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Home My WebLink About2009-042 1 RESOLUTION NO. 2009-42 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING 3 EXECUTION OF AN AGREEMENT WITH OMNITRANS TO PROVIDE A SHUTTLE SERVICE FOR METROLINK RIDERS DURING CONSTRUCTION OF THE 4 REALIGNMENT OF VIADUCT BOULEVARD (8804-34 & SS07-32). 5 6 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and 8 directed to execute on behalf of said City, an Agreement with Omnitrans to provide a Shuttle 9 Service for Metrolink riders during construction of the Realignment of Viaduct Boulevard 10 11 12 13 14 15 16 III 17 III 18 19 20 21 22 23 24 25 26 27 28 (SS04-34 & SS07-32), as shown in the Agreement. A copy of said Agreement is attached as Attachment "A" and made a part hereof. SECTION 2. The authorization to execute the above-referenced Agreement is rescinded if the parties to the Amendment fail to execute it within sixty (60) days of the passage of this resolution. - I - 2009-42 . . 1 RESOLUTION ... AUTHORIZING EXECUTION OF AN AGREEMENT WITH OMNITRANS TO PROVIDE A SHUTTLE SERVICE FOR METROLINK RIDERS 2 DURING CONSTRUCTION OF THE REALIGNMENT OF VIADUCT BOULEVARD 3 (SS04-34 & SS07-32). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and joint Common Council of the City of San Bernardino at a regular meeting thereof, held on the 2nd , 2009, by the following vote, to wit: day of March Council Members: NAYS ABSENT AYES ABSTAIN ESTRADA x BAXTER x x BRINKER (VACANT) KELLEY x JOHNSON x MC CAMMACK x ~~,~ City lerk The foregoing resolution is hereby approved thi~ day of March ,2009. Approved as to form: JAMES F. PENMAN, City Attorney -2- 2009-42 ATTACHMENT "A" February 10, 2009 Durand L. Rail, CEO/General Manager OMNITRANS 1700 W. Fifth Street San Bernardino, CA 92411-2499 Mark F. Weinberg, Interim City Manager City of San Bernardino 300 North D Street, 6th Floor San Bernardino, CA 92418 Subject: Omnitrans - City of San Bernardino Letter of Agreement for a temporary public shuttle service between San Bernardino Metrolink Station and Carousal Mall parking lot. The term of this Letter of Agreement shall be effective March 9, 2009, and will remain in effect until completion of the Metrolink Station Parking Lot construction project or either party cancels or amends the Agreement by giving fifteen days notice to the other party. The term of this Letter of Agreement shall not exceed twelve months from the effective date. The attached exhibits marked Exhibits A through F constitutes the entire understanding of the parties with respect to the subject matter hereof, and there are no other representations, promises, warranties, covenants or undertakings with respect thereto. Attachments: A: Cost estimate & service assumptions B: Shuttle alignment C: Route 1 alignment D: City's agreement with Placo San Bernardino (Carousel Mall) E: Carousel Mall Site Plan F: Omnitrans Liability Insurance Omnitrans, the public transit provider of San Bernardino Valley agrees to operate a public transit line open to the public, at no cost (free) to the passengers, at the request of the City of San Bernardino. The City of San Bernardino agrees to subsidize the total operating cost as stated in Exhibit A not to exceed $63,004. The City, its officers and employees are hereby designated as a "Covered Party" as defined under Section IV (D) of Omnitrans' Memorandum of Liability Coverage (Exhibit F). 2009-42 letter of Agreement for a temporary public shuttle service between San Bernardino Metrolink Station and Carousal Mall parking lot (Page 2 of 2) In witness thereof, the parties have caused this Letter of Agreement to be executed by their respective officers. OMNITRANS By~~ Duran L. Rail CEO/General Manager Date:~/lJd~9 By: F. Weinberg terim City Manager Date: -.5/3/0 q I / fl-p~~d 4J .;. ~ : IJ'!: ~ P,'OIl A- iJ,,/Ce..- OrI,,,,"'y;..J ~ c.:-,s-Lf Approved as to form: .~ James F. Penman City Attorney Page 2 of7 2009-42 Exhibit A Cost of Vehicle 1. Dates: MarchXX 2009toA ustXX 2009. su o Mood -Frid ONLY Time- 5:30AM to 3:50PM 10 "'''' Cost of Vehicle 2. Dates: March XX 2009 to A uslXX 2009. sub" tod! 3, 0 ""'" -Friel ONLY Time: 5:30AM . 3:50PM . "' Ew 10. 15 minutes '1M: F.e: Freel ... blic "",t' c:o.IM, Hours 6662 6" Communications: 'Nho?: 8:30AM ,~3:OO 7:30PM J~. 3: 8:30AM 1:30PM :.~.~;";;j: F Y",' Fare" Eve 10-15minutes free&o ntothe bit Co.r "66' eo.r 4437 Cost. CostMr HOUfS 66.62 666 Communications: 'Nho1: 's: . Cosl of service paid by: SANBAG/City of San Bernardino ... Based on 22 days per month for six months (Mar-ALlgJ -Based on 10 days, fnt two weeks only ITotal cost estimate for the above scenario: $ 63,004 Contacts: TBO Assumptions (per Dee 16, 2008 meeting): 1. 25 Passengers per train. City estimate. 2. Operate two vehicles during the first two weeks. Continue 10 operate second vehicle after two weeks only if demand warrants. 3. City of 58 has a permit to use the Carousel Mall parting lot. (Exhibit 0) 4. Use Carousel Mall parting lot Option. 3, due to its proximity to Route 1 bus stop at 2nd @G.(ExhibitE) 5. Route 1 will provide backup sennce. Regular fare policyltransfer policy applies with a varid Metrolink ticket. 6. Route 1 will be on detour during construction. (Exhibit C) 7. Approximately 70 parting spaces will be displaced at the SB Meltorink Station during construction. 8. 40 passenger full size buses and the 17 passenger vans will turnaround at the Santa Fe Depot. (Exhibit B) 9. The Metrorink Station shuttle is a free sennce and it will be open to the public. The City of San Bernardino will pay for operating the service. 10. The City of San Bernardino is the project owner and the lead agency for construction, communications, public information. 11. Sennce can be discontinued with two weeks of notice. Page 3 of7 2009-42 Exhibit B e- RIDER ALERT e- 51 M,'rolink Shuttle Effective March 9, 2009 METROLlNK SHUTTLE LOOP _n .. - ....... Carouse' . Mall . SAN BERNARDINO _n '1i",.1 !"Ulfll'! 1,I.lj'llh'H I ( DEPOT ) l u J lilt i CNlOUIa If AU. _n --- a-sa., -- JC lbIt'b~ - ,.. "",ml .. -:WJ ..... x" ;I X _n @ -,- Due to the displacerrent of approximately 70 San Bernardino Metrolink parking spaces caused by a six-month construction project at Viaduct Blvd. & 3rd St., a free publiC Omnitrans shuttle will operate Monday - Friday between the Depot and the Carousel Mall parking lot, as shown, The shuttle will operate at 10 -15 minute intervals betwoon 5:30 - 8:30 am. and 3:50 - 7:30 p,m. Customers also rrny utilize Omnitrans Route 1, which operates between 5:00 a.m. - 10:00 p,m, and will detour on 2nd St.to serve the Depot (plmse call or visit website for detai Is). For information, please call 1(800) 9-0MIIIIRJS or visit www.omnitrans,org Page 4 of7 2009-42 Exhibit C RIDER ALERT a. ROUTE I ear Effective March 9, 2009 Due to the displacement of approximately 70 San Bernardino Metrolink parking spaces caused by a six-month construction project at Viaduct Blvd, & 3rd St., Route 1 will detour as shown at its south end on 2nd S1. to more directly serve the depot for customer convenience, Valid Metrolink tickets/passes are good for one free ride on Route 1, A free Omnitrans shuttle also will be available Monday - Friday between the pepot and Carousel Mall (call or visit website for details). .rn 81 4IhSl. TmnsitMa'OIIIll~~ Ii = = rom ,. I Carousel ^ :: Mall .., :: ..1 '1II11~ X I @}-i] : - COllEGE . o San BemarrilnO Valley College Long-Tenn Detour X Temporary Stop For more information, please call 1.900.9.0MNIBUS or visit www.omnitrans.org Page 5 of7 ","UU::;1-""," 2009-42 Exhibit D 2008-451 - -. PLACO SAN BERNARDINO, LLC OWNERS AN!) OI'ERATORS or CAROUSf.l. MALL September 18, 2008 Mr. Robert Elsenbelsz, P.E. City Engineer City of San Bernardino 300 North "0- Street San Bernardino, CA 92418 RE: Temporary Parkln9 for Metrolink Riders Dear Mr. Elsenbeisz: Placo San Bernardino, LLC does not object to the temporary use of approximately 70 parking spaces by the City of San Bernardino as proposed in your letter dated August 14, 2008 In the area delineated as Option 1 on the attached Exhibit A, subject to the following con<'ltlons: 1. The use will be temporary for a period of six months commencing March 1, 2009 and ending August 31, 2009, for the purpose or parking Metrolink riders displaced by the construction of a parking structure at the Santa Fe DepotjMetrollnk location on West Third Street. 2. Pursuant to the Reciprocal Easement Agreement recorded December 24,1970, Section 13.1, the City shall hold harmless Placo San Bernardino, LLC and all other Parties from any claims or judgments arising from . the use of the parking area including, but not limited to, the temporary use set forth in paragraph one above. Further, the City will provide evidence of insurance as required by Section 13.2(b) of the Reciprocal Easement Agreement. 3. The City agrees not to damage or penetrate the parking areas with any fencing or signage, and to confine the temporary parking as outlined herein to the Option 1 area designated on the attached Exhibit A. 4. P1aco San Bernardino;LLC shall, in its sole discretion, have the right to relocate the temporary parking area to one of the areas shown as Option 2, 3 or 4 as designated on the attached Exhibit A. If you agree to thc above terms, please sign where Indicated below and return one of the copies with original signatures to me. Sincei:l ~ APPROVED AS TO FORMI Salvatore f. Catalano, CSM General Manager James F. Pt'nman, City Allorney - .~.. - SFC:rls , ,.~~. r.!JL City of San Bernat. Agreed to: ./"'"- slg'n ture ..- .. - .._.~ Print Name: ~ ~-4l--- Title: c~ Date: 295 carous.el Mall San Bernardino, CA 92401 Phone (909) 884.0106. Fax (909) 685.6893 2009-42 Exhibit E Preferred Option #3 Uplt 0.,-" I Enter.alnmentCistrld Fourth8tree1 i iil~ ' , 'I' a;,t..;oJ i E ~~ lD o g w Q E D '-"F optto." 3 _159> . , Iur ( EO _ _ _ _ Second Street ~- -11-----111----- I!r ~l~~ CAROUSEL MALL Site Plan :rr~~,e,~~ ~.., ~c~~~..:~~:rdino, California 4- aE~.E ~AL.^ ""Carou..'M"" North TWoUU....'"'"""'ANO... .m____~ San Bel'T'Wdino,CA 92<101 "lH!:fl!LD. AU.DHENS~ rol-) 884-0106 "POf'.OUTS'ATnEfOOh'TF~ \~.... 51'ORElSlOCAreoa..ACOfW\I Page 7 of7 2009-42 EXHIBIT "F" A JOINT POWERS INSURANCE AUTHORiTY -\J CalTIP Date: '. ~~CS ;." Jt4y ~D Membel'll of the California Trend Inaurance pooi (~l/J; <';>~-9 Mlcheon Balmer, camp Deputy General Menager ~ OJ:j ~C~ ~ J831 K Slre-et Sacramento, CA 958u p. 800-541-4591 r 916-'44-1198 www.GalTIP.org CALIFORNIA TBANSIT INSURANCE POOL To: ~" From: May 22, 2008 Subject: ImDortent - 2008-09 UablHtv proaram end Vehicle PhYsical DamaGe Proaram Coveraae Documents Enclosed for your records are \he following 2008-09 Camp Coverage documents for the Uability and Vehicle Physical Damage programs. Please re/ain the enclosed documents for Mum reference. L1abllltv Proaram -. · Memorandum of Coverage and Declaration . Excess insurance binder - Pf~c:A note !hat onlv the binders oertainlna to your oraanlzalion's selected Umlt of liabilltv within Camp have been enclosed. o Lexington Insuance Company = $5 million In excess of $5 mHlion; total of $10 million in coverage. '. o Arch Specialty Insurance Company = $10 miHion in excess of $10 million; total of $20 million In coverage. Vehicle Phvslcal Oamaae Proaram . Memorandum of Coverage and Declaration (Including Vehlcle Schedule) · Excess insurance binder o Fireman's Fund Insurance = $10 million in coverage. Also, enclosed is a directory of CalTIP Staff. To access the complete directory, including a list of all CaITlP Board members, Committees, and consultants, please refer to the CaITIP Website at www.cahiD.ora. If you have any questions, please feel free to contact me. at (800) 541-4591, ext. 1143. Enclosures .. . 2009-42 A JOI.NT POWER:S. l.t<f-SURANCE AUT~ORITY ~ CalTIP 183' K Street Sacramento, CA ~ ~ 958u CALIFORNIA TllANSIT INSUUNC& PoOL MEMORANDUM OF LIABILITY COVERAGE Declarations' 1. Property: OMNITRANS 2, Limit of Liability: $5,000,000 Ultimate Net Loss Each Occurrence 3. Retention: $50,000 Ultimate Net Loss Each Occurrence 4, Program: Program I 5, Coverage Period: 12:01 a.m., May I, 2008 to 12:01 a.m., May 1,2009 6, Memorandum No,: 0809-L-35 7. Deposit: $1,382,799 Attached to and forming part of this Memorandum of Covemge is Form No. LMOC - I. Approved: ~ ~. TMwt' Gregory L. Trout, CalTIP General Manager May I, 2008 [TmS IS NOT AN INVOICE] Memorandum of Liability Coverage p, 800-541-4591 f. 916-~44-Il98 www.CalTIP.org 2009-42 . MEMORANDUM OF LIABILItY COVERAGE Form LMOC - 1 CONTENTS I. WHAT THE AUTHORITY PAYS ON PROPERTY'S BEHALF A. Coverage of Property B. Defense of Property II. AUTHORITY'S LIMIT OF LIABILITY III. RETENTION IV. WHO IS A COVERED PARTY V. WHAT THE AUTHORITY WILL NOT COVER (ExCLlJSIONS) VI. WORDS AND PHRASES WITH SPECIAL MEANING VII. CONDITIONS Page 1 of 12 2009-42 , ., CALIFORNIA TRANSIT SYSTEMS JOINT POWERS INSURANCE AUTHORITY MEMORANDUM OF LIABIUTY COVERAGE Each word shown in bold type has a special meaning which is defined In Section Vi: I. WHAT THE AUTHORITY PAYS ON PROPERlY'S BEHALF A. COVERAGE OF PROPERTY The Authority will pay the ultimate net IQSS the covered party becomes legally obligated to pay as damages by reason of liability imposed by law, or assumed by contract for: 1. Bodily injury . 2. Property damage 3. Public officials errors & omissions 4. Personal injury This coverage applies only to damages caused by, or arising out of an occurrence to which this memorandum applies. B. DEFENSE OF PROPERTY With respect to occurrences to .which this memorandum applies: 1. If the Property participates in Program I as stated in item 4 of the Declarations, the Authority has the right and duty to defend any suit against the covered party. The Authority may, at its discretion, investigate, negotiate, or settle any claim or suit. The Authority shall not be obligated to pay any claim or judgment or to defend any suit after the limit of liability has be8n exhausted. or 2. If the Property participates in Program n as stated in item 4 of the . Declarations, the Authority shall not be called upon to assume charge of the Investigation or defense of any claim. However, the Authority, at its own expense, has the right to control .the negotiation, investigation, defense, appeal, or settlement of any claim or proceeding which, in its opinion may result In an ultimate net loss exceeding the retained limit. The covered party shall fully cooperate in all matters pertaining to such claim or proceeding. No claim shall be settled for an amount In excess of the retained limit without the prior written consent of the Authortty. Rev. Aprll30, 2008 Page 2 of 12 2009-42 CalTlP LIability Program Fonn LMOC.. 1 Memorandum of Coverage . II. AUTHORITY'S LIMIT OF LIABilITY Regardless of the number of (1) covered parties, (2) persons or organizations who $Ustain injury or damage, 0.17 (3) claims made or suits brought, the Authority's liability for the ultimate net loss from any one occurrence shall not exceed the coverage limit shown in the declarations for anyone occurrence. arising out of bodily injury; property damage, public officials errors & omissions, or pentonallnjury, or any combination thereof. For the purpose of detennining the limit of liability: . All damages arising out Of continuous or repeated exposures to substantially the same general conditions are considered to arise out of one occurrence. . An occurrence extending over more than one coverage period shaH be treated as a single occurrence arising In the coverage period in which the occurrence began. . III. RETENTION The Authority's obligation to pay damages on behalf Of the covered party applies only to . ultimate net loss in excess of the amount shown in item 3 Qf the Declaratklns. The amountshown in item 3 of the Declarations shall be exhausted by sums paid or payable in satisfaction of the L!ltimate net loss. IV. WHO IS A COVERED PARTY Each of the follOWing is a covered party to the extent set forth below: A. The Property as set forth in the Declarations. any and all commissions. agencies, districts, authorities, boards (including the governing board) or similar entity coming under the Property's direction or control or for which all of the Property's board members sit as the governing body. The Property includes all departments and constituent agencies of the Property. B. Any persons who are past or present elected or appointed officials, employees, or authorized volunteers of the Property, whether or not compensated, while acting for or on behalf of the Property, Including while acting on outside boards at the direction of the Property. c. Any person, while using an owned, non-owned or hired vehicle, and any person legally responsible for the use thereof, provided the actual use thereof is authorized by the Property. The coverage extended by this Section C shall not apply to: Rev. April 30. 2008 Page 3 of 12 . 2009-42 CalTlP Liability Program Fann LMOC -1 Memorandum of CovelCl98 1. Any person or organization, or to any agent or employee thereof, engaged in selling, repairing, ~rvicing, delivering, testing, road testing, parking, or storing vehicle., with respect to any occurrence arising out of any such occupation; or 2. The owner, or a lessee of any hired or non-owned vehicle, or their agent or employee, except the Property and its employees or volunteers. D. Any person or organization the Property has agreed in a written contract to include . as a covered party; . Such person or organization is a covered party solely for facilities or personal property owned by such person or organization and used by the Property or for operations performed by or on behalf of the Property for such person or organization. . V. WHAT THE AUTHORITY WILL NOT COVER (EXCLUSIONS) This memorandum does not apply to: A. Bodily injury, property damage, or personal InJury arising out of the ownership or maintenance or use or operation of any airfield or similar. aviation facility. B. Liability arising out of the ownership or maintenance, loading or unloading, or use or operation of any aircraft. C. Liability arising out of the ownership or maintenance, loading or unloading, or use or operation of any watercraft over 17 feet In length. D. Any obligation for which the covered party, or any Insurer or insurance pool therefore, may be held liable under any workers' compensation, unemployment . compensation, or disability benefits law, or under any similar law. E. Liabiiity for loss of past or future salary, wages, employee benefits, or other similar compensation of any employee or official of the covered party arising out of unlawful discrimination, harassment, retaliation, wrongful termination, violation of civil rights or other workplace tort. F. Liability for bodily injury to any employee of the covered party arising out of and in the course of employment by the covered party, except with respect to liability of others assumed by the covered party under contract. G. Liability of any employee with respect to bodily injury of another employee. H. To liability for property damage to: 1. Personal or real property Owned by the covered party; Rev. April 30, 2008 Page 4 of 12 2009-42 CamP Liability Program F9lIl1 LMOC - 1 MemoranduRI of Coverage 2. Personal or real property owned by others for which the covered party has assumed liability under contract, unless the covered party would have been liable for damage In the absence of such a contract. I. .. To any liability arising from pollutants, except pollutants released: 1. As result of collusion, upset or overturn of a vehicle when pollutants originate from the operating systems u.sed to ~r or run the vehicle, 2. As a result of uncontrolled fire, flood, or fire. fighting efforts affecting property owned,leased oroccupled by the Property. 3. At any location on which any covered party is performing work, or a contractor or subcontractor is performing worX on behalf of the covered party, if pollutants were not brouQht to the location by the covereel party, or its contractor Qr subcontractor. J. To liability arising out of any governmental direction or reque$t that the Property test for, monitor, cleanup, remove, contain, treat, detoxify, or neutralize pollutants. K~ To any claims made against covered part/" arising out of, or connected with the application of the principles of eminent domain, condemnation proceeding, retroactive condemnation, Inverse condemnation or reverse condemnatiot), by whatever name caned, 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. L. To fines or punitive damages. M. Under, public officials errors & omissions to: 1. Bodily Injury or personal Injury. 2. Physical injury to or destruction or disappearance of tangible property, including all resulting loss of use of that property. 3. Refund of taxes, fees, or assessments. 4. Liability of a covered party (a) arising in whole or in part out of a covered party obtaining remuneration or financial gain to which the covered party was n6t 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 a covered party. However, this exclusion shall not apply to the vicarious liability of the Property. 5. Liability arising out of exceeding estimates of probable cost or cost, or faulty preparation of bid specifications or plans, including architectural plans, . Rev. April 30, 2008 Page 5 of 12 2009-42 Camp Liability Program Fonn LMOC . 1 Memoraildum of Coverage . . 6. Failure to perform or breach of a contractual obligation. 7. Liability imposed under ttle "Employee Retirement Income Security Act of 1974" or any amendatory or similar law, or fiduciary liability for employee benefit plans. N. . To Dability arising from the hazardous properties of nuclear material. O. To liability arising out of war, however, this exclusion shall not apply to the first .$1,000,000 of ultimate net. loss, P. All loss, cost or expense arising out of or related to, either directly or indirectly, any "NBCR Terrorist Activity" as defined herein, and any action taken to hinder, defend against or respond to any such activity. This exclusion applies regardless of any other cause or event. that in any way contributes concurrently or in any sequence to such loss, cost or expense. "NBCR Terrorist Activity" shall mean any deliberate, unlawful act that includes, involves or is associated with, in whole or in part, the use. or threatened use of, or release or threatened release of, any nuclear, biological, chemical or radioactive agent, material, deviCe or weapon, that: 1. is declared by any authorized govemmental offICial to be or to involve terrorism, terrorist activity or acts of terTQrism; or 2. is related, in whole or in part, to any intention to: (a) promote, further or express opposition to any political, ideological, philosophical, racial, ethnic, social or religious cause or objective; or (b) influence, disrupt or interfere with any government related operations, activities or poficies; or (c) intimidate, coerce or frighten the general pubrlC or any segment of the general public; or -, (d) disrupt or interfere with a national economy or any segment of a national economy. However, this exclusion does not apply to the first $1,000,000 of ultimate net ~L . Q. To liability arising out of securities lawS or regulations, however, this exclusion shall not apply to the first $2,000,000 of ultimate net loss. Rev. April 30, 2008 Page 6 of 12 2009-42 Camp Liability Program Fonn LMOC - 1 Memonmdum of Coverage VI. WORDS AND PHRASES WITH SPECIAL MEANING Aircraft meanS a vehicle designed for the transport of persons or property principally in the air. Authority means the California Transit Systems Joint Powers Insurance Authority. BodilY Inlurv means bodily Injury, sickness or disease, including death resulting therefrom, and also includes care and loss of services by any person or persons. Covered party means any person or entity set forth in Sectkm IV of this memorandum. Defense costs means all fees and expenses caused by and relating to the adju~ment, investigation, defense, or litigation of a claim including court costs and interest on judgements accruing after entry of judgment. Defense costs -shall not include the office expenses of the Authority or the covered party nor the salaries of employees or officials of the Authority or any covered party, nor the expenses of a claims administrator engaged by any coveredpa"rty. Hired vehicle means a vehicle used under contract on behalf of or loaned to the Property. provided such vehicle is not owned by or registered in the name of (1) the Property, or (2) an employee or volunteer of the Property or a member of their household. Non-owned vehicle means a vehicle not owned or leased by the Property or hired by a covered party for use for or on behalf of the Property, Nuclear material means secure material, special nuclear material or by-product material all as defined by the Atomic Energy Act of 1954 and its amendments. Occurrence as respects bodily Injury or property damage means an accident or event which, during the coverage period. results in bodily injury or property damage, neither expected nor intended from the standpoint of the covered party and, as respects public officials errors & omissions and personal Injury, means an act, accident, omission or event during the coverage period that results in injury or damage. Owned vehicle means a vehicle owned by or under long-term lease to the Property. Personal inlurv means (a) false arrest, malicious prosecution, or wrongful detention; (b) libel, slander, or defamation of character; (c) invasion of privacy; (d) wrongful entry or eviction, or other invasion of the right of private occupancy; (e) assault and battery; and (1) discrimination or civil rights violations. Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste Includes materials to be recycled, reconditioned, or reclaimed. The term pollutant as used herein does not apply to potable water, agricultural water, or water fumished for use as a fire suppressant. Rev. April 30, 2008 Page 7 of 12 2009-42 CamP Liability Program Fonn LMOC - 1 Memorandum of Coverage ProDertv means the transit system designated in the Declarations. ProDertv damaQ8 means (1) physical injury to or destruction of tangible property, including the loss of use thereof, or (2}loss of use of tangible property that has not tieen physically injured or destroyed. Public officials errors & omissions means any and all breaches of duty by the covered party arising from negligent action or inaction, mistake, misstatement, enur, neglect, or omission by the covered party in the discharge of their duties for the Property. Terrorism means' activities against persons, organizations or property of any nature: 1. That involve the following or preparation for the following: (a) Use or threat of force or violence; or . (b) Commission or threat of a dangerous act; or (c) Commission or threat of an act that interferes with or disrupts an electronic, communication, infonnation or mechanical system; and 2. When one or both of the folloWing applies: (a) The effect is to intimidate or coerce a government or the civilian population or any segment thereof, or to disrupt any segment of the economy; or (b) " appears that the intent is to intimidate or coerce a government, orto further political, ideological, religious, social or eoonomk: objectives, or to express (or express opposition to) a philoSOphy or ideology. Ultimate net loss means the sum actually paid or payable in cash in the settlement or satisfaction of losses for which the covered party is liable, either by (1) adjudication or (2) compromise, after making proper deduction for all recoveries and salvages COllectible, and includes defense costs, Vehicle means a land motor vehicle or trailer licensed for highway use. War means, whether declared or not, war or civil war, martial law, insurrection, revolution, invasion, bombardment or any use of military force, usurped power or confiscation, nationalization or warlike action by any government, military or other authority. VII. CONDITIONS A. DeDOsitlAdjustment. All deposits and retrospective adjustments. for this memorandum shall be computed and paid in accordance with the Joint Powers Agreement, Bylaws, and the cost allocation plan adopted by the Board of Directors. B. Insoection and Audit. The Authority shall be pennltted but not obligated to inspect . the Property's property and operations at any time. The Authority may examine and audit the Property's books and records at any time prior to the cessation of the Rev. April 30, 2008 Page 8 of 12 2009-42 Camp liability Program Fonn LMOC -1 Memorandum ofCoYlmllle Property'. financial obligations under the Joint Powers Ag~ment. Any inspection conducted by the Authority is solely for the benefit of the Authority and does not . constitute a detennination that the Property's premises, property or operations are safe, healthful or in compliance with applicable laws. . C. PropertY's Duties In the Event of Occurrence. Claim. or Suit 1. Program I Property's Duties If the Property participates in Program I as stated in Item 4 of the Declarations: . (a) The Property shall report as soon as practicable, and in writing, all' occummces likely to result in a claim to the Authority's claims administrator, except as provided in (c) below. . (b) Written notice containing particulars of the occurrence being reported. shall be sufficient to identify the covered party. and also reasonably obtainable · infonnalion with respect to the time, place, and circumstances thereof, and the names and addresses of injured persons and available witnesses, shall be given by or for the Property to the Authority's claims administrator, (c) The Property may elect to directly pay up to $2,500 for property damage claims. 2. Program II Property's Duties If the Property participates in Program II as stated in Item 4 of the Declarations, the. Property shall report as soon as practicable in writing to the Authonty's claims administrator: (a) Claims with estimated damages exceeding 50% of the Property's self-insured retention. (b) Claims alleging or involving: Fatalities Amputations Spinal cord injuries (paraplegic or quadriplegic) Paralysis Sensory loss Severe head injury or brain damage Serious bum Disfigurement Loss of major organ Loss of use of body functions Rev. April 30,2008 Page 9 of 12 2009-42 Camp Uablllty Program Form LMOC -1 Memorandum of Coverage Extended disability (greater than six months) Significant p$ycho-neurotic Involvement Sexual harassment or molestation claims Multiple injuries and property damage Catastrophic property damage Class action suits Civil rights violations Employment practices (c) Claims alleging public officials errors & omissions. 3. Dirties of All Properties (a) If claim is made or suit. brought against a covered party for an occurrence repOrtable under 1 Or 2 above, the Property and any other involved covered. party shall immediately forward to the Authority's claim administrator every demand, notice, summons, or process received. (b) The Property and covered party shall cooperate with the Authority and, upon the Authority's request, assist in: I. Making settlements. il. The conduct Of suits. iil. Enforcing any right of contribution or indemnity against any person or organization liable to the covered party for loss paid or payable under this memorandum, (c) The covered party shall attend hearings and trial~ and assist in securing and giving evidence and obtaining the attendance of .. witnesses. The covered party shall not, except at the covered party~ s cost: I. Voluntarily make any payment. il. Assume any obligation. iii. Incur any expense other than for first aid or damage mitigation. The Authority shall not be liable for occurrences, suits, or claims in which the Property fails to comply with this Condition C. Rev. April 30, 2008 Page 10 of 1~ 2009-42 . , CamP LIlibJIIty Program Form LM()c - 1 Memol'lllldum of CovenIge D. Action Aaainst Authorltv. 1. If the Property disagrees with any recommendation of the Authority's claims administrator, the disagreement shall be settled in accord with the Claim Dispute Resolution Procedure in the Bylaws. 2. Other than as provided in item 1 above, covered parties have no right of action under this memorandum unless they have fully complied with all of the its terms ancl the amount of the covered party's obligation has been finally detennined either by judgment against the covered party, after actual trial, or by written agreement of the covered party, the claimant, and the Authority. 3. Any person or organization or their legal representative, having secured judgment or written agreement, shall. be entitled to recover under this memorandum to the extent it provides coverage. No person or organiZation has a right under this memorandum to join the Authority in any action against the covered party to detennine the covered party's liability. The Authority shall not be brought into or subject to an action' by the covered party or the covered party's legal representative except as allowed ill item 2above. BankfllPtcy or inSQlvency of the covered party or of the covered party's estate shall not relieve th8 Authority of any of its obligatiolls . hereunder. E. other Coveraae. The coverage afforded in this memoranclum is excess of and shall not contribute with any valid and collectible insurance or pooled coverage available to the covered party, other than any excess or umbrella insurance procured by the Authority or the Property that is specifically meant to apply in excess of the coverage afforded by this memorandum. This condition does not apply to any covered party the Property has agreed to protect on a primary basis who qualifies as a covered party in section IV, item D. F. Subroaation. The Authority is subrogated to the covered party's rights of recovery for payments made by the Authority against any person or organization. The covered party shall execute and deliver instruments and papers and do . whatever else is necessary to 'secure such rights. The covered party shall do nothing after loss to prejudice such rights. Any amount recovered shall be apportioned as follows: 1. First to the provider of the highest layer of coverage and last to the Property's retention, until the amount recovered is exhausted. 2. Expenses incurred in recovery activities shall be paid by recovery proceeds before any such apportionment. 3. To the extent recovery proceeds are insufficient to discharge recovery expenses, the Authority shall pay such expenses. Rev. April 30,2008 Page 11 of12 .. "" & t 2009-42 CamP UabIIlty Program Form LMOC - 1 Milmol'llndum of Coverage G. WlthdrawaUCancellation. The Property may withdraw from the Authority and cancel this coverage only: . 1. At the end of the Authority's fiscal year; and 2. Three or more years following its first day of coverage; and 3. After ninety (90) days' advance written notice of withdrawal is received by the Authority. . The Authority may cancel the Property's participation in the Authority and cancel this coverage upon two-thirds vote of the Authority's Board of Directors. However, any canceled Property shall be given ninety (90) days' written notice before such cancellation becomes effe,ctive, unless the PropertY's participation Is canceled for non-payment of the deposit or retrospective adjustments, then ten (1 0) days' written notice applies. . H.. Chances. This memorandum shall not be changed, except by written endorsement hereto. Issued by the Califomia Transit Systems Joint Powers Insurance Authority. By: .&J*'t../ r;., ..:t. Date: May 1, 2008 Gregory L. Trout, CaITlP General Manager , "'I. '...., ,\. ~. J Rev. ApOI 30, 2008 Page 12 of 12