CC Resolution No. 8600
REOOU1rIW ID. 8600
A RESOllJTIW OF THE CITY axJNCIL OF THE CITY OF aJPERTIN:)
AImDUZIOO EXECUTIW OF w:EŒRS' alœENSATIW AIHINIS'mATIVE
SERVICES cmmACT wrm ASSOCIATIW OF BAY AREA 00I1ERtHNl'S (AB/!G)
WHEREAS, an ag:t<::El:lent bebieen the City of CUpertino and the
Association of Bay Area GoverrIJæT1ts (AB/!G) outlining the teDœ and
conditions of claim administrative services for City of CUpertino's
workers' oœpensation ~'-":I'-cIIU has been presented to the City Council; and
said éiyL.,dllel1t having been awroved by the City Manager and the City
Attorney;
N:J'l, 'llit!a<J!a:'0t<E, BE IT RESOLVED, that the Mayor and the City Clerk are
hereby authorized to execute the éiyL.,d,ent herein referred to in behalf of
the City of CUpertino.
PASSED AND A1AJI:"l'l!OU at a
City of CUpertino this 18th
vote:
Vote MeIItJer!¡ of the Citv Council
regular neeting of the City Council of the
day of l'plm,~ry , 1992 by the following
AYES: Dean, Goldman, Koppel, Szabo, Sorensen
NOES: None
ABSENT: None
ABSTAIN: None
APPROIIED:
/s/ Lauralee SOrp.nHP-n
Mayor, City of CUpertino
ATlEST:
/s/ Dorothy Cornelius
City Clerk
SERVICE AGREEMENT
ADMINISTRATION OF WORKERS' COMPENSATION
This Agreement is made effective this first day of April 1992, between THE
ASSOCIATION OF BAY AREA GOVERNMENTS (ABAG), a joint powers agency created
pursuant to California Government Code Sections 6500, C1 ~., and the City of Cupertino (the
City).
RECIT ALS
WHEREAS the City desires to self-insure its liability to its employees pursuant to
the Workers' Compensation laws of the State ofCa1ifomia; and
WHEREAS ABAG is qualified and willing to administer the self-insured workers'
compensation program undertaken by the City; and
WHEREAS the City desires to retain the services of ABAG and ABAG agrees to
render its services for the City on the terms and conditions of this agreement,
NOW THEREFORE, in consideration of the murual promises, conditions and
covenants hereinafter set forth ABAG and the City agree as follows:
1. TERM AND SCOPE OF AGREEMENT
The term of this Agreement shall be from 12:01 a.m., April 1, 1992 to midnight,
June 30, 1993, unless cancelled as provided in Section 19 hereof, and shall be automatically
renewed for additional12-month terms on the first day of July each year if neither party gives
written notice of cancellation sixty (60) days prior to the end of such fiscal year.
2. DEFINITIONS
As used in this Service Agreement, the following terms shall have the following
meanings:
a. Adiust or Adiustment - Process of investigation, evaluation and disposition of
claims alleging occupational injury or illness.
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b. Allocated Loss E'Ipense - Expenses payable by the City as a result of claims
services and shall include: outside investigation, hearing costs, legal fees and expenses,
stenographic fees, commercial photographer fees, expert fees, fees for claim-related medical
opinions and diagnostic services except fees for actual medical or hospital treatment, witness fees
and mileage allowances, fees for detective services, and fees on which they mutually agree, but not
including direct claims payments or fees paid to ABAG.
c. Q¡¡j,¡n - Any exposure Or injury, accepted or alleged, that could, in ABAG' s
judgment, result in fmancialloss to or financial liability of the City under the workers'
compensation laws. and for which ABAG has established a file and placed a reserve.
d. Claim File - Documentation of the adjustment of a claim arising from a single
injury containing all relevant activity records, including notices, investigations, evaluations and
payments.
e. Discretionmy Settlement Authority Limit - That stated sum or sums of money set
forth in this Agreement under which ABAG is given responsibility and is authorized by the City to
adjust and make claim payments on behalf of the City.
f. Reserve - The estimated value of future expenses or fmancial exposure of the
City, as established by ABAG, on any claim.
g. Third Partv - Any person, partnership, corporation or other legal entity except:
ABAG, ABAG's Executive Board, agents or employees. the City's Council members, agents,
employees or persons eligible to claim workers' compensation benefits from the City.
3. PROGRAM DEVELOPMENT SERVICES TO BE PERFORMED BY ABAG
ABAG agrees to perfonn and provide all the program development services
necessary to maintain a program with the objective of cash savings to the City and full benefits to
the employees. ABAG will consult the City concerning these services as it deems necessary. Said
services shall include. but not be limited to, the following:
a. Consult with the City's personnel and assist in developing the necessary
procedures, practices and coordination to implement the City's Workers' Compensation Program
and to meet legal requirements of the State of California.
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, ,
b. Develop and provide procedures, practices and coordination for the reporting of
industrial injuries, the role of the supervisor, medical referral, personnel payroll responsibilities in
processing industrial injuries, and employees' consultative services.
c. Orient those personnel of the City involved, directly or indirectly, in the
processing of workers' compensation claims or losses in the procedures and practices. which have
been prepared by ABAG.
d. Design and provide all fonns necessary for the efficient operation of the
Program.
e. Consult with and advise the City on changes or proposed changes in legislation,
rules and regulations affecting the responsibility of the City and identify problems in the
development of the Program with recommendations for corrective action.
f. Provide supervisor training, through the ABAG Training Institute for
Excellence, covering the following: (I) basic workers' compensation law; (2) basic ergonomics;
(3) explanations of common injuries; (4) "human relations" aspects of workers' compensation; and
(5). alternatives to full, active duty.
4. ADMINISTRATIVE AND IMPLEMENT A TION SERVICES TO BE
PERFORMED BY ABAG
ABAG agrees to perfonn and provide administrative and implementation services
as needed by the City as described herein and in ABAG's proposal to the City, which is
incorporated by reference herein. ABAG will consult with the City concerning these services as it
deems necessary. Said services shall include, but not be limited to, the following:
a. Administer the program of the City in full compliance with all laws, rules and
regulations governing the administration of workers' compensation in the State of Calif<:>mia.
b. Review all claim or loss reports made by the City to ABAG of occupational
injury or illness incurred by an employee in the course of his or her employment by the City during
the tenn of this Agreement and of death resulting at any time from any of the foregoing and process
each such claim or loss report in accordance with applicable statutory and administrative
notification requirements as amended from time to time.
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c. Conduct an investigation of each reported claim or loss under subparagraph (b)
above (hereinafter refened to as a "qualified claim or loss'') to the extent deemed necessary in the
penormance of its obligations hereunder, immediately notifying the City concerning claims of
questionable compensability.
d. Effect the payment of medical benefits and arrange and authorize medical
examinations to delennine the nature and extent of an alleged disability.
e. Decide the eligibility for and effect payment of temporary disability
compensation, in coordination with medical advice, rehabilitation efforts and salary continuation
programs, if applicable.
f. Determine the extent and degree of permanent disability, utilizing as necessary
and desirable any medical sources or advisory bodies available, provided, however, all the
fmdings shall be reported to the City before any action is taken.
g. Effect payments of permanent disability compensation and death benefits in
accordance with advisory ratings, findings and awards, or settlement agreements, all of which
have been approved by the City in advance.
h. Maintain on each claim current estimates of the future anticipated costs of all
benefits, Le., reserves.
L Establish and maintain all records and claim files on each claim which shall be
available to the City for inspection during normal business hours.
j. Maintain records on and effect collections from excess reinsurers on the City's
behalf where it is entitled to reimbursement for a loss in excess of the self-insurance retention.
k. Notify the City and the excess insurers of all qualified claims or losses with
respect to which potentia1losses may exceed the City's retention and, ifrequested, provide such
insurers with necessary information on the current status of these claims or losses.
I. Workers' Compensation Administration Manual- ABAG shall provide to the
City a comprehensive Manual of Standards, Policies and Procedures for Claims Administration.
m. ABAG shall furnish appropriate renewal application forms and shall file all
renewal applications and periodic reports required by state administrative agencies to maintain the
self-insurance program.
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S. MEDICAL CONTROL SERVICES TO BE PERFORMED BY ABAG
ABAG agrees to perform and provide medical control services necessary to ensure
a high quality of medical treatment for injured employees, prompt and complete medical reports
necessary to the determinaûon of compensability in the provision of benefits and the regulaûon of
medical costs. ABAG will consult with the City concerning these services as it deems necessary.
Said services shall include, but not be limited to, the following:
a. Maintain a cUITent roster of physicians for the iniûal, long-term, or specialty
treatment of employees with industrial injuries or illnesses. This roster shall be reviewed
periodically for quality and cost of medical treatment.
b. Monitor treatment programs for injured employees including, but not limited to,
review of all medical reports, and maintain contact with treaûng physicians as appropriate.
c. Assist in interpreting medical reports to consider the circumstances under which
an ill or injured employee who desires to do so could return to work in the shortest period of time
practicable.
d. Audit all medical bills prior to payment to confirm relationship to the disability.
and accepted fee schedules.
e. Establish standards for the evaluaûon of the physical capacity of the injured
employees to return to work and provide guidance for the application of standards in determining
the existence of any permanent disability.
f. make all necessary arrangements for consultation with and examinations by
physicians for the review of the employees' medical problems.
g. Supervise the furnishing of medical treatment to injured employees.
h. Administer and process all lifetime medical cases.
6. CLAIMS INVESTIGATIVE SERVICES TO BE PERFORMED BY ABAG
ABAG agrees to arrange for claims investigative services necessary to conduct a
thorough investigation of any claim or dispute arising out of or related to the Program. ABAG will
consult with the City concerning these services. Said services shall include, but not be limited to,
the following:
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a. Detennine liability of questionable claims and arrange investigations as deemed
necessary by the City with regard to individual cases, to confmn whether or not the injury or the
illness arose out of and occurred during the course and scope of employment.
b. Provide all records, medical files and other data, and perform all tasks and
research as the Ci.ty or designated legal counsel of the City may request or require concerning any
claim, dispute, liability, loss costs, or obligation on account of, or arising out of, the Program.
c. Monitor all cases for potential subrogation recoveries and arrange subrogation
investigations. Investigations and other assistance shall be performed as the City may request or
require where necessary to effect collection from third parnes.
7. EMPLOYEE CONSULTATIVE SERVICES TO BE PERFORMED BY ABAG
ABAG agrees to perform and provide employee consultative services necessary to
supply employees with full and complete information and guidance regarding their rights and
benefits and the operation of the Program. ABAG will consult with the City concerning these
services as it deems necessary. Said services shall include, but not be limited to, the following:
a. Hold quarterly meetings between the adjuster and the responsible person at the
City to review the status of open cases and agree on a course of action.
b. Provide consultation and recommendations concerning the development of
policies and procedures for employees' consultative service activities.
c. Identify and attempt to solve employee problems arising out of work-incurred
disabilities.
d. Meet with employee groups at the direction of the City to discuss the workers'
compensation system and related matters.
e. Develop policies and procedures to ensure that the return to work or
reassignment of injured employees is consistent with the findings of state administrative agencies.
f. Assist the City and its employees in solving employee non-legal problems
arising out of industtial injuryf¡llness cases.
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8. REHABILITATION SERVICES TO BE PERFORMED BY ABAG
ABAG agrees to aITange for rehabilitation services necessary to develop and
maintain a good, sound rehabilitation. Said services shall include, but not be limited to, the
following:
a. Arrange for legally mandatory rehabilitation or retraining of employees in
appropriate cases, with costs of rehabilitation to be borne by the City.
b. In rehabilitation or retraining cases where action by the City is not legally
mandatory, ABAG will act at the direction of the City, the provisions of this paragraph in no way
reducing the obligation of ABAG to act pursuant to paragraph 8(a) above.
c. In all cases involving rehabilitation or retraining, the City will be consulted at
each step of the related process and given the opportunity to provide input as it may deem
appropriate.
9. STATISTICAL AND REPORTING SERVICES TO BE PERFORMED BY ABAG
ABAG agrees to perfonn and provide statistical services necessary to maintain
control of self-insurance costs and continue the efficient operation of the Program. ABAG will
consult with the City concerning these services as it deems necessary. Said services shall include,
but not be limited to, the following:
a. Perfonn reasonable and necessary administrative and clerical work in
connection with qualified claims and losses.
b . Utilize computer programs to furnish the City a quarterly "Claim and
Expense Report" containing the following information:
(a) As to each qualified claim or loss from the cunent contract period
and each open qualified claim or loss from prior contract periods, the
date and the condensed description of the incident, other identifying
infonnation, the total of payments made during the month and to
date, and the estimated future cost and total expected cost of the
claim or loss;
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(2) As to all qualified claims or losses from the cwrent contract period
and each of several successive prior contract periods, the total
number of claims or losses and summary data as to payments made
during the month and to date and the estimated future cost and total
expected cost of such claims or losses;
(3) Reports will cover and coincide with the City's fiscal year of July 1
to June 30. ABAG will notify the City prior to any reporting fonnat
change; and
(4) Quanerly claim and expense reports are due at the City's location no
later than the fifteenth of the following month.
c. Furnish to the City a quarterly "Loss Analysis Report" containing summary
data for each of the City's principal locations as to the number of claims and the total of
compensation and medical payments made to date during the cwrent contract period, and the
reserve cost of such claims, all categorized by the cause, type and nature of the incident and the
p~ of the body involved.
d. Prepare the following repons, each to be provided to the City no later than
forty-five (45) days following the end of the specified valuation period. Providing statistical
reports is subject to the capabilities of the then-available ABAG infonnation systems:
1. Quarterly Reports
(a) Oaim Activity Repon
(b) Cost Detail Analysis
(c) Cost Summary Analysis
(d) ManagementDetail
(e) Management Summary
2. Annual Reports
(a) Claim Stratification
(b) Negative Reserves Repon
(c) Annual Self-Insurance Repon for the State of California
(d) 1099 Vendor Repon and fanns
(e) OSHA Log
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10. DISCRETIONARY DISBURSEMENT AUTHORITY LIMIT
If, under this Agreement, ABAG is to make the appropriate loss payments on
claims accepted by the City as industrial, or disputed claims where there is a mutual agreement
between the City and ABAG that a payment should be made, the limit on any discretionary
payment by ABAG for a qualified claim or loss or for allocated loss expenses, as the case may be.
shall be as follows:
a. With respect to all described payments (except those listed below in paragraphs
(b), (c) and (d) of this Section, payments and requests for settlement authority are to be approved
in advance by the City, with the request for authority to be communicated to the City by ABAG at
least two (2) calendar weeks in advance of the proposed payment.
As accounting advice, ABAG shall immediately notify the City of any claim
payment over $10,000.
b. With respect to the payment for medical services, ABAG will have full authority
for payment, subject to the condition that such payment is within the applicable medical fee
schedule. If the prospective payment exceeds such medical fee schedule, any such payment must
be authorized by the City.
c. With respect to temporary disability, permanent disability or any other indemnity
payments for which ABAG is under statutory obligation to pay. ABAG shall have full authority to
make such payments.
d. With respect to allocated expenses, ABAG shall have full authority to make
such payments.
e. These amounts may be changed at any time by the City upon written notice to
ABAG. It is agreed that ABAG shall have full authority and control in all matters pertaining to the
payment, processing. investigation and administration of qualified claims or losses within the limit
established by this paragraph. Failure of ABAG to settle a qualified claim or loss within such
limit, however, shall not subject ABAG to liability to any patty in the event of an adverse judgment
entered by the co~ of the settlement of such claim or loss for an amount in excess of such limit
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11. LITIGATION MANAGEMENT .
ABAG agrees to perform and provide litigation management services which shall
include, but not be limited to. the following;
a. Retain, on the City's behalf and with the approval of the City, attorneys whö
specialize in the defense of workers' compensation litigation when an employee files an
Application for Adjudication before the Workers' Compensation Appeals Boazd..
b. Inform the City immediately of all hearings scheduled before the Workers'
Compensation Appeals Boazd.
c. Cooperate fully with the City's attorney or any other attorney engaged on the
City's behalf, provide all records and medical files and provide non-legal preliminary work as the
City's counsel may request as well as provide the City with a copy of all formal reports from
defense counsel.
d. Legal expenses are to be paid by the City through a Trust Account administered
by ABAG.
e. The services to be provided by ABAG are not of a legal nature, and ABAG shall
in no event give, or be required to give, any legal opinion or provide any legal representation to the
City, nor may any communication prepared by ABAG be relied upon by the City as a legal opinion
or interpretation. ABAG shall in no event be considered as engaged in the practice of law. ABAG
may, but shall be under no duty to. recommend counsel to the City. The City at all times has full
and sole discretion to select legal representation and counsel of its own choosing. and any selection
of such representation or counsel shall be by separate agreement between the City and such
counsel.
12. GEOGRAPHIC LIMITATIONS
ABAG agrees to supervise and administer a workers' compensation program for all
employees of the City located in the State of California.
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.;.
13. QUALIFIED AND TRAINED PERSONNEL
Qualified and trained personnel directly employed and supervised by ABAG will
perform all the services required by the terms and conditions of this Agreement ABAG agrees that
each of its employees shall have an extensive background in the workers' compensation field and
will be properly trained and will use reasonable care in the performance of their duties.
Furthennore, all employees shall be provided with continuing education to ensure that they are up
to date n recent coun decisions, proposed legislation and are otherwise able to take the necessary
action that may be indicated or required to continue and maintain control of the Program.
14. CLAIMS FUND
a. To assist in the performance of ABAG's activities, the parties agree to the use of
a claims fund account (the Account) upon the terms provided in this Agreement.
b. The Account shall be established by ABAG upon the City's placing with ABAG
the amount of $ 15,000 . ABAG shall use such funds to pay claims and claims
expenses, including allocated expenses. Payments shall be made through the Account, and
deductions shall be made from the aforementioned funds in amounts equal to the claim and expense
payments made.
c. Upon notice from ABAG of the balance of the Account, evidenced by the check
register and copies of each check written during the month (if the City so desires), or upon other
notice as may be required, the City shall place additional funds with ABAG in an amount sufficient
to replenish the total funds with ABAG to equal the aforementioned amount in the above
paragraph, no later than two weeks after said notice. Notice of the balance of the Account shall be
given monthly. The parties, from time to time, may mutually agree to increase or decrease the
aforementioned amount to accurately reflect the actual payment trends from the Account
d. The Account shall be used solely for the purpose of payment of claims and
claims expenses, including allocated expenses.
e. ABAG shall control disbursement of monies from the Account.
f. ABAG shall monthly provide to the City a reconciliation of the City's funds in
relation to payments from the Account. Such reconciliation shall include: a listing of the City's
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previous month's closing balance; itemization and application of the current month's disbursements
by location, check number, claim number and payment amount, crediting all recovery payments
received, interest earned and deposits made by the City with ABAG; and a listing of the City's
closing balance. Such monthly reports shall be on a form prepared by ABAG.
15. FUNDING
The City shall at all times provide funds adequate for the payment of qualifIed claims losses
and allocated loss expenses. For this purpose, allocated loss expenses shall mean all costs,
charges or expenses of third panics incUITed by ABAG, its agents or its employees which are
properly chargeable to a qualified claim or loss, including, without limitation, coun costs, fees and
expenses of attorneys. investigators, expens and witnesses and fees for obtaining diagrams,
reports. documents and photocopies.
a. It is expressly understood that ABAG shall not be required to advance its own funds to
pay losses or allocated loss expenses hereunder, or to perform any services hereunder if the City
fails to provide adequate funds as herein set forth.
16. COMPENSATION OF ABAG
As compensation for services rendered under this Agreement, ABAG shall be
compensated in the following manner:
Cost - First Year (or proraœd if conuact commences prior to 7/1192)
$9.900
If cl,aims exceed IS lost lime cases,
$600 per addiûonal1ost-Ûtße claim
Includes takeover COSIS to David Camp Plus System
Cost - Subsequent Yean (commencing July 1993)
$7.900 (+CPI)
Increase limited to rise in the Bay Area Consumer Price Index (CPl),
but not to exceed 6%.
Training and Technical Assistance
No Charge
Optional Services
Remote Access to your fIles
See Proposal Exhibits
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17. INDEMNIFICATION
ABAG agrees to indemnify, defend and hold hannless the City with respect to any claims
asserted resulting from any errors, omissions, tons, or other negligent acts or omissions of
ABAG, its agents, Board members oremployees,including but not limited to, penalties assessed
by the State for late fIling of notices through no fault of the City; provided, however, that the
foregoing hold hannless provision shall have no force and effect and the City shall indemnify,
defend and hold hannless ABAG with respect to any such claims which are the result of the
instructions or acts of the City, its council members, elected officials, employees or agents,
including but not limited to penalties assessed by the State for late filing of notices through no fault
of ABAG, or as the result of ABAG's non-negligent fulfilling of its obligations under this
Agreement. It is' expressly understood that the obligations under this paragraph will survive any
tennination of this Agreement.
18. PENAL TIES AND FINES
For injuries occWTÏng on or after January 1, 1990, the City must submit to ABAG within
five (5) days of the date the employer gains knowledge of the injury and disability a completed
copy of the Employee's Claim for Workers' Compensation Benefits andthe Employer's First
Report of Injury (Fonn 5020). ABAG will complete the claims investigation, issue the appropriate
DIA notice and issue a check or voucher, if appropriate, within the 14-day period required by law
to avoid fines and penalties. If the City fails to provide ABAG with such infonnation within said
five (5) day period for whatever reasons and ABAG is therefore unable to
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complete the investigation and issue the appropriate notices and payments within the 14-day period
and a penalty is incurred as a result, the City will be responsible for payment or the penalty or for
prompt reimbursement to ABAG for payment of said penalty by ABAG on the City's behalf. If
ABAG is provided the notice within said five (5) day period by the City but fails to issue the
appropriate payments and notices within the 14-day period and incurs a penalty, ABAG will be
obligated to pay the penalty from its own funds and said charge will not be assessed to the City.
19. CANCELLATION
a. Notwithstanding Section I of this Agreement, this Agreement may be cancelled by either
party at any time with or without cause upon giving notice to either party at least sixty (60) days
prior to the date of cancellation.
b. Upon termination of this Agreement, the City shall be entitled, if it so requests, to have
possession of the physical files ABAG has maintained for qualified claims or losses (but not
including magnetic tapes or any computer software or other proprietary information of ABAG);
provided. however, the ABAG or its agents, employees or attorneys shall continue to be entitled, to
inspect such fIles and make copies or extracts therefrom. In addition, data developed by ABAG
prior to any such tennination of this Agreement shall be available to the City, subject to the City's
paying an additional reasonable fee for the copying of magnetic tape, this fee to be negotiated by
the parties hereto.
c. In the event of the termination of this Agreement, ABAG agrees to deliver said files to the
City, and the City agrees to maintain such claim reporting as may be required by excess insurers
under this Agreement and the laws of the state of California.
d. All notices, demands, requests or approvals which are required under this Agreement, or
which either the City or ABAG may desire to serve upon the other, shall be in writing and shall be
conclusively deemed served when delivered personally, or forty-eight (48) hours after the deposit
thereof in the United States Mail, postage prepared, registered or certified, at the addresses
hereinafter provided.
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All notices, demands, requests for approvals to the City shall be addressed as follows:
Barbara Brown, Assistant to the City Manager
City of Cupertino
10300 Torre A venue
Cupertino, CA 95014
All notices, qemands, requests or approvals to ABAG shall be addressed as follows:
Alexis Rankin Popik, Workers' Compensation Program Manager
Association of Bay Area Governments
P. O. Box 2089
Oakland, CA 94604-2089
20. CONFLICT OF INTEREST PROHIBITED
a. In accordance with Government Code Section 1090, no person who is an employee of
ABAG shall selVe as an elected officer, employee or member of the boards or commissions
designated in the City's Conflict of Interest Code.
b. In accordance with Government Code Section 1090 and the Political Reform Act,
Government Code Sections 87100 ~ ss:Q., no person who is a director, officer, partner, ttustee"
employee or consultant of ABAG shall make or participate in a decision made by the City, or any
board or commission thereof, it is is reasonably foreseeable that the decision will have a material
effect on any source of income, investment, or interest in real property of that person or ABAG.
c. Interpretation of this section shall be governed by the definitions and provisions used in
the Political Reform Act, Government Code Sections 81000 ~ KII.. and the regulations, manuals
and codes. adopted thereunder, Government Code Section 1090 and any applicable sections of the
City Charter.
21. AFFIRMATIVE ACTION
With regard to affirmative action. ABAG agrees to comply with all state and federal laws
regarding affirmative action and abide by ABAG's Resolution No. 2-86, Affirmative Action,
which is incorporated by reference herein.
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22. PROPRIETARY INTERESTS
a. Ownership of Systems - all systems created and utilized by ABAG in performance of
activities under this Agreement shall belong to, and remain as propeny of, ABAG. "Systems" as
used herein shall include, but is not limited to, computer programs, computer equipment, fonnats,
risk data record fonnats, procedures, documentation and internal reports of ABAG.
b. New Statistical Loss Control Systems - New statistical loss control systems created or
utilized by ABAG and the City during the contract shall be joint propeny of ABAG and the City.
c. Claim Files - All claim files are the property of the City and shall be returned to the City at
the end of the contract.
d Client Accessibility of Data - ABAG shall make available to the City, at the written
request of the City, the files used in the performance of this agreement The City may, at its own
expense, purchase a modem and access the files at the City's convenience.
e. Privacy of Data - ABAG will take reasonable effort to maintain the confidentiality of all
data supplied by the City and used by ABAG in its performance of this Agreement. ABAG shall
not disclose this data nor the contents of the data files without the written consent of the City.
Notwithstanding the immediately preceding sentence, the City agrees that ABAG shall have the
right to use such data for the purpose of preparing and disseminating analytical reports inclusive of
the collective City data, provided such use in no way specifically identifies the City, its operations
or expenses.
23. INDEPENDENT CONTRACTOR
ABAG shall be an independent contractor, and employees, Board members and agents of
ABAG shall in no event be considered employees of the City. No agency relationship between the
parties, except as expressly provided for herein, shall exist either as a result of the execution of this
Agreement or performance thereunder. ABAG reserves the right, in its sole discretion, to assign
performance of activitìes under this Agreement to any of its personnel and to subcontract to third
parties any part or all of ABAG's duties subject to the City's written approval, which shall not be
withheld unreasonably. Any subcontracting by ABAG shall not relieve ABAG of its obligations to
the City under this Agreement.
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24. HEADINGS
Headings herein are for the convenience of reference only and shall not be considered in any
interpretation of this Agreement
25. INSURANCE
a. ABAG shall maintain a fidelity bond in the amount of at least Five Hundred Thousand
Dollars ($SOO,OOO) per occurrence and errors and omissions insurance in the amount of at least
One Million Dollars ($1,000,000) per occurrence with companies authorized to do business in the
S tate of California.
b. All such insurance shall not be cancelled or materially reduced in coverage without at least
thirty (30) days prior written notice to the City and shall be evidenced by a certificate of insurance.
The certificate shall be subject to approval as to fonn and sufficiency by the City's attorney.
c. ABAG shall maintain a workers' compensation insurance policy evidenced by a certificate
of insurance. Such insurance shall not be cancelled without at least thirty (30) days prior written
notice to the City. This provision may be satisfied by qualified self-insurance.
26. AUDIT
ABAG shall keep complete and accurate books and records of all financial aspects of its
relationship with the City in accordance with generally accepted accounting principles. ABAG
shall pennit authorized representatives of the City to conduct a claims audit of relevant data and
, records and shall fully cooperate in such audit, provided that any such audits shall be conducted no
more ftequendy than one time per fiscal year.
27. ASSIGNMENT
Neither party to this Agreement shall assign or transfer this Agreement without the prior
written consent of the other pany.
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28. ATTORNEYS' FEES
If any action at law or in equity is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any
other relief to which it may be entitled.
29. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
30. WAIVER
The waiver by either party of a breach by the other of any provision of this Agreement shall
not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a
different provision of this Agreement.
31. SEVERABILITY
Should any part of this Agreement be declared unconstitutional, invalid, or beyond the
authority of either party to enter into or carry out, such decision shall not affect the validity or the
remainder of this Agreement, which shall continue in full force and effect; provided that the
remainder of this Agreement can, absent the excised portion, be reasonably interpreted to give
effect to the intentions of the parties.
32. AMENDMENT
This Agreement may be amended at any time but only by a writing signed by both parties.
III
/II
III
III
III
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33. ENTIRE AGREEMENT
This Agreement is entire as to the performances to be rendered under it. This Agreement
supersedes any and all other agreements, either oral or in writing, between the City and ABAG
with respect to the subject matter hereof and contains all of the covenants and agreements between
the parties with respect to such matters. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have been made to any
party, or anyone acting on behalf of any party, which are not embodied herein, and that no other
agreements, statements, or promises not contained in this Agreement shall be valid or binding.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date set forth
above.
CITY OF CUPERTINO
N~ide Mayor, City of Cupertino
~content:
City of Cupertino Legal Counsel
ATTEST:
City Clerk
ASSOCIATION OF BAY AREA
GOVERNMENTS
by: Revan A. F. Tranter, Executive Director
Approved as to legal fonn and content:
Kenneth K. Moy, ABAG Legal Counsel
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