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C-5062 - PSA for Water Efficiency Pilot
p AMENDMENT NO. THREE TO Lf� PROFESSIONAL SERVICES AGREEMENT WITH WATERSMART SOFTWARE, INC. FOR V WATER EFFICIENCY PILOT THIS AMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. 3") is made and entered into as of this 16th day of June, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and WATERSMART SOFTWARE, INC., a Delaware corporation ("Consultant"), whose address is 20 California Street, Suite 200, San Francisco, California 94111, and is made with reference to the following: RECITALS A. On February 8, 2012, City and Consultant entered into a Professional Services Agreement ("Agreement") for a pilot project to provide certain services, including preparing reports to be included with consumer water bills and online interfaces for consumers and City to access, which are intended to facilitate education of and communication with consumers regarding water use efficiency, improve City's understanding of water use by consumers, and reduce annual water demand ("Project"). B. On May 15, 2013, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to reflect additional services not previously included in the Agreement and to increase the total compensation. C. On March 10, 2015, City and Consultant entered into Amendment No. Two to the Agreement ("Amendment No. Two") to reflect additional services not previously included in the Agreement and to increase the total compensation. D. City desires to enter into this Amendment No. Three to extend the term of the Agreement to October 31, 2015 and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on October 31, 2015, unless terminated earlier as set forth herein." 2. COMPENSATION TO CONSULTANT Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a fixed fee basis, with supplemental specialized consulting services (such as rate structure analysis, budget based billing, and advanced water use analysis) available to City as "Extra Work" (as defined in Section 4.4) on a time and expense not to exceed basis in accordance with Watersmart Software, Inc. Page 1 the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Sixty Two Thousand Five Hundred Dollars and 001100 ($62,500.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for Services to be performed in accordance with this Amendment No. Three, including all reimbursable items and subconsultant fees, in an amount not to exceed Twelve Thousand Five Hundred Dollars and 001100 ($12,500.00). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Watersmart Software, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. Three to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORN Y'S OFFICE a California mun.cpl corporation Date: U ( Date: --2 � ,� / 1 Y By: 7N\&�� B i )—/0—V/ Aaron C. Harp c*M -ufat s David A. Webb City Attorney Public Works Director ATTEST: ,.7r 7i�• �5 Date: By:_iA L�� ` Leilani I. Brown City Clerk ®'Y ,nary/ CONSULTANT: Watersmart Software, Inc., a Delaw re corporation Date: 19 ul By: f"� �V-4v*�v Robin Gilt rpe Chief Executive Officer Date: �g �V►n�t� 2.0'lS By: Peter Yolle Founder/Chief Policy Officer [END OF SIGNATURES] Watersmart Software, Inc. Page 3 ) AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT WITH WATERSMART SOFTWARE, INC. FOR WATER EFFICIENCY PILOT THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 10th day of March, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and WATERSMART SOFTWARE, INC., a Delaware corporation ("Consultant"), whose address is 20 California Street, Suite 200, San Francisco, California 94111, and is made with reference to the following: RECITALS A. On February 8, 2012, City and Consultant entered into a Professional Services Agreement ("Agreement") for a pilot project to provide certain services, including preparing reports to be included with consumer water bills and online interfaces for consumers and City to access, which are intended to facilitate education of and communication with consumers regarding water use efficiency, improve City's understanding of water use by consumers, and reduce annual water demand. ("Project"). B. On May 15, 2013, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to reflect additional services not previously included in the Agreement and to increase the total compensation. C. City desires to enter into this Amendment No. Two to extend the term of the Agreement to June 30, 2015 to reflect additional services not previously included in the Agreement, and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2015, unless terminated earlier as set forth herein." 2. COMPENSATION TO CONSULTANT Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a fixed fee basis, with supplemental specialized consulting services (such as rate structure analysis, budget based billing, and advanced water use analysis) available to City as "Extra Work" (as defined in Section 4.4) on a time and expense not to exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Fifty Thousand Dollars and 001100 ($50,000.00) Watersmart Software, Inc. Page 1 without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for Services to be performed in accordance with this Amendment No. Two, including all reimbursable items and subconsultant fees, in an amount not to exceed Twenty Thousand Dollars and 001100 ($20,000.00). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Watersmart Software, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RNEY'S OFFICE Date: 2 It 5_ DM --- By: Aaron C. Harp CAM u7-12-ull S' City Attorney ATTEST: Date: By: ap� 4 - Leilani I. Brown City Clerk `cr Foa% CITY OF NEWPORT BEACH, a California municipal corporation Date: By: David A. Webb Public Works Director CONSULTANT: Watersmart Software, Inc., a Delaware corporation Date: By: Signed in Counterpart Robin Gilthorpe Chief Executive Officer Date: By: Signed in Counterpart Peter Yolles Founder / Chief Policy Officer [END OF SIGNATURES] Watersmart Software, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: I *L -- By: Aaron C. Harp CA&A a7-1ZUj i S— City Attorney CITY OF NEWPORT BEACH, a California municipal corporation Date: Bv: David A. Webb Public Works Director ATTEST: CONSULTANT: Watersmart Software, Date: Inc., a D 1 ware corpporation Date: wkr d, 4?,. 4S By: By: elfj��' V V Leilani I. Brown Robin Gilt City Clerk Chief Executive Officer Date: nll" . ti ► {1 S By: Z9, Peter Yolle Founder / Chief Policy Officer [END OF SIGNATURES] Watersmart Software, Inc. Page 3 N AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH WATERSMART SOFTWARE, INC. FOR FOR WATER EFFICIENCY PILOT THIS AMENDMENT NO. ONE TO AGREEMENT FOR PROFESSIONAL SERVICES ("Amendment No. One") is made and entered into as of this -16�jday of MAI Jaftuapy, 2013 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ("City"), and WATERSMART SOFTWARE, INC., a Delaware corporation ("Consultant"), whose address is 625 Second Street, Suite 280, San Francisco, CA 94107 and is made with reference to the following: RECITALS A. On February 8, 2012, City and Consultant entered into a Professional Services Agreement ("Agreement") to prepare reports to be included with consumer water bills and online interfaces that provide education and communication regarding efficient water usage, analyze water usage, and reduce annual water demand ("Project"), B. City desires to enter into this Amendment No. One to reflect additional services not included in the Agreement and to increase the total compensation. C. City and Consultant mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Work, attached hereto as Exhibit A-1 and incorporated herein by reference ("Services" or "Work"). The City may elect to delete certain Services within the Scope of Work at its sole discretion. 2. COMPENSATION TO CONSULTANT Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a fixed fee basis, with supplemental specialized consulting services (such as rate structure analysis, budget based billing, and advanced water use analysis) available to City as "Extra Work" (as defined in Section 4.4) on a time and expense not to exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and supplemented by Exhibit A-1, all incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Thirty Thousand Dollars and 00/100 ($30,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OF TH� CITY ATTORNEY Date: I/IZ li • � ■CJ1Q' City Attorney ATTEST: Date: By: Leilani I. Brown City Clerl CITY OF NEWPORT BEACH, A Californiy municipal corporation Date: Director CONSULTANT: WATERSMART SOFTWARE, INC., a Delaware Corporation Date: 7(j f76 Q— By: - f, Rob Steiner Co -Founder Date: / /i9`/Z By: Peter Yolles Chief Executive Officer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Intellectual Property Addendum WaterSmart Software, Inc. Page 14 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE (-'v Aaron C -Har City Attorney ATTEST: � 7 Date: By:_ Y Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporat Date: ' /"/ �� 13 Da`vld A. Webb' Public Works Director CONSULTANT: WATERSMART SOFTWARE, INC., a Delaware corporate n Date: PC 13 By: P A)-- _ Rob-Steinet Ce -Founder" C / o Date: Z� l /-T By: /� L ` f — Peter Yolles Chief Executive Officer [END OF SIGNATURES] Attachments: Exhibit A-1 – Scope of Work WATERSMART SOFTWARE, INC. Page 2 EXHIBIT A-1 SCOPE OF WORK SMARTWATER, INC. Page A-1 \ ~2« »� ` WaterSmart Jut, ,,. I « !,: Wa e Sma !Soft»a X52011- 014 Nome Water Report / Customer Engagement Services frthe City ofNewport Beach WaterSmart Software 1550 G Tiburon Blvd. #604 Tiburon, CA 94920 (415)789-6061 www. WaterSmartSoftware.com Table of Contents I. Program Summary t] II. WaterSmart Program Details ...... .............. ....................... ..... ........ ........ ....... --- ........ ,............... 5 A. Set Up: (Completed).................................................................................................................... 5 B. Customer Support, Training and Program Management: C. Email Home Water Reports and Consumer Web Portal..., D. Water Efficiency Dashboard (Utility -Facing) E: Customer Insight Survey.. ...................................... III. Budget and Payment Terms ..................................... Exhibit A — Email Home Water Report............................................................ Exhibit B — "WaterInsight" Customer Web Portal Exhibit C — Welcome Letter .......................................... Exhibit D — Water Efficiency Dashboard Exhibit E — Customer Insight Survey..................................................................................... 20 ExhibitF — Annual Reporting................................................................................................... 21 WaterSmart Software's 2013-2014 Home Water Report Page 2 f Customer Engagement Services for the City of Newport Beach I. Program Summary The City of Newport Beach (the "City") and WaterSmart Software ("WaterSmart") successfully have been operating a pilot project to promote water conservation, decrease runoff and increase participation in the City's water efficiency programs. To accomplish these goals, WaterSmart and the City have delivered Water Reports and the online Consumer Portal to residents and have launched a Water Efficiency Dashboard for Utility staff. The City requested a proposal to continue service to the original 2,000 accounts in the Big Canyon area of the city and expand the WaterSmart customer engagement platform to additional residential customers, particularly in the Corona del Mar area. WaterSmart anticipates achieving similar reductions in water use in the additional homes, enabling the City of Newport Beach to maintain water conservation levels and improve customer communication and satisfaction. WaterSmart proposes to continue and expand the Program beginning July 1, 2013 through June 30, 2014. This scope of work details the elements of the expansion. WaterSmart Program Summary: • Dates of Service: July 1, 2013 through June 30, 2014, with two optional one- year renewal periods. Should the City elect both optional years, Service would end June 30, 2016. Accounts Involved: 5,000 single-family residences, located in Big Canyon, Corona del Mar/Balboa and adjacent areas, automatically will be included in the Program. Up to 500 more "bonus" households from throughout the City of Newport Beach service area may choose to opt -in, by following links from the City's website or other marketing vehicles. WaterSmart Program Elements (detailed descriptions follow): o Set Up: Completed o Customer Support Training and Program Management: Training has been completed. Ongoing customer support and program management will be provided. o Home Water Reports: Home Water Reports include water use comparisons, personalized recommendations and consumer offers and promotions. City events and city -specific rebates are included. All homes listed above, including those who opt -in, will get Home Water Reports via email. o "WaterInsight" Customer Web Portal: The portal provides users with historical water use information, comparisons to similar households, personalized recommendations of most significant ways to save water and the ability to build a water -saving plan. The portal will be available to all homes listed above. WaterSmart Software's 2013-2014 Home Water Report Page 3 / Customer Engagement Services for the City of Newport Beach o Customer Insight Survey: The survey is used to collect demographic and household -level information, and to establish baseline water knowledge, behaviors and saturation rates of water efficient fixtures. The survey will be made available to those customers who opt -in, as well as to households in Corona del Mar/Balboa areas who did not complete the initial survey in February 2012. o Utility Dashboard: The dashboard allows the City to view and support individual customers, as well as access analytics of aggregate information and maps. All accounts in the City, if included in the monthly data exports, will be viewable in the dashboard. Frequency and Delivery Method: The Portal and Dashboard will be updated monthly with consumption data provided by the City and will be available via any Internet -connected web browser. The Home Water Reports will be delivered bi-monthly, via email. WaterSmart Software looks forward to continuing our successful partnership with the City of Newport Beach. WaterSmart Software's 2013-2014 Home Water Report Page 4 / Customer Engagement Services for the City of Newport Beach II. WaterSmart Program Details A. Set tap: (Completed) Set Up has been completed. Set Up includes: Up to 1 month (160 hours) of WaterSmart Engineering and Customer Support hours • Program Design, Cohort Methodology • Launch the Web -based portal with the City's branding • Integrate and verify the accuracy of the City's historical water use and residence data • Create utility -specific rebate or water efficiency tips. • Homeowner Insight Survey to establish baseline beliefs, behaviors and saturation rates of water efficient fixtures in the City. A2. Additional Services: (additional fees will apply) Independent Evaluation. WaterSmart could contract with an independent third -party water consultancy to evaluate, measure and verify the Program results. Project would be priced under a separate cover. Additional Information. The City may direct WaterSmart to add other information to the database, including, but not limited to: home water audits; prior survey results; parcel, geospatial or remote sensing information; or other relevant data. Longitudinal Surveys. Subsequent consumer behavior surveys in later years could be implemented to evaluate the treatment effects of the Program including changes in education, attitudes, awareness and customer satisfaction. Y Survey customization. Time spent on customization beyond the standard WaterSmart Survey will be charged at $1000/day. B. Customer Support, Training and Program Management: At the start of the Program, WaterSmart will provide in-person training at the City's office to orient staff with WaterSmart's Home Water Reports and Web -based applications. To minimize any disruption to normal customer WaterSmart Software's 2013-2014 Home Water Report Page 5 / Customer Engagement Services for the City of Newport Beach service responsibilities, the City may request WaterSmart split the training into dual sessions to accommodate all staff. WaterSmart may provide customer service staff with training handouts and a Fact Sheet for reference. (Completed) • The training will include more detailed information about the use of the Utility Dashboard for Conservation Management staff. (Completed) • Monthly meetings between WaterSmart project manager and City staff. One hour of preparation and one hour of meeting time is included per month. Meetings will be on-site (quarterly) or via phone/webinar (intervening months). • Ad hoc phone / email support of City staff, up to 5 hours per month. • Any additional meetings and staff training requested by the City will be billed at an hourly rate of $125 per hour plus travel time and expenses. Reporting of Program Accomplishments: During quarterly meetings, WaterSmart and the City will review results and discuss Program iteration to optimize conservation gains. Results may include: • Customer Insight Survey Results • Conservation Gains (beginning six months after program launch, compared to non -participants) • Engagement Rates (calls, online registration, program participation rates) • Comparative Results: Based on consumption levels, WaterScore, promotional options, A/B test of messaging and other differentiating factors Annually, if not more frequently, WaterSmart will report on items such as: • Conservation Gains, comparing participants to non -participants, including p -values and 95% confidence intervals • Disaggregation of conservation gains based on program participation, lot size, conditional subject lines, consumption patterns and/or additional factors that may be significant. • Reporting of overall water savings • Recommendations based on observations from other utility implementations • Most popular actions taken on portal and correlation with consumption changes. • Return on Investment, based on factors and inputs selected and provided by the City Exhibit F shows samples from these annual reports. WaterSmart Software's 2013-2014 Home Water Report Page 6 / Customer Engagement Services for the City of Newport Beach In addition to the reporting of program accomplishments listed above, quarterly meetings may include reviews of: • Feedback from the City's customer service team • Feedback from outbound calls that WaterSmart may make to residents, with the City's authorization, to gather Program feedback • Potential new City programs and resulting content changes • City programs that have lower than desired participation rates, and a discussion of barriers that could be addressed through messaging • Potential content changes to recommendations or promotional contents to optimize results C. Email Home Water Reports and Consumer Web Portal Email Home Water Reports include: • Bi -monthly distribution to coincide with the City's regular billing schedule, for a total of six (6) times per year • Introductory "Welcome" letter sent via email to all new accounts that will receive email Home Water Reports, preferably on the Mayor's letterhead • Use of WaterSmart templates and the City's logo The Home Water Reports will contain, at minimum, the following content: • Monthly Household water consumption based on meter read data • WaterScore and ranking, based on Gallons Per Capita per Day (GPCD) or Gallons per Day (GPD) • Consumption comparisons to users with similar occupancy, home type, and/or lot size • Consumption comparison to the user's own historic consumption • Personalized water saving recommendations based on the household's water use profile, historical consumption patterns, and any additional methods mutually defined by the City and WaterSmart • URL link to the Customer Portal Mobile Messaging: -Over the course of the Program, WaterSmart may implement mobile messaging and/or other forms of content delivery to customers, Such messaging may include weather alerts, event reminders, consumption -related messages, targeted promotional material or other content mutually agreed upon by the City and WaterSmart. Exhibit A displays a sample of the Home Water Reports. WaterSmart Software's 2013-2014 Home Water Report Page 7 / Customer Engagement Services for the City of Newport Beach The Consumer Web Portal provides residents with: • Interactive graphs displaying historical water use • Consumption comparisons to water users with similar profiles such as occupancy, home type and yard size • Personalized recommendations of water and money saving actions • Listing of rebates and incentives, if available Residents will log in to the portal using their NBID and Account Numbers. The Portal will provide residents with: • A personalized view of the most significant actions each household can take to save water, the potential water and money savings that would result, and a list of steps to implement such actions • A WaterScore and ranking, based on Gallons Per Day or Gallons Per Capita per Day (GPCD) • Consumption comparisons to users with similar attributes such as occupancy, home type, and lot size • Historical, seasonal water use graph and comparisons • A pie chart estimating the household's end use of water • Monthly household water consumption based on meter read data • The full list of the City's incentive / rebate programs and water efficiency tips, with ranking and sorting capabilities • Conservation program sign-up or request capability Exhibit B displays images from the Portal. Implementation Tasks: The Portal and Home Water Reports already have been implemented for the City's Big Canyon customers and the format will be retained for the new customers. Consumption data for all accounts already is online. The email versions of the welcome letter and the survey also already have been developed. Therefore, to initiate service to the new users, WaterSmart will do the following: 1. Continue to import consumption data on a monthly basis. 2. Import updated list of email addresses from the City, if available. 3. Conduct verification of email address domains, to screen out invalid domains. 4. Confirm initial set of 5,000 accounts, including the Big Canyon residents and adding in new accounts, starting with those in Corona del Mar and Balboa, until a set of 5,000 is identified. 5. WaterSmart will assign new accounts to the appropriate cohort groups (groups of comparable residences), based on occupancy and irrigable area. WaterSmart Software's 2013-2014 Home Water Report Page 8 / Customer Engagement Services for the City of Newport Beach 6. WaterSmart will assign accounts not identified as part of the initial group of 5,000 homes to a "potential opt -in" group, to identify users who do opt -in from this group. 7. Send email welcome letter, portal invitation and survey invitation to accounts, within the group of 5,000, which are new to the program. 8. Identify bounced emails after the welcome letter has been sent, and replace with additional email addresses, to restore 5,000 total. 9. Provide link text for the City's website, linking to the Portal and online survey. 10. Send bi-monthly Home Water Reports, by email, to all 5,000 homes. 11. Track total number of accounts that are signed up to receive Home Water Reports, including those who opt -in, and alert the City if the total is approaching the 10% bonus limit. 12. WaterSmart will continue to update, quarterly, the Portal and Home Water Report content to reflect new rebates and new events, as provided by the City, as well as to import new program participation data reports, quarterly, if provided. Exhibit C contains the current version of the welcome letter. D. Water Efficiency Dashboard (Utility -Facing) Dashboard users will have access to every residential account within the City's service area. Exhibit D displays an image of the Customer Support page of the Dashboard. The Dashboard will initially provide, at a minimum, the following features: • Household occupancy estimates and editing functionality • Email address capture • Ability to view every household's Customer Portal and current and prior Home Water Reports • Downloaded data files in appropriate format (i.e. Excel) • Interactive map displaying, at a minimum, all households enrolled in the Program • Top 200 households with the highest consumption per billing period • Top 200 households with the highest annual consumption • Reports of program participation tied to consumption data • Additional Program analytics and reports City staff may request WaterSmart build up to two (2) new custom reports to analyze, measure or evaluate the Program. Additional customization for engineering and user design will be charged at $2000 per day. WaterSmart Software's 2013-2014 Home Water Report Page 9 / Customer Engagement Services for the City of Newport Beach These professional services included: • Monthly data processing for every residential account • Sample Home Water Reports emailed to Utility staff • Access to Consumer Web Portal enabling City staff to view account information for all individual customers. • Record of all Home Water Reports sent to each individual household Additional professional services requested, above those included, will be billed at a rate of $125 per hour. E: Customer Insight Survey Prior to the delivery of the first Home Water Report, WaterSmart recommends sending an introductory "Welcome' letter and a Customer Insight Survey to newly enrolled households to collect demographic information and establish baseline attitudes, behaviors and saturation rates of water efficient fixtures. WaterSmart tabulates and analyzes results, which then are reviewed with the City. Individual results are stored in the WaterSmart's database for the City and are fully accessible at any time. Results are utilized by WaterSmart's Recommendation Engine to generate targeted customer recommendations. Aggregate results are used to identify awareness levels, saturation rates and program priorities. Exhibit E displays the current survey. III. Budget and Payment Terms WaterSmart desires to further develop the partnership with the City of Newport Beach. If the City selects an expansion and continuation of the program, WaterSmart expects to incorporate this Scope of Work into the existing Professional Services Agreement with the City in January 2013 with a launch of the expanded program in July 2013. The program will begin with a welcome letter to new homes in early July 2013, with first Home Water Report emailed to new homes in the second half of July 2013, and continuing bi-monthly thereafter. WaterSmart Software's 2013-2014 Home Water Report Page 10 / Customer Engagement Services for the City of Newport Beach Summary of Total Annual Budget Please contact Peter Yolles with any questions or comments at 1eterPwatersmartsoftware.com or (415) 789-6061. Payment Payment will be billed in in o ,eq�quarterly payments of $5,000, due at the beginning of the fiscal.quarter, net 30 Th'e-first payment is due July 1, 2013. Remaining paymen dates are October 1, 2013; 1, 2014; and April 1, 2014. WaterSmart Software's 2013-2014 Home Water Report Page 11 / Customer Engagement Services for the City of Newport Beach Offered Components Big Canyon & 12,500 Homes Corona del Mar:` '; (All Newport 5,000 Homes. Beach homes w/ (Constant 5,000, email addresses) backfill bi- monthly) A. Set Up Completed Completed B. - Customer Support and Trainin Completed Completed C. • = Consumer Web Portal, Incl. Incl. • ' Six (6) Email Home Water Reports per Year, and • Online surveys / Email Welcome Letter for Corona del Mar homes D. Water Efficiency Dashboard Incl. Incl. (Utility -Facing, All Accounts E. Opt -In Capability (if exceeds 10%, Incl. Incl. have right to cap.) Total (Digital Onl $20,000 $50,000 Optional Services F. Print Home Water Reports: $8.10 per home annually, 6x G. I Print Surveys: $2.00 per home Please contact Peter Yolles with any questions or comments at 1eterPwatersmartsoftware.com or (415) 789-6061. Payment Payment will be billed in in o ,eq�quarterly payments of $5,000, due at the beginning of the fiscal.quarter, net 30 Th'e-first payment is due July 1, 2013. Remaining paymen dates are October 1, 2013; 1, 2014; and April 1, 2014. WaterSmart Software's 2013-2014 Home Water Report Page 11 / Customer Engagement Services for the City of Newport Beach Exhibits Exhibit A _-- ErttaH Horne Water Report ,,.Set RM Rt?L-ase s> Home Water Report ' This report is not a bill. 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N rogo a ,. , Yqp"Mansay Mlmn p F 'vara: a t a ..,, ITS N too ,_p to 9,0 Q g3f8exai5 tt l rasa' t n op a !IN r: it, tarty. Slart t Aralni7i t day. year flivQrite irfattt7 Check now. Save all wm`eri WaterSmart Software's 2013-2014 Home Water Report Page 13 / Customer Engagement Services for the City of Newport Beach Where Does the AVEragia Home Use MtCl'? More Messages from Your CAY: online Bill Pay: it parr tzvtr't vrsre paVde�x fr y%ur wane, bdl, mr% ad r,,U tv Sigr LP 'CC,,Jy. t,,� erril ir ,r 3s,cr,� tre FdWau pr-: ,,iam, Contact Us: (94911 644,3050 or be. water sm artnewN oort org ............ riesace AarFent tc, rt av a b r--, frfn the Ct',i Cf tw,,V�P�ft Bead', JIMMO, M!,,,pctt Nawp�rt CA ir c?zer tta pia. W,V, a:CL,' a,;Atx usi Fkna-,aadd Lnrvol ? t B,,�, a, d . N_,,mv t yc es� f,� arrv�� ccpyngpl, 2x 12 ,Vatersnart Ad WaterSmart Software's 2013-2014 Home Water Report Page 14 Customer Engagement Services for the City of Newport Beach Image 4: Portal Track Your Usage Page Excerpt w City of w�coms lane g I') Homo *,A WwpTo Saw a. rrj MyActbrm comparing Your Use tune&MY { ' y 6Wi��� sn Eiticlenirr+e � AIV � � 11 938 uPJ �� � ' � ean�waNaatrana"Yasxwaxm t+tu�wMe ^Y«'xt Pifzrev"rtmMJx Y� 1U6oXn 1tYitt S4RTZWvv1 tP }-MiS3'.Nu'4" NnMN+LYt%%' is;fi Rdtk ;n',ls iu w., :i6 r .i }ri""eAY591GM } ` hCJrylpyl: Y� 4 {. ikta,�61 `n�srs..i Camparnrg Yaut Use, fast T3 Months Sew"U3eardjrfigan4 ¢,'s +w:.'�.sirssm mace zr>ra ximmr� movrUatiy. A.�eta $q'}. mi`^�""�" },yrtLdSRl�x'niV9Sa.:F}XµY4Yli 1d.YG A6 Nil bl'C 9hYl5v'MK`fV,t@ of 1 w( �1 zPue< 6 M `>#P hMi eAa NUY Ai Broaking Down Your Use,, Last 12 Months Watchyowsh"ers 'tf.X`fiJpyV 113W i4MPHW'AFL Z`"$ViIiLYJIfz}{M'A m� w.aa9Lf w.vma+� 1�� tcN xx n`9.rntM %�5xrie,� t m,��xhsu ,�a.�.Ah ate, man m..�eK ��` Y,ws:m rvemwad F^$� �ya%:yy,yP tFr�sfaetaa�a��swzi tae }�R.hW, AeYCSJi Yi�a $v4i lT Yt 'hi+S� WaterSmart Software's 2013-2014 Home Water Report Page 17 / Customer Engagement Services for the City of Newport Beach Exhibit C — Welcome Letter, �YW1� Tv`t� r, 0, , g d City of Newport Bea r; t a i }3 port 3300 NewBlvd. til gs` Newport Beach, CA 92663 <x. '�L"e4FpA��pe'� To: Name Account Number: NBID: ###### Congratulations! You've Berm Selected To Participate In The City OtNewport Beach's WaterSmart Program To Help You Learn More About Your Water Dse and How You Can Save Water and Money. Get Started with a Short Survey What Fit31 Get: Each billing Ferried, you'll receives personalized Hone Water Report by email, including • Easy to understand graphs and chaos showing your •L^- ^ ".. j i` householdwateruse; • Information about how you compare to similar households, r help into to put your water use perspective; and • Customized recommendations about ways your household can save water and money, Why Should You Care About Water hit UAu cy? When you are efficient with the water you use, you • Save money on your water bill; • Help the City reduce the cost of water, which results in further savings for you; • Protect the health ofout water supply and oar local water sources; and • Reduce mroffcaused by over -irrigation, directly benefiting the bay and ocean. .....1 r --11,6 What's Next? Your participation begins with a quick survey that will help us provide wilomd recommendations of water use and potential rebates for vow household. Complete the survey online, at http7//5urveg watersmartnewpoi t.org, by July 22, 2013. Ready to see your first Home Water Report now? Login to httpNlbe.watersmartnewport,org Click on Find My Account to get started. Thank you for being Water Smart Newport! Sincerely, Shane Bnwkie Water Conservation Coordinator City of Newport Beach 949-644-3214 1 sburckle(a?newpnrtbeaelmagov Watel-Smart Software's 2013-2014 Home Water Report Page 18 j Customer Engagement Services for the City of Newport Beach Exhibit D --- Water Eff 6ericy Dashboard Water Efficiency Dashboard Customer A�mrt 02 1040 r D. 7457 AGGER AVE Cotatl, Ck 94931 5111 F c+tk+A_4MwYt M IWIS As istmdo Cedes: °,.il"ozk Water5core: Take Action (Oct 17, 2011) srAalarrcF tuet,7`uxrn a" •. .n:a�-sti'asru- s a VNIM NIXIX� WA i PH 6t4,�s f��) Used last &ii)emy Period Portal User iut Name 4oe l"ma11 A11'&' dEmaP.smart.eml Ph. Nsawbar 7457 A1DERAVE Tarns aald CmMltiaux Vet Created date 4111912011 03:07 Mt tact Update 43P10t2011 01.51 Mt Active Yes Residence Profile Customer pilot �t,�, Ad&*ss 7457 A1DERAVE Azcamrt Nxmbcc CY2f644 /Esnafl instai.4 Fawcet AemteR Last B111Amount 54334 usage 52.0¢h7 ta.[sarts Number aOccupams 2(Pmvided by 01—p.rt). Residence Type AMWi gcxm Sq. Feet 780 Notifications Alerts Ths castearerka. rq ai.gs Consumption History m,tonmt Usage Nmghber Cemp.r,.n a 1 0 !'.tX Program Participation ",.. Incoming Messages WaterSmart Software's 2013-2014 Home Water Report Page 19 / Customer Engagement Services for the City of Newport Beach dieg.Est an Imdapr Writer.. USE MSi531'P_RL instai.4 Fawcet AemteR �S T1 . r Contact History G. 2 n4.. W_ "L ,s a, � .,a„a, 2111M M, IX1t[cmPr tqt im (rz1f history' a T ",.. Incoming Messages WaterSmart Software's 2013-2014 Home Water Report Page 19 / Customer Engagement Services for the City of Newport Beach CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 4/19/13 Dept./Contact Received From: Lucie Date Completed: 5/14/13 Sent to: Lucie By: Chris/Renee Company/Person required to have certificate: WaterStnart Software, Inc Type of contract: All Other L GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 5/17/13-5/17/14 _ A. INSURANCE COMPANY: Hartford Casualty Ins Co B. AM BEST RATING (A-: VII or greater): A:XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? N Yes ❑ No D. LIMITS (Must be $1M or greater): What is limit provided? 2,000,OOOi4,000,000 E. ADDITIONAL INSURED ENDORSEMENT — please attach N Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must (What is limits provided?) include): Is it included? (completed Operations status does F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND G. HIRED AND NON -OWNED AUTO ONLY: COMPLETED OPERATIONS ENDORSEMENT (completed H. NOTICE OF CANCELLATION: Operations status does not apply to Waste Haulers) N Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? N Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): N NIA ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A N Yes [] No 11. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 5/17/13-5/17/14_ A. INSURANCE COMPANY: Hartford Casualty Ins Co B. AM BEST RATING (A-: VII or greater) A:X_V C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? N Yes © No D. LIMITS - If Employees (Must be $1M min. Bt & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? 2,000,000 E. LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): N N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A N Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A N Yes ❑ No OL VVORKERS'CVMPEW3/T|DN EFFECTIVE/EXPIRATION DATE: 7/1/121o7/1/13 A. INSURANCE COMPANY: National Union Firelu Coof Pittsburg %k ---- D. AMBEST RATING (A,:VII orQrom$er): C. ADMITTED Company (Must hoCalifornia Admi8ed): ZYeu F-1 No D. VVDRKERS'COMPEMS/T)ONL)M|T: Ota$^m|y XYeu El No E. EMPLOYERS' LIABILITY LIMIT (Must be$IKXnrgreater) F. WAIVER <)FSUBROGATION (To ino|ude):isitincluded? 0Yos El No G. SIGNED VVORKER8'COMPEN8/T|0NEXEMPTION FORM: XN/A ElYes F7No H. NOTICE OFCANCELLATION: F7N/A 0Yes FlNn ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED D/. PROFESSIONAL LIABILITY V POLLUTION LIABILITY Y BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? 5/I4/I3 Agent nf/Ulian1 InsuranceServices ��—Date Broker of record for the City of Newport Beach M N/A El Yes El No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than ; Self Insured Retention or Deductible greater than $—) El N/A El Yes El No Reason for Risk Management appnzvaKexnoptinn/wmiver: Approved: Risk Management Date PROFESSIONAL SERVICES AGREEMENT WITH WATERSMART SOFTWARE, INC. FOR WATER EFFICIENCY PILOT THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made G and entered into as of this n i n day of V N , 2012 by and between the CITY OF NEWPORT BEACH, a California Municipal ,Corporation ("City"), and WaterSmart Software, Inc., a Delaware corporation ("Consultant"), whose address is 625 Second Street, Suite 280, San Francisco, CA 94107, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is undertaking various public outreach efforts to improve water use efficiency by consumers. C. City desires to engage Consultant in a pilot project to provide certain services, including preparing reports to be included with consumer water bills and online interfaces for consumers and City to access, which are intended to facilitate education of and communication with consumers regarding water use efficiency, improve City's understanding of water use by consumers, and reduce annual water demand ("Project"). Upon completion of the Project the parties anticipate having discussions regarding rollout of Consultant's services to all consumers served by City under a long term contract to be negotiated by Consultant and City. D. Consultant possesses the skill, experience, ability, background, and knowledge to provide the services described in this Agreement. E. The principal representative of Consultant for purposes of this Project shall be Rob Steiner. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: i 9:4 V0iI The term of this Agreement shall commence on the above written date, and shall terminate on December 31, 2014 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Work" or "Services"), and shall fulfill its responsibilities specified as "Mutual Responsibilities' on Exhibit A. City shall fulfill its responsibilities specified as "City Responsibilities" and/or "Mutual Responsibilities" on Exhibit A. The City may elect to delete certain tasks of the Scope of Services at its sole discretion, but will confer with Consultant prior to deleting tasks which would reduce Consultant's compensation. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the Services in a diligent and timely manner may result in termination of this Agreement by City. The parties will cooperate in good faith, and as reasonably necessary with third parties, to meet agreed upon or targeted schedules. In addition to requiring diligent efforts and planning by both parties, this requires City to respond promptly to Consultant's requests for inputs, decisions, and acceptance of deliverables in view of agreed upon or targeted schedules. 3.1.1 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control, including without limitation City's delay in providing requested approvals and data for Consultant's performance of Services. However, in the case of any such delay relating to the Services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.2 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.3 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, email (addressed to the email address of City's Project Administrator), fax, hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a fixed fee basis, with supplemental specialized consulting services (such as rate structure analysis, budget based billing, and advanced water use analysis) available to City as "Extra Work" (as defined in Section 4.4) on a time and expense not to exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed $10,000.00 (ten thousand dollars) without prior WaterSmart Software, Inc. Page 2 written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall timely submit invoices to City describing the applicable Work performed in accordance with Exhibit B. Consultant's bills shall include a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of an invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: 4.3.1 The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. 4.3.2 Approved reproduction charges. 4.3.3 Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Rob Steiner to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A without the prior written consent of City. City's approval shall not be unreasonably withheld or delayed with respect to the removal or reassignment of personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant will furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. WaterSmart Software, Inc. Page 3 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Shane Burckle, Water Conservation Coordinator or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES 7.1 In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: 7.1.1 Provide access to, and upon request of Consultant, provide in an electronic format agreeable to both parties, with respect to Consultant's initial setup of the Services and each of City's billing cycles, one copy of all existing relevant information on file (in tangible or electronic format) at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. City shall be solely responsible for its own compliance with all applicable federal, state and local laws and regulations in connection with this Agreement. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to WaterSmart Software, Inc. Page 4 property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. WaterSmart Software, Inc. Page 5 14. INSURANCE 14.1 Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. 14.2 Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 14.2.1 Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants as further specified below. The cost of such insurance shall be included in Consultant's bid. 14.3 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 14.4 Coverage Requirements. 14.4.1 Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code, In addition, Consultant shall require each subconsultant performing Services in California to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. 14.4.1.1 Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. 14.4.1.2 Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. 14.5 General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per WaterSmart Software, Inc. Page 6 occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. 14.6 Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. 14.7 Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. 14.8 Other Insurance Provisions or Requirements. 14.8.1 The policies are to contain, or be endorsed to contain, the following provisions 14.8.1.1 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement (except professional liability coverage) shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants (for any insurance coverages required of subconsultants). 14.8.1.2 Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 14.8.1.3 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. 14.8.1.4 Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation or nonrenewal of coverage for each required coverage. 14.9 Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. WaterSmart Software, Inc. Page 7 14.10 Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City; Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power, or twenty- five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the Work outlined in the Scope of Services with prior notification to City. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City WaterSmart Software, Inc. Page 8 has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES With respect to all software, services, and deliverables which Consultant under this Agreement provides access to (other than "Documents" as specified above), the intellectual property provisions set forth in Exhibit C shall apply. 19. CONFIDENTIALITY All City confidential data and Reports that result from the Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information or release is required by law. Data pertaining to City and its consumers will be provided by City to Consultant to enable Consultant to provide the Services contemplated by this Agreement. Consultant may use and disclose to third parties any anonymous data (which is not personally identifiable or specifically identifiable to City) for any lawful purpose both during and after the term of this Agreement, including without limitation for product development, marketing, research and other purposes. Consultant's confidential information relating to Consultant's software, technology, intellectual property, methods, or business, and such information relating to third parties, which City may receive or have access to in connection with this Agreement, shall be kept confidential by City, used by City only with respect to implementation of this Agreement and shared only with its employees who need to know (subject to like confidentiality restrictions), and not released unless authorized by Consultant in writing or required by law. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 21. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. WaterSmart Software, Inc. Page 9 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES 26.1 All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and presumptively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: WaterSmart Software, Inc. Page 10 Attn: Shane Burckle Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949-644-3214 Fax: 949-270-8139 26.2 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Rob Steiner; Co -Founder WaterSmart Software, Inc. 625 Second Street, Suite 280 San Francisco, CA 94107 27. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in this Agreement ,the Consultant shall be required to file any claims the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 28. TERMINATION 28.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. STANDARD PROVISIONS 29.1 Compliance With all Laws WaterSmart Software, Inc. Page 11 Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29.2 Waiver A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29.3 Integrated Contract This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 29.4 Conflicts or Inconsistencies In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 29.5 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 29.6 Amendments This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 29.7 Severability If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 29.8 Controlling Law And Venue The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. WaterSmart Software, Inc. Page 12 29.9 Equal Opportunity Employment Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 29.10 No Attorney's Fees In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 29.11 Counterparts This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 29.12 Survival All provisions of this Agreement relating to warranties, confidentiality, proprietary rights, intellectual property rights, limitation of liability, indemnification and payment shall survive any termination or expiration of this Agreement. WaterSmart Software, Inc. Page 13 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT07NE�'S OFFICE Date: / 17 13 mo Aaron O: -Har City Attorney ATTEST: Date: 5• %� • �� : BY Leilani I. Brown City Clerk Attachments CITY OF NEWPORT BEACH, A California municipal corporate Date: 13 By. -'46 i David A. Web Public Works Director CONSULTANT: WATERSMART SOFTWARE, INC., a Delaware corporatiggn Date: j ", /" By: P4 Rob-Sfeirfff D-114 Ge-Fetx�de c r0 Date: // Zj- AT B/ y -r// e 4� Peter Yolles Chief Executive Officer [END OF SIGNATURES] Exhibit A-1 — Scope of Work WATERSMART SOFTWARE, INC. Page 2 EXHIBIT A EXHIBIT A SCOPE OF SERVICES BACKGROUND Water efficiency is an important priority for City. Consultant's mission is to help water utilities make it easier for their residential customers to conserve water. City desires to engage Consultant for a pilot project, which is referred to in the Agreement as the "Project". In the Project, Consultant would provide certain services to facilitate education of and communication with customers regarding water use efficiency, improve City's understanding of water use by customers, and reduce annual water demand. More specifically, Consultant would employ paper reports presented to customers during each billing cycle (generated from "WaterSmart Reports" (defined below)), as well as a web -based service referred to as the "WaterSmart SaaS" (defined below) which customers could access at their convenience. The WaterSmart Reports and WaterSmart SaaS may present customer -specific water use data, customized water saving recommendations, and possible opportunities for streamlined rebates, reward points and third party products and services which may improve water efficiency or provide other benefit. Consultant would also collect certain end customer data, such as the number of occupants at residential accounts, and make such data available to City to help plan additional water efficiency strategies. Consultant anticipates that deploying its solutions across all of City's customer connections can yield over time significant water use savings relative to current utilization levels, through a combination of end customer behavior changes and installation of additional water -saving fixtures and appliances. Consultant anticipates that potential benefits to City could include saving significant financial resources by avoiding or mitigating additional purchases of wholesale water supplies and/or possibly deferring or mitigating the need for development of local water supply projects and the capital expenditures and ongoing costs associated with those projects. Anticipated water savings and benefits are hypothesized but not guaranteed. Upon completion of the pilot Project the parties anticipate having discussions ' regarding rollout of Consultant's services to all consumers served by City under a long term contract to be negotiated by Consultant and City. 11. CONTRACTED SERVICES A. Background. The parties plan for each "Consumer' (defined below) to receive by mail a customized billing report with each regular bill or in a related mailing, which is anticipated to motivate many Consumers to go online to access the SaaS Services which are described as follows. B. SaaS Services. Consultant will provide certain end customers and employees of City with access to a web -based application with the functionality, design, and web links as initially specified by Appendix A-1, including without limitation distinct specifications for a manager dashboard viewable only by employees of City (collectively the "WaterSmart SaaS"). Access to WaterSmart SaaS is limited to authorized users which City notifies Consultant of in advance and in writing (collectively, "Authorized WaterSmart —City of Newport Beach - PSA Users"). End customer Authorized Users are referred to herein as "Consumers"; and Consumers will be required to agree to Consultant's then current `Terms of Use" and "Privacy Policy" posted on Consultant's commercial web site to access the WaterSmart SaaS. City employee Authorized Users are referred to herein as "Employees". Consultant will maintain commercially reasonable systems and controls designed to maximize monthly uptime and minimize unscheduled outages of the Watersmart SaaS. Consultant shall use commercially reasonable efforts to provide City with access to "City Data" (defined on Exhibit C) maintained by City in the WaterSmart SaaS, on a continuous basis, excluding any down time for maintenance and/or upgrades. Consultant will provide advance notification of any planned outages. Consultant will notify City without unreasonable delay if it detects or receives actual notice of any material problems relating to City Data or web -based services provided hereunder. City agrees that Consultant shall have the right, but not the obligation, to monitor and access all content on the WaterSmart SaaS in order to provide ongoing application support and upgrades. C. Water Report Services. Consultant will provide City, for each of City's bi-monthly billing cycles, with an electronic file (in appropriate electronic file format) for City to disaggregate and produce customized billing reports to either include with each Consumer's regular bill or separately transmit to each Consumer. The electronic file shall be referred to as the "WaterSmart Report". The initial WaterSmart Report will include the content and have the design specified by Appendix A-2. Each WaterSmart Report shall be provided to City within 14 business days of Consultant's receipt of all Consumer data files from City in connection with each City billing cycle. D. Setup Services for WaterSmart SaaS and WaterSmart Reports; Modifications. Consultant will make diligent efforts to initially customize WaterSmart SaaS and WaterSmart Reports as specified by Appendix A-1 and A-2, respectively, and integrate City Data sets made available by City with Consultant databases. Consultant reserves the right and intends to modify the WaterSmart SaaS and WaterSmart Reports thereafter with the aim of improving efficacy and Consumer metrics, and may alter the manner in which it offers these services or any part, element, section, feature, function, or portion of these services. With respect to significant modifications, Consultant will provide reasonable advance notification to City via email. E. Reporting Services. Consultant will make available to City on a periodic basis standard reports which can be generated automatically by the WaterSmart SaaS. F. Training Services. Consultant will provide a standard training session at City's offices for the purposes of orienting City employees involved in the Project with WaterSmart SaaS and/or WaterSmart Reports. G. Third Party Offerings. Consultant will provide opportunities for Consumers to receive special offers for rebates or discounts on products and services available from third parties having relationships with City and/or Consultant. Such products and services may improve water efficiency and further objectives of the Project or otherwise offer some benefit to Consumers, and could include without limitation local businesses within City's service territory. Such opportunities may be presented to WaterSmart—City of Newport Beach - PSA Consumers via the WaterSmart SaaS, WaterSmart Reports, or via other channels which Consultant and City may mutually agree upon. H. Defects. In the event that the WaterSmart SaaS fails to meet the requirements of Appendix A-1, or the WaterSmart Reports fail to meet the requirements of Appendix A-2, (each a "Defect', respectively), City shall promptly notify Consultant and Consultant shall promptly correct any Defect or substitute services, software, or products to achieve the functionality and benefits originally intended. IF CONSULTANT MAKES SUCH CORRECTION OR SUBSTITUTION, THIS SHALL BE CITY'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY SUCH DEFECT(S) AND CONSULTANT SHALL HAVE NO FURTHER LIABILITY WITH RESPECT TO SAID DEFECT(S). I. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, CONSULTANT MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING ANY SERVICES, SOFTWARE, DELIVERABLES, MARKS, OR DATA. CONSULTANT MAKES NO WARRANTY REGARDING MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR ERROR -FREE OPERATION. ALL WARRANTIES NOT STATED IN THE AGREEMENT ARE DISCLAIMED. Notwithstanding anything to the contrary, City understands and agrees that City's use of Consultant's Services provided online may be interrupted by circumstances beyond Consultant's reasonable control involving third parties, including without limitation computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Consultant's possession or direct control, and network intrusions or denial of service attacks (collectively, "Third Party Acts"). Consultant shall not be responsible or otherwise liable for any Third Party Acts, including, without limitation, any delays, failures, or security breaches and damages resulting from or due to any Third Party Acts. However, in the case of any Third Party Act which will delay or prevent Consultant from providing online services to City, Consultant will promptly notify City and assist in mitigating any impact. III. CITY RESPONSIBILITIES A. City Obligations With Respect to SaaS Services. City agrees that in order for Consultant to provide the WaterSmart SaaS, and in order for City to access the WaterSmart SaaS, City must: (i) Timely provide all customer and water use data necessary, as requested by Consultant, including without limitation current and historical meter readings in a mutually agreeable format and frequency, to populate the web -based application. Initial data requirements are set forth on Appendix A-1. (ii) Install, maintain, and operate properly an appropriately configured computer system and connection to the Internet in order to connect to the WaterSmart SaaS. (iii) Select, protect, and maintain password(s) used to access the WaterSmart SaaS and City Data in accordance with Consultant's instructions and procedures. B. Restrictions on SaaS Services. The following restrictions shall apply with respect to use of the WaterSmart SaaS by City and its Authorized Users. City shall use the WaterSmart SaaS solely for its WaterSmart — City of Newport Beach - PSA internal business purposes as contemplated by this Agreement and shall not, and shall not allow any third party to, and shall not attempt to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the WaterSmart SaaS available (or grant any rights provided to City hereunder by Consultant in any form) to any third party; (ii) attempt to gain unauthorized access to the WaterSmart SaaS or its related systems or networks; (iii) attempt to gain unauthorized access to a third party's data or information; (iv) modify, copy or create derivative works based on the WaterSmart SaaS; (v) mirror any content forming part of the WaterSmart SaaS, other than on City's own intranets or otherwise for its own internal business purposes; (vi) reverse engineer the WaterSmart SaaS; (vii) access the WaterSmart SaaS in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the WaterSmart SaaS. C. City Obligations With Respect to WaterSmart Reports. City agrees that in order for Consultant to provide each WaterSmart Report, City must: (i) Timely provide all customer and water use data required above with respect to the WaterSmart SaaS, plus any additional necessary data as requested by Consultant, to populate the WaterSmart Report. Initial data requirements are set forth on Appendix A-2. (ii) Arrange and be fully responsible for the costs and fulfillment of printing, stuffing, and mailing the WaterSmart Report to City customers. D. Additional City Obligations Relating to WaterSmart SaaS And WaterSmart Reports. City agrees that in order for Consultant to provide the WaterSmart SaaS and/or WaterSmart Reports, in addition to fulfilling City's other obligations under the Agreement and above City must: (i) Provide sufficient staff time and resources to promote, manage and communicate with its customers about the WaterSmart SaaS and the WaterSmart Reports, including without limitation costs of press releases, public relations efforts and local advertising. (ii) Obtain all necessary consents and authorizations to provide access to City Data to Consultant and any Authorized User for use under this Agreement. (iii) Not use or disclose personally identifiable data relating to Consumers without authorization or in a manner that is not permitted under applicable law. (iv) Immediately notify Consultant of any problem with City Data or any change in user status that would relate to access to City Data or the WaterSmart SaaS or WaterSmart Reports (i.e., employee terminations). (v) Respond completely, accurately and on a timely basis to requests by Consultant for information that is reasonably required for the ongoing management of the City Data and the provision of the WaterSmart SaaS or WaterSmart Reports to City. (viii) Take sole responsibility for the accuracy, completeness, quality, integrity, legality, reliability, and appropriateness of all City Data and for maintenance, validation, and reconciliation of such City Data. WaterSmart —City of Newport Beach - PSA E. Data and Indemnity by City. City warrants with respect to the City Data, that: (i) City has obtained all necessary consents and authorizations to provide access to City Data to Consultant and any Authorized User for use under this Agreement; (ii) City will not use or provide personally identifiable data relating to Consumers without authorization or in a manner that is not permitted under applicable law; and (iii) the City Data is accurate and complete. City shall indemnify, defend, and hold harmless Consultant, its affiliates, and their respective directors, officers, and employees from and against any losses, liability, claims, damages, penalties, costs, fees or expenses, including without limitation attorneys' fees and costs of litigation, arising from or in connection with any action, proceeding or claim made or brought by any third party based on breach of City's foregoing warranty; provided that Consultant notifies City promptly (but in any event within fourteen (14) days) in writing of the claims and Consultant provides City with all necessary assistance, information and authority to perform the above. City shall have sole control of the defense with respect to any such claim (including reasonable settlement of such claim) provided, however, that Consultant shall have the option, at its sole discretion, to participate in the defense of any such claim using attorneys selected by it, the costs and expenses of which shall be the responsibility of the Consultant. IV. MUTUAL RESPONSIBILITIES OF CONSULTANT AND CITY A. Customer Service. Consultant shall provide commercially reasonable service and support to Consumers and Employees regarding their technical questions about the WaterSmart SaaS. For clarity, this does not include questions related to hardware, devices, software, third party services, or other technical questions beyond the specific scope of WaterSmart SaaS. Consultant and City share responsibility for providing customer service to City's end customers. All inquiries from City customers outside the scope indicated above, including without limitation questions about water data, will be directed to City and City shall provide commercially reasonable service and support. B. Funding Collaboration. Consultant and City shall cooperate with and support each other's efforts to apply for and secure public and/or private grants or other such funds which may be available in support of the Project or Consultant's services and products which can further water efficiency. Upon request by Consultant, City will have discussions or other communications with Consultant's current and potential investors, donors, and lenders. Upon request by Consultant, City shall participate with any third -party effort to evaluate, measure or verify the results of the Consultant program. C. Publicity. The parties shall create and approve for publication a press release announcing their relationship under this Agreement. Consultant is allowed to use City's name as a part of Consultant's normal marketing materials. WaterSmart — City of Newport Beach - PSA V. PROJECT SCHEDULE The date targeted for launch of the pilot is: February, 12011 ("Target Launch Date"). Each party shall dedicate adequate personnel and other resources to enable Launch of the pilot by the Target Launch Date. A minimum of 2,500 residential customers will participate in the pilot. City shall provide Consultant with following City Data and inputs no later than 5 days after the pilot project customer's meters are read ("'21't of every other month): 1) Residence Report 2) Consumption Report Consultant shall provide for City's review the following deliverables no later than 15 days after the pilot project customer's meters are read (-5th of every month following the meter read): 1) Home Water Report City shall either approve the deliverables or provide any comments regarding them no later than 20 days after the pilot project customer's meters are read (^'101h of every month following the meter read). Consultant shall make its best efforts to incorporate or respond to City's approval or comments (if any) within 7 business days and request City's approval to launch the pilot. City's approval to launch the pilot shall not be unreasonably withheld or delayed. Launch of the pilot ("Launch") is deemed to have occurred upon occurrence of all of the following: 1) Approval of Materials and Website 2) S5O with InfoSend 3) Customer Service Training 4) Scheduled/Automatic File Transfer Established Consultant's Project Manager and City's Project Administrator shall confer with one another by telephone, teleconference, or meeting on at least two days of each week until Launch of the pilot occurs, and thereafter at least once each week during the pilot. City shall during the pilot provide data requested by Consultant to monitor pilot performance. All such data shall be provided promptly and generally within five (5) business days of Consultant's request. WaterSm art —City of Newport Beach - PSA The pilot shall be deemed complete upon the occurrence of any of the following (whichever occurs first): (i) achievement of any of the Milestones (as defined below), subject to written notice of the same by Consultant and City's written confirmation or failure to respond in writing within ten (10) business days; (ii) written agreement by both parties that the pilot is complete (irrespective of the Milestones); or (iii) the one-year anniversary of the Launch date. The "Milestones" for the pilot are accomplishment of any of the following (provided, however, that the parties may mutually agree in writing at any time during the pilot to amend the Milestones): (i) 2% reduction in water demand as compared to the pilot control group. -or- (ii) net increase in percentage of Consumers participating in City's initiatives to reduce water demand as compared to the participation percentage for the pilot control group. Water5mart—City of Newport Beach - PSA APPENDIX A-1 WATERSMART SaaS F�1��I13 Hl_i l [�I � bd �i7 Z� l Lii l Note: Specifications set forth below on this Appendix are only initial specifications for the pilot. The end customer web application provided by Consultant and viewable by Consumers shall initially meet the specifications below. Functionality With respect to each Consumer and subject to availability of source data from City: _x_ WaterUse Comparisons _x_ WaterUse Comparisons Among Similar Size Households _x_ WaterScore (Billing Period) _x_ WaterScore and Ranking (GPCD) _x_ Availability and/or Value of Incentives/Rebates WaterBudgets As Defined by Consumer WaterBudgers As Defined by City WaterBudgets as Defined by Standards _x_ Historical WaterUse Comparisons _x_ Indoor/Outdoor WaterUse Models _x_ Personalized Ways to Save — Defined by City and/or Consultant Database _x_ Ways To Save - Water Efficient Tips with Ranking/Sorting Capabilities _x_ Sign-up/Request Capability Weather Alerts x Email Reminders _x_ Other: Text Message Single Sign On (SSO) Integration with existing vendor Design Design will be based on the existing Consultant paper report and online dashboard, but will incorporate the appropriate logo and color scheme of the City. WaterSmart— City of Newport Beach - PSA Every page will include a credit to Consultant (including the Consultant logo), a link to the Consultant website, and a link to Consultant's privacy policy. If no other design requirements are specified, the end customer web application shall reflect Consultant's standard design with Consultant and City branding. Links The web application shall link to the following URL addresses: _x_ City Homepage x Online Water Services _x_ Online Bill Pay _x_ Other: www.watersmart.newport.org www.socalwatersmart.org The City dashboard web application provided by Consultant and viewable only by Employees shall initially meet the specifications below. Functionality and Metrics With respect to each Consumer and subject to availability of source data from City: _x_ Activity Reports (Number of Users, Frequency of Use) _x_ Number of People per Household Data x_ Email Addresses Lists of Customers Requesting Specific Information Lists of Customers Requesting Specific Services WaterUse Reports _x_ A/B Testing Trends/Reports _x_ Ability to View Every Customer Dashboard Other: Design Design will be based on the existing Consultant paper report and online dashboard, but will incorporate the appropriate logo and color scheme of the City. WaterSmart —City of Newport Beach - PSA Every page will include a credit to Consultant (including the Consultant logo), a link to the Consultant website, and a link to Consultant's privacy polity. If no other design requirements are specified, the City dashboard web application shall reflect Consultant's standard design with Consultant and City branding. Initial City Data Requirements City to provide end customer and water use data as requested by Consultant for the WaterSmart SaaS. W atersmart — City of Newport Beach - PSA APPENDIX A-2 WATERSMART REPORT SPECIFICATIONS FOR PILOT Note: Specifications set forth below on this Appendix are only initial specifications for the pilot. Content _x_ Activity Reports (Number of Users, Frequency of Use) _x_ Number of People per Household Data _x Email Addresses Lists of Customers Requesting Specific Information Lists of Customers Requesting Specific Services _x_ WaterUse Reports _x_ A/B Testing Trends/Reports Other: Initial City Data Requirements City to provide end customer and water use data as requested by Consultant for the WaterSmart SaaS and supplemental data as requested (if any) for the Watersmart Reports. WaterSmart— City of Newport Beach.- PSA EXHIBIT B EXHIBIT B SCHEDULE OF BILLING RATES Note: Compensation specified below is for the pilot only. Pilot Setup Fee: WAIVED Invoiced upon signing of the Agreement. Pilot Project Fee: $ 5,000 Invoiced upon Launch. One time fee for all services provided, with the exception outlined in Section 4 of the Professional Services Agreement. This fee includes Home Water Report generation and online dashboard maintenance for the pilot project participants. Hourly rate for Extra Work: $75.00 (For supplemental Services such as rate structure analysis, budget based billing, and advanced water use analysis). Invoiced upon completion of final deliverables. W aterSmart — City of Newport Beach - PSA EXHIBIT C EXHIBIT C INTELLECTUAL PROPERTY ADDENDUM DEFINITIONS A. "City Data" means customer and water use data provided by City to Consultant under this Agreement in order for Consultant to provide the WaterSmart SaaS (as defined below) and WaterSmart Reports (as defined below). B. "Derivative Work" means works that are based upon one or more pre-existing works, such as a improvement, enhancement, modification, revision, translation, abridgment, condensation, expansion, or any other form in which a pre-existing work may be recast, transformed, or adapted. C. "Intellectual Property Rights" means worldwide rights associated with all concepts, inventions (whether or not protected under patent laws), works of authorship, information fixed in any medium of expression (whether or not protected under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, publicity rights, names, likenesses, know-how, ideas (whether or not protected under trade secret laws), and all other subject matter protected or which may be protected under patent, copyright, mask work, trademark, trade secret, or other laws, whether existing now or in the future, whether statutory or common law, in any jurisdiction in the world. D. "SaaS" means a software delivery model in which software and its associated data are hosted externally by'a service provider and accessed by users over the Internet via a web browser as a service. INTELLECTUAL PROPERTY OWNERSHIP AND AUTHORIZED USE A. Proprietary Rights of Consultant. Consultant has created, acquired or otherwise currently has rights in, and may, in connection with the performance of this Agreement or otherwise develop, create, employ, provide, modify, acquire or otherwise obtain rights in various inventions, concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, software, applications, documentation, user interfaces, screen designs, source code, object code, databases, algorithms, development framework repositories, system designs, processing techniques, tools, utilities, routines and other property or materials, including without limitation any and all subject matter protected or which may be protected under patent, copyright, mask work, trademark, trade secret, or other laws, whether existing now or in the future, whether statutory or common law, in anyjurisdiction in the world ("Consultant Materials"). City acknowledges that Consultant owns and shall own all Intellectual Property Rights in and to deliverables hereunder, the Consultant Materials and Derivative Works of Consultant Materials (whether independently orjointly conceived), regardless of whether or not incorporated in any WaterSmart SaaS, WaterSmart Report, or software or deliverable provided to WaterSmart —City of Newport Beach - PSA City by Consultant, and that City shall acquire no right or interest in such deliverables, the Consultant Materials or Derivative Works of Consultant Materials except for the licenses or other usage rights granted to it in this Agreement. City acknowledges and agrees that Consultant is in the business of designing, developing, licensing, and supporting software and applications, and providing related services including without limitation providing software as a service, and Consultant shall have the right to provide to third parties deliverables, software, applications, and services which are the same or similar to those provided under this Agreement, and to use or otherwise exploit any Consultant Materials or Derivative Works in such deliverables, software, applications, and services. Notwithstanding the foregoing, all deliverables which are subject to Article 17 of this Agreement ("Ownership of Reports and Use of Documents") as "Documents" (as defined therein) shall be the exclusive property of City subject to the provisions of Article 17. B. Authorized Use of Services and Deliverables. Consultant will provide the WaterSmart SaaS and WaterSmart Reports, each incorporating certain Consultant Materials, to City as required by the Agreement. Authorized Users may during the term of the Agreement use the WaterSmart SaaS and WaterSmart Reports for their or City's internal purposes only and subject to the restrictions set forth in Exhibit A of this Agreement, so long as City is current with respect to its financial and other obligations under this Agreement. To the extent deliverables are provided by Consultant under this Agreement which are outside the scope of Article 17, Consultant owns all Intellectual Property Rights with respect to such deliverables (as specified by the preceding section) and any copies thereof and hereby grants City a nonexclusive, nontransferable, non-sublicenseable license during the term of the Agreement to use such deliverables in City's operating territory in connection with the WaterSmart SaaS and WaterSmart Reports, for the sole purpose of enabling City to use and enjoy the benefit of the WaterSmart SaaS and WaterSmart Reports. This includes, but is not limited to, third -party billing vendors and the City's customers. C. Authorized Use of Data. In no event shall any personally -identifiable customer data (name, address, email address, telephone number, etc.) be used for any purpose not contemplated under this agreement, specifically, but not limited to, marketing purposes and as set forth in Section 19 "Confidentiality" in the Professional Services Agreement. WaterSmart—City of Newport Beach - PSA JRF CERTIFICATE OF LIABILITY 6iVSl9RAVVCle R001 11-o3 2011 THIS CERTIFICATEIS 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 ADDITIONALINSURED, the policy(ies) must be endorsed. If SUBROGATIONIS 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 PROOLMER AUTOMATIC DATA PROCESSING INS AGCY 250717 P:(877)287-1316 F:(888)443-6112 PO BOX 33015 SAN ANTONIO TX 78265 INSURED WATERSMART SOFTWARE, INC. 625 2ND ST SAN FRANCISCO CA 94107 INSURER C : lac. Nm: (888)443-61 COVFRAOFB CFRTIFICATF NUMBER: REVISION NUMBER: 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. ILLSR LTR TYPE OF M'SURANCE L 7a2, POLICY manIEN MMUDAIYYYYI arAUODATM users GENEIWLLIARBTV EACH OCCURRENCE 5 DAMA R COAfMERCIAI GENERAL UAeIDtt PREMISES IG occunancel $ MED EXP (My me Pe 5 CIJUMSMADE n OCCUR 7 PERSONAL a ADV INJURY _ 6 ' GENERAL AGGREGATE S 'L AGGfl OMIT SPEP: TS PRODUC- COMPX)P AGG 5 POLICY PRO LOC S AIROAIONLE UABILITV COMBINED SINGLE LIMIT 5 EA eu sow ANYAUTO — " e001LY INIURVRY IPAr penSN b ALL OWNED AUTOS eODRY ItLVflY lPm eANtlenO f SCHEDULED AUTOS PROPERTY DAMAGE HIRED AUTOS S LPm utiEmll 5 NONOWNED AUTOS 5 UMaREILA LIAR OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS UAB CLAIME MADE $ DEDUCTIBLE 5 RETENTION S WORKERS COMPENSATION X I WC STA- OTH. 0 V I I R ANBEMPLOYERS'VARWY EL EACH ACCIDEM 51, 0OO, OLIO ANY PROPRIETORIPARTNEWEXECUnIVgYIN A �Fyl�l M1BFRI IXCWDEDT L—I N/A 76 WEG DL9438 11/01/2011 11/01/2012 EJ.DISEASE-EAEMPLOYE 5 1,000,000 DESCRIPTION OF OPERATIONS Eelew EL. DISEASE -POLICY UA1R 51,000,000 OESCRI➢TON OFOP£AATIOfA/LOCAIIO/!5/VEHICLES /A,mcAACORO r01, AtlGllonalavuMa SaBedub, tlmom syecs 4 mpu5rE/ Those usual to the Insured's Operations. Waiver of subrogation applies in favor of the recipient. CERTIFICATE HOLDER CANCELLATION D 1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED City of Newport Beach A California Municipal Corporation BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE 3300 NEWPORT BLVD NEWPORT BEACH, CA 92663 7a2, D 1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD Policy Declaration Information CLA - POLICY SUMMARY INQUIRY REQ INFO: REG: 76 NO: (JE DEPT: DL9438 AS OF: 10/31/12 POLICY INFO: POL NO: 7G WEG DL9438 76 CO CODE: G LEGAL ENTITY: CORP AUDIT: 4 INSURED: WATERS[ART SOFTWARE, INC. 625 2ND ST. PREV POL NO: NEW SAN FRANCISCO, CA 94107 POL TERM: 11/01/11 USAA 1: 11/01/12 PROD CODE: 250717 NAME: AUTOMATIC DATA PROCESSING INS AGCY ENDT 9:001 TRADE:IARK: NON -PAR MARKET SEG ID 6:830 POLICY SIC C0DE:7379 PAYROLL PARTNER ID: ADP LATEST TRANS EFF DATE: 11/02/11 BUS OF INSD: CONSULTANT - COMPUTER FEIN NO: 271447869 AGENT SALES AGREEMENT (COMMISSION STATUS COMMISSION PERCENTAGE: 20.0! TOTAL ANNUAL PREM: $ 792.00 EMPLOYERS LIAB: $ 1,000,000 EACH ACC $ 1,000,000 POL LIM $ 1,000,000 EACH EMPL BEST IND:O2 CMID1 PROG ID:A4O2 BASIC BROAD FORM GENERATED STATES/C0: --------------- •CA OTHER STATES COV: APPL STATE RECAP: CA TERRITORY DIFFERENTIAL 9686 $ -71.00 EXPENSE CONSTANT $ 150.00 CA SURCHARGE S 19.00 USER FUNDING ASSESSMINT 1.4721 $ 11.00 FRAUD ASSESSMNT .4348000 $ 3.00 CA UNINSD EMPL BENEFIT TRUST FUND .4101000 $ 3.00 CA SUBSEA INJ BENEFITS TRUST FUND .17760O0 S 1.00 CA OCCUP SAFETY AND HEALTH FUND .2467000 S 2.00 CA LABOR ENFORCE AND COMPL FUND .2315000 $ 2.00 TERRORISM (9-140) 259,000 .030 S 78.00 CA TOTAL ESTIMATED ANNUAL PREMIUM $ 792.00 SCHEDULE INFO INSD: 01 STATE: 04 LOC: 01 625 2ND ST. CLASS CODE: 8859 DESC: 02 EXPOS: 00249000 RATE: .21 POLICY SUMMARY INQUIRY PAGE 1 (.1140( 11/03/11 SAN FRANCISCO CA941O7 COMPUTER PROGRAMMING OR SOFTWARE CLASS PREM: $ 523.UO 76 WEG DL9438 76 Page 1 of 3 11 file://C:\Documents and Settings\lncdanilry\Local Settingffemporary Internet Filcs\Conte... 11/3/2011 Page 2 of 3 CIA - POLICY SUMMARY INQUIRY INSO: 01. STATE: 04 LOC: 02 WC000422A TERRORISM RISK INSURANCE PROGRAM REAUTHORIZATION ACT' 330 NEWPORT BLVD (WOS) WC040301 NEWPORT BEACH CA92663 CLASS CODE: 0930 DESC: CLASS IND: 24 WC990358 EXPOS: OOOOOOOD RATE: .02 CLASS PREM: 5 50.00 CLASS CODE: 8859 DESC: 02 COMPUTER PROGRAMMING OR SOFTWARE EXPOS: 00010000 RATE: .21 CLASS PREM: S 21.00 FORMS INFO : ------------ OPTIONAL AND MANUSCRIPT ENDT FORMS WC040303 OFFICERS AND DIRECTORS COVERAGE/EXCLUSION END GIBER FORMS FROM TRANSACTION BASED ON AS OF DATE WC990006A CHANGE IN INFORMATION PAGE WC990005 SCHEDULE OF OPERATIONS WC000422A TERRORISM RISK INSURANCE PROGRAM REAUTHORIZATION ACT' WC990302 WORKERS COMPENSATION BROAD FORM ENDORSEMENT WC040301 POLICY AMENDATORY ENDORSEMENT - CALIFORNIA WC040360 EMPLOYERS LIABILITY COVERAGE AMENDATORY WC040421 OPTIONAL PREMIUM INCREASE ENDORSEMENT - CALIFORNIA WC040601 CALIFORNIA CANCELLATION ENDORSEMENT WC990358 AMENDMENT TO WORKERS' COMPENSATION BROAD FORM WC040306 WAIVER OF OUR RIGHT TO RECDlZR FROM OTHERS - \P05 POLICY SUMMARY INQUIRY PAGE 2 (H140) 11/03/11 76 WEG DL9438 76 file://C:\Documents and Settings\mcdallilcy\Local Settings\Temporary Internet Files\Conte:.. 11/3/2011 AUTOMATIC DATA PROCESSING INS AGCY PO BOX 33015 SAN ANTONIO TX, 78265 City of Newport Beach A California Municipal Corporation 3300 NEWPORT BLVD NEWPORT BEACH, CA 92663 ACORD 25 (2009/09) (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this insurance. e. Unnamed Subsidiary Any subsidiary and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of this Coverage Part. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and BUSINESS LIABILITY COVERAGE FORM b. Coverage under this provision does not apply to: (1) 'Bodily injury" or 'property damage" that occurred; or (2) "Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment' registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. 'Bodily injury" to a co -"employee" of the person driving the equipment; or b. 'Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5. Operator of Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. 'Bodily injury" to a co -"employee" of the person operating the watercraft; or b. 'Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 6. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a. through f. below are additional insureds when you have agreed, in a written Form SS 00 08 04 05 Page 11 of 24 BUSINESS LIABILITY COVERAGE FORM contract, written agreement or because of a (e) Any failure to make such permit issued by a state or political inspections, adjustments, tests or subdivision, that such person or organization servicing as the vendor has be added as an additional insured on your agreed to make or normally policy, provided the injury or damage occurs undertakes to make in the usual subsequent to the execution of the contract or course of business, in connection agreement, or the issuance of the permit. with the distribution or sale of the A person or organization is an additional products; insured under this provision only for that (f) Demonstration, installation, period of time required by the contract, servicing or repair operations, agreement or permit. except such operations performed However, no such person or organization is an at the vendors premises in additional insured under this provision if such connection with the sale of the person or organization is included as an product; additional insured by an endorsement issued (g) Products which, after distribution by us and made a part of this Coverage Part, or sale by you, have been labeled including all persons or organizations added or relabeled or used as a as additional insureds under the specific container, part or ingredient of any additional insured coverage grants in Section other thing or substance by or for F. — Optional Additional Insured Coverages. the vendor; or a. Vendors (h) "Bodily injury" or "property Any person(s) or organization(s) (referred to damage" arising out of the sole below as vendor), but only with respect to negligence of the vendor for its "bodily injury" or "property damage" arising own acts or omissions or those of out of "your products" which are distributed its employees or anyone else or sold in the regular course of the vendor's acting on its behalf. However, this business and only if this Coverage Part exclusion does not apply to: provides coverage for "bodily injury" or (i) The exceptions contained in "property damage" included within the Subparagraphs (d) or (f); or "products -completed operations hazard". (ii) Such inspections, adjustments, (1) The insurance afforded to the vendor tests or servicing as the vendor is subject to the following additional has agreed to make or normally exclusions: undertakes to make in the usual This insurance does not apply to: course of business, in connection with the distribution (a) "Bodily injury" or "property or sale of the products. damage" for which the vendor is (2) This insurance does not apply to any obligated to pay damages by insured person or organization from reason of the assumption of whom you have acquired such products, liability in a contract or agreement. or any ingredient, part or container, This exclusion does not apply to entering into, accompanying or liability for damages that the containing such products. vendor would have in the absence of the contract or agreement; b. Lessors Of Equipment (b) Any express warranty (1) Any person or organization from unauthorized by you; whom you lease equipment; but only (c) Any physical or chemical change with respect to their liability for "bodily "property in the product made intentionally injury", damage" or "personal by the vendor; and advertising injury" caused, in whole or in part, by your (d) Repackaging, except when maintenance, operation or use of unpacked solely for the purpose of equipment leased to you by such inspection, demonstration, testing, person or organization. or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; Page 12 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (2) With respect to the insurance afforded e. Permits Issued By State Or Political to these additional insureds, this Subdivisions insurance does not apply to any (1) Any state or political subdivision, but "occurrence" which takes place after only with respect to operations you cease to lease that equipment. performed by you or on your behalf for c. Lessors Of Land Or Premises which the state or political subdivision (1) Any person or organization from has issued a permit. whom you lease land or premises, but (2) With respect to the insurance afforded only with respect to liability arising out to these additional insureds, this of the ownership, maintenance or use insurance does not apply to: of that part of the land or premises a "Bodily injury", "Property damage" () Y 1 leased to you. y or "personal and advertising nal (2) With respect to the insurance afforded injury" arising out of operations to these additional insureds, this performed for the state or insurance does not apply to: municipality; or (a) Any "occurrence" which takes (b) "Bodily injury" or "property damage" place after you cease to lease that included within the "products - land or be a tenant in that completed operations hazard". premises; or f. Any Other Party (b) Structural alterations, new (1) Any other person or organization who construction or demolition is not an insured under Paragraphs a. operations performed by or on through e. above, but only with behalf of such person or respect to liability for "bodily injury", organization. "property damage" or "personal and d. Architects, Engineers Or Surveyors advertising injury" caused, in whole or (1) Any architect, engineer, or surveyor, but in part, by your acts or omissions or only with respect to liability for "bodily the acts or omissions of those acting injury", "property damage" or "personal on your behalf: and advertising injury" caused, in whole (a) In the performance of your or in part, by your acts or omissions or ongoing operations; the acts or omissions of those acting on b () In connection with your premises y our behalf. owned by or rented to you; or (a) In connection with your premises; (c) In connection with "your work" and or included within the "products - (b) In the performance of your completed operations hazard", but ongoing operations performed by only if you or on your behalf. ('r ) The written contract or written (2) With respect to the insurance afforded agreement requires you to to these additional insureds, the provide such coverage to following additional exclusion applies: such additional insured; and This insurance does not apply to (ii) This Coverage Part provides "bodily injury", "property damage" or coverage for "bodily injury" or "personal and advertising injury" "property damage" included arising out of the rendering of or the within the "products - failure to render any professional completed operations hazard". services by or for you, including: (2) With respect to the insurance afforded (a) The preparing, approving, or to these additional insureds, this failure to prepare or approve, insurance does not apply to: maps, shop drawings, opinions, "Bodily injury", "property damage" or reports, surveys, field orders, "personal and advertising injury" change orders, designs or arising out of the rendering of, or the drawings and specifications; or failure to render, any professional (b) Supervisory, inspection, architectural, engineering or surveying architectural or engineering services, including: activities. Form SS 00 08 04 05 Page 13 of 24 BUSINESS LIABILITY COVERAGE FORM (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. The limits of insurance that apply to additional insureds are described in Section D. — Limits Oflnsurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. — Liability And Medical Expenses General Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 2. Aggregate Limits The most we will pay for: a. Damages because of "bodily injury" and "property damage" included in the "products -completed operations hazard" is the Products -Completed Operations Aggregate Limit shown in the Declarations. b. Damages because of all other "bodily injury", "property damage" or "personal and advertising injury", including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations" owned by or rented to you. "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. This General Aggregate limit does not apply to "property damage' to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a. or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one "occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Personal And Advertising Injury Limit Subject to 2.b. above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. 5. Damage To Premises Rented To You Limit The Damage To Premises Rented To You Limit is the most we will pay under Business Liability Coverage for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event, whether such damage results from fire, lightning or explosion or any combination of these. 6. How Limits Apply To Additional Insureds The most we will pay on behalf of a person or organization who is an additional insured under this Coverage Part is the lesser of: a. The limits of insurance specified in a written contract, written agreement or permit issued by a state or political subdivision; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section. Page 14 of 24 Form SS 00 08 04 05 A60R ®®CERTIFICATE OF LIABILITY INSURANCE 20112 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 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 endomement(s). PRODUCER Jaffe—Schlossberg, Inc. 3502 Geary Blvd, 3rd Floor San Francisco CA 94118 CONTACT Willis Wong PHONE (q 15)221-5340 FAX No: (415)386-6853 6p AIEss_willis@jaffe—schlossberg.com INSURERS) AFFORDING COVERAGE NAIC# INSURER A:Hartford Casualty Ins Cc 29424 INSURED WATERSMART SOFTWARE, INC. 1550 TIBURON BLVD #G604 TIBURON CA 94920 INSURER B, INSURER C: INSURER D: 'SURER E: INSURER F: COVERAGES CERTIFICATE NUMBER:CL1212700561 REVISION NUMBER: 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 TR TYPE OF INSURANCE IN B POLICY NUMBER MWOCYEFF POLICY EXP LIMITS GENERAL LIABILITY EACH OCCURRENCE 3 2,000,000 A X COMMERCIAL GENERAL LIABILITY 7 CLNMS-MADE❑X OCCUR X 57SBHDOS806 /17/2011 /17/2012 O e NTE encs $ 300,000 PREMISES MED EXP Any one person) S 10,000 PERSONAL B ADV INJURY 3 2,000,000 GENERAL AGGREGATE 3 4,000,000 GENL AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGO $ 4,000,000 X POLICY 7 PRO- LOC $ AUTOMOBILE LIABILITY CDMBINEO SINGLE LIMIT e acdtlen BODILY INJURY (Per person) S ANY AUTO ALL OWNED SCHEDULED BODILY INJURY (Per acciden) S NOW -ORO H ED AUTOS AUTOS PROPERTY DAMAGE S Wer erritlent S UMBRELUA LIAR OCCUR EACH OCCURRENCE S AGGREGATE 3 EXCESS LIAB CIAIMS.NADE OED I I RETENTIONS S WORKERS COMPENSATION WC STATU- OTH- AND EMPLOYERS' LIABILITY YIN E.L EACH ACCIDENT S ANY PROPRIETORIPARTNER/ ECUTIVE ❑ OFFICERIMEMBER EXCLUDED? NIA El. DISEASE - EA EMPLOYEE S (Mandatory In NMI U es, desaibe under DESCRIPTION OF OPERATIONS below EL DISEASE -POLICY LIMIT S DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ABach ACORD 101, Additional Remarks Schedule, if more space is required) The City of Newport Beach, its officers, officials, employees, and volunteers named as Additional Insured, as required by written contract, per the Business Liability Coverage SS0008 attached to this policy. This insurance is Primary and Non -Contributory. City of Newport Beach A California Municipal Corporation 3300 Newport Blvd Newport Beach, CA 92663 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Jaffe riahts reserved. INS02519n1nn.5fn1 The Ar.npn name anH Inns aro reni<fornH mark. of Ar.014n ill l_l:_;1"E= I_;f�E:;ILI i ll ( (h1'f 1':���� Form SS 00 08 04 05 © 2005, The Hartford QUICK REFERENCE BUSINESS LIABILITY COVERAGE FORM READ YOUR POLICY CAREFULLY BUSINESS LIABILITY COVERAGE FORM Beginning on Page A. COVERAGES 1 Business Liability 1 Medical Expenses 2 Coverage Extension - Supplementary Payments 2 B. EXCLUSIONS 3 C. WHO IS AN INSURED 10 D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 14 E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 15 1. Bankruptcy 15 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit 15 3. Financial Responsibility Laws 16 4. Legal Action Against Us 16 5. Separation Of Insureds 16 6. Representations 16 7. Other Insurance 16 8. Transfer Of Rights Of Recovery Against Others To Us 17 F. OPTIONAL ADDITIONAL INSURED COVERAGES 18 Additional Insureds 18 G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 20 Form SS 00 08 04 05 Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "your' refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the stock insurance company member of The Hartford providing this insurance. The word "insured" means any person or organization qualifying as such under Section C. - Who Is An Insured. Other words and phrases that appear in quotation marks have special meaning. Refer to Section G. - Liability And Medical Expenses Definitions. A. COVERAGES BUSINESS LIABILITY COVERAGE (BODILY INJURY, PROPERTY DAMAGE, PERSONAL AND ADVERTISING INJURY) Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury", "property damage" or "personal and advertising injury" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" or offense and settle any claim or "suit" that may result. But: (1) The amount we will pay for damages is limited as described in Section D. - Liability And Medical Expenses Limits Of Insurance; and (2) Our right and duly to defend ends when we have used up the applicable limit of insurance in the payment of judgments, settlements or medical expenses to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Coverage Extension - Supplementary Payments. to. This insurance applies: (1) To "bodily injury" and "property damage" only if: (a) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory'; (b) The "bodily injury" or "property damage" occurs during the policy period; and (c) Prior to the policy period, no insured listed under Paragraph 1. of Section C. — Who Is An Insured and no "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period. (2) To "personal and advertising injury" caused by an offense arising out of your business, but only if the offense was committed in the "coverage territory" during the policy period. c. "Bodily injury" or "property damage" will be deemed to have been known to have occurred at the earliest time when any insured listed under Paragraph 1. of Section C. — Who Is An Insured or any "employee" authorized by you to give or receive notice of an "occurrence" or claim: (1) Reports all, or any part, of the "bodily injury" or "property damage" to us or any other insurer; Form SS 00 08 04 05 Page 1 of 24 © 2005, The Hartford BUSINESS LIABILITY COVERAGE FORM (2) Receives a written or verbal demand or b. We will make these payments regardless of claim for damages because of the "bodily fault. These payments will not exceed the injury" or "property damage" or applicable limit of insurance. We will pay (3) Becomes aware by any other means that reasonable expenses for: "bodily injury" or "property damage" has (1) First aid administered at the time of an occurred or has begun to occur. accident; d. Damages because of "bodily injury" include (2) Necessary medical, surgical, x-ray and damages claimed by any person or dental services, including prosthetic organization for care, loss of services or devices; and death resulting at any time from the "bodily (3) Necessary ambulance, hospital, injury". professional nursing and funeral e. Incidental Medical Malpractice services. (1) "Bodily injury" arising out of the 3. COVERAGE EXTENSION - rendering of or failure to render SUPPLEMENTARY PAYMENTS professional health care services as a a. We will pay, with respect to any claim or physician, dentist, nurse, emergency "suit" we investigate or settle, or any "suit" medical technician or paramedic shall against an insured we defend: be deemed to be caused by an "occurrence", but only if: (1) All expenses we incur. (a) The physician, dentist, nurse, (2) Up to $1,000 for the cost of bail bonds emergency medical technician or required because of accidents or traffic paramedic is employed by you to law violations arising out of the use of provide such services; and any vehicle to which Business Liability Coverage for "bodily injury" applies. We (b) You are not engaged in the do not have to furnish these bonds. business or occupation of providing b such services. (3) The cost of appeal bonds or bonds to release attachments, but only for bond 2 For the () purpose of determining the amounts within the applicable limit of limits of insurance for incidental medical insurance. We do not have to furnish malpractice, any act or omission these bonds. together with all related acts or omissions in the furnishing of these (4) All reasonable expenses incurred by the services to any one person will be insured at our request to assist us in the considered one "occurrence". investigation or defense of the claim or "suit", including actual loss of earnings 2. MEDICAL EXPENSES up to $500 a day because of time off Insuring Agreement from work. a. We will pay medical expenses as described (5) All costs taxed against the insured in below for "bodily injury" caused by an the "suit". accident: (6) Prejudgment interest awarded against (1) On premises you own or rent; the insured on that part of the judgment (2) On ways next to premises you own or we pay. If we make an offer to pay the rent; or applicable limit of insurance, we will not (3) Because of your operations; any prejudgment interest based on that that period of time after the offer. provided that: (7) All interest on the full amount of any (1) The accident takes place in the judgment that accrues after entry of the "coverage territory" and during the judgment and before we have paid, policy period; offered to pay, or deposited in court the (2) The expenses are incurred and reported part of the judgment that is within the to us within three years of the date of applicable limit of insurance. the accident; and Any amounts paid under (1) through (7) (3) The injured person submits to above will not reduce the limits of insurance. examination, at our expense, by physicians of our choice as often as we reasonably require. Page 2 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM b. If we defend an insured against a "suit" So long as the above conditions are met, and an indemnitee of the insured is also attorneys' fees incurred by us in the named as a party to the "suit", we will defense of that indemnitee, necessary defend that indemnitee if all of the litigation expenses incurred by us and following conditions are met: necessary litigation expenses incurred (1) The "suit" against the indemnitee by the indemnitee at our request will be seeks damages for which the insured paid as Supplementary Payments. has assumed the liability of the Notwithstanding the provisions of indemnitee in a contract or agreement Paragraph 1.b.(b) of Section B. — that is an "insured contract", Exclusions, such payments will not be (2) This insurance applies to such liability deemed to be damages for "bodily assumed by the insured; injury" and "property damage" and will (3) The obligation to defend, or the cost of not reduce the Limits of Insurance. the defense of, that indemnitee, has Our obligation to defend an insured's also been assumed by the insured in indemnitee and to pay for attorneys' fees the same "insured contract"; and necessary litigation expenses as Supplementary Payments ends when: (4) The allegations in the "suit" and the information we know about the (1) We have used up the applicable limit "occurrence" are such that no conflict of insurance in the payment of appears to exist between the interests judgments or settlements; or of the insured and the interest of the (2) The conditions set forth above, or the indemnitee; terms of the agreement described in (5) The indemnitee and the insured ask Paragraph (6) above, are no longer met. us to conduct and control the defense B. EXCLUSIONS of that indemnitee against such "suit" and agree that we can assign the 1. Applicable To Business Liability Coverage same counsel to defend the insured This insurance does not apply to: and the indemnitee; and a. Expected Or Intended Injury (6) The indemnitee: (1) "Bodily injury" or "property damage" (a) Agrees in writing to: expected or intended from the (i) Cooperate with us in the standpoint of the insured. This investigation, settlement or exclusion does not apply to "bodily "property defense of the "suit"; injury" or damage" resulting from the use of reasonable force to (ii) Immediately send us copies of protect persons or property; or any demands, notices, (2) "Personal and advertising injury" arising summonses or legal papers out of an offense committed by, at the received in connection with direction of or with the consent or the "suit"; acquiescence of the insured with the (iii) Notify any other insurer whose expectation of inflicting "personal and coverage is available to the advertising injury". indemnitee; and b. Contractual Liability (iv) Cooperate with us with (1) "Bodily injury" ryor"property damage"; or respect to coordinating other applicable insurance available (2) "Personal and advertising injury" to the indemnitee; and for which the insured is obligated to pay (b) Provides us with written damages by reason of the assumption of authorization to: liability in a contract or agreement. (i) Obtain records and other This exclusion does not apply to liability information related to the for damages because of: "suit'; and (a) "Bodily injury", "property damage" or (ii) Conduct and control the "personal and advertising injury" that defense of the indemnitee in the insured would have in the such "suit". absence of the contract or agreement; or Form SS 00 08 04 05 Page 3 of 24 BUSINESS LIABILITY COVERAGE FORM (b) "Bodily injury" or "property damage" assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement. Solely for the purpose of liability assumed in an "insured contract", reasonable attorneys' fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of "bodily injury" or "property damage" provided: (i) Liability to such party for, or for the cost of, that party's defense has also been assumed in the same "insured contract", and (ii) Such attorneys' fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged. c. Liquor Liability "Bodily injury" or "property damage" for which any insured may be held liable by reason of: (1) Causing or contributing to the intoxication of any person; (2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages. d. Workers' Compensation And Similar Laws Any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law. e. Employer's Liability "Bodily injury" to: (1) An "employee" of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of the insured's business, or (2) The spouse, child, parent, brother or sister of that "employee" as a consequence of(1)above. This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the insured under an "insured contract". f. Pollution (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants": (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to any insured. However, this subparagraph does not apply to: (i) "Bodily injury' if sustained within a building and caused by smoke, fumes, vapor or soot produced by or originating from equipment that is used to heat, cool or dehumidify the building, or equipment that is used to heat water for personal use; by the building's occupants or their guests; (ii) "Bodily injury" or "property damage" for which you may be held liable, if you are a contractor and the owner or lessee of such premises, site or location has been added to your policy as an additional insured with respect to your ongoing operations performed for that additional insured at that premises, site or location and such premises, site or location is not and never was owned or occupied by, or rented or loaned to, any insured, other than that additional insured; or Page 4 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (iii) "Bodily injury" or "property released as part of the damage" arising out of heat, operations being performed smoke or fumes from a by such insured, contractor or "hostile fire"; subcontractor; (b) At or from any premises, site or (ii) "Bodily injury" or "property location which is or was at any damage" sustained within a time used by or for any insured or building and caused by the others for the handling, storage, release of gases, fumes or disposal, processing or treatment vapors from materials brought of waste; into that building in connection (c) Which are or were at any time with operations being performed transported, handled, stored, by you or on your behalf by a treated, disposed of, or processed contractor or subcontractor; or as waste by or for: (iii) "Bodily injury" or "property (i) Any insured; or damage" arising out of heat, smoke or fumes from a (ii) Any person or organization for "hostile fire"; or whom you may be legally responsible; (e) At or from any premises, site or location on which any insured or any (d) At or from any premises, site or contractors or subcontractors location on which any insured or working directly or indirectly on any any contractors or subcontractors insured's behalf are performing working directly or indirectly on operations s if the operations are to any insured's behalf are test for, monitor, clean up,r remove, performing operations if the n contain, treat, detoxify or neutralize, "pollutants" are brought on or to or in any way respond to, or assess the premises, site or location in the effects of, "pollutants". connection with such operations by such insured, contractor or (2) Any loss, cost or expense arising out subcontractor. However, this of any: subparagraph does not apply to: (a) Request, demand, order or statutory (i) "Bodily injury" or "property or regulatory requirement that any damage" arising out of the insured or others test for, monitor, escape of fuels, lubricants or clean up, remove, contain, treat, other operating fluids which are detoxify or neutralize, or in any way needed to perform the normal respond to, or assess the effects of, electrical, hydraulic or "pollutants"; or mechanical functions (b) Claim or suit by or on behalf of a necessary for the operation of governmental authority for "mobile equipment" or its parts, damages because of testing for, if such fuels, lubricants or other monitoring, cleaning up, removing, operating fluids escape from a containing, treating, detoxifying or vehicle part designed to hold, neutralizing, or in any way store or receive them. This responding to, or assessing the exception does not apply if the effects of, "pollutants". "bodily injury" or "property However, this paragraph does not damage" arises out of the apply to liability for damages because intentional discharge, dispersal of "property damage" that the insured or release of the fuels, would have in the absence of such lubricants or other operating request, demand, order or statutory or fluids, or if such fuels, regulatory requirement, or such claim lubricants or other operating or "suit" by or on behalf of a fluids are brought on or to the governmental authority. premises, site or location with the intent that they be discharged, dispersed or Form SS 00 08 04 05 Page 5 of 24 BUSINESS LIABILITY COVERAGE FORM g. Aircraft, Auto Or Watercraft (2) The use of "mobile equipment" in, or "Bodily injury" or "property damage" arising while in practice or preparation for, a out of the ownership, maintenance, use or prearranged racing, speed or entrustment to others of any aircraft, "auto" demolition contest or in any stunting or watercraft awned or operated by or rented activity. or loaned to any insured. Use includes i. War operation and "loading or unloading". "Bodily injury", "property damage" or This exclusion applies even if the claims "personal and advertising injury", however against any insured allege negligence or caused, arising, directly or indirectly, out of: other wrongdoing in the supervision, hiring, (1) War, including undeclared or civil war; employment, training or monitoring of others by that insured, if the "occurrence" which (2) Warlike action by a military force, caused the "bodily injury' or "property including action in hindering or damage" involved the ownership, defending against an actual or maintenance, use or entrustment to others of expected attack, by any government, any aircraft, "auto" or watercraft that is sovereign or other authority using owned or operated by or rented or loaned to military personnel or other agents; or any insured. (3) Insurrection, rebellion, revolution, This exclusion does not apply to: usurped power, or action taken by (1) A watercraft while ashore on premises governmental authority in hindering or defending against any of these. you own or rent; j. Professional Services (2) A watercraft you do not own that is: "Bodily injury", "property damage or a Less than 51 feet Ion and () 9: "personal and advertising injury" arising i (b) Not being used to carry persons out of the rendering of or failure to render for a charge; any professional service. This includes (3) Parking an "auto" on, or on the ways but is not limited to: next to, premises you own or rent, (1) Legal, accounting or advertising provided the "auto" is not owned by or services; rented or loaned to you or the insured; (2) Preparing, approving, or failing to (4) Liability assumed under any "insured prepare or approve maps, shop contract" for the ownership, drawings, opinions, reports, surveys, maintenance or use of aircraft or field orders, change orders, designs or watercraft; drawings and specifications; (5) "Bodily injury" or "property damage" (3) Supervisory, inspection, architectural arising out of the operation of any of or engineering activities; the equipment listed in Paragraph f.(2) (4) Medical, surgical, dental, x-ray or or f.(3) of the definition of "mobile nursing services treatment, advice or equipment"; or instruction; (6) An aircraft that is not owned by any (5) Any health or therapeutic service insured and is hired, chartered or loaned treatment, advice or instruction; with a paid crew. However, this (6) Any service, treatment, advice or exception does not apply if the insured "bodily instruction for the purpose ofappearance has any other insurance for such injury" or "property damage", whether or skin enhancement, hair the other insurance is primary, excess, removal or replacement or personal contingent or on any other basis. grooming; h. Mobile Equipment (7) Optical or hearing aid services including the prescribing, preparation, "Bodily injury" or "property damage" fitting, demonstration or distribution of arising out of: ophthalmic lenses and similar (1) The transportation of "mobile equipment" products or hearing aid devices; by an "auto" owned or operated by or rented or loaned to any insured; or Page 6 of 24 Form SS 00 08 04 05 (8) Optometry or optometric services including but not limited to examination of the eyes and the prescribing, preparation, fitting,demonstration or distribution of ophthalmic lenses and similar products; (9) Any: (a) Body piercing (not including ear piercing); (b) Tattooing, including but not limited to the insertion of pigments into or under the skin; and (c) Similar services; (10) Services in the practice of pharmacy; and (11) Computer consulting, design or programming services, including web site design. Paragraphs (4) and (5) of this exclusion do not apply to the Incidental Medical Malpractice coverage afforded under Paragraph 1:e. in Section A. - Coverages. k. Damage To Property "Property damage" to: (1) Property you own, rent or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property; (2) Premises you sell, give away or abandon, if the "property damage" arises out of any part of those premises; (3) Property loaned to you; (4) Personal property in the care, custody or control of the insured; (5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the "property damage" arises out of those operations; or (6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly performed on it. BUSINESS LIABILITY COVERAGE FORM Paragraphs (1), (3) and (4) of this exclusion do not apply to "property damage" (other than damage by fire) to premises, including the contents of such premises, rented to you for a period of 7 or fewer consecutive days. A separate Limit of Insurance applies to Damage To Premises Rented To You as described in Section D. - Limits Of Insurance. Paragraph (2) of this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs (3) and (4) of this exclusion do not apply to the use of elevators. Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraphs (3) and (4) of this exclusion do not apply to "property damage" to borrowed equipment while not being used to perform operations at a job site. Paragraph (6) of this exclusion does not apply to "property damage" included in the "products -completed operations hazard". I. Damage To Your Product "Property damage" to "your product" arising out of it or any part of it. m. Damage To Your Work "Property damage" to "your work" arising out of it or any part of it and included in the "products -completed operations hazard". This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. n. Damage To Impaired Property Or Property Not Physically Injured "Property damage" to "impaired property" or property that has not been physically injured, arising out of: (1) A defect, deficiency, inadequacy or dangerous condition in "your product" or "your work"; or (2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to "your product" or "your work" after it has been put to its intended use. Form SS 00 08 04 05 Page 7 of 24 BUSINESS LIABILITY COVERAGE FORM o. Recall Of Products, Work Or Impaired (c) Title of any literary or artistic work; Property (8) Arising out of an offense committed by Damages claimed for any loss, cost or an insured whose business is: expense incurred by you or others for the (a) Advertising, broadcasting, loss of use, withdrawal, recall, inspection, publishing or telecasting; repair, replacement, adjustment, removal (b) Designing or determining content or disposal of: of web sites for others; or (1) "Your product" (c) An Internet search, access, (2) "Your work"; or content or service provider. (3) "Impaired property'; However, this exclusion does not if such product, work or property is apply to Paragraphs a., b. and c. withdrawn or recalled from the market or under the definition of "personal and from use by any person or organization advertising injury" in Section G. — because of a known or suspected defect, Liability And Medical Expenses deficiency, inadequacy or dangerous Definitions. condition in it. For the purposes of this exclusion, p. Personal And Advertising Injury placing an "advertisement" for or "Personal and advertising injury": linking to others on your web site, by (1) Arising out of oral, written or electronic itself, is not considered the business publication of material, if done by or at of advertising, broadcasting, the direction of the insured with publishing or telecasting; knowledge of its falsity; (9) Arising out of an electronic chat room (2) Arising out of oral, written or electronic or bulletin board the insured hosts, publication of material whose first owns, or over which the insured publication took place before the exercises control; beginning of the policy period; (10) Arising out of the unauthorized use of (3) Arising out of a criminal act committed another's name or product in your e-mail by or at the direction of the insured; address, domain name or metatags, or any other similar tactics to mislead (4) Arising out of any breach of contract, another's potential customers; except an implied contract to use "advertising (11) Arising out of the violation of a another's idea" in your '.advertisement"; person's right of privacy created by any state or federal act. (5) Arising out of the failure of goods, However, this exclusion does not products or services to conform with apply liability for damages that the any statement of quality or insuredd would have in the absence of performance made in your .'advertisement"; such state or federal act; (6) Arising out of the wrong description of (12) Arising out of: the price of goods, products or services; (a) An "advertisement" for others on (7) Arising out of any violation of any your web site; intellectual property rights such as (b) Placing a link to a web site of copyright, patent, trademark, trade others on your web site; name, trade secret, service mark or (c) Content from a web site of others other designation of origin or displayed within a frame or border authenticity. on your web site. Content includes However, this exclusion does not information, code, sounds, text, apply to infringement, in your graphics or images; or ..advertisement", of (d) Computer code, software or (a) Copyright; programming used to enable: (b) Slogan, unless the slogan is also (i) Your web site; or a trademark, trade name, service (ii) The presentation or functionality mark or other designation of origin of an "advertisement' or other or authenticity; or content on your web site; Page 8 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (13) Arising out of a violation of any anti- (a) May be awarded or incurred by trust law; reason of any claim or suit (14) Arising out of the fluctuation in price or alleging actual or threatened injury value of any stocks, bonds or other or damage of any nature or kind to securities; or persons or property which would not have occurred in whole or in (15) Arising out of discrimination or part but for the "asbestos hazard", humiliation committed by or at the direction of any "executive officer", (b) Arise out of any request, demand, director, stockholder, partner or order or statutory or regulatory member of the insured. requirement that any insured or others lest for, monitor, clean up, q. Electronic Data remove, encapsulate, contain, Damages arising out of the loss of, loss of treat, detoxify or neutralize or in use of, damage to, corruption of, inability any way respond to or assess the to access, or inability to manipulate effects of an "asbestos hazard"; or "electronic data". (c) Arise out of any claim or suit for r. Employment -Related Practices damages because of testing for, "Bodily injury" or "personal and advertising monitoring, cleaning up, removing, injury" to: encapsulating, containing, treating, (1) A person arising out of any: detoxifying or neutralizing or in any way responding to or assessing the (a) Refusal to employ that person; effects of an "asbestos hazard". (b) Termination of that person's t. Violation Of Statutes That Govern E - employment; or Mails, Fax, Phone Calls Or Other (c) Employment-related practices, Methods Of Sending Material Or policies, acts or omissions, such as Information coercion, demotion, evaluation, "Bodily injury", "property damage", or reassignment, discipline, "personal and advertising injury" arising defamation, harassment, humiliation directly or indirectly out of any action or or discrimination directed at that omission that violates or is alleged to person; or violate: (2) The spouse, child, parent, brother or (1) The Telephone Consumer Protection sister of that person as a Act (TCPA), including any amendment consequence of "bodily injury" or of or addition to such law; "personal and advertising injury" to the (2) The CAN -SPAM Act of 2003, including person at whom any of the any amendment of or addition to such employment-related practices law; or described in Paragraphs (a), (b), or (c) above is directed. (3) Any statute, ordinance or regulation, This exclusion applies: other than the TCPA or CAN -SPAM Act of 2003, that prohibits or limits the (1) Whether the insured may be liable as sending, transmitting, communicating or an employer or in any other capacity; distribution of material or information. and Damage To Premises Rented To You — (2) To any obligation to share damages Exception For Damage By Fire, Lightning with or repay someone else who must or Explosion pay damages because of the injury. Exclusions c. through h. and k. through o. do s. Asbestos not apply to damage by fire, lightning or (1) "Bodily injury", "property damage" or explosion to premises rented to you or "personal and advertising injury" temporarily occupied by you with permission of arising out of the "asbestos hazard". the owner. A separate Limit of Insurance (2) Any damages, judgments, settlements, applies to this coverage as described in loss, costs or expenses that: Section D. - Liability And Medical Expenses Limits Of Insurance. Form SS 00 08 04 05 Page 9 of 24 BUSINESS LIABILITY COVERAGE FORM 2. Applicable To Medical Expenses Coverage e. A trust, you are an insured. Your trustees We will not pay expenses for "bodily injury": are also insureds, but only with respect to a. Any Insured their duties as trustees. To any insured, except "volunteer workers". 2• Each of the following is also an insured: b. Hired Person a. Employees And Volunteer Workers To a person hired to do work for or on behalf Your "volunteer workers" only while of any insured or a tenant of any insured. performing duties related to the conduct of c. Injury On Normally Occupied Premises your business, or your "employees", other "executive than either your officers" (if you To a person injured on that part of are an organization other than a premises you own or rent that the person partnership, joint venture or limited liability normally occupies. company) or your managers (if you are a d. Workers' Compensation And Similar limited liability company), but only for acts Laws within the scope of their employment by a person, whether or not an you or while performing duties related to "e "employee" of any insured, if benefits for the conduct of your business. the "bodily injury" are payable or must be However, none of these "employees" or provided under a workers' compensation "volunteer workers" are insureds for: or disability benefits law or a similar law. (1) "Bodily injury" or "personal and e. Athletics Activities advertising injury": To a person injured while practicing, (a) To you, to your partners or instructing or participating in any physical members (if you are a partnership exercises or games, sports or athletic or joint venture), to your members contests. (if you are a limited liability f. Products -Completed Operations Hazard company), or to a co -"employee" while in the course of his or her Included with the "products -completed employment or performing duties operations hazard". related to the conduct of your g. Business Liability Exclusions business, or to your other Excluded under Business Liability Coverage. "volunteer workers" while performing duties related to the C. WHO IS AN INSURED conduct of your business; 1. If you are designated in the Declarations as: (b) To the spouse, child, parent, a. An individual, you and your spouse are brother or sister of that co - insureds, but only with respect to the "employee" or that "volunteer conduct of a business of which you are the worker" as a consequence of sole owner. Paragraph (1)(a) above; b. A partnership or joint venture, you are an (c) For which there is any obligation insured. Your members, your partners, and to share damages with or repay their spouses are also insureds, but only with someone else who must pay respect to the conduct of your business. damages because of the injury c. A limited liability company, you are an described in Paragraphs (1)(a) or insured. Your members are also insureds, (b) above; or but only with respect to the conduct of your (d) Arising out of his or her providing business. Your managers are insureds, but or failing to provide professional only with respect to their duties as your health care services. managers. If you are not in the business of d. An organization other than a partnership, providing professional health care joint venture or limited liability company, you services, Paragraph (d) does not apply are an insured. Your "executive officers" and to any nurse, emergency medical directors are insureds, but only with respect technician or paramedic employed by to their duties as your officers or directors. you to provide such services. Your stockholders are also insureds, but only (2) "Property damage" to property: with respect to their liability as stockholders. (a) Owned, occupied or used by, Page 10 of 24 Form SS 00 08 04 05 (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this insurance. e. Unnamed Subsidiary Any subsidiary and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of this Coverage Part. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and BUSINESS LIABILITY COVERAGE FORM b. Coverage under this provision does not apply to: (1) 'Bodily injury" or "property damage" that occurred; or (2) 'Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment' registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. 'Bodily injury" to a co -"employee" of the person driving the equipment; or b. 'Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5. Operator of Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. 'Bodily injury" to a co -"employee" of the person operating the watercraft; or b. 'Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 6. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a. through f. below are additional insureds when you have agreed, in a written Form SS 00 08 04 05 Page 11 of 24 BUSINESS LIABILITY COVERAGE FORM contract, written agreement or because of a (e) Any failure to make such permit issued by a state or political inspections, adjustments, tests or subdivision, that such person or organization servicing as the vendor has be added as an additional insured on your agreed to make or normally policy, provided the injury or damage occurs undertakes to make in the usual subsequent to the execution of the contract or course of business, in connection agreement, or the issuance of the permit. with the distribution or sale of the A person or organization is an additional products; insured under this provision only for that (f) Demonstration, installation, period of time required by the contract, servicing or repair operations, agreement or permit. except such operations performed at the vendor's premises in However, no such person or organization is an connection with the sale of the additional insured under this provision if such product; person or organization is included as an additional insured by an endorsement issued (g) Products which, after distribution by us and made a part of this Coverage Part, or sale by you, have been labeled including all persons or organizations added or relabeled or used as a as additional insureds under the specific container, part or ingredient of any additional insured coverage grants in Section other thing or substance by or for F. — Optional Additional Insured Coverages. the vendor; or a. Vendors (h) 'Bodily injury" or "property damage" arising out of the sole Any person(s) or organization(s) (referred to negligence of the vendor for its below as vendor), but only with respect to own acts or omissions or those of "bodily injury" or "property damage' arising its employees or anyone else out of "your products" which are distributed acting on its behalf. However, this or sold in the regular course of the vendor's exclusion does not apply to: business and only if this Coverage Part provides coverage for 'bodily injury' or (i) The exceptions contained in "property damage" included within the Subparagraphs (d) or (f); or "products -completed operations hazard". (ii) Such inspections, adjustments, (1) The insurance afforded to the vendor tests or servicing as the vendor is subject to the following additional has agreed to make or normally exclusions: undertakes to make in the usual course of business, in This insurance does not apply to: connection with the distribution (a) 'Bodily injury" or "property or sale of the products. damage' for which the vendor is (2) This insurance does not apply to any obligated to pay damages by insured person or organization from reason of the assumption of whom you have acquired such products, liability in a contract or agreement. or any ingredient, part or container, This exclusion does not apply to entering into, accompanying or liability for damages that the containing such products. vendor would have in the absence of the contract or agreement; b. Lessors Of Equipment (b) Any express warranty (1) Any person or organization from unauthorized by you; whom you lease equipment; but only with respect to their liability for "bodily (c) Any physical or chemical change injury", "property damage' or in the product made intentionally "personal and advertising injury" by the vendor; caused, in whole or in part, by your (d) Repackaging, except when maintenance, operation or use of unpacked solely for the purpose of equipment leased to you by such inspection, demonstration, testing, person or organization. or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; Page 12 of 24 Form SS 00 08 04 05 (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. c. Lessors Of Land Or Premises (1) Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a) Any "occurrence" which takes place after you cease to lease that land or be a tenant in that premises; or (b) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. d. Architects, Engineers Or Surveyors (1) Any architect, engineer, or surveyor, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf. (a) In connection with your premises; or (b) In the performance of your ongoing operations performed by you or on your behalf. (2) With respect to the insurance afforded to these additional insureds, the following additional exclusion applies: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services by or for you, including: (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. BUSINESS LIABILITY COVERAGE FORM e. Permits Issued By State Or Political Subdivisions (1) Any state or political subdivision, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the slate or municipality; or (b) "Bodily injury" or "property damage" included within the "products - completed operations hazard". f. Any Other Party (1) Any other person or organization who is not an insured under Paragraphs a. through e. above, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (a) In the performance of your ongoing operations, (b) In connection with your premises owned by or rented to you; or (c) In connection with "your work" and included within the "products - completed operations hazard", but only if (i) The written contract or written agreement requires you to provide such coverage to such additional insured; and (ii) This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products - completed operations hazard". (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: Form SS 00 08 04 05 Page 13 of 24 BUSINESS LIABILITY COVERAGE FORM (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. The limits of insurance that apply to additional insureds are described in Section D. — Limits Oflnsurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. — Liability And Medical Expenses General Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 2. Aggregate Limits The most we will pay for: a. Damages because of "bodily injury" and "property damage" included in the "products -completed operations hazard" is the Products -Completed Operations Aggregate Limit shown in the Declarations. b. Damages because of all other "bodily injury', "property damage" or "personal and advertising injury", including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations' owned by or rented to you. "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. This General Aggregate limit does not apply to "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a. or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one "occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Personal And Advertising Injury Limit Subject to 2.b. above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. 5. Damage To Premises Rented To You Limit The Damage To Premises Rented To You Limit is the most we will pay under Business Liability Coverage for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event, whether such damage results from fire, lightning or explosion or any combination of these. 6. How Limits Apply To Additional Insureds The most we will pay on behalf of a person or organization who is an additional insured under this Coverage Part is the lesser of: a. The limits of insurance specified in a written contract, written agreement or permit issued by a state or political subdivision; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section. Page 14 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM If more than one limit of insurance under this (1) Immediately send us copies of any policy and any endorsements attached thereto demands, notices, summonses or applies to any claim or "suit", the most we will pay legal papers received in connection under this policy and the endorsements is the with the claim or "suit!'; single highest limit of liability of all coverages (2) Authorize us to obtain records and applicable to such claim or "suit". However, this other information; paragraph does not apply to the Medical Expenses (3) Cooperate with us in the investigation, limit set forth in Paragraph 3. above. settlement of the claim or defense The Limits of Insurance of this Coverage Part apply against the "suit"; and separately to each consecutive annual period and to (4) Assist us, upon our request, in the any remaining period of less than 12 months, starting enforcement of any right against any with the beginning of the policy period shown in the person or organization that may be Declarations, unless the policy period is extended liable the insured because of injury after issuance for an additional period of less than 12 or damage which this insurance months. In that case, the additional period will be may also appllyy. . deemed part of the last preceding period for purposes of determining the Limits of Insurance. d. Obligations At The Insured's Own Cost E. LIABILITY AND MEDICAL EXPENSES No insured will, except at that insured's own cost, voluntarily make a payment, assume GENERAL CONDITIONS any obligation, or incur any expense, other 1. Bankruptcy than for first aid, without our consent Bankruptcy or insolvency of the insured or of e. Additional Insured's Other Insurance the insured's estate will not relieve us of our If we cover a claim or "suit" under this obligations under this Coverage Part. Coverage Part that may also be covered 2. Duties In The Event Of Occurrence, by other insurance available to an Offense, Claim Or Suit additional insured, such additional insured a. Notice Of Occurrence Or Offense must submit such claim or "suit" to the other insurer for defense and indemnity. You or any additional insured must see to However, this provision does not apply to it that we are notified as soon as "occurrence" the extent that you have agreed in a practicable of an or an offense which may result in a claim. To written contract, written agreement or the extent possible, notice should include: permit that this insurance is primary and non-contributory with the additional (1) How, when and where the "occurrence" insured's own insurance. or offense took place; f. Knowledge Of An Occurrence, Offense, (2) The names and addresses of any Claim Or Suit injured persons and witnesses; and Paragraphs a. and b. apply to you or to (3) The nature and location of any injury any additional insured only when such or damage arising out of the "occurrence", offense, claim or "suit" is "occurrence" or offense. known to: b. Notice Of Claim (1) You or any additional insured that is If a claim is made or "suit" is brought an individual; against any insured, you or any additional (2) Any partner, if you or an additional insured must: insured is a partnership; (1) Immediately record the specifics of the (3) Any manager, if you or an additional claim or "suit" and the date received; insured is a limited liability company; and (4) Any "executive officer" or insurance (2) Notify us as soon as practicable. manager, if you or an additional You or any additional insured must see to insured is a corporation; it that we receive a written notice of the (5) Any trustee, if you or an additional claim or "suit" as soon as practicable. insured is a trust; or c. Assistance And Cooperation Of The (6) Any elected or appointed official, if you Insured or an additional insured is a political You and any other involved insured must: subdivision or public entity. Form SS 00 08 04 05 Page 15 of 24 BUSINESS LIABILITY COVERAGE FORM This Paragraph f. applies separately to (3) We have issued this policy in reliance you and any additional insured. upon your representations. 3. Financial Responsibility Laws b. Unintentional Failure To Disclose a. When this policy is certified as proof of Hazards financial responsibility for the future under If unintentionally you should fail to disclose the provisions of any motor vehicle all hazards relating to the conduct of your financial responsibility law, the insurance business at the inception date of this provided by the policy for "bodily injury" Coverage Part, we shall not deny any liability and "property damage" liability will coverage under this Coverage Part comply with the provisions of the law to because of such failure. the extent of the coverage and limits of 7, Other Insurance insurance required by that law. b. With respect to "mobile equipment" to other valid and collectible insurance is which this insurance applies, we will a available for a loss we cover under this Coverage Part, our obligations are limited as provide any liability; uninsured motorists, follows: underinsured motorists, no-fault or other coverage required by any motor vehicle a. Primary Insurance law. We will provide the required limits for This insurance is primary except when b. those coverages. below applies. If other insurance is also 4. Legal Action Against Us primary, we will share with all that other No person or organization has a right under insurance by the method described in c. this Coverage Form: below. a. To join us as a party or otherwise bring us b. Excess Insurance into a "suit" asking for damages from an This insurance is excess over any of the insured; or other insurance, whether primary, excess, b. To sue us on this Coverage Form unless contingent or on any other basis: all of its terms have been fully complied (1) Your Work with. That is Fire, Extended Coverage, A person or organization may sue us to recover Builders Risk, Installation Risk or on an agreed settlement or on a final judgment similar coverage for "your work'; against an insured; but we will not be liable for (2) Premises Rented To You damages that are not payable under the terms of this insurance or that are in excess of the That is fire, lightning or explosion applicable limit of insurance. An agreed insurance for premises rented to you settlement means a settlement and release of or temporarily occupied by you with liability signed by us, the insured and the permission of the owner; claimant or the claimant's legal representative. (3) Tenant Liability 5. Separation Of Insureds That is insurance purchased by you to Except with respect to the Limits of Insurance, cover your liability as a tenant for and any rights or duties specifically assigned "property damage" to premises rented in this policy to the first Named Insured, this to you or temporarily occupied by you insurance applies: with permission of the owner; a. As if each Named Insured were the only (4) Aircraft, Auto Or Watercraft Named Insured; and If the loss arises out of the maintenance b. Separately to each insured against whom or use of aircraft, "autos" or watercraft to a claim is made or "suit" is brought. the extent not subject to Exclusion g. of Section A.— Coverages. 6. Representations (5) Property Damage To Borrowed a. When You Accept This Policy Equipment Or Use Of Elevators By accepting this policy, you agree: If the loss arises out of "property (1) The statements in the Declarations damage" to borrowed equipment or are accurate and complete; the use of elevators to the extent not (2) Those statements are based upon subject to Exclusion k. of Section A. — representations you made to us; and Coverages. Page 16 of 24 Form SS 00 08 04 05 (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add Others As An Additional Insured To This Insurance That is other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this Coverage Part: (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. (b) Primary And Non -Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. BUSINESS LIABILITY COVERAGE FORM When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self- insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other insurance permits contribution by equal shares, we will follow this method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurers share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. Form SS 00 08 04 05 Page 17 of 24 BUSINESS LIABILITY COVERAGE FORM F. OPTIONAL ADDITIONAL INSURED COVERAGES If listed or shown as applicable in the Declarations, one or more of the following Optional Additional Insured Coverages also apply. When any of these Optional Additional Insured Coverages apply, Paragraph 6. (Additional Insureds When Required by Written Contract, Written Agreement or Permit) of Section C., Who Is An Insured, does not apply to the person or organization shown in the Declarations. These coverages are subject to the terms and conditions applicable to Business Liability Coverage in this policy, except as provided below: 1. Additional Insured - Designated Person Or Organization WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations, but only with respect to liability for "bodily injury", 'property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: a. In the performance of your ongoing operations; or b. In connection with your premises owned by or rented to you. 2. Additional Insured - Managers Or Lessors Of Premises a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Designated Person Or Organization; but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Declarations. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) Any 'occurrence" which takes place after you cease to be a tenant in that premises; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 3. Additional Insured - Grantor Of Franchise WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Grantor Of Franchise, but only with respect to their liability as grantor of franchise to you. 4. Additional Insured - Lessor Of Leased Equipment a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Lessor of Leased Equipment, but only with respect to liability for "bodily injury", "property damage" or 'personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to any 'occurrence" which takes place after you cease to lease that equipment. 5. Additional Insured - Owners Or Other Interests From Whom Land Has Been Leased a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured —Owners Or Other Interests From Whom Land Has Been Leased, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land leased to you and shown in the Declarations. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) Any 'occurrence" that takes place after you cease to lease that land; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 6. Additional Insured - State Or Political Subdivision — Permits a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the state or political subdivision shown in the Declarations as an Additional Page 18 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Insured — State Or Political Subdivision - (e) Any failure to make such Permits, but only with respect to inspections, adjustments, tests or operations performed by you or on your servicing as the vendor has agreed behalf for which the state or political to make or normally undertakes to subdivision has issued a permit. make in the usual course of b. With respect to the insurance afforded to business, in connection with the these additional insureds, the following distribution or sale of the products; additional exclusions apply: (f) Demonstration, installation, This insurance does not apply to: servicing or repair operations, except such operations performed (1) "Bodily injury", "property damage" or at the vendor's premises in "personal and advertising injury" connection with the sale of the arising out of operations performed for product; the state or municipality; or (9) Products which, after distribution "Bodily injury" or "property damage" (2) y 1 �' p p y d " g or sale by you, have been labeled included in the "product -completed or relabeled or used as a operations" hazard. container, part or ingredient of any 7. Additional Insured — Vendors other thing or substance by or for a. WHO IS AN INSURED under Section C. is the vendor; or amended to include as an additional (h) "Bodily injury" or "property insured the person(s) or organization(s) damage" arising out of the sole (referred to below as vendor) shown in the negligence of the vendor for its Declarations as an Additional Insured - own acts or omissions or those of Vendor, but only with respect to "bodily its employees or anyone else injury" or "property damage" arising out of acting on its behalf. However, this "your products" which are distributed or exclusion does not apply to: sold in the regular course of the vendor's (i) The exceptions contained in business and only if this Coverage Part Subparagraphs (d) or (f); or provides coverage for "bodily injury" or "property (ii) Such inspections, damage" included within the "products -completed operations hazard". adjustments, tests or servicing as the vendor has agreed to b. The insurance afforded to the vendor is make or normally undertakes subject to the following additional exclusions: to make in the usual course of (1) This insurance does not apply to: business, in connection with (a) "Bodily injury" or "property the distribution or sale of the damage" for which the vendor is products. obligated to pay damages by (2) This insurance does not apply to any reason of the assumption of insured person or organization from liability in a contract or agreement. whom you have acquired such This exclusion does not apply to products, or any ingredient, part or liability for damages that the container, entering into, vendor would have in the absence accompanying or containing such of the contract or agreement; products. (b) Any express warranty 8. Additional Insured— Controlling Interest unauthorized by you; WHO IS AN INSURED under Section C. is (c) Any physical or chemical change amended to include as an additional insured in the product made intentionally the person(s) or organization(s) shown in the by the vendor; Declarations as an Additional Insured — (d) Repackaging, unless unpacked Controlling Interest, but only with respect to solely for the purpose of inspection, their liability arising out of: demonstration, testing, or the a. Their financial control of you; or substitution of parts under b. Premises they own, maintain or control instructions from the manufacturer, while you lease or occupy these premises. and then repackaged in the original container; Form SS 00 08 04 05 Page 19 of 24 BUSINESS LIABILITY COVERAGE FORM This insurance does not apply to structural The limits of insurance that apply to additional alterations, new construction and demolition insureds are described in Section D. — Limits Of operations performed by or for that person or Insurance. organization. How this insurance applies when other insurance 9. Additional Insured — Owners, Lessees Or is available to an additional insured is described in Contractors — Scheduled Person Or the Other Insurance Condition in Section E. — Organization Liability And Medical Expenses General a. WHO IS AN INSURED under Section C. is Conditions. amended to include as an additional G. LIABILITY AND MEDICAL EXPENSES insured the person(s) or organization(s) DEFINITIONS shown in the Declarations as an Additional Insured — Owner, Lessees Or Contractors, 1. "Advertisement" means the widespread public but only with respect to liability for "bodily dissemination of information or images that injury', "property damage" or "personal has the purpose of inducing the sale of goods, and advertising injury" caused, in whole or products or services through: in part, by your acts or omissions or the a. (1) Radio; acts or omissions of those acting on your (2) Television; behalf: (3) Billboard; (1) In the performance of your ongoing (4) Magazine; operations for the additional insured(s); or (5) Newspaper; (2) In connection with "your work" b. The Internet, but only that part of a web performed for that additional insured site that is about goods, products or and included within the "products- services for the purposes of inducing the completed operations hazard", but sale of goods, products or services; or only if this Coverage Part provides c. Any other publication that is given coverage for "bodily injury' or widespread public distribution. "property damage" included within the However, "advertisement" does not include: "products -completed operations hazard". a. The design, printed material, information or images contained in, on or upon the b. With respect to the insurance afforded to packaging or labeling of any goods or these additional insureds, this insurance products; or does not apply to "bodily injury", "property b. damage" or "personal an advertising An interactive conversation between or injury" arising out of the rendering of, or among persons through a computer network. the failure to render, any professional 2. "Advertising idea" means any idea for an architectural, engineering or surveying "advertisement". services, including: 3. "Asbestos hazard" means an exposure or (1) The preparing, approving, or failure to threat of exposure to the actual or alleged prepare or approve, maps, shop properties of asbestos and includes the mere drawings, opinions, reports, surveys, presence of asbestos in any form. field orders, change orders, designs or 4. "Auto" means a land motor vehicle, trailer or drawings and specifications; or semi -trailer designed for travel on public (2) Supervisory, inspection, architectural roads, including any attached machinery or or engineering activities. equipment. But "auto" does not include 10. Additional Insured — Co -Owner Of Insured "mobile equipment". Premises 5. "Bodily injury" means physical: WHO IS AN INSURED under Section C. is a. Injury; amended to include as an additional insured b. Sickness; or the person(s) or Organization(s) shown in the c. Disease Declarations as an Additional Insured — Co - Owner Of Insured Premises, but only with sustained by a person and, if arising out of the respect to their liability as co-owner of the above, mental anguish or death at any time. premises shown in the Declarations. 6. "Coverage territory" means: Page 20 of 24 Form SS 00 08 04 05 a. The United States of America (including its territories and possessions), Puerto Rico and Canada; b. International waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in a. above; c. All other parts of the world if the injury or damage arises out of: (1) Goods or products made or sold by you in the territory described in a. above; (2) The activities of a person whose home is in the territory described in a. above, but is away for a short time on your business; or (3) "Personal and advertising injury" offenses that take place through the Internet or similar electronic means of communication provided the insured's responsibility to pay damages is determined in the United States of America (including its territories and possessions), Puerto Rico or Canada, in a "suit" on the merits according to the substantive law in such territory, or in a settlement we agree to. 7. "Electronic data" means information, facts or programs: a. Stored as or on; b. Created or used on; or c. Transmitted to or from computer software, including systems and applications software, hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. 8. "Employee" includes a "leased worker". "Employee" does not include a "temporary worker". 9. "Executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document. 10. "Hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. 11. "Impaired property" means tangible property, other than "your product" or "your work", that cannot be used or is less useful because: a. It incorporates "your product" or "your work" that is known or thought to be defective, deficient, inadequate or dangerous; or BUSINESS LIABILITY COVERAGE FORM b. You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by: a. The repair, replacement, adjustment or removal of "your product" or "your work"; or b. Your fulfilling the terms of the contract or agreement. 12. "Insured contract" means: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire, lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner is subject to the Damage To Premises Rented To You limit described in Section D. — Liability and Medical Expenses Limits of Insurance. b. A sidetrack agreement; c. Any easement or license agreement, including an easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad; d. Any obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e. An elevator maintenance agreement; or f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury' or "property damage" to a third person or organization, provided the "bodily injury" or "property damage' is caused, in whole or in part, by you or by those acting on your behalf. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. includes that part of any contract or agreement that indemnifies a railroad for "bodily injury" or "property damage" arising out of construction or demolition operations within 50 feet of any railroad property and affecting any railroad bridge or trestle, tracks, road -beds, tunnel, underpass or crossing. However, Paragraph f. does not include that part of any contract or agreement: Form SS 00 08 04 05 Page 21 of 24 BUSINESS LIABILITY COVERAGE FORM (1) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; or (2) Under which the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured's rendering or failure to render professional services, including those listed in (1) above and supervisory, inspection, architectural or engineering activities. 13. "Leased worker" means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. "Leased worker" does not include a "temporary worker". 14. "Loading or unloading" means the handling of property: a. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or "auto"; b. While it is in or on an aircraft, watercraft or "auto" or c. While it is being moved from an aircraft, watercraft or "auto" to the place where it is finally delivered,- but elivered;but "loading or unloading" does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or "auto". 15. "Mobile equipment" means any of the following types of land vehicles, including any attached machinery or equipment: a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; b. Vehicles maintained for use solely on or next to premises you own or rent; c. Vehicles that travel on crawler treads; d. Vehicles, whether self-propelled or not, on which are permanently mounted: (1) Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equipment such as graders, scrapers or rollers; e. Vehicles not described in a., b., c., or d. above that are not self-propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types: (1) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment; or (2) Cherry pickers and similar devices used to raise or lower workers; f. Vehicles not described in a., b., c., or d. above maintained primarily for purposes other than the transportation of persons or cargo. However, self-propelled vehicles with the following types of permanently attached equipment are not "mobile equipment" but will be considered "autos": (1) Equipment, of at least 1,000 pounds gross vehicle weight, designed primarily for: (a) Snow removal; (b) Road maintenance, but not construction or resurfacing; or (c) Street cleaning; (2) Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and (3) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment. 16. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. 17. "Personal and advertising injury" means injury, including consequential "bodily injury", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; Page 22 of 24 Form SS 00 08 04 05 c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that the person occupies, committed by or on behalf of its owner, landlord or lessor; d. Oral, written or electronic publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; e. Oral, written or electronic publication of material that violates a person's right of privacy; f. Copying, in your "advertisement", a person's or organization's "advertising idea" or style of "advertisement" g. Infringement of copyright, slogan, or title of any literary or artistic work, in your "advertisement"; or h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person. 18. "Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. 19. "Products -completed operations hazard"; a. Includes all "bodily injury" and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except: (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned. However, "your work" will be deemed to be completed at the earliest of the following times: (a) When all of the work called for in your contract has been completed. (b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site. (c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project. BUSINESS LIABILITY COVERAGE FORM Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. The "bodily injury" or "property damage" must occur away from premises you own or rent, unless your business includes the selling, handling or distribution of "your product" for consumption on premises you own or rent. b. Does not include "bodily injury" or "property damage" arising out of: (1) The transportation of property, unless the injury or damage arises out of a condition in or on a vehicle not owned or operated by you, and that condition was created by the "loading or unloading" of that vehicle by any insured; or (2) The existence of tools, uninstalled equipment or abandoned or unused materials. 20. "Property damage" means: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of "occurrence" that caused it. As used in this definition, "electronic data" is not tangible property. 21. "Suit" means a civil proceeding in which damages because of "bodily injury", "property damage" or "personal and advertising injury" to which this insurance applies are alleged. "Suit" includes: a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. 22. "Temporary worker' means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions. 23. "Volunteer worker" means a person who: a. Is not your "employee"; Form SS 00 08 04 05 Page 23 of 24 BUSINESS LIABILITY COVERAGE FORM b. Donates his or her work; c. Acts at the direction of and within the scope of duties determined by you; and d. Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. 24. "Your product': a. Means: (1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (a) You; (b) Others trading under your name; or (c) A person or organization whose business or assets you have acquired; and (2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your product; and (2) The providing of or failure to provide warnings or instructions. c. Does not include vending machines or other property rented to or located for the use of others but not sold. 25. "Your work": a. Means: (1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or operations. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your work"; and (2) The providing of or failure to provide warnings or instructions. Page 24 of 24 Form SS 00 08 04 05 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESS LIABILITY COVERAGE FORM This coverage is subject to all provisions in the BUSINESS LIABILITY COVERAGE FORM not expressly modified herein: A. Amended Coverage: Coverage is extended to "bodily injury" and "property damage" arising out of the use of a "hired auto" and "non -owned auto". B. Paragraph B. EXCLUSIONS is amended as follows: 1. Exclusion g. Aircraft, Auto or Watercraft does not apply to a "hired auto" or a "non -owned auto". 2. Exclusion e. Employers Liability does not apply to "bodily injury" to domestic "employees" not entitled to workers' compensation benefits or to liability assumed by the "insured" under an "insured contract". 3. Exclusion f. Pollution is replaced by the following: "Bodily injury" or "property damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants": a. That are, or that are contained in any property that is: (1) Being transported or towed by, handled, or handled for movement into, onto or from, the covered "auto"; (2) Otherwise in the course of transit by or on behalf of the "insured"; or (3) Being stored, disposed of, treated or processed in or upon the covered "auto". b. Before the "pollutants" or any property in which the "pollutants" are contained are moved from the place where they are accepted by the "insured" for movement into or onto the covered "auto" or c. After the "pollutants" or any property in which the "pollutants" are contained are moved from the covered "auto" to the place where they are finally delivered, disposed of or abandoned by the "insured". Paragraph a. above does not apply to fuels, lubricants, fluids, exhaust gases or other similar "pollutants" that are needed for or result from the normal electrical, hydraulic or mechanical functioning of the covered "auto" or its parts, if: (1) The "pollutants" escape, seep, migrate, or are discharged or released directly from an "auto" part designed by its manufacturer to hold, store, receive, or dispose of such "pollutants"; and (2) The "bodily injury" and "property damage" does not arise out of the operation of any equipment listed in paragraphs 15.b. and 15.c. of the definition of "mobile equipment". Paragraphs b. and c. above do not apply to "accidents" that occur away from premises owned by or rented to an "insured" with respect to "pollutants" not in or upon a covered "auto" if: (1) The "pollutants" or any property in which the "pollutants" are contained are upset, overturned or damaged as a result of the maintenance or use of a covered "auto": and Form SS 04 38 09 09 Page 1 of 3 © 2009, The Hartford (Includes copyrighted material of ISO Properties, Inc., with its permission) (2) The discharge, dispersal, seepage, migration, release or escape of the "pollutants" is caused directly by such upset, overturn or damage as a result of the maintenance or use of a covered "auto". 4. With respect to this coverage, the following additional exclusions apply: a. Fellow employee Coverage does not apply to "bodily injury" to any fellow "employee" of the "insured" arising out of the operation of an "auto" owned by the "insured" in the course of the fellow "employee's" employment. b. Care, custody or control Coverage does not apply to "property damage" involving property owned or transported by the "insured" or in the "insured's" care, custody or control. C. With respect to "hired auto" and "non -owned auto" coverage, Paragraph C. WHO IS AN INSURED is deleted and replaced by the following: The following are "insureds": a. You. b. Your "employee" while using with your permission: (1) An "auto" you hire or borrow; or (2) An "auto" you don't own, hire or borrow in your business or personal affairs; or (3) An "auto" hired or rented by your "employee" on your behalf and at your direction. c. Anyone else while using a "hired auto" or "non - owned auto" with your permission except: (1) The owner or anyone else from whom you hire or borrow an "auto". (2) Someone using an auto while he or she is working in a business of selling, servicing, repairing, parking or storing "autos" unless that business is yours. (3) Anyone other than your "employees", partners (if you are a partnership), members (if you are a limited liability company), or a lessee or borrower or any of their "employees", while moving property to or from an "auto". (4) A partner (if you are a partnership), or a member (if you are a limited liability company) for an "auto" owned by him or her or a member of his or her household. d. Anyone liable for the conduct of an "insured" described above but only to the extent of that liability. D. With respect to the operation of a "hired auto" and "non -owned auto", the following additional conditions apply: 1. OTHERINSURANCE a. Except for any liability assumed under an "insured contract" the insurance provided by this Coverage Form is excess over any other collectible insurance. However, if your business is the selling, servicing, repairing, parking or storage of "autos", the insurance provided by this endorsement is primary when covered "bodily injury" or "property damage" arises out of the operation of a customer's "auto" by you or your "employee". b. When this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis. 2. TWO OR MORE COVERAGE FORMS OR POLICIES ISSUED BY US If the Coverage Form and any other Coverage Form or policy issued to you by us or any company affiliated with us apply to the same "accident", the aggregate maximum Limit of Insurance under all the Coverage Forms or policies shall not exceed the highest applicable Limit of Insurance under any one Coverage Form or policy. This condition does not apply to any Coverage Form or policy issued by us or an affiliated company specifically to apply as excess insurance over this Coverage Form. E. The following definitions are added: G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS: 1. "Hired auto" means any "auto" you lease, hire, rent or borrow. This does not include any auto you lease, hire, rent or borrow from any of your "employees", your partners (if you are a partnership), members (if you are a limited liability company), Page 2 of 3 Form SS 04 38 09 09 or your "executive officers" or members of their households. This does not include a long-term leased "auto" that you insure as an owned "auto" under any other auto liability insurance policy or a temporary substitute for an "auto" you own that is out of service because of its breakdown, repair, servicing or destruction. 2. "Non -owned auto " means any "auto" you do not own, lease, hire, rent or borrow which is used in connection with your business. This includes: a. "Autos" owned by your "employees" your partners (if you are a partnership), members (if you are a limited liability company), or your "executive officers", or members of their households, but only while used in your business or your personal affairs. b. Customer's "auto" that is in your care, custody or control for service. Form SS 04 38 09 09 Page 3 of 3 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 1-24-1.2 Dept./Contact Received From: Tania Date Completed: 2-01-201.2 Sent to: Tania By: Joel Company/Person required to have certificate: WaterSmart Software Type of contract: All Other 1. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 5-17-11/5-17-12 A. INSURANCE COMPANY: Hartford Casualty Ins. Co. B. AM BEST RATING (A-: VII or greater): A: XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1M or greater): What is limit provided? 2,000,000 E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must (What is limits provided?) include): Is it included? (completed Operations status does F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND G. HIRED AND NON -OWNED AUTO ONLY: COMPLETED OPERATIONS ENDORSEMENT (completed H. NOTICE OF CANCELLATION: Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes ®No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No 11. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 5-17-11/5-17-12 A. INSURANCE COMPANY: Hartford Casualty Ins. Co. B. AM BEST RATING (A-: VII or greater) A: XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? General Liability limits E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ® Yes ❑ No H. NOTICE OF CANCELLATION: 0 N/A 0 Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 1-01-2012/7-01-2012 A. INSURANCE COMPANY: Various B. AM BEST RATING (A-: VII or greater): A: XV C. ADMITTED Company (Must be California Admitted): D. WORKERS' COMPENSATION LIMIT: Statutory E. EMPLOYERS' LIABILITY LIMIT (Must be $11M or greater) F. WAIVER OF SUBROGATION (To include): Is it included? G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: H. NOTICE OF CANCELLATION: ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 2-03-2012 Date ❑ Yes ❑ No ® Yes ❑ No 2,000,000 ® Yes ❑ No ® N/A ❑ Yes ❑ No ❑ N/A ® Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No 0 N/A ❑ Yes ❑ No ® Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _ Self Insured Retention or Deductible greater than $ ) ❑ NIA ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Approved: Risk Management * Subject to the terms of the contract. Date