Reso 2007-734a
0 RESOLUTION NO 2007 -734
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE
COSTA MESA SANITARY DISTRICT
APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION
AND DELIVERY OF A SIXTH AMENDED JOINT POWERS
AGREEMENT
WHEREAS, the Costa Mesa Sanitary District, a public agency duly organized
and existing under and by virtue of the California Government Code and laws of the
State of California (the "Member Agency"), has entered into the Fifth Amended and
Restated Joint Powers Agreement (the "Original Agreement "), relating to the Special
District Risk Management Authority (the "Authority"); and
WHEREAS, the Costa Mesa Sanitary District and the other members of the
Authority (the "Members ") find it beneficial to amend the Original Agreement (i) to
amend Article 25 of the agreement regarding administrative fees paid by the Authority to
the California Special District Association, and (ii) to make certain other amendments to
the Original Agreement; and
• WHEREAS, in order to implement the foregoing, the Member Agency and the
Members propose to execute and enter into a Sixth Amended Joint Powers Agreement
(the "Amended JPA Agreement "); and
WHEREAS, all acts, conditions and things required by the laws of the State of
California to exist, to have happened and to have been performed precedent to and in
connection with the consummation of the transactions authorized hereby do exist, have
happened and have been performed in regular and due time, form and manner as
required by law, and the Governing Body is now duly authorized and empowered,
pursuant to each and every requirement of law, to consummate such transactions for
the purpose, in the manner and upon the terms herein provided.
NOW, THEREFORE, BE IT RESOLVED BY THE GOVERNING BODY OF THE
MEMBER AGENCY AS FOLLOWS:
Section 1. Findings. The Governing Body of the Costa Mesa Sanitary District,
hereby specifically finds and determines that the actions authorized hereby relate to the
public affairs of the agency.
Section 2. Amended JPA Agreement. The Amended JPA Agreement, proposed
to be executed and entered into by and between the Member Agency and the Members,
in the form presented at this meeting and on file with the District Secretary, is hereby
approved. The President and Secretary of the Costa Mesa Sanitary District ( "The
0 Authorized Officers ") are hereby authorized and directed, for and in the name and on
behalf of the Governing Body, to execute and deliver to the Authority the Amended JPA
Y
• Agreement in substantially said form, with such changes therein as such officers may
require or approve, such approval to be conclusively evidenced by the execution and
delivery thereof.
Section 3. Effective Date of Amended JPA Agreement. The Amended JPA
Agreement shall take effect on October 1, 2007, but not sooner than receipt of required
affirmative written approval of 2/3 of the Members participating in the Authority's risk
management program(s), and who are signatory to the Fifth Amended and Restated
JPA Agreement.
Section 4. Other Actions. The Authorized Officers of the Governing Body are
each hereby authorized and directed to execute and deliver any and all documents
which they may deem necessary in order to consummate the transactions authorized
hereby and all such actions heretofore taken by such officers are hereby ratified,
confirmed and approved.
Section 5. Effective Date. This resolution shall take effect immediately upon its
passage.
PASSED AND ADOPTED this day of 2007 by the following vote:
AYES: Arthur Perry, Robert Ootenl,I, James Ferrymanl,I ,,Gary Monahan
NOES:
ABSENT:
ABSTAIN: Arlene Schafer
Secretary, e' osta Mkiitary District
-Board-,of Director;
F-1
LJ
-2-
C,- JV,, k -
President, Costa Mesa Sanitary
Board of Directors
STATE OF CALIFORNIA )
i COUNTY OF ORANGE ) SS
CITY OF COSTA MESA )
•
•
I, Joan Revak, Clerk of the Costa Mesa Sanitary District, hereby certify that the
above and foregoing Resolution No. 2007 -734, was duly and regularly passed and
adopted by said Board of Directors at a regular meeting thereof held on the 14th day of
June, 2007.
IN WITNESS WHEREOF, I have hereunto set my hand and aff ixed the seal of
the Costa Mesa Sanitary District, this A&b day of af 2007.
Clerk o�eCti':,Mes-a Sanitary District
-3-
•
SIXTH AMENDED
JOINT POWERS AGREEMENT
RELATING TO THE
SPECIAL DISTRICT RISK MANAGEMENT AUTHORITY
9
Adopted
August 1, 1986
1St Amended
February 5, 1988
2 "d Amended
March 31, 1990
3rd Amended
July 1, 1993
4th Amended
February 9, 1998
5th Amended and Restated
- Approved
March 24, 2003
- Effective
July 1, 2003
6th Amended
October , 2007
•
r- r-I
LJ
SDRMA 6`h Amended JPA' Effective October , 2007
JOINT POWERS AGREEMENT - TABLE OF CONTENTS
Article1.
Definitions .......................................................................................... ..............................2
Article2.
Purposes .............................................................................................. ..............................3
Article 3.
Parties to Agreement ........................................................................... ..............................4
Article4.
Term of Agreement ............................................................................. ..............................4
Article 5.
Creation of Authority .......................................................................... ..............................4
Article6.
Powers of Authority ............................................................................ ..............................4
Article 7.
Board of Directors .............................................................................. ..............................6
Article 8.
Compliance with the Brown Act ........................................................ ..............................6
Article 9.
Powers of the Board of Directors ....................................................... ..............................6
Article 10.
Officers of the Authority ................................................................... ..............................8
Article 11.
Provision for Bylaws ........................................................................ ..............................8
Article12.
[Reserved] ......................................................................................... ..............................8
Article 13.
Coverage Programs ........................................................................... ..............................9
Article 14.
Implementation of the Programs ....................................................... ..............................9
Article 15.
Accounts And Records ..................................................................... ..............................9
Article 16.
Services Provided by the Authority ................. ............................... ... .............................10
Article 17.
Responsibilities of Members ............................................................. .............................10
Article18.
New Members ................................................................................... ..............................1
l
Article19.
Withdrawal ......................................................................................... .............................11
Article 20.
Involuntary Termination .................................................................... .............................12
Article 21.
Article 22.
Effect of Withdrawal or Involuntary Termination ............................. .............................13
Termination and Distribution; Assignment ....................................... .............................13
Article23.
Enforcement ..................................................................................... .............................14
Article 24.
Nonliability of Directors, Officers and Employees ........................... .............................14
Article 25.
Provisions Relating to CSDA .... ............................... ...............14
........ ...............................
Article26.
Notices ............................................................................................... .............................15
Article27.
Amendment ........................................................................................ .............................15
Article 28.
Prohibition Against Assignment ........................................................ .............................15
Article 29.
Agreement Complete ......................................................................... .............................15
Article30.
Counterparts ....................................................................................... .............................15
Article31.
California Law ................................................................................... .............................15
Article32.
Severability ........................................................................................ .............................15
Article33.
Effective Date .................................................................................... .............................15
r- r-I
LJ
SDRMA 6`h Amended JPA' Effective October , 2007
L--.A
SIXTH AMENDED JOINT POWERS AGREEMENT
RELATING TO THE
SPECIAL DISTRICT RISK MANAGEMENT AUTHORITY
THIS SIXTH AMENDED JOINT POWERS AGREEMENT (the "Agreement ") is
made and entered into by and among the public agencies (the "Members ") organized and
existing under the laws of the State of California, which are signatories to this Agreement.
RECITALS
WHEREAS, California Government Code Section 6500 et seq. (the "Act ") provides that
two or more public agencies may by agreement jointly exercise any power common to the
contracting parties; and
WHEREAS, California Labor Code Section 3700(c) permits pooling by public agencies
of self insurance for Workers' Compensation liability; and
WHEREAS, California Government Code Section 990.4 provides that a local public
entity may self - insure, purchase insurance through an authorized carrier, purchase insurance
through a surplus line broker, or any combination of these; and
WHEREAS, California Government Code Section 990.8 provides that two or more local
entities may, by a joint powers agreement, provide insurance for any purpose by any one or more
of the methods specified in Government Code Section 990.4; and
WHEREAS, the parties to this Agreement desire to join together for the purposes set
forth in Article 2 hereof, including establishing pools for self - insured losses and purchasing
Excess or Re- Insurance and administrative services in connection with joint protection programs
(the "Programs ") for members of the California Special Districts Association ( "CSDA "); and
WHEREAS, it appears economically feasible and practical for the parties to this
Agreement to do so; and
WHEREAS, the Members have previously executed that certain Fifth Amended and
Restated Joint Powers Agreement (the "Original JPA "), which Original JPA the Members desire
to amend and restate by this Agreement; provided that such amendment and restatement shall not
affect the existence of the Authority; and
WHEREAS, CSDA exists to assist and promote special districts, and has been
responsible for the original creation of the Special District Risk Management Authority
( "Authority ") and Special District Workers Compensation Authority ( "SDWCA "), and
determined the consolidation of SDWCA and the Authority on July 1, 2003 was in the best
interests of special districts and other public agencies throughout the State.
SDRMA 6 th Amended JPA - 1 Effective October, 2007 -
•
NOW THEREFORE, for and in consideration of all of the mutual benefits, covenants
and agreements contained herein, the parties hereto agree as follows:
Article 1. Definitions. The following definitions shall apply to the provisions of this
agreement:
"Act" means Articles 1 through 4 (commencing with Section 6500) of Chapter 5,
Division 7, Title 1 of the California Government Code, as amended or supplemented.
"Alliance Executive Council" means the council organized pursuant to the MOU.
"Assessment" means an additional amount, in addition to the Member's or Former
Member's original contribution, which the Board of Directors determines in accordance herewith
and/or with the Bylaws that a Member or Former Member owes on account of its participation in
a Program for a given Program year.
"Authority" shall mean the Special District Risk Management Authority created by the
original version of this Agreement.
"Board of Directors" or "Board" shall mean the governing body of the Authority.
"Bylaws" means the Bylaws of the Authority adopted by the Board of Directors, as they
may be amended from time to time.
"Chief Executive Officer" shall mean that employee of the Authority who is so appointed
by the Board of Directors.
"Claim" shall mean a demand made by or against a Member or Former Member which is
or may be covered by one of the Programs approved by the Board of Directors.
"Contribution" means the amount determined by the Board of Directors to be the
appropriate sum which a Member should pay at the commencement of or during the Program
Year in exchange for the benefits provided by the Program.
"Coverage Documents" shall mean the Declarations, Memorandum of Coverages,
Coverage Agreements, Endorsements, Policies of Insurance or any other documents that provide
the terms, conditions, limits and exclusions of coverage afforded by a Program.
"CSDA" means the California Special Districts Association.
"District" shall mean a special district, public agency or public entity within the State of
California which is both a Member of the CSDA and a signatory to this Agreement.
"Duly Constituted Board Meeting" shall mean any Board of Directors meeting noticed
and held in the required manner and at which a Quorum was determined to be present at the
beginning of the meeting.
SDRMA 6 `h Amended JPA- 2 Effective October, 2007
"Estimated Contribution" means the amount which the Board of Directors estimates will
be the appropriate contribution for a Member's participation in a Program for a Program Year.
"Excess or Re- Insurance" shall mean that insurance which may be purchased on behalf of
the Authority and /or the Members to protect the funds of the Members or Former Members
against catastrophic losses or an unusual frequency of losses during a single year in excess of the
self - insurance retention maintained by the Authority.
"Fiscal Year" shall mean that period of twelve months which is established as the fiscal
year of the Authority.
"Former Member" shall mean a District which was a signatory to the Agreement but
which has withdrawn from, or been involuntarily terminated from participating in, the Authority.
"Joint Protection Program" means a Program offered by the Authority, separate and
distinct from other Programs, wherein Members will jointly pool their losses and claims, jointly
purchase Excess or Re- Insurance and administrative and other services, including claims
adjusting, data processing, risk management consulting, loss prevention, legal and related
services.
"Member" shall mean a signatory to this Agreement, which is qualified as a Member
under the provisions of this Agreement and the Bylaws.
"MOU" means the Memorandum of Understanding - Alliance Executive Council, dated
as of September 20, 2001, among the Authority, CSDA, the CSDA Finance Corporation and
SDWCA.
"Program" or "Programs" means the specific type of protection plan as set forth in the
terms, conditions and exclusions of the Coverage Documents for self - insured losses, and the
purchasing of Excess or Re- Insurance and administrative services.
"Program Year" shall mean a period of time, usually 12 months, determined by the Board
of Directors, in which a Program is in effect.
"Retained Earnings," as used herein, shall mean an equity account reflecting the
accumulated earnings of a Joint Protection Program.
"SDWCA" means the Special Districts Workers Compensation Authority, and its
successors or assigns.
Article 2. Purposes. This Agreement is entered into by the Members pursuant to the
provisions of California Government Code section 990, 990.4, 990.8 and 6500 et seq. in order to
provide, subject to the provisions of the Coverage Documents, economical public liability and
workers' compensation coverage, or coverage for other risks which the Board of Directors may
determine.
Additional purposes are to reduce the amount and frequency of losses, and to decrease
the cost incurred by Members in the handling and litigation of claims. These purposes shall be
SDRMA 6 `h Amended JPA- 3 Effective October, 2007
accomplished through the exercise of the powers of such Members jointly in the creation of a
separate entity, the Special District Risk Management Authority (the "Authority "), to establish
and administer Programs as set forth herein and in the Bylaws.
It is also the purpose of this Agreement to provide, to the extent permitted by law, for the
inclusion, at a subsequent date, and subject to approval by the Board of Directors, of such
additional Members organized and existing under the laws of the State of California as may
desire to become parties to the Agreement and Members of the Authority.
Article 3. Parties to Agreement. Each party to this Agreement certifies that it intends
to and does contract with all other parties who are signatories to this Agreement and, in addition,
with such other parties as may later be added as parties to and signatories of this Agreement
pursuant to Article 18. Each party to this Agreement also certifies that the withdrawal from or
cancellation of membership by any Member, pursuant to Articles 19 and 20 or otherwise, shall
not affect this Agreement nor such party's intent, as described above, to contract with the other
remaining parties to the Agreement.
Article 4. Term of Agreement. This Agreement shall become effective as to existing
Members of the Authority as set forth in Article 33 hereof. This Agreement shall continue
thereafter until terminated as hereinafter provided. This Agreement shall become effective as to
each new Member upon: (i) approval of its membership by the Board of Directors, (ii) the
execution of this Agreement by the Member, and (iii) upon payment by the Member of its initial
Contribution for a Program. Any subsequent amendments to the Agreement shall be in
accordance with Article 27 of this Agreement.
Article 5. Creation of Authority. Pursuant to the Act, there is hereby created a public
entity separate and apart from the parties hereto, to be known as the Special District Risk
Management Authority. Pursuant to Section 6508.1 of the Act, the debts, liabilities and
obligations of the Authority, including but not limited to, debts, liabilities and obligations of any
of the Programs shall not constitute debts, liabilities or obligations of any party to this
Agreement or to any Member or Former Member.
The Authority is not an insurer, and the coverage programs offered by the Authority do
not provide insurance, but instead provide for pooled joint protection programs among the
members of the Authority. The Joint Protection Programs offered by the Authority constitute
negotiated agreements among the Members which are to be interpreted according to the
principles of contract law, giving full effect to the intent of the Members, acting through the
Board of Directors in establishing the Programs.
Article 6. Powers of Authority. (a) The Authority shall have all of the powers
common to Members and is hereby authorized to do all acts necessary for the exercise of said
common powers, including, but not limited to, any or all of the following:
(1) to make and enter. into contracts, including the power to accept the
assignment of contracts or other obligations which relate to the purposes
of the Authority, or which were entered into by a Member or Former
SDRMA 6`h Amended JPA 4 Effective October, 2007
Member prior to joining the Authority, and to make claims, acquire assets
and incur, liabilities;
(2) to accept an assignment from SDWCA of all its assets, obligations and
liabilities prior to the dissolution of SDWCA (including claims and
contracts in existence prior to such dissolution) in order to benefit the
Members or Former Members participating in the. SDWCA workers
compensation program; provided, that except for the fair and equitable
allocation of administrative and overhead expenses, funds from such
assignment shall not be co- mingled and shall be separately accounted for
as provided for in this Agreement and the Bylaws.
(3) to incur debts, liabilities, or other obligations, including those which are
not debts, liabilities or obligations of the Members or Former Members, or
any of them;
(4) to charge and collect Contributions and Assessments from Members or
Former Members for participation in Programs;
(5) to receive grants and donations of property, funds, services and other
forms of assistance from persons, firms, corporations and governmental
entities;
0,11 (6) to acquire, hold, lease or dispose of property, contributions and donations
of property and other forms of assistance from persons, firms, corporations
and governmental entities
(7) to acquire, hold or dispose of funds, services, donations and other forms of
assistance from persons, firms, corporations and governmental entities;
(8) to employ agents and employees, and/or to contract for such services;
(9) to incur debts, liabilities or other obligations to finance the Programs and
any other powers available to the Authority under Article 2 or Article 4 of
the Act;
(10) to enter into agreements for the creation of separate public entities and
agencies pursuant to the Act;
(11) to sue and be sued in its own name;
(12) to exercise all powers necessary and proper to carry out the terms and
provisions of this Agreement (including the provision of all other
appropriate ancillary coverages for the benefit of the Members or Former
Members), or otherwise authorized by law or the Act; and
(13) to exercise all powers and perform all acts as otherwise provided for in the
Bylaws.
SDRMA 6th Amended JPA 5 Effective October, 2007
(b) Said powers shall be exercised pursuant to the terms hereof, in the manner provided
by law and in accordance with Section 6509 of the Act. The foregoing powers shall be subject to
the restrictions upon the manner of exercising such powers pertaining to the Member or Former
Member designated in the Bylaws.
Article 7. Board of Directors. Subject to the limitations of this Agreement and the laws
of the State of California, the powers of this Authority shall be vested in and exercised by, and its
property controlled and its affairs conducted by, the Board of the Authority, which is hereby
established and designated as the agency to administer this Agreement pursuant to Section 6506
of the Act. The powers of the Authority shall be exercised through the Board of Directors, who
may, from time to time, adopt and modify. Bylaws and other rules and regulations for that
purpose and for the conduct of its meetings as it may deem proper. The officers of the Board
shall be as set forth in the Bylaws.
So long as the MOU has not been terminated or the Authority has not withdrawn from the
MOU, the Board of Directors shall be composed of seven (7) directors elected by the Member .
entities who have executed the current operative Agreement and are participating in a Joint
Protection Program. The terms of directors, procedures for election of directors, procedures for
meetings and provisions for reimbursement of Director expenses shall be as set forth in the
Bylaws. Each Member of the Board of Directors shall have one vote. Each Member of the
Board shall serve as set forth in the Bylaws.
So long as the Authority is a participant in the MOU, the Board of Directors of the
Authority shall appoint three (3) members of its board to serve as members of the Alliance
Executive Council. No member of the Board of Directors of the Authority shall serve as a
director on any other board of directors of an entity or organization that is a signatory to the
MOU during the term of the MOU. In the event a director is elected to such a board, that
director shall immediately resign from the Board of Directors of the Authority.
In the event SDRMA withdraws from the MOU, the Board of Directors of the Authority
shall consist of those seven (7) Directors who hold seats on the Authority's Board of Directors at
the time of the withdrawal and who were duly appointed by the Board, or elected or re- elected by
the Member entities of SDRMA plus the additional directors appointed by CSDA as provided in
Article 25.
Article 8. Compliance with the Brown Act. All 'meetings of the Board, including,
without limitation, regular, adjourned regular and special meetings, shall be called, noticed, held
and ' conducted in accordance with the provisions of the Ralph M. Brown Act, California
Government Code Section 54950 et seq.
Article 9. Powers of the Board of Directors. The Board of Directors shall have such
powers and functions as provided for pursuant to this Agreement and the Bylaws and such
additional powers as necessary or appropriate to fulfill the purposes of this Agreement and the
Bylaws, including, but not limited to, the following:
(a) to determine details of and select the Program or Programs to be offered,
. from time to time, by the Authority;
SDRMA 6'h Amended JPA" 6 Effective October , 2007
(b) to determine and select all insurance, including Excess or Re- insurance,
necessary to carry out the programs of the Authority;
(c) to contract for, develop or provide through its own employees various
services for the Authority;
(d) to prepare or cause to be prepared the operating budget of the Authority
for each fiscal year;
(e) to receive and act upon reports of committees and from the Chief
Executive Officer;
(f) to appoint staff, including a Chief Executive Officer, and employ such
persons as the Board of Directors deems necessary for the administration of this
Authority;
(g) to direct, subject to the terms and conditions of the Coverage Documents,
the payment, adjustment, and defense of all claims involving a Member during
their period of membership in and coverage under a Program;
(h) to fix and collect Contributions and Assessments for participation in the
Programs;
(i) to expend funds of the Authority for the purpose of carrying out the
provisions of the Agreement and the Bylaws as they now exist or may be
hereafter amended;
0) to purchase excess insurance, liability insurance, stop loss insurance,
officers and directors liability insurance, and such other insurance as the
Authority may deem necessary or proper to protect the Program, employees of the
Authority and employees of the Members;
(k) to defend, pay, compromise, adjust and settle all claims as provided for in
the Coverage Documents;
(1) to obtain a fidelity bond in such amount as the Board of Directors may
determine for any person or persons who have charge of or the authority to
expend funds for the Authority;
(m) to establish policies and procedures for the operation of the Authority and
the Programs;
(n) to engage, retain, and discharge agents, representatives, firms, or other
organizations as the Board of Directors deems necessary for the administration of
the Authority;
(o) to enter into any and all contracts or agreements necessary or appropriate
to carry out the purposes and functions of the Authority;
SDRMA 6`h Amended JPA' 7 Effective October, 2007 _
•
(p) to acquire, hold, lease, manage and dispose of, as provided by law, any
and all property necessary or appropriate to carry out the purposes and functions
of the Authority;
(q) to transact any other business which is within the powers of the Board of
Directors;
(r) to invest funds on hand in a manner authorized by law, the Agreement and
the Bylaws;
(s) to provide financial administration, claims management services, legal
representations, safety engineering, actuarial services, and other services
necessary or proper to carry out the purposes of the Authority either through its
own employees or contracts with one or more third parties;
(t) to exercise general supervisory and policy control over the Chief
Executive Officer;
(u) to establish committees and sub - committees as it deems necessary to best
serve the interests of the Authority; and
(v) to have such other powers and functions as are provided for pursuant to
the Act, this Agreement or necessary or appropriate to fulfill the purpose of this
Agreement and the Bylaws.
Article 10. Officers of the Authority. The officers of the Authority shall be as set forth
in the Bylaws. The Board may elect or authorize the appointment of such other officers than
those described in the Bylaws as the business of the Authority may require, each of whom shall
hold office for such period, have such authority and perform such duties as are provided in this
Agreement, or as the Board, from time to time, may authorize or determine.
Any officer -may be removed,'either with or without cause, by a majority of the directors
of the Board at any regular or special meeting of the Board. Should a vacancy occur in any
office as a result of death, resignation, removal, disqualification or any other cause, the Board
may delegate the powers and duties of such office to any officers or to any Members of the
Board until such time as a successor for said office has been appointed.
Article 11. Provision for Bylaws. The. Board shall promulgate Bylaws to govern the
day -to -day operations of the Authority.. The Board may amend the Bylaws from time to time as
it deems necessary, and as provided in the Bylaws. Each Member shall receive a copy of any
Bylaws and agrees to be bound by and to comply with all of the terms and conditions of the
Bylaws as they exist or as they may be modified. The Bylaws shall be consistent with the terms
of this Agreement. In the event any provision of the bylaws conflicts with a provision of this
Agreement, the provision contained in this Agreement shall control.
Article 12. [Reserved l.
SDRMA 6`h Amended JPA- 8 Effective October, 2007
Article 13. Coverage Programs.
(a) The Authority shall maintain such types and levels of coverage for Programs as
determined by the. Board of Directors. Such coverage may provide for binding arbitration before
an independent arbitration panel of any disputes concerning coverage between the Authority and
a Member.
(b) The coverage afforded under one or more Programs may include protection for
general liability, auto liability, property, boiler and machinery, public officials errors and
omissions, employment practices, employee benefits liability coverage, employee dishonesty
coverage, public officials personal liability coverage and workers' compensation, as well as
coverage for other risks which the Board of Directors may determine to be advisable. More than
one type of coverage may be afforded under a single Program.
(c) The Board of Directors may arrange for group policies to be issued for Members, their
board members and employees interested in obtaining additional coverage, at an appropriate
additional cost to those participating Members.
(d) The Board of Directors may arrange for the purchase of Excess or Re- Insurance. The
Authority shall not be liable to any Member or to any other person or organization if such excess
or reinsurance policies are terminated, canceled or non - renewed without prior notice to one or
more Members, or if there is a reduction in the type of coverage afforded under a program by
reason of any change in coverage in a succeeding excess or reinsurance policy, even if such
reduction occurs without prior notice to one or more Members.
Article 14. Implementation of the Programs. The Board of Directors shall establish
the coverage afforded by each Program, the amount of Contributions and Assessments, the
precise cost allocation plans and formulas, provide for the handling of claims, and specify the
amounts and types of Excess or Re- Insurance to be procured. The Contributions and
Assessments for each Program shall be determined by the Board of Directors as set forth herein,
in the Bylaws or in the operating policies established for a Program.
Article 15. Accounts And Records.
(a) Annual Budget. The Authority shall, pursuant to the Bylaws, annually adopt an
operating budget, including budgets for each Joint Protection Program.
(b) Funds and Accounts. The Authority shall establish and maintain such funds and
accounts as required by the Board of Directors and as required by generally accepted accounting
principles, including separate funds and accounts for each Program, including Joint Protection
Programs. Books and records of the Authority shall be open to any inspection at all reasonable
times by authorized representatives of Members, or as otherwise required by law.
(c) Investments. Subject to the applicable provisions of any indenture or resolution
providing for the investment of moneys held thereunder, the Authority shall have the power to
invest any money in the treasury that is not required for the immediate necessities of the
Authority, as the Board determines is advisable, in the same manner as local agencies pursuant to
SDRMA Oh Amended JPA- 9 Effective October , 2007 _
California Government Code Sections 53601 et seq. (as such provisions may be amended or
supplemented).
(d) No Commingling. The funds, reserves and accounts of each Program shall not
be commingled and shall be accounted for separately; provided, however, that administration and
overhead expenses of the Authority not related to a specific Program or Programs may be fairly
and equitably allocated among Programs as determined by the Board of Directors. Investments
and cash accounts may be combined for administrative convenience, but a separate accounting
shall be made for balances of individual funds and Program revenues and expenses.
(e) Annual Audit. The Board shall provide for a certified, annual audit of the
accounts and records of the Authority, in the manner set forth in the Bylaws.
Article 16. Services Provided by the Authority. The Authority may provide, at the
sole discretion of the Board of Directors, the following services in connection with this
Agreement:
(a) to provide or procure coverage, including but not limited to self - insurance funds
and commercial insurance, as well as excess coverage, re- insurance and umbrella insurance, by
negotiation or bid, and purchase;
(b) to assist Members in obtaining insurance coverage for risks not included within
the coverage of the Authority;
(c) to assist risk managers with the implementation of risk management functions as
it relates to risks covered by the Programs in which the Member participates;
(d) to provide loss prevention and safety consulting services to Members;
(e) to provide claims adjusting and subrogation services for Claims covered by the
Programs;
(f) to provide loss analysis and control by the use of statistical analysis, data
processing, and record and file keeping services, in order to identify high exposure operations
and to evaluate proper levels of self - retention and deductibles;
(g) to review Member contracts to determine sufficiency of indemnity and insurance
provisions when requested;
(h) to conduct risk management audits relating to the participation of Members in the
Programs; and
(i) to provide such other services as deemed appropriate by the Board of Directors.
Article 17. Responsibilities of Members. Members or Former Members shall have the
following responsibilities, which shall survive the withdrawal from, or involuntary termination
of participation in, this Agreement:
SDRMA 6`t' Amended JPA- 10 Effective October, 2007
(a) Each Member shall designate a person to be responsible for the risk management
function within that Member and to serve as a liaison between the Member and the Authority as
to risk management.
(b) Each Member shall maintain an active safety officer and/or committee, and shall
consider all recommendations of the Authority concerning unsafe practices and/or hazard
mitigation.
(c) Each Member shall maintain its own set of records, including a loss log, in all
categories of risk covered by each Program in which it participates to insure accuracy of the
Authority's loss reporting system, unless it is no longer deemed necessary by the Board of
Directors.
(d) Each Member shall pay its Contribution, and any adjustments thereto, and any
Assessments within the specified period set forth in the invoice, or as otherwise may be set forth
herein or in the Bylaws. After withdrawal or termination, each Former Member or its successor
shall pay promptly to the Authority its share of any additional Contribution, adjustments or
Assessments, if any, as required of it by the Board of Directors under Article 21 or 22 of this
Agreement or the Bylaws.
(e) Each Member or Former Member shall provide the Authority with such other
information or assistance as may be necessary for the Authority to carry out the Programs under
this Agreement in which the Member or Former Member participates or has participated.
(f) Each Member or Former Member shall in any and all ways cooperate with and
assist the Authority and any insurer of the Authority, in all matters relating to this Agreement
and covered claims.
(g) Each Member or Former Member will comply with all Bylaws, rules and
regulations adopted by the Board of Directors.
(h) Each Member shall remain a member in good standing of CSDA.
Article 18. New Members. The Authority shall allow entry into its Programs of new
Members only upon approval of the Board, with any conditions or limitations as the Board
deems appropriate. In order to become a Member and remain a Member, any District must be a
member in good standing of CSDA, shall participate in at least one (1) Joint Protection Program
and shall be authorized to exercise the common powers set forth in this Agreement.
Article 19. Withdrawal.
(A) Any Member may voluntarily withdraw from this Agreement only at the end of
any applicable Program Year and only if:
(i) The Member has been a signatory to this Agreement for not less than three
(3) full Program Years as of the date of the proposed withdrawal;
SDRMA 6 `h Amended JPA' 11 Effective October, 2007
(ii) The Member submits a written withdrawal notification in accordance with
the Bylaws;
(iii) In order to withdraw from the agreement the member must have
completed the three (3) full program year participation, requirement for
each Joint Protection Program the member participated in at the time of
withdrawal.
(B) Any Member may voluntarily withdraw from any particular Joint Protection
Program; and
(i) It has participated in such Joint Protection Program for at least three (3)
full Program Years;
(ii) it is a participant in another Joint Protection Program; and
(iii) the Member submits a written withdrawal notification in accordance with
the Bylaws.
(C) In the event that the three year participation requirement as required by (A)(i) or
(B)(i) as to any such Joint Protection Program above has not been met, for each Program the
withdrawing Member participated in at the time of its withdrawal, for less than three years such
withdrawing member shall be obligated to pay all Contributions and Assessments as if that
Member had remained in each such Program for the full three years from the inception of its
membership in the Authority.
(D) In the event that the notice is not provided as required. by (A)(ii) or (B)(iii) above,
any such withdrawing Member shall, with respect to each Program the Member participated in,
be obligated to pay any and all Contributions and Assessments for the next full Program Year.
(E) A Member may withdraw from any Program (other than a Joint Protection
Program) as provided by the Coverage Documents relating to such Program.
(F) Withdrawal of one or more Members shall not serve to terminate this Agreement.
(G) A Member may not withdraw as a party to this Agreement until it has withdrawn,
as provided in the Bylaws from all of the Programs of the Authority.
Article 20. Involuntary Termination.
. (a) Notwithstanding the provisions of Article 19, the Authority shall have the right to
involuntarily terminate any Member's participation in any Program, or terminate membership in
the Authority, as provided in the Bylaws.
(b) Notwithstanding any other provisions of this Agreement, the participation of any
Member of the Authority, including participation in any of the Authority's Programs, may be
involuntarily terminated at the discretion of the Board of Directors whenever such Member is
dissolved, consolidated, merged or annexed. A reasonable time shall be afforded, in the
SDRMA 6 `h Amended JPA' 12 Effective October, 2007
discretion of the Board of Directors, to place coverage elsewhere. Any such involuntary
termination shall not relieve the Member or Former Member of its responsibilities as provided
for in Articles 17 or 21.
Article 21. Effect of Withdrawal or Involuntary Termination. The withdrawal from
or involuntary termination of any Member from this Agreement shall not terminate this
Agreement, and such Member, by withdrawing or being involuntarily terminated, shall not be
entitled to payment, return or refund of any Contribution, Assessment, consideration, or other
property paid, or donated by the Member to the Authority, or to any return of any loss reserve
contribution, or to any distribution of assets (except payment of any Retained Earnings, as set
forth in the following paragraph).
The withdrawal from or -involuntary termination of any Member after the effective date
of any Program shall not terminate its responsibility to pay its unpaid Contribution adjustments,
or Assessments to such Program. The Board of Directors shall determine the final amount due
from the Member or Former Member by way of contribution or assessments, if any, or any credit
due on account thereof, to the Member or Former Member for the period of its participation.
Such determination shall not be made by the Board of Directors until all Claims, or other unpaid
liabilities, have been finally resolved. In connection with this determination, the Board of
Directors may exercise similar powers to those provided for in Article 22(b) of this Agreement,
or as otherwise set forth in the Bylaws. Upon such withdrawal from or cancellation of
participation in any Program by any Member, said Member shall be entitled to receive its pro
rata share of any Retained Earnings declared by the Board of Directors after the date of said
• Member withdraws or is involuntarily terminated.
Article 22. Termination and Distribution; Assignment.
(a) This Agreement may be terminated any time with the written consent of two -
thirds of the voting Members; provided, however, that this Agreement and the Authority shall
continue to exist for the purpose of disposing of all claims, distribution of net assets and all other
functions necessary to wind up the affairs of the Authority.
(b) The Board of Directors is vested with all powers of the Authority for the purpose
of winding up and dissolving the business affairs of the Authority. These powers shall include
the power to require Members or Former Members, including those which were signatory hereto
at the time the subject Claims arose or was /were incurred, to pay any Assessment in accordance
with loss allocation formulas for final disposition of all Claims and losses covered by this
Agreement or the Bylaws. A Member or Former Member's Assessment shall be determined as
set forth in the Bylaws or the applicable Coverage Documents.
(c) Upon termination of a Program, all net assets of such Program other than
Retained Earnings shall be distributed only among the Members that are participating in such
Program at the time of termination, in accordance with and proportionate to their cash payments
(including Contributions, adjustments, Assessments and other property at market value when
received) made during the term of this Agreement for such Program. The Board of Directors
shall determine such distribution within six (6) months after disposal of the last pending Claim or
loss covered by such Program, or as otherwise set forth in the Bylaws.
SDRMA 6 `h Amended JPA- 13 Effective October, 2007
(d) Upon termination of this Agreement all net assets of the Authority, other than of
any Program distributed pursuant to (c) above, shall be distributed only among the Members in
good standing at the time of such termination in accordance with and proportionate to their cash
contributions and property at market value when received. The Board of Directors shall
determine such distribution within six (6) months after disposal of the last pending Claim or loss
covered by this Agreement, or as otherwise set forth in the Bylaws.
(e) In the event the Board of Directors is no longer able to assemble a quorum, the
Chief Executive Officer shall exercise all powers and authority under this Article. The decision
of the Board of Directors or Chief Executive Officer under this Article shall be final.
(f) In lieu of terminating this Agreement, the Board, with the written consent of two -
thirds of the voting Members, may elect to assign and transfer all of the Authority's rights,
assets, liabilities and obligations to a successor joint powers authority created under the Act.
Article 23. Enforcement. The Authority is hereby granted authority to enforce this
Agreement. In the event action is instituted to enforce the terms of this Agreement, the Bylaws
and/or any policies and/or procedures of the Board of Directors and the nondefaulting party(s)
should employ attorneys or incur other expenses for the collection of moneys or the enforcement
or performance or observance of any obligation or agreement on the part of the defaulting
party(s) herein contained, the defaulting party agrees that it will on demand therefore pay to the
nondefaulting party(s) the reasonable fees of such attorneys and such other expenses so incurred
by the nondefaulting party(s).
Article 24. Nonliability of Directors, Officers and Employees. The Board of
Directors, and the officers and employees of the Authority, including former directors, officers
and employees, shall not be liable to the Authority, to any Member or Former Member, or to any
other person, for actual or alleged breach of duty, mistake of judgment, neglect, error,
misstatement, misleading statement, or any other act or omission in the performance of their
duties hereunder; for any action taken or omitted by any employee or independent contractor; for
loss incurred through the investment or failure to invest funds; or for loss attributable to any
failure or omission to procure or maintain insurance; except in the event of fraud, gross
negligence, or intentional misconduct of such director, officer or employee. No director, officer
or employee, including former directors, officers and employees, shall be liable for any action
taken or omitted by any other director, officer or employee. The Authority shall defend and shall
indemnify and hold harmless its directors, officers and employees, including former directors,
officers and employees, from any and all claims, demands, causes of action, and damages arising
out of their performance of their duties as such directors, officers or employees of the Authority
except in the event of fraud, gross negligence, corruption, malice or intentional misconduct, and
the funds of the Authority shall be used for such purpose. The. Authority may purchase
conventional insurance to protect the Authority, and its participating Members or Former
Members, against any such acts or omissions by its directors, officers and employees, including
former directors, officers and employees.
Article 25. Provisions Relating' to CSDA. It is agreed and understood the mandatory
membership in CSDA provision in Article 18 is in consideration of CSDA's exclusive
endorsement of SDRMA's programs as they, exist or may be modified. CSDA and the Authority
SDRMA 6`h Amended JPA- 14 Effective October, 2007
may from time to time exchange services or enter into separate service agreements pursuant to
Section 6505 of the Act, including, but not limited to, services relating to educational programs,
marketing, web -site graphics and conferences.
So long as the Authority is a participant in the MOU, the Board of the Authority shall
appoint three members of the Board to serve as members of the Alliance Executive Council. In
the event the MOU has been terminated or the Authority has withdrawn from the MOU, the
composition of the Authority Board of Directors shall be increased by two (2) additional
directors to be appointed by CSDA. CSDA appointees shall be a director serving on the CSDA
Board of Directors and said director(s) shall be a member of an agency who is a signatory to the
current SDRMA Joint Powers Agreement.
CSDA shall be a third party beneficiary to Sections 18, 25, 27 of this Agreement.
Article 26. Notices. Notices to Members or Former Members hereunder shall be
sufficient if delivered to the principal office of the respective Member or Former Member.
Article 27. Amendment. This Agreement may be amended at any time by a two - thirds
vote of the Members; provided, that any amendment to Article 18, Article 25, or Article 27 shall
require the prior written consent of CSDA. The Bylaws may be amended as provided therein.
Upon the effective date of any validly approved amendment to this Agreement, such amendment,
shall be binding on all Members.
Article 28. Prohibition Against Assignment. No person or organization shall be
entitled to assert the rights, either direct or derivative, of any Member or Former Member under
any coverage agreement or memorandum. No Member or Former Member may assign any right,
claim or interest it may have under this Agreement, and no creditor, assignee or third party
beneficiary of any Member or Former Member shall have any right, claim or title or any part,
share, interest, fund, contribution or asset of the Authority.
Article 29. Agreement Complete. The foregoing constitutes the full and complete
Agreement of the parties. There are no oral understandings or agreements not set forth in writing
herein. This Agreement supersedes and replaces the Fifth Amended Joint Powers Amendment.
Article 30. Counterparts. This Agreement may be executed in one or more
counterparts and shall be as fully effective as though executed in one document.
Article 31. California Law. This Agreement shall be governed by the laws of the State
of California.
Article 32. Severability. Should any part, term or provisions of this Agreement be
determined by any court of component jurisdiction to be illegal or in conflict with any law of the
State of California or otherwise be rendered unenforceable or ineffectual, the validity of the
remaining portions or provisions shall not be affected thereby.
Article 33. Effective Date. This Agreement shall become effective as to existing
Members of the Authority on the date on which the last of two - thirds of such Members have
executed this Agreement.
SDRMA 6`h Amended JPA- 15 Effective October, 2007
4.
IN WITNESS WHEREOF, the parties hereto have first executed this Agreement by
authorized officials thereof on the date indicated below:
Acknowledgement:
Ken Sonksen, President
Board of Directors Date
SPECIAL DISTRICT RISK MANAGEMENT AUTHORITY
I hereby certify this Amended Joint Powers Agreement has also received the required approval
of not less than two - thirds of the Member entities then parties to the Fifth Amended Joint Powers
Agreement.
James W. Towns, Chief Executive Officer
SPECIAL DISTRICT RISK MANAGEMENT AUTHORITY
Date
SDRMA 6'h Amended JPA- 16 Effective October, 2007
• EXECUTION BY MEMBER
The Amended and Restated Joint Powers Agreement of the Special District Risk Management
Authority, has been approved by the Board of Directors of the Member listed below, on the date
shown, and said Member agrees to be subject to all of the terms and conditions set forth in said
Agreement.
Entity Name:
.2
Costa Mesa Sanitary District
Date: - M' A007
— /
President
Clerk
EXECUTION BY AUTHORITY
The Special District Risk Management Authority (the "Authority "), operating and functioning
pursuant to this Sixth Amended Joint Powers Agreement, hereby accepts the entity named above
as a participating member in the Authority, subject to all of the terms and conditions set forth in
this Sixth Amended Joint Powers Agreement and in the Bylaws, effective as of
a-cw7
SPECIAL DISTRICT RISK MANAGEMENT AUTHORITY
Ken Sonksen, President
Board of Directors
SDRMA 6`h Amended JPA-
17
Effective October, 2007