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HomeMy WebLinkAboutSanta Clara County - 2018 Agreement for funding for EMS products and servicesAGREEMENT BETWEEN THE COUNTY OF SANTA CLARA AND THE CITY OF GILROY This is an Agreement by and between the County of Santa Clara ( "County ") and the City of Gilroy ( "Provider" and /or "Contractor ") to provide funding for the purchase of products or services that benefit the Santa Clara County Emergency Medical Services ( "EMS ") system. The parties agree to comply with the General Terms and Conditions contained in Sections 1 -26 of this Agreement and provisions contained in Exhibit A: Scope of Service and Exhibit B: Insurance Requirements, which are attached hereto and incorporated herein by this reference. IN WITNESS WHEREOF, the duly authorized representatives of the parties have executed this Agreement in duplicate originals. COUNTY Miriam Singer Chief Procurement Officer Approved BY: Rene G. Santiago Deputy County Executive Santa Clara Valley Health CONTRACTOR Date Alan Anderson Date Fire Chief City of Gilroy APPROVED AS TO FORM AND LEGALITY BY: Date Andy Faber Date City Attorney Hospital System Approved BY: John Cookinham Date Chief Financial Officer Santa Clara Valley Health & Hospital System APPROVED AS TO FORM AND LEGALITY BY: Jenny S. Lam Date Deputy County Counsel Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 1 of 18 THEREFORE, COUNTY and CONTRACTOR agree as follows; 1. Background To support the Santa Clara County EMS System, the County may provide funding to EMS First Responders for the purchase of products or services that provide a benefit to the Santa Clara County EMS System. All products or services must adhere to the requirements mandated by the Santa Clara County Prehospital Policy 309 — Comprehensive EMS Patient Care Data System ( "Prehospital Policy 309 "). 2. Term This Agreement is effective from April 9, 2018 through December 31, 2018 unless terminated earlier in accordance with Section 5. 3. Compensation and Payment a. The maximum financial obligation for all services provided under this Agreement shall not exceed $49,927.32 for the term of the Agreement. The County does not guarantee any minimum compensation payable under this Agreement. b. Contractor shall invoice County for the purchase of approved hardware and /or services under this Agreement to the satisfaction of County according to Exhibit A (Scope of Services). Contractor's invoices shall be in a form that is acceptable to County. Contractor must submit supporting data and documentation, such as third party receipts, as requested by the County. All payments made under this Agreement shall be subject to an audit at County's option, and shall be adjusted in accordance with said audit. Adjustments found necessary as a result of auditing shall be reimbursed back to the County in full. c. County shall inform Contractor of any disputed invoice and the parties shall use their best efforts to resolve such disputes expeditiously. Any undisputed portion of the invoice shall be paid without delay as set forth above. County shall not pay any disputed portion of any invoice until Contractor has resolved the dispute to the satisfaction of the County. After disputed charges are substantiated and approved, County shall make payment to the Contractor accordingly. d. The parties agree that the payment term shall be the term selected below and payment shall be due in accordance with the selected payment term. For example, if Contractor selects 2.25% 10 Net 45 as the payment term, payment shall be due 10 days from the date the County approves the invoice, instead of 45 days, and the County shall take a discount of 2.25% of the total amount of the invoice. Payment is deemed to have been made on the date the County mails the warrant or initiates the electronic fund transfer. Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 2 of 18 ❑ 2.25% 10 Net 45 (provides 35 days of cash acceleration) ❑ 2.00% 15 Net 45 (provides 30 days of cash acceleration) ❑ 1.75% 20 Net 45 (provides 25 days of cash acceleration) ❑ 1.33% 25 Net 45 (provides 20 days of cash acceleration) EJ 1.00% 30 Net 45 (provides 15 days of cash acceleration) ❑ Net 45 (full payment) Note: Payment term will default to "Net 45 (full payment) ", if no other term was selected. Notwithstanding the option selected above, the parties agree that at any time during the contract term, either party may initiate an early payment discount on an invoice - by- invoice basis utilizing the Dynamic Discounting functionality of the Ariba Network. Contractor must have a registered account on the Ariba Network to utilize this functionality. 4. Indemnification & Insurance a. Indemnity: Contractor will indemnify County as set forth in Exhibit B (Insurance Requirements). b. Insurance: Without limiting the Contractor's indemnification of the County, the Contractor will provide and maintain at its own expense, during the term of this Agreement, or as may be further required herein, the insurance coverages and provisions set forth in Exhibit B (Insurance Requirements). Contractor agrees that failure to provide evidence of such required insurance coverages and provisions will result in the County withholding payment until all such evidence is provided to the County. 5. Termination a. County may terminate this Agreement at any time, without cause, by providing thirty (30) days prior written notice in the manner described in Section 10. Termination shall take effect automatically upon the expiration of the thirty (30) day notice period. b. County may terminate this Agreement for cause upon 14 days written notice to Provider. For the purposes of this Agreement, "cause" includes, but is not limited to, any of the following: a) Assignment, delegation, or subcontracting by Provider of this Agreement without the prior written consent of the County, which County may withhold in its sole and absolute discretion, b) Violation by Provider of any applicable laws, rules, regulations, policies, or procedures, c) Failure to respond to requests for information as required by this Agreement, Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 3 of 18 and d) Any other material breach of this Agreement by Provider. Such notice shall specify the reason for termination and shall indicate the effective date of such termination. c. This Agreement is contingent upon the existence of a current 911 Emergency Medical Services Provider Agreement ( "EMS Agreement ") between the County and the Provider. If the EMS Agreement is terminated or expires without a successor in place, this Agreement shall automatically terminate concurrent with the termination or expiration of the EMS Agreement. 6. Status of Parties This is an Agreement by and between independent contractors and shall not be construed to create an employment, agency partnership, or joint venture relationship. Neither Contractor nor its employees or agents shall be considered County employees, and they shall not be entitled to any of the benefits enjoyed by County employees, including, but not limited to, salary, vacation pay, sick pay, retirement, or workers' compensation, unemployment benefits, or any other County employee benefits. 7. Assignment This Agreement shall not be assigned, in whole or in part, without the prior written consent of the County. 8. Contracting Principles Contractor agrees to comply with the County's Contracting Principles set forth in the Board Policy Manual. The Contracting Principles require, among other things, that Contractor be a fiscally responsible entity and treat its employees fairly. Contractor is also required to (1) comply with all applicable federal, state and local rules, regulations and laws; (2) maintain financial records, and make those records available upon request; (3) provide to the County copies of any financial audits that have been completed during the term of the contract; and (4) upon the County's request, provide the County reasonable access, through representatives of the Contractor, to facilities, financial and employee records that are related to the purpose of the contract, except where prohibited by federal or state laws, regulations or rules. 9. Compliance With All Laws, Including Nondiscrimination, Equal Opportunity and Wage Theft Prevention (1) Compliance with All Laws. Contractor shall comply with all applicable Federal, State, and local laws, regulations, rules, and policies (collectively, "Laws "), including but not limited to the non - discrimination, equal opportunity, and wage and hour Laws referenced in the paragraphs below. Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 4 of 18 (2) Compliance with Non - Discrimination and Equal Opportunity Laws: Contractor shall comply with all applicable Laws concerning nondiscrimination and equal opportunity in employment and contracting, including but not limited to the following: Santa Clara County's policies for contractors on nondiscrimination and equal opportunity; Title VII of the Civil Rights Act of 1964 as amended; Americans with Disabilities Act of 1990; the Age Discrimination in Employment Act of 1967; the Rehabilitation Act of 1973 (Sections 503 and 504); the Equal Pay Act of 1963; California Fair Employment and Housing Act (Gov. Code § 12900 et seq.); California Labor Code sections 1101, 1102, and 1197.5; and the Genetic Information Nondiscrimination Act of 2008. In addition to the foregoing, Contractor shall not discriminate against any subcontractor, employee, or applicant for employment because of age, race, color, national origin, ancestry, religion, sex, gender identity, gender expression, sexual orientation, mental disability, physical disability, medical condition, political belief, organizational affiliation, or marital status in the recruitment, selection for training (including but not limited to apprenticeship), hiring, employment, assignment, promotion, layoff, rates of pay or other forms of compensation. Nor shall Contractor discriminate in the provision of services provided under this contract because of age, race, color, national origin, ancestry, religion, sex, gender identity, gender expression, sexual orientation, mental disability, physical disability, medical condition, political beliefs, organizational affiliations, or marital status. (3) Compliance with Wage and Hour Laws: Contractor shall comply with all applicable wage and hour Laws, which may include but are not limited to, the Federal Fair Labor Standards Act, the California Labor Code, and, if applicable, any local minimum wage, prevailing wage, or living wage Laws. (4) Definitions: For purposes of this section, the following definitions shall apply. A "Final Judgment" shall mean a judgment, decision, determination, or order (a) which is issued by a court of law, an investigatory government agency authorized by law to enforce an applicable Law, an arbiter, or arbitration panel and (b) for which all appeals have been exhausted or the time period to appeal has expired. For pay equity Laws, relevant investigatory government agencies include the federal Equal Employment Opportunity Commission, the California Division of Labor Standards Enforcement, and the California Department of Fair Employment and Housing. Violation of a pay equity Law shall mean unlawful discrimination in compensation on the basis of an individual's sex, gender, gender identity, gender expression, sexual orientation, race, color, ethnicity, or national origin under Title VII of the Civil Rights Act of 1964 as amended, the Equal Pay Act of 1963, California Fair Employment and Housing Act, or California Labor Code section 1197.5, as applicable. For wage and hour Laws, relevant investigatory government agencies include the federal Department of Labor, the California Division of Labor Standards Enforcement, and the City of San Jose's Office of Equality Assurance. Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 5 of 18 (5) Prior Judgments, Decisions or Orders against Contractor: By signing this Agreement, Contractor affirms that it has disclosed any final judgments that (A) were issued in the five years prior to executing this Agreement by a court, an investigatory government agency, arbiter, or arbitration panel and (B) found that Contractor violated an applicable wage and hour law or pay equity law. Contractor further affirms that it has satisfied and complied with — or has reached Agreement with the County regarding the manner in which it will satisfy — any such final judgments. (6) Violations of Wage and Hour Laws or Pay Equity Laws During Term of Contract: If at any time during the term of this Agreement, Contractor receives a Final Judgment rendered against it for violation of an applicable wage and hour Law or pay equity Law, then Contractor shall promptly satisfy and comply with any such Final Judgment. Contractor shall inform the Office of the County Executive - Office of Countywide Contracting Management (OCCIVI) of any relevant Final Judgment against it within 30 days of the Final Judgment becoming final or of learning of the Final Judgment, whichever is later. Contractor shall also provide any documentary evidence of compliance with the Final Judgment within 5 days of satisfying the Final Judgment. Any notice required by this paragraph shall be addressed to the Office of the County Executive -OCCM at 70 W. Hedding Street, East Wing, 11th Floor, San Jose, CA 95110. Notice provisions in this paragraph are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the Office of the County Executive -OCCM satisfies the notice requirements in this paragraph. (7) Access to Records Concerning Compliance with Pay Equity Laws: In addition to and notwithstanding any other provision of this Agreement concerning access to Contractor's records, Contractor shall permit the County and /or its authorized representatives to audit and review records related to compliance with applicable pay equity Laws. Upon the County's request, Contractor shall provide the County with access to any and all facilities and records, including but not limited to financial and employee records, that are related to the purpose of this Section 9, except where prohibited by federal or state laws, regulations or rules. County's access to such records and facilities shall be permitted at any time during Contractor's normal business hours upon no less than 10 business days' advance notice. (8) Pay Equity Notification: Contractor shall (1) at least once in the first year of this Agreement and annually thereafter, provide each of its employees working in California and each person applying to Contractor for a job in California (collectively, "Employees and Job Applicants ") with an electronic or paper copy of all applicable pay equity Laws or (2) throughout the term of this Agreement, continuously post an electronic copy of all applicable pay equity Laws in conspicuous places accessible to all of Contractor's Employees and Job Applicants. Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 6 of 18 (9) Material Breach: Failure to comply with any part of this Section 9 shall constitute a material breach of this Agreement. In the event of such a breach, the County may, in its discretion, exercise any or all remedies available under this Agreement and at law. County may, among other things, take any or all of the following actions: (i) Suspend or terminate any or all parts of this Agreement. (ii) Withhold payment to Contractor until full satisfaction of a Final Judgment concerning violation of an applicable wage and hour Law or pay equity Law. (iii) Offer Contractor an opportunity to cure the breach. (10) Subcontractors: Contractor shall impose all of the requirements set forth in this Section 9 on any subcontractors permitted to perform work under this Agreement. This includes ensuring that any subcontractor receiving a Final Judgment for violation of an applicable Law promptly satisfies and complies with such Final Judgment. 10. Notices All notices required by this Agreement shall be deemed given when in writing and delivered personally, or five (5) days after deposited in the United States mail, postage prepaid, return receipt request, addressed to the other party at the address set forth below or at such other address as the party may designate in writing in accordance with this section. To COUNTY: Jackie Lowther, RN, EMS Director Santa Clara County EMS Agency 700 Empey Way San Jose, California 95126 11. Monitoring & Records To CONTRACTOR: Mary Gutierrez, EMS Division Chief City of Gilroy 7070 Chestnut Street Gilroy, California 95020 a. Monitoring Provider shall permit the County and its authorized representatives to monitor Provider's performance of this Agreement. To the extent permitted by law, such monitoring may include, but is not limited to, audits and review of records related to this Agreement. Upon County's request, Provider shall provide the County with access, through representatives of the Provider, to facilities, financial and employee records that are related to the purpose of this Agreement, except where prohibited by federal or state laws, regulations or rules. Monitoring by the County shall be permitted at any time during Provider's normal business hours upon no less than ten (10) business days Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 7 of 18 advance written notice and may occur up to one year following termination of the Agreement. Provider shall also provide to the County copies of any financial audits that have been completed during the term of the contract within one week of the completion of such audit. Provider shall designate a project coordinator responsible for overseeing the performance of this Agreement, and serving as County's primary contact for the purpose of monitoring this Agreement. Provider's project coordinator shall cooperate with the County's periodic review of Provider's performance. Provider shall notify County in writing of the designation of the project coordinator and any change thereto. b. Maintenance and Availability of Records Provider shall maintain records including, but not limited to, service and financial records adequate to demonstrate that the project is achieving its purpose, that billing is accurate, that all applicable local, state, and federal laws, rules, regulations, policies and procedures are met, and that adequate internal fiscal controls are maintained. These records shall be made available to representatives of the County of State of California or federal government upon request. All records pursuant to this Agreement shall be maintained for the term of this Agreement and for a period of five (5) years from termination or expiration of this Agreement or until all claims, if any, have been resolved, whichever period is longer, or longer if otherwise required under the provisions of this Agreement. 12. Equipment a. Purchases of Equipment Provider must maintain a log of any equipment purchased with funds received pursuant to this Agreement that includes a detailed description of the equipment purchased, the brand name, model number, serial number, and location. b. Equipment Maintenance Provider is solely responsible for any storage, service, training, and maintenance costs associated with any equipment and supplies purchased as a result of this Agreement. C. Ownership of and Responsibility for Equipment and Supplies Any equipment and supplies purchased under this Agreement shall be considered the property of Provider. Provider shall maintain and administer a sound business program for ensuring the proper use, maintenance, protection, insurance, and preservation'of equipment purchased under this Agreement. Provider may not sell, transfer, or otherwise dispose of any equipment or supplies purchased under this Agreement without prior written approval by County, which may be withheld in County's sole and absolute discretion; provided, however, that Provider may dispose of equipment without County's approval at the end of the equipment's useful life or if Provider can demonstrate that it will maintain the same capability provided by the equipment to be Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 8 of 18 disposed. Provider shall take reasonable steps to ensure that all equipment and supplies purchased under this Agreement are made available for use pursuant to a bonafide request for mutual -aid or inter- agency disaster assistance. 13. Entire Agreement This Agreement, including all Exhibits, represents the entire agreement of the parties and supersedes any previous agreements between the parties relating to the same subject matter. 14. Amendments This Agreement may only be amended by a written instrument signed by the parties. 15. Governing Law This Agreement shall be construed and enforced in accordance with the laws of the State of California without considering choice of law rules. The parties agree to submit to the jurisdiction of the federal and state courts located in the County of Santa Clara. The parties agree that venue shall be Santa Clara County for all purposes. 16. Conflict of Interest Contractor shall comply, and require its subcontractors to comply, with all applicable (i) requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code section 1090 et. seq., the California Political Reform Act (California Government Code section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations section 18700 et. seq.). Failure to do so constitutes a material breach of this Agreement and is grounds for immediate termination of this Agreement by the County. In accepting this Agreement, Contractor covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of this Agreement. Contractor further covenants that, in the performance of this Agreement, it will not employ any contractor or person having such an interest. Contractor, including but not limited to contractor's employees and subcontractors, may be subject to the disclosure and disqualification provisions of the California Political Reform Act of 1974 (the "Act "), that (1) requires such persons to disclose economic interests that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will foreseeably financially affect such interests. If the disclosure provisions of the Political Reform Act are applicable to any individual Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 9 of 18 providing service under this Agreement, Contractor shall, upon execution of this Agreement, provide the County with the names, description of individual duties to be performed, and email addresses of all individuals, including but not limited to Contractor's employees, agents and subcontractors, that could be substantively involved in "making a governmental decision" or "serving in a staff capacity and in that capacity participating in making governmental decisions or performing duties that would be performed by an individual in a designated position," (2 CCR 18701(a)(2)), as part of Contractor's service to the County under this Agreement. Contractor shall immediately notify the County of the names and email addresses of any additional individuals later assigned to provide such service to the County under this Agreement in such a capacity. Contractor shall immediately notify the County of the names of individuals working in such a capacity who, during the course of the Agreement, end their service to the County. If the disclosure provisions of the Political Reform Act are applicable to any individual providing service under this Agreement, Contractor shall ensure that all such individuals identified pursuant to this section understand that they are subject to the Act and shall conform to all requirements of the Act and other laws and regulations listed in subsection (A) including, as required, filing of Statements of Economic Interests within 30 days of commencing service pursuant to this Agreement, annually by April 1, and within 30 days of their termination of service pursuant to this Agreement. 17. California Public Records Act The County is a public agency subject to the disclosure requirements of the California Public Records Act ( "CPRA "). If Contractor's proprietary information is contained in documents or information submitted to County, and Contractor claims that such information falls within one or more CPRA exemptions, Contractor must clearly mark such information "CONFIDENTIAL AND PROPRIETARY," and identify the specific lines containing the information. In the event of a request for such information, the County will make best efforts to provide notice to Contractor prior to such disclosure. If Contractor contends that any documents are exempt from the CPRA and wishes to prevent disclosure, it is required to obtain a protective order, injunctive relief or other appropriate remedy from a court of law in Santa Clara County before the County is required to respond to the CPRA request. If Contractor fails to obtain such remedy within the time the County is required to respond to the CPRA request, County may disclose the requested information. Contractor further agrees that it shall defend, indemnify and hold County harmless against any claim, action or litigation (including but not limited to all judgments, costs, fees, and attorney's fees) that may result from denial by County of a CPRA request for information arising from any representation, or any action (or inaction), by the Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 10 of 18 Contractor. 18. Waiver No delay or failure to require performance of any provision of this Agreement shall constitute waiver of that provision as to that or any other instance. Any waiver granted by a party must be in writing, and shall apply to the specific instance expressly stated. 19. Counterparts This Agreement may be executed in one or more counterparts, each of which shall be deemed to be in original, but all of which together shall constitute one and the same instrument. 20. Severability If any provision of this Agreement is found by a court of competent jurisdiction to be void, invalid, or unenforceable, the same will either be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement. 21. County No- Smoking Policy Contractor and its employees, agents and subcontractors, shall comply with the County's No Smoking Policy, as set forth in the Board of Supervisors Policy Manual section 3.47 (as amended from time to time), which prohibits smoking: (1) at the Santa Clara Valley Medical Center Campus and all County -owned and operated health facilities, (2) within 30 feet surrounding County -owned buildings and leased buildings where the County is the sole occupant, and (3) in all County vehicles. 22. Budget Contingency This Agreement is contingent upon the appropriation of sufficient funding by the County for the services covered by this Agreement. If funding is reduced or deleted by the County for the services covered by this Agreement, the County has the option to either terminate this Agreement with no liability occurring to the County or to offer an amendment to this Agreement indicating the reduced amount. 23. Use of Names and Logos Neither party to this Agreement shall be permitted to use the other's name, logo or corporate identity for any purpose without prior written consent for the party whose name, logo or corporate identity is to be used. If either party provides such consent, the party using the name, logo or corporate identity agrees to discontinue such use upon thirty (30) days' prior notice from the consenting party. 24. Assignment of Clayton Act, Cartwright Act Claims Contractor hereby assigns to the County all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (14 U.S.C. Sec. 15) or under the Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 11 of 18 Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the Contractor for sale to the County pursuant to this Agreement. 25. Survival All representations and warranties contained in Section 16 of this Agreement and in any instrument, certificate, exhibit, or other writing attached hereto and incorporated herein will survive the termination or expiration of this Agreement. In addition, Sections 3, 11, 12 and 15 shall survive termination or expiration of this Agreement. 26. Contract Execution Policy Unless otherwise prohibited by law or County policy, the parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term "electronic copy of a signed contract" refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term "electronically signed contract" means a contract that is executed by applying an electronic signature using technology approved by the County. Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 12 of 18 Exhibit A SCOPE OF SERVICES A. Background For the benefit of the County EMS System, the County may provide EMS First Responders with funding to support certain projects described below. 1. Fire Department Hardware to Support Prehospital Policy 309 implementation a. Funds may be used to reimburse EMS First Responders for hardware or services that will support the Santa Clara County Comprehensive EMS Patient Care Data System. b. Purchases may consist of desktop and laptop computers, connectivity, peripherals, and /or services. Such purchases must be preapproved by the County. 2. Fire Department Field Capture Funds may be used to reimburse EMS First Responders for costs associated with the purchase of devices and supporting hardware required to meet field capture requirements for patient care records, as set forth in Prehospital Policy 309. In order to receive reimbursement, EMS First Responders shall: a. Procure and place into service field capture hardware that will enable the collection of patient care data at the patient's side. This may consist of tablets, laptops, or other remote data collection devices that support the ImageTrend- based EMS Data System, as approved in advance by the EMS Agency. b. Procure and place into service field capture hardware that will transmit patient care data electronically from the scene of an EMS response to the server identified by the EMS Agency. 3. Video Laryngoscopes Funds may be used to reimburse EMS First Responders for the costs associated with the purchase of video laryngoscopes to be deployed on paramedic units operated by EMS First Responders. The funding provided is anticipated to cover approximately 50% of Providers permitted paramedic units. a. EMS First Responders may only purchase the EMS Agency approved KingVision Video Laryngoscope (Reusable Digital Display). b. EMS First Responders must place into service and use the equipment on approximately 50% of Providers permitted paramedic units. Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 13 of 18 Funding provided to EMS First Responders for any of the above - described projects is contingent upon compliance with the following requirements: 1. On or before November 1, 2018, EMS First Responders shall provide documentation sufficient to show proof of purchase of products or services, and that all purchases are in compliance with the requirements set forth in this Scope of Service. If an EMS First Responder has not expended the funds prior to November 1, 2018, the EMS First Responder must return all allocated funds. 2. On or before December 31, 2018, EMS First Responders shall provide documentation sufficient to show proof that 1) field capture devices and computers are effectively running the required data systems, and 2) that video laryngoscopes have been deployed and are in use. 3. Patient care data must be received by the Server consistent with Prehospital Policy 309. B. Funds Allocation for Provider The County's maximum financial obligation under this Agreement shall not exceed $49,927.32 for the term of the Agreement. Subject to the requirements set forth above, Provider may be reimbursed for the following approved purchases: Project Available Funds Project 1: Fire Dept. Hardware to support Prehospital Policy 309 implementation Project 2: Fire Dept. Field Capture $41,092.01 Project 3: Video Laryngoscopes $8,835.31 TOTAL $49,927.32 Agreement Between the County of Santa Clara and the City of Gilroy— EMS Data System Support Services Page 14 of 18 INSURANCE REQUIREMENTS FOR STANDARD SERVICE CONTRACTS BETWEEN $10,001 AND $50,000 (REVISED 9/2016) Indemnity The Contractor shall indemnify, defend, and hold harmless the County of Santa Clara (hereinafter "County "), its officers, agents and employees from any claim, liability, loss, injury or damage arising out of, or in connection with, performance of this Agreement by Contractor and /or its agents, employees or sub - contractors, excepting only loss, injury or damage caused by the sole negligence or willful misconduct of personnel employed by the County. It is the intent of the parties to this Agreement to provide the broadest possible coverage for the County. The Contractor shall reimburse the County for all costs, attorneys' fees, expenses and liabilities incurred with respect to any litigation in which the Contractor contests its obligation to indemnify, defend and /or hold harmless the County under this Agreement and does not prevail in that contest. Insurance Without limiting the Contractor's indemnification of the County, the Contractor shall provide and maintain at its own expense, during the term of this Agreement, or as may be further required herein, the following insurance coverages and provisions: A. Evidence of Coverage Prior to commencement of this Agreement, the Contractor shall provide a Certificate of Insurance certifying that coverage as required herein has been obtained. Individual endorsements executed by the insurance carrier shall accompany the certificate. In addition, a certified copy of the policy or policies shall be provided by the Contractor upon request. This verification of coverage shall be sent to the requesting County department, unless otherwise directed. The Contractor shall not receive a Notice to Proceed with the work under the Agreement until it has obtained all insurance required and such insurance has been approved by the County. This approval of insurance shall neither relieve nor decrease the liability of the Contractor. B. Qualifying Insurers All coverages, except surety, shall be issued by companies which hold a current policy holder's alphabetic and financial size category rating of not less than A- V, according to the current Best's Key Rating Guide or a company of equal financial stability that is approved by the County's Insurance Manager. C. Notice of Cancellation Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 15 of 18 All coverage as required herein shall not be canceled or changed so as to no longer meet the specified County insurance requirements without 30 days' prior written notice of such cancellation or change being delivered to the County of Santa Clara or their designated agent. D. Insurance Required 1. Commercial General Liability Insurance — for bodily injury (including death) and property damage which provides limits as follows: a. Each occurrence - $500,000 b. General aggregate - $500,000 C. Products /Complete Operations aggregate - $500,000 d. Personal Injury - $500,000 2. General liability coverage shall include: a. Premises and Operations b. Products /Completed C. Personal Injury liability d. Severability of interest 3. General Liability coverage shall include the following endorsement, a copy of which shall be provided to the County: Additional Insured Endorsement, which shall read: "County of Santa Clara, and members of the Board of Supervisors of the County of Santa Clara, and the officers, agents, and employees of the County of Santa Clara, individually and collectively, as additional insureds." Insurance afforded by the additional insured endorsement shall apply as primary insurance, and other insurance maintained by the County of Santa Clara, its officers, agents, and employees shall be excess only and not contributing with insurance provided under this policy. Public Entities may also be added to the additional insured endorsement as applicable and the contractor shall be notified by the contracting department of these requirements. 4. Automobile Liability Insurance For bodily injury (including death) and property damage which provides total limits of not less than one million dollars ($100,000) combined single limit per occurrence applicable to all owned, non -owned and hired vehicles. 4a. Aircraft /Watercraft Liability Insurance (Required if Contractor or any of its agents or subcontractors will operate aircraft or watercraft in the scope of the Agreement.) Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 16 of 18 For bodily injury (including death) and property damage which provides total limits of not less than one million dollars ($100,000) combined single limit per occurrence applicable to all owned, non -owned and hired aircraft /watercraft. 5. Workers' Compensation and Employer's Liability Insurance a. Statutory California Workers' Compensation coverage including broad -form all- states coverage. b. employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence. E. Special Provisions The following provisions shall apply to this Agreement: 1. The foregoing requirements as to the types and limits of insurance coverage to be maintained by the Contractor and any approval of said insurance by the County or its insurance consultant(s) are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Contractor pursuant to this Agreement, including but not limited to the provisions concerning indemnification. 2. The County acknowledges that some insurance requirements contained in this Agreement may be fulfilled by self- insurance on the part of the Contractor. However, this shall not in any way limit liabilities assumed by the Contractor under this Agreement. Any self- insurance shall be approved in writing by the County upon satisfactory evidence of financial capacity. Contractors obligation hereunder may be satisfied in whole or in part by adequately funded self - insurance programs or self- insurance retentions. 3. Should any of the work under this Agreement be sublet, the Contractor shall require each of its subcontractors of any tier to carry the aforementioned coverages, or Contractor may insure subcontractors under its own policies. 4. The County reserves the right to withhold payments to the Contractor in the event of material noncompliance with the insurance requirements outlined above. F. Fidelity Bonds (Required only if contractor will be receiving advanced funds or payments) Before receiving compensation under this Agreement, Contractor will furnish County with evidence that all officials, employees, and agents handling or having access to funds received or disbursed under this Agreement, or authorized to sign or countersign checks, are covered by a BLANKET FIDELITY BOND in an amount of AT LEAST fifteen percent (15 %) of the maximum financial obligation of the County cited herein. If such bond is canceled or reduced, Contractor will notify County immediately, and County may withhold further payment to Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 17 of 18 Contractor until proper coverage has been obtained. Failure to give such notice may be cause for termination of this Agreement, at the option of County. Agreement Between the County of Santa Clara and the City of Gilroy — EMS Data System Support Services Page 18 of 18 CERTIFICATE OF COVERAGE NAME AND ADDRESS OF AGENCY: Municipal Pooling Authority of Northern California P.O. Box 67 Walnut Creek, CA 94596 (925) 943 -1100 * FAX (925) 946 -4183 NAME AND ADDRESS OF COVERED ENTITY: City of Gilroy LeeAnn McPhillips HR /Risk Mgmt Dept. 7351 Rosanna Street Gilroy, CA 95020 ORGANIZATION AFFORDING COVERAGE: Municipal Pooling Authority of Northern California This is to certify that coverage agreements listed below have been issued to the covered parties named above and are in force at this time. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate may be issued or may pertain, the coverage afforded by the coverage agreements described herein is subject to all the terms, exclusions, and conditions of such coverage agreements. TYPE OF COVERAGE General Liability Auto Liability Auto Collision and Comprehensive Workers' Compensation and Employers Liability COVERAGE AGREEMENT COVERAGE AGREEMENT NUMBER EXPIRATION MPA17 -18 6/30/2018 MPA17 -18 6/30/2018 LIMITS OF LIABILITY per occurrence Bodily Injury, Property Damage, Personal Injury Combined $1,000,000 Bodily Injury, Property Damage, Personal Injury Combined $1,000,000 $3,000 Deductible Police Vehicles $2,000 All Other Vehicles Limit of Liability = $250,000 SIR $500,000 Workers' Comp = Statutory Employers' Liability =$4.5 million Description of Operations/ Locations /Vehicles /Event /Restrictions /Special Items: It is hereby agreed that the County of Santa Clara & members of the Board of Supervisors of the County of Santa Clara, the officers, agents, & employees of the County of Santa Clara, are named additional covered parties as respects the Agreement between the County and the City of Gilroy regarding funding for the purchase of products and services that benefit the Santa Clara County Emergency Medical Services system , but only to the extent assumed by the City of Gilroy under the Agreement dated 1/28/2016, subject to MPA's Memorandum of Coverage terms, conditions, and exclusions. This coverage shall be primary. Cancellation: Should any of the above described coverage agreements be canceled before the expiration date thereof, the issuing company will endeavor to mail 30 days written notice to the below named certificate holder, but failure to mail such notice shall impose no obligation or liability of any kind upon the Authority, it's agents or representatives. CERTIFICATE HOLDER (name and address): Santa Clara County EMS Agency Attn: Jackie Lowther 700 Empey Way San Jose, CA 95126 Certificate ID: 2488 : 2015 -16 FY LB Prepared By: kb Date Issued February 13, 2018 Erwin Chanq, Liability Claims Manaqer MPA$wen A� Effective: July 1, 2017 MUNICIPAL POOLING AUTHORITY MEMORANDUM OF COVERAGE GENERAL LIABILITY Throughout this Memorandum of Coverage ( "Memorandum "), words and phrases that appear in italics and quotation marks have special meaning. They are defined in Section 1I, "Definitions." In consideration of the payment of the premium, the Authority agrees with the "covered parties" as follows: SECTION I -COVERAGES The Authority will pay up to the "limit of coverage" those sums on behalf of the "covered parties" for "ultimate net loss" in excess of the applicable self - insured retention that the "covered parties" become legally obligated to pay as "damages" by reason of liability imposed by law or liability assumed by contract because of: A. "Bodily injury" or "property damage" and /or B. "Personal injury" and /or C. "Public officials'errors and omissions" as those terms are herein defined and to which this Memorandum applies, caused by an "occurrence" during the coverage period. As a condition precedent for the Authority to have any duty under this Memorandum, including the duty to pay "ultimate net loss" or any portion thereof, a "covered party" shall first have complied fully with the provisions of SECTION VIII - CONDITIONS. A "covered party's" failure to so comply shall void the coverage described herein, unless coverage is extended by a two- thirds vote of the full Board. This Memorandum does not provide insurance, but instead provides for pooled self- insurance. This Memorandum is a negotiated agreement amongst the Members of the Authority, and as such, no party to the Memorandum is entitled to interpret it by reference to legal principles specific to contracts of adhesion, or to commercial insurers. Similarly, no party to this Memorandum may rely on any contract interpretation principles which require interpretation of ambiguous language against the drafter of such agreement. This Memorandum shall be applied according to the principles of contract law, giving full effect to the intent and reasonable expectation of the members of the Authority, acting through the Board of Directors. As the Authority is not an insurer, it has no obligation (but may choose) to issue reservation of rights letters, nor is it bound by the provisions of Civil Code §2860, which pertains to an insurer's obligation to provide independent counsel to an insured under circumstances defined by that statute. Failure to provide notice to a "covered party" of any coverage dispute shall not operate to waive any of the provisions of this Memorandum; however, the Authority will use its best efforts to identify coverage disputes and to alert the "covered party" of such as soon as possible. SECTION II -DEFINITIONS 1. "Additional covered party" means any person or "entity" named as an "additional covered party" and holding a certificate of coverage duly issued by the Authority, for "occurrences" during the coverage period identified in the certificate of coverage; if a particular activity is identified in the certificate of coverage, the person or "entity" is a "covered parry" only for "occurrences" arising out of the described activity. Coverage for an "additional covered party' shall be provided only when and to the extent required under the contract, subject to the terms and conditions of this Memorandum. 2. "Aircra)T' means a vehicle designed for the transport of persons or property principally in the air, not including an "unmanned aerial vehicle." 3. "Automobile' means a land motor vehicle, trailer or semi - trailer. 4. "Bodily injury" means bodily injury, sickness, disease, or emotional distress sustained by a person, including death resulting from any of these at any time. Bodily injury includes "damages" claimed by any person or organization for care, loss of service or death resulting at any time from the bodily injury. 5. "Covered indemnity contract' means that part of a contract or agreement pertaining to the "covered party's" governmental operations, including but not limited to: a) Leases; b) Mutual aid agreements; c) Public works contracts; d) Special events sponsored by the "covered party," e) Easement or license agreements; or f) Use of facilities or equipment by the "covered party„ under which the "covered party" assumes the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization. This definition applies only to tort liability arising out of an "occurrence" to which this Memorandum applies. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. 6. "Covered individuals" means persons who are past or present elected or appointed officials, employees or volunteers of the "entity" whether or not compensated, while acting for or on behalf of the "entity," including while acting on outside boards conditioned by the following guidelines: (a) The Authority's coverage will be excess and will not contribute to any other coverage available to the outside Board or Commission; (b) If the agency Board does not carry coverage, the member should encourage they obtain coverage of their own; (c) To be afforded coverage, the individual must be acting in good faith, without malice or oppression, and in the best interest of the "entity;" and (d) Extension of coverage is in the best interest of the "entity;" except an airport or hospital board regardless of how such body is denominated. Under no circumstances shall the Authority have a duty to defend or indemnify any "covered individual" under circumstances in which the "entity" itself is not legally required to do so. The Board, at its sole discretion, may waive this section if it deems it is in the best interest of the Authority. 7. "Covered party" means any person, organization, trust or agency qualifying as a covered party in the covered parties section of this Memorandum. 8. "Damages'' means compensation in money recovered by a party for loss or detriment it has suffered through the acts of a "covered party." For purposes of this Memorandum, "damages" includes statutory attorneys' fees and costs if the attorneys' fees and costs are related to a claim for "damages" which would otherwise be covered by this Memorandum. 9. "Defense costs" means all fees and expenses caused by and relating to the investigation, defense or litigation of a claim including attorney's fees, court costs and interest on judgments accruing after entry of judgment. Defense costs shall not include the office expenses of the Authority or the "covered party" nor the salaries of employees or officials of the Authority or any "covered party." Defense costs shall not include any fee or expense relating to coverage issues or disputes between the authority and any "covered party." Defense costs shall not include attorney fees or costs awarded to a prevailing plaintiff against the "covered party." 10. "Entity" means the entity named in the Declarations, including any and all commissions, agencies, districts, authorities, boards (including the governing board) or similar entities coming under the entity's direction or control or for which the entity's board members sit as the governing body. Entity includes all departments and constituent agencies of the entity. 11. "Limit of coverage" means the amount of coverage stated in the declaration page or certificate of coverage for each "covered party" per "occurrence." With respect to "bodily injury," "property damage," and "personal injury," that amount is $1,000,000.00 and the self - insured retention is the amount chosen by the "covered party" and reflected in its Declaration page. With respect to "public officials' errors & omissions," that amount is $250,000.00 and the self - insured retention is $25,000.00. For each "occurrence," there shall be only one limit of coverage regardless of the number of claimants or "covered parties" against whom a claim is made. In the event that a structured settlement, whether purchased from or through a third- party, or paid directly by the "covered party" in installments, is utilized in the resolution of a claim or suit, the Authority will pay only up to the amount stated in the Declarations or certificate of coverage in present value of the claim, as determined on the date of settlement, regardless of whether the full value of the settlement exceeds the amount stated in the Declarations or certificate of coverage. 12. "Medical malpractice" means the rendering of or failure to render any of the following services: (a) Medical, surgical, dental, psychiatric, psychological counseling, x -ray or nursing services, or treatment or the furnishing of any food or beverage in connection therewith; or any services provided by a health care provider as defined in section 6146(c), (2), (3) of the California Business and Professions Code. (b) Furnishing or dispensing of drugs or medical, dental or surgical supplies or appliances. Medical malpractice does not include first aid administered by employees, nor does it include advice or services rendered by a 911 emergency dispatcher. 13. "Nuclear material" means source material, special nuclear material, or by- product material. "Source material," "special nuclear material," and "by- product material" have the meanings given to them by the Atomic Energy Act of 1954 or in any law amendatory thereof. 14. "Occurrence" means: (a) With respect to "bodily injury" or "property damage:" an accident, including continuous or repeated exposure to substantially the same generally harmful conditions, which results in "bodily injury" or "property damage" neither expected nor intended from the standpoint of the "covered party." (b) With respect to "personal injury" and "public officials' errors and omissions" respectively: an offense described in the definitions of those terms in this Memorandum. 15. "Personal injury" means injury, other than "bodily injury," arising out of one or more of the following: (a) False arrest, detention or imprisonment, or malicious prosecution; (b) Abuse of legal process; (c) Wrongful entry into, or eviction of a person from, a room, dwelling or premises that the person occupies; (d) Publication or utterance of material that slanders or libels a person or organization or disparages a person's organization's goods, products or services, or oral or written publication of material that violates a person's right of privacy; (e) Unlawful discrimination or violation of civil rights; or (f) Injury resulting from the use of reasonable force for the purpose of protecting persons or property. 16. 'Pollutants" means any solid, liquid, gaseous or thennal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, airborne particles or fibers, molds and /or fungus, fungal pathogens, electromagnetic fields, and waste. Waste includes materials to be recycled, reconditioned or reclaimed. The term pollutants, as used herein, do not mean potable water, agricultural water, water furnished to commercial users, or water used for fire suppression. 17. "Property damage" means: (a) Physical injury to tangible property, including all resulting loss of use of that property; or (b) Loss of use of tangible property that is not physically injured or destroyed. 18. "Public officials' errors and omissions" means any actual or alleged misstatement or misleading statement or any act or omission by "covered individuals" individually or collectively in the discharge of their duties with the "entity" and resulting in damage neither expected nor intended from the standpoint of the "covered parry." All claims involving the same misstatement or misleading statement or act or omission or a series of continuous or interrelated misstatements or misleading statements or acts or omissions will be considered as arising out of one "occurrence." 19. "Ultimate net loss" means the sum actually paid or payable in cash in the settlement or satisfaction, investigation or defense of losses for which the "covered party" is liable either by adjudication or by compromise with the written consent of the Authority, after mating proper deduction for all recoveries and salvages and other collectible insurance. Ultimate net loss shall include "defense costs" and related expenses incurred by the Authority. Ultimate net loss does not include statutory attorney fees or costs awarded to a prevailing plaintiff unless such fees or costs are related to a claim for "damages" covered by this Memorandum 20. "Unmanned aerial vehicle" means an aircraft, aerial system, or device that is not designed, manufactured, or modified after manufacture to be controlled directly by a person from within or on the aircraft, aerial system, or device. SECTION III - DEFENSE AND SETTLEMENT With respect to claims or suits for "damages" to which this Memorandum applies, the Authority shall have the right and duty to defend any claim or suit against the "covered party" even if any allegations are groundless, false or fraudulent. However, in making the determination of its duty to defend, the Authority may rely on the facts alleged within a third party's complaint, and those extrinsic facts known to it. The Authority shall have no duty to speculate about unpled theories of recovery in order to determine its obligations to defend or to indemnify, nor shall the Authority be under any continuing duty to investigate whether- a potential for coverage has arisen at some future date. The Authority shall have the right to manage, and the "covered party" shall fully cooperate in, all matters pertaining to the investigation, defense, negotiation, and settlement of any claim or suit for "damages" to which this Memorandum applies The "covered party" shall be obligated to pay or reimburse the Authority for the entire "ultimate net loss," up to the applicable self- insured retention. If the "ultimate net loss" exceeds the "covered party's" self - insured retention, the Authority shall be obligated to pay or cause to be paid the "ultimate net loss "in excess of the applicable self- insured retention, up to the Limit of Liability. The Authority shall not be obligated to pay any judgment or settlement or to participate in the defense of any claim or suit after the Authority's "limit of coverage" has been totally exhausted by the payment of "defense costs" and /or judgments or settlements. No claim o r s u i t shall be settled for an amount in excess of the applicable self- insured retention without the prior written consent of the Authority, and the Authority shall not be required to contribute to any settlement to which it has not consented. If the "covered party" prevents settlement of any claim or suit for a reasonable amount, defined as the amount the Authority is willing to pay and the claimant is willing to accept, increasing the "covered party's" potential liability for "damages" and continued "defense costs," the "covered party" shall pay or shall reimburse the Authority for those "defense costs" incurred after the claim could have been settled, and for any "damages" awarded or settlement agreed upon in excess of the amount for which the claim could have been settled. This includes, but is not limited to, a refusal by the "covered party" to agree to a reasonable non - monetary term of settlement. The Authority, at its own expense, and with a two- thirds vote of the full Board, shall have the right to assume the control of the negotiation, investigation, defense, appeal or settlement of any claim or suit that the Authority determines, in its sole discretion, to have a reasonable probability of resulting in an "ultimate net loss' in excess of the applicable self - insured retention. If the Authority assumes control of a claim or suit, the "covered party' shall be obligated at the request of the Authority, to pay any sum necessary for the settlement of the claim or suit, or to satisfy liability imposed by law, up to its applicable self - insured retention, and to satisfy every other requirement to effect a final resolution of the claim or suit. If the "covered party' refuses to pay its applicable self-insured retention on request by the Authority, the claim or suit shall not be covered under this Memorandum, except by majority vote of the full Board. SECTION IV - THE AUTHORITY'S LIMIT OF LIABILITY Regardless of the number of: (1) Persons or "entities" covered under this Memorandum, (2) Persons or organizations making claims or bringing suits, or (3) Claims made orsuits brought, the each "Occurrence" limit is the most the Authority will pay for "ultimate net loss" arising out of any one "occurrence." The "limit of coverage" for any additional "additional covered party" as defined in Section 2, # 1, subject to the per "occurrence" limitation above, shall not exceed the limit stated in its "additional covered party' certificate regardless of the limit which applies to the member. SECTION V - COVERAGE PERIOD AND TERRITORY This Memorandum applies to "bodily injury," "personal injury," "property damage" or "public officials' errors and omissions" which occur anywhere in the world during the coverage period. SECTION VI - "COVERED PARTIES" The parties covered by this Memorandum are: (A) The "entity." (B) "Covered individuals." (C) With respect to any "automobile" owned or leased by the "entity" or loaned to or hired for use by or on behalf of the "entity," any person while using such "automobile" and any person or organization legally responsible for the use thereof, provided the actual use is with the permission of the "entity," and with respect to any "automobile" owned or leased by an employee of the "entity" or by a member of the "entity's" governing board, if the "entity" reimburses or pays the employee or governing board member for use of such "automobile," and only if such "automobile" is operated by said employee or governing board member in the course and scope of employment and only to the extent that the coverage provided hereunder shall be in excess of any other insurance for said "automobile." The foregoing notwithstanding, this coverage does not apply to: (1) Any person or organization or any agent or employee thereof, operating an "automobile" sales agency, repair shop, service station, storage garage or public parking place, with respect to an "occurrence" arising out of the operation thereof; or (2) The owner or any lessee, other than the "entity," of a leased or hired "automobile" or any agent or employee of such owner or lessee. (D) Any "additional covered party." (E) "Covered party" does not include any person, organization, trust or estate or any other type of entity for any risk, claim, or loss which is incurred or occurs under any other joint powers authority, or any joint powers agreement which creates a separate agency or entity, unless added hereto by endorsement. However, as to any person who is an official, employee, or volunteer of an "entity" named in the Declarations and is participating in the activities of any other joint powers authority or any separate agency or entity created under- any joint powers agreement on behalf of that "entity," the coverage afforded in this Memorandum of Coverage will apply in excess of and shall not contribute with any collectible insurance or other coverage provided to or through the other joint powers authority or joint powers agreement covering a loss also covered hereunder, whether on a primary, excess, or contingent basis. SECTION VII -EXCLUSIONS This Memorandum does not apply to: 1. (a) Claims arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, plumage, release or escape of "pollutants" into or upon land, the atmosphere, or any watercourse or body of water. This exclusion does not apply to fire fighting activities, including training burns, or intentional demolition or burns for the purpose of controlling a fire, or the discharge of "pollutants" for the purpose of controlling a fire; or to police use of mace, oleoresin capsicum (O.C.), pepper gas or tear gas; to weed abatement or tree spraying; or spraying of any pesticide. This exclusion does not apply to claims arising from sudden and accidental sewer backups. This exclusion does not apply to claims arising from the sudden and accidental discharge, dispersal, release, or escape of chlorine and other chemicals (gas, liquid or solid) which are being used or being prepared for use in fresh or waste water treatment or in water used in swimming pools, wading pools or decorative fountains. As used herein, "sudden" means abrupt or immediate, and occurring within a period not exceeding twenty-four- (24) hours; "accidental" means causing harm neither expected nor intended by a "covered party." This exclusion does not apply to claims arising from mold and /or fungus, with coverage limited to an amount up to $100,000 over the "covered party's" self - insured retention per "occurrence." This exclusion does not apply to claims arising from materials being collected as part of any drop- off or curbside recycling program implemented and operated by the "covered parry," if the materials have not been stored by the "covered party" or "parties" for a continuous period exceeding ninety (90) days. (b) Any loss, cost, or expense arising out of any governmental order, directions or request that the "covered party" or any other person or organization test for, monitor, clean up, remove, contain, treat, detoxify, neutralize, remediate, or assess the effects of "pollutants." (c) Any loss, cost or expense, including but not limited to costs of investigation or attorneys' fees, incurred by a governmental unit or any other person or organization to test for, monitor, clean -up, remove, contain, treat, detoxify, neutralize, remediate, or assess the effects of "pollutants." 2. Claims arising out of the manufacture, mining, use, sale, installation, removal or distribution of or exposure to radon, asbestos, asbestos products, asbestos fibers, asbestos dust, or other asbestos - containing materials and: (a) Any obligation of the "covered party" to indemnify any party because of such claims, or (b) Any obligation to defend any suit or claims against the "covered party' because of such claims. 3. Any claim (including attorney's fees or salary or wage loss claims) by any potential, present or former employee or official of the "covered party" arising out of, but not limited to, a violation of civil rights or employment- related practices, policies, acts, or omissions. This exclusion applies to claims of negligent supervision and /or claims of failure to prevent employment - related practices. 4. (a) Any claim by: (1) Any present or former employee or co- employee of the "covered party" arising out of or sustained in the course of employment with the "covered party," or (2) The spouse, child, unborn child or fetus, parent, brother or sister of any such employee or co- employee as a consequence of exclusion 3, 4(a) (1) or 4(b) herein. This exclusion applies whether the "entity" may be held liable as an employer or in any other capacity, except with respect to liability of others assumed under a "covered indemnity contract." (b) Any obligation for which the "covered party" or any insurance company as its insurer may be held liable under any workers' compensation, unemployment compensation or disability benefits law or any similar law. Liability imposed under the "Employment Retirement Income Security Act of 1974" or any law amendatory thereof, or any law or liability arising out of fiduciary activities as respects employee benefit plans. 6. The cost of providing reasonable accommodation pursuant to the Americans with Disabilities Act, Fair Employment and Housing Act, or other similar law. 7. Liability imposed under the Fair Labor Standards Actor any law amendatory thereof. 8. Benefits payable under any employee benefit plan (whether the plan is voluntarily establishedby the "entity" or mandated by statute). 9. Claims by any "entity" against its own past or present elected or appointed officials, employees, volunteers, or additional covered parties where such claim seeks "damages" payable to the "entity." 10. Claims arising out of any professional "medical malpractice" except "medical malpractice" committed by any employee of the "covered party," if that employee is licensed and certified as an RN, LPN, LVN, EMT, paramedic or laboratory technician, and is not employed by or working for any hospital or hospital operated out- patient, in- patent or other clinic at the time of the "occurrence" giving rise to the loss. 11. Claims arising out of ownership, maintenance, management, supervision, or the condition or operation of any hospital or airport. 12. Fines, assessments, fees, penalties, restitution, disgorgement, statutorily multiplied (including but not limited to treble) damages, exemplary damages, or punitive damages, whether awarded by a court or by an administrative or regulatory agency. Restitution and disgorgement, as used herein, refer to the order of a court or administrative agency for the return of a specific item of property or a specific sum of money, because such item of property or sum of money was not lawfully or rightfully acquired by the "covered party." 13. "Bodily injury" or "property damage" arising out of the hazardous properties of "nuclear material" 14. Claims arising out of or in connection with: (a) Land use regulation, land use planning, the principles of eminent domain, condemnation proceedings or inverse condemnation by whatever name called, resulting from deliberate decision making by the "covered party" and whether or not liability accrues directly against the "covered party" or by virtue of any agreement entered into by or on behalf of any "covered party." However, the above exclusion shall not apply to inverse condemnation liability arising from accidentally caused physical injury to or destruction of tangible property, including all resulting loss of use of such property, for which the "covered party" may be legally responsible. Notwithstanding what is stated in the applicable declarations, the "limit of coverage" for claims described in this exception will be subject to a per "occurrence" and /or annual aggregate sublimit of $250,000 per member. Further, the above exclusion shall not apply to claims for nuisance. However, where a claim for nuisance is alleged with a claim for inverse condemnation, the "limit of coverage" for a claim for nuisance will be subject to a per "occurrence" and /or annual aggregate sublimit of $500,000 per member. Such sublimit shall be in addition to the sublimit of $250,000 for inverse condemnation liability arising from accidentally caused "property damage" if both inverse condemnation and nuisance are alleged. This exclusion does not apply to enforcement of parking ordinances or regulations. Notwithstanding any of the above, this Memorandum of Coverage shall not apply to any claim arising out of the design, construction, ownership, maintenance, operation, or use of any water treatment plant or waste water treatment plant, no matter how or under what theory such claim is alleged, unless it is a claim based upon the accidental failure of the equipment utilized or contained within the water treatment plant or waste water treatment plant. (b) The initiative process, whether or not liability accrues directly against any "covered party" by reason of any agreement entered into by or on behalf of any "covered party." 15. "Property damage " to: (a) Property owned by the "entity" or employee. (b) Property rented to or leased to the "entity" where it has assurned liability for "damages" to or destruction of such property, unless the "entity" would have been liable in the absence of such assumption of liability. (c) "Aircraft," "unmanned aerial vehicles," or watercraft in the "entity's" care, custody or control. 16. "Bodily injury" or "property damage" arising out of the ownership, operation, use or maintenance of: (a) any watercraft while being used for public commercial purpose; or (b) any "aircraft'; or (c) any "unmanned aerial vehicle." Ownership, operation, use or maintenance as used herein does not include static displays or aircraft or watercraft in a park or museum setting. This exclusion does not apply to claims arising out of the ownership, operation, use, maintenance or entrustment to others of any "unmanned aerial vehicle" owned or operated by or rented to or loaned by or on behalf of any "covered party" if operated at the time of the "occurrence" in accordance with all applicable federal, state, and local laws, rules and regulations, including but not limited to Federal Aviation Administration (FAA) Rules and Regulations for Unmanned Aircraft Systems detailed in part 107 of Title 14 of the Code of Federal Regulations and if also approved by the governing body of the "entity" for use before use. 17. "Bodily injury" or "property damage" arising out of the operation of any transit authority, transit system or public transportation system owned or operated by the "entity," except a transit system operating over non -fixed route systems such as dial -a -ride, senior citizen transportation, or handicapped transportation. 18. Claims arising out of the failure to supply or provide an adequate supply of gas, water, electricity or sewage capacity when such failure is a result of the inadequacy of the "entity's" facilities to supply or produce sufficient gas, water, electricity or sewage capacity to meet the demand. If the electrical power generation plant or power- generating enterprise or municipal utility is owned, operated, maintained, managed, or supervised by the "entity," the provisions of exclusion 19 apply in place of this exclusion. 19. Claims arising out of the ownership, operation, maintenance, management, supervision, or the condition of any electrical power generation plant or power - generating enterprise or municipal utility, including: (a) Any failure to supply or provide power from any such plant, enterprise, or utility; (b) Any liability arising out of ownership, operation, maintenance, use, or entrustment of any "automobile" while used in the operation of any such plant, division, or utility; or (c) Any obligation, whether or not based on contract, of the "covered party" to indemnify any person, entity, or governmental agency because of such claims. 20. "Bodily injury" arising out of the ownership, maintenance or use of any trampoline, bungee jumping, or any other rebound tumbling device, including but not limited to bounce houses, Bubble Soccer, or any inflatable aquatic /pool device that includes a trampoline component. 21. "Bodily injury" arising out of the ownership, maintenance or use of (a) any skate or skateboard park or other facility officially designated for use of skates, skateboards, or other wheeled recreational devices, or (b) any bicycle park or other facility officially designated for use of bicycles or mixed use of bicycles in a skate or skateboard park or facility, by the member "entity." This exclusion does not apply to "bodily injury" arising out of the ownership, maintenance or use of such parks or facilities by a member "entity" if operated at the time of the "occurrence" in accordance with all applicable federal, state, and local laws, rules and regulations, including but not limited to California Health & Safety Code section 115800, and if written approval is obtained by the Authority prior to the "occurrence." Such written approval may be conditioned on the member "entity" meeting certain requirements, including but not limited to an inspection of the plans for the park or facility and the facility, and compliance with industry standards related thereto. 22. "Bodily injury" arising out of the operation or sponsorship of any rollerblade hockey league, program, class, or instruction. This exclusion does not apply to "bodily injury" arising out of the operation or sponsorship of any rollerblade hockey league, program, class, or instruction if operated at the time of the "occurrence" in accordance with all applicable federal, state, and local laws, rules and regulations, and if written approval is obtained by the Authority prior to the "occurrence." 23. "Bodily injury" arising out of competition among students authorized by the instructor in martial arts classes, or arising out of martial arts tournaments or contests. 24. Under Coverage C, "public officials' errors and omissions," to "bodily injury" or "personal injury." 25. Under Coverage C, "public officials' errors and omissions," to physical injury to tangible property, including all resulting loss of use of that property. 26. Refund of taxes, fees or assessments. 27. Claims arising out of the intentional conduct done with willful and conscious disregard of the rights or safety of others, or with malice. However, where the "entity" did not authorize, ratify, participate in, consent to or have knowledge of such conduct by its past or present employee, elected or appointed official, or volunteer, and the claim against the "entity" is based solely on its vicarious liability arising from its relationship with such employee, official or volunteer, this exclusion does not apply to said "entity." This exclusion does not apply to "bodily injury," "property damage," or "personal injury," as those terms are defined, resulting from the use of reasonable force to protect persons or property. 28. Claims arising, in whole or in part, out of a "covered party" obtaining remuneration or financial gain to which the "covered party" was not legally entitled. 29. Claims arising, in whole or in part, out of the violation of a statute, ordinance, order or decree of any court or other judicial or administrative body, or rule of law, committed by or with the knowledge or consent of a "covered party." 30. Claims arising out of oral or written publication of material, if done by or at the direction of a "covered party" with knowledge of its falsity. 31. Claims arising out of estimates of probable cost or cost estimates being exceeded or faulty preparation of bid specifications or plans, including architectural plans, unless prepared by a qualified, licensed and /or registered engineer or architect who is the appointed City Engineer- or an employee of the "covered party." 32. Claims arising out of: (a) A failure to perform, or breach of, a contractual obligation, or fraudulent inducement to contract. (b) "Bodily injury" or "property damage" for which the "covered party" is obligated to pay "damages" by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for "damages." (1) Assumed in a contract or agreement that is a "covered indemnity contract," provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement, and then only to the extent required by the terms of the "covered indemnity contract," or (2) That the "covered party" would have in the absence of the contract or agreement. 33. "Ultimate net loss" arising out of relief, or redress, in any form other than money "damages." Claims arising out of liability imposed on any "covered party" under any uninsured /underinsured motorist law or "automobile" no -fault law. SECTION VIII -CONDITIONS 1. "Covered Party's" Duties in the Event of "Occurrence," Claim or Suit. As a condition precedent for the Authority to have any duty under this Memorandum, including the duty to pay "ultimate net loss" or any portion thereof, a "covered party" shall first have complied fully with (A) - (E) below. A "covered party's" failure to so comply shall void the coverage described herein, unless coverage is extended by a two- thirds vote of the full Board. (A) In the event of an "occurrence," written notice containing particulars sufficient to identify the "covered party" and also reasonably obtainable information with respect to the time, place and circumstances thereof, addresses of the injured or damaged party(ies) and the identity and addresses of available witnesses, shall be given by or for the "covered party" to the Authority as soon as practicable. Such notice must be given within 30 days of either: (1) notice of any claim reasonably likely to exceed fifty percent of the "covered party's" self - insured retention; or (2) any notice of "occurrence" involving any of the following: • One or more fatalities; • Loss of limb or amputation; • Loss of use of any sensory organ; • Spinal cord injuries, including but not limited to quadriplegia and paraplegia; • Third degree burns involving 10% or more of the body; • Serious cosmetic disfigurement, • Paralysis; • Closed head injuries; • Loss of use of any body function; • Long -term hospitalization; • Alleged sexual abuse, molestation, or harassment, or • Title 42 U.S.C. section 1983 claims or other claims involving civil rights violations. The Authority shall have the right, by two- thirds vote of the full Board, to deny coverage under this Memorandum, or to reduce the "ultimate net loss" payable, for failure to provide notice as required herein, including but not limited to the following: 1. A reduction up to 25% in the "ultimate net loss" that would have been payable on behalf of the "covered party" under this Memorandum had notice been timely given to the Authority, if notice is given between 31 days and 180 days after the date on which it should have been given. A reduction of 26% up to 50% in the "ultimate net loss" payable on behalf of the "covered party" under this Memorandum had notice been timely given to the Authority, if notice is given between 181 days and 270 days after the date on which it should have been given. 3. A reduction of 51% up to 75% in the "ultimate net loss" payable on behalf of the "covered party" under this Memorandum had notice been timely given to the Authority, if notice is given between 271 days and 365 days after the date on which it should have been given. 4. A reduction of 76% up to No coverage, and no payment of any "ultimate net loss" if notice is given more than one year after the date on which it should have been given. (B) If claim is made or suit is brought against the "covered party," the "covered party" shall be obligated upon demand to forward to the Authority every demand, notice, summons or other process received by it or its representative. (C) The "covered party" shall cooperate with the Authority and, upon its request, assist 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 "covered party" because of "bodily injury," "personal injury," "property damage" or "public o icials' errors and omissions" with respect to which coverage is afforded under this Memorandum of Coverage; and the "covered party" shall, as deemed desirable by the Authority, attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The "covered party" shall not, except at its own cost, voluntarily make any payment, assume any obligation or incur- any expense on behalf of the Authority. The "covered party" shall reimburse the Authority for the "ultimate net loss" up to its self - insured retention. (D) The "covered party" shall comply with all obligations set forth under Section III - DEFENSE AND SETTLEMENT herein. (E) Upon tender of a claim, the Authority shall be entitled to complete access to the "covered party's" claim file, the defense attorney's complete file, and all investigation material and reports, including all evaluations and information on negotiations. The "covered party' shall be responsible to report on the progress of the litigation and any significant developments at least quarterly to the Authority, and to provide the Authority with simultaneous copies of all correspondence provided to the "covered party" by its defense attorneys and /or agents. 2. Bankruptcy or Insolvency: Bankruptcy or insolvency of the "covered party" shall not relieve the Authority of any of its obligations hereunder. 3. Other Coverage: If collectible insurance or any other coverage with any insurer, joint powers insurance authority or other source respectively is available to the "covered party" covering a loss also covered hereunder (whether on a primary, excess or contingent basis), the coverage hereunder shall be in excess of, and shall not contribute with, such other coverage. 4. Severability of Interests: The term "covered party" and its sub -terms including "entity," 'covered individual" and "additional covered party" are used severally and not collectively, but the inclusion herein of more than one "covered party" shall not operate to increase the limits of the Authority's liability or the applicable self - insured retention per "occurrence." 5. Accumulation of Limits: With respect to "personal injury" and "public official's errors and omissions," an "occurrence" with a duration of more than one coverage period shall be treated as a single "occurrence" arising during the coverage period when the "occurrence" begins. "Property damage" or "bodily injury" with a duration of more than one coverage period shall be deemed to occur during only one coverage period, and that coverage period shall be when any "property damage" or "bodily injury" was first discovered. Coverage for such "property damage" or "bodily injury' shall be provided by, at most, one Memorandum of Coverage by the Authority. 6. Termination: This Memorandum may be terminated at any time in accordance with the Joint Powers Agreement or by action approved by the Authority's Board of Directors. 7. Changes: Notice to any agent or knowledge possessed by any agent of the Authority or by another person shall not affect a waiver or a change in any part of this Memorandum of Coverage, nor shall the terms of this Memorandum of Coverage be waived or changed, except by endorsement issued to form a part of this Memorandum of Coverage. 8. No action: No person, organization or other entity shall have the right under this Memorandum of Coverage to join the Authority as a party in any action against any "covered party" to determine the Authority's liability. 9. Subrogation: The Authority shall be subrogated to the extent of any payment hereunder to all the "covered party's" rights of recovery therefore; and the "covered party" shall do nothing after loss to prejudice such rights and shall do everything necessary to secure such rights. Any amount so recovered shall be apportioned as follows: (A) Any interest (including the "covered party's ") having paid an amount in excess of the covered "ultimate net loss" hereunder shall be reimbursed on a pro -rata basis of the respective share of the loss paid between the Member and Authority. (B) The expenses of all such recovery proceedings shall be apportioned in the ratio of respective recoveries. If there is no recovery in the proceedings conducted solely by the Authority, it shall bear the expenses thereof. SECT IOM IX -RESOLUTION OF COVERAGE DISPUTES THE PARTIES TO THIS MEMORANDUM UNDERSTAND THAT BY AGREEING TO THIS MEMORANDUM OF COVERAGE THEY WAIVE ANY RIGHT THEY MAY HAVE TO A COURT OR JURY TRIAL AND TO CERTAIN TYPES OF DAMAGES FOR THE PURPOSE OF ADJUDICATING ANY DISPUTE OR DISAGREEMENT AS TO COVERAGE UNDER THIS MEMORANDUM. 1. GENERAL The following procedures shall be followed in resolving any dispute, claim, or controversy arising out of or connected with this Memorandum of Coverage. Such disputes shall be resolved by either administrative proceedings or binding arbitration as provided herein. 2. PROCEDURES FOR RESOLVING DISPUTES .Decisions by the Authority whether- to assume control of the negotiation, investigation, defense, appeal, or settlement of a claim, or whether- or not coverage exists for a particular claim or part of a claim, shall be made by the Board of Directors of the Authority. An appeal to the Board from a written coverage opinion by staff or coverage counsel must be made in writing to the Authority by the covered party within ninety (90) days of receipt of such opinion. If, either prior to or following the Board's decision, a new coverage opinion is sent by staff or coverage counsel to the covered party, a new ninety (90) day period commences from receipt of such new opinion in which the covered party may appeal to the Board. Any dispute concerning a decision by the Board must first be submitted to non- binding mediation within sixty (60) days of written notification of the Board's decision. The parties shall cooperate in selecting a mediator and scheduling a mediation within that timeframe. Each party shall bear one -half the cost of the selected mediator. Except for the shared cost of the mediator, each party shall be responsible for its own fees, costs and expenses of mediation. If the dispute is not resolved at mediation, it shall be submitted to final binding arbitration within ninety (90) days of the date such mediation is held. The arbitration shall be held before a neutral arbitrator, selected by mutual agreement of the parties, who is a lawyer experienced in contract interpretation or a retired federal or California State judge. The arbitrator shall not be employed by or affiliated with the Authority, the covered party, or any Member of the Authority. Such arbitration shall be conducted under the auspices of, and in accordance with, the procedures and rules of the California Code of Civil Procedure. Any hearings held in the course of such arbitration shall be held in Walnut Creek, California, unless the parties mutually agree in writing to another location. The selection of the arbitrator shall take place within twenty (20) calendar days from the receipt of the request for arbitration. The arbitration hearing shall commence within forty - five (45) calendar days from the date of the selection of the arbitrator. These timelines may be extended by agreement of the parties. Each party shall bear one -half the cost of the selected arbitrator. Except for the shared cost of the arbitrator, each party shall be responsible for its own fees, costs and expenses of arbitration. Except for notification of appointment and as provided in the California Code of Civil Procedure, there shall be no communication between the parties and the arbitrator relating to the subject of the arbitration other than at oral hearings, with the exception of briefing and written communications copied to all parties. The decision of the arbitrator shall be final and binding, and shall not be subject to appeal. During the course of the administrative and arbitration proceedings of a claim or lawsuit herein provided herein for which coverage is denied, the "covered party" will be responsible for all fees and expenses for the defense or litigation of a claim or lawsuit for which coverage has been denied. In the event the arbitrator determines that a duty of defense applies, the Authority will reimburse the "covered party" for "defense costs" as defined in Section II (9). 3. FUNDING OF DEFENSE AND CLAIMS PENDING RESOLUTION OF DISPUTE During the course of the administrative and arbitration proceedings provided herein for which coverage is denied, the "covered party" will be responsible for all fees and expenses for the defense or litigation of a claim or lawsuit. In the event the arbitrator determines that a duty of defense applies, the Authority will reimburse the "covered party" for "defense costs" as defined in Section 11(9). 4. EFFECT OF ARBITRATION DECISIONS All decisions on appeals, whether by the Board of Directors (after the time to request arbitration has expired) or by an arbitrator, shall be final and binding upon the "parties." S. NOT APPLICABLE TO EXCESS CARRIERS These arbitration provisions are intended to bind only the Authority and its member agencies. They are not intended to be binding upon any of the Authority's excess carriers. Adopted June 29, 2017 Amended July 1, 2017 Issued By: MUNICIPAL POOLING AUTHORITY By: i (l_ Date: Chief Administrativee Officer P.O. B o x 6 7 ' W a l n u t Creek, CA 9 4 5 9 6 ` ( 9 2 5 ) 9 4 3 - 1 1 0 0 ` F a x ( 9 2 5 ) 946-4 1 8 3 Page 17 PY2 01 712 01 8 MUAIJICRPAL POOLING AUTHORITY PROGRAM YEAR JULY 1, 2017 THROUGH JUNE 30, 2018 ENDORSEMENT NUMBER 1 This Endorsement, effective 12:01 a.m., July 1, 2017, and expiring on 12:00 a.m., July 1, 2018 forms a part of the Memorandum of Coverage for the Municipal Pooling Authority. This Endorsement is intended to supplement the Memorandum of Coverage, and to he read in conjunction with that document. Except as expressly amended herein, all coverages, definitions, exclusions, and other terms and conditions contained in the Memorandum of Coverage apply to this Endorsement, and govern its interpretation. In consideration of underwriting requirements having been met, Exclusion 10, set forth in Section VII of the Memorandum of Coverage, is hereby modified by exempting therefrom the member entity(s) listed below, that have formally adopted a policy on non - medical professional staff assisting with the administration of medications to participants in custodial care programs. This endorsement is issued to: City ofAntioch; Town of Danville; City of Hercules; City of Lafayette, City of Manteca; City of Martinez; Town of Moraga; City of Oakley; City or Orinda; City of Pinole; City of Pittsburg; City of San Pablo; City of San Ramon; City of Walnut Creek Date Chief Administrative Officer