the work of a laborer, worker or mechanic, the work performed does not amount to performing any “construction, reconstruction, maintenance or DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Page 12 of 12 Goods and Services Agreement Rev. 10/2019 repair” as those words are used in RCW 39.12.030. For that reason, this contract for the application of Phoslock does not need to include prevailing wage specifications nor will such work require the payment of the prevailing rate of wage under chapter 39.12 RCW. I recommend placing a copy of this clarification into the contract file in case there is any subsequent inquiry about any applicable prevailing wage requirements. I hope that helps! Laura Prevailing wage answers are fact specific and a change in facts may result in a different answer. Laura Herman Administrative Regulations Analyst Washington State Department of Labor & Industries Prevailing Wage Program p: 360-628-6872, e: laura.herman@Lni.wa.gov she/her DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC May 1, 2020 Terry McNabb Aquatechnex PO Box 118 Centralia, WA 98531 Permit Number: WAG994463 Site Name: Kitsap Lake, whole lake coverage RE: Issuance of Coverage under the Aquatic Plant and Algae Management General Permit Dear Terry McNabb: The Washington State Department of Ecology (Ecology) received your application for coverage under the Aquatic Plant and Algae Management General Permit (APAM permit). Ecology is issuing you coverage under the APAM permit as of May 1, 2020. Retain this letter with your permit documents. It is part of the official record of permit coverage. A copy of the APAM permit, forms, and supporting documents may be viewed and downloaded at https://ecology.wa.gov/Regulations-Permits/Permits-certifications/Aquatic-pesticide- permits/Aquatic-plant-algae-management. Please take time to read the entire permit. It contains the requirements you must follow to maintain compliance. Contact James Hovis (email and phone number listed below) if you have questions about the APAM permit, or would like to receive a hard copy. Treatment Timing Window Ecology is conditioning this permit coverage for some active ingredients to set allowed treatment periods for mitigating impacts to salmonids and Washington Department of Fish and Wildlife priority habitats and species using Treatment Timing Windows. For this coverage, the Treatment Timing Windows are: Waterbody Treatment Timing Window: Year around as needed for aquatic noxious weed control and phosphorus management. July 15 to October 31, dates inclusive, for nuisance plant management. DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Terry McNabb May 1, 2020 Page 2 To determine which active ingredients are subject to Treatment Timing Windows see permit condition S4.D, Table 3. All current Treatment Timing Windows are available here: https://ecology.wa.gov/DOE/files/fa/fa8057b6-6ffb-4191-9170-e5cb31f05331.pdf. Permit Fees State law (RCW 90.48.465) requires that all Permittees pay an annual permit fee based upon the state fiscal year. The state fiscal year begins each year on July 1, and ends June 30 the following year. Ecology mails permit fee bills to all Permittees annually. Permittees that have permit coverage on July 1 will receive a permit fee bill. If you would like more information on the permit fee process, contact the Water Quality Program Permit Fee Administrator at (360) 407-6425. Appeal The issuance of permit coverage may be appealed within 30-days of receiving this letter as detailed in the Appeal of General Permit Coverage focus sheet, which may be viewed and downloaded at https://fortress.wa.gov/ecy/publications/documents/1710007.pdf. Questions and Permit Technical Assistance If you have questions about this letter, or you have questions or need more information about APAM permit requirements please contact James Hovis at (360) 407-6588 or jhov461@ecy.wa.gov. Sincerely, Carrie A. Graul On behalf of Section Manager Program Development Services Section Water Quality Program DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC 4/7/2020200102AquaTechnex, LLCGSA - Kitsap Lake Phoslock Application205,692.00By 12/31/2020Chance/StormwaterX5929XMRR04/09/2020Approve - but with comments in document as well as e-mail.XSNO4/10/2020Chance 4/10/2020DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 3/20/2020 Hub International Northwest LLC 110 Unity St. Bellingham WA 98225 360-647-9000 360-734-8496 now.bellinghaminfo@hubinternational.com Admiral Insurance Company 24856 AQUALLC-03 Ohio Security Insurance Company 24082AquaTechnexLLC DBA H2O Technex PO Box 30824 Bellingham WA 98228 1870921882 A X 2,000,000 X 50,000 5,000 2,000,000 4,000,000 X Y Y FEIECC1651206 7/15/2019 7/15/2020 4,000,000 Deductible 5,000 B 1,000,000 X X X Y Y BAS57913454 3/22/2020 3/22/2021 A Y FEIECC1651206 7/15/2019 7/15/2020 X WA Stop Gap 1,000,000 1,000,000 1,000,000 A Professional Pollution FEIECC1651206 7/15/2019 7/15/2020 Aggregate Each Claim Deductible 5,000,000 1,000,000 5,000 Per policy forms and conditions.Automatic Additional Insured Owners Lessees,or Contractors form ECC-319-0712;Automatic Waiver of Subrogation form ECC-320-0712;Blanket Primary and Non-Contributory Endorsement form ECC-548-0712;Blanket Additional Insured Owners Lessees or Contractors form CG 20 37 07 04;Designated Construction Project General Aggregate Limit form CG 25 03 03 97;Business Auto Coverage Enhancement Endorsement form CA 88 10 01 10. RE:Kitsap Lake IAVMP and Phosphorus Reduction Plan Update. City of Bremerton Public Works &Utilities 345 6th Street,Suite 100 Bremerton WA 98337 DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Aquatechnex LLC Endorsement Number: 29 CG 20 37 07 04 © ISO Properties, Inc., 2004 Additional Insured – Owners, Lessees or Contractors – Completed Operations This endorsement, effective 7/15/2019 attaches to and forms a part of Policy Number FEI-ECC-16512-06. This endorsement changes the Policy. Please read it carefully. In consideration of an additional premium of $Applied, this endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Location And Description Of Completed Operations Any person(s) or organization(s) whom the Named Insured agrees, in a written contract, to name as an additional insured. However, this status exists only for the project specified in that contract. Those project locations where this endorsement is required by contract. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the schedule of this endorsement performed for that additional insured and included in the "products- completed operations hazard". DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Aquatechnex LLC Endorsement Number: 31 CG 25 03 03 97 Copyright, Insurance Services Office, Inc., 1996 Designated Construction Project(s) General Aggregate Limit This endorsement, effective 7/15/2019 attaches to and forms a part of Policy Number FEI-ECC-16512-06. This endorsement changes the Policy. Please read it carefully. In consideration of an additional premium of $Applied, this endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Designated Construction Projects: Those construction projects of the Named Insured when agreed to and required under written contract. However, this coverage only applies for the project specified in that contract. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A. For all sums which the insured becomes legally obligated to pay as damages caused by “occurrences” under COVERAGE A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION I), which can be attributed only to operations at a single designated “location” shown in the Schedule above: 1. A separate Designated Construction Project General Aggregate Limit applies to each designated construction project, and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Construction Project General Aggregate Limit is the most we will pay for the sum of all damages under COVERAGE A, except damages because of “bodily injury” or “property damage” included in the “products-completed operations hazard”, and for medical expenses under COVERAGE C regardless of the number of: a. Insureds; b. Claims made or “suits” brought; or c. Persons or organizations making claims or bringing “suits”. DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Aquatechnex LLC Endorsement Number: 31 CG 25 03 03 97 Copyright, Insurance Services Office, Inc., 1996 3. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Designated Construction Project General Aggregate Limit for that designated construction project. Such payments shall not reduce the General Aggregate Limit shown in the Declarations nor shall they reduce any other Designated Construction Project General Aggregate Limit for any other designated construction project shown in the Schedule above. 4. The limits shown in the Declarations for Each Occurrence, Fire Damage and Medical Expense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Construction Project General Aggregate Limit. B. For all sums which the insured becomes legally obligated to pay as damages caused by “occurrences” under COVERED A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION I), which cannot be attributed only to operations at a single designated construction project shown in the Schedule above: 1. Any payments made under COVERAGE A for the damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products-Completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Designated Construction Project General Aggregate Limit. C. When coverage for liability arising out of the “products-completed operations hazard” is provided, any payments for damages because of “bodily injury” or “property damage” included in the “products-completed operations hazard” will reduce the Products-Completed Operation Aggregate Limit, and not reduce the General Aggregate Limit nor the Designated Construction Project General Aggregate Limit. D. If the applicable designated construction project has been abandoned, delayed, or abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or timetables, the project will still be deemed to be the same construction project. E. The provisions of Limits Of Insurance (SECTION III) not otherwise modified by this endorsement shall continue to apply as stipulated. DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Aquatechnex LLC Endorsement Number: 6 ECC-319-0712 Automatic Additional Insured – Owners, Lessees or Contractors This endorsement, effective 7/15/2019 attaches to and forms a part of Policy Number FEI-ECC-16512-06. This endorsement changes the Policy. Please read it carefully. In consideration of an additional premium of $Applied, this endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART CONTRACTORS POLLUTION LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: Any person(s) or organization(s) whom the Named Insured agrees, in a written contract, to name as an additional insured. However, this status exists only for the project specified in that contract. The person or organization shown in this Schedule is included as an insured, but only with respect to that person’s or organization’s vicarious liability arising out of your ongoing operations performed for that insured. DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Aquatechnex LLC Endorsement Number: 7 ECC-320-0712 Automatic Waiver of Subrogation Endorsement This endorsement, effective 7/15/2019 attaches to and forms a part of Policy Number FEI-ECC-16512-06. This endorsement changes the Policy. Please read it carefully. This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART CONTRACTORS POLLUTION LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: Any person(s) or organization(s) to whom the Named Insured agrees, in a written contract, to provide a waiver of subrogation. However, this status exists only for the project specified in that contract. The Company waives any right of recovery it may have against the person or organization shown in the above Schedule because of payments the Company makes for injury or damage arising out of the insured’s work done under a contract with that person or organization. The waiver applies only to the person or organization in the above Schedule. Under no circumstances shall this endorsement act to extend the policy period, change the scope of coverage or increase the Aggregate Limits of Insurance shown in the Declarations. DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Aquatechnex LLC Endorsement Number: 17 ECC-548-0317 Automatic Primary and Non-Contributory Insurance Endorsement Designated Work Or Project(s) This endorsement, effective 7/15/2019 attaches to and forms a part of Policy Number FEI-ECC-16512-06. This endorsement changes the Policy. Please read it carefully. This endorsement modifies insurance provided under the Coverage Part(s) indicated below: COMMERCIAL GENERAL LIABILITY COVERAGE CONTRACTORS POLLUTION LIABILITY COVERAGE SCHEDULE Name of Person or Organization: Any person(s) or organization(s) whom the Named Insured agrees, in a written contract, to provide Primary and/or Non-contributory status of this insurance. However, this status exists only for the project specified in that contract. In consideration of an additional premium of $Applied and notwithstanding anything contained in this policy to the contrary, it is hereby agreed that this policy shall be considered primary to any similar insurance held by third parties in respect to work performed by you under any written contractual agreement with such third party. It is further agreed that any other insurance which the person(s) or organization(s) named in the schedule may have is excess and non- contributory to this insurance. DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC COMMERCIAL AUTO CA 88 10 01 10 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESS AUTO COVERAGE ENHANCEMENT ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM With respect to coverage afforded by this endorsement, the provisions of the policy apply unless modified by the endorsement. COVERAGE INDEX SUBJECT PROVISION NUMBER ADDITIONAL INSURED BY CONTRACT, AGREEMENT OR PERMIT 3 ACCIDENTAL AIRBAG DEPLOYMENT 12 AMENDED DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS 18 AMENDED FELLOW EMPLOYEE EXCLUSION 5 AUDIO, VISUAL AND DATA ELECTRONIC EQUIPMENT COVERAGE 13 BROAD FORM INSURED 1 BODILY INJURY REDEFINED 21 EMPLOYEES AS INSUREDS (including employee hired auto) 2 EXTENDED CANCELLATION CONDITION 22 EXTRA EXPENSE – BROADENED COVERAGE 10 GLASS REPAIR – WAIVER OF DEDUCTIBLE 15 HIRED AUTO PHYSICAL DAMAGE(including employee hired auto) 6 HIRED AUTO COVERAGE TERRITORY 20 LOAN / LEASE GAP 14 PARKED AUTO COLLISION COVERAGE (WAIVER OF DEDUCTIBLE) 16 PERSONAL EFFECTS COVERAGE 11 PHYSICAL DAMAGE – ADDITIONAL TRANSPORTATION EXPENSE COVERAGE 8 RENTAL REIMBURSEMENT 9 SUPPLEMENTARY PAYMENTS 4 TOWING AND LABOR 7 UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS 17 WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US 19 SECTION II – LIABILITY COVERAGE is amended as follows: 1. BROAD FORM INSURED SECTION II – LIABILITY COVERAGE, paragraph A.1. –WHO IS AN INSURED is amended to include the following as an insured: d. Any legally incorporated entity of which you own more than 50 percent of the voting stock during the policy period. However, “insured” does not include any organization that: (1) Is a partnership or joint venture; or (2) Is an insured under any other automobile policy; or (3) Has exhausted its Limit of Insurance under any other automobile policy. Paragraph d. (2) of this provision does not apply to a policy written to apply specifically in excess of this policy. e. Any organization you newly acquire or form, other than a partnership or joint venture, of which you own more than 50 percent of the voting stock. This automatic coverage is afforded only for 180 days from the date of acquisition or formation. However, coverage under this provision does not apply: (1) If there is similar insurance or a self-insured retention plan available to that organization; CA 88 10 01 10 ©2010 Liberty Mutual Insurance Company. All rights reserved. Includes copyrighted material of Insurance Services Office, with its permission. Page 1 of 7 DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC (2) If the Limits of Insurance of any other insurance policy have been exhausted; or (3) To “bodily injury” or “property damage” that occurred before you acquired or formed the organization. 2. EMPLOYEES AS INSUREDS SECTION II – LIABILITY COVERAGE, paragraph A.1. –WHO IS AN INSURED is amended to include the following as an insured: f. Any “employee” of yours while using a covered “auto” you do not own, hire or borrow but only for acts within the scope of their employment by you. Insurance provided by this endorsement is excess over any other insurance available to any “employee”. g. An “employee” of yours while operating an “auto” hired or borrowed under a written contract or agreement in that “employee’s” name, with your permission, while performing duties related to the conduct of your business and within the scope of their employment. Insurance provided by this endorsement is excess over any other insurance available to the “employee”. 3. ADDITIONAL INSURED BY CONTRACT, AGREEMENT OR PERMIT SECTION II – LIABILITY COVERAGE, paragraph A.1. –WHO IS AN INSURED is amended to include the following as an insured: h. Any person or organization with respect to the operation, maintenance or use of a covered “auto”, provided that you and such person or organization have agreed in a written contract, agreement, or permit issued to you by governmental or public authority, to add such person, or organization, or governmental or public authority to this policy as an “insured”. However, such person or organization is an “insured”: (1) Only with respect to the operation, maintenance or use of a covered “auto”; (2) Only for “bodily injury” or “property damage” caused by an “accident” which takes place after you executed the written contract or agreement, or the permit has been issued to you; and (3) Only for the duration of that contract, agreement or permit 4. SUPPLEMENTARY PAYMENTS SECTION II – LIABILITY COVERAGE, Coverage Extensions, 2.a. Supplementary Payments, paragraphs (2) and (4) are replaced by the following: (2) Up to $3,000 for cost of bail bonds (including bonds for related traffic violations) required because of an “accident” we cover. We do not have to furnish these bonds. (4) All reasonable expenses incurred by the insured at our request, including actual loss of earnings up to $500 a day because of time off from work. 5. AMENDED FELLOW EMPLOYEE EXCLUSION In those jurisdictions where, by law, fellow employees are not entitled to the protection afforded to the employer by the workers compensation exclusivity rule, or similar protection, the following provision is added: SECTION II – LIABILITY, exclusion B.5. FELLOW EMPLOYEE does not apply if the “bodily injury” results from the use of a covered “auto” you own or hire. SECTION III – PHYSICAL DAMAGE COVERAGE is amended as follows: 6. HIRED AUTO PHYSICAL DAMAGE Paragraph A.4. Coverage Extensions of SECTION III – PHYSICAL DAMAGE COVERAGE, is amended by adding the following: If hired “autos” are covered “autos” for Liability Coverage, and if Comprehensive, Specified Causes of Loss or Collision coverage are provided under the Business Auto Coverage Form for any “auto” you own, then the Physical Damage coverages provided are extended to “autos”: a. You hire, rent or borrow; or CA 88 10 01 10 ©2010 Liberty Mutual Insurance Company. All rights reserved. Includes copyrighted material of Insurance Services Office, with its permission. Page 2 of 7 DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC b. Your “employee” hires or rents under a written contract or agreement in that “employee’s” name, but only if the damage occurs while the vehicle is being used in the conduct of your business, subject to the following limit and deductible: A. The most we will pay for “loss” in any one “accident” or “loss” is the smallest of: (1) $50,000; or (2) The actual cash value of the damaged or stolen property as of the time of the “loss”; or (3) The cost of repairing or replacing the damaged or stolen property with other property of like kind and quality, minus a deductible. B. The deductible will be equal to the largest deductible applicable to any owned “auto” for that coverage. C. Subject to the limit, deductible and excess provisions described in this provision, we will provide coverage equal to the broadest coverage applicable to any covered “auto” you own. D. Subject to a maximum of $750 per “accident”, we will also cover the actual loss of use of the hired “auto” if it results from an “accident”, you are legally liable and the lessor incurs an actual financial loss. E. This coverage extension does not apply to: (1) Any “auto” that is hired, rented or borrowed with a driver; or (2) Any “auto” that is hired, rented or borrowed from your “employee”. For the purposes of this provision, SECTION V – DEFINITIONS is amended by adding the following: “Total loss” means a “loss” in which the cost of repairs plus the salvage value exceeds the actual cash value. 7. TOWING AND LABOR SECTION III – PHYSICAL DAMAGE COVERAGE, paragraph A.2. Towing, is amended by the addition of the following: We will pay towing and labor costs incurred, up to the limits shown below, each time a covered “auto” classified and rated as a private passenger type, “light truck” or “medium truck” is disabled: a. For private passenger type vehicles, we will pay up to $50 per disablement. b. For “light trucks”, we will pay up to $50 per disablement. “Light trucks” are trucks that have a gross vehicle weight (GVW) of 10,000 pounds or less. c. For “medium trucks” , we will pay up to $150 per disablement. “Medium trucks” are trucks that have a gross vehicle weight (GVW) of 10,001 – 20,000 pounds. However, the labor must be performed at the place of disablement. 8. PHYSICAL DAMAGE- ADDITIONAL TRANSPORTATION EXPENSE COVERAGE Paragraph A.4.a., Coverage Extension of SECTION III – PHYSICAL DAMAGE COVERAGE, is amended to provide a limit of $50 per day and a maximum limit of $1,500 CA 88 10 01 10 ©2010 Liberty Mutual Insurance Company. All rights reserved. Includes copyrighted material of Insurance Services Office, with its permission. Page 3 of 7 DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC 9. RENTAL REIMBURSEMENT SECTION III – PHYSICAL DAMAGE COVERAGE, A. COVERAGE, is amended by adding the following: a. We will pay up to $75 per day for rental reimbursement expenses incurred by you for the rental of an “auto” because of “accident” or “loss”, to an “auto” for which we also pay a “loss” under Comprehensive, Specified Causes of Loss or Collision Coverages. We will pay only for those expenses incurred after the first 24 hours following the “accident” or “loss” to the covered “auto.” b. Rental Reimbursement will be based on the rental of a comparable vehicle, which in many cases may be substantially less than $75 per day, and will only be allowed for the period of time it should take to repair or replace the vehicle with reasonable speed and similar quality, up to a maximum of 30 days. c. We will also pay up to $500 for reasonable and necessary expenses incurred by you to remove and replace your tools and equipment from the covered “auto”. d. This coverage does not apply unless you have a business necessity that other “autos” available for your use and operation cannot fill. e. If “loss” results from the total theft of a covered “auto” of the private passenger type, we will pay under this coverage only that amount of your rental reimbursement expenses which is not already provided under Paragraph 4. Coverage Extension. f. No deductible applies to this coverage. For the purposes of this endorsement provision, materials and equipment do not include “personal effects” as defined in provision 11. 10. EXTRA EXPENSE - BROADENED COVERAGE Under SECTION III – PHYSICAL DAMAGE COVERAGE, A. COVERAGE, we will pay for the expense of returning a stolen covered “auto” to you. The maximum amount we will pay is $1,000. 11. PERSONAL EFFECTS COVERAGE A. SECTION III – PHYSICAL DAMAGE COVERAGE, A. COVERAGE, is amended by adding the following: If you have purchased Comprehensive Coverage on this policy for an “auto” you own and that “auto” is stolen, we will pay, without application of a deductible, up to $600 for “personal effects” stolen with the “auto.” The insurance provided under this provision is excess over any other collectible insurance. B. SECTION V – DEFINITIONS is amended by adding the following: For the purposes of this provision, “personal effects” mean tangible property that is worn or carried by an insured.” “Personal effects” does not include tools, equipment, jewelry, money or securities. 12. ACCIDENTAL AIRBAG DEPLOYMENT SECTION III – PHYSICAL DAMAGE COVERAGE, B. EXCLUSIONS is amended by adding the following: If you have purchased Comprehensive or Collision Coverage under this policy, the exclusion for “loss” relating to mechanical breakdown does not apply to the accidental discharge of an airbag. Any insurance we provide shall be excess over any other collectible insurance or reimbursement by manufacturer’s warranty. However, we agree to pay any deductible applicable to the other coverage or warranty. 13. AUDIO, VISUAL AND DATA ELECTRONIC EQUIPMENT COVERAGE SECTION III – PHYSICAL DAMAGE COVERAGE, B. EXCLUSIONS, exception paragraph a. to exclusions 4.c. and 4.d. is deleted and replaced with the following: CA 88 10 01 10 ©2010 Liberty Mutual Insurance Company. All rights reserved. Includes copyrighted material of Insurance Services Office, with its permission. Page 4 of 7 DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC Exclusion 4.c. and 4.d. do not apply to: a. Electronic equipment that receives or transmits audio, visual or data signals, whether or not designed solely for the reproduction of sound, if the equipment is permanently installed in the covered “auto” at the time of the “loss” and such equipment is designed to be solely operated by use of the power from the “auto’s” electrical system, in or upon the covered “auto” and physical damage coverages are provided for the covered “auto”; or If the “loss” occurs solely to audio, visual or data electronic equipment or accessories used with this equipment, then our obligation to pay for, repair, return or replace damaged or stolen property will be reduced by a $100 deductible. 14. LOAN / LEASE GAP COVERAGE A. Paragraph C., LIMIT OF INSURANCE of SECTION III – PHYSICAL DAMAGE COVERAGE is amended by adding the following: The most we will pay for a “total loss” to a covered “auto” owned by or leased to you in any one “accident” is the greater of the: 1. Balance due under the terms of the loan or lease to which the damaged covered “auto” is subject at the time of the “loss” less the amount of: a. Overdue payments and financial penalties associated with those payments as of the date of the “loss”, b. Financial penalties imposed under a lease due to high mileage, excessive use or abnormal wear and tear, c. Costs for extended warranties, Credit Life Insurance, Health, Accident or Disability Insurance purchased with the loan or lease, d. Transfer or rollover balances from previous loans or leases, e. Final payment due under a “Balloon Loan”, f. The dollar amount of any unrepaired damage which occurred prior to the “total loss” of a covered “auto”, g. Security deposits not refunded by a lessor, h. All refunds payable or paid to you as a result of the early termination of a lease agreement or as a result of the early termination of any warranty or extended service agreement on a covered “auto”, i. Any amount representing taxes, j. Loan or lease termination fees; or 2. The actual cash value of the damage or stolen property as of the time of the “loss”. An adjustment for depreciation and physical condition will be made in determining the actual cash value at the time of the “loss”. This adjustment is not applicable in Texas. B. ADDITIONAL CONDITIONS This coverage applies only to the original loan for which the covered “auto” that incurred the loss serves as collateral, or lease written on the covered “auto” that incurred the loss. C. SECTION V – DEFINTIONS is changed by adding the following: As used in this endorsement provision, the following definitions apply: “Total loss” means a “loss” in which the cost of repairs plus the salvage value exceeds the actual cash value. A “balloon loan” is one with periodic payments that are insufficient to repay the balance over the term of the loan, thereby requiring a large final payment. CA 88 10 01 10 ©2010 Liberty Mutual Insurance Company. All rights reserved. Includes copyrighted material of Insurance Services Office, with its permission. Page 5 of 7 DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC 15. GLASS REPAIR - WAIVER OF DEDUCTIBLE Paragraph D. Deductible of SECTION III – PHYSICAL DAMAGE COVERAGE is amended by the addition of the following: No deductible applies to glass damage if the glass is repaired rather than replaced. 16. PARKED AUTO COLLISION COVERAGE (WAIVER OF DEDUCTIBLE) Paragraph D. Deductible of SECTION III – PHYSICAL DAMAGE COVERAGE is amended by the addition of the following: The deductible does not apply to “loss” caused by collision to such covered “auto” of the private passenger type or light weight truck with a gross vehicle weight of 10,000 lbs. or less as defined by the manufacturer as maximum loaded weight the “auto” is designed to carry while it is: a. In the charge of an “insured”; b. Legally parked; and c. Unoccupied. The “loss” must be reported to the police authorities within 24 hours of known damage. The total amount of the damage to the covered “auto” must exceed the deductible shown in the Declarations. This provision does not apply to any “loss” if the covered “auto” is in the charge of any person or organization engaged in the automobile business. SECTION IV – BUSINESS AUTO CONDITIONS is amended as follows: 17. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS SECTION IV- BUSINESS AUTO CONDITIONS, Paragraph B.2. is amended by adding the following: If you unintentionally fail to disclose any hazards, exposures or material facts existing as of the inception date or renewal date of the Business Auto Coverage Form, the coverage afforded by this policy will not be prejudiced. However, you must report the undisclosed hazard of exposure as soon as practicable after its discovery, and we have the right to collect additional premium for any such hazard or exposure. 18. AMENDED DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT, OR LOSS SECTION IV – BUSINESS AUTO CONDITIONS, paragraph A.2.a. is replaced in its entirety by the following: a. In the event of “accident”, claim, “suit” or “loss”, you must promptly notify us when it is known to: 1. You, if you are an individual; 2. A partner, if you are a partnership; 3. Member, if you are a limited liability company; 4. An executive officer or the “employee” designated by the Named Insured to give such notice, if you are a corporation. To the extent possible, notice to us should include: (1) How, when and where the “accident” or “loss” took place; (2) The “insureds” name and address; and (3) The names and addresses of any injured persons and witnesses. 19. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US SECTION IV – BUSINESS AUTO CONDITIONS, paragraph A.5., Transfer of Rights of Recovery Against Others to Us, is amended by the addition of the following: If the person or organization has waived those rights before an “accident” or “loss”, our rights are waived also. CA 88 10 01 10 ©2010 Liberty Mutual Insurance Company. All rights reserved. Includes copyrighted material of Insurance Services Office, with its permission. Page 6 of 7 DocuSign Envelope ID: 321E1FA0-1B4F-48A1-B011-7D124C60F9EC 20. HIRED AUTO COVERAGE TERRITORY SECTION IV – BUSINESS AUTO CONDITIONS, paragraph B.7., Policy Period, Coverage Territory, is amended by the addition of the following: f. For “autos” hired 30 days or less, the coverage territory is anywhere in the world, provided that the insured’s responsibility to pay for damages is determined in a “suit”, on the merits, in the United States, the territories and possessions of the United States of America, Puerto Rico or Canada or in a settlement we agree to. This extension of coverage does not apply to an “auto” hired, leased, rented or borrowed with a driver. SECTION V – DEFINITIONS is amended as follows: 21. BODILY INJURY REDEFINED Under SECTION V – DEFINTIONS, definition C. is replaced by the following: “Bodily injury” means physical injury, sickness or disease sustained by a person, including mental anguish, mental injury, shock, fright or death resulting from any of these at any time. COMMMON POLICY CONDITIONS 22. EXTENDED CANCELLATION CONDITION COMMON POLICY CONDITIONS, paragraph A.– CANCELLATION condition applies except as follows: If we cancel for any reason other than nonpayment of premium, we will mail to the first Named Insured written notice of cancellation at least 60 days before the effective date of cancellation. This provision does not apply in those states which require more than 60 days prior notice of cancellation. CA 88 10 01 10 ©2010 Liberty Mutual Insurance Company. All rights reserved. Includes copyrighted material of Insurance Services Office, with its permission. 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