HomeMy WebLinkAboutJAMS, INC. 4-2015N-2018-002
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DATE�t�C iCONSULTANT AGREEMENT
THIS AGREEMENT is made and entered into this 28th day of August, 2015 by and
between JAMS, Inc., a California Corporation ("Censultaaf) and the City of Santa Ana, a
charter city and municipal corporation organized and existing under the Constitution and laws of
the State of California ("City"),
RECITALS
A. The City desires to retain a consultant having special skill and lnowledge in the
field of mediation and arbitration services to act as a neutral or as an administrative
appeal hearing officer.
B. Consultant represents that Consultant is able and willing to provide such services to
the City.
C. In undertaking the performance of this Agreement, Consultant represents that they
are knowledgeable in their field and that any services performed by Consultant
under this Agreement will be performed in compliance with such standards as may
reasonably be expected from a professional consulting firm in the field,
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Generally, Consultant shall provide a neutral to act as a mediator, arbitrator, or as an
administrative appeal hearing officer, See Exhibit A.
Z. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services:
(i) for neutrals located in. California, an amount not to exceed $5,000 for a
half day session and an amount not to exceed $8,000 for a full day
session,
(ii) for neutrals from outside of California, an amount not to exceed $750t13r.
Such neutrals and/or Consultant agree not to charge for travel time,
Consultant will be reimbursed for reasonably necessary travel
expenses, including airfare, ground transportation and/or car rental,
hotel, and up to $75/day for meals; and
(iii) a case management fee of 12% of professional services.
b. The total sum to be expended under this Agreement, shall not exceed $25,000.00
during the to= of this Agreement.
o. Payment by City shall be made within thirty (30) days following receipt of proper
invoice evidencing work performed along with receipts for expenses incurred, subject to City
accounting procedures. Payment need not be made for work which fails to meet the standards of
performance set forth in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall commence on August 28, 2015 and terminate on June 30, 2018,
unless terminated earlier pursuant to Section 12, below. The term of this Agreement may be
extended upon a writing executed by the City Manager and the City Attorney for up to one (1)
year.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire tern of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer-employee relationship, a joint venture relationship, or
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Consultant shall pay all salaries
and wages, employer's social security taxes, unemployment insurance and similar taxes relating
to its employees and shall be responsible for all applicable withholding taxes.
5, INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance which shall include, but not be limited to protection against claims
arising from bodily and personal injury, including death resulting therefrom and damage to
property, resulting from any act or occurrence arising out of Consultant's operations in the
performance of this Agreement, including, without limitation, acts involving vehicles. The
amounts of insurance shall be not less than the following: single limit coverage applying to
bodily and personal injury, including death resulting therefrom, and property damage, in the total
amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a)
name the City, its officers, employees, agents, volunteers and representatives as additional
insured(s); and (b) be primary and not contributory with respect to insurance or self-insurance
programs maintained by the City.
b. Worker's Compensation Insurance. In accordance with California State law,
Consultant, if Consultant has any employees, is required to be insured against liability for
worker's compensation or to undertake self-insurance. Prior to commencing the performance of
the work under this Agreement, Consultant agrees to obtain and maintain any employer's
liability insurance with limits not less than $1,000,000 per accident,
c. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
(i) Consultant shall maintain all insurance required above in full force and
effect for the entire ,period covered by this Agreement. Certificates
of insurance shall be famished to the City upon execution of this
Agreement and shall be approved in form by the City.
(ii) Certificates and policies shall state that the policies shall not be canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior written notice to the City.
d. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procured
and is in force and paid for, the City shall have the right, at the City's election, to terminate this
Agreement. Such termination shall not affect ConsuItant's right to be paid for its time and
materials expended prior to notification of termination, Consultant waives the right to receive
compensation and agrees to indemnify the City for any work performed prior to approval of
insurance by the City.
6. INDEMNIFICATION
Consultant agrees to and shall indemnify, defend, and hold hannless the City, its officers,
agents, employees, consultants, counsel, and representatives from liability for personal injury,
damages, just compensation, restitution, judicial or equitable relief arising out of claims: (1) for
personal injury, including death, and claims for property damage, arising from the direct or
indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or
other persons acting on their behalf which relates to the services described in Section 1 of this
Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution,
judicial or equitable relief is due by reason of effects arising from this Agreement. This
indemnity and hold harmless agreement applies to all claims for damages, just compensation,
restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the
events referred to in this Section. The Consultant further agrees to indemnify, hold harmless,
and pay all costs for the defense of the City, including fees and costs for counsel to be selected
by the City, regarding any action by a third party asserting that personal injury, damages, just
compensation; restitution, judicial or equitable relief due to personal or property rights arises by
reason of the terms of, or effects arishrg from this Agreement. City may make all reasonable
decisions with respect to its representation in any legal proceeding.
CONFIDENTIALITY
If Consultant received from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees
that it shall not use or disclose such information except in the performance of this Agreement,
and further agrees to exercise the same degree of care it uses to protect its own information of
like importance, but in no event less than reasonable care. "Confidential Information" shall
include all nonpublic information. Confidential information includes not only written
information, but also information transferred orally, visually, electronically, or by other means.
Confidential information disclosed to either party by any subsidiary and/or agent of the other
party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure
shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is,
through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful
possession of the Consultant and disclosed without an obligation of confidentiality; (d) is
required to be disclosed by operation of law; or (e) is independently developed by the Consultant
without reference to information disclosed by the City.
S. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interest and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under
this Agreement.
9. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered ixr person or
mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic
communication in the mamier provided in this Section, to the following persons:
To City: Cleric of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, California 92702-1988
Facsimile (714) 647-6956
Copies to:
Office of the City Manager, Attn.: Robert Cortez
City of Santa Ana
20 Civic Center Plaza (M-31)
P.O. Box 1988
Santa Ana, California 92702-1988
Facsimile (71.4) 647-6900
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702-1988
Facsimile (714) 647-6515
To Consultant: JAMS, Imo,
Attn.: Denise Carter - General Manager
500 N. State College Blvd„ 14`h Floor
Orange, CA 92868
Facsimile: (714) 939-8710
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or cor tified, with postage prepaid, and
addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to
have been given twenty-four (24) hours after the time set forth on the transmission report issued
by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating
these time frames, weekends, federal, state, County or City holidays shall be excluded,
10. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant regarding the subject matter herein, and supersedes any and all other agreements, oral
or written, between the parties. In the event of a conflict between the terms of this Agreement
and any attachments hereto, the terms of this Agreement shall prevail and will serve to fully
supersede existing Agreement, This Agreement may not be modified except by written
instrument signed by the City and by an authorized representative of Consultant. The parties
agree that any terms or conditions of any purchase order or other instrument that are inconsistent
with, or in addition to, that terms or conditions hereof, shall not bind or obligate Consultant nor
the City, Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein.
11. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement
shall be construed to limit the City's ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
12. TERMINATION
This Agreement may be terminated by the City with thirty (30) days written notice of
termination to the Consultant.
a. As a condition of such payment, the City may require Consultant to deliver to the City
all the work product completed as of such date, and in such case such work product shall be the
property of the City unless prohibited by law, and Consultant consents to the City's use thereof
for such purposes as the City deems appropriate.
b. Payment need not be made for work that fails to meet the standard of performance
specified in the Recitals of this Agreement.
13. NON DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, relation, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities or any activities under this Agreement, Consultant affirms
that it is an equal opportunity employer and shall comply with all applicable federal, state and
local laws and regulations,
14. JURISDICITON - VENUE
This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement
shall be determined and governed by the laws of the State of California, Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement,
15. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United Sates, the State of California,
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of her inability to obtain or maintain such permits, licenses,
approvals, waivers, and exemptions. Said inability shall be cause for termination of this
Agreement,
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
[3ignampe Page to Follow]
CITY OF SANTA ANA
ATTEST:
nnAR' IA n, tlutzAR
Clerk of the Council
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney,
By:.
—
San a . Schwarzmann
Ser Assistant City Attorney
CONSULTANT
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,TAMS, INC., a Calitbrnia Corporation
llavic Cavazos
City Manager
SCOPE OF SERVICES
ADR Spectrum
• Direct Negotiation
• Neutral Evaluation
• Modiative Processes
• Facilitative Medlatlon
• Evaluative Mediation
• MIN -Trial
• Non -Binding Arbitration
• Neutral Expert Fact -Finding
• Adjudicative Processes
• Arbitration
Alternative Dispute Resolution (ADR)
At JAMS, clients are assisted by expert, professional neutrals (retired judges and attorneys)
who use a full range of dispute resolution processes between direct negotiation and litigation to
achieve resolution.
In Direct Negotiation the parties collectively retain complete formal and informal control over
the process and its outcome Including;
• the ground rules and the agenda
• the selection of the neutral
• the place and timing of the negotiation
• use of their own negotiation styles and strategies
• when and how they communicate, listen and convey reactlons
• whether to obtain outside information, comment, or feedback and if so, whether to introduce
it
• the decision to and the process at any time
• .the ablilty to discuss and agree upon Issues and solutions that need not relate directly to the
subject matter of the dispute
• the acceptance of an outcome unless mutually agreed upon
Neutral Evaluation is a non-binding process in which the parties retain a neutral to provide an
evaluation based solely on the merlts of the case. The neutral;
• reviews the factual and legal positions of the parties either through briefs or oral arguments
• evaluates what the likely jury outcome might be
• provides his or her view of the likely/fair results
• is not retained to facilitate the parties negotiations
In litigation, the parties have minimal control over process or outcome:
• the court retains ultimate authority, interpreting and applying the rules of civil litigation
• the court sets discovery deadlines, conference dates and trial dates
• the neutral deolslon-maker is determined by the court
• the rules of trial practice and evidence in the presentation of the case must be followed
• parties are bound to the facts found and decisions made by judge and jury, subject to limited
right of appeal
• only narrow forms of remedies are available --an award of money damages or limited
Injunctive relief
MEDIATIVE PROCESSES
In Mediative Processes, a third party neutral works to facilitate a negotiated settlement
between the parties. The mediator facilitates the negotiations and evaluates the relative merits
of the claims and defenses, The neutral does not have power to impose a solution or decision -
the parties retain ultimate control over the outcome, The terms of the agreement are limited
only by the interests and creativity of the partles and the neutral. By agreement and perm lesion
of the parties, the neutral sets the ground rules and may profoundly affect the order of the
proceedings, the parties' collective and Individual analyses and the general dynamic of the
settlement discussion.
Facilitative Mediation is a process in which outcome control remains almost entirely in the
hands of the parties and counsel. The mediator restores communication and helps to create
options for resolution by:
• ensuring that all relevant Information Is exchanged and heard by the parties or
confirms that there is a good reason why it Isn't being exchanged
• providing parlies the ability to vent
• coaching negotiators on next moves
• helping parties invent settlement options
• transmitting offers and demands
working to overcome potential Impasses
Evaluative Mediation occurs when the mediator creates more structure and injects his or her
own view or prediction of the trial outcome. It is often used for more difficult cases, where the
gap between the parties is large, the issues somewhat complex and the stakes high. The
mediator allows the parties to test the reality of their predicted outcomes by;
• working to thoroughly understand the parties' factual and legal arguments
• providing feedback on the relative merits of claims and defenses
• offering his or her prediction of the outcome in court
• in some circumstances, recommending settlement ranges
Mini -Trial is a highly structured, formalized and evaluative mediation process In which the
parties cede a great deal of procedural control in order to reframe the dispute from the context
of litigation to the context of a business problem. It requires the particlpatlon of non -legal party
representatives with settlement authority who sit as a panel with the neutral. The neutral
advisor:
TM works closely with the parties before the hearing to facilitate agreement on procedure
and resolve disputes
• oversees the) panel of senior business officers
• moderates the mini -trial hearing and then provides an evaluation if necessary
• facilitates settlement between the parties after rendering his or her evaluation
Non -Binding Arbitration is a hearing process that looks and feels like arbitration, but is
advisory, not binding. The neutral advisor(s);
• sets up and presides over the process
• reviews the factual and legal positions of the parties either through briefs or oral
arguments
• evaluates what the likely arbitration outcome might be
Neutral Expert Fact.Finding can be a standalone, non-binding process, or it can be part of a
larger non-binding process. It is used to help resolve a disputed technioal issue. The neutral;
• finds facts and provides analysis after hearing presentations by the parties, and their
experts
® acts as a substitute for partisan experts
can conduct an Independent Investigation into the technical facts and Issues
ADJUDICATIVE PROCESSES
In Adjudicative Processes, a third party neutral is brought in to hear and consider facts and/or
arguments presented by the plaintiff and defendant, and to render a reasoned binding decision
or solution based upon an agreed upon standard of legality or fairness, The neutral's role Is to
issue a solution for the parties, not to help them reach an agreed-upon solution to their dispute,
Arbitration, long used as an alternative to litigation in commercial disputes and labor disputes,
offers less formal procedures, abbreviated presentations and the undivided attention of the
neutral(s). The arbitrator(s):
establishes the ground rules governing an arbitration in the period immediately following the
initiation of the arbitration to ensure an expeditious, cost-effective and fair process
rules on discovery requests and disputes
determines whether to apply rules of evidence and to what degree
hears expert witnesses and cross examinations
■ reviews briefs, documents and other exhibits
entertains argument by counsel before rendering a decision
administers arbitration according to the JAMS Rules and Procedures for Arbitrations
Bracketed Arbitration ("high -low") occurs when the parties structure an agreement to "bracket"
or limit the possible range of outcomes. The parties may agree that the arbitrator:
will decide only the Issue of liability with predetermined sums to be paid by the defendant or
plaintiff accordingly
delivers a verdict on liability and damages while agreeing in advance on minimum and
maximum payment sums
is not told the bracketed range, in effect creating "blind bracketed" arbitration
A� ff CERTIFICATE OF LIABILITY INSURANCE
DATBYYY}
4s"
12118/2016
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLHIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THEIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(8), AU
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT:. if the certificate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUSROGATION IS WAIVED, t to
the terms and conditions of the policy, certain policies may require an ondomement. A statement on this certificate does not confer rigthe
cortlflcate holder In lieu of such endorsements .
PRODUCER
Alliant Insurance Services, Inc.
701 6 Street, 6th floor
San Diego CA 92101
DNTACT
NAME:Diane Clark
FAx
819.849-3783 A C x t• 619-699-2165
'MAL . dclark alliant.com
INSURERS AFFORDING COVERAGE NAIC 0
Y
a R Ita;Federal Insurance Campan 20281
INSURED
JAMS, Inc. JAMS Endisputs, LLC
1920 Main Street, Suite 300
INSURERS:
nsuaeac:
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INSURER D_
Irvine CA 92614
INSURER E:
l4el•IH�r�I� �H9:lFlaLfsl$��Ary,�Li�'.�/lL'Sf1+T.Dfi
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT VMTH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
ISR A
I TYPE OF INSURANCE
INS13
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PCUOYNUMEER
MPOIACYEFF
7/V2015
MNWC
7/112016
LIMITS
EACH OCCURRENCE $1.000,000
A
I g I COMMERCIAL GENERAL LIABILITY
CLAIMS -MADE U OCCUR
Y
35300638
JAMAGEMMISES o $1000,000
MCDEXP An alepwean $10000
r7GEN'L
PERSONAL$ ADV INJURY $1,000,000
GENERALAGOREGATE $2,000000
GREGATE LIMIT APPLVIES PER-.
ICYf_ P�CiX. LCC
PRODUCTS-COMPIOP AEG IRCIUd6dER
AUTOMOBILE
LIASIUTY
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ANY AUTO
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BODILY INJURY IPer xddanp $
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OCCUR
79217623
7/112015
7/112016
EACH OCCURRENCE $15,000,000
"Cos UAB I
I CLAIMS.MADE
AGGREGATE $10,000,000
DED X ETENTION 0
$
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WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY YIN
ANY PROPRIErORIPARTNERIEXECUTIVE
OFFICEMMEMBER EXCLUDED?
(Mendotmy In NH)
H yec, daeWbe under
bE CRIPTICN OF OPERATIONS below
MIA
11737442
7/1/2015
7/1/2016
X STATUTE
E.L. EACH ACCIDENT $1,000,000
.-`
E.L. DISEASE EA EMPLOYE $1000,000
EL DISEASEPDLICY LIMn $1,000,000
DESCRIP•RON OF OPERATIONS I LOCATIONS / VEHICLES IACORD 181, AddNanal Rom ft khedub, may be eReabed If more apace is regolmd)
CIIof Santa Ana, it officers, employees, agents, volunteers and representatives are named as Additional Insured with respect to General
Liability Insurance. Insurance is Primary Non Contributory.
APPrROV/DAS TO
dra 141. Schwarzmantt
Clerk of the City Council City of Santa Ana
20 Civic Center Plaza (M-30)
P 0 Box 1988
Santa Ana CA 92702-1988
ACORD 26 (201410 1)
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
F r P
rhe ACORD narno and logo are registered marks of ACORD
riahtta
ADDITIONAL INSi1RED ENDORSEMENT
FFOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy # 35356638
relating to the following:
I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its
officers, employees, agents, volunteers and representatives are named as additional insureds
("additional insureds") with regard to liability and defense of suits arising from the operations
and uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to -the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effective.)
Effective 7/l/15 this endorsement form as apart of
Policy # 35356638_
Issued to JAMS, Inc .
Named Insured'
r
Countersigned by` �
Authorized Representative
V
Senior Assistant City Attorney