HomeMy WebLinkAboutMINUTES - 04141992 - 1.62 TO: BOARD OF SUPERVISORS F L Contra
Costa
FROM: Phil Batchelor, County Administrator
off:- _�.,. •�s
Countay:•ale 4
DATE: April 9, 1992 's'.,_C`;�
SUBJECT: ADOPTION OF A POLICY STATEMENT ON HOLD HARMLESS PROVISIONS OF
CONTRACTS BETWEEN THE COUNTY AND CITIES
SPECIFIC REOUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
Adopt the attached policy statement on hold harmless provisions in
contracts between the County and cities in the County in an effort
to improve relations between the County and cities and avoid the
confrontation which has marked negotiations between the County and
cities at times .
BACKGROUND:
For the past several months the City/County Relations Committee has
been working on a policy statement on hold harmless provisions in'
contracts between the County and one or more cities in the County.
At times, efforts to protect one' s own jurisdiction have led to
confrontations which have damaged relations between local agencies .
Staff from the County and cities have drafted a policy statement
which attempts to set a tone for future discussions which will lead
to improved relations among staff in both County and city agencies .
The- draft policy statement has been reviewed by Risk Management
staff and attorneys for both the County and cities and has been
revised as a result of those reviews . The final product, which has
been approved by both the County and city representatives to the
City/County Relations Committee, is clearly a compromise, but one
which appears to meet the needs of all involved parties .
The attached policy has been forwarded to both the Board of
Supervisors and the Contra Costa Mayors ' Conference for their
respective consideration. It is recommended that the Board of
Supervisors approve the attached policy and refer it to the County
Counsel, Risk Manager and appropriate department heads for their
use in setting the tone for negotiations with cities in this
County.
CONTINUED ON ATTACHMENT: x YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON April APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS
1 HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
CC: ATTESTED /
Please See Page 2 . Vol
PHIL BA CHELOR,CLERK OF THE BOARD OF
SUPERVISORS AND COUNTY ADMINISTRATOR
BY ,DEPUTY
M382 (10/88)
-2-
cc: County Administrator
County Counsel
Risk Manager
Public Works Director
Director of General Services
Sheriff-Coroner
County Librarian
Director of Animal Services
Director of Building Inspection
JV
26 orindo wcy orindo colifornio 94563 415 •254-3900
March 5, 1992 RECEO���
91 ;2
Sunne McPeak, Chair JC!LfK sOaContra Costa CountyRp pP
SUPE
Board of Supervisors C�NTRACOSTq 0�SORSI
651 Pine Street, 11th Floor
Martinez, CA 94553
Dear Chairperson McPeak:
As you are aware, the City/County Relations Committee has
undertaken a review of potential projects that could benefit from
joint cooperation between and among agencies, particularly in the
public works area. We found that on occasion, in an effort to
protect our agencies from potential litigation, proposed hold
harmless clauses were preventing agencies from entering into
contracts which would otherwise result in more effective delivery
of services to the public. We also found that in the absence of
policy guidance from elected officials, our respective attorneys
would continue to propose language to protect us as clients, from
potential litigation, above all other considerations. Unless we
indicate otherwise, that is their job.
Enclosed is a policy statement which we believe will provide
guidance to the City Attorneys and County Counsel, which while
maintaining respect for the need to protect our agencies, will also
place this matter in balance with other methods of managing our
risks. We believe that this balance is in the public's interest.
The City Attorneys and County Counsel have reviewed this document
and do not have objection to it.
The City/County Relations Committee has approved the enclosed
policy statement and recommends it for adoption by the Board of
Supervisors and the Mayors' Conference. We hope that the board of
Supervisors will adopt this policy, and that you will agree that
this will contribute to our pursuit of cooperation in public
service.
Sinc rely,
Richard G ggie, Chair
City/County Relations Committee
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( Printed on Recycled Poper
STATEMENT ON CITY/COUNTY HOLD HARMLESS POLICY
Adopted by the City/County Relations Committee
February 20, 1992
There are several types of contractual or leasing relationships in
which cities and the county may find themselves. In some cases, it
may clearly be appropriate for one party to assume the total
liability for the actions of both parties. In other cases, it may
be appropriate for the other party to assume the total liability
for the actions of both parties. In most cases, ,however, it is
appropriate to share the potential liability between the parties,
based on the circumstances peculiar to each situation, the
potential risks faced by each party, the control each party has
over potential risks and the extent to which the parties are able
and willing to negotiate their respective liability for their own
and the other party's actions.
As an underlying principle which should control all such
negotiations, cities and the county believe that the potential
efficiencies which can be derived from sharing equipment,
facilities, services and supplies with each other are of paramount
importance. Therefore, the cities and the county pledge to avoid
allowing the question of the appropriate sharing and assignment of
liability in a contract or lease to become a barrier to the cost
savings and efficiencies which can be achieved through such a
contract or lease arrangement, while achieved through such a
contract or lease arrangement, while recognizing that the cost of
the risk of liability (the cost of insurance) and the cost of
realized liability have the potential to outweigh any cost savings
or efficiencies which might be realized.
As a corollary to the above principle, there is a recognition on
the part of the cities and the county that the attitude toward each
other displayed by the elected policymakers can and should
influence the tone of the negotiations among staff. An attitude of
cooperation, a commitment to achieving efficiencies which save both
parties money, a dedication to making a contract or lease work, and
a willingness on the part of both parties to compromise in order to
reach an agreement which is mutually beneficial to both parties
will be essential.
The following are examples of the above principles and of the
importance of the attitude of the elected policymakers:
1. One party (for example the county) is actively providing a
program on behalf of the other party (for example a city) . In
this case, it is appropriate for the active partner (county)
to hold the passive partner (a city) totally harmless. For
example, the Sheriff provides police services to four cities
in the county via contract. The county holds the cities
harmless and assumes liability for the actions of its
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officers. The county charges the cities to cover that
lability exposure.
2. One party (for example a city) chooses to lease vacant land
from the other party (the county) and operate a recreation
program on the land. Despite the fact that the land belongs
to the county, the city is effectively in charge of the
program which is likely to result in any findings of
liability. Thus the city should appropriately hold the county
totally harmless for all actions of either party.
3 . One party (for example the county) owns a specialized piece of
equipment which is used only rarely. Rather than each city
having to purchase similar equipment, the county agrees to
lease it to any city having a need for the equipment,
providing the city provides the necessary staff to drive and
operate the equipment. The county must be willing to accept
responsibility for any liability resulting from the condition
of the equipment at the time it is turned over to a city. The
city, in turn, must be responsible for any liability resulting
from the actions of its staff in moving and operating the
equipment.
4 . One party (for example a city) owns a library building, while
the other party (the county) provides all of the staff to
operate the library and maintain the building on a day-to-day
basis. Liability must be shared in such a way that the city
is responsible for the basic condition of the building (for
instance, whether it has been retrofitted in order to make it
more nearly earthquake-proof) . The county, in turn, must be
responsible for the actions of its employees and for being
aware of day-to-day maintenance issues. For example, if a
patron slips and falls on a carpet which was not properly
secured, one would assume the county would be responsible
since the staff knew or should have known of the problem and
done something about it. If, however, such an issue was the
city's responsibility in the lease agreement and the county
can show that they advised the city of the problem and the
city failed to take action within a reasonable period of time,
then it would seem the city would be responsible.
5. Similar to example #4 would be a situation where one party (a
city) owns a traffic signal, but contracts with the other
art the county) to maintain the signal. It is appropria e
for the city to assume total liability i he co t does not
char a to cover the liability exposure. It would be
appropriate for the coun y o agree o responsibility
for any liability resulting from its faulty maintenance of the
traffic signal (particularly if in the amount the county
charges the city for maintenance there is a clearly identified
amount which is intended to cover damages resulting from the
county's maintenance of the city's signal) .
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Other observations:
* Where two parties are jointly involved in almost any project,
it is probably not possible to totally insulate either party
from being sued by an aggrieved party, regardless of what a
contract between the parties says in regard to the respective
liability of the parties.
* To reduce litigation between the parties and provide a united,
coordinated and more effective defense on claims and lawsuits,
the parties will continue the Interpublic Entity Litigation
Cost Containment Program (see attachment for further details) .
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Attachment
Contra Costa County, California:
Interpublic Entity Litigation
Cost Containment Program
Problem
here is a need to reduce litigation between public entities named as defendants in tort
lawsuits.When two or more public entities aresucd by a third party,sometimes those dcfen-
dant public entities litigate against each other. This results in claims and counter-claims
between entities,increases their legal defense and claims costs,consumes large;amounts of
staff time and may result in the plaintiff playing the entities against each other.
Description
Four public entities in Contra Costa County, Calif.,— the county, the cities in the Contra
Costa County Cities Municipal Risk Management and Insurance Authority, the Central .
Contra Costa Sanitary District and the East Bay Municipal Utility District—initiated it
coordinated program for handling tort claims filed against one or more of the entities.
1.When it third-party tort claim is made against one of the public entities or an incident
is disclosed that may lead to a claim,the initially involved entity determines if other entities
may be included in a resulting legal action. Notices and the results of investigations are
shared with those entities.
2.The involved entities informally attempt to reach consensus on the liability issues.'fhis
includes an assessment of the overall extent of public entity liability and the rclativc decree
of individual entity responsibility, if any.
3.If consensus is reached,the entities develop a joint defense strategy,a cost-sharing ar-
rangement for defense costs and agree to apportionment of losses if awarded.
4.In the event consensus cannot be reached,the entities consider utilization of a third-
party mediation procedure to resolve disputed issues.
5.The entities will not file cross-complaints against each other until after the mediation
procedure has been considered or utilized.
results
This pro�;rant creates it new spirit of cooperation between the public entities; provides it
united,coordinated and more effective defense on claims and la%%suits,and results in dollar
savinos of more than 5200,000 per year for the involved public entities and the citizens of
Contra Cost,-! Court'.
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