HomeMy WebLinkAboutCities GPS LLC; 2021-03-21;City Attorney Approved Version 6/12/18 1
AGREEMENT FOR CARLSBAD INCLUSIVE ECONOMIC DEVELOPMENT RESPONSE AND RECOVERY ASSESSMENT SERVICES
CITIES GPS, LLC THIS AGREEMENT is made and entered into as of the ______________ day of
_________________________, 20___, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and CITIES GPS, LLC, a Limited Liability Company of the District of Columbia, ("Contractor"). RECITALS A. City requires the professional services of a firm that is experienced in inclusive economic development consulting. B. Contractor has the necessary experience in providing professional services and advice related to assisting government stakeholders on finding and implementing solutions to strengthen global competitiveness, growth, and vitality, anchored in shared economic assets of city-regions. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement’s terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one (1) year from the date first above written. The Department Director may amend the Agreement to extend it for one (1) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties
will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be thirty-four thousand dollars ($34,000). No other compensation for the Services will be allowed
except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed thirty-four thousand dollars ($34,000) per Agreement year. The City reserves the right to withhold a ten percent (10%) retention until City
has accepted the work and/or Services specified in Exhibit "A".
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21March
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Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City’s election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement.
10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The insurance
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carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage
will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as
required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work.
10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which
will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain
the required coverages. Contractor is responsible for any payments made by City to obtain or
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maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements.
11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will 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 under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement. For City For Contractor
Name Matt Sanford Name Marek Gootman
Title Economic Development Manager Title Managing Principal
Department Innovation & Economic Development Address 6109 29th Street NW
City of Carlsbad Washington, DC 20015
Address 1635 Faraday Ave. Phone No. 202-360-9951
Carlsbad, CA Email mgootman@citiesgps.com
Phone No. 760-607-2923
Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address.
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16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories.
Yes No 17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties
involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work
that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work
performed to the termination date; however, the total will not exceed the lump sum fee payable
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under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which
shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties.
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26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement.
CITIES GPS, a Limited Liability Company of the District of Columbia CITY OF CARLSBAD, a municipal corporation of the State of California
By: By:
(sign here) DAVID GRAHAM Chief Innovation Officer
Marek Gootman, Managing Principal
(print name/title)
ATTEST:
By:
(sign here) BARBARA ENGLESON
City Clerk
(print name/title)
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
BY: _____________________________ Assistant City Attorney
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EXHIBIT “A”
SCOPE OF SERVICES AND FEES Contractor will support the City in assessing COVID-related impacts and response for future
economic strategy and programmatic action:
• Provide quantitative and qualitative analysis regarding COVID-related economic impacts and interventions.
• Identify underlying economic development structural and functional challenges revealed by COVID-related stressors.
• Draw implications for potential post-COVID recovery strategies or actions that promote sustained competitiveness and inclusive prosperity. Deliverables (1) Written report text and data visualizations, for design and layout by the City in a final publication (estimated 10-15 pages), anticipated to incorporate:
• framework for considering City-level economic development objectives and roles;
• introduction to the City’s historic economic position and strategy;
• summary of COVID response activities, with comparisons to national context;
• mapping of general local and regional economic development strategies and
supports available to City businesses;
• review of economic development issues uncovered by COVID through data and
qualitative input from business and community stakeholders, with special consideration of equity, diversity and inclusion;
• identification of economic development challenges and operational gaps for long-term recovery and prosperity, based on research and practice experience.
(2) Presentation for City Council and other stakeholders. Activities
Phase Activities
Research / Strategy
Review
• Compile relevant materials – COVID relief plans, lists of targeted businesses, other local and regional economic plans and analyses, etc.
• Identify available quantitative sources
• Review and assess local recovery strategies
• Consider relevant national practices / models
• Develop draft asset map
• Conduct local team working session to review initial findings
Stakeholder
Engagement • Plan and execute at least two local roundtables / focus groups with business stakeholders for qualitative input
Report
Production and Release
• Draft report and complete internal reviews
• Solicit local comments
• Incorporate local input
• Handoff for design and layout
• Participate in release / outreach – City Council meeting
• Support other dissemination
• Debrief on City Council feedback and project closeout
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City Collaboration and Contributions Recognizing constraints on the project timeframe, city-level data availability, and travel
restrictions, City staff leads will help to:
• obtain and assess data from local and/or regional sources, such as City departments or consultants; SANDAG, San Diego Regional EDC, San Diego Regional Chamber of Commerce, San Diego Workforce Partnership, etc.;
• compile information on existing programs and strategies;
• identify and recruit participants for stakeholder outreach sessions (and consider
undertaking a supplemental survey of small businesses). City also will provide for design and layout of the final report. Throughout the project period, City staff leads will confer regularly on research direction and interpretation, including via weekly check-in calls. Project Period Performance of services will begin upon execution of an agreement and aim to complete the
project in totality within a four-month timeframe Budget/Fees
Below is the budget allocation among the three core activities, based on proportion of staff time and other expenses:
• Research / Strategy Review: $21,760 (64%)
• Stakeholder Engagement: $4,080 (12%)
• Report Production and Release: $8,160 (24%) The total project cost of $34,000 is inclusive of all services and overhead expenses (i.e. data acquisition and technology). No travel is anticipated due to COVID constraints.
City will be billed and pay Contractor upon completion of each deliverable.
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Berkshire Hathaway Direct Insurance Company 10391
03/04/2021
City of Carlsbad, CA
1635 Faraday Avenue
Carlsbad, CA 92008
Cities GPS LLC
6109 29th Street NW
Washington, DC 20015
BIBERK
P.O. Box 113247Stamford, CT 06911
A Professional Liability (Errors &
Omissions): Claims-Made N9PL210205 Per Occurrence/
Aggregate03/05/202203/05/2021 $1,000,000/
$1,000,000
203-654-3613844-472-0967
SalesSupport@biBERK.com
MISCELLANEOUS PROFESSIONAL LIABILITY
MPL 00 24 11 15
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
MPL 00 24 11 15 Page 1 of 1
ADDITIONAL INSURED ENDORSEMENT
This endorsement modifies insurance provided under the following:
Miscellaneous Professional Liability Insurance Policy
SECTION V – DEFINITIONS, Section M. “Insured”
of the policy is amended to add the following:
The Additional Insured stated below, but only for
liability arising solely out of Wrongful Acts in the
performance of Insured Services by the Named
Insured or the Individual Insureds:
It is also agreed the policy does not apply to any
Claim which includes allegations or facts indicating
actual or alleged independent or direct liability on the
part of an Additional Insured.
All other terms and conditions of this policy
remain unchanged.
City of Carlsbad, CA
Issue Dated: 03/04/2021
MISCELLANEOUS PROFESSIONAL LIABILITY
Policy Number: N9PL210205 Renewal of: NEW
Carrier: Berkshire Hathaway Direct Insurance Company ‒ A Stock Company
MPL DEC 04 20 Berkshire Hathaway Insurers of biBERK PO Box 113247 • Stamford, CT 06911-3247 • www.biBERK.com
Telephone: 844-472-0967 • Customer Service Hotline: 844-472-0967
Page 1 of 2
THIS IS A CLAIMS MADE POLICY. CLAIM EXPENSE IS INCLUDED IN THE LIMIT OF INSURANCE AND RETENTION. THE LIMIT OF LIABILITY AVAILABLE TO PAY DAMAGES SHALL BE REDUCED AND MAY BE TOTALLY EXHAUSTED BY AMOUNTS INCURRED AS CLAIM EXPENSE. PLEASE READ THE ENTIRE POLICY CAREFULLY.
DECLARATIONS
[1] Named Insured and Mailing Address Agency
Cities GPS LLC
6109 29th Street NW
Washington, DC 20015
BIBERK
P.O. Box 113247
Stamford, CT 06911
[2] Policy Period
From 03/05/2021 to 03/05/2022 12:01 AM standard time at the Mailing Address of the Named Insured.
[3] Retroactive Date
Mar 5 2021 12:01AM
[4] Schedule of Insured Services
Business Consulting
[5] Limits of Insurance $ 1,000,000 Each Wrongful Act
$ 1,000,000 Total Limit of Insurance
[6] Retention $ 1,000 Each Wrongful Act
[7] Net Variable Premium $ 812.00
Expense Constant $300.00 Minimum Expense Constant
$30.00
Net Premium $1,112.00
State Surcharge/Tax $ N/A
[8] Forms Attached at Issuance
IL 99 00 08 13 – Authorization and Attestation
MPL DEC 04 20 Page 2 of 2
MPL 00 00 04 20 – Miscellaneous Professional Liability Coverage Form MPL 00 120 11 15 – Anti-Stacking MPL 00 14 11 15 – Independent Contractors - Persons Insured Change MPL 00 43 11 15 – Consultants Change MPL 00 57 11 15 – War and Terrorism Exclusion MPL 00 58 03 18 – Extended Reporting Period Option MPL 08 29 03 17 – DC Changes MPL DEC 04 20 – Miscellaneous Professional Liability Declarations
By acceptance of this policy, the Insured agrees that the statements in the Declarations and the Application and any attachments hereto are the Insured’s agreements and representations and that this policy embodies all the agree-
ments existing between the Insured and the Company or any of its representatives relating to this insurance.
THIS ENDORSEMENT AUTHORIZES THE POLICY.
IL 99 00 08 13 Page 1 of 1
AUTHORIZATION AND ATTESTATION IL 99 00 08 13
AUTHORIZATION AND ATTESTATION
This endorsement authorizes the insurance contract between you and the insurance company subsidiary listed on the DECLARATIONS PAGE of your insurance policy.
In Witness Whereof, this page executes and fully attests to this policy. If required by state law, the policy shall not be valid unless countersigned by our authorized representatives.
Authorizing signatures Bruce J. Byrnes Secretary Peter Shelley
President
MISCELLANEOUS PROFESSIONAL LIABILITY MPL 00 00 04 20
MPL 00 00 04 20 Page 1 of 14
MISCELLANEOUS PROFESSIONAL LIABILITY
INSURANCE POLICY
CLAIM EXPENSE IS INCLUDED IN THE POLICY LIMIT AND THE RETENTION.
ALL WORDS OR PHRASES, OTHER THAN CAPTIONS, PRINTED IN BOLD FACE ARE DEFINED IN THE POLICY. VARIOUS PROVISIONS IN THIS POLICY RESTRICT COVERAGE. READ THE ENTIRE POLICY CAREFULLY TO DETERMINE RIGHTS, DUTIES AND WHAT IS AND IS NOT INSURED.
CLAIMS MADE POLICY: THIS INSURANCE COVERAGE IS ON A CLAIMS MADE BASIS. COVERAGE APPLIES ONLY TO THOSE CLAIMS THAT ARE FIRST MADE DURING THE POLICY PERIOD AND ANY EXTENDED REPORTING PERIOD, IF APPLICABLE, AS THOSE TERMS ARE DESCRIBED IN THIS POLICY. COVERAGE DOES NOT APPLY TO ANY WRONGFUL ACT COMMITTED BEFORE THE RETROACTIVE DATE STATED IN THIS POLICY.
SECTION I – INSURING AGREEMENTS
A. Coverage
1. The Company will pay on the Insured’s behalf those sums, in excess of the Reten-tion and within the applicable Limit of Insur-ance, that the Insured becomes legally obli-gated to pay as Damages or Claim Expense because of Claims first made dur-ing the Policy Period or Extended Report-ing Period (if applicable) as a result of Wrongful Acts committed in the perfor-mance of Insured Services.
2. For the purposes of this policy of insurance, “Wrongful Act” shall mean the following conduct or alleged conduct by an Insured, or any person or organization for whom an Insured is legally liable:
a. A negligent act, error or omission;
b. Any form of defamation or other tort re-lated to disparagement or harm to the character, reputation or feelings of any person or organization, including libel, slander, product disparagement, trade libel, infliction of emotional distress, ma-licious falsehood, outrage or outrageous conduct;
c. Any form of invasion, infringement or in-terference with rights of privacy or pub-licity, including false light, public disclo-sure of private facts, intrusion, breach of confidence, and commercial appropria-tion of name or likeness;
d. Wrongful entry or eviction, trespass, eavesdropping or other invasion of the right of private occupancy;
e. False arrest, detention or imprisonment; or
f. Malicious prosecution.
All Wrongful Acts that take place between the Retroactive Date and the end of the Policy Period of the last policy the Compa-ny issued to the Insured and are related by common facts, circumstances, transactions, events and/or decisions will be treated as one Wrongful Act.
B. Defense and Settlement of a Claim
The Company will have the right and duty to appoint an attorney and defend a covered Claim, even if the allegations are groundless, false or fraudulent. However:
1. The Company may, at the Company’s dis-cretion, investigate and settle a covered Claim.
MISCELLANEOUS PROFESSIONAL LIABILITY POLICY
MPL 00 00 04 20 Page 2 of 14
2. No offer to settle any Claim will be made or accepted by the Insured without prior writ-ten agreement by the Company. Notwith-standing the foregoing, it is understood that the Insured may settle any Claim for which the total cost of Damages and Claim Ex-pense associated therewith is less than the amount of the remaining Retention.
3. If the Company is willing to accept the judgment of the trial or appellate court or any negotiated settlement or settlement offer and the Insured is not willing to accept such judgment or settlement, the Company’s lia-bility for any Claim Expense and/or Dam-ages incurred after the Company indicated its willingness to accept such judgment or settlement shall be limited to the amount for which the Company could have resolved the Claim plus an additional fifty percent (50%) of that amount. Nothing in this provi-sion will cause the Company’s liability to exceed the applicable Limits of Insurance set forth on the Declarations Page.
4. The Company’s right and duty to defend and pay on the Insured’s behalf ends when the Company has used up the applicable Limit of Insurance in payment of Damages or Claim Expense, or has met its payment obligations in connection with a Claim sub-ject to Section I.B.3.
Nothing in this SECTION I – INSURING AGREEMENT, Section B. Defense and Inves-tigation will relieve the Insured from any notice or cooperation requirements contained in the GENERAL CONDITIONS section or any other part of this policy.
C. Spousal Coverage
If a Claim made against an Individual Insured includes a Claim against that Individual In-sured’s lawful spouse solely by reason of:
1. Such spouse's status as the Individual In-sured’s spouse, or
2. Such spouse's ownership interest in proper-ty from which the claimant seeks recovery for the Individual Insured’s Wrongful Acts,
all Claim Expense and Damages which such spouse becomes legally obligated to pay on ac-count of such Claim shall be treated for purpos-es of this policy as Claim Expense and Dam-
ages which the Individual Insured is legally ob-ligated to pay on account of the Claim made against the Individual Insured. Such Claim Expense and Damages shall be covered under this policy only if and to the extent that such Claim Expense and Damages would be cov-ered under this policy if incurred by the Individ-ual Insured. The coverage extension afforded by this subsection does not apply to any Claim alleging any Wrongful Act or omission by the Individual Insured’s spouse. The term "spouse" as used in this section shall include any natural person qualifying as a domestic partner under the provisions of any applicable federal, state or local law in the United States of America.
SECTION II – LIMITS OF INSURANCE, RETENTION AND REIMBURSEMENT
A. Limits of Insurance
1. Each Wrongful Act
The Each Wrongful Act Limit of Insurance stated in Item 5.a. on the Declarations Page is the most the Company will pay for Dam-ages and Claim Expense combined for the total of all Claims made during the Policy Period and any Extended Reporting Period arising from one Wrongful Act, no matter how many:
a. Insureds this policy covers;
b. Claims are made; or
c. Persons or organizations make Claims.
2. Total Limit of Insurance
The Total Limit of Insurance stated in Item 5.b. on the Declarations Page is the most the Company will pay for Damages and Claim Expense combined for the total of all Claims made during the Policy Period and any Extended Reporting Period, no matter how many:
a. Insureds this policy covers;
b. Claims are made;
c. Persons or organizations make Claims; or
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d. Wrongful Acts are committed.
3. Sub-Limits
a. Disciplinary Proceedings Claim Ex-pense
The most the Company will pay for all Claim Expense incurred in connection with Disciplinary Proceedings com-menced during the Policy Period and any applicable Extended Reporting Pe-riod shall be $10,000, no matter how many:
(1) Insureds this policy covers;
(2) Disciplinary Proceedings are commenced;
(3) Persons, organizations, or authori-ties institute Disciplinary Proceed-ings; or
(4) Wrongful Acts are committed.
b. Insured’s Claim Attendance Expense
If the Insured is requested by the Com-pany to attend hearings, depositions and trials in connection with the defense of a covered Claim, the most the Com-pany shall pay for the Insured’s Claim Attendance Expense incurred as a di-rect result of such attendance, after any applicable Retention is satisfied, will be the lesser of: the Insured’s actual Claim Attendance Expense, or $500 per day. In any event, the Company’s total payment for all such Claim At-tendance Expense shall not exceed $10,000 for each Policy Period, no matter how many:
(1) Insureds this policy covers;
(2) Claims are made;
(3) Persons or organizations make Claims;
(4) Trials, depositions, hearings or re-lated appearances the Insured at-tends; or
(5) Wrongful Acts are committed.
c. These sub-limits, and any other sub-limit which may be stated in any endorse-ment to this policy, shall be part of, and not in addition to, the Total Limit of In-surance stated in Item 5.b. of the Decla-rations. Payment for Claim Expense or Damages to which a sub-limit applies will reduce the Total Limit of Insurance available to pay Claims covered under this policy.
d. If more than one sub-limited coverage applies to a Claim covered under this policy, the Company shall not be obli-gated to pay more than the largest ap-plicable sub-limit for all Claim Expense and Damages in connection with such Claim.
B. Retention
The Company shall be liable for only that part of Damages and Claim Expense covered under this policy which is excess of the Wrongful Act Retention as described below and in the amount set forth in Item 6. of the Declarations. Such Retention shall be borne by the Insureds uninsured and at their own risk.
With respect to Claims for Wrongful Acts, the Retention set forth in Item 6. of the Declarations shall apply to each Wrongful Act covered by this policy. All Wrongful Acts that involve the same or related subject, person, class of person or have common facts or circumstances or in-volve common transactions, events or decisions, regardless of the number of repetitions, altera-tions, actions, or forms of communication will be treated as one Wrongful Act for the purposes of applying the Retention. The Retention applies to Damages and Claim Expense combined. The Retention shall not apply to Claim Ex-pense incurred in connection with Disciplinary Proceedings.
If more than one Retention applies to a Claim covered under this policy, the Insured’s Reten-tion obligation shall not exceed the largest ap-plicable Retention in connection with such Claim.
The Limit of Insurance shall not be reduced by the application of the Retention. All other rights, duties and obligations under the policy shall re-main the same regardless of whether or not the Retention has been satisfied, including, but not limited to, the Company’s right and duty to in-vestigate, defend and settle Claims and the In-
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sured’s notice and cooperation duties set forth in this policy.
C. Reimbursement
If, at the Company’s option, the Company has paid any amounts for Damages or Claim Ex-pense in excess of the applicable Limit of Insur-ance, including any amounts paid in excess of the Company’s obligation to pay Damages and Claim Expense pursuant to SECTION I – INSURING AGREEMENT, Section B. Defense and Investigation, Paragraph 3. of this policy, or if the Company has paid part or all of any Re-tention, the Insured shall reimburse the Com-pany for such amounts upon demand.
The Company will have the right to seek recov-ery from any Insured of any Claim Expense or Damages paid by the Company as a result of any portion of a Claim that is not covered by this policy.
SECTION III – EXCLUSIONS
A. The Company is not obligated to pay Damages or Claim Expense or defend Claims for or aris-ing directly or indirectly out of:
1. Bodily Injury or Property Damage.
2. An act or omission that is dishonest, fraudu-lent, criminal, malicious or was intentionally committed while knowing it was wrongful, as evidenced by any judgment, final adjudica-tion, alternate dispute resolution proceeding or written admission by the Insured. This exclusion does not apply to any Individual Insured that did not commit, acquiesce or participate in the actions that gave rise to the Claim. Pursuant to SECTION II – LIMITS OF INSURANCE, RETENTION AND REIMBURSEMENT, Section C. of this policy, the Company shall have a right to re-imbursement of any Damages or Claim Ex-pense paid by the Company as a result of a Claim to which this exclusion applies.
3. Infringement, misappropriation or theft of:
a. Copyright;
b. Trademark, trade dress, trade name, service mark, service name, title or slo-gan;
c. Patent; or
d. Trade secrets.
4. Unfair competition, restraint of trade or any other violation of antitrust laws.
5. Harassment, misconduct or discrimination because of or relating to:
a. Race, creed, color or age;
b. Sex, sexual preference, national origin or religion; or
c. Handicap, disability or marital status,
but only if the harassment, misconduct or discrimination was knowingly committed, as evidenced by any judgment, final adjudica-tion, alternate dispute resolution proceeding or written admission by the Insured. Pursu-ant to SECTION II – LIMITS OF INSURANCE, RETENTION AND REIMBURSEMENT, Section C. of this poli-cy, the Company shall have a right to reim-bursement of any Damages or Claim Ex-pense paid by the Company as a result of a Claim to which this exclusion applies.
6. Gain, profit or advantage to which any In-sured is not legally entitled, as evidenced by any judgment, final adjudication, alternate dispute resolution proceeding or written ad-mission by the Insured. Pursuant to SECTION II – LIMITS OF INSURANCE, RETENTION AND REIMBURSEMENT, Section C. of this policy, the Company shall have a right to reimbursement of any Dam-ages or Claim Expense paid by the Com-pany as a result of a Claim to which this ex-clusion applies.
7. Violation of any provisions of the Employee Retirement Income Security Act of 1974 (the “Act”) or:
a. Any amendment to the Act; or
b. Any regulations, rulings or orders issued pursuant to the Act.
8. Violation of the Securities Act of 1933 as amended, The Securities Exchange Act of 1934 as amended, the Investment Advisers Act of 1940, any state blue sky or securities law, any similar state or federal law, or any order, ruling or regulation issued pursuant to the above laws.
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9. The actual or threatened discharge, disper-sal or release of any Pollutant; or the crea-tion of an injurious condition involving any Pollutant; or the existence of any Pollutant on any property; or the clean up, removal, testing, monitoring, containment, treatment, detoxification or neutralization of any Pollu-tant. This exclusion shall apply whether or not the pollution was sudden, accidental, gradual, intended, expected or preventable or whether or not any Insured caused or contributed to the pollution.
10. The performance of services which can only be performed by a:
a. Architect or licensed engineer;
b. Attorney;
c. Certified public accountant;
d. Medical practitioner or other health care provider, including, but not limited to, physicians or nurses, and including any Claims arising directly or indirectly out of medical malpractice, including the giving or receiving of professionally qualified medical opinions, or the admin-istration of or failure to administer or summon medical care or first aid;
e. Actuary;
f. Licensed insurance agent or broker;
g. Certified financial planner; or
h. Securities or investment advisor or bro-ker/dealer.
11. Malfunction or defect of any hardware, equipment or component. This exclusion does not apply when the malfunction or de-fect is solely the result of any Insured’s Wrongful Act in performing Insured Ser-vices.
12. Electrical or mechanical failure, including power interruption, surge, spike, brownout or blackout, and outages to gas, water, tele-phone, cable, satellite, telecommunications or other infrastructure; except this exclusion does not apply when the failure is solely the result of the Insured’s Wrongful Act in per-forming Insured Services.
13. Gathering, acquisition or obtaining of infor-mation about Internet users in any manner, including but not limited to, placement and/or use of spyware or adware.
14. Unsolicited faxes, unsolicited electronic mail, unsolicited telephone calls or other unsolic-ited electronic communications. This exclu-sion shall include alleged violations of state, local or federal law, including non-U.S. laws, any amendment to such laws, or violation of any order, ruling or regulation issued pursu-ant to such laws that regulate such commu-nication.
15. Actions, decisions, orders or proceedings by the Federal Trade Commission, Federal Communications Commission or any other federal, state or local governmental regula-tory agency, except for Disciplinary Pro-ceedings.
16. Unauthorized access to, unauthorized use of, or unauthorized alteration of any com-puter or system, hardware, software, pro-gram, network, data, database, communica-tion network or service, including the introduction of malicious code or virus, or repetitively accessing a website under the control of an Insured with the intent to deny others access to such website or with the in-tent to cause such website’s functionality to fail, including what is commonly referred to as denial of service attacks.
17. Advertising by the Insured, including inac-curate, inadequate or incomplete description of the price of the Insured’s goods, prod-ucts or services, or the failure of the In-sured’s goods, products or services to con-form with any represented quality or performance contained in Advertising by the Insured.
18. Performance or failure to perform otherwise covered Insured Services without a valid and active license, certification, accredita-tion, or designation if required by federal, state, or local statutory laws to perform such Insured Services
19. Obligations under any Workers’ Compensa-tion, Unemployment Compensation, Em-ployers Liability or Disability Benefit Law, in-cluding any similar provisions of any federal, state or local statutory or common law.
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20. Failure to protect any non-public, personally identifiable information in the Insured’s care, custody or control.
21. Violation of or noncompliance with any law or regulation governing or pertaining to gambling, gaming, lotteries or games of chance and any other act associated with any such violation or noncompliance
22. Theft, misappropriation, commingling or conversion of any funds, monies, assets, or property.
23. Investment advice including guarantees about the future performance or value of in-vestments, rates of return, interest, or tax consequences
B. The Company is not obligated to pay Damages or Claim Expense or defend Claims made by:
1. Any enterprise that is a parent, affiliate or partner of any Insured;
2. Any enterprise directly or indirectly con-trolled, operated or managed by the Insured or an enterprise described in SECTION III – EXCLUSIONS, Section B., Paragraph 1 above;
3. Any Insured;
4. Any present, former or prospective employ-ees, officers, directors of any Insured when the Claim is in any way related to the pre-sent, former or prospective employment re-lations between the claimant and any In-sured; or
5. Any regulatory authority, or any federal, state or local governmental agency; except this exclusion does not apply to a Claim brought by any of these entities if such entity is also a client, and the Claim arises from actual or alleged Wrongful Acts in the In-sured’s performance of Insured Services for or on behalf of such agency or entity.
C. The Company is not obligated to pay Damages or Claim Expense or defend Claims for the breach of express warranties, guarantees or contracts; provided, however, with respect to al-
legations of breach of contract this exclusion shall not apply to any liability that would have at-tached in the absence of such contract nor to coverage for Claims for actual or alleged negli-gent performance of Insured Services.
D. The Company is not obligated to pay Damages or Claim Expense or defend Claims based up-on, arising out of, directly or indirectly resulting from, in consequence of or in any way involving:
1. Any fact, circumstance, transaction, event or Wrongful Act that:
a. before the First Inception Date was the subject of any notice of claim or loss, or notice of potential claim or potential loss, given under any other policy of in-surance; or
b. which, as of the First Inception Date any Insured had knowledge and that was reasonably likely to give rise to a Claim that would fall within the scope of the insurance afforded by this policy; or
c. any other Wrongful Act whenever oc-curring, which together with a Wrongful Act described in a. or b. above, consti-tute one Wrongful Act as defined in this policy;
2. Any demand, suit or other proceeding pend-ing, or order, decree or judgment entered:
a. against any Insured on or prior to the First Inception Date or any Wrongful Act, fact, circumstance or situation un-derlying or alleged therein; or
b. any other Wrongful Act whenever oc-curring, which, together with a Wrongful Act described in a. above, constitute one Wrongful Act as defined in this pol-icy.
SECTION IV – WHERE AND WHEN THE COMPANY INSURES
A. Where The Company Insures
Coverage under this policy applies to Wrongful Acts committed anywhere and to Claims made in the jurisdiction of the United States of America (including its territories and possessions), Puerto Rico and Canada. If Damages or Claim Ex-pense are paid in a currency other than United
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States of America dollars, then the payment un-der this policy will be considered to have been made in United States dollars at the conversion rate published in The Wall Street Journal at the time of the payment.
B. When The Company Insures
1. Claims First Made
This insurance applies when a Claim is first made against any Insured during the Policy Period. To be covered, the Claim must also arise from a Wrongful Act committed during the Policy Period, except as otherwise pro-vided below in SECTION – IV, Section B. When The Company Insures, Paragraphs 2 and 3. The Company will consider a Claim to be first made against an Insured when a written Claim is first received by any Insured.
This insurance also applies to Claims under the following conditions:
2. Prior Wrongful Acts
This policy will apply to a Claim first made against any Insured arising from a Wrong-ful Act committed between the Retroactive Date and the Inception Date of the policy, but only if all of the following conditions are met:
a. The Claim is first made against any In-sured during the Policy Period. The Company will consider a Claim to be first made against the Insured when a Claim is received by any Insured;
b. No Insured knew, prior to the First In-ception Date, of a circumstance that could reasonably be expected to lead to the Claim; and
c. There is no other valid and collectible insurance applicable to the Claim.
3. Reported Wrongful Acts
This policy will apply to a Claim first made against any Insured after the end of the Policy Period, but only if all of the following conditions are met:
a. The Wrongful Act giving rise to the Claim is committed between the Retro-
active Date and the end of the Policy Period;
b. Prior to the First Inception Date, no In-sured knew of the Wrongful Act, al-leged Wrongful Act or circumstance that could reasonably be expected to lead to the Claim;
c. The Company receives written notice from the Insured during the Policy Pe-riod of the Wrongful Act. The notice must include all of the following infor-mation:
(1) The names of those persons or or-ganizations involved in the Wrong-ful Act;
(2) The specific person or organization likely to make the Claim;
(3) A description of the time, place and nature of the Wrongful Act; and
(4) A description of the potential Dam-ages; and
d. There is no other valid and collectible insurance applicable to the Claim.
The provisions of the policy in effect on the date the Company receives the notice of the Wrongful Act under this paragraph 3. will apply to any resulting Claim.
4. Extended Reporting Period
If the Insured did not report Wrongful Acts during the Policy Period as described in SECTION – IV, Section B. When The Company Insures, Paragraph 3 above, and Claims arising from such Wrongful Acts are first made after the end of the Pol-icy Period, such Claims are not covered under this policy unless the First Named Insured purchases an Extended Reporting Period from the Company.
a. If the First Named Insured purchases an Extended Reporting Period, the Company will cover a Claim first made against any Insured after the end of the Policy Period but during the Extended Reporting Period, only if all of the follow-ing conditions are met:
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(1) The Wrongful Act giving rise to such Claim is committed between the Retroactive Date and the end of the Policy Period;
(2) No Insured knew prior to the First Inception Date of a circumstance that could reasonably be expected to lead to the Claim; and
(3) There is no other valid or collectible insurance applicable to the Claim.
The Company will consider a Claim to be made during the Extended Reporting Period only if the Claim is first received by any Insured after the Expiration Date of the Policy Period and prior to the Expiration Date stated in the Extended Reporting Period Endorsement.
b. The following provisions and conditions also apply to the Extended Reporting Period:
(1) If there is a Termination of Cover-age and upon request by the Named Insured, the Company will sell one of the Extended Reporting Period options listed on the Extend-ed Reporting Period Option En-dorsement. Where a claims-made relationship between the Insured and the Company has continued for less than one year the Company is not required to sell an Extended Reporting Period for Termination of Coverage for nonpayment of pre-mium or fraud.
(2) The Company must receive the First Named Insured’s request for the Extended Reporting Period in writing within the later of:
a) sixty (60) days after the end of the Policy Period, or
b) thirty (30) days from the date of mailing or delivery of the advice informing the in-sured of an Extended Re-porting Period option. This advice does not apply upon cancellation due to non-payment of premium or fraud on the part of the In-sured.
On receipt and acceptance of the request, the Company will issue an endorsement showing the Extended Reporting Period in accordance with the option requested by the First Named Insured. At the same time, the Company will bill the additional premium, and the Company must receive payment within thirty (30) days after the billing date for the en-dorsement to be effective.
(3) The endorsement shall also include the provisions and conditions appli-cable to the Extended Reporting Pe-riod. Once in effect, the Extended Reporting Period may not be can-celed.
(4) A Claim that is first made during the Extended Reporting Period will be deemed to have been made on the last day of the Policy Period. The provisions of the policy in effect on the last day of the Policy Period will apply.
(5) The Extended Reporting Period does not extend the Policy Period or change the scope of coverage provided.
(6) If a corporation, partnership or other entity has been placed in liquidation or bankruptcy or permanently ceas-es operations and the entity or its designated trustee does not pur-chase extended reporting period coverage then any person covered under the policy may request the ex-tended reporting period coverage within 120 days of the termination of coverage
5. Multiple Claims
All Claims arising from the same Wrongful Act will be deemed to have been made on the earlier of the following times:
a. The date the first of those Claims is made against any Insured; or
b. The first date the Company receives the Insured’s written notice of the Wrongful Act.
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The provisions of the policy in effect on that date will apply.
SECTION V – DEFINITIONS
A. “Advertising by the Insured” means advertis-ing, publicity or promotion of any kind of the In-sured’s products and services.
B. “Application” means all of the following:
1. The Insured’s Miscellaneous Professional Liability insurance policy application, and, if this policy is a renewal of a policy issued by the Company, the Insured’s Miscellaneous Professional Liability insurance renewal ap-plication, including all applications and re-newal applications submitted for such poli-cies;
2. Other companies’ insurance policy applica-tions, if accepted by the Company; and
3. All attachments to the Application or re-newal Application and any other infor-mation furnished to the Company for the purpose of applying for the insurance. All such attachments and information will be kept on file by the Company, deemed at-tached to the policy as if physically attached to it and shall become incorporated in and constitute a part of this policy.
C. "Bodily Injury" means physical injury to the body, or sickness or disease sustained by a per-son, including death resulting therefrom.
Bodily Injury also means mental injury or men-tal anguish, including emotional distress, shock or fright, if resulting from injury to the body, sick-ness, disease or death of any person. However, Bodily Injury does not include such mental inju-ry or mental anguish if directly resulting from a covered Wrongful Act arising out of the perfor-mance or failure to perform Insured Services.
D. “Claim” means a written demand or written assertion of a legal right made against any In-sured seeking Damages or non-monetary relief, including arbitration proceedings and Discipli-nary Proceedings, including any appeal there-from.
E. “Claim Attendance Expense” means the In-sured’s actual loss of earnings and reasonable expenses incurred directly in order for the In-sured to attend hearings, depositions and trials
at the request of the Company in connection with the defense of a covered Claim.
F. "Claim Expense" means expenses incurred by the Company or by the Insured with the Com-pany’s consent in the investigation, adjustment, negotiation, arbitration, mediation and defense of covered Claims, whether paid by the Com-pany or Insured with the Company’s consent. Claim Expense includes:
1. Attorneys fees;
2. Costs taxed against an Insured in any suit defended by the Company;
3. The cost of appeal bonds or bonds to re-lease attachments, but only for bond amounts within the applicable Limit of Insur-ance. The Company does not have to fur-nish these bonds; and
4. Reasonable expenses incurred by an In-sured at the Company’s request, exclud-ing:
a. Loss of earnings (except to the extent covered as Claim Attendance Ex-pense); and
b. Salaries or other compensation paid to any Insured.
G. “Company" means the insurance company stated at the top of the Declarations Page.
H. “Damages” means monetary judgment, award or settlement, including those that are actual, statutory, punitive, multiplied or exemplary, if permitted by law in an applicable jurisdiction; and legal expense or other costs included as part of a judgment, award or settlement. Dam-ages also includes interest on any part of any judgment that accrues after entry of the judg-ment and before the Company has paid, offered to pay or deposited in court the part of the judg-ment that is within the applicable Limit of Insur-ance.
Damages does not include fines, penalties, taxes or return of fees, deposits, commissions or charges for goods or services.
Damages also does not include costs of correct-ing, performing or re-performing Insured Ser-vices by:
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1. Any Insured; or
2. Another party, when an Insured had the op-portunity to correct, perform or re-perform the service that generated the cost.
In determining the insurability of punitive or ex-emplary damages, or the multiplied portion of any multiplied damage award, the law of the ju-risdiction most favorable to the insurability of those damages will control for purposes of re-solving any dispute between the Company and the Insureds, provided that such jurisdiction is:
1. Where the punitive, exemplary or multiplied damages were awarded or imposed;
2. Where the Wrongful Act giving rise to the Claim took place;
3. Where either the Company or any Insured is incorporated, has its principal place of business or resides; or
4. Where this policy was issued or became ef-fective.
I. “Disciplinary Proceeding” means any action, investigation or request for information by a reg-ulatory or disciplinary official, board or agency authorized by law or administrative order to oversee, investigate or institute actions regard-ing the Insured’s professional misconduct in the performance of Insured Services.
J. “First Inception Date” is the Inception Date of the earliest errors and omissions insurance poli-cy the Company issued to the First Named In-sured that provides similar coverage by the Company, provided that there has been uninter-rupted coverage by the Company for the First Named Insured from that earliest policy to this policy.
K. The “First Named Insured” is the Named In-sured first listed on the Declarations Page.
L. “Individual Insured” means, individually and collectively:
1. Any Named Insured that is an individual person;
2. Any Named Insured’s stockholders for their liability as stockholders;
3. Any Named Insured’s and Subsidiary’s partners, officers, directors and employees, but only with respect to their activities within the scope of their duties in such capacity in the performance of Insured Services by the Named Insured or any Subsidiary; and
4. Any Named Insured’s and Subsidiary’s former partners, officers, directors and em-ployees, but only with respect to their activi-ties within the scope of their duties in the capacity of the Named Insured’s partners, officers, directors or employees in the per-formance of Insured Services by the Named Insured.
In the event of death, incompetency, insolvency or bankruptcy of any Insured, the Insured’s le-gal representative shall be considered an “Indi-vidual Insured”, but only with respect to its ac-tivities within the scope of its duties in such capacity in the performance of Insured Ser-vices by a Named Insured.
M. "Insured" means, individually and collectively:
1. A Named Insured; and
2. The Individual Insureds.
N. "Insured Services" means those services per-formed for others as stated in Item 4. on the Declarations Page, or as otherwise stated by endorsement to this policy.
O. "Named Insured" means the person or entity listed in Item 1. of the Declarations Page and its Subsidiaries.
P. "Policy Period" means the period of time stated in Item 2. on the Declarations Page, or any shorter period resulting from policy cancellation.
Q. "Pollutant" means any solid, liquid, gaseous or thermal irritant or contaminant, including but not limited to:
1. Smoke, vapor, soot, fumes, acids, alkalis, chemicals, lead, silica, mold or asbestos;
2. Hazardous, toxic or radioactive matter or nuclear radiation;
3. Waste, which includes material to be recy-cled, reconditioned or reclaimed; or
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4. Any other pollutant as defined by applicable federal, state or local statutes, regulations, rulings or ordinances.
R. "Property Damage” means:
1. Physical injury to tangible property, including all resulting loss of use of that property; or
2. Loss of use of tangible property that is not physically injured.
S. "Retention" means the amount stated in Item 6. on the Declarations Page and described in Sec-tion II.B. of this policy.
T. "Retroactive Date" means the date, if any, stated in Item 3. on the Declarations Page.
U. “Subsidiary(ies)” means any entity in which, and so long as, a Named Insured, either direct-ly or indirectly:
1. Owns more than fifty (50) percent of the is-sued and outstanding voting equity securi-ties; or
2. Controls voting rights representing the pre-sent right to vote for election or to appoint more than fifty (50) percent of the directors or trustees;
on or before the effective date of this policy, or after the effective date of this policy; provided that, with any respect to any entity that becomes a Subsidiary after the effective date of the poli-cy, and the entity’s gross revenues exceed ten percent (10%) of the Insured’s annual gross revenues at the Inception Date of the policy, the entity shall only be deemed a Subsidiary under this policy for a period of ninety (90) days from the date it became a Subsidiary.
If the Insured gives written notice within ninety (90) days of the creation or acquisition of the Subsidiary, including the necessary underwrit-ing information the Company may require and pay any reasonable additional premium as the Company may require, then the Company will issue an endorsement including such entity in the definition of Subsidiary for the duration of the Policy Period.
In all events there is no coverage for Wrongful Acts, Damages or Claim Expense relating to any activities of a Subsidiary, or Insured there-
of, occurring prior to the time such entity be-came a Subsidiary.
V. "Wrongful Act" means conduct or alleged con-duct by an Insured, or any person or organiza-tion for whom an Insured is legally liable, as de-scribed in Insuring Agreement Section I.A. of this policy or as amended by applicable en-dorsement(s) attached hereto.
All Wrongful Acts that:
1. Take place between the Retroactive Date and the end of the Policy Period of the last policy the Company issued to the Insured and
2. Are related by common facts, circumstanc-es, transactions, events and/or decisions will be treated as one Wrongful Act.
SECTION VI – GENERAL CONDITIONS
A. Time of Inception; Policy Period
This policy will begin at 12:01 A.M. on the Incep-tion Date shown in the Declarations. This policy will continue to apply until 12:01 A.M. on the Ex-piration Date also shown in the Declarations un-less terminated at an earlier date.
B. Premium
The First Named Insured will pay to the Com-pany the amount of premium stated in Item 7. of the Declarations. The premium may be adjusted at any time during the Policy Period or any ex-tensions of the Policy Period based upon changes in the provisions of this policy as may be agreed upon by the First Named Insured and the Company.
C. Insured’s Duties in the Event of a Claim
1. If there is a Claim, the Insured must do the following after the Named Insured has knowledge of the Claim:
a. Notify the Company in writing as soon as practicable. This notice must contain details that identify the Insured, the claimant and also reasonably obtainable information concerning the time, place and other details of the Wrongful Act and Claim.
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b. Immediately send the Company copies of all demands, notices, summonses or legal papers received in connection with the Claim;
c. Authorize the Company to obtain rec-ords and other information;
d. Cooperate with and assist the Compa-ny in the investigation, settlement or de-fense of the Claim; and
e. Assist the Company, upon the Compa-ny’s request, in enforcing any rights of contribution or indemnity against anoth-er who may be liable to any Insured.
2. No Insured will, except at the Insured’s own cost, voluntarily make a payment, admit liability, assume any obligation or incur any expense without the Company’s prior writ-ten consent.
3. When this policy requires that an Insured provide notice of a Claim, we will consider the Insured to have knowledge of that Claim when any of the offices of the Named Insured’s chairperson of the board of direc-tors, president, chief executive officer, chief operating officer, chief financial officer, risk manager or in-house counsel has that knowledge.
D. Bankruptcy
The bankruptcy or insolvency of the Insured or Insured’s estate will not relieve the Company of the Company’s obligation under this insur-ance. However, this insurance will not apply to liability directly or indirectly due to such bank-ruptcy, insolvency, receivership or subsequent liquidation.
E. Other Insurance
If other valid and collectible insurance applies to a Claim covered under this policy, this insur-ance is excess over such other insurance, ex-cept when the other insurance is specifically ar-ranged by or on behalf of the Named Insured to apply in excess of this insurance, and no other insurance applies to the Claim.
F. Subrogation and Recovery
In the event of any payment under this policy, the Company will be subrogated to all the In-
sured's rights of recovery therefore against any person or organization, and the Insured will ex-ecute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured will do nothing to prejudice such rights. The Company will have no rights of subrogation against any Insured hereunder. Any recoveries shall be applied as follows:
1. First, to the Company up to the amount the Company has paid for Damages and Claim Expense.
2. Then, to the First Named Insured as re-covery of Retention amounts paid as Dam-ages and Claim Expense.
G. Changes in Insured’s Operations
This policy applies only to Insured Services as described in the Application. This policy will not apply to any other activities or entities unless, with the Company’s consent, such activities or entities are added to this policy by endorsement. The Named Insured will promptly pay any addi-tional premium that may become due as a result of such addition.
H. Assignment
Assignment of any interest under this policy will not bind the Company unless and until its writ-ten consent is endorsed hereon.
I. Cancellation and Nonrenewal
1. Cancellation
a. The First Named Insured may cancel this policy by mailing or delivering writ-ten notice of cancellation to the Com-pany or the Company’s authorized rep-resentative, at the address shown on the Declarations Page of this policy. Such notice of cancellation will state the effective date of cancellation or, if no ef-fective date is stated, the effective date of cancellation shall be thirty (30) days after receipt of notice. The Policy Peri-od will end on that date.
b. The Company may cancel this policy by mailing or delivering to the First Named Insured written notice of cancellation at least:
MISCELLANEOUS PROFESSIONAL LIABILITY POLICY
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(1) Ten (10) days before the effective date of cancellation if the Company cancels for nonpayment of premium; or
(2) Thirty (30) days before the effective date of cancellation if the Company cancels for any other reason.
c. If this policy is canceled, the Company will send the First Named Insured any premium refund due. If the Company cancels, the refund will be the pro rata unearned amount of the annual premi-um. If the First Named Insured can-cels, the refund, if any, will be the pro rata unearned amount of the annual premium calculated at the customary short rate. Return of premium to the First Named Insured is not a condition precedent to cancellation.
d. The Company will mail or deliver the notice to the address stated in Item 1. on the Declarations Page.
e. If notice of cancellation is mailed, proof of mailing will be sufficient proof of no-tice. Delivery of the notice will be the same as mailing.
2. Nonrenewal
The Company may elect not to renew this policy by mailing or delivering written notice of nonrenewal to the First Named Insured at the address shown on the Declarations Page of this policy. The Company will mail or deliver the notice at least sixty (60) days before the expiration of the policy.
If notice of nonrenewal is mailed, proof of mailing will be sufficient proof of notice. De-livery of the notice will be the same as mail-ing.
J. Action Against the Company
1. No action will lie against the Company un-less, as a condition precedent thereto, there has been full compliance with all of the terms of this policy by all Insureds, nor until the amount of the Insured's obligation to pay has been fully determined either by judgment or award against the Insured after actual trial or arbitration or by written agreement among the Insured, the claimant
and the Company. Any person or organiza-tion, or the legal representative thereof, who has secured such judgment or written agreement, will thereafter be entitled to re-cover under this policy to the extent of the insurance afforded by this policy.
2. No person or organization will have any right under this policy to join the Company as a party to any action against the Insured to determine the Insured's liability, nor will the Company be impleaded by the Insured or the Insured’s legal representative.
K. Representations
By accepting this policy, the Named Insured agrees:
1. The statements made and information con-tained in the Application for this insurance furnished to the Company are true, accu-rate and complete;
2. Those statements furnished to the Compa-ny are representations the Named Insured made to the Company on behalf of all In-sureds;
3. Those representations are a material in-ducement to the Company to issue this pol-icy;
4. The Company has issued this policy in reli-ance upon those representations;
5. This policy embodies all agreements exist-ing between the Insured and the Company or any of its agents relating to this insur-ance;
6. The Insured has and will provide true, accu-rate and complete information with regard to audits, claims, and assessments as required by the Company;
7. The Application, including any attach-ments, and all other information and materi-als submitted by or on behalf of the In-sureds to the Company in connection with the Company underwriting this policy, will be kept on file by the Company, deemed at-tached to this policy as if physically attached to it and shall become incorporated in and constitute a part of this policy;
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8. If such representations or such information are not true, accurate and complete, this policy shall be null and void in its entirety and the Company shall have no liability hereunder.
L. Severability
With regard to the information provided on any insurance Application or with regard to knowledge of any Wrongful Acts or Claims as referenced in this policy, only facts pertaining to and knowledge possessed by any of the offices of the Named Insured’s chairperson of the board of directors, president, chief executive of-ficer, chief operating officer, chief financial of-ficer, risk manager, in-house counsel or any person whose signature appears on any Appli-cation, shall be imputed to the Insured.
M. Changes to the Policy
Notice or knowledge possessed by any person will not effect a waiver or a change in any part of this policy or estop the Company from asserting any rights under the terms of this policy; nor will the terms of this policy be waived or changed except by written endorsement issued to form a part of this policy.
N. Authorization
The First Named Insured is responsible for as-surance of payment of all premiums and Reten-tions. The First Named Insured will have ex-clusive authority to act on behalf of all other Insureds with respect to providing and receiving notices of cancellation or nonrenewal, receiving any return premium, and purchasing an Extend-ed Reporting Period. In the event of a disagree-ment between any Insureds, the First Named Insured will have exclusive authority to act on behalf of all other Insureds with respect to ne-gotiation of settlements and the decision to ap-peal or not to appeal any judgment.
MISCELLANEOUS PROFESSIONAL LIABILITY
MPL 00 120 11 15
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
MPL 00 120 11 15 Page 1 of 1
ANTI-STACKING ENDORSEMENT
This endorsement modifies insurance provided under the following:
Miscellaneous Professional Liability Insurance Policy
SECTION II – LIMITS OF INSURANCE,
RETENTION AND REIMBURSEMENT, Section A
Limits of Insurance of the policy is amended to add
the following:
If any Wrongful Act that is covered by the poli-
cy is also covered to any extent by another poli-
cy also issued by the Company or any of its
parents, subsidiaries or its affiliates to the
Named Insured, the total liability of the Com-
pany or its parents, subsidiaries or its affiliates
under either or both policies for the Wrongful
Act shall not exceed the largest Total Limit of
Insurance available under either policy.
All other terms and conditions of this policy
remain unchanged.
MISCELLANEOUS PROFESSIONAL LIABILITY
MPL 00 14 11 15
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
MPL 00 14 11 15 Page 1 of 1
INDEPENDENT CONTRACTORS – PERSONS INSURED
CHANGE ENDORSEMENT
This endorsement modifies insurance provided under the following:
Miscellaneous Professional Liability Insurance Policy
SECTION V – DEFINITIONS, Section L.3. of the
policy is deleted in its entirety and replaced by the
following:
3. Any Named Insured’s and Subsidiary’s part-
ners, officers, directors, employees and inde-
pendent contractors, but only with respect to
their activities within the scope of their duties in
such capacity in the performance of Insured
Services by the Named Insured or any Sub-
sidiary; and
SECTION V – DEFINITIONS, Section L. 4. of the
policy is deleted in its entirety and replaced by the
following:
4. Any Named Insured’s and Subsidiary’s former
partners, officers, directors, employees and in-
dependent contractors, but only with respect to
their activities within the scope of their duties in
the capacity of the Named Insured’s partner,
officer, director, employee or independent con-
tractors in the performance of Insured Services
by the Named Insured.
SECTION III – EXCLUSIONS, Section, B. 4. of the
policy is deleted in its entirety and replaced by the
following:
The Company is not obligated to pay Damages or
Claim Expense or defend Claims made by:
4. Any present, former or prospective employees,
independent contractors, officers or directors of
any Insured when the Claim is in any way re-
lated to the present, former or prospective em-
ployment or independent contract relations be-
tween the claimant and any Insured.
All other terms and conditions of this policy
remain unchanged.
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MPL 00 43 11 15
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
MPL 00 43 11 15 Page 1 of 1
CONSULTANTS CHANGE ENDORSEMENT
This endorsement modifies insurance provided under the following:
Miscellaneous Professional Liability Insurance Policy
SECTION III – EXCLUSIONS, Section A of the
policy is amended to add the following:
A. The Company is not obligated to pay Damages
or Claim Expense or defend Claims for or aris-
ing directly or indirectly out of:
Advice about or selection of any investment
advisor, investment manager, custodial firm
or similar firm by any Insured.
Advice about, promise or guarantee of the
future performance or value of investments,
or rate of return or interest by any Insured.
Loss of or fluctuation in the value of any
monies or securities.
Commingling or improper use of funds.
Failure of investments to perform as ex-
pected or desired.
All other terms and conditions of this policy
remain unchanged.
MISCELLANEOUS PROFESSIONAL LIABILITY
MPL 00 57 11 15
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
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WAR AND TERRORISM EXCLUSION
This endorsement modifies insurance provided under the following:
Miscellaneous Professional Liability Insurance Policy
SECTION III – EXCLUSIONS of the policy is
amended to add the following:
Notwithstanding any provision to the contrary within
this policy or any endorsement thereto, it is agreed
that the Company is not obligated to pay Damages,
Claim Expense, or any other cost or expense direct-
ly or indirectly caused by, resulting from or in con-
nection with any of the following regardless of any
other cause or event contributing concurrently or in
any other sequence to the loss:
1. War, invasion, acts of foreign enemies, hostili-
ties or warlike operations (whether war be de-
clared or not), civil war, rebellion, revolution, in-
surrection, civil commotion assuming the
proportions of or amounting to an uprising, mili-
tary or usurped power; or
2. Any Act of Terrorism.
For the purpose of this endorsement, an Act of
Terrorism means an act, including but not limited to
the use of force or violence and/or the threat thereof,
of any person or group(s) of persons, whether acting
alone or on behalf of or in connection with any or-
ganization(s) or government(s), committed for politi-
cal, religious, ideological or similar purposes includ-
ing the intention to influence any government and/or
to put the public, or any section of the public, in fear.
The Company is also not obligated to pay loss,
Damages, Claim Expense, or any other cost or
expense directly or indirectly caused by, resulting
from or in connection with any action taken in con-
trolling, preventing, suppressing or in any way relat-
ing to 1. and/or 2. above.
If the Company alleges that by reason of this exclu-
sion, any Damages, Claim Expense, or any other
cost or expense is not covered by this policy, the
burden of proving the contrary shall be upon the
Insured.
In the event any portion of this endorsement is found
to be invalid or unenforceable, the remainder shall
remain in full force and effect.
All other terms and conditions of this policy
remain unchanged.
MISCELLANEOUS PROFESSIONAL LIABILITY
MPL 00 58 03 18
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
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EXTENDED REPORTING PERIOD OPTION ENDORSEMENT
This endorsement modifies insurance provided under the following:
Miscellaneous Professional Liability Insurance Policy
The Extended Reporting Period options and the
respective percentage of the Net Variable
Premium, as stated in Item 7. of the
Declarations Page that the First Named Insured
must pay to purchase the Extended Reporting
Period are:
One Year = 100%
Two Years = 150%
Three Years = 200%
Four Years = 225%
Five Years = 250%
All other terms and conditions of this policy
remain unchanged.
MISCELLANEOUS PROFESSIONAL LIABILITY MPL 08 29 03 17
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
MPL 08 29 03 17 Page 1 of 2
DISTRICT OF COLUMBIA CHANGES
This endorsement modifies insurance provided under the following:
Miscellaneous Professional Liability Insurance Policy
SECTION VI – GENERAL CONDITIONS, Section I – Cancellation and Nonrenewal, is deleted in its entirety and replaced by the following:
I. Cancellation and Nonrenewal
1. Cancellation
a. The First Named Insured may cancel this policy by mailing or delivering writ-ten notice of cancellation to the Com-pany or the Company's authorized rep-resentative, at the address shown on the Declarations Page of this policy. Such notice of cancellation will state the effective date of cancellation or, if no ef-fective date is stated, the effective date of cancellation shall be thirty (30) days after receipt of notice. The Policy Peri-od will end on that date.
b. The Company may cancel this policy by mailing to the First Named Insured written notice stating the specific reason for cancellation at least:
(1) Thirty (30) days before the effective date of cancellation if the Company cancels for any reason. At least five (5) days prior to sending such notice to the First Named Insured, the Company will send notice to the agent or broker of record on the pol-icy.
c. If this policy has been effective for more than thirty (30) days, only the following reasons will be considered grounds for cancellation:
(1) Nonpayment of premium;
(2) A material and willful misstatement or omission of fact to the Company or its employees, agents or brokers in connection with any application to or Claim against the Company;
(3) The Insured has transferred proper-ty or other interest to a person other than the Insured or beneficiary, un-less the transfer is permitted under the terms of the policy; or
(4) The property, interest or use of the property or interest has materially changed with respect to its insurabil-ity.
d. If this policy is canceled, the Company will send the First Named Insured any premium refund due. If the Company cancels, the refund will be the pro rata unearned amount of the annual premi-um. If the First Named Insured can-cels, the refund, if any, will be the pro rata unearned amount of the annual premium calculated at the customary short rate. Return of premium to the First Named Insured is not a condition precedent to cancellation.
e. The Company will mail, by certificate of mail, the notice to the address stated in Item 1. on the Declarations Page.
f. If notice of cancellation is mailed, proof of mailing will be sufficient proof of no-tice. Delivery of the notice will be the same as mailing.
MISCELLANEOUS PROFESSIONAL LIABILITY – District of Columbia Changes
MPL 08 29 03 17 Page 2 of 2
2. Nonrenewal
The Company may elect not to renew this policy by mailing by certified mail with return receipt, or deliver written notice of nonre-newal to the First Named Insured at the address shown on the Declarations Page of this policy. The Company will mail or deliv-er the notice at least sixty (60) days before the expiration of this policy. At least five (5) days prior to sending such notice to the First Named Insured, the Company will send notice to the agent or broker of record on the policy.
If notice of nonrenewal is mailed, proof of mailing will be sufficient proof of notice. De-livery of the notice will be the same as mail-ing.
All other terms and conditions of the policy re-main unchanged.
CERTIFICATE OF EXEMPTION
wORKERs COMPENSATION/EMPLOYERS' LIABILITY INSURANCE
I. Marek Gootman. am the Managing Principal of Cities GPS LLC.
I hereby certify that Cities GPS LLC has no employees and is not required by law to maintain
workers compensation or employers' liability insurance.
Should Cities GPS LLC employ any person during the term of the Agreement with the City of
Carlsbad for inclusive economic development response and recovery assessment related to
COVID-19 impacts,then workers'compensation and employers' liability insurance will be
obtained.
w
Marek Gootman
Managing Principal, Cities GPS LLC