POLLUTION�
LIABILITY COVERAGE
FOR
THE
PURMS JOINT SELF-INSURANCE AGREEMENT
Amended
and Restated as of December 7, 2001
Overview
of Coverages for PURMS Risk Pools
The Coverages Sections of the SIA
set forth the Insuring Agreements, Exclusions, and other terms and conditions
which comprise the Coverages provided by the Fund for the Members of its Risk
Pools and, as applicable, their Employees under the SIA.�
The current Liability Coverage
provided by the Fund for Members of the Liability Pool includes:� Commercial General Liability (SIA � III,
�CGL�); Public Officials & Entity Liability (SIA � IV, �PO&E�);
Automobile Liability (SIA � V); and Pollution Liability (� VI). The CGL
Coverage was originally adopted on December 20, 1976. The PO&E, Automobile and Pollution Liability Coverages
were first adopted effective March 30, 1995.
The PO&E Coverage was unanimously re-adopted by the Members on December 7, 2001.
The current Property Coverage
provided by the Fund for Members of the Property Pool includes:� General Property Coverage (SIA � X) and Auto
Physical Damage Coverage (SIA � XI). Both of these Property Coverages were
originally adopted effective February 27, 1997.
Members of the Property Pool may
participate in either or both Property Coverages (SIA � X and/or � XI).� Members of the Liability Pool must
participate in all Liability Coverages provided by the Fund (SIA � III - VI).
The current Health & Welfare
Coverage provided by the Fund for the Members of the H&W Pool is set forth
in � XIV. The H&W Coverage was originally adopted on March 16, 2000, effective April 1, 2000,
and was amended and restated and unanimously re-adopted by the Members as of December 7, 2001.
All of the Coverages referenced
above were re-adopted unanimously by the Members of the Fund effective December 7, 2001, the same date the Interlocal Agreement was amended and
restated.� These Coverages, as amended
from time to time pursuant to � I, � 5.2, are specifically incorporated into
the Interlocal Agreement and shall be deemed a part of that Agreement as if
fully set forth therein.
POLLUTION LIABILITY COVERAGE
1.
Definitions for Pollution Liability Coverage.� The Definitions
set forth in the "Definitions" Section of the SIA (see, � II)
are applicable to the interpretation of the Coverage provided by this Pollution
Liability Coverage Section, except as may be modified specifically or by
implication by the definitions set forth below which are specific to the
Pollution Liability Coverage contained in this � VI.�
1.1
Cleanup Costs (or Cleanup)� --�
shall mean the portion of Remediation Costs that relate to treating,
incinerating, neutralizing, removing or otherwise cleaning up or disposing of
Pollution (as distinguished from Containment Costs).
1.2
Containment Costs (or Containment)� -- shall mean the
costs of designing, building, installing, maintaining and monitoring a system
for containing a Pollution Release and preventing further migration of the
Pollution.� In the context of a
Remediation Action or Pollution Claim, "Containment Costs" shall be
such actual costs of containing the Pollution, whether on a Member's property
or Third Party Property, as may be imposed upon or agreed to by the Member with
the Environmental Enforcement Agency, subject to the Liability Coverage
Limit.� In the context of a Claim by a
Member for Property Damage to the Member's Owned Property resulting from a
Pollution Release that occurred on the Owned Property, "Containment
Costs" shall mean reasonable, or a reasonable estimate of, Containment
Costs to prevent the migration of Pollution to Third Party Property or to
prevent further Environmental Damage to such Third Party Property.
1.3
Contribution� --� shall mean the
legal obligation to pay a proportionate share of a whole liability as one of
several joint tort-feasors, joint debtors or
otherwise.
1.4
Emergency Response Costs --
shall mean the reasonable costs incurred by or on behalf of a Member, including
reasonable wages and overhead allocations for a Members' use of its own
Employees and/or equipment (as provided in the Operational Rules � VII,
� 7.1), in taking emergency measures to contain a Pollution Release and
prevent it from imminently spreading to or causing further Environmental Damage
to Third Party Property.
1.5
Environmental Damage� -- generally, shall mean the injurious presence of Pollution in
or upon land, the atmosphere, or any water course or body of water as a result
of a Pollution Release.� In the context
of a Remediation Action by an Environmental Enforcement Agency, to constitute
"Environmental Damage," the Pollution must rise to the threshold
level authorizing an Environmental Enforcement Agency under the applicable law
to take any Remediation Action or resulting in such Agency taking such Action
against a Member for Remediation Costs.�
In all other contexts, "Environmental Damage" shall mean a
Pollution Release that results in Personal Injury or Property Damage which may
or in fact does give rise to a Pollution Claim.
1.6
Environmental Enforcement Agency� --� shall mean any agency of any state or the
federal government having jurisdiction over alleged Environmental Damage.
1.7
Imminent Threat� --� shall mean the
situation where it is probable that a Pollution Release on a Member's Owned
Property will cause Environmental Damage to Third Party Property unless the
Member takes immediate emergency measures to contain the Pollution.
1.8
Imminent Repollution� -- shall mean the situation where, without certain
Remediation measures for Pollution on a Member's Owned Property, the Pollution
from the original Pollution Release would migrate to and/or otherwise
imminently and in the natural course cause further Environmental Damage to
Third Party Property after Remediation of the Third Party Property.
1.9
"Necessarily Related" Remediation Costs� --� shall mean the Remediation Costs Covered by
the Fund under � VI, � 3.1.4 in the situation where some Remediation of the
Pollution on the Member's Owned Property is necessarily required in order to
fully Remediate the Environmental Damage to Third Party Property.
1.10
Occurrence or "Pollution Occurrence" -- In addition to the meaning of "Occurrence" in
� II, in this Pollution Coverage Section, "Occurrence" or
"Pollution Occurrence" shall also mean a Pollution Release during the
Coverage Period that results in Environmental Damage.
1.11
Owned Property� --�
shall mean any real or personal property that falls within the terms of
the Owned Property Exclusion contained in � III, � 3.14 of the CGL Coverage. (See
also, Pollution Liability Coverage, � VI, � 3.1.1).
1.12
Owned Property Exclusion� -�
shall mean � III, � 3.14 which generally excludes from CGL Coverage
Claims for damage to property owned, occupied, rented to or controlled by a
Member.� (See also,
Pollution Liability Coverage, � VI, � 3.1.1).
1.13
Pollution� --� shall mean 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.
1.14
Pollution Claim� --� shall mean any
Claim for Damages or Contribution asserted against a Member or Employee by any
Third Party for Personal Injury or Property Damage arising out of a Pollution
Release.� Depending upon the context, the
term "Pollution Claim" may also include a "Remediation
Action."
1.15
Pollution Release --� shall mean the emission, discharge, release
or escape of Pollution, whether sudden and accidental or gradual over time,
into or upon any person, thing or place, including the land, the atmosphere,
any man-made structure and any above or below ground watercourse or body of
water, provided that such emission discharge release or escape results in
Environmental Damage.� The entirety of
any such Release shall be deemed to be a single Pollution Occurrence.
1.16
Potentially Responsible Party� --�
shall mean any Third Parties, and any Members of the Liability Pool,
that are potentially liable under applicable law to pay for or Contribute to
the Remediation Costs for a Pollution Release imposed by or agreed to in a
Remediation Action or as a result of a Pollution Claim.
1.17
Remediation� -- shall mean the Containment and/or Cleanup of Pollution
that has caused Environmental Damage. "Remediation" shall also refer
to the same activities if performed on a Member's Owned Property.
1.18
Remediation Action� --� shall mean any
formal notice by any Environmental Enforcement Agency to any Member alleging
that such Member is or may be responsible for all or a portion of any
Remediation Costs for Environmental Damage, and shall include any subsequent
legal proceedings relating thereto.
1.19
Remediation Costs� --�
shall mean such Cleanup Costs and/or Containment Costs, and any other
related costs, as required or imposed by an Environmental Enforcement Agency or
a court, or by agreement among Potentially Responsible Parties (approved by the
Fund), or as result of a Pollution Claim, relating to or arising out of
Environmental Damage.
1.20
"Repollution Avoidance" Remediation Costs� --� shall mean the Remediation Costs Covered by
the Fund under � VI, � 3.1.5 in the situation where some Remediation of the
Pollution on the Member's Owned Property is necessary to avoid Imminent Repollution of Third Party Property.
1.21
Third Party Property� --�
shall mean any real or personal property that does not fall within the
terms of the Owned Property Exclusion contained in � III, � 3.14 of the CGL
Coverage (see, also, � VI, � 3.1.1).� "Third Party Property" shall
include property which by State Constitution or statute belongs to the State or
the people of the State.
2.
Insuring Agreement and Conditions for Pollution Liability Coverage.� Under its
Pollution Liability ("Pollution") Coverage, the Fund provides the
following:
2.1
Incorporation of CGL Coverage Insuring Agreements and Conditions for
Pollution Liability Coverage.
Coverage for any Pollution Claim, and for any Remediation Action, shall be
governed by the Insuring Agreements and Conditions, to the extent applicable,
in the CGL Coverage set forth in � III, � 2.1 (re Coverage for Occurrences); �
2.2 (re Liability Coverage Limit); � 2.3 (re Deductible); � 2.4 (re Coverage
Qualifications); �� 2.5 and 2.6 (re PreApproval
Requirements); � 2.7 (re Other Insurance and Third party Indemnifications); �
2.8 (re Claims Among Members); and � 2.9 (re Board Establishing Number of
Occurrences), which are hereby incorporated into this Pollution Liability
Coverage Section by this reference, as modified specifically or by implication
by the terms of this Pollution Liability Coverage Section.
2.2
Coverage Conditions Specific to Pollution Liability Coverage.
2.2.1
Determination of Amount of Remediation Costs Covered
by Fund.� For purposes
of this Pollution Liability Coverage, the Damages the Fund will pay under its
CGL Coverage, � III, � 2.1, include the actual Remediation Costs a Member or
Employee becomes legally obligated to pay because of a Pollution Occurrence,
subject to the Liability Coverage Limit. The amount of Damages the Fund will
pay under the Pollution Liability Coverage for "Necessarily Related"
Remediation Costs (� VI, � 3.1.5) or "Repollution
Avoidance" Remediation Costs (� VI, � 3.1.6) toward Remediation of a
Member's Owned Property is the lesser of the Cleanup Costs or the Containment
Costs, regardless of the nature or cost of the Remediation measures imposed by
an Environmental Enforcement Agency, or agreed to by the Member with other
Potentially Responsible Parties, for the Remediation of the Member's Owned
Property, and subject to the Liability Coverage Limit.�
2.2.2
Revocation of Pollution Liability Coverage for Member's Lack of Diligence
in Discovering or Remediating a Pollution Release on
Member's Owned Property.� The Fund's
obligation to provide Pollution Coverage for Pollution Claims under � 2.1 or ��
3.1.3 through 3.1.6 shall be subject to the following condition subsequent: any
Coverage for any Pollution Claims arising from the Pollution Release may be
revoked by the Fund if the Member knew or in the exercise of reasonable care
should have known of the Pollution Release in sufficient time for it to have
taken reasonable measures to prevent the Pollution from becoming an Imminent
Threat or causing Environmental Damage to Third Party Property, and failed to
take or unreasonably delayed in taking those measures; provided, however, that
any such revocation of Coverage shall not apply to the Fund's obligation to
reimburse a Member for its Emergency Response Costs to contain an Imminent
Threat of migration of the Pollution from Owned Property to Third Party
Property under � 3.1.4, except to the extent the Member's lack of diligence in
discovering the Pollution Release or delay in taking measures to prevent such
migration materially increased the amount of such Emergency Response Costs.
2.2.3
Coverage Re
Property Environmentally Damaged at the Time Acquired by a Member.� The Fund
will not pay any Remediation Costs imposed upon a Member as a result of a
Remediation Action or a Pollution Claim relating to a Pollution Release that
has already occurred or Environmental Damage that already existed in or on real
or personal property at the time such property was acquired by the Member
unless the Member, before committing to acquire the property, obtained a
reasonable environmental inspection of the property which failed to reveal the
existence of the Pollution Release or Environmental Damage.
3.
Exclusions for Pollution Liability Coverage. The Exclusions set forth in � III, � 3 of�� the CGL Coverage shall apply to this Pollution
Liability Coverage; provided, however, that the Owned Property Exclusion
contained in � III, � 3.14 shall be replaced with the Pollution Liability
Coverage and subject to the Exclusions set forth in � 3.1 below.
3.1
Effect of the "Owned Property Exclusion" under the Pollution
Liability Coverage for Environmental Damage to Third Party Property Resulting
from a Pollution Release on a Member's Owned Property.
3.1.1
Terms of "Owned Property Exclusion".� Under � III, � 3.14, incorporated herein, the
Fund excludes from its CGL Coverage, and therefore its Pollution Liability
Coverage, any Claim for damage to or loss of:
(a)������ Property owned or occupied by, or being
used by or rented to the Member against which the Claim is asserted, or against
whose Employee the Claim is asserted; or
(b)������ Property occupied by, rented to or being
used by an Employee acting within the scope of his or her employment, or
property owned by the Employee while being used within the scope of his or her
employment;
(c)������ Property in the care, custody or control
of the Member or Employee or as to which the Member or Employee is for any
purpose exercising physical control.
3.1.2
"Owned
Property Exclusion" Does Not Apply to Property Damage to Third Party
Property. Property Damage to
property that does not fall within subparagraphs (a), (b) and
(c) of the Owned Property Exclusion above shall be deemed to be Property
Damage to "Third Party Property."�
Third Party Property shall include property which by State Constitution
or statute belongs to the State or the people of the State.� The Owned Property Exclusion shall not apply
to Pollution Liability Coverage for Property Damage to Third Party Property.
3.1.3
"Basic
Coverage" for Pollution Release on Owned Property Which Causes Property
Damage to Third Party Property.� When a Pollution Release in or on a Member's
Owned Property causes Environmental Damage to Third Party Property, the Fund
will Cover, subject to the Liability Coverage Limit: the costs of investigating
and testing for the existence and extent of Environmental Damage to Third Party
Property; the Remediation Costs the Member becomes legally obligated to pay for
the Environmental Damage to the Third Party Property; and, the cost of any
mandated subsequent monitoring of Third Party Property; provided, however, the
foregoing Coverage shall be revoked if the Member failed to exercise due
diligence in discovering or remediating the Pollution
Release, as provided in � 2.2.2.� Except
as may be provided otherwise in �� 3.1.4 through 3.1.6 below and the
Operational Rules, the Fund will not Cover: the costs of investigating and
testing regarding the existence or extent of Environmental Damage to the
Member's Owned Property; the cost of Remediating the
Owned Property; or, the cost of subsequent monitoring of the Owned Property.
3.1.4
Coverage for
Emergency Response Costs Where Pollution is "Imminent Threat" to
Third Party Property.� When, in the exercise of reasonable care, a
Member discovers a Pollution Release that, at the time of discovery,
constitutes an Imminent Threat or is continuing to cause Environmental Damage
to Third Party Property, the Fund will Cover, subject
to the Liability Coverage Limit and � 2.2.2, the Member's reasonably necessary
Emergency Response Costs.�
3.1.5
"Necessarily
Related" Remediation Costs.� Where a Pollution Release in or on a Member's
Owned Property has already caused Environmental Damage to Third Party Property
at the time the Member, in the exercise of reasonable care, discovers the
Pollution Release, and where Remediation of all or a portion of the Pollution
on the Owned Property is necessary to effectuate Remediation of the Third Party
Property, the Fund will Cover, subject to the Liability Coverage Limit, �
2.2.2� and the applicable provisions of
the Operational Rules, the reasonable Containment Costs or Cleanup Costs
thereof, whichever is less, regardless of the nature or actual cost of the
Remediation measures actually required of the Member as a result of any
Remediation Action or Pollution Claim. (See, � 2.2.1 and
Operational Rules).
3.1.6
"Repollution Avoidance" Remediation Costs.� Where a
Pollution Release in or on a Member's Owned Property has already caused
Environmental Damage to Third Party Property at the time the Member, in the
exercise of reasonable care, discovers the Pollution Release, and where
Remediation of all or a portion of the Owned Property is necessary to prevent
Imminent Repollution of the Third Party Property, the
Fund will Cover, subject to the Liability Coverage Limit, � 2.2.2 and the
applicable provisions of the Operational Rules, the reasonable Containment
Costs or Cleanup Costs thereof, whichever is less, regardless of the nature or
actual cost of the Remediation measures actually required of the Member as a
result of any Remediation Action or Pollution Claim.� (See, � 2.2.1 and Operational Rules).