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HomeMy WebLinkAbout09 - AirBorne Law Enforcement Joint Agreement - ABLEAgenda Item No. 9 CITY OF NEWPORT BEACH POLICE DEPARTMENT March 13, 2001 TO: Honorable Mayor, Members of the City Council and City Manager FROM: Bob McDonell, Chief of Police SUBJECT: AirBorne Law Enforcement (ABLE) Joint Powers Agreement Revision RECOMMENDATION: It is recommended the City Council approve the attached revision of the Joint Powers Agreement between the Cities of Newport. Beach and Costa Mesa continuing the existing ABLE program. DISCUSSION: On September 9, 1996, the Newport Beach City Council approved the reorganization of ABLE, combining the Helicopter Units of the Newport Beach and Costa Mesa Police Departments. The ABLE program has proven to be very successful by increasing the level of service to both cities while realizing substantial cost savings and cost reimbursement through the existing subscriber agreements with the City of Santa Ana and other agencies. The reorganization was authorized via a Memorandum of Understanding and several MOU amendments. In July 1998, the ABLE MOU and its amendments were upgraded into a Joint Powers Agreement. Since that time, several modifications to the JPA have been identified. All of the proposed changes either clarify existing language or revise the JPA to more accurately reflect current practice. None of the modifications are substantive changes. The proposed changes in the JPA are noted in the attached strikeout/underline version for easy reference. Briefly the changes include language clarifying the ability of ABLE to purchase equipment and supplies and to dispose of outdated equipment under the rules of the jurisdiction of the ABLE Treasurer /Controller, at this time the Finance Director of the City of Costa Mesa. Additional revisions include financial reporting requirements, clarification of the purpose of the Capital Replacement Fund and the method for the distribution of asset forfeiture revenues. There are several modifications to Section 5 to more accurately reflect the current practices of ABLE regarding insurance coverage and liability issues. Because the ABLE JPA Revision Page 2 Member Agencies equally share the costs, operations, responsibilities and liabilities, revisions to the JPA have been made to accurately reflect current procedures. All of these proposed changes have been approved by the ABLE Board of Governors at its Board meeting on March 1, 2001. These JPA revisions have also been approved by the Risk Managers for both the City of Newport Beach and the City of Costa Mesa and by both City Attorney Offices. Respectfully Submitted, Paul Henisey, Captain Patrol/Traffic Division Commander Attachments Approved by, G1\� I' Bob McDonell CHIEF OF POLICE Joint Powers Agreement for AirBorne Law Enforcement Services JOINT POWERS AGREEMENT FOR AIRBORNE LAW ENFORCEMENT SERVICES Rev. This Agreement is made and entered into this day of ernia, by and between the City of Costa Mesa ( "Costa Mesa ") and the City of Newport Beach ( "Newport Beach "), collectively referred to as "Member Agencies." This Agreement is dated January 1 2001 for reference purposes. RECITALS WHEREAS, the Member Agencies have and possess the power and authorization to finance, acquire and maintain a public law enforcement helicopter service and facilities for the benefit of the lands and inhabitants within their respective boundaries; and WHEREAS, the Member Agencies propose to join together to establish, operate and maintain a helicopter service for the benefit of their respective lands and inhabitants; and WHEREAS, it is in the public interest to provide a means by which other public agencies acquire helicopter service for the benefit of their lands and inhabitants. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein the parties hereto agree as follows: I PURPOSE 1.01 The purpose of this Agreement is to cooperate with each Member Agency in the exercise of some or all of their powers to establish a regional air support unit in the manner set forth in this Agreement. 1.02 Each Member Agency expressly retains all rights and powers to finance, plan, develop, construct, equip, maintain, repair, manage, operate, and control equipment, facilities, properties, and projects that it deems in its sole discretion to be necessary or desirable and that are authorized by the laws governing it. This Agreement shall in no way impair any of the Member Agencies' respective rights, powers or title to such equipment, facilities, properties and projects. 1.03 Each Member Agency expressly retains all rights and powers to use other funds or funding sources to finance, plan, develop, construct, equip, maintain, repair, manage, operate and control equipment and facilities for a law enforcement helicopter service system. 1 CREATION OF REGIONAL AIR SUPPORT UNIT 2.01 By this Agreement, the Member Agencies hereby create a separate legal entity to peFand under the terms of his Agreement. soegerat+ ve- pfevisi ©p--Gf- he4ieopter- se4Ges —.h :,° -be known as the Airborne Law Enforcement Services ( "ABLE ")_ apd t The Member Agencies may agree on a different call name for ABLE. 2.02 ABLE shall possess in its own name and the Member Agencies delegate to it the following enumerated powers: (a) To make and enter into contracts consistent with this Agreement. including. but not limited to. contracts to purchase all necessary supplies and equipment, including helicopters, and contracts for the disposal of any supplies and equipment, including helicopters, no longer needed; (b) To receive compensation, gifts, contributions and donations of property, funds, services and other forms of financial assistance from persons, firms, corporations, and any governmental entity; (c) To sue and be sued in its own name; (d) To apply for an appropriate grant or grants under any Federal, State, or local programs for assistance in developing any of its programs or providing helicopter services to other public entities; (e) To adopt rules, regulations, policies, by -laws and procedures governing the operation of ABLE; (f) To add Member Agencies to ABLE which contribute flight crews and aircraft equipment and execute agreements and resolutions consistent with the terms of this Agreement; (g) To contract with public entities to provide helicopter services to their land and residents; (h) To appoint officers, employees or agents; (i) It is the intent of the parties to this agreement that ABLE shall constitute a separate legal entity separate and apart from the member agencies, and that its debts, obligations and liabilities are its own and not that of the member age nciese +ties, except as specifically provided for herein. 2.03 Said powers shall be exercised in the manner provided in the California law. Joint Exercise of Powers, Government Code section 6500, et seg..Ast -- and. except as expressly set forth herein, shall be subject to the restrictions upon the manner of exercising such powers as are imposed upon the Member Agency whose employee or officer is designated as ABLE Treasurer /Controller pursuant to section 3.12 below. G4LGf a:r_�rnz . rn .�.......,N.a......� 2.04 Costa Mesa and Newport Beach each agree as an initial contribution to ABLE to transfer to ABLE one helicopter and any associated equipment and supplies free and clear of any other ownership or security interests for its use in fulfilling the purposes of this Agreement. These two helicopters and associated equipment and supplies and all new supplies and equipment purchased by ABLE shall be owned by ABLE as its sole property. III ORGANIZATION 3.01 The membership of ABLE shall be the original Member Agencies, and any additional Member Agencies, which are public entities that which contribute to ABLE flight crews and /or other employees .and funding for aircraft and equipment, and ABLE employees- and -have executed er-�eT-e*elate --this Agreement, ef- and any subsequent amendments thereto, and which have not withdrawn from ABLE. 3.02 ABLE shall be managed by a Board consisting of the Chiefs of Police of Costa Mesa and Newport Beach and one additional appointee from fer-each Member Agency for a total of four (4) Board Members. The Chiefs of Police of Costa Mesa and Newport Beach shall each appoint from his respective city one Board member and his or her theiFalternate. Each Board member, or in the absence of a Board member, the alternate shall have one vote on all matters before the Board. The members of the Board appointed by the Chiefs of Police may be replaced supplemented or ^m^^Pl^d from time to time at the appointing Chief's discretion. 3.03 Each Board member and alternate shall hold office until a successor is selected, elected or appointed, as the case may be, under the powers of each Member Agency. The term of the Board member or alternate who is a public official or employee of a Member Agency shall terminate upon such Board Member or alternate leaving office and the vacancy shall be filled by selection, election or appointment, as the case may be, under the powers of each Member Agency. 3.04 Board members and alternates shall not receive additional compensation for the service on ABLE Board, but may be reimbursed by ABLE for reasonable expenses 3 incurred in conducting the business of ABLE, as provided in this Agreement, when the expenses are not paid by the employing Member Agencies. 3.05 The principal office of ABLE shall be established by the Board and shall be located within the County of Orange. The Board may change the principal office from one location to another within the County of Orange. Any change of address shall be noted by the Board but shall not be considered an amendment to this Agreement. 3.06 The Board shall meet at a location as may be designated by the Board. The time and place of regular meetings of the Board shall be determined by resolution adopted by the Board. A copy of such resolution shall be furnished to the Member Agencies. All meetings of the Board, including regular, adjourned, and special meetings, shall be called and held in a manner as provided in the Ralph M. Brown Act, Chapter 9, Division 2, Title 5 of the California Government Code commencing with section 54950 et seq., as amended. 3.07 All of the powers and authority of ABLE shall be exercised by the Board unless specifically delegated to the extent permitted by law or reserved to the Member Agencies under this Agreement. Unless otherwise provided herein, each Board Member shall be entitled to one (1) vote. Except as otherwise provided herein, an affirmative majority vote of the full membership of the Board, or their alternate, may adopt any motion, resolution, or order and take any other action appropriate to carry forward the objectives of ABLE pursuant to this agreement. In the event there should be a tie vote, then the presiding officer shall have the right to cast the deciding vote. 3.08 The Board shall designate a recording secretary to keep the minutes of all open meetings of the Board, and shall cause a copy of such minutes to be forwarded to each Member Agency within a reasonable time after each meeting. 3.09 The Board may adopt from time to time policies, rules and regulations for the conduct of its affairs and that of ABLE as may be required and consistent with this Agreement. 3.10 Where this Agreement requires an approval of a resolution by Member Agencies in any matter, the approval shall be evidenced by a certified copy of the resolution of the governing body of such Member Agency filed with ABLE. It shall be the responsibility of the Board to obtain certified copies of said actions. 3.11 On an annual basis, the Board shall appoint a Board member to be the presiding officer for the purpose of conducting the Board meetings. 3.12 The Board shall appoint an officer or employee of a Member Agency to hold the offices of Treasurer and Controller ( "Treasurer /Controller "), whose duties shall be in conformance with Government Code sections 6505 and 6505.5. in "erfc)r � ng the ` t "° e# - Trease er or3tro{!e Y�els #e shall eilew— the— Merr�ber— Ageaeies= polieies —and prGsedt .--The Treasurer /Controller shall also administer all contracts subsequent to the Board's approval and shall contract with a certified public accountant to make an 4 annual audit of the accounts and records of ABLE as provided in Government Code section 6505. The annual audit shall be submitted to the Board and each Member Agency when completed. The annual budget, covering a budget cycle set by the Board, shall be prepared by the Treasurer /Controller for the approval by the Board. ABLE's investment policies shall be the policies of the Member Agencyie of the Treasurer /Controller ' as those may be modified by the T *easurers --ef the Member AgeRGies and appFeved by the Board of ABLE. The cost of the Treasurer's services shall be reimbursed by ABLE as provided in this Agreement. 3.13 The Board shall have the power to appoint additional officers, employees, or agents. Any officer, employee or agent of ABLE shall also be an officer, employee or agent of any of the Member Agencies, provided, however, that ABLE may appoint employees of ABLE that are subject to the personnel system of ABLE and said employees would not be employees of the Member Agencies. The appointment by the Board of such a person from a Member Agency shall be evidence that the two positions are compatible. 3.14 The City Attorneys or their Deputies of the Member Agencies shall serve jointly as counsel to ABLE, to the extent permitted by such waivers of conflict of interests to authorize such representation as may be executed by the Member Agencies and ABLE Board. 3.15 The officers shall perform all duties normal to their respective offices and: (a) The presiding officer shall sign all contracts on behalf of ABLE board. (b) The secretary shall perform such duties as assigned by the Board and shall keep minutes of the board meetings, (c) The Treasurer /Controller shall be bonded in the amount to be determined by the Board and the bond fee shall be paid by ABLE. The Treasurer /Controller shall perform the duties as set forth in Sections 3.12, 4.02, 4.03, 4.04, 4.05, 4.09 and 4.10. 3.16 The Board shall appoint a Commander to manage and oversee day -to- day operations of ABLE. The Commander shall be a sworn police officer of a Member Agency and of a rank of at least a sergeant. Each Member Agency shall appoint a liaison officer ( "LO ") to ABLE and the LO shall be a sworn police officer and of a rank of at least a Captain. The LO's of each Member Agency shall meet collectively, as needed, to advise the Board on the levels of service and methods of operation of ABLE, and supervision of ABLE Commander. The Commander shall manage the daily operations of ABLE and supervision of the other employees appointed by ABLE Board, the helicopter crews and mechanics of ABLE and mechanics of other Member Agencies as directed by ABLE. 5 3.17 All of the privileges and immunities from liability, exemption from laws, ordinances and rules, all relief, pension, disability, worker's compensation, and other benefits which apply to the activity of officers, employees, or agents of any of the Member Agencies when performing their respective functions for their respective Member Agency shall apply to them to the same degree and extent while they are assigned to ABLE to perform engaged any of the functions and other duties of ABLE under this Agreement. None of the officers, agents or employees of a Member Agency appointed to the Board or performing services at the direction of ABLE shall be deemed by reason of their appointment or service to be employed by any of the other Member Agencies or ABLE or be subject to any of the requirements of the other Member Agencies. IV BUDGET AND DISBURSEMENTS 4.01 The Board shall adopt an aRRual- budget for the ensuing fiscal year pursuant to procedures developed by the Board. At the conclusion of each fiscal year, the Treasurer /Controller shall make a report to the Board regarding the excess or deficiency of revenues over (or underl expenditures. Such report shall include "budget to actual" comparisons based upon the adopted budget. Upon receipt of the report, the Board shall determine what extent. if any, unexpended budgetary appropriations shall be re- appropriated or whether any excess of revenues over expenditures shall be allocated or expended. 4.02 The Treasurer /Controller shall draw warrants upon the approval and written order of the Board or the Board's designated LO. The Board shall requisition the payment of funds only upon approval of such claims or disbursements and such requisition for payment in accordance with rules, regulations, policies, procedures, and by -laws adopted by the Board. 4.03 All funds received by the Treasurer /Controller for helicopter services provided by ABLE, will be placed in object accounts, and the receipt, transfer, or disbursement of such funds during the term of this Agreement shall be accounted for in accordance with generally accepted accounting principles applicable to governmental entities. There shall be strict accountability of all funds. All revenues and expenditures shall be reported to the Board on a quarterly basis. 4.04 All expenditures within the approved annual budget shall be made upon the approval of the Treasurer /Controller in accordance with the rules, policies and procedures adopted by the Board. No expenditure in excess of those budgeted shall be made without the unanimous approval of the Board and the budget shall thereafter be revised and amended. 4.05 The records and accounts of ABLE shall be audited annually by an independent certified public accountant and the cost of the audit shall be paid by ABLE. The minimum requirements shall be those prescribed by the State Controller under 6 California Government Code section 26909 and in conformance with generally accepted auditing standards. Copies of such audit report shall be filed with the County Auditor and each Member Agency no later than fifteen (15) days after receipt of said audit by the Board. 4.06 The Member Agencies have agreed by resolution through their respective City Councils to fund on an equal basis ABLE helicopter operations fund through annual budget appropriations. The subject resolutions shall not limit the authority of each Member Agency to cease appropriations for ABLE helicopter operations as determined by their respective City Councils, provided, however, that a decision to cease appropriations shall be subject to the terms of Section 6.2, below. 4.07 The Member Agencies acknowledge and agree that ABLE will act as a conduit for the management, direction and provision of law enforcement helicopter services to the Member Agencies and to other public agencies that contract with ABLE for such services. The Commander shall keep a written account of the actual flight hours of the services provided to each Member Agency, each contracting agency, and the Regional Narcotics Suppression Program ( "RNSP "). The written account of such flight hours shall be provided to the Board on a monthly basis. 4.08 Based on information provided by the Commander, the Treasurer /Controller shall keep a written account of services provided other public agencies by the Mafwber -Age° ^ " "° A'• ^ ^'' ^^ ^# ABLE. All revenues, except those derived from narcotic surveillance support. received from other public agencies contracting with ABLE for helicopter services shall be used to offset each Member Agency's obligation to fund ABLE's operations pursuant to sections 4.06 and 4.i0.sk�ared egaaJly a+a -a rrae�thly k�asis key -eaoia tUlebef Ageiaey Such revenues shall be applied equally aqainst the monthly invoice to each Member Agencz for said funding for the month following the month in which the revenues are received. 4.09 In establishing rates for helicopter services to public agencies, the Board shall assure that the contracts for such services provide for the reimbursement of the actual expenses of providing the services, insurance coverage by the Member Agencies for their personnel and equipment, and administrative expenses of ABLE. Payment for ABLE helicopter services by contracting public agencies shall be made on a monthly basis to the Treasurer /Controller of ABLE. The Treasurer /Controller shall provide a written monthly account of all revenues and expenses of ABLE services to other public agencies to the Board. 4.10 ABLE budget shall include provision for a Capital Replacement fund that will provide for, among other things, the replacement of the helicopters owned and operated by ABLE and other associated equipment. Provided funds are available for appropriation, the Member Agencies agree to budget the necessary funds in equal amounts to purchase such aircraft and equipment for ABLE as mutually agreed upon by the Member Agencies based upon recommendations by the Board. Said funds shall be transferred to ABLE monthly by the Member Agencies for deposit in ABLE's Capital 7 Replacement fund. The actual purchase of new helicogters and equipment and disposal of unneeded helicopters shall be done whenever determined appropriate and justified by the Board. 4.11 All revenues derived from either narcotic asset forfeiture or service contracts with other public agencies for narcotic related surveillances shall be maintained in a separate revenue account for ABLE. The Treasurer /Controller shall be responsible for accounting for all State and Federal asset forfeiture fund receipts. The Board shall be responsible for determining the appropriate allocation of such funds as part of the budget adoption process. V LIABILITIES 5.01 The Member Agencies acknowledge that each agency is assigning soRtri g -its own personnel aad-- egu+pmepA -to a cooperative pool of personnel apd equipment to be managed by ABLE. €aGh The Member Agenciesy shall equally retain all debts, liabilities, insurance, and other obligations for its- personnel assigned to ABLE. aPA -ABLE shall retain all debts, liabilities, iasurapoe -and other obligations for all activities for which ABLE has insurance coverage in effect at the time of any such claim. loss, liability or obligation. the heliGepter e-quipm.ent- and -4BLE appointed ep�pl ©gees - subject -t^ n�ereonpal system— �ktere- peeessary- apd --at tde�iiras # +op as an theiF respective insurance erTm I-rSGRRej and E)qUiPFAOnt. lR the eVG,3nt t'qRt the cost!.; Of each Member Agency's personnel equip rA- Gent -4bt ted-ta- ABL €-#or- each - fiscal- - year exceeds tk�eapaet t- e€fupds -to -be Kelfpbl -i ".".r -cv oy ABiiE— fGK�^EFSfi- 845tsvr-t:�ri —vii °m hmoci Av^Jnn.-p�,._xty.rnn +nlm�e queRt fr Ga- pear € - Each Member Agency ag ; ees4G- expressly w"a"iv"e�s any and all rights to be reimbursed by ABLE or the other Member Agencies for the salaries. benefits or other costs for personnel and GGntributed assigned to ABLE. to the exte.,+ that An or4he .^..`.tv n{ 4 er$Bnppl_ap u tpd tA ARI G 5.02 ABLE shall aGh "embe A apoy- he- refe---agrees -te protect, defend, indemnify and hold free and harmless ABLE and the n + "nr the Member Agencies and their respective elected and appointed boards, officers. and employees from and against any and all liabilities.y fey damages, claims. expense s. actions or proceedings of any kind or nature, including. but not by way of limitation. claims for personal injury by ABLE employees. G.ests - -and G4 attorney fees and costs, for injury to or death of any person, and for injury or damage to any property, ins cluding consequential damaqes. resulting or arising out of or in any way connected with the acts, errors or omissions in the performance of this Aqreement by ABLE and for which ABLE has insurance coverage in effect at the time of any such claim loss. liability or obligation. €er poses of dais A#iGle a/— '�r#orp�ane° "€ =shall p�sat�tk+e pe+fierma+aee�f -#h+s Agr-eemept- by.ABL - €; i # -s Board or a- BGavd- mep�be -ar ap - -ABk E o##icer-- or - -er 0- yee; -or- 8 ¢' e• - a m• - I WE .. ¢ 11. .. Ia 11. 1. t1• - •e 'x• s e ¢ a .. 5.03 ABLE and the Member Agencies agree that ABLE -and -the Member Agencies should be fully protected from any loss, injury, liability, damage, claim, lawsuit, cost or expense arising out of, or in any way related to, the performance of this Agreement bVABLE. tG this Agreement. Accordingly, the provisions of this Agreement should be construed and interpreted to provide the fullest possible protection to ABLE, Member Agencies and Member Agency's officers and employees. ABLE acknowledges that the Member Agencies ABLE —would not have entered into pfavidc- sePAGes-pHrGUan"e -this Agreement in the absence of the commitments of ABLE each- Mernbe"geney --as specified in this Article V. sestien. Nlambef- Agencies asknsk4edge- -that -AIL€ f -and LO may be-&ubjeei -ie I+ab+l ty fe and astisa x- ON il- lA i -m " e - 1/- 1- • lm - 1 _- 1 . ss .a Z e. . .• • ♦ 1. ¢ . e s a -x e. - •a a e• 1. -s a the RegligeRt aGt, sion of •" Mem `m- a e .x- e• a e m- ' a- s s e s a -s. 0 5.0504 Any contract with a non - member public agency- o444er- -than -4he Me,,,beF geneieT_ receiving services pursuant to this Agreement; shall include the following provision: and.1or aRy otheF GE)RtraGt with ABLE, shall be req64ed te agree as fellows= "AGENCY and ABLE sped +ue s#f+ee+s; employees— ce�r�eters:- agents- aac- �- re�rese+�tatives)- -shad -each agree to m-ut ally defend and indemnify the other in an amount equal to its proportionate share of liability on a comparative fault basis. This indemnity obligation shall exist with respect to any claim, loss, liability, damage, lawsuit, cost, or expense that arises out of, or is in any way related to: the performance of services by ABLE pursuant to this helicopter services agreement. The obligation of AGENCY and ABLE pursuant to this section extends, without limitation, to an injury, death, loss or damage which occurs in the performance of this helicopter services agreement wiNNr+- 414at -- public- age4;sys- jur4sd+etfc4 -and which is sustained by any third party, any agent employee or contractor of AGENCY or ABLEthe The terms of this ceetien shall he soatair}ed - -in -- any- agreemeat�y- A�Lz- ;. <:�h, - ^o�;� �;ublfc- agencies 5.056 Member Agencies shall be responsible for the continued provisions of worker's compensation coverage for the officers or agents of the Member Agencies that are assigned to ABLE to perform this Agreement and /or serve as officers or employees of ABLE. In this regard, each Member Agency shall defend, indemnify and hold harmless ABLE and any other Member Agencies, and their respective officers, employees, contractors, agents and representatives with respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to any industrial /worker compensation injury sustained by an employee of the indemnifying Member Agency during the performance of service by ABLE or the responding Member Agencies under this Agreement. 5.06 ABLE shall employ the principles of sound risk management in its aviation ooerations. Risks of loss shall be identified. evaluated. and treated in a manner that shall be accomplished in part through the purchase of appropriate commercial insurance. The Risk Manager of one Member Agency shall be designated by the Board as the "ABLE Risk Manager" and shall act in an advisory capacity to ABLE Board to provide guidance in the area of risk manaclement. loss control, insurance procurement, and claims management. ABLE Risk Manager will be responsible for maintaining the original insurance policies and other risk management and insurance documents. During the term of this Agreement. ABLE shall purchase and maintain commercial insurance coverage as recommended by the ABLE Risk Manager to the Board for its approval. VI 10 ADMISSION AND WITHDRAWAL OF PARTIES 6.1 Additional public agencies that contribute personnel and aircraft equipment may become Member Agencies to ABLE upon such terms and conditions as provided by the Board and upon the unanimous consent of the existing Member Agencies as evidenced by approval of resolutions therefore and the execution of a written amendment to this Agreement by all of the Member Agencies, including the additional Member Agency. 6.2 The withdrawal of any Member Agency, either voluntarily or involuntarily shall, unless otherwise provided for by the Board, be conditioned as follows: (a) Involuntary withdrawal shall mean those circumstances where a Member Agency must withdraw due to fiscal or budgetary impacts which discontinue the funding of flight crews or aircraft; (b) In the case of a voluntary withdrawal, written notice shall be given one hundred twenty (120) days prior to the end of a fiscal year except that such notice may be shortened by unanimous approval of the Board; (c) Neither voluntary or involuntary withdrawal shall relieve the withdrawing Member Agency of its proportionate share of any debts or other liabilities incurred by ABLE prior to the effective date of the Member Agency's withdrawal, nor any liabilities imposed upon or incurred by the Member Agency pursuant to this Agreement prior to the effective date of the Member Agency's withdrawal; (d) Withdrawal shall not result in the forfeiture of that Member Agency's rights and claims relating to revenues received by ABLE during the time period that the Member Agency provided services under ABLE direction; and (e) The withdrawing Member Agency shall be entitled to remove yet -11 egh— title to its personnel and any equipment whose title was not transferred to ABLE shaA- rem - Gve -such pe +- e from the possession and direction of ABLE. The heliGG . n h^ held iR title by ABLE aon- of -ABLE- The withdrawing Member Agency may also recover any other equipment no longer needed bV ABLE, including a helicopter it previously transferred to ABLE according to the terms and conditions determined by the Board in its sole discretion to be fair and equitable. 11 Vil TERMINATION AND DISPOSITION OF ASSETS 7.01 ABLE shall continue to exist and exercise the powers herein until the r +;. of this Agreement is terminated by action of the Member Agencies: ar4 r;vAualiy_;esc +, ded this ngreer en*, provided, however, that no termination shall be complete and final until ABLE has satisfactorily disposed of all financial obligations and-shall Anntip,,A to exist faF the purposed Gf disposing Gf all claims, distributed all assets. and performed all other functions deemed necessary by the Board to conclude the affairs of ABLE. 7.02 Termination shall occur upon the written consent of all Member Agencies, upon the withdrawal from ABLE of a sufficient number of the Member Agencies to leave fewer than two (2) Member Agencies remaining in ABLE and full satisfaction of all outstanding financial obligations of ABLE. However, no such termination shall occur until all other contractual obligations of ABLE have been satisfied. 7.03 In the event of the termination of this Agreement, any funds remaining following the discharge of all obligations shall be disposed of by returning to each current Member Agency of ABLE immediately prior to the termination of this Agreement, a share of such funds proportionate to the contribution made to ABLE by said Member Agency, to the extent determined by Board in its sole discretion to be fair and equitable. legaly- passible_ 7.04 Notwithstanding other provisions in the Agreement, the Member Agencies Costa Mesa and Newport Beach agree to abide by the following fe4pw —a procedure for selling of equipment and aircraft in the event the Agreement is terminated. The equipment and aircraft shall be given a fair market value by an appraiser mutually agreed upon by Costa Mesa and Newport Beach. Before the equipment and aircraft are sold on the open market, Costa Mesa and Newport Beach each shall have the right to purchase the equipment and aircraft at a price and under terms as mutually agreed upon by Costa Mesa and Newport Beach which may include a financing arrangement for the purchaser and a leasing arrangement for the non - purchasing Member Agency to allow for a transition period after the termination of thise Agreement. If an agreement cannot be reached concerning a purchase of the equipment. then it shall be sold on the open market. Proceeds from the sale of equipment and aircraft upon termination of the Agreement shall be equally distributed (50/50) to Costa Mesa and Newport Beach. VIII MISCELLANEOUS 8.01 Amendments. 12 This Agreement may be amended with the unanimous approval of all Member Agencies; provided, however, that no amendment may be made which would adversely affect the interests of the owners of bonds, letters of credit or other financial obligations of ABLE. 8.02 Notices. Any notice or instrument required to be given or delivered by depositing the same in any United States Post Office, registered or certified, postage prepaid, addressed to the Member Agencies, shall be deemed to have been received by the Member Agency to whom the same is addressed at the expiration of seventy -two (72) hours after deposit of the same in the United States Post Office for transmission by registered or certified mail as aforesaid. 8.03 Effective Date. This Agreement shall be effective at such time as this Agreement has been executed by any two or more of the Member Agencies enumerated in the introduction of this Agreement. 8.04 Conflicts of Interest. No officer or employee of ABLE or any Member Agency shall have any financial interest, direct or indirect, in ABLE. Nor shall any such officer or employee participate in any decision relating to ABLE which affects his or her financial interests or those of a corporation, partnership, or association in which he or she is directly or indirectly interested, in violation of any State law or regulation. 8.05 Arbitration. (a) Any controversy or claim between any two or more Member Agencies, or between any such Member Agency or Member Agencies and ABLE, with respect to ABLE's operations, or to any claims, disputes, demands, differences, controversies, or misunderstandings arising under, out of, or in relation to this Agreement, shall be submitted to and determined by arbitration. To the extent not inconsistent herewith, the rules of the American Arbitration Association shall apply. (b) The Member Agency desiring to initiate arbitration shall give notice of its intention to arbitrate to every other Member Agency and ABLE. Such notice shall designate such other Member Agencies as the initiating Member Agency intends to have bound by any award made therein. 13 (c) The decision of the arbitrator shall be binding upon all Member Agencies involved in the arbitration. Each Member Agency to the arbitration shall bear its own legal costs, including attorney fees. 8.06 Partial Invalidity. If any one or more of the terms, provisions, sections, promises, covenants or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable or void for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, sections, promises, covenants and conditions of this Agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 8.07 Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of the Member Agencies hereto. 8.08 Assignment. A Member Agency shall not assign any rights or obligations under this Agreement without the written consent of all other Member Agencies. 8.09 Execution. The legislative bodies of the Member Agencies enumerated herein have each authorized execution of this Agreement, as evidenced by the authorized signatures below, respectively. 8.10. Entire Agreement. This Agreement supersedes any and all other agreements whether oral or written between the parties hereto with respect to the subiect matter hereof and contains all of the covenants and agreements between the parties with respect to said matter. and each party to this Agreement acknowledges that no representations inducements, promises or agreements orally or otherwise have been made b party, or anyone acting on behalf of any party, which are not embodied herein and that ._......------- any other agreement or modification of this Agreement shall be effective only if executed in writing and signed by ABLE and all Member Agencies 14 Dated: ATTEST: City Clerk of the City of Costa Mesa Dated: ATTEST: City Clerk of the City of Newport Beach F: \users \cat \s hared \da\Ag\Able \030101. d oc CITY OF COSTA MESA m Mayor APPROVED AS TO FORM: City Attorney CITY OF NEWPORT BEACH By: Mayor APPROVED AS TO FORM: City Attorney 15