Loading...
Municipal Pooling Authority (MPA) - JPAMUNICIPAL POOLING AUTHORITY .POINT EXERCISE OF POWERS AGREEMENT This Agreement is dated for convenience as of p rs l i 2605-and entered into between certain Public Entities, hereafter referred to as °Members," as identified in the Bylaws. RECITALS This Agreement is predicated upon the following facts: I . The Members are public entities organized and operating under the laws of the State of California; 2. The following state laws, among others, authorize the Members to enter into this Agreement: a. Labor Code Section 3700(b) allowing a public entity to fund its own workers' compensation claims; b. Government Code Section 990. permitting a public entity to insure itself against tort or inverse condemnation liability and to insure any employee of the public entity against all or any part of his liability for injury resulting from an act or omission in the scope of his employment; C. Government Code Section 990.4 permitting a public entity to provide insurance and self- insurance in any desired combination; d. Government Code Section 990.8 permitting two or more public entities to enter into an agreement to jointly fund such expenditures under the authority of Government Code Sections 6500 -6515; and e. Government Code Sections 6500 -6515 permitting two or more public entities to jointly exercise under an agreement any power which is common to each of them. 3. Each of the Members desires to enter into an agreement with each of the others for the purpose of insuring against various risks jointly, rather than individually. 4. Pursuant to Government Code Section 6508.1, the debts, liabilities and obligations of this Authority shall not constitute debts, liabilities, or obligations of the Members. 5. The Authority was originally formed by a Joint Powers Agreement in 1977. Since that time the Agreement has been amended several times and Members have withdrawn from and new Members have been added to the Authority. NOW, THEREFORE, for and in consideration of the mutual benefits, covenants and agreements set forth herein, the parties agree as follows: SECTION 4 Authority and Purpose This Agreement is made under the authority of Government Code Sections 6500 -6515 beuveen the Members identified in the Bylaws. The purpose of this Agreement Is to exercise jointly powers common to each Member by managing risks and pooling or purchasing coverage for losses. SECTION 2 Definitions Unless the context otherwise requires: 1. "Authority" means the Municipal Pooling Authority created by this Agreement; 2. "Board" is the governing body of the Authority; 3. "Chief Administrative Officer" is the person appointed by the Board to be its secretary and Risk Manager of the Authority.. -4. "Claim" means a claim for personal injury, death, real or personal property' damage, and workers' compensation benefits; 6. "Covered Losses" are those losses resulting from. claims which are in excess of the Member's deductible and are covered by the Authority either under the Memorandum of Coverage or purchased insurance; 6. . "Member" means a party to this Joint Powers Agreement; 7. "Memorandum of Coverage" is the , document memorializing the terms, conditions; and limitations of the coverage for those risks which the Cities agree to self - Insure. SECTION 3 Creation of Authority The Authority is created under Section 6500 of the Government Code as a public entity, separate and apart from the parties to this Agreement. SECTION 4 Terms of Agreement This Agreement becomes effective as of the date and year first above written and continues until terminated as hereafter provided. The prior Joint Powers Agreement is terminated upon the effective date hereof. The rights and, obligations of the parties under the prior Joint Powers Agreement remain the same under this Agreement except to the extent of the amendments made hereby. Board Adopted December 10, 2004 2 SECTION fi . Governing„ Board The Authority shall be governed by a Board composed of one individual from each Member, each serving In an individual- capacity as a member of the Board. Each Member's governing body shall appoint to the Board either its Manager or Director, or the department head or staff person responsible for its risk management function. Each Board member shall have one vote. Each Member shall appoint one Altemats to the Board. The Alternate shall have the same qualifications as the Board member. The Alternate may attend, participate in, and vote at any meeting of the Board at which the regular Board member is absent. SECTION 6 Board Meetings and Records (a) Regular Meetings. The Board shalt hold at least one regular meeting each year. The Board shall fix the date upon which and the hour and place at which each . regular meeting Is to be held, and the Chief Administrative Officer shall notify each Member of -that action. All meetings shall be held in a manner consistent with the Bylaws and in compliance with the Ralph M. Brown Act. (b) By .-Laws and Reaulations. The Board .may adopt by -laws and regulations, which are not inconsistent either with applicable law or with this Agreement. in the event the by -laws or regulations are inconsistent with this Agreement, this Agreement shall control, The Chief Administrative Officer shall send to each Member each by -law and regulation and amendment thereto promptly after its adoption by the Board. (c) Executive Ccmmittee.The Board may establish an Executive Committee and delegate to It functions not otherwise reserved to the entire Board. SECTION 7 Officers (a) The Board shall elect a president and vice - president from among Its members to perform the duties set forth in the Bylaws. (b) The Chief Administrative Officer shall be the Secretary of the Authority and shall be responsible for maintaining all records of the Authority. (c) The Board shall elect a Treasurer and Auditor with the qualifications and to perform the duties set forth in the Bylaws, (d) The Board may appoint such other officers and employees and may contract with consultants and other professional persons or firms,. as it considers necessary to carry out the purposes of this Agreement. Board Adopted December 10, 2004 SECTION 8 Powers The Authority is authorized, in its own name,. to do all acts necessary for the exercise of those powers referred to in the Recitals including, but not limited to, each of the following: (1) Make and enter into contracts; (2) Incur debts, liabilities and obligations but no debt, liability or obligation of the Authority is a debt„ liability or obligation of any Member, pursuant to Government Code Section 6508.1; (3) Acquire, hold or dispose of real and 'personal property; (4) Receive contributions and donations of property, funds; services and other forms of assistance from any source; (5) Sue and be sued in its own name; (6) Employ agents and employees; (7) Acquire, construct, manage and maintain buildings; (8) Lease real or personal property including that of a Member; (9) Receive, collect, invest, and disburse monies; and (10) Cary out other duties as required to accomplish other responsibilities as set forth In this Agreement. These powers shall be exercised in the manner provided by law and as expressly set forth In this Agreement, subject only to those restrictions upon the manner of exercising the. powers which are imposed upon Members in. the exercise of similar powers. SECTION 9 Fiscal Year The "fiscal year" of the Authority is the period from the first day of July of each year to and tnciuding the 30th day of June of the following year. SECTION 10 Coverage Provided by the Authority Pursuant to the payment of contributions by each Member, the Authority shall provide coverage .under a Memorandum of Coverage andlor purchased insurance under the programs selected by the Member. Board Adopted December 10, 2004 4 - - ......... - ------ _._...._._ SECTION 11 Establishment and Administration of Funds The Board shall establish such funds as it deems necessary to conduct the business of the Authority. SECTION 112 Budget The Authority shall adopt an annual budget no later-than the first day of Its fiscal year. SECTION 13 Member Contributions The Chief Administrative Officer shall calculate annually the amount of contributions to be charged for risk coverage required by Members, The Board shall approve each charge'before it takes effect, Each Member by the act of paying its contribution accepts the coverage provided by the Authority. SECTION 14 Accounts and Records The CAO shall establish and maintain the funds and accounts in accordance with acceptable accounting practices and shall maintain such other records as the Board requires pursuant to the procedures set forth in the Bylaws. The CAO of the Authority shall have the custody of and disburse Authority funds as provided by accounting procedures developed in accordance with this Agreement and the Bylaws. SECTION 15 Reserves Separate reserves shall be maintained in the funds for each type of coverage. SECTION 16 Authority Functions and Reseonsiblilties The Authority shall provide comprehensive risk management services to its members. SECTION 17 Member Resb6nslbilities Each Member has the following responsibilities: (1') Appoint its representative and alternate to the Authority Board; (2) Cooperate fully with the Authority in determining the cause of losses and in the settlement of losses; Board Adopted December 10, 2004 5 (3) Comply with risk management requirements established by the Authority pursuant to this Agreement; (4) Pay contributions and assessments approved by the Board. SECTION 18 New Members With the approval of two--thirds of all members of the Board, any other public entity in Contra Costa County or in the general geographic area reasonably serviceable from Contra Costa County may become a party to this Agreement upon execution of this Agreement, and shall forthwith pay to the Authority its current contribution payment as determined by the Board. SECTION 19 Cancellation of Coverage in a Program or Pro-grams If a Member falls to comply with this Agreement, the Bylaws, or any procedures or policies -established by the .Board, the Board may, by a two- thirds vote, refuse to provide coverage or may cancel any coverage being provided to that Member in any program(s). SECTION 20 Termination of Agreement and Disposition of Assets Upon Termination of Agreement This Agreement may be terminated upon the unanimous consent of all parties to it, Upon complete termination of this Agreement by all Members and the settlement of all liabilities and claims, Including incurred but not reported claims, all property of the Authority shall be divided among the Members in a ratio equal to that of the total amounts paid by the Members for the five (5) fiscal years preceding the year in which the Agreement is terminated- SECTION 21 Withdrawal of a Member A Member may withdraw as a party to the Agreement at the end of any fiscal year upon giving the Authority six (6) months prior written notice of its intent to withdraw. SECTION 22 Expulsion The Board by a three- fourths vote of all members may expel any member for the reasons and under the procedures set forth in the Bylaws, Board Adopted December 10, 2004 6 SECTION 23 Effect of Withdrawal or Expulsion The withdrawal or expulsion of any Member shall not terminate its responsibilities and obligations as set forth in the Bylaws. Upon withdrawal of a Member, that Member is entitled only to its pro rata share of the balance of the amount paid by It for the fiscal year in which withdrawal takes place. That Member shall not participate in or be entitled to any other funds, property, or other assets of the Authority. Coverages under all pool coverage programs for the coverage periods in which that Member participated will remain in effect and continue until the conclusion of their respective program - years, SECTION 24 Liability and Indemnification The Authority shall defend and indemnify its directors, officers, and employees to the same extent as any other public entity of the State of California is obliged to defend and indemnify its public employees pursuant to California Government Code Section 825, et seq., or other applicable provisions of law. The Authority may insure or self- insure itself to the extent deemed necessary by the Board against loss, liability and claims arising out of or connected to the conduct of the Authority's activities. SECTION 25 Assessment Upon a two- thirds vote of the entire Board, the Board shall have the authority to levy a cash assessment for any pooled coverage program if the Board finds that there are insufficient funds available to the Authority to meet its legal obligations. Any cost, including attorneys' fees, incurred by the Authority in collecting any cash assessment shall be reimbursed by the Member against which such collection action has been taken. SECTION 26 Dividends and Premium Rebates Upon'a two - thirds vote of the Board, the Board shall have the authority to declare a dividend, rebate of excess contributions, and/or reduction of future contributions for any pooled coverage program if the Board finds there are excess reserves in the retention fund. SECTION 27 Severabtllty If any portion, term, condition or provision of this Agreement is determined by a court to be illegal or in conflict with a law of the State of California, or is otherwise rendered unenforceable or ineffectual, the validity of the remaining portions, terms, conditions, and provisions is not affected. Board Adopted December 10, 2004 SECTION 28 Prohibition AnainstAsslariment No Member may assign aright, claim, or interest it may have under this Agreement. No creditor, assignee, or third party beneficiary of a Member has a right, claim, or title to any part, share, interest, fund,. premium, or asset of the Authority. SECTION 29 Amendment This Agreement may be amended by Resolution of the goveming bodies of two - thirds of the then- participating Members. SECTION 30 Notices Notices to Members under this Agreement shall be sufficient if delivered to the office of the Member, Notices to the Authority shall be sufficient if delivered to the office of the CAO. Board Adopted December 10, 2004 8 IN WITNESS WHEREOF, the _parties hereto have executed this Joint Exercise of Powers Agreement as off 0 New parties to agreement after April 1, 2005. I JOINT EXERCISE OF POWERS AGREEMENT ti P� Effective: July 1, 2014 MEMORANDUM OF COVERAGE FOR THE MUNICIPAL POOLING AUTHORITY Throughout this Agreement, words and phrases that appear in italics and quotation marks have special meaning. They are defined in Section II, "Definitions." In consideration of the payment of the premium, the Authority agrees with the "covered parties" as follows: SECTION I -COVERAGES The Authority will pay up to the "limit of coverage" those sums on behalf of the "covered parties" for "ultimate net loss" in excess of the specific_ deductible that the "covered parties" become .legally obligated to pay as "damages" by reason of liability imposed by law or liability assumed by contract because of A. "Bodily injury" or "property damage" and/or B. "Personal injury " and /or C. "Public officials errors and omissions" as those terms are herein defined and to which this agreement applies, caused by an "occurrence" during the coverage period. As a condition precedent for the Authority to have any duty under this Memorandum, including the duty to pay "ultimate net loss" or any portion thereof, a "covered party" shall first have complied fully with the provisions of SECTION VIII — CONDITIONS. A "covered party's" failure to so comply shall void the coverage described herein, unless coverage is extended by majority vote of the Board. This Memorandum does not provide insurance, but instead provides for pooled self- insurance. This Memorandum is a negotiated agreement amongst the Members of the Authority, and as such, no party to the Memorandum is entitled to interpret this agreement by reference to legal principles specific to contracts of adhesion, or to commercial insurers. Similarly, no party to this Memorandum may rely on any contract interpretation principles which require interpretation of ambiguous language against the drafter of such agreement. This agreement shall be applied according to the principles of contract law, giving full effect to* the intent and reasonable expectation of the members of the Authority, acting through the Board of Directors. As the Authority is not an insurer, it is not bound by the provisions of Civil Code §2860, which pertains to an insurer's obligation to provide independent counsel to an insured under circumstances defined by that statute. SECTION II - .DEFINITIONS 1. "Additional covered party" means any person or "entity" named as an "additional covered party" and holding a certificate of coverage duly issued by the Authority, for "occurrences" during the coverage period identified in. the certificate of coverage; if a particular activity is identified in the certificate of coverage, the person or "entity" is a "covered party" only for "occurrences" arising out of the described activity. Coverage for an "additional covered party" shall be provided only when and to the extent required under the contract, subject to the terms and conditions of this Memorandum. 2. "Aircraft" means a vehicle designed for the transport of persons or property principally in the air. I "Automobile" means a land motor vehicle, trailer or semi - trailer. 4. "Bodily injury" means bodily injury, sickness, disease, or emotional distress sustained by a person, including death resulting from any of these at any time. Bodily injury includes "damages "claimed by any person or organization for care, loss of service or death resulting at any time from the bodily injury. 5. "Covered indemnity contract" means that part of a contractor agreement pertaining to the "covered party's " governmental operations, including but not limited to: a) Leases; b) Mutual aid agreements; c) Public works contracts; d) Special events sponsored by the "covered party," e) Easement or license agreements; or f) Use of facilities or equipment by the "covered party, under which the "covered party" assumes the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization. This definition applies only to tort liability arising out of an "occurrence" to which this Agreement applies. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. 6. "Covered individuals" means persons who are past or present elected or. appointed officials, employees or volunteers of the "entity", whether or not compensated, while acting for or on behalf of the "entity," including while acting on outside boards conditioned by the following guidelines: (a) The Authority's coverage will be excess and will not contribute to any other coverage available to the outside Board or Commission; (b) If the agency Board does not carry coverage, the member should encourage. they obtain coverage of their own; (c) To be afforded coverage, the individual must be acting in good faith, without malice or oppression, and in the best interest of the "entity; " and (d) Extension of coverage is in the best interest of the "entity; " except an airport or hospital board regardless of how such body is denominated. Under no circumstances shall the -Authority have a duty to defend or indemnify any "covered individual" under circumstances in which the "entity" itself is not legally required to do so. The Board, at its sole discretion, may waive this section if it deems it is in the best interest of the Authority. 7. "Covered party" means any person, organization, trust or agency qualifying as a covered party in the covered parties section of this agreement. 8. "Damages" means compensation in money recovered by a party for loss or detriment it has suffered through the acts of a "covered party:" 9.' "Defense costs" means all fees and expenses caused by and relating to the investigation, defense or litigation of a claim including attorney's fees, court costs and interest on judgments accruing after entry of judgment. Defense costs shall not include the office expenses of the Authority or the "covered party" nor the salaries of employees or officials of the Authority or any "covered party. " Defense costs shall not include any fee or expense relating to coverage issues or disputes between the authority and any "covered party. " Defense costs shall not include attorney fees or costs awarded to a prevailing plaintiff against the "covered party. " 10. "Entity" means the entity named in the Declarations, including any and all commissions, agencies, districts, authorities, boards (including the governing board) or similar entities coming under the entity's direction or control or for which the entity's board members sit as the governing body. Entity includes all departments and constituent agencies of the entity. 11. `Limit of coverage" means the amount of coverage stated in the declaration.page or certificate of coverage for each. "covered party" per "occurrence." For each "occurrence," there shall be only one limit of coverage regardless of the number of claimants or "covered parties" against whom a claim is made. In the event that a structured settlement, whether purchased from or through a third- party, or paid directly by the "covered party" in installments, is utilized in the resolution of a claim or suit, the Authority will pay only up to the amount stated in the Declarations or certificate of coverage in present value of the claim, as determined on the date of settlement, regardless of whether the full value of the settlement exceeds the amount the in the Declarations or certificate of coverage. 12. "Medical malpractice" means the rendering of or failure to render any of the following services: (a) Medical, surgical, dental, psychiatric, psychological counseling, x -ray or nursing services, or treatment or the furnishing of any food or beverage in connection therewith; or any services provided by a health care provider as defined in section 6146(c), (2), (3) of the California Business and Professions Code. (b) Furnishing or dispensing of drugs or medical, dental or surgical supplies or appliances. Medical malpractice does not include first aid administered by employees, nor does it include advice or services rendered by a 911 emergency dispatcher. 13. "Nuclear material" means source material, special nuclear material, -or by- product .material. "Source material," "special nuclear material," and "by- product material" have the meanings given to them by the Atomic Epergy Act of 1954 or in any law amendatory thereof. 14. "Occurrence" means: (a) With respect to "bodily injury" or "property damage: " an. accident, including continuous or repeated exposure to substantially the same generally harmful conditions, which results in "bodily injury or "property damage" neither expected nor intended from the standpoint of the "covered party. " . (b) With respect to `personal injury" and `public officials errors and omissions "respectively: an offense described in the definitions of those terms in this Memorandum. 15. "Personal injury" means injury, other than "bodily injury, " arising out of one or more of the following: (a) False arrest, detention or imprisonment, or malicious prosecution; (b) Abuse of legal process; (c) Wrongful entry into, or eviction of a person from, a room, dwelling or premises that the person occupies; (d) Publication or utterance of material that slanders or libels a person or organization or disparages a person's organization's goods, products or services, or oral or written publication of material that violates a person's right of privacy; (e) Unlawful discrimination or violation of civil rights; or (f) Injury resulting from the use of reasonable force for the purpose of protecting persons or property. 16. "Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids,, alkalis, chemicals, airborne particles or fibers, iholds and/or fungus, fungal pathogens, electromagnetic frelds, and waste. Waste includes materials to be recycled, reconditioned or reclaimed. The term pollutants, as used herein, do not mean potable water, agricultural water, water furnished to commercial users, or water used for fire suppression. 17. "Property damage" means: (a) Physical injury to tangible property, including all resulting loss of use of that property, or (b) foss of use of tangible property that is not physically injured or destroyed. 18. "Public officials errors and omissions" means any actual or alleged misstatement or misleading statement or any act or omission by "covered- individuals individually or collectively in the discharge of then duties with the "entity" and resulting in damage neither expected nor intended from the standpoint of the "covered party. " All claims involving the same misstatement or misleading statement or act or omission or a series of continuous or interrelated misstatements or misleading statements or acts or'bmissions will. be considered as arising out of one "occurrence." 19. "Ultimate net loss" means the sum actually paid or payable in cash in the settlement or satisfaction, investigation or defense of losses for which the "covered party is liable either by adjudication or by compromise with the written consent of the Authority, after making proper deduction for all recoveries and salvages and other collectible insurance. Ultimate net loss shall include "defense costs" and related expenses incurred by the Authority. Ultimate net loss does not include attorney fees or costs awarded to a prevailing plaintiff unless such fees or costs are related to a claim for "damages " covered by this Memorandum. SECTION IH -DEFENSE AND SETTLEMENT With respect to claims or suits for "damages "to which this Memorandum applies, the Authority shall have the right and duty to defend any claim or suit against the "covered party even if any allegations are groundless; false or fraudulent. However, in making the determination of its duty to defend, the Authority may rely on the facts alleged within a third party's complaint, and those extrinsic facts known to it. The Authority shall have no duty to speculate about unpled theories of recovery in order to determine its obligations to defend or to indemnify, nor shall the Authority be under any continuing duty to investigate whether a potential for coverage has arisen at some future date. . The Authority, at its own expense, and with a two- thirds vote of the Board members present at the meeting, shall have the right to assume the control of the negotiation, investigation, defense, appeal .or settlement of any claim which the Authority determines, in its sole discretion, to have a reasonable probability of resulting in an "ultimate net loss" in excess of the applicable retained limit. The "covered party" shall fully cooperate in all matters pertaining to such claim or proceeding.. The "covered party" shall be obligated to pay or reimburse the Authority for the entire "ultimate net loss, " up to the deductible. If the "ultimate net loss" exceeds the "covered party's" deductible, the Authority shall be obligated to pay or cause to be paid the "ultimate net loss" in excess of the deductible, up to the Limit of Liability. The Authority shall not be obligated .to pay any judgment of settlement or to participate in the defense of any claim or suit after the AUTHORITY'S LUVIIT OF LIABILITY has been totally exhausted by the payment of "defense costs" and /or . judgments or settlements. No claim shall be. settled for an amount in excess of the "limit of coverage" without the prior written consent of the Authority, and, the Authority shall not be required to contribute to any settlement to which it has not consented. SECTION IV - THE AUTHORITY'S LIMIT OF LIABILITY Regardless of the number of: (1) Persons or "entities" covered under this agreement, (2) Persons or organizations making claims or bringing suits, or (3) Claims made or suits brought, the each "Occurrence" limit is the most the Authority will pay for "ultimate net loss" arising out of any one "occurrence. " The "limit of coverage" for any additional "additional covered party" as defined in Section 2, # 1, subject to the per "occurrence" limitation above, shall. not exceed the limit stated in its "additional covered party" certificate regardless bf the limit which applies to the member. 5 SECTION V - COVERAGE PERIOD AND TERRITORY This agreement applies to "bodily injury, " `personal injury, " `property damage" or `public officials errors and omissions " which, occur anywhere in the world during the coverage period. SECTION VI - "'COVERED PARTIES" The parties covered by this agreement are: (A) The "entity. " (B) "Covered individuals." (C) With respect to any "automobile" owned or leased by the "entity" or loaned to or hired for use by or on behalf of the "entity," any, person while using such "automobile" and any person or organization legally responsible-for the use thereof, provided the actual use is with the permission of the "entity, " and with respect to any '.automobile" owned or leased by an employee of the "entity" or by a member of the "entity's" governing board, if the "entity" reimburses or pays the employee or governing board member for use of such "automobile,_" and only if such "automobile" is operated by said employee or governing board member in the course and scope of employment and only to the extent that the coverage provided hereunder shall be in excess of any other insurance for said "automobile. " The foregoing notwithstanding, this coverage does not apply to: (1). Any person or organization or any agent or employee thereof, operating an "automobile" sales agency, repair shop, service station, storage garage or public parking place, with respect to an "occurrence" arising. out of the operation thereof; or (2) The owner or any lessee, other than the "entity, " of a leased or hired "automobile" or any agent or employee of such owner or lessee. (D) Any "additional covered party. " (E) "Covered party" does not include any person, organization, trust or estate or any other type of entity for any risk, claim, or loss which is incurred or occurs under any other joint powers authority, or any joint powers agreement which creates a separate agency or entity, unless added hereto by endorsement. However, as to any person who is an official, employee, or volunteer of an "entity" named in the Declarations and is participating in the activities of any other joint powers authority or any separate- agency or entity created under any joint powers agreement on behalf of that "entity," the coverage afforded in this Memorandum of Coverage will apply in excess of and shall not contribute with any collectible insurance or other coverage provided to or through the other joint powers authority or joint powers agreement covering a loss also covered hereunder, whether on a primary, excess, or contingent basis. SECTION VII - EXCLUSIONS This agreement does not apply to: (a) Claims arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, plumage, release or escape of `pollutants "into or upon land, the atmosphere, or any watercourse or body of water. This exclusion does not apply to fire fighting activities, including training burns, or intentional demolition or burns for the purpose of controlling a fire, or the discharge of "pollutants" for the purpose of controlling a fine; or to police use of mace, oleoresin capsicum (O.C.), pepper gas or tear gas; to weed abatement or tree spraying; or spraying of any pesticide. This exclusion does not apply to claims arising from sudden and accidental sewer backups. This exclusion— o apply to "claims arisingromi tlie sudderi an – acciddental chsc it arge, dispersal, release, or escape of chlorine and other chemicals (gas, liquid or solid)'which are being used or.being prepared for use in fresh or waste water treatment or in water used in swimming pools, wading pools or decorative fountains. As used herein, "sudden" means abrupt or immediate, and occurring within a period not exceeding twenty -four (24) hours; "accidental" means causing harm neither expected nor intended by a "covered party. " This exclusion does not apply to claims arising from mold and /or fungus, with coverage limited "to an amount up to $100,000 over the "covered party's" specific deductible per "occurrence." This exclusion does not apply to claims arising from materials being collected as part of any drop - off or curbside recycling program implemented and operated by the "covered party," if the materials have not been stored by the "covered party" or "parties" for a continuous period exceeding ninety (90) days. (b) Any loss, cost, or expense arising out of any governmental order,. directions or request that the "covered party" or any other person or organization test for, monitor, clean up, remove, contain, treat, detoxify, neutralize, remediate, or assess -the effects of ` pollutants. " (c) Any loss, cost or expense, including but not limited to costs of investigation or attorneys' fees, incurred by a govemuental unit or any other person, or organization to test for, monitor, clean -up, remove, contain, treat, detoxify, neutralize, remediate, or assess the effects of "pollutants." 2. Claims arising out of the manufacture, mining, use, sale, installation, removal or distribution of or expo sure to radon, asbestos, asbestos products, asbestos fibers, asbestos dust, or other asbestos - containing materials and: (a) Any obligation of the "covered party" to indemnify any party because of such claims, or (b) Any obligation to defend any suit or claims against the "covered party" because of such claims. 3. Any claim (including attorney's fees or salary or wage loss claims); by any potential, present or former employee or official of the "covered party arising out of, but not limited to, a violation of civil rights or employment- related practices, policies, acts, or omissions. This exclusion applies to claims of negligent supervision and/or claims of failure to prevent employment- related practices. 4. (a) Any claim by. (1) Any present or former employee or co- employee of the "covered party arising out of or sustained in the course of employment with the "covered party, " or (2) The spouse, child, unborn child or fews, parent, brother or sister of any such employee or co- employee as a consequence of exclusion 3, 4(a) (1) or 4(b) herein. This exclusion applies whether the "entity" may be held liable as an employer or in any other capacity, except with respect to liability of others 'assumed under a "covered indemnity contract." . (b) Any obligation for which the "covered party" or any insurance company as its insurer may be held liable under any workers' compensation, unemployment compensation or disability benefits law or any similar law. S. Liability imposed under the "Employment Retirement Income Security Act of 1974" or any law amendatory thereof, or any law or liability arising out of fiduciary activities as respects employee benefit plans. 6. The cost of providing reasonable accommodation pursuant to the Americans with Disabilities Act, Fair Employment and Rousing Act, or other similar law. 7. Liability imposed under the Fair Labor Standards Act or any law amendatory thereof. 8. Benefits payable under any employee benefit plan (whether the plan is voluntarily established by the "entity " or mandated by statute). 9. Claims by any "entity" against its own past or present elected or appointed officials, employees, volunteers, or addition_ al covered parties where such claim seeks "damages" payable to the "entity." 10. Claims arising out of any professional "medical malpractice" except "medical malpractice" committed by any employee of the "covered party, " if that employee is licensed and certified as an RN, LPN,.LVN, EMT, paramedic or laboratory technician, and is not employed by or working for any hospital or hospital operated out - patient, in patent or other clinic at the time of the "occurrence" giving rise to the loss. 11. Ownership or operation of any hospital or airport. 12. Fines, fees, penalties, restitution, disgorgement, exemplary damages or punitive damages, whether awarded by a court or by an administrative or regulatory agency. Restitution and disgorgement,* as used herein, refer to the order of a court or administrative agency for the return of a specific item of property or a specific sum of money, because such item of property or sum of money was not lawfully or rightfidly acquired by the "covered party." 13. "Bodily injury" or `property damage" arising out of the hazardous properties of "nuclear material. " 14. Claims arising out of or in connection with: (a) Land use regulation, land use planning, the principles of eminent domain, condemnation proceedings or inverse condemnation by, whatever name called, resulting from deliberate decision making by the "covered party" and whether or not liability accrues directly against the "covered party" or by virtue of any agreement entered into by or on behalf of any "covered party. " However, the above exclusion shall not apply to inverse condemnation liability arising from accidentally caused physical injury. to or destruction of tangible property, including all resulting loss of use of such property, for which the "covered party" may be legally responsible. Notwithstanding what is stated in the applicable declarations, the "limit of coverage" for claims described in this exception-will be subject to a per "occurrence" and/or annual aggregate sublimit of $250,000 per member. Further, the above exclusion shall not apply to claims for nuisance. However, where a claim for nuisance is alleged with a claim for inverse condemnation, the "limit of coverage" for a claim for nuisance will be subject to a per "occurrence" and/or annual aggregate sublimit of $500,000 per member. Such . sublimit shall be in addition to the sublimit of $250,000 for inverse condemnation liability arising from accidentally caused `property damage" if both inverse condemnation and nuisance are alleged. This exclusion does not apply to enforcement of parking ordinances or regulations. Notwithstanding any of the above, this Memorandum of Coverage shall not apply to any claim arising out of the design, construction, ownership, maintenance, operation, or use of any water treatment plant or waste water treatment plant, no matter how or under what theory such claim. is alleged, unless it is a claim based upon the accidental failure of the equipment utilized or contained within the water treatment plant or waste water treatment plant. (b) The initiative process, whether or not liability accrues directly against any "covered party" by reason of any agreement entered into by or on behalf of any "covered party." 15. "Property damage " to: (a) Property owned by the "entity " or employee. (b) Property rented to or leased to the "entity " where it has assumed liability for "damages" to or destruction of such property, unless the "entity" would have been liable in the absence of such assumption of liability. (c) " Airerajt " or watercraft in the "entity's " care, custody or control. 16. "Bodily.injury" or `property damage" arising out of the ownership, operation, use or maintenance of. (a) any watercraft while being used for public commercial purpose; or (b) any "aircraft. " 17. "Bodily injury" or `property damage" arising out of the operation of any transit authority, transit system or public transportation system owned or operated by the "entity," except a transit system operating over non -fixed route systems such as dial -a ride, senior citizen transportation, or handicapped transportation. . 18. Claims arising out of the failure to supply or provide an adequate supply of gas, water, electricity or sewage capacity when such failure is a result of the inadequacy of the "entity's" facilities to supply or produce sufficient gas, water, electricity or sewage capacity to meet the demand. If the electrical power generation plant or power- generating enterprise or municipal utility is owned, operated, maintained, managed, or supervised by the "entity," the provisions of exclusion 19 apply in place of this exclusion. 19., Claims arising out of the ownership, operation, maintenance, management, supervision, or the condition of any electrical power generation plant or power- generating enterprise or municipal utility, including: (a) Any failure to supply or provide power from any such plant, enterprise, or utility, (b) Any liability arising out of ownership, operation, maintenance, use, or entrustment of any "automobile" while used in the operation of any such plant, division, or utility; or (c) Any obligation, whether or not based on contract, of the "covered party" to indemnify any person, entity, or governmental agency because of such claims. 20. "Bodily injury " arising out of the ownership, maintenance or use of any trampoline, bungee jumping or any other rebound tumbling device. 21. "Bodily injury" arising out of the ownership, maintenance or use of (a) any skate or skateboard park or other facility officially designated for use of skates or skateboards, or (b) any bicycle park or other .facility officially designated for use of bicycles or mixed use of bicycles in a skate or skateboard park or facility, by the member "entity. " 22. "Bodily injury" arising out of the sponsorship of any rollerblade . hockey league, class or instruction. 23. "Bodily injury" arising out of competition among students. authorized by the instructor in martial arts classes, or arising out of martial arts tournaments or contests. 24. Under Coverage C, "public officials errors and omissions," to "bodily injury" or `personal injury. " 25. Under Coverage C, `public officials errors and omissions, " to physical injury to tangible property, including all resulting loss of use of that property. 26. Refirnd of taxes, fees or assessments. 10- 27. Claims arising out of the intentional conduct done with willful and conscious disregard of the rights or safety of others, or with malice. However, where the "entity" did not authorize, ratify, participate in, consent to or have knowledge of such conduct by its past or present employee, elected or appointed official, or volunteer, and the claim against the "entity" is based solely on its vicarious liability arising from its relationship with such employee, official or volunteer, this exclusion does not apply to said "entity." This exclusion does not apply to "bodily injury," "property damage," or `personal injury," as those terms are defined, resulting from the use of reasonable force to protect persons or property. 28. Claims arising, in whole or in part, out of a "covered party" obtaining remuneration or financial gain to which the "covered party " was not legally entitled. 29. Claims arising, in whole or in part, out of the violation of a statute, ordinance, order or decree of any court or other judicial or administrative body, or rule of law, committed by or with the knowledge or consent a "covered party. " 30. Claims arising out of oral or written publication of material, if done by or at the direction of a "covered party" with "knowledge of its falsity. 31. Claims arising out of estimates of probable cost or cost estimates being exceeded or faulty preparation of bid specifications or plans, including architectural plans, unless prepared by a qualified, licensed and/or registered engineer or architect who is the .appointed City Engineer or an employee of the "covered party." 32. Claims . arising out of: (a) A failure to perform, or breach of, a contractual obligation or fraudulent inducement to contract. (b) "Bodily injury" or `property 'damage" for which the "covered party'.' is obligated to pay "damages" by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for "damages; " (1) Assumed in a contract or agreement that is a "covered indemnity contract, " provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement, and then only to the extent required by the terms of the "covered indemnity contract;" or (2) That the "covered party " would have in the absence of the contract or agreement. 33. "Ultimate net loss" arising out of relief, or redress, in any form other than money "damages. " 34: Claims arising out of liability imposed on any "covered party" under any uninsured/underinsured motorist law or "automobile" no -fault law. 11 SECTION VIII - CONDITIONS 1. "Covereel Party's" Duties in the Event of "Occurrence," Claim or Suit. (A) In the event of an "occurrence, " written notice containing particulars sufficient to identify the "covered party" and also reasonably obtainable information with respect to the time, place and circumstances thereof, addresses of the injured or damaged party(ies) and the identity and addresses of available witnesses, shall be given by or for the "covered party" to the Authority as soon as practicable. As a condition precedent for the Authority to have any duty under this Memorandum, including the duty to pay "ultimate net loss" or any portion thereof, a "covered party" shall first have complied fully with the provisions of SECTION VIII — CONDITIONS. A "covered party's" failure to so comply shall void the coverage described herein, unless coverage is extended by majority vote of the Board. (B) If claim is made or suit is brought against the "covered party, " the "covered party" shall .be obligated upon demand to forward to the Authority every demand, notice, surnmons or other process received by it or its representative. (C) The "covered party" shall cooperate with the Authority and, upon its request, assist in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the "covered party" because of "bodily injury, " "personal injury, " `property damage" or `public officials errors and omissions "with respect to which coverage is afforded under this Memorandum of Coverage; and the "covered party" shall, as deemed desirable by the Authority, attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The "covered party" shall not, except at its own cost, voluntarily make any payment, assume any obligation or incur any expense on behalf of the Authority. The "covered party" shall reimburse the Authority for the "ultimate net loss "up to its deductible. (D) Banlauptcy or insolvency of the "covered party" shall not relieve the Authority of any of its obligations hereunder. (E) Upon tender of a claim, the Authority shall be entitled to complete access to the "covered party's" claim file, the defense attorney's complete file, and all investigation material and reports, including all evaluations and information on negotiations. The "covered party" shall be responsible to report on the progress of the litigation and any significant developments at least quarterly to the Authority, and to provide the Authority with simultaneous copies of all correspondence provided to the "covered party" by its defense attorneys and/or agents.. 2. Other Coverage: If collectible insurance or any other coverage with any insurer, joint powers insurance authority or other source respectively is available to the "covered party " covering a loss also covered hereunder (whether on a primary, excess or contingent basis), the coverage hereunder shall be in excess of, and shall not contribute with, such other coverage. 12 3. Severability of Interests: The term "covered party" and its. sub -terms including "entity," "covered individual" and "additional covered party " are used severally and not collectively, but the inclusion herein of more than one "covered party shall not operate to increase the limits of the Authority's liability or the retained limit applicable per "occurrence. " 4. Accumulation of Limits: With respect to `personal injury" and `public officials errors and omissions," an "occurrence" with a duration of more than one coverage period shall be treated as a single "occurrence" arising during the coverage period when the "occurrence" begins. "Property damage" or "bodily injury" with a duration of more than one coverage period shall be deemed to occur during only one coverage period, and that coverage period shall be when any "property damage" or "bodily injury was first discovered. Coverage for such `property damage" or "bodily injury" shall be provided by, at most, one Memorandum of Coverage by the Authority. 5. Termination: This Memorandum may be terminated at any time in accordance with the Joint Powers Agreement or by action approved by the Authority's Board of Directors. 6. Changes: Notice to any agent or knowledge possessed by any agent of the Authority or by another person shall not affect a waiver or a change in any part of this Memorandum of Coverage, nor shall the terms of this Memorandum of Coverage be waived or changed, except by endorsement issued to form a part of this Memorandum of Coverage. 7. No action: No person, organization or other entity shall have the right under this Memorandum of Coverage to join the Authority as a party in any action against any "covered party" to determine the Authority's liability. 8. Subrogation: The Authority shall be subrogated to the extent of any payment hereunder to all the "covered party's" rights of recovery therefore; and the "covered party" shall do nothing after loss to prejudice such rights and shall do everything necessary to secure such rights. Any amount so recovered shall be apportioned as follows: . (A) Any interest (including the "covered party's ") having paid an amount in excess of the covered "ultimate net loss" hereunder shall be reimbursed on a pro -rata basis of the respective share of the loss paid between the Member and Authority. (B) The expenses of all such recovery proceedings shall be apportioned in the ratio of respective recoveries. If there is no recovery in the proceedings conducted solely by the Authority, it.• shall bear the expenses thereof. 13 SECTION IX -RESOLUTION OF COVERAGE DISPUTES 1. GENERAL The following procedures shall be followed in resolving any dispute, claim, or controversy arising out of or connected with this Memorandum of Coverage. Such disputes shall be resolved by either administrative proceedings or binding arbitration as provided herein. 2. PROCEDURES FOR RESOLVING DISPUTES Decisions by the Authority whether to assume control of the negotiation, investigation, defense, appeal, or settlement of a claim, or whether or not coverage exists for a particular claim or part of a claim, shall be made by the Board of Directors of the Authority. An appeal to the Board from a written coverage opinion by staff or coverage counsel must be made in writing to the Authority by the covered party within ninety (90) days of receipt of such opinion. If, either prior to or following. the Board's decision, a new coverage opinion is sent by staff or coverage counsel to the covered party, a new ninety (90) day period commences from receipt of such new opinion in which the covered party may appeal to the Board. Any dispute concerning a decision by the Board shall be submitted to final binding arbitration within ninety (90) days of written notification of the Board's decision. The arbitration shall be held before a neutral arbitrator, selected by mutual agreement of the parties, who is a lawyer experienced in contract interpretation or a retired federal or California State judge. The arbitrator shall not be employed by or affiliated with the Authority, the covered party, or any Member of the Authority. Such arbitration shall be conducted under the auspices of, and in accordance with, the procedures and rules of the California Code of Civil Procedure. Any hearings held in the course. of such arbitration shall be held in Walnut Creek, California, unless the parties mutually agree in writing to another location. The selection of the arbitrator shall take place within twenty (20) calendar days from the receipt of the request for arbitration. The arbitration hearing shall commence within forty-five (45) calendar days from the date of the selection of the arbitrator. These.timelines may be extended by agreement of the parties. Each party shall bear one -half the cost of the selected arbitrator. Except for the shared cost of the arbitrator, each party shall be responsible for its own fees, costs and expenses of arbitration. Except for notification of appointment and as provided in the California Code of Civil Procedure, there shall be no communication between the parties and the arbitrator relating to the subject of the arbitration other than at oral hearings. The decision of the arbitrator shall be final and binding, and shall not be subject to appeal. During the course of the administrative and arbitration proceedings provided herein, the "covered party" will be responsible for all fees and expenses for the defense or litigation of a claim or lawsuit for which coverage has been denied. In the event the arbitrator determines that a duty of defense applies, the Authority will reimburse the "covered party" for "defense costs" as defined in Section II (9). 14 3. FUNDING OT DEFENSE AND CLAIMS PENDING RESOLUTION OF DISPUTE During the course.of the administrative and arbitration proceedings provided herein, the "covered party" will be responsible for all fees and expenses for the defense or litigation of a claim or lawsuit. In the event the arbitrator determines that a duty of defense applies, the Authority will reimburse the "covered party" for "defense costs" as defined in Section II (9). 4. EFFECT OF ARBITRATION DECISIONS All decisions on appeals, whether by the Board of Directors (after the time to request arbitration has expired) or by an arbitrator, shall be final and binding upon the "parties." 5. NOT APPLICABLE TO EXCESS CARRIERS These arbitration provisions are intended to bind only the Authority and its member agencies. They are not intended to be binding upon any of the Authority's excess carriers. Issued By. MUNICIPAL POOLING AUTHORITY B Date: to � f Risk Manager /CAO 15 BYLAWS OF THE MUNICIPAL POOLING AUTHORITY These Bylaws are for the regulation of the MUNICIPAL POOLING AUTHORITY, except. as otherwise provided by law or by the Joint Powers Agreement establishing said Authority. The Authority is comprised of the Cities of ANTIOCH, BRENTWOOD, CLAYTON, DANVILLE, EL CERRITO, HERCULES, LAFAYETT'E, MANTECA, MARTINEZ, MORAGA, OAKLEY, ORINDA, PINOLE, PITTSBURG, PLEASANT HILL, RICHMOND, SAN PABLO, SAN RAMON and WALNUT CREEK. ARTICLE I DEFINITIONS The terms in these Bylaws shall be as defined in the Joint Powers Agreement creating the Authority, unless otherwise specified herein. ARTICLE 11 OFFICES The principal executive office for the transaction of business of the Authority is hereby fixed and located at Walnut Creek, California. The Board shall have the authority to change the location of the principal executive office from time to time. Any, such change shall be noted in the Bylaws by the Secretary, opposite this section, or this section may be amended to state the new location. Other business offices may, at any time, be established by the Board at any place or places where the Authority is qualified to do buslness. ARTICLE Ill FUNCTIONS OF THE AUTHORITY The Authority shall perform the following functions in discharging its responsibilities under the Joint Powers Agreement and these Bylaws: (1) Provide coverage for risks selected by the Members, by pooling or purchasing coverage for losses; (2) Assist Members in developing their risk management statements; (3) Participate in Members' risk management advisory committees; (4) Provide loss prevention, safety and security advice; (5) Provide claims management services for non- covered risks and for high deductibles; (6) Provide claims recovery and subrogation services to investigate, pursue and collect for damages caused by the acts of others; (7) Negotiate and purchase excess coverage and/or insurance .policies; (8) . Assist in providing rehabilitation services under workers' compensation to reduce Industrial disability and retirement liabilities; (9) Establish actuarial methods and procedures to distribute costs and generate revenues equitably, and perform or contract for claims audits and actuarial studies to determine cost allocations; (10) Provide loss analysis control by use of statistical analysis, data processing, record and file keeping services. The purpose of this information Is to identify high exposure operations and to evaluate proper levels of self - retention and deductibles; (11) Assist in maintaining proper building and contents values by location; (12) Conduct risk management evaluations to review the participation of each Member In the program; (13) Select legal counsel after recommendation by a committee* composed of city attorneys of the Members; (14) Advise Members on selection of defense counsel; (15) Prepare an annual budget; (16) Provide litigation management oversight; and (17) Perform other functions as required by the Board for the purpose of accomplishing the goals of the Joint Powers Agreement. ARTICLE IV BOARD OFFICERS The governing body of the Authority shall be the Board, of Directors, which shall provide policy direction for the Officers, the Chief -Administrative Officer (CAO); and any standing committee including the Executive Committee. The Board may delegate any or all of its responsibilities, except that the Board reserves to itself the authority to do the following, by majority vote unless otherwise stated: 1. Accept a new Member to the Authority (two- thirds vote of the Board); 2. Accept indebtedness (two- thirds vote of the Board); 3. Adopt a budget; 4. Amend these Bylaws; 5. Alter a Member's retained limit (two - thirds vote of the Board); 6. Approve contracts for Authority administrative services including legal counsel; Revised December 10, 2004 2 7. Approve equity distributions; 8. Approve Memoranda of Coverage; 9. Assess Members for an actuarially unsound coverage year (two - thirds vote of the Board); 10. Establish or terminate a coverage program (two-thirds vote of the Board); 11, Elect the officers of the Authority; 12. Remove an officer (two-thirds vote of the Board); 13. Expel a Member from the Authority (three- fourths vote of the Board); 14. Cancel or refuse to provide coverage to a member (two- thirds vote of the Board); 15. Approve the rescission of a Member's withdrawal notice; 16. Acquire and/or dispose of real property; and 17. Settle claims in excess of the authority of the Executive Committee and CAO. The officers of the Board shall be the President, Vice- President, Secretary, and Treasurer /Auditor. The positions of Treasurer and Auditor may be filled by one person or separate persons. The CAO shall serve as Assistant Treasurer and Secretary to the Board. The President, Vice - President; Treasurer /Auditor shall be elected at the first meeting of the calendar year by. a majority of the full Board of Directors and shall serve for two -year terms. The President, Vice- President, Treasurer /Auditor may be removed at any time by a two-thirds (2/3) vote of the full Board of Directors. In the event of resignation by, or removal of, the President, the Vice-President shall preside pro tem and the resulting vacancy shall be filled at the next regular meeting of the Board held after the vacancy occurs. The Board of Directors may from time to time adopt and /or amend policies and procedures which shall amplify the general provisions of the Joint Powers Agreement or the Bylaws and give direction to the Executive Committee and the CAC ARTICLE V DUTIES OF THE OFFICERS A. The President shall be empowered in his or her discretion to undertake action necessary to administer the terms.and conditions of the Joint Powers Agreement, these Bylaws and the policies and procedures adopted by the Board except to the extent that: 1) Such action requires the approval of the Board of Directors, in which case the President shall act in conformity with the Board and cant' out its Instructions; or 2) Such action Is delegated by the Joint Powers Agreement, these Bylaws or the Board's policies or procedures to the CAO or other designated officer. However, if the position of CAO is vacant, the President shall exercise the powers and duties of the GAO until a successor is appointed and qualified. The President shall preside at all meetings of the Board and the Executive Committee, B. The Vice - President shall preside in the absence or inability of the President and perfgrm . such other duties as the Board may specify from time to time. C. The CAO shall be the Secretary to the Board, and shall maintain all records of the Authority. Revised December 10, 2004 D. The Board of Directors shah elect as Treasurer /Auditor a Finance Director or City Manager or Assistant City Manager with financial background of one of the Members, The Board may appoint someone other than the Treasurer to perform the functions of Auditor of the Authority but, if so, the appointment shall be from the same Member as the Treasurer. The CAO shall serve as Assistant Treasurer. The Assistant Treasurer and TreasurerlAuditor shall have those duties specified in Section 6505.5 and 6505.6 of the California Government Code and shall maintain or cause to be maintained all accounting and other financial records of the Authority and shall file all financial reports required of the Authority and shall perform such other duties required by the Joint Powers Agreement and ..as the Board may specify. The Assistant .Treasurer and Treasurer /Auditor shall each furnish a corporate surety bond In an amount acceptable to the Board, but in no case less than $100,000.00, conditioned upon the faithful performance of his or her respective duties. Premiums for such bonds shall be paid by the Authority. The Assistant Treasurer shall also invest surplus funds In depositories approved by the Board and shall attempt to obtain the maximum return to the Authority.. Surplus funds may be invested in any manner in which the Members may legally and customarily invest. The Assistant Treasurer shall prepare and recommend to the Board an Investment Policy and shall comply with the provisions of section 53646 of the Government Code. In addition to those duties specified in Section 6505:5 and 6505.6 the Treasurer /Auditor is charged with monitoring compliance with these Bylaws and any policies and procedures adopted by the Board, and will report any unresolved discrepancies to the Executive Committee. ARTICLE VI OFFICERS AND EMPLOYEES — DUTIES The Board shall retain and employ a CAO to perform the duties prescribed herein. The CAO shall a) serve at the pleasure of the Board; b) be chosen on the basis of qualifications; c) be paid a salary fixed by the Board commensurate with the responsibilities of the position; and d) not engage in any incompatible business or occupation. In addition to the duties prescribed. by the Joint Powers Agreement, these Bylaws and any policies and procedures adopted by the Board, the CAO shall: a) Appoint, remove and discipline all administrative officers and employees of the Authority except as otherwise provided herein; b) Annually, prepare and submit.to the Board a proposed budget for the ensuing fiscal year, and properly administer the budget adopted by the Board; c) ' Keep the Board advised of the financial condition and future needs of the Authority and make such recommendations to the Board concerning the affalrs of the Authority as are deemed necessary or desirable; d) Provide for the enforcement of all rules and regulations of the Authority; and e) Perform or make recommendations to the Board for the performance of the Authority's functions and responsibilities set forth herein and in the Joint Powers Agreement. Revised December 10, 2004 The Board may retain and employ a General Counsel who shall serve as the chief legal officer of the Authority and carry out all duties consistent therewith including but not limited to: a) preparation, review and approval of contracts, leases and other legal documents b) prosecution on behalf of and defense of actions against the Authority; c) recommendations to the Board on form and content of coverage memoranda; and d). such other matters as the Board may prescribe. The. General Counsel shalt serve at the pleasure of the Board. ARTICLE VII COMMITTEES There is hereby established an Executive Committee of the Board which shall consist of the President, Vice- President, and three (3) Individuals who are Directors on the Board designated by the Board, and the immediate Past- President, in the capacity as ex- officio officer. The immediate Past- President will not have a vote unless necessary to meet quorum requirements. The Executive Committee shall'meet as necessary or as called by the'President. or CAO to conduct the business of the Authority. The Executive Committee shall receive recommendations from the CAO and other officers and employees of, and consultants to, the Authority and shall make recommendations thereon to the Board. The Executive . Committee shall 'review and have the authority to approve all recommended settlements, purchases and budget transfers as required by the applicable policies and procedures adopted by the Board. The Board may from time to time appoint and dissolve other committees as necessary for the conduct of the Authority business. ARTICLE VIII MEETINGS .The Board shall fix the time and place for its meetings and shall hold at least one regular meeting each year. Special meetings may be called from time to time by the President of the Board, or.upon written demand by one-third (113) of the members of the Board. The CAO shall notify each Member in writing of the date, time, and place of each meeting and the business to be transacted. Such written notice must be delivered personally or mailed, so as to reach each board member, at least three working days prior to the time of such meeting. , All meetings of the Board, except duly authorized closed sessions, shall be open to the public and conducted in accordance with the Ralph M. Brown Act: Notice to the public of such meetings shall be. given and /or_ posted as required by law. Each Board member shall be provided with the minutes. as soon as possible after each meeting for their review. Business shall not be transacted without a quorum of the Board members present. A quorum shall consist of at least ten Board members. Except as otherwise stated in these Bylaws or in the .Joint Powers Agreement, actions by the Board shall be by a majority vote of the members present, provided there is a quorum. Revised OecerAber 10, 2004 5 ARTICLE IX BUDGET The annual fiscal year budget shall separately show the following: a) A General and Administrative Section. b) An Interest Income Section, C) The funds for each type of coverage afforded the Members of the Authority showing: 1. The actuarial estimated claims including allocated claims adjustment costs; 2. An equitable allocation of the general and administrative costs; 3. An equitable allocation of the interest income; 4. Reserves. ARTICLE X DISBURSEMENT OF FUNDS The Assistant Treasurer may receive and invest funds as necessary for the operation of the Authority and shall disburse all funds as detailed in the annual budget adopted by the Board of Directors and consistent with the Joint Powers Agreement, these Bylaws and any policies and procedures adopted by.the Board of Directors. . All checks drawn for the purpose of claim settlement in excess of $100,000.00 and for the purchase of equipment, supplies or services in excess of $50,000.00 shall be signed by any two (2) of the following officers of the Authority: The President, Vice- President, Assistant Treasurer and Treasurer /Auditor. All other checks shall be signed by the Assistant Treasurer and the appropriate Claims Manager as designated by the CAO. ARTICLE XI MAINTENANCE OF FUNDS AND FINANCIAL RECORDS The CAO shall establish and maintain the funds and accounts in accordance with acceptable accounting practices and shall maintain such other records as the Board requires. Books and records of the Authority in the hands of the CAO shall be open to inspection to all reasonable times by representatives of the Cities. The CAO shall have the custody of and disburse ' Authority funds. as provided by accounting procedures developed in accordance with the Joint Powers Agreement, these Bylaws, and policies and procedures adopted by the Board, and in accordance with generally accepted accounting principles. The Authority is responsible for the strict accountability of all funds and reports of all receipts and disbursements, and shall comply with the laws relating to the subject, particularly Section. 6505 of the Government Code. Revised December 10, 2004 6 ARTICLE XII AUDITS Within 120 days after the close of each fiscal year, the CAO shall give a complete written report of all financial activities for that fiscal year to each Member. The Board shall either make an annual audit or contract with a certified public accountant to make an annual audit of the accounts and records of the Authority. In each case, the minimum requirements of the audit shall be those prescribed by the State Controller for special districts under Government Code Section 26809 and shall conform to generally accepted auditing standards. When an audit is made by a certified public accountant, the Authority shall have a copy of the audit report filed as a public record with each Member. The audit report shall be filed within six (6) months of the end of the fiscal year under examination. The Authority shall bear the costs of the audit, including any amounts paid to a certified public accountant. ARTICLE Xlll PROPERTY No_ real property shall be acquired or.disposed of except upon order of the Board. No purchase of equipment, services or supplies in excess of $25,000.00 shall be made except upon order of the Executive Committee. Approval of the budget containing specific line Item authorization to purchase equipment, services and supplies shall constitute approval by 'the Executive Committee. ARTICLE )aV NEW MEMBERS The Authority has established the following criteria for considering new members: Pool Membership. Applicants accepted for membership must participate in the liability or workers' compensation pooled coverage program. 2. Coverage. The applicant shall agree to participation in the Authority for a minimum period of three (3) consecutive years following its admission as a new Member. 3. Vesting. The applicant shall agree to a five -year vesting schedule, providing an escalating share of any dividend or premium rebates as follows: after one year, not eligible for any rebate; after two years, eligible for 25% of its pro rata share; after three years, eligible for 50% of its pro rata share; after four years, eligible for 75% of its pro rata share, and after five years, eligible for. 100% of its pro rata share. 4 Application Process. Any applicant desiring to be considered for membership by the Authority must follow the following procedure: A. Complete an application form which may include, but not be limited to, the following information: Underwriting data for current year; Revised December 10, 2004. li. Payrolls for the prior five (5) years; iii. Loss history for the prior five (5) years; iv. A copy of the most recent claims audit and actuarial reports, if available; v. A copy of the most recent audited financial statements; A. An indication as to the pooled coverage programs In which the applicant wishes to participate and the anticipated deductible level for such program; and vii. Description of its Risk Management Programs. B. Provide an actuarial study in a framework that is acceptable to the Authority. C. Submit to a staff analysis of its qualifications for membership and provide whatever documentation is required. D. Comply with any other requests or considerations made by the Board.. E. Pay an application- processing fee as determined by the Board. Additionally, applicants may, at their option, request a non- binding vote regarding their membership application. Subsequent to that vote, it shall be the applicant's decision as to whether or not it wishes to continue with the application process. Upon review of an application, and after necessary site visits by staff, a report, containing a staff recommendation, will be presented to the Board. The applicant will be Invited to attend a meeting of the Board to respond to questions concerning the application. The affirmative vote of two- thirds of the members of the entire Board is necessary for admission to the Authority. ARTICLE XY ELIGIBILITY AND UNDERWRITING GUIDELINES Any prospective member, Including existing members not participating in a program, must meet the following minimum underwriting guidelines to participate in any of the Authority's pooled coverage programs. a. Have a loss rate calculated for the past three years that does not exceed the average loss rate measured over the same period for the current members. b. Demonstrate a commitment to support risk management and safety programs in order to control and prevent claims. c. Have a minimum deductible for participation in the Liability program of $25,000. d. Pay .an application fee equal to the cost charged by consultants retained to evaluate the member's eligibility for the program. t RevisQd December 10, 2004 8 .Where, in the opinion of the CAO and with the concurrence of two- thirds of the Board, the strict application of the guidelines in this Article would prevent the acceptance of membership of an otherwise qualified applicant, the CAO may waive any guideline or any part of any guideline in this Article. ARTICLE XVl CLAIMS AUDITS An independent claims audit will be conducted on the Liability and Workers' Compensation Programs at least once every twenty -four (24) months to ensure compliance with reasonable claims administration practices. ARTICLE XVII EXPULSION FROM AUTHORITY The Board by a three - fourths vote of all members may expel, for default, any Member from the Authority after 180 days' written notice. The notice shall enumerate the reasons for the expulsion. . I The following shall be considered "defaults" under the Joint Powers Agreement and these Bylaws: 1. Failure to observe andlor perform any covenant, condition, or agreement under the Bylaws and/or Joint Powers Agreement and/or any other policy or procedure adopted by the Board, Including but not limited to risk management or loss reporting procedures;,, 2. Failure to pay any amount, including penalties and interest, due to the Authority for more than thirty (30) days; 3. Excessive losses as determined by the Board; 4. The filing of a petition applicable to the Member in any proceedings instituted under the provisions of the Federal Bankruptcy Code or under any similar act which may hereafter be enacted; or 5. Any condition of the Member, which the Board believes, jeopardizes the financial viability of the Authority. The condition of default under paragraph 4 shall result in immediate termination of membership-in the Authority. The Board shall give one hundred eighty (180) days' written notice of condition of default under paragraphs 1, 2, 3, and 5 prior to expulsion. Within ninety - (90) days of receiving such notice, the Member may attempt to correct or cure the condition of default to the satisfaction of the Board. The Board's decision as to,the effectiveness of the cure shall be final. The above list of grounds for expulsion shall not limit the Board's authority to determine whether a Member is in violation of the Joint Powers Agreement, Bylaws, or any policy or procedure adopted by the Board and, if so, to notify said Member that its participation in the Authority or In any coverage program provided by the Authority will be terminated. In the case Revised December 10, 2004 of termination of membership for grounds other than those set forth hereinabove, the Board shall give sixty (60) days' notice of termination and, In the Board's discretion, may give such Member an opportunity to cure the condition which is the basis for termination. ARTICLE XVIII EFFECT OF WITHDRAWAL OR EXPULSION The withdrawal or expulsion of a Member shall not terminate the Authority nor alter any of the terms or conditions of the Joint Powers Agreement, Bylaws, or any policy or procedure adopted by the Board. The withdrawal or expulsion of a Member shall not terminate that Member's responsibility to contribute its share of contributions, assessments, or other funds to the Authority until all unpaid claims, or other unpaid liabilities, covering the period during which the Member Was a participant in the Authority's coverage program or programs have finally been resolved and those program years are closed. In addition, the withdrawal or expulsion of any Member shall -not terminate its responsibility: (a) To cooperate fully with the Authority in determining the cause of losses and in the settlement of claims incurred during the coverage period(s), as defined in the Memorandum of Coverage, in which the Member participated. (b) To pay, any cash assessments or other amounts determined by the Board to be due and payable for each program year of each program in which it participated until all claims or other unpaid liabilities covering such periods have been finally resolved. (c) To provide the Authority with statistical and loss experience data and other information as may be necessary for the Authority to carry out the purposes of this Agreement. (d) To cooperate with and assist the Authority in all matters relating to this Agreement. Coverages under all pool coverage programs for the coverage periods in which 'that Member participated will remain in effect and continue until the conclusion of their respective program years. Upon withdrawal or expulsion of a Member, that Member is entitled only to its pro rata share of the balance of the amount paid by it for the fiscal year in which withdrawal or expulsion takes place. That Member shall not participate in or be entitled to any other funds, property, or other assets of the Authority. Revised December 10, 2004 10 ARTICLE XIX DISPUTES OR CLAIMS BETWEEN MEMBERS After being notified in writing that one Member of the Authority has filed a formal claim, which is potentially covered by a program of the Authority, against another Member in accordance with provisions of the California Government Code, the Authority will no longer act . on behalf of either Member without the written consent of all Members involved, insofar as the case giving rise to the claim is concerned. ARTICLE XX AMENDMENTS These Bylaws may be amended by a majority of the Board provided that any amendment is compatible with the purposes of the Authority, is not in conflict with the Joint Powers Agreement and has been submItted to the Board at least fourteen (14) days in advance of a Board meeting. Any such amendments shall be effective immediately unless otherwise designated. Revised December 10, 2004 it RESOLUTION NO. 2015-28 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GELROY AUTHORIZING PARTICIPATION IN MUNCIPAL FOOLING AUTHORITY AND APPROVING THE REVISED EXERCISE OF JOINT POWERS AGREEMENT WHEREAS, the Municipal Pooling Authority (MPA) provides risk- sharing, pooling liability, property, and crime/errors and omissions/public officials bond coverage to its public entity members, as well as other ancillary coverages and services; and WHEREAS, nineteen (19) municipalities have established a Joint Exercise of Powers Agreement for the purpose of self - insuring costs and administration of tort liability, property, and other common risks; and WHEREAS, the City of Gilroy has been approved for membership in the Municipal Pooling Authority by vote of the MPA Board of Directors; and WHEREAS, the Gilroy City Council on May 18, 2015 directed staff to prepare the necessary documents and approvals to join the Municipal Pooling Authority, and WHEREAS, the Gilroy City Council must approve the Joint Exercise of Powers Agreement for the Municipal Pooling Authority in order to become a member; and WHEREAS, as provided for in Section 29, the Agreement may be amended from time to time by affirming resolution of the governing bodies of two- thirds of the current participating members. NOW, THEREFORE, BE IT RESOLVED that: 1. The City Council of the City of Gilroy hereby approves and authorizes participation in MPA. 2. The City Council of the City of Gilroy desires to participate in MPA beginning at 12:00 a.m. on July 1, 2015. ' 3. The Exercise of Joint Powers Agreement in the form attached as Exhibit A, is hereby approved by the City Council of the City of Gilroy, and the City Administrator of the City of Gilroy is hereby authorized and directed to execute the Agreement on. behalf of the City of Gilroy. 4. The City Administrator of the City of Gilroy is also authorized to execute any other RESOLUTION NO. 2015 28 L SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Resolution No. 2015 -28 is an original resolution, or true and correct copy of a city Resolution, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 1"` day of June, 2015 at which meeting a quorum was present. IN WT I NES S WHEREOF, T have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 2 "d day of June, 2015. r Shawna Freels,'MMC ' City Clerk of the City of Gilroy (Seal)