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HomeMy WebLinkAboutAgr 2003-07-01 (Bay Cities JPA) (2) r-,..-/ RESOLUTION NO. 29-2003 A RESOLUTION OF THE TOWN COUNICL OF THE TOWN OF TIBURON AUTHORIZING PARTICIPATION IN THE BAY CITIES JOINT POWERS INSURANCE AUTHORITY WHEREAS, the Bay Cities Joint Powers Insurance authority (BCJPIA) was formed to provide risk-sharing programs to its public entity members as well as other ancillary coverages and services; and WHEREAS, the Town Council of the Town of Tiburon believes that joining BCJPIA is in the best interest of the Town; NOW, THEREFORE, BE IT RESOLVED, THAT: 1. The Town of Tiburon desired to participate in BCJPIA beginning July 1, 2003, for a minimum period of three years; 2. The Town Manager of the Town of Tiburon is hereby authorized and directed to sign the Agreement to participate in BCJPIA beginning July 1, 2003. 3. The Town of Tiburon has identified the Town Manager as the board representative of the Bay Cities Joint Powers Insurance Authority, and the Director of Administrative Services as the alternate representative. ----/' PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on July 16,2003, by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: Berger, Fredericks, Gram, Slavitz None Thompson ~~ , ---/ Message Page 1 of 1 Brian Stott From: Alex Mcintyre Sent: Tuesday, September 02,20039:51 AM To: Brian Stott; Heidi McVeigh Subject: FW: BCJPIA Governing Documents Brian, Please print these out for our WC files. Alex -----Original Message----- From: Kristil Ehrlich [mailto:kehrlich@bickmoreriskservices.com] Sent: Friday, August 29, 2003 10:58 AM To: ehutchings@larkspurcityhall.org; Alex McIntyre; (Belvedere Jt. Recs.) Director; esd@cityofbelvedere.org; uchokka I ingam@menlopark.org; a bengyel@town-of-fairfax.org; bpolla rd@albanyca.org; bloventhal@montesereno.org; Brian ponty (bponty@ci.redwood-city.ca.us); dwhitson@ci.saus~lito.ca.us; dstutsman@midas.org; dhunter@cityofmillvalley.org; ggrote@ci.piedmont.ca.us; jbonander@earthlink.net; Jim. Nybakken@sfgov.org; jflores@ci.emeryville.ca.us; mpena@redwoodcity.org; mneilan@ci.novato.ca.us; mroush@ci.pleasanton.ca.us; PH K1@ci.berkeley.ca.us; Schillinger@ci.brisbane.ca.us; tonya@ci.union- city.ca.us Subject: BOPIA Governing Documents Attached is a Zip file with the following documents in PDF format: 1. APD Memorandum of Coverage 2. Property Memorandum of Coverage 3. Workers' Compensation Memorandum of Coverage (I have not received LAWCX's Memorandum of Coverage yet, but will forward when I do.) 4. Liability Memorandum of Coverage 5. CARMA Memorandum of Coverage (place with liability MOC) 6. ERMA Memorandum of Coverage (place with liability MOC) 7. Property Master Program Document 8. Workers' Compensation Master Program Document (Bylaws) 9. Bylaws as amended May 8, 2003 10. CARMA Master Program Document (place with liability MPD) 11. Resolution of the Board of Directors of the BCJPIA Amending the Bylaws Detailing Management Positions 12. Resolution of the Board of Directors of the BCJPIA Implementing a $1,000 Application Fee Please print them out and place them in your Administrative Manual. If you would like me to mail you a hard copy of any of the items, please let me know. Kristil Ehrlich Administrative Analyst Bickmore Risk Services (800) 541-4591, ext. 1112 ~. ~~~~ 1 ~ ~f'~ ~~~. V'f: ~ I ~ }-(Y-o) 9/2/2003 BAY CITIES JOINT POWERS INSURANCE AUTHORITY (BCJPIA) POOLED WORKERS' COMPENSATION PROGRAM MEMORANDUM OF COVERAGE This Memorandum of Coverage is a part of the Master Plan Document of the Authority's Pooled Workers' Compensation Program. Any section of this document which is inconsistent with the Pooled Workers' Compensation Program Master Plan Document is null and void and without effect. GENERAL SECTION A. THE MEMORANDUM This Memorandum includes at its effective date the Declaration Page and all endorsements listed on the Declarations Page. This Memorandum is the coverage document between the Covered Member and the Authority. The terms of this Memorandum may not be changed or \v'aived except by endorsement issued by the Authority to be part of this Memorandum. B. CONTINUOUS MEMORANDUM This Memorandum is effective at 12:01 a.m. on the date stated in Item 2 of the Declaration Page until 12:01 a.m. on the expiration date stated in the Declarations Page. C. WHO IS COVERED The Covered Member is a "Member" which has elected to participate in the Authority's Pooled Workers' Compensation Program. If a Covered Member'loses its status as a "Member" of the Authority, the coverage under this Memorandum of Coverage shall terminate immediately upon such change. in status. D. WORKERS' COMPENSATION LAW Workers' Compensation Law means the workers' or workmen's compensation law and occupational disease law of the State of Cali fomi a, or any similar law. It includes any amendments to that law that are in effect during the term of this Memorandum. It does not include any federal workers' or workmen's compensation law, any federal occupational disease law, or the provisions of any law that provide non-occupational disability benefits. E. QUALIFIED SELF-INSURER The Covered Member represents that it is a duly qualified self-insurer under the Workers' Compensation Law of the State of California and will continue to maintain such qualifications during the term this Memorandum is in effect. If the Covered Member should fail to qualify or fail to maintain such qualifications, the coverage provided under this Memorandum shall automatically terminate at the first date of such failure. BCJPIA PWCP Memorandum of Coverage Page 1 Effective July 1, 2003 PART ONE - WORKERS' COMPENSATION COVERAGE The Authority will provide coverage for workers' compensation losses in the same manner as the Local Agency Workers' Compensation Excess Joint Powers Authority and the excess insurance carrier, up to the Authority's Limit of Liability stated in Item 3 of the Declarations Page. This coverage applies to bodily injury by accident or bodily injury by disease. Bodily injury includes resulting death. 1. Bodily injury by accident must occur during the coverage period. 2. Bodily injury by disease must be caused or aggravated by the conditions of employment by the Covered Party. The employee's last day of last exposure to the conditions causing or aggravating such bodily injury by disease must occur during the coverage period. A. PAYMENTS THE MEMBER DISTRICT MUST MAKE The Authority is not responsible for any payments in excess of benefits regularly provided by the Workers' Compensation Law including those required because: I. Of the Covered Member's serious and willful misconduct; 2. The Covered Member knowingly employs an employee in violation of law; 3. The Covered Member knowingly fails to comply with a health or safety law or regulation; 4. The Covered Member discharges, coerces, or otherwise discriminates against any employee in violation of the Workers' Compensation Law; or 5. The Covered Member violates or fails to comply with any Workers' Compensation Law. If the Authority makes any payments in excess of the benefits regularly provided by the Workers' Compensation Law on the Covered Member's behalf, the Covered Member will reimburse the Authority promptly. PART TWO - EMPLOYER'S LIABILITY COVERAGE The Authority will provide coverage for employer's liability losses in the same manner as the Local Agency Workers' Compensation Excess Joint Powers Authority and the excess insurance carrier, up to the Authority's Limit of Liability stated in Item 3 of the Declarations Page. This coverage applies to bodily injury by accident or bodily injury by disease. Bodily injury includes resulting death. This coverage will apply to damages awarded against the Covered Party, over the amount of the Covered Party's retained limit and subject to the Limit of Liability set forth herein, provided that those damages are the direct consequence of bodily injury that arises out of and in the course of the injured employee's employment by the Covered party, and are claimed against the Covered Party in a capacity other than as employer. BCJPIA PWCP Memorandum of Coverage Page 2 Effective July 1,2003 1. The bodily injury must arise out of and in the course of the injured employee's employment by the Covered Party. 2. Bodily injury by accident must occur during the coverage period. 3. Bodily injury by disease must be caused or aggravated by the conditions of employment by the Covered Party. The employee's last day of last exposure to the conditions causing or aggravating such bodily injury by disease must occur during the coverage period. PART THREE - POLICY EXCLUSIONS This Memorandum of Coverage shall not apply to: A. Liability imposed by the Workers' Compensation Laws because of bodily injury to prisoners or inmates who receive compensation from an entity, other than the Covered Member, for the work performed except for liability imposed by the Workers' Compensation Laws because of bodily injury to participants of a work release program or other community service program established by a county of the State of California; B. Employer's Liability Coverage herein does not apply to any obligation imposed by a workers' compensation, occupational disease, unemployment compensation, or disability benefits law, or any similar law. C. Bodily injury intentionally caused or aggravated by the Covered Party. D. Bodily injury to an employee while employed in violation of law with the actual knowledge of the Covered Party. E. Liability for additional compensation imposed on the Covered Party under Labor Code Section 4557 by reason of injury to an employee under sixteen years of age and illegally employed at the time of the injury. PART FOUR - THE COVERED MEMBER'S RETENTION AND AUTHORITY'S LIMIT OF LIABILITY A. LIMIT OF COVERAGE BY AUTHORITY The Authority will indemnify the Covered Member for loss under Workers' Compensation Laws, but will not exceed the Limits of Liability stated in Item 3 of the Declaration Page on anyone loss. _ Coverage will include all benefits required under Workers' Compensation Laws, including full salary benefits listed in Labor Code Section 4850. The Authority will pay on behalf of the Covered Member for Employer's Liability losses but will not exceed the Limits of Liability stated in Item 3 of the Declaration Page on anyone loss. BCJPIA PWCP Memorandum of Coverage Page 3 Effective July I, 2003 B. HOW THE LIMIT OF COVERAGE APPLIES The Authority's Limit of Coverage stated in Item 3 of the Declaration Page applies to claims covered under the Workers Compensation Coverage or Employer's Liability Coverage as follows: 1. To one or more employees for bodily injury or death in anyone accident; and 2. To anyone employee for bodily injury or death by disease. Nothing contained herein shall operate to increase the Authority's Limit of Coverage under this Memorandum. PART FIVE - CONDITIONS A. NOTICE OF ACCIDENT 1. The Covered Member shall give prompt written notice to the Authority if a claim for an injury or disease occurs which appears to involve coverage by the Authority'. 2. Notice of accident given to the Authority shall contain complete details on the injury, disease, or death. If a suit, claim, or other proceeding is commenced which appears to involve coverage by the Authority, the Covered Member shall give the Authority: a) All notices and legal papers related to the claim, proceeding, or suit, or copies of these notices and legal papers; and b) Copies of reports on investigations made by the Covered Member on such claims, proceedings, or suits. 3. If written notice is not provided by the Covered Member to the Authority within 30 days of knowledge of such claim, coverage will not be provided under this Memorandum of Coverage. This requirement is a condition precedent to coverage under this Memorandum of Coverage. B. SUBROGATION - RECOVERY FROM OTHERS The Authority has the Covered Member's rights, and the rights of persons entitled to compensation benefits from the Covered Member, to recover the Authority's loss from any third party liable for the injury. The Covered Member will do everything necessary to protect those rights for the Authority and to assist in enforcing them. Any recovery, after deducting the Authority's recovery expenses, will first be used to reduce the Authority's loss. The balance, if any, will be returned to the Covered Member. C. MEMORANDUM CONFORMS TO LAW If terms of this Memorandum are in conflict with any laws applicable to this Memorandum, the Authority's Agreement, the Authority's Bylaws, or the Authority's Pooled Workers' Compensation Program Master Plan Document, this statement amends this Memorandum to conform to such law or document. BCJPIA PWCP Memorandum of Coverage Page 4 Effective July I, 2003 BAY CITIES JOINT POWERS INSURANCE AUTHORITY (BCJPIA) WORKERS' COMPENSATION COVERAGE DECLARATIONS POLICY NUMBER BCJPIA 2003-1WC 1. . NAMED COVERED PARTY: Bay Cities Joint Powers Insurance Authority, et. al., as per Endorsement No.1 1020 19th Street, Suite 200 Sacramento, CA 95814 2. POLICY PERIOD: From 7/1/2003 to 7/1/2004 12:01 a.m. Pacific Standard Time 3. LIMITS OF LIABILITY: Workers' Compensation Employer's Liability $500,000 anyone loss $500,000 anyone loss 4. ENDORSEMENTS: FORMING PART OF THE POLICY AT INCEPTION Form No. BCJPIA2003-1 WC, Endorsement No.1 ON BEHALF OF BAY CITIES JOINT POWERS INSURANCE AUTHORITY , ;r (. a.Z'. "AI Authorized Representative BAY CITIES JOINT POWERS INSURANCE AUTHORITY MEMORANDUM OF COVERAGE WORKERS' COMPENSATION COVERAGE ENDORSEMENT NO.1 IT IS UNDERSTOOD THAT THE NAMED COVERED PARTY OF THE DECLARATIONS IS COMPLETED AS FOLLOWS: Member Retained Limit City of Albany City of Belvedere Belvedere/Tiburon JTC City of Brisbane City of EmerYVille Town of Fairfax City of Larkspur City of Menlo Park City of Mill Valley City of Nova to City of Piedmont City of Pleasanton City of Redwood City Town of San Anselmo City of Sausalito Town of Tiburon Twin Cities Police Authority City of Union City $ 150,000 $ 150,000 $ 150,000 $ 150,000 $ 250,000 $ 150,000 $ 150,000 $ 250,000 $ 150,000 $ 150,000 $ 150,000 $ 500,000 $ 350,000 $ 150,000 $ 150,000 $ 150,000 $ 150,000 $ 150,000 Attached to and forming part of Policy No. BCJPIA2003-1WC Effective Date: July 1, 2003 ~ C. d8"' :... AUTHORIZED REPRESENT A TIVE BAY CITIES JOINT POWERS INSURANCE AUTHORITY POOLED AUTO PHYSICAL DAMAGE COVERAGE POLICY NO. BCJPIA 2003-2004APD DECLARATIONS NAMED COVERED PARTY: Those Member Entities of Bay Cities Joint Powers Insurance Authority Named in Endorsement No.1 POLICY PERIOD: From 7-01-03 to 7-01-04 12:01 a.m. Pacific Standard Time LIMITS OF LIABILITY: $25,000 per loss DEDUCTIBLE: $1,000 per loss FORMS AND ENDORSEMENTS: Forming part of the Policy at Inception Form No. BCJPIA 2003-04APD Endorsement No.1 ON BEHALF OF BAY CITIES JOINT POWERS INSURANCE AUTHORITY , g t. ~8"'- AUTHORIZED REPRESENTATIVE BAY CITIES JOINT POWERS INSURANCE AUTHORITY MEMORANDUM OF COVERAGE AUTO PHYSICAL DAMAGE COVERAGE END.ORSEMENT #1 This endorsement, effective 12:01 a.m. 7/1/2003, forms a part of Policy No. BCJPIA 2003-2004APD It is understood that the named Covered Party of the Declarations is completed as follows: Bay Cities Joint Powers Insurance Authority, Albany Brisbane Emeryville Fairfax Larkspur Mill Valley N ovato Piedmont Pleasanton San Anselmo San Francisco Redevelopment Agency Sausalito Union City Effective Date: July 1, 2003 Endorsement No.: ~ t. ~8'H:'" AUTHORIZED REPRESENTATIVE Endt.#l (7/l /2003) BAY CITIES JOINT POWERS INSURANCE AUTHORITY (BCJPIA) POOLED AUTO PHYSICAL DAMAGE PROGRAM MEMORANDUM OF COVERAGE 2003/2004 FORM NO. BCJPIA 2003-04 APD BAY CITIES JOINT POWERS INSURANCE AUTHORITY (BCJPIA) POOLED AUTO PHYSICAL DAMAGE PROGRAM MEMORANDUM OF COVERAGE TABLE OF CONTENTS A. COVERAGE AGREEMENT .... ........ ....... .................................... .......................................1 B . EX C L US ION S .. .. . . .. .. .. . .. . . .. .. .. . .. . .. .. .. ... .. .. .. .. . .. . . .. .. .. .. .. .. .. .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. . . . .. .. . . . .. ... 1 C. LIMIT OF LIABILITy........ ........... .... ............ ......... ...... ........... .... .... ..... .... ...... ........ ...... ......1 D. DEDUCTIBLE ........ ...... ...... ....................... .... .......... .... ..... ......... ..... ............. ...........;. ..........l E. CONDITIONS ........... ....... ...................... ...... ......................................................................2 F. COVERAGE PERIOD........................................................................................................2 G. DEFINITIONS.....................................................................................................................2 BAY CITIES JOINT POWERS INSURANCE AUTHORITY (BCJPIA) POOLED AUTO PHYSICAL DAMAGE PROGRAM MEMORANDUM OF COVERAGE FORM NO. BCJPIA 2003-04APD This Memorandum of Coverage is a part of the Master Plan Document of the Authority's Pooled Auto Physical Damage Program. Any portion of this document which is inconsistent with the Pooled Auto Physical Damage Program Master Plan Document is null and void and without effect. A.' COVERAGE AGREEMENT 1. The Authority will reimburse the Named Covered Party named on the.declarations for losses to an Automobile or its equipment occurring during the coverage period. B. EXCLUSIONS This coverage does not apply to loss caused by: 1. war, whether or not declared, insurrection, rebellion, or revolution; 2. wear, tear, freezing, or mechanical or electrical breakdown; or 3. blowout, punctures, or other road damage to tires. C. LIMIT OF LIABILITY The Authority shall pay up to $25,000 for anyone loss for the cost of repairing or replacing, whichever is less, the damaged or stolen property with like kind. D. DEDUCTIBLE The Authority's liability under Section C above shall be reduced by the deductible amount of $ 1,000. E. CONDITIONS 1. The Named Covered Party shall submit two estimates for the cost of repairing the Automobile from which the Authority may establish the cost of repairs under Section C. The Authority has the right to set the cost of repairs at the lower of the estimates or any amount higher, but in no event may the cost of repairs established by the Authority be greater than the actual costs of repairing the damaged or stolen property. 2. Where the Named Covered Party has not replaced stolen property covered under this Memorandum and the stolen property is found, the Authority may return such property to the Named Covered Party and request return of any payment made under the claim reduced by the cost of any repairs to such property. 3. The Authority shall have the right to any recovery made by the Named Covered Party or right of recovery that the Named Covered Party may have against any other person or entity. The Authority shall have the option of deciding whether to pursue those rights at the expense of the Authority, or whether to allow the Named Covered Party to pursue those rights at the Named Covered Party's expense. In either case, the first $1,000 of any recovery, after expenses have been paid, shall be paid to the Named Covered Party for its deductible, and the remainder of any recovery shall be paid to the Authority. 4. If there is insurance applicable to the loss incurred, such insurance, unless it specifically states that it is excess of this coverage, shall reduce the Liability of this Authority by the amount that insurance is liable for such loss. F. COVERAGE PERIOD This coverage applies to losses occurring on or after 12:01 a.m. of the inception date stated on the declarations page, but before 12:01 a.m. of the expiration date stated on the declarations page. G. DEFINITIONS The terms in bold print are defined as follows: I. Automobile means a declared land motor vehicle, trailer, or semi-trailer owned by, or leased for at least 180 days to, the Named Covered Party and such vehicle, trailer, or semi-trailer is licensed for travel on public roads, unless the covered party elects to declare coverage for contractors equipment. A vehicle is declared if its replacement value and identification have replacement values of all vehicles reported to the Authority by the Named Covered Party at the beginning of each program year; this information is already in the vehicle listing report, which includes identification of each vehicle and its value. A vehicle, trailer, or semi-trailer which is purchased by or leased for at least 180 days to the Named Covered Party during the coverage period shall be covered under this P APDP for the remainder of that coverage period, but must be declared for the next coverage period in order for coverage to continue. 2. Named Covered Party is a party named in the Declarations of which this form is a party. BAY CITIES JOINT POWERS INSURANCE AUTHORITY BYLA WS As Amended May 8, 2003 BYLA WS of the BAY CITIES JOINT POWERS INSURANCE AUTHORITY TABLE OF CONTENTS ARTICLE I - PREAMBLE........................................................................................................................... 5 ARTICLE II - PURPOSES.............. ........ ....................... .............................................................................. 5 Section 1 - Purposes............................... .............. ............................................................................5 ARTICLE III - DEFINITIONS .................... ................................................................................................ 6 Section 1 - Definitions........... ........... ............ ..... ....................................................... .......................6 ARTICLE IV - GOVERNING DOCUMENTS. .... ........................................................................................ 7 Section 1 - Governing Documents................................................................................................... 7 ARTICLE V-MEMBER ENTITIES ......... .............. .......... ....... ........ .... ... ..... ... ..... ... ...... ..... ..... ...... ... .... ........8 Section 1 - Membership................................................................................................................... 8 Section 2 - Voting............................................................................................................................ 8 Section 3 - Approval of Membership................... ...... ...... ...... ....... ...... ..... ... ........... ......... ..... .... ........9 ARTICLE VI - GOVERNING BOARD ........ ...... ................................... ........................ ............................. 9 Section 1 - Board of Directors......................................................................................................... 9 Section 2 - Regular Meetings of the Board.................... ...... ....................................................... ... 10 Section 3 - Voting................ .............. ................ ........................................ .................................... 11 ARTICLE VII - EXECUTIVE COMMITTEE........................................................................................... 11 Section 1 - Members...................................................................................................................... 11 Section 2 - Meetings...................................................................................................................... 11 Section 3 - Duties ...... ................ ...... ......... ............. .......................... .................. .............. ............... 11 Section 4 - Appeal Process....... .......................... ......... ............................................ ...................... 12 AR TI CLE VIII - 0 FFI CERS ................................................................. ..................................................... 12 Section 1 - Officers... ..... .... ....... .... .......... ...... ... ........... ........ ...... ........... ..... ...... ...... ................... ... ... 12 Section 2 - Eligibility for President, Vice President, and Treasurer ..............................................12 Section 3 - Terms of Office...................... ..................................................................................... 12 Section 4 - Election of President, Vice President, and Treasurer ..................................................12 Section 5 - Duties........................................................................................................................... 13 ARTICLE IX - AUDIT...................... .............. .................................. ............. ...................... ...................... 14 Section 1 - Audit Required.. ..................... ............................................. ........................................ 14 Section 2 - Filing an Audit............. ................................................................ ................................. 14 Section 3 - Costs of Audit....... ....................................................................................................... 14 ARTICLE X - FISCAL yEAR......... ................................................................................. ......................... 14 Section 1 - Fiscal year............................................................................... .................................... 14 ARTICLE XI - BUDGET.. ......... ...... ................ .......................................................................................... 14 Section 1 - Budget.......................................................................................................................... 14 ARTICLE XII - ESTABLISHMENT AND ADMINISTRATION OF FUNDS........................................ 15 Section 1 - Administration of Funds .................. .... .... ...... .... ... ....... ........ ....... .................. .... ... ........ 15 ARTICLE XIII - ADMINISTRATOR...... ................................................................................................. 15 Section 1 - Administrative Officer.. ............................................ .......... ......................................... 15 Section 2 - Responsibilities... ......................................................................................................... 15 Section 3 - Compensation and Employment.......... .......... ............................. .............. ................... 16 ARTICLE XIV - RISK POOLING PROGRAMS....................................... ............................................... 17 Section 1 - Formation of Risk Pooling Programs .......................................................................... 17 Section 2 - Administration ........................ .............................. ....................................................... 17 Section 3 - Liability Program........................ ................................................................................. 17 Section 4 - Other Risk Pooling Programs. ..................................................................................... 18 Section 5 - Submission of Data.................. ........ ............... ..... ..... ................................. .................. 18 Section 6 - Compliance with Safety and Loss Control Provisions ................................................ 18 Section 7 - Contribution Rates and Other Charges ........................................................................19 Section 8 - Actuarial Soundness of Programs..................................................... ...........................19. Section 9 - Withdrawal............ ..... ............ ................................. ....................... ............................. 19 Section 10 - Expulsion from a Program............................................................. ............................20 Section 11 - Deposit and Investment of Authority Funds.............................................................. 20 Section 12 - Accounting Method for Pooled Programs ................................................................. 20 Section 13 - Individual Participant's Retained Limits.................................................................... 20 ARTICLE XV - DEFAULTS AND EXPULSION FROM THE AUTHORITy....................................... 21 Section 1 - Events or Conditions of Default Defined.................................................................... 21 Section 2 - Remedies on Default................................................................................................... 21 Section 3 - Agreement to Pay Attorney's Fees and Expenses ........................................................ 22 J:\BA Y\OOCS\BYLA WS\BYLA WS 2002-2003.doc P!lge 3 of 26 Section 4 - No Additional Waiver Implied by One Waiver........................................................... 23 ARTICLE XVI - DISPUTES OR CLAIMS BETWEEN MEMBERS....................................................... 23 Section 1 - Authority Representation............................................................................................. 23 ARTICLE XVII - TORT LIABILITy........................................................................................................ 23 Section I - Member Entity's Indemnification................................................................................ 23 ARTICLE XVIII - LEGAL REPRESENTATION .......................................................................... ...........23 Section I - Counsel Authorized............................. ........................................................................23 ARTICLE XIX - EXECUTION OF CONTRACTS................................................................................... 24 Section 1 - Authorization by Board.... ............ ....................... ........................................................24 ARTICLE XX - COMPENSATION FOR DIRECTORS AND OFFICERS ......................~...................... 24 Section 1 - Reimbursed Expenses........ ......... .....................................................................:........... 24 Section 2 - Directors and Officers Insurance................................................................................. 24 ARTICLE XXI - TERMINA TION AND DISTRIBUTION...................................................................... 24 ARTICLE-XXII NOTICES........................................................................................................................ 24 Section 1 - Notices to the Authority .............................................................................................. 24 Section 2 - Notices to Members .... .... ....... ...... .......... .... ........ ..... ..... ......... ........... .......... .... .... ...... ....25 Section 3 - Claims Against the Authority ...................................................................................... 25 ARTICLE XXIII - ARTICLES, SECTIONS AND PARAGRAPHS ........................................................26 Section 1 - Articles.......................................................................................................... ....... ........26 Section 2 - Sections.................................................. .......................... ............................................26 Section 3 - Paragraphs.......................... .................................... ........................................ .............26 ARTICLE XXIV - EFFECTIVE DATE.... ................................................................................................. 26 Section 1 - Effective Date and Supremacy...... .......... ........................................... ......................... 26 ' J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003,doc Page 4 of 26 BYLA WS of the BAY CITIES JOINT POWERS INSURANCE AUTHORITY (As Revised May 8, 2003) ARTICLE I - PREAMBLE The Bay Cities Joint Powers Insurance Authority is established for the purpose of operating and maintaining a cooperative program of self-insurance and risk management and to provide a forum for the discussion, study, development, and implementation of procedures of mutual benefit in risk sharing and risk management programs. ARTICLE II - PURPOSES Section 1 - Purposes The purposes of the Authority are: A. To provide a self-insurance and risk management program, a system which will achieve the following objectives for the benefit of the Authority's members in all types of risks handled by the Authority: 1. Reduced costs of commercial insurance coverage through effective loss control practices and combined purchasing power; 2. Reduced cost of claims administrative services through central management, volume, and combined purchasing power; 3. Greater stability of commercial insurance markets through size of combined membership, longer duration of commercial insurance agreements, and effective loss control practices; and 4. Reduced severity and frequency of losses of members. B. To achieve, through the control of risk and through the application of risk management, safety and loss control techniques: 1. Improved recovery from responsible third party tort-feasors; 2. Established reserve funds for easing the financial impact of large losses on the members; and j:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 5 of 26 3. Increased awareness of hazards causing losses and providing guidance in the alleviation of such hazards. C. To provide funding Programs: 1. To pay claims and benefits as authorized by the Authority's members; 2. To establish reserves for expected future claims payment; 3. To jointly purchase reinsurance or excess commercial Insurance, where such purchase is advantageous to the members as a whole; and 4. To jointly purchase administrative and other services including risk management, consulting, brokerage, claims administration, claims adjusting, safety and loss prevention, data processing, legal, and related services. D. To acquire, hold, and dispose of property, real and personal, necessary or desirable for the purpose of providing the members of the Authority with a complete self-insurance and risk management program, including, but not limited to, the acquisition of necessary facilities and equipment, the employment of personnel, and the operation and maintenance of a system of risk management. ARTICLE III - DEFINITIONS Section I - Definitions In these Bylaws unless the context otherwise requires: A. Administrator shall mean that person or group appointed by the Board of Directors and given responsibility for the management, administration, and operation of the Authority. B. Authority shall mean the Bay Cities Joint Powers Insurance Authority, also known as BCJPIA. C. Agreement shall mean the Joint Powers Agreement creating the Bay Cities Joint Powers Insurance Authority as amended from time to time. D. Alternate shall mean the person designated by the Member Entity's Representative to act as a director of BCJPIA in the absence of the Representative. The Alternate shall have the same responsibility, power and authority as the Representative in the Representative's absence. E. Board or Board of Directors is the governing body of the Authority constituted as set forth in Article IX of the Agreement. J:\BA y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 6 of 26 F. Liability Program shall mean a funding program to provide liability coverage pursuant to a Memorandum of Coverage and/or provided by a purchased insurance. G. Master Plan Document shall mean the document, formally adopted by the Board, containing the provisions of a Program which shall include, but not be limited to, the following: 1. The scope of the Program; 2. The procedures to be followed; 3. Who may participate, and the terms of participation; 4. Any limitations or restrictions; 5. How deposit premiums are determined and paid; and 6. How refunds and assessments, if any, are determined. H. Member Entity is a public agency which is a party to the Agreement. Member Entity refers to both Class A and Class B Member Entities. 1. Memorandum of Coverage shall mean a document issued by BCJPIA to Member Entities specifying the type, amount, and conditions of coverage provided to each participant by BCJPIA. 1. Program shall mean the method used to provide the type of coverage through self- insurance, commercial insurance, or a combination thereof to Member Entities for potential losses or exposures in any area deemed by the Board to be common to some or all Members. Participation in and administration of a Program shall be governed by a Master Plan Document for that particular Program, the Agreement, and these Bylaws. K. Representative shall mean the person designated by the Member Entity to act as a director of BCJPIA. The Representative shall have the authority to bind the Member Entity on any and all matters relating to the business of BCJPIA. L. The Workers' Compensation Program shall mean a funding Program to provide workers' compensation coverage pursuant to a Memorandum of Coverage. ARTICLE IV- GOVERNING DOCUMENTS Section I - Governing Documents The Governing Documents of the Authority shall be the Joint Powers Agreement of the Authority, these Bylaws, the Master Plan Documents for each Program, and the Memorandum of Coverage for each Program. J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 7 of 26 ARTICLE V-MEMBER ENTITIES Section 1 - Membership Any party to the Agreement is a Member Entity. Any governmental agency which is authorized to participate in a Joint Powers Agreement under the Government Code, is located within 100 miles of the City of EmefYVille, California, and is a recognized Bay Area County (Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma) may become a member of the Authority by agreeing to be bound by the Governing Documents, and by complying with all of the following requirements: A. Complete an application for membership. B. Execute the Agreement then in effect and agree to be bound by any subsequent amendments to this Agreement; C. Agree to be a member for at least three consecutive fiscal.years after commencement of membership; D. Pay a one-time initial contribution as set by the Board of Directors as consideration for the costs incurred by the Authority in evaluating and processing the application; E. Be accepted for membership by a two-thirds vote of the Board of Directors; F. Appoint, in writing, a Representative and one Alternate to the Board; G. Ensure the Representative and Alternate file with the Administrator the required Fair Political Practices Commission ("FPPC") forms upon assuming office, during office, and upon termination of office; H. Establish and maintain a loss control committee to review and evaluate claims made against any coverage offered by the Authority. The Board of Directors has the discretion to establish criteria which the Committee shall use in determining the claims to be reviewed. Section 2 - Voting There shall be two classes of membership defined as follows: A. Class A Member Entities shall be those designated as Class A Member Entities on the signature page of the Agreement, and entitled to one vote per Member Entity on the Board of Directors. V otes shall be one per Class A Member Entity and not weighted. Class A Member Entities must participate in at least the Liability Program offered by the Authority. J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 8 of 26 B. Class B Member Entities shall be those designated as Class B Member Entities on the signature page of the Agreement. Class B Member Entities shall not hold a seat on the Board of Directors however, each Class B Member Entity is entitled to one vote on matters solely concerning the programs in which they participate. Class B Member Entities need not participate in the Liability Program to participate in other Programs offered by the Authority. Section 3 - Approval of Membership The Administrator shall inspect each applicant, including its most recent Audited Financial Statement and associated management letters, and may schedule and coordinate a safety inspection of the facilities of the applicant. The Administrator shall report the results of these inspections to the Executive Committee, who shall provide a recommendation to the Board of Directors. The Board of Directors shall either approve, by a two-thirds vote, or disapprove the application based upon the Executive Committee's recommendation, the application, and any inspections, reports, or other material pertinent to the decision. ARTICLE VI - GOVERNING BOARD Section 1 - Board of Directors A. The governing body of the Authority shall be the Board of Directors. The Directors of the Board shall be comprised of one Representativ"e, and one Alternate director, from each Class A Member Entity. Each director has one vote. The Alternate director may cast a vote as a member of the Board of Directors only in the absence of the director. Each director shall be the Chief Administrative Officer of each Member Entity.or his or her designee which must be from within the ranks of management and from an appropriate area of management. The Alternate director shall be appointed by, and serve at the pleasure of that Member Entity's director. Each Representative or Alternate, when voting on Authority business, shall have the authority to bind his or her Member Entity to the action taken by the Board. B. The Board shall provide policy direction for the Officers, the Administrator, and any standing committees. The Board of Directors may delegate any or all of its responsibilities, except those requiring a vote by the Board of Directors as specified in the Joint Powers Agreement or the Governing Documents. C. The Board reserves unto itself the authority to: I. Accept a new member to the Authority (two-thirds vote of the Board); 2. Accept indebtedness (two-thirds vote of the Board); J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 9 of 26 3. Adopt a budget; 4. , Amend these Bylaws (two-thirds vote of the Board); 5. Alter a member's retained limit (two-thirds vote of the Board); 6. Approve contracts for JP A administrative services and legal counsel; 8. Approve Master Plan Documents; 9. Approve Memorandums of Coverage; 10. Approve the retained limits established by the Administrator to be offered with each Program year; 11. Assess members of an actuarially unsound Program Year; 13. Create an Office; 14. Establish or terminate a Program (two-thirds vote of the Board); 15. Elect the Officers of the Authority; 16. Expel a member from the ~uthority (two-thirds vote of the Board); 17. Approve the rescission of a member withdrawal notice; 18. Settle claims in excess of the authority of the Executive Committee; 19. Temporarily cancel the rights of a member in default (two-thirds vote of the Board); and Section 2 - Regular Meetings of the Board A. The Board will meet at least two times a year to review all operations of the Authority conducted pursuant to the Governing Documents. The Board of Directors will establish a time and place to hold such regular meetings. The Board Secretary, or other designated officer, will mail notices of all Board meetings to each Representative, keep minutes of the meetings, and send copies of such minutes to the Board member. B. A special meeting may be called by the President or one-third of the directors with 24 hours notice, stating the purpose, date, time, and place of the meeting, provided such notice is in writing. J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 10 of 26 C. Every member is expected to have its Representative, and/or Alternate attend Board meetings. D. Meetings shall be conducted pursuant to the most current edition of Robert's Rules of Order or such other procedural guide as the Board shall designate. E. All meetings of the Board shall be conducted in accordance with the Ralph M. Brown Act (Government Code ~54950 et ~.) Section 3 - Voting All matters within the purview of the Board may be decided by a majority vote of a quorum of the Board, except those matters which the Governing Documents specify as requiring a super majority vote of the entire Board, which then must be decided by the vote specifically prescribed. ARTICLE VII - EXECUTIVE COMMITTEE Section 1 - Members There shall be an Executive Committee, pursuant to Article X of the Joint Powers Agreement. The members of the Committee shall be the President, Vice President, Treasurer, and four other representatives of the Board of Directors. One of the four representatives who is not an officer shall be elected by the Board in the same manner and at the same time as the elected officers and shall serve a two-year term commensurate with the terms of the officers. The three (3) other representatives, who are not officers, shall be elected in the same manner as the officers. However, their two-year terms shall commence on July I, of each alternate year. The Executive Committee shall include a member of the Safety & Loss Prevention Committee and a member of the Workers' Compensation Committee. Section 2 - Meetings The Executive Committee will meet as required by business, but not less than four times a year. Such meetings will be duly noticed and an agenda will be distributed to all Board members. The Board Secretary, or other designated officer, will keep minutes of the meetings and send copies ' of such minutes to all Board members. All meetings of the Executive Committee shall be conducted in accordance with the Ralph M. Brown Act (Government Code ~ 54950, et ~.) Section 3 - Duties The Executive Committee shall have the same authority as that of the Board except for those authorities specifically reserved unto the Board in Article VI, Section 1, C. J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 11 of26 Section 4 - Appeal Process Any action taken by the Executive Committee may be appealed to the Board by filing a written request with the Administrator within sixty (60) days from the date of such action. Upon receipt of such request, the Administrator shall place the request for appeal on the agenda of the next regularly scheduled Board meeting. The decision of the Board shall be final. ARTICLE VIII - OFFICERS Section 1 - Officers The Officers of the Authority shall consist of a President, a Vice President, a Treasurer, a Secretary to the Board, an Administrator, an Assistant Treasurer and officers of specific Programs as prescribed in the Master Plan Documents for the Programs. The Board shall elect from its Board membership the President, Vice President, and the Treasurer and appoint the Administrator, Secretary, and Assistant Treasurer. Section 2 - Eligibility for President. Vice President. and Treasurer Eligibility for nomination, election, and continuation in office as President, Vice President, and Treasurer shall be limited to members and Alternate members of the Board. Section 3 - Terms of Office A. The terms of office for the President, Vice President, and Treasurer shall be for two years, commencing with the start of the fiscal years in each of the even calendar years. B. The term of all other offices is continuous until the Board elects to change officers or to eliminate the office. Section 4 - Election of President. Vice President. and Treasurer A. A nominating committee shall be appointed by the President. B. Their nomination of candidates for the offices of President, Vice President, and Treasurer shall be made in writing to the Authority no later than ten (10) days prior to the last regular Board meeting of the fiscal year. The slate of nominees will be mailed to each member at least seven (7) days before the last regular Board meeting of the fiscal year. Additional candidates for any of the three offices may be made by an open nomination and second from the floor at the time of the meeting, provided the candidate(s) meet the requirements set forth in Section 2 above. J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 12 of26 C. At the last regular Board meeting of the fiscal year in which the President, Vice President, and Treasurer terms conclude, elections for the PJesident, Vice President, and Treasurer will be held. Those candidates receiving a majority of votes in each office will succeed to those offices. If no nominee receives a majority vote, the nominee with the least votes shall be deleted as a nominee and a new vote taken. This elimination process will continue until one nominee receives a majority vote. Each member of the Board or, in the absence of any member, his/her Alternate shall be eligible to vote. D. The President, Vice President, and Treasurer will serve for their elected term of office with the Authority, until termination of office, or employment with their Member Entity, or until removal from office by a majority vote of the Board, whichever is earliest. E. Vacancies in any office will be filled, by a vote of the Board, at the next regularly scheduled Board meeting held after the vacancy occurs. Section 5 - Duties A. President - The President shall preside at all meetings of the Authority. The President shall appoint the members of all committees, with the exception of the Executive Committee, which may be formed as necessary or appropriate for carrying on the activities of the Authority. Committees appointed by the President may hold office beyond the President's term subject to the approval of the new President. The President shall execute documents on behalf of the Authority as authorized by the Board and shall serve as the primary liaison between this and any other organization. The President, the Administrator, and the Treasurer acting jointly may pay bills and conduct other related business which is necessary and for which, in the opinion of the President, there is no reason to call a special Board of Directors meeting. The President shall serve as ex- officio member of all committees. B. Vice President - The Vice President shall also serve as ex-officio member of all committees, when the President is unable to attend. In the absence of or temporary incapacity of the President, the Vice President shall exercise the functions covered in Section A above. C. Administrator - The duties and responsibilities of the Administrator shall be as set forth in Article XIII of these Bylaws. D. Secretary - The Secretary will be responsible for preparing all minutes and agendas of the Board, the Executive Committee, and any other Committee meetings, preparing necessary correspondence, and maintaining files and records. E. Treasurer - The Treasurer shall have custody of and disburse Authority funds, accounts, and property, in accordance with the California Government Code. The Treasurer shall be responsible for supervision of the maintenance of such records to assure that financial accounts, records, funds, and property are maintained in accordance with accepted ]:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 13 of26 accounting practices and procedur.es prescribed by the Government Accounting Standards Board. The Treasurer shall make available for inspection all financial records. F. Assistant Treasurer - The Assistant Treasurer shall be responsible for the maintenance of such records as is necessary to assure the financial accounts, records, funds, and property are maintained in accordance with accepted accounting practices and procedures prescribed by the Government Accounting Standards Board. The Assistant Treasurer shall advise and report to the Treasurer. G. Program Officers - The Program Officers, if any, shall have the responsibilities as described in the Master Plan Document for that particular Program. ARTICLE IX - AUDIT Section 1 - Audit Required The Board shall cause to be made, by a qualified, independent individual or firm, an annual audit of the financial accounts and records of the Authority. The minimum requirements of the audit shall be those prescribed by State law. Section 2 - Filing an Audit The financial audit report shall be filed with the State Controller's Office within six months of the end of the fiscal year under examination. The Authority shall have a copy of the audit report filed as a public record with each member. Section 3 - Costs of Audit The Authority shall bear all costs of the audit. Such costs shall be charged against the operating funds of the Authority. ARTICLE X - FISCAL YEAR Section 1 - Fiscal Year The fiscal year of the Authority shall be the period from July 1 st of each year through June 30th of the subsequent year. ARTICLE XI - BUDGET Section 1 - Budget The Board shall adopt an annual budget by July 1 of each year, with receipt of a draft budget 60 days prior. J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 14 of26 ARTICLE XII - ESTABLISHMENT AND ADMINISTRATION OF FUNDS Section 1 - Administration of Funds The Authority is responsible for the strict accountability of aU funds and reports of all receipts and disbursements. It shall comply with every provision of law relating to the subject, particularly Section 6505 of the California Government Code. The funds received for each Program shall be accounted for separately on a full-accrual basis. The portion of each Program premium allocated for payment of claims and losses, if any, shall be held by the Authority in trust for the Program participants in separate trusts for each Program. The Treasurer shall receive, invest, and disburse funds only in accordance with procedures established by the Board and in conformity with applicable law. ARTICLE XIII - ADMINISTRATOR Section 1 - Administrative Officer The Board shall appoint the Authority's Administrator. The Administrator shall be responsible for the daily administration, management, and operation of the Authority's Programs and shall be subject to the direction and control of the Board and the Executive Committee. The Administrator may, but need not be, an employee of the Authority, a consultant, a corporation, or an employee of a member of the Authority. Section 2 - Responsibilities The responsibilities of the Administrator or a designated representative are, among other matters, to: A. Monitor the status of the Authority's Programs and operations, member losses, Program's administrative and operational costs, service companies' performance, and brokers performance; B. Provide appropriate risk management counseling and information to members and the Board; C. Prepare a periodic Risk Management Newsletter to all members reporting new trends in the insurance field, matters of interest regarding new legislation, Authority loss experience, desirable corrective actions, and other information pertinent to risk management Programs being handled by the Authority; D. Prepare an annual budget; J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 15 of26 E. Advise state legislators on Authority needs and advise members on legislative developments; F. Advise members of the risk impact of any proposed new Programs or changes to existing Programs; G. Assist the Executive Committee and/or Board in selecting brokers, auditors, insurance companies, and claims administration services; H. Perform or contract for claims audits and actuarial studies to determine cost allocations; 1. Advise members on selection of defense attorneys; 1. Develop criteria to assist members in preparation of risk management plans; K. Conduct risk management audits to review the participation of each Member Entity in the Program and submit an audit report to the governing body of the audited' Member Entity within a reasonable time after such audit; L. Develop effective risk management and loss control procedures and advise members of how to implement them; M. Select and supervise Authority employees as authorized by the Board; N. Implement, coordinate, and supervise the Authority's Programs of Safety and Loss Control; O. Design and implement new Authority Programs of risk management and self-insurance as directed by the Board; and The Administrator's responsibility to perform any or all of the above services with respect to any member is limited to those Programs in which the member is participating. Section 3 - Compensation. and Employment The Authority shall compensate the Administrator for services rendered to the Authority in such amount and manner as may occasionally be adopted by the Board. Details respecting compensation, termination, and other employment related matters pertaining to the Administrator shall be governed by such terms and conditions as the Board shall establish. J:\BA y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 16 of26 ARTICLE XIV - RISK POOLING PROGRAMS Section 1 - Formation of Risk Pooling Programs A. The Authority will establish, with a two-thirds vote, Risk Pooling Programs in such areas as the Board may select including, but not be limited to, the areas of Property, Workers' Compensation, and Liability coverage. B. The Authority may authorize and use administrative funds for the development of new Risk Pooling Programs. In the event of such development, the estimated premium contributions shall be developed by the Administrator and presented to each member by written notice. Each member shall have sixty days from the date of such notice to state in writing its intent to join or refrain from joining the new Program. Upon conclusion of the notiye period, premium contributions will be determined and billed to the members committed to join. Each member that elected to participate will be bound to the new Program for the period of time so required by the Master Plan Document, unless the actuarially determined premium contribution exceeds the estimate of necessary financial contribution first made. A member may elect not to participate in the Program at the higher rate by informing the Authority in writing of its decision to that effect. C. The Board will adopt and maintain a Master Plan Document, establish the coverage to be offered by the Program, and determine the financial contributions to be required of the participants. Section 2 - Administration A. Each Program will have a Master Plan Document describing its purpose, procedures, and administration. B. Each Risk Pooling Program will be self-contained and individually evaluated for administrative and equity allocation purposes. Each Program year within each Program, shall be separately accounted and maintained. No Program funds shall be mingled with the funds of any other Program except for the purpose of investment. No Program account will be ~vailable for the payment of another Programs' claims and/or expenses unless approved by a two-thirds vote of the Board. C. For each Program, the Administrator shall appoint officers as required by the Master Plan Document of each Program. Section 3 - Liability Program A. The Authority shall make available to all members, and require participation by every Class A member in, the Liability Program which may consist of funding for losses, J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 17 of 26 purchase of commercial insurance, or participation in other Liability Programs. A withdrawal or expulsion of a participant, whether initiated by the entity or the Authority, from this Liability Program shall also act as termination as a Class A member of the Authority. Upon withdrawal or expulsion, a former Class A member may continue as a Class B member upon approval by a two-thirds vote of the Board. B. The Liability Program shall be operated and maintained in accordance with the Liability Master Plan Document, which shall be incorporated herein as though fully set forth. Section 4 - Other Risk Pooling Programs A. The Authority may make available to the members that qualify other risk pooling Programs, which may consist of funding for losses, purchase of commercial insurance, or participation in other pooled Programs covering risks other than that provided by the Liability Program described in Section 3 above. B. Programs, other than the Liability Program, shall be operated and maintained in accordance with the provisions set forth in the respective Master Plan Document, which shall be incorporated herein as though fully set forth. C. Each member of the Authority is eligible to apply for partIcIpation in any of the Programs offered by the Authority by submitting to the Administrator a request in writing by an authorized Representative of the Member Entity. The written request submitted to the Authority by the Member Entity shall include a statement of the Program in which the Member Entity wishes to participate and the desired coverages within that Program. Section 5 - Submission of Data Each member of the Authority is required to submit quarterly payroll information as adopted by resolution, to the Authority at the same time it is required to submit such information to the State. Each member shall also provide, the Authority with requested information or claims information on forms and at times as adopted by resolution of the Board. Section 6 - Compliance with Safety and Loss Control Provisions A. Each member shall cooperate fully with the Administrator or designated agent to provide underwriting, safety and loss control information. Additionally, each member shall comply with the provisions of the annual Safety and Loss Prevention Program Plan as approved by the Safety & Loss Prevention Committee and Board of Directors. B. Each participant shall be made aware of the other participants' safety recommendations. C. The costs of safety and loss control services will be charged to the Authority's administrative expenses and allocated to each Program as described in Section 7 below. J:\BA y\DOCS\BYLA WS\BYLA ws 2002-2003.doc Page 18 of26 D. Non-compliance with the provisions of this section may be evidenced by any of the. following: lack of attendance at safety workshops; failure to institute accident prevention measures; failure to perform accident evaluation and reporting; and failure to adopt the recommendations of the safety audits. Section 7 - Contribution Rates and Other Charges A. The Administrator shall determine annually, subject to Board approval, contributions required from each Program for the Authority's administrative expenses. The Administrator shall then allocate, in accordance with the Master Plan Document, the Authority's administrative e~penses to the participating members. B. The Administrator for each Program shall determine, subject to Board approval, contributions, premiums, assessments, and other charges according to the Master Plan Document. The Administrator shall make available a summary of the method by which these contributions, premiums, assessments, and other charges were determined., C. Members with delinquent amounts due shall be assessed a penalty which shall be 1 percent of the unpaid amount due and payable to the Authority 30 days after the initial invoice due-date. A penalty of another one percent shall accrue after an additional 45 days. Interest shall accrue on all delinquent amounts due and payable to the Authority at the rate of 10% per annum from the due date of the billing until the date finally posted by the designated financial institution. Each participant shall indemnify the Authority from any expense resulting from its failure to pay the sum due on or before the due date. The Board may elect to temporarily suspend coverage if a member fails to pay its contribution. For the purpose of assessing penalties and interest, each part of a calendar month shall be treated as a whole month. Section 8 - Actuarial Soundness of Programs All Programs of the Authority bearing risk shall be maintained in an actuarially sound condition at all times. The condition of each such Program shall be tested by an independent actuary on an annual basis. The condition of each open Program year within each such Program shall be tested to determine its actuarial soundness. If it is determined by the actuary that any year is no longer actuarially sound, the appropriate actions as described in the Master Plan Documents of each Program shall be taken. In addition, the Board reserves the right to assess the members of the Authority and/or participants of any Program an amount determined by the Board to be necessary for the soundness of the Authority and to allocate such assessment to the members in a fair and equitable manner. Section 9 - Withdrawal A. Withdrawal by a member from any pooled Program shall be in accordance with the provisions of the Master Plan Document governing that Program. However, withdrawal from the Liability Program shall automatically and simultaneously terminate its Class A membership in the Authority. Upon withdrawal, a former Class A j:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 19 of26 member may continue as a Class B member upon approval by a two-thirds vote of the Board. B. The withdrawal of any participant of any pooling Program after the effective date of such pooling Program shall not terminate its responsibility to contribute its share of premiums or funds to any fund or insurance Program created by the Authority. ,All current and past participants shall be responsible for their respective share of the expenses, as determined by the Administrator, until all claims, or other unpaid liabilities, covering the period of the participant's participation in the risk pooling Program have been finally resolved and a determination of the final amount of payments due by, or credit to, the participant for the period of its participation has been made by the Board. All past participants shall receive any distribution of dividends based on the same methodology of the current participants. The withdrawal of any participant from any Program shall not require the repayment or return to that participant of all or any part of any contributions, payments, advances, or distributions except in conformance with the provisions for Equity Allocation" Adjustment as set forth herein and in the Master Plan Document. ' Section 10 -Expulsion from a Program No member can be expelled from a Program except as provided by Article XV of these Bylaws. Section 11 - Deposit and Investment of Authority Funds The Treasurer may deposit and invest Authority funds, subject to the same requirements and restrictions that apply to deposit and investment of the general funds of a city incorporated in the State of California, in accordance with the Investment Policy adopted by the Board of Directors. Section 12 - Accounting Method for Pooled Programs The accounting method for each pooled Program will be in accordance with the provisions of the Master Plan Document governing that Program and the principles established by the Government Accounting Standards Board. Section 13 - Individual Particil'ant's Retained Limits Each Program may establish a fund for the predicted losses occurring within the amounts retained by each individual participant. The Program may require that any or all claims within the individual retained limits be reported to or managed by the Program. It may also require that any or all payments for claims within the individual retention be authorized by, or made by the Program. J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 20 of26 ARTICLE XV - DEFAULTS AND EXPULSION FROM THE AUTHORITY Section 1 - Events or Conditions of Default Defined A. The following shall be "defaults" under the Agreement and these Bylaws: 1. Failure by such Member Entity to observe and/or perform any covenant, condition, or agreement under the Governing Documents, including but not limited to risk management or loss reporting proc~dures; 2. Failure to pay any amounts, including penalties and interest, due to the Authority for more than thirty (30) days; 3. Excessive losses as determined by the Board of Directors; 4. Expulsion of a Member Entity from the Liability Program; 5. The filing of a petition applicable to the Member Entity in any proceedings instituted under the provisions of the Federal Bankruptcy Code or under any similar act which may hereafter be enacted; or 6. Any condition of the Member Entity which the Board of Directors believes jeopardizes the financial viability of the Authority. B. The Board of Directors shall give thirty (30) days notice of condition of default under Paragraph 1, 2, and 3 prior to expulsion in order to allow the Member Entity to correct the condition of default. Section 2 - Remedies on Default A. Whenever any event of default referred to in Section 1 of this article shall have occurred, it shall be lawful for the Authority to exercise any and all remedies available pursuant to law or granted pursuant to the Agreement and these Bylaws. However, no remedy shall be sought for defaults, except defaults under Paragraphs 4, 5, and 6 in Paragraph A,' Section 1 of this Article, until the Member Entity has had at least thirty (30) days notice of default. B. Expulsion of a Member Entity from the Authority: 1. The Board, with at least a two-thirds (2/3) vote, may expel any Member Entity that is in default, as defined in Section 1 of this Article, from the Authority. 2. Such expulsion shall be effective on the date prescribed by the Board, but not earlier than thirty (30) days after notice of expulsion has been personally served on or sent certified mail to the Member Entity. J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 21 of26 3. A Member Entity shall be automatically expelled from Class A membership in . the Authority if the member is expelled from the Liability Program, and the effective date of such expulsion shall be that of the effective date of expulsion from the Liability Program. Upon expulsion, a former Class A member may continue as a Class B member upon approval by a two-thirds vote of the Board. 4. The expulsion of any participant of any pooling Program after the effective date of such pooling Program shall not terminate its responsibility to contribute its share of premiums or funds to any fund or insurance Program created by the Authority. All current and past participants shall be responsible for their respective share of the expenses, as determined by the Administrator, until all claims, or other unpaid liabilities, covering the period of the participant's participation in the risk pooling Program have been finally resolved and a determination of the final amount of payments due by, or credit to, the participant for the period of its participation has been made by the Board. C. Cancellation of Coverage under a Program: 1. Upon the occurrence of any default, the Board may temporarily cancel all rights of the defaulting Member Entity in any Program in which such member is in default until such time as the condition causing default is corrected. 2. Upon the occurrence of any event of default, the Board, with at least a two-thirds (2/3) vote, may cancel permanently all rights of the defaulting Member in any Program in which such Member Entity is in default. D. The cancellation of rights of a defaulting Member Entity shall not absolve the Member Entity of any obligations to contribute its share of premiums or funds to any fund or insurance Program created by the Authority. Such obligations include its respective share of the expenses, as determined by the Administrator, until all costs of claims or other unpaid liabilities covering the period of the defaulting Member Entity's participation are finally resolved and any final amount due by the defaulting Member Entity is paid. E. No remedy contained herein is intended to be exclusive. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or shall be construed to be a waiver thereof. Section 3 - Agreement to Pay Attorney's Fees and Expenses In the event either the Authority or a Member Entity is in breach of the Agreement and the other party employs attorneys or incurs other expenses for the collection of moneys or the enforcement of performance or observance of any obligation under the Agreement on the part of the defaulting party, the defaulting party shall pay to the other party the reasonable fees of such attorneys and such other expenses so incurred by the other party. J:\BA y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 22 of 26 Section 4 - No Additional Waiver Implied bv One Waiver In the event any agreement contained in the Governing Documents is breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. ARTICLE XVI - DISPUTES OR CLAIMS BETWEEN MEMBERS Section 1 - Authority Representation A. After being notified in writing that one member of the Authority has filed a formal claim, which is potentially covered by a Program of the Authority, against another member in accordance with provisions of the California Government Code, the Authority will no longer act, on behalf of either member, without written consent from all members involved, insofar as the case giving rise to the claim is concerned. ' ARTICLE XVII - TORT LIABILITY Section 1 - Member Entity's Indemnification Section 895.2 of the California Government Code imposes certain tort liability jointly upon entities solely by reason of such entities being parties to an agreement as defined in Section 895 of said Code. Therefore, the members hereto, as between themselves, pursuant to the authorization contained in Sections 895.4 and 895.6 of the California Government Code, each assumes the full liability imposed upon it for any of its officers, agents, or employees by law for injuries caused by a negligent or wrongful act or omission occurring in the performance of this agreement to the same extent that such liability would be imposed in the absence of Section 895.2 of said Code. To achieve this purpose, each member indemnifies and holds all other members harmless for any loss, cost, or expense that may be imposed upon such other member solely by virtue of Section 895.2 of the California Code. ARTICLE XVIII - LEGAL REPRESENTATION Section 1 - Counsel Authorized Legal counsel, to advise on matters relating to the operation of the Authority, may be recommended by the Administrator and approved by the Board of Directors. The Authority shall have the right to pay such legal counsel reasonable compensation for said services. J:\BA y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 23 of 26 ARTICLE XIX - EXECUTION OF CONTRACTS Section 1 - Authorization by Board The Board of Directors may authorize the Administrator, any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name and on behalf of the Authority and such authorization may be general or confined to specific instances. Unless so authorized by the Board of Directors, no officer, agent, or employee shall have any power or authority to bind the Authority by any contract or to pledge its credit or to render it liable for any purpose or to any amount. ARTICLE XX - COMPENSATION FOR DIRECTORS AND OFFICERS Section 1 - Reimbursed Expenses The Authority shall reimburse any Director or Officer, who does not otherwis~ receive compensation for actual expenses incurred, and reasonable out of pocket expenses of the Director or Officer in the performance of his /her duty on behalf of the Authority. Section 2 - Directors and Officers Insurance The Authority may purchase insurance indemnifying the Directors, Officers, and Administrative staff for personal liabilities arising out of wrongful acts in the discharge of their duties to the Authority or may elect to self-insure such risk. ARTICLE XXI - TERMINATION AND DISTRIBUTION The Agreement and the Authority continue to exist after termination for the purpose of disposing of all claims, distribution of assets, and all other functions necessary to conclude the obligations and affairs of the Authority. Upon termination of the Agreement, the assets of the Authority shall be distributed and apportioned among the Member Entities that have been participants in its Programs, including those Member Entities which previously withdrew or were expelled pursuant to ARTICLES XVII and XVIII of the JP A Agreement, as provided by the Master Program Documents. Any additional funds received after the above distributions are made, shall be returned in proportion to the contributions made. ARTICLE XXII - NOTICES Section 1 - Notices to the Authority Notices to the Authority shall be in writing and given by delivery of such notice to the mailing address of the Authority. J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 24 of 26 Section 2 - Notices to Members Notices to members will be in writing and delivered to the appointed Representative of each member or mailed to the address on file with the Authority. Section 3 - Claims Against the Authority Claims against the Authority shall be presented to the mailing address of the Authority. J:\BA Y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 25 of 26 ARTICLE XXIII - ARTICLES. SECTIONS AND PARAGRAPHS Section 1 - Articles The principal divisions of these Bylaws are "ARTICLES" followed by Roman numerals. Section 2 - Sections The principal divisions of articles are "SECTIONS" identified by Arabic numerals. Section 3 - Paragraphs The principal divisions of sections are "PARAGRAPHS" identified in upper case letters. ARTICLE XXIV - EFFECTIVE DATE Section 1 - Effective Date and Supremacy These Bylaws shall be effective immediately upon the date of approval. The adoption of the Bylaws shall supersede and cancel, as of the effective date of these Bylaws; any prior Bylaws and/or amendments thereto. However, the adoption of these Bylaws shall not affect the Joint Powers Agreement or any amendments to the Agreement. Any clauses in these Bylaws that are inconsistent with the Joint Powers Agreement shall be superseded by those clauses in the Agreement but only to the extent of the inconsistency. BAY CITIES JOINT POWERS INSURANCE AUTHORITY BYLA WS AS AMENDED .... J:\BA y\DOCS\BYLA WS\BYLA WS 2002-2003.doc Page 26 of 26 BAY CITIES JOINT POWERS INSURANCE AUTHORITY PROPERTY COVERAGE DECLARA TIONS BCJPIA 2003-P NAMED COVERED PARTY: Bay Cities Joint Powers Insurance Authority, et aI., as per Endorsement No.1 1020 19th Street, Suite 200 Sacramento, CA 95814 POLICY PERIOD: From 5-15-2003 to 7-1-2004 12:01 a.m. Pacific Standard Time PROPERTY COVERED: Schedule of Covered Property on file with Bay Cities Joint Powers Insurance Authority LIMITS OF LIABILITY: $50,000 DEDUCTIBLE: $10,000 per loss COVERAGE: The terms and conditions of reinsurance certificate issued to PEPIP and Bay Cities Joint Powers Insurance Authority are incorporated into this policy. Forming Part of the Policy at Inception Form No. BCJPIA 2003-P and Endorsement No. 1 FORMS AND ENDORSEMENTS: ON BEHALF OF BAY CITIES JOINT POWERS INSURANCE AUTHORITY , u C. al." .... AUTHORIZED REPRESENTATIVE BAY CITIES JOINT POWERS INSURANCE AUTHORITY MEMORANDUM OF COVERAGE PROPERTY COVERAGE ENDORSEMENT #1 This endorsement, effective 12:01 a.m. 5/15/2003, forms a part of Policy No. BCJPIA 2003-P. It is understood that the named Covered Party of the Declarations is completed as follows: Bay Cities Joint Powers Insurance Authority, Albany Brisbane Emeryville Fairfax Larkspur Menlo Park Mill Valley Monte Sereno Novato Piedmont Pleasanton Redwood City San Anselmo San Francisco Redevelopment Agency Sausalito Union City Effective Date: May 15,2003 Endorsement No.: 1 , _g t. f!.t.Z". .... AUTHORIZED REPRESENTATIVE Endt.#l (5/15/2003) FORM NUMBER BCJPIA 2003-P BAY CITIES JOINT POWERS INSURANCE AUTHORITY POOLED PROPERTY PROGRAM (PPP) MEMORANDUM OF COVERAGE This Memorandum is the coverage document between the Member Entity and the Authority. The terms of this Memorandum may not be changed or waived except by amendment made a part of this Memorandum. A. COVERAGE AGREEMENT 1. The Authority will reimburse the Member Entity named on the Declarations for losses to scheduled property that is, or except for the deductible under the purchased insurance, would be, insured by the terms and conditions of the purchased insurance. All property valued at $10,000 or greater must be scheduled prior to loss in order for coverage under the PPP to apply. 2. Any portion of this Memorandum of Coverage or the Pooled Property Program Master Plan Document that is inconsistent with the purchased insurance shall supersede that portion of the purchased insurance as respects that portion of any loss which is the subject of this Memorandum. B. LIMIT OF LIABILITY The Authority shall pay, for anyone loss, the lesser of: 1. $50,000; or 2. The amount that, except for the deductible applicable to the purchased insurance, would be paid under the purchased insurance. C. DEDUCTIBLE The Authority's liability under Section B above shall be reduced by any applicable deductible amounts. J:\BCJPIA\Admin\Documents\Property\MOCs\draft prop moc_2003_04.doc Form No. BCJPIA 2003-P 1 D. CONDITIONS 1. The Authority shall have. the same rights as provided to the insurer by the purchased insurance. 2. If there is insurance other than the purchased insurance applicable to the loss incurred, such insurance, unless it specifically states that it is excess of this coverage, shall reduce the liability of this Authority by the amount that insurance is liable for such loss. 3. In the event of loss or damage insured under the PPP, the insured shall give immediate notice thereof to BAY CITIES JOINT POWERS INSURANCE AUTHORITY, 1020 19th Street, Sacramento, CA 95814, (800) 541-4591, FAX (916) 491-1436 of such loss. E. COVERAGE PERIOD This coverage applies to losses occurring during the coverage period defined in the Declarations. F. DEFINITIONS In addition to the defmitions provided in the Authority's Bylaws and the purchased insurance, the following additional definitions apply to the Master Plan Document and the Memorandum of Coverage for this Pooled Property Program: 1. Loss shall have the same meaning as in the purchased insurance. 2. Purchased insurance shall mean insurance purchased by the Authority for the benefit of the Authority and the Member Entity and specifically identified in the Declarati ons. J:\BCJPIA\Admin\Documents\Property\MOCs\draft prop moc_2003_04.doc Form No. BCJPIA 2003-P 2 BAY CITIES JOINT POWERS INSURANCE AUTHORITY MEMORANDUM OF COVERAGE POOLED PROPERTY PROGRAM 2003/2004 PROGRAM YEAR BAY CITIES JOINT POWERS INSURANCE AUTHORITY POOLED PROPERTY PROGRAM MEMORANDUM OF COVERAGE TABLE OF CONTENTS A. COVERAGE AGREEMENT ....................................... 1 B. LIMIT OF LIABILITY ............................................ 1 C. DEDUCTIBLE................................................. 1 D. CONDITIONS.................................................. 2 E. COVERAGE PERIOD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 F. DEFINITIONS........., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 CALIFORNIA AFFILIATED RISK MANAGEMENT AUTHORITIES MEMORANDUM OF COVERAGE LIABILITY COVERAGE ENDORSEMENT #1 It is understood that the Named Covered Party of the Declarations is completed as follows: California Affiliated Risk Management Authorities Bay Cities Joint Powers Insurance Authority Central San Joaquin Valley Risk Management Authority Contra Costa County Municipal Risk Management Insurance Authority Monterey Bay Area Insurance Fund Public Agency Risk Sharing Authority of California Vector Control Joint Powers Agency and their members participating in their Liability Program Attached to and forming part of Policy No. CARMA 2003-11GL Effective Date: July 1, 2003 Endorsement No.: 1 AUTHORIZED REPRESENTATIVE Endt. # 1 (711/2003) EMPLOYMENT RISK MANAGEMENT AUTHORITY MEMORANDUM OF COVERAGE LIABILITY COVERAGE DECLARATIONS POLICY NO. ERMA 2003-1EPL NAMED COVERED PARTY: Employment Risk Management Authority, et aI., as per Endorsement No.1 1020 19th Street, 2nd Floor Sacramento, CA 95814 POLICY PERIOD: From 7-1-2003 to 7-1-2004 12:01 a.m. Pacific Standard Time LIMITS OF COVERAGE: $4,000,000 Each Occurrence Less Members' Retained Limit Listed in Endorsement No.2 Fonning Part of the Policy at Inception Form No. ERMA 2003-IEPL, Endorsements No.1, No.2, and No.3. FORM AND ENDORSEMENTS: ON BEHALF OF EMPLOYMENT RISK MANAGEMENT AUTHORITY AUTHORIZED REPRESENTATIVE EMPLOYMENT RISK MANAGEMENT AUTHORITY MEMORANDUM OF COVERAGE ENDORSEMENT #1 This endorsement, effective 12:01 a.m. 7/1/2003, forms a part of Policy No. ERMA 2003-1EPL. It is understood that the named Covered Party of the Declarations and the "Retained Limits" for the Covered Parties are completed as follows: Employment Risk Management Authority, Bay Cities Joint Powers Insurance Authority COVERED PARTY RETENTION City of Albany City of Brisbane City of Emeryville Town of Fairfax City of Larkspur City of Menlo Park City of Mill Valley City of Piedmont City of Pleasanton Town of San Anselmo San Francisco Redevelopment Agency City of Sausalito City of Union City $50,000 $50,000 $50,000 $50,000 $100,000 $75,000 $50,000 $50,000 $50,000 $50,000 $50,000 $50,000 $50,000 Endt.(#l ) (7/1 /2003) Page 1 BAY CITIES JOINT POWERS INSURANCE AUTHORITY POOLED LIABILITY PROGRAM MEMORANDUM OF COVERAGE FOR THE 2003/04 PROGRAM YEAR EFFECTIVE JULY 1, 2003 BAY CITIES JOINT POWERS INSURANCE AUTHORITY MEMORANDUM OF COVERAGE LIABILITY COVERAGE DECLARATIONS POLICY NO. BCJPIA 2003-1 GL NAMED COVERED PARTY: Bay Cities Joint Powers Insurance Authority, et aI., as per Endorsement No.1 1020 19th Street, Suite 200 Sacramento, CA 95814 POLICY PERIOD: From 7-1-2003 to 7-1-2004 12:01 A.M. Pacific Standard Time LIMITS OF COVERAGE: $1,000,000 Each Occurrence Less Member's Retained Limit listed in Endorsement No.2 Fonning Part of the Policy at Inception Form No. BCJPIA 2003-1GL Endorsement No.1, No.2, and No.3 FORM AND ENDORSEMENTS: ON BEHALF OF BAY CITIES JOINT POWERS INSURANCE AUTHORITY t7 ~- <:!:/G...,lf-- ... ..... -- AUTHORIZED REPRESENT A TIVE . Pooled Liability Program Memorandum of Coverage TABLE OF CONTENTS SECTION I COVERAGE... ............... .......... .... ............. .................... ...................................................... 1 SECTION II DEFINITIONS.................................................................................................................... 1 SECTION III DEFENSE AND SETTLEMENT.. ..................................................................................... 9 SECTION IV AUTHORITY'S LIMIT OF COVERAGE... .............. ..... ......................... ..... ............... ...... 9 SECTION V COVERAGE PERIOD AND TERRITORy....................................................................... 9 SECTION VI EXCLUSIONS. ........ ............... ................................................................ ......... ................. 10 SECTION VII CONDITIONS.................................................................................................................. 16 ENDORSEMENT #1 ENDORSEMENT #2 ENDORSEMENT #3 2003/2004 MEMORANDUM OF COVERAGE FOR THE BAY CITIES JOINT POWERS INSURANCE AUTHORITY (Hereinafter referred to as the Authority) MEMO POLICY NO. BCJPIA 2003-1 GL Throughout this agreement, words ani phrases that appear in quotation marks have special meaning. They are defined in Section II, "Definitions." In consideration of the payment of the deposit premium, the Authority agrees with the ,"covered parties" as follows: SECTION I - COVERAGE The Authority will pay up to the "limit of coverage" those sums on behalf of the "covered parties" for the "ultimate net loss," less the "retained limit," that the "covered parties" become legally obligated to pay as damages because of "bodily injury, " "property damage," ''personal injury," ''public officials errors and omissions," "sudden and accidental pollution," as those terms are herein defined and to which this agreement applies, caused by an "occurrence" during the coverage period, except as otherwise excluded. This Memorandum of Coverage does not provide insurance, but instead provides for pooled self- insurance. This Memorandum is a negotiated agreement amongst the members of the Authority and none of the parties to the Memorandum are entitled to rely on any contract interpretation principles which require interpretation of ambiguous language against the drafter of such agreement. This Memorandum shall be applied according to the principles of contract law, giving full effect to the intent of the members of the Authority, acting through the Board of Directors in adopting this Memorandum of Coverage. As the Authority is not an insurer, it has, no obligation to issue reservation of rights letters, nor does it have an obligation to provide "Cumis" counsel to a covered party in disputed coverage situations under Civil Code ~2860. Finally, failure to provide such notice to a covered party of any coverage dispute shall not operate to waive any of the provisions of this Memorandum. SECTION II - DEFINITIONS I. "Aircraft" means a vehicle designed for the transport of persons or property principally in the air. 2. "Authority" means the Bay Cities Joint Powers Insurance Authority. W PIBA Y\OOCS\LIA B\2oo2\MOC 2002-2003 2 of 23 3. "Automobile" means a land motor vehicle, trailer, or semi-trailer. 4. "Bodily injury" means bodily injury, sickness, disease, or emotional distress sustained by a person, including death resulting from any of these at any time. Bodily injury includes damages claimed by any person or organization for care, loss of services, or death resulting at any time from the bodily injury. 5. "Covered Indemnity Contract" means that part of any contract or agreement pertaining to the "covered party's" routine governmental operations under which the "covered party" assumes the tort liability of another party to pay for "bodily injury" or ''property damage" to a third person or organization. This definition applies only to tort liability arising out of an "occurrence" to which this Agreement applies. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. 6. ''Covered party" means: (a) The entity named in the Declarations, including any and all commissions, agencies, districts, authorities, boards, including the governing board or similar entities coming under such entity's direction or control or for which such entity's board members sit as the governing body. "Covered party" includes departments and constituent agencies of the entity, except an airport or hospital board or commission, regardless of how such body is denominated. (b) Persons who are past or present elected or appointed officials, employees, or volunteers of the "covered party, " whether or not compensated, while acting for or on behalf of the "covered party," including while a:;ting on outside boards at the direction of the "covered party," except any airport or hospital board or commission, regardless of how such body is denominated, or any other joint powers authority, or any separate agency or entity, created by a joint powers agreement, subject to the provisions of subparagraph (e), provided, however, that an airport board or commission may be added to. this Memorandum by endorsement on approval of the Board of Direc'tors. (c) Any person or entity identified as a "covered prrty," holding a certificate of coverage duly issued by the Authority, for "occurrences" during the coverage' period identified in the certificate of coverage; if a particular activity is identified in the certificate of coverage, the person or entity is a "covered party" only for "occurrences" arising out of the described activity. (d) Any officer or director of the Bay Cities Joint Powers Insurance Authority, and the staff and employees of the Administrator thereof while in the course and scope of their duties for the Authority, with respect to ''public officials errors and omissions" coverage. ( e) "Covered party" does not include any person, organization, trust, or estate or any other entity for any risk, claim, or loss which is incurred or occurs under any other WP\BA Y\DOCS\LIAB\2oo2\MOC 2002.2003 3 of 23 joint powers authority, or any joint powers agreement which creates a separate agency or entity, unless added hereto by endorsement. However, as to any person ,who is an official, employee, or volunteer of the entity named in the Declarations and is pn1:icipating in the activities of any other joint powers authority or any separate agency or entity created under any joint powers agreement on behalf of that named entity, the coverage afforded by this agreement will apply in excess of and shall not contribute with any collectible insurance or other coverage provided to or through the other joint powers authority or joint powers agreement covering a loss also covered hereunder (whether on a primary, excess, or contingent basis). (f) With respect to any "automobile" owned by the "covered party" or leased or hired for use by or on behalf of the "covered party," any person while using such "automobile," and any person or organization legally responsible for the use thereof, provided its actual use is with the permission of the entity named in the Declaration, except: (i) Any person or organization, or any agent or employee thereof, operating an "automobile" sales agency, repair shop, service station, storage garage, or public parking place, with respect to an "occurrence" arising out of the operation thereof, including road testing and delivery; or (ii) The owner or any lessee, other than the "covered party," of a leased or hired "automobile," or any agent or employee of such owner or lessee. (iii) This agreement does not provide uninsured or underinsured motorist coverage. (g) Notwithstanding sections (b) and (f) above, the defense and indemnity coverage afforded by this agreement to a past or present official, employee, or volunteer of a member entity (including a member entity of a member joint powers authority) is not broader than the member entity's duty to defend and indemnify its official, employee, or volunteer pursuant to California Government Code Section S815, 815.3, 825 to 825.6, 995 to 996.6, inclusive, and any amendments thereof. If the member entity which employs the official, employee, or volunteer is not obligated, under the California Government Code to provide a defense, or to provide indemnity for a claim, or if said member entity refuses to provide such defense and/or indemnity to said official, employee, or volunteer, then this agreement shall not provide any such defense or indemnity coverage to said official, employee, or volunteer. All immunities, defenses, rights and privileges afforded to a member entity under California Government Code Section S8l5, 815.3, 825 to 825.6, 995 to 996.6, inclusive, and any amendments thereof, shall be afforded to the Authority to bar any defense or indemnity coverage under this agreement to that member entity's official, employee, or volunteer. 7. "Dam" means any artificial barrier, together with appurtenant works, which does or may impound or divert water, and which either (a) is 25 feet or more in height from the natural WP\BA Y\DOCS\LIAB\2002\MOC 2002-2003 4 of 23 bed Of the stream or watercourse at the downstream toe of the barrier, or from the lowest elevation of the outside limit of the barrier, if it is not across a stream, channel, or watercourse, to the maximum possible water storage elevation; or (b) has an impounding capacity of 50 acre- feet or more. Any such barrier which is not in excess of 6 feet in height, regardless of storage capacity, or which has a storage capacity not in excess of 15 acre- feet, regardless of height, shall not be considered a "dam." No obstruction in a canal used to raise or lower water therein or divert water therefrom, no levee, including but not limited to a levee on the bed of a natural lake the primary purpose of which levee is to control floodwaters, no railroad fill or structure, no road or highway fill or structure, no circular tank constructed of steel or concrete or of a combination thereof, no tank elevated above the ground, no water or waste water treatment facility, and no barrier which is not across a stream channel, watercourse, or natural draina ge area and which has the principal purpose of impounding water for agricultural use or storm water detention or. water recharging or use as a sewage sludge drying facility shall be considered a "dam." In addition, no obstruction in the channel of a stream or watercourse which is 15 feet or less in height from the lowest elevation of the obstruction and which has the single purpose of spreading water within the bed of the stream or watercourse upstream from the construction for percolation underground shall be considered a "dam." Nor shall any impoundment constructed and utilized to hold treated water from a sewage treatment plant be considered a "dam." Nor shall any waste water treatment or storage pond exempted from state regulation and supervision by Water Code Section 96025.5 be considered a "dam." 8. "Damages" means compensation in money recovered by a party for loss or detriment it has suffered through the acts of a "covered party," or for liability assumed by the "covered party" under a "covered indemnity contract." "Damages" include (l) attorney fees not based on contract awarded against the "covered party," (2) interest awarded on money damages, or (3) costs, for which the "covered party" is liable either by adjudication or by compromise with the \Witten consent of the "Authority," if the fees, interest, or costs arise from an "occurrence" to which this coverage applies. 9. "Defense costs" means all fees and expenses incurred by any "covered party" caused by' and relating to the defense or litigatDn of a claim including attorney's fees, litigation costs, court costs, and interest on judgments accruing after entry of judgment. "Defense costs" shall also include reasonable attorney fees and necessary litigation expenses incurred by or for a party other than the "covered party," which are assumed by the "covered party" in a "covered indemnity contract" where such attorney fees or costs are attributable to a claim for "damages" covered by this Memorandum. "Defense costs" shall not include the office expenses of the Authority or the "covered party," the salaries of employees, contract or elected city attorneys for the "covered party." or officials of the Authority or any "covered party," or attorney fees or costs awarded to a prevailing plaintiff against the "covered party," but shall include fees and expenses relating to coverage issues or disputes which arise after a written denial of coverage, between any WP\BA Y\DOCS\LIAB\2oo2'MOC 2002-2003 5 of 23 entity named in the Declarations and the Authority, if the entity named III the Declarations prevails in such dispute. 10. "Limit' of coverage" means the amount of coverage stated in the Declarations or certificate of coverage, or sublimits as stated therein for each "covered party" per "occurrence," subject to any lower sublimit stated in this Memorand um. In the event that a structured settlement, whether purchased from or through a third-party, or paid directly by the covered party in installments, is utilized in the resolution of a claim or suit, the Authority will pay only up to the amount stated in the Declarations or certificate of coverage, in present value of the claim as determined on the date of settlement, regardless of whether the full value of the settlement exceeds the amount stated in the Declarations or certificate of coverage. 11. "HOllS ing authority" means a public corporation created pursuant to, California Health & Safety Code Sections 934200 et. seq. 12. "Medical malpractice" means the rendering of or failure to render, during the policy period, any of the following services: (a) Medical, surgical, dental, psychiatric, psychological counseling, X-ray or nursing service or treatment or the furnishing of food or beverages in connection therewith, or any services provided by a health care provider as defined in Section 96146 (c), (2) (3) of the California Business and Professions Code. . (b) Furnishing or dispensing of drugs or medical, dental, or surgical supplies or appliances. "Medical malpractice" does not include emergency medical services or first aid administered by employees, nor does it include advice or services rendered by a 911 emergency dispatcher. 13. "Nuclear material" means source material, special nuclear material, or byproduct material. "Source material," "special nuclear material," and ''byproduct material" have the meanings given to them by the Atomic Energy Act of 1954 or in any law amendatory thereof. ' 14. "Occurrence" means: (a) With respect to ''bodily injury," "property damage," or "sudden and accidental pollution": an accident, including continuous or repeated exposure to substantially the same generally harmful conditions, which results in ''bodily injury" or ''property damage" neither expected nor intended from the standpoint of the "covered party." ''Property damage" that is loss of use of tangible property not physically injured shall be deemed to occur at the time of the "occurrence" that caused it. WP\BA Y\DOCS\LIAB\2oo2\MOC 2002-2003 6 of 23 (b) With respect to "personal injury" and "public officials errors and omissions" respectively: an offense described in the defmition of those terms in this coverage agreement. 15. ''Personal injury" means injury, other than ''bodily injury," arising out of one or more of the following offenses: (a) False arrest, detention or imprisonment, abuse of process, or malicious prosecution; (b) Wrongful entry into, or evic tion of a person from, a room, dwelling, or premises that the person occupies; (c) Publication or utterance of material that slanders or libels a person or organization or disparages a person's or organization's goods, products, or services, or oral or written publication of material that violates a person's right of privacy; (d) Discrimination or violation of civil rights; and ( e) Injury resulting from the use of reasonable force for the purpose of protecting persons or property. 16. ''Pollutants'' means any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, airborne particles or fibers, molds and/or fungus, and waste. Waste includes materials to be discarded or to be recycled, recorrlitioned, or reclaimed. The term pollutants as used herein does not mean potable water, agricultural water, water furnished to commercial users, or water used for fITe suppression. 17. ''Property damage" means: (a) Physical injury to tangible property, hcluding all resulting loss of use of that property; or (b) Loss of use of tangible property that is not physically injured or destroyed. 18. ''Public officials errors and omissions" means any, actual or alleged misstatement or misleading statement or act or omission by any "covered party," individually or collectively, arising in the course and scope of their duties with the "covered party" or claimed against them solely by reason of their being or having been public officials or employees, and which results in damage neither expected nor intended from the standpoint of the "covered party." All claims involving the same misstatement or misleading statement or act or omission or a series of continuous or repeated misstatements or misleading statements or acts or omissions will be considered as arising out of one "occurrence." WP\BA Y\DOCS\LIA B\2OO2\MOC 2002-2003 7 of 23 19. "Retained limit" means the amount stated on the applicable Declarations or certificate of coverage, which will be paid by the "covered party" before the Authority is obligated to make any payment from the pooled funds. "Retained limit" includes all "defense costs." "Retamed limit" shall be subject to the following: (a) For each "occurrence," there shall be only one ''retained limit" regardless of the number of claimants or "covered parties" against whom a claim is made. If the "covered parties" have different "retained limits," the lowest "retained limit" of any party found liable will apply. Payment of the ''retained limit" shall be apportioned amongst the "covered parties" in accordance with their proportionate shares of liability. (b) If the payment is for a settlement, the "retained limit" shall be apportioned amongst the "covered parties," in accordance with the respective parties' agreed upon or court-determined share of liability. In the event that the apportionment requires court determination, the "covered parties" will pay all costs of the . Authority in seeking such determination, including its attorney's' fees in proportion to the court's determination of liability. 20. ''Sudden and accidental pollution" means the sudden and accidental discharge, dispersal, release, or escape of "pollutants," resulting in "property damage" or ''bodily injury" neither expected nor intended from the standpoint of the "covered party," onto or upon the land or into the atmosphere, but does not include any discharge, dispersal, release, or escape of ''pollutants,'' whether sudden or accidental or gradual or intentional, into or under the ground, or into any watercourse, whether natural or man- made, or body of water or aquifer, or from any fixed or stationary container, vessel, or tank of any description whatever, whether located above ground or underground. The coverage provided for "sudden and accidental pollution" is limited to $100,000 over tre "retained limit, "per "occurrence," per "covered party. " 21. "Ultimate net loss" means the sum actually paid or payable as "damages," attorneys fees, or costs in settlement or satisfaction of a claim, or as "defense costs," for which the "covered party" is liable either by adjudication or by compromise with the written consent of the Authority, after making proper deduction for all recoveries and salvages and other collectible insurance. In the event several "covered parties" are involved in the' loss, the "ultimate net loss" will be apportioned amongst the "covered parties" by dividing the "ultimate net loss" by the number of entities involved, unless and until liability of the various "covered parties" is determined by arbitration or judgment, at which time the "ultimate net loss" will be apportioned by the relative liabilities of the "covered parties." Ultimate net loss does not include attorneys' fees or costs awarded to the prevailing party in a suit except where such attorneys' fees or costs are attributable to a claim for damages covered by this memorandum. WP\BA Y\DOCS\LIAB\2002\MOC 2002-2003 8 of 23 SECTION III - DEFENSE AND SETTLEMENT The Authority shall have no duty to assume charge of investigation or defense of any claim. However, the Authority, at its own expense, shall have the right to assume control of the negotiation, investigation, defense, appeal, or settlement of any claim, which the Authority determines, in its sole discretion, to have a reasonable probability of resulting in an "ultimate net loss" in excess of the "covered party's" "retained limit." No claim shall be settled for an amount in excess of the covered party's retained limit without the prior written consent of the Authority or its designated representative. If the Authority assumes control of the hand ling of a cl~im, the "covered party" shall be obligated to pay at the direction of the Authority any sum necessary for the settlement of the claim, or to satisfy liability imposed by law, up to its applicable "retained limit." The "covered party" shall fully cooperate in all matters pertaining to the investigation, settlement, or adjudication of such claim. The Authority shall not be obligated to pay any award, judgment, or settlement in excess of the "limit of coverage" afforded to the "covered party. " SECTION IV - THE AUTHORITY'S LIMIT OF COVERAGE Regardless of the number of (1) persons or entities covered under this agreement, (2) persons or organizations making claims or bringing suits, or (3) claims made or suits brought, the "limit of coverage" stated on the Declarations, less the retained limit, or any sub-limit contained in this Memorandum, is the most the Authority will pay for an "ultimate net loss" arising out of anyone "occurrence." In the event that a structured settlement, whether purchased from or through a third party or paid directly by the "covered party" in installments, is utilized in the resolution of a claim or suit, only the present value of the agreed-upon payments (the present value "cost" of the structured settlement) shall be considered in satisfaction of the "covered party's" "retained limit." The "limit of coverage" for an additional covered party, including its officials, employees, and volunteers, shall be the limit stated in its additional covered party certificate, regardless of the limit which applies to the member entity. In the event that a structured settlement, whether purchased from or through a third-party, or paid directly by the covered party in installments, is utilized in the resolution of a claim or suit, de Authority will pay only up to the amount stated in the Declarations or certificate of coverage, in present value of the claim as determined on the date of settlement, regardless of whether the full value of the settlement exceeds the amount stated in the Declarations or certificate of coverage. SECTION V - COVERAGE PERIOD AND TERRITORY This agreement applies to ''bodily injury," "personal injury," ''property damage," ''public official's errors and omissions," or "sudden and accidental pollution" whic h occur anywhere in 9 of 23 WP\BA Y\DOCS\LIAB\2oo2\MOC 2002-2003 the world during the coverage period identified in the applicable Declaration or certificate of coverage. SECTION VI - EXCLUSIONS (A) This Agreement does not apply to: (1) Except as provided under "sudden and accidental pollution," any claim arising out of the contamination of the environment by "pollutants" introduced at any time, into, under or upon land, the atmosphere, or any watercourse or body of water or aquifer. This exclusion applies whether or not the contamination is introduced into the environment intentionally or accidentally or gradually or suddenly, and whether or not the "covered party" or any other person or organization is responsible for the contamination. However, as to any such claim for "damages" for personal injury or to real property no longer owned, maintained, or used by the "covered party," the Authority will provide a defense up to the amount of $100,000 over the "retained limit" per "occurrence" for any such pollution related claim. "Contamination" includes any unclean, unsafe, or unhealthful condition, either actual or potential, which arises out of the presence in the environment of any "pollutant" whether permanent or transient. "Environment" includes land, bodies of water, underground water or water table or aquifer, the atmosphere, and any other natural feature of the earth, whether or not altered, developed or cultivated. This exclusion does not apply to fire fighting activities, including training burns, or intentional demolition or burns for the purpose of limiting a fire, or to the discharge of "pollutants" for the purpose of controlling a fire or to police use of mace, oleoresin capsicum (D.C. or pepper gas), or tear gas, or to weed abatement, or to tree spraying, or to claims arising from sudden and accidental sewer backups, with coverage provided and limited to an amount up to $100,000 over the ''retained limit" per "occurrence." This exclusion does not apply to claims arising from the sudden and accidental' discharge, dispersal, release, or escape of chlorine and other chemicals (gas, liquid, or solid) which are being used or being prepared for use in fresh or waste water treatment or in water used in swimming pools, wading pools, or decorative fountains, with coverage provided and limited to an amount up to $100,000 over the "retained limit" per "occurrence." As used herein, "sudden" means abrupt or immediate, and occurring within a period not exceeding twenty- four (24) hours; "accidental" means causing harm neither expected nor intended by a "covered party. " This exclusion does not apply to claims arising from materials being collected as part of any drop off or curbside recycling program implemented and operated by WP\BA Y\DOCSlLIAB\2002\MOC 2002-2003 10 of 23 the "covered party," if the materials have not been stored by the "covered party" or parties for a continuous period exceeding sixty (60) days. Notwithstanding what is stated in the applicable Declarations, the "limit of coverage" for claims described in this exception will be subject to a sub limit of $100,000. This exclusion does not apply to claims arising from mold and/or fungus, with coverage limited to an amount up to $100,000 over the "retained limit" per "occurrence. " This exclusion does not apply to 'lJroperty damage" or ''bodily injury" caused by a "covered party's" response to "contamination" caused by a third-party unrelated to a '"covered party." "Response" includes cleanup, removal, containment, treatment, detoxification and neutralization of 'lJollutants." (2) Any cost or expense arising out of any governmental order, direction, or request that the "covered party" test for, monitor, clean up, remove, contain, treat, detoxify, or neutralize 'lJollutants." ' (3) Claims by any potential, present, or former employee or official of the "covered party," arising out of a violation of civil rights or employment-related practices, policies, acts, or omissions, including termination, coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, or discrimination directed at that person. This exclusion extends to claims of the spouse, child, including unborn child or fetus, parent, brother, or sister of that person as a consequence of injury to the person at whom any of the employment- related practices, policies, acts, or omissions described above are directed. For the purposes of this section, claims shall include all attorneys' fees, costs, salary or wage loss, pain and suffering, general and punitive damages, and all related expenses. This exclusion applies to claims of negligent supervision and/or claims of failure to prevent such employment-related practices, policies, acts, or omlSSlOns. (4) Bodily injury to: (a) An employee of the "covered party" arising out of and in the course of: (i) Employment by the "covered party"; or (ii) Performing duties related to the conduct of the "covered party's" business; or (b) the spouse, child, including unborn child or fetus, parent, brother, or sister of the employee as a consequence of paragraph (1) above. This exclusion applies: WP\BA Y\DOCS\LIAB\2002\MOC 2002-2003 11 of 23 (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. (5) Any obligation for which the "covered party" or any insuran:;e company as its insurer may be held liable under any workers' compensation, unemployment compensation, or disability benefits law or any similar law. These exclusions (3) and (5) apply whether the "covered party" may be liable as an employer or in any other capacity. (6) Claims arising out of ownership, maintenance, management, supervision, or the condition or operation of any hospital, airport, marina, or community correctional facility, except that liability for a marina will be covered if it is added to this Memorandum by endorsement upon approval by the Board of Directors,' but only to the extent that the "occurrence" does not apply to any coverage normally afforded by Marina Operators' Protection and Indemnity Coverage or any similar coverage. (7) Claims arising out of any professional medical malpractice: (a) committed by a doctor, osteopath, chiropractor, dentist, or veterinarian; or (b) committed by any health care provider, as defmed in Business & Professions Code Section 6146( c )(2), working for any hospital or hospital operated out-patient, in-patient, or other clinic at the time of the occurrence giving rise to the loss. (8) Claims arising out of partial or complete structural failure of a "dam." (9) Fines, assessments, penalties, restitution, disgorgement, exemplary, or punitive damages. This exclusion applies whether the fine, assessment, disgorgement, exemplary, or punitive damage is awarded by a court or by an administrative or' regulatory agency. "Restitution" and "disgorgement" aSlEed herein refer to the order of a court or administrative agency for the return of a specific item of property or a specific sum of money, because such item of property or sum of money was not lawfully or rightfully acquired by the covered party. (10) Claims for injury or damages caused by intentional conduct done with willful and conscious disregard of the rights or safety of others, or with malice. 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 WP\BA Y\DOCS\LIAB\2002\MOC 2002-2003 12 of 23 solely on its vicarious liability arising from its relationship with such employee, official, or volunteer, this exclusion does not apply to said "covered party." (11) Claims arising out of the hazardous properties of "nuclear material. " (12) (a)Claims arising out of or in connection with inverse condemnation caused by the construction of a public work or public improvement; land use regulation or planning; annexation; eminent domain; or other condemnation proceedings by whatever name called, where such claims result from: (i) The deliberate decision- making conduct of the "covered party"; or (ii) A judicial, administrative, or legislative order; or (iii) The initiative process, whether or not liability accrues directly against the "covered party" by reason of any agreement into which the "covered party" has entered. This exclusion (12) (a) does not apply to claims for "property damage" resulting from: (i) Weather conditions, such as rainfall, overflow of watercourses or flooding, winds, snow, hail or ice, acting upon or with the "covered party" property or equipment; or (ii) The accidental failure of a "covered party's" property or equipment; or (iii)Negligent or inadequate design or inadequate maintenance of a public work or public improvement. With respect to damages resulting from exception (c) to exclusion (l2)(A), the "covered party" will be responsible for paying one - half of the unpaid damages, attorney fees, and costs for any amount above its retained limit up to the sum of $250,000. (b) Claims arising out of the design, construction, ownership, maintenance, operation or use of any water treatment plant or wastewater treatment plant This exclusion (12)(b) does not apply to claims for 'property damage" resulting from the accidental failure of the equipment utilized or contained within the water treatment plant or the wastewater treatment plant. (13) ''Property damage" to: (a) Property owned by the "covered party." (b) Property rented to or leased to the "covered party" where it 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 . WP\BA Y\DOCS\LIAB\2oo2\MOC 2002-2003 13 of 23 (c) "Aircraft" or watercraft in the "covered party's" car:e, custody, or control. (14) Claims arising out of ownership, operation, use, maintenance, or entrustment to others of: (a) any "aircraft" or (b) watercraft exceeding 26 feet in length. Ownership, operation, use, or maintenance as used herein does not include static displays of aircraft or watercraft in a park or museum setting. (15) Claims arising out of the failure to supply or provide an adequate supply of gas, water, electricity, or sewage capacity, when such failure is a result of the inadequacy of the "covered party's" facilities to supply or produce sufficient gas, water, electricity, or sewage capacity to meet the demand. This exclusion does not apply if the failure to supply results from direct and immediate accidental damage to tangible property owned or used by any "covered party" to procure, produce, process, or transmit the gas, water, electricity, or sewage. (16) Claims arising out of ownership, operation, maintenance, or use of any trampoline or other rebound tumbling device. (17) Claims arising out of the ownership, operation, maintenance, or use on any land, other than highways, of any off- highway. motor vehicle, including but not limited to any motorcycle or motor-driven cycle or bicycle, snowmobile, or other vehicle specifically designed to travel over snow or ice, or any vehicle commonly referred to as a sand buggy, dune buggy, or all- terrain vehicle. This exclusion shall not apply to the operation of any such vehicle if operated by an employee, agent, or volunteer of the "covered party" while acting for or on behalf of the "covered party. " (18) Claims arising out of or in the course of any special event not sponsored or co- sponsored by the "covered party." As to any event sponsored or co- sponsored by the "covered party," the Authority will pay up to $100,000 over and above the "covered party's" ''retained limit" but no greater amount, unless the injury or damage is caused by the actions of a "covered party" in which case the $100,000 , cap will not apply. (19) Claims arising out of the private use of a firing range owned, operated, or maintained by a "covered party, " where such private use is not in the course and scope of the "covered party's" business activities. (20) Refund of, or restitution for, taxes, fees, service charges, or assessments. (21) Claims in whole or in part arising out of the "covered party's" obtaining remuneration or financial gain to which the "covered party" was not legally entitled. WPIBA Y\DOCS\LIAB\2oo2\MOC 2002-2003 14 of 23 (22) Claims arising in whole or in part out of the violation of a statute, ordinance, order or decree of any court or other judicial or administrative body, or rule of .law, committed by or with the knowledge or consent of the "covered party." (23) Claims against a "covered party" for damages other than "property damage" arising out of: (a) estimates of probable cost or cost estimates being exceeded, or (b) faulty preparation of bid specifications or plans, including architectural plans, unless prepared by a qualified licensed and/or registered engineer or architect who is the appointed City Engineer or an employee of the "covered party. " (24) (a) Claims arising out of failure to perform, or breach of, a contractual obligation. (b) Claims arising out of liability assumed under any contract or agreement, except liability that would be imposed by law in the absence of the contract or agreement, or when such assumption is the subject of a duly issued certificate of additional covered party; but such assumption is covered only up to the limit of coverage stated in the certificate. This exclusion does not apply to liability assumed in a contract or agreement that is a "covered indemnity contract," provided the "bodily injury" or "property damage" occurs sub sequent to the execution of the contract or agreement. Exclusions (25)(a) and (25)(b) are not applicable to mutual aid agreements. (25) Claims arising out of the Employee Retirement Income Security Act of 1974 or any law amendatory thereof, or any similar law, or arising out of fiduciary activities with respect to employee benefit plans. (26) Claims arising out of ownership, maintenance, management, supervision, or the' condition of any property owned, operated, or controlled by a housing authority, unless all of the individuals involved in the operation of the housing authority are employees of the entity named in the declarations. (27) Claims arising out of the ownership, operation, maintenance, or control of any permanent landfill site or facility. Landfill includes any site for permanent storage, accumulation, burial, compost, sludge, or any other process for reducing or disposing of waste. (28) "Ultimate net loss" arising out of relief or redress, III any form other than "damages. " 15 of 23 WP\BA Y\DOCS\LIAB\2002\MOC 2002-2003 (29) Claims ansIng out of bungee jumping or propelling activities sponsored, , controlled, or authorized by a "covered party. " . (30) Claims by any "covered party" against its own past or present elected or appointed officials, employees, volunteers, or additional covered parties where such claim seeks "damages" payable to the "covered party." (31) Claims arising out of radon, asbestos, asbestos fibers, asbestos products or by- products, or any asbestos-containing material, including any supervision, instructions, recommendations, notices, warnings, or advice given or which should have been given in connection therewith or, (a) Any obligation of the "covered party" to indemnify or to contribute with another because of such claims; or, (b) Any obligation to defend any suit or claims against the "covered party" because of any such claim. However, the Authority will provide a defense up to the amount of$100,000 over the ''retained limit" per "occurrence." (32) Claims arising out of oral or written publication of material, if done by or at the direction of the covered party with knowledge of its falsity. (33) The Cost of providing reasonable accommodation pursuant to the Americans with Disabilities Act, Fair Employment and Housing Act, or similar law. (B) This agreement does not apply under "public officials errors and omissions," to: (1) ''bodily injury" or "personal injury"; (2) physical injury to tangible property, including all resulting loss of use of that property; or (3) benefits payable under any employee benefit plan, whether the plan is voluntarily established by the "covered party" or mandated by statute, because of unlawful discrimination. SECTION VII - CONDITIONS 1. The "covered party's" duties in the event of "occurrence," claim, or suit reasonably likely to involve the Authority are as follows. These provisions are conditions precedent to WP\BA Y\DOCS\LIAB\2oo2\MOC 2002-2003 16 of 23 coverage afforded under this Memorandum. The "covered partY's" failure to comply with any of these provisions shall void coverage herein. (a) The "covered party" shall notify the Authority within 30 days upon receipt of notice of a claim reasonably likely to exceed fifty percent of the "retained limit" or any "occurrence" involving: (i) One or more fatalities; (ii) Loss of limb or amputation; (iii) Loss of lEe of any sensory organ; (iv) Spinal cord injuries (quadriplegia or paraplegia); (v) Third degree bums involving 100/0 or more of the body; (vi) Serious facial disfigurement; (vii) Paralysis; (viii) Closed head injuries; (ix) Serious loss of use of any body functions; (x) Long-term hospitalization; or (xi) Title 42 D.S.C. ~ 1983 claims or other claims involving civil rights violations. Written notice containing particulars sufficient to identify the "covered party" and also reasonably obtainable information with respect to the time, place, and circumstances of the "occurrence," and the names and addresses of the "covered party" and of available witnesses shall be given to the Authority or any of its , agents as soon as possible after notice of the claim is given to the Authority, if such information is not available prior to giving notice to the Authority. (b) If claim is made or suit is brought against the "covered party," the "covered party" shall be obligated to promptly forward to the Authority's designated claims adjustor every demand, notice, summons, or process received by it or its representative. (c) The "covered party" shall cooperate with the Authority and upon its request assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the "covered party" because of "bodily injury," '1Jersonal injury," "property WP\BA Y\DOCS\LJAB\2oo2\MOC 2002-2003 17 of 23 damage," "public officials errors and omissions," or "sudden and accidental pollution" with respect to which coverage is afforded under this agreement; and ,the "covered party" shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The "covered party" shall not, except at its own cost, voluntarily make any payment, assume any obligation, or incur any expense toward the settlement of any claim for which the Authority has accepted responsibility and has so notified the "covered party." (d) Any payments made, or arrangements to make payments, or expenses incurred by the "covered party" in relation to the claim, prior to giving notice of the claim to the Authority, shall be the sole responsibility of the "covered party," and the Authority shall have no obligation to pay said costs or to reimburse the "covered party" therefor. ( e) As to any claim for which the Authority has accepted responsibility and has so notified the "covered party," if the "covered party's" refusal to change its position prevents settlement of the claim for a reasonable amount, defined as the amount the Authority is willing to pay and the claimant is willing to accept, and increases the "covered party's" potential liability for "damages" and continued "defense costs," the "covered party" shall payor shall reimburse the Authority for those "defense costs" incurred after the claim could have been settled, and for any "damages" awarded or settlement agreed upon in excess of the amount for which the claim could have been previously settled. 2. Subrogation The Authority shall be subrogated to the extent of any payment hereunder to all the "covered parties" rights of recovery thereof and the "covered parties" shall do nothing after loss to prejudice such right and shall do everything riecessary to secure such right. Any amounts so recovered shall be apportioned as follows: (a) The highest layer of coverage shall be reimbursed first and if there be sufficient recoveries then the next highest layer until all recoveries are used up. (b) The expenses of all such recovery proceedings shall be paid before any reimbursements are made. If there is no recovery in the proceedings conducted by the Authority, it shall bear the expenses thereof. 3. Bankruptcy or Insolvency Bankruptcy or insolvency of the "covered party" shall not relieve the Authority of any of its obligations hereunder. 4. Other Coverage WP\BA Y\DOCS\LIABIl002\MOC 2002-2003 18 of 23 If collectible insurance or any other coverage with any insurer, joint powers insurance authority, or other source respectively is available to the "covered party" covering a loss also coyered hereunder (whether on primary, excess or contingent basis), the coverage hereunder shall be in excess of, and shall not contribute with, such other insurance or coverage, provided that this clause does not apply with respect to ins urance purchased or coverage obtained specifically to be in excess of this agreement. If the other collectible insurance or other coverage exceeds the "covered party's" "retained limit" and the loss is in excess of the amount of other collectible insuranc e or other coverage, the coverage provided hereunder will apply over the other collectible insurance or other coverage up to the limits of the Authority's liability. This coverage shall be in excess of, and shall not contribute with, any Insurance or coverage which names a "covered party" herein as an additional covered party or additional insured party, where coverage is extended to a loss also covered hereunder. In order for the coverage herein to apply, the "covered party" must pay the full amount of its ''retained limit." Payment of the "retained Limit" by the "covered party" is required in addition to and regardless of any payments from any other source for or on behalf of that "covered party. " 5. Severability of Interests The term "covered party" and its sub-terms including entity, covered individual, and additional covered party are used severally and not collectively, but the inclusion herein of more than one "covered party" shall not operate to increase the limits of the Authority's liability or the ''retained limit" applicable per "occurrence." 6. Accumulation of Limits A claim which contains allegations extending to a duration of more than one coverage period shall be treated as a single "occurrence" arising during the first coverage period when the "occurrence" begins. 7. Termination This agreement may be terminated at any time in accordance with the Bylaws of the Authority . 8. Changes Notice to any agent or knowledge possessed by any agent of the Authority or by any other person shall not affect a waiver or a change in any part of this Memorandum of Coverage, nor shall the terms of this Memorandum of Coverage be waived or changed, except by endorsement issued to form a part of this Memorandum of Coverage. WP\BA Y\DOCS\LJA B\2002\MOC 2002-2003 19 of 23 9. Arbitration DecisioIE by the Authority whether to assume control of the negotiation, investigation, defense, appeal, or settlement of a claim, or whether or not coverage exists for a particular claim or part of a claim shall be made by the Board of Directors of the Authority. Any dispute concerning a decision of the Authority to deny coverage for all or part of a claim shall not be subject to any court action, but shall instead be submitted to binding arbitration. The "covered party" must exhaust the right to appeal to the Board of Directors, if applicable, before requesting arbitration of a dispute. Arbitration shall be conducted pursuant to the California Code of Civil Procedure. Arbitration shall be conducted by a three-person panel. The "covered party" or parties shall select one arbitrator and the Authority shall select one arbitrator, and the two arbitrators shall then select a third arbitrator upon mutual agreement. No arbitrator shall be employed or affiliated with the Authority or the "covered party" or "covered parties." The selection of arbitrators shall take place within twenty (20) calendar days from the receipt of the request for arbitration. Unless mutually agreed otherwise, the arbitration hearing shall commence within forty- five (45) calendar days from the date of the selection of the arbitrators. Each party shall pay the cost of its selected arbitrator and one half the cost of the third selected arbitrator. In addition, each party shall be responsible for its own costs and expenses of arbitration. . Except for notification of appointment and as provided in the California Code of Civil Procedure, there shall be no communication between the "parties" and the arbitrator(s) relating to the subject of the arbitration other than at oral hearings. The procedures set forth in California Code of Civil Procedure Section 1293.05 relating to depositions and discovery shall apply to any arbitration pursuant to this paragraph 9. Except as provided otherwise above, arbitration shall be conducted as provided in Title 9 of the Code of Civil Procedure (commencing with Section 1280). The decision of the arbitrators shall be final' and binding, and shall not be subject to appeal. WP\BA Y\DOCS\LIAB\2oo2\MOC 2002-2003 20 of 23 BAY CITIES JOINT POWERS INSURANCE AUTHORITY MEMORANDUM OF COVERAGE LIABILITY COVERAGE ENDORSEMENT NO.1 It is understood that the named Covered Party of the Declarations is completed as follows: Bay Cities Joint Powers Insurance Authority, City of Albany, City of Berkeley, City of Brisbane, City of EmerYVille, Town of Fairfax, City of Larkspur, City of Menlo Park City of Mill Valley, City of Monte Sereno, City of Nova to, City of Piedmont, City of Pleasanton, City of Redwood City, T own of San Anselmo, San Francisco Redevelopment Agency, City of Sausalito, and City of Union City. Attached to and forming part of Policy No. BCJPIA2003-1 GL Effective Date: July 1, 2003 , g e. ~a-'" AUTHORIZED REPRESENTATIVE 21 of 23 WP\BA Y\DOCS\LIAB\2002\MOC 2002.2003 BAY CITIES JOINT POWERS INSURANCE AUTHORITY MEMORANDUM OF COVERAGE LIABILITY COVERAGE ENDORSEMENT NO.2 Retained Limits applicable to each member entity are as follows: Member Retained Limit City of Albany City of Berkeley City of Brisbane City of EmerYVille Town of Fairfax City of Larkspur City of Menlo Park City of Mill Valley City of Monte Sereno City of Nova to City of Piedmont City of Pleasanton City of Redwood City Town of San Anselmo San Francisco Redevelopment Agency City of Sausalito City of Union City $ 25,000 $ , 250,000 $ 25,000 $ 10,000 $ 50,000 $ 250,000 $ 250,000 $ 100,000 $ 5,000 $ 250,000 $ 10,000 $ 100,000 $ 250,000 $ 100,000 $ 50,000 $ 50,000 $ 25,000 Attached to and forming part of Policy No. BCJPIA2003-IGL Effective Date: July 1, 2003 , ~ €. t!/t.,... .. AUTHORIZED REPRESENTATIVE WP\BA Y\DOCS\LIAB\2oo2\MOC 2002-2003 22 of 23' BAY CITIES JOINT POWERS INSURANCE AUTHORITY MEMORANDUM OF COVERAGE LIABILITY COVERAGE ENDORSEMENT NO.3 This endorsement, effective 12:01 a.m., July 1, 2003, forms a part of Policy No. BCJPIA2003- IGL. Notwithstanding Exclusion (6), it is understood that this Memorandum of Coverage applies to "damages" because of "bodily injury," ''property damage," or ''personal injury" arising out of ownership, maintenance, or operation of the marinas insured under the Marina Operators Policy No. MH2907185, or renewal thereof, issued by Zurich American Insurance Group to Bay Cities Joint Powers Insurance Authority, if the liability arises from an action which would be covered under a comprehensive general liability policy. Attached to and forming part of Policy No. BCJPIA 2003-1 GL Effective Date: July 1, 2003 Endorsement No.: 3 ~ Q €. ~I.'.. AUTHORIZED REPRESENTATIVE WP\BA Y\DOCS\LIAB\2002\MOC 2002-2003 23 of 23 CALIFORNIA AFFILIATED RISK MANAGEMENT AUTHORITIES MEMORANDUM OF COVERAGE LIABILITY COVERAGE DECLARATIONS POLICY NO. CARMA 2003-11GL NAMED COVERED PARTY: California Affiliated Risk Management Authorities, et aI., as per Endorsement No.1 1020 19th Street, Second Floor Sacramento, CA 95814 POLICY PERIOD: From 7-1-2003 to 7-1-2004 12:0] A.M. Pacific Standard Time LIMITS OF COVERAGE: $14,000,000 Excess of$l,OOO,OOO Each Occurrence Fonning Part of the Policy at Inception Form No. CARMA 2003-ll0L, Endorsements No.1 and 2 FORM AND ENDORSEMENTS: ON BEHALF OF CALIFORNIA AFFILIATED RISK MANAGEMENT AUTHORITIES AUTHORIZED REPRESENT A TIVE CALIFORNIA AFFILIATED RISK MANAGEMENT AUTHORITIES (CARMA) MEMORANDUM OF COVERAGE FOR THE 2003/2004 PROGRAM YEAR EFFECTIVE JULY 1, 2003