HomeMy WebLinkAboutPK14-175 - Original - The Active Network, Inc. - Active.com Christmas Rush Fun Run - 09/19/2013 Records Mlanagement-N
KENT n
WAS
„,„O„„ Document
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CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name: Active.com
Vendor Number:
JD Edwards Number
Contract Number: I?k 14 - I15
This is assigned by City Clerk's Office
Project Name: Active.com Christmas Rush Fun Run
Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ® Contract
❑ Other:
Contract Effective Date: C1 13 Termination Date:
Contract Renewal Notice (Days): 30
Number of days required notice for termination or renewal or amendment
Contract Manager: Mark Hendrickson (tp) Department: Cultural Programs
Detail: (i.e. address, location, parcel number, tax id, etc.):
S.Pub]ic\Records Man agement\Forms\ContractCover\adcc7832 1 11/08
Page 1 of 4
View Contract Print Contract
Contract accepted by Christmas Rush Fun Run/Walk
Date contract accepted 9/19/2013
Your use of TAN's software as a solution product("Software")and products,software,services and web sites
(referred to collectively as the"Services")is subject to the terms set forth below(the"Terms")and is between
you and TAN "TAN" means The Active Network,Inc with a principal place of business is at 10182 Telesis
Court, San Diego,CA 92121 In order to use the Software and Services, you must first agree to these Terms.
You represent and warrant that you have the necessary and full right,power,authority, and capability to
accept these Terms,to bind your organization,and to perform your obligations hereunder.You can accept the
Terms by.(i)clicking to accept or agree to the Terms,where this option is made available to you by TAN in the
user interface for any Software or Service;(ii)where a link to these terms appears in an order form or other
document provided to you by TAN,or(iii)by actually using the Software and/or Services.In the case of(iii),
you understand and agree that TAN will treat your use of the Software and/or Services as acceptance of the
Terms from that point onwards You may not use the Software and/or Services and may not accept the Terms
if(a)you are not of legal age to form a binding contract with TAN,or(b)you are a person barred from
receiving the Software and/or Services under the laws of the United States or other countries including the
country in which you are resident or from which you use the Software and Services.You may not use the
Software or Services if you do not accept the Terms By accepting the Terms,you agree as follows
1.Services.TAN will provide you access to its Software and Services related to your events,camps,licenses,
classes,tickets,facility/equipment use,transactions,sales, memberships, reservations,donations,and/or
activities(together,"Events") The features,services, options,and fees may be described more fully in an
applicable schedule, pricing form, order form, or similar document, referencing these Terms(each,a
"Schedule") Each Schedule will be governed by these Terms and incorporated herein by reference You agree
to provide us with certain information relating to your organization as necessary for us to provide the
Software and Services Software provided under these Terms is deemed delivered when made available to you.
2 License to Intellectual Property/Promotion a)TAN retains all right,title,and interest in and to its Software
and Services and any underlying software subject to the limited license provided by these Terms
b)TAN hereby grants to you a limited,non-exclusive,non-transferable license(i)to use the Software and
Services solely in accordance with the Schedule and these Terms,and(ii)to display, reproduce, distribute,and
transmit in digital form TAN's name and logo solely for the purposes set forth in this Section 2 You hereby
grant to TAN a limited license to use information provided by you relating to your organization,which may
include your organization's name,trademarks, service marks,and logo, in connection with the promotion of
your organization or Events
c)You will make reasonable efforts to promote and encourage the use and availability of the Software in
connection with the promotion of your Events for which you are using the Software and Services.You will
include TAN's name and logo in newsletters,printed registration forms or mailings provided by you to
prospective participants(e g, by inserting the following statement in any online or print media related to your
Event:"Online Registration Powered by Active.com") TAN will be the sole and exclusive provider of
registration services similar to the Software and Services provided to you hereunder for each Event for which
you are using TAN's Software and Services during the term of these Terms
d)You agree to receive notifications regarding free product, promotional items,and giveaways at your Event
(s)or facility(ies), but you may opt not to receive the items from TAN Registrants of your Events may opt-in to
receive information, items, or promotions/deals from TAN,we will be responsible for providing customer
service for any such offers.
e) Each party agrees to comply with all applicable laws,rules,and regulations relating to such party's
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Page 2 of,4
obligations hereunder.
3.Information Collection.TAN collects certain information from individuals as part of the registration process
for your Events You may login to our data management system to access this information.You are
responsible for the security of your login information and for the use or misuse of such information by users
authorized by you to use the Software and Services.You will immediately notify TAN in writing if any such
users are no longer authorized.Both parties agree to use the collected information in compliance with(i)all
applicable laws,rules and regulations, including,without limitation,those governing online privacy and use of
credit card data(i.e using credit card information only for purposes authorized by the cardholder),(ii)
applicable Payment Card Industry Data Security Standards,and(ii)TAN's privacy policy as published on its
website
4 Fees a)You will pay the fees as more fully described in the applicable Schedule.For registration Software,
unless otherwise set forth on the applicable Schedule,TAN will collect registration fees charged by you from
individuals who register for your Events online,for the purposes of card association rules,as a merchant of
record but not a seller of record TAN will remit those sums to you, net of chargebacks and any other offsets,
bi-weekly unless otherwise set forth in the applicable Schedule,less TAN's service fees as set forth in the
applicable Schedule TAN may suspend its performance hereunder,including remitting payments,in the event
it reasonably believes that the Software or Services are being used for fraudulent or other suspect purposes If
you have agreed to a minimum volume commitment in a Schedule,TAN also has the right to charge fees
owed to it by you if your organization does not meet the agreed volume commitments and may collect those
fees by issuing an invoice or by offsetting the deficiency from any account balance you maintain with TAN.
Any minimum volume commitment calculations will begin on the date that the Software is live for your Event
(s).TAN may also reimburse itself for any chargebacks, returned items or overdue fees owed by you out of the
registration fees it collects on your behalf by offsetting your account If the Schedule indicates that you are
paying on a subscription basis,you will be invoiced for the first year of subscription fees upon the first live
operational use of the Software("Go-Live Date"),with subsequent annual subscription fees being invoiced
upon each anniversary of Go-Live Date.Payment of subscription fees are due within thirty(30)days of your
receipt of an invoice All fees and prices are in United States Dollars unless otherwise specified
b)All fees that are not directly collected by TAN as part of registration fees will be due from you within thirty
(30)days from the end of the remittance cycle during which the fees accrued These fees are displayed on
your account statement Past due fees shall accrue interest at the annual rate of ten percent(10%)per annum.
In the event of delay in paying a fee,you agree to reimburse TAN for any fees incurred in its collection efforts.
TAN may suspend or deactivate your account if your account is more than thirty(30)days past due.
c)TAN reserves the right to modify the fees once per calendar year,provided that any increase will not exceed
twelve and a half percent(12 5%) TAN shall notify you at least thirty(30)days in advance of any such change.
If we modify the fees,you can terminate these Terms at that time by providing written notice within thirty(30)
days following the date the change is implemented
d)As the seller of record,you will be solely responsible for,and will pay,any and all use,excise,sales or
privilege taxes,duties,value added taxes,fees,assessments,or similar liabilities, chargeable by a governmental
authority as a result of any Software or Service provided under these Terms Taxes on TAN's net income are
excluded
e)In the event you are entering into these Terms and seeking the Services for the benefit of a third-party
event or organization("Third Party Beneficiary"),you agree that we may send registration fees collected by us
directly to the Third Party Beneficiary
5 Disclaimer of Warranty/Limitation of Liability TAN EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE USE
OF ITS SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE OR
SERVICES WILL MEET YOUR REQUIREMENTS SOFTWARE AND SERVICES ARE PROVIDED TO YOU ON AN"AS-
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IS"BASIS WITHOUT WARRANTIES OF ANY IGND,EITHER EXPRESS OR IMPLIED,INCLUDING WITHOUT
LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TAN SHALL NOT
BE LIABLE FOR INDIRECT,INCIDENTAL,CONSEQUENTIAL, PUNITIVE,OR LOST PROFIT DAMAGES TAN'S
TOTAL AGGREGATE LIABILITY FOR ANY MATTER ARISING FROM OR RELATED TO THESE TERMS IS LIMITED TO
THE AMOUNT OF FEES ACTUALLY PAID BY YOU AS CONSIDERATION FOR THE SOFTWARE AND SERVICES
GIVING RISE TO SUCH CLAIM DURING THE TWELVE(12)MONTH PERIOD PRECEDING THE DATE ON WHICH
THE CAUSE OF ACTION AROSE.
6.Indemnification,a)Each party(the"Indemnifying Party")shall defend,settle,and pay damages(including
reasonable attorneys'fees)("Damages") relating to any third party claim, demand, cause of action or
proceedings (whether threatened,asserted,or filed)("Claims")against the other party hereto (the
"Indemnified Party")to the extent that such Claim is based upon: (i)the Indemnifying Party's violation of any
applicable law,rule,or regulation, and/or(n)provision, by the Indemnifying Party,of materials,products,or
services as part of such party's obligations hereunder that infringe the intellectual property rights of any third
party provided that such materials,products,or services are used in accordance with these Terms.
b)You shall further defend,settle,and pay Damages relating to Claims to the extent based on(i)injury or
death to a person or damage to property resulting from the participation in an Event operated by you in
connection with the Software and/or Services,and/or(u)brought by a Third Party Beneficiary that relate to or
arise from your negligence,wrongdoing,or lack of authority to act on behalf of such third party.For the
purposes of Sections 5 and 6, reference to TAN shall also include its suppliers and licensors.
7.Term and Termination The term of these Terms shall be for three(3)years from the Effective Date with
automatic renewals for three(3)year terms thereafter,unless either party gives written notice to the other
party to terminate these Terms no less than twelve(12)months prior to the expiration of the then-current
term Either party may terminate these Terms (a)upon a material breach by the other party,if such breach is
not cured within thirty(30)days following written notice to the breaching party,or(b)where the other party is
subject to a filed bankruptcy petition or formal insolvency proceeding that is not dismissed within thirty(30)
days.
8 Miscellaneous.a)Any notices required to be given under these Terms shall be in writing sent to the address
set forth below for you or,in the case of TAN,to the address set forth above to the attention of General
Counsel Notices will be deemed received the next day if sent via overnight mail or courier with confirmation
of receipt,or three(3)days after deposited in the mail sent certified or registered.
b)These Terms are non-assignable without the written consent of the other party,except that TAN may assign
without consent:(Q its rights to receive payments,or(u)to an affiliate or in connection with any sale of or any
other transaction involving the transfer of more than fifty percent of its voting securities or assets Any
assignment in violation of these Terms will be void.
c)These Terms shall be governed by the laws of the State of California,without giving effect to the conflict of
laws provisions thereof.Neither the United Nations Convention of Contracts for the International Sale of
Goods nor the Uniform Computer Information Transactions Act shall apply to these Terms Any legal action or
proceeding relating to these Terms shall be instituted only in any state or federal court in San Diego County,
California In any action or suit to enforce any right or remedy under these Terms or to interpret any provision
of these Terms,the prevailing party shall be entitled to recover its costs, including reasonable attorneys'fees.
d)These Terms contains the entire understanding of the parties regarding the subject matter hereof and can
only be modified or amended by a subsequent written agreement executed by both parties,
e)Sections 2,3, 5,7,and 8 of these Terms and any fees owed by you shall survive any termination or
expiration of these Terms.
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f)If any provision of these Terms is held unenforceable by a court of competent jurisdiction,that provision
shall be enforced to the maximum extent permissible so as to effect the intent of the parties,and the
remainder of these Terms shall continue in full force and effect,
g)No waiver of any provision of these Terms or any attachment shall be effective unless it is in writing and
signed by the party against which it is sought to be enforced
h)Neither party will be deemed to be in default hereunder,or will be liable to the other,for failure to perform
any of its obligations under these Terms to the extent that such failure results from any event or circumstance
beyond that party's reasonable control
http://www.active.com/explorer/admin/contract.cfm?eventId=2114913 5/1/2014
Washington State Department of Retirement Systems
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AMENDMENT TO THE HOSTED SOFTWARE
LICENSE AND SERVICES AGREEMENT
("AGREEMENT") BETWEEN
Active Network, LLC (successor in interest to
The Active Network, Inc.) ("Active") and CITY
OF KENT ("City,r)
INSURANCE REQUIREMENTS
This Amendment No. 1 (this "Amendment") is made effective as of
June 19, 2014 (the"Amendment Effective Date") and amends that
certain Agreement between Active and City dated as of March 26,
2014 to include the following insurance requirements:
Insurance
Active shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which
may arise from or in connection with the performance of the work hereunder
by Active, its agents, representatives, employees or subcontractors._
A. Minimum scope of Insurance
Active shall obtain Insurance of the types described below;
1. Commercial General Liability insurance shall be written on
ISO occurrence form CG 00 01 and shall cover liability
arising from premises, operations, Independent contractors,
products-completed operations, personal injury and
advertising injury, and liability assumed under an Insured
contract. The City shall be named as an insured under the
Court's Commercial General Liability insurance policy with
respect to the work performed for the City using ISO
additional insured endorsement CG 20 10 11 85 or a
substitute endorsement providing equivalent coverage.
2. Professional Liability (Technology Errors & Omissionsl
insurance appropriate to Active's profession.
3. Fidelity/Crime insurance with specific coverage for Computer
Fraud and Funds Transfer Fraud.
4. Cvber Liability Insurance naming the City as an Additional
Insured.
B. Minimum Amounts of Insurance
Active shall maintain the following Insurance limits:
1. Commercial General Liability Insurance shall be written with
limits no less than $1,000,000 each occurrence, $2,000,000
general aggregate and a $2,000,000 products-completed
operations aggregate limit.
2. Professional Liabl It (Technology Errors & Omisslonsl
Insurance shall be written with limits no less than
$2,000,000 per occurrence.
3. F elky/Crime insurance shall be written with limits of
$2,500,000 and Inclusive of coverage for Computer Fraud
and Funds Transfer Fraud
4. yber Liability insurance coverage shall be written with limits
of at least $2,000,000 per occurrence and $2,000,000
aggregate.
C. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following
provisions for Automobile Liability and.Commercial General Liability
Insurance:
1. Active's insurance coverage shall be primary insurance with respect to the
City. Any Insurance or self-insurance coverage maintained by the City
shall be excess of Active's insurance and shall not contribute with it.
2. Active's insurance shall be endorsed to state that coverage shall not be
cancelled by either party, except after thirty (30) days prior written notice
by certified mall, return receipt requested, has been given to the City.
3. The City shall be named as an additional insured on all policies (except
Professional Liability) as respects work performed by or on behalf of
Active and a copy of the endorsement naming the City as additional
Insured shall be attached to the Certificate of Insurance. The City
reserves the right to receive a certified copy of all required insurance
policies. Active's Commercial General Liability insurance shall also contain
a clause stating that coverage shall apply separately to each insured
against whom claim is made or suit is brought, except with respects to
the limits of the insurer's liability.
D. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not
less than A:VII.
E. Verification of Coverage
Active shall furnish the City with original certificates and a copy of the
amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the Insurance requirements of
Active before commencement of the work.
F. Subcontractors
Active shall include all subcontractors as insureds under its policies or shall
furnish separate certificates and endorsements for each subcontractor. Ali
coverage for subcontractors shall be subject to all of the same insurance
requirements as stated herein for Active.
Active agrees to provide the documents required by this Amendment
(Certificate of Insurance, plus Additional Insured endorsement naming the
City of Kent) wlthln 30 days of receipt of this document.
By signing below both parties agree to the terms of this Amendment to the
original Agreement and have executed this Amendment as of the
Amendment Effective Date
Signed:
City of Kent Agreed and Accepted;
Active Network, LLC
By; By:
® DATE(MMIDDIYYYY)
ACoR" CERTIFICATE OF LIABILITY INSURANCE
4/16/2015 6/I1/2014
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER
IMPORTANT If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed If SUBROGATION IS WAIVED, subject to
the terms and conditions of the policy,certain policies may require an endorsement A statement on this certificate does not confer rights to the
certificate holder In lieu of such endorsement(s)
PRODUCER LOCkton Insurance Brokers,LLC CNAME
ONTACT
CA License#0171 5767 PHONE FAX
NQ. AC Na
TWo Embarcadero Center,Suite 1700 E-MAIL
San Francisco CA 94111 ADDRESS
(415)568-4000 INSURERS AFFORDING COVERAGE NAIC it
INSURER Federal Insurance Co=any 20281
INSURED Active Network,LLC INSURER B National I Jnion Fire Ins Co Pittsburgh P 1
1381070 10182 Telesis Ct,Suite 100 INSURER C
San Diego CA 92121 INSURER D
INSURER E
INSURER F
COVERAGES 1084882 CERTIFICATE NUMBER- 12983067 REVISION NUMBER. XXXXXXX
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS
INSR TYPE OF INSURANCE ADD SUBR POLICY EFF POLICY EXP LIMITS
LTR WVD POLICY NUMBER MMIDD/YYYV MMIDD
A X COMMERCIAL GENERAL LIABILITY Y N 3587-79-16 4/16/2014 4�16i201$
DAMAGE TO RENTED S 1'000 000
CLAIMS-MADE OCCUR PREMISES(Ea occurrence)
X Host Liquor Liab MED EXP(Any oneperson) s 10,000
Included PERSONAL&ADV INJURY S 1,000,000
GEML AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE 5 2,000-000
X POLICY PRO LOC
JECT PRODUCTS-COMPiOP AGG S 2
S
OTHER
A AUTOMOBILE LIABILITY Y NT 7354-66-85 4/16/2014 4/16/2015 (Ea accident) S 1,000.000
_
IANY AUTO BODILY INJURY(Per person) S XXXXXXX
ALL OWNED SCHEDULED BODILY INJURY Per accident 5 XXJ XXXX
AUTOS NON-OWNED PROPERTY DAMAGE s XXXXXXX
HIRED AUTOSAUTOS
AUTOS S XXXXXXX
A X UMBRELLA LIAB }[ OCCUR Y N 7986-52-88 4/16/2014 4/16/2015 EACH OCCURRENCE S 5 000 000
EXCESS LIAB CLAIMS-MADE AGGREGATE S 5,000,000
DIED RETENTION$ S XX XXX
WORKERS COMPENSATION N' 7173-76-68 4/16r2014 4/16/2015 X STATUTE ER
A AND EMPLOYERS'LIABILITY
ANY PROPRIETOR/PARTNERIEXECUTIVE YIN EL EACH ACCIDENT $
1,000,000
OFFICER/MEMBER EXCLUDED? � N/A
(Mandatory in NH) E L DISEASE-EA EMPLOYEE S 1 000 000
If yes,describe under
D ESCRIPTION OF OPERATIONS below EL DISEASE-POLICY LIMIT S 1
B Crime Y 'N 04-186-73-28 4/16,12014 4/16/2015 $5,000,000 Limit
B Tech E&OlCyber Liability 04-177-78-80 4/16/2014 4/16/2015 $5,000,000 Limit
DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES (ACORD 101,Addmonal Remarks Schedule,maybe attached d more space is required)
RE Kent Parks(City of Kent),Recreation end Community Services is an Additional Insured to the extent provided by the policy language or endorsement issued
or approved by the insurance carrier Insurance provided to Additional lnbured(b)is primary and non-contributory as per the attached endorsements or policy
language
CERTIFICATE HOLDER CANCELLATION See Attachment
12983067
Kent Parks,Recreation and Community Services SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
H1I15 THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
Attn Chris220 Fourth Hills SouthACCORDANCE WITH THE POLICY PROVISIONS
AvenKent WA 98032
AUTHORIZED REPRI �1t
C I rights reserved.
ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD
Liability Insurance
Endorsement
Policy Period: 4/16/2014 TO 4/16/2015
Effective Date: 4/16/2014
Policy Number: 3587-79-16
Insured ACTIVE NETWORK, INC
Name of Company FEDERAL INSURANCE COMPANY
Date Issued: 4/16/2014
This Endorsement applies to the following forms*
GENERAL LIABILITY
Under Who Is An Insured,the following provision is added
Who/s An Insured
Scheduled Person Or Subject to all of the terms and conditions of this insurance, any person or
Organization organization organization shown in the Schedule,acting pursuant to a written
contract or agreement between you and such person or organization, is an
insured, but they are insureds only with respect to liability arising out of your
operations, or your premises, if you are obligated, pursuant to such contract or
agreement,to provide them with such insurance as is afforded by this policy
However,no such person or organization is an insured with respect to any
• assumption of liability by them in a contract or agreement This limitation
does not apply to the liability for damages for injury or damage,to which this
insurance applies,that the person or organization would have in the
absence of such contract or agreement
• damages arising out of their sole negligence
Schedule
PERSONS OR ORGANIZATIONS THAT YOU ARE OBLIGATED, PURSUANT
TO WRITTEN CONTRACT OR AGREEMENT BETWEEN YOU AND SUCH
PERSON OR ORGANIZATION,TO PROVIDE WITH SUCH INSURANCE AS IS
AFFORDED TO THE MINIMUM EXTENT THAT SUCH CONTRACT OR
AGREEMENT REQUIRES THE PERSON OR ORGANIZATION TO BE
AFFFORDED STATUS AS AN INSURED, HOWEVER, NO PERSON OR
ORGANIZATION IS AN INSURED UNDER THE PROVISION WHO IS MORE
SPECIFICALLY DESCRIBED UNDER ANY OTHER
Liability Insurance Additional Insured-Scheduled Person Or Organization continued
Form 80-02-2367(Rev 8-04) Endorsement Page 1
1
Attachment Code D493597
Certificate ID 12983067
Liability Endorsement
(continued)
PROVISION OF THE WHO IS AN INSURED SECTION OF THIS
POLICY (REGARDLESS OF ANY LIMITATION APPLICABLE
THERETO)
All other terms and conditions remain unchanged
Liability Insurance Additional Insured-Scheduled Person Or Organization last page
Form 80-02-2367(Rev 8-04) Endorsement Page 2
3
37
d
s'
1
Attachment Code D493597
Certificate ID• 12983067