If a facility use agreement contains a clause that compromises The Regents' assets by leaving open the potential for lawsuits from any and all parties, the County Director or Regional Director need to review the language and negotiate changes to the contract language.
The County Director or Regional Director may negotiate a substitute Hold Harmless agreement. The preferred clauses to use are contained in Attachment A. The University and the other party agree to take responsibility for their own negligence. These are referred to as reciprocal clauses. Each party also supplies an insurance certificate to back up the language in the agreement. The insurance certificate is only evidence of financial ability to support the indemnification language of an agreement.
The County Director or Regional Director may negotiate a substitute Hold Harmless agreement using the alternate clause or Attachment B. This clause is acceptable to the University. We agree to be responsible for only our own negligent acts or omissions. The University would supply an insurance certificate backing up the language in the clause. The other party would not be supplying a certificate.
Remember, proportionality is the key to UC's responsibility.
If the County Director or Regional Director is unsuccessful in negotiating Attachment B and the other party will only sign their hold harmless/indemnification clause, contact the Risk Management Coordinator for analysis of the activity to determine if the excessive liability exposure is proper. Send the agreement along with the following detailed descriptions justifying why the exception to University policy should be invoked:
| a description of the programmatic activity; |
| a description of the condition/characteristics of the facility; |
| how many people are expected to participate; |
| what alternative options/facilities to delivering the program have been sought before asking for this facility. |
This may be completed in letter format addressed to the Regional Director asking for concurrence in acceptance of this liability by signing the letter at the bottom of the page. The Regional Director does not have to agree that it is reasonable to submit the request to Oakland for acceptance of this liability. However, if there is concurrence, this letter is sent to Oakland requesting that the risk be insured so that the agreement can be signed by the Controller and Business Services Director.
If negotiating with public school districts, check to see if they are part of our UC/JPA agreement many districts have signed. If not use the following Education Code to show that school districts are required by law to insure their property for ownership and maintenance.
The text found in California Education Code, Section 38134 (a), (i) requires districts to be held liable for the care and maintenance of their property. This may affect the wording in the hold harmless clause that they have in their contracts.