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Kosmont & Associates Inc dba Kosmont Companies; 2021-05-10;
DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401C458F AGREEMENT FOR REAL ESTATE & FINANCIAL ADVISORY SERVICES KOSMONT & ASSOCIATES, INC OBA KOSMONT COMPANIES THIS AGREEMENT is made and entered into as of the \ o+h day of ---=---....L.....:::::...==-1k-------' 20.2J, by and between the CITY OF CARLSBAD, a municipal corporation "City"), and KOSMONT & ASSOCIATES, INC. dba KOSMONT COMPANIES, a California corporation ("Contractor"). RECITALS A. City requires the professional services of a contractor experienced in providing real estate and financial advisory services. B. Contractor has the necessary experience in providing real estate and financial advisory services. 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 two years from the date first above written. The City Manager may amend the Agreement to extend it for three additional one-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 not exceed $100,000 per Agreement year. 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 $100,000 per Agreement year. 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 City Attorney Approved Version 6/12/18 DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401 C458F necessary. The persons used by Co.ntractor 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 attorney 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 for a period not to exceed four years after the Agreement's termination or expiration. 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 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. City Attorney Approved Version 6/12/18 2 DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401 C458F 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. 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 $2,000,000 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 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. City Attorney Approved Version 6/12/18 3 DocuSign Envelope ID: 319CACFD-BBAD-4288-82C4-BA29401C458F 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, audi\, 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 Name Gary Barberio Title Deputy City Manager Community Services Department Branch ----------City of Carlsbad Address 799 Pine Avenue, Suite 200 Carlsbad CA 92008 Phone No. 760-434-2822 For Contractor Name Title Address Larry J. Kosmont CEO 1601 N. Sepulveda Blvd., #382 Manhattan Beach CA 90266 Phone No. (424) 297-1070 Email LK0SM0NT@K0SMONT.C0M &/or KHIRA@K0SMONT.C0M Each party will notify the other i_mmediately of any changes of address that would require any notice or delivery to be directed to another ad<:Jress. 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 ONo 0 City Attorney Approved Version 6/12/18 4 DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401 C458F 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 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 City Attorney Approved Version 6/12/18 5 DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401 C458F employee, any fee, comm1ss1on, 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 ~his 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. Contractoracknowledges 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. Ill Ill Ill Ill 6 City Attorney Approved Version 6/12/18 DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401 C458F 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. CONTRACTOR CITY OF CARLSBAD, a municipal KOSMONT & ASSOCIATES, INC. corporation of the State of California a California corporation By: k. ,etv k r\-1 tUl By: w(f P~l, (sign here) GEOFF PATNOE Assistant City Manager For City Manager Ken K. Hira President ATTEST: By: ~ l}..,$/Wl, p ~ .:J~ k. "'MJ_:-'M.ir,vr-v fr, (sign here) BARBARA ENGLESON City Clerk Susan Perry Assistant Secretary 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 Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, 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: -------------Deputy/ Assistant City Attorney City Attorney Approved Version 6/12/18 7 DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401C458F EXHIBIT "A" SCOPE OF SERVICES AND FEE SCHEDULE I. SERVICES Contractor will provide real estate and financial advisory services to the City including but not limited to the following: • • • • Review various relevant public utility facilities ("Utility Facilities") and Shoppes at Carlsbad ("Mall") documents, and other documents related to relevant properties (e.g., settlement agreement) High level market assessment of land uses at the Utility Facilities, Mall sites and all relevant properties (e.g., retail reimagination, blended uses) High level financial feasibility analysis of redevelopment of Utility Facilities, Mall site and all relevant properties Assist City with public private transaction strategies and negotiations as related to a non-binding MOU, ENA, and/or Initial Implementation Agreement as may be needed by and between the City (or other public entity) and various private parties related to Brookfield, NRG, and SDG&E • Assist City with public financing strategies such as tax increment financing methods and mechanisms for public improvements/ infrastructure • Participate in meetings with City staff, stakeholders (e.g., Brookfield, NRG, SDG&E) • Present findings to City Council, as appropriate 11. FEE SCHEDULE Professional Services Chairman & CEO President Senior Vice President/Senior Advisor Vice President Senior Project Analyst Project Analyst/Project Research Assistant Project Analyst/Assistant Project Manager Project Promotion/Graphics/GIS Mapping Services Clerical Support Additional Expenses In addition to professional services (labor fees): $375.00/hour $345.00/hour $305.00/hour $210.00/hour $195.00/hour $165.00/hour $125.00/hour $ 95.00/hour $ 70.00/hour 1. Out-of-pocket expenditures, such as travel and mileage, professional printing, and delivery charges for messenger and overnight packages will be charged at cost. 2. If Contractor retains Third Party Vendor(s) for City (with City's advance approval), fees and cost will be billed to City at 1.1X (times) fees and costs. 3. Contractor's attendance or participation at any public meeting, whether such participation is in person, digital, video and/or telephonic (e.g., City Council, Planning Commission, Public Agency Board, other) requested by City and are beyond those specifically identified in the Scope of Work will be billed at the professional services (hourly) fees as shown on this Exhibit A. City Attorney Approved Version 6/12/18 8 DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401 C458F Charges for Court/Deposition/Expert Witness-Related Appearances Court-related (non-preparation) activities, ·such as court appearances, depositions, mediation, arbitration, dispute resolution and other expert witness activities, will be charged at a court rate of 1.5 times scheduled rates, with a 4-hour minimum. City Attorney Approved Version 6/12/18 9 DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401C458F KOSM&AS-01 BSTERNBERG ACORD" CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 4/13/2021 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($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). \ PRODUCER License # OC36891 ~2~i~cT Brett R Sternberg Lyddy Martin Company rtg,NJo,Ext): (310) 478-2625 317 I FAX 5021 Verduf.o Way (A/C,No): Ste.105 #4 4 ~iiMDAJ~ss: brett@lyddymartin.com Camarillo, CA 93012 INSURER/SI AFFORDING COVERAGE NAIC# INSURER A: Sentinel Insurance Company Ltd 11000 INSURED INSURER B: Kosmont & Associates, Inc. INSURER C: Oba: Kosmont Companies 1601 N. Sepulveda Blvd. #382 INSURER D: Manhattan Beach, CA 90266 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER· 52 REVISION NUMBER· THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY-PAID CLAIMS. lNSR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER .f~LICY EFF POLICY EXP LIMITS LTR INSD WVD fMMlnD/YYYYI A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 -7 CLAIMS-MADE [K] OCCUR X 72SBABC3942 6/27/2020 6/27/2021 DAMAGE TO RENTED ~.000,000 PQl'MISES !Ea occurrence I $ -MED EXP /Anv one oerson) $ 10,000 PERSONAL & ADV INJURY -$ 1,000,000 2,000,000 ~'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ □PRO-□ 2,000,000 POLICY JECT LOC PRODUCTS -COMP/OP AGG $ OTHER: $ A AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 1,000,000 '"' accidenll $ ANY AUTO 72SBABC3942 6/27/2020 6/27/2021 BODILY INJURY /Per person) $ -OWNED -SCHEDULED -AUTOS ONLY -AUTOS BODILY INJURY /Per accidenll $ X HIRED X NON-OWNED FP~?~J'c~d~l~AMAGE $ f----AUTOS ONLY t--AUTOS ONLY $ A X UMBRELLA LIAB ~ OCCUR EACH OCCURRENCE $ 3,000,000 -72SBABC3942 6/27/2020 6/27/2021 3,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $ OED I X I RETENTION$ 10,000 $ WORKERS COMPENSATION I PER I I ~JH-AND EMPLOYERS' LIABILITY STATUTE YIN ANY PROPRIETOR/PARTNER/EXECUTIVE □ NIA E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space is required) City of Carlsbad, its officers, agents and employees are included as Additional Insured per written contract/agreement as respects to General Liability. The insurance is primary, and non-contributory and waiver of subrogation applies-See attached Business Liability Endorsement #SS 00 08 04 05 CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Carlsbad THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 1200 Carlsbad Village Drive Carlsbad, CA 92008 AUTHORIZED REPRESENTATIVE I ~ ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and loao are reaistered marks of ACORD DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401 C458F (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a \im'1ted liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"); or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of t11at property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this insurance. e. Unnamed Subsidiary Any subsidiary and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of this Coverage Part. The insurance afforded herein for any subsidiary not shown in t11e Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50% of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the orgal)ization or the end of the policy period, whichever Is earlier; and Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM b. Coverage under this provision does not apply to: (1) "Bodily injury" or "property damage" that occurred; or (2) "Personal and advertising injury" arising out of an offense committed before you acqu'ired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment'' registered In your name under any motor vehicle registration law, any person is aJl insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co-"employee" of the person driving the equipment; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5. Operator of Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co-"employee" of the person operating the watercraft; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or me employer of any person who is an insured under this provision. 6: Additional rnsureas Wfie.11 Required By 'Wrltten Contract, Written, Agre4tment o~ Permit The person(s) or organizatlon(s) Ldenllfled In Paragraphs a. through. f. below are additional. insureds when you have. agreed, In a written Page 11 of 24 DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401C458F BUSINESS LIABILITY COVERAGE FORM contract; written agreement" or because of a permit Issued ·by a state or 'pdlitical subdivision. that :such person or organization , be added as an additional· insured on_ your policy, provided the injury or damage occurs subsequ1;tnt to the execution of1he contract or· .agreemenj, or the ·issuance of !he permit. A · person or organization is .an additional inslin:id under thjs pmvision only for that· .period of time required by the contract. agreement or permit. However, no such person or organization is an additional insured under this provision if such person or organization is included as an additional insured by an endorsement issued by us and made-a part of this Coverage Part, including all persons or organizations added as additional insureds under the specific additional insured coverage grants in Section F. -Optional Additional Insured Coverages. a. Vendors Any person(s.) or organization(s) (referred to below as vendor), but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard". (1) The insurance afforded to the vendor is subject to the following additional exclusions: Page 12 of 24 This insurance does not apply to: (a) "Bodily injury" or "property damage" for which the vendor is oblig_ated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (b) Any express warranty unauthorized by you; (c) Any physical or chemical change in the product made intentionally by the vendor; (d) Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (e) Any failure to make such inspections, adjustments, tests or serv1c1ng as • the vendor ·. has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; {f) Demonstration, installation, serv1c1ng or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; {g) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (i) The exceptions contained in Subparagraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. (2) This insurance does not apply to any insured person or organization from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. b. Lessors Of Equipment (1) Any person or organization from whom you lease equipment; but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment lea~ed to you by such person or organization. Form SS 00 08 04 05 OocuSign Envelope ID: 319CACFO-BBAD-4288-B2C4-BA29401C458F (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add Others As An Additional Insured To This Insurance That is other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this Coverage Part: (a) Primary Insurance When Required By Contract This-insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. (b) Primary And Non-Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or pennit that this insurance . is primary and non-contributory with the additional insured's own insurance, this insurance is primary and we will not seek .contribution from that other insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional insured . has been added as an additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM When this insurance is excess over other insurance, we will pay only our share of the amount. of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self-insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other insurance permits contribution by equal shares, we will follow this method also. Under this approach, . each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicabie limit of insurance to the total applicable limits of insurance of all insurers. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The Insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery {Waiver Of Subrogation) If the insured has waived any rights of recovery against any· person. or organization ffir all or pa.rt of any payment, includjng Supplementary Payments, we have made under this Coverage Part, we · also waive that right, proVided the Insured waived -their. rlgbts of recovery against 1 such person or orga11tz:ation in a contract, agreement or permit that was executed prior to the injury or damage. Page 17 of 24 DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401C458F ~ ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MMIDDIYYYY) ~ 4/23/2021 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 have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorseme_nt. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER lvUN,ttvl Rick Powell NAME: Rick Powell Insurance Agency, LLC rA~gNJo Extl: (818) 861-7440 I (JV~, No): (760) 804-9710 3500 West Olive Ave. Suite 300 t:-mMOL rick@insurance4ca.com ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC# Burbank CA 91505 INSURER A: HISCOX INS CO INC 10200 INSURED INSURER B: Kosmont & Associates, Inc. dba Kosmont Companies INSURER C: 1601 N Sepulveda Blvd #382 INSURER D: INSURER E: Manhattan Beach CA 90266 INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER· THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. "'""' TYPE OF INSURANCE INSD WVD LTR POLICY NUMBER (~~J-d'oim'v, (MM1ooivm, LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ -=i CLAIMS-MADE OoccuR vn1v1nu1-I U ,L..1 11 t::U PREMISES (Ea occurrence) $ MED EXP (Any one person) $ -PERSONAL & ADV INJURY $ I-GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ Fl □PRO-□LOG PRODUCTS -COMP/OP AGG $ POLICY JECT OTHER: $ AUTOMOBILE LIABILITY {Ea accident)•NGLI= LIMI 1 $ -ANY AUTO BODILY INJURY (Per person) $ -OWNED -SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ -HIRED t--NON-OWNED "t:K IT UAMAC,t: AUTOS ONLY AUTOS ONLY (Per accidenl) $ --$ UMBRELLA LIAB HOCCUR EACH OCCURRENCE $ -EXCESS LIAS CLAIMS-MADE AGGREGATE $ DED I I RETENTION$ $ WORKERS COMPENSATION lsrP'.TUTE I lt~M-~ND EMPLOYERS' LIABILITY Y/N IANY PROPRIETOR/PARTNER/EXECUTIVE□ NIA E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ Per Claim $2,000,000 A Errors and Omissions y MPLl425837.2I 03/15/2021 03/15/2022 Ag!,'Tegate $2,000,000 DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Carlsbad ACCORDANCE WITH THE POLICY PROVISIONS. 1200 Carlsbad Village Drive AUTHORIZED REPRESENTATIVE RW<-PO-W,,U.. 1 Carlsbad CA 92008 © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401 C458F ___., ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDNYYY) .....__,. .. Acct#: 1171322 4/14/2021 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 have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT 888-828-8365 NAME: Lockton Companies, LLC PHONE I FAX 3657 Briarpark Dr., Suite 700 IAJC No Extl· IA/C Nol: E-MAIL Houston, TX 77042 ADDRESS: INSURERISI AFFORDING COVERAGE NAIC# INSURER A: Ace American Insurance Co. 22667 INSURED INSURER B: KOSMONT & ASSOCIATES, INC. 1230 ROSECRANS AVE STE 630 INSURERC: . MANHATTAN BEACH, CA 90266-2499 INSURER D: INSURER-E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY .BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE "'~D WVD POLICY NUMBER {MM/DD/YYYYI IMM/DDNYYYI LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ ,--D CLAIMS-MADE □ OCCUR DAMAGE TO RENTED ,--PREMISES IEa occurrence) $ -MED EXP (Any one person) $ PERSONAL & ADV INJURY $ -GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ ~ □PRO-DLoc PRODUCTS· COMP/OP AGG POLICY JECT $ OTHER: $ AUTOMOBILE LIABILITY fic~~~~~~t?INGLE LIMIT $ -ANY AUTO BODILY INJURY (Per person) $ ,---ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ ,---NON-OWNED PROPERTY DAMAGE HIRED AUTOS AUTOS IPer accident\ $ ,---$ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ r--EXCESS LIAB CLAIMS-MADE AGGREGATE $ OED I I RETENTION $ $ WORKERS COMPENSATION I PER I I OTH-AND EMPLOYERS' LIABILITY X STATUTE ER Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE □ E.L. EACH ACCIDENT $ 1,000,000 A OFFICER/MEMBER EXCLUDED? N/A X C68709179 10/1/2020 10/1/2021 (Mandatory in NH) E.L. DISEASE • EA EMPLOYEE $ 1,000,000 If yes, describe under E.L. DISEASE· POLICY LIMIT DESCRIPTION OF OPERATIONS below $ 1,000,000 ' DESCRIPTION OF.OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Addilional Remarks Schedule, may be altached if more space Is required) WAIVER OF SUBROGATION IN FAVOR OF CITY OF CARLSBAD WHEN REQUIRED BY WRITTEN CONTRACT. ' CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CA 92008 AUTHORIZED REPRESENTATIVE © 1988-2014 ACORD CORPORATION. All rights reserved. Tho. tt.r:ni;,n n"':::t.mo .,,..,,.a ln.N,-. ,...,.._ .. ,..,.,:r-4-,.. .. ,....1 -..... L. ...... & ,.. r-non DocuSign Envelope ID: 319CACFD-BBAD-4288-B2C4-BA29401C458F Workers' Compensation and Employers' Liability Policy Named Insured Endorsement Number lnsperity, INC. L/C/F KOSMONT & ASSOCIATES, INC. Policy Number 19001 Crescent Springs Drive Symbol: RWC Number: C68709179 Kingwood, TX 77339 Policy Period Effective Date of Endorsement 10/1/2020 TO 101112021 10/1/2020 Issued By (Name of Insurance Company) Ace American Insurance Co. Insert the oolicy number. The remainder of the information is to be completed only when this endorsement is issued subsequent to the preparation of the policy. CALIFORNIA WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement applies only to the insurance provided by the policy because California is shown in Item 3.A. of the Information Page. We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule, but this waiver applies only with respect to bodily injury arising out of the operations described in the Schedule, where you are required by a written contract to obtain this waiver from us. You must maintain payroll records accurately segregating the remuneration of your employees wh[le engaged in the work described in the Schedule. 1. ( X ) Specific Waiver Name of person or organization: CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CA 92008 ( ) Blanket Waiver Schedule Any person cir organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2. Operations: 3. Premium: The premium charge for this endorsement shall be INCLUDED percent of the California premium developed on payroll in connection with work performed for the above person(s) or organization(s) arising out of the operations described. 4. Minimum Premium : WC 99 03 22 INCLUDED Authorized Representalive I