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Contract #: 883 - From: 04-01-2016 To: 06-30-2017 - Solitude Lake Mg - Town of North Andover
V- --L- TOWN OF NORTH ANDOVER CONTRACT (GOODS / SERVICES) CONTRACT#� DATE: 03 - 30- &0/& This Contract is entered into on, or as of, this date by and between the Town of North Andover (the "Town"), and Contractor: Solitude Lake Management, LLC Address: 590 Lake Street Shrewsbury, MA 01545 Telephone Number: 888-480-5253 Fax Number: 1. This is a Contract for the procurement of the following: Aquatic Management Program at Stevens Pond for the period of April 1, 2016 through June 30, 2017 in accordance with Commonwealth of Massachusetts DCR contract 2. The Contract price to be paid to the Contractor by the Town of North Andover is: See attached proposal 3. Payment will be made as follows: Upon completion of services and receipt of invoice (net 30) 4. Definitions 4.1 Acce tance:All Contracts require proper acceptance of the described goods or services by the Town of North Andover. Proper acceptance shall be understood to include inspection of goods and certification of acceptable performance for services by authorized representatives of the Town to insure that the goods or services are complete and are as specified in the Contract. (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 1 4.2 Contract Documents: All documents relative to the Contract including (where used) Invitation to Bid, Request for Proposals, Instructions to Bidders/Proposers, Proposal Form, General Conditions, Supplementary General Conditions, General Specifications, Other Specifications included in Project Manual, Drawings, and all Addenda issued during the bidding period or proposal. The Contract documents are complementary, and what is called for by any one shall be as binding as if called for by all. The intention of the document is to include all labor and materials, equipment and transportation necessary for the proper performance of the Contract. 4.3 The Contractor: The "other party" to any Contract with the Town. This term shall (as the sense and particular Contract so require) include Vendor, Contractor, Engineer, or other label used to identify the other party in the particular Contract. Use of the term "Contractor" shall be understood to refer to any other such label used. The Contractor's relationship to the Town is that of an independent contractor and not that of an agent or employee of the Town. 4.4 Date of Substantial Performance: The date when the work is sufficiently complete, the services are performed, or the goods delivered, in accordance with Contract documents, as modified by approved Amendments and Change Orders. 4.5 Goods: Goods, Supplies or Materials. 4.6 Sub -Contractor: Those having a direct Contract with the Contractor. The term includes one who furnished material worked to a special design according to the Drawings or Specifications of this work, but does not include one who merely furnishes material not so worked. 4.7 Work: The services or materials contracted for, or both. 5. Term of Contract and Time for Performance This Contract shall be fully performed by the Contractor in accordance with the provisions of the Contract Documents on or before June 30, 2017, unless extended pursuant to a provision for extension contained in the Contract documents at the sole discretion of the Town, and not subject to assent by the Contractor, and subject to the availability and appropriation of funds as certified by the Town Accountant. The time limits stated in the Contract documents are of the essence of the Contract. 6. Subiect to Appropriation Notwithstanding anything in the Contract documents to the contrary, any and all payments which the Town is required to make under this Contract shall be subject to appropriation or other availability of funds as certified by the Town Accountant. The Town may immediately terminate or suspend this Agreement without liability on the part of the Town for damages, penalties or other charges in the event the appropriation funding this Agreement is terminated (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 2 or reduced to an amount which will be insufficient to support anticipated future obligations . under this Agreement. 7. Permits and Approvals Permits, Licenses, Approvals and all other legal or administrative prerequisites to its performance of the Contract shall be secured and paid for by the Contractor. 8. Termination and Default 8.1 Without Cause. The Town may terminate this Contract at its sole discretion on seven (7). calendar days' notice when in the best interests of the Town by providing notice to the Contractor, which shall be in writing and shall be deemed delivered and received when given in person to the Contractor, or when received by fax, express mail, certified mail return receipt requested, regular mail postage prepaid or delivered by any other appropriate method evidencing actual receipt by the Contractor. Upon termination without cause, Contractor will be paid for services rendered to the date of termination. 8.2 For Cause. If the Contractor is determined by the Town to be in default of any term or condition of this Contract, the Town may, terminate this Contract on seven (7) days' notice by providing notice to the Contractor, which shall be in writing and shall be deemed delivered and received when given in person to the Contractor, or when received by fax, express mail, certified mail return receipt requested, regular mail postage prepaid or delivered by any other appropriate method evidencing actual receipt by the Contractor. 8.3 Default. The following shall constitute events of a default under the Contract: 1) any material misrepresentation made by the Contractor to the Town; 2) any failure to perform any of its obligations under this Contract including, but not limited to the following: (i) failure to commence performance of this Contract at the time specified in this Contract due to a reason or circumstance within the Contractor's reasonable control, (ii) failure to perform this Contract with sufficient personnel and equipment or with sufficient material to ensure the completion of this Contract within the specified time due to a reason or circumstance within the Contractor's reasonable control, (iii) failure to perform this Contract in a manner reasonably satisfactory to the Town, (iv) failure to promptly re -perform within a reasonable time the services that were rejected by the Town as unsatisfactory, or erroneous, (v) discontinuance of the services for reasons not beyond the Contractor's reasonable control, (vi) failure to comply with a material term of this Contract, including, but not limited to, the provision of insurance and non-discrimination, (vii) any other acts specifically and expressly stated in this Contract as constituting a basis for termination of this Contract, and (viii) failure to comply with any and all requirements of federal or state law and/or regulations, and Town bylaws and/or regulations. (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 3 9. The Contractor's Breach and the Town's Remedies Failure of the Contractor to comply with any of the terms or conditions of this Contract shall be deemed a material breach of this Contract, and the Town of North Andover shall have all the rights and remedies provided in the Contract documents, the right to cancel, terminate, or suspend the Contract in whole or in part, the right to maintain any and all actions at law or in equity or other proceedings with respect to a breach of this Contract, including damages and specific performance, and the right to select among the remedies available to it by all of the above. From any sums due to the Contractor for services, the Town may keep the whole or any part of the amount for expenses, losses and damages incurred by the Town as a consequence of procuring services as a result of any failure, omission or mistake of the Contractor in providing services as provided in this Contract. 10. Statutory Compliance 10.1 This Contract will be construed and governed by the provisions of applicable federal, state and local laws and regulations; and wherever any provision of the Contract or Contract documents shall conflict with any provision or requirement of federal, state or local law or regulation, then the provisions of law and regulation shall control. Where applicable to the Contract, the provisions of the Massachusetts General Laws are incorporated by reference into this Contract, including, but not limited to, the following: M.G.L. Chapter 30B — Procurement of Goods and Services. M.G.L. Chapter 30, Sec. 39, et seq: - Public Works Contracts. M.G.L. Chapter 149, Section 44A, et seq: Public Buildings Contracts. 10.2 Wherever applicable law mandates the inclusion of any term and provision into a municipal contract, then it shall be understood that this Agreement shall import such term or provision into this Contract. To whatever extent any provision of this Contract shall be inconsistent with any law or regulation limiting the power or liability of cities and towns, such law or regulation shall control. 10.3 The Contractor shall give all notices and comply with all laws and regulations bearing on the performance of the Contract. If the Contractor performs the Contract in violation of any applicable law or regulation, the Contractor shall bear all costs arising therefrom. 10.4 The Contractor shall keep itself fully informed of all existing and future State and National Laws and Municipal By-laws and Regulations and of all orders and decrees of any bodies or tribunals having jurisdiction in any manner affecting those engaged or employed in the work, of the materials used in the work or in any way affecting (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 4 the conduct of the work. If any discrepancy or inconsistency is discovered in the Drawings, Specifications, Scope of Business or Contract for this work in violation of any such law, by-law, regulation, order or decree, it shall forthwith report the same in writing to the Town. It shall, at all times, itself observe and comply with all such existing and future laws, by-laws, regulations, orders and decrees; and shall protect and indemnify the Town of North Andover, and its duly appointed agents against any claim or liability arising from or based on any violation whether by it or its agents, employees or subcontractors of any such law, by-law, regulation or decree. 11. Conflict of Interest Both the Town and the Contractor acknowledge the provisions of the State Conflict of Interest Law (General Laws c268A), and this Contract expressly prohibits any activity which shall constitute a violation of that law. The Contractor shall be deemed to have investigated the application of M.G.L. c268A to the performance of this Contract; and by executing the Contract documents the Contractor certifies to the Town that neither it nor its agents, employees, or subcontractors are thereby in violation of General Laws Chapter 268A. 12. Certification of Tax Compliance This Contract must include a certification of tax compliance by the Contractor, as required by General Laws c62C, Section 49A (Requirement of Tax Compliance by All Contractors Providing Goods, Services, or Real Estate Space to the Commonwealth or Subdivision). 13. Affirmative Action; Non -Discrimination The Contractor will carry out the obligations of this Contract in full compliance with all of the requirements imposed by or pursuant to General Laws c151B (Law Against Discrimination) and any executive orders, rules, regulations, and requirements of the Commonwealth of Massachusetts as they may from time to time be amended. The Contractor shall comply with all federal and state laws, rules and regulations promoting fair employment practices or prohibiting employment discrimination and unfair labor practices and shall not discriminate in the hiring of any applicant for employment nor shall any qualified employee be demoted, discharged or otherwise subject to discrimination in the tenure, position, promotional opportunities, wages, benefits or terms and conditions of their employment because of race, color, national origin, ancestry, age, sex, religion, disability, handicap, sexual orientation or for exercising any rights afforded by law. 14. Condition of Enforceability Against the Town This Contract is only binding upon, and enforceable against, the Town if. (1) the Contract is signed by the Town Manager or its designee; and (2) endorsed with approval by the Town Accountant as to appropriation or availability of funds; and (3) endorsed with approval by the Town Counsel as to form. (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 5 15. Corporate Contractor If the Contractor is a corporation, it shall endorse upon this Contract (or attach hereto) its Clerk's Certificate or if a Limited Liability Corporation, a Manager's Certificate or other documentation satisfactory to the Town certifying the corporate capacity and authority of the party signing this Contract for the corporation. Such certificate shall be accompanied by a letter or other instrument stating that such authority continues in full force and effect as of the date the Contract is executed by the Contractor. This Contract shall not be enforceable against the Town of North Andover unless and until the Contractor complies with this section. The Contractor, if a foreign corporation, shall comply with the provisions of the General Laws, c181, §3, and any Acts and Amendments thereof, and in addition thereto, relating to the appointment of the Commissioner of Corporations as its attorney, shall file with the Commissioner of Corporations a Power of Attorney and duly authenticated copies of its Charter or Certificate of Incorporation; and said Contractor shall comply with all the laws of the Commonwealth. 16. Liability of Public Officials To the full extent permitted by law, no official, employee, agent or representative of the Town of North Andover shall be individually or personally liable on any obligation of the Town under this Contract. 17. Indemnification The Contractor shall indemnify, defend and save harmless the Town, the Town's officers, attorneys, agents and employees, from and against any and all damages, liabilities, actions, suits, proceedings, claims, demands, losses, costs, expenses, recoveries and judgments of every nature and description (including reasonable attorneys' fees) that may arise in whole or in part out of or in connection with the work being performed or to be performed, or out of any act or omission by the Contractor, its employees, agents, subcontractors, material men, and anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by any party indemnified hereunder. The Contractor further agrees to reimburse the Town for damage to its property caused by the Contractor, its employees, agents, subcontractors or material men, and anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, including damages caused by his, its' or their use of faulty, defective, or unsuitable material or equipment, unless the damage is caused by the Town's gross negligence or willful misconduct. The existence of insurance shall in no way limit the scope of the Contractor's indemnification under this contract. 18. Workers Compensation Insurance The Contractor shall provide by insurar furnishing of other benefits under Chapter ce for the payment of compensation and the 152 of the General Laws of Massachusetts (The (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 6 Worker's Compensation Act) to all employees of the Contractor who are subject to the provisions of Chapter 152 of the General Laws of Massachusetts. Failure to provide and continue in force such insurance during the period of this Contract shall be deemed a material breach of this Contract, shall operate as an immediate termination thereof, and the Contractor shall indemnify the Town for all losses, claims, and actions resulting from the failure to provide the insurance required by this Article. The Contractor shall furnish to the Town evidence of such insurance prior to the execution of this Contract in a form satisfactory to the Town before the same shall be binding on the parties thereto, except if specifically waived by the Town. 18.1 The Contractor further understands and agrees that in rendering services to the town under this Contract that the Contractor is an independent contractor and not an employee of the Town, that the Contractor is not covered by the Town's Workers' Compensation, or liability insurance, that the Contractor shall not make any claim against the Town, its officers, agents and employees and that the Contractor indemnifies, holds harmless, and releases the Town from any claims of the Contractor or of any other party that may arise in whole or in part out of or in connection with the work being performed by the Contractor. 19. Documents, Materials, Etc. Any materials, reports, information, data, etc. given to or prepared or assembled by the Contractor under this Contract are to be kept confidential and shall not be made available to any individual or organization by the Contractor (except agents, servants, or employees of the Contractor) without the prior written approval of the Town, except as otherwise required by law. The Contractor shall comply with the provisions of Chapter 66 and Chapter 66A of the General Laws of Massachusetts as they relates to public documents, and all other state and federal laws and regulations relating to confidentiality, security, privacy and use of confidential data. Any materials produced in whole or in part under this Contract shall not be subject to copyright, except by the Town, in the United States or any other country. The Town shall have unrestricted authority to, without payment of any royalty, commission, or additional fee of any type or nature, publicly disclose, reproduce, distribute and otherwise use, and authorize others to use, in whole or in part, any reports, data or other materials prepared under this Contract. All data, reports, programs, software, equipment, furnishings, and any other documentation or product paid for by the Town shall vest in the Town. The Contractor shall at all times, during or after termination of this Contract, obtain the prior written approval of the Town before making any statement bearing on the work performed or data collected under this Contract to the press or issues any material for publication through any medium. (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 7 20. Confidentiality The Contractor shall comply with M.G.L. c66A if the Contractor becomes a "holder" of "personal data". The Contractor shall also protect the physical security and restrict any access to personal or other Town data in the Contractor's possession, or used by the Contractor in the performance of this Contract, which shall include, but is not limited to the Town's public records, documents, files, software, equipment or systems. 21. Record -Keeping and Retention Inspection of Records The Contractor shall maintain records, books, files and other data as specified in this Contract and in such detail as shall properly substantiate claims for payment under this Contract, for a minimum retention period of seven (7) years beginning on the first day after the final payment under this Contract, or such longer period as is necessary for the resolution of any litigation, claim, negotiation, audit or other inquiry involving this Contract. The Town shall have access during the Contractor's regular business hours and upon reasonable prior notice, to such records, including on-site reviews and reproduction of such records at a reasonable expense. 22. Assignment The Contractor shall not assign or delegate, in whole or in part or otherwise transfer any liability, responsibility, obligation, duty or interest under this Contract without the- written approval of the Town. 23. Subcontracting By Contractor Any subcontract entered into by the Contractor for the purposes of fulfilling the obligations under this Contract must be in writing, authorized in advance by the Town and shall be consistent with and subject to the provisions of this Contract. Subcontracts will not relieve or discharge the Contractor from any duty, obligation, responsibility or liability arising under this Contract. The Town is entitled to copies of all subcontracts and shall not be bound by any provisions contained in a subcontract to which it is not a party. 24. Risk of Loss The Contractor shall bear the risk of loss for any Contractor materials used for this Contract and for all deliveries, and personal or other data which is in the possession of the Contractor or used by the Contractor in the performance of this Contract until possession, ownership and full legal title to the deliverables are transferred to and accepted by the Town. 25. Minimum Wage/Prevailing Wage The Contractor will carry out the obligations of this Contract in full compliance with all of the requirements imposed by or pursuant to General Laws c151, §1, et seq. (Minimum Wage Law) and any executive orders, rules, regulations, and requirements of the Commonwealth (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 8 of Massachusetts as they may from time to time be amended. The Contractor will at all times comply with the wage rates as determined by the Commissioner of the Department of Labor and Industries, under the provisions of General Laws c 149, §§26 to 27D (Prevailing Wage Law), as shall be in force and as amended. The Contractor will, in addition to any other submissions required by the Prevailing Wage Law, submit certified weekly payrolls to the Town with the information described in General Laws c149, §27B. 26. Audit, Inspection and Recordkeeping At any time during normal business hours, and as often as the Town may deem it reasonably necessary, there shall be available in the office of the Contractor for the purpose of audit, examination, and/or to make excerpts or transcript all records, contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. 27. , Pa ment The Town agrees to make all reasonable efforts to pay to the Contractor the sum set forth in the Contractor's bid or proposal within thirty (30) days of receipt of an invoice detailing the work completed and acceptance from the Town of the work completed. 28. Waiver and Amendment Amendments, or waivers of any additional term, condition, covenant, duty or obligation contained in this Contract may be made only by written amendment executed by all signatories to the original Contract, prior to the effective date of the amendment. To the extent allowed by law, any conditions, duties, and obligations contained in this Contract may be waived only by written agreement by both parties. Forbearance or indulgence in any form or manner by a party shall not be construed as a waiver, nor in any manner limit the legal or equitable remedies available to that party. No waiver by either- party of any default or breach shall constitute a waiver of any subsequent default or breach of a similar or different matter. 29. Forum and Choice of Law This Contract and any performance herein shall be governed by and be construed in accordance with the laws of the Commonwealth of Massachusetts. Any and all proceedings or actions relating to subject matter herein shall be brought and maintained in the courts of the Commonwealth of Massachusetts, which shall have exclusive jurisdiction thereof. This paragraph shall not be construed to limit any other legal rights of the parties. (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 9 30. Notices Any notice permitted or required under the provisions of this Contract to be given or served by either of the parties hereto upon the other party hereto shall be in writing and signed in the name or on the behalf of the party giving or serving the same. Notice shall be deemed to have been received at the time of actual service or three (3) business days after the date of a certified or registered mailing properly addressed. Notice to the Contractor shall be deemed sufficient if sent to the address set forth in the Contract and to the Town of North Andover by being sent to the Town Manager, Town Hall, 120 Main Street, North Andover, Massachusetts 01845. 31. Binding on Successors This Contract shall be binding upon the Contractor, its assigns, transferees, and/or successors in interest (and where not corporate, the heirs and estate of the Contractor). 32. Complete Contract This instrument, together with its endorsed supplements, and the other components of the contract documents, constitutes the entire contract between the parties, with no agreements other than those incorporated herein. 33. Contractor Certifications 33.1 By signing this contract, the Contractor certifies under the penalties of perjury that pursuant to General Laws c62C §49A, the Contractor has filed all state tax returns, paid all taxes and complied with all laws of the Commonwealth relating to taxes; and that pursuant to General Laws c 151 A, § 19A, the Contractor has complied with all laws of the Commonwealth relating to contributions and payments in lieu of contributions. 33.2 By signing this contract, the Contractor certifies under the penalties of perjury that this contract has been obtained in good faith and without collusion or fraud with any other person. As such in this certification, the word "person" shall mean any natural person, business, partnership, corporation, union, committee, client or other organization, entity or group of individuals. 33.3 Qualifications. The Contractor certifies it is qualified and shall at all times remain qualified to perform this Contract, that performance shall be timely and meet or exceed industry standards for the performance required, including obtaining requisite licenses, registrations, permits, resources for performance, and sufficient professional, liability, and other appropriate insurance to cover the performance. If the Contractor is a corporation, the Contractor certifies that it is in good standing with the office of the Secretary of State. If the Contractor is a foreign business, the Contractor certifies that it is listed under the Secretary of State's website as licensed to do business in Massachusetts, as required by law. (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 10 33.4 Business Ethics and Fraud, Waste and Abuse Prevention. The Contractor certifies that performance under this Contract, in addition to meeting the terms of the Contract, will be made using ethical business standards and good stewardship of taxpayer and other public funding and resources to prevent fraud, waste and abuse. 33.5 Debarment. The Contractor certifies that neither it nor any of its subcontractors are currently debarred or suspended by the federal or state government under any law or regulations including, Executive Order 147, M.G.L. c29, §29F, M.G.L. c30, §39R, M.G.L. c149, §27C, M.G.L. c149, §44C, M.G.L. c149, §148B and M.G.L. c152, §25C. 34. Additional Provisions: 34.1 Applicable to Contracts for the Procurement of Goods 34.1.1 "Goods" shall mean Goods, Supplies, or Materials, as described in the Contract. 34.1.2 Change Orders: Change orders for contracts subject to M.G.L. c30B may not increase the total contract price by more than twenty-five (25.0%) percent and shall be in compliance with Massachusetts General Laws c30B, §13. This Contract for purchase includes the following delivery, installation or setup requirements: 34.2 Applicable to Contracts for Services 34.2.1 "Services" shall mean furnishing of labor, time, or effort by the Contractor. This term shall not include employment agreements, collective bargaining agreements, or grant agreements. 34.2.2 Change Orders: Change orders for contracts subject to Massachusetts General Laws c30B may not increase the total contract price by more than twenty-five (25%) per cent and shall be in compliance with Massachusetts General Laws c30B, § 13. (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 11 34.2.3 Minimum Wage/Prevailing Wage: The Contractor will carry out the obligations of this Contract in full compliance with all of the requirements imposed by or pursuant to General Laws cl51, §l, et seq. (Minimum Wage Law) and any executive orders, rules, regulations, and requirements of the Commonwealth of Massachusetts as they may from time to time be amended. The Contractor will at all times comply with the wage rates as determined by the Commissioner of the Department of Labor and Industries, under the provisions of General Laws c149, §§26 to 27D (Prevailing Wage Law), as shall be in force and as amended. The Contractor will, in addition to any other submissions required by the Prevailing Wage Law, submit certified weekly payrolls to the Town with the information described in General Laws c149, §27B. 34.2.4 Insurance: The Contractor shall obtain and maintain the following insurance: 34.2.4.1 Workers Compensation Insurance of the scope and amount required by the laws of the Commonwealth of Massachusetts. 34.2.4.2 Broad Form Commercial General Liability coverage with limits of at least $1 Million per occurrence and $2 Million aggregate, and which shall cover bodily injury, death, or property damage arising out of the work. 34.2.4.3 Automobile Liability Coverage, including coverage for owned, hired, or borrowed vehicles with limits of at least $1 Million per person, and $1 Million per accident. The intent of the Specifications regarding insurance is to specify minimum coverage and minimum limits of liability acceptable under the Contract. However, it shall be the Contractor's responsibility to purchase and maintain insurance of such character and in such amounts as will adequately protect it and the Town from and against all claims, damages, losses and expenses resulting from exposure to any casualty liability in the performance of the work. 34.2.4.3 All required insurance shall be certified by a duly authorized representative of the insurers on the "MIIA" or "ACORD" Certificate of Insurance form incorporated into and made a part of this agreement. Properly executed certificates signifying adequate coverage in effect for the duration of the contract with renewal certificates issued not less than 30 days prior to expiration of a policy period, must be submitted to the Town prior to commencement of this Contract. 34.2.4.4 The Town shall be named as an additional insured on the above referenced liability policies, and the Contractor's insurance shall be (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 12 the primary coverage. The cost of such insurance, including required endorsements or amendments, shall be the sole responsibility of the Contractor. 34.2.4.5 Contractual liability must recognize the indemnities contained in this Agreement. 34.2.4.6 Coverages are to be maintained for a period of two (2) years after final payment. 34.2.4.7 The Contractor shall maintain all required insurance in full force and effect as required by this Contract or the Contractor shall be in material breach hereof. (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 13 IN WITNESS WHEREOF the parties have hereto and to two other identical instruments set forth their hands the day and year first above written. THE TOWN % 6 Division/D ment Head Y 6 own Manager Date THE CONTRACTOR SOLITUDE LAKE MANAGEMENT Company Name 3/24/16 Signature Date Marc D. Bellaud, President Print Name & Title Federal Identification No.: 54-1940110 CERTIFICATION AS TO AVAILABILITY OF FUNDS: 4�kslm .,kt- N LI' ' oDate (Rev 1-2016) Contract by and between Town of North Andover and Solitude Lake Management, LLC Page 14 March 14, 2016 Town of North Andover c/o Mr. Bruce Thibodeau, P.E. 420 Great Pond Road North Andover, MA 01845 Re: 2016 Proposal/Agreement for the Aquatic Management Program at Stevens Pond - North Andover, Massachusetts (#466-16) Dear Mr. Thibodeau: Please accept the following as our 2016 Management Proposal/Agreement for continued plant and algae control services at Stevens`Pond. No herbicide treatments were performed during the 2015 season; this season, we recommend targeting fanwort growth in the Triangle Pond with Sonar herbicide, while being prepared to manually hand -pull any observed regrowth in Stevens Pond, should the need arise. One day of manual hand - pulling effort has been included as a contingency. A similar algae management program to 2015 is recommended throughout 2016. Hydro -raking the beach area has been included and is expected to take 3 days of work. Scope of Services Solitude Lake Management will prepare and file the required annual MA DEP permit that is required for the application of chemicals (Sonar, alum., and SeClear algaecide) to the pond. Once we are in receipt of an approved permit, Solitude will perform the pre-treatment inspection to gauge the timing of the various management tasks. All treatments will be performed by Solitude's MA licensed pesticide applicators. Pond shorelines will be posted with warning signs immediately prior to treatments. The printed signs will indicate the temporary water -use restrictions to be impose following the treatment. Nutrient Precipitation Treatment (alum) Stevens Pond has been subject to cyanobacteria (blue-green algae) blooms that degrade overall water quality and increase risk to human health resulting from cyano -toxin exposure. Therefore, in keeping with the long-term management focus of the Town, we feel that it is prudent to continue with an early season low-dose alum treatment for the reduction of available nutrients (phosphorus) in order to limit cyanobacteria growth. The program scope is as follows. The low-dose alum treatment will be scheduled for a period of favorable forecast before the onset of abundant microscopic algae growth, but following the heavier spring flows (mid May -early June). An aluminum dose of about 1 ppm will be sprayed over the entire surface of the pond using a shallow draft Jon boat equipped with a calibrated chemical pumping system. The pH of the water will be monitored throughout the course of the alum treatment. Nuisance Algae Control The relative algae density will be monitored using a Secchi disk following the alum treatment. In the event that nuisance algae conditions arise, SeClear (copper algaecide and water quality enhancer) will be applied to alleviate bloom conditions. Based on algae growth conditions experienced in the past we recommend being prepared to perform at least one SeClear application to protect against the possible development of harmful Competitively Sensitive & Proprietary Materials —The information contained herein is the intellectual property of SOLitude Lake Management. Recipient may not disclose to any outside party .any proprietary information, processes, or pricing contained in this document or any of its attachments without the prior written consent of SbLitude Lake Management. This document is provided to the recipient in good faith and it shall be -the responsibility of the recipient to keep the information contained herein confidential. 590 LAKE STREET, SHREWSBURY, MA 01545 1 888.480.LAKE (5253) 1 SOLITUDELAKEMANAGEMENT.COM Page 2 of 5 bloom conditions. Similar to previous SeClear treatments, the liquid algaecide will be diluted with pond water and then applied, as a surface spray to the designated portion of the pond. Fanwort Control In addition to algae control, we feel that it is necessary to be prepared to maintain fanwort control in Stevens Pond. For this reason, we recommend that the Town be prepared to perform a Sonar herbicide treatment within the Triangle pond. Should low-density fanwort growth be observed within the main portion of Stevens Pond, we should prepare to manually remove the plants. Sonar Herbicide Treatment Should the density of the fanwort growth in the Triangle Pond exceed densities manageable by hand -pulling, a whole pond treatment with the USEPA/state registered herbicide Sonar (active ingredient fluridone) offers the best potential for long-term control. Because of the potential for water exchange between the Triangle Pond and Stevens Pond and the subsequent dilution of the herbicide, we recommend installing a water impermeable curtain across the culvert linking the two waterbodies. We propose the application of Sonar One, the pellet formulation of the herbicide, that allows the slow release of the active ingredient to help maintain the extended contact -exposure -time necessary with Sonar. The Sonar One treatment will be scheduled for a period of favorable forecast and immature active target plant growth (late May -early June). The Sonar One pellets will be applied using a back -pack blower to achieve a pond - wide fluridone dose of 20-30 ppb. Approximately 3-4 weeks after the initial Sonar One application, FasTest samples will be collected and analyzed to determine the in -pond fluridone concentration. The results of this testing will direct the dose and timing of any subsequent treatments. If additional "booster" treatments are required they will be performed to augment the existing fluridone levels in order to maintain a target concentration of approximately 20 ppb for roughly a 40-60 day period. Manual Hand -Pulling We feel that should regrowth occur within the main waterbody, it will best be addressed with manual hand - pulling. Solitude will provide two divers/snorkelers and a jon boat for a day. This crew will geospatially reference each area of fanwort growth in Stevens Pond and physically remove it. All removed plant material will be disposed of at an off-site upland location. Hydro -raking Mechanical hydro -raking will be performed within the beach area of the pond. The focus of the hydro -raking effort will be to remove accumulated detritus and unconsolidated organic materials. The collected materials will be deposited on the beach, to be removed by the Town. Based upon hydro -raking last being performed in 2013, we recommend three days of work to effectively clear the swim area. Monitoring Although no water quality or algae monitoring was conducted in 2015, we feel that discretionary algae sampling and toxin testing should be included in the program as a contingency. Three discretionary algae samples will be collected and analyzed by count and enumeration. In addition, Solitude will collect two samples for analysis of cyano -toxin levels if bloom conditions arise. Competitively Sensitive -&.Proprietary Materials — The information contained herein is the intellectual property of SbLitude Lake Management. Recipient may not disclose to any outside party any proprietary information, processes,. or pricing contained in this document or :any of its attachments without, the prior written consent of SOUtUde Lake: Management. This document is provided to the recipient in good faith and, it shall be the responsibility of the recipient to keep the information contained herein confidential. 590 LAKE STREET, SHREWSBURY, MA 01545 1 888.480.LAKE (5253) 1 SOLITUDELAKEMANAGEM.ENT.COM Page 3 of 5 Reporting A final project completion report will be prepared that outlines the results of any sampling conducted and the management tasks performed. Tentative 2016 Schedule of Performance File MA DEP permit(s) application................................................................................................ February . Pre-treatment Inspection....................................................................................................................... April . Hydro -raking of beach area......................................................................................................... mid May • Low-dose alum treatment...................................................................................... mid May - early June • Initial Sonar One treatment at Triangle Pond, if required ........................................... late May - June • Interim inspections.............................................................................................................late June - Sept. • Follow-up SeClear algaecide treatment(s), if required....................................................... July - Sept. • Booster Sonar One treatment at Triangle Pond, if required............................................................. July • Manual hand -pulling of fanwort in Stevens Pond, if required ................................................. late July • Post-treatment inspections................................................................................................................August • Year -End Report........................................................................................................................... December CLIENT RESPONSIBILITIES It would be your responsibility to comply with the following: • Loading, trucking/disposal of all hydro -raked materials deposited along the water edge, to a permanent upland disposal site. • Pre-treatment notification to the pond residents and/or abutting property owners of the proposed treatment dates and any temporary water use restrictions in effect following treatment. Solitude to provide written notices to the Town for distribution, if requested. • Compliance and enforcement of temporary water -use restrictions. • Verification that no pond abutter, nor persons downstream within one mile of the pond, draw water from the pond or waterway for irrigation or any other purposes. GENERAL CONDITIONS • Company will continue to maintain all appropriate licensing necessary to perform all specified work in a safe and legal manner throughout the entire contract period. • Company will furnish personnel, equipment, boats, materials, and other items required to provide the forgoing at his expense. • Company is dedicated to environmental stewardship in all of its work and maintains a diligent program to recycle all plastic containers, cardboard, paper and other recyclable wastes generated through the performance of our contract work. • Company will maintain general liability and workman's compensation insurance. • Company shall be reimbursed by the Client for any non -routine expenses, administrative fees, compliance fees, or any other similar expense that are incurred as a result of requirements placed on the Company by the Client that are not covered specifically by the written specifications of this contract. • Neither party may assign this Agreement without the written consent of the other party; provided, that Company may assign this Agreement upon the merger, reorganization, consolidation, change of control or sale of all or substantially all of the assets of Company. This Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns. Competitively Se:risitive & Proprietary Materials - The information contained herein is the intellectual property of SOLitude Lake.Management. Recipient may not disclose to any outside party any proprietary information, processes, or pricing contained in this document or any of its attachments without the prior written consent of SOLitude Lake Management. This document is provided to the recipient in good faith and it shall be the responsibility of the recipient to keep the Infdrmation contained herein confidential. 5911 LAKE. STREET, .SHREWSBURY, MA 01545 1 888.480.LAKE (5253.) 1 SOLITUDELAKEMANAGEMENT.COM s Page 4 of 5 The Client agrees to pay penalties and interest in the amount of 2% per month for all past due invoices and related account. balances in excess of 30 days past due from the due date as specified by the contract and as stated on the relevant invoice presented to the Client. The Client covenants and agrees to pay reasonable attorney's fees and all other related costs and expenses for collection of past due invoices and account balances and for ahy other actions required to remedy a material breach of this contract. COST AND PAYMENT SCHEDULE ermitiri _ W6 FYQ : 1 9. Pre are and file MA DEP License to Apply Chemicals $150 $150 $150 Nutrl'ent, Pfeci ;itdtion _ ..- • Perform low-dose alum treatment for the removal of $8,100 $8,100 $8,100 available phosphorus • Perform SeClear algaecide treatments (as necessary) to prevent algae bloom conditions - recommend one - $3,475 $3,475 $3,475 treatment @ 3,475/treatment Fanw6rt Control • Install & remove limno-curtain and conduct Sonar One herbicide treatment program of Triangle Pond, if $1,300 - $1,300 - necessar • Perform manual hand -pulling of fanwort in Stevens - $1,050 $1,050 $1,050 Pond, if necessa wimArea Maintenonce`. • Perform mechanical hydro -raking of nuisance vegetation within town swim area $7,2001 - $7,2001 - o Equipment mobilization/demobilization - $1,500 o Three days of raking- 1,900/da Monitodrig, - • Three algae samples for ID and count by enumeration $380 $380 $380 • Two algae toxin samples - collection & analysis, if - $565 $565 $565 necessary • Prepare Year -End Report - 950 950 $950 I - All removed material will be stockpiled on the swim beach. Loading, trucking, ana rinai disposal of the removed material will be the responsibility of the Town. Invoices will be submitted upon completion of each task. Payment is due within 30 days of receipt of an invoice. Specific, mutually agreeable date(s) for hydro -raking and chemical treatment will be scheduled with the Town in advance. Our ability to proceed with this treatment program is contingent upon the receipt of this Agreement in a timely manner; therefore, we request you return a signed copy to our office as soon as possible. If you are unable to sign at this time, or if you have any questions, please do not hesitate to call our office. We appreciate your past business and are looking forward to working with you again in the year ahead to maintain desirable conditions in Stevens Pond. Please feel free to contact our office if you have any questions. Competitively Sensitive & Proprietary Materials —.The information contained herein is the inteliectual.property of SOLitude Lake Management: Recipient may not disclose to any outside party any proprietary information, processes, or pricing- contained in this documerit or any of its attachments without the prior written :consent of SOLitude Lake Management. This document is provided to the recipient in good faith and it shall be the responsibility of the recipient to keep the information contained herein confidential. 590 LAKE STREET, SHREWSBURY,. MA 01545 1 888AMLAKE (5253) 1 SOLITUDELAKEMANAGEMENT,GOM Page 5 of 5 Sincerely, SOLITUDE LAKE MANAGEMENT Marc D. Bellaud President/Aquatic Biologist ACCEPTED BY: Town of North Andover (Please select desired option below) ❑ One -Year (201-6) contract option For prices and services described above ❑ Three -Year (2016-2018) contract option For prices and services described above (sign name) (print name) (date) Competitively Sensitive& Proprietary Materials —The information contained herein is the intellectual property of SbLitude Lake. Management. Recipient, may not disclose. to any outside, party any proprietary information, processes, ,or pricing contained in this document' or any of its attachments without the prior written consent of SOLitude Lake Management. This document is provided to the recipient in good faith and it shall be the responsibility of the recipient to keep the information contained herein confidential. 590 LAKE STREET, SHREWSBURY,: MA 01545 1 888.480.LAKE (5253) 1 SOLITUDELAKEMANAGEMENT.COM CERTIFICATE OF VOTE At a duly authorized meeting the Board of Directors of the SOLITUDE LAKE MANAGEMENT held on 02/22/16 it was VOTED, THAT Marc D. Bellaud (Name) President (Officer) of Solitude lake Management be and hereby is authorized to execute contracts and bonds in the name and on behalf of said Solitude Lake Managementand affix its corporate seal hereto; and such execution of any contract or obligation in the name of Marc D. Bellaud on its behalf by such officer under seal of Solitude Lake Management shall be valid and binding upon receipt I hereby certify that I am the clerk of the above named solitude Lake Management and that Marc D. Bellaud is the duly elected officer as above of said Solitude Lake Management and that the above vote has not been amended or rescinded and remains in full force and effect as the date of this contract. 3J(D G e) Certification of the Corporate Clerk CERTIFICATIONS CERTIFICATE OF NON -COLLUSION The undersigned certifies under penalties of perjury that this bid or proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification, the word "person" shall mean natural person, business, partnership, corporation, committee, union, club or other organization, entity, or group of individuals. r Signature Date March 24, 2016 Marc D. Bellaud, President Solitude Lake Management Print Name & Title Company Name CERTIFICATE OF TAX COMPLIANCE Pursuant to Chapter 62C of the Massachusetts General Laws, Section 49A (b), I Marc D. Bellaud , authorized signatory for Solitude Lake Management Name of individual Name of contractor do hereby certify under the pains and penalties of perjury that said contractor has complied with all laws of the Commonwealth of Massachusetts, and the Town of North Andover, relating to taxes, permit or other fees, reporting of employees and contractors, and withholding and remitting child support. Signature March 24, 2014 Date DATE (MMIDWYM AOfZ,I�C40R CERTIFICATE OF LIABILITY INSURANCE 03/29/2016 ) 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 endorsement(s). PRODUCER NAME: CONTACT Jim Tripolone PHONE 303.748-8869go call, Na Nn Scottish American Risk Services o ass: JIMT@scotamerican.com 19563 E Mainstreet, Suite 200n INSURERS AFFORDING COVERAGE NAIC 0 Parker, CO 60138 _ INSURER A: Philadelphia Indemnity Insurance Company -- -- ---- INSUREDINsuR£R ---- --- -- e: insurance Company of the State of Pennsylvania Solitude Lake Management LLC INSURER C INSURER D: 590 Lake Street INSURER E: Shrewsbury, MA 01545 INSURER F:: COVERAGES CERTIFICATE 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. IN- SR TRI -- IA66LIS TYPE OF INSURANCE INSR 1 POLICY NUMBER POLICY EFF I MMIDD POUCY EXP MMIDDIY V LIMITS GENERAL LIABILITY EACH OCCURRENCE S 1000000 pREMISEs rEa S X COMMERCIAL GENERAL LIABILITY CLAIMS4VIAOE R7/ OCCUR I MED EXP (Any oneperson) S 5000 A Y Y PHPK1315100 0410112016 04101/2017 PERSONAL & ADV INJURY S 1000000 _._.......__........._...._-..-_._..............._..............._. ................. ......... ...— --- GENERAL AGGREGATE S 3000000 GEN'LAGGREGATE LIMIT APPLIES PER: PRODUCTS -COMPIOP AGG $ 3000000 $ X POLICY PRO LOC i AUTOMOBILE LIABILITY ( CFOMB LE SINGLIMIT �- 1000000 BODILY INJURY (Per person) S X ANY AUTO A ALL OWNED SCHEDULED %� AUTOS S HIREDAUTOS nAVU0TTN0?OWNED IX 5 Y Y PHPK1315100 04/0112016 04101/2017 BODILY INJURY (Por ntlCide i) S PROPERTY DAMAGE S Per arxfdenn _ $ UMBRELLA LIAR X OCCUR j EACH OCCURRENCE S 5000000 A X EXCESSUAS _ CLAIMS -MADE Y Y 7823483 04/01/2016 04/01/2017 —_ AGGREGATE $ 5000000 X I DED RETENTIONS 10000 S WORKERS COMPENSATION X WC STATU• OTR - B ANO EMPLOYERS' LIABILITY ANYPROPRIETOR/PARTNER/EXECUTWE YIN I OFFICERIMEMBER EXCLUDED? (MyyaeandMory in NH) I i N I A I Y WCO25-07-2395 04/01/2016 04/01/2017 ---- - --- E.L. EACH ACCIDENT S � 1000000 - w - E.L. DISEASE - EA EMPLOYE $ 1000000 �OEMPTPTI N OF OPERATIONS below E.I. DISEASE -POLICY LIMIT S 1000000 A Pollution Liability Y ( Y 7824161 04/01/2016 04/0112017 Per Contamination $5,000,000 Total Policy Aggregate $5,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES fAttach ACORD 101. AddiNonnl Ramnrks Sehodula, U more space Is require(l) RE: Stevens' Pond contract Town of North Andover is an additional insured on all policies with the exception of Workers Compensation. Coverage is Primary 8 Non -Contributory. CERTIFICATE HOEDER CANCELLATION ACORD 25 (2010105) ©1988-2010 AeORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD General Page 2 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Town of North Andover THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 120 Main Street ACCORDANCE WITH THE POLICY PROVISIONS. North Andover, MA 01845 AUTHORIZED REPRESENTATIVE A ACORD 25 (2010105) ©1988-2010 AeORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD General Page 2 BUSiNESSOWNERS BP 04 51 01 06 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - WITH ADDITIONAL INSURED REQUIREMENT IN CONSTRUCTION CONTRACT This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM The following is added to Paragraph C. Who Is An Insured in Section 11-- Liability: 3. Any person(s) or organization(s) for whom you are performing operations is also an additional insured, if you and such person(s) or organiza- tion(s) have agreed in waling in a contract or agreement that such person(s) or organiza- tions) be included as an additional insured on your policy. Such person(s) or organization(s) is an additional insured only with respect to li- ability for "bodily injury" "property damage" or "personal and advertising injury" caused, in whole or in part, by: a. Your acts or omissions; or b. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured. A person's or organization's status as an in- sured under this endorsement ends when your operations for that insured are completed or the contractor's agreement is terminated. BP 04 61 01 06 © ISO Properties, Inc., 2004 1 Page 1 of 1 CI BUSINESSOWNERS CL BP 2012 03 06 THIS ENDORSEMENT CHANCES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES, OR CONTRACTORS - LIMITED COMPLETED OPERATIONS COVERAGE - AUTOMATIC STATUS WHEN REQUIRED IN CONSTRUCTION AGREEMENT WITH YOU This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM A. Section 11 - Who is An Insured is amended to include as an additional insured any person or organization, but only when: 1. You and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy; and 2. Such written contract or written agreement has been executed prior to the "bodily injury" or "property damage". B. The insurance provided to the additional insured by this endorsement is further limited as follows: 1. That person or organization is an additional insured only for liability for "bodily injury" or the "property damage": a. Due to your negligence and specifically caused by "your work" for the additional insured which is the subject of the written contract or agreement; and b. Included within the "products -completed operations hazard". 2. The Limits of Insurance applicable to the additional insured are those specified in the written contract or written agreement, or in the Declarations of this policy, whichever is less. These Limits of Insurance are inclusive of, and not in addition to, the Limits of Insurance shown in the Declarations. 3. The insurance provided to the additional insured does not apply to "bodily injury" or property damage" arising out of an architects, engineers or surveyors having rendered or having failed to render any professional services, including, but not limited to: a. The preparation, approval or the failure to prepare or approve maps, shop drawings, opinions, reports, surveys, held orders, change orders or drawings and specifications; or b. Supervisory, inspection, architectural or engineering services. 4. The coverage provided to the additional insured by this endorsement and by paragraph f. of the definition of "insured contract" under (SECTION II - LIABILITY, Liability and Medical Expenses Definitions), as amended by this endorsement, does not apply to "bodily injury" or "property damage" beyond: a. The period of time required by the written contract or written agreement; or b. Three (3) years from the date of completion of "your work" on the project which is the subject of the written contract or written agreement; or c. The effective date of the cancellation or the non -renewal of this policy; or d. The effective date of any deletion of, any removal of, or any non -continuance of, this additional insured endorsement from this policy, whichever is less. C. With respect to the coverage provided under this endorsement, SECTION 11 - LIABILITY, Liability and Medical Expenses General Conditions, is amended as follows: 1. The following is added to the Duties In The Event of Occurrence, Offense, Claim or Suit Condition. As a condition precedent to coverage and/or defense, an additional insured under this endorsement must give us as soon as practicable notice of an "occurrence" which CL BP 2012 03 06 Includes copyrighted material of Insurance Services Office, with its permission Page 1 of 4 may result in a claim or "suit' under this insurance. Page 2 of 4 Includes copyrighted material of Insurance Services Office, with its permission CL BP 2012 03 06 D. With respect to the coverage provided under this endorsement, SECTION III - COMMON POLICY CONDITIONS (APPLICABLE TO SECTION I - PROPERTY AND SECTION 11 - LIABILITY), is amended as follows: Paragraph H.3. is deleted and replaced with the following: 3. When this insurance is excess over any other Business Liability Coverage available to the additional insured whether primary, excess, contingent or on any other basis unless you and the additional insured have agreed in writing in a contract or agreement that this insurance be primary to the additional insureds own coverage. Where required by such written contract or agreement, we will treat any other primary liability insurance available to that additional insured for products/completed operations with respect to your work for that person or organization as excess to this insurance. However, this insurance, in all cases, will be excess over any other insurance to which that person or organization has been added as an additional insured by endorsement. When this insurance is excess, we will have no duty under Business Liability Coverage to defend the additional insured against any "suit" if any other insurer has a duty to defend the additional insured against that "suit." If no other insurer defends, we will undertake to do so, but we will be entitled to the additional insureds rights against all those other insurers. When this insurance is excess over any other Business Liability Coverage, 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. CL BP 20 12 03 06 includes copyrighted material of Insurance Services Office, Page 3 of 4 with its permission E. With respect to the coverage provided under this endorsement, SECTION 11 - LIABILITY, Liability and Medical Expenses Definitions is changed as follows: The definition of "insured contract, is changed by replacing paragraph f, of that definition with the following: "Insured contract" means: 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 specifically caused by 'your work" and included in the "products - completed operations hazard". Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f, does not include that part of any contract or agreement: (1) That indemnifies a railroad for "bodily injury" or "property damage" arising out of construction or demolition operations, within 5d feet of any railroad property and affecting any railroad bridge or trestle, tracks, road -beds, tunnel, underpass or crossing; (2) 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 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 (3) 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 (2) above and supervisory, inspection, architectural or engineering activities. Page 4 of 4 Includes copyrighted material of Insurance Services Office, with its permission CL BP 2012 03 06