HomeMy WebLinkAboutCity of Irvine Police Department; 2025-06-04; USE25-3702FACDocusign Envelope ID: D94A2668-CAC8-422C-8723-B634C6BADB57
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AGREEMENT FOR USE OF THE CARLSBAD SAFETY TRAINING CENTER (STC)
BETWEEN
THE CITY OF CARLSBAD AND THE CITY OF IRVINE POLICE DEPARTMENT
1. PARTIES AND DATE
This Agreement for use of the Carlsbad Safety Training Center {STC) (" Agreement") is entered into
this _____ day of-------~ 2025, by and between the City of Carlsbad, a municipal
corporation organized under the laws of the State of California with its relevant place of business at 5750
Orion Street, Carlsbad, California 92010 ("City") and City of Irvine Police Department with its principal
place of business at 1 Civic Center Plaza, Irvine, California 92606 ("Agency"). City and Agency are
sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement.
2. RECITALS
2.1 Agency desires to use certain City facilities located at 5750 Orion Street in the City of
Carlsbad, California, known as the Carlsbad Safety Training Center ("STC Facilities"); and
2.2 Agency desires to use the STC Facilities for the purposes of Firearms Training and other
Law Enforcement Training Activities on or about April 30, 2025 ("Training Events").
2.3 City is willing to allow the Agency to use the STC Facilities pursuant to the terms and
conditions in this Agreement.
3. TERMS AND CONDITIONS
3.1 STC Facilities. City agrees to allow Agency to use the STC Facilities pursuant to this
Agreement including the conditions, requirements, and fees as described in Exhibit "A," Exhibit "B,"
Exhibit "C", and applicable STC Standard Operating Procedures ("SOP"), as may be amended from time to
time by the City at its sole and absolute discretion, all as incorporated herein by this reference. The STC
Facilities are subject to the needs of the City and as such the Agency's use of STC Facilities may be
cancelled by the City at any time. In the event City determines, in its sole and absolute discretion, that the
STC Facilities are needed for any City purposes, the Agency shall immediately vacate the STC Facilities
upon notice by the City. It will also be understood that the STC Facilities will be made available on an "as
is" basis.
3.2 Training Events. Agency represents and warrants that all attendees, participants,
students, observers, instructors and any other persons brought to the STC Facilities by the Agency
(" Agency Invitees") are qualified to participate in the Training Events, and use of the STC Facilities. The
City retains the discretion to terminate this Agreement and requires all Agency Invitees to immediately
vacate the STC Facilities if the Training Events or anyone's participation in the Training Events poses any
kind of threat or liability to the City, the public, Agency Invitees or anyone else. Agency Invitees shall not
be considered an employee or agent of City for any purpose related to the Training Events.
3.3 Release of Liability /Assumption of Risk. In consideration of the City's Agreement to allow
the Agency to use the STC Facilities, the Agency, on behalf of itself and its elected officials (appointed and
elected), officers, employees, contractors, agents, volunteers, students, and all Agency Invitees hereby
releases and forever discharges the City and each of its elected officials (appointed and elected), officers,
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employees, contractors, agents, and volunteers from any and all known and unknown, certain or
contingent, past, present or future obligations, liabilities, demands, claims, costs, expenses, debts,
controversies, damages, actions, and causes of action of every nature, character, or description which
they may have against the City, arising from or in any way related to the Training Events, use of STC
Facilities or this Agreement. Furthermore, Agency assumes all risks associated with using the STC Facilities
for the Agency's purposes, including but not limited to inspections of the facility prior to and after use,
determination that the facilities "as is" status is appropriate for the Agency's Training Events, supervision
and control of all Agency Invitees involved in the Agency's use of the STC Facilities including Agency
Invitees, members of the genera I public and anyone else exposed during the period of time the Agency is
using the STC Facilities.
AGENCY HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 ("SECTION 1542"), WHICH IS SET
FORTH BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING
PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, JF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY."
BY SIGNNING BELOW, AGENCY HEREBY WAIVES THE PROVISIONS OF SECTION 1542 IN
CONNECTION WITH THE RELEASED MATTERS.
S"cof"l" G..~b~ 1 5€,<.,6eA.,.J~
Printed Name of Agency Representative
3.4 Indemnification I Hold Harmless. Agency shall indemnify, defend and hold harmless City,
its elected officials (appointed and elected), officers, employees, contractors, agents, and volunteers
("Indemnified Parties") from and against any and all claims, damages, demands, liability, costs, losses and
expenses, including, without limitation, court costs and reasonable attorneys' fees and costs, arising out
of, in connection with or in any way related to Agency's actions or inactions related to this Agreement,
including without limitation any actions or inactions related to use of STC Facilities or the Training Events,
to the fullest extent permitted by law.
3.5 Assumption of Risk Agreement and Participant Release. Agency shall ensure that all
Agency Invitees observing or participating in the Training Events sign and execute a release, substantially
in the same form as set forth in the attached Exhibit "B", incorporated by this reference ("Participant
Release"). No one shall attend or participate in the Event or use the STC Facilities without signing and
executing a Participant Release also commonly known as a Hold Harmless Agreement.
3.6 Insurance. Agency shall, at its sole expense, procure and maintain for the duration of its
obligations under this Agreement insurance against claims for injuries to persons or damages to property
which may arise from or be in connection with the STC Facilities and the Training Events or activities
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conducted by the Agency, its elected officials, officers, employees, contractors, agents, volunteers,
students, and Agency Invitees. The insurance shall take the form of a commercial general liability policy
or approved self-funding agreement, to include bodily injury, personal injury, and property damage
coverage, written on an occurrence basis with a company reasonably acceptable to the City, in an amount
not less than Two Million Dollars ($2,000,000) to cover any activities performed by any person under the
permission granted herein and any damage or loss suffered or incurred by the City, its elected officials,
officers, employees, contractors, agents, and volunteers resulting from such activity. The insurance will
be obtained from an insurance carrier admitted and authorized to do business in the State of California.
The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII" OR with a
surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in
the latest Best's Key Rating Guide of at least" A:X''. Agency shall maintain Workers Compensation coverage
in the statutorily required amounts, if applicable. Agency shall require its insurer to waive all rights of
subrogation against City, its elected officials, officers, employees, contractors, agents, and volunteers,
except for any liability resulting from the willful misconduct or grossly negligent acts of City. The Agency
will provide evidence of such insurance coverage to City's satisfaction prior to initiating the Training
Events. The Agency shall cause all such policies to be endorsed to add the City, its elected officials, officers,
employees, contractors, agents, and volunteers as Additional lnsured's. Agency's self-funded programs
will be required to provide evidence that meets City's requirements as determined at the sole and
absolute discretion of the City.
3.7 Governmental Approvals. Agency shall or has obtained all necessary and applicable
federal, state and local approvals, certifications, and permits to conduct the Training Events prior to use
of STC Facilities. City reserves the right to require Agency to provide proof regarding these approvals,
certifications, and permits, if applicable.
3.8 Scheduling of Facility/ Cancellations. Agency may schedule use of the City's Facilities on
an "as available", "first come first served" basis by contacting the City's Facility Manager. In the event
Agency is unable to use its allotted time(s), it shall, contact the City's Facility Manager within ten (10)
business days. Agency will be invoiced for hours scheduled not actual hours used if sufficient notice for
cancellation is not provided.
3.9 Term of Agreement. The term of this Agreement shall commence upon execution of this
Agreement by City, and shall terminate five (5) years from the date of commencement. It is also
understood that the City may terminate this Agreement at any time for any or no reason.
3.10 Payments for Use of STC Facilities. City shall invoice Agency on an hourly fee based upon
Agency scheduling and use of STC Facilities. All STC Facility use fees shall be in accordance with the STC
Facility fee table which may be amended by the City from time to time. Agency shall remit payment in full
to the attention of City of Carlsbad, 1635 Faraday Avenue, Carlsbad, CA 92008, within thirty days (30) days
of receipt of such invoice. A late charge equivalent to 5% of the unpaid balance shall be assessed on all
accounts ten ( 10) or more days past due. Agency shall be liable for the payment at the full cost of the use
of the STC Facilities for the hours scheduled for Training Events whether or not Agency subsequently uses
the STC Facilities or not.
3.11 Accidents / Damage Investigations. The Agency Safety Officer, as such person is described
in the STC Facilities Standard Operating Procedures (SOP), shall immediately report any injury or non-
injury accidents, equipment damage and/or negligent firearm discharges immediately to the City Facility
Manager. The Parties agree to fully and promptly cooperate in the investigations of injury or non-injury
accidents, equipment damage and/or negligent firearm discharges arising from Agency's use of the STC
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Facilities. The City's Facility Manager will coordinate such investigations for the purpose of determining
cause, responsibility and any physical or operational modifications or improvements deemed necessary
to improve facility safety. In the event damage to the STC Facility requires repair and/or replacement, City
shall affect such repair and present to the Agency an invoice for the cost of the repairs/replacement plus
5% (five percent) for City administrative costs. Agency shall remit payment in full to the attention of City
of Carlsbad, 1635 Faraday Avenue, Carlsbad, CA 92008, within thirty days {30) days of receipt of such
invoice. A late charge equivalent to 5% of the unpaid balance shall be assessed on all accounts ten (10) or
more days past due.
3.12 Facility Inspections / Cleanup. The Parties will conduct a joint inspection of STC Facilities
before and after use. All damages will be annotated on inspection sheets provided by the City's Facility
Manager to Agency. Agency shall be responsible for general cleanup of the STC Facilities following its use
of the same. For purposes of this Agreement, "cleanup" for STC Facilities will be described in further detail
in the STC Facilities SOP.
3.13 Notices. Except as otherwise expressly provided by law, any and all notices or other
communications required or permitted by this Agreement to be served on or given to either Party to this
Agreement shall be in writing and shall be deemed duly served or given when personally delivered to the
Party to whom it is directed or to any managing or executive officer or director of that Party in lieu of
personal service when deposited in the United States mail, first class postage prepaid, addressed as
follows:
If to Agency:
Sergeant Scott Grange
Office of Professional Development/SWAT
City of Irvine Police Department
1 Civic Center Plaza
Irvine, CA 92606
If to City:
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Attn: Janean Hawney
Contract Administration
With copy to:
Office of the City Attorney
1200 Carlsbad Village Drive
Carlsbad, CA 92008
3.14 Survival. Agency's obligations to release, indemnify, defend, and hold harmless the
Indemnified Parties as set forth in Section 3.4, shall survive expiration or termination of the term of this
Agreement and shall remain in effect until there is no risk to the City of any liability for any claims or losses
due to the use of the STC Facilities for the Training Events.
3.15 Interpretation. The provisions of this Agreement are intended by the Parties to be
interpreted and construed to provide the fullest protection possible under the law to the City.
3.16 Selection of Counsel. Agency's obligation to indemnify the lndem nified Parties under this
Agreement shall include the obligation of the Agency to defend the City with legal counsel of City's own
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choosing. In the event City elects not to select such counsel, the designation of such counsel shall be made
by the Agency but shall be subject to prior approval by City.
3.17 Entire Agreement This written document contains the entire agreement of the Parties
and supersedes any prior oral or written statements or agreements between the Parties. No supplement,
modification, or amendment of this Agreement shall be binding unless executed in writing by the Parties.
3.18 Waiver and Severability. No waiver of any default shall constitute a waiver of any other
breach or default, whether of the same orof any other covenant or condition. No waiver, benefit, privilege
or service voluntarily given or performed by either Party shall give the other party any contractual right
by custom, estoppel or otherwise. If any provision of this Agreement is invalid or unenforceable with
respect to any Party, the remainder of this Agreement or the application of such provision to persons
other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision
of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
3.19 Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute an original and which collectively shall constitute one instrument.
3.20 Authority; Binding on Successors and Assigns. Each Party warrants that the individuals
who have signed this Agreement have the legal power, right, and authority to enter into this Agreement
and bind each respective Party. This Agreement shall be binding on and inure to the benefit of the
successors and permitted assignees of the respective Parties. Notwithstanding the foregoing, this
Agreement may not be assigned by Agency unless City consents in writing to such assignment.
3.21 Governing Law and Venue. This Agreement shall be governed by the laws of the State of
California. Any action to interpret or enforce this Agreement shall be brought and maintained exclusively
in the courts of and for San Diego County, California.
[signatures on following page]
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4. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it, on behalf of Agency, each
represent and warrant that they have the legal power, right and actual authority to bind Agency to the
terms and conditions of this Agreement.
CITY OF CARLSBAD
By: Attest
Geoff Patnoe, City Manager for Sherry Freisinger, City Clerk
If required by City, proper notarial acknowledgment of execution by Agency must be attached. If a corporation,
Agreement must be signed by one corporate officer from each of the following two groups:
Group A
Chairman,
President, or
Vice-President
AGENCY
By:
By:
Signature
Michael Kent
Name (print)
Chief of Police
Title ( print)
APPROVED AS TO FORM
CINDIE K. McMAHON, City Attorney
By:
City Attorney
Group B
Secretary,
Assistant Secretary,
CFO, or Assistant Treasurer
By:
Signature
By:
Name (print)
By:
Title (print)
APPROVED AS TO FORM:
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EXHIBIT "A"
SAFETY TRAINING CENTER FACILITY DESCRIPTION,
CAPABILITIES AND LOCATION
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1. The Carlsbad Safety Training Center (STC) is a four-acre facility that provides training resources
which can replicate emergency scenarios and high-risk training events that Joint First Responders
may encounter when conducting public safety operations. The STC Facilities are predominantly
used by firefighting and law enforcement agencies to maintain and enhance their First Responder
capabilities and to increase the readiness of internal public safety networks. The training
conducted at this facility is crucial to building a rapid and capable First Responder Agency that can
respond to emergencies within the City of Carlsbad and outlying cities.
2. The STC Facilities consists of a primary training building which houses two indoor shooting ranges
(25 yards and 100 yards), multiple storage areas, and three classrooms with audio visual systems,
and a training room for computer generated training scenarios. The outside areas of the facility
consist of a residential live fire burn prop, four story commercial tower with multiple live fire burn
props, confined space training area, trench extrication area, vehicle extrication area, city
streetscape, emergency vehicle training area (grinder), parking, and various equipment storage
areas that house City of Carlsbad Police and Fire related equipment.
3. General Location Information:
a. The STC is located at 5750 Orion Street, Carlsbad, CA 92010.
b. U.S. Geological Survey {USGS) Information:
-Map Sheet: San Luis Rey Quadrangle, California-San Diego (7.5 Minute Series)
-Latitude and Longitude: N 33° 81 16.106" W 117° 16' 0.397"
-Grid Reference System (10-digit/WGS-84 Datum); .115 MS 75118 66596
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Sample only-This form will be completed upon the commencement of training
EXHIBIT "B"
PARTICIPANT RELEASE
(HOLD HARMLESS CERTIFICATION)
1, ________________ (print name), have voluntarily requested that the
City of Carlsbad ("City") allow me to use or observe the use of the facilities at the Carlsbad Safety Training
Center and/or the various safety training apparatus located at 5750 Orion Street, Carlsbad, California,
92010, known as the Carlsbad Safety Training Center ("STC Facilities"), for the purposes of Firearms
Training and other Law Enforcement Training Activities on or about ________ ("Training
Events"). I hereby acknowledge, understand and agree that the City is allowing the use of said STC
Facilities for my sole benefit. I also acknowledge, understand and agree that by using STC Facilities I may
be exposed to risks of damage to my person or property, including, but not limited to, personal property
damage, personal bodily injury, mental or psychological effects, gunshot wounds, small explosions, strikes
from bullet fragments and shell casings, falls from high structures, trip and snag hazards, falls on wet
surfaces, lead contamination, falling debris, motor vehicle accidents, and/or other known and unknown
hazards that may result in serious bodily injury or death. I understand, acknowledge and agree that such
serious bodily injury or death may be caused, either directly or indirectly, in whole or in part, by the fact
that I am present upon the STC Facilities site whether or not I may be participating in or observing a
Training Event.
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that 1 am fully aware of the risks and hazards
inherent in using or observing the use of STC Facilities or participating in a Training Events, and I hereby
accept and assume full responsibility for any and all risks of damage, injury, effects or death resulting to
me or my property while using or observing the use of the STC Facilities, or participating in a Training
Event, or resulting from the use or condition of STC Facilities, whether or not using STC Facilities, and
whether or not the risks are known or unknown to me or to City. ___ (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE, in consideration for the City allowing me to
use or observe the use of STC Facilities or to participate in the Training Events, that I, my personal
representatives, heirs, next-of-kin and assigns (collectively the "Releasers") hereby release, waive,
discharge, and covenant not to sue or bring any claim or demand, whether administrative, judicial or
otherwise, against the City and its elected officials (appointed and elected), officers, employees,
contractors, agents, and volunteers for any and all liability from and for any loss or damage to me or the
other Releasors, and from and for any claims or demands therefor on account of injury to the person or
property of me or the other Releasors, including, but not limited to, personal property damage, personal
bodily injury, mental or psychological effects, or death, whether caused by the negligence or willful
misconduct of me, the City, other participants in the Training Events, or anyone else while I participate in
the Training Events, or the condition ofSTC Facilities and whether or not using STC Facilities, and whether
or not the risks are known or unknown to me or the City. ___ (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE to release on my behalf and on behalf of
the Releasers any and all unknown claims. I understand and agree that the released claims include not
only claims presently known to me and/or the Releasors, but also include all known and unknown,
suspected and unsuspected, claims, rights, demands, actions, obligations, liabilities, and causes of action
of every kind and character that would otherwise come within the scope of the claims released herein. I
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understand that I and/or the Releasors may hereafter discover facts different from what I/they now
believe to be true, which if known, could have materially affected the terms of this release, waiver,
indemnity and hold harmless certification, but we (the Releasors and I) nevertheless waive and relinquish
any claims or rights based on such different or additional facts. With respect to the released claims, I
knowingly and voluntarily waive and relinquish any and all rights or benefits that I and/or the Releasors
may now have, or in the future may have, under the terms of Section 1542 of the California Civil Code,
which provides as follows:
"A general release does not extend to claims which the creditor or
releasing party does not know or suspect to exist in his or her favor at the
time of executing the release and that, if known by him or her, would
have materially affected his or her settlement with the debtor or released
party."
___ (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE to defend, indemnify, save and hold free
and harmless the City and its elected officia Is, officers, employees, contractors, agents, and volunteers
from any and all liability from loss, damage, cost or injury, including death, to any property or persons,
including third parties, in any manner arising out of or incident to any acts, omissions or willful misconduct
of me while I participate in the Training Events, whether while using STC Facilities, including without
limitation the payment of attorneys' fees and costs (with attorneys of City's choosing, in its sole and
absolute discretion). Further, I shall defend at my own expense, including attorneys' fees and costs (with
attorneys of City's choosing, in its sole and absolute discretion), the City and its elected officials, officers,
employees, contractors, agents, and volunteers in any action or proceeding, legal, administrative or
otherwise, based upon such acts, omissions or willful misconduct. ___ (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that this release, waiver, indemnity and hold
harmless certification is intended to be as broad and inclusive as is permitted by the laws of the State of
California, and that if any portion thereof is held invalid, it is agreed that the balance shall,
notwithstanding, continue in full legal force and effect. ___ (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that I have read, understand, and voluntarily
sign this release, waiver, indemnity and hold harmless certification and have had the opportunity to
review this certification with legal counsel, and I agree that no oral representations, statements or
inducements apart from the foregoing written certification have been made, and I further agree this
certification shall be binding on me and my personal representatives, heirs, assigns and next-of-kin.
___ (Initial)
I HEREBY ACKNOWLEDGE, UNDERSTAND AND AGREE that I am age 18 or older, and that I will
strictly abide by all safety requirements and other instructions given to me by any and all City personnel
and/or agency instructors at all times during my presence on the STC site and during my participation in
any Training Events or use of STC Facilities. ___ (Initial)
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I HAVE CAREFULLY READ, UNDERSTAND, ACKNOWLEDGE AND AGREE TO THIS RELEASE, WAIVER,
INDEMNITY AND HOLD HARMLESS CERTIFICATION. I UNDERSTAND THAT I AM GIVING UP VALUABLE
LEGAL RIGHTS BY SIGNING THIS RELEASE, WAIVER, INDEMNITY AND HOLD HARMLESS CERTIFICATION. I
HAVE AGREED TO SIGN THIS CERTIFICATION OF MY OWN FREE WILL. I UNDERSTAND THAT I MAY SEEK
THE ADVICE OF AN ATTORNEY IN ANY MATTER CONNECTED WITH THIS RELEASE, WAIVER, INDEMNITY
ANO HOLD HARMLESS CERTIFICATION BEFORE SIGNING.
PARTICIPANT SIGNATURE:
By:
Signature
Printed Name
Date
Agency/Company Name
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EXHIBIT "C"
FISCAL VEAR 2024-2025
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SAFETY TRAINING CENTER FACILITY USE FEES
One Shooting Range
One Shooting Range
rT"wo Shooting Ranges
rJ"wo Shooting Ranges
Classroom
Classroom
Confined Space Prop
Confined Space Prop
Grinder
Grinder
Grinder/Commercial Prop (No Fire Ops)
Grinder/Commercial Prop (No Fire Ops)
Grinder/Residential Prop (No Fire Ops)
Grinder/Residential Prop (No Fire Ops)
PriSim (Training Simulator}
PriSim (Training Simulator)
Pump Draft Pit
Pump Draft Pit
Streetscape
Streetscape
Shooting Range -Hourly
*Fees are subject to change by City Council adopted resolutions
**Fees effective Sept. 1, 2024
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full day $ 1,395.00
1/2 day $ 698.00
full day $ 1,567.00
1/2 day $ 819.00
full day $ 662.00
1/2 day $ 379.00
full day $ 733.00
1/2 day $ 366.00
full day $ 525.00
1/2 day $ 306.00
full day $ 759.00
1/2 day $ 379.00
full day $ 759.00
1/2 day $ 379.00
full day $ 552.00
1/2 day $ 276.00
full day $ 442.00
1/2 day $ 221.00
full day $ 185.00
1/2 day $ 135.00
hourly $ 141.00
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Page 1 of 2
2024-25 MOC Liability
CALIFORNIA INSURANCE POOL AUTHORITY EXCESS LIABILITY MEMORANDUM OF COVERAGE
DECLARATION
1. COVERED PARTIES: See Endorsement Number 1
2. MAILING ADDRESS:
California Insurance Pool Authority
c/o Kiser & Company 366 San Miguel Drive Suite 312 Newport Beach, CA 92660 3. COVERAGE PERIOD:
Effective Date: July 1, 2024
Expiration Date: July 1, 2025
At 12:01 a.m. at mailing address of CIPA 4. CONTRACT NUMBER: CIPA-023
5. LIMIT OF LIABILITY FOR COVERAGES A, B, C, D and E:
PER CLAIM/OCCURRENCE:
• All Covered Parties Except the City of Whittier: Difference between $3,000,000 and Self-Insured Retention.
• City of Whittier: Difference between $5,000,000 and Self-Insured Retention.
AGGREGATE LIMIT OF LIABILITY FOR COVERAGES A, B, C, D and E:
ANNUAL AGGREGATE: $20,000,000
The Limit of Liability shall not exceed the highest limit under any one Memorandum of Coverage applicable to a Claim; limits shall not be combined, added or stacked.
6. SELF-INSURED RETENTION:
PER CLAIM/OCCURRENCE: See Endorsement Number 1
ANNUAL AGGREGATE: None
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2024-25 MOC Liability
7. PREMIUM: $10,005,550
Effective Date: July 1, 2024
By:
Derick Yasuda, President
California Insurance Pool Authority (CIPA)
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TABLE OF CONTENTS
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ABOUT THIS MEMORANDUM OF COVERAGE ..................................................................... 1
SECTION I - DEFINITIONS .......................................................................................................... 1
SECTION II - COVERAGES PROVIDED BY THIS MEMORANDUM .................................... 9
1. COVERAGE A: BODILY INJURY AND PROPERTY DAMAGE LIABILITY ............................................................................................................. 9
2. COVERAGE B: PERSONAL AND ADVERTISING INJURY LIABILITY ..... 10
3. COVERAGE C: PUBLIC OFFICIALS ERRORS AND OMISSIONS LIABILITY ........................................................................................................... 10
4. COVERAGE D: EMPLOYMENT PRACTICES LIABILITY ........................... 11
5. COVERAGE E: EMPLOYEE BENEFITS LIABILITY ..................................... 12
SECTION III - EXCLUSIONS: WHAT THE AUTHORITY WILL NOT COVER ................... 12
1. EXCLUSIONS TO BODILY INJURY, PROPERTY DAMAGE, PERSONAL AND ADVERTISING INJURY, PUBLIC OFFICIALS ERRORS AND OMISSIONS, EMPLOYMENT PRACTICES LIABILITY, AND EMPLOYEE BENEFITS LIABILITY COVERAGES ........................................ 12
2. ADDITIONAL EXCLUSIONS WHICH APPLY TO COVERAGE A, BODILY INJURY AND PROPERTY DAMAGE LIABILITY .......................... 20
3. ADDITIONAL EXCLUSIONS WHICH APPLY TO COVERAGE B, PERSONAL AND ADVERTISING INJURY LIABILITY ................................ 20
4. ADDITIONAL EXCLUSIONS WHICH APPLY TO COVERAGE C,
PUBLIC OFFICIALS ERRORS AND OMISSIONS LIABILITY...................... 21
5. ADDITIONAL EXCLUSIONS WHICH APPLY TO COVERAGE D, EMPLOYMENT PRACTICES LIABILITY ....................................................... 22
6. ADDITIONAL EXCLUSIONS WHICH APPLY TO COVERAGE E, EMPLOYMENT BENEFITS LIABILITY .......................................................... 24
SECTION IV - WHO IS A COVERED PARTY .......................................................................... 25
SECTION V - CONDITIONS OF COVERAGE; YOUR DUTIES TO US ................................. 27
SECTION VI - THE TOTAL THE AUTHORITY WILL PAY ................................................... 35
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SECTION VII - YOUR SELF-INSURED RETENTION ..............................................................36
SECTION VIII - DISPUTES BETWEEN YOU AND THE AUTHORITY .................................36
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ABOUT THIS MEMORANDUM OF COVERAGE
This Excess Liability Memorandum of Coverage (“Memorandum”) provides for the pooling of
self-insured Claims and losses among entities on a group basis. In return for timely payment of
contributions set by the California Insurance Pool Authority (the “Authority”), and subject to all terms of this Memorandum, the Authority protects its Member Agencies and other Covered Parties by providing reimbursement for certain liabilities and Defense Costs for Claims as described below. Under this Memorandum, the Authority has no duty to defend a Member
Agency against any claim, nor to indemnify a Member Agency for defense expenses and attorneys’ fees incurred as a result of any claim to which this Memorandum does not apply.
This Memorandum does not provide insurance, but instead provides for pooled risk sharing. This Memorandum is a negotiated agreement amongst the Member Agencies of the Authority and none of the parties to the Memorandum is entitled to rely on any contract interpretation
principles which require interpretation of ambiguous language against the drafter of such Memorandum. This Memorandum shall be applied according to the principles of contract law, giving full effect to the intent of the Member Agencies of the Authority, acting through the Board of Directors in adopting this Memorandum. This Memorandum must be read together with, and is subject to, the terms of the agreement creating the Authority. Coverage is
determined under the terms of this Memorandum, as interpreted under the policies and procedures of the Authority. Any disputes with the Authority under this Memorandum not resolved under those policies and procedures must be arbitrated as set forth in Section VIII of this Memorandum. Throughout this Memorandum the words “you” and “your” refer to the Covered Party shown on the Declaration page, and any other person or organization qualifying
as a Covered Party under the terms of this Memorandum. The words “we”, “us” and “our” refer to the Authority. Words and phrases that appear in bold have special meanings and are defined on this page or in Section I.
SECTION I - DEFINITIONS
1. Administration means any of the following acts that a Covered Party does or
authorizes any person to do:
a. Providing information to Employees including their dependents and beneficiaries, with respect to eligibility for or scope of the Employee Benefits Program;
b. Handling records in connection with the Employee Benefits Program, or
c. Effecting, continuing or terminating any Employee’s participation in any benefit
included in the Employee Benefits Program.
However, Administration does not include handling payroll deductions.
2. Advertisement means a notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting users, customers or supporters. For the purposes of this
definition:
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a. Notices that are published include material placed on the Internet or on similar electronic means of communication; and
b. Regarding web-sites, only that part of a website that is about your products or
services for the purposes of attracting customers or supporters is considered an Advertisement.
3. Authority means the California Insurance Pool Authority established by its Member Agencies under a joint powers agreement for the pooling of self-
insured claims and losses per Government Code §989 et seq.
4. Auto means a land motor vehicle, trailer or semi-trailer, including any attached machinery or equipment. Auto includes Mobile Equipment.
5. Bodily Injury means bodily harm, sickness or disease sustained by a person, including death resulting from any of these at any time. Bodily Injury includes
mental anguish and mental injury and emotional distress, but only when resulting directly from physical injury; neither physical injury resulting from mental anguish, mental injury or emotional distress nor mental anguish, mental injury or emotional distress not resulting directly from physical injury are covered under this Memorandum.
6. Cafeteria Plans means plans authorized by applicable law to allow Employees to elect to pay for certain benefits with pre-tax dollars.
7. Claim means a written demand for Damages, including: (1) service of a lawsuit or other civil proceeding commenced by the service of a complaint or similar proceeding or institution of arbitration proceedings against a Covered Party; (2)
a demand made under an applicable claims presentation statute, on behalf of one alleged to have been damaged by a Covered Party; or (3) a formal administrative or regulatory proceeding (including without limitation an EEOC Proceeding) commenced by the Covered Party’s receipt of a notice of charges, formal investigative order or similar document. Claim does not include an
action for declaratory or equitable relief or proceedings for injunction, writ of mandate, restitution, constructive trust, rescission, reformation, or specific performance of a contract. The inclusion in a writ of mandate action of a claim for damages under section 1095 of the Code of Civil Procedure, or under similar provisions of state or federal law, shall not cause such an action to be a covered Claim.
8. Completed Operations Hazard includes Bodily Injury and Property Damage occurring away from premises a Covered Party owns or rents and arising out of the work of a Covered Party, except work that has not yet been completed or abandoned. However, work will be deemed completed at the earliest of: (a)
when all of the work called for by a project has been completed; (b) when all of
the work to be done at the job site has been completed if the project calls for work at more than one job site; (c) when that part of the work done at a job site
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has been put to its intended use by any person or organization other than a contractor or subcontractor working on the same project. Work that may need
service, maintenance, correction, repair or replacement, but which is otherwise
complete, will be treated as completed.
9. Coverage Territory means all parts of the world.
10. Coverage Period means the period of time stated in the Declaration.
11. Covered Contract means:
a. A contract for a lease of premises, including but not limited to premises rented or loaned to the Covered Party;
b. An elevator maintenance agreement;
c. Any easement or license agreement;
d. An obligation, as required by ordinance;
e. That part of any other agreement pertaining to your operations under which you assume the tort liability of another party to pay for Bodily Injury or Property Damage to a third person or organization. Tort liability means a liability that would be imposed by law on the other party in the absence of any agreement.
This subparagraph does not include that part of any agreement:
(1) That indemnifies an architect, engineer, inspector or surveyor for injury or damage arising out of:
(a) Preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or
(b) Giving directions or instructions, or failing to give them, if that is the primary cause of the Bodily Injury or Property Damage.
(2) Under which the Covered Party, if an architect, engineer, inspector or surveyor, assumes liability for an injury or damage arising out of the Covered Party’s rendering or failure to render professional services, including those listed in (1)
above, and supervisory, inspection, architectural or engineering activities.
12. Covered Party means a Member Agency in good standing in the Authority, as identified in the Declaration, protected by this Memorandum. In addition, Covered Party means any person or organization qualifying as such under Section IV – Who Is A Covered Party.
13. Dam means any artificial barrier together with appurtenant works which:
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a. Is twenty-five feet or more in height from the foot of a natural bed of stream or watercourse; or
b. Has water impounding capacity of fifty acre feet or more.
Except that 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 any agency of the federal government.
14. Damages means a sum of money to be paid in compensation for loss or injury, including any claimant’s attorney fees or legal costs awarded or adjudicated for a Claim covered by this Memorandum. Damages because of Bodily Injury include Damages claimed by any person or organization for care, loss of services or death resulting at any time from the Bodily Injury. Damages also
includes interest on judgments accrued while a covered Claim is on appeal, but does not include interest on a Claim or any part of a claim that is not covered. Damages do not include punitive, exemplary or multiplied damages, or non- monetary relief or redress or injunctive relief.
15. Declaration means the cover pages, which are part of this Memorandum,
identifying the Covered Party(s), the Coverage Period, the Limits of Liability, and any amendments or endorsements to this Memorandum issued by the Authority. It also includes any extended reporting periods granted by the Authority for prior coverage periods, if any.
16. Defense Costs means all court costs, fees and expenses; fees for service of
process; costs of undercover operative and detective services; costs of employing experts for preparation of demonstrative evidence, including but not limited to maps, photographs, diagrams, models, computer simulations, chemical or physical analysis or for advice, opinion or testimony concerning a covered Claim under investigation; costs for legal transcripts or testimony taken at a
coroner’s inquest, criminal proceeding or civil proceeding; costs for copies of any public records; costs of depositions and court reporters or recorded statements; fees charged by defense counsel and any other similar fee, cost, or expense reasonably chargeable to the investigation, settlement, or defense of a covered Claim, or to the protection and perfection of the subrogation rights of
the Covered Party incurred by or on behalf of the Covered Party. Defense Costs shall not include fees or costs paid for any purpose which cannot be charged to a specific covered Claim, or which were incurred or requested prior to notice being given to the Authority of a covered Claim, or an Occurrence likely to result in a covered Claim, or in a manner inconsistent with the Litigation Management Policies adopted by the Authority. Defense Costs shall not include Employees’ salaries or benefits or office expenses or other overhead of the Covered Party or expenses of any claim servicing organization you have engaged, except as specifically authorized by Litigation Management Policies adopted by the Authority.
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17. Domestic Partner means any individual person qualifying as a domestic partner under the provisions of any applicable federal, state or local law.
18. EEOC Proceeding means an investigative proceeding before the Equal
Employment Opportunity Commission or an adjudicatory or investigative proceeding before any similar federal, state or local government body whose purpose is to address Wrongful Employment Practices.
19. Employee includes any full-time or part-time employee of a Covered Party, a
volunteer designated by a Covered Party to perform specific functions in connection with authorized activities under the sole direction and control of a Covered Party, and an elected official of the Covered Party. Employee does not include an independent contractor, or any person employed by an independent contractor to a Covered Party.
20. Employee Benefits Program means a program providing some or all of the following benefits to Employees, whether provided through a Cafeteria Plan or otherwise;
a. Group life insurance, group accident or health insurance, dental, vision and hearing plans, and flexible spending accounts, provided that no one other than an Employee
may subscribe to such benefits and such benefits are made generally available to those Employees who satisfy the plan’s eligibility requirements;
b. Employee savings plans, pension plans, provided that no one other than an Employee may subscribe to such benefits and such benefits are made generally available to all Employees who are eligible under the plan for such benefits;
c. Unemployment insurance, social security benefits, workers’ compensation and disability benefits;
d. Vacation plans, including buy and sell programs; leave of absence programs, including military, maternity, family and civil leave; tuition assistance plans; transportation and health club subsidies; and
e. Any other similar benefits added thereto by endorsement.
21. Employee Benefits Wrongful Act(s) means an actual or alleged negligent act, error or omission committed by the Covered Party or any person for whom the Covered Party is responsible, in the Administration of your Employee Benefits Program.
22. Employment Practices Loss means the total amount which the Covered Party
becomes legally obligated to pay on account of any covered Claim by or on behalf of an Employee of the Covered Party, including vicarious liability of a Covered Party, for Wrongful Employment Practices to which Coverage D applies, including, but not limited to Damages (including front pay), judgments,
prejudgment and post-judgment interest, settlements and Defense Costs.
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Employment Practices Loss does not include back pay, which is not covered by the Authority.
Notwithstanding the foregoing, Employment Practices Loss does not include:
a. Any amount not indemnified by the Covered Party for which the Covered Party is absolved from payment by reason of any covenant, agreement or court order;
b. Fines or penalties imposed by law;
c. Taxes;
d. The cost to comply with any equitable, injunctive, declaratory, administrative or other non-monetary relief or any agreement to provide any such relief;
e. Punitive damages;
f. Any amounts or obligations that are broader than the Covered Party’s duty to defend or indemnify its Employees pursuant to applicable provisions of California
Government Code sections 815, 815.3, 825 through 825.6, and 995 through 995.6, inclusive, and any amendments or succeeding provisions thereof.
23. First Aid means the immediate and emergency care given to an ill or injured person before regular medical aid can be obtained.
24. Hearing Body means either the Executive Committee or Board of Directors of
the Authority, which is selected by the Member Agency to hear a coverage dispute and make a coverage determination by majority vote under the Authority’s policy on Administrative Resolution of Coverage Disputes, as amended from time to time.
25. Hostile Fire means one which becomes uncontrollable or breaks out from where
it was intended to be.
26. Litigation Management Policies means the litigation management policies adopted by the Authority, including the Liability Program Defense Counsel Policy, as may be amended from time to time.
27. Limit of Liability means the maximum amount the Authority will pay for a Claim in excess of the Covered Party’s Self-Insured Retention; in other words, the Authority will pay no more than the difference between the Limit of Liability and the Covered Party’s Self-Insured Retention. The Limit of Liability amount is stated in the Declaration that is part of this Memorandum.
28. Loading or Unloading means the handling of property:
a. After it is moved from the place where it is accepted for movement into or onto an
aircraft;
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b. While it is in or on an aircraft; or
c. While it is being moved from an aircraft to the place where it is finally delivered;
But Loading or Unloading does not include the movement of property by means of a
mechanical device, other than a hand truck, that is not attached to the aircraft.
29. Member Agency means any public entity that is a member of the Authority in good standing pursuant to the Authority’s Joint Powers Agreement and Bylaws.
30. Mobile Equipment means any of the following types of land vehicles, including
any attached machinery or equipment:
a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads;
b. Vehicles maintained for use solely on or next to premises you own or rent;
c. Vehicles that travel on crawler treads;
d. Vehicles, whether self-propelled or not, maintained primarily to provide mobility to permanently mounted:
(1) Power cranes, shovels, loaders, diggers or drills; or
(2) Road construction or resurfacing equipment such as graders, scrapers or rollers;
e. Vehicles not described in a., b., c. or d. above that are not self-propelled and are
maintained primarily to provide mobility to permanently attached equipment of the following types:
(1) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment; or
(2) Aerial lifts and similar devices used to raise or lower workers;
f. Vehicles not described in a., b., c., d. or e above, maintained primarily for purposes other than the transportation of persons or cargo.
However, self-propelled vehicles with the following types of permanently attached equipment will also be considered Mobile Equipment:
(1) Equipment designed primarily for:
(a) Road maintenance, but not construction or resurfacing; or
(b) Street cleaning;
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(c) Aerial lifts and similar devices mounted on automobile or truck chassis and used to raise or lower workers.
31. Occurrence means an accident, offense, error, omission, employment practice or
wrongful act, including continuous or repeated exposure to substantially the same general harmful conditions, which results in Bodily Injury, Property Damage, Personal and Advertising Injury, Public Officials Errors and Omissions, Employment Practices Loss or Employee Benefits Wrongful Act.
32. Personal and Advertising Injury means injury, including consequential Bodily Injury, arising out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the right of private
occupancy of a room, dwelling or premises that a person occupies;
d. Oral or written publication of material, including any Advertisement that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services or which violates an individual’s right of privacy;
e. False or improper service of process;
f. Humiliation; or
g. Assault or battery, not committed by or at the direction of the Covered Party unless committed for the purpose of the protection of persons or property.
33. Property Damage means physical injury to or destruction of tangible property, including the resulting loss of its use, or loss of use of tangible property which has not been
physically injured or destroyed.
34. Public Official’s Errors and Omissions means any (including continuous or repeated) misstatement or misleading statement or act or omission, neglect or breach of duty by any Covered Party.
35. Wrongful Employment Practices means any of the following allegedly committed or
attempted by a Covered Party or any person for whom a Covered Party that is a Member Agency is legally responsible, and resulting in a covered Employment Practices Loss:
a. Any actual or alleged act or omission related to the employment of a claimant, including: recruiting, interviewing, hiring, declining to hire, retention, assigning,
reassigning, granting or placing on leave, performance reviews, supervision,
promotion, training, transfer, disciplinary action, deprivation of a career opportunity, changes in the terms, conditions or status of employment, tenure, demotion,
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compensation, supervision, dismissal, discharge, layoff and termination of the claimant as an Employee;
b. Any actual, alleged or constructive acts of wrongful discharge, unlawful
discrimination, harassment or retaliation in employment, and any other act or omission prohibited by any federal, state or local statute, regulation, ordinance, common law or public policy concerning or regulating employment practices;
c. Any actual or alleged failure to adopt adequate workplace or employment policies
and procedures, employment-related misrepresentation, wrongful reference, employment-related defamation, employment-related wrongful infliction of emotional distress, inducement to become or remain an employee, misrepresentation regarding advancement opportunity or employment compensation, employment- related promissory estoppel, fraudulent inducement, humiliation, or other
employment-related torts; or
d. Any actual or alleged Personal and Advertising Injury, Bodily Injury and Property Damage alleged or suffered by any Employee of the Covered Party, arising out of or logically connected to circumstances described in a., b., or c. above.
36. Wrongful Employment Practices does not include any actual or alleged act or omission
alleged by or related to any claimant who was an independent contractor at the time of such act or omission; provided, however, that for purposes of Coverage D only, Employee shall also mean any independent contractor who is treated under applicable law as an Employee of the Covered Party.
SECTION II - COVERAGES PROVIDED BY THIS MEMORANDUM
1. COVERAGE A: BODILY INJURY AND PROPERTY DAMAGE LIABILITY
a. We will indemnify the Covered Party for those sums that the Covered Party becomes legally obligated to pay as Damages and Defense Costs because of Bodily Injury or Property Damage to which this coverage applies. We may settle any Claim with the consent of the Covered Party named in Endorsement Number 1,
which consent shall not be unreasonably withheld. But:
(1) The amount we will pay for Damages and Defense Costs is limited as described in Section VI – The Total the Authority Will Pay; and
(2) Our duty to indemnify under Coverage A ends when we have used up the applicable Limit of Liability applicable to a Claim in the payment of judgments,
settlements, or Defense Costs under Coverages A, B, C, D and E or any
combination of these coverages, and is further subject to the aggregate Limit of Liability of the Authority.
b. This coverage applies to Bodily Injury and Property Damage only if:
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(1) The Bodily Injury or Property Damage is caused by an Occurrence that takes place in the Coverage Territory; and
(2) The Bodily Injury or Property Damage first occurs during the Coverage Period.
c. No other obligation or liability to pay sums or perform acts or services is covered.
2. COVERAGE B: PERSONAL AND ADVERTISING INJURY LIABILITY
a. We will indemnify the Covered Party for those sums that the Covered Party
becomes legally obligated to pay as Damages and Defense Costs because of Personal and Advertising Injury to which this coverage applies. We may settle any Claim with the consent of the Covered Party named in Endorsement Number 1, which consent shall not be unreasonably withheld. But:
(1) The amount we will pay for Damages and Defense Costs is limited as described
in Section VI – The Total the Authority Will Pay; and
(2) Our duty to indemnify under Coverage B ends when we have used up the applicable Limit of Liability applicable to a Claim in the payment of judgments, settlements or Defense Costs under Coverages A, B, C, D and E, or any combination of these coverages, and further to the aggregate Limit of Liability of
the Authority.
b. This coverage applies to Personal and Advertising Injury only if:
(1) The Personal and Advertising Injury is caused by one or more of the offenses listed in Section I.32., arises out of the operations of the Covered Party and takes place in the Coverage Territory; and
(2) The offense first occurred during the Coverage Period.
c. No other obligation or liability to pay sums or perform acts or services is covered.
3. COVERAGE C: PUBLIC OFFICIALS ERRORS AND OMISSIONS LIABILITY
a. We will indemnify the Covered Party for those sums that the Covered Party becomes legally obligated to pay for Damages and Defense Costs because of a Public Officials Error and Omission to which this coverage applies. We may settle any Claim with the consent of the Covered Party named in Endorsement Number 1, which consent shall not be unreasonably withheld. But:
(1) The amount we will pay for Damages and Defense Costs is limited as described in Section VI – The Total the Authority Will Pay; and
(2) Our duty to indemnify under Coverage C ends when we have used up the
applicable Limit of Liability applicable to a Claim in the payment of judgments,
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settlements, or Defense Costs under Coverages A, B, C, D and E, or any combination of these coverages, and is further subject to the aggregate Limit of
Liability of the Authority.
b. This coverage applies to a Public Officials Error or Omission only if:
(1) The Damages caused by a Public Officials Error or Omission takes place in the Coverage Territory; and
(2) The Public Officials Error or Omission first occurs during the Coverage
Period.
c. No other obligation or liability to pay sums or perform acts or services is covered.
4. COVERAGE D: EMPLOYMENT PRACTICES LIABILITY
a. We will indemnify the Covered Party for those sums that the Covered Party becomes legally obligated to pay as Damages and Defense Costs because of an Employment Practices Loss caused by a Wrongful Employment Practice to which this coverage applies. We may settle any Claim with the consent of the Covered Party named in Endorsement Number 1, which consent shall not be unreasonably withheld. But:
(1) The amount we will pay for Damages and Defense Costs is limited as described
in Section VI – The Total the Authority Will Pay; and
(2) Our duty to indemnify under Coverage D ends when we have used up the applicable Limit of Liability applicable to a Claim in the payment of judgments, settlement, or Defense Costs under Coverages A, B, C, D and E, or any combination of these coverages, and is further subject to the aggregate Limit of Liability of the Authority.
b. This coverage applies to Wrongful Employment Practices only if:
(1) The Employment Practices Loss is caused by Wrongful Employment Practices that take place in the Coverage Territory; and
(2) The Wrongful Employment Practice Claim is reported to the Authority during
the Coverage Period.
c. If a Claim against a Covered Party includes a Claim against the Covered Party’s lawful spouse solely by reason of (1) such spouse’s status as spouse of the Covered Party, or (2) such spouse’s ownership interest in property in which the claimant seeks recovery for alleged Wrongful Employment Practices of the Covered Party, all Employment Practices Loss which such spouse becomes legally obligated to pay by reason of such Claim shall be treated for purposes of this Memorandum as Employment Practices Loss which the Covered Party becomes legally obligated to pay on account of the Claim made against the Covered Party. Such spousal
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Employment Practices Loss shall be covered only if and to the extent such Employment Practices Loss would be covered if incurred by the Covered Party.
The coverage afforded by this Section II, 4.c. does not apply to any Claim alleging
any wrongful act or omission by the Covered Party’s spouse. For purposes of the coverage afforded in this Section II, 4.c., spousal liability to the lawful spouse of a Covered Party under this Memorandum shall also extend to any individual Domestic Partner of such Covered Party.
d. No other obligation or liability to pay sums or perform acts or services is covered.
5. COVERAGE E: EMPLOYEE BENEFITS LIABILITY
a. We will indemnify the Covered Party for those sums that the Covered Party becomes legally obligated to pay as Damages and Defense Costs because of an Employee Benefits Wrongful Act to which this coverage applies. We may settle
any Claim with the consent of the Covered Party named in Endorsement Number 1, which consent shall not be unreasonably withheld. But:
(1) The amount we will pay for Damages and Defense Costs is limited as described in Section VI – The Total the Authority Will Pay; and
(2) Our duty to indemnify under Coverage E ends when we have used up the
applicable Limit of Liability applicable to a Claim in the payment of judgments, settlement, or Defense Costs under Coverages A, B, C, D and E, or any combination of these coverages, and is further subject to the aggregate Limit of Liability of the Authority.
b. This coverage applies to Employee Benefits Wrongful Acts only if:
(1) The Employee Benefits Wrongful Act is caused by the negligent Administration of your Employee Benefits Program that occurs in the Coverage Territory; and
(2) The Employee Benefits Wrongful Act first occurs during the Coverage Period.
c. No other obligation or liability to pay sums or perform acts or services is covered.
SECTION III - EXCLUSIONS: WHAT THE AUTHORITY WILL NOT COVER
1. EXCLUSIONS TO BODILY INJURY, PROPERTY DAMAGE, PERSONAL AND ADVERTISING INJURY, PUBLIC OFFICIALS ERRORS AND OMISSIONS, EMPLOYMENT PRACTICES LIABILITY, AND EMPLOYEE BENEFITS LIABILITY COVERAGES
This section lists exclusions for which the Authority will not pay Damages or Defense Costs. Unless otherwise specified, these exclusions apply to Coverages A, B, C, D and E.
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This Memorandum does not provide coverage for:
a. Expected or Intended Injury
(1) Damages or Defense Costs because of Bodily Injury, Property Damage or Personal and Advertising Injury which is expected or intended from the standpoint of the Covered Party or which is caused by a willful act of the Covered Party. This exclusion does not apply to Bodily Injury resulting from the use of reasonable force to protect persons or property. However, where the
Covered Party did not authorize, ratify, participate in, consent to or have knowledge of such conduct by its past or present Employee, elected or appointed official or volunteer and the claim against the Covered Party is based solely on its vicarious liability arising from its relationship with such Employee, elected or appointed official or volunteer, this exclusion does not apply to that Covered Party.
(2) Damages or Defense Costs because of Public Officials Errors and Omissions, Wrongful Employment Practices or Employee Benefits Wrongful Acts based upon or arising out of any actual or alleged fraud, dishonesty, criminal conduct, or any knowingly wrongful, malicious or intentional acts or omissions. However,
where the Covered Party did not authorize, ratify, participate in, consent to or have knowledge of such conduct by its past or present Employee, elected or appointed official or volunteer and the claim against the Covered Party is based solely on its vicarious liability arising from its relationship with such Employee, elected or appointed official of volunteer, this exclusion does not apply to that Covered Party.
b. Willful Violation of Penal Statute or Ordinance
Bodily Injury or Property Damage or Personal and Advertising Injury, or Damages resulting from a Public Officials Error or Omission, Wrongful Employment Practice or Employee Benefits Liability arising out of the willful
violation of a penal statute or ordinance committed by or with the knowledge or consent of any Covered Party, or Claims arising out of the acts of fraud committed by or at the direction of a Covered Party. However, where the Covered Party did not authorize, ratify, participate in, consent to or have knowledge of such conduct by its past or present Employee, elected or appointed
official or volunteer and the claim against the Covered Party is based solely on its vicarious liability arising from its relationship with such Employee, elected or appointed official or volunteer, this exclusion does not apply to that Covered Party.
c. Aircraft
Bodily Injury or Property Damage arising out of the ownership, maintenance, use
or entrustment to others of any aircraft owned or operated by or rented or loaned to any Covered Party. “Use” includes operation and Loading or Unloading.
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This exclusion shall not apply to any small Unmanned Aircraft System (hereinafter referred to as UAS), which is owned or operated by or rented or loaned to any
Covered Party. However, coverage as provided hereunder applies only when:
(1) The UAS weighs 55 pounds or less; and only when
(2) Such UAS is being operated by a person that holds either a remote pilot airman certificated with a small UAS rating or under the direct supervision of a person who holds a remote pilot certificate (remote pilot in command) or exclusively for
educational or recreational purposes; and only when
(3) The UAS is operated in full compliance with the most current established rules and regulations of the Federal Aviation Administration applicable to UAS.
d. Workers’ Compensation and Similar Laws
Liability arising out of any obligation of the Covered Party under a workers’
compensation, disability benefits or unemployment compensation law or any similar law.
e. Employer’s Liability
Bodily Injury to an Employee of the Covered Party arising out of and in the course of:
(1) Employment by the Covered Party; or
(2) Performing duties related to the conduct of the Covered Party’s operations.
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 Damages with or repay someone else who must pay Damages because of the injury.
f. Contractual Liability
Liability for breach of any agreement or wrongful denial of the existence of a contract or contractual obligation, including liability for which the Covered Party is obligated to pay Damages by reason of the assumption of liability in an agreement. This exclusion does not apply to liability for Damages:
(1) That the Covered Party would have in the absence of the agreement; or
(2) Assumed in an agreement that is a Covered Contract, provided that Bodily Injury or Property Damage occurs subsequent to the execution of the agreement. Solely for the purposes of liability assumed in a Covered Contract, reasonable attorney fees and necessary litigation expenses incurred by or for a
party other than a Covered Party are deemed to be Damages because of Bodily Injury or Property Damage, provided:
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(a) Liability to such party for, or for the cost of, that party’s defense has also been assumed in the same Covered Contract; and
(b) Such attorney fees and litigation expenses are for defense of that party against
a civil or alternative dispute resolution proceeding in which Damages to which this Memorandum applies are alleged.
With respect to Coverage D only, this exclusion does not apply to Employment Practices Loss incurred by a Covered Party on account of any
Claim for breach of any oral, written or implied employment contract or quasi-employment contract. With respect to Coverage E only, this exclusion does not apply to Damages because of an Employee Benefits Wrongful Act.
g. ERISA, RICO, Antitrust or Securities Law Violations
Liability arising out of the provisions of the:
(1) Employee Retirement Income Security Act of 1974 (ERISA), Public Law 93-406; commonly referred to as the Pension Reform Act of 1974, except as respects liability arising out of noncompliance with HIPAA where such noncompliance constitutes a Wrongful Employment Practice;
(2) Securities Act of 1933 or the Securities Exchange Act of 1934; and any
amendments thereto; or the provisions of any similar federal, state or local statute, or common law, in whole or in part;
(3) Racketeering, Influence & Corrupt Organization Act;
(4) The federal Sherman Antitrust Act, or the Cartwright Act, Unfair Practices Act or Unfair Competition Act of the State of California, or the provisions of any similar
federal, state or local statute or common laws, in whole or in part.
h. Pollution
(1) Liability arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic materials, liquids or gases, waste material or other irritants, contaminants or pollutants into or upon land, the atmosphere or
any water course or body of water including any discharge, dispersal, release or escape of liquid or solid matter from the back-up or failure of any sewage conveyance line, system or pipe. The term “Liquid” as used in this paragraph shall not mean potable water or agricultural water, or water furnished to commercial users. The term “Waste Material” as used in this paragraph does not
include water, whether recycled, reconditioned or reclaimed.
(2) Any loss, cost or expense arising out of any:
(a) Request, demand, order or statutory or regulatory requirement that any Covered Party or others test for, monitor, clean up, remove, contain, treat,
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detoxify or neutralize, or in any way respond to, or assess the effects of smoke, vapors, soot, fumes, acids, alkalis, toxic materials, liquids or gases,
waste material or other irritants, contaminants pollutants; or
(b) Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, or neutralizing, or in any way responding to, or assessing the effects of smoke, vapors, soot, fumes, acids, alkalis, toxic
materials, liquids or gases, waste material or other irritants, contaminants or pollutants.
(3) This exclusion does not apply to:
(a) Liability arising out of explosion, lightning, windstorm, vandalism, malicious mischief, collapse, riot and civil commotion, flood or earthquake;
(b) Liability arising out of police use of mace, oleoresin capsicum (o.c.), pepper gas or tear gas;
(c) Liability arising out of weed abatement or spraying;
(d) Liability for Bodily Injury, Property Damage or Personal and Advertising Injury caused by heat, smoke or fumes from a hostile fire involving a
property which is owned, rented or occupied by the Covered Party or upon which the Covered Party is performing operations or upon which operations are being performed on behalf of the Covered Party.
(4) This exclusion does not apply to liability for Bodily Injury, Property Damage or Personal and Advertising Injury caused by an upset or collision of an Auto
owned or leased by the Covered Party.
(5) This exclusion does not apply to liability for Bodily Injury, Property Damage or Personal and Advertising Injury caused by smoke, fumes, vapor or soot from equipment used to heat, cool, or humidify air within a building or equipment that is used to heat water for personal use by the building’s occupants or guests.
i. War
Liability arising out of war, whether or not declared, or any act or condition incident to war. War includes civil war, insurrection, rebellion or revolution.
j. Damage to Property
Liability arising out of injury to or destruction of:
(1) Property owned by a Covered Party, or
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(2) Property rented or leased to the Covered Party where the Covered Party has assumed liability for damage to or destruction of such property unless the
Covered Party would have been liable in the absence of such assumption of
liability, or
(3) Aircraft or watercraft in the care, custody or control of any Covered Party.
k. Airfields
Liability arising out of or caused by or contributed to by any: ownership,
maintenance, operation, use or control of or responsibility for any airfield, airport, runway, hangar, building or other property or facility designed for, used, connected, associated or affiliated with or in any way related to aviation or aviation activities.
l. Medical Malpractice
Liability arising out of or contributed to by the rendering of or failure to render any
professional service in any hospital, clinic, or any other location or as part of any inpatient, outpatient or other program, treatment or therapy, except arising out of occupational physical examinations, ambulance operations, paramedics or emergency medical technicians of the Covered Party referrals, emergency consultation or First Aid to any person.
m. Inverse Condemnation
Liability arising out of or in connection with the principles of eminent domain, condemnation proceedings or inverse condemnation by whatever name called, regardless of whether such Claims are made directly against the Covered Party or by virtue of any agreement entered into by or on behalf of the Covered Party.
However, this exclusion shall not apply where recovery is sought in a Claim for inverse condemnation, eminent domain or condemnation by whatever name called, either for (1) liability for physical injury to or destruction of tangible property which is caused by an Occurrence during the Coverage Period, including liability for the loss of use thereof at any time resulting therefrom, or for (2) liability for loss of use of
tangible property which has not been physically injured or destroyed, where such loss of use is caused by an Occurrence during the Coverage Period; provided, however, that in any case in which a Claim for physical injury to or destruction of tangible property or loss of use of property is made, there shall be no coverage for liability for reduced value of property (diminution of value), attorneys’ fees or expert fees
awarded to the claimant, severance damages, relocation costs or any other form of relief however denominated, based solely on any form of eminent domain.
n. Failure to Provide Services
Liability arising out of, in connection with or caused or contributed to by any failure or inability to supply power, steam, pressure, fuel, or water.
o. Punitive and Other Non-Compensable Damages
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Fines, penalties, punitive damages, exemplary damages, or multiple damages.
p. Subsidence
Any Property Damage directly or indirectly arising out of, caused by, related in any
manner to, resulting from, contributed to or aggravated by the subsidence, settling, sinking, slipping, falling away, caving in, shifting, eroding, mud flow, rising, tilting, or any movement of land or earth of any kind or description, whether or not such Property Damage arises out of, or is attributable to any operations of the Covered
Party, and regardless of cause.
q. Dam Failure
Liability arising out of the rupture, bursting, overtopping, accidental discharge, or partial or complete structural failure of any Dam.
r. Asbestos
Bodily Injury or Property Damage or Personal and Advertising Injury arising out of the mining, manufacture, use of, sales of, installation of, distribution of, removal of or exposure to asbestos products, asbestos fibers or asbestos dust.
s. Nuclear Liability
(1) Liability:
(a) With respect to which a Covered Party under this Memorandum is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association Of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its Limit of Liability, or
(b) Resulting from the Hazardous Properties of Nuclear Material and with respect to which (a) any person or organization is required to maintain financial protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or (b) the Covered Party is, or had this Memorandum not been
issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United States of America, or any agency thereof, with any person or organization.
(2) Loss resulting from the Hazardous Properties of Nuclear Material, if:
(a) The Nuclear Material (1) is at any Nuclear Facility owned by, or operated by
or on behalf of, a Covered Party or (2) has been discharged or dispersed
therefrom;
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(b) The Nuclear Material is contained in Spent Fuel or Waste at any time possessed, handled, used, processed, stored, transported or disposed of by or
on behalf of a Covered Party; or
(c) The Loss arises out of the furnishing by a Covered Party of services, materials, parts or equipment in connection with the planning, construction, maintenance, operation or use of any Nuclear Facility, but if such facility is located within the United States of America, its territories or possessions or
Canada, this subparagraph applies only to loss to such Nuclear Facility and any property there.
(3) As used in this exclusion:
(a) “Hazardous Properties” include radioactive, toxic or explosive properties;
(b) “Nuclear Material” means Source Material, Special Nuclear Material, Special
Nuclear Material or Byproduct Material;
(c) “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;
(d) “Spent fuel” means any fuel element or fuel component, solid or liquid, which
has been used or exposed to radiation in a nuclear reactor;
(e) “Waste” means any waste material (1) containing Byproduct Material and (2) resulting from the operation by any person or organization of any Nuclear Facility;
(f) “Nuclear Facility” means
(1) Any nuclear reactor,
(2) Any equipment or device designed or used for (A) separating the isotopes of uranium or plutonium, (B) processing or utilizing spent fuel, or (C) handling, processing or packaging waste,
(3) Any equipment or device used for the processing, fabricating or alloying
of Special Nuclear Material if at any time the total amount of such material in the custody of the Covered Party at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 gram of uranium 235,
(4) Any structure, basin, excavation, premises or place prepared or used for
the storage or disposal of Waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations;
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(g) “Nuclear Reactor” means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of
fissionable material;
(h) “Loss” includes all forms of radioactive contamination of property.
t. Nonmonetary Relief
2. Any Claim seeking relief or redress in any form other than monetary damages, or for any costs, fees, or expenses which the Covered Party shall be obligated to pay as a result of
any adverse judgment for injunctive, declaratory, equitable, administrative, writ or other non-monetary relief or remedies. ADDITIONAL EXCLUSIONS WHICH APPLY TO COVERAGE A, BODILY INJURY AND PROPERTY DAMAGE LIABILITY
This Memorandum does not provide coverage for:
a. Discrimination
Liability arising out of any alleged or actual discrimination based upon, without limitation, an individual’s race, ethnicity, ancestry, national origin, citizenship, religion, age, sex, including gender identification, sexual orientation or preference, pregnancy, preexisting medical condition, physical or mental disability or handicap or any other factor prohibited under applicable federal or state law.
b. Own Employees
Liability arising out of any Claim by any Covered Party against its own past or present elected or appointed officials, Employees, volunteers or other Covered Parties.
c. Other Coverages
Any Claim arising out of, based upon or attributable to Public Officials Errors and Omissions liability, Personal and Advertising Injury liability, Wrongful Employment Practices or Employee Benefits Liability, in whole or in part, to the extent covered under Coverages B, C, D or E.
3. ADDITIONAL EXCLUSIONS WHICH APPLY TO COVERAGE B, PERSONAL
AND ADVERTISING INJURY LIABILITY
This Memorandum also does not provide coverage for:
a. Breach of Contract
Liability arising out of a breach of contract or wrongful denial of the existence of a contract or contractual provision.
b. Product Liability
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Liability arising out of the failure of goods, products or services to conform with any statement of quality or performance made in the Covered Party’s Advertisement.
c. Product Description
Liability arising out of the wrong description of the price of goods, products or services stated in the Covered Party’s Advertisement;
d. Advertising Business
Personal and Advertising Injury committed by a Covered Party engaged in the
business of advertising, broadcasting, publishing or telecasting, including designing or determining content of websites for others, or providing an Internet search, access or content service for others. The placing of frames, borders or links, or advertising, for you or others, anywhere on the Internet, is not by itself, considered the business of advertising, broadcasting or telecasting.
e. Infringement of Copyright, Patent, Trademark or Trade Secret
Liability arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.
f. Own Employees
Any Claim by any Covered Party against its own past or present elected or
appointed officials, Employees, volunteers or other Covered Parties.
g. Other Coverages
Any Claim arising out of, based upon or attributable to Bodily Injury and Property Damage Liability, Public Officials Errors and Omissions Liability, Employment Practices Liability or Employee Benefits Liability, in whole or in part, to the extent
covered under Coverages A, C, D or E.
4. ADDITIONAL EXCLUSIONS WHICH APPLY TO COVERAGE C, PUBLIC OFFICIALS ERRORS AND OMISSIONS LIABILITY
This Memorandum does not provide Public Officials Errors and Omissions liability coverage for:
a. Dishonesty
Any dishonest or fraudulent act or omission, or any willful violation of any statute or governmental regulation by any Covered Party, or any profit, remuneration or advantage gained by any Covered Party to which that Covered Party was not legally entitled.
b. Contract or Quasi-Contract
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Liability based on or arising out of any oral or written contract, or based upon any implied contract, quasi-contract, quantum meruit, or unjust enrichment.
c. Estimates
Liability of any Covered Party arising out of estimates of probable costs or cost estimates being exceeded or faulty preparation of bid specifications or plans.
d. Loss of Property
Liability of any Covered Party arising out of injury to, destruction or disappearance
of any tangible property (including money) or the loss of use thereof.
e. Own Employees
Any Claim by any Covered Party against its own past or present elected or appointed officials, Employees, volunteers or other Covered Parties.
f. Other Coverages
Any Claim arising out of, based upon or attributable to Bodily Injury or Property Damage liability, Personal and Advertising Injury liability, Employment Practices Liability or Employee Benefits Liability, in whole or in part, to the extent covered under Coverages A, B, D or E.
5. ADDITIONAL EXCLUSIONS WHICH APPLY TO COVERAGE D, EMPLOYMENT
PRACTICES LIABILITY
This Memorandum does not provide Employment Practices Liability coverage for:
a. Prior Written Notice
Any Claim based upon, arising out of, or attributable to any fact, circumstance or situation which has been the subject of any written notice given under any policy of
insurance, self-insurance, risk sharing pool or governmental joint powers authority for which this Memorandum is a renewal or replacement.
b. Violation of Certain Federal, State or Local Statutes
Any Claim for an actual or alleged violation of responsibilities, obligations or duties imposed by (1) any law governing workers’ compensation, unemployment insurance,
social security, disability benefits or similar law, (2) the Employee Retirement Income Security Act of 1974 (except Section 510 thereof), (3) the National Labor Relations Act, (4) the Worker Adjustment and Retraining Notification Act, (5) the Consolidated Omnibus Budget Reconciliation Act of 1985, (6) the Occupational Safety and Health Act, (7) any other federal, state or local statute or law similar to
any statute or law described in (1) through (6) of this exclusion, or (8) rules or regulations promulgated under any of such statutes or laws; provided this exclusion
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shall not apply to any Claim for any actual or alleged retaliatory treatment of the claimant by the Covered Party on account of the claimant’s exercise of rights
pursuant to any such statute, law, rule or regulation.
c. The Fair Labor Standards Act (except the Equal Pay Act)
Actual or alleged violation of the responsibilities, obligations or duties imposed by The Fair Labor Standards Act (except the Equal Pay Act), and any other federal, state or local law, statute, rule or regulation concerning wage and hour practices, including,
but not limited to, any Claim for “off the clock” work, failure to provide rest or meal periods, improper classification of employees as exempt or non-exempt, failure to timely pay wages, conversions, or unfair business practices. However, this exclusion shall not apply to any Claim for any actual or alleged retaliatory treatment of the claimant by the Covered Party on account of the claimant’s exercise of rights
pursuant to any such statute, law, rule, or regulation.
d. Other Coverages
Any Claim arising out of, based upon or attributable to Bodily Injury or Property Damage liability, Personal and Advertising Injury liability or Public Officials Errors and Omissions Liability or Employee Benefits Liability, in whole or in
part, to the extent covered under Coverages A, B, C or E.
e. Contractual Liability
That part of the loss which constitutes amounts owing under or assumed by the Covered Party pursuant to any express written contract or agreement with the Covered Party; provided, however, this exclusion shall not apply to the extent the Covered Party would be liable for such loss in the absence of such contract or agreement.
f. Reasonable Accommodations
That part of the Employment Practices Loss which constitutes the costs associated with providing any reasonable accommodations required by, made as a result of, or to
conform with the requirements of, the Americans with Disabilities Act and any amendments thereto or any similar federal, state or local statute, regulation or common law; or the costs associated with providing any reasonable accommodations to any person with a disability or other protected characteristics.
g. Certain Compensation Earned by Claimant in Course and Scope of Employment
That part of the Employment Practices Loss which constitutes compensation earned
by the claimant in the course of employment but not paid by the Covered Party, including any unpaid salary, bonus, wages, severance pay, retirement benefits, vacation days or sick days; provided, however, this exclusion shall not apply to any front pay.
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h. Certain Medical and Insurance Benefits
That part of the Employment Practices Loss which constitutes medical or insurance
benefits (or the equivalent value thereof) to which the claimant or any other person
allegedly was entitled or would have been entitled had the Covered Party provided the claimant with a continuation or conversion of such benefits or insurance.
i. Modification to or Purchase of Real Property
That part of the Employment Practices Loss which constitutes any cost incurred by
a Covered Party to modify or purchase a building or property in order to make it accessible to or accommodating of any disabled person.
j. Worker Adjustment and Retraining Notification Act
That part of the Employment Practices Loss which constitutes any cost incurred by a Covered Party to bring it into compliance with the Worker Adjustment and
Retraining Notification Act of 1988, 29 USC 2100 et. seq. (the W.A.R.N. Act).
k. Strikes and Lockouts
Any Claim based upon or arising out of a strike or lockout.
No fact pertaining to or knowledge possessed by any Covered Party shall be imputed to any other Covered Party for purposes of applying the exclusions set forth in this Section III.5.
6. ADDITIONAL EXCLUSIONS WHICH APPLY TO COVERAGE E, EMPLOYMENT BENEFITS LIABILITY
This Memorandum does not provide Employee Benefits Liability coverage for:
a. Other Coverages
Any Claim arising out of, based upon or attributable to Bodily Injury or Property Damage liability, Personal and Advertising Injury liability or Public Officials Errors and Omissions Liability or Employment Practices Liability, in whole or in part, to the extent covered under Coverages A, B, C or D.
b. Claims for injury or damage or loss arising out of:
(1) The failure of performance of contract by any insurer;
(2) Failure of any plan included in the Employee Benefits Program to meet its obligations due to insufficient funds;
(3) Failure of any investment to perform or errors in providing information on past performance of investment vehicles;
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(4) Counsel or advice given to any person with respect to that person’s decision to participate or not participate in any plan included in the Employee Benefits
Program;
(5) Failure by a Covered Party to comply with the mandatory provisions of any workers’ compensation, unemployment insurance, social security law, disability benefits law, the Fair Labor Standards Act of 1938 and its amendments, or any similar laws;
(6) Liability imposed on a Covered Party as a fiduciary by:
(a) The Employee Retirement Income Security Act of 1974 (ERISA) or the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA), as now or hereafter amended;
(b) The Internal Revenue Code of 1986 (including the Internal Revenue Code of
1954) and its amendments;
(c) Any taxes, fines, or penalties, including those imposed under the Internal Revenue Code; or
(d) Any similar federal, state or local laws, permits or ordinances with respect to (a) through (c) above.
(7) The act of terminating or altering any Covered Party’s Employee Benefits Program.
c. Any Claim for benefits to the extent that such benefits are available, with reasonable effort and cooperation from the Covered Party, from the applicable funds accrued or other collectible coverage.
SECTION IV - WHO IS A COVERED PARTY
1. Each of the following is a Covered Party:
a. The Covered Party identified in the Declaration. The Authority is also a Covered Party entitled to coverage under this Memorandum.
b. Any and all commissions, boards, authorities, agencies, corporations, limited liability
companies, or similar bodies, and their members, coming under the direction, or under control of the city council or governing body of the Covered Party, or operated by or with funds administered by the Covered Party.
c. Under Coverages A and B, any person while using an Auto owned, leased, hired, rented or loaned for a limited time for testing purposes by a Covered Party,
Employee and any person or organization legally responsible for the use thereof,
provided the actual use of the Auto is by or with the permission of the Covered Party.
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d. Your current and past Employees.
e. Volunteers, current and past, providing service to a Covered Party without
compensation to whom the Covered Party owes a duty to defend and indemnify
under the California Government Code.
f. For purposes of Coverage D only, Employee shall also mean prospective, temporary, seasonal, contract and leased Employees, any independent contractor who is treated under applicable law as an Employee of the Covered Party, and any other person for
whom a Covered Party who is a Member Agency is legally responsible as an employer.
g. With regard to Coverages A, B and D, no Employee, volunteer or elected or appointed official is a Covered Party with respect to Claims:
(1) By another Covered Party; or
(2) For which there is any obligation to share Damages with or repay someone else who must pay Damages because of the injury to one who is described in Paragraph (1)(a) or (1)(b) above, except as provided under Coverage D; or
(3) Arising out of his or her providing or failing to provide professional health care services, except that arising out of occupational physical examinations,
ambulance operations, paramedics, emergency medical technicians of the Covered Party or First Aid to any person.
h. The estate, heirs, executors, administrators and legal representatives of any Covered Party in the event of the Covered Party’s death or incompetency, but only to the extent the Covered Party would otherwise be provided coverage under this Memorandum.
i. For purposes of Coverages A, B, C, D and E (and notwithstanding paragraph 1(c) above) if there is valid and collectible insurance available to: (1) the Covered Party or Employee as a named insured; or (2) with respect to any leased, hired, rented or loaned Auto, to the owner, lessee, lender or hirer thereof other than the Covered Party or Employee, or to any designated representative or employee of such owner, lessee, lender or hirer, then this Memorandum will provide coverage in excess of, and shall not contribute with, such insurance.
j. Any person(s) or organization(s), when the Covered Party is required in a written contract to provide coverage to them, but only for Bodily Injury or Property
Damage liability which:
(1) Is covered by this Memorandum; and
(2) Is caused, in whole or in part by:
(a) The normal course of the Covered Party’s operations; or
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(b) Ownership, maintenance or use of that part of the premises or land rented to or leased to and occupied by the Covered Party; or
(c) Work performed for that person or organization by the Covered Party; or
(d) The maintenance, operation or use by the Covered Party of any equipment or Auto leased to Covered Party by such person(s) or organization(s).
The limits of coverage afforded to such person(s) or organization(s) shall be:
(a) The minimum limits of coverage which Covered Party agreed to provide, or
(b) The Limit of Liability under this Memorandum, whichever is less.
Upon written request made prior to the assertion of any Claim, coverage provided under this paragraph j shall be primary and noncontributory over any applicable insurance when expressly required by written contract or agreement with the Covered Party.
Upon written request, the Authority shall provide an additional insured endorsement, primary and noncontributory endorsement, notice of cancellation and/or a waiver of subrogation when required by written contract.
Coverage provided under this paragraph expires: (a) when the written contract or agreement ceases; or (b) when the Covered Party ceases to be a tenant in the
premises, or the operations or work or usage cease, whichever is earlier.
2. Notwithstanding any other provision of this Section IV, the Authority’s duty under this Memorandum to any Covered Party is not broader than the Covered Party’s duty to defend or indemnify such individuals pursuant to applicable provisions of California Government Code sections 815, 815.3, 825
through 825.6, and 995 through 995.6, inclusive, and any amendments or successor or related provisions thereof. For example, an Employee must be acting solely within the course and scope of his or her employment duties to a Covered Party to be entitled to protection under this Memorandum.
SECTION V - CONDITIONS OF COVERAGE; YOUR DUTIES TO US
1. Bankruptcy
Bankruptcy or insolvency of the Covered Party or of the Covered Party’s estate will not relieve us of our obligations under this Memorandum.
2. Duties In The Event of Occurrence, Offense or Claim
a. Notice of Event
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You must see to it that we (the Authority) are notified as soon as practicable of an Occurrence which may result in a Claim which is likely to involve this
Memorandum. Your failure to give timely written notice to the Authority will
reduce the amount of Defense Costs which the Authority will pay since Defense Costs that you incur before giving notice will not count towards satisfaction of your Self-Insured Retention and will not be reimbursed by the Authority. The Authority considers the following circumstances as likely to involve this
Memorandum:
All Claims with reserves or potential payments, including Defense Costs, that are 50% or more of a Member’s Self-Insured Retention, or involving any of the following, or any additional circumstances described in the Authority’s Liability Claims Handling Policy, as amended from time to time, shall be considered “excess
claims”, and reported:
(1) Paralysis – Paraplegia, Quadriplegia
(2) Loss of eye(s) or limb(s)
(3) Spinal cord or brain injury
(4) Sensory organ or nerve injury, or neurological deficit
(5) Serious burns
(6) Substantial disability or disfigurement
(7) Death
(8) Amputation or loss of use of a major extremity
(9) Rape, sexual abuse offense/molestation of any individual
(10) Any disability where it appears reasonably likely that there will be disability that lasts for more than one year
(11) Class Action
(12) Employment Practices Liability claims regardless of total incurred
You must further notify us as soon as practicable of circumstances that may give rise
to an action against you seeking declaratory or equitable relief, or proceedings for injunction, writ of mandate, restitution, constructive trust, rescission, reformation, or specific performance of a contract with reserves or potential payments that are 50% or more of a Member’s Self-Insured Retention.
You must notify us (the Authority) at the inception of any loss likely to involve this
Memorandum, which is that point in time when any Damages have occurred and are
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or should be known to you. You must notify us (the Authority) when any Damages have occurred even if all of the loss is not known to you. Failure to do so will be
considered a failure to cooperate with the Authority, and if there is any prejudice to
the interests of the Authority coverage may be denied.
b. To the extent possible, notice should include:
(1) How, when and where the Occurrence took place;
(2) The names and addresses of any injured persons and witnesses; and
(3) The nature and location of any injury or damage arising out of the Occurrence.
c. Notice of Claim
If a Claim is made or brought against any Covered Party, you must:
(1) Immediately record the specifics of the Claim and the date received;
(2) Notify the Authority in writing of the Claim on receipt; and
d. Forward to the Authority on receipt any Notice of Claim under the Government Code, other notice or writing received of any Claim, and any Summons, Complaint, Petition or other suit or Claim-related documents received.
You and any other involved Covered Party must:
(1) Immediately send us copies of any demands, notices, summonses or legal papers
received in connection with the Claim;
(2) Authorize us to obtain records and other information;
(3) Cooperate with us in the investigation or settlement or defense against the Claim, including (but not limited to) what the Authority believes is reasonable and appropriate with respect to the defense of a Claim, or with respect to the appeal
from rulings or a judgment, and agree that we may make any investigation we deem necessary;
(4) Comply with the Litigation Management Policies of the Authority and require the counsel selected in accordance with those policies to comply, including cooperation with Authority, General Manager, Litigation Manager and Authority appointed defense counsel to handle the Claim; and
(5) Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the Covered Party because of injury or damage to which this Memorandum may also apply.
e. Notice and Cooperation as Respects Certain Employment Practices Liability Claims
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Notwithstanding paragraphs b and c, a formal administrative or regulatory proceeding which is otherwise a covered Claim under Coverage D shall be reported to the
Authority at the time the Occurrence otherwise qualifies as a Claim under Coverage
D.
f. Voluntary Payments
(1) No Covered Party will, except at that Covered Party’s own cost, voluntarily make a payment, assume any obligation, admit any liability with respect to a
Claim, nor incur any expense, for which the Authority is obligated to reimburse the Covered Party, without the Authority’s prior consent. Regardless of whether the interests of the Authority were or are prejudiced, the Authority shall not reimburse, or be obligated to reimburse, a Covered Party for, nor count towards exhaustion of the Covered Party’s Self-Insured Retention, any Defense Costs or other expenses that were incurred by a Covered Party for a covered Claim: (1) prior to the Authority’s receipt of written notice of the Claim; (2) without compliance with the adopted Litigation Management Policies of the Authority; or (3) otherwise incurred without the Authority’s prior consent.
(2) In our sole discretion, the Authority may reimburse a Covered Party for
amounts expended for Defense Costs once the Self-Insured Retention has been satisfied in accordance with Section VIII and prior to settlement or other final disposition of a Claim, provided that such reimbursements shall not increase the applicable Limit of Liability.
g. Settlement or Other Disposition of Claim
When the amount that the Covered Party is legally obligated to pay as Damages for a covered Claim becomes certain either through trial court judgment or agreement among the Covered Party, the claimant, and the Authority, then the Covered Party may pay that amount to effect settlement and, upon submission of due proof, the Authority shall indemnify the Covered Party for that part of such payment, together
with any Defense Costs, that are in excess of the applicable Self-Insured Retention. In the event that such amounts paid to effect settlement by the Covered Party and indemnified by Authority are subsequently challenged by any third party or parties, other than the claimant, including but not limited to the Medicare program, alleging a right to any portion of the settlement or for additional compensation arising out of the
settlement, such challenges shall be considered and treated as a separate Occurrence (i.e., as a new claim with a new date of injury reflecting the date on which the Covered Party receives notice of the challenge) by the Authority if the Authority reviewed and consented to the amounts allocated or set aside for the payment of future medical care, including amounts reportable or payable to Medicare or other
governmental program, provided that no new Self-Insured Retention shall be required to be satisfied by the Covered Party. No person other than a Covered Party or the Authority shall be considered an intended beneficiary entitled to any rights under this Memorandum under any settlement.
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h. Participation in Defense
The Authority, at its option, shall have the right at its own expense to investigate any
Claim and/or negotiate the settlement thereof, as it deems expedient. The Authority
shall also have the right to select and appoint defense counsel for the Covered Party, and to control the negotiation investigation, defense, appeal and settlement of any Claim which the Authority in its discretion concludes may exceed the Covered Party’s Self-Insured Retention. The Covered Party shall remain responsible for all
Defense Costs incurred by Authority appointed defense counsel or otherwise incurred in connection with the Claim until exhaustion of the Self-Insured Retention. The Authority shall not commit the Covered Party to any settlement without the consent of the Covered Party named in Endorsement Number 1. Such consent shall not be unreasonably withheld.
i. Tender to or by the Authority
If a claimant makes a bona fide good faith settlement demand in excess of the Covered Party’s Self-Insured Retention (as it may be reduced by Defense Costs incurred as of the date the demand is made), the payment of which would result in the full and final disposition of a covered Claim, the Authority or the Covered Party
may tender the Claim to each other, as follows. If a settlement demand is acceptable to either (1) the Covered Party or (2) the Authority (but not both), then:
If such settlement demand is not acceptable to the Authority and the Covered Party tenders to the Authority an amount equal to the balance of the Covered Party’s Self- Insured Retention which has not been expended at the time of the tender, the Authority shall then pay on behalf of the Covered Party all sums which the Covered Party shall be legally obligated to pay as Damages, (including the Covered Party’s Self-Insured Retention), together with Defense Costs incurred, and further all Defense Costs thenceforth shall be paid by the Authority. However, in no event shall the Authority be obligated to pay Damages, on behalf of the Covered Party, in
excess of the applicable Limit of Liability as stated in the Declaration; such excess amounts shall be the responsibility of the Covered Party. Should the full and final disposition of the Claim, including judgments, settlements, post -judgment interest and Defense Costs be less than the amount tendered by the Covered Party, the unapplied portion of the tendered amount shall be returned to the Covered Party by
the Authority.
If such settlement demand is not acceptable to the Covered Party and the Authority tenders to the Covered Party an amount equal to the difference between the Covered Party’s Self-Insured Retention, (without regard to the then-remaining balance of the Covered Party’s Self-Insured Retention) and the settlement demand or the
applicable Limits of Liability, whichever is less, then the Authority’s obligations
under this Memorandum shall be discharged and terminated as to that Claim and the Authority shall have no further obligations with respect to that Claim.
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Notwithstanding the foregoing paragraphs, in the event that the amount tendered is subsequently challenged by any third party or parties other than the claimant,
including but not limited to the Medicare program, alleging a right to any portion of
the tendered amount, or for additional amounts arising out of the disposition of the Claim, such challenges shall be considered and treated as a separate Occurrence by the Authority (i.e., as a new Claim with a new date of injury reflecting the date on which the Covered Party receives notice of the challenge) if the Authority accepted
or recommended the amounts to be allocated or set aside for the payment of future medical care, including amounts reportable or payable to Medicare or other governmental program, provided that no new Self-Insured Retention need be satisfied by the Covered Party. No person other than a Covered Party or the Authority shall be considered an intended beneficiary entitled to any rights under this Memorandum under any tender or settlement resulting from such tender.
3. Appeals
In the event the Covered Party elects not to appeal a judgment that, together with the Defense Costs incurred, exceeds the applicable Self-Insured Retention, the Authority may elect to do so at its own expense, including incidental costs, disbursements and
interest, but in no event shall the liability of the Authority for Damages exceed the amount specified in the Limit of Liability, plus the costs, disbursements, and interest incidental to such appeal. In that event, the Covered Party shall cooperate with the Authority in such appeal.
4. Available Insurance
If valid and collectible insurance is available to the Covered Party for a Claim we cover under this Memorandum, this Memorandum will provide coverage in excess of and shall not contribute with such insurance. The Authority is not an insurance company, but a risk sharing pool and governmental joint powers authority, and as such does not share, pro rata or otherwise, with other valid and collectible insurance for a Claim. If
such insurance is primary, then payment of such amounts will count towards your obligation to be responsible for satisfaction of your Self-Insured Retention. This Memorandum will also provide coverage in excess of and shall not contribute with any insurance available to the Covered Party, whether primary, excess, contingent or on any other basis to which the Covered Party has been added as an additional insured.
However, this does not apply to coverage obtained by the Authority from an insurance company which is written as excess insurance over the Limit of Liability shown in the Declaration. For purposes of this paragraph, “insurance” includes any type of group self-insurance, risk sharing pool, governmental joint powers authority or other mechanism by which a Covered Party arranges for third party funding of legal
liabilities, not including the Self-Insured Retention under this Memorandum.
5. Separation of Covered Parties
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Except with respect to the Limits of Liability, and any rights or duties specifically assigned in this Memorandum to the Covered Party named in Endorsement Number 1,
this Memorandum applies:
a. As if each Covered Party was the only Covered Party; and
b. Separately to each Covered Party against whom a Claim is made or brought.
6. Transfer of Rights of Recovery Against Others To Us
If the Covered Party has rights to recover all or part of any payment we have made
under this Memorandum, those rights are transferred to us. The Covered Party must do nothing after loss to impair them. At our request, the Covered Party will bring a Claim or transfer those rights to us, help us enforce them, and cooperate with the Authority in pursuing them. Any amount recovered shall be apportioned as follows:
a. First, for the repayment of expenses incurred by the Covered Party in assisting the Authority toward recovery at the Authority’s request, and then to the expenses incurred by the Authority;
b. Next, to Damages and Defense Costs paid by the Authority;
c. Next, to expense payments by the Covered Party in excess of the Self-Insured Retention;
d. Next, to any Damages and Defense Costs paid by an excess carrier on the Covered Party’s behalf;
e. Next, to payment of the Covered Party’s Self-Insured Retention; and
f. Finally, to the amounts paid on the Covered Party’s behalf by any insurer.
7. When We Decide to Cancel or Not Renew
If we decide to cancel or not to renew this Memorandum, we will mail or deliver to the first Covered Party shown in the Declaration written notice not less than 60 days before the date it is to be cancelled or not renewed. However, the Authority may cancel this Memorandum on only 10 days written notice if you have failed to pay your contributions or other amounts you owe to the Authority under this Memorandum.
This Memorandum does not apply to any Occurrence taking place at or after the effective date of any such cancellation. If notice is mailed, proof of mailing will be sufficient proof of notice. Notice to the first Covered Party will be treated as notice to all Covered Parties.
If the Authority cancels this Memorandum, the earned amount of the contribution will
be calculated on a prorated basis.
8. If You Decide to Cancel
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The Covered Party may not cancel this Memorandum during the Coverage Period, but may provide written notice of withdrawal from the Authority in accordance with the
terms and conditions of the agreement establishing the Authority. Notice of withdrawal
must be given by March 1st before the end of the Coverage Period in order to avoid incurring obligations to the Authority associated with renewal of the Memorandum for the following year.
9. Assessments and Other Amounts We May Ask You to Pay
a. You agree to pay when due, in addition to the contribution required to obtain coverage under this Memorandum, additional amounts (“Assessments”) which may be determined by the Authority to be necessary for the solvency of this program of the Authority. The Authority shall have the power and authority to determine all matters in connection with assessments, including without limitation, power and
authority to determine where, when and how Assessments should be paid.
b. The Authority may levy Assessments to cover any deficiency at any time and for whatever reasons the Authority decides, in good faith, that the funds available are less than the amounts reasonably anticipated to be necessary for the Authority to pay all amounts required for it to meet its obligations under this Memorandum.
c. The amount of any Assessment shall be determined by the Authority in accordance with policies approved by the Board of the Authority.
d. You also agree to pay, when due, your contributions, your Self-Insured Retention and expenses. The Authority shall give written notice to each Covered Party of the Assessment and the date payment is due. The Authority shall also give a Covered Party written notice of any other amounts due. If no date is specified, the Assessment or other amounts are due within thirty (30) days after receipt of the notice. Payments not made by the due date will be considered delinquent, and shall be subject to a surcharge to cover liquidated damages, covering administrative and other costs of collection, which cannot be accurately estimated in advance, to be
calculated at a rate equal to two percent (2%) per annum over the prevailing prime interest rate. The Authority may also reduce any amount owed to the Covered Party or any credit to which the Covered Party may be entitled, by the amount of any sum owed to the Authority which is delinquent.
10. Assignment
You may not assign any interest in this Memorandum without the prior written consent
of the Authority, which may be given or withheld in the sole discretion of the Authority.
11. Amendment
This Memorandum may be amended only in writing, notice of which shall then be
provided.
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SECTION VI - THE TOTAL THE AUTHORITY WILL PAY
1. The most the Authority will pay in excess of your Self-Insured Retention for
any Claim is the Limit of Liability, stated in the Declaration; in other words,
the Authority will pay no more than the difference between the Limit of Liability and the Covered Party’s Self-Insured Retention. This amount includes reimbursements for Defense Costs, except as otherwise stated in this Memorandum.
2. The fact that a Claim arising out of a single Occurrence is brought against more than one Covered Party, or that multiple Claims arising out of the same Occurrence are brought by more than one claimant will not increase the Limit of Liability.
3. Your Self-Insured Retention applies to any Claim under this Memorandum.
When two or more Claims are treated as a single Claim, as defined in this Memorandum, one Self-Insured Retention and one Limit of Liability will apply.
4. If a Claim falls under more than one coverage in this Memorandum, the most the Authority will pay is one Limit of Liability which shall be the highest
applicable Limit of Liability, subject to the terms, conditions and exclusions of each coverage.
5. All Damages arising out of a series of events, acts, errors or omissions by one or more Covered Parties that are substantially the same or are in any way directly or indirectly related, whether logically, causally or temporally, or continuous or
repeated exposures to substantially the same general conditions shall be considered as arising out of one Occurrence, and shall be treated as a single Claim, regardless of the number of claimants, Claims or Covered Parties. The Limit of Liability and Self-Insured Retention in effect during the first Coverage Period in which an Occurrence took place shall be applicable.
However, the Self-Insured Retention and Limit of Liability in effect during the Coverage Period when a Claim arising from a Wrongful Employment Practice is first reported in writing to the Authority shall apply.
6. Regardless of the number of Occurrences in any year resulting in Claims, the Authority will not pay more than the applicable annual aggregate Limit of
Liability.
7. The Limit of Liability applies separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the Coverage Period shown in the Declaration, unless the Coverage Period is extended after issuance for an additional period of less than 12 months. In that
case, the additional period will be deemed part of the last preceding period for
purposes of determining the Limit of Liability.
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SECTION VII - YOUR SELF-INSURED RETENTION
1. You have agreed to be responsible for paying the Self-Insured Retention in the
amount stated in the Declaration for Claims covered under this Memorandum.
This means that you will pay up to that amount for Damages and Defense Costs incurred in connection with Claims arising out of each Occurrence. If valid and collectible primary insurance will pay Damages and Defense Costs for a Claim we cover under this Memorandum then such amounts will count towards your
obligation to satisfy your Self-Insured Retention. In that event, the Authority will provide coverage in excess of, and shall not contribute with such primary insurance.
2. The rules for determining when you are responsible for more than one Self- Insured Retention in the case of multiple Claims, claimants or Occurrences
are the same as those which apply to the determination of whether more than one Limit of Liability applies in those circumstances, such as when arising out of a series of events, acts, errors or omissions by one or more Covered Parties that are substantially the same or are in any way directly or indirectly related, whether logically, causally or temporally, or continuous or repeated exposures to
substantially the same general conditions, regardless of the number of claimants, Claims or Covered Parties. However, there is no aggregate limit on your Self- Insured Retention obligation.
3. The Authority is entitled to require you to provide evidence of the Damages and Defense Costs you have incurred, including evidence that you were in
compliance with the Litigation Management Policies of the Authority at the time they were incurred. Payments for Damages and Defense Costs incurred without compliance with the Litigation Management Policies, or before notice of the Claim or potential Claim for which they were incurred has been given to the Authority will not count towards satisfaction of your obligation to pay your Self-Insured Retention.
4. In the event that you resolve any Claim or Occurrence within your Self-Insured Retention by settlement or other disposition, and the amount paid by you in Damages is subsequently challenged by any third party or parties (including but not limited to the Medicare program), alleging a right to any portion of the
amount paid, or for additional amounts arising out of the disposition of the Claim or Occurrence, such challenges shall be considered and treated as the same Claim or Occurrence by the Authority. No person other than a Covered Party or the Authority shall be considered an intended beneficiary entitled to any rights under this Memorandum.
SECTION VIII - DISPUTES BETWEEN YOU AND THE AUTHORITY
1. Litigation
No person or organization has a right under this Memorandum:
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a. To join us as a party or otherwise bring us into a Claim;
b. To sue us on or for any reason relating to or arising out of this Memorandum,
including performance by the Authority of the terms, unless:
(1) All of its terms have been fully complied with, and
(2) The Covered Party shall have exhausted all administrative remedies and procedures available to it, including binding arbitration, as described in paragraph 3; and
(3) The amount of the Covered Party’s liability for a covered Claim in excess of the applicable Self-Insured Retention shall have been finally determined either by judgment against the Covered Party after actual trial or by written agreement of the Covered Party, the claimant, and the Authority. The Covered Party shall make a definite claim for any loss in which the Authority may be liable within a
reasonable time after such final determination. If any subsequent payments are made by the Covered Party on account of the same Claim, the Covered Party shall make additional requests for reimbursement from time to time and these requests shall be payable within thirty (30) days after proof in conformity with this Memorandum. Any person or organization or the legal representative thereof
who has secured such judgment or written agreement shall thereafter be entitled to recover under this Memorandum.
2. Bankruptcy Actions
Nothing contained in this Memorandum shall give any person or organization any right to join the Authority as a co-defendant in any action of bankruptcy.
3. Resolution of Coverage Disputes
Separate from this provision, the Authority has adopted an Administrative Resolution of Coverage Disputes Policy, which the Authority may revise from time to time. All provisions in the Administrative Resolution of Coverage Disputes Policy, now in effect or as later adopted, augment these provisions as well as supersede any inconsistent
provision in this section.
The Authority’s adopted Administrative Resolution of Coverage Disputes Policy contains arbitration procedures. Arbitration proceedings shall take place in the County of Orange, California. The decision of the arbitrator shall be final and binding on all parties. Judgement upon the final decision of the arbitrator may be entered in any court of
competent jurisdiction.
Notwithstanding any other provision in this Memorandum, under no circumstances shall the Authority be liable for consequential damages, bad faith damages, punitive damages, pre-arbitration interest, post-arbitration interest, or any sums beyond the amounts due and affirmatively covered by the Authority under Section II – Coverages Provided By This
Memorandum, and not otherwise excluded by this Memorandum. As all Member
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Agencies have formed or joined as members of the Authority for risk pooling purposes on a consensual basis, and the risks pooled are the risks agreed by the Member Agencies
through the Authority to be pooled (and those risks not pooled or coverages not provided
are those which the Member Agencies agreed not to pool or cover), this provision is intended as a restriction on permissible recovery from the Authority and potential impact on the remaining Member Agencies in the event of any dispute with a Covered Party.
By joining the Authority, the Covered Party agrees to be bound by the terms of this
Memorandum, including such amendments and changes as may be approved by the Authority.
By:
Date: July 1, 2024 Derick Yasuda, President California Insurance Pool Authority (CIPA)
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Endorsement Number: 1 Effective: 07-01-24
Contract Number: CIPA-023
MEMBER AGENCIES ENDORSEMENT
COVERAGES A, B, C, D AND E
AND SELF-INSURED RETENTIONS It is hereby understood and agreed that for purposes of Coverages A, B, C, D and E, the Covered Parties are California Insurance Pool Authority and these Member Agencies, inclusive of those related parties defined in Section IV, paragraph 1, with their respective self-insured retentions, as follows:
MEMBER AGENCY SELF-INSURED RETENTION
California Insurance Pool Authority $0
City of Arcadia $500,000
City of Brea $350,000
City of Buena Park $500,000
City of Carlsbad $1,000,000
City of Cypress $150,000
City of Irvine $350,000
City of Laguna Beach $400,000
City of La Habra $500,000
City of Montclair $500,000
City of Newport Beach $500,000
City of Orange $350,000
City of Tustin $350,000
City of Whittier $500,000
City of Yorba Linda $250,000
Attached to and forming a part of California Insurance Pool Authority’s Excess Liability Memorandum of Coverage.
Effective Date: July 1, 2024
By:
Derick Yasuda, President
California Insurance Pool Authority (CIPA)
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Endorsement Number: 2 Effective: 07-01-24
Contract Number: CIPA-023
AMENDATORY ENDORSEMENT
HISTORICAL AIRCRAFT
Effective May 6, 2009, notwithstanding Section III, paragraph 1(c), Aircraft shall not include
any historic aircraft which are not in operable condition and placed on display in a public park within the City of Irvine. Attached to and forming a part of California Insurance Pool Authority’s Excess Liability Memorandum of Coverage.
Effective Date: July 1, 2024
By:
Derick Yasuda, President
California Insurance Pool Authority (CIPA)
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Endorsement Number: 3 Effective: 07-01-24
Contract Number: CIPA-023
AMENDATORY ENDORSEMENT
CITY OF ARCADIA HOME OWNERS ASSOCIATIONS
The City of Arcadia has approved Resolution No. 6770 with respect to Architectural Review Board activities related to performing planning zone reviews for Home Owners Associations:
• Arcadia Highlands Home Owners Association
• Rancho Santa Anita Property Owners Association
• Santa Anita Oaks Homeowners Association
• Rancho Santa Anita Residents’ Association
• Santa Anita Village Community Association of Arcadia
The Homeowner’s Associations listed above are added as Covered Parties only with respect to the referenced Resolution.
Attached to and forming a part of California Insurance Pool Authority’s Excess Liability Memorandum of Coverage.
Effective Date: July 1, 2024
By:
Derick Yasuda, President
California Insurance Pool Authority (CIPA)
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Endorsement Number: 4 Effective: 07-01-24
Contract Number: CIPA-023
AMENDATORY ENDORSEMENT
CITY OF WHITTIER LIMIT OF LIABILITY
The coverage limit for the City of Whittier as the Named Covered Party, including as well any Covered Party through the City of Whittier and for which the City of Whittier is responsible under the Excess Liability Memorandum of Coverage, is modified to provide that net of the City of Whittier’s satisfaction of its Self-Insured Retention, the California Insurance Pool Authority will provide defense and indemnity benefits up to $5,000,000 per claim or occurrence inclusive
of the Self-Insured Retention as the coverage is provided in the Liability Memorandum of Coverage. Attached to and forming a part of California Insurance Pool Authority’s Excess Liability Memorandum of Coverage.
Effective Date: July 1, 2024
By:
Derick Yasuda, President
California Insurance Pool Authority (CIPA)
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Endorsement Number: 5 Effective: 07-01-24
Contract Number: CIPA-023
COVERAGE SCHEDULE
It is hereby understood and agreed that the coverage schedule is as follows:
CARRIER LIMIT OF INSURANCE SELF-INSURED RETENTION (SIR)
Pooled Layer Above Each Member's Self-
Insured Retention
California Insurance Pool Authority All Covered Parties Except the City of Whittier: Difference between $3,000,000 and Self-Insured Retention Per Occurrence.
Memorandum of Coverage Number CIPA-023 City of Whittier: Difference between $5,000,000 and Self-Insured Retention Per Occurrence.
$20,000,000 Aggregate
Layer 1 Safety National Casualty
Corp.
$10,000,000 Per
Occurrence / $10,000,000 Aggregate excess of SIR
$2,000,000 Per Occurrence/ Aggregate subject to the $10,000,000 Aggregate shown above – Sublimit is applicable to Unmanned Aircraft.
$3,000,000 Self-Insured
Retention (SIR) will apply Per Claim regardless of the number of members
involved, EXCEPT
Facultative Reinsurance Certificate #: FCA4063596 $5,000,000 Self-Insured Retention (SIR) will apply Per Claim for the City of Whittier
Layer 2 Starstone Specialty Ins. Co.,
Policy # : CSX00037174P- 01
$5,000,000 excess $10,000,000 excess of SIR
Layer 3 Allied World National Assurance Co., (AWAC) $5M excess $18M per occurrence, per Member/$18M aggregate per Member, per Occurrence
Policy #: 0312-4145 As respects to Whittier: $5M excess $20M per occurrence/$20M aggregate
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Endorsement Number: 5 Effective: 07-01-24
Contract Number: CIPA-023
CARRIER LIMIT OF INSURANCE SELF-INSURED RETENTION (SIR)
Layer 4 Gemini Insurance Co. $5M excess $23M per
occurrence, per
Member/$23M Aggregate
per Member, per
Occurrence
Policy #: CEX09600360- As respects to Whittier:
11 $5M excess $25M per
occurrence/$25M aggregate
Layer 5 Allied World National $10M excess $28M per
Assurance Co. (AWNAC) occurrence, per
Member/$28M aggregate
per Member, per
Occurrence
Policy #: 0312-4144 As respects to Whittier:
$10M excess $30M per
occurrence/$30M aggregate
Layer 6 Lexington Insurance Co. $5M excess $38M per
occurrence, per
Member/$38M aggregate
per Member, per
Occurrence
POLICY #: 011170770 As respects to Whittier:
$5M excess $40M per
occurrence/$40M aggregate
Attached to and forming a part of California Insurance Pool Authority’s Excess Liability
Memorandum of Coverage.
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Endorsement Number: 5 Effective: 07-01-24
Contract Number: CIPA-023
Effective Date: July 1, 2024
By:
Derick Yasuda, President
California Insurance Pool Authority (CIPA)
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Endorsement Number: 6 Effective: 07-01-24
Contract Number: CIPA-023
EXCESS INSURANCE OVER SPECIAL EVENT POLICIES
This Excess Liability Memorandum of Coverage, and any amendment, revision, extension or
renewal thereof, is specifically written as and intended to be excess over the Commercial General Liability Tenant Users Liability Insurance Policy (TULIP), Policy Number H22TU00006, and any amendment, revision, extension, renewal or replacement policy thereof, and any other special event liability policy or other form of insurance issued to the Covered Parties, or any other certificate holder or named insured listed on such policy.
Attached to and forming a part of California Insurance Pool Authority’s Excess Liability Memorandum of Coverage.
Effective Date: July 1, 2024
By:
Derick Yasuda, President
California Insurance Pool Authority (CIPA)
Docusign Envelope ID: D94A2668-CAC8-422C-8723-B634C6BADB57
1 of 1
2024-25 MOC Liability
Endorsement Number: 7 Effective: 07-01-24
Contract Number: CIPA-023
CYBER LIABILITY EXCLUSION
This Excess Liability Memorandum of Coverage excludes cyber liability including but not
limited to information security and privacy liability, privacy notification costs, media wrongful act, data breach, regulatory action, technology errors and omissions, website media content, professional services, disclosure or misuse of confidential information, failure to prevent transmission of a computer virus or other damaging material, or any other cyber related coverages by whatever name called.
Attached to and forming a part of California Insurance Pool Authority’s Excess Liability Memorandum of Coverage.
Effective Date: July 1, 2024
By:
Derick Yasuda, President
California Insurance Pool Authority (CIPA)
Docusign Envelope ID: D94A2668-CAC8-422C-8723-B634C6BADB57
1 of 2
2024-25 MOC Liability
Endorsement Number: 8 Effective: 07-01-24
Contract Number: CIPA-023
DAM ENDORSEMENT
Notwithstanding any provisions to the contrary within this Memorandum of Coverage or any amendment thereto, it is agreed that this Memorandum of Coverage excludes all actual or alleged losses, liabilities, damages, injuries, defense costs, costs or expenses directly or indirectly arising
out of, contributed by, caused by, resulting from, or in connection with Dam failure. Dam failure
includes the rupture, bursting, overtopping, accidental discharge, or partial or complete structural failure of any Dam as defined in the Definitions section below. This exclusion shall not apply to the following scheduled Dams:
• 30 MG Central Reservoir (City of Brea) – a Self-Insured Retention of $3,000,000 shall apply
• Calavera Dam (City of Carlsbad) – a Self-Insured Retention of $3,000,000 shall apply
• Maerkle Dam (City of Carlsbad) – a Self-Insured Retention of $3,000,000 shall apply
• Whittier Reservoir No. 4 (City of Whittier) – a Self-Insured Retention of $5,000,000 shall apply
• Big Canyon (City of Newport Beach) – a Self-Insured Retention of $3,000,000 shall apply
This endorsement does not provide separate limits of liability and does not increase the Limit of Liability.
Definition:
The term Dam shall mean any artificial barrier together with appurtenant works which:
a. Is twenty-five feet or more in height from the foot of a natural bed of stream or
watercourse; or
b. Has water impounding capacity of fifty acre feet or more. The term “Dam” shall be not construed to include a structure specifically exempted from jurisdiction by the State of California Department of Water Resources, Division of Safety of
Dams, unless such structure is under the jurisdiction of any agency of the federal government. All other terms, conditions, agreements and stipulations remain unchanged.
Docusign Envelope ID: D94A2668-CAC8-422C-8723-B634C6BADB57
2 of 2
2024-25 MOC Liability
Endorsement Number: 8 Effective: 07-01-24
Contract Number: CIPA-023
Attached to and forming a part of California Insurance Pool Authority’s Excess Liability Memorandum of Coverage.
Effective Date: July 1, 2024
By:
Derick Yasuda, President
California Insurance Pool Authority (CIPA)
Docusign Envelope ID: D94A2668-CAC8-422C-8723-B634C6BADB57