Insurance Exhibit B.pdf

APPENDIX E

INSURANCE REQUIREMENTS

Prior to the start of work the Contractor shall maintain in force, at its sole cost and expense, policies of insurance as required by this Appendix. All insurance required by this Appendix shall be written by companies that have an A.M. Best Company rating of “A-,” Class “VII” or better, or the equivalent rating from a nationally recognized rating firm with OPWDD’s prior written approval. In addition, companies writing insurance intended to comply with the requirements of this Appendix should be licensed or authorized by the New York State Department of Financial Services to issue insurance in the State of New York. OPWDD at its sole discretion may accept policies of insurance written by a non-authorized carrier or carriers when certificates and/or other policy documents are accompanied by a completed affidavit or other document(s) demonstrating the company’s strong financial rating. If, during the term of a policy, the carrier’s A.M. Best rating falls below “A-,” Class “VII,” or the equivalent rating from a nationally recognized rating firm, the insurance must be replaced on or before the renewal date of the policy with insurance that meets the requirements above.

Acceptance and/or approval by OPWDD shall not be construed to relieve the Contractor of any obligations, responsibilities, or liabilities under this Contract.

The Contractor shall not take any action, or omit to take any action, that would suspend or invalidate any of the required coverages during the term of the Contract.

1. General Conditions

1.1. Conditions Applicable to Insurance: All policies of insurance required by this agreement must meet the following requirements:

1.1.1. Coverage Types and Policy Limits: The types of coverage and policy limits required from the Contractor are specified herein.

1.1.2. Policy Forms: Except as may be otherwise specifically provided herein or agreed in writing by OPWDD, policies must be written on an occurrence basis. Under certain circumstances, OPWDD may elect to accept policies written on a claims-made basis provided that, at a minimum, the policy remains in force throughout the performance of the services and for three (3) years after completion of the Contract. If the policy is cancelled or not renewed during that time, the Contractor must purchase at its sole expense Discovery Clause coverage sufficient to complete the three-year period after completion of the Contract.

Written proof of this extended reporting period must be provided to OPWDD prior to the policy’s expiration or cancellation.

1.1.3. Certificates of Insurance / Notices: Contractor shall provide a Certificate or Certificates of Insurance, in a form satisfactory to OPWDD, before commencing any work under this contract. Certificates shall reference the Contract number and shall name as the certificate holder the New York State Office for People With Developmental Disabilities, 44 Holland Ave., Albany, NY, 12229.

Certificates of Insurance shall:

• Be in the form approved by OPWDD and in accordance with the New York State Insurance Law (e.g., an ACORD Certificate);

• Disclose any deductible, self-insured retention, aggregate limit, or any exclusion to the policy that materially changes the coverage required by the contract;

• Specify the Additional Insureds and Named Insureds as required herein;

• Refer to this Contract by number, the Supplemental Certificate, and any other attachments on the face of the certificate;

• When coverage is provided by a non-admitted carrier, be accompanied by a completed Affidavit, and be signed by an authorized representative of the insurance carrier or producer, and contain the following language in the Description of Operations/Locations/Vehicles section:

“The State of New York, the New York State Office for People With Developmental Disabilities, any entity authorized by law or regulation to use the Contract, and their officers, agents, and employees are included as an additional insured on endorsement CG 20 10 11 85 (or endorsements that

Exhibit B provide equivalent coverage, such as the combination of CG 20 10 04 13 [covering ongoing operations] and CG 20 37 04 13 [covering completed operations], and General liability coverage is provided on the current edition of Commercial General Liability Coverage Form CG 00 01 (or a form that provides equivalent coverage). Additional insured protection afforded is on a primary and noncontributory basis. A waiver of subrogation is granted in favor of the additional insureds, unless prohibited by law.

Only original documents (certificates and any endorsements and other attachments) or electronic versions of the same that can be directly traced back to the insurer, agent or broker via email distribution or similar means will be accepted.

Except for: (i) Data Breach and Privacy / Cyber Liability coverage; (ii) Technology Errors and Omissions; and (iii) Crime insurance coverages, OPWDD generally requires Contractors to submit only certificates of insurance and additional insured endorsements, although OPWDD reserves the right to request other proof of insurance. Contractors are requested to refrain from submitting entire insurance policies, unless specifically requested by OPWDD. If an entire insurance policy is submitted but not requested, OPWDD shall not be obligated to review and shall not be chargeable with knowledge of its contents. In addition, submission of an entire insurance policy not requested by OPWDD does not constitute proof of compliance with the insurance requirements and does not discharge Contractors from submitting the requested insurance documentation.

1.1.4. Forms and Endorsements. For Data Breach and Privacy / Cyber Liability, Technology Errors and

Omissions, and certain Crime Insurance coverages (those containing Cyber theft coverage), the Contractor shall provide OPWDD, after renewal or upon request, a Schedule of Forms and Endorsements and, upon request, all Forms and Endorsements, unless otherwise agreed to in the Contract. The Forms and Endorsements shall provide evidence of compliance with the requirements of this Contract. Only original documents or electronic versions of the same that can be traced directly back to the insurer, agent, or broker via email distribution or similar means will be accepted.

1.1.5. Primary Coverage: All insurance policies (except cyber/professional) shall provide or provided as endorsement via request that the required coverage shall be primary and noncontributory to other insurance available to the State of New York, the New York State Office for People With Developmental Disabilities, any entity authorized by law or regulation to use the Contract, and their officers, agents, and employees. Any other insurance maintained by the State of New York, the New York State Office for People With Developmental Disabilities, any entity authorized by law or regulation to use the Contract, and their officers, agents, and employees shall be excess of and shall not contribute with the Contractor’s insurance.

1.1.6. Breach for Lack of Proof of Coverage. The failure to comply with the requirements of this Appendix at any time during the term of the Contract shall be considered a breach of the terms of the Contract and shall allow the State of New York, the New York State Office for People With Developmental Disabilities, any entity authorized by law or regulation to use the Contract, and their officers, agents, and employees to avail themselves of all remedies available under the Contract or at law or in equity.

1.1.7. Self-Insured Retention / Deductibles: Certificates of Insurance must indicate the applicable deductibles

/ self-insured retentions for each listed policy. Deductibles or self-insured retentions above $100,000.00 are subject to approval from OPWDD. Such approval shall not be unreasonably withheld, conditioned, or delayed. The Contractor shall be solely responsible for all claim expenses and loss payments with the deductibles or self-insured retentions. If the Contractor is providing the required insurance through self-insurance, evidence of the financial capacity to support the self-insurance program along with a description of that program, including but not limited to information regarding the use of a third-party administrator, shall be provided upon request.

1.1.8. Subcontractors: Prior to the commencement of any work by a subcontractor, the Contractor shall require such subcontractor to procure policies of insurance as required by this Appendix, or alternatively, policies of insurance that are commensurate with the risk exposure presented by such subcontractors, if any, in their performance of services under contract or agreement, and maintain the same in force during the term of any work performed by that subcontractor.

1.1.9. Waiver of Subrogation: For the Commercial General Liability Insurance and Business Automobile

Liability Insurance required below, the Contractor shall cause to be included in each of its policies a waiver of the insurer’s right to recovery or subrogation against the State of New York, the New York State Office for People With Developmental Disabilities, any entity authorized by law or regulation to use the Contract, and their officers, agents, and employees, unless prohibited by law. A Waiver of Subrogation Endorsement evidencing such coverage shall be provided to OPWDD upon written request. A blanket Waiver of Subrogation Endorsement evidencing such coverage is also acceptable.

1.1.10. Additional Insured: For the Commercial General Liability Insurance and Comprehensive Business

Automobile Liability Insurance required below, the Vendor shall cause to be included in each of its policies ISO form CG 20 10 11 85 (or a form or forms that provide equivalent coverage, such as the combination of CG 20 10 04 13 and CG 20 37 04 13) and form CA 20 48 10 13 (or a form or forms that provide equivalent coverage) naming as additional insured: The People of the State of New York, the New York State Office for People With Developmental Disabilities, any entity authorized by law or regulation to use the Contract and their officers, agents, and employees. Additional Insured Endorsements shall be provided upon request to:

Contract Management Unit Office for People With Developmental Disabilities 44 Holland Avenue, 5th Floor Albany, New York 12229

A blanket Additional Insured Endorsement evidencing such coverage is also acceptable. For Contractors who are self-insured, the Contractor shall be obligated to defend and indemnify the above-named additional insured with respect to Commercial General Liability and Comprehensive Business Automobile Liability, in the same manner that the Contractor would have been required to pursuant to this Appendix had the Contractor obtained such insurance policies.

As clarification, “The People of the State of New York” means the State of New York and its subsidiary governmental entities. This is the name in which the State, as a governmental entity, enters into contracts, takes title to property, and initiates legal actions. Using the term “People” does not mean that the insurer is ensuring all residents of New York State; rather, that the State government is being insured.

1.1.11. Excess/Umbrella Liability Policies: Required insurance coverage limits may be provided through a combination of primary and excess/umbrella liability policies. If coverage limits are provided through excess/umbrella liability policies, then a Schedule of underlying insurance listing policy information for all underlying insurance policies (insurer, policy number, policy term, coverage, and limits of insurance), including proof that the excess/umbrella insurance follows form, must be provided after renewal and/or upon written request.

1.1.12. Notice of Cancellation or Nonrenewal: Policies shall be written to include the requirements for notice of cancellation or nonrenewal in accordance with the New York State Insurance Law. Within five (5) business days of receipt of any notice of cancellation or nonrenewal of insurance, the Contractor shall provide OPWDD with a copy of any such notice received from an insurer, together with proof of replacement coverage that complies with the insurance requirements of this Contract.

1.1.13. Policy Renewal/Expiration: At least two (2) weeks prior to the expiration of any policy required by this contract, evidence of renewal or replacement of coverage that complies with the insurance requirements set forth in this Contract shall be delivered to OPWDD. If, at any time during the term of this Contract, the coverage provisions and limits of the policies required herein do not meet the provisions and limits set forth in this Contract, or proof thereof is not provided to OPWDD, the Contractor shall immediately cease work. The Contractor shall not resume work until authorized to do so by OPWDD.

1.1.14. Deadlines for Providing Insurance Documents after Renewal or Upon Written Request: As set forth herein, certain insurance documents must be provided to OPWDD Procurement Services contact identified in the Contract Award Notice after renewal or upon written request. This requirement means that the Contractor shall provide the applicable insurance document to OPWDD as soon as possible, but in no event later than the following time periods:

• For certificates of insurance: five (5) business days;

• For information on self-insurance or self-retention programs: fifteen (15) calendar days;

• For additional insured and waiver of subrogation endorsements: thirty (30) calendar days;

• For schedules of forms and endorsements and all forms and endorsements: sixty (60) calendar days.

Notwithstanding the foregoing, if the Contractor requested the insurance documents promptly from its broker or insurer and has diligently taken all steps necessary to obtain such documents from its insurer and submit them to OPWDD, OPWDD shall extend the time period for a reasonable time period under the circumstances, but in no event shall the extension exceed 30 calendar days.

1.2. Insurance Requirements: Throughout the term of this Contract, the Contractor shall obtain and maintain in full force and effect, at their own expense, the following insurance with limits not less than those described below and as required by the terms of this Contract, or as required by law, whichever is greater.

1.2.1. Commercial General Liability: Commercial General Liability Insurance, (CGL) covering the liability of the

Contractor for bodily injury, property damage, and personal/advertising injury arising from all work and operations under this contract. The limits under such policy shall not be less than the following:

COMMERCIAL GENERAL LIABILITY

MINIMUM INSURANCE COVERAGE

General Aggregate $2,000,000 Products – Completed Operations Aggregate $2,000,000

Personal and Advertising Injury $1,000,000 Each Occurrence $2,000,000 Damage to Rented Premises $50,000 Medical Expenses $5,000

Aggregate limits shall apply on a per location basis or as otherwise agreed to in writing by OPWDD.

This aggregate limit applies separately to each location at which the insured works.

Coverage shall include, but not be limited to, the following:

• Premises liability;

• Independent contractors;

• Blanket contractual liability, including tort liability of another assumed under this contract;

• Defense and/or indemnification obligations, including obligations assumed under this contract;

• Cross liability for additional insureds; and

• Explosion, collapse, and underground hazards, The following ISO forms must be endorsed to the policy:

• CG 00 01 01 96 or an equivalent – Commercial General Liability Coverage Form

• CG 20 10 11 85, or an equivalent- Additional Insured-Owner, Lessees or Contractors (Form B)

1.2.2. Workers’ Compensation: Sections 57 and 220 of the New York State Workers’ Compensation Law require the heads of all municipal and state entities to ensure that businesses applying for contracts have appropriate workers’ compensation and disability benefits insurance coverage. These requirements apply to both original contracts and renewals.

For work to be performed in New York State, the Contractor shall provide and maintain full New York State (NYS listed in item 3a of the policy’s Information Page) coverage during the life of the contract for the benefit of such employees as are required to be covered by the New Yor State Workers’ Compensation Law.

If the contract involves work on or near a shoreline, or navigable waters (e.g., work in adjoining areas customarily used in the loading, unloading, repairing, or building of a vessel), a U.S. Longshore and Harbor Workers’ Compensation Act and/or Jones Acts policy as applicable must be provided. Any waiver of this requirement must be approved by the Agency and will only be granted in unique or unusual circumstances.

Evidence of Workers’ Compensation and Employers Liability coverage must be provided on one of the following forms specified by the Chair of the New York State Workers’ Compensation Board:

• C-105.2 (September 2007, or most current version) – Certificate of Workers’ Compensation

Insurance

• U-26.3 – Certificate of Workers’ Compensation Insurance from the State Insurance Fund

• GSI-105/SI-12 – Certificate of Workers’ Compensation Self-Insurance.

• CE-200 – Attestation of Exemption – When Contractor meets the requirements.

All forms are valid for one year from the date the form is signed/stamped, or until policy expiration, whichever is earlier.

Proof of Compliance with the Workers’ Compensation Coverage Requirements:

• Form CE-200, Certificate of Attestation for New York Entities With No Employees and Certain Out of

State Entities, that New York State Workers’ Compensation and/or Disability Benefits Insurance Coverage is Not Required, which is available on the New York State Workers’ Compensation Board’s website at www.wcb.ny.gov;

• Form C-105.2 (9/07), Certificate of Workers’ Compensation Insurance, sent to OPWDD by the Contractor’s insurance carrier upon request, or if coverage is provided by the New York State Insurance Fund, they will provide Form U-26.3 to OPWDD upon request from the Contractor; or

• Form SI-12, Certificate of Workers’ Compensation Self-Insurance, available from the New York State Workers’ Compensation Board’s Self-Insurance Office, or Form GSI-105.2, Certificate of Participation in Workers’ Compensation Group Self-Insurance, available from the Contractor’s Group Self- Insurance Administrator.

1.2.3. Disability Benefits Coverage: Proof of disability benefits coverage, or proof of exemption, must be submitted to OPWDD at the time of policy renewal, contract renewal, and upon request. Proof of compliance must be submitted on one of the following forms designated by the New York State Workers’ http://www.wcb.ny.gov/

Compensation Board. An ACORD form is not acceptable proof of Disability Benefits insurance coverage.

For work to be performed in New York State, the Contractor shall provide and maintain coverage during the life of the contract for the benefit of such employees as are required to be covered by the New York State Disability Benefits Law. Any waiver of this requirement must be approved by the Agency and will only be granted in unique or unusual circumstances.

Evidence of Disability Benefits coverage must be provided on one of the following forms specified by the Chair of the Workers’ Compensation Board:

• DB-120.1(May 2006 or most current version) – Certificate of Insurance Coverage under the New York

State Disability Benefits Law;

• DB-155 – Certificate of Disability Self-Insurance; or

• CE-200 – Certificate of Attestation of Exemption.

All forms are valid for one year from the date the form is signed/stamped, or until policy expiration, whichever is earlier.

Proof of Compliance with the Disability Benefits Coverage Requirements:

• Form CE-200, Certificate of Attestation for New York Entities With No Employees and Certain Out of State Entities, that New York State Workers’ Compensation and/or Disability Benefits Insurance Coverage is Not Required, which is available on the New York State Workers’ Compensation Board’s website at www.wcb.ny.gov;

• Form DB-120.1, Certificate of Disability Benefits Insurance, sent to OPWDD by the Contractor’s insurance carrier upon request; or

• Form DB-155, Certificate of Disability Benefits Self-Insurance, available from the New York State Workers’ Compensation Board’s Self-Insurance Office.

An instruction manual clarifying the New York State Workers’ Compensation Law requirements is available for download at the New York State Workers’ Compensation Board’s website at www.wcb.ny.gov. Once on the site, click on the Employers/Businesses tab and then click on Employers’ Handbook.

1.2.4. Comprehensive Business Automobile Liability Insurance: (Reserve)

1.2.5. Professional Liability Insurance / Errors and Omissions Liability Insurance: The Contractor and any subcontractor retained by the Contractor to work on the contract shall procure and maintain during and for a period of three (3) years after completion of the contract, Professional Liability Insurance / Errors and Omissions Liability Insurance in the amount of one million dollars or more, issued to and covering damage for liability imposed on the Contractor by the contract or law arising out of any negligent act, error, or omission in the rending of or failure to render professional services required by the contract. The Professional Liability Insurance / Errors and Omissions Liability Insurance may be issued on a Claims- Made Policy form, in which case the Contractor shall purchase, at its sole expense, Tail Coverage of up to three (3) years after work is completed if coverage is cancelled or not renewed.

1.2.6. Data Breach and Privacy / Cyber Liability: Contractors are required to maintain during the term of this

Contract, and as otherwise required herein, Data Breach and Privacy / Cyber Liability Insurance, including coverage for failure to protect confidential information and failure of the security of the Contractor’s computer systems or OPWDD’s systems due to the actions of the Contractor that result in unauthorized access to OPWDD’s or their data. Said insurance shall be maintained in the following limits, as applicable:

DATA BREACH AND PRIVACY / CYBER LIABILITY

CATEGORY MINIMUM INSURANCE

COVERAGE

Software $1,000,000

Hardware $1,000,000

Cloud * Low Risk $2,000,000

Implementation $1,000,000

* See NYS-S14-002 Information Classification Standard or successor available at:

http://www.its.ny.gov/tables/technologypolicyindex.htm for additional information relating to risk categories.

Contractor must maintain minimum insurance coverage for the level of risk for which Contractor provides Products and submit documentation in accordance with the terms of this Contract.

The Contractor must maintain minimum insurance coverage for the level of risk for which the Contractor provides Products and submit documentation in accordance with the terms of this Contract.

Said insurance shall provide coverage for damages arising from the following:

• Breach of duty to protect the security and confidentiality of nonpublic proprietary corporate information.

• Personally identifiable nonpublic information (e.g., medical, financial, or personal in nature in electronic or non-electronic form)

• Privacy notification costs

• Regulatory defense and penalties

• Website media liability.

If the policy is written on a claims-made basis, the Contractor must submit to OPWDD an Endorsement providing proof that the policy provides the option to purchase an Extended Reporting Period (“tail coverage”) providing coverage for no less than one (1) year after work is completed if coverage is cancelled or not renewed. This requirement applies to both primary and excess liability policies, as applicable.

1.2.7. Technology Errors and Omissions: Contractors are required to maintain during the term of the Contract, and as otherwise required herein, Technology Errors and Omissions Insurance. Said insurance shall be maintained in the following limits and can be shared with the Cyber Coverage, as applicable:

TECHNOLOGY ERRORS AND OMISSIONS

CATEGORY

MINIMUM

INSURANCE

COVERAGE

Software $1,000,000

Hardware $1,000,000

Cloud * Low Risk $2,000,000

Implementation $1,000,000 http://www.its.ny.gov/tables/technologypolicyindex.htm

* See NYS-S14-002 Information Classification Standard or successor available at:

http://www.its.ny.gov/tables/technologypolicyindex.htm for additional information relating to risk categories.

Contractor must maintain minimum insurance coverage for the level of risk for which Contractor provides Products and submit documentation in accordance with the terms of this

Contract.

Contractor must maintain minimum insurance coverage for the level of risk for which Contractor provides Products and submit documentation in accordance with the terms of this Contract.

Said insurance shall provide coverage for damages arising from computer-related services, including:

• Technology Consulting

• Data processing

• Computer Programming

• System integration

• Computer Hardware or software development

• Computer Systems, Computer Networks, Electronic Systems Installation

• Systems analysis or design

• Software Training Manufactured, distributed, licensed, marketed, or sold cloud-computing services.

If the policy is written on a claims-made basis, the Contractor must submit to OPWDD an Endorsement providing proof that the policy provides the option to purchase an Extended Reporting Period (“tail coverage”) providing coverage for no less than one (1) year after work is completed if coverage is cancelled or not renewed. This requirement applies to both primary and excess liability policies, as applicable.

1.2.8. Crime Insurance: Contractors are required to maintain during the term of the Contract and as otherwise required herein, Crime Insurance. Said insurance shall be maintained in the following limits:

CRIME INSURANCE

RISK MINIMUM INSURANCE

COVERAGE

Low Risk $2,000,000

* See NYS-S14-002 Information Classification Standard or successor available at:

http://www.its.ny.gov/tables/technologypolicyindex.htm for additional information relating to risk categories.

Contractor must maintain minimum insurance coverage for the level of risk for which Contractor provides Products and submit documentation in accordance with the terms of this

Contract.

Exhibit B

Contractor must maintain minimum insurance coverage for the level of risk for which Contractor provides Products and submit documentation in accordance with the terms of this Contract.

Crime Insurance on a “loss sustained form” or “loss discovered form” providing coverage for Third Party Fidelity.

In addition to the coverage above:

• The policy must allow for reporting of circumstances or incidents that might give rise to future claims.

• The policy must include an extended reporting period of no less than one (1) year with respect to events that occurred but were not reported during the term of the policy.

• Any warranties required by the Vendor’s and Contractor’s insurer as a result of this Solicitation must be disclosed and complied with. Said insurance shall extend coverage to include the principals (all directors, officers, agents, and employees) of the Vendor and Contractor as a result of this Solicitation.

• The policy shall include coverage for third party fidelity, including cyber theft if not provided as part of Cyber Liability, and name the People of the State of New York, the New York State Office for People With Developmental Disabilities, any entity authorized by law or regulation to use this Contract as OPWDD and their officers, agents, and employees as “Loss Payees” for all Third-Party coverage secured. An Endorsement naming as Loss Payees “The People of the State of New York, the New York State Office for People With Developmental Disabilities, any entity authorized by law or regulation to use this Contract as OPWDD and their officers, agents, and employees” shall be provided upon request. A blanket Loss Payee Endorsement evidencing such coverage is also acceptable. This requirement applies to both primary and excess liability policies, as applicable.

• The policy shall not contain a condition requiring an arrest and conviction.

1.2.9. Railroad Protective Liability Insurance: (Reserve)

1.2.10. Environmental Liability Insurance: (Reserve)

1.2.11. Builder’s Risk Insurance / Installation Floater: (Reserve)

1.2.12. Owners and Contractors Protective: (Reserve)

1.2.13. Marine Protection & Indemnity, Hull & Machinery, Jones Act and United States, Longshore and

Harbor Workers’ Compensation Act Coverage: (Reserve)

1.2.14. Garage Liability Insurance: (Reserve)

1.2.15. Excess and Umbrella Liability: (Reserve)

1.2.16. Construction Manager’s Professional Liability Insurance / Errors and Omissions Liability Insurance:

(Reserve)

1.2.17. Unmanned Aircraft System (“UAS”) Liability: (Reserve)

1.2.18. Commercial Property Insurance: (Reserve)

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