RFP 29393 Appendix D – Insurance Requirements.pdf

Appendix D – Insurance Requirements

New York State – Division of Homeland Security and Emergency Services Solicitation 29393- NextGen 911 Appendix D

Insurance Requirements

The Bidder shall be required to procure, at its sole cost and expense, all insurance required by this Attachment.

The Bidder shall be required to provide proof of compliance with the requirements of this Attachment, as follows:

Proof of all insurance required by Section B below shall be provided in accordance with the provisions hereof;

After award, the Contractor shall be required to provide proof of all insurance after renewal or upon request according to the timelines set forth in Section A.13 below.

Contractors shall be required to procure, at their sole cost and expense, and shall maintain in force at all times during the term of any Contract resulting from this Solicitation, policies of insurance as required by this Attachment. All insurance required by this Attachment shall be written by companies that have an A.M. Best Company rating of “A-,” Class “VII” or better. In addition, companies writing insurance intended to comply with the requirements of this Attachment should be licensed or authorized by the New York State Department of Financial Services to issue insurance in the State of New York. DHSES may, in its sole discretion, accept policies of insurance written by a non-authorized carrier or carriers when certificates and/or other policy documents are accompanied by a completed Excess Lines Association of New York (ELANY) affidavit or other documents 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,” the insurance must be replaced, on or before the renewal date of the policy, with insurance that meets the requirements above.

Bidders and Contractors shall deliver to DHSES evidence of the insurance required by this Solicitation and any Contract resulting from this Solicitation in a form satisfactory to DHSES. Policies must be written in accordance with the requirements of the paragraphs below, as applicable. While acceptance of insurance documentation shall not be unreasonably withheld, conditioned or delayed, acceptance and/or approval by DHSES does not, and shall not be construed to, relieve Bidders or Contractors of any obligations, responsibilities or liabilities under this Solicitation or any Contract resulting from this Solicitation.

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.

A. General Conditions Applicable to Insurance. All policies of insurance required by this Solicitation or any Contract resulting from this Solicitation shall comply with the following requirements:

1. Coverage Types and Policy Limits. The types of coverage and policy limits required from Bidders and Contractors are specified in Paragraph B Insurance Requirements below.

2. Policy Forms. Except as otherwise specifically provided herein, or agreed to in the Contract resulting from this Solicitation, all policies of insurance required by this Appendix D shall be written on an occurrence basis. In the event that occurrence-based coverage is not commercially available, claims-made policy forms will be considered provided that, at minimum, it includes provisions that allow for (a) reporting circumstances or incidents that may give rise to future claims and (b) an extended reporting period of not less than three (3) years with respect to events that occurred but were not reported during the term of the policy.

3. Certificates of Insurance/Notices. Bidders and Contractors shall provide DHSES with a Certificate or Certificates of Insurance, in a form satisfactory to DHSES as detailed below, and pursuant to the timelines set forth in Section A.13. below. Certificates shall name The People of the State of New York, New York State Division of Homeland Security and Emergency Services, 1220 Washington Avenue, Building 7A, 6th Floor, Albany, NY 12226 as the certificate holder.

Certificates of Insurance shall:

Be in the form acceptable to DHSES and in accordance with the New York State Insurance Law (e.g., an ACORD 25 certificate);

Disclose any deductible, self-insured retention, aggregate limit or exclusion to the policy that materially changes the coverage required by this Solicitation or any Contract resulting from this Solicitation;

Be signed by an authorized representative of the referenced insurance carriers; and Contain the following language in the Description of Operations / Locations / Vehicles section of the Certificate or on a submitted endorsement: Additional insured protection afforded is on a primary and non-contributory basis. A waiver of subrogation is granted in favor of the additional insureds.

Only original documents (certificates of insurance 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 e-mail distribution or similar means will be accepted.

DHSES requires Contractors to submit only certificates of insurance and additional insured endorsements. Contractors should refrain from submitting entire insurance policies. If an entire insurance policy is submitted but not requested, DHSES 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 DHSES does not constitute proof of compliance with the insurance requirements and does not discharge Contractors from submitting the requested insurance documentation. DHSES reserves the right to request other proof of insurance, including, but not limited to, policies, and Contractors agree to comply with all reasonable requests.

4. Primary Coverage. All Commercial General Liability, Business Automobile Liability, and Excess Umbrella Liability insurance policies shall provide that the required coverage shall be primary and non-contributory to other insurance available to the People of the State of New York, the New York State Division of Homeland Security and Emergency Services, and their officers, agents, and employees. Any other insurance maintained by the People of the State of New York, the New York State Division of Homeland Security and Emergency Services, and their officers, agents, and employees shall be excess of and shall not contribute with the Bidder/Contractor’s insurance.

5. Breach for Lack of Proof of Coverage. The failure to comply with the requirements of this Attachment at any time during the term of the Contract shall be considered a breach of the terms of the Contract and shall allow the People of the State of New York, the New York State Division of Homeland Security and Emergency Services, and their officers, agents, and employees to avail themselves of all remedies available under the Contract or at law or in equity.

6. 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 DHSES. Such approval shall not be unreasonably withheld, conditioned or delayed. Bidders and Contractors shall be solely responsible for all claim expenses and loss payments within the deductibles or self-insured retentions. If the Bidder/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.

7. 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 Attachment and maintain the same in force during the term of any work performed by that Subcontractor. An Additional Insured Endorsement CG 20 38 12 19 (or the equivalent) evidencing such coverage shall be provided to the Contractor prior to the commencement of any work by a subcontractor and pursuant to the timelines set forth in Section A.13. below, as applicable. For subcontractors that are self-insured, the subcontractor shall be obligated to defend and indemnify the above-named additional insureds with respect to Commercial General Liability and Business Automobile Liability, in the same manner that the subcontractor would have been required to pursuant to this section had the subcontractor obtained such insurance policies.

8. Waiver of Subrogation. For all Commercial General Liability, Business Automobile Liability, Excess/Umbrella Liability policies and the workers’ compensation insurance required below, the Bidder/Contractor shall cause to be included in its policies insuring against loss, damage or destruction by fire or other insured casualty a waiver of the insurer’s right of subrogation against The People of the State of New York, the New York State Division of Homeland Security and Emergency Services, and their officers, agents, and employees, or, if such waiver is unobtainable (i) an express agreement that such policy shall not be invalidated if the Contractor waives or has waived before the casualty, the right of recovery against The People of the State of New York, the New York State Division of Homeland Security and Emergency Services, and their officers, agents, and employees or (ii) any other form of permission for the release of The People of the State of New York, the New York State Division of Homeland Security and Emergency Services, and their officers, agents, and employees. A Waiver of Subrogation Endorsement shall be provided upon request. A blanket Waiver of Subrogation Endorsement evidencing such coverage is also acceptable.

9. Additional Insured. The Contractor shall cause to be included in each of the Commercial General Liability, Business Automobile Liability, and Excess/Umbrella Liability policies required below for on-going and completed operations naming as additional insured (via ISO form CG 20 10 12 19 and CG 20 37 12 19 and form CA 20 48 10 13, or a form or forms that provide equivalent coverage): The People of the State of New York, the New York

State Division of Homeland Security and Emergency Services, and their officers, agents, and employees. An Additional Insured Endorsement, or the equivalent, evidencing such coverage shall be provided to DHSES pursuant to the timelines set forth in Section A.13. below. 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 insureds with respect to Commercial General Liability and Business Automobile Liability, in the same manner that the Contractor would have been required to pursuant to this Attachment had the Contractor obtained such insurance policies.

10. 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 upon request.

11. Notice of Cancellation or Non-Renewal. Policies shall be written so as to include the requirements for notice of cancellation or non-renewal in accordance with the New York State Insurance Law. Within five (5) business days of receipt of any notice of cancellation or non-renewal of insurance, the Contractor shall provide DHSES 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 Solicitation and any Contract resulting from this Solicitation.

12. Policy Renewal/Expiration. Upon policy renewal/expiration, evidence of renewal or replacement of coverage that complies with the insurance requirements set forth in this Solicitation and any Contract resulting from this Solicitation shall be delivered to DHSES. If, at any time during the term of any Contract resulting from this Solicitation, the coverage provisions and limits of the policies required herein do not meet the provisions and limits set forth in this Solicitation or any Contract resulting from this Solicitation, or proof thereof is not provided to DHSES, the Contractor shall immediately cease work. The Contractor shall not resume work until authorized to do so by DHSES.

13. Deadlines for Providing Insurance Documents after Renewal or Upon Request.

As set forth herein, certain insurance documents must be provided to the DHSES Agency Procurement Office contact identified in the Contract Award Notice after renewal or upon request. This requirement means that the Contractor shall provide the applicable insurance document to DHSES as soon as possible but in no event later than the following time periods:

For certificates of insurance: 5 business days;

For information on self-insurance or self-retention programs: 15 calendar days;

For other requested documentation evidencing coverage: 15 calendar days;

For additional insured and waiver of subrogation endorsements: 30 calendar days;

and For notice of cancellation or non-renewal and proof of replacement coverage that complies with the requirements of this section: 5 business days from request or renewal.

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

B. Insurance Requirements Bidders and Contractors shall obtain and maintain in full force and effect, throughout the term of any Contract resulting from this Solicitation, at their own expense, the following insurance with limits not less than those described below and as required by the terms of any Contract resulting from this Solicitation, or as required by law, whichever is greater:

1. Commercial General Liability Insurance: Commercial General Liability Insurance with a limit of not less than $2,000,000 each occurrence. Such liability shall be written on the current edition of ISO occurrence form CG 00 01, or a substitute form providing equivalent coverage.

Aggregate limits shall apply on a per location basis, or as otherwise agreed to in the Contract.

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

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

Bodily injury;

Premises operations;

Independent contractors;

Products-completed operations;

Broad form property damage;

Personal & advertising injury;

Blanket contractual liability, including tort liability of another assumed in any Contract resulting from this Solicitation;

Defense and/or indemnification obligations, including obligations assumed under the

Contract;

Cross liability for additional insureds; and Explosion, collapse and underground hazards.

2. Comprehensive Business Automobile Liability Insurance covering liability arising out of any automobile used in connection with performance under the Contract, including owned, leased, hired and non-owned automobiles bearing or, under the circumstances under which they are being used, required by the Motor Vehicles Laws of the State of New York to

Commercial General Liability Insurance Proof of

Coverage is Due

Commercial General Liability No less than $2,000,000 each occurrence Upon notification of tentative award and updated in accordance with Contract

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 Limit $5,000 bear, license plates. Such policy shall have a combined single limit for Bodily Injury and Property Damage of at least $2,000,000.00 each accident. The limits may be provided through a combination of primary and umbrella liability policies.

In the event that the Contractor does not own, lease or hire any automobiles used in connection with performance under the Contract, the Contractor does not need to obtain Comprehensive Business Automobile Liability Insurance, but must attest to the fact that the Contractor does not own, lease or hire any automobiles used in connection with performance under the Contract on a form provided by DHSES. If, however, during the term of the Contract, the Contractor acquires, leases or hires any automobiles that will be used in connection with performance under the Contract, the Contractor must obtain Comprehensive Business Automobile Liability Insurance that meets all of the requirements of this section and provide proof of such coverage to DHSES in accordance with the insurance requirements of the Contract.

In the event that the Contractor does not own or lease any automobiles used in connection with performance under the Contract, but the Contractor does hire and/or utilize non-owned automobiles in connection with performance under the Contract, the Contractor must: (i) obtain Comprehensive Business Automobile Liability Insurance as required by this Contract, except that such insurance may be limited to liability arising out of hired and/or non-owned automobiles, as applicable; and (ii) attest to the fact that the Contractor does not own or lease any automobiles used in connection with performance under the Contract, on a form provided by DHSES. If, however, during the term of the Contract, the Contractor acquires or leases any automobiles that will be used in connection with performance under the Contract, the Contractor must obtain Comprehensive Business Automobile Liability Insurance that meets all of the requirements of this section and provide proof of such coverage to DHSES in accordance with the insurance requirements of the Contract.

3. 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 the Authorized Users’ systems due to the actions of the Contractor which results in unauthorized access to the Authorized User(s) or their data. Said insurance shall be maintained in the following limits, as applicable:

Comprehensive Business Automobile Liability Insurance Proof of Coverage is Due

Comprehensive Business Automobile Liability Insurance

No less than $2,000,000 each accident

Upon notification of tentative award and updated in accordance with Contract

Data Breach and Privacy/Cyber Liability Proof of Coverage is Due

Software $1,000,000 Upon notification of tentative award and updated in accordance with Contract

Hardware $1,000,000

Cloud*

Low Risk $2,000,000

Moderate Risk $5,000,000

Said insurance shall provide coverage for damages arising from, but not limited to 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; and Cyber theft of customer’s property, including but not limited to money and securities.

If the policy is written on a claims made basis, Contractor must submit to DHSES an Endorsement or other evidence 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 in the event that coverage is cancelled or not renewed. This requirement applies to both primary and excess liability policies, as applicable.

4. 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, as applicable:

Data Breach and Privacy/Cyber Liability Proof of Coverage is Due

High Risk $10,000,000

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

Technology Errors and Omissions Proof of

Coverage is Due

Software $1,000,000 Upon notification of tentative award and updated in

Hardware $1,000,000

Low Risk $2,000,000

Moderate Risk $5,000,000

High Risk $10,000,000

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.

Said insurance shall provide coverage for damages arising from computer related services including but not limited to the following:

1. Consulting;

2. Data processing;

3. Programming;

4. System integration;

5. Hardware or software development;

6. Installation;

7. Distribution or maintenance;

8. Systems analysis or design;

9. Training;

10. Staffing or other support services; and

11. Manufactured, distributed, licensed marketed or sold cloud computing services.

The policy shall include coverage for third party fidelity including cyber theft.

If the policy is written on a claims basis, Contractor must submit to DHSES an Endorsement or other evidence 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 in the event that coverage is cancelled or not renewed. This requirement applies to both primary and excess liability policies, as applicable.

5. 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 on a “loss sustained form” or “loss discovered form” must provide coverage for Third Party Fidelity.

Crime Insurance Proof of

Coverage is Due

Software $2,000,000 Upon notification of tentative award and updated in

Hardware $2,000,000

Low Risk $2,000,000

Moderate Risk $5,000,000

High Risk $10,000,000

Implementation $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.

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 which occurred but were not reported during the term of the policy.

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

The policy shall include coverage for third party fidelity, including cyber theft if not provided as part of Cyber Liability, and name the State of New York, the New York State Division of Homeland Security and Emergency Services, any entity authorized by law or regulation to use this Contract and their officers, agents, and employees as “Loss Payees” as their interests may appear for all Third Party coverage secured. An Endorsement naming as Loss Payees “The State of New York, the New York State Division of Homeland Security and Emergency Services, any entity authorized by law or regulation to use this Contract 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.

6. Workers’ Compensation Insurance and Disability Benefits Requirements 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. Failure to provide proper proof of such coverage or a legal exemption will result in a rejection of a Bid or any contract renewal. A Bidder will not be awarded a Contract unless proof of workers’ compensation and disability insurance is provided to DHSES. Proof of workers’ compensation and disability benefits coverage, or proof of exemption must be submitted to DHSES at the time of notification of tentative award, 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’ Compensation Board. An ACORD form is not acceptable proof of New York State workers’ compensation or disability benefits insurance coverage.

Proof of Compliance with 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 Workers’ Compensation Board’s website (www.businessexpress.ny.gov);

Form C-105.2 (9/15), Certificate of Workers’ Compensation Insurance, sent to DHSES by the Contractor’s insurance carrier upon request, or if coverage is provided by the New

Workers’ Compensation and Disability Benefits Proof of Coverage is Due

Workers’ Compensation Upon notification of tentative award and updated in accordance with Contract Disability Benefits

York State Insurance Fund, they will provide Form U-26.3 to DHSES 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.

Certificate Holder should read: NYS Division of Homeland Security and Emergency Services, 1220 Washington Avenue, Bldg. 7A, 6th Floor, Albany, NY 12226

Proof of Compliance with 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 Workers’ Compensation Board’s website (www.businessexpress.ny.gov);

Form DB-120.1, Certificate of Disability Benefits Insurance, sent to DHSES 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.

Certificate Holder should read: NYS Division of Homeland Security and Emergency Services, 1220 Washington Avenue, Bldg. 7A, 6th Floor, Albany, NY 12226

Information clarifying the New York State Workers’ Compensation Law requirements is available at the New York State Workers’ Compensation Board’s website, http://www.wcb.ny.gov/content/main/Employers/requirements-businesses-applying-government-permits-licenses-contracts.pdf .

Contractor acknowledges that failure to obtain and/or keep in effect any or all required insurance on behalf of DHSES constitutes a material breach of contract and subjects it to liability for damages, indemnification and all other legal remedies available to DHSES. Contractor’s failure to obtain and/or keep in effect any or all required insurance shall also provide the basis for DHSES’ immediate termination of any contract resulting from this Solicitation, subject only to a five (5) business day cure period. Any termination by DHSES under this section shall in no event constitute or be deemed a breach of any contract resulting from this Solicitation and no liability shall be incurred by or arise against the Division of Homeland Security and Emergency Services, its agents and employees therefore for lost profits or any other damages.