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HomeMy WebLinkAbout432744 ROCKET JONES INTERACTIVE - CONTRACT - AGREEMENT MISC - ROCKET JONES INTERACTIVE (2)PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 1 of 22 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and ROCKET JONES INTERACTIVE, hereinafter referred to as "Professional". WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. The Professional agrees to provide services in accordance with any project Work Orders for myClimateWise Database & Application Development issued by the City. A blank sample of a work order is attached hereto as Exhibit "A", consisting of one (1) page and is incorporated herein by this reference. A general scope of work is attached hereto as Exhibit “B”, consisting of three (3) pages, and incorporated herein by this reference. No Work Order shall exceed $75,000. The City reserves the right to independently bid any project rather than issuing a Work Order to the Professional for the same pursuant to this Agreement. Irrespective of references in Exhibit A to certain named third parties, Professional shall be solely responsible for performance of all duties hereunder. Additionally, Professional may provide Technical Support and Site Maintenance for various departments throughout the City. A Technical Support and Site Maintenance agreement (similar to Exhibit C & D) shall be detailed by Professional describing the Scope of Work for each area in which service is to be provided. 2. The Work Schedule. The services to be performed pursuant to this Agreement shall be performed in accordance with the Work Schedule stated on each Work Order. DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 2 of 22 3. Time of Commencement and Completion of Services. The services to be performed pursuant to this Agreement shall be initiated as specified on each Work Order. Time is of the essence. Any extensions of any time limit must be agreed upon in writing by the parties hereto. 4. Contract Period. This Agreement shall commence August 25, 2014, and shall continue in full force and effect until August 24, 2015, unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed four (4) additional one year periods. Renewals and pricing changes shall be negotiated by and agreed to by both parties. Written notice of renewal shall be provided to the Professional and mailed no later than thirty (30) days prior to contract end. 5. Early Termination by City. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses: Professional: City: Copy to: Rocket Jones Interactive Attn: Jeff Bristol PO Box 2091 Fort Collins, CO 80522 City of Fort Collins Attn: Travis Paige PO Box 580 Fort Collins, CO 80522 City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 In the event of any such early termination by the City, the Professional shall be paid for services rendered prior to the date of termination, subject only to the satisfactory performance of the Professional's obligations under this Agreement. Such payment shall be the Professional's sole right and remedy for such termination. 4. Design, Project Indemnity and Insurance Responsibility. The Professional shall be DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 3 of 22 responsible for the professional quality, technical accuracy, timely completion and the coordination of all services rendered by the Professional, including but not limited to designs, plans, reports, specifications, and drawings and shall, without additional compensation, promptly remedy and correct any errors, omissions, or other deficiencies. The Professional shall indemnify, save and hold harmless the City, its officers and employees in accordance with Colorado law, from all damages whatsoever claimed by third parties against the City; and for the City's costs and reasonable attorneys fees, arising directly or indirectly out of the Professional's negligent performance of any of the services furnished under this Agreement. The Professional shall maintain commercial general liability insurance in the amount of $500,000 combined single limits and errors and omissions insurance in the amount of $1,000,000, in accordance with Exhibit D, consisting of one (1) page, attached hereto and incorporated herein. 6. Compensation. In consideration of the services to be performed pursuant to this Agreement, the City agrees to pay Professional in accordance with Exhibit “B”, consisting of three (3) pages, attached hereto and incorporated herein. Monthly partial payments based upon the Professional's billings and itemized statements of reimbursable direct costs are permissible. The amounts of all such partial payments shall be based upon the Professional's City-verified progress in completing the services to be performed pursuant hereto and upon the City's approval of the Professional's reimbursable direct costs. Final payment shall be made following acceptance of the work by the City. Upon final payment, all designs, plans, reports, specifications, drawings and other services rendered by the Professional shall become the sole property of the City. 7. City Representative. The City will designate, prior to commencement of work, its project representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the project. All requests for contract interpretations, DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 4 of 22 change orders, and other clarification or instruction shall be directed to the City Representative. 8. Monthly Report. Commencing thirty (30) days after the date of execution of this Agreement and every thirty (30) days thereafter, Professional is required to provide the City Representative with a written report of the status of the work with respect to the Scope of Services, Work Schedule, and other material information. Failure to provide any required monthly report may, at the option of the City, suspend the processing of any partial payment request. 9. Independent Contractor. The services to be performed by Professional are those of an independent contractor and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Professional's compensation hereunder for the payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose. 10. Personal Services. It is understood that the City enters into this Agreement based on the special abilities of the Professional and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Professional shall neither assign any responsibilities nor delegate any duties arising under this Agreement without the prior written consent of the City. 11. Acceptance Not Waiver. The City's approval of drawings, designs, plans, specifications, reports, and incidental work or materials furnished hereunder shall not in any way relieve the Professional of responsibility for the quality or technical accuracy of the work. The City's approval or acceptance of, or payment for, any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement. DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 5 of 22 12. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this agreement, such party may be declared in default. 13. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail himself of any other remedy at law or equity. If the non- defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non-defaulting party for the non-defaulting party's reasonable attorney fees and costs incurred because of the default. 14. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. 15. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution and enforcement of this Agreement. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 16. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Professional represents and agrees that: a. As of the date of this Agreement: 1. Professional does not knowingly employ or contract with an illegal alien who will DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 6 of 22 perform work under this Agreement; and 2. Professional will participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the “e-Verify Program”) or the Department Program (the “Department Program”), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. b. Professional shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. c. Professional is prohibited from using the e-Verify Program or Department Program procedures to undertake pre-employment screening of job applicants while this Agreement is being performed. d. If Professional obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Professional shall: 1. Notify such subcontractor and the City within three days that Professional has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Professional shall not terminate the contract with the subcontractor if during such three days the DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 7 of 22 subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e. Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment (the “Department”) made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. f. If Professional violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Professional shall be liable for actual and consequential damages to the City arising out of Professional’s violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Professional violates this provision of this Agreement and the City terminates the Agreement for such breach. 17. Red Flags Rules. Professional must implement reasonable policies and procedures to detect, prevent and mitigate the risk of identity theft in compliance with the Identity Theft Red Flags Rules found at 16 Code of Federal Regulations part 681. Further, Professional must take appropriate steps to mitigate identity theft if it occurs with one or more of the City’s covered accounts and must as expeditiously as possible notify the City in writing of significant breeches of security or Red Flags to the Utilities or the Privacy Committee. 18. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit “C” – Ongoing Support Agreement, consisting of four (4) pages; Exhibit “D” – Ongoing Support Agreement – FC Utilities, consisting of four (4) pages; and Exhibit “E“ - Confidentiality, consisting of one (1) page, attached hereto and incorporated herein by this reference. DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 8 of 22 THE CITY OF FORT COLLINS, COLORADO By: _________________________________ Gerry Paul Director of Purchasing & Risk Management DATE: ______________________________ ATTEST: _________________________________ City Clerk APPROVED AS TO FORM: ________________________________ Assistant City Attorney ROCKET JONES INTERACTIVE By: __________________________________ Title: _______________________________ CORPORATE PRESIDENT OR VICE PRESIDENT Date: _______________________________ DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C 8/29/2014 Principal 10/13/2014 PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 9 of 22 EXHIBIT A WORK ORDER FORM PURSUANT TO AN AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND DATED: Work Order Number: Purchase Order Number: Project Title: Original Bid/RFP Project Number & Name: Commencement Date: Completion Date: Maximum Fee: (time and reimbursable direct costs): Project Description: Scope of Services: Professional agrees to perform the services identified above and on the attached forms in accordance with the terms and conditions contained herein and in the Professional Services Agreement between the parties. In the event of a conflict between or ambiguity in the terms of the Professional Services Agreement and this work order (including the attached forms) the Professional Services Agreement shall control. The attached forms consisting of ___ (_) pages are hereby accepted and incorporated herein, by this reference, and Notice to Proceed is hereby given. Professional By:_______________________________ Date:_____________________________ City of Fort Collins Submitted By: _________________________ Project Manager Date: _________________________ Reviewed by: _________________________ Senior Utility Engineer Date: _________________________ Approved by: _________________________ Water Engineering & Field Services Operations Manager Date: ________________________ Approved by: _________________________ Utilities General Manager (over $1,000,000) Date: ________________________ Approved by: _________________________ Director of Purchasing & Risk Management (if over $60,000.) Date: _______________________ DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 10 of 22 EXHIBIT B GENERAL SCOPE OF SERVICES Project Overview: myClimateWise has operated as a user interface for partners to track annual programmatic progress since 2009. Measured against the previous methodology for tracking progress, myClimateWise improvements were vast; however access to historical data and instant program status has encouraged program partners to inquire about how this data could be used for their own pursuits. In addition to ClimateWise staff sharing this point of view of the current application they envision additional enhancements to improve partner support through increased user functionality. The augmented versatility and use of data currently collected, coupled with targeted improvements in capability is necessary to support staff and partner efforts of delivering a cutting edge program. Project Background: In 2011, City Council approved the annual use of $30,000 of Keep Fort Collins Great (KFCG) funds to be used to enhance, build and maintain an improved database and toolbox of partner applications to support the ClimateWise program. Since 2011, Rocket Jones Interactive (Rocket Jones) has acted as the database and application developer of the current version of myClimateWise. Rocket Jones’ annual database/application development and support SOW were previously held under a master agreement maintained by Fort Collins Utilities. This arrangement worked well to support the development of a tailor made, proprietary database specifically designed to support the ClimateWise program. For the first time in the program’s history, data submitted by partners can be accessed, evaluated, and shared easily, without the assistance of the staff – which is helpful considering the program serves over 360 Fort Collins businesses. Due to timing of KFCG funds and their limited nature, work related to the development or enhancement of myClimateWise has been managed in phases. Rocket Jones continues to work with the ClimateWise program to implement the phased upgrades; however the expiration of the master agreement as of July 9, 2014 requires that a new contract be established to support the continuation of these planned for, phased enhancements. Rocket Jones has acted as the sole provider of web and application development services as well as provided on-call support and maintenance. myClimateWise continues to add value to the program, with 2014 and 2015 being two important years based on work that has been planned for and developed. Rocket Jones understands how to achieve the results planned for and is best positioned to carry them out technically and cost effectively. Scope of Services: Build a Phase Two GHG Tool: $23,000 Budget to build the new Phase Two GHG Tools as specifically outlined in the “myCW GHG Tool v8.pdf” wireframe document (see attached). Includes project management, coding, testing, rollout, and 60 days of bug fixes and post-rollout support. 2014 Reporting Tools Additions: $2,045 Includes up to two (2) hours of Level One work (project management, testing, rollout) and 10 hours of Level Two work (code changes and bug fixes) to further refine and build the system reporting tools. DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 11 of 22 Tier II Technical Support and Training Contract (6 Months): $2,400 [$400/month | July 2014 – December 2014] (See attached Technical Support Agreement) Hourly Cost Breakdown by Role Level ONE Work: $125/hour Monday - Friday | 9:00am-5:00pm MST (Excludes Rocket Holidays) Includes project management, training, and basic client-side programming work (HTML, CSS, layout). Level TWO Work: $175/hour Monday - Friday | 9:00am-5:00pm MST (Excludes Rocket Holidays) Includes database development, server-side programming, javascript programming, application design, user interface design, data architecture, interaction diagrams, mock-ups, and wireframes. Project Technical Specifications The proposed system to be built using standard, current technology and implemented following industry standards and best practices. Because we are building in a custom development environment, there is “no limit” to the functionality that can be added in future phases (additional costs to be determined as new scope develops). Development Environment: LAMP - Linux | Apache | mySQL | PHP CakePHP - Application Development Environment HTML Compliant to Standards: XHTML Strict 1.0 | Cascading Style Sheets (CSS 2.1) -or- HTML5 | CSS3 Fully Supported Browsers:  (Within known limitations, site will render correctly and function as expected.)  FireFox 11 and up; IE9, IE10, and IE11; Safari 5 & up; Chrome (does not include mobile browsers unless otherwise noted) Functionally Supported Browsers:  (Site will be usable on the following browsers but may not render exactly as expected, or some advanced features may be inaccessible.)  FireFox 3.6–10, IE7, IE8, Safari 3-4 (does not include mobile browsers unless otherwise noted) [NOTE: Rocket Jones no longer offers full IE6, IE7, and IE8 compatibility as a default on projects.] Project Notes  No other functionality (other than listed) is implied. Additional functionality to be bid upon request.  All site content (text and graphics) to be delivered to Rocket Jones in digital formats.  Third party costs are not included in this proposal unless otherwise noted (such as Secure  Certificate [SSL], FoxyCart, Credit Card Processing Service, Internet Merchant Account, etc). DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 12 of 22  Data entry and content loading not included unless otherwise noted.  Bid valid for 60 days.  Payment Terms: 50% down to start, 35% at delivery of working prototype, and 15% at project completion (before go-live). DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 13 of 22 EXHIBIT C ONGOING SUPPORT AGREEMENT DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 14 of 22 DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 15 of 22 DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C 10/13/2014 Gerry Paul PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 16 of 22 DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 17 of 22 EXHIBIT D ONGOING SUPPORT AGREEMENT – FC UTILITIES DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 18 of 22 DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 19 of 22 DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C Gerry Paul 10/13/2014 PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 20 of 22 DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 21 of 22 EXHIBIT E INSURANCE REQUIREMENTS 1. The Professional will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Professional shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: "The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10) days written notice has been received by the City of Fort Collins." In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Professional, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Professional under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on the Professional 's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Professional shall maintain during the life of this Agreement for all of the Professional's employees engaged in work performed under this agreement: 1. Workers' Compensation insurance with statutory limits as required by Colorado law. 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General & Vehicle Liability. The Professional shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $500,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Professional shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. C. Errors & Omissions. The Professional shall maintain errors and omissions insurance in the amount of $1,000,000. DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C New insurance PSA WO – Rocket Jones Interactive Misc - myClimateWise Database& Application Development & Maintenance Page 22 of 22 EXHIBIT E CONFIDENTIALITY IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the “City”) pursuant to this Agreement (the “Agreement”), the Professional hereby acknowledges that it has been informed that the City has established policies and procedures with regard to the handling of confidential information and other sensitive materials. In consideration of access to certain information, data and material (hereinafter individually and collectively, regardless of nature, referred to as “information”) that are the property of and/or relate to the City or its employees, customers or suppliers, which access is related to the performance of services that the Professional has agreed to perform, the Professional hereby acknowledges and agrees as follows: That information that has or will come into its possession or knowledge in connection with the performance of services for the City may be confidential and/or proprietary. The Professional agrees to treat as confidential (a) all information that is owned by the City, or that relates to the business of the City, or that is used by the City in carrying on business, and (b) all information that is proprietary to a third party (including but not limited to customers and suppliers of the City). The Professional shall not disclose any such information to any person not having a legitimate need-to-know for purposes authorized by the City. Further, the Professional shall not use such information to obtain any economic or other benefit for itself, or any third party, except as specifically authorized by the City. The foregoing to the contrary notwithstanding, the Professional understands that it shall have no obligation under this Agreement with respect to information and material that (a) becomes generally known to the public by publication or some means other than a breach of duty of this Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the request for such disclosure is proper and the disclosure does not exceed that which is required. In the event of any disclosure under (b) above, the Professional shall furnish a copy of this Agreement to anyone to whom it is required to make such disclosure and shall promptly advise the City in writing of each such disclosure. In the event that the Professional ceases to perform services for the City, or the City so requests for any reason, the Professional shall promptly return to the City any and all information described hereinabove, including all copies, notes and/or summaries (handwritten or mechanically produced) thereof, in its possession or control or as to which it otherwise has access. The Professional understands and agrees that the City’s remedies at law for a breach of the Professional’s obligations under this Confidentiality Agreement may be inadequate and that the City shall, in the event of any such breach, be entitled to seek equitable relief (including without limitation preliminary and permanent injunctive relief and specific performance) in addition to all other remedies provided hereunder or available at law. DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C MISCELLANEOUS PROFESSIONAL LIABILITY DECLARATIONS Travelers Casualty and Surety Company of America POLICY NO. 106181662 Hartford, Connecticut (A Stock Insurance Company, herein called the Company) THE LIABILITY COVERAGES ARE WRITTEN ON A CLAIMS-MADE BASIS. THE LIABILITY COVERAGES COVER ONLY CLAIMS FIRST MADE AGAINST INSUREDS DURING THE POLICY PERIOD. THE LIMIT OF LIABILITY AVAILABLE TO PAY SETTLEMENTS OR JUDGMENTS WILL BE REDUCED BY DEFENSE EXPENSES, AND DEFENSE EXPENSES WILL BE APPLIED AGAINST THE RETENTION. THE COMPANY HAS NO DUTY TO DEFEND ANY CLAIM UNLESS DUTY-TO-DEFEND COVERAGE HAS BEEN SPECIFICALLY PROVIDED HEREIN. ITEM 1 NAMED INSURED: ROCKET JONES INTERACTIVE D/B/A: Principal Address: 204 WALNUT STREET FORT COLLINS, CO 80524 Inception Date: October 6, 2014 Expiration Date: October 6, 2015 ITEM 2 POLICY PERIOD: 12:01 A.M. standard time both dates at the Principal Address stated in ITEM 1. ITEM 3 ALL NOTICES OF CLAIM OR LOSS MUST BE SENT TO THE COMPANY BY EMAIL, FACSIMILE, OR MAIL AS SET FORTH BELOW: Email:bfpclaims@travelers.com FAX:(888) 460-6622 Mail:Travelers Bond & Financial Products Claim 385 Washington St. – Mail Code 9275-NB03F St Paul, MN 55102 ITEM 4 COVERAGE INCLUDED AS OF THE INCEPTION DATE IN ITEM 2: Miscellaneous Professional Liability Coverage MPL-2001 Rev. 01-09 Printed in U.S.A. Page 1 of 3 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C Continuity Date: October 6, 2014 Professional Services: Website design and development Applicable Not Applicable Additional Defense Coverage: Limits of Liability: $1,000,000 for each Claim; not to exceed $1,000,000 for all Claims Additional Defense Limit of Liability: Not Covered for all Claims Retention: $5,000 for each Claim Prior and Pending Proceeding Date: October 6, 2014 Retroactive Date: October 6, 2014 MISCELLANEOUS PROFESSIONAL LIABILITY ITEM 7 TYPE OF LIABILITY COVERAGE: Reimbursement Only the type of liability coverage marked “ ” is included in this policy. Duty-to-Defend ITEM 6 PREMIUM FOR THE POLICY PERIOD: $3,200.00 Policy Premium N/A Annual Installment Premium ITEM 5 Only those coverage features marked “ Applicable” are included in this policy. MPL-2001 Rev. 01-09 Printed in U.S.A. Page 2 of 3 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C ITEM 10 ANNUAL REINSTATEMENT OF THE LIABILITY COVERAGE LIMIT OF LIABILITY: Only those coverage features marked “ Applicable” are included in this policy. Applicable Not applicable ITEM 11 FORMS AND ENDORSEMENTS ATTACHED AT ISSUANCE: LIA-3001-0109; LIA-5005-1107; LIA-4004-0912; MPL-3001-0109; MPL-7017-0109; MPL-7027-0109; MPL-7032-0109; MPL-7040-0109; LIA-10001-0610; MPL-7116-0910; ACF-7006-0511 THE DECLARATIONS, THE APPLICATION, THE LIABILITY COVERAGE TERMS AND CONDITIONS, THIS LIABILITY COVERAGE, AND ANY ENDORSEMENTS ATTACHED THERETO, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE COMPANY AND THE INSURED. _____________________________ Countersigned By IN WITNESS WHEREOF, the Company has caused this policy to be signed by its authorized officers. Executive Vice President Corporate Secretary MPL-2001 Rev. 01-09 Printed in U.S.A. Page 3 of 3 ©2009 The Travelers Companies, Inc. All Rights Reserved ITEM 9 LIABILITY COVERAGE RUN-OFF EXTENDED REPORTING PERIOD: (If exercised in accordance with section III. CONDITIONS, K. CHANGE OF CONTROL of the Liability Coverage Terms and Conditions) Additional Premium Percentage: Not Applicable Additional Months: Not Applicable ITEM 8 LIABILITY COVERAGE EXTENDED REPORTING PERIOD: Additional Premium Percentage: 75 % Additional Months: 12 (If exercised in accordance with section III. CONDITIONS, O. EXTENDED REPORTING PERIOD of the Liability Coverage Terms and Conditions) DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS IS A CLAIMS-MADE COVERAGE WITH DEFENSE EXPENSES INCLUDED IN THE COVERAGE LIMITS. PLEASE READ THE POLICY CAREFULLY. CONSIDERATION CLAUSE IN CONSIDERATION of the payment of the premium, in reliance on the statements in the Application, subject to the Declarations, and pursuant to all the terms, conditions, exclusions and limitations of this Policy, the Company and the Insureds agree as follows: I. GENERAL These Liability Coverage Terms and Conditions apply to all Liability Coverages. Unless otherwise stated to the contrary, the terms and conditions of each Liability Coverage apply only to that particular Liability Coverage. If any provision in these Liability Coverage Terms and Conditions is inconsistent or in conflict with the terms and conditions of any particular Liability Coverage, such Liability Coverage’s terms, conditions, and limitations will control for purposes of that Liability Coverage. II. DEFINITIONS Wherever appearing in this Liability Policy, the following words and phrases appearing in bold type will have the meanings set forth in this Section II. DEFINITIONS: A. Additional Defense Limit of Liability means the amount set forth in ITEM 5 of the Declarations for each applicable Liability Coverage. If “Not Applicable” is shown as the amount of any Liability Coverage’s Additional Defense Limit of Liability, then any reference to the Additional Defense Limit of Liability will be deemed to be deleted from such Liability Coverage. B. Annual Reinstatement of the Liability Coverage Limit of Liability means, if included in ITEM 10 of the Declarations, the reinstatement of each applicable Liability Coverage Limit of Liability or, if applicable, the Liability Coverage Shared Limit of Liability for each applicable Liability Coverage for each Policy Year during the Policy Period. C. Application means the application deemed to be attached to and forming a part of this Liability Policy, including any materials submitted and statements made in connection with that application. If the Application uses terms or phrases that differ from the terms defined in this Liability Policy, no inconsistency between any term or phrase used in the Application and any term defined in this Liability Policy will waive or change any of the terms, conditions and limitations of this Liability Policy. D. Change of Control means: 1. the acquisition of the Named Insured, or of all or substantially all of its assets, by another entity, or the merger or consolidation of the Named Insured into or with another entity such that the Named Insured is not the surviving entity; or 2. the obtaining by any person, entity or affiliated group of persons or entities the right to elect, appoint or designate more than fifty percent (50%) of the board of directors, board of trustees, board of managers, or functional equivalent thereof or to exercise a majority control of the board of directors, board of trustees, board of managers, or a functional equivalent thereof of the Named Insured. E. Claim has the meaning set forth in the applicable Liability Coverage. LIA-3001 Ed. 01-09 Printed in U.S.A. Page 1 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved LIABILITY COVERAGE TERMS AND CONDITIONS DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C F. Defense Expenses means reasonable and necessary legal fees and expenses incurred by the Company or the Insured, with the Company’s consent, in the investigation, defense, settlement and appeal of a Claim, including but not limited to, cost of expert consultants and witnesses, premiums for appeal, injunction, attachment or supersedeas bonds (without the obligation to furnish such bonds) regarding such Claim; provided, that Defense Expenses will not include the salaries, wages, benefits or overhead of, or paid to, any Insured or any employee of such Insured. G. Executive Officer has the meaning set forth in the applicable Liability Coverage. H. Financial Insolvency means, with respect to the Insured Organization or any Outside Entity, the appointment of a receiver, conservator, liquidator, trustee, or similar official; or the inability of the Insured Organization or Outside Entity financially to indemnify the Insured Persons. I. Foreign Parent Corporation means any entity incorporated outside the United States, which owns more than fifty percent (50%) of the outstanding securities or voting rights representing the right to vote for the election of, or to appoint the Named Insured’s board of directors, board of trustees or board of managers, or to exercise a majority control of the board of directors, board of trustees or board of managers of the Named Insured. J. Insured has the meaning set forth in the applicable Liability Coverage. K. Insured Organization has the meaning set forth in the applicable Liability Coverage. L. Insured Person has the meaning set forth in the applicable Liability Coverage. M. Liability Coverage means, individually or collectively, the Liability Coverages that have been purchased, as indicated in ITEM 4 of the Declarations. N. Liability Coverage Limit of Liability means the amount set forth in ITEM 5 of the Declarations for each applicable Liability Coverage. O. Liability Coverage Shared Limit of Liability means the amount set forth in ITEM 12 of the Declarations. If “Not Applicable” is shown in ITEM 12 of the Declarations or ITEM 4 of the Declarations indicates that only one Liability Coverage is included in this Liability Policy, any reference to either the Liability Coverage Shared Limit of Liability or ITEM 12 of the Declarations will be deemed to be deleted from this Liability Policy. P. Liability Policy means, collectively, the Declarations, the Application, the Liability Coverage Terms and Conditions, each purchased Liability Coverage, and any endorsements attached thereto. Q. LLC Manager means any natural person who was, is or becomes a manager, member of the board of managers, or a functionally equivalent executive of an Insured Organization that is a limited liability company. R. Loss has the meaning set forth in the applicable Liability Coverage. S. Named Insured means any entity named in ITEM 1 of the Declarations. T. Policy Period means the period from the Inception Date to the Expiration Date set forth in ITEM 2 of the Declarations. In no event will the Policy Period continue past the effective date of cancellation or termination of this Liability Policy. U. Policy Year means: 1. the period of one year following the Inception Date set forth in ITEM 2 of the Declarations or any anniversary thereof; 2. the time between the Inception Date set forth in ITEM 2 of the Declarations or any anniversary thereof and the effective date of cancellation or termination of this Liability Policy if such time period is less than one year; LIA-3001 Ed. 01-09 Printed in U.S.A. Page 2 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C 3. with respect to a Liability Coverage added to this Liability Policy after the Inception Date set forth in ITEM 2, the time between the inception date of such Liability Coverage and any anniversary of this Liability Policy if the time between the inception date of such Liability Coverage and any anniversary of this Liability Policy is less than one year; and 4. with respect to a Liability Coverage added to this Liability Policy after the Inception Date set forth in ITEM 2, the time between the inception date of such Liability Coverage and the effective date or cancellation or termination of this Liability Policy, if such time is less than one year. V. Pollutant means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. W. Potential Claim means any Wrongful Act that may subsequently give rise to a Claim. X. Related Wrongful Act means all Wrongful Acts that have as a common nexus, or are causally connected by reason of, any fact, circumstance, situation, event or decision. Y. Subsidiary has the meaning set forth in the applicable Liability Coverage. Z. Wage and Hour Law means any federal, state, or local law or regulation governing or related to the payment of wages including the payment of overtime, on-call time, minimum wages, meals, rest breaks or the classification of employees for the purpose of determining employees' eligibility for compensation under such law(s). AA. Wrongful Act has the meaning set forth in the applicable Liability Coverage. III. CONDITIONS A. TERRITORY This Liability Policy applies to Claims made or Wrongful Acts occurring anywhere in the world. B. RETENTION The Insured shall bear uninsured at its own risk the amount of any applicable Retention, which amount must be paid in satisfaction of Loss. If any Claim gives rise to coverage under a single Liability Coverage, the Company has no obligation to pay Loss, including Defense Expenses, until the applicable Retention amount set forth in ITEM 5 of the Declarations has been paid by the Insured. If any Claim is subject to different Retentions under a single Liability Coverage, the applicable Retentions will be applied separately to each part of such Claim, but the sum of such Retentions will not exceed the largest applicable Retention under such Liability Coverage. If any Claim gives rise to coverage under two or more Liability Coverages, the Company shall have no obligation to pay Loss, including Defense Expenses, until the largest Retention that is applicable to such Claim under such Liability Coverages has been paid by the Insured. No Retention will apply to an Insured Person if indemnification by the Insured Organization is not permitted by law or if the Insured Organization is unable to make such indemnification solely by reason of its Financial Insolvency. The Insured Organization will be conclusively deemed to have indemnified all Insured Persons to the extent that the Insured Organization is permitted or required to indemnify them pursuant to law, common or statutory, or contract, or the charter or by-laws of the Insured Organization. The Company, at its sole discretion, may pay all or part of the Retention amount on behalf of any Insured, and in such event, the Insureds agree to repay the Company any amounts so paid. LIA-3001 Ed. 01-09 Printed in U.S.A. Page 3 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C C. LIMITS OF LIABILITY Regardless of the number of persons or entities bringing Claims or the number of persons or entities who are Insureds, and regardless of when payment is made by the Company or when an Insured’s legal obligation with regard thereto arises or is established, and further subject to any applicable Liability Coverage Shared Limit of Liability or Annual Reinstatement of the Liability Coverage Limit of Liability: a. the Company’s maximum limit of liability for all Loss, including Defense Expenses, for all Claims under each applicable Liability Coverage will not exceed the remaining Liability Coverage Limit of Liability stated in ITEM 5 of the Declarations for each applicable Liability Coverage; and b. in the event that a Claim triggers more than one Liability Coverage, the Company’s maximum limit of liability for all Loss, including Defense Expenses, for any such Claim will not exceed the sum of the remaining Liability Coverage Limits of Liability of the applicable Liability Coverages. 2. Liability Coverage Shared Limit of Liability Regardless of the number of persons or entities bringing Claims or the number of persons or entities who are Insureds, and regardless of when payment is made by the Company or when an Insured’s legal obligation with regard thereto arises or is established; and further subject to any applicable Annual Reinstatement of the Liability Coverage Limit of Liability, if ITEM 4 of the Declarations indicates that more than one Liability Coverage has been purchased and a Liability Coverage Shared Limit of Liability is shown in ITEM 12 of the Declarations: a. the Company’s maximum limit of liability for all Loss , including Defense Expenses, for all Claims under all Liability Coverages subject to the Liability Coverage Shared Limit of Liability, as set forth in ITEM 12 of the Declarations, will not exceed the remaining Liability Coverage Shared Limit of Liability; and b. if the Liability Coverage Shared Limit of Liability is exhausted by the payment of amounts covered under any Liability Coverage subject to the Liability Coverage Shared Limit of Liability, as set forth in ITEM 12 of the Declarations, the premium for all Liability Coverages subject to the Liability Coverage Shared Limit of Liability, as set forth in ITEM 12 of the Declarations, will be fully earned, all obligations of the Company under all Liability Coverages subject to the Liability Coverage Shared Limit of Liability, as set forth in ITEM 12 of the Declarations, will be completely fulfilled and exhausted, including any duty to defend, and the Company will have no further obligations of any kind or nature whatsoever under any Liability Coverage subject to the Liability Coverage Shared Limit of Liability, as set forth in ITEM 12 of the Declarations. 3. Annual Reinstatement of the Liability Coverage Limit of Liability Regardless of the number of persons or entities bringing Claims or the number of persons or entities who are Insureds, and regardless of when payment is made by the Company or when an Insured’s legal obligation with regard thereto arises or is established, if ITEM 10 of the Declarations includes an Annual Reinstatement of the Liability Coverage Limit of Liability: a. the Company’s maximum limit of liability for all Loss, including Defense Expenses, for all Claims made during each Policy Year will not exceed the remaining Liability Coverage Limit of Liability stated in ITEM 5 of the Declarations for each applicable Liability Coverage or, if applicable, the remaining Liability Coverage Shared Limit of Liability; and b. with regard to the Extended Reporting Period or the Run-Off Extended Reporting Period, if applicable, the Company’s maximum limit of liability for all Claims made during the Extended Reporting Period or the Run-Off Extended Reporting Period will not exceed the remaining Liability Coverage Limit of Liability or, if applicable, the Liability Coverage Shared Limit of Liability for the last Policy Year in effect at the time of the termination or cancellation of the Liability Coverage or the Change of Control. LIA-3001 Ed. 01-09 Printed in U.S.A. Page 4 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved 1. Liability Coverage Limit of Liability DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C 4. Other Provisions Payment of Defense Expenses will reduce and may exhaust all applicable limits of liability. In the event the amount of Loss exceeds the portion of the applicable limit of liability remaining after prior payments of Loss, the Company’s liability will not exceed the remaining amount of the applicable limit of liability. In no event will the Company be obligated to make any payment for Loss , including Defense Expenses , with regard to a Claim after the applicable limit of liability has been exhausted by payment or tender of payment of Loss. If a Liability Coverage Limit of Liability is exhausted by the payment of amounts covered under such Liability Coverage, the premium for such Liability Coverage will be fully earned, all obligations of the Company under such Liability Coverage will be completely fulfilled and exhausted, including any duty to defend, and the Company will have no further obligations of any kind or nature whatsoever under such Liability Coverage. D. ADDITIONAL DEFENSE COVERAGE Regardless of the number of persons or entities bringing Claims or the number of persons or entities who are Insureds, and regardless of when payment is made by the Company or when an Insured’s legal obligation with regard thereto arises or is established, if ITEM 5 of the Declarations indicates that any Liability Coverage includes Additional Defense Coverage, Defense Expenses incurred by the Company or the Insured, with the Company’s consent, in the defense of any Claim made during the Policy Period under any such Liability Coverage will apply first to and reduce the Additional Defense Limit of Liability. The Additional Defense Limit of Liability will be in addition to, and not part of, such Liability Coverage’s applicable Liability Coverage Limit of Liability or Liability Coverage Shared Limit of Liability, if applicable. The Additional Defense Limit of Liability is applicable to Defense Expenses only. If the Annual Reinstatement of the Liability Coverage Limit of Liability is applicable, the Additional Defense Limit of Liability will be reinstated for each Policy Year. Upon exhaustion of the Additional Defense Limit of Liability: 1. Defense Expenses incurred by the Company or the Insured, with the Company’s consent, in the defense of a Claim are part of and not in addition to any applicable limit of liability; and 2. payment by the Company or the Insured , with the Company’s consent, of Defense Expenses reduces any applicable limit of liability. E. CLAIM DEFENSE 1. If Duty-to-Defend coverage is provided with respect to this Liability Policy as indicated in ITEM 7 of the Declarations, the Company will have the right and duty to defend any Claim covered by a Liability Coverage, even if the allegations are groundless, false or fraudulent, including the right to select defense counsel with respect to such Claim; provided, that the Company will not be obligated to defend or to continue to defend any Claim after the applicable limit of liability has been exhausted by payment of Loss. 2. If Reimbursement coverage is provided with respect to this Liability Policy as indicated in ITEM 7 of the Declarations: a. the Company will have no duty to defend any Claim covered by a Liability Coverage. It will be the duty of the Insured to defend such Claims; and the Company will have the right to participate with the Insured in the investigation, defense and settlement, including the negotiation of a settlement of any Claim that appears reasonably likely to be covered in whole or in part by such Liability Coverage and the selection of appropriate defense counsel; and b. upon written request, the Company will advance Defense Expenses with respect to such Claim. Such advanced payments by the Company will be repaid to the Company by the Insureds severally according to their respective interests in the event and to the extent that the Insureds are not entitled to payment of such Defense Expenses under such Liability Coverage. As a condition of any payment of Defense Expenses under this subsection, the Company may require a written undertaking on terms and conditions satisfactory to the Company guaranteeing the repayment of any Defense Expenses paid to or on behalf of any Insured if it is finally determined that any such Claim or portion of any Claim is not covered under such Liability Coverage. LIA-3001 Ed. 01-09 Printed in U.S.A. Page 5 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C 3. The Insured agrees to cooperate with the Company and, upon the Company's request, assist in making settlements and in the defense of Claims and in enforcing rights of contribution or indemnity against any person or entity which may be liable to the Insured because of an act or omission insured under such Liability Coverage, will attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. F. INSURED’S DUTIES IN THE EVENT OF A CLAIM The Insured’s duty to report a Claim commences on the earliest date a written notice thereof is received by an Executive Officer. If an Executive Officer becomes aware that a Claim has been made against any Insured, the Insured, as a condition precedent to any rights under this Liability Policy, must give to the Company written notice of the particulars of such Claim, including all facts related to any alleged Wrongful Act, the identity of each person allegedly involved in or affected by such Wrongful Act, and the dates of the alleged events, as soon as practicable. The Insured agrees to give the Company such information, assistance and cooperation as it may reasonably require. All notices under this subsection must be sent by mail or prepaid express courier to the address set forth in ITEM 3 of the Declarations and will be effective upon receipt. The Insured agrees not to voluntarily settle any Claim, make any settlement offer, assume or admit any liability or, except at the Insured’s own cost, voluntarily make any payment, pay or incur any Defense Expenses, or assume any obligation or incur any other expense, without the Company’s prior written consent, such consent not to be unreasonably withheld. The Company is not liable for any settlement, Defense Expenses, assumed obligation or admission to which it has not consented. G. NOTICE OF POTENTIAL CLAIMS If an Insured becomes aware of a Potential Claim and gives the Company written notice of the particulars of such Potential Claim, including all facts related to the Wrongful Act, the identity of each person allegedly involved in or affected by such Wrongful Act , the dates of the alleged events, and the reasons for anticipating a Claim , as soon as practicable during the Policy Period, or if exercised, during the Extended Reporting Period or Run-Off Extended Reporting Period, any Claim subsequently made against any Insured arising out of such Wrongful Act will be deemed to have been made during the Policy Period. All notices under this subsection must be sent by mail or prepaid express courier to the address set forth in ITEM 3 of the Declarations and will be effective upon receipt. H. RELATED CLAIMS All Claims or Potential Claims for Related Wrongful Acts will be considered as a single Claim or Potential Claim, whichever is applicable, for purposes of this Liability Policy. All Claims or Potential Claims for Related Wrongful Acts will be deemed to have been made at the time the first of such Claims or Potential Claims for Related Wrongful Acts was made whether prior to or during the Policy Period, or if exercised, during the Extended Reporting Period or Run-Off Extended Reporting Period. I. SUBROGATION In the event of payment under this Liability Policy, the Company is subrogated to all of the lnsured’s rights of recovery against any person or organization to the extent of such payment and the Insured agrees to execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured will do nothing to prejudice such rights. J. RECOVERIES All recoveries from third parties for payments made under this Liability Policy will be applied, after first deducting the costs and expenses incurred in obtaining such recovery, in the following order of priority: 1. first, to the Company to reimburse the Company for any Retention amount it has paid on behalf of any Insured; 2. second, to the Insured to reimburse the Insured for the amount it has paid which would have been paid hereunder but for the fact that it is in excess of the applicable limits of liability hereunder; LIA-3001 Ed. 01-09 Printed in U.S.A. Page 6 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C 3. third, to the Company to reimburse the Company for the amount paid hereunder; and 4. fourth, to the Insured in satisfaction of any applicable Retention; provided, recoveries do not include any recovery from insurance, suretyship, reinsurance, security or indemnity taken for the Company’s benefit. K. CHANGE OF CONTROL If, during the Policy Period, a Change of Control occurs, coverage will continue in full force and effect with respect to Claims for Wrongful Acts committed before such event, but coverage will cease with respect to Claims for Wrongful Acts committed after such event. No coverage will be available hereunder for Loss, including Defense Expenses, for any Claim based upon, alleging, arising out of, or in any way relating to, directly or indirectly any Wrongful Act committed or allegedly committed after such event. After any such event, the Liability Policy may not be canceled by the Named Insured and the entire premium for the Liability Policy will be deemed fully earned. Upon the occurrence of any Change of Control, the Named Insured will have the right to give the Company notice that it desires to purchase a Run-Off Extended Reporting Period for any Liability Coverage for the period set forth in ITEM 9 of the Declarations following the effective date of such Change of Control, regarding Claims made during such Run-Off Extended Reporting Period against persons or entities who at the effective date of the Change of Control are Insureds, but only for Wrongful Acts occurring wholly prior to such Change of Control and which otherwise would be covered by such Liability Coverage, subject to the following provisions: 1. such Run-Off Extended Reporting Period will not provide new, additional or renewed limits of liability; and 2. the Company’s total liability for all Claims made during such Run-Off Extended Reporting Period will be only the remaining portion of the applicable limit of liability set forth in the Declarations as of the effective date of the Change of Control. The premium due for the Run-Off Extended Reporting Period will equal the percentage set forth in ITEM 9 of the Declarations of the annualized premium of the applicable Liability Coverage, including the fully annualized amount of any additional premiums charged by the Company during the Policy Period prior to the Change of Control. The entire premium for the Run-Off Extended Reporting Period will be deemed fully earned at the commencement of such Run-Off Extended Reporting Period. The right to elect the Run-Off Extended Reporting Period will terminate unless written notice of such election, together with payment of the additional premium due, is received by the Company within thirty (30) days of the Change of Control. In the event the Run-Off Extended Reporting Period is purchased, the option to purchase the Extended Reporting Period in Section III. CONDITIONS O. EXTENDED REPORTING PERIOD of these Liability Coverage Terms and Conditions will terminate. In the event the Run-Off Extended Reporting Period is not purchased, the Named Insured will have the right to purchase the Extended Reporting Period under the terms of Section III. CONDITIONS O. EXTENDED REPORTING PERIOD of these Liability Coverage Terms and Conditions. If, at any time during the Policy Period, the Insured Organization eliminates or reduces its ownership interest in, or control over a Subsidiary, such that it no longer meets the definition of a Subsidiary, coverage will continue for such entity but only with regard to Claims for Wrongful Acts which occurred wholly during the time that the entity was a Subsidiary. L. ACQUISITIONS If, during the Policy Period, the Insured Organization acquires or forms a Subsidiary, this Liability Policy will provide coverage for such Subsidiary and its respective Insured Persons, subject to all other terms and conditions of this Liability Policy, provided written notice of such acquisition or formation has been given to the Company, and specific application has been submitted on the Company’s form in use at the time, together with such documentation and information as the Company may require, all within ninety (90) days after the effective date of such formation or acquisition. Coverage for such Subsidiary will not be afforded following such 90-day period unless the Company has agreed to provide such coverage, subject to any additional terms and conditions as the Company may require, and the Named Insured has paid the Company any additional premium as may be required by the Company. LIA-3001 Ed. 01-09 Printed in U.S.A. Page 7 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C The 90-day notice requirement and the 90-day limitation of coverage will not apply provided that: (1) the assets of the acquired or formed Subsidiary do not exceed 30% of the total assets of the Insured Organization as reflected in the Insured Organization’s most recent fiscal year-end financial statement; or (2) the acquisition or formation occurs less than 90 days prior to the end of the Policy Period. M. SPOUSAL AND DOMESTIC PARTNER LIABILITY COVERAGE This Liability Policy will, subject to all of its terms, conditions, and limitations, be extended to apply to Loss resulting from a Claim made against a person who, at the time the Claim is made, is a lawful spouse or a person qualifying as a domestic partner under the provisions of any applicable federal, state or local law (a “Domestic Partner”) of an Insured Person, but only if and so long as: 1. the Claim against such spouse or Domestic Partner results from a Wrongful Act actually or allegedly committed by the Insured Person, to whom the spouse is married, or who is joined with the Domestic Partner; and 2. such Insured Person and his or her spouse or Domestic Partner are represented by the same counsel in connection with such Claim. No spouse or Domestic Partner of an Insured Person will, by reason of this subsection have any greater right to coverage under this Liability Policy than the Insured Person to whom such spouse is married, or to whom such Domestic Partner is joined. The Company has no obligation to make any payment for Loss in connection with any Claim against a spouse or Domestic Partner of an Insured Person for any actual or alleged act, error, omission, misstatement, misleading statement, neglect or breach of duty by such spouse or Domestic Partner. N. FOREIGN PARENT CORPORATION COVERAGE This Liability Policy will, subject to all of its terms, conditions, and limitations, be extended to apply coverage for Defense Expenses resulting from any Claim made against a Foreign Parent Corporation, but only if and so long as: 1. such Claim results from a Wrongful Act actually or allegedly committed solely by any Insured; 2. such Insured and the Foreign Parent Corporation are represented by the same counsel in connection with such Claim; and 3. such Insured is included as a co-defendant. No Foreign Parent Corporation will, by reason of this subsection, have any greater right to coverage under this Liability Policy than any Insured. The Company has no obligation to make any payment for Loss in connection with any Claim against a Foreign Parent Corporation for any actual or alleged act, error, omission, misstatement, misleading statement, neglect or breach of duty by such Foreign Parent Corporation or any member of the board of directors, officer, employee, or functional equivalent thereof. O. EXTENDED REPORTING PERIOD At any time prior to or within 60 days after the effective date of termination or cancellation of any Liability Coverage for any reason other than nonpayment of premium, the Named Insured may give the Company written notice that it desires to purchase an Extended Reporting Period for the period set forth in ITEM 8 of the Declarations following the effective date of such termination or cancellation, regarding Claims made during such Extended Reporting Period against persons or entities who at or prior to the effective date of termination or cancellation are Insureds, but only for Wrongful Acts occurring wholly prior to the effective date of the termination or cancellation and which otherwise would be covered by such Liability Coverage, subject to the following provisions: 1. such Extended Reporting Period will not provide a new, additional or renewed limit(s) of liability; and 2. the Company’s maximum limit of liability for all Claims made during such Extended Reporting Period will be only the remaining portion of the applicable limit of liability set forth in the Declarations as of the effective date of the termination or cancellation; LIA-3001 Ed. 01-09 Printed in U.S.A. Page 8 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C The premium due for the Extended Reporting Period will equal the percentage set forth in ITEM 8 of the Declarations of the annualized premium of the applicable Liability Coverage, including the fully annualized amount of any additional premiums charged by the Company during the Policy Year prior to such termination or cancellation. The entire premium for the Extended Reporting Period will be deemed to have been fully earned at the commencement of such Extended Reporting Period. The right to elect the Extended Reporting Period will terminate unless written notice of such election, together with payment of the additional premium due, is received by the Company within 60 days of the effective date of the termination or cancellation. P. ALLOCATION 1. If Duty-to-Defend coverage is indicated in ITEM 7 of the Declarations and there is a Claim under any Liability Coverage in which the Insureds who are afforded coverage for such Claim incur an amount consisting of both Loss that is covered by such Liability Coverage and also loss that is not covered by such Liability Coverage because such Claim includes both covered and uncovered matters or covered and uncovered parties, then such covered Loss and uncovered loss will be allocated as follows: a. one hundred percent (100%) of Defense Expenses incurred by the Insureds who are afforded coverage for such Claim will be allocated to covered Loss; and b. all loss other than Defense Expense will be allocated between covered Loss and uncovered loss based upon the relative legal and financial exposures of, and relative benefits obtained in connection with the defense and settlement of the Claim by the Insured Persons, the Insured Organization, and others not insured under such Liability Coverage. In making such a determination, the Insured Organization, the Insured Persons and the Company agree to use their best efforts to determine a fair and proper allocation of all such amounts. In the event that an allocation cannot be agreed to, then the Company will be obligated to make an interim payment of the amount of Loss which the parties agree is not in dispute until a final amount is agreed upon or determined pursuant to the provisions of the applicable Liability Coverage and applicable law. 2. If Reimbursement coverage is indicated in ITEM 7 of the Declarations and there is a Claim under any Liability Coverage in which the Insureds who are afforded coverage for such Claim incur an amount consisting of both Loss that is covered by such Liability Coverage and also loss that is not covered by such Liability Coverage because such Claim includes both covered and uncovered matters or covered and uncovered parties, the Insureds and the Company agree to use their best efforts to determine a fair and proper allocation of all such amounts. In making such a determination, the parties will take into account the relative legal and financial exposures of, and relative benefits obtained in connection with the defense and settlement of the Claim by the Insured Persons, the Insured Organization, and others not insured under the applicable Liability Coverage. In the event that an allocation cannot be agreed to, then the Company will be obligated to make an interim payment of the amount of Loss which the parties agree is not in dispute until a final amount is agreed upon or determined pursuant to the provisions of the applicable Liability Coverage and applicable law. Q. CANCELLATION The Company may cancel this Liability Policy for failure to pay a premium when due, in which case twenty (20) days written notice will be given to the Named Insured, unless, payment in full is received within twenty (20) days of the Named Insured’s receipt of such notice of cancellation. The Company has the right to the premium amount for the portion of the Policy Period during which this Liability Policy was in effect. Subject to the provisions set forth in Section III. CONDITIONS K. CHANGE OF CONTROL, the Named Insured may cancel any Liability Coverage by mailing the Company written notice stating when, thereafter, not later than the Expiration Date set forth in ITEM 2 of the Declarations, such cancellation will be effective. In the event the Named Insured cancels, the earned premium will be computed in accordance with the customary short rate table and procedure. Premium adjustment may be made either at the time cancellation is effective or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation. LIA-3001 Ed. 01-09 Printed in U.S.A. Page 9 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C The Company will not be required to renew this Liability Policy upon its expiration. If the Company elects not to renew, it will provide to the Named Insured written notice to that effect at least thirty (30) days before the Expiration Date set forth in ITEM 2 of the Declarations. R. ACTION AGAINST THE COMPANY No action will lie against the Company unless there has been full compliance with all of the terms of this Liability Policy. No person or organization has any right under this Liability Policy to join the Company as a party to any action against the Insured to determine the Insured’s liability, nor may the Company be impleaded by an Insured or said Insured’s legal representative. Bankruptcy or insolvency of any Insured or an Insured’s estate does not relieve the Company of any of its obligations hereunder. S. CHANGES Only the Named Insured is authorized to make changes in the terms of this Liability Policy and solely with the Company’s prior written consent. This Liability Policy’s terms can be changed, amended or waived only by endorsement issued by the Company and made a part of this Liability Policy. Notice to any representative of the Insured or knowledge possessed by any agent or by any other person will not effect a waiver or change to any part of this Liability Policy, or estop the Company from asserting any right under the terms, conditions and limitations of this Liability Policy, nor may the terms, conditions and limitations hereunder be waived or changed, except by a written endorsement to this Liability Policy issued by the Company. T. ASSIGNMENT This Liability Policy may not be assigned or transferred, and any such attempted assignment or transfer is void and without effect unless the Company has provided its prior written consent to such assignment or transfer. U. REPRESENTATIONS By acceptance of the terms set forth in this Liability Policy, each Insured represents and agrees that the statements contained in the Application, which is deemed to be attached hereto, incorporated herein, and forming a part hereof, are said Insured’s agreements and representations, that such representations are material to the Company’s acceptance of this risk, that this Liability Policy is issued in reliance upon the truth of such representations, and embodies all agreements existing between said Insured and the Company or any of its agents. If any statement or representation in the Application is untrue with respect to any Liability Coverage, such Liability Coverage is void and of no effect whatsoever, but only with respect to: 1. any Insured Person who knew, as of the Inception Date set forth in ITEM 2 of the Declarations, that the statement or representation was untrue; 2. any Insured Organization, with respect to its indemnification coverage, to the extent it indemnifies any Insured Person referenced in 1. above; and 3. any Insured Organization, if the person who signed the Application knew that the statement or representation was untrue. Whether an Insured Person had such knowledge will be determined without regard to whether the Insured Person actually knew the Application, or any other application completed for this Liability Policy, contained any such untrue statement or representation. V. LIBERALIZATION If, during the Policy Period, the Company is required, by law or by insurance supervisory authorities of the state in which this Liability Policy was issued, to make any changes in the form of this Liability Policy, by which the insurance afforded by this Liability Policy could be extended or broadened without increased premium charge by endorsement or substitution of form, then such extended or broadened insurance will inure to the benefit of the Insured as of the date the revision or change is approved for general use by the applicable department of insurance. LIA-3001 Ed. 01-09 Printed in U.S.A. Page 10 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C W. AUTHORIZATION By acceptance of the terms herein, the Named Insured agrees to act on behalf of all Insureds with respect to the payment of premiums, the receiving of any return premiums that may become due hereunder, and the receiving of notices of cancellation, nonrenewal, or change of coverage, and the Insureds each agree that they have, individually and collectively, delegated such authority exclusively to the Named Insured; provided, that nothing herein will relieve the Insureds from giving any notice to the Company that is required under this Liability Policy. X. ENTIRE AGREEMENT The Declarations, the Application, the Liability Coverage Terms and Conditions, each Liability Coverage, and any endorsements attached thereto, constitute the entire agreement between the Company and the Insured. Y. HEADINGS The titles of the various paragraphs of this Liability Policy and its endorsements are inserted solely for convenience or reference and are not to be deemed in any way to limit or affect the provision to which they relate. LIA-3001 Ed. 01-09 Printed in U.S.A. Page 11 of 11 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COLORADO CANCELLATION AND NONRENEWAL ENDORSEMENT This endorsement modifies insurance provided under the following if applicable: Liability Policy Kidnap and Ransom Policy Identity Fraud Expense Reimbursement Policy It is agreed that: The CANCELLATION section of this policy is replaced by the following: CANCELLATION The Company may cancel this policy for failure to pay a premium when due, in which case (twenty) (20) days (number of days must equal or exceed twenty (20) days) written notice shall be given to the Named Insured or Insurance Representative, unless payment in full is received within twenty (20) days of the Named Insured or Insurance Representative’s receipt of such notice of cancellation. The Company shall have the right to the premium amount for the portion of the Policy Period during which this policy was in effect. Subject to the provisions set forth in Liability Coverage Terms and Conditions Section III. CONDITIONS K. CHANGE OF CONTROL, if applicable, the Named Insured or Insurance Representative may cancel any coverage by mailing the Company written notice stating when, thereafter, not later than the Expiration Date set forth in ITEM 2 of the Declarations, such cancellation will be effective. In the event the Named Insured or Insurance Representative cancels, the earned premium will be computed in accordance with the customary short rate table and procedure. Premium adjustment may be made either at the time cancellation is effective or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation. The Company will not be required to renew this policy upon its expiration. If the Company elects not to renew, it will provide to the Named Insured or Insurance Representative written notice to that effect (thirty) (30) days (number of days must equal or exceed thirty (30) days) before the Expiration Date set forth in ITEM 2 of the Declarations if we are nonrenewing for nonpayment of premium, or (Forty-five) (45) days (number of days must equal or exceed forty-five (45) days) in advance if we are nonrenewing for any other reason. All cancellation and nonrenewal notices will be sent by first class mail. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, exclusions or limitations of the above-mentioned policy, except as expressly stated herein. This endorsement is part of such policy and incorporated therein. Issuing Company: Travelers Casualty and Surety Company of America Policy Number: 106181662 LIA-5005 Ed. 11-07 Printed in U.S.A. Page 1 of 1 ©2008 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. LIA-4004 Rev. 09-12 ©2012 The Travelers Indemnity Company. All rights reserved. Page 1 of 1 COLORADO CHANGES ENDORSEMENT This endorsement changes the following: Liability Coverage Terms and Conditions It is agreed that: The following replaces section III. CONDITIONS, O. EXTENDED REPORTING PERIOD, of the Liability Terms and Conditions: O. EXTENDED REPORTING PERIOD At any time prior to or within 60 days after the effective date of effective date of termination or cancellation of any Liability Coverage, for any reason other than nonpayment of premium, the Named Insured may give the Company written notice that it desires to purchase an Extended Reporting Period offered by the company. Such offering will include a period of 12 months, for all Liability Coverages that are part of this Liability Policy, following the effective date of termination or cancellation of any Liability Coverage, regarding Claims made during such Extended Reporting Period against persons or entities who at or prior to the effective date of effective date of termination or cancellation of any Liability Coverage are Insureds , but only for Wrongful Acts occurring wholly prior to the effective date of the effective date of termination or cancellation of any Liability Coverage which otherwise would be covered by such Liability Coverage , subject to the following provisions: 1. such Extended Reporting Period will not provide a new, additional or renewed limit(s) of liability; 2. the Company’s maximum limit of liability for all Claims made during such Extended Reporting Period will be only the remaining portion of the applicable limit of liability set forth in the Declarations as of the effective date of the termination or cancellation; and 3. such Extended Reporting Period will not be available if the Named Insured or any other Insured qualifies as an exempt commercial policyholder. The premium due for the Extended Reporting Period will equal the percentage set forth in ITEM 8 of the Declarations of the annualized premium of the applicable Liability Coverage, including the fully annualized amount of any additional premiums charged by the Company during the Policy Year prior to effective date of effective date of termination or cancellation of any Liability Coverage; provided, the additional premium for the Extended Reporting Period will not exceed 200% of the annualized premium of the applicable Liability Coverage. The entire premium for the Extended Reporting Period will be deemed to have been fully earned at the commencement of such Extended Reporting Period. The right to elect the Extended Reporting Period will terminate unless written notice of such election, together with payment of the additional premium due, is received by the Company within 60 days of the effective date of termination or cancellation of any Liability Coverage. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, exclusions or limitations of the above-mentioned policy, except as expressly stated herein. This endorsement is part of such policy and incorporated therein. Policy Number: 106181662 Issuing Company: Travelers Casualty and Surety Company of America DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS IS A CLAIMS-MADE COVERAGE WITH DEFENSE EXPENSES INCLUDED IN THE LIMIT OF LIABILITY. PLEASE READ ALL TERMS CAREFULLY. I. INSURING AGREEMENTS A. MISCELLANEOUS PROFESSIONAL LIABILITY The Company will pay on behalf of the Insured, Loss for any Claim first made during the Policy Period, or if exercised, during the Extended Reporting Period or Run-Off Extended Reporting Period for a Wrongful Act. B. The Company will reimburse the Insured for Disciplinary Proceeding Expenses incurred in responding to a Disciplinary Proceeding commenced during the Policy Period, or if exercised, during the Extended Reporting Period or Run-Off Extended Reporting Period. The maximum amount available for Disciplinary Proceeding Expenses will be $25,000 for each Policy Period, regardless of the number of Disciplinary Proceedings, and any payment made hereunder will not be subject to a Retention and will not reduce any applicable limit of liability. II. DEFINITIONS Wherever appearing in this Liability Coverage, the following words and phrases appearing in bold type have the meanings set forth in this section II. DEFINITIONS: A. Claim means: 1. a written demand for monetary damages or non-monetary relief; 2. a civil proceeding commenced by service of a complaint or similar pleading; 3. a formal administrative or regulatory proceeding, other than a Disciplinary Proceeding, commenced by filing of a notice of charges, formal investigative order, service of summons, or similar document; 4. an arbitration, mediation, or other alternative dispute resolution proceeding if the Insured is obligated to participate in such proceeding or if the Insured agrees to participate in such proceeding, with the Company’s written consent, such consent not to be unreasonably withheld; or 5. a written request to toll or waive a statute of limitations relating to a potential civil or administrative proceeding, against an Insured for a Wrongful Act. A Claim is deemed to be made on the earliest date that any Executive Officer first receives written notice of such Claim. However, if any Insured Person who is not an Executive Officer first receives written notice of a Claim during the Policy Period, but no Executive Officer receives written notice of such Claim until after the Policy Period has expired, then such Claim will be deemed to have been made on the date such Insured Person first received written notice of the Claim. B. Disciplinary Proceeding means any proceeding by a regulatory or disciplinary official, board, or agency to investigate charges of professional misconduct in the performance of Professional Services. C. Disciplinary Proceeding Expenses means reasonable and necessary fees, costs, and expenses incurred by any Insured to investigate, defend, or appeal any Disciplinary Proceeding, provided that Disciplinary Proceeding Expenses do not include: 1. fines, penalties, or sanctions assessed against any Insured; or 2. expenses, salaries, wages, benefits, or overhead of, or paid to, any Insured. MPL-3001 Ed. 01-09 Printed in U.S.A. Page 1 of 5 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C D. Employee means a natural person whose labor or service is engaged by and directed by the Insured Organization and: 1. who is on the payroll of the Insured Organization, including: a. any in-house general counsel of the Insured Organization; and b. any other full-time, part-time, temporary, and seasonal workers; or 2. whose services have been leased to the Insured Organization. Independent contractors are not Employees. The status of an individual as an Employee will be determined as of the date of the Wrongful Act. E. Executive Officer means a member of the board of directors, officer, natural person partner, principal, risk manager, or LLC Manager, in-house general counsel of the Insured Organization or a functional equivalent thereof. F. Insured means the Insured Persons and the Insured Organization. G. Insured Organization means the Named Insured, any Subsidiary, and any such entity as debtor in possession, as such term is used in Chapter 11 of the United States of America Bankruptcy Code, as amended, or the equivalent of a debtor in possession under any applicable foreign law. H. Insured Person means any natural person who was, is, or becomes a member of the board of directors, officer, Employee, partner, or LLC Manager of the Insured Organization for Wrongful Acts committed in the discharge of his or her duties as such. In the event of the death, incapacity, or bankruptcy of an Insured Person, any Claim against the estate, heirs, legal representatives, or assigns of such Insured Person for a Wrongful Act of such Insured Person will be deemed to be a Claim against such Insured Person. I. Loss means Defense Expenses and money which an Insured is legally obligated to pay as a result of a Claim, including settlements, judgments, compensatory damages, punitive or exemplary damages if insurable under the applicable law most favorable to the insurability of punitive or exemplary damages, prejudgment and postjudgment interest, and legal fees and expenses awarded pursuant to a court order or judgment. Loss does not include: 1. civil or criminal fines, sanctions, liquidated damages, payroll or other taxes, penalties, the multiplied portion of any multiplied damage award, any return, withdrawal, restitution or reduction of professional fees, profits, or other charges, or damages or types of relief deemed uninsurable under applicable law; 2. amounts that constitute the cost of complying with any order for, grant of, or agreement to provide, injunctive or non-monetary relief; or 3. any amount allocated to non-covered loss pursuant to section III. CONDITIONS. P. ALLOCATION of the Liability Coverage Terms and Conditions. J. Personal Injury means: 1. false arrest, detention, or imprisonment, or malicious prosecution; 2. the publication or utterance of libel, slander, or other defamatory or disparaging material; 3. invasion, infringement, or interference with the rights of privacy; 4. wrongful entry or eviction; or 5. invasion of the right of private occupancy. K. Professional Services means only those services performed for others set forth in ITEM 5 of the Declarations. L. Subsidiary means: 1. any corporation, partnership, limited liability company, or other entity organized under the laws of any jurisdiction in which, on or before the Inception Date set forth in ITEM 2 in the Declarations, the Named Insured owns, directly or indirectly, more than 50% of the outstanding securities or voting rights representing the right to elect, appoint, or exercise a majority control over such MPL-3001 Ed. 01-09 Printed in U.S.A. Page 2 of 5 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C entity's board of directors, board of trustees, board of managers, natural-person general partners, or functional equivalent; and 2. subject to the provisions set forth in section III. CONDITIONS L. ACQUISITIONS of the Liability Coverage Terms and Conditions, any entity that the Insured Organization acquires or forms during the Policy Period in which the Named Insured owns, directly or indirectly, more than 50% of the outstanding securities or voting rights representing the right to elect, appoint, or exercise a majority control over such entity's board of directors, board of trustees, board of managers, natural-person general partners or functional equivalent. M. Wrongful Act means any actual or alleged act, error, omission, misstatement, misleading statement, or breach of duty or neglect by or on behalf of, or any matter asserted against, an Insured in the rendering of or failure to render Professional Services. All Related Wrongful Acts are a single Wrongful Act for purposes of this Liability Coverage, and all Related Wrongful Acts will be deemed to have occurred at the time the first of such Related Wrongful Acts occurred whether prior to or during the Policy Period. III. EXCLUSIONS A. EXCLUSIONS APPLICABLE TO ALL LOSS 1. The Company will not be liable for Loss for any Claim for any damage to, destruction of, loss of, or loss of use of, any tangible property including damage to, destruction of, loss of, or loss of use of, tangible property that results from inadequate or insufficient protection from soil or ground water movement, soil subsidence, mold, toxic mold, spores, mildew, fungus, or wet or dry rot. 2. The Company will not be liable for Loss for any Claim for any bodily injury, sickness, disease, death, loss of consortium, emotional distress, mental anguish, humiliation, or loss of reputation of any person. 3. The Company will not be liable for Loss for any Claim: a. based upon or arising out of the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, or escape of any Pollutant; b. based upon or arising out of any request, demand, order, or statutory or regulatory requirement that any Insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, any Pollutant; or c. brought by or on behalf of any governmental authority because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, or neutralizing, or in any way responding to, or assessing the effects of, any Pollutant. 4. The Company will not be liable for Loss for any Claim based upon or arising out of any fact, circumstance, situation, event or Wrongful Act underlying or alleged in any prior or pending civil, criminal, administrative, or regulatory proceeding against any Insured as of the applicable Prior and Pending Proceeding Date set forth in ITEM 5 of the Declarations for this Liability Coverage. 5. The Company will not be liable for Loss for any Claim based upon or arising out of any Wrongful Act occurring prior to any applicable Retroactive Date set forth in ITEM 5 of the Declarations for this Liability Coverage. 6. The Company will not be liable for Loss for any Claim for any fact, circumstance, situation, or event that is or reasonably would be regarded as the basis for a claim about which any Executive Officer had knowledge prior to the applicable Continuity Date set forth in ITEM 5 of the Declarations for this Liability Coverage. 7. The Company will not be liable for Loss for any Claim based upon or arising out of any fact, circumstance, situation, event or Wrongful Act which, before the Inception Date set forth in ITEM 2 of the Declarations, was the subject of any notice of claim or potential claim given by or on behalf of any Insured under any policy of insurance of which this Liability Coverage is a direct renewal or replacement or which it succeeds in time. 8. The Company will not be liable for Loss for any Claim for any violation of responsibilities, duties, or obligations under any law concerning Social Security, unemployment insurance, workers’ compensation, disability insurance, or any similar or related federal, state, or local law or MPL-3001 Ed. 01-09 Printed in U.S.A. Page 3 of 5 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C regulation, or for any violation of the Worker Adjustment and Retraining Notification Act (WARN), Occupational Safety and Health Act (OSHA), Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), the National Labor Relations Act (NLRA), Fair Labor Standards Act (FLSA), or amendments thereto or regulations promulgated thereunder, or any similar or related federal, state or local law or regulation. 9. The Company will not be liable for Loss for any Claim for any violation of responsibilities, duties or obligations under the Employee Retirement Income Security Act of 1974 (ERISA), including amendments thereto and regulations promulgated thereunder, or any similar or related federal, state, or local law or regulation; or for an lnsured's failure or refusal to establish, contribute to, pay for, insure, maintain, provide benefits pursuant to, or enroll or maintain the enrollment of an Employee or dependent in, any employee benefit plan, fund, or program, including contracts or agreements which are not subject to the provisions of ERISA. 10. The Company will not be liable for Loss for any Claim by or on behalf of any spouse or person qualifying as a domestic partner under the provisions of any applicable federal, state, or local law, of any Insured. 11. The Company will not be liable for Loss for any Claim by or on behalf of, or in the name or right of, any Insured or any entity that at the time the Wrongful Act is committed, or the date the Claim is made,: a. is owned, operated, or controlled by any Insured; b. owns, operates, or controls any Insured; or any Insured is a member of the board of directors, officer, member of the board of managers, partner or principal stockholder. 12. The Company will not be liable for Loss for any Claim based upon or arising out of any Wrongful Act by a Subsidiary or any related Insured Person occurring at any time during which such entity was not a Subsidiary. 13. The Company will not be liable for Loss for any Claim for: a. plagiarism; or b. misappropriation, infringement, or violation of copyright, patent, trademark, service mark, trade name, trade secret or any other intellectual property rights. 14. The Company will not be liable for Loss for any Claim based upon or arising out of the liability of others assumed by an Insured under any contract or agreement, whether oral or written, except to the extent that the Insured would have been liable in the absence of such contract or agreement. 15. The Company will not be liable for Loss for any Claim based upon or arising out of any Personal Injury. 16. The Company will not be liable for Loss for any Claim based upon or arising out of any discrimination, humiliation, harassment, or misconduct by an Insured because of race, creed, color, age, gender, sex, sexual preference or orientation, national origin, religion, disability, handicap, marital status, or any other class protected under federal, state, local, or other law. 17. The Company will not be liable for Loss for any Claim based upon or arising out of any commingling of, or failure to segregate, funds or assets by any Insured. B. EXCLUSIONS APPLICABLE TO LOSS, OTHER THAN DEFENSE EXPENSES 1. The Company will not be liable for Loss, other than Defense Expenses, for any Claim based upon or arising out of any Insured: a. committing any criminal, dishonest, or fraudulent act; b. committing any willful violation of any statute, rule, or law; or c. gaining any profit, remuneration, or advantage to which such Insured was not legally entitled, provided that this exclusion will not apply unless a final adjudication establishes that such Insured committed such criminal, dishonest, or fraudulent act , or willful violation of statute, rule, or law, or gained such profit, remuneration, or advantage to which such Insured was not legally entitled. MPL-3001 Ed. 01-09 Printed in U.S.A. Page 4 of 5 ©2009 The Travelers Companies, Inc. All Rights Reserved c. DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C IV. SEVERABILITY OF EXCLUSIONS No conduct of any Insured Person will be imputed to any other Insured Person to determine the application of any of the Exclusions set forth in section III. EXCLUSIONS. V. CONDITIONS A. RETENTION This section V. CONDITIONS A. RETENTION supplements and does not replace section III. CONDITIONS B. RETENTION of the Liability Coverage Terms and Conditions. If any Claim alleges that an Insured committed any criminal, dishonest or fraudulent act or omission or any willful violation of any statute, rule, or law, or gained any profit, remuneration, or advantage to which such Insured was not legally entitled, then no retention will apply to Defense Expenses resulting from such Claim, and the Company will reimburse the Insured Organization for any Defense Expenses paid by the Insured Organization in connection with any such Claim, if: 1. with respect to such Claim, there is a final adjudication of no liability obtained prior to or during trial, in favor of all Insureds, by reason of a motion to dismiss or a motion for summary judgment or any similar motion or process, after exhaustion of all appeals, or a final judgment of no liability obtained after trial, in favor of all Insureds, after exhaustion of all appeals; or such Claim is dismissed or there is a stipulation to dismiss such Claim with prejudice and without the payment of any monetary consideration by the Insureds. In no event will a settlement of a Claim be considered a final adjudication of no liability for purposes of this subsection. As a condition of any reimbursement of Defense Expenses as set forth above, the Company may require a written undertaking on terms and conditions satisfactory to the Company guaranteeing the repayment of such amounts in the event that such Claim is reinstituted after payment by the Company. B. SETTLEMENT The Company may, with the written consent of the Insured, make such settlement or compromise of any Claim as the Company deems expedient. In the event that the Company recommends an offer of settlement (a “Settlement Offer”) of any Claim which is acceptable to the claimant(s), and if the Insured refuses to consent to such Settlement Offer, the Insured will be solely responsible for 30% of all Defense Expenses incurred or paid by the Insured after the date the Insured refused to consent to the Settlement Offer, and the Insured will also be responsible for 30% of all Loss , other than Defense Expenses, in excess of the Settlement Offer, provided that the Company’s liability under this Liability Coverage for such Claim will not exceed the applicable limit of liability. C. LIMIT OF LIABILITY This section V. CONDITIONS C. LIMIT OF LIABILITY supplements and does not replace section III. CONDITIONS C. LIMITS OF LIABILITY of the Liability Coverage Terms and Conditions. The Company’s maximum limit of liability for Loss, including Defense Expenses, for each Claim will not exceed the applicable limit of liability for each Claim set forth in ITEM 5 of the Declarations for this Liability Coverage, regardless of when payment is made and regardless of when an Insured’s legal obligation with regard thereto arises or is established. D. OTHER INSURANCE This Liability Coverage applies as excess insurance over, and will not contribute with any other valid and collectible insurance available to the Insured, including any insurance under which there is a duty to defend, unless such insurance is written specifically excess of this Liability Coverage by reference in such other policy to the Policy Number of this Liability Policy. This Liability Coverage will not be subject to the terms of any other insurance. MPL-3001 Ed. 01-09 Printed in U.S.A. Page 5 of 5 ©2009 The Travelers Companies, Inc. All Rights Reserved 2. DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WARRANTY OR GUARANTEE EXCLUSION ENDORSEMENT This endorsement modifies the following: Miscellaneous Professional Liability It is agreed that: The following is added to section III. EXCLUSIONS, A. EXCLUSIONS APPLICABLE TO ALL LOSS: The Company will not be liable for Loss for any Claim based upon or arising out of any warranty or guarantee by an Insured. MPL-7017 Ed. 01-09 Printed in U.S.A. Page 1 of 1 ©2009 The Travelers Companies, Inc. All Rights Reserved Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, exclusions or limitations of the above-mentioned policy, except as expressly stated herein. This endorsement is part of such policy and incorporated therein. Issuing Company: Travelers Casualty and Surety Company of America Policy Number: 106181662 DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMPUTER SERVICES EXCLUSION ENDORSEMENT This endorsement modifies the following: Miscellaneous Professional Liability It is agreed that: The following is added to section III. EXCLUSIONS, A. EXCLUSIONS APPLICABLE TO ALL LOSS: The Company will not be liable for Loss for any Claim based upon or arising out of the processing of electronic data, including: a. the failure of any security system designed, sold, or installed by an Insured to prevent unauthorized access to, or unauthorized use of, an electronic system or program; b. the transfer of funds, money, or securities to or from any bank or financial institution; c. any faulty workmanship or faults, defects, or errors in the design of any electronic data processing system or product that was known to an Insured prior to the delivery of such system or product to the designated user; d. the withdrawal or recall of an Insured’s electronic data processing product or system, whether such product or system stands alone or is incorporated into or part of another product or system that is withdrawn or recalled; e. the mechanical or electrical failure, breakdown, or defect of any hardware; or f. any charge, surge, brownout, blackout, short circuit, over-voltage, induction, or fluctuation in electric power. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, exclusions or limitations of the above-mentioned policy, except as expressly stated herein. This endorsement is part of such policy and incorporated therein. Issuing Company: Travelers Casualty and Surety Company of America Policy Number: 106181662 MPL-7027 Ed. 01-09 Printed in U.S.A. Page 1 of 1 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. INTELLECTUAL PROPERTY COVERAGE ENDORSEMENT This endorsement modifies the following: Miscellaneous Professional Liability It is agreed that: 1. The following replaces section II. DEFINITIONS, M. Wrongful Act: Wrongful Act means any: 1. actual or alleged act, error, omission, misstatement, misleading statement, breach of duty or neglect, or plagiarism; or 2. misappropriation, infringement, or violation of copyright, service mark, trade name, or any other intellectual property rights, by or on behalf of, or any matter asserted against, an Insured in the rendering of or failure to render Professional Services.. 2. The following replaces section III. EXCLUSIONS, A.EXCLUSIONS APPLICABLE TO ALL LOSS, 13.: 13. The Company will not be liable for Loss for any Claim for any misappropriation, infringement or violation of any patent or trade secret. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, exclusions or limitations of the above-mentioned policy, except as expressly stated herein. This endorsement is part of such policy and incorporated therein. Issuing Company: Travelers Casualty and Surety Company of America Policy Number: 106181662 MPL-7032 Ed. 01-09 Printed in U.S.A. Page 1 of 1 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ABSOLUTE PROPERTY DAMAGE EXCLUSION ENDORSEMENT This endorsement modifies the following: Miscellaneous Professional Liability It is agreed that: The following replaces section III. EXCLUSIONS, A. EXCLUSIONS APPLICABLE TO ALL LOSS, 1.: 1. The Company will not be liable for Loss for any Claim based upon or arising out of any damage to, destruction of, loss of, or loss of use of, any tangible property including damage to, destruction of, loss of, or loss of use of, tangible property that results from inadequate or insufficient protection from soil or ground water movement, soil subsidence, mold, toxic mold, spores, mildew, fungus, or wet or dry rot. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, exclusions or limitations of the above-mentioned policy, except as expressly stated herein. This endorsement is part of such policy and incorporated therein. Issuing Company: Travelers Casualty and Surety Company of America Policy Number: 106181662 MPL-7040 Ed. 01-09 Printed in U.S.A. Page 1 of 1 ©2009 The Travelers Companies, Inc. All Rights Reserved DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. LIA-10001 Ed. 06-10 Printed in U.S.A. ©2010 The Travelers Companies, Inc. All Rights Reserved Page 1 of 2 SETTLEMENT CONDITION ENDORSEMENT This endorsement modifies the following when indicated below by : It is agreed that: The following replaces B. SETTLEMENT of the CONDITIONS section of the Liability Coverage: B. SETTLEMENT The Company may, with the written consent of the Insured, make such settlement or compromise of any Claim as the Company deems expedient. In the event that the Company recommends an offer of settlement (a “Settlement Offer”) of any Claim which is acceptable to the claimant(s), and if the Insured refuses to consent to such Settlement Offer, the Insured will be solely responsible for twenty percent (20%) of all Defense Expenses incurred or paid by the Insured after the date the Insured refused to consent to the Settlement Offer, and the Insured will also be responsible for twenty percent (20%) of all Loss, other than Defense Expenses, in excess of the Settlement Offer, provided that the Company's liability under this Liability Coverage for such Claim does not exceed the remaining applicable limit of liability. Employment Practices Liability The following replaces section IV. CONDITIONS, A. SETTLEMENT of the Liability Coverage: A. SETTLEMENT 1. The Company may, with the written consent of the Insured, make such settlement or compromise of any Claim as the Company deems expedient. In the event that: a. the Insured and the party bringing a Claim hereunder consent to the first settlement offer recommended by the Company (the “Settlement Offer”) within thirty (30) days of being made aware of such offer by the Company; and Issuing Company: Travelers Casualty and Surety Company of America Policy Number: 106181662 The following replaces B. SETTLEMENT of the CONDITIONS section of the Liability Coverage: B. SETTLEMENT The Company may, with the written consent of the Insured, make such settlement or compromise of any Claim as the Company deems expedient. In the event that the Company recommends an offer of settlement (a “Settlement Offer”) of any Claim which is acceptable to the claimant(s), and if the Insured refuses to consent to such Settlement Offer, the Insured will be solely responsible for twenty percent (20%) of all Defense Expenses incurred or paid by the Insured after the date the Insured refused to consent to the Settlement Offer, and the Insured will also be responsible for twenty percent (20%) of all Loss, other than Defense Expenses, in excess of the Settlement Offer, provided that the Company's liability under this Liability Coverage for such Claim does not exceed the remaining applicable limit of liability. Financial Institution Professional Liability DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C LIA-10001 Ed. 06-10 Printed in U.S.A ©2010 The Travelers Companies, Inc. All Rights Reserved Page 2 of 2 b. the Insured will be solely responsible for twenty percent (20%) of all Defense Expenses incurred or paid by the Insured after the date the Insured refused to consent to the Settlement Offer, and the Insured will also be responsible for twenty percent (20%) of all Loss , other than Defense Expenses, in excess of the Settlement Offer, provided that the Company’s liability under this Liability Coverage for such Claim will not exceed the remaining applicable limit of liability. Fiduciary Liability The following replaces section V. CONDITIONS, A. SETTLEMENT of the Liability Coverage: A. SETTLEMENT The Company may, with the written consent of the Insured, make such settlement or compromise of any Claim as the Company deems expedient. In the event that the Company recommends an offer of settlement of any Claim which is acceptable to the claimant(s) (a “Settlement Offer”), and if the Insured refuses to consent to such Settlement Offer, the Insured will be solely responsible for twenty percent (20%) of all Defense Expenses incurred or paid by the Insured after the date the Insured refused to consent to the Settlement Offer, and the Insured will also be responsible for twenty percent (20%) of all Loss, other than Defense Expenses, in excess of the Settlement Offer, provided that the Company’s liability under this Liability Coverage for such Claim will not exceed the remaining applicable limit of liability. Miscellaneous Professional Liability The following replaces section V. CONDITIONS, B. SETTLEMENT of the Liability Coverage: B. SETTLEMENT The Company may, with the written consent of the Insured, make such settlement or compromise of any Claim as the Company deems expedient. In the event that the Company recommends an offer of settlement (a “Settlement Offer”) of any Claim which is acceptable to the claimant(s), and if the Insured refuses to consent to such Settlement Offer, the Insured will be solely responsible for twenty percent (20%) of all Defense Expenses incurred or paid by the Insured after the date the Insured refused to consent to the Settlement Offer, and the Insured will also be responsible for twenty percent (20%) of all Loss, other than Defense Expenses, in excess of the Settlement Offer, provided that the Company’s liability under this Liability Coverage for such Claim will not exceed the remaining applicable limit of liability. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, exclusions or limitations of the above-mentioned policy, except as expressly stated herein. This endorsement is part of such policy and incorporated therein. T b. the amount of such Settlement Offer: i. is less than the remaining applicable limit of liability available at the time; and ii. combined with Defense Expenses incurred with respect to such Claim, exceeds the Retention; the Retention will be retroactively reduced by ten percent (10%) with respect to such Claim. 2. If the Insured does not consent to the Settlement Offer within thirty (30) days of being made aware of such offer by the Company: a. the Retention will not be reduced as provided in paragraph 1. above even if consent is given to the same or subsequent Settlement Offer; and DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. MPL-7116 Ed. 09-10 Printed in U.S.A. ©2010 The Travelers Indemnity Company. All Rights Reserved. Page 1 of 1 DELETE PERSONAL INJURY EXCLUSION ENDORSEMENT This endorsement modifies the following coverage: Miscellaneous Professional Liability It is agreed that: Section III. EXCLUSIONS, A. EXCLUSIONS APPLICABLE TO ALL LOSS, 15. is deleted. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, exclusions or limitations of the above-mentioned policy, except as expressly stated herein. This endorsement is part of such policy and incorporated therein. Issuing Company: Travelers Casualty and Surety Company of America Policy Number: 106181662 DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ACF-7006 Ed. 05-11 © 2011 The Travelers Indemnity Company. All rights reserved. Page 1 of 1 REMOVAL OF SHORT-RATE CANCELLATION ENDORSEMENT This endorsement changes the following: It is agreed that: In any cancellation, termination or non-renewal provision, any reference to computing a premium on a short rate basis is replaced with a reference to computing such premium on a pro-rata basis. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, exclusions or limitations of the above-mentioned policy, except as expressly stated herein. This endorsement is part of such policy and incorporated therein. Miscellaneous Professional Liability Policy Number: 106181662 Issuing Company: Travelers Casualty and Surety Company of America DocuSign Envelope ID: D184C298-1214-453C-BBF7-6E00AF3B083C