1986-077-Authorizing The Execution And Delivery Of Abag Plan I DocumentsRESOLUTION MO. 1986-77
RESOLUTION OF THE COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE
EXECUTION AND DELIVERY OF ABAG PLAN I DOCUMENTS
WHEREAS, the Town of Los Gatos is a municipal corporation duly organized
and existing under the Constitution and laws of the State of California
WHEREAS, the Town is authorized by Part 6 of Division 3.6 of Title 1,
Section 990, et seq., of the California Government Code (the "Act") to
insure itself —against tort or inverse condemnation liability, to insure
its employees against injury resulting from an act or ommission in the
scope of his/her employment and to insure against the costs of defending
such claims;
WHEREAS, pursuant to Section 990.4 of the Act the Town is authorized to
provide insurance by self-insurance which may be funded by appropriations
and to establish or maintain reserves for such purposes:
WHEREAS, pursuant to Section 990.6 of the Act, the costs to the Town of
such self-insurance is a proper charge against the Town and therefore the
governing board of the Town is authorized to make premium payments for
such coverage;
WHEREAS, pursuant to Section 990.8 of the Act, the Town is empowered to
provide insurance coverage by a joint powers agreement with other local
public entities, and such pooling of self-insured claims and the risk
sharing of losses is not considered insurance and is not subject to
regulation under the California Insurance Code;
WHEREAS, the Association of Bay Area Governments ("ABAG") is a joint
exercise of powers agency of which the Town is a member;
WHEREAS, ABAG is authorized to exercise necessary powers to implement the
purposes of ABAG as established by ABAG's Executive Board;
WHEREAS, ABAG has determined to assist the Town, and other members of ABAG
empowered to self-insure under the Act, (collectively the "Cities") to
obtain self-insurance for liability risks;
WHEREAS, ABAG and the Town have heretofore conclusively determined
following exhaustive investigation that excess general liability insurance
overage is not available to the Town form commercial insurers or from any
other source at a price which is reasonably related to the expected
incurred losses of such Towns.
WHEREAS, ABAG and the Town have further determined, based upon the advice
of independent professional insurance consultants familiar with the
cyclical nature of the reasonable availability of coverage in the
commercial insurance market, that such coverage is not anticipated to
become available until late in 1986 at the earliest, thereby in the
interim exposing the Town to self-insuring from available revenues on a
year-by-year basis with the attendant risk of fiscal instability and
ruinous budens on its citizens in the event of large liability claims
recoveries;
WHEREAS, ABAG and the Town have further determined that the perioldic
unwillingness of the commercial insurance market to provide excess general
liability insurance coverage to local governments at reasonable rates or,
in certain cases as at present, at any rate mandates that the Town seek
not only an immediate solution but also a long-term permanent solution to
this problem which will in future years free them from exposure to the
vagaries of commercial insurance cycles;
WHEREAS, ABAG and the Town, in consultation with independent professional
insurance consultants, have formulated a joint risk sharing insurance
program to be administered by ABAG through ABAG PLAN I Corporation and
called the ABAG Pooled Liability Assurance Network ("ABAG PLAN I") to meet
the general liability insurance coverage needs of the Town;
WHEREAS, the Town staff has submitted an application for premium quotation
from ABAG for ABAG PLAN I, and the Town warrants that the information
contained and representations made therein are true, complete and accurate
to the best of its knowledge;
WHEREAS, the Town has further determined that the Total Premium to be paid
in each year by the Town as provided for and upon the conditions set forth
in the Liability Coverage Agreement (the "Agreement") which will be
payable only upon the conditions of the receipt of the consideration
represented by the insurance protection and services to be provided in
such year under the Agreement, but in the event that such protection and
services are so provided in any year such Total Premium will be a binding
obligation of the Town payable from the income and revenue provided for
such year;
WHEREAS, the Town has further determined that the obtaining of the
insurance protection and services provided for under the Agreement is
essential in the preservation and fostering of the health, safety and
property rights of the citizens of the Town and the lack of availability
of reasonable commercial general liability insurance to local governments
generally in the State of California and to the Town in particular
constitutes a public emergency;
WHEREAS, it is a matter for the governing board of the Town to determine
the amount of premiums which such Town shall pay for the proper insurance
coverage;
WHEREAS, the Town has heretofore determined and does hereby confirm that
the premiums to be required under the Agreement are reasonable and
advantageous and to the public benefit of the citizens of such Town:
PASSED AND ADOPTED at a regular meeting of the Town Council of
the Town of Los Gatos, California, held on the 2nd day of June, 1986 by
the following votes.
AYES: COUNCIL MEMBERS Joanne Benjamin, Brent N. Ventura, and
Terrence J. Dail
HOES: COUNCIL MEMBERS
ABSTAIN: COUNCIL MEMBERS
ABSENT: COUNCIL MEMBERS Eric D. Carlson, and Thomas J. Ferrito
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
FAND"
CLERK OF HE TOWN OF LOS GA
FM • A 91, - el'awc5:4ZA
Dated as of June 2, 1986
among the
aim
as Isrovidees-
TABLE OF CONTENTS
Pale
ARTICLE 1.
DEFINITIONS AND EXHIBITS
1.1
Definitions and Rules of Construction
3
1.2
Findings
6
1.3
Attachments
6
ARTICLE 11.
REPRESENTATIONS, COVENANTS AND WARRANTIES
2.1
Representations, Covenants and Warranties of the
Providees
7
2.2
Representations, Covenants and Warranties of the
Provider
7
ARTICLE M.
DEPOSIT OF MONEYS; PURCHASE OF COVERAGE;
PAYMENT OF CLAIMS; PURCHASE OF COMMERCIAL
INSURANCE
3.1
Deposit of Initial Deposit Premiums
g
3.2
Purchase of Coverage
g
3.3
Payment of Settlements
9
3.4
Purchase of Commercial Insurance
9
3.5
Deposit of Premiums and Adjustments
10
3.6
Claims Payment Fund Held in Trust
10
3.7
Investments Authorized
11
3.6
Disposition of Investments
11
3.9
Bonding and Accounting
11
ARTICLE IV.
TERM OF AGREEMENT: PREMIUM PAYMENTS
4.1
Term of Agreement
11
4.2
Budget and Appropriation of Premium Payments
12
4.3
Obligation to Pay Premiums
12
4.4
Deposit Premium
13
4.5
Risk Premium Adjustments
14
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TABLE OF CONTENTS (Cont'd)
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Paae
ARTICLE V. RESERVES RELEASED FROM THE AGREEMENT
5.1
Receipt of Reserves Upon Termination of the Agreement
15
5.2
Receipt of a Providee's Equity Share Upon Withdrawal
or Expulsion
15
ARTICLE VI. ADMISSION TO, WITHDRAWAL FROM AND EXPULSION FROM
THE POOLED INSURANCE PROGRAM
6.1
Conditions for Providing Coverage to a New Providee
16
6.2
Conditions to Permitting Withdrawal of a Providee
from Coverage
16
6.3
Conditions to Permitting Expulsion of a Providee
from Coverage
17
ARTICLE VII. ABATEMENT
7.1
Abatement of Total Premium in the Event that the Provider
Fails to Pay Settlements
17
ARTICLE VIII. CLAIMS ADMINISTRATION AND RISK MANAGEMENT
8.1
Provider Services
1s
8.2
Providees' Duties
18
ARTICLE IX.
INDEMNIFICATION AND RELEASE OF PROVIDER
9A
Release and Indemnification Covenants
19
9.2
Disclaimer
19
ARTICLE X.
ASSIGNMENT AND AMENDMENT
10.1
Assigment by the Provider
19
10.2
Assignment by the Providees
19
10.3
Amendment
19
ARTICLE XI.
EVENTS OF DEFAULT AND REMEDIES
11.1
Events of Default Defined
20
11.2
Remedies on Default
21
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TABLE OF CONTENTS (Cont'd)
Pale
11.3
No Remedy Exclusive
21
11.4
Agreement to Pay Attorneys' Fees and Expenses
22
11.5
No Additional Waiver Implied by One Waiver
22
11.6
Corporation to Exercise Rights
22
ARTICLE X11. TERMINATION
12.1
Time of Termination
22
12.2
Continuing Obligations
22
12.3
Distribution of Providees' Equity
23
ARTICLE ME. MISCELLANEOUS
13.1
Notices
23
13.2
Binding Effect
23
13.3
Severability
23
13.4
Further Assurances and Corrective Instruments
24
13.5
Execution in Counterparts
24
13.6
Applicable Law
24
Appendix 1 Charter Providees
Exhibit A Memorandum of Liability Coverage
Exhibit B Form of Requisition
Exhibit C Formula for Calculating Administrative Premium
Exhibit D Formula for Calculating Risk Premium, Risk Premium
Adjustment and Supplemental Risk Premium
Exhibit E Initial Deposit Premiums
-ill®
THIS LIABILrrY RISK COVERAGE AGREEMENT, dated as of June 2, 1986, by and
among the ASSOCIATION OF BAY AREA GOVERNMENTS, a joint exercise of powers
agency duly organized and existing under the laws of the State of California, including,
without limitation, Section 6500, 21 se of the Government Code of the State of
California, as provider (the "Provider"), and the cities listed in Appendix I, each a municipal
corporation duly organized and existing under the Constitution and laws of said State, as
providee (each a "Provides" and collectively, the "Providees "}
WPPNESSETH:
Whereas, each Providee is authorized by Part 6 of Division 3.6 of Title 1,
Section 990, et seq., of the California Government Code (the "Act ") to insure itself against.
tort or inverse condemnation liability, to insure its employees against injury resulting from
an act or omission in the scope of his /her employment and to insure against the costs of
defending such claims;
Whereas, pursuant to Section 990.4 of the Act each Providee is authorized to
Provide insurance by self- insurance which may be funded by appropriations and to establish
or maintain reserves for such purposes;
Whereas, pursuant to Section 990.6 of the Act, the costs to each Providee of such
self-insurance is a proper charge against the Providee and therefore the governing board of
each Provides is authorized to make premium payments for such coverage in an amount such
governing board determines to be necessary to provide such coverage;
Whereas, pursuant to Section 990.8 of the Act, each Providee is empowered to
provide insurance coverage by a joint powers agreement with other local public entities, and
such pooling of self- insured claims and the risk sharing of losses is not considered insurance
and is not subject to regulation under the California Insurance Code,
Whereas, the Provider is a joint exercise of powers agency of which each Providee is
a member;
Whereas, the Provider is authorized to exercise necessary powers to implement the
purposes of the Provider as established by the Providees Executive Board;
the Provider has determined to assist each Providee to obtain self -
insurance for liability risks through this Agreement;
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Whereas, the governing board of each Providee has authorized the execution of this
Agreement for the purpose of providing liability insurance coverage on the terms set forth
herein and in the Memorandum of Liability Coverage attached hereto as Exhibit A (the
"Memorandum ") for the Providee for the benefit of the Providee's residents and taxpayers
and for the health and safety of the public who interact with the Providee;
Whereas, the Provider and the Providees have heretofore conclusively determined
following exhaustive investigation that excess general liability insurance coverage is not
available to the Providees from commercial insurers or from any other source at a price
which is reasonably related to the expected incurred losses of such Providees;
Whereas, the Provider and the Providees have further determined, based upon the
advice of independent professional insurance consultants familiar with the cyclical nature of
the reasonable availability of coverage in the commercial insurance market, that such
coverage is not anticipated to become available until late in 1986 at the earliest thereby in
the interim exposing the Providees to self - insuring from available revenues on a year -by-
year basis with the attendant risk of fiscal instability and ruinous burdens on its citizens in
the event of large liability claims recoveries;
Whereas, the Provider and the Providees have further determined that the periodic
unwillingness of the commercial insurance market to provide excess general liability
insurance coverage to local governments at reasonable rates or, in certain cases as at
present, at any rate mandates that the Providees seek not only an immediate solution but
also a long -term permanent solution to this problem which will in future years free them
from exposure to the vagaries of commercial insurance cycles;
Whereas, the Provider and the Providees, in consultation with independent
professional insurance consultants, have formulated a joint risk sharing insurance program to
be administered by the Provider to meet the general liability insurance coverage needs of
the Providees which will provide the following advantages, among others, to the Providees:
(a) mutual agreement by the Providees to pay annual premium amounts on
both a prospective and a retrospective basis calculated actuarily to spread and moderate the
cost of claims loss to each Providee,
(b) relief from the burden of paying premiums to commercial insurers at
levels reflecting the insurers' high costs of underwriting, administration and brokerage fees
since the Provider's costs will be limited to reasonable administrative costs,
(e) access to the commercial insurance or reinsurance market in future
years when commercial insurance or reinsurance is available at rates deemed favorable by
the Providees,
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(d) actuarially determined premium payments calculated to provide amounts
in each year necessary to fund a self - insurance reserve in amounts necessary to reserve
against the incurred losses of the Providees and to provide premium payments for
commercial insurance or reinsurance when available at reasonable rates, and
(e) investigate the feasibility of capitalizing a claims payment fund (the
"Claims Payment Fund") from the proceeds of the sale of Certificates of Participation for
the dual purpose of providing greater protection from large claims loss and facilitiating
eventual access to the commercial insurance or reinsurance market.
Whereas, the Providees have further determined that the Participation Premium to
be paid in each year by each Providee as provided for and upon the conditions set forth in
this Agreement will be payable only upon the condition of the receipt of the consideration
represented by the insurance protection and services to be provided in such year under this
Agreement, but in the event that such protection and services are so provided in any year
such Participation Premium will be a binding obligation of each Provides payable from the
income and revenue provided for such year,
Whereas, the Providees have further determined that the obtaining of the insurance
,protection and services provided for under this Agreement is essential in the preservation
and fostering of the health, safety and property rights of the citizens of each Providee and
the lack of availability of reasonable commercial general liability insurance to local
governments generally in the State of California and to the Providees in particular
constitutes a public emergency,
Whereas, it is a matter for the governing board of each Providee to determine the
amount of premiums which such Providee shall pay for proper insurance coverage,
Whereas, each Providee has heretofore determined and does hereby confirm that the
premiums to be required hereunder are reasonable and advantageous and to the public
benefit of the citizens of such Providee;
Now, Therefore, in consideration of the above premises anc3 of the mutual covenants
hereinafter contained and for other good and valuable consideration, the parties hereto
agree as follows:
1.1
V1
Definitions and Rules of Construction. Unless the context otherwise requires,
the capitalized terms used herein shall, for all purposes of this Agreement, have the
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meanings herein specified. Unless the context otherwise indicates, words importing the
singular number shall include the plural number and vice versa. The terms "hereby ",
"hereof", "hereto ", "herein ", "hereunder" and any similar terms, as used in this Agreement,
refer to this Agreement as a whole.
"Actuarial Consultant" means an actuary of national repute in the area of municipal
liability who is a fellow in good standing in the Casualty Actuarial Society and a member in
good standing in the American Academy of Actuaries.
"Administrative Premium" means a Providee's share of all administrative costs of
the Provider relating to the Coverage, as further set forth in Section 4.4(b) hereof and
Exhibit C.
"Agency Agreement" means the Agency Agreement, dated as of the date hereof, by
and between the Provider and the Corporation, and any duly authorized and executed
amendments thereto.
"Board of Directors" or "Board" means the Board of Directors of the Corporation.
"Claims Payment Fund" means the funds held in trust for the Providees by the
Provider for the payment of settlements against a Providee (which settlement is covered by
this Agreement).
"Corporation" means the ABAG PLAN Corporation, a non - profit public benefit
corporation and its successors and assigns.
"Coverage" means the insurance and other services provided pursuant to and in
accordance with and on the terms set forth in this Agreement and in the Memorandum
attached as Exhibit A hereto, including, but not limited to (i) rights to payment of Claims
from funds on deposit in the Claims Payment Fund under the terms of this Agreement, and
(ii) the benefits of the special insurance services offered by the Provider, including risk
management, claims discovery services, legal defense of claims, claims settlement services
and administrative services.
"Coverage Period" means a period from July 1 to June 30 for which a Providee has
paid Deposit Premium, except for Providees electing a commencement of Coverage between
June 1 and June 30, 1986. For those Providees so electing, their first Coverage Period only
shall be such commencement date to June 30, 1987.
"Covered Claim" means a claim against a Providee for which the Provider is
obligated herein to provide claims management services, legal defense, or to pay a
Settlement, or portion thereof.
"Deposit Premium" means Admininistrative Premium, Risk Premium and
Supplemental Risk Premium payable in any Coverage Period.
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"Excess Insurance" means insurance purchased on behalf of the Provider to protect
the Claims Payment Fund against catastrophes or an unusual frequency of losses during a
single year.
"Initial Deposit Premium" means the Deposit Premium payable for the Coverage
Period ending June 30, 1987.
"Maximum Total Premium" means a sum equal to two hundred percent (200 %) of the
Deposit Premium.
"Operations Funds" means the funds held by the Corporation for the payment of the
expenses of the day - today operation and administration of the insurance program created
by this Agreement and the costs of providing insurance services to the Providees.
"Permitted Investments" means investments authorized under California
Government Code Section 53601 as it may be amended from time to time.
"Risk Premium " means, with respect to each Providee, an amount equal to the
estimated incurred losses of such Providee for a Coverage Period, as set forth in
Section 4.4(c) and (d) of this Agreement and as determined according to the formula set
forth in Exhibit D to this Agreement.
"Risk Premium Adjustment" means, with respect to each Providee, an amount paid
by such Providee or refunded to such Providee, as an adjustment based on actual loss
experience of such Providee and all Providees of the incurred loss estimate made in the
payment of Risk Premium for the preceding Coverage Period, and as an adjustment, based
on events relating to Claims in the preceding Coverage Period, of incurred loss reserves
made in prior Coverage Periods, as set forth in Section 4.5 of this Agreement and as
determined according to the formula set forth in Exhibit D to this Agreement.
"Settlement" means a Claim against a Providee which has been settled by the
Provider or adjudicated without further right of appeal.
"Supplemental Risk Premium" means, with respect to each Providee, a price
increase in Deposit Premium assessed against such Providee, based on higher than expected
incurred loss experience of such Providee and all Providees in prior Coverage Periods, as set
forth in Section 4.4(e) of this Agreement and as determined according to the formula set
forth in Exhibit D to this Agreement.
"Total Premium" or "Premium" means Deposit Premium and Risk Premium
Adjustment payable in any Coverage Period.
"Unencumbered Reserves" means the amount in the Claims Payment Fund in excess
of the total amount that has been designated by the Provider as reserved for the payment of
incurred losses.
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1.2 Findings. Each Providee hereby finds and determines that:
(a) Liability insurance in the amount and scope described in the
Memorandum is not commercially available to such Providee in the private marketplace at a
price which is reasonably related to the expected loss exposure of such Providee.
(b) The Deposit Premium shall be paid by each Providee in consideration of
the Coverage offered hereby and by the :Memorandum and the sharing of the risk of liability
for claims associated with the pooled self- insurance program during each Coverage Period.
The parties hereto have agreed and determined that such Deposit Premium payments
represent the fair market value of the Coverage. In making such determination,
consideration has been given to the initial costk of establishing the pooled insurance
program, the unavailability of commercial liability insurance to such Providee and to other
Providees,. the anticipated future costs of commercial liability insurance should such
insurance become available in the future, the obligations of Providees under this agreement
(including the agreement to share the risk of costs imposed by liability claims), the
obligation of the Provider to provide insurance services (including the obligation to provide
risk management and claims management services), and the other benefits therefrom which
will accrue to such Providee and the general public.
(c) Such Providee receives benefit from the sharing of risk of costs imposed
by liability claims under the terms of this Agreement during each Coverage Period. The
assessment of Risk Premium, Risk Premium Adjustment and Supplemental Risk Premium is
the means by which such risk - sharing is implemented. The procedure established for the
calculation, adjustment and assessment of Risk Premium, Risk Premium Adjustment and
Supplemental Risk Premium is fair, just and reasonable as a means of such risk - sharing.
1.3 Attachments. The following Appendices and Exhibits are attached to, and by
reference made a part of, this Agreement:
Appendix 1: Charter Providees
Exhibit A: Memorandum of Liability Coverage.
Exhibit B: Form of Requisition.
Exhibit C: Formula for Calculating Administrative Premium.
Exhibit D: Formula for Calculating Risk Premium, Risk Premium
Adjustment and Supplemental Risk Premium.
Exhibit E: Initial Deposit Premiums
ARTICLE H
REPRESENTATIONS, COVENAN73 AND WARRANTIES
2.1 Representations, Covenants and Warranties of the Providees. Each Providee
represents, covenants and warrants to the Provider as follows.
(a) Due Organization and Existence. Such Providee is a municipal
corporation and political subdivision of the State, duly organized and existing under the
Constitution and laws of the State.
(b) Maintenance of Existence. Such Providee shall maintain its existence as
a municipal corporation during the Term of this Agreement.
(c) Authorization; Enforceability. The Constitution and laws of the State
authorize such Providee to enter into this Agreement and to enter into the transactions
contemplated by and to carry out its obligations under the Agreement, and the Providee has
duly authorized and executed the Agreement. This Agreement constitutes the legal, valid,
binding and enforceable obligations of such Providee in accordance with their respective
terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles affecting the rights of creditors generally
and except as to the limitations on remedies against public agencies generally.
(d) No Violations. Neither the execution and delivery of this Agreement,
nor the fulfillment of or compliance with the terms and conditions hereof or thereof, nor the
consummation of the transactions contemplated hereby or thereby, conflicts with or results
in a breach of the terms, conditions or provisions of any restriction or any agreement or
instrument to which such Providee is now a party or by which such Providee is bound, or
constitutes a default under any of the foregoing.
(e) No Comparable Insurance. Such Providee covenants that it will not
purchase insurance which overlaps with the insurance afforded by the Coverage from any
other provider for any Coverage Period during which the Provider makes available to such
Providee Coverage consistent with the terms of this Agreement and Exhibit A hereto;
provided that, with the consent of the Provider, which consent shall not be unreasonably
withheld, such Providee may purchase insurance from another provider which overlaps with
the insurance afforded by the Coverage, if such Providee establishes to the reasonable ;
satisfaction of the Provider that such Providee is unable to obtain insurance at a reasonable
price which is not afforded by the Coverage other than by incidentally purchasing such
overlapping insurance.
2.2 Representations. Covenants and Warranties of the Provider. The Provider
represents, covenants and warrants to each Providee as follows:
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(a) Due Organization and Existence- Enforceability. The Provider is a joint
exercise of powers authority duly organized, existing and in good standing under and by
virtue of the laws of the State, has the power to enter into this Agreement, and the Agency
Agreement; is possessed of full power to provide self-insurance to consenting public entities;
and has duly authorized the execution and delivery of all of the aforesaid agreements. This
Agreement, and the Agency Agreement constitute the legal, valid, binding and enforceable
obligations of the Provider in accordance with their respective terms, except to the extent
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles affecting the rights of creditors generally.
(b)
No Encumbrances. The Provider will not pledge its rights under this
Agreement except as provided under the terms of this Agreement.
(c) No Violations. Neither the execution and delivery of this Agreement, or
the Agency Agreement, nor the fulfillment of or compliance with the terms and conditions
hereof or thereof, nor the consummation of the transactions contemplated hereby or
thereby, conflicts with or results in a breach of the terms, conditions or provisions of the
Bylaws of the Provider or any restriction or any agreement or instrument to which the
Provider is now a party or by which the Provider is bound, or constitutes a default under any
of the foregoing.
V 1r
•; •� • a' r • ti
PURCHASE •� COMMERCIAL INSURANCE
3.1 Deposit of Initial Deposit Premiums. On the Closing Date, the Provider agrees
to deposit the proceeds of the Initial Deposit Premiums from all Providees with the
Corporation as follows. (1) an amount equal to the sum of all amounts listed in Exhibit E
and opposite a Providee listed in Appendix I shall be deposited on behalf of the Providees in
the Claims Payment Fund, (2) an amount equal to the sum of all amounts listed in Exhibit E
and opposite a Providee listed in Appendix I shall be deposited in the Operations Funds.
3.2 Purchase of Coverage. The Provider hereby sells the Coverage to each
Providee, and each Providee hereby agrees to purchase the Coverage from the Provider,
upon the terms and conditions set forth in this Agreement and the Memorandum attached
hereto as Exhibit A. The Provider will provide for the payment of Claims and the
implementation of the Coverage. The Provider will use its best efforts to maintain reserves
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for incurred losses in accordance with prudent insurance practice; provided, however, that
failure to maintain such reserves shall in no event constitute an event of default hereunder.
3.3 Payment of Settlements. Settlements shall be paid upon the submission to the
Provider of a Requisition executed by the Corporation, or the Corporation and the Providee
requesting such payment in the form attached as Exhibit B to this Agreement from moneys
in the Claims Payment Fund held by the Provider.
In the event that there are insufficient moneys in the Claims Payment Fund to
pay the Settlements, neither the Corporation, the Provider nor the Providees shall have any
liability for the payment of such Settlements (except from any moneys thereafter deposited
in the aforementioned funds).
3.4 Purchase of Commercial Insurance. The Provider may provide Coverage, or a
portion of Coverage, to the Providees, or any portion of the Providees, by purchase of
liability insurance from a commercial insurer or reinsures, if the Provider determines, in its
sole discretion, that such commercial insurance or reinsurance provides insurance coverage
at least equivalent to the insurance coverage provided hereby by risk sharing among
Providees. The Provider may use amounts on deposit in the Claims Payment Fund to
purchase such commercial insurance or reinsurance. The Provider shall have no obligation
to pay Settlements which are covered by such commercial insurance or reinsurance from
funds in the Claim Payment Fund.
The Provider may purchase excess insurance to protect the Claims Payment
Fund from catastrophes and unusually frequent settlements in a Coverage Period.
In a Coverage Period for which the Provider has purchased commercial
insurance or reinsurance, or excess insurance, each Providee shall be obligated to pay a
proportion of the costs of such insurance, in addition to Administrative Premium and
Supplemental Risk Premium. In the case of excess insurance, or commercial liability
insurance or reinsurance which replaces a portion of the Coverage, each Providee shall be
obligated to pay a portion of the premium for such insurance or reinsurance equal to the
ratio of its Risk Premium to all Risk Premiums assessed during the Coverage Period for
which the insurance or reinsurance was purchased. In the case of commercial liability
insurance or reinsurance which replaces the Coverage in toto, each Providee shall be
obligated to pay a portion of the premium for such insurance equal to the ratio of its Risk
Premium to all Risk Premiums which would have been assessed against each Providee and all
Providees, respectively, had the Provider not purchased the commercial insurance or
reinsurance.
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A Providee in subsequent Coverage Periods shall be obligated to pay Risk
Premium Adjustments with respect to a Coverage Period for which the Provider has
purchased commercial insurance or reinsurance on behalf of such Providee only under any
one of the following circumstances: (a) if such commercial insurance or reinsurance
provides only a portion of the Coverage of a Providee, such Providee shall be obligated to
pay Risk Premium Adjustments in proportion to the amount of Risk Premium paid in such
Coverage Period as compared to the amount of Risk Premium that such Providee would have
paid in such Coverage Period had the Provider not purchased commercial insurance or
reinsurance; (b) if such commercial insurance or reinsurance provides only a portion of the
Coverage in a Coverage Period, and a retroactive premium adjustment is imposed for such
insurance or reinsurance for said Coverage Period, each Providee shall be obligated to pay a
portion of such adjustment equal to the ratio of its Risk Premium Adjustment for such
Coverage Period to all Risk Premium Adjustments assessed for such Coverage Period; and
(c) if such commercial insurance or reinsurance provides all of the Coverage, each Providee
shall be obligated to pay a portion of any retroactive premium adjustment equal to the ratio
of the Risk Premium Adjustment it would have been assessed in such Coverage Period had
the Providee not purchased the insurance or reinsurance. to all Risk Premium Adjustment
which would have been assessed for such Coverage Period.
3.5 Deposit of Premiums and Adjustments. Upon receipt of the Deposit Premium
from each Providee, the Provider shall deposit, or cause to be deposited, the following
moneys in the following order until the Deposit Premium is exhausted: (a) subject to the
allocation set forth in the second paragraph of this section, an amount equal to the Risk
Premium and Supplemental Risk Premium, if any, into the Claims Payment Fund; and (b) an
amount equal to the Administrative Premium into the Operations Fund. Upon receipt of
Risk Premium Adjustments, the Provider shall deposit, or cause to be deposited, such
amounts to be deposited into the Claims Payment Fund.
In the event the Provider has purchased commercial insurance or reinsurance,
or excess insurance, the cost of such insurance, or retroactive premium adjustment, if any,
paid by each Providee as determined under Section 3.4 hereof shall be deposited in the
Operations Fund.
3.6 Claims Payment Fund Held in Trust. The moneys and investments held by the
Provider in the Claims Payment Fund under this Agreement are irrevocably held in trust for
the benefit of the Providees and for the purposes herein specified, and such moneys, and any
income or interest earned thereon, shall be expended only as provided in this Agreement,
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and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of
either the Provider, the Corporation or the Providees, or any of them.
3.7 Investments Authorized. Moneys held by the Provider hereunder shall be
invested and reinvested on maturity by the Provider, to the maximum extent practicable
having the highest yield reasonably obtainable consistent with the conduct of prudent
persons in the conduct of their affairs, in Permitted Investments. The Provider may
purchase or sell to itself or any affiliate, as principal or agent, investments authorized by
this section. Such investments and reinvestments shall be made giving full consideration for
the time at which funds are required to be available based upon information supplied by the
Providee. The Provider may act as purchaser or agent in the making or disposing of any
investment.
3.8 Disposition of Investments. Any income, profit or loss on the investment of
moneys held by the Provider in the Claims Payment. Fund shall be held in and credited to the
Claims Payment Fund.
3.9 Bonding and Accounting. The Provider shall furnish to the Providees an
accounting of all investments made by the Provider as required under Cal. Gov't. C.
Section 53687. Provider shall obtain a fidelity bond in an amount equal to the Claims
Payment Fund or at such lesser amounts as may be approved by two-thirds of the Providees.
The Provider shall not be responsible or liable for any loss suffered in connection with any
investment of funds made by it in accordance with this section.
TERM OF AGREEMENT: PREMiIIM PAYMENTS
4.1 Term of Agreement. The Term of this Agreement shall commence on the date
of its execution by the Provider and the fifth (5th) Providee and terminate as provided
herein.
The obligations of any Providee to pay Deposit Premium under this Agreement
will terminate upon the earliest of any of the following events:
(a) withdrawal of such Providee from the Coverage pursuant to Section 6.2
hereof;
(b) expulsion of such Providee from Coverage pursuant to Section 6.3
hereof;
provided, however, that no such expulsion or withdrawal shall extinguish (1) the obligations
of such Providee to pay Risk Premium Adjustments with respect to Coverage Periods of
such Providee prior to such withdrawal or expulsion or (ii) the right to receive the benefits
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of such Coverage with respect to Coverage Periods of such Providee prior to such
withdrawal or expulsion.
4.2 Budget and Appropriation of Premium Payments. Each Providee covenants to
take such action as may be necessary to include Maximum Total Premium payable hereunder
in its annual budget and to make the necessary annual appropriations for all such maximum
Total Premium payments. In order to assure that adequate legally available funds are
available to pay Deposit Premium and Risk Premium Adjustments, each Providee agrees to
appropriate in its initial budget at the commencement of each Coverage Period an amount
equal to the Maximum Total Premium due and owing in such Coverage Period. During the
Term of this Agreement, each Providee will furnish to the Corporation copies of each
proposed and final budget of such Providee within twenty (20) days after the filing or
adoption thereof. The covenants on the part of each Providee herein contained shall be
deemed to be and shall be construed to be duties imposed by law and it shall be the duty of
each and every public official of each Providee to take such action and do such things as are
required by law in the performance of the official duty of such officials to enable each
Providee to carry out and perform the covenants and agreements in this Agreement agreed
to be carried out and performed by such Providee.
4.3 Obligation to Pay Premiums.
(a) W
No No i Subject to the provisions of Article VII hereof,
notwithstanding any dispute between the Provider and a Providee, including a dispute as to
the scope or nature of Coverage provided by the Provider or the availability of amounts in
the Claims Payment Fund to pay Claims made against any Providee, or for any other reason
(other than the termination of the obligation to pay Deposit Premium pursuant to
Section 4.1 hereof) the Providee shall make all Premium payments when due and shall not
withhold any Premium payments pending the final resolution of such dispute.
(b) Rate on Overdue Payments. In the event a Providee fails to make any of
the payments required in this Article, the payment in default shall continue as an obligation
of the Providee until the amount in default shall have been fully paid, and, in addition to any
other remedies available hereunder with respect to such default, the Providee agrees to pay
the same with interest thereon, at the highest rate permitted under California Civil Code
Section 3289, as it may be amended from time to time, from the date such amount was
originally payable.
(c) Abatement. There shall be no abatement of Premium payments except
as provided in Article VII hereof.
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(d) Assignments. Each Providee understands and agrees that pursuant to the
Agency Agreement the Provider has assigned its right to receive and collect Administrative
Premium, Risk Premium, Supplemental Risk Premium and Risk Premium Adjustments to the
Corporation and each Providee assents to such assignment. The Provider hereby directs
each Provides, and each Provides hereby agrees to pay to the .Corporation at MetroCenter,
101 - 6th Street, Oakland, California, or to the Corporation at such other place as the
Corporation shall direct in writing, all such payments payable by the Providee pursuant to
this paragraph.
4.4 Deposit Premium.
(a) Deposit Premium. The Deposit Premium payments due in any Coverage
Period shall be made in consideration for Coverage for such Coverage Period. Deposit
Premium is the sum of Administrative Premium, Risk Premium and Supplemental Risk
Premium. The entire amount of Deposit Premium is due on the Premium Payment Date
which shall be the commencement date of the Providee's initial Coverage Period and July 1
for each subsequent Coverage Period, provided that the Deposit Premium for a newly
admitted Providee shall be due on the first day Coverage is available to such Providee.
(b) Administrative Premium. Each Providee shall pay to the Provider as
Administrative Premium a portion of the Total Administrative Premium of the Provider
relating to the Coverage, including without limitation all taxes or fees of any sort
whatsoever payable by the Provider as a result of its undertaking of the transactions
contemplated herein, fees of auditors, accountants, insurance brokers, or attorneys, and all
other necessary administrative costs of the Provider or charges required to be paid by it in
order to maintain its existence or to comply with the terms of this Agreement or to defend
the Provider and its members against any claims or sums in connection herewith. Each
Providee's Administrative Premium shall be determined as set forth in Eahftt C.
(c) Total Risk Premium. Each Providee shall pay the Provider as Risk
Premium an amount equal to such Providee's estimated loss incurrence for the Covered
Period.
Risk Premium shall be calculated in the following manner. With respect
to each Coverage Period, the Provider shall retain an Actuarial Consultant to determine the
total amount of Risk Premium ("Total Risk Premium ") required to be deposited into the
Claims Payment Fund as an estimate, at a confidence level not less than the confidence
level of loss incurrence for the initial Coverage Period, provided that if the Actuarial
Consultant cannot render a determination of a Total Risk Premium to achieve said
confidence level, the Total Risk Premium shall be determined, as an estimate, at the highest
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confidence level at which the Actuarial Consultant may render a determination of Total
Risk Premium.
(d) Risk Premium Allocation. With respect to the Coverage Period
commencing July 1, 1990 and all subsequent Coverage Periods, the Risk Premium payable by
each Providee shall be a percentage of Total Risk Premium based upon the determination of
an Actuarial Consultant based on incurred losses and other sound actuarial criteria.
Commencing January 1, 1987, the determination of Total Risk Premium
and Risk Premium shall be made no later than the January 1 preceding such Coverage
Period.
The calculation of such Risk Premium shall be final and conclusive of the
amounts due and owing hereunder. Risk Premium payments shall be deposited in the Claims
Payment Fund.
(e) Supplemental Risk Premium. Each Providee shall pay the Provider as
Supplemental Risk Premium a price increase in Deposit Premium based on higher than
expected loss experience of all Providees in prior Coverage Periods, as determined
according to the formula set forth in Exhibit D to this Agreement. Supplemental Risk
.Premium will be assessed following each Coverage .Period in which total Risk Premium
Adjustments are insufficient to fully restore the Claims Payment Fund for the making of
reserves and adjustments to reserves made for incurred losses in the prior Coverage Period,
according to the formula set forth in Exhibit D hereto. The parties hereto agree that such
repricing of Deposit Premium by means of assessment of Supplemental Risk Premium is fair,
just and reasonable. The calculation' of Supplemental Risk Premium shall be final and
conclusive of the amounts due and owing hereunder. Supplemental Risk Premium payments
shall be deposited in the Claims Payment Fund.
4.5 Risk Premium Adjustments. No later than the January 1 next following each
Coverage Period, commencing January 1, 1988, the Provider shall determine a Risk
Premium Adjustment for each Provides, which may be an assessment of an additional
premium or a refund. Such Risk Premium Adjustment shall be based on the actual loss
experience of such Providee and all Providees in such Coverage Period and shall be
calculated according to the formula set forth in Exhibit D hereto. The Provider will give
prompt notice to each Providee of Risk Premium Adjustments. Risk Premium Adjustments
shall be payable by each Providee no later than the February 1 next following the date of
determination of Risk Premium Adjustments, commencing February 1, 1988. Risk Premium
Adjustments shall be deposited into or paid from the Claims Payment Fund.
-14-
For each Providee's first three (3) Coverage Periods, no refunds shall be paid
to such Providee for Risk Premium Adjustment based on incurred losses in such Coverage
Periods. All amounts which would be refunded but for this paragraph shall be retained in the
Claims Payment Fund and the Providees otherwise entitled to such refunds shall have no
claim or right to such amounts.
The obligation to pay Risk Premium Adjustments shall in no event be
discharged by expulsion or withdrawal from Coverage, but may be abated pursuant to
Article VII hereof. Risk Premium Adjustments with respect to Providees which have been
expelled from or have withdrawn from Coverage will be made only on the basis of paid
Settlements and claims management and legal defense costs incurred in connection with
such Settlement.
5.1 Receipt of Reserves Upon Termination of the Agreement. Ali funds
transferred by the Corporation to the Provider upon termination of this Agreement pursuant
to Article XI of this Agreement will be held by the Provideres a claims payment fund to
apply to the payment of Settlements pursuant to the terms of this Agreement. Upon
termination of all obligations to pay Risk Premium Adjustments and termination of this
Agreement, the Provider will distribute all claims reserves held by it to the Providees which
purchased Coverage in the last Coverage Period according to the ratio of total Premiums
paid by each Providee to total Premium paid by all Providees during the entire term of this
Agreement.
5.2 Receipt of a Providee's Equity Share Upon Withdrawal or Expulsion. In
connection with permitting withdrawal of a Providee from Coverage pursuant to Section 6.2
hereof or expelling a Providee pursuant to Section 6.3 hereof, the Provider shall determine
the ratio of all Premium paid by such Providee to all Premium paid by all Providees during
the period such Providee purchased coverage as of the date of withdrawal or expulsion. The
Provider shall submit a Requisition pursuant to Section 12.3 of this Agreement for the
amount of such portion in excess of all other obligations due from such Providee under the
terms of this Agreement (an "Equity Share "). The Provider will hold the Equity Share of
each such Providee in a segregated account for the benefit of such Providee, subject only to
assessment for Risk Premium Adjustments assessed against such Providee. The Provider
will transfer to such Providee its Equity Share, less assessments for Risk Premium
-15®
Adjustments, on the earliest practicable date when such Provides is no longer subject to
assessment for Risk Premium Adjustments.
6.1 Conditions for Providine Coverage to a New Providee. The Provider may
provide Coverage to a new Providee which is not listed in Appendix I of this Agreement,
subject to the following conditions:
(a) such new Providee shall be a municipal corporation; in the State;
(b) not later than thirty (30) days preceding the date the Provider first
provides Coverage to such Providee, such new Providee shall have duly executed an
amendment to this Agreement pursuant to which it shall become subject to all of the terms
of this Agreement as a Providee;
(c) at least two - thirds of the Providees which have the right to obtain
Coverage shall have consented to the amendment to this Agreement permitting such new
Providee to become a Providee;
(d) the Provider shall have obtained an opinion from an Actuarial Consultant
stating that, following the admission of such new Providee, such admission will not reduce
the actuarial soundness of the pooled insurance program.
6.2 Conditions to Permitting Withdrawal of a Providee from Coverage. A
Providee may withdraw from Coverage under this Agreement, provided that the following
conditions are satisfied:
(a) such Providee shall not be in default of any of its obligations to pay
Premium hereunder;
(b) not later than the February 1 immediately preceding the effective date
of such withdrawal, such Providee shall have provided written notice to the Provider of its
intent to withdraw;
(c) such Providee shall have agreed by amendment to this Agreement to pay
an amount equal to the Supplemental Risk Premium, if any, that would be assessed against
such withdrawing Providee in subsequent Coverage Periods, as such Supplemental Risk
Premium would have become due and payable, were such withdrawing Provides to continue
to participate in Coverage;
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(d) such withdrawal from Coverage shall be effective on the first day of a
Coverage Period;
(e) the Provider shall have obtained a certificate from an Actuarial
Consultant that such withdrawal will not reduce the actuarial soundness of the pooled
insurance program.
In no event shall withdrawal from Coverage release a Providee of its
obligation to pay Risk Premium Adjustments with respect to prior Coverage Periods. Notice
to withdraw shall be revocable only at the option of the Provider.
6.3 Conditions to Permitting Expulsion of a Providee from Coverage. The
Provider may expel a Providee from Coverage subject to the following conditions:
(a) not later than the January 1 immediately preceding the effective date of
such expulsion, at least two - thirds of all remaining Provideees which are not in default shall
have consented to such expulsion by written consent filed with the Corporation and written
notice of such expulsion shall have been given to such Providee to be expelled of such
action;
(b) at least two-thirds of the remaining Providees which are not in default
shall have agreed by amendment to this Agreement to pay an amount equal to the
Supplemental Risk Premium, if any, that would be assessed against the expelled Providee, as
such Supplemental Risk premium would have become due and payable, were the expelled
Providee to continue to participate in Coverage;
(c) such expulsion shall be effective on the first day of a Coverage Period;
(d) the Provider shall have obtained a certificate of an Actuarial Consultant
that such expulsion will not reduce the actuarial soundness of the pooled insurance program.
In no event shall expulsion from Coverage release a Providee of its obligation
to pay Risk Premium Adjustments with respect to prior Coverage Periods.
ARTICLE VII
ABATEMENT
7.1 Abatement of Total Premium in the Event that the Provider Fails "to Pa
Settlements. In the event that the Provider fails to pay a Settlement of a Providee pursuant
to the terms of this Agreement, other than by reason of good faith dispute as to the scope of
Coverage, the obligations of all Providees to pay any Deposit Premium hereunder shall be
abated in full. The obligation of a Providee to pay Deposit Premium shall be discharged only
in the event of withdrawal of such Providee from Coverage pursuant to Section 6.2 hereof,
expulsion of such Providee pursuant to Section 6.3 hereof, and (with respect to the
-17-
obligation to pay Deposit Premium in a Coverage Period for which Coverage has been
cancelled) cancellation of Coverage of such Providee pursuant to Section }8:2(e311.3
hereof.
�• n
„ti • ,11 ti • ) ; �•
8.1 Provider Services. The Provider shall provide, or cause to be provided, the
following claims administration and risk management services:
(a) Mandatory procedures for each Providee to submit all claims against it
to the corporation.
(b) Adopt a claims management program for disposing of all claims
submitted which shall include criteria and procedures for disposal of claims outside the
Coverage, claims within a Provider'ss deductible and claims within the Coverage. The claims
management program shall comply with all applicable terms of the Agreement.
(e) Establish a mandatory risk management program for all Providees.
8.2 Providees' Duties. Providees shall comply with the claims administration and
risk management program provided under this Agreement as follows:
(a) The City Council of each Providee shall appoint a director and one.
alternative to the Board of Directors.
(b) Each Providee shall appoint an employee of the Providee to be
responsible for the risk management function within that Providee, and to serve as a liaison
between the Providee and the Provider as to risk management.
(c) Each Providee shall maintain an active safety officer and/or committee,
and shall consider all recommendations of the Provider concerning unsafe practices.
(d) Each Providee shall maintain its own set of records, as a loss log, in all
categories of loss to ensure accuracy of the Provider's loss reporting system.
(e) Each Providee shall provide the Provider with such other information or
assistance as may be necessary for the Provider to carry out the pooled self insurance
program under this Agreement.
(f) Each Providee shall in any and all ways cooperate with and assist the
Provider, any insurer of the Provider, and the Corporation, in all matters relating to this
Agreement and covered losses, and will comply with all bylaws, rules and regulations
adopted by the Board of Directors.
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ARTICLE I%
9.1 Release and Indemnification Covenants. Each Providee shall and hereby
agrees to indemnify and save the Provider, the Corporation and all other Providees harmless
from and against all claims, losses and damages, including legal fees and expenses, arising
out of (i) any breach or default on the part of such Providee in the performance of any of its
obligations under this Agreement or (ii) any act or negligence of such Providee or of any of
its agents, contractors, servants, employees or licensees with respect to the Coverage. No
indemnification is made under this Section or elsewhere..in this Agreement for claims, losses
or damages, including legal fees and expenses arising out o(the willful misconduct,
negligence, or breach of duty under this Agreement by the Provider or its officers, agents,
employees, successors or assigns.
COVERAGE FOR THE NEEDS OF THE PROVIDERS.
ARTICLE %
10.1 AssiMnment by the Provider. Certain of the Provider's rights under this
Agreement, including the right to receive and enforce payment of the Administrative
Premium, Risk Premium, Supplemental Risk Premium and Risk Premium Adjustments to be
paid by the Providees under this Agreement, have been assigned to the Corporation, subject
to certain exceptions, pursuant to the Agency Agreement, to which assignment each
Providee hereby assents. Except as provided herein, and in the Agency Agreement, the
Provider will not assign this Agreement, or its duties and obligations hereunder to any other
person, firm or corporation so as to impair or violate the representations, covenants and
warranties contained in Section 2.2; provided, however, that nothing in this Section shall
limit the right of the Provider to purchase commercial insurance or reinsurance on behalf of
the Providees pursuant to Section 3.5 hereof, or to purchase commercial excess insurance.
10.2 Assignment by the Providees. This Agreement may not be assigned by any
Providee.
10.3 Amendment. Except as provided in Article VI hereof, this Agreement may
only be amended by a written instrument duly authorized and executed by the Provider and
the Providees as follows.
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(a) This Agreement shall be amended in its entirety by a Liability Risk
Coverage Agreement duly authorized and executed by the Provider and three - fourths of the
Providees in implementing a pooled self - insurance program funded by Certificates of
Participation or other instruments of indebtedness.
(b) The Providees and the Provider shall have the right to amend the scope
of the Coverage set forth in Exhibit A hereto, by unanimous consent and through filing with
the Corporation an amendment to Exhibit A together with an Opinion of Counsel to each
Providee and the Provider to the effect that such amendment does not affect the validity or
enforceability of this Agreement.
All costs and expenses incurred in connection with any amendment to
this Agreement shall be borne pro rata by the Providees.
11.1 Events of Default Defined. The following shall be "events of default" under
this Agreement and the terms "events of default" and "default" shall mean, whenever they
are used in this Agreement with respect to a Providee, any one or more of the following
events:
W failure by such Providee to observe and perform any covenant, condition
or agreement on its part to be observed or performed herein or otherwise with respect
hereto, other than as referred to in clause (ii) of this Section, for a period of thirty (30) days
after written notice specifying such faiure and requesting that it be remedied has been given
to such Providee by the Provider or the Corporation; provided, however, if the failure stated
in the notice cannot be corrected within the applicable period, the Provider, or the
Corporation, as the case may be, shall not unreasonably withhold their consent to an
extension of such time if corrective action is instituted by the Providee within the
applicable period and diligently pursued until the default is corrected; or
(ii) the filing by such Providee of a case in bankruptcy, or the subjection of
any right or interest of such Providee under this Agreement to any right or interest of such
Providee under this agreement to any execution, garnishment or attachment, or adjudication
of such Providee as a bankrupt, or assignment by such Providee for the benefit of creditors,
or the entry by such Providee into an agreement of with
creditors, or the approval by a court of competent jurisdiction of a petition applicable to the
Providee in any proceedings instituted under the provisions of the federal bankruptcy code,
as amended, or under any similar act which may hereafter be enacted.,
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11.2 Remedies on Default. Whenever any event of default referred to in
Section 11.1 hereof shall have happened and be continuing, it shall be lawful for the Provider
to exercise any and all remedies available pursuant to law or granted pursuant to this
Agreement. Upon the occurrence of any event of default with respect to the obligation to
pay Premiums, the Provider may cancel all Coverage rights of the defaulting Providee. In
the event that the Provider elects to cancel Coverage of a defaulting Providee, the Providee
nonetheless agrees to pay to the Provider all costs, losses and damages howsoever arising or
occurring as a result of such default and cancellation including, without limitation, interest
on any delinquent Premiums at the rate set forth under California Civil Code Section 3289,
as it may be amended from time to time; administrative and legal costs incurred in noticing
the default and effecting the cancellation and fees of an Actuarial Consultant incurred to
determine the Provider's ability to cancel and/or to reassess Premium. No such cancellation
shall be or become effective by operation of law or otherwise, unless and until the Provider
shall have lien written notice of such cancellation to the Providee; no such cancellation
shall be effected by operation of law or acts of the parties hereto, except in the manner
herein - expressly provided; and no such cancellation shall terminate the obligation of the
defaulting Providee to pay all Premium Payments for Coverage Periods prior to such
cancellation or to pay Premium for subsequent Coverage Periods for which Coverage is
made available to such defaulting Providee.
In the event that the Provider elects to expel any defaulting Providee, subject to the
conditions described and in the manner provided in Section 6.3 hereof, the Providee
nevertheless agrees to pay the Provider all costs, losses or damages arising or occurring as a
result of such default and termination including, without limitation, interest on any
delinquent Premium at the rate set forth in California Civil Code Section 3289, as it may be
amended from time to time; administrative and legal costs incurred in noticing the default
and effecting the expulsion; and the fees of an Actuarial Consultant incurred to determine
the Provider's ability to expel the Providee and /or to reassess Premium. No such expulsion
shall be or become effective by operation of law or otherwise, unless and until the Provider
shall have given written notice of such expulsion to the Providee; no such expulsion shall be
effected either by operation of law or acts of the parties hereto, except only in the manner
herein expressly provided; and no such expulsion shall terminate the obligation of the
expelled Providee to pay Risk Premium Adjustments relating to Coverage Periods prior to
such expulsion.
11.3 No Remedy Exclusive. No remedy conferred herein upon or reserved to the
Provider is intended to be exclusive and every such remedy shall be cumulative and shall be
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in addition to every other remedy given under this Agreement or now or hereafter existing
at law or in equity. No delay or omission to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may be
deemed expedient. In order to entitle the Provider to exercise any remedy reserved to it in
this Article it shall not be necessary to give any notice, other than such notice as may be
required in this Article or by law.
11.4 Agreement to Pay Attorneys' Fees and Expenses. In the event either party to
this Agreement should default under any of the provisions hereof and the nondefaulting
party should employ attorneys or incur other expenses for the collection of moneys or the
enforcement of performance or observance of any obligation or agreement on the part of
the defaulting party contained herein, the defaulting party agrees that it will on demand
therefor pay to the nondefaulting party the reasonable fees of such attorneys and such other
expenses so incurred by the nondefaulting party.
11.5 No Additional Waiver Implied by One Waiver. In the event any agreement
contained in this Agreement should be 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.
11.6 Corporation to Exercise Rights. Certain rights and remedies given to the
Provider under this Article XI have been assigned by the Provider to the Corporation under
the Agency Agreement, to which assignments the Providees hereby consent. Such rights and
remedies shall be exercised by the Corporation as provided herein.
ARTICLE XII
TERMINATION
12.1 Time of Termination. Coverage for all Providees may be terminated effective
July 1 of any year upon the written consent of three - fourths of the Providees if the
effective termination date and such written consents are delivered to the Provider and the
Corporation at least sixty (60) days prior to the effective termination date.
12.2 Continuing Obligations. After the termination date, the Provider shall
continue to be obligated to pay settlements for all covered claims incurred by covered
Providees prior to the effective termination date. After the effective termination date,
each Providee has a continuing obligation to pay Supplemental Risk Premiums and Risk
Premium Adjustments necessary to fund settlement payments; and to pay Administrative
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Premiums sufficient to cover the cost of post- termination legal defense and claims
management activities.
12.3 Distribution of Providees' Equity. After the effective termination date, the
Provider shall determine each Providee's equity as provided in Article V of this Agreement.
Provider shall submit a requisition executed by its chief executive officer and chief
financial officer to the Trustee of the Claims Payment Fund for payment of such sums to
the Providee.
ARTICLE Xffi
rkr •�
13.1 Notices. All notices, certificates or other communications hereunder shall be
sufficiently given and shall be deemed to have been received five (5) business days after
deposit in the United States mail in certified form, postage prepaid, to the Providees the
Provider and the Corporation at the following addresses:
If to the Providee: Town of Los Gatos
P. 0. Box 949
Los Gatos, California 95031
If to the Provider: Association of Bay Area Governments
MetroCenter
P.O. Box 2050
Oakland, California 94604
Attn: Executive Director
If to the Corporation: ABAG PLAN Corporation
c/o Association of Bay Area Governments
MetroCenter
P.O. Box 2050
Oakland, California 94604
Attn: President
The Provider, the Corporation and the Providees, by notice given hereunder, may designate
different addresses to which subsequent notices, certificates or other communications will
be sent.
13.2 BindinE Effect. This Agreement shall inure to the benefit of and shall be
binding upon the Provider and the Providees and their respective successors and assigns.
13.3 Severability. In the event any provision of this Agreement shall be held invalid
or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
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13.4 Further Assurances and Corrective Instruments. The Provider and the
Providees agree that they will, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledgd and delivered, such supplements hereto and such further
instruments as may reasonably be required for correcting any inadequate or incorrect
description of the Coverage hereby provided or intended so to be or for carrying out the
expressed intention of this Agreement.
13.5 Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall constitute but one and
the same instrument.
13.6 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State.
In Witness Whereof, the Provider has caused this Agreement to be executed in its
name by its duly authorized officers; and the Providees have caused this Agreement to be
executed in its name by its duly authorized officers, as of the date first above written.
ASSOCIATION F BAY AREA GOVE¢EIdTS,
as Provider /' (/
Bye
Name Title
Town of Los Gatos
as Providee
Terre ce.J. D.
Name T1 -
®24®
f;ii:lr: r
i „r • 11111 111 •• iii::: 0 •
I
MEMORANDUM LIABILITY .. •. ...E
FOR THE
ASSOCIATION OF BAY AREA GOVERNMENTS
POOLED LIABILITY ASSURANCE NETWORK
Throughout this Memorandum, words and phrases that are capitalized
have special meaning, they are defined in DEFINITIONS. Words that appear entirely in capital
letters have reference to the like titled section in this Memorandum.
DECLARATIONS
ENTITY COVERED: Town of Los Gatos
ee Endorsement No. 1 for a listing of additional entities covered
MAILING ADDRESS: 2 0. Box 949 Los Gatos California 95031
COVERAGE PERIOD: FROM: JUng 2, 1986TO: June 30, 1987 12:01 AM, Pacific Time
DEPOSIT PREMIUM: $167.000
DEDUCTIBLE AND
LIMITS OF COVERAGE: The layer- of Coverage provided by this Memorandum shall be the
layer which exceeds the deductible indicated below by an X in the
adjacent space, and which does not exceed Five Million Dollars
( ;5,0009000) per occurrence ("Limits of Coverage").
Deductible
$25,000 per occurrence
$50,000 per occurrence X
$100,000 per occurrence
$250,000 per occurrence
$500,000 per occurrence
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COVERAGE PROVISIONS
In consideration for the payment of the premium, the Provider and the Entity agree
as follows:
SECTION I - COVERAGES
The Provider will pay on behalf of the Covered Party the Covered Ultimate Net
Loss which the Covered Party shall become legally obligated to pay as damages because of:
A. Bodily Injury or Property Damage; or
B. Personal Injury; or
C. Public Officials Errors and Omissions
to which this Memorandum applies, caused by an Occurrence.
When used in this Memorandum (including Endorsement 1 forming a part hereof):
A. "Additional Covered Party" - means any person, organization, trust or estate
to whom or to which the Entity is obligated by virtue of a written contract to
- - provide coverage such as is afforded by this Memorandum, but only with
respect to operations performed by or on behalf of the Entity or facilities
owned or used by the Entity;
B. "Aircraft" - means a vehicle designed for the transport of persons or property
principally in the air;
C. "Automobile" - means a land motor vehicle, trailer or semi - trailer;
D. "Bodily Injury" - means bodily injury, sickness or disease sustained by any
person, including death resulting from any of these at any time;
E. "Covered Individuals" - means persons who were or are now elected or
appointed officials, employees or volunteers of the Entity, whether or not
compensated, while acting for or on behalf of the Entity, including while
acting on outside boards at the direction of the Entity;
F. "Covered Layer" - means the layer of coverage between the deductible
indicated by an X in the DEDUCTIBLE AND LIWIITS OF COVERAGE and the
Limits of Coverage,
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G. "Covered Party" - means any person, organization, trust or estate qualifying
under COVERED PARTIES. The coverage applies separately to each Covered
Party against whom claim is made or suit is brought, as if a separate policy
were issued to it, except with respect to THE PROVIDER'S LIMITS OF
LIABILITY;
H. "Covered Ultimate Loss" - means that portion of Ultimate Net Loss not
covered by other available insurance or coverage and which falls within the
Covered Layer;
I. "Dam" - means any artificial barrier, together with appurtenant works, which
does or may impound' or divert water, and which either (a) is twenty -five (25)
feet or more in height from the natural bed of the stream or watercourse at
the downstream toe of the barrier, 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 fifty (50) acre -feet or more.
Any such barrier which is not in excess of six (6) feet in height,
regardless of storage capacity, or which has a storage capacity not in excess
of fifteen (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, tank constructed of steel or concrete or of a
combination thereof, no tank elevated above the ground, and no barrier which
is not across a stream channel, watercourse, or natural drainage area and
which has the principal purpose of impounding water for agricultural use shall
be considered a "Dam ". In addition, no obstruction in the channel of a stream
or watercourse which is fifteen (15) feet or les 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 ".
Regardless of the language of the above definition, however, no
structure specifically exempted from jurisdiction by the State of California
Department of Water Resources, Division of Safety of Dams shall be
considered a "Dam ", unless such structure is under the jurisdiction of any
agency of the federal government.
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J. "Defense Costs" - means all fees and expenses incurred in connection with the
adjustment, investigation, defense and aDDeal of a claim e)r mat o...,o«®A
hereunder, including attorney's fees, court costs and interest on judgments
accruing after entry of judgment. However, "Defense Costs" shall not include
the office expenses of the Provider or the Covered Party nor the salaries of
employees or officials of the Provider or the Covered Party nor expenses of
any claims administrator engaged by the Covered Party;
K. "Entity" - means the ENTITY COVERED in the DECLARATIONS of this
Memorandum and includes any and all commissions, agencies, districts,
authorities, boards (including the governing board) or similar entities coming
under the Entity's direction or control or for which the Entity's council
members sit as the governing body. "Entity" also includes all members of the
Entity and any and all commissions, agencies, districts, authorities, boards
(including the governing board) or similar entities coming under the member's
direction or control or for which the member's council members sit as the
governing body;
L. "Memorandum" - means the Memorandum of Liability Coverage for the
Association of Bay Area Governments Pooled Liability Assurance Networiq
M. "Nuclear Material" means source material, special nuclear material, or
byproduct material. "Source Material ", "Special Nuclear Material ", and
"Byproduct Material" have the meanings given them in the Atomic Energy Act
of 1954 or in any law amendatory thereof; ..
N. " Occurrence" - means:
1. With respect to Bodily Injury or Property Damage, an accident, or event,
including continuous or repeated exposure to substantially the same
generally harmful conditions, which results during the COVERAGE
-PERIOD stated in the DECLARATIONS, in Bodily Injury or Property
Damage neither expected nor intended from the standpoint of the
Covered Party, except that assault and battery committed by, at the
direction of or with the consent of the Covered Party for the purpose of
protecting persons or property from injury or death shall be considred an
"Occurrence"`,
2. With respect to Personal Injury, the commission during the COVERAGE
PERIOD stated in the DECLARATIONS of an offense described in the
definition of Personal Injury.
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3. With respect to Public Officials Errors and Omissions, actual or alleged
conduct as described in the definition of Public Officials Errors and
Omissions during the COVERAGE PERIOD stated in the
DECLARATIONS.
O. "Personal Injury" - means injury, other than Bodily Injury, Property Damage or
Public Officials Errors and Omissions, as a result of one or more of the
following offenses:
1. False arrest, detention or imprisonment, or malicious prosecution;
2. Wrongful entry or eviction or other invasion of the right of private
occupancy;
3. The publication or utterance of a libel or slander, including disparaging
statements concerning the condition, value, quality or use of real or
personal property, or a publication or utterance in violation of rights of
privacy;
4. Unlawful discrimination or violation of civil rights;
5. Shock, fright, mental anguish or mental injury;
P. "Pollutants" - means without limitation any solid, liquid, gaseous or thermal
irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis,
chemicals and waste. Waste includes without limitation materials to be
recycled, reconditioned or reclaimed. The term "Pollutants" as used herein
shall not include potable water or agricultural water or water furnished to
commercial users or water used for fire suppression, raw sewage, combined
sewage, storm water run-off, partially treated sewage, fully treated sewage
(as defined by the aplicable NPDES permit) and residual streams of waste
water treatment;
Q. "Property Damage" - means:
1. Physical injury to or destruction of tangible property which occurs during
the COVERAGE PERIOD, including the loss of use thereof at any time
resulting therefrom; or
2. Loss of use of tangible property which has not been physically injured or
destroyed provided such loss of use is caused by an Occurrence during
the COVERAGE PERIOD;
R. "Provider" means the Association of Bay Area Governments;
S. "Public Officials Errors and Omissions" - means any actual or alleged
misstatement or misleading statement or act or omission or neglect or breach
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Of duty including misfeasance, malfeasance or nonfeasance by any Covered
Party individually or collectively in the discharge of duties for the Entity, or
any matter claimed against any Covered Party solely by reason of their being
or having been public officials of the Entity;
T. "Special Event" - means an event of leisure, recreational or public interest
value lasting a specific period of time not to exceed seventy -eight (78) hours
and which occurs no more than twice in a one (1) year period.
U. "Ultimate Net Loss" - means the sums for which the Covered Party is legally
liable as damages by reason of a judgment or a settlement made with the
written consent of the claimant, the Covered Party and the Provider and shall
net include Defense Costs.
r
With respect to claims or suits for damages to which this Memorandum applies, the
Provider shall have the duty to defend any claim or suit against the Covered Party even if
any allegations are groundless, false or fraudulent.
If the Ultimate Net Loss is under the Covered Party's Covered Layer, then the
Covered Party shall be obligated to pay the entire Ultimate Net Loss. If the Ultimate Net
Loss falls within the Covered Layer, the Covered Party shall be obligated to pay, or cause to
be paid, the difference between the Covered Ultimate Loss and the Ultimate Net Loss. The
Provider shall not be obligated to pay anyjudgment or settlement or to participate in the
defense of any claim or suit after THE PROVIDER'S LIMITS OF LIABILITY in each of the
Covered Layers have been totally exhausted by the payment of judgments or settlements
plus defense costs.
Regardless of the number of (1) Covered Parties under this Memorandum, (2) persons
or organizations who sustain injury or damage, or (3) claims made or suits brought on
account of Bodily Injury, Property'Damage, Personal Injury or Public Officials Errors and
Omissions, for each Occurrence the Provider's liability is limited to the amount of the
Covered Layer. For the purpose of determining the limit of the Provider's liability, all
damages arising out of continuous or repeated exposure to substantially the same general
harmful conditions shall be considered as arising out of one Occurrence.
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In the event that any combination of the COVERAGES applies to the same Covered
Party for a loss, claim or suit, the Provider's liability shall be limited to the amount(s) of the
Covered Layer for one Occurrence.
SECTION V - COVERAGE PERIOD AND TERRITORY
This Memorandum applies to Bodily Injury, Property Damage, Personal Injury, or
Public Officials Errors and Omissions which occurs anywhere in the world during the
COVERAGE PERIOD stated in the DECLARATIONS.
SECTION VI - COVERED PARTIES �._.
A. The Entity;
B. The Covered Individuals;
C. With respect to any Automobile owned or leased by the Entity or loaned to or
hired for use by or on behalf of the Entity, any person while using such
Automobile and any person or organization legally responsible for the use
thereof, provided the actual use is with the permission of the Entity, and with
respect to any automobile owned or leased by an employee of the Entity or by
a member of the Entity's governing board, if the Entity reimburses or pays the
employee or governing board member for use of such automobile, and only
such automobile is operated by said employee or governing board member and
only to the extent that the Coverage provided hereunder shall be in excess of
any other insurance for said automobile. The foregoing notwithstanding, this
coverage does not apply toe
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; or
2. The owner or any lessee, other than the Entity, of'sny Automobile hired
by or loaned to the Entity or to any agent or employee of such owner or
lessee;
D. Any Additional Covered Party.
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SECTION VII - EXCLUSIONS
A. This Memorandum does not apply to:
1. Bodily Injury, Property Damage, Personal Injury or Public Officials
Errors. and Omissions arising out of the actual, alleged or threatened
discharge, dispersal, release or escape of Pollutants:
a. At or from premises owned, leased to or occupied by the Entity,
but this exclusion (la) does not apply if an actual discharge,
dispersal, release or escape of Pollutants arises out of an
Automobile not owned by, leased to, hired by or loaned to the
Entity while being used on a public street or road owned or
maintained by the Entity;
b. At or from any site or location used by or for the Entity or others
for the handling, storage, disposal, processing or treatment of
waste;
C. which are at any time transported, handled, stored, treated,
disposed of or processed as waste by or for the Entity or any person
or organization for whom the Entity may be legally responsible; or
d. At or from any site or location on which the Entity or any
contractors or subcontractors working directly or indirectly- on the
Entity's behalf are performing operations:
1. If the Pollutants are brought on or to the site or location in
connection with such operations; or
ii. If the operations are to test for, monitor, clean up, remove,
contain, treat, detoxify or neutralize the Pollutants.
2. Any loss, cost or expense arising out of any governmental direction or
request that the Entity test for, monitor, clean up, remove, contain,
treat, detoxify or neutralize Pollutants
3. Loss of salary, wages or any related employee benefits, whether past or
future, arising out of unlawful discrimination, wrongful termination or
the violation of civil rights of any employee or official of the Covered
Party;
4. Bodily Injury or Personal Injury to:
a. Any employee of the Covered Party arising out of and in the course
of his /her employment by the Covered Party; or
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b. The spouse, child, parent, brother, sister, or other relative of such
employee as a consequence of a. above;
but this exclusion does not apply to liability assumed by the Covered
Party under any written contract;
5. Any obligation for which the Covered Party or any insurance company as
its insurer may be held liable under any workers' compensation,
unemployment compensation or disability benefits law, or under any
similar law;
6. Liability arising out of the ownership, use, or operation of any hospital or
airport;
7. Liability arising out of medical professional services performed by or on
behalf of the Covered Party; but this exclusion does not apply to such
services performed by emergency medical technicians, paramedics and
other similar classes of personnel, and school nurses;
S. Liability arising out of the partial or complete structural failure of any
Dam;
9. Fees, penalties, punitive damages or exemplary damages;
10. Bodily Injury or Property Damage arising out of the hazardous properties
of Nuclear Material;
11. Claims for loss or damage or any liability arising out of or in connection
with the principles of eminent domain, condemnation proceedings or
inverse condemnation, by whatever name called, regardless of whether
such claims are made directly against the Covered Party or by virtue of
any agreement entered into by or on behalf of the Covered Party;
12. Injury to or destruction of.
a. Property owned by the Covered Party, or
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; or
C. Aircraft or watercraft in the Covered Party's care, custody or
control;
13. Bodily Injury or Property Damage arising out of the ownership,
operation, use or maintenance of any aircraft;
14. Bodily Injury or Property Damage arising out of any transit authority,
transit system or public transportation system owned or operated by the
Covered Party, but this exclusion does not apply to any transit system
operating over non -fixed routes, including dial -a -ride, senior citizen
transportation, or handicapped transportation;
15. Liability arising out of the failure to supply or provide an adequate
supply of gas, water or electricity; and
16. As respects liability imposed upon a Covered Party (or which is imputed
to a Covered Party) under the Employee Retirement Income Security
Act of 1974 and any law amendatory thereof.
17. Liability arising out of any Special Event not sponsored solely by the
Entity.
B.
This Memorandum does not apply under COVERAGE B - Personal Injury to®
1. Personal Injury arising out of the willful violation of a penal statute or
ordinance committed by or with the knowledge or consent of the
Covered Party;
2• Personal Injury arising out of a publication or utterance concerning any
organization or business enterprise, or its products or services, made by
or at the direction of any Covered Party with knowledge of the falsity
thereof.
C. This Memorandum does not apply under COVERAGE C - Public Officials
Errors and Omissions to:
1. Bodily Injury, Property Damage or Personal Injury as defined in this
Memorandum;
2. Injury to, destruction or disappearance of any tangible property
(including money) or the loss of use thereof;
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;
4. Refund of taxes, fees or assessments
5. Liability of a Covered Party (a) arising in whole or in part out of any
Covered Party obtaining remuneration or financial gain to which the
Covered Party was not legally entitled or (b) arising out of the willful
violation of a penal code or ordinance committed by or with the
knowledge or consent of any Covered Party;
CNIM
6. Liability of a Covered Party arising out of estimates of probable costs or
cost estimates being exceeded or for faulty preparation of bid
specifications or plans, including architectural plans, or failure to award
contracts in accordance with statute or ordinance which under law must
be submitted for bids, provided such liability arises from the bidding or
contracting process;
7. Failure to perform, or breach of, a contractual obligation.
SECTION VIII - CONDITIONS
A. Covered Party's duties in the event of Occurrence, claim or suit:
1.. In the event of an Occurrence, written notice containing particulars
sufficient to identify the Covered Party and also reasonably obtainable
information with respect to the time, place and circumstances thereof,
and the names and addresses of the injured and of available witnesses,
shall be given by or for the Covered Party to the Provider or any of its
authorized agents as soon as practicable.
2. If claim is made or suit is brought against the Covered Party, the
Covered Party shall, upon demand by the Provider, forward to the
Provider every demand, notice, summons or other process received by
such Covered Party or such Covered Party's representative.
3. The Covered Party shall cooperate with the Provider 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, Personal Injury, Property Damage or Public Officials Errors and
Omissions -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 matte any payment, assume any obligation or incur any
expense; however, in the event that the amount of Ultimate Net Loss
becomes certain either through trial court judgment or agreement among
the Covered Party, the claimant and the Provider, then the Provider
shall pay on behalf of the Covered Party the Covered Ultimate Net Loss.
-11-
B. Bankruptcy or insolvency of the Covered Party shall not relieve the Provider
of any of its obligations hereunder.
C. If collectible insurance with any insurer, coverage with any other joint powers
authority or other self - funding mechanism, or specific self - insurance is
available to the Covered Party covering a loss also covered hereunder
(whether on a primary, excess or contingent basis), the coverage hereunder
shall be in excess of, and shall not contribute with, such other insurance or
coverage; provided that this clause does not apply with respect to excess
insurance or coverage purchased specifically to be in excess of this
Memorandum.
D. An Occurrence taking place over more than one COVERAGE PERIOD covered
by the Provider shall be deemed to have taken place during the first
COVERAGE PERIOD and only that limit of liability shall apply.
E. This Memorandum may be cancelled at any time in accordance with the
provisions of the Liability Risk Coverage Agreement.
F. No action shall lie against the Provider with respect to any one Occurrence
unless, as a condition precedent thereto, the Covered Party shall have fully
complied with all the terms of this Memorandum, nor until the amount of the
Covered Party's obligation to pay a Covered Ultimate Net Loss shall have been
finally determined either by judgment against the Covered Party after actual
trial or by written agreement of the Covered Party, the claimant and the
Provider. Any person or organization or the legal representative thereof who
has secured such judgment or written agreement shall thereafter be entitled to
recover under this Memorandum to the extent of the coverage afforded by this
Memorandum. No person or organization shall have any right under this
Memorandum to join the Provider as a party to any action against the Covered
Party to determine the Covered Party's liability, nor shall the Provider be
impleaded by the Covered Party or its legal representative.
G. The Provider shall be subrogated to the extent of any payment hereunder to all
the Covered Party's rights of recovery therefor; and the Covered Party shall
do nothing after loss to prejudice such rights and shall do everything necessary
to secure such rights. Any amount so recovered shall be apportioned as
follows:
1. Any interest (including the Covered Party's) having paid an amount in
excess of the Covered Ultimate Net Loss hereunder shall'be reimbursed
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first to the extent of actual payment. The Provider shall be reimbursed
next to the extent of its actual payment hereunder. If any balance then
remains unpaid, it shall be applied to reimburse the Covered Party.
2. The expenses of all such recovery proceedings shall be apportioned in the
ratio of respective recoveries. If there is no recovery in proceedings
conducted solely by the Provider, it shall bear the expenses thereof.
H. The DEPOSIT PREMIUM for the COVERAGE PERIOD stated in the
DECLARATIONS shall be computed in accordance with the provisions of the
Liability Risk Coverage Agreement and such DEPOSIT PREMIUM shall be
adjusted in accordance with Exhibits C and D to the Coverage Agreement
(Coverage Agreement) attached to this Memorandum. The Covered Party
named as the ENTITY COVERED in the DECLARATIONS is authorized to act
on behalf of all Covered Parties with respect to all matters pertaining to
premium under this :Memorandum.
%® In the event the Covered Party elects not to appeal a judgment for Covered
Ultimate Net Loss, the Provider may .elect to do, so at its own expense, but in
no event shall the liability of the Provider for Covered Ultimate Net Loss
exceed the applicable amount of the Covered Layers plus all Defense Costs
necessary and incident to such appeal.
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IWOPIO), d.
Additional Entities
FORMULA FOR CALCULATING ADMINISTRATIVE PREMIUM
For the Coverage Period from July 1, 1986 to June 30, 1987, each Providee's
Administrative Premium shall be the amount set for opposite its name under
Exhibit E.
For each subsequent Coverage Period, Adminsitrative Premiums for each Providee
shall be determined as follows:
C1, C2 • • • Cn = City It City 2 ... City n, where n= number of Providees in
the Coverage Period.
Ri = Risk Premium for City i as determined pursuant to Sections 4.4(c) and
(d) of the Liability Risk Coverage Agreement dated as of June 2, 1986
(Coverage Agreement).
Rt = Total Risk Premium as determined pursuant to Sections 4.4(c) of the
Coverage Agreement.
Si = (Ri /Rt)100 = Risk Premium Percentage for, City i
At = Total Administrative Premium as determined pursuant to Section 4.4(a)
of the Coverage Agreement.
Ai = (AtX.4) /n + (At)(.6XSi) = Administrative Premium for City 1.
(The above formulas provide that each Providee's Administrative Premium in a
Coverage Period is the sum of (1) a pro rata share of forty percent (40 %) of the
total Administrative Premium and (2) a portion of sixty percent (60 %) of the Total
Administrative Premium equal to the ratio of its Risk Premium to Total Risk
Premium for the same Coverage Period. Total Administrative Premium, Total
Risk Premium and Risk Premium are determined pursuant to Sections 4.4(a), 4.4(c)
and 4.4(c) and (d) respectively.)
In the event there is any discrepancy, conflict or inconsistencies among the
Coverage Agreement, the formula or the verbal description thereof, the Coverage
Agreement takes precedence over the formula and the verbal description thereof;
and the formula takes precedence over the verbal description.
:•r11: Y 1
FORMULA FOR CALCULATING RISK PREMIUM,
RISK PREMIUM ADJUSTMENTS AND SUPPLEMENTAL RISK PREMIUM
Schedule 1
For the Coverage Period from July 1, 1986 to June 30, 1987 each Providee's Risk
Premium is set forth in Exhibit E opposite the Providee's name.
For each subsequent Coverage Period, Total Risk Premium shall be set annually by
the Provider pursuant to Section 4.4(c) of the Liability Risk Coverage Agreement
dated as of June 2, 1986 (Coverage Agreement) and each Providee's Risk Premium
shall be determined pursuant to Section 4.4(d) of the Coverage Agreement.
Schedule 2
Risk Premium Adjustments shall be determined as follows:
Cl, C2 ... Cn = City 1, City 2 ... City n, where n=number of Providees in
the Coverage Period.
Ii = Incurred loss for City i in the Coverage Period.
It =11 + 12 + • r • + In = Total incurred loss for the Coverage Period.
0 R• = Risk Premium for City i as determined pursuant to Sections 4.4(c) and
of the Coverage Agreement.
Ai = Administrative Premium for City i as determined pursuant to Section
4.4(b) of the Coverage Agreement.
Ti = Ai + Ri = Deposit Premium for City i
Li = Ii /Ri = Loss Ratio for City i.
Li' _ .5 is more than or equal to Li and is less than or equal to 2.
Si = (Ri /Rt)300 = Risk Premium Percentage for City i
Lr = Rt - It = Loss Reserve Fund
Xi = (I.i)(Ti)
Yi = %i - Ti = Risk Premium Adjustment for City i where Yi greater than 0
requires City 1 to pay Yi and Yi less than 0 is a refund or credit to City i.
(The above formula provides that each Providee's Risk Premium Adjustment shall
be based on the ratio of such Providee's actual incurred losses for a given Coverage
Period to such Providee's Risk Premium for the same Coverage Period (so long as
-1-
e
that ratio is greater than or equal to .5 and less than or equal to 2.0) (Bounded Loss
Ratio). If the Bounded Loss Ratio is less than 1.0, such Providee is owed a Risk
Premium Adjustment refund equal to the Bounded Loss Ratio times its Deposit
Premium for the same Coverage Period. If the Bounded Loss Ratio is greater than
1.0, then the Providee is obligated to pay into the Claims Payment Fund a Risk
Premium Adjustment equal to its Bounded Loss Ratio times its Deposit Premium
for the same Coverage Period. If the kBounded Loss Ratio equals 1.0, there is no
Risk Premium Adjustment.)
In the event there is any discrepancy, conflict or inconsistencies among the
Coverage Agreement, the formula or the verbal description thereof, the Coverage
Agreement takes precedence over the formula and the verbal description thereof;
and the formula takes precedence over the verbal description.
Schedule 3
Supplemental Risk Premium shall be determined as follows:
Si = (Ri /Rt) = Risk Premium Percentage for City i
Lr = Rt - It = Loss Reserve Fund
If Lr is less than 0 than a Supplemental Premium is assessed as follows.
Zi = (Si)(Lr) = Supplemental Risk Premium for City i
When Zi is less than 0 requires City i to pay Li
(The above formula provides that for a Coverage Period a Supplemental Risk
Premium shall be imposed when the total incurred losses exceed Total Risk
Premium in said Coverage Period. Each Providee shall be obligated to pay a
portion of the amount by which total incurred losses exceeds Total Risk Premium
equal to the ratio of its Risk Premium to the Total Risk Premium for the same
Coverage Period.)
In the event there is any discrepancy, conflict or inconsistencies among the
Coverage Agreement, the formula or the verbal description thereof, the Coverage
Agreement takes precedence over the formula and the verbal description thereof;
and the formula takes precedence over the verbal description.
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LOS GATOS INITIAL: DEPOSIT PREMIM
AIMINISTRATIVE
PREMIM $25,000 $50,000
$16,519 $171,849 $150,481
$100,000 $250,000 $5002000
$128,360 $ 99,468 $ 78,702