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HomeMy WebLinkAboutAgr 2021-02-16 (Potter Investigations)TOWN OF TIBURON 1505 Tiburon Boulevard, Tiburon, CA 94920 AGREEMENT FOR PROFESSIONAL SERVICES CHIEF OF POLICE BACKGROUND INVESTIGATION FEBRUARY 3, 2021 This Professional Services Agreement (the "Agreement") is dated,_~/ I/,?, 2021 and is by and between the Town of Tiburon, a public body of the State of California ("Town"~-and Potter Investigations and Consulting, a Private Investigation firm relating to background investigation Services ("Services"). RECITALS: WHEREAS, Government Code section 53060 permit the Town to enter into agreements for professional services with individuals specially trained and experienced and competent to perform those services; and WHEREAS, Consultant is willing to render such professional services, as hereinafter defined, on the following terms and conditions. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, stipulated and agreed, the parties agree as follows: AGREEMENT: 1. DESCRIPTION OF CONSULTANT'S SERVICES. Services are as described in the Town's Proposals, Exhibit 1, and the following: Background investigation services for Chief of Police candidate. 2. COMPENSATION FOR CONSULTANT'S SERVICES. Compensation for the Services shall be (select one): [ ] Lump Sum of$ ______ ~ (with)/ (without) [Circle one] progress payments; or [ X ] Time and materials, per schedule of rates and charges included in Exhibit 1, with a guaranteed not to exceed price of $_----"2""-0""'0""'0'-'-.0""'0:c..-____ _ 3. EFFECTIVE DATE AND TERM. The effective date of this Agreement is fe.br.'!#:!!j (lp,J,O)/ and it shall terminate no later than 30 days unless an extension is approved by the Town. 4. PERSONNEL SUPPLIED FOR CONSULTANT'S SERVICES. Consultant shall use only the personnel listed below (resumes attached) in performing the Services. (If subconsultants are used, list the firm, personnel and attach resumes). _Craig Potter ___________________________ _ Town of Tiburon 7/20 Agreement for Professional Services 5. TERMS AND CONDITIONS. Consultant shall perform the Services identified herein, in accordance with the terms and conditions of this Agreement, including without limitation, terms regarding Compensation, Schedule, Personnel, Annex "A" Agreement Terms and Conditions, and Annex "B" Insurance. Consultant acknowledges its opportunity to negotiate such terms and conditions. 6. LIMITATIONS. Changes made to printed Terms and Conditions on this Agreement are null and void unless approved in writing by the Town. 7. USE OF AGREEMENT. The Agreement number must appear on all invoices and correspondence. Send invoices in duplicate to Town of Tiburon, Director of Administrative Services, 1505 Tiburon Boulevard, Tiburon, CA 94920, immediately upon performance. 8. For purposes of this Agreement, Town and Consultant shall direct all communications to each other as follows: Town: Town of Tiburon Suzanne Creekmore 1505 Tiburon Boulevard Tiburon, CA 94920 Phone: (415) 435-4359 Fax: (415) 435-2438 Email: screekmore@townoftiburon.org Consultant: Craig Potter Potter Investigations & Consulting P.O. Box 2466 Elk Grove, CA 95759 (916) 606-1253 craig.potter@potterconsulting.org IN WITNESS WHEREOF the parties have executed this Agreement in duplicate as of the dates identified below. TOWN OF TIBURON: [Please print name] Title P/2.~ rDE-~ I OWNE-'2...- 1 [If Corporation: Chairman, President, or Vice Date: _ ___,d~/_/b_,__/0_...· '#,_ __ _ r, President] Date:_?-/ ___ 1~/ 20_"2-_J _ Town of Tiburon 7/20 2 Agreement for Professional Services Attest: _______________ _ [Town Clerk] Approved as to form and procedure: Town Attorney _____________ _ END OF DOCUMENT Town of Tiburon 7/20 3 Agreement for Professional Services ANNEX A -PURCHASE ORDER TERMS AND CONDITIONS This is an Annex to the Agreement for Professional Services Agreement dated 1E.b~ /1,,:;u;;)./ ("Agreement") between the Town and Consultant, as described therein, for the provision of professiona services ("Services"). ARTICLE 1 -TERMS OF PERFORMANCE 1.01 Agreement Force and Effect. The provisions of this Agreement constitute the entire agreement between the Consultant and Town regarding the Services, shall supersede all other prior purchase orders/agreements between Consultant and Town with respect to the Services, and shall control over any inconsistent provisions in any Consultant-prepared attachments hereto. No representation, term or covenant not expressly specified in this Agreement shall, whether oral or written, be a part of this Agreement. Town is not responsible for Services rendered without the authority of an Agreement on this form. 1.02 Performance of Services. Consultant represents that it possesses the requisite training, licenses and permits necessary to perform the Services, and that its performance of the Services shall conform to the standard of practice of a professional having specific experience and expertise in professional services of like nature and complexity of the Services. 1.03 Licenses. If a license of any kind, which term is intended to include evidence of registration, is required of Consultant, its employees, agents, or subcontractors by federal or state law, Consultant warrants that such license has been obtained, is valid and in good standing, and shall be kept in effect all times during the term of this agreement. 1.04 Progress and Coordination. Upon Town's request, Consultant shall provide Town with progress submittals showing status of Services, at times and increments as Town may reasonably request, and shall provide Town with a progress schedule for performance of the Services, at times and in a level of detail as Town may reasonably request. Consultant shall coordinate with Town and authorities with jurisdiction as necessary to perform the Services. Time is of the essence in the performance of the Services. 1.05 Plans, Specifications, Reports, Deliverables. Work product under this Agreement shall be professional in appearance, comply with the requirements of this Agreement and with design criteria established by Town, applicable laws and codes, and with all applicable professional standards. Services shall meet this standard within the agreed compensation and schedule; services necessary to correct work product, errors or omissions in work product, shall not entitle Consultant to an increase in compensation. 1.06 No Waivers. The granting of any payment, and any inspections, reviews, approvals or oral statements by any Town representative, or certification by any governmental entity, shall not limit or waive Consultant's obligations under this Agreement. Either party's waiver of any breach , or the omission or failure of either party, at any time, to enforce any right reserved to it, or to require strict performance of any provision of this Agreement, shall not be a waiver of any other right to which any party is entitled, and shall not in any way limit or modify that party's right thereafter to enforce or compel strict compliance with every provision hereof. 1.07 Modifications. This Agreement may not be modified, nor may compliance with any of its terms be waived, except by written instrument executed and approved by fully authorized representatives of Town and Consultant. Consultant's authorized representative is the individual signing this Agreement unless Consultant otherwise informs Town in writing. 1.08 Payment Requests. Consultant shall submit all billings with all necessary invoices, time records, deliverables, or other appropriate evidence of performance, after which Town shall make payment at the earliest practicable time. If requested by Town to facilitate the payment process Town of Tiburon 7/20 Annex A-I Agreement for Professional Services and track progress, Consultant shall provide Town with an itemization of its compensation according to a Work Breakdown Structure ("WBS") in a form Town supplies or approves (at Town's option), that defines all Agreement tasks (Consultant's and Subconsultants'), along with a project schedule defining the time line for each task, a project budget defining the planned man- hours and costs for each task, and a schedule of deliverables defining each deliverable to be provided to Town. 1.09 Scope of Compensation. Agreed method of compensation shall be full compensation for all Services required, performed or accepted under this Agreement, and Consultant shall not be entitled to compensation or reimbursement beyond or outside of agreed compensation. lf Consultant previously commenced services within the scope of the Services, then the services performed and the compensation paid shall be subject to the terms of this Agreement. 1.010 Additional Services. Payment for Additional Services shall require a written addendum or amendment, negotiated and signed by the Consultant and Town prior to commencing work of Additional Services, providing for the scope, schedule and terms of compensation. ARTICLE 2 -LEGAL AND MISCELLANEOUS 2.01 No Assignment. Consultant shall not subcontract any portion of the Services or otherwise assign this Agreement without prior written approval of Town, and Consultant shall remain responsible for compliance with all terms of this Agreement, regardless of the terms of any such assignment. 2.02 Records and Audit. At Town's request, Consultant shall make available to Town, its authorized agents, officers, or employees, for audit, photocopy or compilation, any and all ledgers, books of accounts, invoices, payrolls, vouchers, cancelled checks, correspondence, internal memoranda, calculations, drafts, and other records or documents evidencing or relating to the performance of the Services (hard copy or electronic), expenditures and disbursements charged to Town in connection with the Services. Consultant shall maintain such documents for at least three (3) years following completion of the Services. Such rights shall be specifically enforceable. 2.03 Independent Contractor. Consultant is an independent Contractor and does not act as Town's agent in any capacity, whatsoever. Consultant is not entitled to any benefits that Town provides to Town employees, including, without limitation, worker's compensation benefits or payments, pension benefits, health benefits or insurance benefits. Terms within this Agreement regarding direction apply to and concern the result of the Consultant's provision of Services, not the means, methods, or scheduling of the Consultant's work. Consultant shall be solely responsible for the means, methods, techniques, sequences and procedures with respect to its provision of Services under this Agreement. Consultant shall pay all payroll taxes imposed by any governmental entity and shall pay all other taxes not specifically identified in this Agreement as Town's responsibility. 2.04 Indemnity/Liability. To the fullest extent allowed by law (including without limitation California Civil Code Sections 2782 and 2782.8), Consultant shall defend (with legal counsel reasonably acceptable to Town), indemnify, and hold harmless the Town of Tiburon, its officers, directors, officials, agents, employees, and volunteers (collectively, "lndemnitees") from and against any and all claims, suits, expenses, liability, cause of action, loss, cost, damage, injury (including, without limitation, economic harm, injury to or death of any person, including an employee of Consultant or its Subconsultants), of every kind, nature, and description, at law or equity, (including without limitation, incidental and consequential damages, court costs, attorneys' fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) (collectively "Liabilities"), that arise out of, pertain to, or relate to any negligence, recklessness, or willful misconduct of Consultant, any Subconsultant, anyone directly or indirectly employed or retained by them, or anyone that they control. In the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the Consultant shall meet and confer with other parties regarding Town of Tiburon 7/20 Annex A-2 Agreement for Professional Services unpaid defense costs. The Consultant's obligations to indemnify, defend, hold harmless the lndemnitees shall not apply to the extent that such Liabilities are caused in whole or in part by the sole negligence, active negligence, or willful misconduct of such lndemnitee but shall apply to all other Liabilities, and in no event shall the cost to defend charged to the Consultant exceed the Consultant's proportionate percentage of fault. 2.05 Conflict of Interest. Consultant represents and warrants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of work and services required under this Agreement. Without limitation, Consultant represents to and agrees with Town that Consultant has disclosed any potential conflict of interest, and will have no future conflict of interest, in providing Town services hereunder, including but not limited to, any interest (financial, share ownership, shared management, shared directors, or reporting responsibilities) Consultant may presently have, or will have in the future, with respect to any other person or entity (including but not limited to potential suppliers, vendors, consultants, contractors, or regulatory agency) which may have an interest in the subject matter of the Services. 2.06 Confidentiality. Any information, whether proprietary or not, made known to or discovered by Consultant during the performance of or in connection with this Agreement for Town, will be kept confidential and not be disclosed to any other person. Consultant will immediately notify Town in writing if it is requested to disclose any information made known to or discovered by Consultant during the performance of or in connection with this Agreement. These conflict of interest, confidentiality and future service provisions and limitations shall remain fully effective indefinitely after termination of services to Town hereunder. 2.07 Ownership of Results. Any interest (including copyright interests) of Consultant or its contractors or subconsultants (together, "Subconsultants"), in studies, reports, memoranda, computational sheets, drawings, plans or any other documents (including electronic media) prepared by Consultant or its Subconsultants in connection with the Services, shall become the property of Town. To the extent permitted by Title 17 of the United States Code, work product produced under this Agreement shall be deemed works for hire and all copyrights in such works shall be the property of Town. In the event that it is ever determined that any works created by Consultant or its Subconsultants under this Agreement are not works for hire under U.S. law, Consultant hereby assigns to Town all copyrights to such works. With Town's prior written approval, Consultant may retain and use copies of such works for reference and as documentation of experience and capabilities. As respects Consultant's standard details and proprietary design instruments of service (not specific to this Agreement), however, Town shall have only a non-exclusive but otherwise unrestricted license to use the materials prepared in connection with this Agreement. 2.08 Non-Discrimination Policy. Consultant shall not discriminate against any employee or applicant for employment, nor against any Subconsultant or applicant for a subcontract, because of race, color, religious creed, age, sex, actual or perceived sexual orientation, national origin, disability as defined by the ADA or veteran's status. To the extent applicable, Consultant shall comply with all federal, state and local laws (including, without limitation, all Town and Town ordinances, rules and regulations) regarding non-discrimination, equal employment opportunity, affirmative action and occupational-safety-health concerns, shall comply with all applicable rules and regulations thereunder, and shall comply with same as each may be amended from time to time. Consultant shall provide all information reasonably requested by Town to verify compliance with such matters. Consultant stipulates, acknowledges and agrees that Town has the right to monitor Consultant's compliance with all applicable non-discrimination requirements, and may impose sanctions upon a finding of a willful, knowing or bad faith noncompliance or submission of information known or suspected to be false or misleading. 2.09 Termination and Suspension. (i) Town may, with or without cause, direct Consultant to suspend, delay or interrupt Services, in whole or in part, for such periods of time as Town may Town of Tiburon 7/20 Annex A-3 Agreement for Professional Services determine in its sole discretion. (ii) Town may terminate performance of the Services under this Agreement in whole, or from time to time in part, for default, should Consultant commit a material breach of this Agreement, or part thereof, and not cure such breach within ten (10) calendar days of the date of Town's written notice to Consultant demanding such cure, in which case Consultant shall be liable to Town for all loss, cost, expense, damage and liability resulting from such breach and termination . (iii) Town may terminate performance of the Services under this Agreement in whole, or from time to time in part, for convenience, whenever Town determines that such termination is in Town's best interests, in which case Consultant shall be entitled to recover compensation and costs for services performed to the effective date of termination, but may recover no other cost, damage or expense. The Town may condition payment of such compensation upon the Consultant's delivery to the Town of any and all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the Town in connection with this Agreement. Consultant shall continue its work throughout the course of any dispute, and Consultant's failure to continue work during a dispute shall be a material breach of this Agreement. 2.010 Execution; Venue; Limitations. This Agreement shall be deemed to have been executed in the Town of Tiburon, County of Marin. The exclusive venue for all disputes or litigation arising out of this Agreement shall be in the Superior Court of the County of Marin , unless the parties agree otherwise in writing . Enforcement of this Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. Except as expressly provided in this Agreement, nothing in this Agreement shall operate to confer rights or benefits on persons or entities not party to this Agreement. As between the parties to this Agreement, any applicable statute of limitations for any act or failure to act shall commence to run on the date of Town's issuance of the final Certificate for Payment, or termination of this Agreement, whichever is earlier, except for latent defects, for which the statute of limitation shall begin running upon discovery of the defect and its cause. ARTICLE 3 -CONSTRUCTION OF AGREEMENT 3.01 Headings. The headings in this Agreement are for convenience only and do not affect the construction of this Agreement. 3.02 Modifications. Modifications to this Annex "A" Agreement Terms and Conditions shall not be effective unless approved and initialed by Town's Town Manager. ARTICLE 4 -CONSULTANT'S PROPOSAL AND OTHER CONSUL TANT-PREPARED DOCUMENTS 4.01 Exhibit 1. Exhibit 1 consists of Consultant-prepared documents (e.g., Consultant's rate sheet and proposal, if any) attached to this Agreement for reference only, defining further the scope of Consultant's scope of Services hereunder. 4.02 Complementary Construction. This Agreement, its Annexes and attachments (including but not limited to the attached Exhibit 1) are deemed complementary; what is called for by one is as binding as if called for in both and shall be performed by Consultant. In the case of direct conflict, then the requirement providing Town with the broader scope of services shall have precedence. 4.03 Modifications. Exhibit 1 may not supplement, contradict or qualify Annex "A" Agreement Terms and Conditions, except as listed below and initialed by the Town Manager. 4.04 Named Personnel and Subconsultants. It is recognized that the named personnel and Subconsultants in the Agreement are not bound by personal employment contracts to Consultant, however, Consultant agrees that reassignment of any of the named personnel or Subconsultants during the Services requires prior written approval of Town, which approval shall not be unreasonably withheld. Under no circumstances may Consultant replace personnel or Town of Tiburon 7 /20 Annex A-4 Agreement for Professional Services Subconsultants with less qualified or less experienced personnel, without Town's written consent, which may be withheld by Town on a reasonable belief of good cause. END OF ANNEX "A" Town of Tiburon 7/20 Annex A-5 Agreement for Professional Services ANNEX B -INSURANCE REQUIREMENTS This is an Annex to the Agreement for Professional Services Agreement dated "fehl1.Ul!!;I !IP, ;J(};J.f ("Agreement") between Town and Consultant, as described therein, for the provision of professional services ("Services"). ARTICLE 5 -INSURANCE Consultant's Duty to Show Proof of Insurance. Prior to the execution of this Agreement, Consultant shall furnish to Town satisfactory proof that Consultant has taken out for the entire period required by this Agreement, as further described below, the following insurance, in a form satisfactory to Town and with an insurance carrier satisfactory to Town, authorized to do business in California and rated by A M. Best & Company A-or better, financial category size VII or better, which will protect those described below from claims described below which arise or are alleged to have arisen out of or result from the acts or omissions of Consultant for which Consultant may be legally liable, whether performed by Consultant, or by those employed directly or indirectly by it, or by anyone for whose acts Consultant may be liable: 5.01 Commercial General Liability Insurance Commercial general liability insurance, written on an "occurrence" basis, which shall provide coverage for bodily injury, death and property damage resulting from operations, products liability, blasting, explosion, collapse of buildings or structures, damage to underground structures and utilities, liability for slander, false arrest and invasion of privacy arising out of construction management operations, blanket contractual liability, broad form endorsement, a construction management endorsement, products and completed operations, personal and advertising liability, with per location limits of not less than One Million Dollars ($1,000,000) general aggregate and One Million Dollars ($1,000,000) each occurrence. 5.02 Business Automobile Liability Insurance Consultant will provide the Town with a copy of their personal automobile liability insurance policy. Business automosile liability insurance with limits not less than One Million Dollars ($1 ,000,000) each occ1:1rronce including coverage for owned, non O'Nned and hired vehicles. 5.03 1•11J0rkers' Compensation lnsurartGe VVorkers' Compensation Employers' Liability limits not less than One Million Dollars ($1,000,000) each accident, One Million Do.liars ($1 ,000,000) per disease and One Million Dollars ($1 ,000,000) aggregate. Consultant's VV-0rkers' Compensation Insurance policy shall contain a VVaiver of Subrogation. In the event Consultant is self insured, it shall f.urnish Certificate of Permission to Self Insure signed sy Department of Industrial Relations Administration of Self Insurance, State of California. 5.04 Professional biabilit\• Insurance Prof-essional Liability Insurance, either limits of not less than One Million Dollars ($1 ,000,000) each occurrence or claim and Two Million Dollars ($2,000,000) aggregate, all with respect to negligent acts, errors or omissions in connect:ion ,,,.1i:th services to be pro•,ided under this Agreement, with no exclusion for claims of one insured against another insured and with tail co,.,erage for a period of five (5) years after the completion of the Services. 5.05 Additional Insured / Waiver of Subrogation Consultant shall include Town, its officers, officials, agents, employees and volunteers as Additional Insureds under the General Liability and Auto policies, and shall supply specific endorsements for same. The Additional Insured endorsement under the General Liability policy will be the Additional Insured - Town, Lessees or Contractors -Scheduled Person or Organization ISO Form CG2010 with the current Annex B-I Agreement for Professional Services applicable revision date. It is acceptable that the Additional Insured endorsement to provide "where required by written contract." Consultant shall obtain a specific endorsement to its workers' compensation insurance policy waiving all rights of subrogation against the Town, its officers, officials, agents, employees and volunteers. 5.06 The policies shall apply separately to each insured against whom claim is made or suit is brought except with respect to the limits of the company's liability. 5.07 Written notice of cancellation of the policies shall be mailed to Town thirty (30) days in advance of the effective date thereof. 5.08 Insurance shall be primary insurance and no other insurance or self insured retention carried or held by any named or additional insureds other than that amount Consultant shall be called upon to contribute to a loss covered by insurance for the named insured. 5.09 Certificates of Insurance and Endorsements shall have clearly typed thereon the title of the Agreement, shall clearly describe the coverage and shall contain a provision requiring the giving of written notice. 5.10 Nothing herein contained shall be construed as limiting in any way the extent to which Consultant or any of its permitted subcontractors or subconsultants may be held responsible for payment of damages resulting from their operations. If Consultant fails to maintain any required insurance, Town may take out such insurance, and deduct and retain amount of premium from any sums due Consultant under this Agreement. END OF ANNEX "B" Annex 8-2 Agreement for Professional Services Appendix 1 Scope of Work The Town shall compensate Consultant for the satisfactory performance of the work described in this agreement in a total not to exceed Two Thousand Dollars ($2,000.00) including labor, taxes and expenses, according to below: 1. Additional expenses: The Town shall reimburse consultant for costs only after prior approval in advance. 2. Travel: All travel costs to include per diem, mileage, travel time shall be included in the cost of this total agreement. However, if a situation arises that would require consultant to travel outside of a 50 mile radius; consultant will seek prior approval from the Town for travel costs and shall be agreed upon by both parties as to reimbursement of travel costs. 3. Testifying in deposition, administrative civil or criminal hearing: the Town shall pay consultant the hourly rate of $250.00. Included in Consultant's rate are all documents, FAX transmissions, phone call expenses and mailing services. Consultant will obtain exam results and include them in the summary investigation report. Consultant shall coorEiinate 'Nith the canEiidate and the Town to scheEiule the exams in a timely manner. The psychological evaluation will be conducted by a licensed psychologist and according to POST standards. The Toi.vn will pay all expenses and associated costs. Consultant shall submit an itemized statement for services and the Town shall pay consultant within 30 days of receipt of invoice. Consultant will provide services to agency which includes background investigations and reports for the Police Department. The consultant shall be solely responsible for the background investigation as outlined in (Appendix A). Documents/photographs shall be provided to the consultant in a timely manner. The consultant shall perform the following procedures for the background: 1. Conduct introductory interviews with assigned candidate prior to commencement prior to the formal background investigation. Before each interview, agency will provide consultant with background data on the candidate; 2. Review of Personal History Statement (PHS) and determine whether any conflicts exist with any other information provided by either the candidate or developed in the course of the background investigation; 3. Review of the PHS and the follow-up deemed necessary in response to candidate answers to PHS questions; 4. Confirmation of education history and education documents provided by the candidate; 5. Receipt and review of Citizenship documents; 6. Employment history verifications, including review of personnel files and Internal Affairs files (if applicable); 7. Residential canvassing; for sworn candidates; 8. Receipt and review of marriage and divorce documents; 9. Spousal interviews; 10. Local law enforcement agency inquiries; 11. Perform investigations with respect to applicants' online lives and history via social networking, sites, biogs, and similar internet-based services; Annex B-3 Agreement for Professional Services 12. Conduct a "clarification interview" with candidate in response to any significant information developed as a result of the background investigation which is in conflict with information provided by the candidate; 13. Explore and investigate any concerns uncovered during the introductory interview, as well as any information developed during the course of the formal background investigation; 14. Notify agency when significant information or concerns are found which cast a serious question to the suitability of a candidate, assist in the determination of whether to proceed with the background investigation, and prepare Summary Investigation Reports when candidate is deemed "disqualified" based on POST background investigation standards; 15. At the conclusion of the background investigation, prepare a Background Investigation Narrative Report, using Microsoft Word; 16. When required by summons or other legal processes, or at the request of the agency, provide legal testimony on the background investigations; 17. Be available for and participate in meetings with agency regarding the candidate. All work shall be completed in conformance with the guidelines and standards asset out in the California POST Background Investigation Manual. Consultant shall be available to provide background investigations after normal business hours, weekends and holidays. Annex B-4 Agreement for Professional Services TOWN OF TIBURON 1505 Tiburon Boulevard, Tiburon, CA 94920 AGREEMENT FOR PROFESSIONAL SERVICES CHIEF OF POLICE BACKGROUND INVESTIGATION FEBRUARY 3, 2021 This Professional Services Agreement (the "Agreement") is dated,_~/ I/,?, 2021 and is by and between the Town of Tiburon, a public body of the State of California ("Town"~-and Potter Investigations and Consulting, a Private Investigation firm relating to background investigation Services ("Services"). RECITALS: WHEREAS, Government Code section 53060 permit the Town to enter into agreements for professional services with individuals specially trained and experienced and competent to perform those services; and WHEREAS, Consultant is willing to render such professional services, as hereinafter defined, on the following terms and conditions. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, stipulated and agreed, the parties agree as follows: AGREEMENT: 1. DESCRIPTION OF CONSULTANT'S SERVICES. Services are as described in the Town's Proposals, Exhibit 1, and the following: Background investigation services for Chief of Police candidate. 2. COMPENSATION FOR CONSULTANT'S SERVICES. Compensation for the Services shall be (select one): [ ] Lump Sum of$ ______ ~ (with)/ (without) [Circle one] progress payments; or [ X ] Time and materials, per schedule of rates and charges included in Exhibit 1, with a guaranteed not to exceed price of $_----"2""-0""'0""'0'-'-.0""'0:c..-____ _ 3. EFFECTIVE DATE AND TERM. The effective date of this Agreement is fe.br.'!#:!!j (lp,J,O)/ and it shall terminate no later than 30 days unless an extension is approved by the Town. 4. PERSONNEL SUPPLIED FOR CONSULTANT'S SERVICES. Consultant shall use only the personnel listed below (resumes attached) in performing the Services. (If subconsultants are used, list the firm, personnel and attach resumes). _Craig Potter ___________________________ _ Town of Tiburon 7/20 Agreement for Professional Services 5. TERMS AND CONDITIONS. Consultant shall perform the Services identified herein, in accordance with the terms and conditions of this Agreement, including without limitation, terms regarding Compensation, Schedule, Personnel, Annex "A" Agreement Terms and Conditions, and Annex "B" Insurance. Consultant acknowledges its opportunity to negotiate such terms and conditions. 6. LIMITATIONS. Changes made to printed Terms and Conditions on this Agreement are null and void unless approved in writing by the Town. 7. USE OF AGREEMENT. The Agreement number must appear on all invoices and correspondence. Send invoices in duplicate to Town of Tiburon, Director of Administrative Services, 1505 Tiburon Boulevard, Tiburon, CA 94920, immediately upon performance. 8. For purposes of this Agreement, Town and Consultant shall direct all communications to each other as follows: Town: Town of Tiburon Suzanne Creekmore 1505 Tiburon Boulevard Tiburon, CA 94920 Phone: (415) 435-4359 Fax: (415) 435-2438 Email: screekmore@townoftiburon.org Consultant: Craig Potter Potter Investigations & Consulting P.O. Box 2466 Elk Grove, CA 95759 (916) 606-1253 craig.potter@potterconsulting.org IN WITNESS WHEREOF the parties have executed this Agreement in duplicate as of the dates identified below. TOWN OF TIBURON: [Please print name] Title P/2.~ rDE-~ I OWNE-'2...- 1 [If Corporation: Chairman, President, or Vice Date: _ ___,d~/_/b_,__/0_...· '#,_ __ _ r, President] Date:_?-/ ___ 1~/ 20_"2-_J _ Town of Tiburon 7/20 2 Agreement for Professional Services Attest: _______________ _ [Town Clerk] END OF DOCUMENT Town of Tiburon 7/20 3 Agreement for Professional Services ANNEX A -PURCHASE ORDER TERMS AND CONDITIONS This is an Annex to the Agreement for Professional Services Agreement dated 1E.b~ /1,,:;u;;)./ ("Agreement") between the Town and Consultant, as described therein, for the provision of professiona services ("Services"). ARTICLE 1 -TERMS OF PERFORMANCE 1.01 Agreement Force and Effect. The provisions of this Agreement constitute the entire agreement between the Consultant and Town regarding the Services, shall supersede all other prior purchase orders/agreements between Consultant and Town with respect to the Services, and shall control over any inconsistent provisions in any Consultant-prepared attachments hereto. No representation, term or covenant not expressly specified in this Agreement shall, whether oral or written, be a part of this Agreement. Town is not responsible for Services rendered without the authority of an Agreement on this form. 1.02 Performance of Services. Consultant represents that it possesses the requisite training, licenses and permits necessary to perform the Services, and that its performance of the Services shall conform to the standard of practice of a professional having specific experience and expertise in professional services of like nature and complexity of the Services. 1.03 Licenses. If a license of any kind, which term is intended to include evidence of registration, is required of Consultant, its employees, agents, or subcontractors by federal or state law, Consultant warrants that such license has been obtained, is valid and in good standing, and shall be kept in effect all times during the term of this agreement. 1.04 Progress and Coordination. Upon Town's request, Consultant shall provide Town with progress submittals showing status of Services, at times and increments as Town may reasonably request, and shall provide Town with a progress schedule for performance of the Services, at times and in a level of detail as Town may reasonably request. Consultant shall coordinate with Town and authorities with jurisdiction as necessary to perform the Services. Time is of the essence in the performance of the Services. 1.05 Plans, Specifications, Reports, Deliverables. Work product under this Agreement shall be professional in appearance, comply with the requirements of this Agreement and with design criteria established by Town, applicable laws and codes, and with all applicable professional standards. Services shall meet this standard within the agreed compensation and schedule; services necessary to correct work product, errors or omissions in work product, shall not entitle Consultant to an increase in compensation. 1.06 No Waivers. The granting of any payment, and any inspections, reviews, approvals or oral statements by any Town representative, or certification by any governmental entity, shall not limit or waive Consultant's obligations under this Agreement. Either party's waiver of any breach , or the omission or failure of either party, at any time, to enforce any right reserved to it, or to require strict performance of any provision of this Agreement, shall not be a waiver of any other right to which any party is entitled, and shall not in any way limit or modify that party's right thereafter to enforce or compel strict compliance with every provision hereof. 1.07 Modifications. This Agreement may not be modified, nor may compliance with any of its terms be waived, except by written instrument executed and approved by fully authorized representatives of Town and Consultant. Consultant's authorized representative is the individual signing this Agreement unless Consultant otherwise informs Town in writing. 1.08 Payment Requests. Consultant shall submit all billings with all necessary invoices, time records, deliverables, or other appropriate evidence of performance, after which Town shall make payment at the earliest practicable time. If requested by Town to facilitate the payment process Town of Tiburon 7/20 Annex A-I Agreement for Professional Services and track progress, Consultant shall provide Town with an itemization of its compensation according to a Work Breakdown Structure ("WBS") in a form Town supplies or approves (at Town's option), that defines all Agreement tasks (Consultant's and Subconsultants'), along with a project schedule defining the time line for each task, a project budget defining the planned man- hours and costs for each task, and a schedule of deliverables defining each deliverable to be provided to Town. 1.09 Scope of Compensation. Agreed method of compensation shall be full compensation for all Services required, performed or accepted under this Agreement, and Consultant shall not be entitled to compensation or reimbursement beyond or outside of agreed compensation. lf Consultant previously commenced services within the scope of the Services, then the services performed and the compensation paid shall be subject to the terms of this Agreement. 1.010 Additional Services. Payment for Additional Services shall require a written addendum or amendment, negotiated and signed by the Consultant and Town prior to commencing work of Additional Services, providing for the scope, schedule and terms of compensation. ARTICLE 2 -LEGAL AND MISCELLANEOUS 2.01 No Assignment. Consultant shall not subcontract any portion of the Services or otherwise assign this Agreement without prior written approval of Town, and Consultant shall remain responsible for compliance with all terms of this Agreement, regardless of the terms of any such assignment. 2.02 Records and Audit. At Town's request, Consultant shall make available to Town, its authorized agents, officers, or employees, for audit, photocopy or compilation, any and all ledgers, books of accounts, invoices, payrolls, vouchers, cancelled checks, correspondence, internal memoranda, calculations, drafts, and other records or documents evidencing or relating to the performance of the Services (hard copy or electronic), expenditures and disbursements charged to Town in connection with the Services. Consultant shall maintain such documents for at least three (3) years following completion of the Services. Such rights shall be specifically enforceable. 2.03 Independent Contractor. Consultant is an independent Contractor and does not act as Town's agent in any capacity, whatsoever. Consultant is not entitled to any benefits that Town provides to Town employees, including, without limitation, worker's compensation benefits or payments, pension benefits, health benefits or insurance benefits. Terms within this Agreement regarding direction apply to and concern the result of the Consultant's provision of Services, not the means, methods, or scheduling of the Consultant's work. Consultant shall be solely responsible for the means, methods, techniques, sequences and procedures with respect to its provision of Services under this Agreement. Consultant shall pay all payroll taxes imposed by any governmental entity and shall pay all other taxes not specifically identified in this Agreement as Town's responsibility. 2.04 Indemnity/Liability. To the fullest extent allowed by law (including without limitation California Civil Code Sections 2782 and 2782.8), Consultant shall defend (with legal counsel reasonably acceptable to Town), indemnify, and hold harmless the Town of Tiburon, its officers, directors, officials, agents, employees, and volunteers (collectively, "lndemnitees") from and against any and all claims, suits, expenses, liability, cause of action, loss, cost, damage, injury (including, without limitation, economic harm, injury to or death of any person, including an employee of Consultant or its Subconsultants), of every kind, nature, and description, at law or equity, (including without limitation, incidental and consequential damages, court costs, attorneys' fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) (collectively "Liabilities"), that arise out of, pertain to, or relate to any negligence, recklessness, or willful misconduct of Consultant, any Subconsultant, anyone directly or indirectly employed or retained by them, or anyone that they control. In the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the Consultant shall meet and confer with other parties regarding Town of Tiburon 7/20 Annex A-2 Agreement for Professional Services unpaid defense costs. The Consultant's obligations to indemnify, defend, hold harmless the lndemnitees shall not apply to the extent that such Liabilities are caused in whole or in part by the sole negligence, active negligence, or willful misconduct of such lndemnitee but shall apply to all other Liabilities, and in no event shall the cost to defend charged to the Consultant exceed the Consultant's proportionate percentage of fault. 2.05 Conflict of Interest. Consultant represents and warrants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of work and services required under this Agreement. Without limitation, Consultant represents to and agrees with Town that Consultant has disclosed any potential conflict of interest, and will have no future conflict of interest, in providing Town services hereunder, including but not limited to, any interest (financial, share ownership, shared management, shared directors, or reporting responsibilities) Consultant may presently have, or will have in the future, with respect to any other person or entity (including but not limited to potential suppliers, vendors, consultants, contractors, or regulatory agency) which may have an interest in the subject matter of the Services. 2.06 Confidentiality. Any information, whether proprietary or not, made known to or discovered by Consultant during the performance of or in connection with this Agreement for Town, will be kept confidential and not be disclosed to any other person. Consultant will immediately notify Town in writing if it is requested to disclose any information made known to or discovered by Consultant during the performance of or in connection with this Agreement. These conflict of interest, confidentiality and future service provisions and limitations shall remain fully effective indefinitely after termination of services to Town hereunder. 2.07 Ownership of Results. Any interest (including copyright interests) of Consultant or its contractors or subconsultants (together, "Subconsultants"), in studies, reports, memoranda, computational sheets, drawings, plans or any other documents (including electronic media) prepared by Consultant or its Subconsultants in connection with the Services, shall become the property of Town. To the extent permitted by Title 17 of the United States Code, work product produced under this Agreement shall be deemed works for hire and all copyrights in such works shall be the property of Town. In the event that it is ever determined that any works created by Consultant or its Subconsultants under this Agreement are not works for hire under U.S. law, Consultant hereby assigns to Town all copyrights to such works. With Town's prior written approval, Consultant may retain and use copies of such works for reference and as documentation of experience and capabilities. As respects Consultant's standard details and proprietary design instruments of service (not specific to this Agreement), however, Town shall have only a non-exclusive but otherwise unrestricted license to use the materials prepared in connection with this Agreement. 2.08 Non-Discrimination Policy. Consultant shall not discriminate against any employee or applicant for employment, nor against any Subconsultant or applicant for a subcontract, because of race, color, religious creed, age, sex, actual or perceived sexual orientation, national origin, disability as defined by the ADA or veteran's status. To the extent applicable, Consultant shall comply with all federal, state and local laws (including, without limitation, all Town and Town ordinances, rules and regulations) regarding non-discrimination, equal employment opportunity, affirmative action and occupational-safety-health concerns, shall comply with all applicable rules and regulations thereunder, and shall comply with same as each may be amended from time to time. Consultant shall provide all information reasonably requested by Town to verify compliance with such matters. Consultant stipulates, acknowledges and agrees that Town has the right to monitor Consultant's compliance with all applicable non-discrimination requirements, and may impose sanctions upon a finding of a willful, knowing or bad faith noncompliance or submission of information known or suspected to be false or misleading. 2.09 Termination and Suspension. (i) Town may, with or without cause, direct Consultant to suspend, delay or interrupt Services, in whole or in part, for such periods of time as Town may Town of Tiburon 7/20 Annex A-3 Agreement for Professional Services determine in its sole discretion. (ii) Town may terminate performance of the Services under this Agreement in whole, or from time to time in part, for default, should Consultant commit a material breach of this Agreement, or part thereof, and not cure such breach within ten (10) calendar days of the date of Town's written notice to Consultant demanding such cure, in which case Consultant shall be liable to Town for all loss, cost, expense, damage and liability resulting from such breach and termination . (iii) Town may terminate performance of the Services under this Agreement in whole, or from time to time in part, for convenience, whenever Town determines that such termination is in Town's best interests, in which case Consultant shall be entitled to recover compensation and costs for services performed to the effective date of termination, but may recover no other cost, damage or expense. The Town may condition payment of such compensation upon the Consultant's delivery to the Town of any and all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the Town in connection with this Agreement. Consultant shall continue its work throughout the course of any dispute, and Consultant's failure to continue work during a dispute shall be a material breach of this Agreement. 2.010 Execution; Venue; Limitations. This Agreement shall be deemed to have been executed in the Town of Tiburon, County of Marin. The exclusive venue for all disputes or litigation arising out of this Agreement shall be in the Superior Court of the County of Marin , unless the parties agree otherwise in writing . Enforcement of this Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. Except as expressly provided in this Agreement, nothing in this Agreement shall operate to confer rights or benefits on persons or entities not party to this Agreement. As between the parties to this Agreement, any applicable statute of limitations for any act or failure to act shall commence to run on the date of Town's issuance of the final Certificate for Payment, or termination of this Agreement, whichever is earlier, except for latent defects, for which the statute of limitation shall begin running upon discovery of the defect and its cause. ARTICLE 3 -CONSTRUCTION OF AGREEMENT 3.01 Headings. The headings in this Agreement are for convenience only and do not affect the construction of this Agreement. 3.02 Modifications. Modifications to this Annex "A" Agreement Terms and Conditions shall not be effective unless approved and initialed by Town's Town Manager. ARTICLE 4 -CONSULTANT'S PROPOSAL AND OTHER CONSUL TANT-PREPARED DOCUMENTS 4.01 Exhibit 1. Exhibit 1 consists of Consultant-prepared documents (e.g., Consultant's rate sheet and proposal, if any) attached to this Agreement for reference only, defining further the scope of Consultant's scope of Services hereunder. 4.02 Complementary Construction. This Agreement, its Annexes and attachments (including but not limited to the attached Exhibit 1) are deemed complementary; what is called for by one is as binding as if called for in both and shall be performed by Consultant. In the case of direct conflict, then the requirement providing Town with the broader scope of services shall have precedence. 4.03 Modifications. Exhibit 1 may not supplement, contradict or qualify Annex "A" Agreement Terms and Conditions, except as listed below and initialed by the Town Manager. 4.04 Named Personnel and Subconsultants. It is recognized that the named personnel and Subconsultants in the Agreement are not bound by personal employment contracts to Consultant, however, Consultant agrees that reassignment of any of the named personnel or Subconsultants during the Services requires prior written approval of Town, which approval shall not be unreasonably withheld. Under no circumstances may Consultant replace personnel or Town of Tiburon 7 /20 Annex A-4 Agreement for Professional Services Subconsultants with less qualified or less experienced personnel, without Town's written consent, which may be withheld by Town on a reasonable belief of good cause. END OF ANNEX "A" Town of Tiburon 7/20 Annex A-5 Agreement for Professional Services ANNEX B -INSURANCE REQUIREMENTS This is an Annex to the Agreement for Professional Services Agreement dated "fehl1.Ul!!;I !IP, ;J(};J.f ("Agreement") between Town and Consultant, as described therein, for the provision of professional services ("Services"). ARTICLE 5 -INSURANCE Consultant's Duty to Show Proof of Insurance. Prior to the execution of this Agreement, Consultant shall furnish to Town satisfactory proof that Consultant has taken out for the entire period required by this Agreement, as further described below, the following insurance, in a form satisfactory to Town and with an insurance carrier satisfactory to Town, authorized to do business in California and rated by A M. Best & Company A-or better, financial category size VII or better, which will protect those described below from claims described below which arise or are alleged to have arisen out of or result from the acts or omissions of Consultant for which Consultant may be legally liable, whether performed by Consultant, or by those employed directly or indirectly by it, or by anyone for whose acts Consultant may be liable: 5.01 Commercial General Liability Insurance Commercial general liability insurance, written on an "occurrence" basis, which shall provide coverage for bodily injury, death and property damage resulting from operations, products liability, blasting, explosion, collapse of buildings or structures, damage to underground structures and utilities, liability for slander, false arrest and invasion of privacy arising out of construction management operations, blanket contractual liability, broad form endorsement, a construction management endorsement, products and completed operations, personal and advertising liability, with per location limits of not less than One Million Dollars ($1,000,000) general aggregate and One Million Dollars ($1,000,000) each occurrence. 5.02 Business Automobile Liability Insurance Consultant will provide the Town with a copy of their personal automobile liability insurance policy. Business automosile liability insurance with limits not less than One Million Dollars ($1 ,000,000) each occ1:1rronce including coverage for owned, non O'Nned and hired vehicles. 5.03 1•11J0rkers' Compensation lnsurartGe VVorkers' Compensation Employers' Liability limits not less than One Million Dollars ($1,000,000) each accident, One Million Do.liars ($1 ,000,000) per disease and One Million Dollars ($1 ,000,000) aggregate. Consultant's VV-0rkers' Compensation Insurance policy shall contain a VVaiver of Subrogation. In the event Consultant is self insured, it shall f.urnish Certificate of Permission to Self Insure signed sy Department of Industrial Relations Administration of Self Insurance, State of California. 5.04 Professional biabilit\• Insurance Prof-essional Liability Insurance, either limits of not less than One Million Dollars ($1 ,000,000) each occurrence or claim and Two Million Dollars ($2,000,000) aggregate, all with respect to negligent acts, errors or omissions in connect:ion ,,,.1i:th services to be pro•,ided under this Agreement, with no exclusion for claims of one insured against another insured and with tail co,.,erage for a period of five (5) years after the completion of the Services. 5.05 Additional Insured / Waiver of Subrogation Consultant shall include Town, its officers, officials, agents, employees and volunteers as Additional Insureds under the General Liability and Auto policies, and shall supply specific endorsements for same. The Additional Insured endorsement under the General Liability policy will be the Additional Insured - Town, Lessees or Contractors -Scheduled Person or Organization ISO Form CG2010 with the current Annex B-I Agreement for Professional Services applicable revision date. It is acceptable that the Additional Insured endorsement to provide "where required by written contract." Consultant shall obtain a specific endorsement to its workers' compensation insurance policy waiving all rights of subrogation against the Town, its officers, officials, agents, employees and volunteers. 5.06 The policies shall apply separately to each insured against whom claim is made or suit is brought except with respect to the limits of the company's liability. 5.07 Written notice of cancellation of the policies shall be mailed to Town thirty (30) days in advance of the effective date thereof. 5.08 Insurance shall be primary insurance and no other insurance or self insured retention carried or held by any named or additional insureds other than that amount Consultant shall be called upon to contribute to a loss covered by insurance for the named insured. 5.09 Certificates of Insurance and Endorsements shall have clearly typed thereon the title of the Agreement, shall clearly describe the coverage and shall contain a provision requiring the giving of written notice. 5.10 Nothing herein contained shall be construed as limiting in any way the extent to which Consultant or any of its permitted subcontractors or subconsultants may be held responsible for payment of damages resulting from their operations. If Consultant fails to maintain any required insurance, Town may take out such insurance, and deduct and retain amount of premium from any sums due Consultant under this Agreement. END OF ANNEX "B" Annex 8-2 Agreement for Professional Services Appendix 1 Scope of Work The Town shall compensate Consultant for the satisfactory performance of the work described in this agreement in a total not to exceed Two Thousand Dollars ($2,000.00) including labor, taxes and expenses, according to below: 1. Additional expenses: The Town shall reimburse consultant for costs only after prior approval in advance. 2. Travel: All travel costs to include per diem, mileage, travel time shall be included in the cost of this total agreement. However, if a situation arises that would require consultant to travel outside of a 50 mile radius; consultant will seek prior approval from the Town for travel costs and shall be agreed upon by both parties as to reimbursement of travel costs. 3. Testifying in deposition, administrative civil or criminal hearing: the Town shall pay consultant the hourly rate of $250.00. Included in Consultant's rate are all documents, FAX transmissions, phone call expenses and mailing services. Consultant will obtain exam results and include them in the summary investigation report. Consultant shall coorEiinate 'Nith the canEiidate and the Town to scheEiule the exams in a timely manner. The psychological evaluation will be conducted by a licensed psychologist and according to POST standards. The Toi.vn will pay all expenses and associated costs. Consultant shall submit an itemized statement for services and the Town shall pay consultant within 30 days of receipt of invoice. Consultant will provide services to agency which includes background investigations and reports for the Police Department. The consultant shall be solely responsible for the background investigation as outlined in (Appendix A). Documents/photographs shall be provided to the consultant in a timely manner. The consultant shall perform the following procedures for the background: 1. Conduct introductory interviews with assigned candidate prior to commencement prior to the formal background investigation. Before each interview, agency will provide consultant with background data on the candidate; 2. Review of Personal History Statement (PHS) and determine whether any conflicts exist with any other information provided by either the candidate or developed in the course of the background investigation; 3. Review of the PHS and the follow-up deemed necessary in response to candidate answers to PHS questions; 4. Confirmation of education history and education documents provided by the candidate; 5. Receipt and review of Citizenship documents; 6. Employment history verifications, including review of personnel files and Internal Affairs files (if applicable); 7. Residential canvassing; for sworn candidates; 8. Receipt and review of marriage and divorce documents; 9. Spousal interviews; 10. Local law enforcement agency inquiries; 11. Perform investigations with respect to applicants' online lives and history via social networking, sites, biogs, and similar internet-based services; Annex B-3 Agreement for Professional Services 12. Conduct a "clarification interview" with candidate in response to any significant information developed as a result of the background investigation which is in conflict with information provided by the candidate; 13. Explore and investigate any concerns uncovered during the introductory interview, as well as any information developed during the course of the formal background investigation; 14. Notify agency when significant information or concerns are found which cast a serious question to the suitability of a candidate, assist in the determination of whether to proceed with the background investigation, and prepare Summary Investigation Reports when candidate is deemed "disqualified" based on POST background investigation standards; 15. At the conclusion of the background investigation, prepare a Background Investigation Narrative Report, using Microsoft Word; 16. When required by summons or other legal processes, or at the request of the agency, provide legal testimony on the background investigations; 17. Be available for and participate in meetings with agency regarding the candidate. All work shall be completed in conformance with the guidelines and standards asset out in the California POST Background Investigation Manual. Consultant shall be available to provide background investigations after normal business hours, weekends and holidays. Annex B-4 Agreement for Professional Services ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYYYY) ~ 10/14/2020 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 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 (916) 387-6800 (888) 250-8403 ~2~I~cT Ice Insurance Aaencv Ice Insurance Agen cy, LLC r.~~N.t e-••· (916) 387-6800 I rt~ Nol: (888) 250-8403 PO Box 340338 ~DMD'll~sS: info(@iceinS.COm Sacramento, CA 95834 INSURERISl AFFORDING COVERAGE NAIC # INsuRER A : Llovds of London INSURED INsuRER B, Markel FirstComn 2 7626 Public Sector Search & Consulting, Inc. INSURER C: 6520 Lonetree Blve, Suite 1040 INSURER D: Rocklin, CA 97565 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 TYPE OF INSURANCE ADDL SUBR .~~hliMi, lt~~TJEM~, LIMITS LTR •••r~ .un,~ POLICY NUMBER GENERAL LIABILITY EACH OCCURRENCE s 1 000 000 >---A .:L COMMERCIAL GENERAL LIABILITY ~~~~~iJ9E:~~~nce1 s 250 000 D CLAIMS-MADE [l] OCCUR MED EXP (Any one person) s 5 000 PSJ0321378385 09/22/2020 09/22/2021 PERSONAL & ADV INJURY s See Policv >---GENERAL AGGREGATE s 3 000 000 - GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS -COMP/OP AGG s 3 000 000 f7l POLICY n ~f,9.,: n LOC s AUTOMOBILE LIABILITY ~~~~~~I?NGLE LIMIT s - ANY AUTO PSJ0321378385 09/22/2020 09/22/2021 BODILY INJURY (Per person) s 1 000 000 -ALL OWNED -SCHEDULED A AUTOS AUTOS BODILY INJURY (Per accidenl) s 3 000 000 7 z NON-OWNED ;p~?~&fd~l?AMAGE s 1 000 000 HIRED AUTOS AUTOS s UMBRELLA LIAB H OCCUR EACH OCCURRENCE s ~ EXCESS LIAB CLAIMS-MADE AGGREGATE s OED I I RETENTION s s WORKERS COMP EN SA TION ✓ I T~JT{:T.~c: I l0W· AND EMPLOYERS' LIABILITY Y/N B ANY PROPRIETOR/PARTNER/EXECUTIVE w NIA MWC0117124-04 E.L. EACH ACCIDENT s 1 000 000 OFFICER/MEMBER EXCLUDED? 09/22/2020 09/22/2021 (Mandatory In NH) E.L. DISEASE -EA EMPLOYEE s 1 000 000 ~m:$ftW~ ~f°6PERATIONS below E.L. DISEASE -POLICY LIMIT s 1 00 0 nno $2,000,000 per occurrence A Professional Lia bility PSJ0321378385 09/22/2020 09/22/2021 $2,000,000 aggregate $1 000 Deductible DESCRIPTION OF OPERATIONS / LOCATIONS/ VEHICLES (Attach ACORD 101, Addltlonal Remarks Schedule, if more space Is required) Only as provided pursuant to the attached general liability policy definitions, provisions, extensions, exclusions and limitations certificate holder tendered status as additional insured. Job for: Town of Tiburon CERTIFICATE HOLDER Town of Tiburon 150 5 Tiburon Boulevard Tiburon, CA 94920 ACORD 25 (2010/05) CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE ~y PROVISIONS. A ll rights reserved. The ACORD name and logo are registered marks of ACORD Recruitment Employment & staffing Policy document United States cfc CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 1 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 INSURING CLAUSE 1: ERRORS & OMISSIONS SECTION A: PROFESSIONAL LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim first made against you (regardless of who caused the claim) and notified to us during the period of the policy arising out of any: negligent act, error, omission, advice, misstatement ora) misrepresentation; or breach of any contractual term implied by law concerning necessaryb) quality, safety or fitness, or your duty to use reasonable care and skill; or breach of warranty of authority, breach of duty, breach of trust,c) breach of confidence, misuse of information or breach of privacy; or libel, slander or defamation; ord) other act, error or omission giving rise to civil liability to youre) clients but not any breach of contract, save as specified above; committed by you or on your behalf, but not by placed personnel, in the course of your business activities. We will also pay costs and expenses on your behalf. SECTION B: VICARIOUS LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim by a client first made against you and notified to us during the period of the policy arising out of any act, error, omission, advice, misstatement or misrepresentation, committed by placed personnel. We will also pay costs and expenses on your behalf. SECTION C: PLACED PERSONNEL DISHONESTY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim first made against you and notified to us during the period of the policy arising out of any loss discovered by your client due to the dishonesty of placed personnel; provided that: your client shall operate the same systems of check and supervisiona) as if placed personnel were their own employees; and the placed personnel involved in the dishonest act shall be capableb) of being prosecuted to conviction. We will also pay costs and expenses on your behalf. SECTION D: BREACH OF CONTRACT We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim by a client first made against you (regardless of who caused the claim) and notified to us during the period of the policy arising out of any breach of client contract. We will also pay costs and expenses on your behalf. SECTION E: INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim first made against you (regardless of who caused the claim) and notified to us during the period of the policy for any: infringement of any intellectual property rights, including, but nota) limited to, copyright, trademark, trade dilution, trade dress, design rights, domain name rights, moral rights, service mark or service name, but not including patent; or misappropriation of a trade secret; orb) act of passing-off, piracy or plagiarism or any misappropriation ofc) content, concepts, format rights or ideas or breach of a contractual warranty relating to intellectual property rights; or breach of any intellectual property rights licence acquired by you;d) or failure to attribute authorship or provide credit.e) We will also pay costs and expenses on your behalf. SECTION F POLLUTION LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim first made against you (regardless of who caused the claim) and notified to us during the period of the policy arising out of pollution. We will also pay costs and expenses on your behalf. SECTION G: LOSS OF DOCUMENTS We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim first made against you (regardless of who caused the claim) and notified to us during the period of the policy arising out of damage to your documents or documents in your care, custody or control. We will also pay costs and expenses on your behalf. SECTION H: LOSS MITIGATION We agree to pay any reasonable costs necessarily incurred by you with our prior written agreement in respect of measures taken by you for the sole purpose of avoiding or mitigating a claim or potential claim for which you would be entitled to indemnity under INSURING CLAUSE 1 of this Policy had such measures not been taken. However, we shall not pay any costs attributable to measures taken by you to mitigate risks that affect the wider business environment or the industry in which you conduct your Business Activities (as stated in the This Policy is a contract of insurance between you and us. Your Policy contains all the details of the cover that we provide, subject always to our receipt of the Premium. This Policy consists of and must be read together with the Declarations and any Endorsements. This Policy is not complete unless it is signed and a Declarations page is attached. The Sections of this Policy are identified by BLUE LINES across the page with WHITE UPPER CASE PRINT. Clause headings in BLUE UPPER CASE PRINT are for information only and do not form part of the cover given by this Policy. Other terms in bold lower case print are defined terms and have a special meaning as set forth in the DEFINITIONS section and elsewhere. Words stated in the singular shall include the plural and vice versa. IMPORTANT: INSURING CLAUSES 1, 2 (SECTIONS A and B only) and 4 (SECTION G only) provide cover on a claims made basis. Under these INSURING CLAUSES a claim must be first made against you and notified to us during the period of the policy to be covered. These INSURING CLAUSES do not cover any claim arising out of any actual or alleged wrongful act occurring before the date specified as the Retroactive Date in the Declarations. In consideration of the Premium and in reliance upon the information that you have provided to us prior to commencement of this insurance and which is deemed to form the basis of this insurance. PREAMBLE INSURING CLAUSES CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 2 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 Declarations), as opposed to affecting primarily the company named as the Insured in the Declarations itself, or any subsidiary. SECTION I: PAYMENT OF WITHHELD FEES We agree to pay your withheld fees with our prior written agreement in the event that your client brings or threatens to bring a claim against you that would be covered under INSURING CLAUSE 1, SECTIONS A, B, C or D for an amount greater than your withheld fees if you attempt to recover the withheld fees from them. Prior to payment of your withheld fees you must obtain written confirmation from your client that they will not bring a claim against you if you agree not to pursue them for your withheld fees and provide it to us. INSURING CLAUSE 2: CYBER & PRIVACY SECTION A: CYBER LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim first made against you (regardless of who caused the claim) and notified to us during the period of the policy for any: third partyfinancial loss arising directly from a hacking attack ora) virus that has emanated from or passed through your computer systems; or third party financial loss arising directly from their inability to accessb) your computer systems in the way in which you have authorized them to as a direct result of your computer systems’ failure or impairment due to a hacking attack or virus; or third party financial loss arising directly from the loss or theft ofc) your data or data for which you are responsible or held to be responsible arising directly from a hacking attack or virus. We will also pay costs and expenses on your behalf. SECTION B: PRIVACY LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim first made against you (regardless of who caused the claim) and notified to us during the period of the policy for: a breach of any individual privacy rights, unintentional disclosure ofa) personal information, failure to maintain the security of personally identifiable data including credit card information for which you are responsible, violation of any legal obligation relating to the security of personal information, or failure to warn of an actual or potential theft of personal information; or a breach of any rights of confidentiality, including a breach of anyb) provisions of a non-disclosure agreement or breach of a contractual warranty relating to the confidentiality of data; or any fines, penalties or contractual damages you are legally obligedc) to pay as a direct result of a breach of privacy obligations where insurable under the applicable law. We will also pay costs and expenses on your behalf. SECTION C: PRIVACY BREACH NOTIFICATION COSTS We agree to reimburse you for privacy breach costs subject to our prior written agreement (such agreement not to be unreasonably withheld): that you are legally obliged to incur; ora) that you are not legally obliged to incur, but where theb) reimbursement of these privacy breach costs will effectively mitigate or avoid a claim for which you would have been entitled to indemnity under SECTION B of INSURING CLAUSE 2 had such privacy breach costs not been incurred; or SECTION D: SYSTEM DAMAGE We agree to reimburse you up to the amount insured shown in the Declarations for rectification costs, subject to our prior written agreement (such agreement not to be unreasonably withheld) which you incur: in retrieving, restoring or replacing any of your computer programsa) or any other data media (or any other computer programs or any other data media for which you are responsible) that you first discover during the period of the policy have been damaged; or in repairing, restoring or replacing any of your computer systemsb) that you first discover during the period of the policy have been damaged; as the direct result of any cyber peril or accidental damage to your data first discovered during the period of the policy. We also agree to pay costs and expenses on your behalf. However, we shall not reimburse you for any rectification costs under this SECTION of INSURING CLAUSE 2 which are covered under INSURING CLAUSE 3, SECTION A regardless of whether you have purchased INSURING CLAUSE 3, SECTION A and regardless of any exhaustion of the amount insured of INSURING CLAUSE 3, SECTION A. SECTION E: SYSTEM BUSINESS INTERRUPTION We agree to reimburse you up to the amount insured shown in the Declarations for your loss of income incurred as the direct result of any cyber peril first discovered during the period of the policy. We also agree to pay costs and expenses on your behalf. INSURING CLAUSE 3: COMMERCIAL PROPERTY SECTION A: PROPERTY DAMAGE We agree to reimburse you up to the amount insured shown in the Declarations for: the cost of repairing damage occurring during the period of thea) policy to your premises, including landlord’s fixtures and fittings, walls, gates and fences, yards, car parks and pavements, trees, shrubs, plants and lawns, piping, ducting, cables, wires and associated control gear and accessories at your premises and extending to the public mains but only to the extent of your responsibility; damage occurring during the period of the policy to contentsb) of every description contained at your premises; damage occurring during the period of the policy to contentsc) of every description kept at the home of your senior executive officers or employees in the course of your business activities; damage occurring during the period of the policy to contentsd) of every description permanently or temporarily elsewhere, including while in transit; the necessary and reasonable costs you incur following damagee) occurring during the period of the policy to glass which belongs to you or for which you are legally responsible for: temporary boarding up;i) repair of window frames or removal or replacement of fixturesii) and fittings in the course of replacing the glass; replacement lettering or other ornamental work and alarm foiliii) on glass; damage occurring during the period of the policy to moneyf) held in the course of your business activities: at your premises in transit or in a Bank Night Safe;i) at the home of your senior executive officers orii) employees; damage occurring during the period of the policy to the personalg) belongings of your senior executive officers or employees or visitors to your premises provided they are not covered under any other insurance; the reasonable cost of compiling the documents, books of account,h) drawings, card index systems or other records including film, tape, disc, drum, cell or other magnetic recording or storage media for electronic data processing that you need to continue your business activities if these items have been lost or distorted as a direct result of damage covered under this INSURING CLAUSE; the costs you incur to replace locks and keys necessary to maintaini) the security of your premises or safes following theft of keys involving force and violence occurring during the period of the policy; the amount of any rent for your premises which you are legallyj) obliged to pay for any period during which your premises or any part of it is unusable as a result of damage covered under this INSURING CLAUSE; loss of metered water or gas, as a result of damage resulting in ak) water or gas charge that you are unable to recover from any other party. CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 3 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 SECTION B: PERSONAL ACCIDENT We agree to pay on your behalf compensation as shown in the Declarations if any of your senior executive officers or employees who are aged between 16 and 70 on the Inception Date shown in the Declarations suffers bodily injury in the course of your business activities in a robbery or attempted robbery and suffers: death, permanent total disablement, loss of a limb or loss ofa) sight as a direct result of the bodily injury within one year of the date of its occurrence; temporary total disablement. The compensation forb) temporary total disablement will be the amount shown in the Declarations per week, for a maximum of 104 weeks. However, we will not pay compensation under more than one heading in the Declarations for the same bodily injury. We also agree to pay costs and expenses on your behalf. SECTION C: BUSINESS INTERRUPTION We agree to reimburse you up to the amount insured shown in the Declarations for your loss of income, extra expense and accounts receivable resulting solely and directly from an interruption to your business activities caused by: insured damage to your premises or contents of everya) description or to any other property used by you at your premises; insured damage to property in the vicinity of your premisesb) which prevents or hinders your access to your premises; insured damage at the premises of one of your suppliers, otherc) than a supplier of water, gas, electricity or telephone services; failure in the supply of water, gas, electricity, or telephone servicesd) to your premises for more than 24 consecutive hours caused by insured damage to any property; your inability to use your premises due to restrictions imposede) by a public authority following: a murder or suicide;i) an occurrence of a notifiable human disease;ii) bodily injury traceable to food or drink consumed at youriii) premises; vermin or pests at your premises.iv) INSURING CLAUSE 4: COMMERCIAL GENERAL LIABILITY SECTION A: BODILY INJURY AND PROPERTY DAMAGE LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim arising out of accidental bodily injury, personal injury or damage occurring during the period of the policy in the course of your business activities or the activities of placed personnel. We will also pay costs and expenses on your behalf. However, we will not make any payment on your behalf under this INSURING CLAUSE in respect of any claim: which is covered under INSURING CLAUSE 1, or would bea) covered under INSURING CLAUSE 1 but for the exhaustion of the limit of liability or aggregate limit of liability of INSURING CLAUSE 1: arising directly or indirectly out of any product; orb) arising directly or indirectly out of any pollution.c) SECTION B: PRODUCTS AND COMPLETED OPERATIONS LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim arising out of accidental bodily injury or damage occurring during the period of the policy in the course of your business activities in connection with any product. We will also pay costs and expenses on your behalf. However, we will not make any payment on your behalf under this INSURING CLAUSE in respect of any claim: which is covered under INSURING CLAUSE 1, or would bea) covered under INSURING CLAUSE 1 but for the exhaustion of the limit of liability or aggregate limit of liability of INSURING CLAUSE 1; or arising directly or indirectly out of any pollution.b) SECTION C: TENANTS’ LEGAL LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim arising out of accidental damage to premises leased to, hired by, on loan to or held in trust by you or otherwise in your care, custody or control occurring during the period of the policy in the course of your business activities. We will also pay costs and expenses on your behalf. However, we will not make any payment on your behalf under this INSURING CLAUSE in respect of any claim: which is covered under INSURING CLAUSE 1, or would bea) covered under INSURING CLAUSE 1 but for the exhaustion of the limits of liability or aggregate limits of liability of INSURING CLAUSE 1; arising directly or indirectly out of any product.b) SECTION D: NON-OWNED AND HIRED AUTOMOBILE LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim arising out of accidental bodily injury or damage occurring during the period of the policy and caused by the use or operation of any automobile in the course of your business activities that is not owned in whole or in part by the company named as the Insured in the Declarations or licensed in the name of the company named as the Insured in the Declarations. We will also pay costs and expenses on your behalf. SECTION E: LIABILITY FOR DAMAGE TO HIRED OR LEASED AUTOMOBILES We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim arising out of accidental damage to an automobile leased to or hired by you from a third party occurring during the period of the policy in the course of your business activities. We will also pay costs and expenses on your behalf. As a precedent to coverage under SECTIONS D and E of INSURING CLAUSE 4, you agree and warrant that all employees who operate an automobile in the course of your business activities will maintain in full force and effect for the period of the policy primary automobile liability insurance in an amount equal to or greater than the minimum primary automobile liability limits required in the state of registration of the automobile. If a claim is made and the employee is determined to have failed the minimum limits required then the coverage under SECTIONS D and E of INSURING CLAUSE 4 will respond as excess coverage as though the minimum limits were in full force and effect, whereby you agree to pay all sums within and up to the required minimum limit. However, we shall not make any payment under SECTIONS D and E of INSURING CLAUSE 4, as a result of any claim arising out of bodily injury or damage to a passenger of any automobile used in the course of your business activities. SECTION F: MEDICAL PAYMENTS We agree to pay medical expenses for bodily injury caused by an accident occurring during the period of the policy: on premises you own or rent; ora) on ways next to premises you own or rent; orb) because of your business activities;c) CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 4 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 provided that: the injured person, at the time of the accident, is not entitled toa) benefits under any workers compensation or disability benefits law or similar law; and the medical expenses are incurred and notified to us within oneb) year of the date of the accident; and the injured person submits to examination, at our expense, byc) physicians of our choice as often as we reasonably require. We will make these payments regardless of fault. SECTION G: EMPLOYEE BENEFITS LIABILITY We agree to pay on your behalf all sums which you become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of any claim first made against you (regardless of who caused the claim) and notified to us during the period of the policy arising out of any negligent act, error or omission committed by you or on your behalf in the administration of your employee benefit program. Furthermore, we agree to pay on your behalf any costs and expenses necessarily incurred with our prior written agreement in respect of measures taken by you with the object of avoiding or mitigating a claim for which you would be entitled to indemnity hereunder had such measures not been taken. We will also pay costs and expenses on your behalf. INSURING CLAUSE 5: COURT ATTENDANCE COSTS We agree to reimburse you up to the amount insured shown in the Declarations, subject to our prior written agreement (such agreement not to be unreasonably withheld), for your reasonable costs incurred to attend court or any arbitration or adjudication hearing as a witness of fact in connection with a claim or loss covered under any INSURING CLAUSE of this Policy for which you have purchased coverage. HOW MUCH WE WILL PAY The maximum amount payable by us for all claims, losses, damage, costs and expenses and medical expenses shall not exceed the amounts shown in the Declarations in respect of each INSURING CLAUSE unless limited below. Where more than one claim, loss or medical expensearises from the same original cause or single source or event all such claims, losses, or medical expenses shall be deemed to be one claim, loss or medical expense and only one limit of liability shall be payable in respect of the aggregate of all such claims, losses, or medical expenses. Where cover is provided under multiple SECTIONS of INSURING CLAUSES 1 and 2, or more than one INSURING CLAUSE out of INSURING CLAUSES 1 and 2, the maximum amount payable by us in respect of any claim shall be the highest Limit of Liability of the SECTIONS or INSURING CLAUSES under which cover is provided. In respect of INSURING CLAUSES 1, 2 (SECTIONS A and B only) and 4 (SECTIONS A, B, C, D, E and G) we may at any time pay to you in connection with any claim the amount of the aggregate limit of liability or limit of liability (after deduction of any amounts already paid). Upon such payment being made we shall relinquish the conduct and control of and be under no further liability in connection with such claim except for the payment of costs and expenses incurred prior to the date of such payment (unless the aggregate limit of liability or limit of liability is stated to be inclusive of costs and expenses). In respect of INSURING CLAUSE 3 (SECTION A only): At our option, we will pay for any damaged property on thea) following basis: for your premises, the cost of rebuilding or replacing thei) damaged property; for contents of every description, the cost of repair orii) replacement as new. If, at the time the damage occurs, the amount insured is lessb) than 85% of the total value of your premises or contents of every description insured, the amount we will pay will be reduced in the same proportion as the amount insured bears to the total value of or contents of every description insured. The amount insured for your premises and contents of everyc) description will be adjusted monthly in line with any increase in nationally published indices. We will not reduce the amount insured without your agreement. Where improvements made by you to your premises are notd) damaged, but the lease on your premises is canceled as a result of insured damage, we shall pay for the cost of reinstating such improvements to the extent that they are not salvageable. In respect of INSURING CLAUSE 2 (SECTION E only) and 3 (SECTION C only), the amount we will pay will be: the difference between your actual income during the indemnitya) period and the income it is estimated you would have earned during that period or, if this is your first trading year, the difference between your income during the indemnity period and during the period immediately prior to the loss, less any savings resulting from the reduced costs and expenses you pay out of your income during the indemnity period; any additional costs and expenses; b) any accounts receivable, provided you keep a record of allc) amounts owed to you and keep a copy of the record away from your premises. YOUR DEDUCTIBLE We shall only be liable for that part of each and every claim, loss or medical expenses (which for the purpose of this clause shall be deemed to include all costs and expenses incurred) which exceeds the amount of the Deductible stated in the Declarations. Where more than one claim, loss or medical expenses arises from the same original cause or single source or event all such claims, losses or medical expenses shall be deemed to be one claim, loss or medical expenses and only one Deductible will apply. If any expenditure is incurred by us which by virtue of this clause is your responsibility then you shall reimburse such amount to us on our request or where possible we will deduct such amount from any payment we make to you. CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 5 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 DEFINITIONS “Accounts receivable”1. means: all sums due to you from customers, provided you are unablea) to effect collection thereof as the direct result of insured damage to records of accounts receivable; interest charges on any loan to offset impaired collectionsb) pending repayment of such sums made uncollectible by such insured damage; collection expense in excess of normal collection cost and madec) necessary because of insured damage. “Administration”2. means: counseling employees, including their dependants anda) beneficiaries, with respect to your employee benefit program; handling records in connection with your employee benefitb) program; effecting enrolment or termination of any employee’sc) participation in a plan included in your employee benefit program; interpreting your employee benefit program.d) “Aggregate limit of liability”3. means the maximum amount payable as stated in the Declarations by us in respect of all claims and losses, or in respect of all accidents giving rise to medical expenses. “Amount insured”4. means the maximum amount payable by us as shown in the Declarations in respect of each of INSURING CLAUSES 2 (SECTIONS D and E only) and 3. The amount applies to each incident of loss or damage occurring during the period of the policy provided always that after the first incident of loss or damage you comply with our recommendations to prevent any further incidents of loss or damage. “Bodily injury”5. means: in respect of INSURING CLAUSE 1 death, bodily injury,a) mental injury, illness or disease; in respect of all other INSURING CLAUSES:b) death, bodily injury, mental injury, illness, disease, shock,i) mental anguish or humiliation; and false arrest, detention or imprisonment; andii) malicious prosecution; andiii) wrongful entry into, or eviction of a person from, a room,iv) dwelling or premises that the person occupies. “Breach of client contract”6. means your unintentional breach of a contract relating to the performance of your business activities for a client. “Business activities”7. means: in respect of INSURING CLAUSES 1 and 2, the Businessa) Activities as stated in the Declarations; in respect of all other INSURING CLAUSES, the Businessb) Activities as stated in the Declarations and shall include, for the purpose of those Business Activities: the ownership, repair and maintenance of your property;i) provision and management of canteen, social, sports andii) welfare organization for the benefit of your senior executive officers or employees and medical, fire fighting, and security services; attendance at conferences and tradeshows as either aniii) exhibitor or visitor. “Claim”8. means: a demand for money, services, retraction or correction,a) including the service of suit or institution of arbitration; or mediation proceedings; orb) a threat or initiation of a suit seeking injunctive relief (meaningc) a temporary restraining order or a preliminary or permanent injunction) or declaratory relief; or a disciplinary action, regulatory investigation or proceedingd) brought by any professional body, occupational health and safety body or regulator. “Client”9. means any third party with whom you have a contract in place for the supply of your business activities in return for a fee, or where a fee would normally be expected to be paid. “Computer systems”10. means all electronic computers including operating systems, software, hardware and all communication and open system networks and any data or websites wheresoever hosted, off-line media libraries and data back-ups. “Contents of every description”11. means the contents of every description of your premises used in connection with your business activities which are owned by you or for which you are legally responsible, including: computer and ancillary equipment (including VDUs,keyboards,a) printers and software), television and video equipment, photographic, photocopying, surveying and telecommunications equipment; briefs, manuscripts, plans, business books, computers systemsb) records and programs; goods held in trust, stock and samples;c) wines, spirits and tobacco kept for entertainment purposes;d) works of art or precious metals;e) fixed glass in windows, doors and fanlights, glass showcases, glassf) shelves, mirrors and sanitary fixtures and fittings; heating oil for your premises contained in fixed tanks in theg) open at the address shown in the Declarations; tenant’s improvements, decorations, fixtures and fittingsh) including, if attached to the building, external signs, aerials and satellite dishes; pipes, ducting, cables, wires and associated control equipmenti) at the address shown in the Declarations and extending to the public mains. “Contents of every description” does not include moneyor the personal belongings of your senior executive officers or employees or visitors to your premises. “Costs and expenses”12. means: in respect of INSURING CLAUSE 1 and 2 (SECTIONS Aa) and B only): your legal costs and expenses in the defense ori) settlement of any claim made against you; and your legal costs and expenses in the defense of anyii) criminal claim made against you, provided that we maintain all rights of subrogation against any senior executive officer or employee if they are found guilty of such a criminal act; and your legal costs and expenses incurred in quashing oriii) challenging the scope of any subpoena or witness summons ordering you to disclose or produce any information or material which was created, produced or disseminated by you; and interest on that part of any judgment we pay that accruesiv) after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the limit of liability; in respect of INSURING CLAUSES 2 (SECTIONS D andb) E only) 3, the costs and expenses incurred by you or on your behalf in establishing that you have sustained a loss or damage and the quantum of such loss or damage or the costs and expenses incurred by you or on your behalf in mitigating any such loss or damage; in respect of INSURING CLAUSE 3 (SECTION A only),c) CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 6 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 the necessary and reasonable costs and expenses you incur to remove debris from your premises or the area immediately adjacent, following damage covered under this INSURING CLAUSE; in respect of INSURING CLAUSES 2 (SECTION E only)d) and 3 (SECTION C only), the necessary and reasonable additional costs and expenses you incur in order to continue your business activities as stated in the Declarations during the indemnity period; in respect of INSURING CLAUSE 4 (SECTIONS A, B, C,e) D, E and G only), your legal costs and expenses in the defense or settlement of any claim made against you. Subject to all costs and expenses being incurred with the Claims Managers’ written agreement (such agreement not to be unreasonably withheld). If costs and expenses are shown in the Declarations to be in addition to the aggregate limit of liability or limit of liability in respect of INSURING CLAUSES 1, 2 (SECTIONS A and B only) and 4 (SECTIONS A, B, C, D, E and G only), and if a payment in excess of the amount of indemnity available hereunder has to be made to dispose of any claim, our liability for such costs and expenses shall be such proportion thereof as the amount of indemnity available hereunder bears to the amount required to dispose of such claim, subject always to the maximum amount of costs and expenses shown in the Declarations. Costs and expenses are always included in the amount insured in respect of INSURING CLAUSES 2 (SECTIONS D and Eonly) and 3. “Cyber peril”13. means any: hacking attack or virus; ora) malicious damage to your computer systems by anb) employee; or failure of a third party hosting your computer systems asc) a direct result of (a) or (b) above. “Damage/damaged”14. means direct physical damage to, or destruction of, or loss of possession of, tangible property. In respect of INSURING CLAUSES 1, 2 (SECTIONS A and B only) and 4 damage does not include damage to or destruction of, or loss of possession of, or loss of use of, or corruption of, data. “Documents”15. means deeds, wills, agreements, maps, plans, records, books, letters, certificates, forms, computer programs or any other data media and documents of any nature whatsoever, whether written, printed or reproduced by any other method (other than bearer bonds, coupons, bank notes, currency notes and negotiable instruments). “Employee”16. means any person employed by the company named as the Insured in the Declarations, or any subsidiary. Employee does not include any senior executive officer of the company named as the Insured in the Declarations, or any subsidiary, or placed personnel. “Employee benefit program” 17. means group automobile insurance, group homeowners insurance, group life insurance, group dental insurance, group health insurance, profit sharing plans, pension plans, early retirement offerings, employee investment subscription plans, Workers’ Compensation, Unemployment Insurance, Social Security, Disability Benefit Insurance, travel, savings or vacation plans or any similar benefit programs. “Extra expense”18. means the necessary and reasonable extra costs and expenses you incur in order to continue your business activities during the indemnity period. “Hacking attack”19. means any malicious or unauthorized electronic attack including but not limited to any fraudulent electronic signature, brute force attack, phishing, denial of service attack, that has been initiated by any third party or by any employee and that is designed to damage, destroy, corrupt, overload, circumvent or impair the functionality of any computer system. “Income”20. means your total income from your business activities less direct costs. “Indemnity period”21. means the period beginning at the date of the damage, or the date the restriction is imposed, and lasting for the period during which your income or expenditure is affected as a result of such damage or restriction, but for no longer than the number of months shown in the Declarations. “Insured damage”22. means damage to property provided that: the damage is covered under INSURING CLAUSE 4a) (SECTION A only); or an insurer has paid the claim, or has agreed to pay the claim,b) under any other insurance covering such damage. “Limit of liability”23. means the maximum amount payable by us as stated in the Declarations in respect of each claim or loss, or in respect of each accident giving rise to medical expenses. “Loss of a limb”24. means loss by physical separation of a hand at or above the wrist, of a foot at or above the ankle, and includes total and irrecoverable loss of use of a hand, arm or leg. “Loss of sight”25. means total and irrecoverable loss of sight. “Loss”26. means direct financial loss sustained by you. “Money”27. means cash, bank and currency notes, checks, travellers’ checks, postal orders, money orders, crossed bankers’ drafts, current postage stamps, savings stamps and certificates, trading stamps, gift tokens, customer redemption vouchers, company sales vouchers, credit card counterfoils, travellers tickets and contents of franking machines, all belonging to you. “Medical expenses”28. means reasonable expenses for: first aid administered at the time of an accident;a) necessary medical, surgical, x ray and dental services, includingb) prosthetic devices; necessary ambulance, hospital, professional nursing and funeralc) services. “Period of the policy”29. means: the period between the Inception Date shown in thea) Declarations and the Expiry Date shown in the Declarations; or the period between the Inception Date shown in theb) Declarations and the expiry of any applicable Extended Reporting Period; or the period between the Inception Date shown in thec) Declarations and the date on which the Policy is cancelled in accordance with CONDITION 11. “Permanent total disablement”30. means disablement which entirely prevents the injured person from attending to any business or occupation for which he is reasonably suited by training, education or experience and which lasts for 24 calendar months and at the expiry of that period being beyond hope of improvement. “Personal injury”31. means: false arrest, detention or imprisonment; ora) malicious prosecution; orb) wrongful entry into, or eviction of a person from, a room,c) dwelling or premises that the person occupies. CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 7 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 “Placed personnel”32. means any person placed by you on a temporary or permanent basis with a client. “Premises”33. means a building (including any outbuildings) occupied in connection with your business activities. “Privacy breach costs”34. means any sums reasonably required to: fulfil any obligation you have to notify third parties of an actuala) or suspected breach of privacy in relation to any personal information; or establish a credit monitoring service or identity theft helpline; orb) conduct an independent security audit of your computerc) systems to identify the source of the privacy breach. “Privacy obligations”35. means your legal obligations arising directly from: any privacy statement governing the handling of information ona) your computer systems; or any written contract between you and a third party governingb) the processing and storage of credit card information on your computer systems; or any implied contractual duty to use reasonable care and skill inc) the handling of personal data or credit card information (including breaches of the Payment Card Industry Data Security Standard); or any legal obligation to notify individuals of an actual or potentiald) breach of their private or confidential data; or statutory data protection regulations in the country ore) countries where you operate, including industry specific data protection and security regulations (e.g. the Healthcare Insurance Portability and Accountability Act 1996) as they currently exist and as amended. “Pollution”36. means pollution or contamination of the atmosphere, or of any water, land, buildings or other tangible property. “Profit sharing plans”37. means only such plans that are equally available to all full time employees. “Product”38. means any tangible property (including containers, packaging, labelling or instructions, but explicitly excluding any software, data, or source code) after it has left your custody or control which has been designed, specified, formulated, manufactured, constructed, installed, sold, supplied, distributed, treated, serviced, altered, processed, cleaned, renovated or repaired by you or on your behalf in the course of your business activities. “Rectification costs”39. means those costs that you incur as a result of the use of external consultants, contractors or advisers or any additional costs that you incur to pay your employees. For the avoidance of doubt, rectification costs does not include the basic salaries of your employees or your office expenses or any payments that you have paid or agreed to pay as part of any service or maintenance contract. “Senior executive officer”40. means board members, executive officers, in-house lawyers, risk managers, chief operating officers, chief technology officers, chief information officers, and chief privacy officers of the company named as the Insured in the Declarations, or any subsidiary. Senior executive officer does not include placed personnel. “Subsidiary”41. means any company which the company named as the Insured in the Declarations controls through: holding 50% or more of the voting rights; ora) having the right to appoint or remove 50% or more of its boardb) of directors; or controlling alone, pursuant to a written agreement with otherc) shareholders or members, 50% or more of the voting rights therein. “Temporary total disablement”42. means disablement which entirely prevents the injured person from attending to his business or occupation. “Third party”43. means any person or company who is not a senior executive officer or employee of the company named as the Insured in the Declarations or any subsidiary and not placed personnel. “Virus”44. means any malicious software code including but not limited to any logic bomb, trojan horse or worm that has been introduced by any third partiesor by any employees and that is designed to damage, destroy, corrupt, overload, circumvent or impair the functionality of computer systems. “We/our/us”45. means the Underwriters named in the Declarations. “Withheld fees”46. means any contractually due fee that your client refuses to pay you, but excludes any part of the fee that represents your profit or mark- up or liability for taxes. “Workmanship”47. means any physical workmanship in manufacture, fabrication, construction, erection, installation, assembly, alteration, servicing, remediation, repair, demolition or disassembly (including any materials, parts or equipment furnished in connection therewith) by you. “Wrongful act”48. means any act or event the subject of INSURING CLAUSES 1 and 2 (SECTIONS A and B only) of this Policy for which you have purchased coverage. “You/your”49. means: the company named as the Insured in the Declarations, or anya) subsidiary; and any past, present or future senior executive officer orb) employee of the company named as the Insured in the Declarations or any subsidiary, but does not include placed personnel. EXCLUSIONS We will not: make any payment on your behalf for any claim; ora) incur any costs and expenses; orb) reimburse you for any loss, damage, legal expenses, fees orc) costs sustained by you; or pay any medical expenses:d) EXCLUSIONS RELATING TO OTHER INSURANCES: Bodily injury to or damage suffered by employees 1. arising directly or indirectly out of bodily injury to or damage suffered by your senior executive officers or employees. Marine and aviation2. arising directly or indirectly from the ownership, possession or use by you or on your behalf of any aircraft, hovercraft, offshore installation, rig, platform or watercraft. Auto3. arising directly or indirectly from the ownership, possession or use by you or on your behalf of any motor vehicle or trailer other than bodily injury or damage: caused by the use of any tool or plant forming part of ora) attached to or used in connection with any motor vehicle or trailer; CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 8 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 occurring beyond the limits of any carriageway or thoroughfare andb) caused by the loading or unloading of any motor vehicle or trailer; arising out of the use of any motor vehicle or trailer temporarilyc) in your custody or control for the purpose of parking; occurring beyond the limits of any carriageway or thoroughfared) and caused by the use of any unlicensed vehicle, including but not limited to snowmobiles and all terrain vehicles, in the course of your business activities; provided always that we will not make any payment on your behalf or incur any costs and expenses in respect of any legal liability for which compulsory insurance or security is required by legislation or for which a government or other authority has accepted responsibility. However, this EXCLUSION shall not apply in respect of INSURING CLAUSE 4 (SECTIONS D and E). Automobile use without owner’s consent4. arising out of or relating directly or indirectly to the use by you of any automobile or trailer without the agreement of the owner. Commercial passenger vehicles5. arising out of or relating directly or indirectly to the use by you of a commercial passenger vehicle including, but not limited to, a coach, bus or minibus, or any other vehicle containing 9 (nine) or more people. Personal injury6. in respect of INSURING CLAUSES 1 and 3, arising directly or indirectly out of personal injury. Project-specific insurance7. arising out of any project for which you have purchased project specific insurance. Product guarantee8. for costs incurred in the repair, alteration, reinstatement, inspection, reconditioning or replacement of any product or part thereof and any financial loss consequent upon the necessity for such repair, alteration, reinstatement, inspection, reconditioning or replacement, other than in respect of INSURING CLAUSE 1 when you are legally obliged to pay these sums to a client. Product recall9. arising directly or indirectly from the recall of any product or part thereof except for claims made under INSURING CLAUSE 1 where you are legally liable for these costs to a third party as the direct result of a wrongful act committed or alleged to have been committed by you. Products liability10. in respect of INSURING CLAUSES 1 and 2 (SECTIONS A to C only), arising directly or indirectly out of bodily injury or damage caused by a product. Workmanship11. in respect of INSURING CLAUSES 1 and 2 (SECTIONS A to C only), arising directly or indirectly out of bodily injury or damage caused by workmanship. Employment practices12. arising out of or resulting from any actual or alleged: refusal to employ any person; ora) wrongful or unfair dismissal; orb) form of discrimination; orc) harassment or unfair treatment; ord) other misconduct;e) with respect to any employee, third party or placed personnel. Employers’ liability13. arising directly or indirectly out of bodily injury to your senior executive officers or employees. However, this EXCLUSION shall not apply to employees on whose behalf contributions are required to be made by you under the provisions of any Workers’ Compensation Law in respect of whom liability has been denied by any Workers’ Compensation authority. Directors’ and officers’ liability14. arising out of any personal liability incurred by your senior executive officers when they are acting in that capacity or managing you, or arising from any statement, representation or information regarding your business contained within any accounts, reports or financial statements. Other insurance15. for which you are entitled to indemnity under any other insurance except for: any additional sum which is payable over and above such othera) insurance; or any contribution that we are obliged to make by law and thatb) contribution shall be in proportion to the respective limits of liability or amounts insured of the Policies. EXCLUSIONS RELATING TO THE CONDUCT OF YOUR BUSINESS: Benefit laws16. arising directly or indirectly out of your failure to comply with the mandatory provisions of any law concerning Workers’ compensation, unemployment insurance, social security, disability benefits or pension benefits. Chargebacks17. arising directly or indirectly from any chargeback, liability or fee incurred by you as a result of a merchant service provider, including any credit card company or bank, wholly or partially reversing or preventing a payment transaction, unless specifically covered under INSURING CLAUSE 2 (SECTIONS B and C only) for which you have purchased coverage. Circumstances known at inception18. arising out of any circumstances or occurrences which could give rise to a claim, loss or damage under this Policy or any accidents giving rise to medical expenses of which you are aware, or ought reasonably to be aware, prior to the Inception Date of this Policy, whether notified under any other insurance or not. Employee benefit program advice19. arising directly or indirectly from: advice given to any person to participate or not to participatea) in any plan included in your employee benefit program; the failure of any investment to perform as represented by you.b) ERISA20. arising out of or resulting from your acts related to any pension, healthcare, welfare, profit sharing, mutual or investment plans, funds or trusts; or any violation of any provision of the Employee Retirement Income Security Act of 1974, or any amendment to the Act or any violation of any regulation, ruling or order issued pursuant to the Act. Hired or leased vehicles exclusions21. in respect of INSURING CLAUSE 4 (SECTION E only), arising out of or relating directly or indirectly to: damage to tires or consisting of or caused by mechanicala) failure or breakdown of any part of an automobile or by rusting, corrosion, wear and tear, freezing or explosion within the combustion chamber; damage to contents of trailers or to rugs or robes;b) damage occurring after theft by any person residing in thec) same dwelling premises as you; damage caused by any employee engaged in the operation,d) maintenance or repair of the automobile. Faulty workmanship22. arising from damage to your property or premises caused directly or indirectly by misuse, inadequate or inappropriate maintenance, faulty workmanship, defective design, the use of faulty materials or whilst being cleaned, worked on or maintained. Long term leased vehicles23. arising out of or relating directly or indirectly to any automobile or trailer hired or leased by you from a third party for a period greater than 30 consecutive days. CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 9 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 Hazardous devices24. arising directly or indirectly from any product which with your knowledge is intended for incorporation into the structure, machinery or controls of any aircraft, other aerial device, military vehicle, hovercraft, waterborne craft or any medical equipment. Inadequate server capacity25. in respect of INSURING CLAUSE 2 (SECTION E only), for any business interruption loss incurred as a result of your servers not having the sufficient capacity to process all of the requests placed upon them solely because the demand for your websites is larger than the servers are designed to process, unless the reason for such levels of demand is due to an attack on your service levels by any malicious denial of service attack. Internet infrastructure failure26. in respect of INSURING CLAUSE 2 (SECTIONS D and E only), arising directly or indirectly from the failure of external networks, cables, and core internet infrastructure servers. Legal Action27. where action for damages is brought in a court of law outside the territories specified in the Declarations, or where action is brought in a court of law within those territories to enforce a judgement outside of those territories whether by way of reciprocal agreement or otherwise. Limiting recovery rights28. in respect of INSURING CLAUSE 1 only, arising directly or indirectly out of your failure to take reasonable steps to ensure that our rights of recovery against any third party are not unduly restricted or financially limited by a specific term in any contract or agreement. Liquidated damages, service credits and penalty clauses29. in respect of INSURING CLAUSE 1 only, for liquidated damages or service credits, or arising out of penalty clauses. Machinery or computer breakdown30. in respect of INSURING CLAUSE 3 (SECTION A only), arising directly or indirectly from: damage to your electrical or mechanical plant; ora) loss or distortion of your data or your computer systems,b) television or video equipment, photographic, photocopying, surveying or telecommunications equipment; resulting from its own breakdown, explosion or collapse. However, we will reimburse you under INSURING CLAUSE 3 (SECTION A only), up to the amount insured for loss occurring during the period of the policy following breakdown of your computer systems, but only if your computer systems are subject to a manufacturer’s guarantee or a maintenance contract providing free parts and labor in the event of a breakdown, and only where the loss is not covered under INSURING CLAUSE 2, (SECTION D only), regardless of whether you have purchased INSURING CLAUSE 2 (SECTION D only) and regardless of any exhaustion of the amount insured of INSURING CLAUSE 2, (SECTION D only). Patents31. arising out of the actual or alleged infringement of any patent or inducing the infringement of any patent. PCI implementation32. in respect of INSURING CLAUSE 2 only, as a result of fines or penalties from your acquiring bank arising directly from your failure to implement security measures in accordance with the PCI Data Security Standard implementation timetable, where a data breach has not occurred. Programming errors33. in respect of INSURING CLAUSE 2(SECTIONS D and E only), arising directly or indirectly from any computer programming error, software bug, software implementation or upgrade error. Retroactive Date34. in respect of INSURING CLAUSES 1,2 (SECTIONS A and B only) and 4 (SECTION G only), arising out of any event or actual or alleged wrongful act occurring, in whole or in part, before the date specified as the Retroactive Date in the Declarations. RICO35. for or arising out of any actual or alleged violation of the Organised Crime Control Act of 1970 (commonly known as the Racketeer Influenced and Corrupt Organisation Act or RICO), as amended, or any regulation promulgated thereunder or any similar federal, state or local law, whether such law is statutory, regulatory or common law. SEC36. for or arising out of the actual or alleged violation of the Securities Act of 1933, the Securities Exchange Act of 1934, or any similar regional, provincial, territorial, state or federal law, or any amendment to the above laws or any violation of any order, ruling or regulation issued pursuant to the above laws. Unjust enrichment37. for that part of any claim that results in you being in a better financial position as a direct result of your wrongful act than you would have been if you had not committed the wrongful act. Unsolicited communications38. arising directly or indirectly from any violation of: the CAN-SPAM Act of 2003 or any subsequent amendments toa) that Act; or the Telephone Consumer Protection Act (TCPA) of 1991 orb) any subsequent amendments to that Act; or any other law, regulation or statute relating to unsolicitedc) communication, distribution, sending or transmitting of any communication via telephone or any other electronic or telecommunications device. Valuable commodities39. in respect of INSURING CLAUSE 1 (SECTION C only), arising from loss of cash, bank currency, promissory notes, securities for money, deeds, bonds, bills of exchange, stamps, medals, coins, jewellery, furs, gold, silver, precious metals, gems, precious stones or articles composed of any of these. Wilful or dishonest acts of senior executive officers40. in respect of INSURING CLAUSES 1, 2 and 8 only, arising out of any wilful, malicious, reckless or dishonest act or omission by you. GENERAL INSURANCE EXCLUSIONS: Antitrust41. for or arising out of any actual or alleged antitrust violation, restraint of trade, unfair competition, false, deceptive or unfair trade practices, violation of consumer protection laws or false or deceptive advertising other than: where specifically covered under INSURING CLAUSES 1a) and 2 for which you have purchased coverage; or any covered portion of any claim based on your allegedb) unauthorized use of a third party’s trademark. Asbestos42. arising directly or indirectly or resulting from or contributed to by the manufacturing, mining, use, sale, installation, removal, distribution of or exposure to asbestos, materials or products containing asbestos, or asbestos fibers or dust. Associated companies43. in respect of any claim made by any company, firm ora) partnership in which the company named as the Insured in the Declarations has greater than a 10% executive or financial interest, unless such claim emanates from an independent third party; or in respect of any claim made by any company, firm, partnershipb) or individual which has greater than a 10% executive or financial interest in the company named as the Insured in the Declarations or any subsidiary, unless such claim emanates from an independent third party; or arising out of or resulting from any of your activities as ac) trustee, partner, officer, director or employee of any employee trust, charitable organization, corporation, company or business other than that of the company named as the Insured in the CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 10 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 Declarations or any subsidiary; or in respect of any claim made by or on behalf of the companyd) named as the Insured in the Declarations or any subsidiary. Earthquake44. in respect of INSURING CLAUSE 3 only, caused by earthquake, except for: ensuing loss or damage which results directly from fire,a) explosion, smoke or leakage from fire protective equipment; or ensuing damage to contents of every description while inb) transit. Electromagnetic fields45. arising directly or indirectly out of, resulting from or contributed to by electromagnetic fields, electromagnetic radiation, electromagnetism, radio waves or noise. Flood46. in respect of INSURING CLAUSE 3 only, caused by flood, including waves, tides, tidal waves, or the rising of, the breaking out, or the overflow, of any body of water whether natural or manmade, but this EXCLUSION does not apply to: ensuing loss or damage which results directly from fire,a) explosion, smoke or leakage from fire protective equipment; or ensuing damage to contents of every description while inb) transit. Fines47. for fines, penalties, civil or criminal sanctions and multiple damages, unless specifically covered under INSURING CLAUSE 2, SECTION B, part (c) for which you have purchased coverage. Insolvency48. arising out of or relating directly or indirectly from your insolvency or bankruptcy, or the insolvency or bankruptcy of any third party. Furthermore, no coverage is provided under INSURING CLAUSE 2, SECTION E or INSURING CLAUSE 3 SECTION C, if you become insolvent or bankrupt. Land or water49. arising directly or indirectly from damage to land or water within or below the boundaries of any land or premises presently or at any time previously owned or leased by you or otherwise in your care, custody or control. Miscellaneous property exclusions50. in respect of INSURING CLAUSE 3 only, arising directly or indirectly from: wear and tear, inherent defect, rot, vermin or infestation, or anya) gradually operating cause; dryness or humidity, being exposed to light or extremeb) temperatures, unless the damage is caused by storm or fire; coastal or river erosion;c) a rise in the water table;d) theft from an unattended vehicle unless the stolen item is oute) of sight; frost, other than damage due to water leaking from burst pipesf) forming part of the permanent internal plumbing provided the premises are occupied and in use; arising directly or indirectly from unexplained loss org) disappearance or inventory shortage of your property; a hacking attack or virus.h) Named windstorms51. in respect of INSURING CLAUSE 3 (SECTIONS A and Conly), caused: directly or indirectly by a windstorm which is given a name bya) the National Hurricane Center, Miami, FL, regardless of any other cause or event that contributes concurrently or in any sequence to the loss or damage; or by rain, snow, sand or dust, whether driven by wind or not, ifb) that loss or damage would not have occurred but for a windstorm which is given a name by the National Hurricane Center, Miami, FL. But if the windstorm results in a cause of loss or damage other than rain, snow, sand or dust, and that resulting cause of loss or damage is not otherwise excluded under this Policy, we will pay for that loss or damage. For example, if the windstorm damages a heating system and fire results, the loss or damage attributable to the fire is covered subject to any other applicable policy provisions. Nuclear52. arising directly or indirectly from or contributed to by: ionizing radiations or contamination by radioactivity from anya) nuclear fuel or from any nuclear waste from the combustion of nuclear fuel; the radioactive, toxic, explosive or other hazardous properties ofb) any explosive nuclear assembly or nuclear component thereof. Pollution53. arising directly or indirectly out of: pollution or contamination of the atmosphere, or of any water,a) land, buildings or other property; any enforcement action in connection with the containment, clean-b) up, removal or treatment of such pollution or contamination; but this EXCLUSION shall not apply in respect of: INSURING CLAUSE 1 (SECTION F only); ora) premises leased to, hired by, on loan to or held in trust by youb) or otherwise in your care, custody or control in respect of: i)bodily injurycaused by smoke, fumes, vapor or soot from equipment used to heat the building; or ii)bodily injury or damage arising out of heat, smoke or fumes from a hostile fire. For the purpose of this EXCLUSION a hostile fire means one which becomes uncontrollable or breaks out from where it was intended to be; INSURING CLAUSE 3 (SECTIONS A and C only) to thec) backing up of sewers, sumps, septic tanks or drains. Toxic mold & fungus54. arising directly or indirectly from any loss, bodily injury, damage, costs or expenses, including, but not limited to, losses, damage, costs or expenses related to, arising from or associated with clean- up, remediation, containment, removal or abatement, caused directly or indirectly, in whole or in part, by: any fungus, mold, mildew or yeast; ora) any spore or toxins created or produced by or emanating fromb) such fungus, mold, mildew or yeast; or any substance, vapour, gas, or other emission or organic orc) inorganic body or substance produced by or arising out of any fungus, mold, mildew or yeast; or any material, product, building component, building or structure,d) or any concentration of moisture, water or other liquid within such material, product, building component, building or structure, that contains, harbors, nurtures, or acts as a medium for any fungus, mold, mildew yeast, or spore or toxins emanating therefrom; regardless of any other cause, event, material, product or building component that contributed concurrently or in any sequence to that loss, bodily injury, damage, cost or expense. However, this EXCLUSION shall not apply in respect of INSURING CLAUSE 1 where the loss, bodily injury, damage, costs or expenses arose directly from a wrongful act committed by you in the course of your business activities. For the purposes of this EXCLUSION the following definitions are added to the Policy: Fungus includes, but is not limited to, any plants or organisms belonging to the major group Fungi, lacking chlorophyll, and including molds, rusts, mildews, smuts and mushrooms. Mold includes, but is not limited to, any superficial growth produced on damp or decaying organic matter or on living organisms, and fungi that produced molds. Spore means any dormant or reproductive body produced by or arising from or emanating out of any fungus, mold, mildew, plants, organisms or microorganisms. Trade debt55. arising out of or in connection with any trading losses or trading liabilities incurred by any business managed or carried on by you, or CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 11 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 any loss of yourprofit arising from the loss of any client, account or business. War and terrorism56. directly or indirectly caused by, resulting from or in connection with any of the following regardless of any other cause or event contributing concurrently or in any other sequence to the claim, loss or damage; war, invasion, acts of foreign enemies, hostilities or warlikea) operations (whether war be declared or not), civil war, rebellion, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power; or any act of terrorism.b) For the purpose of this EXCLUSION an act of terrorism means an act, including but not limited to the use of force or violence or the threat thereof, of any person or group of persons, whether acting alone or on behalf of or in connection with any organization or government, committed for political, religious, ideological or similar purposes including the intention to influence any government or to put the public, or any section of the public, in fear. This EXCLUSION also excludes claims, losses, damage, costs and expenses of whatsoever nature directly or indirectly caused by, resulting from or in connection with any action taken in controlling, preventing, suppressing or in any way relating to a) or b) above. This EXCLUSION does not apply to any claim or loss arising directly from a hacking attack or virus. CONDITIONS What you must do in the event of a claim or loss1. Should a senior executive officer become aware of any claim, loss or damage the following obligations must be complied with by you: You must not admit liability for or settle or make or promisea) any payment in respect of any claim, loss or damage which may be covered under this Policy. Neither must you incur any costs or expenses in connection with such a claim, loss or damage without our written agreement. However, you should arrange for any urgent repairs following damage covered under INSURING CLAUSE (3 SECTION A only), to be done immediately. Before any other repair work begins we have the right to inspect your damaged property. We will notify you if we intend to do this. The Claims Managers, as specified in the Declarations, must beb) notified as soon as is reasonably possible and in any event within 75 days if during the period of the policy; you suffer any loss or damage that could be covered byi) this Policy or a senior executive officer becomes aware that a claim has been made against you, whether verbal or made in writing; or a senior executive officer discovers reasonable causeii) for suspicion of fraud or dishonesty whether this could give rise to a claim under this Policy or not and we shall not be liable under this Policy for any claim or loss sustained in consequence of any fraudulent or dishonest act or omission committed after the date of such discovery. We have nominated Claims Managers to accept notice on our behalf. Due to the nature of the coverage offered by this Policy, any unreasonable delay by you in notifying the Claims Managers of (i) or (ii) above could lead to the size of the claim, loss or damage increasing or to our rights being restricted. We shall not be liable for that portion of any claim that is due to any unreasonable delay in you notifying the Claims Managers of any claim, loss or damage in accordance with this clause. We will expect you to provide us with full and accuratec) information about any matter that you notify to us under your obligations set out above. Once notice has been made you must give the Claims Managers all the assistance and information that is reasonably required. You must follow their advice and do anything that they reasonably require you to do to avoid, minimize, settle or defend any claim, loss or damage. If you think a crime has been committed you must report it to the appropriate law enforcement authorities. You must also permit the Claims Managers and any other parties that are appointed by the Claims Managers to notify the appropriate law enforcement authorities of any claim, loss or damage where this action is deemed necessary, and you must comply with the advice given by such authorities. If any of your computer systems are lost or stolen while they are temporarily removed from your premises, we will not make any payment unless you report the loss to the police within 48 hours after you become aware of it. What you must do in the event of a circumstance which may2. give rise to a claim Should a senior executive officer become aware of: a situation that could give rise to a claim; ora) an allegation or complaint made or intimated against you;b) then you have the option of whether to report this circumstance to us or not. However, if you choose not to report this circumstance we shall not be liable for that portion of any claim that is greater than it would have been had you reported this circumstance. If you choose to report this circumstance, you must do so within the period of the policy, or the period of any applicable Extended Reporting Period, for it to be considered under this Policy and we will require you to provide full details of the circumstance, including but not limited to: the time, place and nature of the circumstance; anda) the manner in which you first became aware of thisb) circumstance; and the reasons why you believe that this circumstance is likely toc) result in a claim; and the identity of the potential claimant; andd) an indication as to the size of the claim that could result frome) this circumstance. Based on these details we will decide whether to accept this circumstance as one which could reasonably be expected to give rise to a claim. If we accept this circumstance, we will regard any subsequent claim that may arise as notified under this Policy. Continuous cover3. If you have neglected, through error or oversight only, to report a claim made against you during the period of a previous renewal of this Policy issued to you by us, then provided that you have maintained uninterrupted insurance of the same type with us since the expiry of that earlier Policy, then, notwithstanding EXCLUSION 18, we will permit the matter to be reported under this Policy and will indemnify you, provided that: the indemnity will be subject to the applicable aggregate limita) of liability or limit of liability of the earlier Policy under which the matter should have been reported or the aggregate limit of liability or limit of liability of the current Policy, whichever is the lower; we may reduce the indemnity entitlement by the monetaryb) equivalent of any prejudice which has been suffered as a result of the delayed notification; the indemnity will be subject in addition, to all of the terms,c) CONDITIONS, DEFINITIONS and EXCLUSIONS, other than the aggregate limit of liability or limit of liability, contained in this current Policy. CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 12 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 Fraudulent claims4. If you notify us of any claim knowing that claim to be false or fraudulent in any way, we shall have no responsibility to pay that claim or any other claims under this insurance and the Policy will be treated as if it had not been effected. Agreement to pay claims5. We have the right and duty to take control of and conduct in your name the investigation settlement or defense of any claim. We shall also pay on your behalf costs and expenses incurred with our prior written agreement (subject to the Limits of Liability shown in the Declarations) provided that we shall not pay for the costs and expenses of any part of a claim that is not covered by this Policy. We shall always endeavor to settle any claim through negotiation, mediation or some other form of alternative dispute resolution and shall pay on your behalf the amount so agreed by us and the claimant. If we cannot settle by such means, we shall pay the amount which you are found liable to pay either in court or through arbitration proceedings, subject always to the Limit of Liability shown in the Declarations. If you refuse to agree to a settlement that we recommend and that the claimant will accept, then you must then defend, investigate or settle the claim at your own expense. As a consequence of your refusal, our liability for any claim shall not be more than the amount that we could have settled the claim had you agreed, plus any costs and expenses incurred prior to the date of such refusal. Innocent non-disclosure6. We will not seek to avoid the Policy or reject any claim on the grounds of non-disclosure or misrepresentation except where the non-disclosure or misrepresentation was reckless or fraudulent or your senior executive officersfailed to conduct a full inquiry prior to providing the information that forms the basis of this insurance. In the event that we seek to avoid the Policy or reject any claim on this basis the burden of proving otherwise rests solely with you. Your duty to advise us of changes7. If a senior executive officer becomes aware that any of the information that you have given us in the Application Form or elsewhere in connection with your proposal for this insurance has materially changed then you must advise us as soon as practicable. In this event, we reserve the right to amend the terms, conditions or premium of the Policy. Risk management conditions8. If we attach any additional conditions to your Policy regarding any risk survey or risk management timetable or any other similar conditions then it is your responsibility to ensure that these conditions are complied with by the deadlines shown in the conditions. Our rights of recovery9. If any payment is made under this Policy in respect of a claim, loss or damage and there is available to us any of your rights of recovery against any other party then we maintain all such rights of recovery. We shall not exercise these rights against any senior executive officer or employee unless such payment is in respect of any wilful, malicious or dishonest acts or omissions. You must do nothing to impair any rights of recovery. At our request you will bring proceedings or transfer those rights to us and help us to enforce them. Any recoveries shall be applied as follows: first, to us up to the amount of our payment on your behalfa) including costs and expenses; then to you as recovery of your Deductible or other amountsb) paid as compensation or costs and expenses. Waiver of subrogation10. Notwithstanding CONDITION 9 above we agree to waive our rights of subrogation against a responsible third party client of yours but only if you and your client have entered into a contract that contains a provision requiring us to do this. Cancellation11. This Policy may be cancelled: by you at any time on request; ora) by us if we give you 30 days written notice; orb) by us if we give you 15 days written notice, should any amountc) in default not be paid within 15 days of the due date shown in the Debit Note that accompanies this Policy. If you give us notice of cancellation in accordance with a) above, the earned Premium shall be pro rata to the number of days that the Policy is in effect. If we give you notice of cancellation in accordance with b) or c) above, the earned Premium shall be pro rata to the number of days that the Policy is in effect. The Policy Administration Fee shall be deemed fully earned upon inception of the Policy. Additional insureds12. We shall indemnify any third party as an additional Insured under this Policy, but only in respect of sums which they become legally obliged to pay (including liability for claimants’ costs and expenses) as a result of a claim arising solely out of a wrongful act committed by you or arising solely out of accidental bodily injury or damage caused by you, provided that: you contracted in writing to indemnify the third party for sucha) a claim prior to it first being made against them; and had the claim been made against you, then you would beb) entitled to indemnity under this Policy. Where we indemnify a third party as an additional insured under this Policy, this Policy shall be primary and non-contributory to the third party’s own insurance, but only if you and the third party have entered into a contract that contains a provision requiring this. As a condition to our indemnification of any additional Insured: i) they shall prove to our satisfaction that the claim arose solely out of a wrongful act committed by you or arose solely out of accidental bodily injury or damage caused by you; and ii) they shall fully comply with CONDITION 1(a)above as if they were you. Where a third party is indemnified as an additional Insured as a result of this CONDITION, it is understood and agreed that any claim made by that third party against you shall be treated by us as if they were a third party, not an additional Insured. Prior Subsidiaries13. In respect of INSURING CLAUSES 1 and 2 (SECTIONS A and B only), should an entity cease to be a subsidiary after the Inception Date of this Policy, cover in respect of such entity shall continue as if it was still a subsidiary, until the termination of this Policy, but only in respect of any claim or loss that arises out of any wrongful act committed by that entity prior to the date that it ceased to be a subsidiary. Mergers and acquisitions14. During the period of the policy, if the company named as the Insured in the Declarations or any subsidiary: purchases assets or acquires liabilities from another entity in ana) amount greater than 10% of the assets of the company named as the Insured in the Declarations as listed in its most recent financial statement; or acquires another entity whose annual revenues are more thanb) 10% of the annual revenues of the company named as the Insured in the Declarations for their last completed financial year; then you shall have no coverage under this Policy for any claim, loss or damage that arises directly or indirectly out of the purchased or acquired entity unless the company named as the Insured in the Declarations gives us written notice prior to the purchase or acquisition, obtains our written agreement to extend coverage to such additional entities, assets or exposures, and agrees to pay any additional premium required by us. If during the period of the policy the company named as the Insured in the Declarations consolidates or merges with or is acquired by another entity, then all coverage under this Policy shall terminate at the date of the consolidation, merger or acquisition unless we have CFC Underwriting Limited is Authorised and Regulated by the Financial Services Authority ©1999-2012 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.1 RES 13 CFC Underwriting Limited is Authorized and Regulated by the Financial Conduct Authority ©1999-2015 CFC Underwriting Ltd, All Rights Reserved CFC RES US V1.4 issued an endorsement extending coverage under this Policy, and the company named as the Insured in the Declarations has agreed to any additional premium and terms of coverage required by us. Extended reporting period15. In respect of INSURING CLAUSES 1, 2 (SECTIONS A and B only) and 4 (SECTION G only), an Extended Reporting Period of 60 days following the Expiry Date as shown in the Declarations shall be automatically granted at no additional premium. This Extended Reporting Period shall cover claims first made against you during the period of the policy and notified to us during this 60 day Extended Reporting Period but only in respect of any act, error or omission committed prior to the Expiry Date shown in the Schedule, and subject to all other terms, conditions and exclusions of the policy. No claim shall be accepted by us in this 60 day Extended Reporting Period if you are entitled to indemnity under any other insurance, or would have been entitled to indemnity under that insurance but for the exhaustion thereof. Optional extended reporting period16. In respect of INSURING CLAUSES 1, 2 (SECTIONS A and B only) and 4 (SECTION G only), in the event of: cancellation or non-renewal of this Policy by us; ora) cancellation or non-renewal of this Policy by you because youb) have ceased to trade as the direct result of the retirement or death of all of your senior executive officers; if we or you decline to renew or cancel this Policy, then you shall have the right, upon payment of the Optional Extended Reporting Period Premium shown in the Declarations in full and not proportionally or otherwise in part, to have issued an endorsement providing a 365 day Optional Extended Reporting Period which shall be effective from the cancellation or non-renewal date. This Optional Extended Reporting Period shall cover claims first made against you and notified to us during this Optional Extended Reporting Period but only in respect of any claim arising out of any act, error or omission committed prior to the date of cancellation or non-renewal, and subject to all other terms, conditions and exclusions of the policy. In order for you to invoke the Optional Extended Reporting Period option, the payment of the Optional Extended Reporting Period Premium shown in the Declarations for this Optional Extended Reporting Period must be paid to us within 15 days of the date of the non-renewal or cancellation. At the commencement of this Optional Extended Reporting Period the entire premium shall be deemed earned and in the event that you terminate the Optional Extended Reporting Period for any reason prior to its natural expiration, we will not be liable to return any premium paid. The right to the Extended Reporting Period or the Optional Extended Reporting Period shall not be available to you where: cancellation or non-renewal by us is due to non-payment ofa) premium; or cancellation or non-renewal by us is due to your failure to payb) any amounts in excess of the applicable Limit of Liability or within the amount of the applicable Deductible as is required by this Policy in the payment of claims. At the renewal of this Policy, our quotation of different premium, Deductible or Limit of Liability or changes in policy language shall not constitute non-renewal by us for the purposes of granting this Optional Extended Reporting Period. In no event shall the granting of the Extended Reporting Period or the Optional Extended Reporting Period increase the limit of liability or aggregate limit of liability. Choice of law, legal action and service of suit17. In the event of a dispute between you and us regarding this Policy, the same shall be governed by the laws of the State of the United States of America shown in the Choice of Law section of the Declarations. We agree, at your request, to submit to the jurisdiction of a Court of competent jurisdiction within the United States of America. Nothing in this CONDITION constitutes or should be understood to constitute a waiver of our rights to commence an action in any Court of competent jurisdiction in the United States of America, to remove an action to a United States District Court, or to seek a transfer of a case to another Court as permitted by the laws of the United States of America or the laws of any State of the United States of America. It is further agreed that service of process in such suit may be made upon Mendes & Mount LLP at the address shown in the Declarations and that in any suit instituted against us, we will abide by the final decision of such Court or of any Appellate Court in the event of an appeal. Mendes & Mount LLP are authorized and directed to accept service of process on our behalf in any such suit and, at your request, to give a written undertaking to you that they will enter a general appearance on our behalf in the event such a suit is instituted. Additionally, in accordance with the statute of any state, territory or district of the United States which makes such a provision, we hereby designate the Superintendent, Commissioner or Director of Insurance or other officer specified for that purpose in the statute, or his successor or successors in office, as our true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by you arising out of this Policy. Mendes & Mount LLP are hereby designated as the firm to whom the above- mentioned officer is authorized to mail such process or a copy thereof.