Colleen/Tom,

I wondered about her interpretation of the 2nd paragraph too. I just figured I must not be interpreting it correctly. Leave it up to the attorneys to decipher.  Thank you for doing that.

New York Bus Sales doesn't want to change the language in their Indemnity Agreement.  So, I don't see their site as a viable location for parking.  

Colleen has a good point about previous agreements.  Have we signed one before?  Anything needed to park at Jerome Fire Dept?

Brian

---

From: "Colleen Farrell cf_jb@PROTECTED"
To: bikebod_test
Cc: Steve Ransford
Sent: Wednesday, May 6, 2015 9:52 AM
Subject: Fw: Onondaga Cycling Club Time Trial parking

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I agree with Tom about the second paragraph.  Taking out the "or part" as suggested by our insurance agent wouldn't change anything because of the "whether or not" language that precedes that.  Our agent supposedly reads this stuff all the time, so maybe I'm missing something, but I think she misread it as well.  I agree with Tom's suggestion regarding changing that language.

On the third para, if NY Bus doesn't agree to take out "gross" from that sentence, then I don't think it's a deal breaker since that paragraph deals only with damage to our property.  I suppose it's not unreasonable for them not to want to pay for its negligence acts since they're doing us a favor by allowing us to park there.

From my understanding, OCC has signed other indemnity agreements for allowing us to park on other's property.  Do we have a copy of those agreements?  It would be good if we are using similar language for all our agreements.  And it would be easier to flag things when there's a new agreement with different language.

-Colleen

---

From: "Thomas Fucillo tfucillo@PROTECTED"
To: bikebod_test
Cc: Steve Ransford ; "bikebod_test (bikebod_test@PROTECTED)"
Sent: Wednesday, May 6, 2015 8:56 AM
Subject: Fw: Onondaga Cycling Club Time Trial parking

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Again, this is my personal opinion as a Board Member.  Listen to it or ignore it as you see fit (as usual, lol). 

 

1.       Did you ask her about whether contractual liability is an exclusion from our coverage?   I believe it often is, which means there might be a question of coverage on our promise to indemnify the third party. 

 

2.       I don’t think she read the Indemnity Agreement correctly.  It basically says we are indemnifying the bus company from any claims arising out of our parking there, regardless of whether we are negligent at all (“whether or not caused in whole or part by“ our members’ acts or omissions (our negligence)).  If you remove the “or part”, you are still left with “whether or not caused” wholly by our negligence.  That still means we would be indemnifying them even if we are not fully responsible.  As an example, if a truck goes out of control and turns into the parking lot and strikes a cyclist, and both OCC and the bus company are sued, I still read that to mean we would have to indemnify and defend the bus company even if neither us nor the bus company was at fault.  Apart from the fairness of the language, that is a real problem if there is no coverage (as per number 1 above).

 

I understand the bus company is doing us a favor, but this seems more fair (assuming there is coverage):  remove “whether or not caused in whole or part” and replace it with “to the extent caused by the acts or omissions of Onondaga Cycling Club’s agents,” etc.  That means we would only indemnify them up to the extent of our own negligence.  They may not agree to that, but the other just doesn’t make sense to me. 

 

Finally, my concerns remain regarding the release language (the third paragraph), but as long as everyone understands that we would be releasing them from any damage caused by their negligence (just not releasing them from are their intentional acts or gross negligence), I will go with whatever everybody wants.   

 

I am interested in hearing what Steve and Colleen think about the suggestion to remove “or part”. 

 

Tom

 

Thomas J. Fucillo

Counselor at Law

tfucillo@PROTECTED

 

Menter, Rudin & Trivelpiece, P.C.
Counselors at Law

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Syracuse, NY 13204-1498

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From: bikebod_test@PROTECTED [mailto:bikebod_test@PROTECTED]
Sent: Tuesday, May 05, 2015 10:52 AM
To: bikebod_test
Cc: Steve Ransford
Subject: Fw: Onondaga Cycling Club Time Trial parking

 

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All,

 

I had a discussion yesterday with our insurance agent Kristee Emshwiller from American Specialty Insurance about our proposed utilization of the parking area at New York Bus Sales.  I sent her a copy of the Indemnity Agreement that was sent to us by, JoMarie Hanggi, the security  Director at NY Bus Sales.     The email below is Kristee's assessment of the Indemnity Agreement.   I have already mentioned to JoMarie (NY Bus Sales) that we had some concerns with the phrase "intentional acts or gross negligence" and I asked if she would consider removing the word "gross".  She stated she would look into it and let me know.   

 

Anyone have a comment about Kristee's assessment/recommendation?    For the most part she don't have much problem with what New York Bus Sales wanted from us. 

 

Thanks,

 

Brian

 

 

----- Forwarded Message -----
From: Kristee Emshwiller
To: 'Brian Goetke'
Sent: Tuesday, May 5, 2015 9:28 AM
Subject: RE: Onondaga Cycling Club Time Trial parking

 

Hello Brian,

 

I have reviewed the Indemnity Agreement for New York Bus Sales. In the second paragraph, I would recommend removing the words “or part” (see below) as this is describing that your club would accept full responsibility should you only be partially responsible for the acts or omissions of your club.  

 

 

“In consideration thereof, Onondaga Cycling Club (a) agrees and hereby does defend, indemnify and hold NY Bus and its employees, agents and representative harmless from and against any and all liability, loss, cost (including reasonable attorney’s fees), judgment, damage, claim (including any claim or charge by an governmental authority), suit or responsibility whatsoever (including without limited the generality of the foregoing, any liability for personal injury, death or property damage) arising out of or relating to the Onondaga Cycling Club’s members parking their cars on the Premises and utilization of the Premises for such purpose, whether or not caused in whole or part by the acts or omissions of Onondaga Cycling Club’s agents, members, or representatives and (b) warrants that it maintains and agrees to maintain for as long as it uses the Premises, comprehensive general liability insurance naming NY Bus as an additional insured and shall furnish proof of the same as of this date and each anniversary date thereafter for as long as NY Bus allows Onondaga Cycling Club the courtesy to park cars on the Premises.”

 

Paragraph three discusses property. Having your property (car, bikes, etc.) in a public location is a risk that you would have to take regardless. I do not see any changes that would need to be made with paragraph three.

 

Please let me know if you wish to move forward with the Additional Insured Certificate request. I did look into the Primary and Non-Contributory wording and I would be able to add this on without a charge. When you are ready, please complete the attached certificate request form and I will be able to process the cert. and send to you.

 

As promised, I have also attached a copy of your policy for your records.

 

Best regards,

 

 

Kristee Emshwiller

FastCov Account Executive

AMERICAN SPECIALTY INSURANCE & RISK SERVICES, INC.

7609 W. Jefferson Boulevard, Suite 100

Fort Wayne, Indiana  46804-4133

Direct:  260.755.7266

Toll Free:  877.441.4011  |  Fax:  260.969.4729

www.amerspec.com  |  www.fastcov.com

 

Insuring America's Pastimes and Future Times ^®

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From: Brian Goetke [mailto:goetke1@PROTECTED]
Sent: Monday, May 4, 2015 11:36 PM
To: Kristee Emshwiller
Subject: Onondaga Cycling Club Time Trial parking

 

 

Hello Kristi,

 

As I mentioned on the phone today, we are looking to utilize a parking lot near a Time Trial course for we like to use on alternating Tuesday evenings from May - mid-September.  The parking lot is the property of New York Bus Sales.   New York Bus Sales is willing to allow the club to use the parking area if we sign an indemnity agreement and add them to our policy.

 

I have attached a copy of the indemnity agreement put forth by New York Bus Sales for your review.

 

As we discussed, New York Bus Sales would like to be named as an additional insured on a primary, non-contributory basis on our policy.   We don't want to execute any changes yet.  We need some pieces to fall into place first.   We need to know how we would handle the New York Bus Sales requirements.

 

 

Let me know what you think of the indemnity agreement.

 

Thank you,

 

Brian

 

Brian Goetke

Board Member, OCC

TIme Trial co-Directer

315-727-1458

 

 

 

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