HomeMy WebLinkAboutC-8972-2 - Joint Powers AgreementJOINT POWERS AGREEMENT
FOR
CALIFORNIA INSURANCE POOL AUTHORITY
114695.000000/708740.05
TABLE OF CONTENTS
JOINT POWERS AGREEMENT FOR
CALIFORNIA INSURANCE POOL AUTHORITY
Page
ARTICLE 1. DEFINITIONS......................................................................................................
l
ARTICLE 2. SEPARATE ENTITY...........................................................................................
2
ARTICLE3. PROGRAM...........................................................................................................
3
ARTICLE4. CIPA POWERS....................................................................................................
3
ARTICLE 5. MEMBERS; BOARD OF DIRECTORS..............................................................
3
ARTICLE 6. POWERS OF BOARD.........................................................................................
4
ARTICLE 7. MEETINGS OF THE BOARD............................................................................
4
ARTICLE 8. QUORUM; VOTING...........................................................................................
4
ARTICLE 9. EXECUTIVE COMMITTEE...............................................................................
4
ARTICLE10. CIPA FUNDS.......................................................................................................
5
ARTICLE 11. TERM OF AGREEMENT....................................................................................
5
ARTICLE 12. MEMBERSHIP TERM; WITHDRAWAL; TERMINATION ............................
5
ARTICLE 13. DISPOSITION OF CIPA PROPERTY AND FUNDS ........................................
6
ARTICLE 14. ENFORCEMENT AND DISPUTE RESOLUTION ............................................
6
ARTICLE 15. INVALIDITY.......................................................................................................
7
ARTICLE16. AMENDMENTS..................................................................................................
7
ARTICLE 17. LIABILITY OF BOARD OF DIRECTORS, OFFICERS, AND
COMMITTEEMEMBERS.................................................................................
7
ARTICLE18. BYLAWS..............................................................................................................
8
ARTICLE 19. PROHIBITION AGAINST ASSIGNMENT........................................................
8
ARTICLE 20. LIABILITY TO THIRD PARTIES......................................................................
8
ARTICLE 21. AGREEMENT COMPLETE................................................................................
8
ARTICLE 22. DATE AGREEMENT EFFECTIVE....................................................................
8
114695.000000/708740.05
JOINT POWERS AGREEMENT
FOR
CALIFORNIA INSURANCE POOLAUTHORITY
This Agreement is entered into pursuant to the provisions of Chapter 5 (beginning with
Section 6500) of Division 7 of Title 1 of the Government Code authorizing specified local public
entities to exercise jointly the power to provide Risk Management, including insurance, pursuant
to the provisions of Chapter 3 (beginning with Section 989) of Part 6 of Division 3.6 of Title 1 of
the Government Code.
WITNESSETH:
WHEREAS, the public interest requires and it is in the mutual interest of the parties
hereto to join together to establish and operate a cooperative program of risk management; and
WHEREAS, the operation of such a cooperative program is of such magnitude that it is
necessary for the parties to this Agreement to join together to accomplish the purposes
hereinafter set forth; and
WHEREAS, each of the local public entities which is a party to this Agreement has the
power to establish and operate a program of risk management; and
WHEREAS, Title 1, Division 7, Chapter 5 of the California Government Code authorizes
the joint exercise by two or more local public entities of any power which is common to each of
them; and
WHEREAS, each of the parties to the Agreement desires to join together with the other
parties for the purpose of minimizing risk through any, all or any combination of the following:
pooling of risk, joint funding of insurance or risk reserves in any legal manner, formation or
rental of a captive insurer, establishing certain self -insured reserves against losses and jointly
purchasing insurance, excess insurance, reinsurance and administrative services in connection
with a cooperative program of risk management;
NOW, THEREFORE, for and in consideration of the mutual advantages to be derived
from and in consideration of the execution of this Agreement by other local public entities, each
of the parties hereto does agree as follows:
ARTICLE 1. DEFINITIONS
The following definitions shall apply to the provisions of this Agreement and its Bylaws:
(a) "Agreement" or "Joint Powers Agreement" shall mean this "Joint Powers
Agreement for California Insurance Pool Authority," as it may be amended.
(b) "Authority" or "CIPA" shall mean the California Insurance Pool Authority
created by this Agreement.
-1-
114695.000000/708740.05
(c) "Board of Directors" or "Board" shall mean the governing body of the Authority.
(d) "Claim" shall mean a claim made against a member arising out of an occurrence,
incident or other event which is covered by an excess or primary insurance program of the
Authority in which the Member participates.
(e) "Current Member" shall mean a Member Agency that has not been terminated or
withdrawn from the Authority or any program thereof.
(f) "Eligible Member" shall mean a Member Agency eligible to vote on a matter
coming before the Board in a given area of risk, due to the Member Agency's participation in
that area of risk. In the case of new areas of risk that CIPA is considering, "Eligible Members"
shall be all Members who reasonably expect to participate in that area of risk.
(g) "Executive Committee" shall mean the committee of the Board of Directors
responsible for management of the affairs of the Authority between meetings of the Authority.
(h) "General Manager" shall mean the person or entity appointed by the Board and
given responsibility for the management, administration and operation of the cooperative
programs of risk management of the Authority.
(i) "Insurance program" or "program" shall mean a program of the Authority under
which participating Members are protected against designated losses through joint purchase of
primary or excess insurance, pooling of self -insured claims or losses, purchased insurance or any
other combination or method as determined by the Board. The Board of Directors or the
Executive Committee may determine applicable criteria for determining eligibility for any
insurance program, as well as establish program policies and procedures.
0) "Local Public Entity" shall mean city, county, public authority and such other
governmental entities as the Authority may determine to be qualified to participate in the
Authority.
(k) "Member Agency" or "Member" shall mean a Local Public Entity that is a party
to this Agreement.
(1) "Participation" or "Participating" shall mean a Member Agency's action or state
of taking part in the programs of the Authority.
(m) "Risk Management" is the process through which exposure to loss is identified,
the feasibility of alternatives evaluated, the best risk management techniques are selected and
implemented, and the selected program(s) monitored and improved upon. Risk management
techniques may include, but not be limited to, loss prevention and reduction, transferring losses,
self-insurance, pooling, commercial insurance, and other funding mechanisms.
ARTICLE 2. SEPARATE ENTITY
There is hereby created a separate public entity, the full legal name of which shall be
"California Insurance Pool Authority", and may be referred to herein as "CIPA" or the
114695.000000/708740.05 _2_
"Authority." The Authority is a public entity separate from the parties to this Agreement. The
debts, liabilities and obligations of the Authority shall not be the debts, liabilities or obligations
of the parties to the Agreement.
ARTICLE 3. PROGRAM
A risk management program is hereby established by the parties to this Agreement. This
cooperative program of Risk Management, which may include the joint purchase of primary or
excess insurance, pooling of self -insured claims or losses, or purchased insurance, shall include
liability coverage, and may include any or all the following risk areas: worker's compensation,
accident and health, property damage and such other areas as agreed upon by the Board.
ARTICLE 4. CIPA POWERS
(a) CIPA shall have the power and the duty to establish and operate a program of risk
management and provide for its execution either directly by CIPA or by contract.
(b) CIPA is authorized to make and enter into contracts; to employ agents and
employees; to acquire, construct, manage, maintain or operate any building, works or
improvements; to acquire, hold or dispose of property, liabilities or obligations; establish risk
management related lines of credit, to incur indebtedness, liabilities or obligations, to sue and be
sued in its own name, and to exercise all powers necessary and proper to carry out the terms and
provisions of this Agreement, or otherwise authorized by law. The foregoing powers include,
but are not limited to, those relative to contracting for excess insurance or reinsurance, risk
pooling, including formation of an owned or use of a non -owned captive insurance company,
funding of self-insurance in any legal manner, claims administration services and consulting
services.
(c) The operations of CIPA shall be subject to, and governed by the Bylaws adopted
by the Board.
(d) The powers exercised by the Authority shall be subject to the restrictions upon the
manner of exercising the powers of a general law city.
ARTICLE 5. MEMBERS; BOARD OF DIRECTORS
(a) Each Member Agency is entitled to the rights and privileges and is subject to the
obligations as provided for in this Agreement and the Bylaws.
(b) A new Member Agency may be accepted upon application to CIPA and upon
acceptance by the Board by two-thirds vote, and subject to acceptance by the prospective
member of the financial arrangements, fund contributions and such other conditions as may be
specified by the Board, consistent with this Agreement.
(c) Each Member Agency shall be entitled to one voting representative to serve as a
director on the Board.
114695.000000/708740.05 _3 _
(d) Each Member Agency shall designate a representative to the Board. Each
Member may designate one alternate to attend meetings and vote in the event of absence of the
representative. To be qualified to serve, each representative and alternate shall be an officer or
employee of the appointing Member Agency.
ARTICLE 6. POWERS OF BOARD
The Board shall exercise all powers and conduct all business of the Authority, either
directly or by delegation to other bodies or persons unless otherwise prohibited by this
Agreement including, but not limited to, the following powers and functions:
(a) To approve an annual budget and any assessments of the Authority.
(b) To select officers, including a treasurer, auditor, and secretary, as may be
necessary to carry out the purposes of this Agreement.
(c) To establish committees as it may deem necessary to carry out its purposes.
(d) To exercise all of the powers and duties of CIPA, including all business assigned
to the Executive Committee, in the absence of the Executive Committee.
(e) To approve all changes to the Bylaws. This authority may not be delegated.
(f) To perform such other duties and functions as are provided for in this Agreement.
ARTICLE 7. MEETINGS OF THE BOARD
The Board shall establish a time and place to hold regular meetings not less often than
annually. Meetings shall be conducted pursuant to the most current edition of Roberts Rules of
Order or such other procedural rules as the Board shall adopt.
ARTICLE 8. QUORUM; VOTING
(a) A quorum for the transaction of business by the Board shall consist of a majority
of the Board of Directors, or of the Eligible Members, whichever is less.
(b) All matters within the purview of the Board of Directors may be decided by
majority vote of a quorum of the Board, except those matters which the Agreement or Bylaws
specify as requiring a two-thirds vote of the Board must be decided by a vote of two-thirds of all
representatives on the Board.
(c) Each Eligible Member may vote on each matter brought before the Board for
decision.
ARTICLE 9. EXECUTIVE COMMITTEE
The Board shall establish an Executive Committee of the Board of Directors as provided
in the Bylaws. The Executive Committee shall exercise general supervisory and policy control
114695.000000/708740.05 _4_
over the General Manager, and may exercise any and all powers of the Board between Board
meetings and when delegated by the Board, as provided in this Agreement and the Bylaws.
ARTICLE 10. CIPA FUNDS
The Treasurer of the Authority shall receive and receipt for all of the funds of CIPA. The
treasurer of a Member Agency shall be the Treasurer and Auditor of CIPA unless another
Treasurer or Auditor is designated by CIPA. The Treasurer will cause an annual audit of the
financial affairs of CIPA to be made by a certified public accountant at the end of each fiscal
year in accordance with generally accepted auditing principles. Except for those duties
prescribed by Government Code sections 6505 and 6505.5, the Treasurer's selection,
responsibilities, compensation and related matters shall be governed by the Bylaws. The
Treasurer shall be the disbursing officer of CIPA and shall draw warrants against the funds of
CIPA in the treasury when demands are presented and authorized as designated in the Bylaws.
The Treasurer and any other person authorized to be in charge of any CIPA funds shall be
bonded.
ARTICLE 11. TERM OF AGREEMENT
This Agreement shall continue in effect until it is rescinded by mutual consent of the
parties or terminated by the written consent of two-thirds of all Member Agencies; provided that
this Agreement and CIPA shall continue to exist for the purpose of disposing of all claims,
distributing assets and performing all other functions necessary to wind up the affairs of CIPA.
The Executive Committee shall be vested with all powers of CIPA for the purpose of winding up
and dissolving the business affairs of CIPA.
ARTICLE 12. MEMBERSHIP TERM; WITHDRAWAL; TERMINATION
(a) A party to this Agreement shall remain a Member Agency for two years from the
date it first joined CIPA; thereafter the Member Agency may withdraw by giving written notice
to the Board or its designee, on or before the next succeeding March 1, of the intent to withdraw
as of 12:01 a.m. on the next July 1.
(b) On the July 1 specified in the notice the withdrawing party shall cease to be a
Member of CIPA; however, the withdrawing party shall remain responsible to contribute its
share of premiums, contributions or assessments, as described in Article 13, and shall continue to
comply fully with the terms and conditions of this Agreement and programs in which they were
participants. Withdrawal of a party from CIPA shall automatically concurrently terminate any
and all coverages obtained by and through CIPA as to the withdrawing party and all additional
insureds and named insureds affiliated with the withdrawing party, excepting only: (1)
commercial insurance policies specifically naming the withdrawing party or related insureds; (2)
tail or extended reporting coverage offered by CIPA and accepted by the withdrawing party; (3)
pending covered claims; and (4) continuation of any coverage provided on an occurrence basis.
(c) The Board shall have the right to terminate, for good cause, any Member
Agency's participation in the Authority, or any program thereof, upon a 2/3 vote of the entire
Board of Directors; provided that a reasonable time shall be afforded, in the discretion of the
Board of Directors, for the Member to seek coverage elsewhere.
114695.000000/708740.05 _ 5 _
(d) The Executive Committee shall have the right to recommend termination of any
Member Agency's participation in the Authority, or any program thereof, in the event of
nonpayment of any of the Member Agency's obligations. Such a recommendation may be
approved by a majority of the entire Board of Directors.
ARTICLE 13. DISPOSITION OF CIPA PROPERTY AND FUNDS
(a) A Member Agency may withdraw as a Member in accordance with this
Agreement and the Bylaws, provided that no withdrawing party shall be entitled to payment or
return of any earned premium, contribution, consideration, or property paid or donated by the
party to the Authority, or to any distribution of assets prior to final termination of this
Agreement, except in connection with final termination of a program pursuant to subparagraph
(b). The withdrawal or cancellation of any Member Agency shall not terminate its responsibility
to contribute its share of premium or funds to any insurance program of CIPA or to cooperate
with CIPA in the resolution of claims, until all claims or other unpaid liabilities covering the
period the Member Agency was a participant have been finally resolved and a determination of
the final amount of payments due by the Member Agency or credits for such period has been
made by the Authority.
(b) In the event of the dissolution of CIPA or the complete rescission or final
termination of the Joint Powers Agreement by all of the then parties thereto, or final termination
of any program by CIPA, any assets of CIPA remaining after all claims and obligations have
been paid, and after the payment of all liabilities, costs, expenses and charges incurred pursuant
to this Agreement, or provision made for the payment of same through establishment of a
liquidation fund, purchase of insurance or reinsurance, or a combination thereof, shall be
returned to the then Current Members of CIPA based on their total net contributions from
inception, determined as of the date of dissolution, rescission or final termination. For the
purposes of this paragraph "net contributions" shall mean the sum of actual contributions paid in,
less losses and allocated claims expenses, but not less than zero for any individual Member. Net
contributions shall be reduced by any rate credits given. Losses and allocated claims expenses
shall include contributions used to pay for reinsurance, but not any proceeds therefrom. Net
contributions shall include any interest actually earned thereon by the Authority. The Authority
may adjust the interest earnings attributable to the contributions of a Member whose net
contribution is zero or less based on a reasonable estimate of any periods during which no
interest was earned.
ARTICLE 14. ENFORCEMENT AND DISPUTE RESOLUTION
CIPA shall have the authority to enforce this Agreement. Any dispute regarding the
interpretation of this Agreement, the Bylaws, a Memorandum of Coverage, or any other CIPA
documents, or the collection or return of funds, between or among CIPA and any Member
Agency or Agencies, shall be addressed in accordance with the administrative procedures
established by CIPA. If unresolved, any such disputes shall then submitted to final and binding
arbitration, except in the case of a dispute exclusively for the collection or return of assessments,
contributions or premiums for a given year of coverage. However, where there is a coverage
dispute between CIPA and any Member Agency or Agencies between such Member Agency or
Agencies and one or more third party insurance providers concerning the same common nucleus
114695.000000/708740.05 _6_
of operative facts, the Member Agency or Agencies may request, and the Board of CIPA may, in
its sole, reasonable discretion, approve or conditionally approve waiver of these dispute
resolution procedures to permit adjudication of the disputes in a single forum. Such arbitrations
shall be conducted in accordance with the procedures established in the California Code of Civil
Procedure and referred to the Judicial Arbitration and Mediation Service or other arbiter as may
be agreed by the parties, and such other procedural rules as the CIPA Board may establish. The
decision of the arbitrator(s) may be entered as a judgment in any court of the State of California
or elsewhere. Cost of such arbitration proceedings shall be allocated by the arbitrators. As to
disputes exclusively for the collection or return of assessments, the Authority may sue, or any
affected Member may sue provided it has timely presented a claim therefore to the Authority.
As to such a claim for the collection or return of funds, the prevailing party shall be entitled to
reasonable attorney's fees.
ARTICLE 15. INVALIDITY
Should any portion, term, condition or provision of this Agreement be determined by a
court of competent jurisdiction to be illegal and in conflict with any law of the State of California
or be otherwise rendered unenforceable or ineffectual, the validity of the remaining portions,
terms, conditions and provisions shall not be affected thereby.
ARTICLE 16. AMENDMENTS
No amendments to this Agreement shall be effective unless accomplished by written
agreement executed by the governing bodies of at least two-thirds of the parties to this
Agreement. This Agreement may be executed in one or more counterparts, and shall be deemed
effective as to all signatories as though signed in one document. Reasonable prior notice of any
Board meeting in which amendments are to be voted upon must be given to each Member in
writing. Such notice must include mention of the nature of the amendments to be voted upon.
Any party that has failed to approve an amendment which has become effective shall be bound
by such amendment.
ARTICLE 17. LIABILITY OF BOARD OF DIRECTORS, OFFICERS, AND
COMMITTEE MEMBERS
(a) To the extent permitted by law, the Authority shall defend and indemnify a
Director, Officer or committee member of CIPA for a claim which is based on, or arises out of,
activities undertaken in good faith and within the course and scope of his or her duties, as such.
(b) The cost of defense and indemnity of a Director, Officer or committee member of
CIPA shall be a proper charge against the funds of the Authority, except as to those claims
arising as a result of such persons traveling to or from a meeting of the Authority, it being the
intent of the parties that the risks of such travel be borne by the Member Agency. No Director,
Officer or committee member shall be required to give a bond or other security to guarantee the
faithful performance of their duties pursuant to this Agreement. Nothing herein shall limit the
right of the Authority to purchase insurance, bonds or master bonds to provide coverage within
the scope of this Article.
114695.000000/708740.05 _7_
ARTICLE 18. BYLAWS
(a) By a two-thirds vote of the entire Board, the Board shall develop and adopt
Bylaws to govern the operations of CIPA and may amend such document.
(b) Each Member Agency agrees to comply with and be bound by the provisions of
the Bylaws as may be amended. Notwithstanding any provision in the Bylaws adopted by the
Board, in the event of any conflict between this Agreement and the Bylaws this Agreement shall
prevail.
ARTICLE 19. PROHIBITION AGAINST ASSIGNMENT
No Member Agency may assign any right, claim or interest it may have under this
Agreement, and no creditor, assignee or third party beneficiary of any Member shall have any
right, claim or title to any part, share, interest, fund, premium or asset of the Authority.
ARTICLE 20. LIABILITY TO THIRD PARTIES
Pursuant to Government Code section 6512.2, no Member Agency shall be liable to any
third party for CIPA's conduct in carrying out the purposes of this Agreement. The Member
Agencies hereby declare that CIPA is a member of the Authority and shall at all times participate
in the liability insurance program of the Authority. The Member Agencies further direct the
Board of Directors to at all times maintain insurance or reinsurance to cover the operations of the
Authority as the Board, in its discretion, shall deem appropriate. Notwithstanding the
availability of any such coverage, the assets of CIPA shall be available to satisfy the liabilities of
CIPA.
ARTICLE 21. AGREEMENT COMPLETE
The foregoing constitutes the full and complete Agreement of the parties. There are no
oral understandings or agreements not set forth in writing herein.
ARTICLE 22. DATE AGREEMENT EFFECTIVE
This Agreement shall become effective as of July 1, 2007 upon approval in accordance
with its terms.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their proper officers thereunto duly authorized.
Executed before me this
day of VVWII , 2022
C
pPpRc�-EYF� F
N,SO GE
NcA
114695.000000/708740.05gy.n
c i Attorney
r
CITY OF NEWPORT BEACH
By