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HomeMy WebLinkAbout2018 CON George H Eiser III, Esq - Legal ServicesAGREEMENT FOR LEGAL SERVICES BY AND BETWEEN THE CITY OF NATIONAL CITY AND GEORGE H. EISER, III, ESQ. THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") entered into this 30th day of October, 2018, is made between the City of National City (the "CITY") and GEORGE H. EISER, III, ESQ. (the "FIRM"). This Agreement sets forth the parties' mutual understanding concerning legal services to be provided by the FIRM and the fee arrangement for said services. Article 1. Retainer. The CITY hereby retains the FIRM to perform general legal services related to municipal law matters, subject to this Agreement. Article 2. Scope of Services. The CITY shall have the right in its sole discretion to determine the particular services to be performed by the FIRM under this Agreement. These services may include the following: general legal services regarding municipal law matters. It is expected that the FIRM will work with the CITY's City Attorney and staff. Article 3. Compensation. Compensation paid under this Agreement shall be $325.00 per hour, billed on an hourly basis. A. The CITY has appropriated or otherwise duly authorized the payment of an amount not to exceed $50,000.00 for legal services and out-of-pocket disbursements pursuant to this Agreement. In no event shall the total fees plus out-of-pocket disbursements exceed this amount without written authorization of the CITY. The CITY and the FIRM may agree to a lesser amount for individual projects within the Scope of Services. B. The FIRM shall keep the CITY advised monthly as to the level of attorney hours and client services performed under Article 1. The FIRM will not charge the CITY for travel time; however, the FIRM may charge for work performed for the CITY during any travel time. C. The CITY further agrees to reimburse the FIRM, in accordance with the procedures set forth in this Article, for telephone, fax, mail, messengers, Federal Express or UPS deliveries, document reproduction, client -requested clerical overtime, lodging, and similar out- of-pocket expenses charged by the FIRM as a standard practice to its clients generally, with the exception of travel and meals. In any billing for disbursements, the FIRM shall provide the CITY with a statement breaking down the amounts by category of expense. The following items shall not be reimbursed, unless the CITY has specifically agreed otherwise. (1) Word Processing, clerical or secretarial charges, whether expressed as a dollar disbursement or time charge. (2) Storage of open or closed files, rent, electricity, local telephone, postage, receipts or transmission of telecopier documents, or any other items traditionally associated with overhead. (3) Photocopy charges in excess of $.15 (fifteen cents) per page. (4) Auto mileage rates in excess of the rate approved by the Internal Revenue Service for income tax purposes. (5) Secretarial overtime. Where case requirements demand overtime, the CITY will consider reimbursement on a case -by -case basis. The CITY will not reimburse overtime incurred for the convenience of the FIRM's failure to meet deadlines known in advance. (6) Equipment, books, periodicals, research materials, Westlaw/Lexis or like items. (7) Express charges, overnight mail charges, messenger services or the like, without the CITY's prior consent. The CITY expects these expenses to be incurred in emergency situations only. Where case necessity requires the use of these services, the CITY will consider reimbursement on a case -by -case basis. (8) Travel and meals. (9) Late payment charge and/or interest. Due to the nature of the CITY's payment process, the CITY will not pay any late charges or interest charges to bills. Every effort will be made to pay bills promptly. D. Bills from the FIRM should be submitted to Office of the City Attorney, 1243 National City Boulevard, National City, CA 91950-4301. The individual time and disbursement records customarily maintained by the FIRM for billing evaluation and review purposes shall be made available to the CITY in support of bills rendered by the FIRM. E. The FIRM agrees to forward to the CITY a bill for each one -month period of services under this Agreement, and the CITY agrees to compensate the FIRM on this basis. F. Billing Format. Each billing entry must be complete, discrete and appropriate. (1) Complete. (a) Each entry must name the person or persons involved. For instance, telephone calls must include the names of all participants. (b) The date the work was performed must be included. (c) The hours should be billed in .10 hour increments. (d) The specific task performed should be described, and the related work product should be reference ("telephone call re: trial brief," "interview in preparation for deposition"). (e) The biller's professional capacity (partner, associate) should be included. (2) Discrete: Each task must be set out as a discrete billing entry; neither narrative nor block billing is acceptable. (3) Appropriate. (a) The CITY does not pay for clerical support, administrative costs, overhead costs, outside expenses or excessive expenses. For example, the CITY will not pay for secretarial time, word processing time, air conditioning, rental of equipment, including computers, meals served at meetings, postage, online research, or the overhead costs of sending or receiving faxes. Neither will the CITY pay for outside expenses such as messenger delivery fees, outside photocopying, videotaping of depositions, investigative services, outside computer litigation support services, or overnight mail. (b) Due to the nature of the CITY's payment process, the CITY will not pay any late charges. Every effort will be made to pay bills promptly. 2018 Agreement 2 City of National City and General Legal Services George H. Eiser, III, Esq. G. Staffing. Every legal matter should have a primarily responsible attorney and a paralegal assigned. Ultimately, staffing is a CITY decision, and the CITY's representative may review staffing to insure that it is optimal to achieve the goals of the engagement at the least cost. Once an attorney is given primary responsibility for an engagement, that person should continue on the legal matter until the matter is concluded or the attorney leaves the FIRM. Article 4. Independent Contractor. The FIRM shall perform services as an independent contractor. It is understood that this contract is for unique professional services. Accordingly, the duties specified in this Agreement may not be assigned or delegated by the FIRM without prior written consent of the CITY. Retention of the FIRM is based on the particular professional expertise of the individuals rendering the services required in the Scope of Services. Article 5. Confidentiality of Work. All work performed by the FIRM including but not limited to all drafts, data, correspondence, proposals, reports, and estimates compiled or composed by the FIRM pursuant to this Agreement is for the sole use of the CITY. All such work product shall be confidential and not released to any third party without the prior written consent of the CITY. Article 6. Compliance with Controlling Law. The FIRM shall comply with all applicable laws, ordinances, regulations, and policies of the federal, state, and local governments as they pertain to this Agreement. In addition, the FIRM shall comply immediately with any and all directives issued by the CITY or its authorized representatives under authority of any laws statutes, ordinances, rules, or regulations. The laws of the State of California shall govern and control the terms and conditions of this Agreement. Article 7. Acceptability of Work. The CITY shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event the FIRM and the CITY cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the FIRM in this Agreement, the CITY or the FIRM shall give to the other written notice. Within ten (10) business days, the FIRM and the CITY shall each prepare a report which supports their position and file the same with the other party. The CITY shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the FIRM. Article 8. Indemnification. The FIRM agrees to indemnify and hold the CITY and its agents, officers, and employees harmless from and against all claims asserted or liability established for damages or injuries to any person or property, including injury to the FIRM's employees, agents, or officers, which arise from or are connected with or caused by the negligent acts or omissions or willful misconduct of the FIRM and its agents, officers, or employees in performing the work or other obligations under this Agreement, and all expenses of investigating and defending against same; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CITY, its agents, officers, or employees. 2018 Agreement 3 City of National City and General Legal Services George H. Eiser, III, Esq. Article 9. Insurance. The FIRM shall not commence work under this Agreement until it has obtained all insurance required in this Article with a company or companies acceptable to the CITY. At its sole cost and expense, the FIRM shall take and maintain in full force and effect at all times during the term of this Agreement the following policies of insurance: A. For all of the FIRM's employees which are subject to this Agreement, to the extent required by the State of California, Workers' Compensation Insurance in the amount required by law. B. Errors and omissions insurance in an amount not less than one million dollars ($1,000,000) per claim. C. All insurance required by express provision of this Agreement shall be carried only in responsible insurance companies licensed to do business in the State of California. The policies carried pursuant to paragraph 9.A above shall name as additional insureds the CITY and its elected officials, officers, employees, agents, and representatives. All policies shall contain language, to the extent obtainable, to the effect that: (1) the insurer waives the right of subrogation against the CITY and its elected officials, officers, employees, agents, and representatives; (2) the policies are primary and not contributing with any insurance that may be carried by the CITY; and (3) the policies cannot be cancelled or materially changed except after thirty (30) days' notice by the insurer to the CITY by certified mail. The FIRM may effect for its own account insurance not required under this Agreement. Article 10. Drug Free Work Place. The FIRM agrees to comply with the Drug -Free Workplace requirements of the City of National City. Every person awarded a contract by the CITY for the provision of services shall certify to the CITY that it will provide a drug -free workplace. Any subcontract entered into by the FIRM pursuant to this Agreement shall contain this provision. Article 11. Non -Discrimination Provisions. The FIRM shall not discriminate against any subcontractor, vendor, employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The FIRM will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The FIRM agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. Article 12. Effective Date and Term. This Agreement shall be effective upon execution by the FIRM and the CITY and continue until written notice of cancellation. This Agreement may be terminated at any time by either party with sixty (60) days' written notice to the other. Notice of termination by the FIRM shall be given to the CITY's City Attorney. Article 13. Notification of Change in Form. The FIRM has the right to effect changes in form including but not limited to: the change in form from a partnership to a professional law corporation; the change in form of any partner or partners from an individual or 2018 Agreement 4 City of National City and General Legal Services George H. Eiser, III, Esq. individuals to a professional law corporation; the change in form of any corporate partner or partners to any individual partners. The CITY shall be promptly notified in writing of any change in form. Article 14. Notices. In all cases where written notice is to be given under this Agreement, service shall be deemed sufficient if said notice is deposited in the United States mail, postage paid. When so given, such notice shall be effective from the date of mailing of the notice. Unless otherwise provided by notice in writing from the respective parties, notice to the CITY shall be addressed to: City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4397 cc: City Manager City of National City 1243 National City Boulevard National City, CA 91950-4397 Notices to the FIRM shall be addressed to: George H. Eiser, III 2721 MacKinnon Ranch Road Cardiff by the Sea, CA 92007 Nothing contained in this agreement shall preclude or render inoperative service or such notice in the manner provided by law. Article 15. Headines. All article headings are for convenience only and shall not affect the construction or interpretation of this Agreement. Article 16. Miscellaneous Provisions. A. Time of Essence: Time is of the essence for each provision of this Agreement. B. California Law: This Agreement shall be construed and interpreted in accordance with the laws of the State of California. The FIRM covenants and agrees to submit to the personal jurisdiction of the San Diego Superior Court for any dispute, claim, or matter arising out of or related to this Agreement. C. Integrated Agreement: This Agreement including attachments and/or exhibits contains all of the agreements of the parties and all prior negotiations and agreements are merged in this Agreement. This Agreement cannot be amended or modified except by written agreement, and mutually agreed upon by the CITY and the FIRM. D. Severability: The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal. 2018 Agreement 5 City of National City and General Legal Services George H. Eiser, III, Esq. E. Waiver: The failure of the CITY to enforce a particular condition or provision of this Agreement shall not constitute a waiver of that condition or provision or its enforceability. F. Conflict of Interest: During the term of this Agreement, the FIRM shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the CITY. This prohibition shall not preclude the CITY from expressly agreeing to a waiver of a potential conflict of interest under certain circumstances. G. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. H. Counterparts. This Agreement may be signed in counterparts. I. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, and (iii) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY GEORGE H. EISER, III, ESQ. By. By:r"),K3 7Q Leslie Deese, City Manager APPROVED AS TO FORM: Angil P. Morris -Jones ity Attorney By: Y - Roberto M. Contreras Deputy City Attorney George H. Eiser, III, Esq. 2018 Agreement 6 City of National City and General Legal Services George H. Eiser, III, Esq. P.-4 „ Arch Insurance Group ARCH INSURANCE COMPANY A Missouri Corporation ADMINISTRATIVE OFFICE One Liberty Plaza 53rd Floor New York, NY 10006 Tel: 800-817-3252 HOME OFFICE 2345 Grand Blvd, Suite 900 Kansas City, MO 64108 LAWYERS PROFESSIONAL LIABILITY INSURANCE POLICY THIS IS A CLAIMS -MADE AND REPORTED POLICY. PLEASE REVIEW YOUR POLICY CAREFULLY. THE POLICY IS LIMITED TO LIABILITY FOR ONLY THOSE CLAIMS THAT ARE FIRST MADE AGAINST THE INSURED AND REPORTED TO THE COMPANY DURING THE POLICY PERIOD UNLESS AND TO THE EXTENT THAT AN EXTENDED REPORTING PERIOD OPTION APPLIES. Policy Number: 11LPL10680801 Item 1 Named Insured and Address George H. Eiser, III. Esq. 2721 MacKinnon Ranch Road Carditf by the Sea. CA 92007 Item 3. Item 4. Item 5. Item 6. Item 7. DECLARATIONS Policy Period From To 10/30/2018 10/30/2019 Renewal of: 11LPL10680800 Item 2. Producer Name Mercer Health & Benefits Insurance Services LLC 345 California Street Suite 1300 San Francisco, CA 94104 12:01 A.M. Standard Time at the address of the Named Insured as stated herein. Limit Liability $ 1,000,00o Each Claim $ 1,000,000 Aggregate a. Claims expenses are included within the Limit of Liability. Deductible $ 5,000 Per Claim The deductible amount specified above applies to both damages and claim expenses. Premium $ 2,645.00 Amount Forms Attached at Issue 05 ML 0002 00 1214 AIC Signature Page 05 LPL0002 05 04 17 Policy Form 00 ML 0065 00 0607 OFAC 00 LPL0I75 00 04 17 Network Security Endorsement No Charge 00 LPL 00034 00 0506 Prior Acts No. of Lawyers 1 By acceptance of B is policy the Insured agrees that the statements in the Declarations and the Applicatton and any attachments hereto are the Insured's agreements and representations and that this policy embodies all the agreements existing between the Insured and the Company or any of its representatives relating to this insurance. Do Not Write In This Box 05 LPLD0090 00 12 03 Remarks Countersigned At San Francisco ,e.‘4se Authorized Representative Issue Date 9/10/2018 9/10/2018 Countersign Date Page 1 of 1 Arch Insurance Signature Page IN WITNESS WHEREOF, Arch Insurance Company has caused this policy to be executed and attested. John Mentz Patrick K. Nails President Secretary 05 ML0002 00 12 14 Page 1 of 1 LAWYERS PROFESSIONAL LIABILITY INSURANCE POLICY NOTICE: THIS IS A CLAIMS -MADE AND REPORTED POLICY. PLEASE REVIEW THE POLICY CAREFULLY.THE POLICY IS LIMITED TO LIABILITY FOR ONLY THOSE CLAIMS THAT ARE FIRST MADE AGAINST THE INSURED AND REPORTED TO THE COMPANY DURING THE POLICY PERIOD UNLESS AND TO THE EXTENT THAT AN EXTENDED REPORTING PERIOD OPTION APPLIES. ARCH INSURANCE COMPANY (a stock insurance company, herein called the Company) agrees with all Insureds, in consideration of the payment of the premium, and in reliance upon the statements in the Declarations and subject to the limit of liability, exclusions, conditions and other terms of this policy, as follows: INSURING AGREEMENTS I. COVERAGE The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as Damages for Claims first made against the Insured and reported to the Company during the Policy Period or Extended Reporting Period, as applicable, arising out of any negligent act, error, omission or Personal Injury in the rendering of or failure to render Professional Services for others by an Insured covered under this policy. Provided always that such Professional Services or Personal Injury happen: A. during the Policy Period; or B. prior to the Policy Period provided that prior to the effective date of the first Lawyers Professional Liability Insurance Policy issued by this Company to the Named Insured or Predecessor in Business, and continuously renewed and maintained in effect to the inception of this policy period: the Insured did not give notice to any prior insurer of any such act, error, omission or Personal Injury; and 2. the Named Insured, any partner, shareholder, employee, or where appropriate the Named Insured's management committee or any member thereof, had no reasonable basis to believe that the Insured had breached a professional duty or to Reasonably Foresee that a Claim would be made against the Insured; and 3. there is no prior policy or policies which provide insurance (including any Automatic or Optional Extended Reporting Period or similar provision) of such policies for such Claim, unless the available limits of liability of such prior policy or policies are insufficient to pay any Claim, in which event this policy will be Specific Excess over any such prior coverage, subject to this policy's terms, limits of liability, exclusions and conditions. The Company shall have the right and duty to defend any suit against the Insured seeking Damages to which this insurance applies even if any of the allegations of the suit are groundless, false or fraudulent. The Company, at its option, shall select and assign defense counsel; however, the Insured may engage additional counsel, solely at their expense, to associate in their defense of any Claim covered hereunder. The Company shall also have the right to investigate any Claim and/or negotiate the settlement thereof, as it deems expedient, but the Company shall not commit the Insured to any settlement without their consent. If the Insured refuses to consent to any settlement recommended by the Company and elects to 05 LPL0002 05 04 17 Page 1 of 15 contest the Claim or continue any legal proceedings in connection with such Claim, then the liability of the Company for Damages and Claim Expenses shall not exceed the amount for which the Claim could have been settled, as well as the Claim Expenses incurred by the Company, or with the Company's consent, up to the date of such refusal. Furthermore, the Insured shall not assume any obligations, incur any costs, charges, or expenses or enter into any settlement without the Company's consent. In the event: A. Item 4.a. of the Declarations is applicable to this policy, Claim Expenses shall be part of, and not in addition to, the Limits of Liability specified in Item 4 of the Declarations; B. Item 4.b. of the Declarations is applicable to this policy, Claim Expenses shall be in addition to the Limits of Liability specified in Item 4 of the Declarations. In no event shall the Company be obligated to pay Damages or Claim Expenses or to defend, or continue to defend, any suit after the applicable limit of the Company's liability has been exhausted by payments of judgments, settlements, Damages or Claim Expenses, as applicable. II. PERSONS INSURED Each of the following is an Insured under this policy to the extent set forth below: A. The entity or person named in Item 1 of the Declarations as the Named Insured; B. Any Predecessor in Business or Successor in Business; C. Any past partners, officers, directors, stockholders or employees of any person or entity specified in item A. or B. above (except as provided in I. below), but only while acting within the scope of their duties on behalf of such person or entity; D. Any current partner, director, stockholder or employed lawyer of any person or entity specified in item A. or B. above; E Any current non -lawyer employee of any person or entity specified in item A. or B. above, but only while acting within the scope of their duties on behalf of any such person or entity; F. Any non-affiliated legal firm, including their partners, officers, directors, or employees, but solely for Professional Services performed within the scope of their contract with, and on behalf of, the Named Insured, Predecessor in Business or Successor in Business; G. Any legal representative, if the Insured becomes incompetent, insolvent, bankrupt or dies; H. Any lawyer acting as "of Counsel" or on a contracted basis but only while performing Professional Services on behalf of any person or entity specified in sections A., B., C. or D. above. Any past partner, officer, director, stockholder, or employed lawyer of any person or entity specified in Item A. or B. above who retires from the private practice of law, while employed by the Named Insured, but only for Professional Services rendered prior to the date of retirement. III. LIMIT OF LIABILITY Regardless of the number of Insureds under this insurance or the number of Claims made, the Company's liability is limited as follows: 05 LPL0002 05 04 17 Page 2 of 15 A. In the event Claim Expenses are included within the limit of liability as specified in Item 4.a. of the Declarations, the limit of liability stated in the Declarations as applicable to "each Claim" is the limit of the company's liability for all Damages and Claims Expenses because of each Claim covered hereby. Notwithstanding the forgoing, an additional aggregate limit of $50,000 shall be provided solely for payment of Claims Expenses. All Claims arising from the same or related negligent act, error or omission or Personal Injury shall be considered a single Claim for the purpose of this insurance and shall be subject to the same limit of liability. The limit of liability stated in the Declarations as "aggregate" is, subject to the above provision respecting "each Claim", the total limit of the Company's liability under this policy for all Damages and Claims Expenses. B. In the event Claim Expenses are in addition to the limit of liability as specified in Item 4.b. of the Declarations, the limit of liability stated in the Declarations as applicable to "each Claim" is the limit of the Company's liability for Damages resulting from each Claim covered hereby. There shall be a separate limit of liability equal to one-half (1/2) of the limit of liability for Damages applicable to Claim Expenses for any such Claim. Such limit for Claim Expenses shall not exceed $1,000,000 regardless of the limit of liability purchased for Damages. All Claims arising from the same or related negligent act, error or omission or Personal Injury shall be considered a single Claim for the purpose of this insurance and shall be subject to the same limit of liability. In the event that the Claim Expenses limit of liability is exhausted, all subsequently incurred Claim Expenses will apply to and erode the policy's limit of liability. The limit of liability stated in the Declarations as "aggregate" is, subject to the above provision respecting "each Claim", the total limit of the Company's liability under this policy for all Damages. A separate "aggregate" limit of liability shall apply to all Claims Expenses incurred in the defense of Claims covered by this Policy, subject to the above provision respecting the Company's liability for Claim Expenses for "each Claim". C. The Company's liability for Damages and/or Claim Expenses, as applicable, resulting from "each Claim" is in excess of the deductible amount stated in the Declarations. The deductible amount stated in the Declarations shall upon written demand by the Company, be paid by the Named Insured within 30 days of demand. D. The application of any Extended Reporting Period option shall not increase the limit of liability stated in the Declarations. E. In the event the Insured participated in an Alternative Dispute Resolution to settle a Claim brought by a client of the firm, the Company will waive 50% of the Insured's deductible obligation. The maximum amount of this waiver shall not exceed $25,000 per Claim. If the Alternative Dispute Resolution fails to resolve the Claim, and the Claim proceeds to litigation, the deductible will apply to any Damages and/or Claim Expenses paid by the Company after the litigation has commenced. F. If this policy and any other policy issued by Arch Insurance Company including any extended reporting period coverage afforded by such policy or policies, provides coverage to the same Claim against the Insured, the maximum limit of liability under all the policies shall not exceed the highest remaining Each Claim limit of liability under any one policy. IV. POLICY TERRITORY This insurance is provided worldwide. 05 LPL0002 05 04 17 Page 3 of 15 V. This insurance is provided worldwide. WHEN A CLAIM IS DEEMED AS FIRST MADE A Claim shall be deemed as being first made at the earlier of the following times: A. When the Company first receives written notice from the Insured or its representative that a Claim has been made; or B. When the Company first receives written notice from the Insured or its representative of specific circumstances or a Potential Claim involving a particular person or entity which may result in a Claim. All Claims arising out of the same or related negligent act, error, omission or Personal Injury shalt be considered as having been made at the time the first such Claim is made, and shall be subject to the same limit of liability and deductible. VI. SUPPLEMENTARY PAYMENTS The Company will pay, in addition to the applicable limit of liability: A. Up to $500 for loss of earnings to each Insured for each day or part of a day of such Insured's attendance, at the Company's request, at a trial, deposition, hearing, mediation or arbitration proceeding involving a civil suit against such Insured for covered Damages, but the amount so payable for any one or series of trials, depositions, hearings or arbitration proceedings arising out of the same or related negligent act, error, omission or Personal Injury shall in no event exceed $10,000; and B. Up to $25,000 per Policy Period for each lawyer included within sub -sections A., B., C., D. and I. of Persons Insured for attorney fees and other costs, expenses or fees resulting from the investigation or defense of a proceeding before a state licensing board, peer review committee or governmental regulatory body incurred as the result of a notice of a proceeding first received by the Insured and reported to the Company during the Policy Period, arising out of any negligent act, error, omission or Personal Injury in the rendering of or failure to render Professional Services by an Insured covered under this policy. VII. EXCLUSIONS This insurance does not apply to Claims: A. Based on or arising out of the Insured's services and/or capacity as an employee, owner, partner, stockholder, director, officer or trustee of any sole proprietorship, partnership or corporation or other business enterprise which is not defined as Named Insured, Predecessor in Business or Successor in Business unless such Claim arises out of a lawyer -client relationship; B. Arising out of any dishonest, fraudulent, criminal or malicious act or omission, or deliberate misrepresentation (including but not limited to, actual or alleged violations of state or federal antitrust, price-fixing, restraint of trade, copyright or deceptive trade practice laws, rules or regulations) committed by, at the direction of, or with the knowledge of any Insured; however, we will provide a defense of such actions until such time as the act is ruled either by trial verdict, court ruling, regulatory ruling or legal admission as dishonest, fraudulent, criminal or malicious. C. Based on or arising out of any obligations for which any Insured or any carrier acting as the insurer may be liable under any workers' compensation, unemployment compensation, disability or pension benefits law, or any similar laws, including but not limited to, the 05 LPL0002 05 04 17 Page 4 of 15 Employee Retirement Income Security Act of 1974 and any amendments thereof; this exclusion does not apply to the usual and customary legal services performed in connection with such capacities or laws on behalf of any person or entity not defined as an Insured; D. Arising out of the Insured's services and/or capacity as: 1. an officer, director, partner, trustee, or employee of: (a) a charitable organization; (b) a pension, welfare, profit sharing or mutual fund; (c) an investment fund or investment trust; 2. a public official, or an employee of a governmental body, subdivision, or agency; or 3. a fiduciary under the Employee Retirement Income Security Act of 1974 and its amendments or any regulation or order issued pursuant thereto, except if an Insured is deemed to be a fiduciary solely by reason of legal advice rendered with respect to an employee benefit plan; 4. a trustee, administrator, conservator, executor, guardian, receiver or similar fiduciary capacity when any Insured is a beneficiary or distributee of any trust or estate serviced and the fee accruing from such work inures to the benefit of any Insured. E. For bodily injury, sickness, disease or death of any person, or injury to or destruction of any tangible property or loss of use resulting therefrom; F. Arising out of notarized certification or acknowledgment of a signature without the physical appearance before such notary public of the person who is or Claims to be the person signing said instrument; G. Arising out of any negligent act, error, omission or Personal Injury in the rendering of or failure to render Professional Services performed for any organization, corporation, company, partnership, or operation (other than the Named Insured, Predecessor in Business or Successor in Business) while any Insured or their spouse has more than 10% equity position in such entity; Made by an Insured under this policy against any other Insured under this policy, unless such Claim arises solely out of Professional Services performed for that party in a lawyer - client capacity; Solely as respects Personal Injury: the willful violation of a penal statute or ordinance committed by or with the knowledge or consent of the Insured; 2. libel or slander or the publication or utterance of defamatory or disparaging material concerning any person or organization or goods, products or services, or in violation of an individual's right of privacy, made by or at the direction of the Insured with the Insured's knowledge of the falsity thereof; 3. failure of performance of contract, but this exclusion does not apply to the unauthorized appropriation of ideas based upon alleged breach of implied contract; 05 LPL0002 05 04 17 Page 5 of 15 4. infringement of trademark, service mark or trade name, other than titles or slogans, by use thereof on or in connection with goods, products or services sold, offered for sale or advertised; or 5. knowingly incorrect description or mistake in advertised price of goods, products or services sold, offered for sale or advertised. VIII. DEFINITIONS When used in this policy (including endorsements forming a part hereto): "Alternative Dispute Resolution" means the use of arbitration or mediation. "Claim" means a demand for money or services, or the filing of suit or institution of arbitration proceedings or Alternative Dispute Resolution naming an Insured and alleging a negligent act, error, omission or Personal Injury resulting from the rendering of or failure to render Professional Services. Claim does not include proceedings seeking injunctive or other non -pecuniary relief. "Claim Expenses" means: (a) Fees charged by an attorney(s), arbitrator(s) or mediator(s) designated by the Company and all other fees, costs, and expenses resulting from the investigation, adjustment, defense and appeal of a Claim, suit or proceeding arising in connection therewith, if incurred by the Company, or by the Insured with written consent of the Company, but does not include salary charges or expenses of regular employees or officials of the Company, or fees and expenses of independent adjusters; (b) All costs taxed against the Insured in suits or proceedings and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the Company has paid or tendered or deposited, whether in court or otherwise, but only as respects that part of the judgment which does not exceed the limit of the Company's liability thereof. Prejudgment interest if/where payable under this policy will be in addition to the Limits of Liability stated in the Declarations. (c) Premiums on appeal bonds and premiums on bonds to release attachments in such suits, but not for bond amounts in excess of the applicable limit of liability of this policy. The Company shall have no obligation to pay for or furnish any bond. "Damages" means compensatory judgments, settlements or awards but does not include punitive or exemplary Damages, sanctions, fines or penalties assessed directly against any Insured, the retum of fees or other consideration paid to the Insured, or that portion of any award or judgment caused by the trebling or multiplication of actual Damages under federal or state law. "Insured" means any person or organization qualifying as an Insured in the "Persons Insured" provision of this policy. The insurance afforded applies separately to each Insured against whom Claim is made or suit is brought, except with respect to the Company's limits of liability. "Named Insured" means the person or organization named in Item I of the Declarations of this policy. "Personal Injury" means: (a) false arrest, detention or imprisonment, wrongful entry or eviction, other invasion of private occupancy, or malicious prosecution; (b) the publication or utterance of libel, slander or other defamatory or disparaging material, or a publication or an utterance in 05 LPL0002 05 04 17 Page 6 of 15 violation of an individual's right of privacy; or (c) injury arising out of an offense occurring in the course of the Named Insured's advertising activities, including but not limited to infringement of copyright, title slogan, patent trademark, trade dress, trade names, service mark or service number. "Policy Period" means, whenever used in this policy, the period from the inception date of this policy to the policy expiration date as set forth in the Declarations or its earlier termination date, if any. "Potential Claim" means knowledge of any circumstances involving an individual person or entity that could result in a Claim. "Predecessor in Business" means any legal firm which has undergone a material change as follows: (a) some or all of such firm's principals, owners, officers or partners have joined the Named Insured, provided such persons were responsible for producing in excess of 50% of the prior firm's annual gross billings and such billings have been assigned or transferred to the Named Insured; or (b) at least 50% of the principals, owners, partners or officers of the prior firm have joined the Named Insured; or (c) at least 50% of the prior firm's financial assets/liabilities have been assumed by the Named Insured. "Professional Services" means: (a) services performed or advice given by the Insured in the Named Insured's practice as a law firm or legal professional; (b) services as a notary public, title agent, title insurance agent, arbitrator or mediator; (c) services as a trustee, administrator, conservator, executor, guardian, receiver or similar fiduciary capacity; (d) activities of the Insured as a member of a formal accreditation, ethics, peer review, licensing board, standards review or similar professional board or committee; (e) the publication or presentation of research papers or similar materials, but only if direct pecuniary compensation per publication or presentation is less than $3,000; (f) services performed by the Insured in a lawyer -client relationship on behalf of one or more clients shall be deemed for the purpose of this section to be the performance of Professional Services for others in the Insured's capacity as a lawyer, although such services could be performed wholly or in part by non -lawyers. Reasonably Foresee(n) means: 1. Claims or incidents reported to any prior insurer; 2. unreported Claims or suits of which any Insured had received notice prior to the effective date of the first policy with the Company; 3. incidents or circumstances that involve a particular person or entity which an Insured knew might result in a Claim or suit prior to the effective date of the first policy issued by the Company to the Named Insured, and which was not disclosed to the Company. "Specific Excess" as used in this policy and in accordance with said policy's terms and limits shall cover liability and defense if and only if all other applicable insurance has been exhausted. 05 LPL0002 05 04 17 Page 7 of 15 Specific Excess shall also apply in the event that any term or provision included in this policy offers broader coverage than any other form of insurance simultaneously held by policyholder. This interpretation shall apply to, but not be limited to, issues concerning any Extended Reporting Period, Optional Reporting Period, Automatic Extended Reporting Period, or similar periods in any prior policy or policies. "Successor in Business" means, after material change of the Named Insured, any law firm in which either (a) some or all of the principals, owners, officers and/or partners of the Named Insured have joined an existing, or formed a new, law firm provided such persons were responsible for producing in excess of 50% of the Named Insured's annual gross billings at the time of material change and such billings have been assigned or transferred to the successor law firm; or (b) at least 50% of the principals, owners, partners or officers of the Named Insured have joined an existing, or formed a new law firm, or (c) at least 50% of the Named Insured's financial assets/liabilities have been assumed by the successor law firm provided this policy does not apply to Professional Services or Personal Injury if the Successor in Business is also an Insured under any similar liability or indemnity policy, or would be an Insured under any such policy but for exhaustion of its limits of liability. This coverage shall terminate at the earlier of policy termination or 90 days from the date of material change of the Named Insured unless written notice is given to the Company, together with such information as the Company may request, and the Successor in Business shall pay any additional premium required in the event the Company agrees to continue the policy. IX. CONDITIONS A. Premium: All premiums for this policy shall be computed in accordance with the Company's rules, rates, rating plans, premiums and minimum premiums applicable to the insurance afforded herein. The Named Insured shall maintain records of the information necessary for premium computation and shall send copies of such records to the Company at such times as the Company may direct Assistance and Cooperation of Insured in the Event of Claim or Suit: Upon the Insured becoming aware of any negligent act, error, omission or Personal Injury in the rendering of or failure to render Professional Services which could reasonably be expected to be the basis of a Claim covered hereby, written notice shall be given by the Insured. or its representative to the Company together with the fullest information obtainable as soon as practicable. If Claim is made or suit is brought against the Insured; the Insured or its representative shall immediately forward to the Company every demand, notice, summons or other process received by the Insured or the Insured's representative. The Insured shall cooperate with the Company and, upon the Company's request, assist in making statements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the Insured because of Damages with respect to which this insurance applies_ 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 the Insured's own cost, voluntarily make any payments, admit liability, assume any obligation or incur any expense. The Insured may provide for Alternate Dispute Resolution with a client under an engagement letter or any other written contract, as long as such agreement is executed in writing prior to any Claim being made. C. Waiver of Exclusion and Breach of Conditions: Whenever coverage under any provision of this policy would be excluded, suspended or lost: 1 because of EXCLUSION B. relating to any judgment or final adjudication based upon or arising out of any dishonest, deliberately fraudulent, criminal, malicious or deliberately wrongful acts or omissions by any Insured; or 05 LPL0002 05 04 17 Page 8 of 15 2. because of noncompliance with Section B, CONDITIONS relating to the giving of notice to the Company with respect to which any other Insured shall be in default solely because of the default or concealment of such default by one or more partners or employees responsible for the Toss or damage otherwise insured hereunder, the Company agrees that such insurance as would otherwise be afforded under this policy shall apply with respect to each and every Insured who did not personally commit or personally participate in committing one or more of the acts, errors, or omissions described in any such exclusion or condition; provided that if the condition be one with which such Insured can comply, after receiving knowledge thereof, the Insured entitled to the benefit of the Waiver of Exclusions and Breach of Conditions shall comply with such conditions promptly after obtaining knowledge of the failure of any other Insured or employee to comply therewith. With respect to provision C.1. above, the Company's obligation to pay in the event of such waiver shall be in excess of the deductible and in the excess of the full extent of any assets in the firm of any Insured who is not a beneficiary to the waiver. D. Assignment: The interest of the Named Insured is not assignable. If any Insured shall die or be adjudged incompetent, this insurance shall thereupon terminate for such person but shall cover the Insured's legal representative as the Insured with respect to liability previously incurred and covered by this insurance. Pro rata return premium will be computed from the date of termination. E. Legal Action Against the Company: A person or organization may bring a suit against the Company including, but not limited to, a suit to recover on an agreed settlement or on a final judgment against an Insured; but the Company will not be liable for Damages that are not payableunder the terms of this policy or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by the Company, the Insured and the claimant or the claimant's legal representative. However, no action by an Insured shall lie against the Company unless there has been full compliance with all of the terms of this policy. Conformity to Statute: Notwithstanding anything contained herein to the contrary, in the event that any terms or conditions of this contract conflict with any law applicable to the coverage afforded hereunder, the terms of this contract shall by this statement be amended to conform to such law or laws. Other Insurance: if there is other valid insurance (whether primary, excess, contingent or self-insurance), against a Claim covered by this policy the insurance provided hereunder shall be deemed excess insurance over and above the applicable limit of all other insurance or self-insurance. This policy is written as Specific Excess of coverage available under any Extended Reporting Period, Optional Extended Reporting Period and Automatic Extended Reporting Period or similar period in any prior policy or policies. When this insurance is excess, the Company shall have no duty under this policy to defend any Claim or suit that any other insurer or self -insurer has a duty to defend. If such other insurer or self -insurer refuses to defend such Claim or suit, the Company shall be entitled to the Insured's rights against all such other insurers or self -insurers for any Claim Expenses incurred by the Company. When both this insurance and other insurance or self-insurance apply to the Claim on the same basis, whether primary, excess or contingent, the Company shall not be liable under this policy for a greater proportion of the Damages or Claim Expenses than the applicable 05 LPL0002 05 04 17 Page 9 of 15 limit of liability under this policy for such Claim bears to the total applicable limit of liability of all valid and collectible insurance against such Claim. Subject to the foregoing, if a loss occurs involving two or more policies, each of which provides that its insurance shall be excess, each will contribute pro rata. Subrogation: In the event of any payment under this policy, the Company shall be subrogated to all the Insured's rights of recovery therefore against any person, organization or entity and the Insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The Insured shall do nothing after any Toss to prejudice such rights. I. Changes: The terms of this policy shall not be waived or changed except by endorsement issued to form a part of this policy. Bankruptcy or Insolvency of Insured: Bankruptcy or insolvency of the Insured or of the Insured's estate shall not relieve the Company of any of its obligations hereunder. K. Cancellation: This insurance may be canceled by the Named Insured at any time by written notice or by surrender of this insurance to the Company or its authorized representative and the Company shall refund the paid premium less the earned portion thereof within thirty (30) days of the latter of the effective date of the cancellation or the date of delivery of the Insured's notice of intent to cancel subject to the retention by the Company of any minimum premium stipulated herein (or proportion thereof previously agreed upon). The earned portion of the premium shall be computed on the customary short -rate basis unless any state law or regulation of the state shown in the mailing address of the Named Insured on the Declarations Page requires that return premium be computed on a pro-rata basis, even in the event of cancellation by the Named Insured. This insurance may also be canceled, with or without the return or tender of the unearned premium, by the Company, or by its authorized representative on its behalf, by sending to all Named Insureds, by first class, registered or certified mail, at the Named Insured(s) address last known to the Company or its authorized agent, not Tess than ninety (90) days written notice stating the specific reason for such cancellation and when the cancellation shall be effective. In such case the Company shall refund the paid premium less the earned portion thereof within ten (10) business days after the effective date of cancellation, subject to the retention by the Company of any minimum premium stipulated herein (or proportion thereof previously agreed upon). In the event of cancellation by the Company, minimum premium shall not apply to the return of unearned premium. In case of non-payment of premium only thirty (30) days written notice of cancellation must be given by the Company. Proof of mailing will be sufficient proof of notice. Cancellation by the Company shall only be effective if based on one or more of the following reasons: Nonpayment of premium; 2. The policy was obtained through a material misrepresentation that was relied on by the Company, and such policy would not have been issued by the Company under the same terms and conditions if correct information had been disclosed; 3. Material failure to comply with policy terms, conditions or contractual duties; 4. The risk originally accepted has measurably increased; 5. Loss by the Company of reinsurance which provided coverage for all or a substantial part of the risk insured. 05 LPL0002 05 04 17 Page 10 of 15 L. Nonrenewal: The Company will renew this policy unless written notice of the Company's intent not to renew, stating the specific reasons for nonrenewal, is mailed to the Named Insured not less than ninety (90) days before the policy expires. Any notice of nonrenewal will be mailed by first class registered or certified mail to the Named Insured at the last mailing address known to the Company. Proof of mailing will be sufficient proof of notice. M. Renewal Rate Increase or Change in Policy Terms: If the Company increases the rate, changes the deductible, reduces the limit or substantially reduces coverage at renewal, the Company will mail to the Named Insured, at least sixty (60) days prior to the effective date of that increase or change: Written notice of any change in coverage terms; 2. The amount of our rate increase. A rate increase is defined as any increase in premium except increase due to change in exposure (including claims -made step factors) and/or rating plans based solely on the Insured's developed experience. Any notice of renewal rate increase or change in policy terms will be mailed by first class registered or certified mail to all Named Insureds at the last mailing address known to the Company. Proof of mailing will be sufficient proof of notice. N. Declarations and Applications: By acceptance of this policy, the Insured agrees that the statements in the Declarations and application are his agreements and representations, and that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the Company or any of its agents relating to this insurance. O. Extended Reporting Period Option: 1. Cancellation/Nonrenewal: In the case of: (a) cancellation or nonrenewal of this policy by the Named Insured or the Company for any reason other than flat cancellation at policy inception for non- payment of premium; or (b) advancing a retroactive or prior acts date from or previously applied by the Company the Named Insured shall have the right, subject to the other terms and conditions of this policy, or an endorsement attached thereto, to have an endorsement issued extending the time during which Claims can be reported for an additional premium of: (i) 100% of the full annual premium for this policy, to a period of twelve (12) months; (ii) 150% of the full annual premium for this policy, to a period of twenty-four (24) months; (iii) 185% of the full annual premium for this policy, to a period of thirty-six (36) months; or 05 LPL0002 05 04 17 Page 11 of 15 (iv) 225% of the full annual premium for this policy, for an unlimited period following the effective date of such cancellation or nonrenewal in which to give written notice to the Company of Claims first made against the Insured during this Extended Reporting Period for any act, error, omission or Personal Injury arising from the rendering of or failure to render Professional Services occurring prior to the termination of the final Policy Period, subject to its terms, limitations, exclusions and conditions. This right shall terminate sixty (60) days after the effective date of such action as is indicated in subparagraphs (a) or (b) above unless written notice of such election, together with the additional premium, is received by the Company or its authorized agent from the Named Insured within that sixty (60) day period. Subject to the foregoing, in the event that the Named Insured is a partnership or a corporation, and the policy is terminated, the premium calculation stated in i. through iv. above shall not include a charge for any individual legal professional who qualifies for a free Extended Reporting Period under section 2., 3. or 4. following, provided always that the notice is given to the Company as required and the other provisions of these sections are fully satisfied. 2. Retiree Provision: Notwithstanding CONDITION 0.1. above, the Named Insured shall also have the right to have an endorsement issued extending the reporting period for this policy to an unlimited period following the effective date of such cancellation or non -renewal upon his or her retirement from the private practice of law and the payment of additional premium for this option will be waived if: (a) the Named Insured (i) ceases the private practice of law during the Policy Period; (ii) has been continuously insured by the Company for at least three (3) consecutive years; (iii) ceases the performance of all legal services covered by this policy; and (iv) is fifty-five (55) years of age or older, then such Insured has the right, for no extra charge, to elect an Unlimited Non - practicing Extended Claims Reporting Period, to report Claims first made against an Insured for any actual or alleged negligent act, error or omission occurring prior to the termination of the Policy Period and otherwise covered by this policy. Such Unlimited Non -practicing Extended Claims Reporting Period must be elected within sixty (60) days of the Insured's retirement or ceasing of the private practice of law. (b) written notice of this election is given to the Company within sixty (60) days after termination of this policy; and (c) all premiums and deductibles due the Company have been paid in full. 3. Death or Disability of Insured Notwithstanding CONDITION 0.1 of this policy, if the Named Insured designated in the Declaration is an individual and shall cancel or nonrenew this policy. the Named Insured shall have the right. at no cost, to have an endorsement issued extending the reporting period for this policy to an unlimited period following the effective date of such cancellation or nonrenewal provided that. 05 LPL0002 05 04 17 Page 12 of 15 (a) such cancellation or nonrenewal results from the death or disability of the Named Insured during the Policy Period; (b) in the event of disability, the Named Insured is totally and continuously disabled from the practice of law a minimum of six (6) months prior to the election of this option; (c) satisfactory written evidence of death or disability is provided to the Company within one (1) year of such death or disability; and (d) all premiums and deductibles due the Company have been paid in full. This right shall terminate, however, unless written notice of election is received by the Company or its authorized agent from the Named Insured or legal representative of Named Insured within sixty (60) days after the effective date of such cancellation or nonrenewal. 4. At the commencement of any Extended Reporting Period option, the entire premium therefore shall be deemed earned and the Company shall not be liable to return to the Named Insured any portion of the premium for the Extended Reporting Period. The cost of any Extended Reporting Period option is based on the rates and rules in effect at the time the policy was issued or last renewed. The fact that the period during which a Claim must be first made against the Named Insured under this policy is extended by virtue of any Extended Reporting Period option shall not in any way increase the limit of this policy. The limit of liability under any Extended Reporting Period option shall be part of, and not in addition to, the limit of liability available under the last policy or renewal certificate issued to the Named Insured. 5. An automatic sixty (60) day Extended Reporting Period Option, effective at the termination of the policy period, will be provided by the Company at no additional cost unless this insurance is replaced with the same or similar insurance issued by the Company, whether or not the limits or deductibles are identical to those provided under this policy. This extended reporting period option shall only apply to Claims made during the policy period and reported to the Company within sixty (60) days of the policy termination. The limits available under this extension shall be part of, and not in addition to, the limits available under the expiring policy period. Coverage provided by this automatic extended reporting period shall be Specific Excess over any replacement policy providing the same or similar coverage. This Extended Reporting Period option shall not be available if the policy is cancelled for non- payment of premium effective at policy inception. Any provision in the policy which conflicts with this extension is amended accordingly. Reimbursement: While the Company has no duty to do so, if the Company pays Damages or Claims Expenses: 1. Within the amount of the applicable deductible; or 2. In excess of the applicable limit of liability all Insureds shall be jointly and severally liable to the Company for such amounts. Upon written demand, the Insured shall repay such amounts to the Company with thirty (30) days thereof. Failure to pay any amount indicated may lead to policy cancellation. 05 LPL0002 05 04 17 Page 13 of 15 Q. Liberalization Clause: If the Company adopts any revision that would broaden the coverage under the policy without additional premium at any time during the Policy Period, the broadened coverage will immediately apply to this policy. 05 LPL0002 05 04 17 Page 14 of 15 STATE BAR OF CALIFORNIA LAWYERS PROFESSIONAL LIABILITY INSURANCE PROGRAM Claims Handling Procedures An important value of your Lawyers Professional Liability insurance coverage is the ability of the insurance company to respond when you have a claim. The State Bar of California Lawyers Professional Liability policy not only provides an exact description of what is covered and what is not covered, it also sets out your obligations as an Insured and, where appropriate, the obligations of others involved with you. The Arch Insurance Company is committed to providing insureds and clients with responsive claim service. You, as a policyholder, trigger this service when you report a claim quickly and accurately. In the event of an incident which may result in a claim, an actual claim, or your receipt of suit papers arising out of your services as a lawyer, please follow the procedures outlined below: Notices of each incident, claim or suit must be sent immediately to: ARCH INSURANCE COMPANY Attorney's Professional Liability Claims 1299 Farnam Street, Suite 500 Omaha, NE 68102 P.O. Box 542033 Omaha, NE 68154 Phone 877 688- ARCH (2724) FAX 866 266-3630 Email Claims@Archinsurance.com Your claim notice should include the following: • Your name, address and phone number; • A copy of your Policy Declarations — this will include important information regarding your coverage; • The date or period of duration (start date/finish date) of the professional service in question and the date you first became aware of the problem or potential problem, • A brief description of the problem; • Copies of any letters of demand and any legal papers (i.e.: summons and complaints, notices of arbitration, etc.) which you have received. • It is advisable to send a photocopy of your cover letter to your insurance agent. Do not discuss the claim with any adverse party or their representative. Do not admit any liability or pay any portion of alleged Damages. Do not attempt to handle the matter yourself. Any one of these actions may void your insurance coverage. (If you waive your fee, or any part of it, in conjunction with a dissatisfied customer and do not admit any liability, the terms of your coverage may not be compromised. Send us a notice of any such incident immediately.) You will be contacted by a representative of Arch Insurance Company's Claim Department. This representative, who specializes in the handling and adjusting of lawyers professional liability / errors and omissions claims, will confirm receipt of the loss notice directly to you, provide a company claim number for all future correspondence, refer to legal counsel if necessary and discuss further handling of the matter with you. 05 LPL0002 05 04 17 Page 15 of 15 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. NETWORK SECURITY AND PRIVACY LIABILITY EXTENSION ENDORSEMENT This Endorsement modifies insurance provided under the Lawyers Professional Liability Insurance Policy. It is agreed that in consideration of a premium of $0; 1. The Insuring Agreements designated with an X below will be added to the policy Insuring Agreements Sub -Limit of Liability Deductible Prior Acts Exclusion Date ® C. Data Incident Response Expense $25k each Network Security Breach or Privacy Violation $ 5,000 each Network Security Breach or Privacy Violation Per Policy ❑ D. Network Security and Privacy Liability Coverage $ each Claim $ each Claim 2. The language for the Insuring Agreement[s] designated with an X above is set forth below and is added to Section I. COVERAGE. C. DATA INCIDENT RESPONSE EXPENSE The Company will pay Data Incident Response Expense, in excess of the deductible, incurred by the Insured, directly resulting from a Network Security Breach or Privacy Violation: a. occurring on or after the Prior Acts Exclusion Date, b. discovered during the Policy Period, and c. reported to the Company immediately pursuant to the terms of Section 8 of this Endorsement D. NETWORK SECURITY AND PRIVACY LIABILITY The Company will pay on behalf of an Insured all amounts, in excess of the deductible, that an Insured becomes legally obligated to pay as Damages and Claim Expenses, because of a Claim that is a. first made against an Insured during the Policy Period or Extended Claims Reporting Period, if applicable, b. for a Network Security Breach or Privacy Violation occurring on or after the Prior Acts Exclusion Date and prior to the end of the Policy Period, and reported to the Company immediately pursuant to the terms of Section 8 of this endorsement. Solely with respect to the coverage provided under Insuring Agreement C. of this Endorsement, the following policy provisions of the Lawyers Professional Liability Insurance Policy are deleted and will not apply 00 LPL0175 00 04 17 Page 1 of 9 A. The paragraph of Section I. COVERAGE that begins, "The Company shall have the right and duty to defend any suit against the Insured seeking Damages". B. Paragraph O. EXTENDED REPORTING PERIOD OPTION 4. Solely with respect to the coverage provided under this Endorsement, Paragraphs A., B. and C. of Section III. LIMIT OF LIABILITY of the Lawyers Professional Liability Insurance Policyare amended as follows: A. In the event Claim Expenses and Data Incident Response Expenses are included within the limit of liability as specified in Item 4.a. of the Declarations, the limit of liability stated in the Declarations as applicable to "each Claim" is the limit of the company's liability for all Damages, Claims Expenses and Data Incident Response Expenses because of each Claim covered hereby. Notwithstanding the forgoing, an additional aggregate limit of $50,000 shall be provided solely for payment of Claims Expenses and Data Incident Response Expenses. All Claims arising from the same or related negligent act, error or omission Personal Injury or Network Security Breach or Privacy Violation shall be considered a single Claim for the purpose of this insurance and shall be subject to the same limit of liability. The limit of liability stated in the Declarations as "aggregate" is, subject to the above provision respecting "each Claim", the total limit of the Company's liability under this policy for all Damages, Claims Expenses and Data Incident Response Expenses. B. In the event Claim Expenses and Data Incident Response Expenses are in addition to the limit of liability as specified in Item 4.b. of the Declarations, the limit of liability stated in the Declarations as applicable to "each Claim" is the limit of the Company's liability for Damages resulting from each Claim covered hereby. There shall be a separate limit of liability equal to one-half (1/2) of the limit of liability for Damages applicable to Claim Expenses and Data Incident Response Expenses for any such Claim. Such limit for Claim Expenses and Data Incident Response Expenses shall not exceed $1,000,000 regardless of the limit of liability purchased for Damages. All Claims arising from the same or related negligent act, error or omission Personal Injury or Network Security Breach or Privacy Violation shall be considered a single Claim for the purpose of this insurance and shall be subject to the same limit of liability. In the event that the Claim Expenses and Data Incident Response Expenses limit of liability is exhausted, all subsequently incurred Claim Expenses and Incident Response Expenses will apply to and erode the policy's limit of liability. The limit of liability stated in the Declarations as "aggregate" is, subject to the above provision respecting "each Claim", the total limit of the Company's liability under this policy for all Damages. A separate "aggregate" limit of liability shall apply to all Claims Expenses and Data Incident Response Expenses incurred in the defense of Claims covered by this Policy, subject to the above provision respecting the Company's liability for Claim Expenses and Data Incident Response Expenses for "each Claim". C. The Company's liability for Damages and/or Claim Expenses and Data Incident Response Expenses, as applicable, resulting from "each Claim" is in excess of the deductible amount stated in the Declarations. The deductible amount stated in the Declarations shall upon written demand by the Company, be paid by the Named Insured within 30 days of demand. 1. As a condition precedent to the Company's liability under this Endorsement, the applicable deductible specified in Paragraph 1 of this Endorsement will be paid by the 00 LPL0175 00 04 17 Page 2 of 9 Insured, be applicable to each Network Security Breach or Privacy Violation under Insuring Agreement C. or each Claim under Insuring Agreement D. 2. The deductible specified in Paragraph 1 of this Endorsement will apply to all Data Incident Response Expense under Insuring Agreement C. and all Damages and Claim Expenses under Insuring Agreement D. 3. In the event more than one Insuring Agreement is triggered by a Network Security Breach, Privacy Violation or Claim, only the single highest deductible specified in Paragraph 1 of this Endorsement will apply. 4. The total deductible for all Claims, Network Security Breaches, Privacy Violations, or series of Claims, Network Security Breaches, or Privacy Violations that have a common nexus of facts, circumstances, situations, events, transactions, causes or series of causally connected facts, circumstances, situations, events, transactions or causes. will not exceed the single highest deductible specified in Paragraph 1 of this Endorsement. 5. The deductible will be applied first to Claim Expenses and Data Incident Response Expense with any remainder applied to Damages. The Named Insured will pay the deductible within thirty (30) days of demand by the Company. 5. Solely with respect to the coverage provided under this Endorsement, the following is added to Section III. LIMIT OF LIABILITY of the Lawyers Professional Liability Insurance Policy: G. The Company's Sub -Limit of Liability for Data Incident Response Expense each Network Security Breach or Privacy Violation, is specified in Paragraph 1.C. of this Endorsement. The Company will not be obligated to pay any Data Incident Response Expense after the Sub -Limit of Liability specified in Paragraph 1.C. of this Endorsement has been exhausted by payment of Data Incident Response Expense. Such Sub -Limit of Liability will be part of, and not in addition to, the Limit of Liability Each Claim specified in Item 4.A. of the Declarations, regardless of whether a Claim has been made. The Company does not assume any duty to defend under this Insuring Agreement. H. The Company's Sub -Limit of Liability for Damages and Claim Expenses each Network Security Breach or Privacy Violation Claim is specified in Paragraph 1.D. of this Endorsement, if purchased. Such Sub -Limit of Liability will be part of, and not in addition to, the Limit of Liability Each Claim specified in Item 4.a. of the Declarations. With regard to Insuring Agreement D, if the Sub -Limit of Liability specified in Paragraph 1.D. of this Endorsement is exhausted prior to settlement or judgment of any pending Claim, the Company's obligations under this policy will be cancelled and the Company will have the right to withdraw from the further investigation or defense of any pending Claim by tendering control of such investigation or defense to the Named Insured, and the Named Insured agrees, as a condition to the issuance of this policy, to accept such tender. J. With regard to Insuring Agreement D., the inclusion of more than one Insured in any Claim, or the making of Claims by more than one person or entity will not increase the Company's Sub -Limit of Liability Each Claim, Aggregate Sub -Limit of Liability Per Policy Period or the deductible. Two or more Claims arising out of a single Network Security Breach or Privacy Violation will be treated as a single Claim. All such Claims, whenever made, will be considered first made during the Policy Period in which the earliest Claim was first reported. 00 LPL0175 00 04 17 Page 3 of 9 6. Solely with respect to the coverage provided under this Endorsement, Paragraph F of Section III. LIMIT OF LIABILITY of the Lawyers Professional Liability Insurance Policy is deleted and replaced by the following: F. If this policy and any other policy issued by the Company including any extended claims reporting period coverage afforded by such policy or policies, provides coverage to the same Network Security Breach or Privacy Violation or Claim, the maximum limit of liability under all the policies will not exceed the highest remaining limit of liability under any one policy. 7. Section VII. EXCLUSIONS of the Lawyers Professional Liability Insurance Policy will apply to all coverage provided under this Endorsement and solely with respect to the coverage provided under this Endorsement, the following Exclusion is added: J. This policy will not pay any Data Incident Response Expense or Claim based upon or arising out of, in whole or in part: 1. any demand, suit or proceeding pending or order, decree or judgment made or initiated against the Insured on or prior to the inception date of this policy or any Network Security Breach or Privacy Violation specified in such prior demand, suit or proceeding which has a common nexus, fact, circumstance, situation, event, transaction, cause or series of causally connected facts, circumstances, situations, events, transactions or causes underlying or alleged therein; 2. any fact, circumstance or situation that, before the inception date of this policy, that was the subject of any notice given under any policy of which this policy is a renewal or replacement; 3. any actual or alleged unauthorized or illegal collection or intentional sharing of Personal Information, including but not limited to the collection of Personal Information using cookies, spyware, or other malicious code, or the failure to provide adequate notice that Personal Information is being collected or shared; 4. any bodily injury, sickness, disease, emotional distress, mental anguish or death of any person, or damage to or destruction of any tangible property, including loss of use thereof; 5. any actual or alleged misappropriation, theft, plagiarism, infringement or violation of any patent, copyright, trademark, trade secret, trade dress, trade name, service mark, service name, title or slogan; however this exclusion will not apply to a Network Security Breach; 6. any actual or alleged unsolicited electronic faxes, emails, telephone calls or unsolicited communications, including without limitation, Claims arising out of unsolicited electronic messages, chat room postings, bulletin board postings, newsgroup postings, "pop-up" or "pop -under" Internet advertising or fax -blasting, direct mailing or telemarketing, or Claims involving actual or alleged violations of any foreign, federal, state or local statute, regulation or ordinance that addresses, limits or prohibits the printing, dissemination, disposal, collecting, recording, sending, transmitting, communicating or distribution of material or information; however this exclusion will not apply to a Network Security Breach; 7. any actual or alleged discrimination, harassment, wrongful termination, unpaid wages (including overtime pay), workers' compensation benefits, unemployment compensation, disability benefits, improper payroll deductions, improper employee 00 LPL0175 00 04 17 Page 4 of 9 classification, failure to maintain accurate time records, failure to grant meal and rest periods, or social security benefits, or any other employment practices wrongful act.; 8. any actual or alleged discrimination, humiliation or harassment in any form or manner, including, but not limited to, race, creed, color, religion, ethnic background, national origin, age, handicap, disability, gender, sex, sexual orientation or preference, pregnancy, marital status, retaliation, or any other protected class under any federal, state, local or other law; 9. any actual or alleged price fixing, restraint of trade, monopolization, unfair trade practices or any violation of the Federal Trade Commission Act or consumer protection laws, Sherman Anti -Trust Act, the Clayton Act, or any similar law regulating anti-trust, monopoly, price fixing, price discrimination, predatory pricing or restraint of trade activities; 10. any war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war is declared or not), strike, lockout, riot, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power, however, this exclusion will not apply to Cyberterrorism; 11. any Insured's service at any time as a director, officer, trustee, regent, governor, independent contractor or equivalent executive, or as an employee, of any entity other than an Insured even if such service is with the knowledge and consent, or at the request, of an Insured; 12. any inaccurate, inadequate or incomplete description of the price of goods, products or services, the authenticity of any goods, products or services, or the failure of any goods or services to conform with any represented quality or performance; 8. Solely with respect to the coverage provided under this Endorsement, Paragraph 3 of Section VIII. DEFINITIONS of the Lawyers Professional Liability Insurance Policy is deleted and replaced by the following: "Claim" means any: 1. written demand or notice for civil monetary damages or other civil non monetary relief commenced by the Insured's receipt of such demand or notice; 2. civil proceeding, including but not limited to any arbitration proceeding or other altemative dispute resolution (ADR) proceeding, commenced by the service upon the Insured of a complaint, demand for arbitration, or similar pleading; 3. written request to an Insured to toll or waive the statute of limitations regarding a potential Claim as described in 1, and 2. above commenced by the Insured's receipt of such request; 4. a Regulatory Action. 9. Solely with respect to the coverage provided under this Endorsement, the following definitions are added to SECTION VIII. DEFINITIONS of the Lawyers Professional Liability Insurance Policy: "Computer System" means any computer hardware, electronic mobile device, software or firmware, and components thereof including data stored thereon, that is owned or leased by a Named Insured, and is under the direct operational control of the Named Insured or any mobile 00 LPL0175 00 04 17 Page 5 of 9 device owned and under the direct operational control of an employee of a Named Insured if such mobile device is used for the benefit of the Named Insured. Computer System also includes cloud computing and other hosted resources operated by a third party for the purpose of providing hosted computer resources to the Named Insured as provided in a written contract between the Named Insured and such third party. "Cyberterrorism" means the premeditated use of disruptive activities against any Computer System by an individual or group of individuals, or the explicit threat by an individual or group of individuals to use such activities, with the intention to cause harm, further social, idealogical, religious, political or similar objectives, or to intimidate any person(s) in furtherance of such objectives. Cyberterrorism does not include any such activities which are part of or in support of any military action, war or warlike operation. "Data Incident Response Expense" means reasonable and necessary fees and expenses incurred by an Insured, with the Company's prior written consent, for: 1. legal services by an attorney selected by the Company regarding any Network Security Breach or Privacy Violation; 2. computer forensic investigatory services by a third party information security professional selected by the Company to determine the cause of the Network Security Breach and identities of those who may have been victims of any Privacy Violation. 3. notifying individuals who may have been victims of any Privacy Violation, 4. public relations firm, crisis management firm or law firm services to mitigate reputational damage resulting from any Network Security Breach or Privacy Violation; 5. credit monitoring services and identity theft education, 6. costs for identity theft call center services; and 7. costs to restore or recreate electronic data;. Data Incident Response Expense will exclude any: (i) compensation or overhead of any Insured, (ii) payments made as compensation for any injury or damages resulting from any Network Security Breach or Privacy Violation: or (iii) costs associated with replacing, repairing or improving any network, computer hardware or software. "Denial of Service Attack" means a malicious attack intended by the perpetrator to overwhelm the capacity of the Computer System by sending an excessive volume of electronic data to such Computer System in order to prevent authorized access to such Computer System. "Network Security Breach" means any: 1. unauthorized access to, or unauthorized use of, a Computer System. 2. transmission of Malicious Code into or from a Computer System. or 3. Denial of Service Attack. 00 LPL0175 00 04 17 Page 6 of 9 "Malicious Code" means any virus, Trojan, worm or other similar malicious software program, code or script designed to infect, harm, harm data on, or steal data from, a Computer System. "Personal Information" means any: 1. information for which an individual may be uniquely and reliably identified or contacted including without limitation the individual's: a. name; b. address; c. telephone number; d. social security number; e. drivers license number or any other state identification number; f. medical or healthcare data, including protected health information; or g. account numbers. 2. non-public personal information as defined in any Privacy Law. "Privacy Law" means those parts of the following statutes or regulations regulating the use and protection of non-public personal information (as defined in such statutes or regulation): 1. Health Insurance Portability and Accountability Act of 1996 (HIPAA); 2. Gramm -Leach Bliley Act of 1999 (GLBA); 3. consumer protection and unfair and deceptive trade practice laws enforced by state Attorneys General or the Federal Trade Commission, including but not limited to Section 5(a) of the Federal Trade Commission Act, 15. U.S.0 § 45 (a), as amended; 4. security breach notification laws that require notice to individuals of the actual or potential theft of their non-public personal information, including but not limited to the California Security Breach Notification Act of 2003 (CA SB1386); Of 5. other state, federal or foreign privacy laws for non-public personal information, or a privacy policy limiting the sale, disclosure or sharing of non-public personal information or providing individuals with the right to access or correct non-public personal information. "Privacy Violation" means any: 1. failure to protect Private Information while in the care, custody or control of an Insured; 2. violation of a Privacy Law by an Insured; or 00 LPL0175 00 04 17 Page 7 of 9 3. violation of an Insured's privacy policy with respect to provisions prohibiting any Insured from disclosing Private Information. "Private Information" means any of the following information that exists in any format and that is in the care, custody and control of any Insured, or in the care, custody and control of a third party on any Insured's behalf 1. Personal Information, or 2. confidential or proprietary business information that is not available to the general public "Regulatory Action" means a civil administrative or regulatory proceeding commenced by service of a complaint or pleading, civil investigative demand or civil request for information brought or made by a governmental agency or authority that alleges a Privacy Violation. A Regulatory Action will not mean or include any criminal demands, requests or proceedings 10. Solely with respect to the coverage provided under Insuring Agreement C, Paragraphs B. and C. of Section IX. CONDITIONS of the Lawyers Professional Liability Insurance Policy are deleted and replaced by the following: A. Notice to the Company Notices of each Network Security Breach or Privacy Violation must be sent immediately to. ARCH INSURANCE COMPANY Attorney's Professional Liability Claims 1299 Farnam Street, Suite 500 Omaha, NE 68102 P.O. Box 542033 Omaha, NE 68154 Phone 877 688-ARCH (2724) FAX 866 266-3630 Email Claims(cDArchinsurance com Your notice of Network Security Breach or Privacy Violation should include the following: ❑ Your name, address and phone number; ❑ A copy of your Policy Declarations — this will include important information regarding your coverage, ❑ The date or period of duration of the Network Security Breach or Privacy Violation and the date you first became aware of the problem or potential problem, ❑ A brief description of the problem, and ❑ Copies of any relevant documents. ❑ It is advisable to send a copy of your notice of Network Security Breach or Privacy Violation to your insurance agent. B. ASSISTANCE AND COOPERATION OF THE INSURED 00 LPL0175 00 04 17 Page 8 of 9 All Insureds will cooperate with the Company, including providing all information requested by the Company regarding any Network Security Breach or Privacy Violation, and cooperating fully with the Company. Upon the Company's request. all Insureds will submit to examination by a representative of the Company, under oath if required The Insured shall not, except at the Insured's own cost, voluntarily make any payments, admit liability, assume any obligation or incur any expense. All other terms and conditions of this Policy remain unchanged. Endorsement Number 3 Policy Number: 11LPL10680801 Named Insured. George H. Eiser, III, Esq. This endorsement is effective on the inception date of this Policy unless otherwise stated herein: Endorsement Effective Date 10/30/2018 00 LPL0175 00 04 17 Page 9 of 9 U.S. TREASURY DEPARTMENT'S OFFICE OF FOREIGN ASSETS CONTROL ("OFAC") ADVISORY NOTICE TO POLICYHOLDERS No coverage is provided by this Policyholder Notice nor can it be construed to replace any provisions of your policy. You should read your policy and review your Declarations page for complete information on the coverages you are provided. This Notice provides information concerning possible impact on your insurance coverage due to directives issued by OFAC. Please read this Notice carefully. The Office of Foreign Assets Control (OFAC) administers and enforces sanctions policy, based on Presidential declarations of "national emergency". OFAC has identified and listed numerous • Foreign agents; • Front organizations; • Terrorists; • Terrorist organizations, and • Narcotics traffickers; as "Specially Designated Nationals and Blocked Persons". This list can be located on the United States Treasury's web site — http://www.treas.gov/ofac. In accordance with OFAC regulations, if it is determined that you or any other insured, or any person or entity claiming the benefits of this insurance has violated U.S. sanctions law or is a Specially Designated National and Blocked Person, as identified by OFAC, this insurance will be considered a blocked or frozen contract and all provisions of this insurance are immediately subject to OFAC. When an insurance policy is considered to be such a blocked or frozen contract. no payments nor premium refunds may be made without authorization from OFAC. Other limitations on the premiums and payments also apply. 00 ML0065 00 06 07 Includes copyrighted material of Insurance Services Page 1 of 1 Office, Inc. with its permission. Endorsement # PRIOR ACTS EXCLUSION ENDORSEMENT ✓ ' ARCH Insurance Group A Division of the Arch Csp t.1 Group Policy No Eff Date of Poi Exp Date of Poi Eff Date of End Addl Prem Return Prem 11 LPL10680801 10/30/2018 10/30/2019 10/30/2018 The premium for this endorsement is included in the premium shown on the declarations unless a speci shown here. Named Insured and Mailing Address: George H. Eiser, III, Esq 2721 MacKinnon Ranch Road Cardiff by the Sea, CA 92007 Producer: Mercer Health & Benefits Insurance Services LLC 345 California Street Suite 1300 San Francisco, CA 94104 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. In consideration of the premium charged, this policy specifically excludes loss resulting from Claims made against any Insured arising from any negligent act, error, omission, or Personal Injury occurring or alleged to have occurred prior to 10/30/2017 This endorsement forms part of this policy and any subsequent renewals thereof. ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED. Date Issued: 9/10/2018 Authorized Representative 00 LPL 00034 00 05 06 Page 1 of 1 Mayor Ron Morrison Council Members Albert Mendivil Alejandra Sotelo-Solis Mona Rios Jerry Cano October 30, 2018 George H. Eiser, III, Esq. 2721 MacKinnon Ranch Road Cardiff by the Sea, CA 92007 0-- CALIFORNIA ^-0- NATIONAL atilt INCORPORATED Office of the City Attorney RE: Agreement for Legal Services Dear George: City Attorney Angil P. Morris -Jones Senior Assistant City Attorney Nicole Pedone Deputy City Attorney Roberto M. Contreras Enclosed for your files is an original, fully -executed Agreement for legal services. I look forward to working with you again! Very truly yours, A), li),Lakj Ginny Mier Executive Assistant to the City Attorney Enclosure cc: City Clerk �. 1243 National City Boulevard; National City, California 91950-4397 Tel.: (619) 336-4220 Fax: (619) 336-4327 Mayor Ron Morrison Council Members Albert Mendivil Alejandra Sotelo-Solis Mona Rios Jerry Cano TO: FROM: SUBJECT: NATIONAL CITY c 22L ) Office of the City Attorney MEMORANDUM City Clerk Ginny Miller, Legal Assist n v. Agreement between the Ci f National City and George H. Eiser, III City Attorney Angil P. Morris -Jones Senior Assistant City Attorney Nicole Pedone Deputy City Attorney Roberto M. Contreras DATE: October 24, 2018 Attached for your files, is a fully -executed original of the Agreement between City of National City and George Eiser, dated October 30, 2018. The other original will be provided to George through U.S. Mail. Thank you. Attachment 1243 National City Boulevard; National City, California 91950-4397 Tel.: (619) 336-4220 Fax: (619) 336-4327