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HomeMy WebLinkAboutSanta Clara VTA - License Agreement for 2019 Memorial Day Parade Staging AreaLICENSE AGREEMENT BETWEEN SANTA CLARA VALLEY TRANSPORTATION AUTHORITY AND CITY OF GILROY REGARDING PROPERTY LOCATED AT MONTEREY HIGHWAY AT 7TH STREET, GILROY, CA PARCEL NO. 841-13-017 This LICENSE AGREEMENT (hereinafter referred to as the "License") is entered into between the Santa Clara .Valley Transportation Authority, a California public agency, ("VTA") whose address is 3331 N. First Street, San Jose, California 95134 and the City of Gilroy (Licensee"), whose address is 7351 Rosanna Street, Gilroy, Ca 95020 (collectively referred to as the "Parties" and/or individually as a "Party"). RECITALS A. WHEREAS, VTA is the owner of real property located at Monterey Highway at 7th Street, Gilroy, California, 95020, Parcel No. 841.-13-017 as more particularly depicted in Exhibit A, attached hereto and incorporated by reference (the "Property"). B. WHEREAS, Licensee desires, from VTA, pursuant to this License, to use an approximately 62,702 square foot portion of the Property (hereinafter the."Premises"), as more particularly depicted in Exhibit A, for the purposes set forth herein. C. WHEREAS, VTA is willing to allow the right to enter subject to the terms and conditions herein. NOW, THEREFORE, in consideration of the mutual agreements and undertakings contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the Parties hereto agree as follows: 1. USE VTA herein grants Licensee a non-exclusive right to enter onto the Property and to use the Premises as follows: (a) To use a portion of the Premises south of 8th Street for the purpose of setting up a staging area for the assembly of the Gilroy Memorial Day Parade. Licensee's use of the Premises must not interfere with VTA's regular scheduled bus service. (b) A non-exclusive right of ingress and egress onto the Premises from Monterey Highway as depicted in Exhibit A. Rev 5, 06/01/2018 Page 1 of 14 Licensee shall not use the Premises for any other purpose, including storage of other items or trash. Except as permitted by this License, Licensee shall not erect, operate, or maintain any improvements on the Premises. Licensee shall not conduct any business on the Premises, unless that business is explicitly authorized under the terms of this License. The right to use the Premises granted pursuant to this License shall be limited to the purpose specifically set forth above and no additional uses may be made of the Premises without a written amendment to this License. 2. TERM The term of this License will be for one (1) day, on Memorial Day, beginning at 12:00 AM and ending at 11:59 PM (hereinafter, "Memorial Day"). Licensee may extend the term on each subsequent Memorial Day (for the one -day period as defined herein) by giving notice to VTA of their intention to extend the term by no later than March 1st of the calendar year in which the Licensee wishes to extend the term. 3. TERMINATION If Licensee materially breaches this License, VTA may either terminate this License or suspend Licensee's rights to use the Premises until Licensee cures such breach. Prior to terminating this License on the grounds of breach, VTA shall provide thirty (30) calendar days' notice of said breach to Licensee and shall allow Licensee to cure the breach within a ten (10) calendar day period, but, to the extent the nature of the breach requires more than ten (10) calendar days to be cured, then Licensee shall seek VTA's written approval to have a reasonable time period (in excess of ten (10) calendar days) to cure such breach. Notwithstanding the foregoing, VTA may immediately terminate or suspend the License with no opportunity to cure (or a shorter cure period, if applicable, in VTA's sole discretion), if VTA detennines, in .its reasonable discretion, that any activity of Licensee constitutes an imminent danger to persons or property or could lead to an imminently dangerous situation involving persons or property. 4. SURRENDER OF PREMISES Upon termination or expiration of this License, except as otherwise agreed to herein, Licensee shall surrender possession of the Premises to VTA in substantially the same condition as existed immediately prior to Licensee's occupancy, except for any reasonable wear and tear, flood, and earthquakes. 5. LICENSE FEE There will be no monetary license fee payable for Licensee's use of the Premises pursuant to this License. 6. SECURITY DEPOSIT Rev 5, 06/01/2018 Page 2 of 14 Intentionally Omitted. 7. POSSESSORY INTEREST TAX Licensee recognizes that, by its entry onto the Premises pursuant to this License, Licensee's interest herein may be subject to the possible imposition of a possessory interest tax, and that Licensee shall be solely responsible for paying such tax and imposition of such tax shall not reduce any rent owed to VTA. 8. STORM WATER POLLUTION PREVENTION PLAN ("SWPPP") The Licensee shall comply with Phase 2 Non -Traditional MS4 Permit Requirements, attached hereto as Exhibit B and incorporated by reference. 9. FENCING OMITTED 10. MAINTENANCE AND REPAIR Licensee agrees to maintain the Premises in a safe, clean, and sanitary condition in compliance with all applicable laws, permits, and regulations. Licensee agrees to provide approved containers for trash and garbage, to trim weeds, and to keep the Premises free and clear of litter. 11. INSPECTION AND ABATEMENT VTA's representatives, employees and agents shall have the right at all reasonable times to enter onto the Premises to determine if the provisions of this License are being complied with and/or to abate any breaches of this License as permitted under Section 4, above. Licensee expressly consents to such entry and abatement by VTA, and shall reimburse VTA for any costs incurred hereunder. 12. GOOD NEIGHBOR Licensee shall conduct all activities on the Premises as a good neighbor. Licensee shall make reasonable good faith efforts to correct any conditions causing complaint by the neighbors. 13. COMPLIANCE WITH THE LAW; PERMITS In its use of the Premises, Licensee shall, at its sole cost, comply with any law, regulation, order of law, statute, law, ordinance or permit condition (collectively "Laws"), including environmental Laws, of a governmental branch or agency having jurisdiction over Licensee's use of the Premises. Without limiting the foregoing, Licensee, its contractor(s) and assign(s), shall obtain all required permits (including any that may be required by VTA in its normal course of business) in connection with its use of the Premises pursuant to this License. Rev 5, 06/01/2018 Page 3 of 14 14. UNLAWFUL USE Except with respect to the fence contemplated in Section 8 above, Licensee shall not erect, operate or maintain any improvements on the Premises. In addition, Licensee shall not conduct any business on the Premises, which business is not explicitly authorized under the terms of this License. Throughout the Term of this License, Licensee shall comply with any and all statutes, laws, ordinances, or regulations of any governmental entity that are applicable to the licensed Premises or any part thereof. 15. UTILITIES VTA will not provide any utilities to the Premises. Licensee further agrees not to interfere with any existing utility facilities on, over, under or in the Premises and will cooperate if or when any additional utility facilities are installed by VTA during the term of this License. 16. ACCESS Licensee shall access Premises from Monterey Highway. The Licensee shall also keep available to other Licensees and easement -holders access to the Property. 17. LICENSE ONLY A "LICENSE" This License creates a License only and shall not confer any interest in real property. 18. ASSIGNMENT OR TRANSFER OF LICENSE RIGHTS This License is personal to Licensee and may not be assigned or transferred. For the purposes of this License, the rights of access granted to Licensee shall be deemed to extend (but shall not be deemed transferred) to Licensee's officers, employees, and contractor(s). 19. LIABILITY AND INDEMNIFICATION Except to the extent caused by the malicious acts or gross negligence of the VTA, Licensee shall defend, indemnify, and hold VTA, its directors, officers, contractors, agents and employees harmless from all claims, demands, suits, loss, damages, injury, and liability for personal injury and/or property damages (including without limitation, reasonable attorneys' fees and expenses, for in-house attorneys and/or outside counsel), incurred, directly or indirectly, by VTA as a result of Licensee's use of the Property including: (i) the use of the Property by Licensee or its officers, agents, employees, invitees or contractor(s) (collectively "Licensee Parties") pursuant to this License; or (ii) VTA's exercise of its inspection and abatement rights under Section 11; or (iii) any other conditions and/or activities that occur on or about the Property. The indemnity described in this Section 19 shall survive the termination of this License. Rev 5, 06/01/2018 Page 4 of 14 20. AUTHORITY AND EXECUTION Each person executing this License on behalf of a Party represents and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to bind and such Party has fiill right and authority and has obtained all consents and approvals and taken all actions necessary to enter into this License, to perform all of its obligations hereunder, and to consummate the transactions contemplated under this License. 21. HAZARDOUS MATERIAL Licensee agrees that it will not use, generate, store, or dispose of any Hazardous Material on, under or within the Premises in violation of any law or regulation and shall defend, indemnify, and hold VTA, its Directors, officers, contractors, agents and employees harmless from all claims, demands; suits, loss, damages, injury and liability (including without limitation, reasonable attorneys' fees and expenses), incurred, directly or indirectly, by VTA as a result of this Licensee's use, generation, storage, or disposal of Hazardous Materials on or near the Premises. As used in this Section, "Hazardous Material" shall mean any material, waste, chemical, compound, substance, mixture, or byproduct that is identified, defined, designated, listed, restricted, or otherwise regulated under any federal, state, or local law (including regulations, standards, directives, administrative or judicial orders or decrees, guidelines, permits, license approvals or other entitlements, or rules of common law) as a "hazardous constituent," "hazardous substance," "hazardous material," "hazardous waste constituent," "infectious waste," "medical waste," "biohazardous waste," "extremely hazardous waste," "pollutant," "toxic pollutant," "toxic substance," "regulated substance," or "contaminant," or any other formulation intended to classify substances by reason of properties that are deleterious to the environment, natural resources, wildlife or human health or safety, including without limitation, ignitability, infectiousness, corrosiveness, radioactivity, carcinogenicity, toxicity, and reproductive toxicity. Hazardous Material includes, without limitation, any form of natural gas, petroleum products or any fraction . thereof, asbestos, asbestos containing materials, polychlorinated biphenyls ("PCBs"), materials containing PCBs, and any substance that, due to its characteristics or interaction with one or more other materials, wastes, chemicals, compounds, substances, mixtures or byproducts, damages or threatens to damage the environment, natural resources, wildlife or human health or safety. This Section will survive the termination of this License. 22. INSURANCE The License shall comply with Insurance and Indemnity Requirements, attached hereto as Exhibit C. VTA reserves the right to amend Exhibit C at its sole discretion. 23. WAIVER OF SUBROGATION VTA and Licensee release each other and their respective principals, employees, representatives, and agents from any claims for damage to any person or to the Premises, or any improvements thereon, caused by, or that result, from, risks insured against under any insurance policies carried by the Parties and/or Licensee's general contractor and in force at the time of any such damage. VTA and Licensee shall cause each insurance policy obtained by them to provide that the insurance company waives all right of recovery by way of subrogation against the other in connection with Rev 5, 06/01/2018 Page 5 of 14 any damage covered by any policy. Nothing in this Section, however, shall be deemed to require VTA to purchase any commercial insurance policy. 24. NOTICES All notices required to be given hereunder, or which either Party may wish to give, shall be in writing, and shall be served either by personal delivery or by certified or registered mail, postage prepaid, addressed as follows: To VTA: To Licensee: Santa Clara Valley Transportation City of Gilroy Transportation Authority Attention: Gabriel A. Gonzalez Real Estate Division 7351 Rosanna Street 3331 N. First Street, Bldg. A-1 Gilroy, CA 95020 San Jose, CA 95134-1927 or to such other place as either Party may designate by written notice. 25. MISCELLANEOUS (a) This License constitutes the entire agreement between the Parties, and supersedes all understandings, offers, negotiations, and other agreements concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments, modifications, or waivers of any of the terms and conditions of this License must be in writing and executed by both Parties. (b) If any provision of the License is invalid or unenforceable with respect to either Party, the remainder of this License or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this License shall be valid and enforceable to the fullest extent permitted by law. (c) The Parties hereto acknowledge and agree that, although this License has been drafted by VTA's legal counsel, Licensee has had an opportunity to review and negotiate the terms of this License, as well as consult with Licensee's own legal counsel regarding the meaning of its terms. Consequently, the doctrine that ambiguities in an agreement should be resolved against the drafting party shall not be employed in connection with this License and this License shall be interpreted in accordance with its fair meaning. (d) This License may be executed in one or more counterparts, each of which shall be deemed and original, but which together shall constitute one and the same instrument. (e) This License shall be binding on and inure to the benefit of the successors and permitted assignees of the respective Parties. (f) This License shall be governed by the laws of the State of California, and be binding on and inure to the benefit of the successors and permitted assignees of the respective Parties. IN WITNESS WHEREOF, the Parties have executed this License as of the last date set forth below ("Effective Date"): Rev 5, 06/01/2018 Page 6 of 14 VTA: Nuria I. Fernandez General Manager/CEO Date: RECOMMENDED FOR APPROVAL: Edna Campero Assistant Real Estate Agent APPROVED AS TO FORM: VTA Counsel LICENSEE: Gabriel A. Gonzalez City Administrator Date: 5�r0[1f2„ Rev 5, 06/01/2018 Page 7 of 14 Gilroy City Attorney's Office By: 7 City Attorney A97 Exhibit A City of Gilroy Memorial Day Parade Staging Area Gilroy Park-N-Ride Lot Rev 5, 06/01/2018 Page 8 of 14 IA IV U1"A -Y_8i Lease Conditions for all VTA Tenants Last revised: 6-19-17 In accordance with Phase 2 Non -Traditional MS4 Permit Requirements Lessees and Licensees shall ensure the protection of stormwater quality on VTA property at all times. At a minimum, tenant shall comply with the below VTA Stormwater requirements, and shall implement Best Management Practices (BMPs) in accordance with local City ordinances and California Stormwater Quality Association (CASQA) guidelines. All BMPs installed shall be inspected at a minimum weekly, and maintained in fully functioning condition for the duration of the Lessee's and Licensee's lease. Any compliance issues or questions, contact the VTA at (408) 321-2300. Specific requirements are as follows: Protection of Storm Drain Facilities and Creeks: No debris, silt, bark, sediment, sawdust, rubbish, trash, or other undesirable material may be placed in or around a storm drainage flow line, storm drains or where it may be washed or blown into a storm drainage facility or creek. Illicit Discharge Detection and Elimination: No discharge of any liquids -other than clean stormwater is permitted. Look for evidence of illegal discharges/public dumping of liquid or solid waste, spills, sediment, trash, or contaminated material (e.g. oily stained sediments with sheen), illicit connections such as sanitary waste near storm drain inlets and flow paths. -Notify VTA at (408) 321-2300 immediately if any of these are encountered or witnessed by Lessee and Licensee. In case of emergencies, please call 911 to report the incident. Material Handling and Trash: Debris and trash containers shall be upright, watertight, and covered at all times to minimize direct precipitation and prevent rainfall from entering the containers. Trash service shall be provided by Lessee and Licensee in a timely fashion so debris and trash do not accumulate on the premises. Chemical Storage/Housekeeping: Any chemicals stored on site shall be clearly labeled, stored within secondary containment capable of containing the full amount of material in the container in case of a leak, and all chemicals must be protected from precipitation run-on and run-off with covers at all times. Material Safety Data Sheets (MSDS) shall be posted on the premises for any chemicals stored, and spill kits shall be provided by Lessee and Licensee that are adequate to clean up the quantity of chemical stored. Tracking and Sediment Control: Access to and from the Site shall be accomplished in a safe manner that does not track sediment from the site onto paved surfaces. Street sweeping services shall be provided by Tenant as necessary depending on Lessee's and Licensee's operations, so litter and sediment from the Site do not accumulate on the Property and are not tracked off the Site. Lessee and Licensee may be Rev 5, 06/01/2018 Page 9 of 14 required to install BMPs such as stabilized rock entrance/exits, gravel/stabilized roadways, and gravel/stabilized staging areas to achieve this requirement at VTA's discretion. If exposed soils are present and/or turbid stormwater could potentially leave the Site controlled by Lessee and Licensee, drainage inlet protection and/or adequate barriers to prevent the flow of turbid/silty water (such as silt fence, fiber rolls, gravel bags, sand bags, and/or check dams) onto the Property shall be erected within the Site and at the Site perimeter such that water discharging from the site does not exceed a turbidity of 250 Nephelometric Turbidity Units (NTU). Lessee or Licensee is responsible for sampling and recording if the turbidity is greater than 250 NTU and must report any exceedance to the VTA immediately. VTA shall determine whether barriers installed by Lessee and Licensee are adequate. Rev 5, 06/01/2018 Page 10 of 14 EXHIBIT C INSURANCE REQUIREMENTS for Licenses (No Special Hazards — All Contracts) LICENSEE'S ATTENTION IS DIRECTED TO THE INSURANCE REQUIREMENTS BELOW. IT IS HIGHLY RECOMMENDED THAT. LICENSEES CONFER WITH THEIR INSURANCE CARRIERS OR BROKERS TO DETERMINE THE AVAILABILITY OF INSURANCE CERTIFICATES AND ENDORSEMENTS REQUIRED BY THIS LICENSE. I. INSURANCE (Required for ALL contracts) Without limiting the Licensee's indemnification of VTA, the Licensee must procure and maintain for the duration of the License insurance against claims for injuries to persons or damages to property which may arise from or in, connection with the Licensee's occupancy of the licensed premises. The cost of such insurance must be borne by the Licensee. The Licensee must furnish complete copies of all insurance policies, within three (3) business days of any request for.such by VTA. A. MINIMUM SCOPE OF INSURANCE Coverage must be at least as broad as: 1. Insurance Services Office General Liability coverage ("occurrence" form CG 0001). General Liability insurance written on a "claims made" basis is not acceptable. 2. Business Auto Coverage, Insurance Services Office form number CA 0001, covering Automobile Liability, code 1 "any auto." Auto Liability written on a "claims -made" basis is not acceptable. 3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. B. MINIMUM LIMITS OF INSURANCE a. Licensee must maintain limits no less than: 1. General Liability: $1,000,000 limit per occurrence for bodily injury, personal injury, and property damage. If General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit must apply separately. to this project/location or the general aggregate limit must be twice the required occurrence limit. 2. Automobile Liability (including umbrella/excess liability): $1,000,000 limit per accident for bodily injury and property damage. Rev 5, 06/01/2018 Page 11 of 14 3. Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. a. Notwithstanding any language in this License to the contrary, if Licensee carries insurance limits exceeding the minima stated in Section B.(a.)(1)-(3) irmnediately above, such greater limits will apply to this License. C. SELF -INSURED RETENTION The certificate must disclose the actual amount of any deductible or self -insured retention for all coverages. Any self -insured retention or deductible in excess of $50,000 ($100,000 if Licensee is a publicly -traded company) must be declared to and approved by VTA. If Licensee is a governmental authority such as a state, municipality or special district, self-insurance is permitted. To apply for approval for a level of retention in excess of the stipulated amounts stated herein, the Licensee must provide a current financial statement documenting the ability to pay claims falling within the self -insured retention. At the option of VTA, either: the insurer must reduce or eliminate such self -insured retention as respects VTA, its officers, officials, employees and volunteers; or the Licensee must procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. CLAIMS MADE PROVISIONS (NOT APPLICABLE TO GENERAL LIABILITY OR AUTO LIABILITY) Claims, made coverage is never acceptable for General Liability or Auto Liability. Claims -made may be considered for Professional, Environmental/Pollution, or Cyber Liability. If coverage is written on a claims -made basis, the Certificate of Insurance must clearly state so. In addition to all other coverage requirements, such policy must provide that: 1. The policy retroactive date must be no later than the date of this License. 2. If any policy is not renewed or the retroactive date of such policy is to be changed, the Licensee must obtain or cause to be obtained the broadest extended reporting period coverage available in the commercial insurance market. This extended reporting provision must be of at least two (2) years. 3. No prior acts exclusion to which coverage is subject that predates the date of this License. 4. Policy allows for reporting of circumstances or incidents that might give rise to future claims. E. OTHER INSURANCE PROVISIONS The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability a. VTA, its officers, officials, employees and volunteers are to be named as additional insureds as respects: liability arising out of premises licensed to, occupied or used by the Licensee. The coverage must contain no special limitations on the scope of protection afforded to VTA, its officers, officials, employees, or volunteers. Additional Insured Rev 5, 06/01/2018 Page 12 of 14 endorsements must provide coverage at least as broad as afforded by the combination of ISO CG 20 10 10 01 and CG 20 37 10 01. b. The Licensee's insurance coverage must be primary insurance as respects VTA, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by VTA, its officers, officials, employees, or volunteers must be excess of the Licensee's insurance and may not contribute with it. c. Any failure to comply with reporting provisions of the policies may not affect coverage provided to VTA, its officers, officials, employees, or volunteers. d. Coverage must state that the Licensee's insurance must apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. e. The General Liability General Aggregate limit must apply per project, not per policy. f. The General Liability policy must be endorsed to remove the exclusion for railroad liabilities, with coverage at least as broad as afforded by ISO CG 24 17. 2. All Coverages The insurer must agree to waive all rights of subrogation against VTA, its officers, officials, employees, and volunteers for losses arising from the licensed premises. 3. Other Insurance Provisions The Certificate must disclose the actual amount of the Deductible or Self -Insured Retention. b. If any coverage forms or endorsements required by this License are updated by their publishers, whether they be the insurance carrier(s), the Insurance Services office, or the American Association of Insurance Services, during the duration of this License, VTA reserves the right to require the Applicant to procure said coverage forms or endorsements using the updated versions upon the next renewal cycle. F. ACCEPTABILITY OF INSURERS Insurance must be placed with insurers with an A.M. Best's rating of no less than A VII (financial strength rating of no less than A and financial size category of no less than VII), unless specific prior written approval has been granted by VTA. G. CERTIFICATES OF INSURANCE Licensee must furnish VTA with a Certificate of Insurance. The certificates for each insurance policy are to be signed by an authorized representative of that insurer. The certificates will be issued on a standard ACORD Form. The Licensee must instruct their insurance broker/agent to submit all insurance certificates and required notices electronically in PDF format to real.estateOwta.ora . Rev 5, 06/01/2018 Page 13 of 14 The certificates will (1) identify the underwriters, the types of insurance, the insurance limits, the deductibles, and the policy term, (2) include copies of all the actual policy endorsements required herein, and (3) in the "Certificate Holder" box include: Santa Clara Valley Transportation Authority ("VTA") 3331 North First Street San Jose, CA 95134-1906 In the Description of Operations/Locations/Vehicles/Special Items Box, the VTA License number must appear, the list of policies scheduled as underlying on the Umbrella policy must be listed, Certificate Holder should be named as additional insured, and Waiver of Subrogation must be indicated as endorsed to all policies as stated in the License Documents. All certificates and endorsements are to be received and approved by VTA before work commences. VTA reserves the rights to require complete, certified copies of all required insurance policies, at any time. If the Licensee receives any notice that any of the insurance policies required by this Exhibit may be cancelled or coverage reduced for any reason whatsoever, Licensee or insurer must immediately provide written notice to VTA that such insurance policy required by this Exhibit is canceled or coverage is reduced. H. MAINTENANCE OF INSURANCE If Licensee fails to maintain such insurance as is called for herein, VTA, at its option, may deny the Licensee access to the licensed premises until a new policy of insurance is in effect. Ed. Rev. 7-1-1 Rev 5, 06/01/2018 Page 14 of 14 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 xcs I 11 —4 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 C011i5i017 and Comprehensive Workers' Compensation and Employers Liability COVERAGE AGREEMENT . COVERAGE AGREEMENT LIMITS OF LIABILITY NUMBER EXPIRATION per occurrence MPA18-19 6/30/2019 Bodily Injury, Property Damage, Personal Injury Combined $1,000,000 MPA18-19 6/30/2019 Bodily Injury, Property Damage, Personal Injury .—Combined $1,006,000 $3,000 Deductible Police Vehicles MPAIS-19 6/30/2019 $2,000 All Other Vehicles Limit of Liability = $250,000 .. ........ .... . SIR $500,000 MPAIB-19 6/30/2019 Workers! Comp = Statutory Employers° Liability =$4.5 million Description of Operations/Locations/Vehicles/Event/Restrictions/Special Items: It is hereby agreed that the Santa Clara Valley Transportation Authority, its officers, representatives, agents and employees, is named as an additional covered party as respects the use of its Monterey Street parking lot as a staging area on May 28, 2019 for the City's Memorial Day Parade and "Fun Day," but only to the extent assumed by the city under the agreement between the Gilroy Community Organization and the City of Gilroy and the related Special Event Permitand subject to MPA!s Memorandum of Coverage terms, conditions and exclusions. 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 rnall 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 Valley Transportation Authority Real Estate Section Attention: Edna Campero 3331 North First Street, Bldg. B, 2nd Floor _, fan jo 9 Se,_CA_95n4A _27 Certificate ID: 2351 : 2015-16 FY Prepared By: mp Date Issued: June 01, 2018 Erwin Chanq, LiabilityClaims I 7; Property Use Agreement: Parcel No, 841-13-017 By: Municipal Pooling Authority of Northern California Issued to: Santa Clara Valley Date Issued: May 14, 2019 Transportation Authority Additional Covered Party Coverage afforded by this Memorandum of Coverage shall also apply to the Santa Clara Valley Transportation Authority (VTA), and its officers, representatives, agents, and employees, as additional covered party to the extent assumed under the agreement for use of VTA's Monterey Street Parking lot on May 2019, subject to MPA's Memorandum of Coverage terms, conditions, and exclusions. a By: E in Chang,.CP=, General Liability Manager Municipal Pooling Authority Effective: July 1, 2018 MUNICIPAL POOLING AUTHORITY MEMORANDUM OF COVERAGE GENERAL & AUTO 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 II, "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 6 P.O. Box67 * Walnut Creek, CA 94597 * (925) 943-1100 * Fax (925) 946-4183 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 I. "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 party" 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. "Aircraft' 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) c) Public works contracts; d) e) Easement or license agreements; or f) party„ Mutual aid agreements; Special events sponsored by the "covered party," Use of facilities or equipment by the "covered 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 bylaw in the absence of any contract or agreement. G. "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 bythe 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 ... :;:::.A ;0.......:.i3::o:.x :.::;6 7 * IN a.i n..0 i;;:. C_r::c:.e k:......A.• 9.?::5:.9.7.. .:_. 9;:2>5 9.:4 3 :.:1::1:0.0.:....<..:.F.a x 9.2 5.::.:9 4::.6 -:. ;1.'8. ..; 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 X . "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 party" 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. "Aircraft' means a vehicle designed for the transport of persons or property principally in the air, not including an "unmanned aerial vehicIe," 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) c) Public works contracts; d) e) Easement or license agreements; or f) party,it Mutual aid agreements; Special events sponsored by the "covered party," Use of facilities or equipment by the "covered under which the "covered party" assumes the toi t 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 bylaw in the absence of any contract or agreement. d. "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 W - _. Pa 2 F}��i1.�8 2039 - or oppression, and in the best interest of the "entity;" and (d) Extension ofcoverage is in the best interest of the "entity;" except an airport or hospital board regardless of how such body is denominated. Linder no circumstances shall the Authority have a duty to defend or indemni�y 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. $. "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 partjl' 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 conning 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 ofthe following services: (a.) Medical, surgical, dental, psychiatric, psychological counseling, x-ray or nursing :.:77 -so .. .......:....t3......B.ax.......7........_.:.:W..a..�..n...u..t.:.:C..r...e.e.:k...:...:C..A..........9.:4.5.9..................2..5......9..�.3........1..0..�.......:...F:.:x......9..2..5.......9...4.:..:....................:.�? �: :.::;.,:.. 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 61.46(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 91.1 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 Atonic 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 (t) Injury resulting from the use of reasonable force for the purpose of protecting persons or property, 16. "Pollutants" means any solid, liquid, gaseous or thermal 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 actual or alleged error or omission by "covered individuals" individually 77. ..:..... _ k..C..A......,.9..4.5..9:.7...,..:>.....,....9..2..5.......9..A.:•.3::,.:::..:...: ..,.:. .... ....:........... ;. ..:: ;; ....:........::..........:...::.._..::..:..:::::..:.:..:...:.:::::..............:,.._..............._ {... .. 1.1. Q .D.............F. a x......9 2..5.... 9. A..6.....A ...........:..................................................:..._ .....................:.....P..a e.4... 2Q18 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 (t) Injury resulting from the use of reasonable force for the purpose of protecting persons or property. 16. "Pollutants" Means any solid, liquid, gaseous or thermal 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 actual or alleged error or omission by "covered individuals" individually s-.¢..s::�.:� 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 party."All claims involving the same actual or alleged misstatement or misleading statement or actual or alleged error or omission or a series of continuous or interrelated actual or alleged misstatements or misleading statements or actual or alleged error 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 malting 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 malting 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 Ioss" 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 cif coverage" has been totally exhausted by the payment of "defense costs" and/or judgments or settlements. No claim o r suit 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 part,}' 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" >:.....::. ..........::. . n. G.r..e..e..k.....G.A.......9..A.5 9..7. ..... .9..2 5.....9..4;3.:.-;:1:::1:;©:O:z.;;°*::`::F:a..:x::r:<:.,9.::2:5: :.....:`:1:.8 _........:::..F...,:.CJ...._....B...o.:x......G.:7.. .:.......:. W...a...l:.....u:#......................:.............._..:.......................:.............4......::..::...::.?:........:.:,..:......._............:...:........._........:.._._......_:_4.......,......:..1_............,.........:.....:.:..::..::.:..:,......: 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 f u 11 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 sun 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 ofthe 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 malting claims or bringing suits, or (3) Claims made or suits 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, ff 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." ($) "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" Page, .::; Fy.2o1S/.;:::; 9. shall pay or shall teimburse 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 f u 11 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 or suits 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, ff 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." (13) "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" bU_a,�-n_u t 9 43 1, _ ,......._..:.._....,x_,.=� S ,_ _ - - - 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." P "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 anyperson 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: . (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. -:::::_ > .:..:;...;. :>.:,:::.:: .. ..:.... .....,.:..:::...: ... .... .. ...,:.:. ::...: .. ....... ....:..... . 4.. ...9..7 :._...::... .............:....3...:..3..1:.Q:.6._.,.......... .. ...:.......2..5...::..:.9..A. 6......9...:1.:$z i;;;::.:.> P::...o:.....: B..o...x_......6...7..................W..a., I..n :u..t....._:G..r.: e..e...k..:....C.-A.........9.........5................._.......9:.,Z.:S........ 9..:'k...........................:.......:..:.f...a.:x...::....:9..............}...............:............:......... 3.:....... 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 partys" 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 party," 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, remedi ate, 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: (l) 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." ::....:......................:...........:.....:............:........:............:...........:............ ......... ................. 5 ..7. ...... ..... .. 5...... 9...4..3.. 1.1..4.. D ....... F..a. .... 9 2 .5....... .... ...9. 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 party," 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 wising 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." - - - 1 3 'zo.� (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. 5. 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. G. 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 established by the "entity" or mandated by statute). 9, Claims by any "entityl' against its own past or present elected or appointed officials, employees, volunteers, or additional covered parties where such claim seeks "darnages" 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 outpatient, in -patient 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:" C:.' e.;,e,. k:.,;:...: R.'i;5<.:................ ,..> ..... 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. Further, the above exclusion shall not apply to claims for nuisance. 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 anywater 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 bythe "entity„ or employee. (b) Property rented to or leased to the "entity"' where it has assumed 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 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. Further, the above exclusion shall not apply to claims for nuisance. 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 anywater 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'dam age" to: (a) Property owned by the "entity" or employee. (b) Property rented to or leased to the "entity" where it has assumed liability for "damages"to or destruction of such property, unless the "entity"' would have been liable in the absence of such assumption of liability. (e) "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 ._..:H �.�..:.w.._•.: ..••,_�...�.:- •..�-...-�,:. -. ,. `-.:'..;.tip` - - 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 maybe 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 ..:: - ...........:.i : e:...:..-:.:C.A...::.:::.9.:.4..5.�J 7....... 9 5; ::i;::9i4 3:'.;:':.1a1:..0.;.:.;....:.:.:F:.a:.x::::.:.:......�:5<;;:.:::9..�}:;;fi.:-:i..4`:'�:8';3::.;::. .>....::.....,.P.....:o............8.<.o.:x......:5.7.:>..,:..::::.:.W...a..E..n..u..t..:...C..r.:e..:...._k..�......:...................:....................................,................_..:.._...........:....:....:.......:..........:.....L..........}..:.._.......................:.................... :............_...............:.........t.:..............:}.........._.......::............:......................:.......:..:...:...:..........:.................:.....:...._........:........ 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 .... x. ... W 1. .....:................:..:...._....................a....... .....u.i. ..:..6>.:._:.... ...::.1:3-.°- .<...::. 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 "entitjl' 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 "coveted 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 pany." 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 - "a: "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." 34. 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. Asa 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 atwo-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 1953 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 *..... ..... ..... .... r.e._.e.. ..:...-...._..P......0..>.....,�...n...x..:..6..Z.....:...,... W.._a..l..n::u...t.......0....:..........k,,...:....A..:...........4..:.........�'......:......:.........._...}.........:..._...;..............................,.......................:{....._..........�...,.._.:.:....................:.. _..-........::.:.. to the Authority, if notice is given between 31 days and 180 days after the date on which it should have been given. 2. A reduction of 26% up to SO% 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 officials' 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 male 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 lil - 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 t.....:. ..... . P......:...,.....B:._a..x......6...7...........VJ...a..E..n.u..i.......:C.r...e.. :.........,..........: ........:... .. ...........: :........:......................:... . ..:.................................:................................................................................e.:: k::-::,::.�: 7................,9.2.. 5....._.9..�..3......1..1..O..t}.:..-:........F. ...::.. ....:::>: :..:: ::_:;- ...._,....:......._.:..:....................:::::.::.:..:......_..:....._...................._.......,,:............_.................._:...:+...................�..:.._................:........................:1:._.:._......:.�...:.....:............_._:........:......:............:.: a.: x........9.. 2,:5:....: �...4.. 6........4..:1.: 8.3....... to the Authority, if notice is given between 31 days and 180 days after the date on which it should have been given. 2. 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 278 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 officials' 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, assure 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 tinder Section 111 - DEFENSE AND SETTLEMENT herein. (E) Upon tender of a claim, the Authority shall be entitled, to complete access to the "covered parry'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 .� 5.,: •_:;C.. ._ 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 forma part of this Memorandum. of Coverage. S. 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: SECTION 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 fora 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 Creep, 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 maybe extended by agreement of the parties. respective recoveries. If there is no recovery in the proceedings conducted solely by the Authority, it shall bear the expenses thereof. SECTION IX- RESOLUTION OF COVERAGE DISPUTES THE PANTIES 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 cornered 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 nonbinding 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 Creel, 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 maybe 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 11 (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." 5. 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. Issued By. OLINGAUTHORITY M Date: Chief Adopted June 21, 2018 Amended July 1, 2018 P.O. Box 67* WalnutCreek, CA 94597 * (925) 943- 1100 * Fax (925) 946-4183 MUNICIPAL POOLING AUTHORITY PROGRAM YEAR JULY 112018 THROUGH JUNE 30,2019 ENDORSEMENT NUMBER 1 This Endorsement, effective 12:01 a.m., July 1, 2018, and expiring on 12:00 a.m., July 1, 2019 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 be 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 Phiole; City of Pittsburg; City of San Pablo; City of San Ramon; City of Walnu ,�,Creek Date Lin a Cox, Chief A i 'm* istra 4iWis ra IV C�&Icer MUNICIPAL POOLING AUTHORITY PROGRAM YEAR JULY 11 2018 THROUGH JUNE 30, 2019 ENDORSEMENT NUMBER 1 This Endorsement, effective 12:01 a.m., July 1, 2018, and expiring on 12:00 a.m, July 11.1 2 0 19 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 be 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 V11 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; Cray of Lafayette; City of Manteca; City of Martinez; Town of Moraga; City of Oakley; City or Orinda; City of .mole; City of Pittsburg,; CityqfSan Pablo; City of San Ramon; City of Waln q ,�..,Creek Date Linda Cox, Chief m�lstra.ive icer P.O. Box 57 Walnut Creek, CA 94597 * (925) 943- 1100 * Fax (925) 946-4 183 0) UIA 0 0 0 0 0 "'0 w v I 0 0 N 0 -.rA t4 0 0 17 ot-- V-4 Vu 0 (1) G) VA ta 60 A b cq