HomeMy WebLinkAboutAGMT - Foster City, City of (CalOpps Internet Employment Website Hosting) (Pending return)M<. i
' Y
;i
CALOPPS External Website Development, Support, and
Shared Hosting Services Agreement
This Agreement is made and entered into as of the Ist day of July 2018 by and between the City
of Seal Beach, hereinafter referred to as "CLIENT ", and the City of Foster City /Estero Municipal
Improvement District, a Municipal Corporation, hereinafter referred to as "CITY /DISTRICT ".
CLIENT and CITY /DISTRICT shall be referred to hereinafter as the "PARTIES."
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
A. That CLIENT has the need to secure expert consulting services to provide CLIENT
with a system of hosting an Internet employment website; and
B. That CITY /DISTRICT is specially experienced and qualified to perform the
specialized consulting services desired by the CLIENT and is willing to perform
such services which shall be known as CalOpps; and
C. That CLIENT has elected to engage the services of CITY /DISTRICT upon the
terms and conditions as hereinafter set forth.
AGREEMENT
Services, The services to be performed by CITY /DISTRICT under this Agreement
shall include those services set forth in Appendix A, which is, by this reference,
incorporated herein and made a part hereof as though it were fully set forth herein.
Performance of the work specified in said Appendix A is hereby made an obligation
of CITY /DISTRICT under this Agreement, subject to CLIENT's obligations set
forth in Appendix A. Any changes to the Agreement shall be made only upon the
mutual written agreement of the Parties.
2. Term; Termination. (a) The term of this Agreement shall commence upon the date
hereinabove written and continue for a period of twelve (12) months. At the end of
each twelve (12) month period, the Agreement shall automatically renew for an
additional twelve (12) month period, provided neither party terminates the
Agreement as specified herein.
(b) Neither Party shall be authorized to terminate this Agreement within the first
six (6) months after execution. Thereafter, either Party may terminate this
Agreement without cause by giving written notice not less than thirty (30) days
prior to the effective date of termination, which date shall be included in said notice.
In the event ol'such termination, CLIENT shall compensate CITY/DISTRICT for
MAC services, as defined below, rendered to the date of termination. If CLIENT
terminates the Agreement, there shall be no refund of the yearly fee paid for
Network Administration. Nothing herein contained shall be deemed a limitation
upon the right of either party to terminate this Agreement for cause, or otherwise to
exercise such rights or pursue such remedies as may accrue hereunder.
3. Compensation; Expenses: Payment. CITY /DISTRICT shall provide CalOpps
services to CLIENT pursuant to the following fee:
A. CALOPPS Software System: Initial Participation Fee: CLIENT paid the Initial
Participation Fee under a prior agreement and is not required to pay this fee
under this agreement.
B. Annual Fee
1. Three - Thousand Five - Hundred Dollars ($3,500.00) for System
Administration, Maintenance and Support, as defined in Appendix
A, for each subsequent year of contract renewal. The System
Administration, Maintenance and Support Fee shall be due on July
I of each year.
2. In year one of the Agreement, Client shall pay a prorated System
Administration, Maintenance and Support Fee, calculated as the
annual Fee divided by 365 and then multiplied by the days
remaining until the next July 1. This amount will be paid as the
System Administration, Maintenance and Support Fee, in addition
to the Initial Participation Fee, upon the execution of this
Agreement.
3. In all subsequent years, provided CLIENT does not terminate the
Agreement, the yearly System Administration, Maintenance and
Support Fee may be adjusted by the CITY /DISTRICT. Any
adjustment to the System Administration, Maintenance and Support
Fee will take effect on July 1, and requires notice to CLIENT on or
before June 1 of the year in which the adjustment will take effect.
C. Move /Add /Change ( "MAC ") Costs: For services authorized in writing by
and provided to CLIENT in excess of the normal System Administration,
Maintenance and Support covered by the annual fee, CLIENT shall pay in
year one (1) of the Agreement an hourly rate calculated based on ( "MAC
rate ") current positions salary with overhead rate. Overhead rate includes
benefits percentage allocation of salary and a general admin overhead rate
of 20 %.
D. In all subsequent years, the MAC rate shall be adjusted based on labor costs.
E. Payment for MAC shall be due thirty (30) days after billing for same.
F. CLIENT shall promptly review invoicing and notify CITY /DISTRICT of
any objection thereto in writing within ten (10) business days of receipt of
the invoice, and absent such objection, the invoice shall be deemed proper
and acceptable, and shall be due thirty (30) days after billing. Absent such
objection, unpaid fees shall bear interest from the date due at the maximum
rate then allowable by law.
4. Records. CITY /DISTRICT shall keep and maintain accurate records of all time
expended and costs and expenses incurred relating to services to be performed by
CITY /DISTRICT hereunder. Said records shall be available to CLIENT for review
and copying during regular business hours at CITY /DISTRICT's place of business
or as otherwise agreed upon by the Parties.
Authorization. This Agreement becomes effective when endorsed by both Parties
in the space provided below.
6. Reliance on Professional Skill of CITY /DISTRICT. CITY /DISTRICT represents
that it has the necessary professional skills to perform the services required and the
CLIENT shall rely on such skills of the CITY /DISTRICT to do and perform the
work. In performing services hereunder CITY /DISTRICT shall adhere to the
standards generally prevailing for the performance of expert consulting services
similar to those to be performed by CITY/DISTRICT hereunder.
Relationship of Parties. It is understood that the relationship of CITY /DISTRICT
to the CLIENT is that of an independent contractor and all persons working for or
under the direction of CITY /DISTRICT are its agents or employees and not agents
or employees of the CLIENT.
Defaults /Remedies. The occurrence of any one or more of the following events
shall constitute a material default or breach of this Agreement by CLIENT:
A. Failure by the CLIENT to make any payment of fees required under
this Agreement where such failure shall continue for a period of fifteen (15)
business days after written notice by CITY /DISTRICT.
B. Violation of any of the terms of Content Agreements as listed in
Appendix A to this Agreement.
In the event of a material default or breach by CLIENT, the CITY /DISTRICT may,
without limiting the CITY /DISTRICT'S rights or remedies, terminate CLIENT
access to CalOpps website and all other services provided herein.
9. Indemnity. CLIENT hereby agrees to defend, indemnify, and save harmless
CITY/District, its Council, boards, commissions, officers, employees and agents,
from and against any and all claims, suits, actions, liability, loss, damage, expense,
cost (including, without limitation, costs and fees of litigation) of every nature, kind
or description, which may be brought against, or suffered or sustained by,
CITY /DISTRICT, its Council, boards, commissions, officers, employees or agents
caused by, or alleged to have been caused by, negligence, intentional tortious act or
omission, or willful misconduct of CLIENT, its officers, employees or agents in
the performance of any services or work pursuant to this Agreement.
CITY/DISTRICT hereby agrees to defend, indemnify, and save harmless CLIENT,
its Council, boards, commissions, officers, employees and agents, from and against
any and all claims, suits, actions, liability, loss, damage, expense, cost (including,
without limitation, costs and fees of litigation) of every nature, kind or description,
which may be brought against, or suffered or sustained by, CLIENT, its Council,
boards, commissions, officers, employees or agents caused by, or alleged to have
been caused by, negligence, intentional tortious act or omission, or willful
misconduct of CITY /DISTRICT, its officers, employees or agents in the
performance of any services or work pursuant to this Agreement.
PATENT INFRINGEMENT
CITY /DISTRICT shall indemnify and defend the CLIENT in any actions against
the CLIENT to the extent that they are based on a claim of infringement for the use
of CalOpps related to this Agreement, provided that CITY /DISTRICT is notified
in writing of such claim. CITY /DISTRICT shall have the right to control the
defense of all such claims, lawsuits and other proceedings. CLIENT shall use its
best efforts to aid CITY /DISTRICT in conducting any such defense.
In case of a judgment adverse to the CLIENT or CITY /DISTRICT,
CITY/DISTRICT shall make reasonable efforts to purchase the right to continued
use of any infringing software on the CLIENT's behalf, or to modify CalOpps to
make it non - infringing.
10. Notice. All notices required by this Agreement shall be given to the
CITY /DISTRICT and CLIENT' in writing, by first class mail, postage prepaid,
addressed as follows:
CITY: City of Foster City
610 Foster City Boulevard
Foster City, CA 94404 -2299
Attention: HR Director
CLIENT: City of Seal Beach
211 Sth Street
Seal Beach, CA 90740
Attention: Human Resources
11. Non - Assignment. This Agreement is not assignable either in whole or in part.
12. Amendments. This Agreement may be amended or modified only by written
agreement signed by both Parties.
13. Validity. The invalidity in whole or in part of any provision of this Agreement shall
not void or affect the validity of any other provision of this Agreement.
14. Governing Law. This Agreement shall be governed by the laws of the State of
California and any suit or action initiated by either party shall be brought in the
County of San Mateo, California. In the event of litigation between the Parties
hereto to enforce any provision of the Agreement, the unsuccessful party will pay
the reasonable attorney's fees and expenses of litigation of the successful party.
15. Mediation. Should any dispute arise out of this Agreement, the Parties shall first
meet in mediation and attempt to reach a resolution with the assistance of a
mutually acceptable mediator. Neither party shall be permitted to file legal action
without first meeting at least once in mediation and making a good faith attempt to
reach a mediated resolution. The costs of the mediator, if any, shall be paid equally
by the Parties. If a mediated settlement is reached neither party shall be deemed
the prevailing party for purposes of the settlement, and each party shall bear its own
legal costs.
16. Entire Agreement. This Agreement, including its Appendix A and Appendix B,
comprises the entire Agreement between the PARTIES.
IN WITNESS WHEREOF, the PARTIES hereto have caused this Agreement to be executed on
the date first above written by their respective officers duly authorized in that behalf.
Dated:
Dated: lajll 114
Agency: City of Seal Beach
Dated: /I—/&- Zwlo
Dated:
CITY OF FOSTER CITY
A MunicivaJ Corporation
City Manager
ATTEST:
Priscilla 1t(m, City Clerk
PR rT A
C
(SI TUR & TITLE
Approved as to Form:
Crai A. Steele
PRINT N
SIGNATURE & TITLE)
City Attorney
City of Seal Beach
Appendix A
Maintain and Host www.CalOpps.org also known as "CalOpps"
Definitions
`Annual Administration, Maintenance and Software Support Fee' shall mean all work performed
on CalOpps as established in Section 2, Annual Maintenance by CITY /DISTRICT on behalf of
CalOpps.
`CITY /DISTRICT' shall mean the City of Foster City/Estero Municipal Improvement District.
`CLIENT' shall mean Participating Public Agency in CalOpps.
`City Developer' shall mean any custom development work performed by `CITY /DISTRICT' staff
using ColdFusion and other utility software to develop the CalOpps Website.
`3`d Party Developer' shall mean any developer contracted by CITY /DISTRICT to perform
maintenance or custom development work on behalf of the CITY /DISTRICT to support/maintain
the CalOpps application.
`Move /Add /Change /Costs ( "MAC ")' shall mean any CLIENT requests not covered in the annual
CalOpps services fees and defined in Section 1, Scope of Services.
`Project Manager' shall mean the CITY /DISTRICT'S Information Technology Manager or any
other CITY /DISTRICT staff member so designated by the CITY /DISTRICT'S Assistant City
Manager to define any project scope, project management, coordinate and manage
`CITY /DISTRICT' staff, and purchase necessary hardware or software.
`Software Support' shall mean the CITY /DISTRICT'S Human Resources Department staff or any
other CITY /DISTRICT staff so designated by the CITYIDISTRICT's Human Resources Director
to provide day to day support to CLIENT agencies during Normal Working Hours.
`System Administrator' shall mean the CITY /DISTRICT'S Human Resources Director or any
other CITY /DISTRICT staff so designated by the CITY /DISTRICT'S Human Resources Director
to provide administrative oversight of the CalOpps website including marketing strategies,
participant contracts, and CLIENT communication.
`Normal Working Hours' shall mean Monday through Friday, 7:00 a.m. to 6:00 p.m. PST or PDT
(depending on the time of year), excluding Holidays observed by CITY /DISTRICT.
Section 1:
Scope of Services
The CITY /DISTRICT will maintain a website such that each CLIENT is capable of performing
the following at CalOpps.org:
System Capabilities
Interacting with an Agency Profile Interface
Posting agency jobs
Performing application Review and Rating
Scheduling Interviews and Tests
Entering Applicant Scores
Creating and Tracking Notices to Applicants, including E -mail correspondence
Enabling a dedicated Applicant Tracking System
Searching Interest Card database
Storing and maintaining recruitment data in accordance with the CLIENT - specified
retention policy
Section 2:
Website Hosting / Support
CITY/DISTRICT's Obligation
CITY /DISTRICT will manage the hosting, maintenance and support of the Calopps
Application and website.
Support requests shall be provided during Normal Working Hours of CITY /DISTRICT
Staff.
CITY /DISTRICT will, subject to the limitations enumerated below, maintain 240 up time
for the website, but critical hours of operation will be `Normal Working Hours'.
CITY /DISTRICT shall provide CLIENT with a point of contact and contact procedures for
emergency service requests, including call escalation procedures.
CITY/DISTRICT shall respond to inquiries submitted to the website administrator within
four (4) hours of receipt, during normal business hours.
CITY /DISTRICT shall complete maintenance procedures outside of Normal Working
Hours to minimize downtime. When planned maintenance is scheduled, CITY /DISTRICT
staff will give CLIENT's contact person, via e -mail, 48 hours notice.
Emergency or immediate maintenance may require the CalOpps server to be down during
Normal Working Hours. The CITY /DISTRICT will attempt to minimize any disruptions
in service to CLIENT website. CITY /DISTRICT will not be responsible for loss of
business to the CLIENT site due to circumstances outside of the CITY /DISTRICT'S direct
control. Examples of such circumstances include, but are not limited to, Internet outages,
unavailability of the server to users caused by the CITY /DISTRICT'S Internet Service
Provider, damage to telecommunications infrastructure not caused by the
CITY /DISTRICT, or major hardware failure of CalOpps servers.
Annual System Administration, Maintenance and Support
Includes:
Services to allow CalOpps availability via the Internet. Hardware Support Costs
Software Assurance for non -FC software
• 25 hours per quarter of MAC, Report requests from City Developer
• 120 hours per quarter of Support Services from Software Support and System
Administrator
• Normal Operating Expenses (i.e.; copy, marketing /trade shows, consultant fees as
needed)
CLIENT's Obligation
CLIENT shall provide to the CITY/DISTRICT a designated contact Administrator "the
CLIENT Administrator ". All communications from the CITY /DISTRICT to CLIENT will
be through the CLIENT'S Administrator, or, in his /her absence, a designated alternate.
The CLIENT'S Administrator will be responsible for minor maintenance work, including
but not limited to, setting up and maintaining CLIENT's agency profile interface. The
CLIENT'S Administrator shall disseminate all communication from the CITY /DISTRICT
to the CLIENT as necessary.
CLIENT shall meet all deadlines for review of date timelines and database information.
CLIENT shall not hold the CITY /DISTRICT liable for any database records deleted from
system due to missed deadlines for review and download of database records.
Ownership of Hardware / Non CITY/DISTRICT Licensed Software
CITY /DISTRICT shall be responsible for providing /procuring the necessary infrastructure
to support the CalOpps Application and website, including but not limited to hosting the
website on City -owned assets or under a Managed Services Agreement with a Yd party
provider chosen at the CITY/DISTRICT's sole discretion). CITY /DISTRICT shall obtain
sufficient licenses for all software in use by all participating public agencies (CLIENTS)
and public visitors using the CalOpps site. CLIENT's initial costs will allow the
CITY /DISTRICT to invest in the technology and /or provide sufficient capacity to host
CLIENT's data under the Managed Services Agreement under this Agreement.
CITY /DISTRICT shall obtain and use an annual maintenance contract to fund maintenance
and replacement costs for the hardware and software.
Ownership of CITY/DISTRICT Developed Software
All Cold Fusion code and database structure developed, as part of this Agreement is the
property of the CITY /DISTRICT and shall be retained by CITY /DISTRICT if this
Agreement is terminated. CLIENT is not permitted to use the ideas and code developed
by CITY/DISTRICT for its own use.
All data entered into the database is the property of the CLIENT. CITY/DISTRICT shall
have no right to use data stored and /or maintained in the CLIENT's database for any
purpose other than testing as part of the development or maintenance of the web site as
provided by this Agreement.
Domain Name
The CITY/DISTRICT owns and must maintain registration of the domain name
CalOpps.org at all times. The CITY /DISTRICT shall be listed as the `technical contact'
for said domain name. The IP address assigned to CLIENT domain shall be owned by the
CITY /DISTRICT and may be changed at anytime at the CITY /DISTRICT'S discretion.
CITY /DISTRICT shall maintain the domain registration and IP address at no additional
cost to CLIENT.
Security Agreements
An administrator password will be provided to the Administrator. In addition, CLIENT
shall be assigned passwords to update and access the site. It is the responsibility of the
CLIENT to keep this information confidential. If any damage is done to the website via
an assigned account, it is the responsibility of the CLIENT.
CITY /DISTRICT shall abide by the data privacy policy as established on the CalOpps
website CITY /DISTRICT shall use commercially reasonable best efforts to ensure the
security and integrity of CLIENT's data, and shall use its best efforts to notify CLIENT of
any known or suspected security breach within four business hours of occurrence of such
breach.
Content Agreements
CLIENT shall be responsible for all content posted to the website by its authorized users.
CLIENT shall use the website only for the stated purposes in Section 1 of Appendix A.
CLIENT agrees to use its best efforts to ensure its content posted on the CalOpps site will
not violate any intellectual property rights, will not resell the services set forth in this
Agreement, or will not engage in any illegal or fraudulent activities.
CLIENT shall not post any content that is (covered above) obscene, defamatory, harassing,
abusive or threatening. CLIENT shall not be deemed to have violated this provision if
CLIENT determined in good faith, after consulting legal counsel, that such content was not
obscene, defamatory, harassing, abusive or threatening.
CITY /DISTRICT will cooperate fully with any law enforcement agency in connection with
any and all illegal activities occurring on or through this service.
Appendix B
INSURANCE
(a) WORKERS' COMPENSATION. During the term of this Agreement,
CITY/DISTRICT shall fully comply with the terms of the law of California concerning
workers' compensation,
(b) GENERAL LIABILITY INSURANCE. CITY /DISTRICT shall obtain at its sole
cost and keep in full force and effect during the term of this agreement commercial general
liability insurance in the amount of $1,000,000 per occurrence for bodily injury, personal
injury, and property damage. Said insurance shall operate as primary insurance. Except as
provided in Section 9 (Indemnity) of this agreement, no other insurance affected by the
CLIENT or other named insureds will be called upon to cover a loss covered thereunder.
(c) AUTOMOBILE LIABILITY INSURANCE. CITY /DISTRICT shall obtain at
its sole cost and keep in full force and effect during the term of this agreement automobile
liability insurance in the amount of $1,000,000 per occurrence covering bodily injury and
property damage per occurence. Said insurance shall operate as primary insurance for
City/District employees. No other insurance effected by the CLIENT or other named insureds
will be called upon to cover a loss covered thereunder.
(d) CERTIFICATES OF INSURANCE. CITY /DISTRICT shall provide that no
cancellation, expiration, or nonrenewal will be made during the term of this agreement,
without thirty (30) calendar days advance written notice to the Director of Human Resources.
(e) SELF - INSURANCE CERTIFICATION. It is understood that CITY /DISTRICT
may be insured for one or more of the above insurance coverages by a self - insured program,
and that evidence of coverage from such program, in lieu of commercial insurance, shall be
satisfactory, provided all other conditions of coverage are satisfied.
CALOPPS External Website Development, Support, and
Shared Hosting Services Agreement
This Agreement is made and entered into as of the I st day of July 2018 by and between the City
of Seal Beach, hereinafter referred to as "CLIENT ", and the City of Foster City /Estero Municipal
Improvement District, a Municipal Corporation, hereinafter referred to as "CITY /DISTRICT ".
CLIENT and CITY /DISTRICT shall be referred to hereinafter as the "PARTIES."
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
A. That CLIENT has the need to secure expert consulting services to provide CLIENT
with a system of hosting an Internet employment website; and
B. That CITY /DISTRICT is specially experienced and qualified to perform the
specialized consulting services desired by the CLIENT and is willing to perform
such services which shall be known as CalOpps; and
C. That CLIENT has elected to engage the services of CITY /DISTRICT upon the
terms and conditions as hereinafter set forth.
AGREEMENT
Services. The services to be performed by CITY /DISTRICT under this Agreement
shall include those services set forth in Appendix A, which is, by this reference,
incorporated herein and made a part hereof as though it were fully set forth herein.
Performance of the work specified in said Appendix A is hereby made an obligation
of CITY /DISTRICT under this Agreement, subject to CLIENT's obligations set
forth in Appendix A. Any changes to the Agreement shall be made only upon the
mutual written agreement of the Parties.
2. Term; Termination. (a) The term of this Agreement shall commence upon the date
hereinabove written and continue for a period of twelve (12) months. At the end of
each twelve (12) month period, the Agreement shall automatically renew for an
additional twelve (12) month period, provided neither party terminates the
Agreement as specified herein.
(b) Neither Party shall be authorized to terminate this Agreement within the first
six (6) months after execution. Thereafter, either Party may terminate this
Agreement without cause by giving written notice not less than thirty (30) days
prior to the effective date of termination, which date shall be included in said notice.
In the event of such termination, CLIENT shall compensate CITY /DISTRICT for
MAC services, as defined below, rendered to the date of termination. If CLIENT
terminates the Agreement, there shall be no refund of the yearly fee paid for
Network Administration. Nothing herein contained shall be deemed a limitation
upon the right of either party to terminate this Agreement for cause, or otherwise to
exercise such rights or pursue such remedies as may accrue hereunder.
3. Compensation; Expenses: Payment. CITY /DISTRICT shall provide CalOpps
services to CLIENT pursuant to the following fee:
A. CALOPPS Software System: Initial Participation Fee: CLIENT paid the Initial
Participation Fee under a prior agreement and is not required to pay this fee
under this agreement.
B. Annual Fee
1. Three- Thousand Five - Hundred Dollars ($3,500.00) for System
Administration, Maintenance and Support, as defined in Appendix
A, for each subsequent year of contract renewal. The System
Administration, Maintenance and Support Fee shall be due on July
I of each year.
2. In year one of the Agreement, Client shall pay a prorated System
Administration, Maintenance and Support Fee, calculated as the
annual Fee divided by 365 and then multiplied by the days
remaining until the next July 1. This amount will be paid as the
System Administration. Maintenance and Support Fee, in addition
to the Initial Participation Fee, upon the execution of this
Agreement.
3. In all subsequent years, provided CLIENT does not terminate the
Agreement, the yearly System Administration, Maintenance and
Support Fee may be adjusted by the CITY /DISTRICT. Any
adjustment to the System Administration, Maintenance and Support
Fee will take effect on July 1, and requires notice to CLIENT on or
before June 1 of the year in which the adjustment will take effect.
C. Move /Add /Change ( "MAC ") Costs: For services authorized in writing by
and provided to CLIENT in excess of the normal System Administration,
Maintenance and Support covered by the annual fee, CLIENT shall pay in
year one (1) of the Agreement an hourly rate calculated based on ( "MAC
rate ") current positions salary with overhead rate. Overhead rate includes
benefits percentage allocation of salary and a general admin overhead rate
of 20 %.
D. In all subsequent years, the MAC rate shall be adjusted based on labor costs.
E. Payment for MAC shall be due thirty (30) days after billing for same.
F. CLIENT shall promptly review invoicing and notify CITY /DISTRICT of
any objection thereto in writing within ten (10) business days of receipt of
the invoice, and absent such objection, the invoice shall be deemed proper
and acceptable, and shall be due thirty (30) days after billing. Absent such
objection, unpaid fees shall bear interest from the date due at the maximum
rate then allowable by law.
4. Records. CITY /DISTRICT shall keep and maintain accurate records of all time
expended and costs and expenses incurred relating to services to be performed by
CITY /DISTRICT hereunder. Said records shalt be available to CLIENT for review
and copying during regular business hours at CITY /DISTRICT'S place of business
or as otherwise agreed upon by the Parties.
Authorization. This Agreement becomes effective when endorsed by both Parties
in the space provided below.
6. Reliance on Professional Skill of CITY /DISTRICT. CITY /DISTRICT represents
that it has the necessary professional skills to perform the services required and the
CLIENT shall rely on such skills of the CITY/DISTRICT to do and perform the
work. In performing services hereunder CITY /DISTRICT shall adhere to the
standards generally prevailing for the performance of expert consulting services
similar to those to be performed by CITY /DISTRICT hereunder.
Relationship of Parties. It is understood that the relationship of CITY /DISTRICT
to the CLIENT is that of an independent contractor and all persons working for or
under the direction of CITY /DISTRICT are its agents or employees and not agents
or employees of the CLIENT.
8. Defaults /Remedies. The occurrence of any one or more of the following events
shall constitute a material default or breach of this Agreement by CLIENT:
A. Failure by the CLIENT to make any payment of fees required under
this Agreement where such failure shall continue for a period of fifteen (15)
business days after written notice by CITY /DISTRICT.
B. Violation of any of the terms of Content Agreements as listed in
Appendix A to this Agreement.
In the event of a material default or breach by CLIENT, the CITY /DISTRICT may,
without limiting the CITY /DISTRICT's rights or remedies, terminate CLIENT
access to CalOpps website and all other services provided herein.
9. Indemnity. CLIENT hereby agrees to defend, indemnify, and save harmless
CITY /District, its Council, boards, commissions, officers, employees and agents,
from and against any and all claims, suits, actions, liability, loss, damage, expense,
cost (including, without limitation, costs and fees of litigation) of every nature, kind
or description, which may be brought against, or suffered or sustained by,
CITY /DISTRICT, its Council, boards, commissions, officers, employees or agents
caused by, or alleged to have been caused by, negligence, intentional tortious act or
omission, or willful misconduct of CLIENT, its officers, employees or agents in
the performance of any services or work pursuant to this Agreement.
CITY /DISTRICT hereby agrees to defend, indemnify, and save harmless CLIENT,
its Council, boards, commissions, officers, employees and agents, from and against
any and all claims, suits, actions, liability, loss, damage, expense, cost (including,
without limitation, costs and fees of litigation) of every nature, kind or description,
which may be brought against, or suffered or sustained by, CLIENT, its Council,
boards, commissions, officers, employees or agents caused by, or alleged to have
been caused by, negligence, intentional tortious act or omission, or willful
misconduct of CITY /DISTRICT, its officers, employees or agents in the
performance of any services or work pursuant to this Agreement.
PATENT INFRINGEMENT
CITY /DISTRICT shall indemnify and defend the CLIENT in any actions against
the CLIENT to the extent that they are based on a claim of infringement for the use
of CalOpps related to this Agreement, provided that CITY/DISTRICT is notified
in writing of such claim. CITY /DISTRICT shall have the right to control the
defense of all such claims, lawsuits and other proceedings. CLIENT shall use its
best efforts to aid CITY /DISTRICT in conducting any such defense.
In case of a judgment adverse to the CLIENT or CITY /DISTRICT,
CITY /DISTRICT shall make reasonable efforts to purchase the right to continued
use of any infringing software on the CLIENT's behalf, or to modify CalOpps to
make it non - infringing.
10. Notice. All notices required by this Agreement shall be given to the
CITY /DISTRICT and CLIENT in writing, by first class mail, postage prepaid,
addressed as follows:
CITY: City of Foster City
610 Foster City Boulevard
Foster City, CA 94404 -2299
Attention: HR Director
CLIENT: City of Seal Beach
21 1 8th Street
Seal Beach, CA 90740
Attention: Human Resources
11. Non -Assi ng ment. This Agreement is not assignable either in whole or in part.
12. Amendments. This Agreement may be amended or modified only by written
agreement signed by both Parties.
13. Validitv. The invalidity in whole or in part of any provision of this Agreement shall
not void or affect the validity of any other provision of this Agreement.
14. Governing Law. This Agreement shall be governed by the laws of the State of
California and any suit or action initiated by either party shall be brought in the
County of San Mateo, California. In the event of litigation between the Parties
hereto to enforce any provision of the Agreement, the unsuccessful party will pay
the reasonable attorney's fees and expenses of litigation of the successful party.
15. Mediation. Should any dispute arise out of this Agreement, the Parties shall first
meet in mediation and attempt to reach a resolution with the assistance of a
mutually acceptable mediator. Neither party shall be permitted to file legal action
without first meeting at least once in mediation and making a good faith attempt to
reach a mediated resolution. The costs of the mediator, if any, shall be paid equally
by the Parties. If a mediated settlement is reached neither party shall be deemed
the prevailing party for purposes of the settlement, and each party shall bear its own
legal costs.
16. Entire Agreement This Agreement, including its Appendix A and Appendix B,
comprises the entire Agreement between the PARTIES.
IN WITNESS WHEREOF, the PARTIES hereto have caused this Agreement to be executed on
the date first above written by their respective officers duly authorized in that behalf.
CITY OF FOSTER CITY
A Municipal Corporation
Dated:
Kevin M. Miller, City Manager
ATTEST:
Dated:
Priscilla Tam, City Clerk
Agency: City of Seal Beach
p
Dated:
PR T A
c
(sI TUR V & TITLE
Approved as to Form:
Dated:
Craia A. Steele
PRI T N
(416KATURE & TITLE)
City Attorney
City of Seal Beach
Appendix A
Maintain and Host www.CalOpps.org also known as "CalOpps"
Definitions:
'Annual Administration, Maintenance and Software Support Fee' shall mean all work performed
on CalOpps as established in Section 2, Annual Maintenance by CITY /DISTRICT on behalf of
CalOpps.
`CITY /DISTRICT' shall mean the City of Foster City/Estero Municipal Improvement District.
'CLIENT' shall mean Participating Public Agency in CalOpps
'City Developer' shall mean any custom development work performed by 'CITY/DISTRICT' staff
using ColdFusion and other utility software to develop the CalOpps Website.
'3` Party Developer' shall mean any developer contracted by CITY /DISTRICT to perform
maintenance or custom development work on behalf of the CITY /DISTRICT to support/maintain
the CalOpps application.
'Move /Add /Change /Costs ( "MAC ")' shall mean any CLIENT requests not covered in the annual
CalOpps services fees and defined in Section 1, Scope of Services.
'Project Manager' shall mean the CITY /DISTRICT'S Information Technology Manager or any
other CITY /DISTRICT staff member so designated by the CITY /DISTRICT'S Assistant City
Manager to define any project scope, project management, coordinate and manage
'CITY /DISTRICT' staff, and purchase necessary hardware or software.
'Software Support' shall mean the CITY /DISTRICT'S Human Resources Department staff or any
other CITY /DISTRICT staff so designated by the CITY /DISTRICT'S Human Resources Director
to provide day to day support to CLIENT agencies during Normal Working Hours.
'System Administrator' shall mean the CITY /DISTRICT's Human Resources Director or any
other CITY /DISTRICT staff so designated by the CITY /DISTRICT'S Human Resources Director
to provide administrative oversight of the CalOpps website including marketing strategies,
participant contracts, and CLIENT communication.
'Normal Working Hours' shall mean Monday through Friday, 7:00 a.m. to 6:00 p.m. PST or PDT
(depending on the time of year), excluding Holidays observed by CITY /DISTRICT.
Section 1:
Scope of Services
The CITY/DISTRICT will maintain a website such that each CLIENT is capable of performing
the following at CalOpps.org:
System Capabilities
Interacting with an Agency Profile Interface
Posting agency jobs
Performing application Review and Rating
Scheduling Interviews and Tests
Entering Applicant Scores
Creating and Tracking Notices to Applicants, including E -mail correspondence
Enabling a dedicated Applicant Tracking System
Searching Interest Card database
Storing and maintaining recruitment data in accordance with the CLIENT - specified
retention policy
Section 2:
Website Hosting / Support
CITY/DISTRICT's Obligation
CITY /DISTRICT will manage the hosting, maintenance and support of the Calopps
Application and website.
Support requests shall be provided during Normal Working Hours of CITY /DISTRICT
Staff.
CITY /DISTRICT will, subject to the limitations enumerated below, maintain 247 up time
for the website, but critical hours of operation will be `Normal Working Hours'.
CITY /DISTRICT shall provide CLIENT with a point of contact and contact procedures for
emergency service requests, including call escalation procedures.
CITY /DISTRICT shall respond to inquiries submitted to the website administrator within
four (4) hours of receipt, during normal business hours.
CITY /DISTRICT shall complete maintenance procedures outside of Normal Working
Hours to minimize downtime. When planned maintenance is scheduled, CITY /DISTRICT
staff will give CLIENT's contact person, via e -mail, 48 hours notice.
Emergency or immediate maintenance may require the Calopps server to be down during
Normal Working Hours. The CITY /DISTRICT will attempt to minimize any disruptions
in service to CLIENT website. CITY /DISTRICT will not be responsible for loss of
business to the CLIENT site due to circumstances outside of the CITY/DISTRICT's direct
control. Examples of such circumstances include, but are not limited to, Internet outages,
unavailability of the server to users caused by the CITY /DISTRICT'S Internet Service
Provider, damage to telecommunications infrastructure not caused by the
CITY /DISTRICT, or major hardware failure of CalOpps servers.
Annual System Administration, Maintenance and Support
Includes:
• Services to allow Calopps availability via the Internet. Hardware Support Costs
• Software Assurance for non -FC software
• 25 hours per quarter of MAC, Report requests from City Developer
• 120 hours per quarter of Support Services from Software Support and System
Administrator
• Normal Operating Expenses (i.e.; copy, marketing /trade shows, consultant fees as
needed)
CLIENT's Obligation
CLIENT shall provide to the CITY /DISTRICT a designated contact Administrator "the
CLIENT Administrator ". All communications from the CITY/DISTRICT to CLIENT will
be through the CLIENT'S Administrator, or, in his /her absence, a designated alternate.
The CLIENT'S Administrator will be responsible for minor maintenance work, including
but not limited to, setting up and maintaining CLIENT's agency profile interface. The
CLIENT'S Administrator shall disseminate all communication from the CITY /DISTRICT
to the CLIENT as necessary.
CLIENT shall meet all deadlines for review of date timelines and database information.
CLIENT shall not hold the CITY /DISTRICT liable for any database records deleted from
system due to missed deadlines for review and download of database records.
Ownership of Hardware / Non CITY /DISTRICT Licensed Software
CITY /DISTRICT shall be responsible for providing /procuring the necessary infrastructure
to support the CalOpps Application and website, including but not limited to hosting the
website on City -owned assets or under a Managed Services Agreement with a 3 "' party
provider chosen at the CITY /DISTRICT'S sole discretion). CITY /DISTRICT shall obtain
sufficient licenses for all software in use by all participating public agencies (CLIENTS)
and public visitors using the CatOpps site. CLIENT's initial costs will allow the
CITY /DISTRICT to invest in the technology and /or provide sufficient capacity to host
CLIENT's data under the Managed Services Agreement under this Agreement.
CITY /DISTRICT shall obtain and use an annual maintenance contract to fund maintenance
and replacement costs for the hardware and software.
Ownership of CITY/DISTRICT Developed Software
All Cold Fusion code and database structure developed, as part of this Agreement is the
property of the CITY /DISTRICT and shall be retained by CITY /DISTRICT if this
Agreement is terminated. CLIENT is not permitted to use the ideas and code developed
by CITY/DISTRICT for its own use.
All data entered into the database is the property of the CLIENT. CITY/DISTRICT shall
have no right to use data stored and /or maintained in the CLIENT's database for any
purpose other than testing as part of the development or maintenance of the web site as
provided by this Agreement.
Domain Name
The CITY /DISTRICT owns and must maintain registration of the domain name
CalOpps.org at all times. The CITY /DISTRICT shall be listed as the `technical contact'
for said domain name. The IP address assigned to CLIENT domain shall be owned by the
CITY /DISTRICT and may be changed at anytime at the CITY /DISTRICT's discretion.
CITY /DISTRICT shall maintain the domain registration and LP address at no additional
cost to CLIENT.
Security Agreements
An administrator password will be provided to the Administrator. In addition, CLIENT
shall be assigned passwords to update and access the site. It is the responsibility of the
CLIENT to keep this information confidential. If any damage is done to the website via
an assigned account, it is the responsibility of the CLIENT.
CITY /DISTRICT shall abide by the data privacy policy as established on the CalOpps
website CITY /DISTRICT shall use commercially reasonable best efforts to ensure the
security and integrity of CLIENT's data, and shall use its best efforts to notify CLIENT of
any known or suspected security breach within four business hours of occurrence o1'such
breach.
Content Agreements
CLIENT shall be responsible for all content posted to the website by its authorized users.
CLIENT shall use the website only for the stated purposes in Section 1 of Appendix A.
CLIENT agrees to use its best efforts to ensure its content posted on the CalOpps site will
not violate any intellectual property rights, will not resell the services set forth in this
Agreement, or will not engage in any illegal or fraudulent activities.
CLIENT shall not post any content that is (covered above) obscene, defamatory, harassing,
abusive or threatening. CLIENT shall not be deemed to have violated this provision if
CLIENT determined in good faith, after consulting legal counsel, that such content was not
obscene, defamatory, harassing, abusive or threatening.
CITY /DISTRICT will cooperate fully with any law enforcement agency in connection with
any and all illegal activities occurring on or through this service.
Appendix B
INSURANCE
(a) WORKERS' COMPENSATION. During the term of this Agreement.
CITY /DISTRICT shall fully comply with the terms of the law of California concerning
workers' compensation,
(b) GENERAL LIABILITY INSURANCE. CITY /DISTRICT shall obtain at its sole
cost and keep in full force and effect during the term of this agreement commercial general
liability insurance in the amount of $1,000.000 per occurrence for bodily injury, personal
injury, and property damage. Said insurance shall operate as primary insurance. Except as
provided in Section 9 (Indemnity) of this agreement, no other insurance affected by the
CLIENT or other named insureds will be called upon to cover a loss covered thereunder.
(c) AUTOMOBILE LIABILITY INSURANCE. CITY /DISTRICT shall obtain at
its sole cost and keep in full force and effect during the tern of this agreement automobile
liability insurance in the amount of $1,000,000 per occurrence covering bodily injury and
property damage per occurence. Said insurance shall operate as primary insurance for
City/District employees. No other insurance effected by the CLIENT or other named insureds
will be called upon to cover a loss covered thereunder.
(d) CERTIFICATES OF INSURANCE. CITY /DISTRICT shall provide that no
cancellation, expiration, or nonrenewal will be made during the term of this agreement,
without thirty (30) calendar days advance written notice to the Director of Human Resources.
(e) SELF - INSURANCE CERTIFICATION. it is understood that CITY/DISTRICT
may be insured for one or more of the above insurance coverages by a self- insured program,
and that evidence of coverage from such program, in lieu of commercial insurance, shall be
satisfactory, provided all other conditions of coverage are satisfied.
' ox E &ma
MEMORA \'DUM OF COVERAGE —LIABILITY
Issue Date: July 1, 2018
MEMORANDUM OF COVERAGE -- LIABILITY
DECLARATIONS
ENTITY COVERED: Pooled Liability Assurance Network Joint Powers Authority as
per Endorsement No. I
MAILING ADDRESS: 1750 Creekside Oaks Drive, Suite 200
Sacramento CA 95833
COVERAGE PERIOD: FROM: 7/1/2018 12:01 A.M., Pacific Time
TO: 7/1/2019 12:01 A.M., Pacific Time
LIMIT OF COVERAGE: $9 000,000 per Occurrence less Covered Party's Retained Limit
Listed in Endorsement No. 2. With respect to Employee Benefit Plan Administration
Liability, the LIMIT OF COVERAGE is 5250,000 per Occurrence.
PLAN JI'A MEMORANDUM OF COVERAGE EFFECTIVE_IULY 1. 2019
In consideration for the payment of the premium, PLAN JPA and the ENTITIES
COVERED which are designated in ENDORSEMENT No I to this Memorandum agree
as follows:
�Ci7►� Q ] �f�[f►lYYC17►6�
Words and phrases in bold print within this Memorandum (including any and all
endorsements hereto and forming a part hereof) have special meanings, as defined below:
A. PLAN JPA ( "PLAN ") means the Pooled Liability Assurance Network Joint
Powers Authority.
B. Aircraft means a vehicle designed for the transport of persons or property
principally in the air.
C. Bodily Injury means bodily injury, sickness or disease sustained by a person,
including death resulting from any of these at any time.
D. Covered Party means any person, entity, or other organization constituting a
Covered Party under SECTION 11 - WHO IS A COVERED PARTY.
E. Coverage Period means the COVERAGE PERIOD that is designated in the
DECLARATIONS to this Memorandum.
Dam means any artificial barrier, together with appurtenant works, which does
or may impound or divert water, and which:
Is twenty -five (25) feet or more in height fi-om the natural bed of the
stream or watercourse at the downstream toe of the barrier to the
maximum possible water storage elevation;
2. Is twenty -five (25) feet or more in height from the lowest elevation of
the outside limit of the barrier, if it is not across a stream channel or
watercourse, to the maximum possible water storage elevation; or
3. Has an impounding capacity of fifty (50) acre -feet or more.
However, the following shall not be considered a Dam:
Any artificial barrier, together with appurtenant works, which does or
may impound or divert water, but which is not in excess of six (6) feet
in height, regardless of storage capacity;
PLANIPA MEMORANDUh10PCOVERACE HFFECTTVE JULY I, gas
2. Any artificial barrier, together with appurtenant works, which does or
may impound or divert water, but which has a storage capacity not in
excess of fifteen (15) acre -feet, regardless of height;
3. Any obstruction in a canal used to raise or lower water therein or divert
water therefrom;
4. Any levee, including but not limited to a levee on the bed of a natural
lake, the primary purpose of which levee is to control floodwaters;
5. Any railroad fill or structure;
6. Any tank constructed of steel or concrete or of a combination thereof;
7. Any tank elevated above the ground;
Any barrier which is not across a stream channel, watercourse or
natural drainage area, and which has the principal purpose of
impounding water for agricultural use; and
9. Any obstruction in the channel of a stream or watercourse which is
fifteen (15) feet or less in height from the lowest elevation of the
obstruction and which has the single purpose of spreading water within
the bed of the stream or watercourse upstream from the construction for
percolation underground.
Regardless of the language of the above definition, however, no structure
specifically exempted from jurisdiction by the State of California Department
of Water Resources, Division of Safety of Dams shall be considered a "Dam."
unless such structure is under thejurisdiction of an agency of the federal
government.
G. Damages means monetary sums paid or awarded as compensation for Bodily
Injury, Property Damage, Personal Injury, Public Officials Errors and
Omissions Injury, or Employee Benefit Plan Administration Liability
covered by this Memorandum.
PLAN JPA MEMORANDUM OF COVERAGE EFFECTIVE JULY 1.2018
Damages does not include:
Any monetary sum paid or awarded as or for restitution;
Any monetary sum paid or awarded as or for fees (except for plaintiff's
attorneys tees), fines, sanctions, penalties, punitive damages or
exemplary damages;
Any monetary sum paid or awarded as or for double, treble or any other
mathematical multiplier of Damages;
4. Any costs of complying with equitable or other injunctive relief;
Any monetary sum paid or awarded as or for any loss, cost or expense
arising out of any:
a. Request, demand or order that any Covered Party or others test
for, monitor, clean up, remove, contain, treat, detoxify or
neutralize, or in any way respond to or assess the effects of
Pollutants; or
b. Claim or suit by or on behalf of a government authority because
of testing for, monitoring, cleaning up, removing, containing,
treating, detoxifying or neutralizing, or in any way responding to
or assessing the effects of Pollutants;
6. Any monetary sum paid or awarded to satisfy any obligation of a
Covered Party (or any insurance company as a Covered Party's
insurer) under any workers' compensation, disability benefits or
unemployment compensation law or any similar law.
Any premium, employer or employee contribution, fee, tax, assessment,
or other amount, to enroll or maintain the enrollment of any employee
in any Employee Benefit Plan
H. Self Insured Retention means the retention limitsthat are designated in
ENDORSEMENT No 2 to this Memorandum.
Defense Costs means:
I . All fees (including attorney's fees), costs (including court costs), and
expenses incurred in connection with the adjustment, investigation,
PLASIPA MEMORANDUNIOFCOVHRACE EFFECTIVE JULY 1,2019
defense and appeal of a claim or suit to which this Memorandum
applies; and
Interest on anyjudgment or portion thereof (accruing after entry of
judgment) to which this Memorandum applies.
However, Defense Costs does not include any of the following:
Any office expenses of PLAN or a Covered Party;
2. Any salaries of employees of PLAN or a Covered Party;
3. Any salaries of or other monetary payments (including but not
limited to per diems, honorariums or reimbursements) to elected
or appointed officials of PLAN or a Covered Party;
4. Any fees or expenses of any claims administrator engaged by a
Covered Party; or
5. Any fees or expenses incurred for services of any individual or
entity (including any attorney, city attorney, city engineer, or
city manager) unless such services are provided pursuant to the
express written consent of PLAN.
Employee Benefit Plan Administration Liability means liability of a
Covered Party arising from any act, error, or omission in Employee Benefit
Plan Administration. For purposes of this definition:
Employee Benefit Plan means only the following employee benefit
plans:
I . Educational tuition reimbursement plans
2. Group plans for life, health, dental, disability, automobile,
homeowners, or legal expense insurance
3. Pension plans
4. Salary Reduction plans under Internal Revenue Code Section
457, including any amendments
5. Pre -tax medical and dependent care savings plans
PLANJPA MEMORANDUM OF COVERAGE EFFEC11VE_JULY 1.2018
6. Social security system benefits
Workers Compensation and unemployment insurance benefits
8. California Public Employees Retirement System benefits
Administration means only the following administrative functions,
with respect to an Employee Benefit Plan:
a. Explaining or interpreting an Employee Benefit Plan
b. Calculating or communicating benefits and costs for an
Employee Benefit Plan
c. Enrolling participants, or tenninating participation, in an
Employee Benefit Plan
d. Estimating or projecting future Employee Benefit Plan values
e. Handling or processing of Employee Benefit Plan records
Employee Benefit Administration Liability shall not include:
a. any liability arising out of an insufficiency of funds to meet any
obligation under any Employee Benefit Plan.
b. any liability arising out of act, error, or omission by any
Covered Party to effect and maintain insurance or bonding for
plan property or assets of any Employee Benefit Plan.
C. any liability arising out of any representations made at any time
in relation to the price or value of any security, debt, bank
deposit; or similar financial instrument or investment, including,
but not limited to, advice given to any person to participate in
any Employee Benefit Plan.
d. any liability for premiums, employer or employee contributions,
fees, taxes, assessments, or other amounts, to enroll or maintain
the enrollment of any employee(s) in any Employee Benefit
Plan.
PLAX JPA MEMORANDUM OF COVERAGE EFFECTWE JULY 1, 20IN
K. Entity means:
The ENTITY COVERED which is designated in
ENDORSEMENT No I to this Memorandum; and
2. Any commission, agency, district, authority, board, or similar body, the
governing board of which is exclusively comprised of elected or
appointed officials, employees, or volunteers (whether or not
compensated) of the ENTITY COVERED which is designated in
ENDORSEMENT No t to this Memorandum
L. Insurance means insurance or coverage other than the coverage afforded by
this Memorandum, including but not limited to the following:
Valid and collectible insurance (whether stated to be primary, pro rata,
contributory, excess, contingent, or otherwise);
2. Any self - funding mechanism, including but not limited to a joint
powers authority (whether stated to be primary, pro rata, contributory,
excess, contingent, or otherwise); and
3_ Specific self - insurance (whether stated to be primary, pro rata,
contributory, excess, contingent or otherwise).
M. Limit of Coverage means the LIMIT OF COVERAGE that is designated in
the DECLARATIONS to this Memorandum.
N. Memorandum means this MEMORANDUM OF COVERAGE --
LIABILITY, including the DECLARATIONS and all endorsements hereto.
O. Nuclear Material means source material, special nuclear material or byproduct
material. "Source Material," "Special Nuclear Material' and 'Byproduct
Material' have the meanings given them in the Atomic Energy Act of 1954 or
in any law amendatory thereof.
Occurrence means:
With respect to Bodily Injury, an accident, including continuous or
repeated exposure to substantially the same general harmful conditions,
during the Coverage Period.
PLAN IPA MEMORANDUM OF COVERAGF. EEPFUIVE _JULY L 2018
2. With respect to Property Damage, an accident, including continuous
or repeated exposure to substantially the same general harmful
conditions, during the Coverage Period.
3. With respect to Personal Injury, the commission of one of the
offenses listed in the definition of Personal Injury during the
Coverage Period. All such acts committed against any individual
during the Coverage Period shall be deemed to be one Occurrence.
4. With respect to Public Officials Errors and Omissions Injury, the
commission of one of the acts listed in the definition of Public
Officials Errors and Omissions Injury during the Coverage Period.
All such acts committed against any individual during the Coverage
Period shall be deemed to be one Occurrence.
5. With respect to Employee Benefit Plan Administration, an act, error,
or omission in the performance during the Coverage Period of any of
the administrative functions listed in the definition of Employee
Benefit Plan Administration with respect to an Employee Benefit
Plan. All such acts, errors, or omissions during the Coverage Period
with respect to any Employee Benefit Plan shall be deemed to be one
Occurrence.
Q. Personal Injury means economic loss, emotional distress, and consequential
Bodily Injury, arising out of the commission of one or more of the following
offenses by a Covered Party in the discharge of duties for the Entity:
I . False arrest, detention or imprisonment;
2. Malicious prosecution;
3. Oral or written publication of material that slanders or libels a person or
organization, including disparaging statements concerning the
condition, value, quality or use of that person's or organization's real or
personal property, but only where the first publication of such material
occurs during the Coverage Period;
4. Oral or written publication of material that violates a person's right of
privacy, but only where the first publication of such material occurs
during the Coverage Period; or
5. Discrimination or violation of civil rights;
Personal Injury does not include written or oral publication of material by or
PLAN IPA MEMORANOUNI OFCOVERACE EF TCTIVE JULY 1.2019
at the direction of any Covered Party with knowledge of its falsity.
R. Pollutants means without limitation any solid, liquid, gaseous or thermal
irritant or contaminant, including but not limited to smoke, vapor, soot, fumes,
acids, alkalis, chemicals and waste. Waste includes without limitation
materials to be recycled, reconditioned or reclaimed. The term Pollutants
does not include any of the following:
Potable water,
2. Agricultural water,
3. Water furnished to commercial users,
4. Water used for fire suppression,
5. Raw sewage,
6. Combined sewage,
7. Storm water run -off,
8. Partially treated sewage,
9. Fully treated sewage (as defined by the applicable NPDES permit), and
10. Residual streams of waste water treatment.
S. Property Damage means:
Physical injury to tangible property, including the loss of use of that
property. All such loss of use shall be deemed to occur at the time of
the physical injury that caused it; or
2. Loss of use of tangible property that is not physically injured. All such
loss of use shall be deemed to occur at the time of the Occurrence that
caused it.
Money, cash equivalents, checks, bonds, and all other financial instruments
shall not be considered tangible property.
PLANIPA MEMORANDUM OF COVERAGE
10
LFFECTIVE JULY I, 2016
T. Public Officials Errors and Omissions Injury means economic loss and
emotional distress arising out of any act or omission, any misstatement or
misleading statement, any neglect or breach of duty, or any misfeasance,
malfeasance or nonfeasance, by a Covered Party in the discharge of duties for
the Entity.
Public Officials Errors and Omissions Injury does not include Bodily
Injury, Property Damage, Personal Injury, or Employee Benefit Plan
Administration Liability.
U. Risk Coverage Agreement means the revised Liability Risk Coverage
Agreement dated as of July I, 1992 among ABAG, the ENTITY COVERED
which is designated in the DECLARATIONS, and all other participants in the
ABAG Pooled Liability Assurance Network (PLAN) program.
V. Watercraft means any form of vessel, including but not limited to barge, boat,
ship, yacht, canoe, kayak, and jet ski or similar personal recreational
watercraft, intended for use in or on water. '
SECTION II - WHO IS A COVERED PARTY
A. Subject to the terms of provision B. below, each of the following constitutes a
Covered Party under this Memorandum:
The Entity,
Any person who was or is now an elected or appointed official,
employee or volunteer of the Entity, whether or not compensated, but
only while acting for or on behalf of the Entity (including while acting
on outside boards at the direction of the Entity), and
3. Any person or organization to whom or to which the Entity is
obligated by virtue of a written contract to provide coverage such as is
afforded by this Memorandum, but only with respect to:
a. Operations performed by the Entity, or
b. Operations performed by such person or organization on behalf of
the Entity, or
PLANIPA MEMORANDUMOFCOVERAGE EFFECTIVE. JULY 1.201%
c. Property (including vehicles and facilities) owned by the Entity and
used by such person or organization, or
d. Property (including vehicles and facilities) owned by such person or
organization and used by the Entity.
B. Done of the above shall constitute a Covered Party with respect to any claim
or suit brought by or on behalf of any Entity.
SECTION III - COVERAGES
Subject to the terms and conditions of this Memorandum, PLAN agrees to pay on
behalf of the Covered Party, and this Memorandum applies only to, Damages that
the Covered Party becomes legally obligated to pay because of
A. Bodily Injury,
B. Property Damage,
C. Personal Injury,
D. Public Officials Errors and Omissions Injury, or
E. Employee Benefit Plan Administration Liability
caused by an Occurrence, and which are not excluded.
If the Covered Party has Insurance which affords coverage for any Bodily Injury,
Property Damage, Personal Injury, Public Officials Errors and Omissions
Injury or Employee Benefit Plan Administration Liability covered by this
Memorandum, this Memorandum shall only apply in excess of any amounts
payable under such Insurance.
The amount that PLAN will pay is limited as described under SECTION V - LIMIT
OF COVERAGE.
This Memorandum does not apply to Damages:
PLANJPA AI EMORANDUM OF COVER AGE
12
EFFECTIVE JULY 1.2019
A. For Bodily Injury, Property Damage, Personal Injury, Public Officials
Errors and Omissions Injury, or Employee Benefit Plan Administration
Liability which is either expected or intended from the standpoint of a
Covered Party; but this exclusion does not apply to Bodily Injury resulting
from assault and battery committed by, at the direction of, or with the consent
of the Entity, for the purpose of protecting persons or property from injury or
death.
B. Arising out of the actual, alleged, or threatened, exposure to, or discharge,
dispersal, seepage, migration, release or escape of, Pollutants:
At or from any premises, site, or location which is or was at any time
owned or occupied by, or loaned, rented, or leased to, any Covered
Party;
At or from any premises, site, or location which is or was at any time
used for the handling, storage, disposal, processing, or treatment of
waste;
Which are or were at any time transported, handled, stored, treated,
disposed of, or processed as waste by or for any Covered Party or any
person or organization for whom a Covered Party may be legally
responsible; or
4. At or from any premises, site, or location on which any Covered Party
or any contractor or subcontractor working directly or indirectly on any
Covered Party's behalf is performing operations.
C. Arising out of the ownership, management, governance, use, or operation of
any hospital or airport.
D. Arising out of medical professional services performed by or on behalf of a
Covered Party; but this exclusion does not apply to such services performed
by emergency medical technicians, paramedics and other similar classes of
personnel.
E. Arising out of any partial or complete structural failure of any Dam.
Arising out of any hazardous properties of Nuclear Material.
PLAN'RA MEMORAXDUMOFCOVERAGE
13
EFFECTIVE JULY[. 2018
G. For Property Damage Injury, Personal Injury or Public Officials Errors
and Omissions Injury arising out of:
the existence, anticipated exercise or actual exercise of the powers of
eminent domain (by whatever name called), or
2. any condemnation proceedings, or
any circumstances that give rise to (or could give rise to) or result in (or
could result in) an inverse condemnation claim, such circumstances shall
include but are not limited to:
a. Any action or inaction affecting the use of, or rights or entitlements
in, any real property or improvements to real property;
b. Any action or inaction on any data collecting, analysis, study;
finding, policy, ordinance, statute, code, law, regulation or program
that directly or indirectly affects the use of or rights or entitlements
in, any real property or improvements to real property; and
c. Any announcement or publication concerning the circumstances
described in subparts a and b.
provided that such circumstances shall not include:
i. Any circumstances that directly or indirectly cause physical
injury to tangible property; or
ii. the reverse Flow of sewage, water and/or other contents
through a sanitary sewer system and out of an inlet of such a
system; or
iii. the circumstances described under section W.I.
Ff. For Personal Injury or Public Officials Errors and Omissions Injury
arising out of any one of, or any combination of, the following:
I . Adverse possession, or
2. Nuisance, or
3. Trespass, or
4. Violation of a right of substantive or procedural due process, or
PLANIPA MEMORANDUMOFCOVERAGE
14
EFFECTIVE IDLY 1. 201K
5. Violation of a right of equal protection; or
6. Violation of a civil right, or
Unlawful discrimination, or
S. Negligence.
This exclusion applies only where the claim or suit seeks Damages arising out
of one or more of the matters excluded in Exclusion G above.
For an inverse condemnation claim arising solely out of the non - negligent
operation of any public improvement, however acquired; provided, that such
circumstances shall not include the reverse Flow of sewage, water and /or other
contents through a sanitary sewer system and out of an inlet of such a system.
For any one of, or any combination of, the following:
Adverse possession, or
2. Nuisance. or
3. Trespass, or
4. Violation of a right of substantive or procedural due process, or
5. Violation of a right of equal protection; or
6. Violation of a civil right, or
7. Unlawful discrimination, or
3. Dangerous condition ofpublic property.
This exclusion applies only where the claim or suit seeks Damages arising out
of one or more of the matters excluded in Exclusion I above.
K. For Public Officials Errors and Omissions Injury arising out of
noncompliance with, or violation of. any statute, regulation, rule, Executive
Order, circular, audit or recordkeeping standard, pennit, license,
administrative ruling, or the like. This exclusion applies regardless of the
PLANJI'A MEMORAN'DUMOFCOVERAGI.
15
EFFEC "I'IVE JULY 1.201%
means taken or available, to compel compliance and also applies regardless of
the means taken, or available to, enforce a remedy for the noncompliance or
violation.
L. Arising out of a Covered Party's ownership, operation, use. maintenance, or
entrustment to others of any Aircraft or Watercraft
M. Arising out of any transit authority, transit system or public transportation
system owned or operated by a Covered Party; but this exclusion does not
apply to any transit system operating over non -fixed routes, including dial -a-
ride, senior citizen transportation or handicapped transportation.
N. Arising out of the failure to supply or provide an adequate supply of gas, water
or electricity.
0. Arising out of any obligation to pay compensation or benefits (or other
monetary sums) under workers' compensation, disability benefits or
unemployment compensation law or any similar law.
For Bodilv Injury, Property Damage, Personal Injury, or Public Officials
Errors and Omissions Injury to:
An employee; volunteer, elected or appointed official of a Covered
Party arising out of and in the course of:
a. Employment by a Covered Party; or
b. Performing duties related to the conduct of a Covered Party's
activities:
1511
2. The spouse or partner, child, parent, brother, sister or other relative of
that employee, volunteer; elected or appointed official, as a
consequence of paragraph (1) above.
This exclusion applies:
a. Whether the Covered Party may be liable as an employer or in
any other capacity; and
PLANJPA MEMORANDUMOFCOVERAGE
V
FFFECTIVE JULY 1, 2018
b. To any obligation to share payment with, or repay someone else
who must pay, any amount because of the injury.
Q. Arising out of any:
Refusal to employ, elect, or appoint any person, or to allow any person
to participate as a volunteer
Termination of any person's employment or volunteer participation, or
termination of any person's position as an elected or appointed official
Practice, policy, act or omission which is in any way related (whether
logically or causally) to employment, to serving as an elected or
appointed official, or to serving as a volunteer, all including but not
limited to any of the following: coercion, demotion, promotion,
evaluation, reassignment, discipline, defamation, violation of civil
rights, harassment, humiliation or discrimination.
This exclusion applies:
a. Whether the Covered Party may be liable as an employer or in
any other capacity; and
b. To any obligation to share payment with, or repay someone else
who must pay, any amount because of the injury.
R. For claims by any Covered Party. This exclusion shall not apply to claims for
Employee Benefits Administration Liability.
S. For Property Damage to:
Property owned by the Entity;
2. Property rented to or leased to the Entity; or
Aircraft or Watercraft in a Covered Party's care, custody or control.
T. Arising out of the willful violation of a penal statute or penal ordinance:
1. Committed by a Covered Party; or
PLANJPA MFMORANDUMOFCOVERAOI' EFFECTIVE JULY). 2018
17
Z. Committed with the knowledge or consent of a Covered Party.
U. Public Officials Errors and Omissions Injury arising out of the imposition,
collection, refund, or refusal to refund, of taxes, fees or assessments.
V. Public Officials Errors and Omissions Injury arising out of:
Any Covered Party obtaining remuneration or financial gain to which
the Covered Party was not legally entitled, of
2. Any Covered Party's liability for any other Covered Party obtaining
remuneration or financial gain to which such Covered Party was not
legally entitled.
W. Public Officials Errors and Omissions Injury arising out of any bidding or
contracting process if such Public Officials Errors and Omissions Injury is
due to:
Estimates of probable costs or cost estimates being exceeded,
2. Preparation of bid specifications or plans, including architectural plans,
or
3. Failure to award any contract in accordance with any statute or
ordinance.
X. Public Officials Errors and Omissions Injury arising out of any failure to
perform or breach of a contractual obligation.
Y. Arising out of the purchase, sale, offer of sale, solicitation, depreciation, or
decline in price or value, of any security, debt, bank deposit or financial
interest or instrument. This exclusion shall not apply to economic loss
suffered by a governmental entity other than a Covered Party, as a result of
Public Officials Errors and Omissions Injury to which this Memorandum
applies, arising out of financial investment services undertaken by an Entity
for compensation on behalf of that governmental entity.
SECTION V - DEFENSE AND SETTLEMENT
A. Defense Of Claims Or Suits.
PLASIPA MEMORANDUMOFCOVERAGE
IC
EFFECTIVE JULY 1.2018
PLAN shall have the right and duty to defend any claim or suit against
a Covered Party seeking Damages to which this Memorandum
applies, even if any allegations are groundless, false or fraudulent. In
the event this Memorandum is excess over any Insurance with
respect to a claim or suit, then PLAN shall not have any duty to
defend such claim or suit until the available limits of liability of all
such Insurance are exhausted and the defense obligation under all
such Insurance has terminated.
The Covered Party may select counsel to represent its interests,
subject to approval of counsel by PLAN.
The Covered Party shall
a. Cooperate with PLAN in the investigation, defense and
settlement of any claim or suit;
Upon the request of PLAN, attend hearings and trials, assist in
securing and giving evidence, and assist in obtaining the
attendance of witnesses, and
C. Upon the request of PLAN, authorize PLAN to obtain records
and other information.
4. In the event a Covered Party elects not to appeal a judgment, PLAN
may elect to do so if it pays the fees and costs of that appeal.
5. The Covered Party must disclose to PLAN all information concerning
the claim or suit (including but not limited to all facts giving rise to the
claim or suit) which may assist in the defense of the claim or suit. The
Covered Party is required to provide such information even if the
information may relate to or affect matters pertaining to coverage
under this Memorandum. The Covered Party shall instruct its
defense counsel to disclose all such information to PLAN, and hereby
waives any and all privileges (including but not limited to the
attomey /client privilege and the attorney work product privilege) to the
extent necessary to allow for the disclosure of that information to
ABAG. Any such waiver of a privilege shall extend only to PLAN,
and shall not be construed to allow for the disclosure of any such
information to any claimant.
ABAG PLAN CORP. MEMORANDUM OF COVERAGE
owl
EFFEC7NE JULY 1,2008
6. it is understood and agreed that the purpose of this provision is to ensure
that PLAN is provided with all information which is or may be useful
in defending the claim or suit, in whole or part, notwithstanding the
existence of any coverage limitation or dispute.
B. Settlement Of Claims Or Suits.
PLAN shall not have any obligation to pay any sun on behalf of a
Covered Party under the terms of a settlement of any claim or suit,
unless such settlement is finalized in a written agreement signed by the
Covered Party; the claimant and PLAN.
2. No Covered Party shall have the right to enter into a settlement of any
claim or suit, which seeks Damages to which this Memorandum
applies without the express written consent of PLAN.
SECTION VI - LIMIT OF COVERAGE
A. Limit Of Coverage - Per Occurrence.
The Limit of Coverage, and the rule set forth under paragraph 2 below,
fix the most that PLAN will pay with respect to an Occurrence,
regardless of:
a. The number of Covered Parties,
The number of claims made or suits brought,
C. The number of persons or organizations making claims or
bringing suits,
The number of persons or organizations who sustain injury or
damage,
e. The nature and types of injuries or damage sustained,
The number of coverages under this Memorandum which may
be applicable to the Occurrence.
ABAG PLAN CORP. MEMORANDUM OF COVERAGE
20
EFFECTIVE JULY 1. 2008
2. All Defense Costs shall be paid and applied first against, and shall
reduce, the Limit of Coverage. The difference between the Limit of
Coverage and the total amount of Defense Costs shall be the amount
available, if any, to pay on behalf of all Covered Parties with respect to
an Occurrence.
B. Self- Insured Retention ( "SIR ") - Per Occurrence.
The amount of the SIR is the amount that the Entity must pay (or
cause to be paid) before PLAN is obligated to pay any amount under
the terms of this Memorandum.
2. The Entity shall be obligated to pay one SIR with respect to all claims
and suits relating to an Occurrence.
The Deductible is the sole responsibility of the Entity. PLAN shall
not be responsible for payment of the SIR or any part thereof.
C. PLAN's Obligations Upon Exhaustion Of Limit Of Coverage.
PLAN's duties under this Memorandum end with respect to any
Occurrence when PLAN has used up the Limit of Coverage by
payments with respect to claims and suits relating to or arising out of
that Occurrence (including payment of Defense Costs). In that event:
a. PLAN shall not have any further obligation to pay Defense
Costs and shall have the right to withdraw from the further
investigation and defense of any and all claims and suits
relating to such Occurrence,
b. PLAN shall not have any further obligation to pay any
judgment or settlement, and
C. PLAN shall not have any other obligation under this
Memorandum.
ABAG PLAN CORP. MEMORANDUM OF COVERAGE
21
EFF;CTR'E JULY 1. 2008
�i;rY[i]h�'I LI�K�T►1 t] IlJil�liR.�
A. Duties In The Event Of Occurrence, Claim Or Suit.
In the event of an Occurrence, the Entity must provide to PLAN (or
any of its authorized agents), as soon as practicable, written notice of
the Occurrence, which includes the following information:
a. The identity of each Covered Party involved in the
Occurrence,
b. flow, when and where the Occurrence took place,
C. The names and addresses of any injured persons,
d. The names and addresses of any witnesses,
e. The nature and location of any injury or damage arising out of
the Occurrence, and
f Any and all other information which is available and reasonably
obtainable pertaining to the Occurrence.
2. If a claim is made or suit is brought against any Covered Party, the
Entity must:
Immediately provide PLAN with written notice of the claim or
suit,
b. Immediately make a record of the specifics of the claim or suit,
and
Immediately forward to PLAN a copy of all documents related
to the claim or suit, including but not limited to all
correspondence, demands, notices, summonses and pleadings.
3. Upon the request of PLAN, each Covered Party involved in the
Occurrence shall assist ABAG in the enforcement of any right
(including but not limited to any right of contribution or indemnity)
against any person or organization which may be liable to a Covered
An AG PLAT CORP. MEMORANDUM OF COVERAGE
22
EFFECrIVIE JULY 1. 2008
Party because of actual or alleged damages to which this
Memorandum may also apply.
4. No Covered Party shall, except at its own cost, make a payment,
assume any obligation or incur any expense (including but not limited
to any attorney fees) without the prior express consent of PLAN. In
the event a Covered Party makes any payment, assumes any
obligation or incurs any expense (including but not limited to any
attorney fees) without the prior express consent of PLAN, then any
such payment, obligation or.expense shall be the sole responsibility of
that Covered Party.
B. Bankruptcy.
Bankruptcy or insolvency of the Covered Party shall not relieve PLAN of
any of its obligations under this Memorandum,
C. Insurance.
This Memorandum shall be in excess of the amount of any Insurance
available to pay any sum otherwise covered under this Memorandum,
except with respect to any such Insurance which is written only as
specific excess insurance over the Limit of Coverage.
Regardless of the duration of any Occurrence and the number of other
Memorandums between PLAN and the Entity, under no circumstances
shall this Memorandum and any other memorandum of coverage
between PLAN and an Entity both apply to a claim or suit. In the
event of dispute as to whether:
a. This Memorandum. or
Another memorandum of coverage between PLAN and an
Entity
is applicable to a claim or suit, such dispute shall be resolved by
application of the following rule. The first memorandum of coverage
(between PLAN and the Entity) issued by PLAN shall be deemed the
memorandum of coverage which is applicable (and only that
memorandum of coverage shall be applicable). A "continuous trigger
rule or similar rule .shall not apply.
A13AG PLAN-CORP. MEMORANDUM OF COVERAGE
2 j
EFF17CT1VE JUL%' 1, 2008
1). Cancellation.
This Memorandum may be canceled at any time in accordance with the
provisions of the Liability Risk Coverage Agreement.
E. Legal Action Against PLAN.
No person or organization mayjoin PLAN as a party, or otherwise
bring PLAN into a suit seeking damages from a Covered Party.
2. A person or organization may sue PLAN to recover on an agreed
settlement (meaning a settlement and release of liability signed by
PLAN, the Covered Party and the claimant or the claimant's legal
representative) or on a final judgment against a Covered Party
obtained after an actual trial; but PLAN will not be liable for damages
that are not payable under the terms of this Memorandum or that are in
excess of the Limit of Coverage.
3. No Covered Party may pursue any claim or file any action against
PLAN unless and until it has fully complied with the procedures
established by PLAN for presentation and resolution of disputes;
including but not limited to the Risk Coverage Agreement.
Transfer Of Rights Of Recovery Against Others To PLAN.
If the Covered Party has rights to recover all or part of any payment
PLAN has made under this Memorandum, those rights are transferred
to PLAN. The Covered Parh must do nothing after an Occurrence to
impair them. At PLAN 's request, the Covered Party will bring suit or
transfer those rights to PLAN and help enforce them. All amounts so
recovered shall be paid to PLAN.
2. In the event any amounts recovered exceed the costs incurred to
recover them plus the amount of PLAN's payments, then those
additional amounts shall be apportioned as follows:
a. The Covered Party shall first be reimbursed in an amount up to
any payments it made, and
b. The remainder shall be paid to PLAN and the Covered Party
in proportion to the ratio of their respective recoveries
AnAG PLAT: CORP. MEMORANDUM OI' COVERAGE EFFECTIVE JULY I. 2008
24
G. Premium.
The Entity is authorized to act on behalf of all Covered Parties with
respect to all matters pertaining to premium.
PLA\ JPA MFMORANDUM Of COVERA(if
25
POOLED LIABILITY ASSURANCE NETWORK
JOINT POWERS AUTHORITY
MEMORANDUM OF COVERAGE
ENDORSEMENT NO. 1
This ENDORSEMENT, effective 12:01 a.m. 7/1/18, forms part of a Memorandum No. PLAN
2018-GL.
It is understood that the named Covered Party of the Declaration is completed as follows:
Pooled Liability Assurance Network;
City of American Canyon
Town of Atherton
City of Benicia
City of Burlingame
City of Campbell
Town of Colma
City of Cupertino
City of Dublin
City of East Palo Alto
City of Foster City
City of Half Moon Bay
City of Hillsborough
City of Los Altos Hills
Town of Los Gatos
City of Millbrae
City of Milpitas
City of Morgan Hill
City of Newark
City of Pacifica
Town of Portola Valley
Town of Ross
City of San Bruno
City of San Carlos
City of Saratoga
City of South San Francisco
City of Suisun City
Town of Tiburon
Fown of Woodside
PLAN IPA MEMORANDUM OF COVF,RAGF
26
POOLED LIABILITY ASSURANCE NETWORK
JOINT POWERS AUTHORITY
MEMORANDUM OF COVERAGE
ENDORSEMENT NO. 2
This ENDORSEMENT, effective 12:01 a.m. 7/1/18, forms part of Memorandum No. PLAN
2018 -GL.
It is understood the Retained Limits for the named Covered Parties listed in ENDORSEMENT
NO. I are as follows:
City of American Canyon
$25,000
Town of Atherton
$25,000
City of Benicia
$25,000
City of Burlingame
$250,000
City of Campbell
$100,000
Town ofColma
$50.000
City of Cupertino
$250,000
City of Dublin
$50,000
City of East Palo Alto
$100,000
City of Foster City
$100,000
Cit , of Half Moon Bay
$50,000
Citv of Hillsborough
$50,000
City of Los Altos Hills
$25,000
Town of Los Gatos
$50,000
City of Millbrae
$100,000
Cit of Mil itas
$100,000
City of Morgan Hill
$100,000
City of Newark
$100,000
City of Pacifica
$50,000
Town of Portola Valley
$25,000
Town of Ross
525,000
City of San Bruno
$100,000
City of San Carlos
$100,000
City of Saratoga
$25,000
City of South San Francisco
$100,000
City of Suisun City
$25,000
Town of Tiburon
$50,000
Town of Woodside
$25,000
PLAN n'A MEMORANDUM OF COVERAGE
27
A
MEMORANDUM OF COVERAGE — LIABILITY
Issue Date: July 1, 2018
MEMORANDUM OF COVERAGE -- LIABILITY
DECLARATIONS
ENTITY COVERED: Pooled Liability Assurance Network Joint Powers Authority as
per Endorsement No. I
MAILING ADDRESS: 1750 Creekside Oaks Drive, Suite 200
Sacramento, CA 95833
COVERAGE PERIOD: FROM: 7/1/2018 12:01 A.M., Pacific Time
TO: 7/1/2019 12:01 A.M., Pacific Time
LIMIT OF COVERAGE: $5,000,000 per Occurrence less Covered Party's Retained Limit
Listed in Endorsement No. 2. With respect to Employee Benefit Plan Administration
Liability, the LIMIT OF COVERAGE is $250,000 per Occurrence.
PLAN IPA MEMORANDUM OF COVERAGE
2
EFFECTIVE JULY 1.2018
In consideration for the payment of the premium, PLAN JPA and the ENTITIES
COVERED which are designated in ENDORSEMENT No I to this Memorandum agree
as follows:
SECTION I - DEFINITIONS
Words and phrases in bold print within this Memorandum (including any and all
endorsements hereto and forming a part hereof) have special meanings, as defined below:
A. PLAN JPA ( "PLAN ") means the Pooled Liability Assurance Network Joint
Powers Authority.
B. Aircraft means a vehicle designed for the transport of persons or property
principally in the air.
C. Bodily Injury means bodily injury, sickness or disease sustained by a person,
including death resulting from any of these at any time.
D. Covered Party means any person, entity, or other organization constituting a
Covered Party under SECTION II - WHO IS A COVERED PARTY.
E. Coverage Period means the COVERAGE PERIOD that is designated in the
DECLARATIONS to this Memorandum.
F. Dam means any artificial barrier, together with appurtenant works, which does
or may impound or divert water, and which:
Is twenty -five (25) feet or more in height from the natural bed of the
stream or watercourse at the downstream toe of the barrier to the
maximum possible water storage elevation;
Is twenty -five (25) feet or more in height from the lowest elevation of
the outside limit of the barrier, if it is not across a stream channel or
watercourse, to the maximum possible water storage elevation; or
Has an impounding capacity of fifty (50) acre -feet or more.
However, the following shall not be considered a Dam:
Any artificial barrier, together with appurtenant works, which does or
may impound or divert water, but which is not in excess of six (6) feet
in height, regardless of storage capacity;
PLAN IPA MEMORANDUM OF COVERAGE EFFECTIVE JULY 1,2018
2. Any artificial barrier, together with appurtenant works, which does or
may impound or divert water, but which has a storage capacity not in
excess of fifteen (15) acre -feet, regardless of height;
Any obstruction in a canal used to raise or lower water therein or divert
water therefrom;
4. Any levee, including but not limited to a levee on the bed of a natural
lake, the primary purpose of which levee is to control floodwaters;
5. Any railroad fill or structure;
6. Any tank constructed of steel or concrete or of a combination thereof;
Any tank elevated above the ground;
8. Any barrier which is not across a stream channel, watercourse or
natural drainage area, and which has the principal purpose of
impounding water for agricultural use; and
9. Any obstruction in the channel of a stream or watercourse which is
fifteen (15) feet or less in height from the lowest elevation of the
obstruction and which has the single purpose of spreading water within
the bed of the stream or watercourse upstream from the construction for
percolation underground.
Regardless of the language of the above definition, however, no structure
specifically exempted from jurisdiction by the State of California Department
of Water Resources, Division of Safety of Dams shall be considered a "Dam,"
unless such structure is under the jurisdiction of an agency of the federal
government.
G. Damages means monetary sums paid or awarded as compensation for Bodily
Injury, Property Damage, Personal Injury, Public Officials Errors and
Omissions Injury, or Employee Benefit Plan Administration Liability
covered by this Memorandum.
PLAN JPA MEMORANDUM OF COVERAGE
4
EFFECTIVE JULY 1. 2018
Damages does not include:
1. Any monetary sum paid or awarded as or for restitution;
2. Any monetary sum paid or awarded as or for fees (except for plaintiff's
attorneys fees), fines, sanctions, penalties, punitive damages or
exemplary damages;
3. Any monetary sum paid or awarded as or for double, treble or any other
mathematical multiplier of Damages;
4. Any costs of complying with equitable or other injunctive relief;
5. Any monetary sum paid or awarded as or for any loss, cost or expense
arising out of any:
a. Request, demand or order that any Covered Party or others test
for, monitor, clean up, remove, contain, treat, detoxify or
neutralize, or in any way respond to or assess the effects of
Pollutants; or
Claim or suit by or on behalf of a government authority because
of testing for, monitoring, cleaning up, removing, containing,
treating, detoxifying or neutralizing, or in any way responding to
or assessing the effects of Pollutants;
6. Any monetary sum paid or awarded to satisfy any obligation of a
Covered Party (or any insurance company as a Covered Party's
insurer) under any workers' compensation, disability benefits or
unemployment compensation law or any similar law.
Any premium, employer or employee contribution, fee, tax, assessment,
or other amount, to enroll or maintain the enrollment of any employee
in any Employee Benefit Plan
H. Self Insured Retention means the retention limits that are designated in
ENDORSEMENT No 2 to this Memorandum.
I. Defense Costs means:
All fees (including attorney's fees), costs (including court costs), and
expenses incurred in connection with the adjustment, investigation,
PLAN JPA MEMORANDUM OF COVERAGE EFFECTIVE JULY 1,2018
defense and appeal of a claim or suit to which this Memorandum
applies; and
2. Interest on any judgment or portion thereof (accruing after entry of
judgment) to which this Memorandum applies.
However, Defense Costs does not include any of the following:
Any office expenses of PLAN or a Covered Party;
2. Any salaries of employees of PLAN or a Covered Party;
Any salaries of or other monetary payments (including but not
limited to per diems, honorariums or reimbursements) to elected
or appointed officials of PLAN or a Covered Party;
4. Any fees or expenses of any claims administrator engaged by a
Covered Party; or
5. Any fees or expenses incurred for services of any individual or
entity (including any attorney, city attorney, city engineer, or
city manager) unless such services are provided pursuant to the
express written consent of PLAN.
Employee Benefit Plan Administration Liability means liability of a
Covered Party arising from any act, error, or omission in Employee Benefit
Plan Administration. For purposes of this definition:
Employee Benefit Plan means only the following employee benefit
plans:
Educational tuition reimbursement plans
Group plans for life, health, dental, disability, automobile,
homeowners, or legal expense insurance
Pension plans
Salary Reduction plans under Internal Revenue Code Section
457, including any amendments
Pre -tax medical and dependent care savings plans
PLAN IPA MEMORANDUM OF COVERAGE EFFECTIVE _JULY 1, 2018
6. Social security system benefits
Workers Compensation and unemployment insurance benefits
8. California Public Employees Retirement System benefits
2. Administration means only the following administrative functions,
with respect to an Employee Benefit Plan:
Explaining or interpreting an Employee Benefit Plan
b. Calculating or communicating benefits and costs for an
Employee Benefit Plan
C. Enrolling participants, or terminating participation, in an
Employee Benefit Plan
d. Estimating or projecting future Employee Benefit Plan values
Handling or processing of Employee Benefit Plan records
3. Employee Benefit Administration Liability shall not include:
a. any liability arising out of an insufficiency of funds to meet any
obligation under any Employee Benefit Plan.
b. any liability arising out of act, error, or omission by any
Covered Party to effect and maintain insurance or bonding for
plan property or assets of any Employee Benefit Plan.
C. any liability arising out of any representations made at any time
in relation to the price or value of any security, debt, bank
deposit, or similar financial instrument or investment, including,
but not limited to, advice given to any person to participate in
any Employee Benefit Plan.
d. any liability for premiums, employer or employee contributions,
fees, taxes, assessments, or other amounts, to enroll or maintain
the enrollment of any employee(s) in any Employee Benefit
Plan.
PLAN JPA MEMORANDUM OF COVERAGE EFFECTIVE JULY 1, 2018
K. Entity means:
The ENTITY COVERED which is designated in
ENDORSEMENT No 1 to this Memorandum; and
2. Any commission, agency, district, authority, board, or similar body, the
governing board of which is exclusively comprised of elected or
appointed officials, employees, or volunteers (whether or not
compensated) of the ENTITY COVERED which is designated in
ENDORSEMENT No 1 to this Memorandum
L. Insurance means insurance or coverage other than the coverage afforded by
this Memorandum, including but not limited to the following:
Valid and collectible insurance (whether stated to be primary, pro rata,
contributory, excess, contingent, or otherwise);
Any self - funding mechanism, including but not limited to a joint
powers authority (whether stated to be primary, pro rata, contributory,
excess, contingent, or otherwise); and
Specific self - insurance (whether stated to be primary, pro rata,
contributory, excess, contingent or otherwise).
M. Limit of Coverage means the LIMIT OF COVERAGE that is designated in
the DECLARATIONS to this Memorandum.
N. Memorandum means this MEMORANDUM OF COVERAGE --
LIABILITY, including the DECLARATIONS and all endorsements hereto.
O. Nuclear Material means source material, special nuclear material or byproduct
material. "Source Material," "Special Nuclear Material" and 'Byproduct
Material' have the meanings given them in the Atomic Energy Act of 1954 or
in any law amendatory thereof.
P. Occurrence means:
With respect to Bodily Injury, an accident, including continuous or
repeated exposure to substantially the same general harmful conditions,
during the Coverage Period.
PLAN JPA MEMORANDUM OF COVERAGE EFFECTIVE JULY 1.2018
2. With respect to Property Damage, an accident, including continuous
or repeated exposure to substantially the same general harmful
conditions, during the Coverage Period.
With respect to Personal Injury, the commission of one of the
offenses listed in the definition of Personal Injury during the
Coverage Period. All such acts committed against any individual
during the Coverage Period shall be deemed to be one Occurrence.
4. With respect to Public Officials Errors and Omissions Injury, the
commission of one of the acts listed in the definition of Public
Officials Errors and Omissions Injury during the Coverage Period.
All such acts committed against any individual during the Coverage
Period shall be deemed to be one Occurrence.
5. With respect to Employee Benefit Plan Administration, an act, error,
or omission in the performance during the Coverage Period of any of
the administrative functions listed in the definition of Employee
Benefit Plan Administration with respect to an Employee Benefit
Plan. All such acts, errors, or omissions during the Coverage Period
with respect to any Employee Benefit Plan shall be deemed to be one
Occurrence.
Q. Personal Injury means economic loss, emotional distress, and consequential
Bodily Injury, arising out of the commission of one or more of the following
offenses by a Covered Party in the discharge of duties for the Entity:
False arrest, detention or imprisonment;
Malicious prosecution;
Oral or written publication of material that slanders or libels a person or
organization, including disparaging statements concerning the
condition, value, quality or use of that person's or organization's real or
personal property, but only where the first publication of such material
occurs during the Coverage Period;
Oral or written publication of material that violates a person's right of
privacy, but only where the first publication of such material occurs
during the Coverage Period; or
5. Discrimination or violation of civil rights;
Personal Injury does not include written or oral publication of material by or
PLANJPA MEMORANDUM OF COVERAGE EFFECTIVE JULY 1,2018
9
at the direction of any Covered Party with knowledge of its falsity.
R. Pollutants means without limitation any solid, liquid, gaseous or thermal
irritant or contaminant, including but not limited to smoke, vapor, soot, fumes,
acids, alkalis, chemicals and waste. Waste includes without limitation
materials to be recycled, reconditioned or reclaimed. The term Pollutants
does not include any of the following:
Potable water,
2. Agricultural water,
3. Water furnished to commercial users,
4. Water used for fire suppression,
5. Raw sewage,
6. Combined sewage,
7. Storm water run -off,
8. Partially treated sewage,
9. Fully treated sewage (as defined by the applicable NPDES permit), and
10. Residual streams of waste water treatment.
S. Property Damage means:
1. Physical injury to tangible property, including the loss of use of that
property. All such loss of use shall be deemed to occur at the time of
the physical injury that caused it; or
2. Loss of use of tangible property that is not physically injured. All such
loss of use shall be deemed to occur at the time of the Occurrence that
caused it.
Money, cash equivalents, checks, bonds, and all other financial instruments
shall not be considered tangible property.
PLAY IPA MEMORANDUM OF COVERAGE
10
EFFECTIVE JULY I, 2018
T. Public Officials Errors and Omissions Injury means economic loss and
emotional distress arising out of any act or omission, any misstatement or
misleading statement, any neglect or breach of duty, or any misfeasance,
malfeasance or nonfeasance, by a Covered Party in the discharge of duties for
the Entity.
Public Officials Errors and Omissions Injury does not include Bodily
Injury, Property Damage, Personal Injury, or Employee Benefit Plan
Administration Liability.
U. Risk Coverage Agreement means the revised Liability Risk Coverage
Agreement dated as of July 1, 1992 among ABAG, the ENTITY COVERED
which is designated in the DECLARATIONS, and all other participants in the
ABAG Pooled Liability Assurance Network (PLAN) program.
V. Watercraft means any form of vessel, including but not limited to barge, boat,
ship, yacht, canoe, kayak, and jet ski or similar personal recreational
watercraft, intended for use in or on water. '
SECTION II - WHO IS A COVERED PARTY
A. Subject to the terms of provision B. below, each of the following constitutes a
Covered Party under this Memorandum:
The Entity,
2. Any person who was or is now an elected or appointed official,
employee or volunteer of the Entity, whether or not compensated, but
only while acting for or on behalf of the Entity (including while acting
on outside boards at the direction of the Entity), and
Any person or organization to whom or to which the Entity is
obligated by virtue of a written contract to provide coverage such as is
afforded by this Memorandum, but only with respect to:
a. Operations performed by the Entity, or
Operations performed by such person or organization on behalf of
the Entity, or
PLAN IPA MEMORANDUM OF COVERAGE EFFECTIVE JULY I.2018
c. Property (including vehicles and facilities) owned by the Entity and
used by such person or organization, or
d. Property (including vehicles and facilities) owned by such person or
organization and used by the Entity.
B. None of the above shall constitute a Covered Party with respect to any claim
or suit brought by or on behalf of any Entity.
SECTION III - COVERAGES
Subject to the terms and conditions of this Memorandum, PLAN agrees to pay on
behalf of the Covered Party, and this Memorandum applies only to, Damages that
the Covered Party becomes legally obligated to pay because of
A. Bodily Injury,
B. Property Damage,
C. Personal Injury,
D. Public Officials Errors and Omissions Injury, or
E. Employee Benefit Plan Administration Liability
caused by an Occurrence, and which are not excluded.
If the Covered Party has Insurance which affords coverage for any Bodily Injury,
Property Damage, Personal Injury, Public Officials Errors and Omissions
Injury or Employee Benefit Plan Administration Liability covered by this
Memorandum, this Memorandum shall only apply in excess of any amounts
payable under such Insurance.
The amount that PLAN will pay is limited as described under SECTION V - LIMIT
OF COVERAGE.
SECTION IV - EXCLUSIONS
This Memorandum does not apply to Damages:
PLAN JPA MEMORANDUM OF COVERAGE
12
EFFECTIVE JULY L 2018
A. For Bodily Injury, Property Damage, Personal Injury, Public Officials
Errors and Omissions Injury, or Employee Benefit Plan Administration
Liability which is either expected or intended from the standpoint of a
Covered Party; but this exclusion does not apply to Bodily Injury resulting
from assault and battery committed by, at the direction of, or with the consent
of the Entity, for the purpose of protecting persons or property from injury or
death.
B. Arising out of the actual, alleged, or threatened, exposure to, or discharge,
dispersal, seepage, migration, release or escape of, Pollutants:
At or from any premises, site, or location which is or was at any time
owned or occupied by, or loaned, rented, or leased to, any Covered
Party;
At or from any premises, site, or location which is or was at any time
used for the handling, storage, disposal, processing, or treatment of
waste;
3. Which are or were at any time transported, handled, stored, treated,
disposed of, or processed as waste by or for any Covered Party or any
person or organization for whom a Covered Party may be legally
responsible; or
4. At or from any premises, site, or location on which any Covered Party
or any contractor or subcontractor working directly or indirectly on any
Covered Party's behalf is performing operations.
C. Arising out of the ownership, management, governance, use, or operation of
any hospital or airport.
D. Arising out of medical professional services performed by or on behalf of a
Covered Party; but this exclusion does not apply to such services performed
by emergency medical technicians, paramedics and other similar classes of
personnel.
E. Arising out of any partial or complete structural failure of any Dam.
F. Arising out of any hazardous properties of Nuclear Material.
PLAMPA MEMORANDUM OF COVERAGE
13
EFFECTIVE JULY], 2018
G. For Property Damage Injury, Personal Injury or Public Officials Errors
and Omissions Injury arising out of:
the existence, anticipated exercise or actual exercise of the powers of
eminent domain (by whatever name called), or
2. any condemnation proceedings, or
any circumstances that give rise to (or could give rise to) or result in (or
could result in) an inverse condemnation claim, such circumstances shall
include but are not limited to:
a. Any action or inaction affecting the use of, or rights or entitlements
in, any real property or improvements to real property;
b. Any action or inaction on any data collecting, analysis, study,
finding, policy, ordinance, statute, code, law, regulation or program
that directly or indirectly affects the use of, or rights or entitlements
in, any real property or improvements to real property; and
c. Any announcement or publication concerning the circumstances
described in subparts a and b.
provided that such circumstances shall not include:
i. Any circumstances that directly or indirectly cause physical
injury to tangible property; or
ii. the reverse flow of sewage, water and /or other contents
through a sanitary sewer system and out of an inlet of such a
system; or
iii. the circumstances described under section IV.I.
H. For Personal Injury or Public Officials Errors and Omissions Injury
arising out of any one of, or any combination of, the following:
Adverse possession, or
Nuisance, or
Trespass, or
4. Violation of a right of substantive or procedural due process, or
PLANJPA MEMORANDUMOF COVERAGE EFFECTIVE JULY 1, 2019
14
Violation of a right of equal protection; or
Violation of a civil right, or
Unlawful discrimination. or
Negligence.
This exclusion applies only where the claim or suit seeks Damages arising out
of one or more of the matters excluded in Exclusion G above.
For an inverse condemnation claim arising solely out of the non - negligent
operation of any public improvement, however acquired; provided, that such
circumstances shall not include the reverse flow of sewage, water and /or other
contents through a sanitary sewer system and out of an inlet of such a system.
J. For any one of, or any combination of, the following:
Adverse possession, or
Nuisance. or
3. Trespass, or
4. Violation of a right of substantive or procedural due process, or
5. Violation of a right of equal protection; or
6. Violation of a civil right, or
Unlawful discrimination, or
8. Dangerous condition of public property.
This exclusion applies only where the claim or suit seeks Damages arising out
of one or more of the matters excluded in Exclusion 1 above.
K. For Public Officials Errors and Omissions Injury arising out of
noncompliance with, or violation of, any statute, regulation, rule, Executive
Order, circular, audit or recordkeeping standard, pennit, license,
administrative ruling, or the like. This exclusion applies regardless of the
PLAN11'A MEMORANDUM OFCOVERAGE
15
EFFEC "I'IVE• JULY 1, 2018
means taken or available, to compel compliance and also applies regardless of
the means taken, or available to, enforce a remedy for the noncompliance or
violation.
L. Arising out of a Covered Party's ownership, operation, use, maintenance, or
entrustment to others of any Aircraft or Watercraft
M. Arising out of any transit authority, transit system or public transportation
system owned or operated by a Covered Party; but this exclusion does not
apply to any transit system operating over non -fixed routes, including dial -a-
ride, senior citizen transportation or handicapped transportation.
N. Arising out of the failure to supply or provide an adequate supply of gas, water
or electricity.
O. Arising out of any obligation to pay compensation or benefits (or other
monetary sums) under workers' compensation, disability benefits or
unemployment compensation law or any similar law.
P. For Bodily Injury, Property Damage, Personal Injury, or Public Officials
Errors and Omissions Injury to:
An employee, volunteer, elected or appointed official of a Covered
Party arising out of and in the course of:
a. Employment by a Covered Party; or
Performing duties related to the conduct of a Covered Party's
activities:
or
2. The spouse or partner, child, parent, brother, sister or other relative of
that employee, volunteer, elected or appointed official, as a
consequence of paragraph (1) above.
This exclusion applies:
a. Whether the Covered Party may be liable as an employer or in
any other capacity; and
PLANJPA MEMORAYDUMOFCOVERAGE
16
EFFECTIVF JULY 1. 2018
b. To any obligation to share payment with, or repay someone else
who must pay, any amount because of the injury.
Q. Arising out of any:
Refusal to employ, elect, or appoint any person, or to allow any person
to participate as a volunteer
2. Termination of any person's employment or volunteer participation, or
termination of any person's position as an elected or appointed official
3. Practice, policy, act or omission which is in any way related (whether
logically or causally) to employment, to serving as an elected or
appointed official, or to serving as a volunteer, all including but not
limited to any of the following: coercion, demotion, promotion,
evaluation, reassignment, discipline, defamation, violation of civil
rights, harassment, humiliation or discrimination.
This exclusion applies:
a. Whether the Covered Party may be liable as an employer or in
any other capacity; and
To any obligation to share payment with, or repay someone else
who must pay, any amount because of the injury.
R. For claims by any Covered Party. This exclusion shall not apply to claims for
Employee Benefits Administration Liability.
S. For Property Damage to:
Property owned by the Entity;
Property rented to or leased to the Entity; or
Aircraft or Watercraft in a Covered Party's care, custody or control.
T_ Arising out of the willful violation of a penal statute or penal ordinance:
Committed by a Covered Party; or
PLANJPA MEMORANDUM OF COVERAGE
17
EFFECTIVE JULY 1. 2018
Committed with the knowledge or consent of a Covered Party.
U. Public Officials Errors and Omissions Injury arising out of the imposition,
collection, refund, or refusal to refund, of taxes, fees or assessments.
V. Public Officials Errors and Omissions Injury arising out of:
Any Covered Party obtaining remuneration or financial gain to which
the Covered Party was not legally entitled, or
Any Covered Party's liability for any other Covered Party obtaining
remuneration or financial gain to which such Covered Party was not
legally entitled.
W. Public Officials Errors and Omissions Injury arising out of any bidding or
contracting process if such Public Officials Errors and Omissions Injury is
due to:
Estimates of probable costs or cost estimates being exceeded,
Preparation of bid specifications or plans, including architectural plans,
or
Failure to award any contract in accordance with any statute or
ordinance.
X. Public Officials Errors and Omissions Injury arising out of any failure to
perform or breach of a contractual obligation.
Y. Arising out of the purchase, sale, offer of sale, solicitation, depreciation, or
decline in price or value, of any security, debt, bank deposit or financial
interest or instrument. This exclusion shall not apply to economic loss
suffered by a governmental entity other than a Covered Party, as a result of
Public Officials Errors and Omissions Injury to which this Memorandum
applies, arising out of financial investment services undertaken by an Entity
for compensation on behalf of that governmental entity.
SECTION V - DEFENSE AND SETTLEMENT
A. Defense Of Claims Or Suits.
PLAN IPA MEMORANDUM OF COVERAGE
18
EFFECTIVE JULY 1. 2018
PLAN shall have the right and duty to defend any claim or suit against
a Covered Party seeking Damages to which this Memorandum
applies, even if any allegations are groundless, false or fraudulent. In
the event this Memorandum is excess over any Insurance with
respect to a claim or suit, then PLAN shall not have any duty to
defend such claim or suit until the available limits of liability of all
such Insurance are exhausted and the defense obligation under all
such Insurance has terminated.
2. The Covered Party may select counsel to represent its interests,
subject to approval of counsel by PLAN.
The Covered Party shall;
Cooperate with PLAN in the investigation, defense and
settlement of any claim or suit,
b. Upon the request of PLAN, attend hearings and trials, assist in
securing and giving evidence, and assist in obtaining the
attendance of witnesses, and
Upon the request of PLAN, authorize PLAN to obtain records
and other information.
4. In the event a Covered Party elects not to appeal a judgment, PLAN
may elect to do so if it pays the fees and costs of that appeal.
The Covered Party must disclose to PLAN all information concerning
the claim or suit (including but not limited to all facts giving rise to the
claim or suit) which may assist in the defense of the claim or suit. The
Covered Party is required to provide such information even if the
information may relate to or affect matters pertaining to coverage
under this Memorandum. The Covered Party shall instruct its
defense counsel to disclose all such information to PLAN, and hereby
waives any and all privileges (including but not limited to the
attorney /client privilege and the attorney work product privilege) to the
extent necessary to allow for the disclosure of that information to
ABAG. Any such waiver of a privilege shall extend only to PLAN,
and shall not be construed to allow for the disclosure of any such
information to any claimant.
ABAG PLAN CORP, MEMORANDUM OF COVERAGE
19
EFFECTIVE JULY], 2008
It is understood and agreed that the purpose of this provision is to ensure
that PLAN is provided with all information which is or may be useful
in defending the claim or suit, in whole or part, notwithstanding the
existence of any coverage limitation or dispute.
B. Settlement Of Claims Or Suits.
PLAN shall not have any obligation to pay any ruin on behalf of a
Covered Party under the terms of a settlement of any claim or suit,
unless such settlement is finalized in a written agreement signed by the
Covered Party, the claimant and PLAN.
No Covered Party shall have the right to enter into a settlement of any
claim or suit, which seeks Damages to which this Memorandum
applies without the express written consent of PLAN.
SECTION VI - LIMIT OF COVERAGE
A. Limit Of Coverage- Per Occurrence.
The Limit of Coverage, and the rule set forth under paragraph 2 below,
fix the most that PLAN will pay with respect to an Occurrence,
regardless of
a. The number of Covered Parties,
b. The number of claims made or suits brought,
C. The number of persons or organizations making claims or
bringing suits,
The number of persons or organizations who sustain injury or
damage,
e. The nature and types of injuries or damage sustained,
f. The number of coverages under this Memorandum which may
be applicable to the Occurrence.
ABAG PLAN CORP. MEMORANDUM OF COVERAGE
20
EFFECTIVE JULY I, 2008
2. All Defense Costs shall be paid and applied first against, and shall
reduce, the Limit of Coverage. The difference between the Limit of
Coverage and the total amount of Defense Costs shall be the amount
available, if any, to pay on behalf of all Covered Parties with respect to
an Occurrence.
B. Self- Insured Retention ( "SIR ") - Per Occurrence.
The amount of the SIR is the amount that the Entity must pay (or
cause to be paid) before PLAN is obligated to pay any amount under
the terms of this Memorandum.
The Entity shall be obligated to pay one SIR with respect to all claims
and suits relating to an Occurrence.
The Deductible is the sole responsibility of the Entity. PLAN shall
not be responsible for payment of the SIR or any part thereof.
C. PLAN's Obligations Upon Exhaustion Of Limit Of Coverage.
PLAN's duties under this Memorandum end with respect to any
Occurrence when PLAN has used up the Limit of Coverage by
payments with respect to claims and suits relating to or arising out of
that Occurrence (including payment of Defense Costs). In that event:
a. PLAN shall not have any further obligation to pay Defense
Costs and shall have the right to withdraw from the further
investigation and defense of any and all claims and suits
relating to such Occurrence,
b. PLAN shall not have any further obligation to pay any
judgment or settlement, and
PLAN shall not have any other obligation under this
Memorandum.
ABAG PLAN CORP. MEMORASUUM OF COVERAGE
21
EFFECTIVE JULY 1. 2008
SECTION VII - CONDITIONS
A. Duties In The Event Of Occurrence, Claim Or Suit.
In the event of an Occurrence, the Entity must provide to PLAN (or
any of its authorized agents), as soon as practicable, written notice of
the Occurrence, which includes the following information:
a. The identity of each Covered Party involved in the
Occurrence,
b. How, when and where the Occurrence took place,
C. The names and addresses of any injured persons,
d. The names and addresses of any witnesses,
e. The nature and location of any injury or damage arising out of
the Occurrence, and
f Any and all other information which is available and reasonably
obtainable pertaining to the Occurrence.
2. If a claim is made or suit is brought against any Covered Party, the
Entity must:
a. Immediately provide PLAN with written notice of the claim or
suit,
b. Immediately make a record of the specifics of the claim or suit,
and
C. Immediately forward to PLAN a copy of all documents related
to the claim or suit, including but not limited to all
correspondence, demands, notices, summonses and pleadings.
3. Upon the request of PLAN, each Covered Party involved in the
Occurrence shall assist ABAG in the enforcement of any right
(including but not limited to any right of contribution or indemnity)
against any person or organization which may be liable to a Covered
ABAG PLAT CORP. MEMORANDUM OF COVERAGE
22
EFFECTIVE, JULY], 2008
Party because of actual or alleged damages to which this
Memorandum may also apply.
4. No Covered Party shall, except at its own cost, make a payment,
assume any obligation or incur any expense (including but not limited
to any attorney fees) without the prior express consent of PLAN. In
the event a Covered Party makes any payment, assumes any
obligation or incurs any expense (including but not limited to any
attorney fees) without the prior express consent of PLAN, then any
such payment, obligation or.expense shall be the sole responsibility of
that Covered Party.
B. Bankruptcy.
Bankruptcy or insolvency of the Covered Party shall not relieve PLAN of
any of its obligations under this Memorandum.
C. Insurance.
This Memorandum shall be in excess of the amount of any Insurance
available to pay any sum otherwise covered under this Memorandum,
except with respect to any such Insurance which is written only as
specific excess insurance over the Limit of Coverage.
2. Regardless of the duration of any Occurrence and the number of other
Memorandums between PLAN and the Entity, under no circumstances
shall this Memorandum and any other memorandum of coverage
between PLAN and an Entity both apply to a claim or suit. In the
event of a dispute as to whether:
a. This Memorandum, or
b. Another memorandum of coverage between PLAN and an
Entity
is applicable to a claim or suit, such dispute shall be resolved by
application of the following rule. The first memorandum of coverage
(between PLAN and the Entity) issued by PLAN shall be deemed the
memorandum of coverage which is applicable (and only that
memorandum of coverage shall be applicable). A "continuous trigger"
rule or similar rule shall not apply.
AnAG PLAN CORP. MEMORANDUM OF COVERAGE
23
EFFECTIVE JULY I, 2008
D. Cancellation.
This Memorandum may be canceled at any time in accordance with the
provisions of the Liability Risk Coverage Agreement.
E. Legal Action Against PLAN.
No person or organization mayjoin PLAN as a party, or otherwise
bring PLAN into a suit seeking damages from a Covered Party.
A person or organization may sue PLAN to recover on an agreed
settlement (meaning a settlement and release of liability signed by
PLAN, the Covered Party and the claimant or the claimant's legal
representative) or on a final judgment against a Covered Party
obtained after an actual trial; but PLAN will not be liable for damages
that are not payable under the terms of this Memorandum or that are in
excess of the Limit of Coverage.
No Covered Party may pursue any claim or file any action against
PLAN unless and until it has fully complied with the procedures
established by PLAN for presentation and resolution of disputes,
including but not limited to the Risk Coverage Agreement.
F. Transfer Of Rights Of Recovery Against Others To PLAN.
If the Covered Party has rights to recover all or part of any payment
PLAN has made under this Memorandum, those rights are transferred
to PLAN. The Covered Party must do nothing after an Occurrence tc
impair them. At PLAN 's request, the Covered Party will bring suit or
transfer those rights to PLAN and help enforce them. All amounts so
recovered shall be paid to PLAN.
In the event any amounts recovered exceed the costs incurred to
recover them plus the amount of PLAN's payments, then those
additional amounts shall be apportioned as follows:
a. The Covered Party shall first be reimbursed in an amount up to
any payments it made, and
b. The remainder shall be paid to PLAN and the Covered Party
in proportion to the ratio of their respective recoveries
AaAG PLAN CORP. MEMORANDUM OF COVERAGE EFFECTIVE _JULY 1. 2008
24
G. Premium.
The Entity is authorized to act on behalf of all Covered Parties with
respect to all matters pertaining to premium.
PLAN JPA MFMORANDUM OF COVERAGE
25
POOLED LIABILITY ASSURANCE NETWORK
JOINT POWERS AUTHORITY
MEMORANDUM OF COVERAGE
ENDORSEMENT NO. 1
This ENDORSEMENT, effective 12:01 a.m. 7/1/18, forms part of a Memorandum No. PLAN
2018 -GL.
It is understood that the named Covered Party of the Declaration is completed as follows:
Pooled Liability Assurance Network,
City of American Canyon
Town of Atherton
City of Benicia
City of Burlingame
City of Campbell
Town of Colma
City of Cupertino
City of Dublin
City of East Palo Alto
City of Foster City
City of Half Moon Bay
City of Hillsborough
City of Los Altos Hills
Town of Los Gatos
City of Millbrae
City of Milpitas
City of Morgan Hill
City of Newark
City of Pacifica
Town of Portola Valley
Town of Ross
City of San Bruno
City of San Carlos
City of Saratoga
City of South San Francisco
City of Suisun City
Town of Tiburon
Town of Woodside
PLAN IPA MEMORANDUM OF COVERAGE
26
POOLED LIABILITY ASSURANCE NETWORK
JOINT POWERS AUTHORITY
MEMORANDUM OF COVERAGE
ENDORSEMENT NO. 2
This ENDORSEMENT, effective 12:01 a.m. 7/1/18, forms part of Memorandum No. PLAN
2018 -GL.
It is understood the Retained Limits for the named Covered Parties listed in ENDORSEMENT
NO. I are as follows:
City of American Canyon
$25,000
Town of Atherton
$25,000
City of Benicia
$25,000
City of Burlingame
$250,000
City of Campbell
$100,000
Town of Colma
$50.000
City of Cupertino
$250,000
City of Dublin
$50,000
City of East Palo Alto
$100,000
City of Foster City
$100,000
City of Half Moon Bay
$50,000
Citv of Hillsborough
$50,000
City of Los Altos Hills
$25,000
Town of Los Gatos
$50,000
City of Millbrae
5100,000
City of Milpitas
$100,000
City of Morgan Hill
$100,000
City of Newark
$100,000
City of Pacifica
$50,000
Town of Portola Valley
$25,000
Town of Ross
525,000
City of San Bruno
$100,000
City of San Carlos
$100,000
City of Saratoga
$25,000
City of South San Francisco
$100,000
City of Suisun City
$25,000
Town of Tiburon
$50,000
Town of Woodside
$25,000
PLAN JPA MEMORANDUM OF COVERAGE
27