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HomeMy WebLinkAboutC-2803 - Voluntary Emergency Preparedness OrganizationBY THE CITY COUNCIL CITY OF NEYYPOFTEA FEB 2 1990 i City Council Meeting February 26, 1990 Agenda Item No. F-3(b) TO: MAYOR PLUMMER AND MEMBER OF THE CITY COUNCIL From: Robert J. Dixon, Utilities Director SUBJECT: VOLUNTARY EMERGENCY PREPAREDNESS C-Zi03 ORGANIZATION INDEMNIFICATION AGREEMENT Recommended action: If desired, approve the Volunteer Emergency Preparedness Organization (VEPO) agreement and authorize the Mayor to sign it on behalf of the City. Background: VEPO was formed in 1983 to coordinate an emergency response by all Orange County water agencies in the event of an earthquake, flood, fire, or other regional disaster. The City has participated in VEPO on a voluntary basis since its formation. A separate radio channel is maintained to communicate during emergencies. This channel was last activated during the Newport Beach earthquake. The attached agreement has been prepared for agencies participating in VEPO. A list of the agencies comprising VEPO is attached to the agreement as "Exhibit A ". Its purpose is to indemnify and hold harmless participating agencies from any liability for injury or property damage incurred by any VEPO participant or employee in the course of participation in VEPO activities. The agreement is standard for mutual aid programs. It was reviewed by the Utilities Committee at its meeting on January 24, 1990. Respectfully submitted, t Robert J. Dixon Utilities Director Of) ORANGE COUNTY VOLUNTEER EMERGENCY PREPAREDNESS ORGANIZATION • INDEMNIFICATION AGREEMENT THIS INDEMNIFICATION AGREEMENT is entered into on the day of by and between Municipal water District of Orange County (MWDOC), Coastal Municipal Water District (Coastal), Orange County Water District (OCWD), and the undersigned participants in the Orange County Volunteer Emergency Preparedness Organization (VEPO) , (All parties are collectively referred to as "VEPO Participants ".) , pursuant to California Government Code 5895.4. WHEREAS, VEPO was formed in 1983 by the Orange County water community for the purposes of coordinating an emergency response ty all Orange County water agencies in the event of an earthquake, flood, fire, or other regional disaster; and WHEREAS, to accomplish this purpose each of the VEPO Participants has or will contribute the use of certain of its facilities and equipment and the services of certain of its personnel, both in preparation for an emergency and in response to any emergency situation pursuant to an Emergency Response Plan prepared by VEPO; and WHEREAS, the VEPO Participants desire to indemnify and hold each other harmless from any liability for injury or property damage incurred by any VEPO Participant or its employees, officers or agents or to third parties in the course of or as a result of their participation in VEPO activities; 3 A NOW, THEREFORE, in consideration of the mutual promises and i covenants herein, the VEPO Participants agree as follows: 1. VOLUNTARY PARTICIPATION Neither this Agreement, nor the VEPO Emergency Response Plan creates, or shall be deemed to create, any contractual or implied duty on the part of any signatory to provide, or attempt to provide, any real property, structures, facilities, tools, vehicles, equipment, machinery, materials, personal property or personnel to any other VEPO Participant or third party. No signatory shall be liable for its failure to provide, or attempt to provide, assistance to any other party. It is the intent of the parties that assistance under the VEPO Emergency Response Plan be provided on a strictly voluntary basis, and that no joint venture be created. 2. LIABILITY FOR JOINING Notwithstanding Government Code 589 2, it, is the intent of the signatories to this Agreement that there shall be no liability assumed by, or imposed upon, any signatory solely by reason of such signatory' executing the VEPO Emergency Response Plan or this Agreement. In the event of any liability, claim, demand, action or proceeding of whatever kind or nature arising out of the rendering of assistance through VEPO, the parties involved in rendering or receiving assistance through VEPO agree to indemnify and hold harmless, to the fullest extent allowed by law, each signatory to the VEPO Emergency Response Plan whose only involvement, in the transaction or occurrence which is the 2 3 �: subject of such claim, action, demand or other proceeding, is the execution and approval of the VEPO Emergency Response Plan and this Agreement. Such indemnification shall include indemnity for all claims, demands, liability, damages and costs, including reasonable attorneys' fees and other costs of defense, for personal injury and property damage and is not waived as a result of the uninvolved party's negligent or willful failure to respond in accordance with the VEPO Emergency Response Plan. 3. COVENANT NOT TO SUE OTHER PARTICIPANTS Each VEPO Participant agrees to assume the entire risk of loss and to indemnify and hold each of the remaining VEPO Participants harmless from any and all claims, liability, or damages for personal injury or property damage incurred by that VEPO Participant or its agents, employees or officers as a result of any defect or dangerous condition of any real property, structures, facilities, tools, vehicles, equipment, machinery, materials, personal property or other items supplied or contributed for the use of VEPO by itself or any other VEPO Participant. The right to indemnification shall not be barred by the passive negligence of the VEPO Participant which supplies or contributes the real or personal property for use by VEPO, including, but not limited to, the failure to warn of or take action to correct any defect or dangerous condition if the defect or dangerous condition was not the result of active negligence on the part of that VERO Participant or its agents, employees or officers. 3 4. COVENANT TO INDEMNIFY OTHER PARTICIPANTS AGAINST CLAIMS BY THIRD PARTIES Each VEPO Participant agrees to assume the entire risk of loss and to indemnify and hold each of the remaining VEPO Participants harmless from any and all claims, demands, liabilities, costs and damages (including reasonable attorneys' fees and costs of defense) for personal injury or property damage incurred by any third person, or. entity, not a party to this Agreement as a result of any defect or dangerous condition of any real property, structures, facilities, tools, vehicles, equipment, machinery, materials, personal property or other items, Supplied or contributed for the use of VEPO by that VEPO Participant. 5. COVENANT TO INDEMNIFY OTHER PARTICIPANTS FOR ACTS OF OFFICERS AND EMPLOYEES Except as provided in Paragraph 6 hereof, while carrying out their functions and activities under the Emergency Response Plan, each agent, employee and officer of a VEPO Participant shall continue to act within the scope and duties of his employment or relationship with that VEPO Participant and shall not be deemed to be, or act in the capacity of, an agent, employee or officer of VEPO or of any of the remaining VEPO Participants. Except as provided in Paragraph 6 hereof, each VEPO Participant agrees to assume the entire risk of loss and to indemnify and hold the remaining VEPO Participants harmless from any and all claims., liabilities or damages for personal injury incurred by any VEPO Participant, its officers, employees or agents or any third 4 S person, not a party to this Agreement as a result of the active negligence or intentional, wilful or malicious acts of that VEPO Participant's officers, employees, or agents while engaged in carrying out their duties, functions or activities pursuant to the VEPO Emergency Response Plan. 6. EMPLOYEE CLAIMS Any employee, officer or agent of a VEPO Participant who is acting under the direction, supervision or control of an employee, officer or agent of another VEPO Participant pursuant to the VEPO Emergency Response Plan shall, except as otherwise provided under Labor Code 553600.2 through 3600.6, be considered to be the special employee of the VEPO Participant which is directing, supervising or controlling the activity and the general employee of his or her regular employer while engaged in carrying out duties, functions or activities pursuant to the VEPO Emergency Response Plan. The special employer, if any, and general employer, shall indemnify and hold all other VEPO Participants harmless from any and all claims, liabilities or damages for personal injury incurred by such officers, employees or agents while engaged in carrying out their duties, functions or activities pursuant to the VEPO Emergency Response Plan, notwithstanding any passive negligence of other VEPO Participants. It is the intent of the parties that personnel made available through VEPO be insured against loss or injury through the Workers Compensation insurance of those who controlled and directed their work through VEPO. 5 b `: 7. COVENANT TO MAINTAIN INSURANCE OR SELF - INSURE Each VEPO Participant agrees to obtain and maintain insurance policies naming the remaining VEPO Participants as additional insureds or participate in a self- insurance pool, or maintain a reasonably adequate self - insurance fund as appropriate for general liability, workers' compensation, automobile and property owners' liability which will cover all activities, personnel, vehicles, equipment, real property, tools, machinery i and personal property of that VEPO Participant while engaged in the VEPO Program. The ability to respond in damages shall be in the following minimum amounts: a. General Liability (including bodily injury): $1,000,000 per occurrence. b. Workers' Compensation: $200,000 per occurrence C. Automobile Coverage: Compliance with Vehicle Code Section 16430 for vehicles owned or leased by the VEPO Participant. d. Property Owner's Liability, if applicable: $1,000,000 per occurrence 8. ARBITRATION The parties to this Agreement acknowledge that in the event of a claim for personal injury or property damage arising out of a VEPO activity, it would probably be in the best interests of the VEPO Participants and their insurers to submit the issue, of which VEPO Participant or Participants has the ultimate duty to indemnify the others, to binding arbitration and that the party or parties determined to be ultimately responsible conduct the N 7 ,. defense of the claim on behalf of the other VEPO Participant defendants in the event of a lawsuit. It is the intent of the parties to encourage the use of binding arbitration to effectuate the terms of this Agreement whenever possible. Therefore, each VEPO Participant agrees that, as soon as possible after receiving notice of any claim arising out of a VEPO activity, that VEPO Participant will notify all VEPo Participants in writing of the existence of the claim or potential claim. Upon receipt of notice of a claim or potential claim arising out of a VEPO activity from a claimant or another VEPO Participant, each VEPO Participant, which is not self- insured, will notify its insurance carrier of the existence of the claim and of the terms of this Agreement. If the insurance carriers of VEPO Participants and self- insured VEPO Participants agree to submit the issue of the obligation to indemnify under this Agreement to binding arbitration, the parties hereto agree not to object to arbitration. Nothing herein shall be construed as a consent or undertaking on the part of any insured VEPO Participant to pay all or any portion of the costs of arbitration or other costs which it would not otherwise be obligated to pay under its insurance policy in the absence of this Agreement. 9. EXECUTION IN COUNTERPARTS This Agreement shall be executed by each VEPO Participant in duplicate originals, each of which shall be considered an original Agreement. This Agreement shall not become effective as 7 a � to any VEPO Participant until all VEPO Participants have executed this Agreement and have delivered an executed original to the VEPO Coordinator who will provide each VEPO Participant with a photocopy of all executed signature pages and a list of all Participants. Prior to the admission of any additional agencies to the VEPO Program, such agency shall be required to execute this Agreement and comply with this provision. 10. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of the original Participants and all parties who may subsequently enter into this Agreement, and their officers, agents, employees, successors and assigns. The names of the VEPO Participants, all of which are signatories to this Agreement, are and shall be set forth on the list attached hereto as Exhibit "A" and incorporated herein by reference. Additional Participants may be added to the list from time to time upon execution of this Agreement and compliance with Paragraph 5 hereof. Such additions shall automatically constitute an amendment of this Agreement without further action by existing Participants and shall not void or invalidate this Agreement. 11. MARS PROGRAM It is the understanding and intention of the VEPO Participants that the VEPO program will be coordinated with the MARS program established by Metropolitan Water District of Southern California and that the terms and conditions hereof shall apply with equal force and effect to activities performed under the MARS program. i 8 12. CAPTIONS The Captions heading the Agreement are for convenience only limit, expand, or define the paragraphs. IN WITNESS WHEREOF, each of t this instrument to be executed official evidencing the consent of DATED: various paragraphs of this and shall not be considered to contents of the respective ae VEPO Participants has caused by its authorized agent or the legislative body hereto. MUNICIPAL WATER DISTRICT OF ORANGE COUNTY (MWDOC) ATTEST: By DATED: ATTEST: %0 9 kM- 0 • VEPO PARTICIPANTS This list constitutes a complete list of VEPO Participants. Municipal Water District of Orange County Coastal Municipal Water District Orange County Water District Capistrano Valley Water District City of Anaheim City of Buena Park City of Brea City of Fountain Valley City of Fullerton City of Garden Grove City of Huntington Beach City of La Habra City of La Palma City of Newport Beach City of Orange City of Santa Ana City of Seal Beach City of Westminster Fast Orange County Water District El Toro Water District Irvine Ranch Water District Laguna Beach County Water District Los Alisos Water District Mesa Consolidated Water District Moulton Niguel Water District Trabuco Canyon Water District Santa Margarita Water District Santiago County Water District Serrano Irrigation District Southern California Water Company South Coast County Water District Tri- Cities Municipal Water District Yorba Linda Water District EXHIBIT "A"