HomeMy WebLinkAboutC-2760 - Hazardous Material Emergency Response Joint Powers AgreementCITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
July 26, 1993
Agenda Item No. 15
JUL 2 61993
(3y)
T0: Mayor and Members of the City Council I
FROM: Robert H. Burnham ' ....._.._ APPROVED
SUBJ: Proposed Amendment to Orange County City
Hazardous Material Joint Powers Agreement C -2-%60
In 1989, the City Council approved a Joint Exercise of Powers
Agreement ( "JPA") creating the Orange County -City Hazardous
Material Emergency Response Authority ( "Authority "). The JPA was
created so that cities maintaining hazardous materials response
teams, such as Newport Beach, would continue to provide out of
jurisdiction services only to those entities which agreed to pay
their fair share of the cost of maintaining response teams.
Newport Beach is one of five provider agencies that formed the
Authority and has a representative on the Board every other year
(alternating with Huntington Beach). The program has been well
received and the Authority represents the most effective way of
continuing to provide Orange County residents with protection from
hazardous material emergencies.
The Board is recommending a Third Amendment to the JPA to
resolve some operational and administrative problems. The only
proposed substantive change to the Agreement would result in a
slight increase in subscriber fees. Other proposed amendments
include clarification of indemnification obligations,
implementation of automatic renewal of subscription agreements,
revision of the date on which the budget is approved, and
clarification of an agency's obligations for providing police and
fire support services within their own jurisdiction.
RECOMMENDATIONS.
It is recommended that the city Council authorize the Mayor to
sign the Third Amendment to the Orange County -City Hazardous
Materials Joint Powers Agreement.
ert H. Burnham
City Attorney
RHB : k me
0 0
THIRD AMENDED JOINT EXERCISE OF POWERS
EXENT OF THE ORANGE COUNTY-CITY HAZARD
MATERIALS EMERGENCY RESPONSE AUTHORITY
ORIGINAL
C -2760
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TABLE OF CONTENTS
RECITALS
1
- Chapter 1
DEFINITIONS 3
Chapter 2
GENERAL PURPOSE AND POWERS 8
3.3
2.1 Authority Created 8
13
2.2 Common Powers 8
Meetings
2.3 General Purpose 9
3.5
2.4 Powers 9
Chapter 3 ORGANIZATION 11
3.1
Membership
it
3.2
Board
11
3.3
Principal Office
13
3.4
Meetings
14
3.5
Quorum
14
3.6
Powers and Limitations
14
3.7
Minutes
15
3.8
Rules
15
3.9
Officers
15
3.10
Administration
16
3.11
Bonds
16
3.12
Status of Officers and Employees
17
Chapter 4 HAZARDOUS MATERIALS RESPONSE SERVICES
17
4.1
Basic Services
17
4.2
Preventative Measures
19
Chapter 5 FEE PROVISIONS 20
5.1
Provider Agencies
21
5.2
Service to County Contract Cities
23
5.3
Services to and Reimbursement from
Subscriber Agencies
24
5.4
Services to and Reimbursement from
Emergency Services Contract Agencies
26
5.5
Distribution of Revenue
28
Chapter 6 GENERAL BUDGETARY PROVISIONS
29
6.1
Annual Budget
29
6.2
Hourly Rate
30
6.3
Disbursements
30
6.4
Accounts
30
6.5
Expenditures Within Approved Annual
Budget
31
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Chapter 7 LIABILITIES
7.1 Liabilities
7.2 Indemnification /Hold Harmless
Chapter 8 ADMISSION AND WITHDRAWAL OF PARTICIP
AGENCY
8.1 New Participating Agencies
8.2 Withdrawal
Chapter 9 TERMINATION AND DISPOSITION OF ASSETS
9.1 Termination
9.2 Distribution of Property
Chapter 10 MISCEIJJ *raOUS
10.1 Amendments
10.2 Notice
10.3 Partial Invalidity
10.4 Successors
PAGES
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36
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This Third Amended Joint Exercise of Powers Agreement
is made by, and is effective when fully executed by
authorized representatives of all of, the following public
entities:
(1) City of Huntington Beach
(2) City of Newport Beach
(3) City of Santa Ana
(4) City of Anaheim
(5) County of Orange
RECITALS
A. The County of Orange has, pursuant to the
provisions of Article 3.5, Chapter 6.5 of Division 20 of the
Health and Safety Code of the State of California, adopted
the Orange County Hazardous Waste Management Plan
( "Management Plan ") and all cities within the County have
approved the Management Plan, either expressly or by
operation of law.
B. As one of its objectives, the Management Plan calls
for continued prompt and efficient response to hazardous
materials emergencies and proposes to achieve this objective
by continuing to provide emergency response service for
spills, illegal dumping and other incidents involving
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hazardous materials and waste, through the County's own
forces and /or response teams maintained by other public
entities within the County.
C. The Orange County Fire Chiefs Association has
evaluated the staffing levels and equipment that must be
maintained, and the procedures which must be
followed, to effectively and properly respond to hazardous
materials emergencies throughout the County.
D. The signatories to this Agreement currently provide
hazardous materials emergency response services throughout
the County and desire to continue to provide these services
through a joint powers authority which would partially
offset the expenses of Provider Agencies from revenue from
agencies, persons and entities receiving service, those
responsible for the emergency, and grant programs.
E. The signatories to this Agreement have determined
that the provisions of this Agreement are consistent with
the Hazardous Waste Control Law, the Orange County Hazardous
Waste Management Plan and the Orange County Hazardous
Materials Area Plan.
F. The signatories to this Agreement each have the
common power to create, train and equip hazardous materials
response teams as well as the authority to contract with one
another for the joint exercise of any common power pursuant
to the provisions of Article 1, Chapter 5, Division 7 Title
1 of the Government Code of the State of California.
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G. The County of Orange and the Cities of Anaheim,
Huntington Beach, Newport Beach, and Santa Ana previously
entered into the Joint Powers Agreement Creating the Orange
County - City Hazardous Materials Response Authority and the
First Amendment thereto, and desire to amend the Joint
Powers Agreement to reflect the desired changes in the
operation of the Authority.
1.
DEFINITIONS
For the purpose of this Agreement, the following words
or terms shall have the following meanings:
1.1 "Annual Budget" means the budget approved by
the Board pursuant to Section 6.1.
1.2 "Authority" means the Orange County -City
Hazardous Materials Emergency Response Authority.
1.3 "Board Members" means those persons serving as
members of the Board or their designated alternates.
1.4 "Board" means the governing Board of the
Authority.
1.5 "County" means the geographic area within the
boundaries of the County of Orange, including incorporated
and unincorporated territory, but exclusive of the "County
of Orange" as a political subdivision of the State of
California.
1.6 "County of Orange" means the public entity
which is a political subdivision of the State of California
and is governed by the Board of Supervisors, or a Fire
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Protection District, Joint Powers Authority or other entity
formed pursuant to state law providing fire and emergency
response services for the County of Orange.
1.7 "County Contract City" means any city which,
as of the effective date of this agreement and hereafter,
contracts with the County of Orange for fire and emergency
response services.
1.8 "Emergency Services Contract Agency" means any
public agency that contracts with the Authority to pay for
hazardous materials emergency response services on an hourly
r
basis as further described in Section 5.4.
1.9 "Fair Share Contribution" means the sum of `
money to be paid by a Subscriber Agency for services and is
calculated by taking the total of the Fair Share
Percentages, as defined below, for all Subscriber Agencies,
dividing that total by the individual Subscriber Agency's
Fair Share Percentage, and then multiplying the result by
the Annual Budget for the prospective fiscal year.
EXAMPLE: Fair Share Contribution calculation for City A
assuming for cities in the county and that City D does not
subscribe -
Fair Share % Fair Share Contribution for City A
City A - 25%
City B - 15% 25 %/70% = 35.7% of budget
City C - 30%
City D - 30%
The Fair Share Contribution for all cities excluding
Provider Agencies for the fiscal year 1993/1994 is set
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forth on Exhibit A, a copy of which is attached to this
Amended Agreement and incorporated as though set forth in
full. The Fair Share Contributions set forth in Exhibit A
are subject to change in the event that fewer cities
subscribe than reflected in the calculation.
For succeeding fiscal years, the Administrator of the
Authority will notify existing and prospective subscribers
of their estimated Fair Share Contribution assuming full
participation at least ninety (90) days prior to the date
that the Board is scheduled to adopt the budget for the
Authority for the next fiscal year. The actual Fair Share
Contributions will then be established by the Board based
upon the number of subscribers who either enter into or
continue an existing Subscription Agreement for that fiscal
year. The Fair Share Contribution may be changed as
appropriate by action of the Board in the event that, after
the commencement of the fiscal year, additional agencies
become subscribers.
1.10 "Fair Share Percentage" means the percentage
which is calculated by averaging the percentage of County
population and County assessed value (real property) in each
city within the County as well as the unincorporated area of
Orange County. The Fair Share Percentage attributable to
each city within the County and to the County itself for the
fiscal year 1993/1994 is set forth in Exhibit B, a copy of
which is attached to this Amended Agreement and incorporated
as though set forth in full. The Fair Share Percentages set
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forth in Exhibit B are subject to change in succeeding
fiscal years, and may be changed as appropriate by action of
the Board.
1.11 "Fiscal Year" means the period dating from
July 1 in any given year to and including the 30th of June
of the following year.
1.12 "Hazardous Material" means any of the
following substance(s) or material(s):
A. Any material listed in Subdivision B of
Section 6382 of the Labor Code;
B. Any material or substance defined in
Section 25501(k), 25115, 25117, or 25316 of the Health and
Safety Code;
C. Any material listed in Articles 9
(commencing with Section 66680) or 11 (commencing with
Section 66693) of Chapter 30 of Title 22 of the California
Code of Regulations;
D. Any material listed in Part 261 of Title
40 of the Code of Federal Regulations;
E. Any other material or substance the
release of which is reasonably believed to pose a
significant present or potential hazard to human health,
safety, property, or the environment, or which is declared a
hazardous waste pursuant to local, state or federal law.
1.13 "Hazardous Materials Emergency" means the
release or threatened release of any hazardous material.
1.14 "Hazardous Materials Emergency Response Plan"
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means the Orange County Hazardous Materials Area Plan.
1.15 "Hazardous Materials Emergency Response
Services" means the response to, assessment of, and
stabilization of, any hazardous materials emergency.
1.16 "Participating Agencies" means, collectively,
all Provider Agencies, Subscriber Agencies, County Contract
Cities and Emergency Services Contract Agencies.
1.17 "Provider Agency" means each of the public
entities which are the signatories to this Amendment and
contribute a Response Team to the Authority in accordance
with the provisions of this Amendment.
1.18 "Release" means any spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing into the
environment.
1.19 "Response Team" means personnel employed by a
Provider Agency and who are trained and equipped to respond
to hazardous materials emergencies.
1.20 "Responsible party" means a person or entity
who releases or threatens to release hazardous materials, or
who owns property upon which hazardous materials are
released.
1.21 "Revenue" means all funds received by the
Authority, including but not limited to, fair share
contributions received from Subscriber Agencies, funds
received from Emergency Services Contract Agencies, funds
received from any person or entity responsible for a
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hazardous materials emergency, fees for services, or funds
received from any state or federal grant or program.
1.22 "Subscriber Agency" means each of the public
entities which has agreed to contribute to the costs of
administering this Joint Powers Authority to provide
hazardous materials emergency response services by executing
the Subscription Agreement in a form approved by the Board,
as further described in Section 5.3.
2.
GENERAL PURPOSE AND POWERS
2.1 Authority Created
This Agreement creates a Joint Powers
Authority to be known as the Orange County -City Hazardous
Materials Emergency Response Authority. The Authority is
formed pursuant to the provisions of Article 1, Chapter 5,
Division 7, of Title 1 of the Government Code of the State
of California (the Joint Exercise of Powers Act). The
Authority shall be considered a public entity separate and
apart from the Participating Agencies.
to:
2.2 Common Powers
Each Participating Agency has the common power
A. Respond to, assess the nature of, and
stabilize any emergency created by, the release, or
threatened release, of hazardous materials;
B. Hire, train, and equip persons such that
they are qualified to respond to, assess the nature and
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dangers of, and stabilize any emergency associated with, any
release or potential release of hazardous materials;
C. Direct the activities of persons
qualified to assess the nature or danger of, stabilize any
emergency associated with, control, and clean up any
release, or threatened release, of hazardous materials;
D. Finance the activities of persons
qualified to respond to hazardous materials emergencies,
accept monies to defray the costs of maintaining Response
Teams and responding to emergencies, and to recover the
costs of response from grant programs and persons or
entities responsible, in whole or in part, for the
emergency.
2.3 General Purpose
The primary purpose of this Agreement is to
provide for continuation of the hazardous materials
emergency response system within the County and to partially
offset the costs to Provider Agencies incurred in
maintaining Response Teams, and responding to hazardous
materials emergencies, with revenue derived from the public
entities that use, or have access to, the services of the
Provider Agencies and funds recovered from those responsible
for the emergency. This Agreement also enables public
entities to receive hazardous materials emergency responses
and related services without incurring the direct costs
required to establish and maintain Response Teams. The
Authority will coordinate responses to hazardous materials
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emergencies and ensure efficient use of resources. This
Agreement will enable an equitable sharing of risks
associated with hazardous materials emergencies and promote
the recovery of costs from persons or entities responsible,
in whole or in part, for any such emergency.
2.4 Powers
The Authority shall have the power, in its own
name, to do any of the following:
A. To jointly exercise the common powers of
the Participating Agencies;
B. To make and enter into contracts;
C. To retain the services of engineers,
attorneys, hazardous materials consultants, and such other
persons or entities as may be necessary or appropriate to
achieve the purposes of this Agreement.
D. To acquire, hold or dispose of property
by any lawful means, including, without limitation, gift,
purchase or sale;
E. To incur debts, liabilities or
obligations subject to the limitations specified in this
Agreement.
F. To receive gifts, contributions, grants,
and donations of property, funds, services and other forms
of assistance from any person, firm, corporation or
government agency;
G. To sue and be sued in its own name;
H. To apply for any grant, or grants,
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offered in conjunction with any federal, state or local
program that is in any way related to the purpose of this
Agreement;
I. To adopt, rules, relations, policies,
bylaws and procedures governing the operation of the
Authority;
J. To take all steps necessary to recover
from the person or entity responsible, the costs incurred,
or the value of the services performed, in responding to a
hazardous materials emergency or release;
K. To exercise any other power in the manner
and according to the methods, provided by applicable laws,
rules or regulations, subject only to the restrictions on
the manner of exercising such powers as may be applicable to
the City of Anaheim;
L. To adopt user fees.
3.
ORGANIZATION
3.1 Membership
The Members of the Authority shall be the
public entities which have executed this Third Amended
Agreement, a subsequent amendment, or a Subscription
Agreement, and which have not withdrawn from the Authority
or altered their status.
3.2 Board
A. The Board shall consist of the following:
(i) One (1) voting Board member and an
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alternate appointed by the governing body
of each of the following:
County of Orange
City of Anaheim
City of Santa Ana
(ii) One (1) voting Board member, and an
alternate, representing the City of
Huntington Beach and the City of Newport
Beach, the member to be first appointed
by the governing body of the City of
Huntington Beach to serve a term
concurrent with the fiscal year beginning
July 1, 1989, and every other fiscal year
thereafter, and a voting Board member and
an alternate to be appointed by the
governing body of the City of Newport
Beach for a first term concurrent wit the
fiscal year commencing July 1, 1990, and
every other year thereafter;
(iii) Three (3) voting Board members,
and an alternate appointed by the
governing body of each Subscriber Agency,
provided however, if less than three
public entities execute Subscription
Agreements, the public entity or entities
executing the Agreement(s) shall be
entitled to only one voting Board member,
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and, if two public entities execute the
subscription Agreement, the Provider
Agencies shall select the Subscriber
Agency entitled to appoint the voting
Board member for a one year term. In the
event more than three public entities
execute Subscription Agreements, the
Provider Agencies shall select the three
Subscriber Agencies entitled to appoint
voting Board members and alternates for a
one year term. Selections made by
Provider Agencies hereunder shall be made
annually.
B. Except as provided in subsection A (ii)
above, each Board member shall hold office from the first
meeting of the Board after appointment until a successor is
named. Board members and alternates shall be appointed by,
and serve at the pleasure of, their appointing body, and may
be removed at any time, with or without cause, at the sole
discretion of that appointing body.
C. A Board member or alternate shall not
receive compensation, but may be reimbursed by the Authority
for expenses reasonably incurred while performing duties
required by this Agreement, as further specified and limited
by resolution of the Board.
3.3 Principal Office
The principal office of the Authority shall be
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established by the Board and is presently located in the
City of Anaheim. The Board has full power and authority to
change the principal office from one location or another
within the County of orange.
3.4 Meetings
The Board shall meet at the principal office
of the Authority, or at such other place as may be
designated by the Board. The time and place of regular
meetings of the board shall be determined by a resolution
adopted by the Board. Regular, adjourned, and special
meetings shall be called, noticed and conducted, in
accordance with the Ralph M. Brown Act (Section 54950, et.
seq. of the Government Code).
3.5 Ouoru m
A majority of the Board members (or the
alternate for any absent voting member) shall constitute a
quorum for the purposes of transacting business relating to
the Authority.
3.6 Powers and Limitations
All of the powers of the Participating
Agencies are reserved to them except to the extent powers
are conferred on the Authority and the Board pursuant to
this Agreement. Each Board member, or alternate in the
absence of any voting member, shall be entitled to one (1)
vote and, except as expressly provided in this Agreement,
the affirmative vote of the majority of those present and
qualified shall effect adoption of any motion, resolution,
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order or action the Board deems appropriate.
3.7 Minutes
The Secretary of the Authority shall provide
notice of, prepare and post agendas for, and keep minutes of
each regular, adjourned and special meeting of the Board and
shall send a copy of the minutes to each Board member and
otherwise perform the duties necessary to ensure compliance
with provisions of law including without limitation the
Ralph M. Brown Act (Govt. Code Sec. 54950 et seq.).
3.8 Rules
The Board may adopt rules and regulations for
the conduct of its affairs that are not in conflict with
this Agreement.
3.9 officers
The Board shall select a Chairperson and
Vice - Chairperson from its members and shall appoint a
Secretary who may, but need not, be a member of the Board.
The Treasurer of the City of Anaheim shall hold the office
of Treasurer of the Authority, as authorized by Section
6505.6 of the Government Code. The Treasurer shall keep all
revenues of the Authority in a separate interest - bearing
account and otherwise perform the duties and
responsibilities of that office as specified in Section
6505.5 (a) -(d) of the Government Code. The Auditor of the
Authority shall be a Certified Public Accountant annually
appointed by the Board, and shall perform the duties of the
Auditor as authorized in Section 6505 of the Government
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Code. The Chairperson, Vice - Chairperson and Secretary shall
hold office for a period of one (1) year.
3.10 Administration
The City of Anaheim shall be responsible for
administrative services. Administrative services include
general accounting of funds received and disbursed,
preparation of invoices to public entities receiving
services and to those who have received services or are
responsible in some manner for any hazardous materials
emergency to which a Provider Agency responds, preparation
of documents relative to any grant program, and such other
functions as may be required by this Agreement or the
provisions of any law, including, without limitation, the
Joint Exercise of Powers Act. As part of the administrative
services, the City of Anaheim, as Administrator of the
Authority, may elect, with the approval of the Board, to
commence or prosecute litigation to collect fees or costs
from any person or entity responsible, in whole or in part,
for a hazardous materials emergency.
3.11 Bonds
The Treasurer and such other persons who may
have access to, o
shall be required
determined by the
of Section 6505.1
requirement shall
extended to cover
r handle, any revenue of the Authority
to file an official bond in an amount
Board and consistent with the provisions
of the Government Code. This bonding
be satisfied if an existing bond is
the duties required by this Agreement.
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The costs of complying with the requirements of this section
shall be considered an administrative expense of the
Authority.
3.12 Status of Officers and Employees
All of the privileges and immunities from
liability, exemption from laws, ordinances and rules, and
all pension, relief, disability, workers' compensation and
other benefits which apply to the activities of officers,
agents or employees of any of the Participating Agencies
when performing their respective functions for that agency,
shall apply to them to the same degree and extent while
engaged in the performance of any activity, function or duty
pursuant to this Agreement, subject to the provisions of
Sections 5.1 and Chapter 7 of this Agreement.
4.
HAZARDOUS MATERIALS RESPONSE SERVICES
4.1 Basic Services
The Authority, through the Provider Agencies,
shall furnish all Participating Agencies with hazardous
materials emergency response services subject to the
following:
A. Services will be performed by Provider
Agency personnel. The Board, in cooperation with the
Provider Agencies, shall determine the number, location and
size of the Response Teams available to provide services
pursuant to this Agreement.
B. The Provider Agencies and their Response
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Teams will generally provide services in accordance with the
provisions of the current Hazardous Materials Emergency
Response Plan. The Board shall adopt criteria and standards
relating to the provision of hazardous materials emergency
response services by Provider Agencies and Response Teams.
Such standards may include specific levels of training
required of personnel, manpower needs and the type of
equipment and supplies necessary for particular hazardous
materials emergencies. The Board shall also adopt response
zones and response procedures to control which Provider
Agency should respond to any specific hazardous materials
emergency. The Authority, Provider Agencies and Response
Teams retain sole and exclusive discretion as to the
specific type, nature and timing of the services performed
pursuant to this Agreement, provided, however, each Provider
Agency shall be subject to the provisions of Subsection 5.5
(D). Neither the Authority, Provider Agencies nor Response
Teams are responsible for the physical containment or clean
up of any hazardous materials, the control of pedestrian or
vehicular traffic or the removal of persons or property from
the area around the emergency.
C. Neither the Authority, nor the Provider
Agencies, guarantee that a Response Team will be available
at all times to respond to a hazardous materials emergency.
Circumstances may arise when the timing, number, size or
location of a hazardous materials emergency, or other
emergencies, make it difficult or impossible for the
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Authority or the Provider Agencies to respond to any or all
incident(s). The Board shall adopt standard operating
procedures to govern the nature and timing of responses when
multiple hazardous materials emergencies (or other
emergencies) exist within the County at any one time.
4.2 Preventative Measures
Each Participating Agency shall use its best
efforts to do the following:
A. Require that all persons, business
entities and public agencies within its jurisdiction comply
with applicable state and federal laws regarding the storage
and use of hazardous materials by establishing and
implementing an inspection and citation program;
B. Maintain, and make accessible to the
Authority, Provider Agencies, and Response Teams copies of
all plans and documents required to be submitted pursuant to
law, including, without limitation, business inventories and
emergency response plans;
C. If appropriate, declare a local emergency
pursuant to the provisions of sections 8630, et seq. of the
Government Code of the State of California and /or any
applicable charter provisions or ordinance. To the extent
permitted by law, the Authority or the responding Provider
Agency shall have the right to declare a local emergency in
the event the public entity with jurisdiction over the scene
of the hazardous materials emergency fails or refuses to do
so, and
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D. Immediately comply with any request of
the Response Team, Provider Agency or Authority to provide
police, fire or other personnel or services to assist the
Response Team, control vehicular traffic and pedestrian
access to the scene of the hazardous materials emergency, or
contain or clean -up any hazardous materials within the
Participating Agency's jurisdiction. These services shall
be provided at no cost to the Authority or the Provider
Agencies. Neither the Authority nor the responding Provider
Agency shall be responsible to provide these services or for
any costs or expenses related thereto. In the event these
services are not provided, the responding Provider Agency
shall have the right, but not the obligation, to contract
for such services as may be necessary, or in the
alternative, the Response Team shall have the right to
withdraw from the scene of the hazardous materials
emergency. In the event the responding Provider Agency
finds it necessary to contract for services to be provided
pursuant to this subsection, the Participating Agency
otherwise responsible for providing the service shall fully
reimburse the Provider Agency within five (5) days from the
date costs are billed.
5.
FEE PROVISIONS
The following special provisions shall control the
Authority, the Board, the Treasurer and the Auditor relative
to the collection and disbursement of funds received or
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recovered from Participating Agencies, federal or state
grant programs, and persons or entities who receive services
and those responsible for a hazardous materials emergency.
5.1 Provider Agencies
A. The Provider Agencies, in consideration
of their right to receive funds as hereinafter provided,
and, without charge, hazardous materials emergency response
services from other Provider Agencies, agree to make in -kind
contributions to the Authority in the form of a Response
Team (Huntington Beach and Newport Beach shall each have
available on a daily basis three (3) person Response Teams,
while Anaheim, Santa Ana and the County of Orange shall have
available on a daily basis six (6) person Response Teams) as
well as related supplies, materials and equipment.
B. In addition, each Provider Agency hereby
assigns to Authority all of its respective right, title, and
interest in and to any claim or cause of action against the
person or entity responsible, in whole or in part, for any
hazardous materials emergency to which the Provider Agency
responds or any hazardous materials emergency within the
jurisdiction of such Provider Agency and to which another
Provider Agency responds. This assignment includes, without
limitation, the right to recover the value of any in -kind
contributions made to the Authority, the right to collect
the reasonable value of all services performed by the
Authority /Provider Agency, and the right to recover punitive
damages, penalties or statutory enhancement to the extent
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such remedies are provided by law. However, this assignment
does not include the right to recover, from the person or
entity responsible, all costs and expenses in any way
related to injuries suffered by Response Team Members by
providing services pursuant to this Agreement. Each
Provider Agency agrees to cooperate with the Authority in
its efforts to recover money from any person or entity
responsible for a hazardous materials emergency to which the
Provider Agency has responded, as well as any claim or
litigation instituted by or against the Authority. This
shall include providing all information and invoices
necessary to initiate collection actions to the
administering agency within the time period established by
the Board. Each Provider Agency waives and gives up any
right it may have to receive or hold any funds collected by
the Authority that relate to any hazardous materials
emergency within its jurisdiction or to which the provider
Agency has responded.
C. Nothing in this section shall prevent a
Provider Agency from pursuing efforts to collect, from the
person or entity responsible for the hazardous materials
emergency, all costs and expenses incurred by the Provider
Agency in providing services other than those performed by a
Response Team.
D. The personnel of each Provider Agency
shall be considered to the employees of the Provider
Agencies, not those of the Authority or any other
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Participating Agency, and they shall not be entitled to any
personnel benefits or compensation from the Authority.
Equipment, materials and supplies owned or maintained by
Provider Agencies to assist in providing services pursuant
to this Agreement shall remain the property of the Provider
Agency. Except as otherwise provided in this Chapter and
the provisions of Section 7.2, Provider Agencies shall be
under no obligation to directly pay any fee or contribute
any money or equipment to the Authority.
5.2 Service to County Contract Cities
Authority shall, without charge, provide
hazardous materials emergency response services to County
Contract Cities. Authority shall be under no obligation,
however, to provide services to any County Contract City
until that city has assigned to the Authority all of its
right, title and interest in and to any claim or cause of
action against any person or entity responsible, in whole or
in part, for any hazardous materials emergency to which a
Provider Agency has responded. This assignment shall
include, without limitation, the right to collect the
reasonable value of all services performed by the Provider
Agency /Authority, and the right to recover punitive damages,
penalties, or statutory enhancements to the extent provided
by law.
23
•
5.3 Services To and Reimbursement From Subscriber
Agencies
A. Public entities in Orange County may
receive hazardous materials emergency response services from
Authority by executing a Subscription Agreement in the form
approved by the Board and paying the annual fair share
contribution as determined by the Board pursuant to Section
1.9 of this Agreement. Agencies which desire to participate
as Subscriber Agencies must sign the Subscription Agreement
prior to receiving hazardous materials emergency response
services, and must pay their fair share contribution by July
30 of the fiscal year for which subscription is desired.
Subscription Agreements shall renew automatically from year
to year unless otherwise specified in the Agreement.
Agencies which subscribe for an entire fiscal year may, at
their option, elect to pay their fair share contribution in
four equal installments due and owing on or before July
30th, October 1st, January 1st, and April 1st. If an agency
chooses to become a Subscriber Agency after the commencement
of a fiscal year, the fair share contributions for existing
Subscriber Agencies will be adjusted pro rata to reflect the
the additional contribution, and those Agencies will receive
a reimbursement for any excess contribution made.
Agencies which choose to become Subscriber Agencies after
the commencement of the fiscal year must sign the
Subscription Agreement and pay the full amount of the fair
share contribution prior to seeking services. Fair share
24
• •
contributions for subsequent fiscal years, shall be revised
to reflect any changes in population or assessed value as
more fully specified in Sections 1.9 and 1.10. Fair share
contributions, once established by the Board for any
specific fiscal year, shall be increased or decreased only
as necessary to reflect the participation of additional or
fewer Subscriber Agencies during that fiscal year.
B. Authority will attempt to collect, from
the person or entity responsible for any hazardous materials
emergency to which a Provider Agency has responded within
the jurisdiction of a Subscriber Agency, the reasonable
value of all services performed by the Authority /Provider
Agency. Each Subscriber Agency agrees to cooperate with the
Authority in its collection efforts. Authority will
continue its collection efforts for the period of its
regular billing cycle as established by the Board. If the
person or entity responsible for the hazardous materials
emergency does not pay to the Authority the amount billed
within the regular billing cycle, the Subscriber Agency
within whose jurisdiction the emergency occurred shall
reimburse the Authority for the costs of repairing or
replacing all materials and supplies damaged or destroyed in
the course of providing services or which must be disposed
of following the emergency.
C. If the Subscriber Agency is potentially
responsible for, but did not cause, the hazardous materials
emergency, as in the case of hazardous materials abandoned
25
•
•
on property belonging to the Subscriber Agency, and an
otherwise responsible party cannot be located, the
Subscriber Agency shall reimburse the Authority for the
costs of repairing or replacing all materials and supplies
damaged or destroyed in the course of providing services.
If the Subscriber Agency caused the hazardous materials
emergency, the Subscriber Agency shall pay the Authority the
i hourly rate for the applicable level of service established
by the Board pursuant to Section 6.2 and the costs of
repairing or replacing any equipment damaged or destroyed in
the course of providing services. All fees and costs owing
from Subscriber Agencies pursuant to this section C. shall
be due within thirty (30) days of billing.
5.4 Services To and Reimbursement from
Emergency Services Contract Agencies
A. Neither the Authority nor the Provider
Agencies are under any obligation to provide hazardous
materials emergency response services to, or within the
jurisdiction of, any public entity that is not a Provider
Agency or a Subscriber Agency. However, the Authority and
Provider Agencies will respond to a hazardous materials
emergency within the jurisdiction of a public entity that is
not a Provider Agency or a Subscriber Agency provided:
(i) The public entity requests hazardous
materials emergency response services;
and
26
• •
(ii) The public entity has either:
(a) executed an Emergency Services
Contract with the Authority in the
form approved by the Board ; or
(b) adopted a resolution authorizing
personnel at the scene of a hazardous
materials emergency to execute an
Emergency Services Contract and
committing to defend, indemnify and
hold harmless, the Authority,
Provider Agencies as well as their
respective officers, employees,
representatives, agents and officers
as required by the contract; a person
authorized by resolution executes the
Emergency Services Contract in the
form approved by the Board; and the
Emergency Services Contract Agency
complies with the duties imposed
pursuant to the provisions of that
Agreement.
B. The Emergency Services Contract Agency
shall pay the Authority the hourly rate for level of service
established by the Board pursuant to Section 6.2 and the
costs of repairing or replacing any equipment damaged or
destroyed in the course of providing services. All fees and
costs owing from Emergency Services Contract Agencies
27
•
pursuant to this section B. shall be due within thirty (30)
days of billing.
5.5 Distribution of Revenue
A. Within sixty (60) days after the close of
each quarter of the fiscal year, or earlier with Board
approval, the Treasurer shall disburse Revenue, as defined
herein, to Provider Agencies as follows:
(i) All administrative expenses actually
incurred by the City of Anaheim shall be
reimbursed prior to distribution to any
Provider Agencies.
(ii) Any Revenue remaining after
reimbursement of administrative expenses
shall be distributed to Provider Agencies
as follows: twenty -five percent (25 %) to
Anaheim, twenty -five percent (25 %) to the
County of Orange, twenty -five percent
(25 %) to Santa Ana, twelve and one -half
percent to Huntington Beach (12.5 %), and
twelve and one -half percent to Newport
Beach (12.5%).
B. Subscriber Agencies, Emergency Services
Contract Agencies, and County Contract Cities shall not be
entitled to receive funds pursuant to this section.
C. During any fiscal year, one or more
Provider Agencies may incur expenses disproportionate to
their level of participation and reimbursement if, for
28
•
C
example, a Response Team member suffers serious injuries
while responding to a hazardous materials emergency. In
such event, the Board may adjust the percentage of
reimbursement to reflect an equitable distribution of costs.
D. The Board may adopt standards, criteria
and policies regarding a Provider Agency's eligibility for
reimbursement under this Section in the event a Response
Team fails to respond when requested to do so or a Provider
Agency fails to provide an adequately trained team.
6.
GENERAL BUDGETARY PROVISIONS
6.1 Annual Budget
The Board shall adopt an annual budget and
determine the costs of services provided pursuant to this
Agreement and procedures adopted by the Board. The annual
budget shall be adopted, and fees for providing services
established, at the first regular meeting of the Board
following the commencement of the fourth quarter of the
fiscal year. The budget shall include the administrative
service costs estimated by the City of Anaheim, including an
appropriate percentage of the salary and benefits paid by
Anaheim to its personnel engaged in performing these
services, as well as any advance out of the prior year's
revenue which was necessary to reimburse administrative
expenses which exceeded Fair Share Contributions received in
that year.
29
6.2 Hourly Rate
•
At the time that the annual budget is adopted,
the Board shall also establish fees for services provided
pursuant to this Agreement. Notice of the costs of services
shall be issued to all Participating Agencies within thirty
(30) days of adoption of the annual budget. The hourly rate
shall be adjusted annually by the Board, with adjustments to
reflect estimates of the operating expenses of Provider
Agencies, the administrative expenses to be incurred by the
Authority associated with providing services in the upcoming
fiscal year, estimates of the amount of time Provider
Agencies are likely to devote to providing services pursuant
to this and related agreements, the cost of supplies
expended in responding to an emergency, and such other
factors as the Board considers relevant. The hourly charge
shall also include a surcharge for administrative costs in
an amount established by the Board.
6.3 Disbursements
The Treasurer shall draw checks or warrants
upon the approval and written order of the Board. The Board
shall requisition the payment of funds only upon approval of
such claims or disbursements in accordance with the rules
and regulations adopted by the Board.
6.4 Accounts
All funds shall be placed in accounts and the
receipt, transfer or disbursement of funds during the term
of this Agreement shall be accounted for in accordance with
im
• •
generally accepted accounting principles applicable to
governmental entities. There shall be strict accountability
for all funds. All revenues and expenditures shall be
reported quarterly to the Board.
6.5 Expenditures Within Approved Annual Budget
All expenditures shall be within the
designations and limitations of the approved annual budget.
7.
LIABILITIES
7.1 Liabilities
The debts, liabilities and obligations of the
Authority shall not be considered the debts, liabilities or
obligations of any Participating Agency, except as otherwise
provided in this Chapter.
7.2 Indemnification /Hold Harmless
A. Introduction
The provisions of this section control
the extent to which public entities receiving services
pursuant to this or related agreements are obligated to
defend, indemnify and hold harmless the Authority, Provider
Agencies, and their respective employees, officers, agents
and representatives with respect to any claim, litigation,
liability, damage, injury, cost or expense that is in any
way related to the performance of hazardous materials
emergency response services pursuant to this Agreement or
the existence of a hazardous materials emergency. Hazardous
materials emergencies, by their nature, create a risk of
31
C
•
serious injury to persons or property damage over a wide
area. The risk of liability and /or litigation exists
irrespective of the skill and competence displayed by those
attempting to resolve the emergency. Persons who have
suffered injury or property damage as the result of a
release of hazardous materials are prone to sue all persons
and entities present at the scene of the emergency and even
non - negligent parties are likely to incur substantial
liability given the toxic nature of the materials involved,
the large number of people likely to be affected, and the
perceived "deep pockets" of public entity defendants.
Accordingly, the Authority, Provider Agencies and their
respective officers and employees deserve substantial
protection from liability and litigation that is in any way
related to the services provided pursuant to this Agreement
or related agreements. Moreover, since Provider Agencies
provide, in advance, the personnel, equipment and funds
necessary to provide services pursuant to this Agreement, it
is appropriate to minimize their risks and obligations while
increasing the protection required from other public
entities which do not make the same financial commitment.
B. General Provisions
1. Each Participating Agency waives and
gives up any claim against, or right to sue, the Authority,
any Provider Agency, any other Participating Agency, or any
of their officers, employees or representatives, for any
loss, damage or injury that arises out of, or is in any way
32
•
related, to the performance of services rendered pursuant to
this Agreement. This waiver extends to liability for bodily
injury, or property damage, that may be sustained by the
Participating Agency, or its officers, employees,
contractors or agents, and which was proximately caused, in
whole or in part, by the negligent act, conduct or omission
of the Authority, any Provider Agency, any other
Participating Agency, and /or their respective officers,
employees, agents, contractors, representatives, or any
third party. However, this waiver does not extend to
liability for bodily injury or property damage caused by the
fraudulent or willful conduct or any willful or negligent
act which constitutes a violation of a penal statute.
2. The indemnification provisions of
this section shall not require a Participating Agency to
defend, indemnify or hold harmless a Provider Agency with
respect to any workers' compensation claim filed against the
Provider Agency that arises out of, or is in any way
related, to the performance of services pursuant to this
Agreement.
C. Provider Agencies, Subscriber Agencies
and County Contract Cities
With respect to hazardous materials
emergencies within the boundaries of any Provider Agency,
Subscriber Agency or County Contract City, the Authority
shall defend, indemnify, and hold harmless the responding
Provider Agency, the Subscriber Agency, the County Contract
FBI
C
City and their respective officers, employees, agents and
representatives with respect to any loss, damage, injury,
claim, litigation, or liability that arises out of, or is in
any way related, to the performance of Hazardous Materials
Emergency Response Services pursuant to this Agreement or to
a Subscriber Agency Agreement. The costs incurred by
Authority in defending any Provider Agency, Subscriber
Agency or County Contract City shall be advanced by all
Provider Agencies and all Subscriber Agencies and, in the
case of County Contract Cities, by the County, in accordance
with their Fair Share Percentage as set forth in Exhibit B.
The amount of any judgment or award resulting from such
claim or litigation, shall be reimbursed by all Provider
Agencies and all Subscriber Agencies and, in the case of
County Contract Cities, by the County, in accordance with
their Fair Share Percentage as set forth in Exhibit B. If
the combined Fair Share Percentages of the Provider Agencies
and Subscriber Agencies is less than 100% of the total of
all Fair Share Percentages, the Fair Share Percentages of
Provider Agencies and Subscriber Agencies shall be
increased, pro rata, so that the total of the fair share
percentages of the Provider Agencies and Subscriber Agencies
equal 100 %. For purposes of this provision only, the County
of Orange's fair share percentage shall be the combined
total of all County Contract Cities and that of the
unincorporated area. County Contract Cities shall not be
required to directly contribute such costs and expenses.
34
• •
The Provider Agency or Subscriber Agency
within whose jurisdiction the hazardous materials emergency
occurs shall defend, indemnify and hold harmless the
Authority with respect to any claim, litigation, loss,
liability, damage, cost or expense that arises out of, or is
in any way related to, the acts or omissions of the Provider
Agency or Subscriber Agency or their respective officers,
employees, agents or representatives, in the course of
providing police and fire services, containment or clean -up
services, or any other support service or activity related
to the hazardous materials emergency.
D. Emergency Services Contract Agencies
Emergency Services Contract Agencies
shall indemnify and hold harmless the Authority, the
responding Provider Agency, County Contract Cities and their
respective officers, employees, agents and representatives
from and against any loss, litigation, liability, injury,
damage, claim, lawsuit, cost or expense arising out of, or
in any way related to, the performance of services pursuant
to this agreement, the Emergency Services Contract between
the Authority and the Emergency Services Contract Agency, or
the existence of a hazardous materials emergency to which
the Authority and/or a Provider Agency has responded within
the jurisdiction of the Emergency Services Contract Agency.
The obligations of an Emergency Services Contract Agency
pursuant to this section shall extend to any loss, injury,
liability, damage, claim, lawsuit, cost or expense alleged
35
to have been proximately caused by the sole and exclusive
negligence of Authority, the responding Provider Agency, or
their respective officers, employees, agents and
representatives. In the event that a judgment or award is
imposed on the Authority, any Provider Agency, any County
Contract City, or any of their employees, officers, agents
or representatives, in any litigation or proceeding for
which an Emergency Services Contract Agency has defense and
indemnification obligations pursuant to the subsection, the
Emergency Services Contract Agency shall fully satisfy any
judgment or award and shall fully indemnify the Authority,
Provider Agencies and County Contract Cities, as well as
their respective officers, employees, agents and
representatives, with respect to any such judgment,
liability or award.
8.
ADMISSION AND WITHDRAWAL OF PARTICIPATING AGENCY
8.1 New Participating Agencies
Public entities may become Participating
Agencies in the Authority upon such terms and conditions as
are specified in this Agreement and /or related Agreements.
8.2 Withdrawal
A. A Provider Agency may withdraw from
the Authority and terminate its obligations under this
Agreement upon the giving of written notice to the authority
no later than December 31, prior to the fiscal year in which
the Provider Agency is to withdraw from the Authority,
36
• •
Written notice shall be accompanied by a Resolution or
minute order which authorizes the withdrawal by the
governing body of the Provider Agency.
B. A Provider Agency which has given
notice of its intention to withdraw may become a Subscriber
or Emergency Services Contract Agency upon written notice to
the Authority, given no later than December 31, of its
intent to alter its status accompanied by a Resolution or
minute order which authorizes execution of the appropriate
contract.
C. If the County of Orange has given
notice of its intention to withdraw as a Provider Agency,
all obligations of Authority and others to County Contract
Cities under this agreement shall cease unless and until
such a County Contract City becomes a Participating Agency
hereunder.
D. If the City of Anaheim has given
notice of its intention to withdraw as a Provider Agency, a
new administering agency shall be selected by the Board at
its first regular meeting following the date of the City of
Anaheim's notice. The agency selected by the Board shall be
responsible for all administrative responsibilities outlined
in this Amended Agreement and any policies adopted by the
Board.
E. Subscriber or Emergency Services
Contract Agencies may withdraw from the Authority, terminate
services, or alter their status as Subscriber or Emergency
37
Services Contract Agencies in any fiscal year pursuant to
the provisions of their Subscription Agreements or Emergency
Services Contract, respectively.
F. Subscribers or Emergency Services
Contract Agencies shall be considered to have withdrawn from
the Authority if they have breached their Subscription
Agreement or Emergency Services Contract and Authority has
exercised its option to terminate same.
G. Subsequent to withdrawal or
termination, Participating Agencies shall have a continuing
responsibility to perform the duties and obligations
required by this Agreement and which are based on facts,
events, or occurrences that predate withdrawal or
termination.
H. Any Participating Agency which has
withdrawn from the Authority or which has altered its status
shall automatically forfeit its representation, if any, on
the Board.
9.
TERMINATION AND DISPOSITION OF ASSETS
9.1 Termination
The Authority shall continue to exercise
the Joint Powers specified in this Agreement until
termination. This Agreement shall terminate if a majority
of the Provider Agencies give the Authority notice of their
intent to withdraw from the Authority in accordance with
Section 8.2 of this Agreement, or if the Provider Agencies
38
mutually agree to terminate this Agreement.
9.2 Distribution of Property
In the event of the termination of this
Agreement, any Revenue remaining in the authority shall be
disbursed in accordance with Section 5.5.
10.
MISCELLANEOUS
10.1 Amendments
This Agreement may be amended with the
approval of all of the Provider Agencies.
10.2 Notice
Any notice or instrument required to be
given or delivered pursuant to this Agreement shall be
deemed given when personally delivered to the Authority or
deposited in the United States Mail, first class postage
pre -paid, and properly addressed to the principal office of
the Agency or Authority.
10.3 Partial Invalidity
If one or more of the sections,
paragraphs or provisions of this Agreement is determined to
be invalid or unenforceable by a Court of competent
jurisdiction, each and all of the remaining provisions,
sections and paragraphs shall not be affected and shall
continue to be valid and enforceable to the fullest extent
permitted by law, unless the invalidity affects the
substantial rights or duties of the parties, and provided
that such remaining portions or provisions can be construed
39
•
•
in substance to constitute the Agreement that the parties
intended in the first instance.
10.4 Successors
This Agreement shall inure to the benefit
of and be binding upon any successors or assigns of the
Participating Agencies, including any Fire Protection
District which may be formed to succeed a Participating
Agency.
IN WITNESS WHEREOF, the Parties have caused this Second
Amended Agreement to be executed and attested by their duly
executed officers, and to have their official seals affixed
hereto, as of the date first stated above.
CITY OFF HUNTINNG/TO�N /BEACH I n
By �C7�. a�Jl SV 'YV �mc�QX X
Mayor
DATE OF EXECUTION: ATTEST,;
'All c :�
City Clerk
APPR VED AS TO FORM:
B
City Attarney
Date X -023 - 5�3
CITY F NEWPORT BEAH _
]f
�.,...
mayor
DATE OF EXECUTION: ATTE T:
City Clerk
4�i0 ✓ J,
tV
40
AS TO FORM:
By
Date
DATE OF EXECUTION:
APPROVED AS TO FORM:
By
City, ey
Date--&,L41 1)
DATE OF EXECUTION:
APPROVED AS TO FORM:
By
City Attorney
Date
CITY OF SANTA ANA
Approvea as to Lx1lini.
City Manager
CITY OF ANAHEIM
BY v
Mayor
ATTEST
City Clerk
COUNTY OF ORANGE, A
Political Subdivision of the
State of California
By���d
Chairman of the B and of
Supervisors
41
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
THE BO
By sip 1.7 1913
-"Ruttr PHY�"�, H NDERSON
C1 k of the Boar o upervisors
of Orange County, California
APPROVED AS TO FORM:
TERRY ANDRUS, COUNTY COUNSEL
BY
Susan M. Nilsen, Deputy
658.02
42
8V THE CITY C _11'4 L
I;?1.:
4 .... GO'
TO:
FROM:
SUBJ:
1.
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
June 19, 1991
Mayor and Members of the City Council
Robert H. Burnham
F3(I)
C .7 7�70
Proposed Amendment to Orange County Cities
Hazardous Material Joint Powers Agreement
BACKGROUND.
On July 24, 1989, the City Council approved a Joint Exercise of
Powers Agreement ( "JPA") creating the Orange County -City Hazardous
Material Emergency Response Authority ( "Authority ") . Prior to
approval of the JPA, the County of Orange, Newport Beach and three
other Orange County Cities responded to hazardous material
incidents in other jurisdictions without a method of recouping some
of the costs incurred in training and maintaining response teams.
The JPA established a framework for reducing the costs of
responding to hazardous material emergencies, recovering costs from
responsible parties, and protecting provider agencies from
liability.
The JPA was first amended on January 9, 1990 to resolve some
administrative problems. The amendments now being proposed are in
response to better than anticipated recovery of costs from those
responsible for spills, the elimination of Authority services that
were not essential to emergency response, and a desire to clarify
the administrative responsibilities assigned to the City of
Anaheim.
2. DISCUSSION.
The proposed amendments to the JPA that staff considers significant
can be summarized as follows:
A. Subscriber agencies - -those receiving services from the
Authority - -are required to pay only their "fair share" of
administrative expenses during fiscal year 1991 -92, but
will not share in the recovery of costs as previously
provided. This change reflects the better than
anticipated recovery of costs from those responsible for
hazardous material emergencies.
0
Mayor & City Council Members
June 19, 1991
Page 2.
0
B. The Authority would be specifically authorized to adopt
user fees.
C. The administrative duties are expanded to specifically
authorize litigation to recover statutory penalties and
enhancements and are assigned to the City of Anaheim
which has been functioning in that capacity since the
inception of the Authority.
D. Subscribers no longer have the right to ask the Authority
to conduct inspections and training.
E. The subscriber agency must pay the Authority the hourly
rate for response services if they have caused the
emergency and reimburse the Authority for out of pocket
expenses if they are simply responsible for, but did not
cause, the incident.
The JPA is functioning extremely well and many Orange County
cities are participating. While certain administrative and
internal problems remain unresolved, the proposed amendments will
increase participation by other cities and insure continued
viability of the Authority.
3. RECOMMENDATIONS.
It is recommended that the City Council authorize the Mayor
and City Clerk to execute Amendment No. 2 to the Joint Exercise of
Powers Agreement creating the Orange County - -City Hazardous
Materials Emergency Response A
RHB:kmc
City Attorney
r, • 0
SECOND AMENDED JOINT EXERCISE OF POWERS
AGREEMENT OF THE ORANGE COUNTY -CITY HAZARDOUS
MATERIAL EMERGENCY RESPONSE AUTHORITY
e - Z7,>l0
i
TABLE OF CONTENTS
RECITALS
1
Chapter 1
DEFINITIONS
3
Chapter 2
GENERAL PURPOSE AND POWERS
7
2.1
Authority Created
7
2.2
Common Powers
7
2.3
General Purpose
8
2.4
Powers
9
Chapter 3
ORGANIZATION
10
3.1
Membership
10
3.2
Board
11
3.3
Principal Office
13
3.4
Meetings
13
3.5
Quorum
13
3.6
Powers and Limitations
13
3.7
Minutes
14
3.8
Rules
14
3.9
Officers
14
3.10
Administration
15
3.11
Bonds
15
3.12
Status of Officers and Employees
16
Chapter 4
HAZARDOUS MATERIAL RESPONSE SERVICES
16
4.1
Basic Services
16
4.2
Preventative Measures
18
Chapter 5
FEE PROVISIONS
20
5.1
Provider Agencies
20
5.2
Service to County Contract Cities
22
5.3
Services to and Reimbursement from
Subscriber Agencies
23
5.4
Services to and Reimbursement from
Emergency Services Contract Agencies
25
5.5
Distribution of Revenue
27
Chapter 6
GENERAL BUDGETARY PROVISIONS
28
6.1
Annual Budget
28
6.2
Hourly Rate
29
6.3
Disbursements
29
6.4
Accounts
29
6.5
Expenditures Within Approved Annual
Budget
30
i
Chapter 7 LIABILITIES
0
7.1 Liabilities
7.2 Indemnification /Hold Harmless
Chapter 8 ADMISSION AND WITHDRAWAL OF PARTICIPATING
AGENCY
8.1 New Participating Agencies
8.2 Withdrawal
Chapter 9 TERMINATION AND DISPOSITION OF ASSETS
9.1 Termination
9.2 Distribution of Property
Chapter 10 MISCELLANEOUS
10.1 Amendments
10.2 Notice
10.3 Partial Invalidity
10.4 Successors
SIGNATURE PAGES
ii
30
30
30
35
35
35
37
37
38
tY?
38
38
38
39
7"P
• 0
SECOND AMENDED JOINT EXERCISE OF POWERS
AGREEMENT OF THE ORANGE COUNTY -CITY HAZARDOUS
MATERIAL EMERGENCY RESPONSE AUTHORITY
This Second Amended Joint Exercise of Powers Agreement
is made by, and is effective when fully executed by
authorized representatives of all of, the following public
entities:
(1) City of Huntington Beach
(2) City of Newport Beach
(3) City of Santa Ana
(4) City of Anaheim
(5) County of Orange
RECITALS
A. The County of Orange has, pursuant to the
provisions of Article 3.5, Chapter 6.5 of Division 20 of the
Health and Safety Code of the State of California, adopted
the Orange County Hazardous Waste Management Plan
( "Management Plan ") and all cities within the County have
approved the Management Plan, either expressly or by
operation of law.
B. As one of its objectives, the Management Plan calls
for continued prompt and efficient response to hazardous
material emergencies and proposes to achieve this objective
by continuing to provide emergency response service for
spills, illegal dumping and other incidents involving
1
hazardous materials and waste, through the County's own
forces and /or response teams maintained by other public
entities within the County.
C. The Orange County Fire Chiefs Association has
evaluated the staffing levels and equipment that must be
maintained, and the procedures which must be
followed, to effectively and properly respond to hazardous
material emergencies throughout the County.
D. The signatories to this Agreement currently provide
hazardous material emergency response services throughout
the County and desire to continue to provide these services
through a joint powers authority which would partially
offset the expenses of Provider Agencies from revenue from
agencies, persons and entities receiving service, those
responsible for the emergency, and grant programs.
E. The signatories to this Agreement have determined
that the provisions of this Agreement are consistent with
the Hazardous Waste Control Law, the Orange County Hazardous
Waste Management Plan and the Orange County Hazardous,
Materials Area Plan.
F. The signatories to this Agreement each have the
common power to create, train and equip hazardous material
response teams as well as the authority to contract with one
another for the joint exercise of any common power pursuant
to the provisions of Article 1, Chapter 5, Division 7 Title
1 of the Government Code of the State of California.
2
G. The County of Orange and the Cities of Anaheim,
Huntington Beach, Newport Beach, and Santa Ana previously
entered into the Joint Powers Agreement Creating the Orange
County - City Hazardous Material Response Authority and the
First Amendment thereto, and desire to amend the Joint
Powers Agreement to reflect the desired changes in the
operation of the Authority.
1.
DEFINITIONS
For the purpose of this Agreement, the following words
or terms shall have the following meanings:
1.1. "Annual Budget" means the budget approved by
the Board pursuant to Section 6.1.
1.2 "Authority" means the Orange County -City
Hazardous Material Emergency Response Authority.
1.3 "Board Members" means those persons serving as
members of the Board or their designated alternates.
1.4 "Board" means the governing Board of the
Authority.
1.5 "County" means the geographic area within the
boundaries of the County of orange, including incorporated
and unincorporated territory, but exclusive of the "County
of Orange" as a political subdivision of the State of
California.
1.6 "County of Orange" means the public entity
which is a political subdivision of the State of California
and is governed by the Board of Supervisors.
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1.7 "County Contract City" means any city which,
as of the effective date of this agreement and hereafter,
contracts with the County of Orange for fire and emergency
response services.
1.8 "Emergency Services Contract Agency" means any
public agency that contracts with the Authority to pay for
hazardous material emergency response services on an hourly
basis as further described in Section 5.4.
1.9 "Fair Share Contribution" means the sum of
money to be paid by a Subscriber Agency for services and is
calculated by multiplying the Subscriber Agency's then
current Fair'Share Percentage, excluding the percentages
attributable to Provider Agencies, by, for fiscal year
1991/1992, the projected administrative costs of the
Authority, and for subsequent fiscal years, the annual
budget for the prospective fiscal year. The Fair Share
Contribution for all cities excluding Provider Agencies for
the fiscal year 1991/1992 is set forth on Exhibit A, a copy
of which is attached to this Amended Agreement and
incorporated as though set forth on full. The Fair Share
Contributions set forth in Exhibit A are subject to change
in succeeding fiscal years, and may be changed as
appropriate by action of the Board.
1.10 "Fair Share Percentage" means the percentage
which is calculated by averaging the percentage of County
population and County assessed value (real property) in each
city within the County as well as the unincorporated area of
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Orange County. The Fair Share Percentage attributable to
each city within the County and to the County itself for the
fiscal year 1991 -1992 is set forth in Exhibit B, a copy of
which is attached to this Amended Agreement and incorporated
as though set forth in full. The Fair Share Percentages set
forth in Exhibit B are subject to change in succeeding
fiscal years, and may be changed as appropriate by action of
the Board.
1.11 "Fiscal Year" means the period dating from
July 1 in any given year to and including the 30th of June
of the following year.
1.12 "Hazardous Material" means any of the
following substance(s) or material(s):
A. Any material listed in Subdivision B of
Section 6382 of the Labor Code;
B. Any material or substance defined in
Section 25501(k), 25115, 25117, or 25316 of the Health and
Safety Code;
C. Any material listed in Articles 9
(commencing with Section 66680) or 11 (commencing with
Section 66693) of Chapter 30 of Title 22 of the California
Code of Regulations;
D. Any material listed in Part 261 of Title
40 of the Code of Federal Regulations;
E. Any other material or substance the
release of which is reasonably believed to pose a
significant present or potential hazard to human health,
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safety, property, or the environment.
1.13 "Hazardous Material Emergency" means the
release or threatened release of any hazardous material.
1.14 "Hazardous Material Emergency Response Plan"
means the Orange County Hazardous Materials Area Plan.
1.15 "Hazardous Material Emergency Response
Services" means the response to, assessment of, and
stabilization of, any hazardous material emergency.
1.16 "Participating Agencies" means, collectively,
all Provider Agencies, Subscriber Agencies, County Contract
Cities and Emergency Services Contract Agencies.
1.17 "Provider Agency" means each of the public
entities which are the signatories to this Amendment and
contribute a Response Team to the Authority in accordance
with the provisions of this Amendment.
1.18 "Release" means any spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing into the
environment.
1.19 "Response Team ",means personnel employed by a
Provider Agency and who are trained and equipped to respond
to hazardous material emergencies.
1.20 "Revenue" means all funds received by the
Authority, including but not limited to, fair share
contributions received from Subscriber Agencies, funds
received from Emergency Services Contract Agencies, funds
received from any person or entity responsible for a
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hazardous material emergency, fees for services, or funds
received from any state or federal grant or program.
1.21 "Subscriber Agency" means each of the public
entities which has agreed to contribute to the costs of
administering this Joint Powers Authority to provide
hazardous material emergency response services by executing
the Subscription Agreement in a form approved by the Board,
as further described in Section 5.3.
2.
GENERAL PURPOSE AND POWERS
2.1 Authority Created
This Agreement creates a Joint Powers
Authority to be known as the Orange County -City Hazardous
Material Emergency Response Authority. The Authority is
formed pursuant to the provisions of Article 1, Chapter 5,
Division 7, of Title 1 of the Government Code of the State
of California (the Joint Exercise of Powers Act). The
Authority shall be considered a public entity separate and
apart from the Participating Agencies.
to:
2.2 Common Powers
Each Participating Agency has the common power
A. Respond to, assess the nature of, and
stabilize any emergency created by, the release, or
threatened release, of hazardous material;
B. Hire, train, and equip persons such that
they are qualified to respond to, assess the nature and
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dangers of, and stabilize any emergency associated with, any
release or potential release of hazardous material;
C. Direct the activities of persons
qualified to assess the nature or danger of, stabilize any
emergency associated with, control, and clean up any
release, or threatened release, of hazardous material;
D. Finance the activities of persons
qualified to respond to hazardous material emergencies,
accept monies to defray the costs of maintaining Response
Teams and responding to emergencies, and to recover the
costs of response from grant programs and persons or
entities responsible, in whole or in part, for the
emergency.
2.3 General Purpose
The primary purpose of this Agreement is to
provide for continuation of the hazardous material emergency
response system within the County and to partially offset
the costs to Provider Agencies incurred in maintaining
Response Teams, and responding to hazardous material
emergencies, with revenue derived from the public entities
that use, or have access to, the services of the Provider
Agencies and funds recovered from those responsible "for the
emergency. This Agreement also enables public entities to
receive hazardous material emergency responses and related
services without incurring the direct costs required to
establish and maintain Response Teams. The Authority will
coordinate responses to hazardous material emergencies and
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ensure efficient use of resources. This Agreement will
enable an equitable sharing of risks associated with
hazardous material emergencies and promote the recovery of
costs from persons or entities responsible, in whole or in
part, for any such emergency.
2.4 Powers
The Authority shall have the power, in its own
name, to do any of the following:
A. To jointly exercise the common powers of
the Participating Agencies;
B. To make and enter into contracts;
C. To retain the services of engineers,
attorneys, hazardous material consultants, and such other
persons or entities as may be necessary or appropriate to
achieve the purposes of this Agreement.
D. To acquire, hold or dispose of property
by any lawful means, including without limitation, gift,
purchase or sale;
E. To incur debts, liabilities or
obligations subject to the limitations specified in this
Agreement.
F. To receive gifts, contributions, grants,
and donations of property, funds, services and other forms
of assistance from any person, firm, corporation or
government agency;
G. To sue and be sued in its own name;
H. To apply for any grant, or grants,
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offered in conjunction with any federal, state or local
program that is in any way related to the purpose of this
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Agreement;
I. To adopt, rules, relations, policies,
bylaws and procedures governing the operation of the
Authority;
J. To take all steps necessary to recover
from the person or entity responsible, the costs incurred,
or the value of the services performed, in responding to a
hazardous material emergency or release;
K. To exercise any other power in the manner
and according to the methods, provided by applicable laws,
rules or regulations, subject only to the restrictions on
the manner of exercising such powers as may be applicable to
the City of Anaheim.
L. To adopt user fees.
MF
ORGANIZATION
3.1 Membership
The Members of the Authority shall be the
public entities which have executed this Second Amended
Agreement, a subsequent amendment, or a Subscription
Agreement, and which have not withdrawn from the Authority
or altered their status.
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3.2 Board
A. The Board shall consist of the following:
(i) One (1) voting Board member and an
alternate appointed by the governing body
of each of the following:
County of Orange
City of Anaheim
City of Santa Ana
(ii) One (1) voting Board member, and an
alternate, representing the City of
Huntington Beach and the City of Newport
Beach, the member to be first appointed
by the governing body of the City of
Huntington Beach to serve a term
concurrent with the fiscal year beginning
July 1, 1989, and every other fiscal year
thereafter, and a voting Board member and
an alternate to be appointed by the
governing body of the City of Newport
Beach for a first term concurrent wit the
fiscal year commencing July 1, 1990, and
every other year thereafter;
(iii) Three (3) voting Board members,
and an alternate appointed by the
governing body of each Subscriber Agency,
provided however, if less than three
public entities execute Subscription
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Agreements, the public entity or entities
executing the Agreement(s) shall be
entitled to only one voting Board member,
and, if two public entities execute the
Subscription Agreement, the Provider
Agencies shall select the Subscriber
Agency entitled to appoint the voting
Board member for a one year term. In the
event more than three public entities
execute Subscription Agreements, the
Provider Agencies shall select the three
Subscriber Agencies entitled to appoint
voting Board members and alternates for a
one year term. Selections made by
Provider Agencies hereunder shall be made
annually.
B. Except as provided in subsection A (ii)
above, each Board member shall hold office from the first
meeting of the Board after appointment until a successor is
named. Board members and alternates shall be appointed by,
and serve at the pleasure of, their appointing body, and may
be removed at any time, with or without cause, at the sole
discretion of that appointing body.
C. A Board member or alternate shall not
receive compensation, but may be reimbursed by the Authority
for expenses reasonably incurred while performing duties
required by this Agreement, as further specified and limited
Fr;
by resolution of the Board.
3.3 Principal Office
The principal office of the Authority shall be
established by the Board and is presently located in the
City of Anaheim. The Board has full power and authority to
change the principal office from one location or another
within the County of Orange.
3.4 Meetings
The Board shall meet at the principal office
of the Authority, or at such other place as may be
designated by the Board. The time and place of regular
meetings of the board shall be determined by a resolution
adopted by the Board. Regular, adjourned, and special
meetings shall be called, noticed and conducted, in
accordance with the Ralph M. Brown Act (Section 54950, et.
seq. of the Government Code).
3.5 Ouoru m
A majority of the Board members (or the
alternate for any absent voting member) shall constitute a
quorum for the purposes of transacting business relating to
the Authority.
3.6 Powers and Limitations
All of the powers of the Participating
Agencies are reserved to them except to the extent powers
are conferred on the Authority and the Board pursuant to
this Agreement. Each Board member, or alternate in the
absence of any voting member, shall be entitled to one (1)
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vote and, except as expressly provided in this Agreement,
the affirmative vote of the majority of those present and
qualified shall effect adoption of any motion, resolution,
order or action the Board deems appropriate.
3.7 Minutes
The Secretary of the Authority shall provide
notice of, prepare and post agendas for, and keep minutes of
each regular, adjourned and special meeting of the Board and
shall send a copy of the minutes to each Board member and
otherwise perform the duties necessary to ensure compliance
with provisions of law including without limitation the
Ralph M. Brown Act (Govt. Code Sec. 54950 et seq.).
3.8 Rules
The Board may adopt rules and regulations for
the conduct of its affairs that are not in conflict with
this Agreement.
3.9 Officers
The Board shall select a Chairperson and
Vice - Chairperson from its members and shall appoint a
Secretary who may, but need not, be a member of the Board.
The Treasurer and Finance Director of the City of Anaheim
shall hold the offices of Treasurer and Auditor,
respectively, of the Authority, as authorized by Section
6505.6 of the Government Code. The Treasurer shall keep all
revenues of the Authority in a separate interest - bearing
account and otherwise perform the duties and
responsibilities of that office as specified in Section
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6505.5 (a) -(d) of the Government Code. The Chairperson,
Vice - Chairperson and Secretary shall hold office for a
period of one (1) year.
3.10 Administration
The City of Anaheim shall be responsible for
administrative services. Administrative services include
general accounting of funds received and disbursed,
preparation of invoices to public entities receiving
services and to those who have received services or are
responsible in some manner for any hazardous material
emergency to which a Provider Agency responds, preparation
of documents relative to any grant program, and such other
functions as may be required by this Agreement or the
provisions of any law, including, without limitation, the
Joint Exercise of Powers Act. As part of the administrative
services, the City of Anaheim, as administering agency, may
elect, with the approval of the Board, to commence or
prosecute litigation to collect fees or costs from any
person or entity responsible, in whole or in part, for a
hazardous material emergency.
3.11 Bonds
The Treasurer, Auditor, and such other persons
who may have access to, or handle, any revenue of the
Authority shall be required to file an official bond in an
amount determined by the Board and consistent with the
provisions of section 6505.1 of the Government Code. This
bonding requirement shall be satisfied if an existing bond
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is extended to cover the duties required by this Agreement.
The costs of complying with the requirements of this section
shall be considered an administrative expense of the
Authority.
3.12 Status of Officers and Employees
All of the privileges and immunities from
liability, exemption from laws, ordinances and rules, and
all pension, relief, disability, workers' compensation and
other benefits which apply to the activities of officers,
agents or employees of any of the Participating Agencies
when performing their respective functions for that agency,
shall apply to them to the same degree and extent while
engaged in the performance of any activity, function or duty
pursuant to this Agreement, subject to the provisions of
Sections 5.1 and Chapter 7 of this Agreement.
4.
HAZARDOUS MATERIAL RESPONSE SERVICES
4.1 Basic Services
The Authority, through the Provider Agencies,
shall furnish all Participating Agencies with hazardous
material emergency response services subject to the
following:
A. Services will be performed by Provider
Agency personnel. The Board, in cooperation with the
Provider Agencies, shall determine the number, location and
size of the Response Teams available to provide services
pursuant to this Agreement.
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B. The Provider Agencies and their Response
Teams will generally provide services in accordance with the
provisions of the current Hazardous Materials Emergency
Response Plan. The Board shall adopt criteria and standards
relating to the provision of hazardous material emergency
response services by Provider Agencies and Response Teams.
Such standards may include specific levels of training
required of personnel, manpower needs and the type of
equipment and supplies necessary for particular hazardous
material emergencies. The Board shall also adopt response
zones and response procedures to control which Provider
Agency should respond to any specific hazardous material
emergency. The Authority, Provider Agencies and Response
Teams retain sole and exclusive discretion as to the
specific type, nature and timing of the services performed
pursuant to this Agreement, provided, however, each Provider
Agency shall be subject to the provisions of Subsection 5.5
(D). Neither the Authority, Provider Agencies nor Response
Teams are responsible for the physical containment or clean
up of any hazardous material, the control of pedestrian or
vehicular traffic or the removal of persons or property from
the area around the emergency.
C. Neither the Authority, nor the Provider
Agencies, guarantee that a Response Team will be available
at all times to respond to a hazardous material emergency.
Circumstances may arise when the timing, number, size or
location of a hazardous material emergency, or other
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emergencies, make it difficult or impossible for the
Authority or the Provider Agencies to respond to any or all
incident(s). The Board shall adopt standard operating
procedures to govern the nature and timing of responses when
multiple hazardous material emergencies (or other
emergencies) exist within the County at any one time.
4.2 Preventative Measures
Each Participating Agency shall use its best
efforts to do the following:
A. Require that all persons, business
entities and public agencies within its jurisdiction comply
with applicable state and federal laws regarding the storage
and use of hazardous material by establishing and
implementing an inspection and citation program;
B. Maintain, and make accessible to the
Authority, Provider Agencies, and Response Teams copies of
all plans and documents required to be submitted pursuant to
law, including, without limitation, business inventories and
emergency response plans;
C. If appropriate, declare a local emergency
pursuant to the provisions of Sections 8630, et seq. of the
Government Code of the State of California and /or any
applicable charter provisions or ordinance. To the extent
permitted by law, the Authority or the responding Provider
Agency shall have the right to declare a local emergency in
the event the public entity with jurisdiction over the scene
of the hazardous material emergency fails or refuses to do
EW:.'
so, and
D. Immediately comply with any request of
the Response Team, Provider Agency or Authority to provide
police, fire or other personnel or services to assist the
Response Team, control vehicular traffic and pedestrian
access to the scene of the hazardous material emergency, or
contain or clean -up any hazardous material. These services
shall be provided at no cost to the Authority or the
Provider Agencies. Neither the Authority nor the responding
Provider Agency shall be responsible to provide these
services or for any costs or expenses related thereto. In
the event these services are not provided, the responding
Provider Agency shall have the right, but not the
obligation, to contract for such services as may be
necessary, or in the alternative, the Response Team shall
have the right to withdraw from the scene of the hazardous
material emergency. In the event the responding Provider
Agency finds it necessary to contract for services to be
provided pursuant to this subsection, the Participating
Agency otherwise responsible for providing the service shall
fully reimburse the Provider Agency within five (5) days
from the date costs are billed.
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5.
FEE PROVISIONS
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The following special provisions shall control the
Authority, the Board, the Treasurer and the Auditor relative
to the collection and disbursement of funds received or
recovered from Participating Agencies, federal or state
grant programs, and persons or entities who receive services
and those responsible for a hazardous material emergency.
5.1 Provider Agencies
A. The Provider Agencies, in consideration
of their right to receive funds as hereinafter provided,
and, without,charge, hazardous material emergency response
services from other Provider Agencies, agree to make in -kind
contributions to the Authority in the form of a Response
Team (Huntington Beach and Newport Beach shall each have
available on a daily basis three (3) person Response Teams,
while Anaheim, Santa Ana and the County of Orange shall have
available on a daily basis six (6) person Response Teams) as
well as related supplies, material and equipment.
B. In addition, each Provider Agency hereby
assigns to Authority all of its respective right, title, and
interest in and to any claim or cause of action against the
person or entity responsible, in whole or in part, for any
hazardous material emergency to which the Provider Agency
responds or any hazardous material emergency within the
jurisdiction of such Provider Agency and to which another
Provider Agency responds. This assignment includes, without
20
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limitation, the right to recover the value of any in -kind
contributions made to the Authority, the right to collect
the reasonable value of all services performed by the
Authority /Provider Agency, and the right to recover punitive
damages, penalties or statutory enhancement to the extent
such remedies are provided by law. However, this assignment
does not include the right to recover, from the person or
entity responsible, all costs and expenses in any way
related to injuries suffered by Response Team Members by
providing services pursuant to this Agreement. Each
Provider Agency agrees to cooperate with the Authority in
its efforts to recover money from any person or entity
responsible for a hazardous material emergency to which the
Provider Agency has responded, as well as any claim or
litigation instituted by or against the Authority. This
shall include providing all information and invoices
necessary to initiate collection actions to the
administering agency within the time period established by
the Board. Each Provider Agency waives and gives up any
right it may have to receive or hold any funds collected by
the Authority that relate to any hazardous material
emergency within its jurisdiction or to which the provider
Agency has responded.
C. Nothing in this section shall prevent a
Provider Agency from pursuing efforts to collect, from the
person or entity responsible for the hazardous material
emergency, all costs and expenses incurred by the Provider
21
Agency in providing services other than those performed by a
Response Team.
D. The personnel of each Provider Agency
shall be considered to the employees of the Provider
Agencies, not those of the Authority or any other
Participating Agency, and they shall not be entitled to any
personnel benefits or compensation from the Authority.
Equipment, material and supplies owned or maintained by
Provider Agencies to assist in providing services pursuant
to this Agreement shall remain the property of the Provider
Agency. Except as otherwise provided in this Chapter and
the provisions of Section 7.2, Provider Agencies shall be
under no obligation to directly pay any fee or contribute
any money or equipment to the Authority.
5.2 Service to County Contract Cities
Authority shall, without charge, provide
hazardous material emergency response services to County
Contract Cities. Authority shall be under no obligation,
however, to provide services to any County Contract City
until that city has assigned to the Authority all of its
right, title and interest in and to any claim or cause of
action against any person or entity responsible, in whole or
in part, for any hazardous material emergency to which a
Provider Agency has responded. This assignment shall
include, without limitation, the right to collect the
reasonable value of all services performed by the Provider
Agency /Authority, and the right to recover punitive damages,
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penalties, or statutory enhancements to the extent provided
by law.
5.3 Services To and Reimbursement From Subscriber
Agencies
A. Public entities in Orange County may
receive hazardous material response services from Authority
by executing a Subscription Agreement in the form approved
by the Board and paying the fair share contribution
specified for that city in Exhibit A. Agencies which desire
to participate as Subscriber Agencies for an entire fiscal
year must sign the Subscription Agreement by June 30 of the
preceding fiscal year, and must pay their fair share
contribution by July 30 of the fiscal year for which
subscription is desired. Agencies which subscribe for an
entire fiscal year may, at their option, elect to pay their
fair share contribution in four equal installments due and
owing on or before July 30th, October 1st, January 1st, and
April 1st. If an agency chooses to become a Subscriber
Agency after the commencement of a fiscal year, the fair
share contribution will be adjusted pro rata to reflect the
portion of the fiscal year for which the agency did not
participate in the Authority. Agencies which choose to
become Subscriber Agencies after the commencement of the
fiscal year must sign the Subscription Agreement and pay the
full amount of the pro -rated fair share contribution prior
to seeking services. Fair share contributions for fiscal
year 1992 -93, and all subsequent fiscal years, shall be
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revised to reflect any changes in population or assessed
value as more fully specified in Sections 1.9 and 1.10.
Fair share contributions, once established by the Board for
any specific fiscal year, shall not be increased or
decreased during that fiscal year.
B. Authority will attempt to collect, from
the person or entity responsible for any hazardous material
emergency to which a Provider Agency has responded within
the jurisdiction of a Subscriber Agency, the reasonable
value of all services performed by the Authority /Provider
Agency. Each Subscriber Agency agrees to cooperate with the
Authority in its collection efforts. Authority will
continue its collection efforts for the period of its
regular billing cycle as established by the Board. If the
person or entity responsible for the hazardous material
emergency does not pay to the Authority the amount billed
within the regular billing cycle, the Subscriber Agency
within whose jurisdiction the emergency occurred shall
reimburse the Authority for the costs of repairing or
replacing all materials and supplies damaged or destroyed in
the course of providing services or which must be disposed
of following the emergency.
C. If the Subscriber Agency is potentially
responsible for, but did not cause, the hazardous material
emergency, as in the case of hazardous materials abandoned
on property belonging to the Subscriber Agency, and an
otherwise responsible party cannot be located, the
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Subscriber Agency shall reimburse the Authority for the
costs of repairing or replacing all materials and supplies
damaged or destroyed in the course of providing services.
If the Subscriber Agency caused the hazardous material
emergency, the Subscriber Agency shall pay the Authority the
hourly rate for the applicable level of service established
by the Board pursuant to Section 6.2 and the costs of
repairing or replacing any equipment damaged or destroyed in
the course of providing services. All fees and costs owing
from Subscriber Agencies pursuant to this section C. shall
be due within thirty (30) days of billing.
5.4 1 Services To and Reimbursement from
Emergency Services Contract Agencies
A. Neither the Authority nor the Provider
Agencies are under any obligation to provide hazardous
material emergency response services to, or within the
jurisdiction of, any public entity that is not a Provider
Agency or a Subscriber Agency. However, the Authority and
Provider Agencies will respond to a hazardous material
emergency within the jurisdiction of a public entity that is
not a Provider Agency or a Subscriber Agency provided:
(i) The public entity requests hazardous
material emergency response services; and
(ii) The public entity has either:
(a) executed an Emergency Services
Contract with the Authority in the
form approved by the Board ; or
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(b) adopted a resolution authorizing
personnel at the scene of a hazardous
material emergency to execute an
Emergency Services Contract and
committing to defend, indemnify and
hold harmless, the Authority,
Provider Agencies as well as their
respective officers, employees,
representatives,.agents and officers
as required by the contract; a person
authorized by resolution executes the
Emergency Services Contract in the
form approved by the Board; and the
Emergency Services Contract Agency
complies with the duties imposed
pursuant to the provisions of that
Agreement.
B. The Emergency Services Contract Agency
shall pay the Authority the hourly rate for level of service
established by the Board pursuant to Section 6.2 and the
costs of repairing or replacing any equipment damaged or
destroyed in the course of providing services. All,fees and
costs owing from Emergency Services Contract Agencies
pursuant to this section B. shall be due within thirty (30)
days of billing.
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5.5 Distribution of Revenue
A. Within sixty (60) days after the close of
each quarter of the fiscal year, or earlier with Board
approval, the Treasurer shall disburse Revenue, as defined
herein, to Provider Agencies as follows:
(i) All administrative expenses actually
incurred by the City of Anaheim shall be
reimbursed prior to distribution to any
Provider Agencies.
(ii) Any Revenue remaining after
reimbursement of administrative expenses
shall be distributed to Provider Agencies
as follows: twenty -five percent (25 %) to
Anaheim, twenty -five percent (25 %) to the
County of orange, twenty -five percent
(25 %) to Santa Ana, twelve and one -half
percent to Huntington Beach (12.5 %), and
twelve and one -half percent to Newport
Beach (12.5 %).
B. Subscriber Agencies, Emergency Services
Contract Agencies, and County Contract Cities shall not be
entitled to receive funds pursuant to this section.
C. During any fiscal year, one or more
Provider Agencies may incur expenses disproportionate to
their level of participation and reimbursement if, for
example, a Response Team member suffers serious injuries
while responding to a hazardous material emergency. In such
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event, the Board may adjust the percentage of reimbursement
to reflect an equitable distribution of costs.
D. The Board may adopt standards, criteria
and policies regarding a Provider Agency's eligibility for
reimbursement under this Section in the event a Response
Team fails to respond when requested to do so or a Provider
Agency fails to provide an adequately trained team.
6.
GENERAL BUDGETARY PROVISIONS
6.1 Annual Budget
The Board shall adopt an annual budget and
determine the costs of services provided pursuant to this
Agreement and procedures adopted by the Board. The annual
budget shall be adopted, and fees for providing services
established, at the first regular meeting of the Board
following the commencement of the third quarter of the
fiscal year. The budget shall include the administrative
service costs estimated by the City of Anaheim, including an
appropriate percentage of the salary and benefits paid by
Anaheim to its personnel engaged in performing these
services, as well as any advance out of the prior year's
revenue which was necessary to reimburse administrative
expenses which exceeded Fair Share Contributions received in
that year.
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6.2 Hourly Rate
At the time that the annual budget is adopted,
the Board shall also establish fees for services provided
pursuant to this Agreement. Notice of the costs of services
shall be issued to all Participating Agencies within thirty
(30) days of adoption of the annual budget. The hourly rate
shall be adjusted annually by the Board, with adjustments to
reflect estimates of the operating expenses of Provider
Agencies, the administrative expenses to be incurred by the
Authority associated with providing services in the upcoming
fiscal year, estimates of the amount of time Provider
Agencies are,likely to devote to providing services pursuant
to this and related agreements, the cost of supplies
expended in responding to an emergency, and such other
factors as the Board considers relevant. The hourly charge
shall also include a surcharge for administrative costs in
an amount established by the Board.
6.3 Disbursements
The Treasurer shall draw checks or warrants
upon the approval and written order of the Board. The Board
shall requisition the payment of funds only upon approval of
such claims or disbursements in accordance with the =rules
and regulations adopted by the Board.
6.4 Accounts
All funds shall be placed in accounts and the
receipt, transfer or disbursement of funds during the term
of this Agreement shall be accounted for in accordance with
]
0
generally accepted accounting principles applicable to
governmental entities. There shall be strict accountability
for all funds. All revenues and expenditures shall be
reported quarterly to the Board.
6.5 Expenditures Within Approved Annual Budget
All expenditures shall be within the
designations and limitations of the approved annual budget.
7.
LIABILITIES
7.1 Liabilities
The debts, liabilities and obligations of the
Authority shall not be considered the debts, liabilities or
obligations of any Participating Agency, except as otherwise
provided in this Chapter.
7.2 Indemnification /Hold Harmless
A. Introduction
The provisions of this section control
the extent to which public entities receiving services
pursuant to this or related agreements are obligated to
defend, indemnify and hold harmless the Authority, Provider
Agencies, and their respective employees, officers, agents
and representatives with respect to any claim, litigation,
liability, damage, injury, cost or expense that is in any
way related to the performance of hazardous material
emergency response services pursuant to this Agreement or
the existence of a hazardous material emergency. Hazardous
material emergencies, by their nature, create a risk of
30
� iA • •
serious injury to persons or property damage over a wide
area. The risk of liability and /or litigation exists
irrespective of the skill and competence displayed by those
attempting to resolve the emergency. Persons who have
suffered injury or property damage as the result of a
release of hazardous material are prone to sue all persons
and entities present at the scene of the emergency and even
non - negligent parties are likely to incur substantial
liability given the toxic nature of the material involved,
the large number of people likely to be affected, and the
perceived "deep pockets" of public entity defendants.
Accordingly,'the Authority, Provider Agencies and their
respective officers and employees deserve substantial
protection from liability and litigation that is in any way
related to the services provided pursuant to this Agreement
or related agreements. Moreover, since Provider Agencies
provide, in advance, the personnel, equipment and funds
necessary to provide services pursuant to this Agreement, it
is appropriate to minimize their risks and obligations while
increasing the protection required from other public
entities which do not make the same financial commitment.
B. General Provisions
1. Each Participating Agency waives and
gives up any claim against, or right to sue, the Authority,
any Provider Agency, any other Participating Agency, or any
of their officers, employees or representatives, for any
loss, damage or injury that arises out of, or is in any way
31
related, to the performance of services rendered pursuant to
this Agreement. This waiver extends to liability for bodily
injury, or property damage, that may be sustained by the
Participating Agency, or its officers, employees,
contractors or agents, and which was proximately caused, in
whole or in part, by the negligent act, conduct or omission
of the Authority, any Provider Agency, any other
Participating Agency, and /or their respective officers,
employees, agents, contractors, representatives, or any
third party. However, this waiver does not extend to
liability for bodily injury or property damage caused by the
fraudulent or willful conduct or any willful or negligent
act which constitutes a violation of a penal statute.
2. The indemnification provisions of
this section shall not require a Participating Agency to
defend, indemnify or hold harmless a Provider Agency with
respect to any workers' compensation claim filed against the
Provider Agency that arises out of, or is in any way
related, to the performance of services pursuant to this
Agreement.
C. Provider Agencies, Subscriber Agencies
and County Contract Cities
With respect to hazardous material
emergencies within the boundaries of any Provider Agency,
Subscriber Agency or County Contract City, the Authority
shall defend, indemnify, and hold harmless the responding
Provider Agency, the Subscriber Agency, the County Contract
32
0
City and their respective officers, employees, agents and
representatives with respect to any loss, damage, injury,
claim, litigation, or liability that arises out of, or is in
any way related, to the performance of Hazardous Material
Emergency Response Services pursuant to this Agreement or to
a Subscriber Agency Agreement. The costs incurred by
Authority in defending any Provider Agency, Subscriber
Agency or County Contract City and the amount of any
judgment or award resulting from such claim or litigation,
shall be advanced or reimbursed by the Provider Agencies and
Subscriber Agencies and, in the case of County Contract
Cities, by the County, in accordance with their Fair Share
Percentage as set forth in Exhibit B. If the combined Fair
Share Percentages of the Provider Agencies and Subscriber
Agencies is less than 100% of the total of all Fair Share
Percentages, the Fair Share Percentages of Provider Agencies
and Subscriber Agencies shall be increased, pro rata, so
that the total of the fair share percentages of the Provider
Agencies and Subscriber,Agencies equal 100 %. For purposes
of this provision only, the County of Orange's fair share
percentage shall be the combined total of all County
Contract Cities and that of the unincorporated area: County
Contract Cities shall not be required to directly contribute
such costs and expenses.
The Provider Agency or Subscriber Agency
within whose jurisdiction the hazardous material emergency
occurs shall defend, indemnify and hold harmless the
33
y
0
Authority with respect to any claim, litigation, loss,
liability, damage, cost or expense that arises out of, or is
in any way related to, the acts or omissions of the Provider
Agency or Subscriber Agency or their respective officers,
employees, agents or representatives, in the course of
providing police and fire services, containment or clean -up
services, or any other support service or activity related
to the hazardous material emergency.
D. Emergency Services Contract Agencies
Emergency Services Contract Agencies
shall indemnify and hold harmless the Authority, the
responding Provider Agency, County Contract Cities and their
respective officers, employees, agents and representatives
from and against any loss, litigation, liability, injury,
damage, claim, lawsuit, cost or expense arising out of, or
in any way related to, the performance of services pursuant
to this agreement, the Emergency Services Contract between
the Authority and the Emergency Services Contract Agency, or
the existence of a hazardous material emergency to which the
Authority and /or a Provider Agency has responded within the
jurisdiction of the Emergency Services Contract Agency. The
obligations of an Emergency Services Contract Agency
pursuant to this section shall extend to any loss, injury,
liability, damage, claim, lawsuit, cost or expense alleged
to have been proximately caused by the sole and exclusive
negligence of Authority, the responding Provider Agency, or
their respective officers, employees, agents and
34
L
representatives. In the event that a judgment or award is
imposed on the Authority, any Provider Agency, any County
Contract City, or any of their employees, officers, agents
or representatives, in any litigation or proceeding for
which an Emergency Services Contract Agency has defense and
indemnification obligations pursuant to the subsection, the
Emergency Services Contract Agency shall fully satisfy any
judgment or award and shall fully indemnify the Authority,
Provider Agencies and County Contract Cities, as well as
their respective officers, employees, agents and
representatives, with respect to any such judgment,
liability or award.
MR
ADMISSION AND WITHDRAWAL OF PARTICIPATING AGENCY
8.1 New Participating Agencies
Public entities may become Participating
Agencies in the Authority upon such terms and conditions as
are specified in this Agreement and /or related Agreements.
8.2 Withdrawal
A. A Provider Agency may withdraw from
the Authority and terminate its obligations under this
Agreement upon the giving of written notice to the authority
no later than December 31, prior to the fiscal year in which
the Provider Agency is to withdraw from the Authority.
Written notice shall be accompanied by a Resolution or
minute order which authorizes the withdrawal by the
governing body of the Provider Agency.
35
B. A Provider Agency which has given
notice of its intention to withdraw may become a Subscriber
or Emergency Services Contract Agency upon written notice to
the Authority, given no later than December 31, of its
intent to alter its status accompanied by a Resolution or
minute order which authorizes execution of the appropriate
contract.
C. If the County of Orange has given
notice of its intention to withdraw as a Provider Agency,
all obligations of Authority and others to County Contract
Cities under this agreement shall cease unless and until
such a County Contract City becomes a Participating Agency
hereunder.
D. If the City of Anaheim has given
notice of its intention to withdraw as a Provider Agency, a
new administering agency shall be selected by the Board at
its first regular meeting following the date of the City of
Anaheim's notice. The agency selected by the Board shall be
responsible for all administrative responsibilities outlined
in this Amended Agreement and any policies adopted by the
Board.
E. Subscriber or Emergency Servrices
Contract Agencies may withdraw from the Authority, terminate
services, or alter their status as Subscriber or Emergency
Services Contract Agencies in any fiscal year pursuant to
the provisions of their Subscription Agreements or Emergency
Services Contract, respectively.
T:�
9
F. Subscribers or Emergency Services Contract Agencies
shall be considered to have withdrawn from the Authority if
they have breached their Subscription Agreement or Emergency
Services Contract and Authority has exercised its option to
terminate same.
G. Subsequent to withdrawal or
termination, Participating Agencies shall have a continuing
responsibility to perform the duties and obligations
required by this Agreement and which are based on facts,
events, or occurrences that predate withdrawal or
termination.
H. Any Participating Agency which has
withdrawn from the Authority or which has altered its status
shall automatically forfeit its representation, if any, on
the Board.
9.
TERMINATION AND DISPOSITION OF ASSETS
9.1 Termination
The Authority shall continue to exercise
the Joint Powers specified in this Agreement until
termination. This Agreement shall terminate if a majority
of the Provider Agencies give the Authority notice of their
intent to withdraw from the Authority in accordance with
Section 8.2 of this Agreement, or if the Provider Agencies
mutually agree to terminate this Agreement.
37
9.2 Distribution of Property
In the event of the termination of this
Agreement, any Revenue remaining in the authority shall be
disbursed in accordance with Section 5.5.
10.
MISCELLANEOUS
10.1 Amendments
This Agreement may be amended with the
approval of all of the Provider Agencies.
10.2 Notice
Any notice or instrument required to be
given or delivered pursuant to this Agreement shall be
deemed given when personally delivered to the Authority or
deposited in the United States Mail, first class postage
pre -paid, and properly addressed to the principal office of
the Agency or Authority.
10.3 Partial Invalidity
If one or more of the sections,
paragraphs or provisions of this Agreement is determined to
be invalid or unenforceable by a Court of competent
jurisdiction, each and all of the remaining provisions,
sections and paragraphs shall not be affected and skull
continue to be valid and enforceable to the fullest extent
permitted by law, unless the invalidity affects the
substantial rights or duties of the parties, and provided
that such remaining portions or provisions can be construed
in substance to constitute the Agreement that the parties
W.,
intended in the first instance.
10.4 Successors
This Agreement shall inure to the benefit
of and be binding upon any successors or assigns of the
Participating Agencies, including any Fire Protection
District which may be formed to succeed a Participating
Agency.
IN WITNESS WHEREOF, the Parties have caused this Second
Amended Agreement to be executed and attested by their duly
executed officers, and to have their official seals affixed
hereto, as of the date first stated above.
CIT O H T N H
By
Mayor
DATE OF EXECUTION: ATTE`g''Y'+'/KfI GGY1.0'
City Clerk
APPROVED AS TO FORM: L
1 } L''STG�%
City Atto ney
Date
DATE OF EXECCUTION:
l� -, 4�2 -/Q/
APPROV D AS TO FORM:
By
Ci y tt rney
Date O ?/
CITY OF N W) PORT BEACH
By Cy- � /r)Jt..
r
May 6r
7, i
%zi / ".; % . "�� % //� /'
city / I��,
39 c ..5, T
,q/ r F Cl' N.":
tt,
DATE OF EXECUTION:
io- fG
APPROVED AS TO FORM:
By
City Attor4Lej
Date 16-q-01.(
DATE OF EXECUTION:
rj - () - QI
APPROVED AS T OF
B
C Attorney
Daft e ) ! ST'- 4 i
OF SANTA ANA
r
mnunr
CITY OF ANAHEIM
ATTEST:
-ca x
City Clerk
COUNTY OF ORANGE, A
Political Subdivisio f 'the
Stat Ca if
,
Chairman of the Boar of
Supervisors
40
0 0
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
THE BOARD
By d0 .
Li da H. Ruth
Clerk of the Board of Supervisors
of Orange County, California
APPROVED AS TO FORM:
TERRY ANDRUS, COUNTY COUNSEL
By a�'�
Carol D. Brown, Deputy
-512-S-111
41
FAIIR SHARE
A
B
c
12
I
FAIR SHARE
FAIR SHARE
1 3
1
1
PERCENTAGE
1 COST
1 S
IBREA
5.25
1 10500
s
1BUENA PARK
7.79
1 15580
1 6
ICOSTA MESA
1 12.72
25440
17
1FOUNTAIN VALLEY
1 6.84
1 13680
I s
1FULLERTON
I 14.31
j 28620
1 s
IGARDEN GROVE
14.79
29580
1 1 o
ILAGUNA BEACH
I 4.45
i 8900
1 ILA HABRA
j 5.72
j 11440
112IORANGE
14.15
28300
11 3 ISAN CLEMENTE
5.72
; 11440
14 1 WESTMINSTER
8.27 16540
11 s iTOTAL
1 100 i 200000
FISCAL YEAR
1991 to 1992
EXHIBIT "a"
C4
Assessed
% Population
Valuation
Anaheim
9.3 %
10.4%
Brea
1.9
1.4
Buena Park
2.1
2.8
Costa Mesa
4.1
3.9
Fountain Valley
1.9
2.4
Fullerton
4.3
4.7
Garden Grove
3.5
5.8
Huntington Bch
7.3
8.0
Laguna Beach
1.8
1.0
La Habra
1.5
2.1
Newport Beach
7.4
3.0
Orange
4.4
4.5
San Clemente
20
1.6
Santa Ana
6.9
9.9
Westminster
2.0
3.2
Orange County
14.10
14.40
Contract Cities
25.5
20.9
Totals
100.
100.
0
Fair Share
9.85%
1.65
2.45
4.00
2.15
4.5
4.65
7.65
1.4
1.8
5.2
4.45
1.8
8.4
2.6
14.25
23.2
100.
Y 00.
i -V,* 'Aw COUN�CpIL�
rl,-v ;',k i- u„J1li $f11CI1
.JAN S 1M NEWPORT BEACH FIRE DEPARTMENT
APPR ®VEll
January 8, 1990
Council Agenda
Item No. F -3(b)
TO: Mayor and City Council
FROM: J. M. Reed, Fire Chief
SUBJECT: Revised Joint Powers Agreement Creating the Orange 2 760
County -City Hazardous Materials Emergency Response
Authority
Recommendation
Authorize the Mayor to sign the revised Joint Powers
Agreement Creating the Orange County -City Hazardous Materials
Emergency Response Authority.
Fiscal Impact
No new costs to the City
$278,000.
Discussion
May produce revenue up to
On July 24, 1989, the City Council of Newport Beach agreed to
join the Orange County -City Hazardous Materials Emergency
Response Authority (C- 2760). The Cities of Anaheim, Santa
Ana and Huntington Beach also agreed to join. The County of
Orange did not approve the Agreement as it was written at
that time.
Through a series of meetings with various City and County
staff members, the Agreement was amended. The major change
in the revised Agreement states that County Contract Cities
shall receive services without charge. Also, the Authority
shall defend, indemnify and hold harmless the County Contract
Cities but those Cities shall be required to pay a fairshare
of any judgment or award resulting from a claim or
litigation.
The revised Agreement is on file in the Newport Beach City
Clerk's office.
Respectfully submitted,
J. M. Reed, Fire Chief JMR:rw
J
AMENDMENT NO. 1 TO THE
THE JOINT EXERCISE OF POWERS AGREEMENT
CREATING THE ORANGE COUNTY -CITY HAZARDOUS
MATERIAL EMERGENCY RESPONSE AUTHORITY
RECITALS
0 •
TABLE OF CONTENTS
Chapter 1.
DEFINITIONS
Chapter 2.
GENERAL
PURPOSE AND POWERS
2.1
Authority Created
2.2
Common Powers
2.3
General Purpose
2.4
Powers
Chapter 3.
ORGANIZATION
3.1
Membership
3.2
Board
3.3
Principal Office
3.4
Meetings
3.5
Quorum
3.6
Powers and Limitations
3.7
Minutes
3.8
Rules
3.9
Officers
3.10
Bonds
3.11
Status of Officers and
Employees
Chapter 4.
HAZARDOUS MATERIAL RESPONSE SERVICES
4.1
Basic Services
4.2
Preventative Measures
Chapter 5.
FEE PROVISIONS
5.1
Administration
5.2
Provider Contributions
5.3
Service to County Contract
Cities
5.4
Services To and Reimbursement
From Subscribers
5.5
Services To and Reimbursement
From Contract Agencies
5.6
Services To and Reimbursement
From Non - Participating Agencies
5.7
Distribution of Fair Share
Contributions
5.8
Distribution of Other Revenue
i.
Page (s)
1, 2
3, 4, 5
11
6
6
7
7, 8
E
9
9
10
11
11
11
11, 12
12
12
12, 13
13
13
13, 14, 15
15, 16, 17
17
17
18, 19, 20
20, 21
21, 22
22
22, 23
23, 24
24, 25
Chapter
6.
GENERAL BUDGETARY PROVISIONS
26
6.1 Annual Budget
26,
27
6.2 Disbursements
27
6.3 Accounts
27,
28
6.4 Expenditures Within Approved
Annual Budget
28
Chapter
7.
LIABILITIES
28
7.1 Liabilities
28
7.2 Indemnification
28,
29, 30
31,
32, 33
Chapter
8.
ADMISSION AND WITHDRAWAL OF
PARTICIPATING AGENCY
33
8.1 New Participating Agencies
33
8.2 Withdrawal
33,
34
Chapter
9•.
TERMINATION AND DISPOSITION OF ASSETS
34
9.1 Termination
34,
35
9.2 Distribution of Property
35
Chapter
10.
MISCELLANEOUS
35
10.1 Amendments
35
10.2 Notice
35
10.3 Partial Invalidity
35,
36
10.4 Successors
36,
37
SIGNATURE PAGES
37,
38
ii.
This Amendment No. 1 to the Joint Exercise of Powers Agree-
ment is made by, and is effective when fully executed by author-
ized representatives of all of, the following public entities:
(a) City of Huntington Beach
(b) City of Newport Beach
(c) City of Santa Ana
(d) City of Anaheim
(e) County of Orange
RECITALS
A. The County of Orange has, pursuant to the provisions of
Article 3.5, Chapter 6.5, of Division 20 of the Health and Safety
Code of the State of California, adopted the Orange County
Hazardous Waste Management Plan ( "Management Plan ") and all
cities within the County have approved the Management Plan,
either expressly or by operation of law.
B. As one of its objectives, the Management Plan calls for
continued prompt and efficient response to hazardous material
emergencies and proposes to achieve this objective by continuing
to provide emergency response service for spills, illegal dumping
and other incidents involving hazardous materials and waste,
through the County's own forces and /or response teams maintained
by other public entities within the County.
10 -31 -89 1.
CDB1 /030
x
C. The Orange County Fire Chiefs Association has evaluated
the staffing levels and equipment that must be maintained, and
the procedures which must be followed, to effectively and properly
respond to hazardous material emergencies throughout the County.
D. The current cost of training, maintaining and equipping
qualified hazardous material response teams in sufficient number
to respond to emergencies throughout the County is approximately
$3.8 million dollars per year.
E. Each of the Participating Agencies are responsible for
providing hazardous material emergency response services within
their respective jurisdictions.
F. The signatories to this Agreement are currently provid-
ing hazardous material emergency response services throughout the
County and intend to continue to provide these services through a
joint powers authority which would reimburse Provider Agencies
with revenue from agencies receiving service, those responsible
for the emergency, and grant programs.
G. The signatories to this Agreement have determined that
the provisions of this Agreement are consistent with the Hazard-
ous Waste Control Law, the Orange County Hazardous Waste Manage-
ment Plan and the Orange County Hazardous Materials Area Plan.
H. The Participating Agencies each have the common power
to create, train and equip hazardous material response teams as
well the authority to contract with one another for the joint
exercise of any common power pursuant to the provisions of
Article 1, Chapter 5, Division 7, Title 1 of the Government Code
of the State of California.
10 -31 -89 2.
CDB1 /030
1.
DEFINITIONS
For the purpose of this Agreement, the following words or
terms in this Chapter shall have the following meanings:
1.1 "Annual Budget" means the budget approved by the
Board pursuant to Section 6.1.
1.2 "Authority" means Orange County -City Hazardous
Material Emergency Response Authority.
1.3 "Board Members" means those persons serving as
members of the Board or their designated alternates.
.1.4 "Board" means the governing Board of the Authority.
1.5 "Contract Agency" means any public agency that has
contracted with the Authority to pay for hazardous material
emergency response services on an hourly basis by executing the
contract attached as Exhibit "C ", or a similar contract approved
by the Board, as further described in Section 5.5.
1.6 "County" means the geographic area within the
boundaries of the County of Orange, including incorporated and
unincorporated territory, but exclusive of the "County of Orange"
_ as a political subdivision of the State of California.
1.7 "County of Orange" means the public entity which
is a political subdivision of the State of California and is
governed by the Board of Supervisors.
1.8 "County Contract City" means any city which, as of
the effective date of this agreement and hereafter, contracts
with the County of Orange for fire and emergency response ser-
vices.
10 -31 -89 3.
CDB1 /030
1.9 "Fair Share Contribution" shall mean the sum of
money to be paid by a Subscriber for services and is calculated
by multiplying the operating costs of the Authority for any
fiscal year (as specified in the budget) by the Subscriber's then
I
current Fair Share Percentage.
1.10 "Fair Share Percentage" means that percentage
specified in Exhibit "A ", and as revised for each subsequent
fiscal year during the term of this Agreement, which is calcu-
lated by averaging the percentage of County population and County
assessed value (real property) in each city within the County as
well as the unincorporated area of Orange County.
1.11 "Fiscal Year" means the period dating from July 1
in any given year to and including the 30th of June of the
following year.
1.12 "Hazardous Material" means any of the following
substance(s) or material(s):
A. Any material listed in Subdivision B of
Section 6382 of the Labor Code;
B. Any material or substance defined in Section
25501(k), 25115, 25117, or 25316 of the Health and Safety Code;
C. Any material listed in Articles 9 (commencing
with Section 66680) or 11 (commencing with Section 66693) of
Chapter 30 of Title 22 of the California Code of Regulations;
D. Any material listed in Part 261 of Title 40
of the Code of Federal Regulations;
E. Any other material or substance the release
of which is reasonably believed to pose a significant present or
I
10 -31 -89 4.
CDB1 /030
potential hazard to human health, safety, property, or the
environment.
1.13 "Hazardous Material Emergency" means the release
or threatened release of any hazardous material.
1.14 "Hazardous Material Emergency Response Plan" means
the Orange County Hazardous Materials Area Plan.
1.15 "Hazardous Material Emergency Response Services"
means the response to, assessment of, and stabilization of, any
hazardous material emergency.
1.16 "Participating Agencies" means, collectively, all
Provider Agencies, Subscribers, County Contract Cities and
Contract Agencies.
1.17 "Provider Agency" means each of the public en-
tities which are the signatories to this Amendment and contribute
a Response Team to the Authority in accordance with the provi-
sions of this Amendment.
1.18 "Release" means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing into the environment.
1.19 "Response Team" means personnel employed by a
Provider Agency and who are trained and equipped to respond to
hazardous material emergencies.
1.20 "Subscriber" means each of the public entities
which has agreed to contribute to the costs of providing hazard-
ous material emergency response services by executing the Sub-
scription Agreement attached as Exhibit "B ", or a similar con-
tract approved by the Board, as further described in Section 5.4.
10 -31 -89 5.
CDB1 /030
2.
GENERAL PURPOSE AND POWERS
2.1 Authority Created
i
This Agreement creates a Joint Powers Authority to
be known as the Orange County -City Hazardous Material Emergency
I
Response Authority. The Authority is formed pursuant to the
provisions of Article 1, Chapter 5, Division 7, of Title 1 of the
Government Code of the State of California (the Joint Exercise of
Powers Act). The Authority shall be considered a public entity
separate and apart from the Participating Agencies.
X2.2 Common Powers
Each Participating Agency has the common power to:
A. Respond to, assess the nature of, and stabi-
lize any emergency created by, the release, or threatened re-
lease, of hazardous material;
B. Hire, train, and equip persons such that they
are qualified to respond to, assess the nature and dangers of,
and stabilize any emergency associated with, any release or
potential release of hazardous material;
I
C. Direct the activities of persons qualified to
assess the nature or danger of, stabilize any emergency associ-
ated with, control, and clean up any release, or threatened
release, of hazardous material;
D. Finance the activities of persons qualified
to respond to hazardous material emergencies, accept monies to
defray the costs of maintaining Response Teams and responding to
emergencies, and to recover the costs of response from grant
I
10 -31 -89 6.
CDB1 /030
programs and persons or entities responsible, in whole or in
part, for the emergency.
2.3 General Purpose
The primary purpose of this Agreement is to
provide for continuation of the hazardous material emergency
response system within the County and to equitably reimburse
Provider Agencies for the costs incurred in maintaining Response
Teams, and responding to hazardous material emergencies, with
revenue derived from the public entities that use, or have access
to, the services of the Provider Agencies and funds recovered
from those responsible for the emergency. This Agreement also
enables public entities to receive hazardous material emergency
response and related services without incurring the direct costs
required to establish and maintain Response Teams. The Authority
will coordinate responses to hazardous material emergencies and
ensure efficient use of resources. This Agreement will enable an
equitable sharing of risks associated with hazardous material
emergencies and promote the recovery of costs from persons or
entities responsible, in whole.or in part, for any such emergency.
2.4 .Powers
The Authority shall have the power, in its own
name, to do any of the following:
A. To jointly exercise the common powers of the
Participating Agencies;
B. To make and enter into contracts;
C. To retain the services of engineers, attor-
neys, hazardous material consultants, and such other persons or
10 -31 -89 7.
CDB1 /030
0
entities as may be necessary or appropriate to achieve the
purposes of this Agreement.
D. To acquire, hold or dispose of property by
any lawful means, including, without limitation, gift, purchase
or sale;
E. To incur debts, liabilities or obligations
subject to the limitations specified in this Agreement;
F. To receive gifts, contributions, grants, and
donations of property, funds, services and other forms of assis-
tance from any person, firm, corporation or government agency;
G. To sue and be sued in its own name;
H. To apply for any grant, or grants, offered in
conjunction with any federal, state or local program that is in
any way related to the purpose of this Agreement.
I. To adopt, rules, regulations, policies,
bylaws and procedures governing the operation of the Authority;
J. To take all steps necessary to recover from
the person or entity responsible, the costs incurred, or the
value of the services performed, in responding to a hazardous
material emergency or release.
K. To exercise any other power in the manner and
according to the methods, provided by applicable.laws, rules or
' regulations, subject only to the restrictions on the manner of
exercising such powers as may be applicable to the City of
Anaheim.
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3.
ORGANIZATION
3.1 Membership
The Members of the Authority shall be the public
entities which have executed this Agreement, a subsequent amend-
ment, or a Subscription Agreement, and which have not withdrawn
from the Authority or altered their status.
3.2 Board
A. The Board shall consist of the following:
(i) One (1) voting Board member, and an
alternate, appointed by the governing body of each of the
following:
County of Orange
City of Anaheim
City of Santa Ana
(ii) One (1) voting Board member, and an
alternate, representing the City of Huntington Beach and the City
of Newport Beach, the member to be first appointed by the govern-
ing body of the City of Huntington Beach to serve a term concur-
rent with the fiscal year beginning July 1, 1989, and every other
fiscal year thereafter, and a voting Board member and an alter-
nate to be appointed by the governing body of the City of Newport
Beach for a first term concurrent with the fiscal year commencing
July 1, 1990, and every other year thereafter;
(iii) Three (3) voting Board members, and an
alternate appointed by the governing body of each Subscriber,
provided however, if less than three public entities execute
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' i !
Subscription Agreements, the public entity or entities executing
the Agreement(s) shall be entitled to only one voting Board
member, and, if two public entities execute the Subscription
Agreement the Provider Agencies shall select the Subscriber
entitled to appoint the voting Board member for a one year term.
In the event more than three public entities execute Subscription
Agreements, the Provider Agencies shall select the three Sub-
scribers entitled to appoint voting Board members and alternates
for a one year term. Selections made by Provider Agencies
hereunder shall be made annually."
B. Except as provided in subsection A(ii) above,
each Board member shall hold office from the first meeting of the
Board after appointment until a successor is named. Board
members and alternates shall be appointed by, and serve at the
pleasure of, their appointing body, and may be removed at any
time, with or without cause, at the sole discretion of that
appointing body.
C. A Board member or alternate shall not receive
compensation, but may be reimbursed by the Authority for expenses
reasonably incurred while performing duties required by this
Agreement, as further specified and limited by resolution of the
Board.
3.3 Principal Office
The principal office of the Authority shall be
established by the Board and shall be located within the County
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D
of Orange. The Board has full power and authority to change the
principal office from one location to another within the County
of Orange.
3.4 Meetings
The Board shall meet at the principal office of
the Authority, or at such other place as may be designated by the
Board. The time and place of regular meetings of the Board shall
be determined by a resolution adopted by the Board. Regular,
adjourned, and special meetings shall be called, noticed and
conducted, in accordance with the Ralph M. Brown Act (Section
54950, et -seq. of the Government Code).
3.5 Quorum
A majority of the Board members (or the alternate
for any absent voting member) shall constitute a quorum for the
purposes of transacting business relating to the Authority.
3.6 Powers and Limitations
All of the powers of the Participating Agencies
are reserved to them except to the extent powers are conferred on
the Authority and the Board pursuant to this Agreement. Each
Board member, or alternate in the absence of any voting member,
shall be entitled to one (1) vote and, except as expressly
provided in this Agreement, the affirmative vote of the majority
of those present and qualified shall effect adoption of any
motion, resolution, order or action the Board deems appropriate.
3.7 Minutes
The Secretary of the Authority shall provide
notice of, prepare and post agendas for, and keep minutes of,
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each regular, adjourned and special meeting of the Board and
shall send a copy of the minutes to each Board member and other-
wise perform the duties necessary to ensure compliance with
provisions of law including without limitation the Ralph M. Brown
Act (Govt. Code Sec. 54950 et seq.).
3.8 Rules
The Board may adopt rules and regulations for the
conduct of its affairs that are not in conflict with this Agree-
ment.
3.9 Officers
The Board shall select a Chairperson and Vice-
Chairperson from its members and shall appoint a Secretary who
may, but need not, be a member of the Board. The Treasurer and
Auditor of the City of Anaheim shall hold the offices of Trea-
surer and Auditor of the Authority, as authorized by Section
6505.6 of the Government Code. The Treasurer shall keep all
revenues of the Authority in a separate interest - bearing account
and otherwise perform the duties and responsibilities of that
office as specified in Section 6505.5(a) -(d) of the Government
Code. The Chairperson, Vice - Chairperson and Secretary shall hold
office for a period of one (1) year.
3.10 Bonds
The Treasurer, Auditor, and such other persons who
may have access to, or handle, any revenue of the Authority shall
be required to file an official bond in an amount determined by
the Board and consistent with the provisions of Section 6505.1 of
the Government Code. This bonding requirement shall be satisfied
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if an existing bond is extended to cover the duties required by
this Agreement. The costs of complying with the requirements of
this section shall be considered an administrative expense of the
Authority.
3.11 Status of Officers and Employees
All of the privileges and immunities from liabil-
ity, exemption from laws, ordinances and rules, and all pension,
relief, disability, workers' compensation and other benefits
which apply to the activities of officers, agents or employees of
any of the Participating Agencies when performing their respec-
tive functions for that agency, shall apply to them to the same
degree and extent while engaged in the performance of any activi-
ty, function or duty pursuant to this Agreement, subject to the
provisions of Sections 5.2 and Chapter 7 of this Agreement.
4.
HAZARDOUS MATERIAL RESPONSE SERVICES
4.1 Basic Services
The Authority, through the Provider Agencies,
shall furnish all Participating Agencies with hazardous material
emergency response services subject to the following:
A. Services will be performed by Provider Agency
personnel. The Board, in cooperation with the Provider Agencies,
shall determine the number, location and size of the Response
Teams available to provide services pursuant to this Agreement.
B. The Provider Agencies and their Response
Teams will generally provide services in accordance with the
10 -31 -89 13.
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0
provisions of the current Hazardous Materials Emergency Response
Plan. The Board shall adopt criteria and standards relating to
the provision of hazardous material emergency response services
by Provider Agencies and Response Teams. Such standards may
include specific levels of training required of personnel,
manpower needs and the type of equipment and supplies necessary
for particular hazardous material emergencies. The Board shall
also adopt response zones and response procedures to control
which Provider Agency should respond to any specific hazardous
material emergency. The Authority, Provider Agencies and Re-
sponse Teams retain sole and exclusive discretion as to the
specific type, nature and timing of the services performed
pursuant to this Agreement, provided, however, each Provider
Agency shall be subject to the provisions of Subsection 5.8(D).
Neither the Authority, Provider Agencies nor Response Teams are
responsible for the physical containment or clean up of any
hazardous material, the control of pedestrian or vehicular
traffic, or the removal of persons or property from the area
around the emergency.
C. Neither the Authority, nor the Provider
Agencies, guarantee that a Response Team will be available at all
times to respond to a hazardous material emergency. Circum-
stances may arise when the timing, number, size or location of a
hazardous material emergency, or other emergencies, make it
difficult or impossible for the Authority or the Provider
Agencies to respond to any or all incident(s). The Board shall
adopt standard operating procedures to govern the nature and
10 -31 -89 14.
CDB1(030
timing of responses when multiple hazardous material emergencies
(or other emergencies) exist within the County at any one time.
D. Subscribers, County Contract Cities and
Contract Agencies shall have the right to request the Authority
to provide a Response Team, or members thereof, to conduct
inspections and training, to advise on appropriate enforcement
actions or hazardous material control techniques, or assist in
the inspection of hazardous material when special and unique
circumstances arise that are beyond the ordinary expertise of
their fire department personnel. The Board shall establish
criteria to be used in determining whether special and unique
circumstances exist and an appropriate hourly fee to be charged
Contract Agencies or other public entities. Subscribers and
County Contract Cities Shall, to the extent determined by the
Board, receive these services without charge.
9.2 Preventative Measures
Each Participating Agency shall use its best
efforts to do the following:
A. Require that all persons, business entities
and public agencies within their jurisdiction comply with appli-
cable state and federal laws regarding the storage and use of
hazardous material by establishing and implementing an inspection
and citation program;
B. Maintain, and make accessible to the
Authority, Provider Agencies, and Response Teams copies of all
plans and documents required to be submitted pursuant to law,
1 10 -31 -89 15.
CDB1 /030
including, without limitation, business inventories and emergency
response plans;
C. If appropriate, declare a local emergency
pursuant to the provisions of Sections 8630, et seq. of the
Government Code of the State of California and/or any applicable
charter provision or ordinance. To the extent permitted by law,
the Authority or the responding Provider Agency shall have the
right to declare a local emergency in the event the public entity
with jurisdiction over the scene of the hazardous material
emergency fails or refuses to do so; and
D. Immediately comply with any request of the
Response Team, Provider Agency or Authority to provide police,
fire or other personnel or services to assist the Response Team,
control vehicular traffic and pedestrian access to the scene of
the hazardous material emergency, or contain or clean -up any
hazardous material. These services shall be provided at no cost
to the Authority or the Provider Agencies. Neither the Authority
nor the responding Provider Agency shall be responsible to
provide these services or for any costs or expenses related
thereto. In the event these services are not provided, the
responding Provider Agency shall have the right, but not the
obligation, to contract for such services as may be necessary or,
in the alternative, the Response Team shall have the right to
withdraw from the scene of the hazardous material emergency. In
the event the responding Provider Agency is required to contract
for services to be provided pursuant to this subsection, the
CDB1 /030 16.
Participating Agency otherwise responsible for providing the
service shall fully reimburse the Provider Agency within five (5)
days from the date costs are billed.
5.
FEE PROVISIONS
The following special provisions shall control the Authori-
ty, the Board and the Treasurer /Auditor relative to the collec-
tion and disbursement of funds received or recovered from Partic-
ipating Agencies, federal or state grant programs, and persons or
entities responsible for a hazardous material emergency.
5.1 Administration
The City of Anaheim shall be responsible for
administrative services. Administrative services include general
accounting of funds received and disbursed, preparation of
invoices to Participating Agencies and to those responsible in
some manner, for any hazardous material emergency to which a
Provider Agency responds, preparation of documents relative to
any grant program, and such other functions as may be required by
this Agreement or the provisions of any law, including, without
limitation, the Joint Exercise of Powers Act. Administrative
services shall not include the commencement or prosecution of
litigation to collect fees or costs from any person or entity
responsible, in whole or in part, for a hazardous material
emergency.
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5.2 Provider Contributions
A. The Provider Agencies, in consideration of
their right to receive funds as hereinafter provided, and,
without charge, hazardous material emergency response services
from other Provider Agencies, agree to make in -kind contributions
to the Authority in the form of a Response Team (Huntington Beach
and Newport Beach shall each provide three (3) person Response
Teams, while Anaheim, Santa Ana and the County of Orange shall
provide six (6) person Response Teams) as well as related sup-
plies, material and equipment. In addition, each Provider Agency
lhiif k_'aSsignY(' to Authority all of its respective right, title,
and interest in and to any claim or cause of action against the
person or entity responsible, in whole or in part, for any
i
hazardous material emergency to which the Provider Agency res-
ponds or any hazardous material emergency within the jurisdiction
of such Provider Agency and to which another Provider Agency
responds. This assignment includes, without limitation, the
right to recover the value of any in -kind contributions made to
the Authority, the right to collect the reasonable value of all
services performed by the Authority /Provider Agency, and the
right to recover punitive damages, penalties or statutory en-
hancement to the extent such remedies are provided by law.
However, this assignment does not include the right to recover,
from the person or entity responsible, all costs and expenses in
any way related to injuries suffered by Response Team Members by
providing services pursuant to this Agreement, Each Provider
Agency agrees to cooperate with the Authority in its efforts to
10 -31 -84 18.
CDB1 /030
recover money from any person or entity responsible for a hazard-
ous material emergency to which the Provider Agency has
responded. Each Provider Agency waives and gives up any right it
may have to receive or hold any funds collected by the Authority
that relate to any hazardous material emergency within its
jurisdiction or to which the Provider Agency has responded.
B. Nothing in this section shall prevent a
Provider Agency from pursuing efforts to collect, from the person
or entity responsible for the hazardous material emergency, all
costs and expenses incurred by the Provider Agency in providing
services other than those performed by a Response Team. However,
a Provider Agency may assign such rights, as well as the right to
recover costs and expenses relating to injuries suffered by
Response Team Members, to Authority for purposes of collection
only. In such event, Authority shall endeavor to collect such
costs for the Provider Agency in the same manner, and at the same
time, as Authority pursues collection of Response Team costs and
shall pay over all funds to which the Provider Agency is entitled
within thirty (30) days of receipt.
C. The personnel of each Provider Agency shall
be considered to be employees of the Provider Agencies, not those
of the Authority nor any other Participating Agency, and they
shall not be entitled to any personnel benefits or compensation
from the Authority. Equipment, material and supplies owned or
maintained by Provider Agencies to assist in providing services
pursuant to this Agreement shall remain in the property of the
Provider Agency. Except as otherwise provided in this Chapter
10 -31 -89 19.
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and the provisions of Section 7.2, Provider Agencies shall be
under no obligation to directly pay any fee or contribute any
money or equipment to the Authority.
5.3 Service to County Contract Cities
A. Authority shall, without charge, provide
hazardous material emergency response service to County Contract
Cities. However, Authority shall be under no obligation to
provide services to any County Contract City emergency response
services until that city has assigned to the Authority all of its
right, title and interest in and to any claim or cause of action
against any person or entity responsible, in whole or in part,
for any hazardous material emergency to which a Provider Agency
has responded. This assignment shall include, without limita-
tion, the right to recover the value of in kind contributions
made by the County of Orange to the Authority pursuant to this
Agreement, the right to collect the reasonable value of all
services performed by the Provider Agency /Authority, and the
right to recover punitive damages, penalties, or statutory
enhancements to the extent provided by law.
B. County Contract Cities may, but are under no
obligation to, assign to the Authority, for collection only, the
right to collect the costs incurred in providing police, fire and
other support services necessary or appropriate to assist the
Response Team in resolving the emergency or to contain or cleanup
hazardous material. In the event of such assignment, the Author-
ity shall, at no cost to the County Contract City, endeavor to
collect all money to which the County Contract City is entitled,
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CDB1 /030
in the same manner and at the same time as the Authority pursues
collection of its costs, and shall pay over all funds to which
the County Contract City is entitled within thirty (30) days of
receipt.
5.4 Services To and Reimbursement From Subscribers
Public entities in Orange County may receive
hazardous material response services from Authority by executing
the Subscription Agreement and paying a fair share contribution.
To receive service during fiscal year 1989 -90, Subscription
Agreements may be signed on or before October 1, 1989. Fair
Share Contributions for fiscal year 1989 -90 shall be paid in four
(4) equal installments due on or before December 1, 1989, Febru-
ary 1, 1990, April 1, 1990, and May 15, 1990. The fair share
contribution for fiscal year 1989 -90 shall be the sum specified
in Exhibit A reduced, pro rata, to reflect that portion of the
1989 -90 fiscal year for which services were not available.
Subscription Agreements for fiscal year 1990 -91, and any subse-
quent fiscal year, must be signed on or before the first of March
preceding the fiscal year for which services are sought. Fair
share contributions for fiscal year 1990 -91, and all subsequent
fiscal years, shall be revised to reflect any changes in popu-
lation or assessed value as more fully specified in Sections 1.9
and 1.10. For fiscal year 1990 -91, and all subsequent fiscal
years, fair share contributions shall be paid in four (4) equal
installments due and owing on or before July 1st, October 1st,
January 1st and April 1st
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CDB1 /030
Fair share contributions, once
21.
r •
established by the Board for any specific fiscal year, shall not
be increased or decreased during that fiscal year.
5.5. Services To and Reimbursement From
Contract Agencies
Public entities may receive hazardous material
emergency response services from the Authority by executing the
Hazardous Material Response Service Contract (Contract), paying
the required hourly rate for services, and otherwise complying
with the provisions of this Agreement and the Contract. The
hourly rate shall be adjusted annually by the Board, with adjust-
ments to reflect estimates of the operating and administrative
expenses to be incurred in providing services in the upcoming
fiscal year, estimates of the amount of time Provider Agencies
are likely to devote to providing services pursuant to this and
related agreements, and such other factors as the Board considers
relevant. The hourly charge shall also include a twelve (12)
percent surcharge for administrative costs. The Contract Agency
shall also pay for the cost of repairing or purchasing all
materials and supplies damaged or destroyed in the course of
providing services to the Contract Agency. All fees and costs
shall be due from Contract Agencies within thirty (30) days of
billing.
5.6 Services To and Reimbursement From
Non- Participating Agencies
Neither the Authority nor the Provider Agencies
are under any obligation to provide hazardous material emergency
response services to, or within the jurisdiction of, any public
10 -31 -89 22.
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entity that is not a Participating Agency. However, the Authori-
ty and Provider Agencies reserve the right to respond to a
hazardous material emergency within the jurisdiction of a public
entity that is not a Participating Agency provided:
(i) The public entity requests hazardous
material emergency response services; and
(ii) The public entity has adopted a reso-
lution authorizing personnel at the scene of a hazardous material
emergency to execute a contract agreeing to pay for the services
provided by the Authority at an hourly rate 208 higher than that
charged Contract Agencies; and
(iii) The governing body of the public
entity, in the resolution authorizing execution of the contract,
commits to defend, indemnify and hold harmless, the Authority,
Provider Agencies and other Participating Agencies as well as
their respective officers, employees, representatives, agents and
officers as required by Section 7.2(D) of this Agreement.
(iv) A person authorized by resolution
executes the contract attached as Exhibit "D" or similar agree-
ment approved by the Board; and
(v) The Requesting Agency complies with the
duties imposed upon Subscriber or Contract Agencies pursuant to
the provisions of Section 4.2 of this Agreement.
5.7 Distribution of Fair Share Contributions
Within sixty (60) days after the close of each
fiscal year, or earlier with Board approval, the Treasurer shall
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disburse fair share contributions to reimburse Provider Agencies
in accordance with the following:
Administrative Expenses
Anaheim 1008
Administrative expenses incurred
by the City of Anaheim shall be
reimbursed prior to any distribution
of funds for operating expenses.
Operating Expenses
Anaheim 258
County of Orange 258
Santa Ana 258
Huntington Beach 12 }8
Newport Beach 12 }8
Subscribers, Contract Agencies, County Contract
Cities and public entities which receive services pursuant to the
contract attached as Exhibit "D" or similar contract approved by
the Board shall not be entitled to receive funds pursuant to this
section.
During any fiscal year, one or more Provider
Agencies may incur expenses disproportionate to their level of
participation and reimbursement if, for example, a Response Team
member suffers serious injuries while responding to a hazardous
material emergency. In such event, the Board may adjust the
percentage of reimbursement to reflect an equitable distribution
of costs.
5.8 Distribution of Other Revenue
Within sixty (60) days after the close of each
fiscal year, or earlier with Board approval, the Treasurer shall
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disburse revenue received by Authority (other than fair share
contributions) including, without limitation, funds received from
Contract Agencies, funds recovered from any person or entity
responsible for the hazardous material emergency, or funds
received from any state or federal grant program, in accordance
with the following:
A. Funds shall be disbursed to Provider Agencies
and Subscribers in accordance with their then current fair share
percentage.
B. Neither Contract Agencies, County Contract
Cities, public entities which have received services pursuant to
the contract attached as Exhibit "D" or a similar contract
approved by the Board,nor non- participating.agencies shall be
entitled to receive funds pursuant to this Section.
C. Me total Fair Share Percentage of all
Agencies entitled to receive funds pursuant to this Chapter shall
be increased pro rata due to exclusion of County Contract Cities,
Contract Agencies, public entities which have received services
pursuant to the contract attached as Exhibit D or similar contract,
and all other non - participating agencies in the Authority.
D. The Board shall adopt standards, criteria and
policies regarding a Provider Agency's eligibility for reimburse-
ment under this Section in the event a Response Team fails to
respond when requested to do so or a Provider Agency fails to
provide an adequately trained team.
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6:
GENERAL BUDGETARY PROVISIONS
6.1 Annual Budget
The Board shall adopt an annual budget and deter-
mine the costs of services to Participating Agencies all pursuant
to this Agreement and procedures adopted by the Board. For
fiscal year 1989 -90, the annual budget shall be adopted, and fees
for providing services established, at the first or second
meeting of the Board. Notice of the costs of services shall be
issued to all Participating Agencies within thirty (30) days of
adoption of the annual budget. Operating expenses to be included
within the annual budget shall include, without limitation, the
following:
A. One half 0 ) of the salary and benefits paid
by Provider Agencies to personnel that comprise Response Teams;
B. Expenses incurred in conjunction with the
repair of material or equipment damaged in the course of respond-
ing to, or stabilizing, any hazardous material emergency;
C. Depreciation of the value of any equipment,
material or supplies purchased or maintained by Provider Agencies
for use in responding to, or resolving, any hazardous material
emergency;
D. One half 0 ) of the Workers Compensation and
Unemployment Insurance premiums paid by, or state manual work
rate applicable to, each Provider Agency for the benefit of
personnel that comprise each Response Team;
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rI
L-A
E. The cost of any liability insurance coverage
purchased by the Authority;
F. Training and training - related travel expenses
of Response Teams, or members thereof, as authorized by the
j policies and procedures of the Board;
G. Such other costs and expenses that are
reasonably related to the performance of services pursuant to
this Agreement; and
H. Administrative service costs incurred by the
City of Anaheim, including an appropriate percentage of the
salary and benefits paid by Anaheim to its personnel engaged in
performing these services.
For fiscal year 1989 -90, the Budget shall reflect
operating expenses calculated on the basis of maintaining,
training and equipping four (4) Response Teams, each comprised of I
six (6) persons available 24 hours a day.
6.2 Disbursements
The Treasurer shall draw checks or warrants upon
the approval and written order of the Board. The Board shall
requisition the payment of funds only upon approval of such
claims or disbursements in accordance with the rules and regu-
lations adopted by the Board.
6.3 Accounts
All funds shall be placed in accounts and the
receipt, transfer or disbursement of funds during the term of
this Agreement shall be accounted for in accordance with general- I
ly accepted accounting principles applicable to governmental
10 -31 -89 27.
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i •
entities. There shall be strict accountability for all funds.
All revenues and expenditures shall be reported annually to the
Board.
6.4 Expenditures Within Approved Annual Budget
All expenditures shall be within the designations
and limitations of the approved annual budget.
7.
LIABILITIES
7.1 Liabilities
The debts, liabilities and obligations of the
Authority shall not be considered the debts, liabilities or
obligations of any Participating Agency, except as otherwise
provided in this chapter.
7.2 Indemnification /Hold Harmless
A. Introduction
The provisions of this section control the
extent to which public entities receiving services pursuant to
this or related agreements are obligated to defend, indemnify and
— hold harmless the Authority, Provider Agencies, and their respec-
tive employees, officers, agents and representatives with respect
to any claim, litigation, liability, damage, injury, cost or
expense that is in any way related to the performance of hazard-
ous material emergency response services pursuant to this Agree-
went or the existence of a hazardous material emergency. Hazard-
ous material emergencies, by their nature, create a risk of
serious injury to persons or property damage over a wide area.
10 -31 -89 26.
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The risk of liability and /or litigation exists irrespective of
the skill and competence displayed by those attempting to resolve
the emergency. Persons who have suffered injury or property
damage as the result of a release of hazardous material are prone
to sue all persons and entities present at the scene of the
emergency and even non - negligent parties are likely to incur
substantial defense costs given the number of potential litigants
and the probable complexity of the litigation. Any response to a
hazardous material emergency carries with it a risk of substan-
tial liability given the toxic nature of the material involved,
the large number of people likely to be affected, and the per-
ceived. "deep pockets" of public entity defendants. Accordingly,
the Authority, Provider Agencies and their respective officers
and employees deserve substantial protection from liability and
litigation that is in any way related to the services provided
pursuant to this Agreement or related agreements. Moreover,
since Provider Agencies, Subscribers and County Contract Cities
provide, in advance, the personnel, equipment and funds necessary
to provide services pursuant to this Agreement, it is appropriate
to minimize their risks and obligations while increasing the
protection required from other public entities which do not make
the same financial commitment.
B. General Provisions
1. Each Participating Agency waives and
gives up any claim against, or right to sue, the Authority, any
Provider Agency, any other Participating Agency, or any of their
officers, employees or representatives, for any loss, damage or
10 -3 -89 29.
CDB1�030
0
injury that arises out of, or is in any way related, to the
performance of services rendered pursuant to this Agreement.
This waiver extends to liability for bodily injury, or property
damage, that may be sustained by the Participating Agency, or its
officers, employees, contractors or agents and which was proxi-
mately caused, in whole or in part, by the negligent act, conduct
or omission of the Authority, any Provider Agency, any other
Participating Agency, and/or their respective officers, employ-
ees, agents, contractors, representatives, or any third party.
However, this waiver does not extend to liability for bodily
injury or• property damage caused by the fraudulent or willful
conduct or any willful or negligent act which constitutes a
violation of a penal statute.
2. The indemnification provisions of this
section shall not require a Participating Agency to defend,
indemnify or hold harmless a Provider Agency with respect to any
workers' compensation claim filed against the Provider Agency
that arises out of, or is in any way related, to the performance
of services pursuant to this Agreement.
C. Provider Agencies, Subscribers
and County Contract Cities
With respect to hazardous material emergen-
cies within the boundaries of any Provider Agency, Subscriber, or
County Contract City, the Authority shall defend, indemnify, and
hold harmless the responding Provider Agency, the Subscriber, the
County Contract City and their respective officers, employees,
agents and representatives with respect to any loss, damage,
10 -31 -89 30.
CDB1 /030
injury, claim, litigation, or liability that arises out of, or is
in any way related, to the performance of Hazardous Material
Emergency Response Services pursuant to this Agreement. The
costs incurred by Authority in defending any Provider Agency,
Subscriber or County Contract City and the amount of any judgment
or award resulting from such -claim or litigation, shall be
advanced or reimbursed by the Provider Agencies and Subscribers
in accordance with their fair share percentage which shall be
increased, pro rata, if the combined fair share percentages of
the Provider Agencies and Subscribers is less than 1008 of the
total of all fair share percentages. 'For purposes of this
piovision'only, the County of Orange's fair share percentage
shall be the combined total of all County Contract Cities and.
that of the unincorporated area, County Contract Cities shall
not be required to directly contribute such costs and expenses.
The Provider Agency or Subscribez having
jurisdiction over the scene of the hazardous material emergency
shall defend, indemnify and hold harmless the Authority with
respect to any claim, litigation, loss, liability, damage, cost
or expense that arises out of, or is in any way related to, the
acts or omissions of the Provider Agency or Subscriber or their
respective officers, employees, agents or representatives, in the
course of providing police and fire services, containment or
clean -up services, or any other support service or activity
related to the hazardous material emergency.
10 -31 -89 31.
CD81 /030
D. Contract Agencies and Other Public Entities
Contract Agencies and public entities receiv-
ing services pursuant to an emergency services contract (Exhibit
D or similar) shall indemnify and hold harmless the Authority,
the responding Provider Agency, all Participating Agencies,
County Contract Cities and their respective officers, employees,
agents and representatives from and against any loss, litigation,
liability, injury, damage, claim, lawsuit, cost or expense
arising out of, or in any way related to, the performance of
services pursuant to this agreement, the contracts attached as
Exhibits C and D or similar, or the existence of a hazardous
material emergency to which the Authority and /or a Provider
Agency has responded. The obligations of a Contract Agency or
other public entity, pursuant to this section shall extend to any
loss, injury, liability, damage, claim, lawsuit, cost or expense
alleged to have been proximately caused by the sole and exclusive
negligence of Authority, the responding Provider Agency, or their
respective officers, employees, agents and representatives. In
the event that a judgment or award is imposed on the Authority,
any,Provider Agency, any Participating Agency, any County Con.
tract City, or any of their employees, officers, agents or
representatives, in any litigation or proceeding for which a
Contract Agency or other public entity has defense and indemni-
fication obligations pursuant to the subsection, the Contract
Agency or other public entity shall fully satisfy any judgment or
award and shall fully indemnify the Authority, Provider Agencies
and all Participating Agencies and County Contract Agencies, as
10 -31 -89 32.
CDB1 /030
well as their respective officers, employees, agents and rep-
resentatives with respect to any such judgment, liability or
award.
ADMISSION AND WITHDRAWAL OF PARTICIPATING AGENCY
8.1 New Participating Agencies
Public entities may become Participating Agencies
in the Authority upon such terms and conditions as are specified
in this Agreement and /or related Agreements.
•8.2 Withdrawal
A. A Provider Agency may withdraw from the
Authority and terminate its obligations under this Agreement upon
the giving of written notice to the Authority no later than
December 31 prior to the fiscal year in which the Provider Agency
is to withdraw from the Authority. Written notice shall be
accompanied by a Resolution or minute order which authorizes the
withdrawal by the governing body of the Provider Agency.
B. A Provider Agency which has given notice of
its intention to withdraw may become a Subscriber or Contract
Agency upon written notice to the Authority, given no later than
December 31, of its intent to alter its status accompanied by a
Resolution or minute order which authorizes execution of the
appropriate contract.
C. If County has given notice of its intention
to withdraw as a Provider Agency, all obligations of Authority
and others to County Contract Cities under this Agreement shall
10 -31 -89 33.
CDB1 /030
cease unless and until such a County Contract City becomes a
Participating Agency hereunder.
D. Subscriber or Contract Agencies may withdraw
from the Authority, terminate services, or alter their status as
Subscriber or Contract Agencies in any prospective fiscal year by
giving the Board and all other Participating Agencies written
notice of such intention to withdraw or alter status on or before
December 31 of any year.
E. Subscribers or Contract Agencies shall be
considered to have withdrawn from the Authority if they have
breached their Subscription Agreement /Contract and Authority has
exercised its option to terminate the Subscription Agree-
ment /Contract.
F. Subsequent to withdrawal or termination,
Participating Agencies shall have a continuing responsibility to
perform the duties and obligations required by this Agreement and
which are based on facts, events, or occurrences that predate
withdrawal or termination.
G. Any Participating Agency which has withdrawn,
from the Authority or which has altered its status shall automat-
ically forfeit its representation on the Board.
IM
TERMINATION AND DISPOSITION OF ASSETS
9.1 Termination
The Authority shall continue to exercise the Joint
Powers specified in this Agreement until termination. This
10 -31 -89 34,
CDBI1030
Agreement shall terminate if a majority of the Provider Agencies
give the Authority notice of their intent to withdraw from the
Authority in accordance with Section 8.2 of this Agreement, or if
the Provider Agencies mutually agree to terminate this Agreement.
9.2 Distribution of Property
In the event of the termination of this Agreement,
any property or funds remaining in the Authority shall be dis-
bursed first to reimburse Provider Agencies as specified in
Sections 5.7 and 5.8, and any remaining funds shall be dis-
tributed to the Provider Agencies and Subscribers in accordance
with their then current fair share percentage.
10.
MISCELLANEOUS
10.1 Amendments
This Agreement may be amended with the approval of
ail of the Provider Agencies.
10.2 Notice
Any notice or instrument required to be given or
delivered pursuant to this Agreement shall be deemed given when
personally delivered to the Authority or deposited in the United
States Mail, first class postage pre -paid, and properly addressed
to the principal office of the Agency or Authority..
10.3 Partial Invalidity
If one or more of the sections, paragraphs or
provisions of this Agreement is determined to be invalid or
10 -31 -89 35.
CDB1 /030
4
unenforceable by a Court of competent jurisdiction, each and all
of the remaining provisions, sections and paragraphs shall not be
affected and shall continue to be valid and enforceable to the
fullest extent permitted by law, unless the invalidity affects
the substantial rights or duties of the parties, and provided
that such remaining portions or provisions can be construed in
substance to constitute the Agreement that the parties intended
in the first instance.
10.4 Successors
This Agreement shall inure to the benefit of and
be binding upon any successors or assigns of the Participating
/I
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J!
!1
/1
JJ
/J I
10 -31 -89 36.
CDB1 /030
Agencies, including any Fire Protection District which may be
formed to succeed a Participating Agency.
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be executed and attested by their duly executed officers, and
to have their official seals affixed hereto, as of the date first
stated above.
CITY OF NEWPORT BEACH
9a
Dated: % 19fo
Mayor
ATTEST:
By: o
City Clerk
APPROVE /ASS TO FORM:
$obert H. Burnham
City Attorney
Dated: .yl 1989
ATTEST:
By
i y Cler c
APPROVED AS TO FORM:
By: - - -- -
City
Dated: -7�e' / 1989
CITY OF SANTA ANA
City manager
CITY OF ANAHEIM
Mayor
ATTEST:
F--
By: �.. -
City Clerk
1 10 -31 -89 37.
CDB1 /030
�
1
Agencies, including any Fire Protection District which may be
formed to succeed a Participating Agency.
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be executed and attested by their duly executed officers, and
to have their official seals affixed hereto, as of the date first
stated above.
CITY OF NEWPORT BEACH
9a
Dated: % 19fo
Mayor
ATTEST:
By: o
City Clerk
APPROVE /ASS TO FORM:
$obert H. Burnham
City Attorney
Dated: .yl 1989
ATTEST:
By
i y Cler c
APPROVED AS TO FORM:
By: - - -- -
City
Dated: -7�e' / 1989
CITY OF SANTA ANA
City manager
CITY OF ANAHEIM
Mayor
ATTEST:
F--
By: �.. -
City Clerk
1 10 -31 -89 37.
CDB1 /030
APPROVED AS TO FORM:
C.
B �
44tay Attorn y
O
Dated: % 19
ATTEST-
By: 47,. . !/�wG4 " 0
City Clerk
APPROVE//DD AS TOE� FORM:
By: & "2xwA�
Cit - ttorney
/- 24 Gam!*
Dated: //- i2 S , 1989
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
THE BOARD
C)
CITY OF HUNTINGTON BEACH
yor
COUNTY OF ORANGE, a political
Subdivision of the State of
California
Chairman of the Board of
Supervisors
By:
Linda D. Ruth
Clerk of the Board of Supervisors
of Orange County, California
APPROVED AS TO FORM:
ADRIAN,KUYPER, COUNTY COUNSEL
By: _ LY�4jl Oulzl7t,
Carol D. Brown, Deputy
10 -31 -89 38.
CDB1 /030
CIT,OF NEWPORT #tACH
OFFICE OF THE CITY CLERK
P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915
September 12, 1989
Mr. Jeff Bowman, Fire Chief
City of Anaheim
500 E. Broad
Anaheim, CA 92805
Dear Mr. Bowman:
(714) 644 -3005
Enclosed please find five (5) copies of the Joint Exercise of
Powers Agreement creating the Orange County -City Hazardous
Material Emergency Response Authority, which was approved by the
City Council of Newport Beach on July 24, 1989.
Please present these agreements to your City Council for
approval, and upon approval of your Council, please forward them
to one of the cities listed for their signature.
Upon execution by the Board of Supervisors, please request they
return one fully executed copy to the City of Newport Beach for
our files.
Sincerely,
Wanda E. Raggio
City Clerk
3300 Newport Boulevard, Newport Beach
STATE OF CALIFORNIA
COUNTY OF ORANGE ss.
CITY OF ANAHEIM
CITY OF ANAHEIM, CALIFORNIA 92803
OFFICE OF THE CITY CLERK
W 1AGE
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that,
upon motion duly made and seconded, the attached Agreement with the party(ies)
named below was approved by the City Council of the City of Anaheim at a
regular meeting of said City Council on the date listed below:
DATE OF APPROVAL: December 12, 1989
CONTRACTING PARTY(IES): Joint Exercise of Powers Agreement - City
of Huntington Reach; City of Newport Beach;
City of Santa Ana; City of Anaheim and
County of Orange
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal
of the City of Anaheim on the Date of Approval above set forth.
Original Signed By
LEONORA M SOHL
City Clerk
CITY CLERK OF THE CITY OF ANAHEIM
(SEkL)
z7ALI
200 South Anaheim Boule%-ard, P. O. Box 3222, (714) 999-5166
i,Y TN- KATY COUNCIL
CITY I)[ :iZWPORT BEAM NEWPORT BEACH FIRE DEPARTMENT
JUL 2 4 1989 July 24, 1989
__A_PPROVE�
__ - -- Council Agenda
Item No. F -3(a)
TO: Mayor and City Council
FROM: J. M. Reed, Fire Chief
SUBJECT: Joint Powers Agreement Creating the Orange County -
City Hazardous Materials Emergency Response
Authority
Recommendation
Authorize the Mayor to sign the Joint Powers Agreement
Creating the Orange County -City Hazardous Materials Emergency
Response Authority.
Fiscal Impact•
No new costs to the City.
$278,000.
Discussion:
May produce revenue up to
There are now in operation, four hazardous materials response
teams in Orange County. Those teams are staffed and operated
by the fire departments in Anaheim, Santa Ana, Orange County
and a joint team between Newport Beach and Huntington Beach.
The funding for these teams is the responsibility of each
Agency.
This JPA Agreement will provide a formula for all of the
other cities in the County to share in the cost of funding
this service. The estimated cost for fiscal year 1989 -90 is
$3.8 million for the four teams. If the Joint Powers
Agreement is approved, each city will pay its fair share of
that cost. The percentage each city would pay is determined
by the population and the assessed valuation of that city.
If a city does not chose to pay their fair share, they can
agree to pay an hourly rate when a hazardous materials team
responds to an emergency in their city. The hourly rate is
estimated to be $5200 per hour.
0
9
The Joint Powers Authority will be governed by a seven member
board of directors. A board member will be appointed by each
of the agencies with response teams. The cities of
Huntington Beach and Newport Beach will appoint a board
member on alternate years. The cities that agree to pay
their fair share will appoint the other three board members.
The Board will govern the authority consistent with orange
County Hazardous Waste Management Plan and the Orange County
Fire Chief's Hazardous Materials Response Plan.
Respectfully submitted,
w�
M.
RE
ire Chief
JMR:rw
2