16-151 4Leaf Inc., On-Call Plan Review ServicesAGREEMENT BETWEEN THE CITY OF CUPERTINO AND 4LEAF INC FOR
"ON-CALL" PLAN REVIEW SERVICES
THIS AGREEMENT, is entered into this 1st day of July, 2016, by and between the
CITY OF CUPERTINO, a California municipal corporation ("City"), and 4Leaf, Inc , a
California Corporation whose address is 2110 Rheem Drive, Pleasanton, California 94588
(hereinafter refe1Ted to as "Consultant") ( collectively referred to as the "Parties").
RECITALS:
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now being
conducted under the Constitution and the statutes of the State of California and the
Cupertino Municipal Code.
B . Consultant is specially trained , experienced and competent to perform the
special services which will be required by this Agreement.
C. Consultant possesses the skill , ex perience, ability , background, certification
and knowledge to provide the services described in this Agreeme nt on the terms and
conditions described herein.
D. City and Consultant desire to enter into an agreement for "on-call" building
inspection upon the terms and conditions herein .
NOW, THE REFORE, the Paiiies mutually agree as follows:
1. TERM
The term of this Agreement shall commence on July 1, 2016 , and shall terminate
on June 30 , 2017, unless terminated earlier as set forth herein.
2 . SERVICES TO BE PERFORMED
Consultant shall perform each and every service set forth in E x hibit "A ," attached
hereto and incorporated herein by this reference.
3 . COMPENSATION TO CONSULTANT
Consultant shall be compensated for services performed pursuant to this Agreement
in a total amount not to exceed THIRTY THOUSAND dollars ($30 ,000.00) based on the
rates and terms set forth in Exhibit "A ," which is attached hereto and incorporated herein
by this reference.
4 . TIME IS OF THE ESSENCE
Consultant and City agree that time is of the essence regarding the performance of
this Agreement. Standard plan checks for commercial and residentia l proj e ct shall be
completed in ten (10) business days. Due dates for plan checks for lmger projects shall be
determined by a pre-submittal conference with the Building Official , plan checker, project
engineers and engineers.
5. STANDARD OF CARE
Consultant agrees to perform all services required by this Agreement in a manner
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Consultant contract-4Leaf "on -call " Plan Review , FY 16-17
c01m11ensurate with the prevailing standards of like professionals in the San Francisco Bay
Area and agrees that all services shall be performed by qualified and experienced personnel
who are not employed by the City nor have any contractual relationship with City.
6. INDEPENDENT PARTIES
City and Consultant intend that the relationship between them created by this
Agreement is that of independent contractor. The manner and means of conducting the
work are under the control of Consultant, except to the extent they are limited by statute,
rule or regulation and the express terms of this Agreement. No civil service status or other
right of employment will be acquired by vi1iue of Consultant's services. None of the
benefits provided by City to its employees, including but not limited to , unemployment
insurance, workers' compensation plans, vacation and sick leave are available from City to
Consultant, its employees or agents. Deductions shall not be made for any state or federal
taxes, FICA payments , PERS payments, or other purposes normally associated with an
employer-employee relationship from any fees due Consultant. Payments of the above
items , if required , are the responsibility of Consultant.
7. IMMIGRATION REFORM AND CONTROL ACT {IRCA}
Consultant assumes any and all responsibility for verifying the identity and
employment authorization of all of his/her employees performing work hereunder,
pursuant to all applicable IRCA or other federal, or state rules and regulations. Consultant
shall indemnify and hold City harmless from and against any loss , damage, liability, costs
or expenses arising from any noncompliance of this provision by Consultant.
8. NON-DISCRIMINATION
Consistent with City's policy prohibiting harassment and discrimination,
Consultant agrees that it shall not harass or discriminate against a job applicant, a City
employee, or a citizen by Consultant or Consultant's employee or subcontractor on the basis
ofrace, religious creed , color, national origin, ancestry, handicap, disability , marital status,
pregnancy, sex, age, sexual orientation, or any other protected class. Consultant agrees that
any and all violations of this provision shall constitute a material breach of this Agreement.
9.
IZl
HOLD HARMLESS
Standard Indemnification:
Consultant shall , to the fullest extent allowed by law and without limitation of the
provisions of this Agreement related to insurance , with respect to all services perfo1med in
connection with the Agreement, indemnify, defend, and hold harmless the City and its
officers, officials, agents, employees and volunteers from and against any and all liability,
claims, actions, causes of action or demands whatsoever against any of them, including
any injury to or death of any person or damage to property or other liability of any nature ,
whether physical , emotional , consequential or otherwise , arising out, pertaining to, or
related to the negligent perfo1mance of this Agreement by Consultant or Consultant's
employees , officers, officials, agents or independent contractors. Such costs and expenses
shall include reasonable attorneys' fees of counsel of City's choice , expert fees and all
other costs and fees of litigation. The acceptance of the Services by City shall not operate
as a waiver of the right of indemnification. The provisions of this Section survive the
completion of the Services or termination of this Contract.
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Consultant contract -4Leaf "on-call " Plan Review , FY 16-17
10 . INSURANCE:
A. General Requirements. On or before the commencement of the term of this
Agreement, Consultant shall furnish City with certificates showing the type, amount, class
of operations covered, effective dates and dates of expiration of insurance coverage in
compliance with the requirements listed in Exhibit "D". Such ce11ificates , which do not
limit Consultant's indemnification, shall also contain substantially the following statement:
"Should any of the above insurance covered by this certificate be canceled or coverage
reduced before the expiration date thereof, the insurer affording coverage shall provide
thirty (30) days' advance written notice to the City of Cupertino by ce1tified mail , Attention :
City Manager." Consultant shall maintain in force at all times during the perfonnance of
this Agreement all appropriate coverage of insurance required by this Agreement with an
insurance company that is acceptable to City and licensed to do insurance business in the
State of California. Endorsements naming the City as additional insured shall be submitted
with the insurance certificates.
B. Subrogation Waiver. Consultant agrees that in the event of loss due to any
of the perils for which he/she has agreed to provide comprehensive general and automotive
liability insurance, Consultant shall look solely to his/her insurance for recovery.
Consultant hereby grants to City, on behalf of any insurer providing co_mprehensive general
and automotive liability insurance to either Consultant or City with respect to the services
of Consultant herein, a waiver of any right to subrogation which any such insurer of said
Consultant may acquire against City by virtue of the payment of any loss under such
msurance.
C. Failure to secure or maintain insurance. If Consultant at any time during the
term hereof should fail to secure or maintain the foregoing insurance, City shall be
permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant
and shall be compensated by the Consultant for the costs of the insurance premiums at the
maximum rate permitted by law and computed from the date written notice is received that
the premiums have not been paid.
D. Additional Insured. City, its City Council , boards and commissions,
officers, employees and volunteers shall be named as an additional insured under all
insurance coverages, except any professional liability insurance , required by this
Agreement. The naming of an additional insured shall not affect any recovery to which
such additional insured would be entitled under this policy if not named as such additional
insured. An additional insured named herein shall not be held liable for any premium,
deductible portion of any loss , or expense of any nature on this policy or any extension
thereof. Any other insurance held by an additional insured shall not be required to
contribute anything toward any loss or expense covered by the insurance provided by this
policy.
E. Sufficiency of Insurance. The insurance limits required by City are not
represented as being sufficient to protect Consultant. Consultant is advised to confer with
Consultant's insurance broker to determine adequate coverage for Consultant.
F . Maximum Coverage and Limits . It shall be a requirement under this
Agreement that any available insurance proceeds broader than or in excess of the specified
minimum Insurance coverage requirements and/or limits shall be available to the additional
insured City. Fmthermore, the requirements for coverage and limits shall be the minimum
coverage and limits specified in this Agreement, or the broader coverage and maximum
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Consultant contract-4Leaf "on-call " Plan Review , FY 16-17
limits of coverage of any insurance policy or proceeds available to the named insured ,
whichever is greater.
11 . CONFLICT OF INTEREST
Consultant wairnnts that it presently has no interest, and will not acquire any
interest , direct or indirect, financial or otherwise, that would conflict in any way with the
perfo1mance of this Agreement, and that it will not employ any person having such an
interest. Consultant agrees to advise City immediately if any conflict arises and understands
that it may be required to fill out a conflict of interest fo1m if the services provided under
this Agreement require Consultant to make certain governmental decisions or serve in a
staff capacity as defined in Title 2 , Division 6 , Section 18700 of the California Code of
Regulations.
12 . PROHIBITION AGAINST TRANSFERS
Consultant shall not assign , sublease, hypothecate, or transfer this Agreement, or
any interest therein, directly or indirectly, by operation of law or otherwise, without prior
written consent of City. Any attempt to do so without said consent shall be null and void ,
and any assignee , sublessee, hypothecate or transferee shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer. However, claims for
money by Consultant from City under this Agreement may be assigned to a bank, trust
company or other financial institution without prior written consent. Written notice of such
assignment shall be promptly furnished to City by Consultant.
The sale, assignment , transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general paiiner or joint
venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or
syndicate or cotenancy, which shall result in changing the control of Consultant, shall be
construed as an assignment of this Agreement. Control means fifty percent (50%) or more
of the voting power of the corporation.
13. SUBCONTRACTOR APPROVAL
Unless prior written consent from City is obtained, only those people and
subcontractors whose names and resumes are attached to this Agreement shall be used in
the perfo1mance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required to
carry general , automobile and professional liability insurance in reasonable conformity to
the insurance carried b y Consultant. In addition, any work or services subcontracted
hereunder shall be subject to each provision of this Agreement.
Consultant agrees to include with all subcontractors in their subcontract the same
requirements and provisions of this Agreement including the indemnity and insurance
requirements to the extent they apply to the scope of the subcontractor 's work.
Subcontractors hired by Consultant agree to be bound to Consultant and City in the same
manner and to the same extent as Consultant is bound to City under this Agreement.
Subcontractor fmiher agrees to include these same provisions with any sub-subcontractor.
A copy of the Owner Contract Document Indemnity and Insurance provisions will be
furnished to the subcontractor upon request. Consultant shall require all subcontractors to
provide a valid certificate of insurance and the required endorsements included in the
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Consultant contract-4Leaf "on-call " Plan Review , FY 16-17
agreement prior to commencement of any work and will provide proof of compliance to
City.
14. PERMITS AND LICENSES
Consultant, at his/her sole expense, shall obtain and maintain during the tenn of
this Agreement, all appropriate pe1mits, certificates and licenses including, but not limited
to, a City Business License, that may be required in connection with the performance of
services hereunder.
15. REPORTS
A. Each and every report, draft, work product, map, record and other
document, hereinafter collectively referred to as "Report", reproduced, prepared or caused
to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the
exclusive property of City. Consultant shall not copyright any Repo1i required by this
Agreement and shall execute appropriate documents to assign to City the copyright to
Repo1is created pursuant to this Agreement. Any Report, information and data acquired or
required by this Agreement shall become the prope1iy of City, and all publication rights
are reserved to City. Consultant may retain a copy of any report furnished to the City
pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in execution or
implementation of: (1) The original Project for which Consultant was hired; (2)
Completion of the original Project by others; (3) Subsequent additions to the original
project; and/or (4) Other City projects as City deems appropriate.
C. Consultant shall, at such time and in such fo1m as City may require, furnish
rep01is concerning the status of services required under this Agreement.
D. . All Reports required to be provided by this Agreement shall be printed on
recycled paper. All Reports shall be copied on both sides of the paper except for one
original, which shall be single sided.
E . No Report, information or other data given to or prepared or assembled by
Consultant pursuant to this Agreement shall be made available to any individual or
organization by Consultant without prior approval by City.
16. RECORDS
Consultant shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts and other such information required by City that relate to the
performance of services under this Agreement, in sufficient detail to permit an evaluation
of services. All such records shall be maintained in accordance with generally accepted
accounting principles and shall be clearly identified and readily accessible . Consultant shall
provide free access to such books and records to the representatives of City or its designees
at all proper times , and gives City the right to examine and audit same, and to make
transcripts therefrom as necessary, and to allow inspection of all work, data, documents,
proceedings and activities related to this Agreement. Such records , together with
suppo1iing documents, shall be kept separate from other documents and records and shall
be maintained for a period of three (3) years after Consultant receives final payment from
City for all services required under this agreement.
If supplemental examination or audit of the records is necessary due to concerns
raised by City's preliminary examination or audit of records, and the City's supplemental
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Consultant contract -4Leaf "on-call " Plan Review , FY 16-17
examination or audit of the records discloses a failure to adhere to appropriate internal
financial controls, or other breach of contract or failure to act in good faith , then Consultant
shall reimburse City for all reasonable costs and expenses associated with the supplemental
examination or audit.
17. NONAPPROPRIATION
This Agreement is subject to the fiscal provisions of the Cupertino Municipal Code
and Agreement will terminate without any penalty (a) at the end of any fiscal year in the
event that funds are not appropriated for the following fiscal year, or (b) at any time within
a fiscal year in the event that funds are only appropriated for a portion of the fiscal year
and funds for this Agreement are no longer available. This Section shall take precedence
in the event of a conflict with any other covenant, term, condition, or provision of this
Agreement.
18. ENVIRONMENTALLY PREFERABLE PURCHASING
Consultant shall comply with the City's Environmentally Preferable Procurement
Policy whenever practicable in completing any work under this agreement, including but
not limited to:
• Using paper products made with recycled content and recycled/remanufactured
toner and inkjet cartridges;
• Printing with soy or low volatile organic compounds (VOC) inks ;
• Using energy-star compliant equipment ;
• Using cleansers and working with janitorial contractors to meet Green Seal 's
Industrial and Institutional Cleaners Standard; and
• Ordering supplies electronically and practicing other internal waste reduction
and reuse protocols.
19. NOTICES
All notices , demands , requests or approvals to be given under this Agreement shall
be given in writing and conclusively shall be deemed served when delivered personally or
on the second business day after the deposit thereof in the United States Mail , postage
prepaid, registered or certified, addressed as hereinafter provided .
All notices, demands , requests , or approvals shall be addressed as follows:
TO CITY:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Albert Salvador, Building Official
TO CONSULT ANT:
4Leaf, Inc
2110 Rheem Drive
Pleasanton, CA 94588
Gene A. Barry, Vice President
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Consultant contract -4Leaf "on-call" Plan Review, FY 16-17
20. TERMINATION
In the event Consultant fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, Consultant shall be deemed in default in
the performance of this Agreement. If Consultant fails to cure the default within the time
specified and according to the requirements set forth in City's written notice of default, and
in addition to any other remedy available to the City by law, the City Manager may
tenninate the Agreement by giving Consultant written notice thereof, which shall be
effective immediately. The City Manager shall also have the option, at its sole discretion
and without cause, of terminating this Agreement by giving seven (7) calendar days' prior
written notice to Consultant as provided herein. Upon receipt of any notice of termination,
Consultant shall immediately discontinue performance.
City shall pay Consultant for services satisfactori ly performed up to the effective
date of termination. If the termination is for cause, City may deduct from such payment the
amount of actual damage, if any, sustained by City due to Consultant's failure to perform
its material obligations under this Agreement. Upon te1mination , Consultant shall
immediately deliver to the City any and all copies of studies , sketches, drawings,
computations, and other material or products, whether or not completed, prepared by
Consultant or given to Consultant, in connection with this Agreement. Such materials shall
become the property of City.
21. COMPLIANCE
Consultant shall comply with all state or federa l laws and all ordinances, rules,
policies and regulations enacted or issued by City.
22 . CONFLICT OF LAW
This Agreement shall be interpreted under, and enforced by the laws of the State of
California excepting any choice of law rules which may direct the application of laws of
another jurisdiction. The Agreement and obligations of the parties are subject to all valid
laws , orders, rules , and regulations of the authorities having jurisdiction over this
Agreement (or the successors of those authorities). Any suits brought pursuant to this
Agreement shall be filed with the Superior Court of the County of Santa Clara, State of
California.
23 . ADVERTISEMENT
Consultant shall not post, exhibit, display or allow to be posted, exhibited ,
displayed any signs , advertising, show bills , lithographs , posters or cards of any kind
pertaining to the services performed under this Agreement unless prior written approval
has been secured from City to do otherwise.
24. WAIVER
A waiver by City of any breach of any term, covenant, or condition contained herein
shall not be deemed to be a waiver of any subsequent breach of the same or any other term ,
covenant, or condition contained herein , whether of the same or a different character.
25. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
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Consultant contract-4Leaf "on -call " Plan Review , FY 16-17
nature whatsoever between the Pmiies , and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No v erbal agreement or implied covenant
shall be held to vary the provisions hereof. Any modification of this Agreement will be
effective only by written execution signed by both City and Consultant.
26. AUTHORITY
The individual(s) executing this Agreement represent and warrant that they have
the legal capacity and authority to do so on behalf of their respective legal entities.
27. INSERTED PROVISIONS
Each provision and clause required by law to be inserted into the Agreement shall
be deemed to be enacted herein, and the Agreement shall be read and enforced as though
each were included herein. If through mistake or otherwise, any such provision is not
inserted or is not correctly inse1ied , the Agreement shall be amended to make such inse1iion
on application by either pmiy.
28. CAPTIONS AND TERMS
The captions in this Agreement are for convenience only, are not a part of the
Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement.
All unchecked boxes do not appl y to this Agreement.
IN WITNESS WHEREOF , the parties have caused the Agreement to be ex ecuted .
CONSULTANT
A.PROVED AS TO FORM:
CITY OF CUPERTINO
A Municipal Corporation
By ,/4d ~ail~
Title ffer· c?/JY IY6/'---
Date ;o/g//J6 ; 7
D Over $ l 75 ,000-Coun c il A pprov al Required
D Ove r $45,000-De partm ent Head A pp rova l Requ ired
~ Up to $45,000-Des ignated S up e rviso r A pp rova l Re quired
RECOMMEND ED F OR APPROVA L
~ City Attorney
~ I e-11 ~ad,,,/
Al' e7"t Salvador, Building Official
ATTEST: iL \ ~~0'2-,'fr
City Clerk //, l{ < / b
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Consultant contract -4Leaf "on -call " Plan Review , FY 16 -17
Exhibits: (Check box for exhibits that apply to this contract and attach)
IZI Exhibit "A"-Scope of Services
0 Exhibit "B"-Schedule of Perfo1mance
D Exhibit "C"-Compensation
IZI Exhibit "D" -Insurance Requirements and Proof of Insurance
D Exhibit "E" -Mandated Repo11ing Acknowledgement
D Exhibit "F"-Background/Fingerprint/TB Declaration
D Exhibit "G"-Nondiscrimination-State/Federal/HUD funded project
D Exhibit "H" -Request for City Manager to Waive Informal Bidding Requirements
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
PO #2017-)~°\
100-73-714 700-702 $30,000.00
Total: $30,000.00
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Consultant cont r act -4Leaf "on -call " Plan Rev i e w, FY 16-17
• 4LEAF, INC.
E NGINEERING • C ONSTRUCTION M ANAGEMENT
B utLOlNG I NSPECT10N • P L.AN C HECK
Exhibit A
Scope of Services and Compensation -On-Call Plan Check Services
1. Scope of Services: 4LEAF, Inc. "Consultant" shall provide on-call plan check as requested by the City for
various City of Cupertino projects. Consultant will provide complete reviews per the California building
code including reviews for structural, building, electrical, plumbing, mechanical, Title 24, green building,
and other adopted ordinances by the City of Cupertino.
Plan Check staff assigned Cupertino projects by the Consultant shall be preapproved by the City of
Cupertino Chief Building Official, and shall be removed immediately upon City's request and replaced
with an approved substitute .
2. Compensation: City shall compensate Consultant for professional services in accordance with the
hourly rates and estimated level of effort as outlined below. Compensation shall not exceed the amount
set forth below without written authorization by the City of Cupertino's Chief Building Official.
The compensation to be paid to Consultant under this Agreement for all services described under
Section 1 of this Exhibit and reimbursable expenses shall not exceed a total of Thirty-Thousand ($30,000)
for on-call plan review services . Any work performed or expenses incurred for which payment would
result in a total exc eeding the maximum amount of compensation set forth herein shall be at no cost to
the City unless Consultant receives prior written consent by the City of Cupertino's Chief Building
Official. Any additional requested staff will be billed of the rate show on the attached fee schedule.
Rates and Level of Effort: The terms of the services will run through June 30, 2017. 4LEAF will provide
the following staff types to perform the on-call services:
Position Estimated Hourly Rate Total
Hours
Residential Building Inspector NA $80
Combination Building Inspector (Commercial) NA $95
Senior Combination Building Inspector NA $115
Specialty Inspector (ADA, CASp, etc.) NA $175
Plan Review Services (1 st and 2nd Checks) NA 65% of City Fees
Plan Review (subsequent re-checks or staff NA $125
augmentation)
Permit Technician NA $60
$30,000
NA -not available since the level of effort for staff cannot b e identified until a specific project or ta sk is identified.
Title: See staff types above.
Invoices: In order to request payment, Consultant shall submit monthly invoices to the City describing
the services performed and the applicable charges (including a summary of work performed during that
period, personnel who performed the services, hours worked, and ta sk (s) for which work was
performed).
Exhibit A: Scope of Services and Compensation for On-Call Plan Check Se rvi ces
for the City of Cupertino
Page 1 of 2
September 7, 2016
• 4LEAF, INC.
E NGINEERING • C ONSTRUCTION M ANAGEMENT
B UILDING I NSPECTION • P LAN C HECK
Reimbursable Expenses: Administrative, overhead , secretarial time or ove rtime, word processing,
photocopying, in house printing, insurance and other ordinary business expenses are included within
the scope of payment or services and are not reimbursable expenses.
Additional Services: Consultant shall provide additional services outside the services identified in
Exhibit A only by advance written authorization from the City's Chief Building Official prior to
commencement of any additional services . Consultant shall submit, at the Chief Building Official 's
request, a detailed written proposal including a description of the scope of additional services , schedule ,
and proposed maximum compensation.
Exhibit A: Sco pe of Serv ices and Co mpensa tio n for On-Ca ll Pl an Check Se rv ices
fo r th e City of Cupe rtino
Page 2 of 2
Se pte mb er 7, 20 16
Exhibit D
Insurance Requirements and Proof of Insurance
Proof of insurance coverage described below is attached to this Exhibit , with City named
as additional insured.
Consultant shall maintain the following minimum insurance coverage:
A. COVERAGE:
(1) Workers' Compensation :
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $500,000 each occurrence
$1,000,000 aggregate -all other
Prope1ty Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of $1 ,000 ,000 will be considered equivalent to the required
minimum limits shown above.
(3) Automotive:
(4)
Comprehensive automotive liability coverage in the following minimum limits:
Bodily Injury: $500,000 each occurrence
Prope1ty Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
Professional Liability
Professional liability insurance which includes coverage for the professional acts ,
errors and omissions of Consultant in the amount of at least $1 ,000 ,000.
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