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HomeMy WebLinkAboutResolution - 6497 - Agreement - Upshaw Insurance Agency Inc.- Excess Liability Insurance - 09_09_1999111. t a Resolution No. 6497 Sept. 9, 1999 Item No. 26 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an Agreement by and between the City of Lubbock and the Upshaw Insurance Agency, Inc., to act as registered agent/broker for excess liability insurance, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 9th day of September '1999. A4146Y'S4TC(N, MAYOR A EST: e Darnell City etary APPROVED AS P CONTENT: Mary An ews Director of Human Resources APPROVED AS TO FORM: ,0& /ya-� William de Haas Competition and Contracts Manager/Attorney rkb/ccdocs/agreementwithupshw.res August 31, 1999 4 Resolution No.6497 Sept. 9, 1999 Item No. 26 AGREEMENT BY AND BETWEEN THE CITY OF LUBBOCK.) TEXAS AND THE UPSHAW INSURANCE AGENCY, INC. THIS AGREEMENT entered into this 10`h day of September. 1999 by and between the CITY OF LUBBOCY, TEXAS, a municipal homerule corporation (hereinafter called "City") and UPSHAW INSURANCE AGENCY, INC., a registered agent/broker in the State of Texas, (hereinafter called "Agency") to provide coverage for the purpose of Excess Liability Insurance. WHEREAS, The City desires to purchase coverage for Excess Liability Insurance; and WHEREAS, the Agency/Broker has demonstrated that it can provide said coverage; and WHEREAS, the City and the Agency/Broker desire to enter into an Agreement to provide said services. NOW THEREFORE, the parties agree as follows: 1. The parties agree to abide by the terms and conditions of the "Excess Public Entity Liability Policy" and all it's amendments and endorsements, which are attached hereto as Exhibit "A" which is incorporated as if fully set forth herein. 2. This agreement is for a term of one (1) year from the effective date and may be negotiated and renewed annually for two (2) additional one (1) year terms at the mutual agreement of both parties. 3. Notices or communications from the Company to the Agency/Broker shall be addressed to the Agency/Broker and shall be deemed to be duly given or served, if the same shall be sent by United States mail, telegraph, telex, FAX or other similar or analogous means, to the address shown below, unless the Company has been requested to send such communications to another address: Upshaw Insurance Agency, Inc. P.O. Box 1299 Amarillo, Texas 79105-1299 Notices or communications from the Agency/Broker to the Company shall be addressed to the Company and shall be deemed to be duly given or served if the same shall be sent by United States mail, telegraph, telex, FAX or other similar or analogous means, to the address shown below unless the Company has been requested to send such communications to another address: U/Contracts/A-reement Excess hab The City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 i Notices and communications described in this paragraph that are sent by United States mail will be deemed to be duly given or served on the third business day following the date the notice is mailed. 4. THIS CONTRACT SHALL BE CONSTRUED AND ENFORCED ACCORDING TO THE LAWS OF THE STATE OF TEXAS. VENUE SHALL BE LUBBOCK COUNTY, TEXAS. 5. The City may terminate the services of the Agency/Broker at any time upon giving to the Agency/Broker 60 days written notice of its intention to do so. The Agency/Broker may terminate in accordance with the contract and the laws of the State of Texas giving 60 days written notice. The Agency/Broker upon its resignation shall complete the processing of all services described in the Agreement, which have commenced prior to the effective date of the termination of this agreement. SIGNED THIS DAY, the 9th of September , 1999 CITY OF LUBBOCK: L WINDY SITT04, MAYOR APPROVED AS TO FORM: William de Haas, Competition and Contracts Manager/Attorney UPSHAW INSURANCE, INC.: ATTEST: I /� iGtw- By: 2a a a^r- 13 E.P, ; C kaytVelbarnell, City'Secretary APPROVED AS TO CONTENT: Mary AndreWs, Managing Director of Human Resources r"S fjf*�Jf Title GIContracts/Agreenicnt Excess Liab Resolution No. INSUR- 10E COINIPANY OF Tl_-� NVEST Sept. 9, 1999 Item No. 26 EXCESS PUBLIC ENTITY LIABILITY POLICY Various provisions in this policy restrict coverage. Please read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy, words and phrases that appear in bold have "special" meanings; they are defined in Section V - Definitions. Insurance Company of the Vest, hereafter called "Company", in consideration of the payment of the premium and in reliance upon the statements in the Application and subject to the Limit of Liability, Exclusions, Conditions and other terms of the policy agrees with the Named Insured as follows: SECTION I - COVERAGE A. INSURING AGREEMENT The Company will pay on behalf of the Insured the ultimate net loss in excess of the retention which the Insured shall become legally obligated to pay by reason of liability imposed by law for damages because of: Coverage A Bodily Injury Coverage B Personal Injury Coverage C Property Damage Coverage D Public Entity Errors and Onussions, or liability for damages because of Bodily Injury, Personal Injury or Property Damage by others assumed by contract, insofar as the Named Insured may legally do so, and caused by an occurrence to which this insurance applies during the policy period anywhere in the world. Coverage under this policy is also provided with respect to the Insured's law enforcement activities or the Insured's departmentally approved law enforcement activities for others, and to any act of the Insured (unless deemed to be a criminal act) within the arrest or incarceration process. B. DEFENSE AND SETTLEMENT 1: Prior to the exhaustion of the retention: ' a. The Insured, or its third party administrator or representative, has the duty to defend any claim or suit to which this insurance applies. b. The Company, at its own expense, shall have the right and opportunity to associate with the Insured in the defense, appeal and control of any claim or suit arising out of any occurrence and seeking damages in.excess of the retention. In such event the Insured and the Company shall cooperate fully. 2. If the retention has become exhausted by payment of defense costs, indemnity payments or both, or if the Company and the Insured agree the retention will ultimately become exhausted by such payments, the Company shall have the right and opportunity to choose defense counsel and assume the Insured's defense, appeal and control of any claim or suit to which this insurance applies. Should the Company exercise its right, the Insured and the Company shall cooperate fully. 3. The Insured shall not, except at its own cost, voluntarily make any payment, assume any obligation or incur any expense in excess of its retention unless the Insured has received written consent from the Company. 4. If a settlement made with the consent of the Company, or a judgment against the Insured, plus defense costs, exceeds the retention, the Company shall pay the amount in excess of the retention, subject to the Company's Limit of Liability. 3. The Company shall have the right, but not the duty, to determine when a claim or suit should be settled and may proceed to settle the claim or suit within its Limit of Liability.. The Insured and/or the Company are entitled to require the other party to submit any dispute to arbitration. 'EL - \DOL (0719S) 1 of 12 Includes cot)yrieh;ed ma:trial of Insurance Services Oft:ce. Inc.. 6. The Company shall not be responsible for any further sums or to defend any claim or suit after the applicable Limit of Liability set out in Item 1 of the Declarations has been exhausted in the payment of ultimate net loss. C. SUPPLEMENTARY PAYMENTS The Company will pay as supplementary payments in addition to the applicable Limit of Liability: 1. Premiums on appeal bonds required in any such suit or premiums on bonds to release attachments in any such suit for an amount not in excess of the applicable Limit of Liability of this policy. The Company shall have no obligation to apply for or furnish any such bonds. 2. Expenses incurred by the Insured for first aid to others at the time of an accident for bodily injury to which this policy applies. 3. Reasonable expenses incurred by the Insured at the Company's request in assisting the Company in the investigation or defense of any claim or suit including actual loss of earnings not to exceed S250 per day. 4. All interest on the full amount of any judgment that accrues after entry of the judgment and before the Company has paid, offered to pay, or deposited in court the part of the judgment that is within the applicable Limit of Liability. SECTION II - EXCLUSIONS The Company shall not be obligated to make any payment or defend any suit in connection with any claim made against the Insured as follows: A. To any obligation for which the Insured or any of its insurers may be held liable under any workers' or unemployment compensation, disability benefits or similar law, including United States Longshoremen's and Harborworkers' benefits; B. To Bodily Injury to: An employee of the Insured arising out of and in the course of: a. Employment by the Insured; or b. Performing duties related to the conduct of the Insured's business; or 2.� The spouse, child, parent, brother or sister of that employee as a consequence of 1. above; This exclusion applies: 1. Whether the Insured may be liable as an employer or in any other capacity; and 2. To any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the Insured under a contract; C. To any liability arising out of the ownership, maintenance, operation, use, loading or unloading of any aircraft owned or operated by or rented or loaned to any Insured, or any other aircraft operated by any person in the course of their employment by an Insured; D. To any injury to or destruction of: 1. Property owned by the Insured; or 2. Property rented or leased to the Insured where the Insured has assumed liability for damage to or destruction of such property unless the Named Insured would have been liable in the absence of such assumption of liability; E. To any liability arising out of the ownership, use, maintenance, operation, entrustment to others, loading or unloading of: 1. Any watercraft owned or operated by or rented or loaned to any Insured; or 2. Any other watercraft operated by any person in the course of their employment by any Insured. This exclusion does not apply to watercraft under fifty (50) feet in length; 'EL - YDOL (07/9S) 2 of 12 Includes eopyriOzzed material of Inscra:se Services Of c-. inz . F. 1. To any injury, damage or any other liability which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time. 2. To any loss, cost or expense arising out of any: a. Request, demand or order that any Namcd 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 pollutants; or b. Claim or suit by or on behalf of a governmental authority, or any other person or organization, for damages (including indemnity for damages) because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to or assessing the effects of pollutants. This exclusion does not apply to any injury, damage or any other liability caused by heat, smoke or fumes from a hostile fire. Paragraph 1. above does not apply: 1. To fuels, lubricants, fluids, exhaust gases or other similar pollutants that are needed for or result from the normal electrical, hydraulic or mechanical functioning of the covered automobile, mobile equipment or its parts if the pollutants escape, seep, migrate or are discharged, dispersed Or released directly from an automobile or mobile equipment part designed by its manufacturer to hold, store, receive or dispose of such pollutants. 2. To accidents that occur away from premises owned by or rented to an Insured with respect to pollutants not in or upon a covered automobile or mobile equipment if: a. The pollutants or any property in which the pollutants are contained are upset, overturned or damaged as a result of the maintenance or use of a covered automobile or mobile equipment; and b. The discharge, dispersal, seepage or migration, release or escape of the pollutants is caused directly by such upset, overturn or damage; G. To any liability arising out of or in any way connected with any operation of the principles of eminent domain, condemnation proceedings or inverse condemnation, by whatever name called, and whether or not liability accrues directly against any Insured by virtue of any agreement entered into by or on behalf of any Insured; H. To any liability: 1. Arising in whole, or in part, out of any Insured obtaining remuneration or financial gain to which the Insured was not legally entitled; or 2. Arising out of the willful violation of a penal code or ordinance committed by or with the knowledge or consent of any Insured; except that any act pertaining to any one Insured shall not be imputed to any other Insured for the purpose of determining the application of this exclusion; 1. To any liability arising out of estimates of probable costs or cost estimates being exceeded or faulty preparation of bid specifications or plans including architectural plans; J. To any liability arising out of the ownership, maintenance, operation or use of any airfield, runway, hangar, building or other property in connection with aviation activities or any other use of airport facilities or property. This exclusion shall also apply to liability arising from owned, non -owned or hired automobiles or mobile equipment while such automobiles or mobile equipment are on the premises of an airport owned, maintained or operated by the Insured. This exclusion applies only to automobiles or mobile equipment used in connection with the operation of such airport or in connection with aviation activities; PEL - XDOL (07/93) 3 or 12 lnclsdes copyrighted na;_ri=! of i,su-_n.-C Services 0*':. ? K To any liability arising out of the: 1. Ownership, maintenance or operation of a hospital, nursing home or medical clinic; ?. The activities of any nurse while working in any hospital, nursing home or medical clinic; 3. Medical or surgical activities of any physician, surgeon or oral surgeon; d. Performance of surgical procedures of any kind. This exclusion does not apply to any liability arising out of the activities of any employee who is licensed and certified as an emergency medical technician or paramedic in the scope of their duties as such. For the purposes of this exclusion medical clinic does not mean the Insured's operation of any Immunization Clinic, Sexually Transmitted Disease Clinic, Tuberculosis Clinic, Community Health Service Clinic or to public health nurse services or to occupational related physical examinations performed by any Insured; L. To any liability arising out of any provisions of the Employee Retirement Income Security" Act of 1974. Public Law 93-406 (or any amendment or addition thereto) or any State statute or common law rule which imposes fiduciary duties and responsibilities with respect to Employee Benefit Programs; .kl. To any liability arising out of any depreciation or decline in price or value of any security, debt, bank deposits or financial interest or instrument; \. To any liability for any salary or wages due because of discrimination or because of the wrongful,termination of any employee or official of the Insured; 0. To any liability arising out of discrimination in hiring practices based on race, religion, sex or any form of discrimination specified in any state, federal or civil rights law; P. To any liability due to the failure to perform or breach of a contractual obligation; Q. To any liability for damages arising from the offering, purchase, sale, exchange or issuance by an Insured of securities of any Insured subject to provisions of the Securities Act of 1933, Securities Exchange Act of 1934 or any other federal law or regulation applicable to the offering. sale, purchase or exchange of securities, all as amended, or any state "Blue Sky Laws'; R. To any liability arising out of the failure of any Insured to adequately supply gas, oil, water, electricity or steam. This exclusion does not apply if the failure to supply results from the sudden and accidental injury to tangible property owned or used by any Insured to procure, produce, process or transmit the gas, oil, water, electricity or steam; S. To any liability arising out of the rupture, bursting, overtopping., accidental discharge or partial or complete structural failure of any dam; T. To any liability arising out of the manufacture of, mining of, use of or exposure to asbestos products, asbestos fibers or asbestos dust or to any obligation of the Insured to indemnify any party because of damages arising out of the manufacture of, use of or exposure to asbestos products, asbestos fibers or asbestos dust; U. To any liability based upon or attributable to the rendering or failure to render any opinion, treatment, consultation or service if such opinion, treatment, consultation or service was rendered or was not rendered while such Insureds were engaged in any activity for which they receive compensation from any source other than the famed Insured and/or were gratuitously engaged other than by specific direction of the Named Insured; V. To any liability for the refund of taxes, fees or assessments; W. To any liability due to war, whether or not declared, or any act or condition incident to war. War includes civil war, insurrection, rebellion or revolution; X. To any liability arising out of any actions, demands, claims or suits seeking relief or redress in any form other than monetary damages, or any costs, fees or expenses which the Insured shall become obligated to pay as a result of adverse judgment for injunctive or declaratory relief. PEL - IDOL (07/9S) 3 of 12 Includes co?yri_h:td �•:._ttnal of Ins;.:znce Services 0=,,,L, ? SECTION III - CO''IPANY'S LIMIT OF LIABILITY A. Regardless of the number of: 1. Insureds under this policy; 2. Persons or organizations who sustain injury or damage; or 3. Claims made or suits brought on account of bodily injury, personal injury, property damage and/or public entity errors and omissions, the Company's liability for ultimate net loss resulting from any one occurrence shall be limited to the amount stated in the Declarations as applicable "per occurrence"; provided, however, that the Company's liability shall be further limited to the amount stated in the Declarations as "general annual aggregate" with respect to all ultimate net loss because of bodily injury, personal injury, property damage and public entity errors and omissions combined, except ultimate net loss because of injury or damage from the automobile hazard, which occurs during each annual period while this policy is in force commencing from its effective date. B. For the purpose of determining the limit of the Company's liability arid the retention of the Insured, all damages arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence. C. Public Entity Errors and Omissions taking place over more than one policy period insured by the Company shall be deemed to have taken place during the last policy period and only that Limit of Liability shall apply. D. If the Limit of Liability is paid prior to this policy's termination date for losses other than losses arising from the automobile hazard, this policy's premium is fully earned. E. The annual aggregate applies: 1. To each consecutive annual period; and 2. To any remaining period less than twelve (12) months, starting with the beginning of the policy period shown in the Declarations. 'If the policy period is extended after issuance for an additional period of less than twelve (12) months then the additional period will be deemed part of the last preceding period for purposes of determining the Limit of Liability. SECTION IV - WHO IS AN INSURED A. The Named Insured, and: 1. All persons who were, now are or shall be lawfully elected, appointed or employed officials of the Named Insured. 2. Current or former members of commissions, boards, districts and authorities which operate under the direct supervision and control of the Named Insured. 3. All past or present employees and servants of the Named Insured and any persons providing services to the \'amed Insured under any mutual aid or similar agreement. 4. Any person or organization while acting as a real estate manager for the famed Insured. 5. With respect to any automobile, any person is an Insured while driving such automobile with the permission of the Named Insured and within the scope of the Named Insured's permission. Any person or organization responsible for the conduct of such person is also an Insured, but only with respect to liability arising out of the operation of the automobile. However no person or organization using an automobile owned, hired or borrowed by the Narced Insured is an Insured under this policy while they are engaged in the business of selling, repairing, servicing, delivering, testing, road testing, parking or storing automobiles unless that business is the Famed Insured's. PEL - XDOL (0719S) 5 of 12 Includes copyrighted Ina:erial of Insurance Services Office. Inc.. SECTION N' - DEFINITIONS A. Administration means: 1. Giving counsel to employees with respect to employee beuefit programs; 2. Interpreting employee benefit programs; 3. Handling of records in connection with employee benefit programs; 4. Effecting enrollment or cancellation of employees under employee benefit programs. B. Automobile shall mean a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment, but automobile does not include mobile equipment. Included within the definition of automobile are: 1. Owned automobile - an automobile owned by the Named Insured. 2. Hired automobile - an automobile used under contract on behalf of, or loaned to, the Named Insured provided such automobile is not owned by or registered in the name of: • a. The Named Insured; or b. An officer, servant or employee of the Named Insured who is granted an operating allowance of any sort for the use of such automobile. 3. Non -owned automobile -any other automobile. C. Automobile Hazard means liability arising out of the ownership, use (including maintenance or repair), loading or unloading of any automobile. D. Bodily Injury means bodily injury, sickness or disease sustained by a person including care, loss of service or death resulting from any of these at any time. Bodily injury also includes humiliation, mental anguish, mental injury, shock or fright but only as a direct result of bodily injury, sickness or disease. E. Dam means any artificial barrier, together with appurtenant works, which does or may impound or divert water, and which either: l: Is twenty-five (25) feet or more in height from the natural bed of the stream or watercourse at the downstream toe of the barrier or from the lowest elevation of the outside limit of the barrier, if it is not across a stream channel or water course, to the maximum possible water storage elevation; or 2. Has an impounding capacity of fifty (50) acre-feet or more. Any such barrier which is not in excess of six (6) feet in height, regardless of storage capacity, or which has a storage capacity not in excess of fifteen (15) acre-feet, regardless of height, shall not be considered a dam. The following shall not be considered a dam: 1. Any obstruction in a canal used to raise or lower water therein or divert water therefrom; 2. Any railroad fill or structure, and any road or highway fill or structure; 3. Any circular tank constructed of steel or concrete or of a combination thereof or any tank elevated above the ground; 4. Any barrier which is not across a stream channel, watercourse or natural drainage area and which has the principal purpose of impounding water for agricultural use or use as a sewage biosolids drying facility; and 5. Any obstruction in the channel of a stream or water course which is fifteen (15) feet or less in height from the lowest elevation of the obstruction and which has the single purpose of spreading water within the bed of the stream or watercourse upstream from the obstruction for percolation underground. F. Damages means compensatory money damages only. Damages do not include defense of claims or suits or any actions or proceedings of any kind for non -monetary damages. PEL - IDOL (07/9S) 6 of 12 includes copyrighted mxeriil of Insurance Servicts 0'-,5c_, i,c., G. Defense costs means all fees and expenses caused by and relating to the adjustment, investigation, defense or litigation of a claim or suit including attorney's fees and court costs. Defense costs shall not include: 1. The office expenses of the Company or the Insured nor the salaries of employees or officials of the Company or any Insured; or 2. Salaries and overhead expenses and expenses incurred other than as a direct result of handling the claim or suit by any claims servicing organization. H. Employee includes a leased worker. I. Employee benefit program means: 1. Group life insurance, group accident or health insurance, investment plans or savings plans, profit sharing plans, pension plans and stock subscription plans, provided that no one other than an employee of the Named Insured may subscribe to such insurance or plans; and 2. Unemployment insurance, Social Security benefits, worker's compensation and disability benefits. J. Hostile Fire means a fire which becomes uncontrollable or breaks out from where it was intended to be. K. Leased worker means a person leased to an Insured by a labor leasing firm under an agreement between the Insured and the labor leasing firm to perform.duties related to the conduct of the Insured's business. L. Loading or unloading means the handling of property: 1. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or automobile; or 2. While it is in or on an aircraft, watercraft or automobile; or 3. While it is being moved from an aircraft, watercraft or automobile to the place where it is finally delivered. But loading or unloading does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or automobile. M. i`lobile Equipment means a land vehicle (including any machinery or apparatus attached thereto), whether or not self propelled, and is: 1.Not subject to motor vehicle registration; or 2. Maintained for use exclusively on premises owned by or rented to the Named Insured, including the way immediately adjoining; or 3. Designed for use principally off public roads; or 4. Designed or maintained for the sole purpose of affording mobility to equipment of the following type forming an integral part of or permanently attached to such vehicle: power cranes, shovels, loaders, diggers and graders, scrapers, rollers and other road construction or repair equipment; air -compressors, pumps and generators, including spraying, welding and building cleaning equipment; and geophysical exploration and well servicing equipment. N. -Named Insured shall mean the entity designated as such on the Declarations of the policy of which this is a part. O. Occurrence means: 1. With respect to bodily injury or property damage: An accident or event, including continuous or repeated exposure to substantially the same generally harmful conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of any Insured except for assault and battery committed or directed for the purpose of protecting persons or property. 2. With respect to personal injury and public entity errors and omissions respectively: An offense described in the definitions of those terms in this section. PEL - X1:0L (07l9S) 7 of 12 Includes copyrigh::d rt=te^al of Insu--ance Services 0:... _. Inc., P. Personal injury means: False arrest, false imprisonment, wrongful entry, wrongful eviction, wrongful detention or malicious prosecution. Personal injury includes humiliation, mental anguish, mental injury, shock or fright, but only as a direct result of false arrest, false imprisonment, wrongful entry, wrongful eviction, wrongful detention or malicious prosecution; or The publication or utterance of a libel or slander or of other defamatory or derogatory material, or a publication or utterance in violation of rights of privacy, unless done by or at the direction of the Insured with knowledge of its falsity; or 3. Piracy, unfair competition or idea misappropriation under an implied contract or infringement of copyright, title or slogan arising out of the Named Insured's advertising activities; or Discrimination, unless insurance thereof is prohibited by law. Q. Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including, but not limited to smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. R. Property damage means: 1. Physical injury to or destruction of tangible property which occurs during the policy period including the loss of use thereof at any time resulting therefrom; or 2. Loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period. S. Public entity errors and omissions means any actual or alleged misstatement or misleading statement or act or omission or neglect or breach of duty including misfeasance, malfeasance or nonfeasance by the Insured, individually or collectively, in the discharge of their duties for the Named Insured, or any matter claimed against them solely by reason of their being or having been an Insured. Public entity errors and omissions includes injury that occurs during the policy period and arising out of any act, error or omission in the administration of the Named Insured's employee benefit program. T. ►Retention means the self insured retention of the Insured including defense costs as shown in Item 2 of the .Declarations. U. servant means an individual, other than an independent contractor, who is authorized by the Named Insured to act on behalf of the Named Insured -but who acts without compensation. V. Suit means a civil proceeding in which damages because of bodily injury, personal injury, property damage or public entity errors and omissions to which this insurance applies are alleged. Suit includes: 1. An arbitration proceeding in which such damages are claimed and to which the Insured must submit or does submit with the Company's consent; or 2. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the Insured submits with the Company's consent. W. Ultimate net loss means the total amount of damages actually paid in the settlement or satisfaction of losses for which the Insured is liable either by adjudication or by compromise with the written consent of the Company, after malting proper deduction for all recoveries and salvages and other collectible insurance. X. Waste means all waste including materials to be recycled, reconditioned or reclaimed. SECTION VI - CONDITIONS A. PREMIUM The premium set forth in the Declarations is an estimated premium only, unless indicated as a fixed premium. Upon termination of this policy, where the premium is estimated, earned premium shall be computed in accordance with the premium computation provisions of an endorsement attached hereto. Where the earned premium thus computed exceeds the advance premium paid, the Insured shall pay the remaining earned PEL - XDOL (0719S) S of 12 Includes copyrighted -material of Insurance Services Office. I-c . premium to the Company. Where the earned premium thus computed is less than the advance premium paid, the Company shall return the unearned premium to the Named Insured. B. INSPECTION AND AUDIT The Company shall be permitted but not obligated to inspect the Named Insured's property and operations at any time. Neither the Company's right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking, on behalf of or for the benefit of the Narced Insured or others, to determine or warrant that such property or operations are safe or healthful, or are in compliance with any law, rule or regulation. The Company may examine and audit the Named Insured's books and records at any time during the policy period and extensions thereof and within three years after the final termination of this policy, as far as they relate to the subject matter of this insurance. C. SEVERABILITY OF INTEREST The term "the Insured" is used severally and not collectively, but the inclusion herein of more than one Insured shall not operate to increase the limits of the Company's liability. D. PAYMENTS If circumstances should occur wherein any Insured or any combination of Insureds shall be determined to be legally liable to one or more persons in a sum in excess of the Limit of Liability of the Company, or in such manner as to render one or more Insureds liable in excess of the Limit of Liability of the Company, then the Company may, at its option, apportion its payment on behalf of each Insured in same proportion that the liability of each Insured bears to the total liability of all Insureds. Such payments by the Company shall be deemed to constitute full and final payment by the Company of all of its obligations to all Insureds, and in no event shall the Company be liable for more than the agreed Limit of Liability. E. CANCELLATION This policy may be canceled by the Named Insured by surrender thereof to the Company or any of its authorized agents or by mailing to the Company written notice stating when thereafter the cancellation shall be effective. This policy may be canceled by the Company by mailing to the Named Insured at its last known address, written notice stating when not less than sixty (60) days thereafter such cancellation shall be effective, provided that, if the Insured fails to discharge when due any of its obligations in connection with the payment of premium for this policy or any installment thereof, this policy may be canceled by the Company by mailing to the Named Insured at its last known address, written notice stating when not less than ten (10) days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of surrender or the effective date and hour of cancellation stated in the notice shall become the end of the policy period. If the Company cancels, earned premium shall be computed pro rats. If the Named Insured cancels, return premium shall be computed as 90% of pro rats. Premium adjustment may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation. F. INSURED'S DUTIES IN THE EVENT OF A CLAIM In the event of a claim which is greater than or equal to, or an occurrence which is reserved at greater than or equal to, fifty (50) percent of the Insured's retention, the Insured shall: 1. Give to the Company, or any of its authorized agents, written notice containing particulars sufficient to identify the Insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses as soon as practicable; and 2. Immediately forward to the Company, or any of its authorized agents, every demand, notice, summons or other processes received by the Insured or its representative. The Insured shall report losses, without regard to liability, falling within the following classifications: a. Fatalities; b. Spinal cord injuries; PEL • \DOL (07/9S) 9 of 12 Includes copyrighted of 1asurance Se, :i_es Of-ce. lr. . C. Amputations or loss of use of an arm or leg; d. Loss of sight of either or both eyes; e. Severe burns, cosmetic deformity or disfigurement; Serious head injury; g. Serious loss of use of any body function; h. Long term hospitalization. The Insured shall cooperate with the Company and, upon the Company's request, assist in malting settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or entity who may be liable to the Insured because of injury or damage with respect to which insurance is afforded under this policy. The Insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The Insured shall not, except at its own cost, voluntarily make any payment, assume any obligation or incur any expense in excess of its retention. However, in the event that an ultimate net loss in excess of the retention becomes certain either through trial court judgment or agreement among the Insured, the claimant and the Company, then the Insured for that part of such payment which is in excess of the retention, or the Company, will, upon request of the Insured, make such payment to the claimant on behalf of the Insured. G. CLAIMS ADMINISTRATOR The Insured shall maintain, at its own expense, a contract with an independent claims administrator unless the Company has given approval for the Insured to be self-administered. The independent claims administrator, or the Insured if self-administered, will report to the Company or its authorized agent, on a quarterly basis, all claims activity to include: claimant, date of occurrence/claim, type of loss, reserve, amount paid, total incurred, description and disposition oteach claim. The independent claims administrator, or the Insured, will be responsible for reporting to the Company claims information until such time as all claims pertaining to this policy have been closed. The Company shall be permitted but not obligated to audit the Named Insured's independent claims administrator, or the Insured if self-administered, with respect to litigation assessment procedures, 5tablishment of reserves and other claims administration activities with regard to occurrences which may be insured by this policy. H. CHANGES Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the Company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy. I. ASSIGNIVfENT Assignment of interest under this policy shall not bind the Company until its consent is endorsed hereon. If, however, an Insured shall die, such insurance as is afforded by this policy shall apply: 1. To the Insured's legal representative, as the Insured, but only while acting within the scope of their duties as such; and 2. With respect to the property of the Insured, to the person having proper temporary custody thereof, as the Insured, but only until the appointment and qualification of the legal representative. J. OTHER R4SURAl\'CE If other valid and collectible insurance is available to the Insured for a loss also covered hereunder, the insurance hereunder shall be in excess of, and not contribute with such other insurance provided, however, this does not apply to insurance which is written as excess insurance over the Company's Limit of Liability provided by this policy. PEL - XDOL (07/9S) 10 of 12 Deludes copyrighted ma:er',al of Insurance Services Office. Inc.. In addition, this insurance is excess over any other insurance, whether primary, excess, contingent or on any other basis, that is valid and collectible insurance available to the Insured as an additional insured under a policy issued to: 1. A contractor performing work for the Insured; or 2. A tenant renting or leasing land or premises from the Insured; or 3. A lessee of equipment owned by the Insured. When this insurance is excess, the Company will have no duty to defend any claim or suit that any other insurer has a duty to defend. If no other insurer defends, then the Company will undertake to do so, subject to all the policy terms and conditions stated herein including the applicable retention, but the Company will be entitled to the Insured's rights against all those other insurers. When this insurance is excess over other insurance, the Company will pay only its share of the amount of loss, if any, that exceeds the sum of: 1. The total amount that all such other insurance would pay for the loss in the absence of this insurance; and 2. The total of all deductibles and self -insured amounts under all that other insurance. The Company will share the remaining loss, if any, with any other insurance that is not described in this Excess insurance provision and was not bought specifically to apply in excess of the Limits of Liability shown in the Declarations of this policy. When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the Company shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below: 1. Contribution by equal shares. If all of such other valid and collectible insurance provides for contribution by equal shares, the Company shall not be liable for a greater proportion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable Limit of Liability under any one policy or the full amount of the loss is paid, and with respect to any amount of loss not so paid, the remaining insurers then continue to contribute equal shares Of the remaining amount of the loss until each such insurer has paid its limit in full or the full amount of the loss is paid. 2. Contribution by limits. If any'of such other insurance does not provide for contribution by equal shares, the Company shall not be liable for a greater proportion of such loss than the applicable Limit of Liability under. this policy for such loss bears to the total applicable Limit of Liability of all valid and collectible insurance against such loss. K. SUBROGATION The Company shall be subrogated to the extent of any payment hereunder to all the Insured's rights of recovery thereof, and the Insured shall do nothing after loss to prejudice such right and shall do everything necessary to secure such right. Any amount so recovered shall be apportioned as follows: 1. Any interest (including the Insureds) having paid an amount in excess of the Named Insured's retention plus the Limit of Liability hereunder shall be reimbursed first to the extent of the actual payment. The Company shall be reimbursed next to the extent of its actual payment hereunder. If any balance then remains unpaid, it shall be applied to reimburse the Insured or any underlying insurer, as their interests may appear. 2. The expenses of all such recovery proceedings shall be apportioned in the ratio of respective recoveries. If there is no recovery in proceedings conducted by the Company, it shall bear the expenses thereof. L. ACTION AGAMT COMPANY No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy, nor until the amount of the Insured's obligation to pay shall PEL - K"DOL (07/9S) 11 of 12 Includes copyrighted material of Insurance Servic:s Office. Inc., have been finally determined either by judgtncat against the Insured after a:tual trial or by written agreement of the Insured, the claimant and the Company. Any person or organization or the local representative thereof %vho has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or entity shall have any right under this policy to join the Company as a party to any action against the Insured to determine the Insured's liability, nor shall the Company be impleaded by the Insured or its legal representative. Bankruptcy or insolvency of the Insured or of the Insured's estate shall not relieve the Company of any of i-ts obligations hereunder. M. APPEALS In the event the Insured or any insurer with valid and collectible insurance applying to an occurrence elects not to appeal a judgment in excess of the retention, the Company may elect to do so at its own expense, and shall be liable for the taxable costs, disbursements and interest incidental thereto, but in no event shall the liability of the Company for ultimate net loss exceed the amount specified in Item 1 of the Declarations. N. ARBITRATION In the event that a dispute arises between the Insured and the Company under this agreement or concerning when a claim or suit should be settled or the amount of such settlement, such dispute shall be subject to arbitration and both parties shall be bound by the findings and decision of the arbitrator or arbitrators. The Company and the Insured may agree to use one arbitrator. If they fail to agree on the ideritity of one arbitrator, the dispute shall be referred to three arbitrators; one being chosen by the Insured, one being chosen by the Company, and the third being chosen by the two aforesaid arbitrators. Should the arbitrators so chosen by the Insured and the Company not agree as to the third arbitrator within one month after both have accepted service, each party shall name two individuals of whom the other shall decline one, and the selection shall then be made by drawing lots.. Should either party hereto fail to appoint an arbitrator within one month after receipt of written notice, delivered by Certified Mail, from the other party requesting it to do so, the requesting party shall name both arbitrators, and they shall proceed in all respects as above stipulated. The arbitrators shall consider this agreement an honorable engagement rather than merely a legal obligation. Local rules of law as to procedure and evidence will apply and arbitration shall take place in the county in which the Insured's address, as shown in the Declarations, is located. The decision of the majority of the arbitrators shall be final and binding upon both parties and not subject to appeal. A judgment based on the majority decision of the arbitrators may be entered in any court having jurisdiction upon the request of the Insured or the Company. 0. ACCEPTANCE By acceptance of this policy the Insured represents that the information contained in the Declarations and any Application submitted to obtain this insurance is accurate and provided in good faith and that this policy is issued in reliance upon such representation. It is understood and agreed that this policy embodies all agreements between the Company and the Insured relating to this insurance. PEL - .l'DOL (07/9S) 12 of 12 off+ .� —, :''.? o irS::'1. 1,.elud:s cep;.ri_ .;.,. ,.. cc Servires Or:._. INSURANCE'COMPANY OF THE WEST THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT n: POLICY R: EFFECTIVE DATE: NAMED INSURED: COUNTERSIGNED: This endorsement modifies insurance provided under the following: PUBLIC ENTITY LIABILITY POLICY EXCESS PUBLIC ENTITY LIABILITY POLICY TIME ELEMENT POLLUTION EXCLUSION Section II., Exclusions, Exclusion F is deleted in its entirety and replaced with the following: 1. To any injury, damage or any other liability which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time. 2. To any loss, cost or expense arising out of any governmental direction or request that the Company, the Insured or any other person or organization test for, monitor, clean-up, remove, contain, treat, detoxify, neutralize or assess the effects of pollutants; or 3. To any loss, cost or expense, including but not limited to costs of investigation or attomeys' fees, incurred by a governmental unit or any other person or organization to test for, monitor, clean-up, remove, contain, treat, detoxify or neutralize pollutants. 4. a The exclusions set forth in 1, 2, or 3 above do not apply if said discharge, dispersal, release or escape of pollutants meets all the following conditions: a) It was accidental and neither expected not intended by the Insured; and b) It was demonstrable as having commenced on a specific date during the term of this policy; and c) Its commencement became known to the Insured within seven (7) calendar days; and d) Its commencement was reported in writing to the Company within thirty (30) calendar days of becoming known to the Insured; and e) Reasonable effort was expended by the Insured to terminate the discharge, dispersal, release or escape of pollutants as soon as conditions permitted. 5. Nothing contained in this endorsement shall operate to provide any coverage with respect to: a) Any site or location principally used by the Insured, or by others on the Insured's behalf, for the handling, storage, disposal, dumping, processing or treatment of waste material; b) Any fines or penalties; c) Any clean up costs ordered by the Superfund Program, or any federal, state or local governmental authority. However, this specific exclusion c. shall not serve to deny coverage for third party clean up costs otherwise covered by this endorsement simply because of the involvement of a governmental authority; d) Acid rain; PEEL 1076 (07-98) Page 1 of 2 e) Clean up, removal, containment, treatment, detoxification or neutralization of pollutants situated on premises the Insured owns, rents or occupies at the time of the actual discharge, dispersal, seepage, migration, release or escape of said pollutants; or t) Water pollution caused by oil or its derivatives. This exclusion does not apply: 1. To any injury, damage or any other liability caused by heat, smoke or fumes from a hostile fire; ?. To any injury, damage or any other liability arising out of police use of mace, oleoresin capsicum (o.c.), pepper spray or tear gas; 3. To any injury, damage or any other liability arising out of fire fighting or rescue unit operations when those operations are conducted away from the Insured's premises; 4. To any injury, damage or any other liability arising out of collision, upset or overturn of an automobile or mobile equipment; or 5. To any injury, damage or any other liability arising out of the application of herbicides or pesticides by the Insured if the application of said herbicides or pesticides meets all standards of any statute, ordinance, regulation or license requirement of any Federal, State or Local Government which apply to those operations. It is further agreed this exclusion does not apply: 1. To any injury, damage or any other liability arising out of explosion, lightning, windstorm, vandalism or malicious mischief, collapse, riot and civil commotion, flood or earthquake if said discharge, dispersal, release or escape of pollutants meets all of the following conditions: a. Its commencement was recorded and reported to the Risk Manager or designated Department Head within a seventy-two (72) hour period; and b. Regardless of whether any claim or suit against the Insured has been made, the Insured shall give written notice to the Company within thirty (30) calendar days of the Risk Manager's or designated Department Head's recorded entry of such discharge, dispersal, release or escape of pollutants which may result in liability for bodily injury, property damage, personal injury or public entity errors and omission due to an occurrence. All other terms, conditions, and exclusions remain unchanged. PEL 1076 (07-98) Page 2 of 2 INSURANCE COMPANY OF THE WEST THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT n: POLICY n: EFFECTIVE DATE: NAMED INSURED: COUNTERSIGNED: This endorsement modifies insurance provided under the following: PUBLIC ENTITY LIABILITY POLICY EXCESS PUBLIC ENTITY LIABILITY POLICY SCHOOL LIABILITY POLICY EXCESS SCHOOL LIABILITY POLICY ' KNOWLEDGE OF OCCURRENCE It is agreed that knowledge of an occurrence, accident, injury, claim, suit or loss by the Insured's agent, servant or employee shall not, in itself, constitute knowledge by the Named Insured, unless and until the Insurance Manager has knowledge thereof. PEL -1100 (12-97) Page 1 of 1 INSURANCE COMPANY OF THE WEST THIS ENDORSEMENT CHANGES THE POLICY. PLEASE REND IT CAREFULLY. EYDORSEMENT n: POLICY r: EFFECTIVE DATE: NAMED INSURED: COUNTERSIGNED: This endorsement modifies insurance provided under the following: PUBLIC ENTITY LIABILITY POLICY -EXCESS PUBLIC ENTITY LIABILITY POLICY SCHOOL LIABILITY POLICY ' EXCESS SCHOOL LIABILITY POLICY UNINTENTIONAL ERRORS & OMISSIONS It is agreed that failure of the Named Insured to disclose all hazards existing on the effective date of this policy shall not prejudice the Insured with respect to the coverage afforded by this policy provided such failure or any omission is not intentional. x PEL -1100 (12-97) Page 1 of I INSURANCE COMPANY OF THE WEST THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT r: POLICY #: EFFECTIVE DATE: NA1MED INSURED: COUNTERSIGNED: This endorsement modifies insurance provided under the following: PUBLIC ENTITY LIABILITY POLICY EXCESS PUBLIC ENTITY LIABILITY POLICY SCHOOL LIABILITY POLICY EXCESS SCHOOL LIABILITY POLICY BLANKET ADDITIONAL INSURED ENDORSEMENT The Who is an Insured section of this policy is amended to include any person or organization the Insured is contractually obligated to include as an Additional Insured, and for which a Certificate of Insurance has been issued evidencing such status and which is on file with the Company, with respect to bodily injury, property damage and personal injury arising out of the Named Insured's operations or premises owned by or rented to the Named Insured. The insurance provided to the Additional Insured does not apply to any liability occurring after�those operations or use of premises has ceased. F The inclusion of more than one Insured under this policy shall not operate to impair the rights of one Insured against another Insured and the coverage's afforded by this policy shall apply as though separate policies had been issued to each Insured. The inclusion of more than one Insured shall not, however, operate to increase the limit of the Company's liability. Any other insurance carried by a Certificate Holder which may be applicable shall be deemed excess and the Insured's insurance primary notwithstanding any conflicting provisions in the Insured's policy to the contrary. A Certificate Holder shall not, by reason of their inclusion under this policy, incur liability for payment of premium for this policy. In the event of reduction in coverage or cancellation of this insurance, the Company agrees to mail thirty (30) days, ten (10) days for non-payment of premium, advance notice of such reduction or cancellation to each entity added as per Certificates on file with the Company which specify that a written contract requiring that the Certificate Holder be an Additional Insured. All other terms, conditions, and exclusions remain unchanged. PEL -1100 (12-97) Page 1 of 1 INSURANCE COMPANY OF THE WEST THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT #: POLICY "": EFFECTIVE DATE: NAMED INSURED: COUNTERSIGNED: This endorsement modifies insurance provided under the following: PUBLIC ENTITY LIABILITY POLICY EXCESS PUBLIC ENTITY LIABILITY POLICY AMENDMENT OF EXCLUSION "U" It is agreed that Exclusion U does not apply to Secondary Employment authorized by the Insured's Law Enforcement Department for their employees while such employees are engaged in non -employment related activities. Coverage as provided by this endorsement is limited to only authorized Secondary Employment for law enforcement or security type activities. t All other terms and conditions in this policy shall remain unchanged. ?EL 1073 (02-9S) Pact 1 of 1 INSURANCE COINIPANY OF THE WEST THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT 4: POLICY r: EFFECTIVE DATE: NAMED INSURED: COUNTERSIGNED: '• >�° This endorsement modifies insurance provided under the following: ,;r ,-� .. PUBLIC ENTITY LIABILITY POLICY f EXCESS PUBLIC ENTITY LIABILITY POLICY TOTAL POLLUTION EXCLUSION EXCEPTION FOR DESIGNATED PRODUCTS SCHEDULE DESIGNATED PRODUCTS: Potable Water Exclulion F. Pollution, of policy form , does not apply to products designated in the Schedule above, provided that: I. If the Insured treats, neutralizes or otherwise purifies the designated products with chemicals during its normal operations, said products shall have been, are being or will be treated, neutralized or otherwise purified in accordance with applicable federal, state and local laws, regulations or permits applicable to the operations of the public entity; and/or 2. If the Insured sells or otherwise distributes the designated products, said products shall have been or are being sold or otherwise distributed in accordance with applicable federal, state and local Jaws, regulations or permits authorizing such sale or distribution. For the purposes of this endorsement, products shall mean any goods, including water in any of its designated forms, that are sold, distributed, delivered or disposed of by the Insured, others trading under the Insured's name(s) or any other persons or organizations whose business the Insured has acquired. All other terms and conditions of the policy remain the same. PEL 1033 (12-97) Page 1 of 1 INSURANCE COMPANY OF THE WEST THIS ENDORSEi1-IENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT #: POLICY: EFFECTIVE DATE: NAMED COUNTERSIGNED: INSURED.,^`" This endorsement modifies insurance proirided under the following: F r. EXCESS PUBLIC ENTITY LIABILITY POLICY AMENDMENT OF COVERAGE D EMPLOYMENT PRACTICES LIABILITY As respects Section I. A., Insuring Agreement, it is agreed that Employment Practices Liability is added to Coverage D - Public Entity Errors & Omissions and is subject to a separate retention of S per occurrence. As respects Section V., Definitions, Definition S., it is agreed that Publie'Entity Errors and Omissions is amended to read as follows: Public Officials Errors and Omissions means any actual or alleged misstatement or misleading statement or act or omission or neglect or breach of duty including misfeasance, malfeasance or nonfeasance by the Insured , individually or collectively, in the discharge of their duties for the Named Insured, or any matter claimed against them solely by reason of their being or having been an Insured and includes Employment Practices Liability. As respects Section V., Definitions, it is agreed that the following are made a part of the policy: Y. Employment Practices Liability means discrimination, sexual harassment and or wrongful termination. The following definitions apply only with respect to Employment Practices Liability under Coverage D of the Insuring Agreement: Z. Discrimination means action or inaction with respect to any present or former employee or applicant for employment with respect to his or her compensation, terms conditions, rights, privileges or opportunities because of race, color, religion; age, sex, disability, pregnancy, national origin, sexual orientation or other protected category or characteristic established pursuant to any applicable federal, state or local statute or ordinance. AA. Employee means an individual whose labor or service is engaged by and directed by an Insured. This includes part-time, seasonal and temporary employees as well as any individual employed in a supervisory, managerial or confidential position. Employee does not include any independent contractor, volunteer or servant of any Insured. BB. Sexual Harassment means unwelcome sexual advances and/or requests for sexual favors and/or other verbal or physical conduct of a sexual nature that (1) are made a condition of employment and/or (2) are used as a basis for employment decisions and/or (3) create a work environment that interferes with performance or creates an intimidating, hostile or offensive work environment. PEL 1066A (07-98) Nee t of 2 CC. Wrongful Termination means termination of an employment relationship in a manner which is against the law and wrongful or in breach of an implied agreement to continue employment. Wrongful termination shall not include damages determined to be owing under an express contract of employment or an express obligation to make payments in the event of the termination of employment. As respects Employment practices liability, only, Definition W., is deleted and replaced with the following: W. Ultimate Net Loss means damages, judgments, settlements and statutory attorney fees. However, ultimate net loss shall not include civil or criminal fines or penalties imposed by law, non - monetary relief, the multiplied portion of multiplied damages, punitive or exemplary damages, or matters which may be deemed uninsurable under the law or public policy. Ultimate net loss also shall not include payment of insurance plan benefits claimed by or on behalf of zamd .employees, or that a claimant would have been entitled to as an employee had the %surcd_pro id the claimant with a continuation.of insurance. Ultimate net loss also shall not include amounts awarded pursuant jo *$Aor.,or grievance arbitration pursuant to a collective bargaining agreement. Ultimate net loss hall noi—Mclude sums paid pursuant to any judgment or agreement, whether injunctive or otherwise to undertake actions to correct past discriminatory or.unlawful conduct or to establish practices or procedures designed to eliminate or prevent future discriminatory or other unlawful conduct or any non -monetary relief. , Ultimate net loss shall include damages, judgments, settlements and statutory attorney fees arising out of allegations of defamation, negligent infliction of emotional distress and invasion of privacy. if these allegations arise out of the facts or circumstances underlying a claim of discrimination, sexual harassment and/or wrongful termination. - The following exclusions apply. only with respect to Employment practices liability under Coverage D of the Insuring Agreement: 1. To any liability arising out of a lockout, strike, picket line, replacement or other similar actions in connection with labor disputes or'labor negotiations; 2. To any liability arising out of the Workers' Adjustment and Retraining Notification Act, Public Law t_ 100-379 (1988), or any amendment thereto or any similar federal, state or local law.. To any liability arising out of civil or criminal fines or penalties, non -monetary relief, punitive or exemplary damages including the multiplied portion of multiple damages, or matters which may be deemed uninsurable according to applicable law; 4. To any liability or costs incurred by any Insured to modify any building or property in order to make said building or property more accessible or accommodating to any disable person; 5. To any liability caused by an Insured who intentionally caused harm alleged to have arisen out of any act of discrimination or sexual harassment. However, defense will be provided until such time as such Insured is finally judicially determined to have intentionally caused the resulting harm. Where it is determined that a claim covered by Employment practices liability has occurred no other coverage under this policy shall be applicable. All other terms and conditions in this policy shall remain unchanged. PEL 1066A (07-9S) Px£'2of2 INSURANCE•COMPANY OF THE WEST THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT n: POLICY n: EFFECTIVE DATE: NAMED COUNTERSIGNED: INSURED: This endorsement modifies insurance provided under the following: PUBLIC ENTITY LIABILITY POLICY EXCESS PUBLIC ENTITY LIABILITY POLICY SCHOOL LIABILITY POLICY EXCESS SCHOOL LIABILITY POLICY DELETION OF EXCLUSION ` N" AND EXCLUSION "O" It is agreed that under Section II. - Exclusions, Exclusion "N" and Exclusion "0" are hereby deleted in their entirejy. All otter terms and conditions of this policy shall remain unchanged D.:L 1044 (12-97) Page 1 of 1 From: Tracy Velasquez At: Upshaw Insurance To: Leisa Hutcheson Fax#: (806) 372.5312 Date: 8/30/99 03:14 PM Page 2 of 2 Upshaw Insurance Agency, Inc. P. 0. Box 1299 Amarillo, TX 79105-1299 Phone : 806-372-5561 Fax: 806-372-5312 City of Lubbock Purchasing Department P.O.Box 2000 Lubbock, TX 79457 N'I E INI O Page 1 ACCOUNT NO. CSK DATE C ITY010 TV 08/30/99 Leisa Hutcheson Re: RFF99-143 To confirm our telephone conversation: Insurance Company of the West will offer a retroactive date of 5 years on the Law 3nforcement Liability & Public Officials for unknown and unreport?d claims at no additional charge. Subject to there being no prior knowledge oy any City of Lubbock personnel. If we can be of any further assistan,:-,e,•please let me know. Thank you. Tracy Velasquez r,