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HomeMy WebLinkAboutresolution.council.027-21RESOLUTION #27 (Series of 2021) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT AMENDMENT BETWEEN THE CITY OF ASPEN AND MOUNTAIN WEST SERIES OF LOCKTON COMPANIES, LLC AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT AMENDMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract amendment between the City of Aspen and Mountain West Series of Lockton Companies, LLC, a true and accurate copy of which is attached hereto as "Exhibit A"• NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves the contract amendment between the City of Aspen and Mountain West Series of Lockton Companies, LLC, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said contract amendment on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 26th day of March 9, 2021. jwfw�- Torre, Mayor I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held March 9, 2021. Nicole Henning, City Clerk DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 Lain West Series of Lockton Companies LLC (existing contracted included) fit DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 rain West Series of Lockton Companies LLC (existing contracted included) Table of contents Marketingsummary ............................................................................................................................................3 Premium — rate — exposure summary...........................................................................................................4 Builder's risk...........................................................................................................................................................6 Generalliability......................................................................................................................................................8 Excessliability.....................................................................................................................................................11 Importantissues................................................................................................................................................14 Acknowledgement.......................................................................................................................................... 16 Lockton Companies thanks you for the opportunity to discuss your insurance and risk management program. This summary is a brief overview of that program and is based on the exposure information you provided. Please refer to the policies for complete terms, conditions, limitations, definitions, and exclusions. Higher limits may be available upon request. Lockton Companies does not guarantee, or make any representation in regard to, and expressly disclaims responsibility for, the financial condition of insurance companies with which we place business. Any rating information contained in this document has been obtained by a third -party rating agency, and we do not represent or warrant its accuracy. City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 2 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 (existing contracted included) Lain West Series of Lockton Companies LLC Marketing .summary Li ne of cove ra 0 e Builder's risk/installation floater 111SUrance carrier American Alternative Insurance Cc Aspen SIns Cc AXIS SkirpM Ins Cc Crum & Forster Ins Cc Endurance American §Eerialty, Guildvom Nadonal iris Co Interrtalioaak Ins Ca of Hannover SE Ironshore Specialty Ins Cc LeKIngton Ins Co Uo 's of London - Alesco llo 's of London - AmRisc U 's of London - HIgNand Uo d's of London - RiskSmktfl United Fire and Casual Co Westchester Fire Ins Cc Westport Ins Cc Zurich American Ins Cc Wholesaler Brown and Riding Brown and R.Idling Brown and RWkV Brown and Riding Brown and RidJng Brown and Rtdiog Brown and Aidinq Brown and Riding Brown and RidiFV Brown and Riding Brown and Riding Brown and Riding Brotwt and Wallow Brown and Ridirig Brown and Riding Brown and AldIng Brown and Ridiml Quoted or declined Pending Pendirg Declined Declined Pending Dedincd D(Kimed Declined Pending Periding Quoted Pendirg Du'dined Pending Indicated Pending Declined Notes AKA Safehold Values below threshold Wildfire Exposure / No appetite for Modular AKA Sam Wildfire Exposure No appetite for Modular No appetite for "garden style" exposure No appetile for Modular Up to $20M Quotashare Capacity. $310k base prefniurn AKA Swiss Re TIV too large to consider capsipeclialty RTSpecialty quoted Crum & Forster/ FirstUtn:ury RTSpecially Declined Unable to write residential in CO Houston Casualty RT Specafty Declined Unable to write residential in CO Similar to CapSpeciality, but no excess Hudson RT Specialty Quoted attachment liability ISG RT SWiafty Indication only S751.580 Premium (General Nldrkel RT 5 ecia I ty Declined unable to write r"idential in CO Unable to write Primary, but quoted Navigators RT Specialty Declined Excess Starr Companies RT Sperially Declined Unable to write residential in CO Venture Underwriter RT SparLalty Declined Not able to Compete with pricinri Amtrust RT Specialty Declined Unable to write residential in CO Aa en AT specially Declined Unable to write residential In CO ASe ri spulally RT Speclalty quoted Sxl0 Layer as a QtiWA are Partner AWAC RTSpecialty Declinled Unable to Write FC51de0li1l In CO Axis RTSpecially Declined Unable to write reslderiMl in CO ealkley RT Spccjally Declined Unable to write residential in CO Berkshire Halitaway RT Speclally Declined Unable to write frame in CO Brit Global Spc6dty RT Specialty Declined Unable to write residential in CO Lead $3M Excess and Upper $5x$8M CapSpecialty, RT Specialty Quoted Excess Needed to review revised Geotech and Chaucer/London RT Specialty Declined could not wnfunn to lime reslri[lfnn5 Oubb Cuslorn Wesleliester RT SpecialSpocia4 Aectined Unable to write residenWl. in CO Requires minimum of 25M attachment Crum & Forster / First Mercury RT Specially Declined point Umbrell/excess liability Endurance RTSpecialty Declined Unable to write residential in CO Looking to secure support as 5x10 Everest RT Specialty Pending Quotashare Partner Gray RT Sper.Wtv Declined Unable to write resldential In CO Guide One RT Spedalty quoted 4th Layer Gulllord/&irfit Ion RT Spec [alt Declined Unable to write Hanle in CO HDI Global Energy RT Spec 411y Declined Unable to write residential in CO Houston Casualty RT Spec-ohy Declined Unable to write residential in CO Hudson RT SpecIally Declined Unable to write frame in CO Liberty International/lfanshore RT Spa dally Declined Unable to write residential in CO Markel RTS ecialt Declined Unable to write residential in CO Nav' atats RT Specialty Quoted Sx5 Fxoem Scoltsdaie RT Specially Declined Unable to write residential in CO Starr indemnity RT Specialty Declined Unable to write residential in CO Venture underwriters RT SpecialtySpeciaity Declined Cannot offer standalone excess on wra a XL Specialty RTSpecialty 0.Clioed Unable to write residential in CO City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 3 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 Lain West Series of Lockton Companies LLC (existing contracted included) Premium — rate — exposure summary Co Builder's risk/installation floater . premium $291,506 Average rate per $100 $0.65 Surplus lines tax and fee (3%) $29,088 General liability $585,000 Surplus lines tax and fee (3%) $17,550 Hard costs $40,135,686 Average rate per $1,000 $14.58 Lead excess liability (30) Surplus lines tax and fee (3%) Y` $495,000 $14,850 Excess liability exposure basis Hard costs Average rate per $1,000 $12.33 2nd Layer excess liability (50) $405,000 Surplus lines tax and fee (39/6) $12,150 Excess liability exposure basis Hard costs Average rate per $1,000 $10.0908 3'd Layer excess liability (5x8) $360,000 Surplus lines tax and fee (3%) $10,800 Excess liability exposure basis Hard costs Average rate per $1,000 $8.97 0 Layer excess liability (3x13) $175,000 Surplus lines tax and fee (3%) $5,250 Excess liability exposure basis Hard costs $4.36 Average rate per $1,000 Total Other program costs Lockton Service Fee Grand total Notes: • Premiums include all taxes and fees • Optional terrorism coverage: o OCIP: $95,224 o Builder's Risk: $7,139 City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 sz,401,19+4 + $7,139 for optional terrorism in Builder's Risk = $2,408,333 total $97,500 additional fees. 52,498,694 The Lockton Service Fee of $97,500 is already included in the existing contract which is appended to the back of this proposal and is not part of the additional fees being added with this amendment. 4 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 lain West Series of Lockton Companies LLC (existing contracted included) City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 5 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 Lain West Series of Lockton Companies LLC (existing contracted included) DocuSign Envelope ID: 4B166C14-EAC4-4F49-B6E4-60FBA4E16890 Lain West Series of Lockton Companies LLC (existing contracted included) Builder's risk This summary is a brief overview of coverage. Please refer to the policies for complete terms and conditions. Higher limits may be available upon request. Description (what is covered specifically in policy) 79 for -sale affordable condominiums in 8, 2-3 story, wood frame townhome buildings constructed on a conditional crawl space with a full slab on grade with interior sprinklers and parking Territory (United States of America, Puerto Rico and Canada) United States — Colorado Wood frame $42,893,797 Transit $2,000,000 Temporary location $2,000,000 Named storm Hail/windstorm $42,893,797 $42,893,797 Flood $25,000,000 Earth movement $25,000,000 Interior water damage $10,000,000 Soft costs $2,178,679 Special Deductibles All other perils $25,000 Flood $25,000 Earthquake/earth movement $25,000 Named storm Soft cost waiting period Water damage 1%VARTOL/$100,000 minimum 7 days $100,000 City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 7 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 Lain West Series of Lockton Companies LLC (existing contracted included) Coverage highUghts Accounts Receivable Cold Testing $1,000,000 Included Extra Expense / Expediting Expense $250,000 Debris Removal 25% of Loss / $5M Max Escalation Clause 105% Fine Arts $500,000 Fire Department Charges $250,000 Mold & Fungus Remediation $15,000 Offsite Temporary Storage $2,000,000 Ordinance or Law B&C 20% per building / $1 M Max Plans & Blueprints $1,000,000 f Pollution & Contamination Clean-up $250,000 Professional Fees $100,000 Property In Transit $2,000,000 Temporary Works $250,000 Trees, Plants, Shrubs & Landscaping Materials $100,000 ($25,000 per item) City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 8 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 (existing contracted included) Lain West Series of Lockton Companies LLC General liability This summary is a brief overview of coverage. Please refer to the policies for complete terms and conditions. Higher limits may be available upon request. Coverage item Amount/limit/note General aggregate $2,000,000 Products -completed operations aggregate $2,000,000 Personal and advertising injury $2,000,000 Bodily injury and property damage $2,000,000 Damages to premises rented to you Excluded Medical expense Excluded Per occurrence $50,000 Applies to damages and defense costs Yes Deductible applies to Bodily Injury / Property Damage Exposure( Hard costs $40,135,686 N-200 (09/16) WHAT TO DO IF YOU HAVE A CLAIM OR POTENTIAL CLAIM OR INCIDENT IPG 001 04 16 Common Declarations IPG 007 04 16 Policy Coverage Part Form Schedule IPG 003 04 16 Commercial General Liability Declarations IPG 008 04 16 Commercial General Liability Coverage Form Schedule CGE 071 03 15 Service of Suit IL 00 17 11 98 Common Policy Conditions CG 24 04 12 19 Waiver of Transfer of Rights of Recovery Against Others to Us (Waiver of Subrogation) CGE 126 03 15 Amendment - Minimum Earned Premium IL P 001 01 04 U.S. Treasury Department's Office of Foreign Assets Control ("OFAC") Advisory Notice to Policyholders IL 00 21 09 08 Nuclear Energy Liability Exclusion Endorsement (Broad Form CG 20 01 12 19 Primary and Noncontributory - Other Insurance Condition CG 21 87 01 15 Conditional Exclusion of Terrorism (Relating to Disposition of Federal Terrorism Risk Insurance Act) CG 00 01 04 13 Commercial General Liability Coverage Form City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 9 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 Lain West Series of Lockton Companies LLC (existing contracted included) Coverage CG 21 35 10 01 CG 20 12 12 19 Exclusion - Coverage C - Medical Payments Additional Insured - State or Governmental Agency or Subdivision or Political Subdivision - Permits or Authorizations CG 20 18 12 19 Additional Insured - Mortgagee, Assignee or Receiver CG 20 28 12 19 Additional Insured - Lessor of Leased Equipment CG 21 06 05 14 Exclusion - Access or Disclosure of Confidential or Personal Information and Data -Related Liability - with Limited Bodily Injury Exception CG 21 45 07 98 CG 21 47 12 07 Exclusion - Damage to Premises Rented to You Employment -Related Practices Exclusion CG 21 5301 96 Exclusion - Designated Ongoing Operations CG 21 55 09 99 Total Pollution Exclusion with a Hostile Fire Exception CG 21 67 12 04 Fungi or Bacteria Exclusion CG 21 86 12 04 Exclusion - Exterior Insulation and Finish Systems CG 21 96 03 05 Silica or Silica -Related Dust Exclusion CGL 004 01 13 Exclusion - Punitive or Statutory Damages CGL 135 01 13 Exclusion - Lead Liability CGL 453 07 13 Total Asbestos Exclusion CGL 492 02 16 Amendment of Conditions - Premium Basis Endorsement CC 01 090 (10-16) Exclusion - Prior Work Limitation CC 01 098 (10-16) Exclusion - Intellectual Property CC 01 148 (10-16) Amend Definition of Suit CC 01 405 (10-16) Deductible Amendatory CC 01 409 (12-17) Auditable Policy — With Minimum Policy Premium CC 01 417 (09-19) Limits of Insurance — Non -Reinstating CG 2132 01 09 Communicable Disease Exclusion CC 01 434 (01-21) Contractors' Products -Completed Operations Hazard Extension Period CC 01 442 (01-21) Extension of Coverage — Repair Work CC 01 436 (01-21) Delete Exclusionsj., k, and I. CC 01 438 (01-21) Exclusion — Cross Suits — Property Damage, Named Entity Exception (GC and Owner) CC 01 430 (01-21) Additional Named Insured — Enrolled Contractors CC 01 451 (01-21) Designated Insured Project— Including Surrounding Area City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 10 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 (existing contracted included) rain West Series of Lockton Companies LLC Excess liability This summary is a brief overview of coverage. Please refer to the policies for complete terms and conditions. Higher limits may be available upon request. Coverage item Amount/limit/note General aggregate $3,000,000 Products/completed operations aggregate $3,000,000 Each occurrence $3,000,000 Self -insured retention N/A Second layer Coverage item AMOUnt/limit/note General aggregate $5,000,000 Products/completed operations aggregate $5,000,000 Each occurrence $5,000,000 Self -insured retention N/A City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 11 Lockton Companies DocuSign Envelope ID: 4B166C14-EAC4-4F49-B6E4-60FBA4E16890 rain West Series of Lockton Companies LLC (existing contracted included) Third layer Coverage. General aggregate $5,000,000 Products/completed operations aggregate $5,000,000 Each occurrence $5,000,000 Self -insured retention N/A Fourth layer Coverage item Amount/limit/note General aggregate $3,000,000 Products/completed operations aggregate $3,000,000 Each occurrence $3,000,000 Self -insured retention N/A City of Aspen Burlingame Phase II 1 1819557 21-22PP0321 12 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 rain West Series of Lockton Companies LLC (existing contracted included) DocuSign Envelope ID:4B186C14-EAC4-4F49-B6E4-60FBA4E16890 rain West Series of Lockton Companies LLC (existing contracted included) Important issues Lockton Companies, LLC, and each of its Series, together with its/their respective domestic subsidiaries and affiliates (collectively, "Lockton"), are committed to being the worldwide value and service leader in insurance brokerage, risk management, employment benefits and retirement services. The services a particular Lockton company provides to each client ("Client") will be subject to these Terms of Business in the absence of conflicting terms in a written services agreement executed by Lockton and Client. Client's direction for Lockton to render consulting, insurance/risk management consulting and/or brokerage services on its behalf shall be deemed Client's agreement to be bound by the terms contained herein. SURPLUS LINES; INSURANCE PREMIUMS AND RELATED TAX OBLIGATIONS Lockton may not be able to procure insurance in the admitted marketplace on the terms and conditions specified by Client. In such event, Lockton's insurance proposal may include placements with insurer(s) not licensed to transact insurance in a particular jurisdiction and not subject to the supervision of such state's insurance department. Any such surplus lines coverage will be made pursuant to applicable insurance laws governing the placement of insurance with nonadmitted insurers. A state insurance guaranty fund will not respond in the event the surplus lines insurer should become insolvent. Furthermore, policy forms, conditions, premiums and deductibles used by surplus lines insurers may be different from those found in policies used in the admitted market. Client is responsible for all insurance premiums due and any applicable surplus lines, sales, use, excise or other taxes for insurance coverage placed by Lockton. If Client fails to pay any premium in full by the due date indicated on the premium invoice, the coverage may be subject to cancellation by the insurer(s), and such nonpayment, in addition to any nonpayment of fees or expenses due to Lockton as set forth herein, shall be considered a material breach of these Terms of Business. ACCURACY AND COMPLETENESS OF INFORMATION Client shall be solely responsible for the accuracy and completeness of all information furnished to Lockton and/or to underwriters, insurers, insurance -related intermediaries and/or other third parties as necessary for the services contemplated herein. Lockton shall not be responsible for independently verifying the accuracy or completeness of any information that Client provides, and Lockton shall be entitled to rely on such information. Lockton shall have no liability for any errors or omissions in any services provided to Client, including the placement of insurance on Client's behalf, that are the result of, arise from, or are based, in whole or part, on inaccurate or incomplete information provided to Lockton. Client understands that the failure to provide accurate and complete information to an insurer, whether intentional or by error, could result in the denial of claims or rescission of coverage altogether. Client will review all policy documents provided to Client by Lockton and shall inform Lockton of any inaccuracies, deficiencies or discrepancies contained therein. CONFIDENTIALITY; DATA PROTECTION INFORMATION NOTICE Lockton and Client acknowledge that the nature of Lockton's relationship with the Client is one in which the Client may disclose to Lockton certain of the Client's information ("Information"), some of which may be of a confidential or proprietary nature, to enable Lockton to provide services to Client. Client acknowledges and consents to Lockton's use and disclosure of Information in the course of performing marketing, servicing, claims handling, risk management and/or insurance renewal services for Client. Lockton is committed to protecting the privacy and security of Client's Information deemed to constitute personal data pursuant to applicable data privacy law or regulation. In providing regulated insurance broking services, Lockton may receive such personal data directly from Client, in the case of an individual Client, or indirectly, in the case of a commercial Client on behalf of its employee insureds. Pursuant to applicable data protection laws, Lockton is deemed to be a "data controller." This means that Lockton is responsible for deciding how it holds and uses personal data about Client. Lockton may use personal data received from Client in its role as an insurance intermediary. This may include for the purposes of quotation/inception, policy administration, claims processing, renewals, marketing and other purposes necessary for the provision of insurance throughout the insurance lifecycle. For more information, please review Lockton's Privacy Notice available on our website. If you have any questions about the Privacy Notice or Lockton's collection or use of Client personal data, please contact compliance@lockton.com. INTERMEDIARIES When, in Lockton's professional judgment, it is necessary or appropriate, Lockton may utilize the services of foreign or domestic intermediaries to assist in the servicing, marketing and/or placement of Client's insurance/risk management programs. However, this may only be done after consultation with Client. Lockton will advise Client whether any prnpnsed intermediary is affiliated with Lockton. Any such intermediary shall be compensated by commissions earned on placement of Client's policies handled by that intermediary, or by payment of a separate fee agreed to by Client and the intermediary if commissions are not properly payable on Client's placements. Such commissions and fees shall be in addition to the compensation paid to Lockton. City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 14 Lockton Companies DocuSign Envelope ID:4B186C14-EAC4-4F49-B6E4-60FBA4E16890 Lain West Series of Lockton Companies LLC (existing contracted included) LOGOS Unless otherwise instructed by Client, Lockton may, without notice to or consent by Client, use Client's logo, pictures and other publicly available information to effectively market Client's insurance programs or in Lockton's marketing materials. INSURANCE PROPOSALS AND SUMMARIES Insurance documents prepared by Lockton containing proposals to bind coverage, summaries of coverages and certificates of insurance placed are furnished to Client as a matter of information for Client's convenience. These documents are not intended to reflect the terms, conditions, limitations and exclusions of such policies, are not themselves insurance policies and do not amend, alter or extend the coverages afforded by such policies. The insurance afforded by the proposed or placed policies is subject to all the terms, conditions, limitations and exclusions contained in such policies. USE OF A PARTICULAR INSURER Lockton is not obligated to utilize any particular insurer. In addition, Lockton is not authorized to make binding commitments on behalf of any insurer, except under certain circumstances which Lockton shall endeavor to make known to Client. Lockton shall not be responsible for the solvency of any insurer or its ability or willingness to pay claims, return premiums or other financial obligations. Lockton does not guarantee or make any representation or warranty that insurance can be placed on terms acceptable to Client. Lockton will not take any action to replace Client's insurers unless Client instructs Lockton to do so. NO RELIANCE Any reports or advice provided by Lockton should not be relied upon as accounting, legal, actuarial or tax advice. In all instances, Lockton recommends that Client seek independent advice on such matters from professional accounting, legal, actuarial and tax advisors. RESPONSIBILITY FOR INSURANCE PROGRAMS Lockton will not be responsible for the adequacy or effectiveness of any insurance programs or policies implemented or placed by another broker, including, without limitation, any acts or omissions occurring prior or subsequent to Lockton's engagement. RELATIONSHIP BETWEEN THE PARTIES Client acknowledges and agrees that in no event shall Lockton owe any enhanced or special duties to Client, express or implied, in fact or by law, whether referred to as a special relationship or fiduciary relationship or otherwise, except to the extent required by applicable law. COMPENSATION DISCLOSURE Lockton is committed to delivering a superior client experience through our customer -centered service model. Lockton wins and keeps clients by operating with complete integrity. We fulfill that pledge by providing fulsome disclosure regarding Lockton's sources of income —whether received from insurance companies or third parties —to clients. Unless applicable law or contractual agreement between Lockton and insurers states otherwise, any commission that Lockton is entitled to receive for any placements is fully earned at inception of the insurance program, and Lockton is entitled to retain such commissions in the event of a midterm cancellation of coverage or a reduction in coverage resulting in a premium adjustment. Lockton may receive compensation in a number of ways, including 1) commissions paid by an insurer, calculated as a percentage of premiums, or 2) negotiated fees paid by a client in lieu of, or in addition to, commissions. These commissions or fees received are for the placement/renewal of a client's insurance/risk management program, day-to-day servicing, risk control services and/or other services Lockton has agreed to provide on a client's behalf. Lockton may also be eligible to receive other forms of compensation such as incentive or contingency payments or bonuses and/or supplemental commissions from insurance companies, intermediaries (which may be affiliated with Lockton) or other third parties as a result of being an insurance broker (collectively, "Additional Compensation"). Contingency payments or bonuses are based on the overall performance of a partial or entire book of business Lockton places with an insurance company, and Lockton's eligibility and the amount of any such compensation may vary depending on the line of business and a number of "contingent" factors related to future performance such as overall premium volume, premium growth year overyear, persistency, profitability and/or retention targets set by the insurer. As such, a contingency payment received by Lockton from an insurer is difficult to tie back to any particular client insurance policy. Additional Compensation in the form of supplemental commission is established at the beginning of each calendar year based on Lockton's historical and current performance typically measured using some or all of the same performance factors by which contingency payments are calculated. Lockton may also receive service fees from insurers for consulting, managing general agency arrangements and/or analytics or administration services specific to an insurer including, without limitation, consulting in the development of insurer sales, product and/or marketing plans to broaden available coverage for Lockton clients. These service fees are not tied to, dependent on or identified with any particular client or insurance placement. At times, insurers may also request that Lockton Re, LLC, a reinsurance intermediary broker affiliate ("Lockton Re"), place facultative and/or treaty reinsurance on their behalf and compensate Lockton Re for any such placement(s), subject to Lockton Re's Terms of Business agreement. City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 15 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 Lain West Series of Lockton Companies LLC (existing contracted included) Lockton may also receive interest or investment income on funds temporarily held by it, such as premiums or return premiums, service fees or other compensation from premium finance companies for administrative services provided to or on behalf of premium finance companies relative to the financing of client insurance premiums. Please contact your Lockton representative if you have specific questions regarding the compensation Lockton receives as it relates to your account. MODELING AND ANALYTICS SERVICES Lockton provides various modeling and/or data analytics services to its clients ("Modeling and Analytics Services") and may provide such services to Client. Client authorizes Lockton to 1) disclose information it receives from Client, its insurers and/or third -parry administrators to Lockton's affiliates, parents, employees, and/or to third parties as necessary to perform such Modeling and Analytics Services, and 2) contribute such information to benchmarking databases created by or for Lockton to facilitate the creation of analytic reports for its clients, provided that such reports shall not include any information that personally identifies Client or its employees. Modeling and Analytics Services will be based upon a number of assumptions, conditions and factors, as well as information provided by third parties. If any such information provided to or utilized by Lockton is inaccurate, incomplete or should change, the Modeling and Analytics Services provided by Lockton could be materially affected. As Modeling and Analytics Services are subject to inherent uncertainty and involve variables beyond Lockton's control, actual results may differ materially from Lockton's projections. The parties agree that Lockton shall have no liability to Client if 1) Lockton is provided inaccurate or incomplete information or 2) actual results differ from Lockton's projections. Modeling and Analytics Services do not constitute, and are not intended to be a substitute for, independent actuarial, accounting or tax advice. LIMITATION OF LIABILITY IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND LOST BUSINESS) ARISING OUT OF OR RELATED TO THESE TERMS OF BUSINESS, EVEN IF IT HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER LEGAL THEORY. IN ANY EVENT, THE LIABILITY OF ONE PARTY TO THE OTHER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO TEN MILLION DOLLARS ($10,000,000.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY CONTAINED HEREIN SHALL NOT APPLY TO 1) ANY DAMAGES AWARDED IN CONJUNCTION WITH A FINAL JUDICIAL DETERMINATION OF FRAUD OR GROSS NEGLIGENCE OR 2) PERSONAL INJURY, INCLUDING DEATH, OR DAMAGE TO TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT, WILLFUL OR INTENTIONAL ACTS OF A PARTY OR ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS. REFERENCES TO A PARTY HEREIN INCLUDE SUCH PARTY'S DIRECTORS, OFFICERS, EMPLOYEES, MEMBERS, AGENTS AND DOMESTIC AND INTERNATIONAL AFFILIATED ENTITIES. NOTWITHSTANDING THE FOREGOING, IF THE EXPRESS TERMS OF A FEE AGREEMENT OR CONSULTING AGREEMENT ARE INCONSISTENT WITH THIS PROVISION, THE TERMS OF THE FEE AGREEMENT OR CONSULTING AGREEMENT SHALL CONTROL AND SUPERSEDE THIS PROVISION. City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 16 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 (existing contracted included) Lain West Series of Lockton Companies LLC Acknowledgement Please let us know if you have any questions concerning any definitions, terms, conditions, or exclusions contained in this proposal. I have read the proposal and acknowledge that the terms, limits of liability, and exposures declared herein and supported by previously communication and spreadsheet are accurate. This proposal must be accepted prior to 3/5/21 or coverages may be subject to renegotiation and may result in different terms or conditions for which Lockton Companies cannot be responsible. ❑ocusignad by: F5028FF-4F64�F--. - Signed Acting City Manager Title City of Aspen Company City of Aspen Burlingame Phase II 1 1819557_21-22PP0321 17 Lockton Companies DocuSign Envelope ID: 4B186C14-EAC4-4F49-B6E4-60FBA4E16890 Lain West Series of Lockton Companies LLC (existing contracted included) UNCOMMONLY INDEPENDENT lockton.com I Q 2021 Lockton Companies. All rights reserved. 1819557 21-22PP0321 DocuSign Envelope ID: 62934926-lC3D-46EE-A4D7-EEDFB2CEC270 CITY OF ASPEN STANDARD FORM OF AGREEMENT CITY OFASPEN PROFESSIONAL SERVICES City of Aspen Contract No.: AGREEMENT made this 240' day of November, in the year 2020. BETWEEN the City: The City of Aspen c/o Sara Ott 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5079 And the Professional: Mountain West Series of Lockton Companies, c/o Mark A. Bundy, EVP and COO 8110 East Union Avenue Suite 700 Denver, Colorado 80237 Phone: (303) 414-6000 For the Following Project: Contract Amount: Total: $97,500.00 If this Agreement requires the City to pay an amount of money in excess of $50,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: Resolution No.: OCIP Brokerage Services for Burlingame Ranch Phase 3 Affordable Housing Development FP#2020-085 Exhibits appended and made a part of this Agreement: Exhibit A: Scope of Work. Exhibit B: Fee Schedule. Agreement Professional Services Page 0 DocuSign Envelope ID: 62934926-1C3D-46EE-A4D7-EEDFB2CEC270 The City and Professional agree as set forth below. 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence Work immediately upon execution of this Agreement and receipt of a written Notice to Proceed from the City. Professional shall complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later than December 2022. 3. Payment. In consideration of the work performed, City shall pay Professional the compensation specified in Exhibit B attached hereto . Except as otherwise mutually agreed to by the parties, the payments made to Professional shall not initially exceed the amount set forth in Exhibit B. Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non -Assignability. Both parties recognize that this Agreement is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub -Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agreement. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub -contractor. For the avoidance of doubt, insurance carriers, wholesalers, and insurance intermediaries shall not be considered sub -contractors under the terms of this Agreement. 5. Termination of Procurement. The services contemplated by this Agreement may be canceled by the City prior to the effective date of this Agreement by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 6. Term and Termination of Professional Services. This Agreement will be in effect from the effective date for a term of 25 months unless earlier terminated in accordance with this Section 6 of the Agreement The Professional or the City may terminate the Professional Services component of this Agreement, without specifying the reason therefor, by giving sixty (60) days advance notice, in writing, addressed to the other party. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional for a period of two (2) years after the effective date of termination. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of Agreement Professional Services Page I DocuSign Envelope ID: 82934926-lC3D-46EE-A4D7-EEDFB2CEC270 conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's officers, directors, and employees during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers and employees, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage which arise out of this Agreement, to the extent and for an amount represented by the degree or percentage such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the wrongful act, omission, professional error, negligence, or willful misconduct of the Professional or any director, officer, or employee of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional. Notwithstanding the foregoing, if it is determined by the final judgment of a court of competent jurisdiction, or other final determination that such injury, loss, or damage was caused in whole or in part by the wrongful act, omission, error, negligence, willful misconduct or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to its Services provided under this Agreement. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to this Agreement by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain the insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance reasonably acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to its services provided under this Agreement. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. G) Workers' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with limits of ONE MILLION DOLLARS ($1,000,000.00) for each accident, ONE MILLION DOLLARS ($1,000,000.00) disease - policy limit, and ONE MILLION DOLLARS ($1,000,000.00) disease - each Agreement Professional Services Page 2 DocuSign Envelope ID: 82934926-1C3D-46EE-A4D7-EEDFB2CEC270 employee. Evidence of qualified self -insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and TWO MILLION DOLLARS ($2,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each accident with respect to each Professional's owned, hired and non -owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the limits of ONE MILLION DOLLARS ($1,000,000) each wrongful act and TWO MILLION DOLLARS ($2,000,000) aggregate. (c) The Commercial General Liability policy and the Automobile Liability policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every The Commercial General Liability policy and the Automobile Liability policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided to the City shall be an ACCORD form completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall provide notice of cancellation in accordance with the provisions of the policies. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and limits shall constitute a material breach of contract upon which City may immediately terminate this contract. Agreement Professional Services Page 3 DocuSign Envelope ID: 82934926-1C3D-46EE-A4D7-EEDFB2CEC270 (f) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk Management Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Completeness of Agreernen . It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 13. Non -Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 15.04.570, pertaining to non- discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this Agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. Illegal Aliens — CRS 8-17.5-101 & 24-76.5-101. (a) Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws Agreement Professional Services Page 4 DocuSign Envelope ID: 82934926-1C3D-46EE-A4D7-EEDFB2CEC270 prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. (c) By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not illegal aliens. (d) Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional Agreement Professional Services Page 5 DocuSign Envelope ID: 62934926-lC3D-46EE-A4D7-EEDFB2CEC270 is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre -employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted 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 new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 17. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. (a) Professional warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide Agreement Professional Services Page 6 DocuSign Envelope ID: 82934926-lC3D-46EE-A4D7-EEDFB2CEC270 established commercial or selling agencies maintained by the Professional for the purpose of securing business. (b) Professional agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; and 2. Recover such value from the offending parties. 18. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 19. Limits on Liability, Warranties and Obligations of Professional. (a) Surplus Lines: Insurance Premiums and Related Tax Obligations. Professional may not be able to procure insurance in the admitted marketplace on the terms and conditions specified by City. In such event, Professional's insurance proposal may include placements with insurer(s) not licensed to transact insurance in a particular jurisdiction and not subject to the supervision of such state's insurance department: Any such surplus lines coverage will be made pursuant to applicable insurance laws governing the placement of insurance with non -admitted insurers. A state insurance guaranty fund will not respond in the event the surplus lines insurer should become insolvent. Furthermore, policy forms, conditions, premiums, and deductibles used by surplus lines insurers may be different from those found in policies used in the admitted market. City is responsible for all insurance premiums due and any applicable surplus lines, sales, use, excise or other taxes for insurance coverage placed by Professional. If City fails to pay any premium in full by the due date indicated on the premium invoice, the coverage may be subject to cancellation by the insurer(s) and such nonpayment, in addition to any nonpayment of fees or expenses due to Professional as set forth herein, shall be considered a material breach of this Agreement. (b) Limitation of Liability. 1N NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, Agreement Professional Services Page 7 DocuSign Envelope ID: 82934926-lC3D-46EE-A4D7-EEDFB2CEC270 SPECIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND LOST BUSINESS), ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHER LEGAL THEORY. IN ANY EVENT, THE LIABILITY OF ONE PARTY TO THE OTHER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO TEN MILLION DOLLARS ($10,000,000.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 20 (b) SHALL NOT APPLY TO: 1) ANY DAMAGES AWARDED IN CONJUNCTION WITH A FINAL JUDICIAL DETERMINATION OF FRAUD OR GROSS NEGLIGENCE OR 2) PERSONAL INJURY, INCLUDING DEATH, OR DAMAGE TO TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT, WILLFUL OR INTENTIONAL ACTS OF A PARTY OR ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS. REFERENCES TO A PARTY IN THIS SECTION 20(b) INCLUDE SUCH PARTY' S DIRECTORS, OFFICERS, EMPLOYEES, MEMBERS, AGENTS AND DOMESTIC AND INTERNATIONAL AFFILIATED ENTITIES. (c) Accuracy and Completeness of Information. City shall be solely responsible for the accuracy and completeness of all information furnished to Professional and/or to underwriters, insurers, insurance -related intermediaries and/or other third parties as necessary for the services contemplated herein. Professional shall not be responsible for independently verifying the accuracy or completeness of any information that City provides, and Professional shall be entitled to rely on such information. Professional shall have no liability for any errors or omissions in any services provided to City, including the placement of insurance on City's behalf, that are the result of, arise from, or are based on inaccurate or incomplete information provided to Professional. City understands that the failure to provide accurate and complete information to an insurer, whether intentional or by error, could result in the denial of claims or rescission of coverage altogether. City will review all policy documents provided to City by Professional and shall inform Professional of any inaccuracies, deficiencies or discrepancies contained therein. (d) Use of a Particular Insurer. Professional is not obligated to utilize any particular insurer. In addition, Professional is not authorized to make binding commitments on behalf of any insurer, except under certain circumstances which Professional shall endeavor to make known to City. Professional shall not be responsible for the solvency of any insurer or its ability or willingness to pay claims, return premiums or other financial obligations. Professional does not guarantee or make any representation or warranty that insurance can be placed on terms acceptable to City. Professional will not take any action to replace City's insurers unless City instructs Professional to do so. (e) No Reliance. Any reports or advice provided by Professional should not be relied upon as accounting, legal, actuarial or tax advice. In all instances, Professional recommends that City seek independent advice on such matters from professional accounting, legal, actuarial and tax advisors. Agreement Professional Services Page 8 DocuSign Envelope ID: 82934926-1C3D-46EE-A4D7-EEDFB2CEC270 (f) Responsibility for Insurance Programs. Professional will not be responsible for the adequacy or effectiveness of any insurance programs or policies implemented or placed by another broker, including, without limitation, any acts or omissions occurring prior or subsequent to Professional's engagement. (g) Relationship between the Parties. Professional will act as the City's insurance broker with respect to the lines of insurance listed in Exhibits A and B. The City acknowledges and agrees that in no event shall Professional owe any enhanced or special duties to the City, express or implied, in fact or by law, whether referred to as a special relationship or fiduciary relationship or otherwise, except to the extent required by applicable law. 20. General Terms. (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 21. Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement binding on the Parties, notwithstanding the possible event that all Parties may not have signed the same counterpart. Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope of Work, and any other documents requiring a signature hereunder, may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a paper copy of a document bearing an electronic signature, on the grounds that it is an electronic record or electronic signature or that it is not in its original form or is not an original. 22. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Professional respectively and their employee, successors, assigns and legal representatives. Neither the City nor the Professional shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. Agreement Professional Services Page 9 DocuSign Envelope ID: 82934926-1C3D-46EE-A4D7-EEDFB2CEC270 23. Third Parties. This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Professional or City may assign this Agreement in accordance with the specific written permission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Professional because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 24. Attornev's Fees. In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 25. Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Agreement. 26. Certification Regarding Debarment. Silspension. Ineligibility, and Voluntary Exclusion. Professional certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Professional or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 27. Integration and Modification. This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, Professional understands that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 28. Authorized Representative. The undersigned representative of Professional, as an inducement to the City to execute this Agreement, represents that he/she is an authorized representative of Professional for the purposes of executing this Agreement and that he/she has full and complete authority to enter into this Agreement for the terms and conditions specified herein. Agreement Professional Services Page 10 DocuSign Envelope ID: 62934926-lC3D-46EE-A4D7-EEDFB2CEC270 IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement of which shall be deemed an original on the date first written above. PROFESSIONAL: 94;; N L&*A EF96A'1"'0'�Signature] - By: Mark A. Bundy Title: EVP and COO Date: February 3, 2021 1 1:40 PM MST CITY OF A Q ,�.40RADO: - [Signature] By: Sara Ott Title: City Manager Date: 3/12/2021 1 1:41:56 PM MST Agreement Professional Services Page 11 DocuSign Envelope ID: 82934926-1C3D-46EE-A4D7-EEDFB2CEC270 EXHIBIT A PROFESSIONAL SERVICES AGREEMENT Scope of Services A. Services for which Professional receives the Fee/Contract Amount I. Program Marketing/Management A. Market the General Liability, Excess Liability up to $10,000,0000 limits, Builders' Risk, Earthquake and Flood (DIC), and Contractors Pollution Liability up to $1,000,000 limits based on the project's needs in conjunction with Client Risk Management parameters. I. Prepare insurance coverage specifications. 2. Compile underwriting data and prepare market submission 3. Analyze carrier proposals and present recommendations 4. Bind coverage as directed by Client 5. Review policies for compliance with terms and conditions bound B. Process changes, endorsements and premium invoices. C. Issue required certificates of insurance in a timely manner. D. Review premium audits for accuracy and correctness. E. Conduct Client meetings as necessary. F. Provide periodic reports relative to the bound program including a description of open items. G. Provide research and advice in response to Client questions as needed. II. Claims Management Services A. Act as client claims advocate for all claims. B. Establish claims service standards with carrier(s). C. Review loss runs for accuracy and resolve any incorrectness with carrier. D. Review denied claims for correct application of coverage. E. Process claim notifications to appropriate insurance carriers. III. Loss Control Services A. Provide Loss Control consulting as needed. Lockton shall serve as the OCIP Administrator for the project known as "Burlingame Ranch Phase 3 Project". I. OCIP Administration A. Provide sample OCIP contract language to the Client and assist the Client's legal counsel in finalizing the contract document. B. Prepare an OCIP Manual that includes claims reporting procedures and enrollment procedures and support the project team in the preparation of all bid packages as relates to the OCIP. C. Provide copies of the OCIP policies upon request by a contractor/subcontractor for review with the approval of the client. D. Ensure enrollment by all contractor and subcontractors required to participate in the OCIP and verify compliance with the OCIP requirements. Agreement Professional Services Page 12 DocuSign Envelope ID: 82934926-1C3D-46EE-A4D7-EEDFB2CEC270 E. Explain the OCIP to contractors and provide assistance in preparing forms, and determining interaction between the OCIP and the contractor's insurance program. F. Obtain (on Acord Form 25) certificates of insurance from enrolled contractors evidencing required coverages and provide certificates of insurance to enrolled contractors evidencing OCIP coverage. G. Coordinate with Client's Third -Party compliance manager and advise of each enrollment, including all necessary documentation. H. Maintain Project documentation related to the OCIP. I. Provide reports to Clients summarizing OCIP activities, progress and costs. II. Program Closeout A. Coordinated the insurance carrier(s) audit review. B. Additional close-out activities as dictated by actual program design. Agreement Professional Services Page 13 DocuSign Envelope ID: 62934926-1C3D-46EE-A4D7-EEDFB2CEC270 EXHIBIT B PROFESSIONAL SERVICES AGREEMENT Compensation Schedule 1. Fee. All services set forth in Exhibit A associated with providing OCIP services for the OCIP lines of coverage will be performed by Professional for compensation in the form of a fee in the amount of $97,500. This Fee may be adjusted in future annual service periods by mutual written agreement of the parties pursuant to Section 26 of the Agreement. The fee shall be earned by Lockton based on the following schedule: Fee Amount Earned Service Milestone Date $48,750 Initiation of Marketing Efforts $48,750 Binding of Coverage 2. Commission. All broker services not set forth in Exhibit A associated with placing the following lines of coverage will be performed by Professional for compensation in the form of commission payable by the City's insurers: • Excess Liability Limits above $10,000,000 • Contractors Pollution Liability Limits above $1,000,000 • Owners Protective Professional Indemnity • Any other elected limits and lines of coverages outside of those listed in Exhibit A 3. Disclosure. In addition to the compensation set forth above, the City acknowledges, consents and agrees that Professional may also receive other compensation such as incentive or contingency payments or bonuses and/or supplemental commissions from insurance companies, intermediaries (which may be affiliated with Professional) or other third parties as a result of being an insurance broker (collectively, "Additional Compensation"). Professional may also receive interest or investment income on funds temporarily held by it, such as premiums or return premiums, service fees or other compensation from premium finance companies for administrative services provided to or on behalf of the premium finance companies relative to the financing of client insurance premiums, and/or service fees from insurers for consulting and/or administration services specific to an insurer. Agreement Professional Services Page 14