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HomeMy WebLinkAboutC-3011 - MOU for Airborne Law Enforcement Services (ABLE)0�� State of California Secretary of State S I A I LMLI I I U1- f AG 15 ROSTER OF PUBLIC AGENCIES FILING (Government Code section 53051) Instructions: 1. Complete and mail to: Secretary of State, P.O. Box 942877, Sacramento, CA 94277 -0001 (916) 653 -3984 2. A street address must be given as the official mailing address or as the address of the presiding officer. 3. Complete addresses as required. FILED Saaetary of state State of Callfomia MAY 13 2093 (Office Use Only) 4, If you need additional space, attach information on an 81 /z" X 11" page, one sided and legible. New Filing Q Update E] Legal name of Public Agency: Airborne Law Enforcement Services Nature of Update: Termination, dissolution and disbanding of Joint Powers Aqencv County: urange Official Mailing Address: P.O. Box 7000, Newport Beach, CA 92658 -7000 Name and Address of each member of the governing board: Chairman, President or other Presiding Officer (indicate Title): Chairman Name: Jay johrison Address: 870 Santa Barbara Dr.( PO Box 7000 Newpon Beach, CA 92658 -7000 Secretary or Clerk (indicate Title): Secretary Name: Emily Jan Bledstein Address: 870 Santa Barbara Dr./ PO Box 7000 Newport Beach, CA 92658 -7000 Members: Name: Tom Gazsi Address: 99 Pair Drive, Costa Mesa, CA 92626 Name: dale Johnson Address: 870 Santa Barbara or,/ P4 Box 7000 Newport Beach, CA 92658 Name: Lester Goaer ty Address: - P9 Pair Drive, Costa Mesa, CA 92626 A Name: _ Address: Name: Address: %%2015 RETURN ACKNOWLEDGMENT TO: (Type or Print) _� Date f NAME City of Newport Beach Police Department ADDRESS PO Box 7000 Newport Beach, CA 92658 -7000 OlTYtSTATGZIP � Emily Jan Bledstein, Secretary � Y Y Typed Name and Title SEUSI ATC NPtNP.0.5 in' V, U }��) A State ®f California FILE NO. Secretary of State ^ -- �. Mary Of State AMENDMENT OF A JOINT POWERS AGREEMENT State ofCaBifornle (Government Code section 6503.5) KAY 13 2093 Instructions: 1. Complete and mail to: Secretary of State, P.O. Box 942877, Sacramento, CA 94277 -0001. 2. Include filing fee of $1.00. (office use only) 3. Do not include attachments. 4. A copy of the full text of the joint powers agreement and amendments, if any, must be submitted to the State Controller's office. For address information, contact the State Controller's office at www.sco.ca.gov. Date of filing initial notice with the Secretary of State: November 15, 1993 File number of initial notice: 1347 Name of the agency or entity created under the agreement and responsible for the administration of the agreement: Airborne Law Enforcement Services Agency's or Entity's Mailing Address: P.O. Box 7000, Newport Beach, CA 92658 -7000 Title of the agreement: Resolution of the Board of Governors for the Airborne Law Enforcement Service Joint Powers Agency Terminating, Dissolving and Disban Complete one or more boxes below. The agreement has been amended to: [ ] Change the parties to the agreement as follows: [ ] Change the name of the administering agency or entity as follows: [ ] Change the purpose of the agreement or the powers to be exercised as follows: [ ] Change the short title of the agreement as follows: [ X) Make other changes to the agreement as follows: Terminate / RETURN ACKNOWLEDGMENT TO: (Type or Print) Dq �23>/,? -o Date NAME r Newport Beach Police Dept. Attn: Emily Jan Bledstein =i ADDRESS P.O. Box 7000 Signatr --- T CITY/STATE/Zip L Newport Beach, CA 92658 - 7000]. Emily Jan Bledstein, Secretary Typed Name and Title SMSTATE NPISF 4045 (REV. 1012010) .ing AIRBORNE LAW ENFORCEMENT SERVICES FINANCIAL STATEMENTS WITH REPORT ON AUDIT BYINDEPENDENT PUBLIC ACCOUNTANTS FOR THE PERIOD FROM JULY 1, 2012 THROUGH DECEMBER 31, 2012 (DATE OF DISSOLUTION) (This page intentionally left blank) AIRBORNE LAW ENFORCEMENT SERVICES TABLE OF CONTENTS For the period from July 1, 2012 through December 31, 2012 Page Number Independent Auditors' Report 1 - 2 Basic Financial Statements: Government -wide Financial Statements: 3 Statement of Net Assets 4 Statement of Activities 5 Fund Financial Statements: 7 Balance Sheet - Governmental Funds 8 Reconciliation of the Governmental Funds Balance Sheet to the Statement of Net Assets 9 Statement of Revenues, Expenditures and Changes in Fund Balances - Governmental Funds 10 Reconciliation of the Governmental Funds Statement of Revenues, Expenditures and Changes in Fund Balances to the Statement of Activities 11 Notes to the Basic Financial Statements 13-20 (This page intentionally left blank) INDEPENDENT AUDITORS' REPORT The Board of Directors Airborne Law Enforcement Services Costa Mesa, California Report of the Financial Statements We have audited the accompanying financial statements of the governmental activities and each major fund of the Airborne Law Enforcement Services (ABLE), as of and for period from July 1, 2012 to December '31,2012 (date of dissolution), which collectively comprise ABLE's basic financial statements, as listed in the table of contents. Management's Responsibility for the Financial Statements Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of the financial statements that are free of material misstatement, whether due to fraud or error. Auditor's Responsibility Our responsibility is to express opinions on these financial statements based on our audit. We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement. An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditor's judgment, including the assessment of the risks of material misstatements of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers the internal control relevant to the ABLE's preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion . on the effectiveness of the ABLE's internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for out audit opinions. 2875 Michelle Drive, Suite 300, Irvine, CA 92606 ^ Tel. 714.978.1300 a Pax: 714.978.7893 Offices located. in Orange and San D ego Counties Opinion In our opinion, the financial statements referred to above present fairly, in all material respects, the respective financial position of the governmental activities and each major fund of ABLE as of December 31, 2012, and the respective changes in financial position thereof for the year then ended in conformity with accounting principles generally accepted in the United States of America. Emphasis -of- Matter As discussed in Note 5 to the financial statements, ABLE was dissolved as of December 31, 2012. Our opinion is not modified with, respect to this matter. Management's Discussion and Analysis Management has not presented the management's discussion and analysis that governmental accounting principles generally accepted in the United States of America require to be presented to supplement the basic financial statements. Such missing information, although not a part of the basic financial statements, is required by the Governmental Accounting Standards Board, who considers it to be an essential part of financial reporting for placing the basic financial statements in an appropriate operational, economic, or historical context. Our opinion on the basic financial statements is not affected by this missing information. Irvine, California February 12, 2013 -2- GOVERNMENT -WIDE FINANCIAL STATEMENTS -3- AIRBORNE LAW ENFORCEMENT SERVICES STATEMENT OF NET ASSETS December 31, 2012 ASSETS: Cash and investments (Note 2) Accounts receivable TOTAL ASSETS LIABILITIES: Accounts payable Sales tax payable Payable to joint powers members (Note 5) TOTAL LIABILITIES NET ASSETS: Unrestricted TOTAL NET ASSETS Governmental Activities $ 5,108,639 1,013 5,109,652 2,300 3,722 5,103,630 5,109,652 See independent auditors' report and notes to the basic financial statements. AIRBORNE LAW ENFORCEMENT SERVICES STATEMENT OF ACTIVITIES For the period from July 1, 2012 through December 31, 2012 Functionslprogranis Expenses Governmental activities: Law enforcement $ 142,862 Total governmental Program Revenues Charges Operating Capital for Grants and Grants and Services Contributions Contributions activities $ 142,862 General revenues: Investment income Gain on disposal of assets Other Total general revenues Net (Expenses) Revenues and Changes in Net Assets Governmental Activities - $ - $ (142,862) Change in net assets, before extraordinary item $ (142,862) Extraordinary item: Final payment to joint powers members Change in net assets NET ASSETS AT JULY 1, 2012, AS RESTATED (NOTE 4) NET ASSETS AT DECEMBER 31„ 2012 See independent auditors' report and notes to the basic financial statements. -5- 18,540 6,531 200,344 225,415 82,553 (5,103,630) (5,021,077) 5,021,077 (This page intentionally left blank) FUND FINANCIAL STATEMENTS -7- AIRBORNE LAW ENFORCEMENT SERVICES BALANCE SHEET GOVERNMENTALFUNDS December 31, 2012 ASSETS: Cash and investments Accounts receivable TOTAL ASSETS LIABILITIES: Accounts payable Sales tax payable Payable to joint powers members {Note 5} TOTAL LIABILITIES Capital Total General Projects Governmental Fund Fund Funds $ 1,886,370 $ 3,222,269 $ 5,108,639 1,013 - 1,013 $ 1,887,383 $ 3,222,269 $ 5,109,652 $ 2,300 $ - $ 2,300 3,722 - 3,722 1,881,361 3,222,269 5,103,630 $ 1,887,383 $ 3,222,269 $ 5,109,652 See independent auditors' report and notes to the basic financial statements. -8- AIRBORNE LAW ENFORCEMENT SERVICES RECONCILIATION OF THE GOVERNMENTAL FUNDS BALANCE SHEET TO THE STATEMENT OF NET ASSETS December 31, 2012 There are no reconciling items between net assets of governmental activities on the Statement of Net Assets and fund balances on the governmental funds balance sheet. See independent auditors' report and notes to the basic financial statements. -9- AIRBORNE LAW ENFORCEMENT SERVICES STATEMENT OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCES GOVERNMENTAL FUNDS For the period from July 1, 2012 through December 31, 2012 REVENUES: Investment income Other TOTAL REVENUES EXPENDITURES: Financial and administrative Labor and maintenance Insurance Fuel Supplies, tools and materials Rent TOTAL EXPENDITURES EXCESS (DEFICIENCY) OF REVENUES OVER (UNDER) EXPENDITURES OTHER FINANCING SOURCES: Sale of capital assets NET CHANGE IN FUND BALANCES, BEFORE EXTRAORDINARY ITEM EXTRAORDINARY ITEM: Final payment to joint powers members NET CFIANGE IN FUND BALANCES FUND BALANCES AT JULY 1, 2012, Capital Total General Projects Governmental Fund Fund Funds $ 7,036 $ 11,504 $ 18,540 200,344 - 200,344 207,380 11,504 218,884 5,571 70,311 1,500 19,840 538 27,203 124,963 82,417 60,230 142,647 - 5,571 - 70,311 - 1,500 - 19,840 - 538 - 27,203 - 124,963 11,504 93,921 60,230 11,504 154,151 (1,881,361) (3,222,269) (5,103,630) (1,738,714) (3,210,765) (4,949,479) AS RESTATED (NOTE 4) 1,738,714 3,210,765 4,949,479 FUND BALANCES AT DECEMBER 31, 2012 $ - $ - $ - See independent auditors' report and notes to the basic financial statements. -10- AIRBORNE LAW ENFORCEMENT SERVICES RECONCILIATION OF THE GOVERNMENTAL FUNDS STATEMENT OF REVENUES, EXPENDITURES AND CHANGES IN FUND BALANCES TO T14E STATEMENT OF ACTIVITIES For the period from July 1, 2012 through December 31, 2012 Net change in fund balances - total governmental funds $ (4,949,479) Amounts reported for governmental activities in the Statement of Activities are different because: When capital assets that are to be used in governmental activities are purchased or constructed, the resources expended for those assets are reported as expenditures in governmental funds. However, in the Statement of Activities, the cost of those assets is allocated over their estimated useful lives and reported as depreciation expense. As a result, fund balance decreases by the amount of financial resources expended, whereas net assets decreased by the amount of depreciation expense charged for the year. In the Statement of Activities, only the gain on the sale of capital assets is reported. However, in the governmental funds, the proceeds from the sale increase financial resources. Thus, the change in the net assets differs from the change in fund balance by the cost of capital assets sold. Depreciation expense (17 „899) Transfer of of capital assets to the City of Costa Mesa (53,699) Change in net assets of governmental activities $ (5,021,077) See independent auditors' report and notes to the basic financial statements. -II - (This page intentionally left blank) -12- AIRBORNE LAW ENFORCEMENT SERVICES NOTES TO THE BASIC FINTANCIAL STATEMENTS For the period from July 1, 2012 through December 31, 2012 REPORTING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: The accounting policies of Airborne Law Enforcement Services ('hereinafter referred to as "ABLE ") conform to accounting principles generally accepted in the United States of America for local governmental units. The following is a summary of the significant policies. A. Description of the Reporting Entity: ABLE was created as a joint venture involving the City of Costa Mesa ( "Costa Mesa ") and the City of Newport Beach ( "Newport Beach "), collectively referred to as "Member Agencies ". The purpose of ABLE is to use the equipment and personnel of the member agencies in order to provide regional law enforcement helicopter services to their respective jurisdictions. In February 2011, ABLE's Board of Directors made a decision to dissolve the joint venture and as of December 31, 2012, the entity has disposed of its assets and satisfied its obligations. B. Fund Accounting: The basic accounting and reporting entity is a "fund ". A fund is defined as an independent fiscal and accounting entity with a self - balancing set of accounts, recording resources, related liabilities, obligations, reserves and equities segregated for the purpose of carrying out specific activities or attaining certain objectives in accordance with special regulations, restrictions, or limitations. The accounting records of ABLE are organized on the basis of funds. The following funds have been classified as major governmental funds: General Fund The general fund is the general operating fund of ABLE. All general revenues and other receipts that are not allocated by law or contractual agreement to some other fund are accounted for in this fund. Expenditures of this fund include the general operating expenditures and other costs which are not paid through other funds. Capital Projects Fund The Helicopter Replacement Fund is used to account for financial resources segregated for major capital acquisitions. See independent auditors' report. -13- AIRBORNE LAW ENFORCEMENT SERVICES NOTES TO THE BASIC FINANCIAL STATEMENTS (CONTINUED) For the period from July 1, 2012 through December 31, 2012 1, REPOWFING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED): C. Basis of Accounting and Measurement Focus: The basic financial statements of ABLE are composed of the following: • Government -wide financial statements • Fund financial statements • Notes to the basic financial statements Government -wide Financial Statements Government -wide financial statements display information about ABLE as a whole. All activities of ABLE are classified as governmental activities. Government -wide financial statements are presented using the economic resources measurement focus and the accrual basis of accounting. Under the economic resources measurement focus, all (both current and Ion,--term) economic resources and obligations of the reporting government are reported in the government -wide financial statements. Basis of accounting refers to when revenues and expenditures are recognized in the accounts and reported in the financial statements. Under the accrual basis of accounting, revenues, expenses, gains, losses, assets and liabilities resulting from nonexchange transactions are recognized in accordance with the requirements of GAS Statement No, 33. Program revenues include charges for services, special assessments, and payments made by parties outside of the reporting government's citizenry if that money is restricted to a particular program. Program revenues are netted with program expenses in the statement of activities to present the net cost of each program. Amounts paid to acquire capital assets are capitalized assets in the government -wide financial statements, rather than reported as an expenditure. Fund Financial Statements The underlying accounting system of ABLE is organized and operated on the basis of separate funds, each of which is considered to be a separate accounting entity. The operations of each fund are accounted for with a separate set of self - balancing accounts that comprise its assets, liabilities, fund equity, revenues and expenditures or expenses, as appropriate. Governmental resources are allocated to and accounted for in individual funds based upon the purposes for which they are to be spent and the means by which spending activities are controlled. See independent auditors' report. -14- AIRBORNE LAW ENFORCEMENT SERVICES NOTES TO THE BASIC FINANCIAL STATEMENTS (CONTINUED) For the period from July 1, 2012 through December 31, 2012 1, REPORTING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED): C. Basis of Accounting and Measurement Focus (Continued): Fund Financial Statements (Continued) Fund financial statements for ABLE's governmental funds are presented after the government -wide financial statements. These statements display information about governmental major funds individually. Governmental Funds In the fund financial statements, governmental funds are presented using the modified - accrual basis of accounting. Their revenues are recognized when they become measurable and available as net current assets. Measurable means that the amounts can be estimated, or otherwise determined. Available means that the amounts were collected during the reporting period or soon enough thereafter to be available to finance the expenditures accrued for the reporting period. ABLE generally considers revenues collected within sixty days after the fiscal year -end to be available. Revenue recognition is subject to the measurable and availability criteria for the governmental funds in the fund financial statements. Exchange transactions are recognized as revenues in the period in which they are earned (i.e., the related goods or services are provided). Imposed non - exchange transactions are recognized as revenues in the period for which they were imposed. If the period of use is not specified, they are recognized as revenues when an enforceable legal claim to the revenues arises or when they are received, whichever occurs first. Government- mandated and voluntary non - exchange transactions are recognized as revenues when all applicable eligibility requirements have been met. In the fund financial statements, governmental funds are presented using the current financial resources measurement focus This means that only current assets and current liabilities are generally included on their balance sheets. The reported fund balance (net current assets) is considered to be a measure of "available spendable resources ". Governmental fund operating statements present increases (revenues and other financing sources) and decreases (expenditures and other financing uses) in net current assets. Accordingly, they are said to present a summary of sources and uses of "available spendable resources" during a period. Amounts expended to acquire capital assets are recorded as expenditures in the year that resources were expended, rather than as fund assets. The proceeds of long -term indebtedness are recorded as otherfinancing sources rather than as a fund liability. Amounts paid to reduce long -term indebtedness are reported as fund expenditures. See independent auditors' report. - Is- AIRBORNE LAW ENFORCEMENT SERVICES NOTES TO THE BASIC FINANCIAL STATEMENTS (CONTINUED) For the period from July 1, 2012 through December 31, 2012 1. REPORTING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED): D. Cash and Investments: Investments are reported in the accompanying financial statements at fair value. Changes in fair value that occur during a fiscal year are recognized as investment income reported for that fiscal year. Investment income includes interest earnings, changes in fair value, and any gains or losses realized upon the liquidation, maturity, or sale of investments. E. Capital Assets: Capital assets are recorded at historical cost at the time of purchase. Assets acquired from gifts of contributions are recorded at fair market value on the date received. Generally, capital asset purchases in excess of $5,000 are capitalized if they have an expected useful life of 2 years or more. Capital assets used in operations are depreciated in the government -wide financial statements. Depreciation of such assets is computed using the straight -line method over the estimated useful lives noted below and charged to operations: Helicopters 10 years FLIR System 7 years Other helicopter equipment 5 years As described in Note 5, ABLE's Board of Directors made a decision to dissolve the joint venture. As a result, the remaining capital assets which consisted of helicopter parts were sold and ABLE received a total of $60,230 for the sale of capital assets which consisted of $24,539 received from the City of Costa Mesa, and $35,691 from other vendors. The net value in the amount of $53,699 for the FLIR System was transferred to the City of Costa Mesa to be sold to a third party or donated to the Orange County Sheiriff. If the FLIR System is sold, the proceeds will be distributed equally between the City of Costa Mesa and the City of Newport Beach. F. Fund Equity: Due to the implementation of GASB No. 54, the components of the fund balances of governmental funds reflect the component classifications described below. The fund balances are reported in the fund statements in the following classifications: Nonspendable Fund Balance - this includes amounts that cannot be spent because they are either not spendable in form (such as inventory) or legally or contractually required to be maintained intact (such as endowments). See independent auditors' report. -16- AIRBORNE LAW ENFORCEMENT SERVICES NOTES TO THE BASIC FINANCIAL STATEMENTS (CONTINUED) For the period from July 1, 2012 through December 31, 2012 1. REPORTING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED): F. Fund Equity (Continued): Assigned Fund Balance - this includes amounts that are designated or expressed by the Board, but does not require a formal action like a resolution or ordinance. The Board may delegate the ability of an employee or committee to assign uses of specific funds, for specific purposes. Such delegation of authority has not yet been granted to persons or bodies other than the .Board of Directors. Unassaened Fund Balance - this includes the remaining spendable amounts which are not included in one of the other classifications. It is ABLE's policy that restricted resources will be applied first, followed by (in order of application) committed, assigned, and unassigned resources, in the absence of a formal policy adopted by the Board. G. '[Ise of Estimates: The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect certain reported amounts and disclosures. Accordingly, actual results could differ from those estimates. 1 CASB AND INVESTMENTS: Cash and Investments Cash and investments at December 31, 2012 are classified in the accompanying Statement of Net Assets as follows: Cash and investments Cash and investments held at December 31, 2012 consisted of the following: Equity in City of Costa Mesa investment pool L, 5.10$.639 See independent auditors' report. -17- AIRBORNE: LAW ENFORCEMENT SERVICES NOTES TO THE BASIC FINANCIAL STATEMENTS (CONTINUED) For the period from July 1, 2012 through December 31, 2012 2, CASH AND INVESTMENTS (CONTINUED): Equity in Cash and Investment Pool of the City of Costa Mesa ABLE does not have a separate bank account; however, ABLE's cash and investments are maintained in an investment pool managed by the City of Costa Mesa. ABLE is a voluntary participant in that pool. This pool is governed by and under the regulatory oversight of the Investment Policy adopted by the City Council of the City of Costa Mesa. ABLE has not adopted an investment policy separate from that of the City of Costa Mesa. The fair value of ABLE's investment in this pool is reported in the accompanying financial statements at amounts based upon ABLE's pro -rata share of the fair value calculated by the City for the entire City portfolio. The balance available for withdrawal is based on the accounting records maintained by the City, which are recorded on an original cost basis. Disclosures Relating to Interest Rate Risk Interest rate risk is the risk that changes in market interest rates will adversely affect the fair value of an investment. Generally, the longer the maturity of an investment is, the greater the sensitivity of its fair value to changes in market interest rates. One of the ways that the City of Costa Mesa manages its exposure to interest rate risk is by purchasing a combination of shorter term and longer term investments and by tinting cash flows from maturities so that a portion of the portfolio is maturing or coming close to maturity evenly over time as necessary to provide the cash flow and liquidity needed for operations_ Information about ABLE's exposure to interest rate risk as a result of its equity in the cash and investment pool of the City of Costa Mesa is not available as of December 31, 2012. Disclosures Relating to Credit Risk Generally, credit risk is the risk that an issuer of an investment will not fulfill its obligation to the holder of the investment. This is measured by the assignment of a rating by a nationally recognized statistical rating organization. Minimum ratings required by (where applicable) the California Government Code and the City of Costa Mesa's Investment Policy and the actual ratings as of December 31, 2012 are not available. Concentration of Credit Risk Investments in any one issuer (other than U.S. Treasury securities, mutual funds and investment pools) that represent 5% or more of total investments for the entire entity (or for each separate major fund or for other governmental funds in the aggregate) are not available as of December 31, 2012. See independent auditors' report. AIRBORNE LAW ENFORCEMENT SERVICES NOTES TO T14E BASIC FINANCIAL STATEMENTS (CONTINUED) For the period from July 1, 2012 through December 31, 2012 2. CASH AND INVESTMENTS (CONTINUED): Custodial. Credit Risk ABLE does not have any significant certificates of deposit or demand accounts that are subject to custodial credit risk disclosure (as defined by GASB Statement No. 40). ABLE does not have direct investments in securities subject to custodial credit risk disclosure (as defined by GASBB Statement No. 40). 3, CAPITALASSETS: A summary of changes in capital assets for the period ended December 31, 2012 is as follows: Capital assets, being depreciated: Helicopter equipment Less accumulated depreciation for: Helicopter equipment Capital assets, net Balance at Balance at July 1, 2012 Additions Deletions Deceniber3l 2012 $ 277,832 (277,832) (206,234) (17,900) 224.134 S-- 71.59g $ (17900) (5.3_.698)___.__._ _. Depreciation expense of $17,900 was charged to law enforcement. 4. PRIOR PERIOD ADJUSTMENT OF BEGINNING NET ASSETS AND FUND BALANCES: Net Assets The net assets balances at July 1, 2012 were restated as follows: Net assets as previously reported - July 1, 2012 $ 4,928,077 To adjust for sales tax payable accrued at June 30, 2012 for sale of capital assets. Net assets were restated to remove the payable as it was determined by ABLE's attorney that the sale was exempt from sales tax. 93,000 Net assets, as restated - July 1, 2012 5 02 ,Q7_.7 See independent auditors' report. EVE AIRBORNE LAW ENFORCEMENT SERVICES NOTES TO THE BASIC FINANCIAL STATEMENTS (CONTINUED) For the period from July 1, 2012 through December 31, 2012 4. PRIOR PERIOD ADJUSTMENT" OF BEGINNING NET ASSETS AND FUND BALANCES (CONTINUED): Fund Balances The fund balances at July 1, 2012 were restated as follows: General Fund Fund balances as previously reported - July 1, 2012 $ 1,645,714 Removal of sales tax payable accrued at June 30, 2012 93,000 Fund balances as restated - July 1, 2012 $ 1,738,71-4 5. DISSOLUTION OF ENTITY: In February 2011, ABLE's Board of Directors made a decision to dissolve the joint venture. At December 31, 2012, ABLE was able to dispose all of its inventories and capital assets except for one item, which was written off as a loss on disposal of assets. The joint venture is dissolved as of December 31, 2012, A payable to the joint powers members of $5103,630 has been recorded at December 31, 2012 to reflect the remaining funds available for distribution which will be allocated equally to the City of Costa Mesa and the City of Newport Beach. A payment in the amount of $2,551,815 was made to each of the Cities of Costa Mesa and Newport Beach on January 25, 2013. See independent auditors' report. -20- o, NJF0 .., .. ... qlw$� A y', AIRBORNE LAW ENFORCEMENT SERVICES REGULAR MEETING AGENDA NEWPORT BEACH POLICE DEPARTMENT CHIEF'S CONFERENCE ROOM 870 Santa Barbara Drive Newport Beach, CA 92660 March 12, 2013 1:00 PM Notice to the Public Any writings or documents not exempt under the California Public Records Act and which are provided to a majority of the Airborne Law Enforcement Agency Board Members regarding any item on this agenda will be made available for public inspection at the Newport Beach Police Department located at 870 Santa Barbara Drive, Newport Beach„ CA 92660 or the Costa Mesa Police Department located at 99 Fair Dr. Costa Mesa, CA 92626 during normal business hours. Regular meetings of the Board are generally held on the third Thursday of each month at 9:00 a.m. If you have any questions or require copies of any of the staff reports or other documentation regarding any item of business on the agenda, please contact Commander Tim Starn at (714) 754 -5046. It is the intention of Airborne Law Enforcement Services to comply with the Americans with Disabilities Act (ADA) in all respects. If, as an attendee or a participant at this meeting, you will need special assistance beyond what is normally provided, Airborne Law Enforcement Services will attempt to accommodate you in every reasonable manner. Please contact Tim Stam at (714) 754 -5046 at least 72 hours prior to the meeting to inform us of your particular needs and to determine if accommodation is feasible. AIRBORNE LAW ENFORCEMENT SERVICES BOARD AGENDA CHIEF'S CONFERENCE ROOM March 12, 2013 ROLL CALL: PUBLIC COMMENTS: Public comments are invited on non- agenda items generally considered to be within the subject matter jurisdiction of the Airborne Law Enforcement Services — Speakers must limit comments to 3- minutes. Before speaking, please state your name for the record. REQUESTS FOR CONTINUANCES: CONSENT CALENDAR ITEMS NO. 1: NOTICE TO THE PUBLIC All matters listed under CONSENT CALENDAR are considered by the Board to be routine and will all be enacted by one motion. The Board Members have received detailed staff reports on each of the items recommending an action. There will be no separate discussion of these items prior to the time the Board votes on the motion unless members of the Board, staff or the public request specific items to be discussed and /or removed from the Consent Calendar for separate action. Members of the public who wish to discuss a Consent Calendar item should, upon invitation by the Chairman, state their name and Consent Calendar Item number. 1. Minutes Regular Meeting of January 17, 2013. Recommendation: Approve END OF CONSENT CALENDARHEARING ITEMS 11 NEW BUSINESS ITEMS NOS. 2 -4 2. FLIR Ultra 8500 Status Update Summary: Costa Mesa PD has a FLIR Ultra 8500 listed for sale, previously owned by ABLE. Board member(s) to provide an update on the disposition of the FLIR. Recommendation: Provide Direction 3. Final ABLE Audited Financial Statements Summary: Review and discuss the final audited financial statements. Recommendation: Approve 4. Final Dissolution of ABLE Summary: Vote to authorize the dissolution of ABLE as a JPA, and authorize the ABLE Board Secretary to transmit copies of the resolution to City of Newport Beach and City of Costa Mesa, and any other agencies necessary. Recommendation: Approve 5. Additional Business A. Comments by Legal Counsel B. Comments by ABLE Commander s 3 0 V AIRBORNE LAW ENFORCEMENT SERVICES Basic Financial Statements Year ended June 30, 2014 (With Independent Auditors' Report Thereon) AIRBORNE LAW ENFORCEMENT SERVICES Basic Financial Statements Year ended June 30, 2010 TABLE OF CONTENTS Page Independent Auditors' Report 1 Basic Financial Statements: Government -wide Financial Statements: Statement of Net Assets 4 Statement of Activities 5 Fund Financial Statements: Governmental Funds: Balance Sheet 8 Reconciliation of the Balance Sheet of Governmental Funds to the Statement of Net Assets 9 Statement of Revenues, Expenditures and Changes in Fund Balances 10 Reconciliation of the Statement of Revenues, Expenditures and Changes in Fund Balances of Governmental Funds to the Statement of Activities I I Notes to the Basic Financial Statements 13 Required Supplementary Information: Schedule of Revenues, Expenditures and Changes in Fund Balances — Budget and Actual: General Fund 22 Note to Required Supplementary Information 23 Mayer Hoffman McCann P.C. An Independent CPA Firm 2301 Dupont Drive, Suite 200 Irvine, California 92612 949- 4742020 ph 949 - 263-5520 fx www.mhm- pc.com Board of Directors Airborne Law Enforcement Services Costa Mesa, California INDEPENDENT AUDITORS' REPORT We have audited the financial statements of the governmental activities and each major fund of Airborne Law Enforcement Services ( "ABLE ") as of and for the year ended June 30, 2010, which collectively comprise ABLE's basic financial statements as listed in the table of contents. These financial statements are the responsibility of the management of ABLE. Our responsibility is to express opinions on these financial statements based on our audit. The prior year partial comparative information has been derived from ABLE's basic financial statements for the year ended June 30, 2009 and, in our report dated December 11, 2009, we expressed an unqualified opinion an those financial statements. We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinions. In our opinion, the financial statements referred to above present fairly, in all material respects, the respective financial position of the governmental activities and each major fund of ABLE at June 30, 2010, and the respective changes in financial position of ABLE for the year then ended, in conformity with accounting principles generally accepted in the United States of America. ABLE has not presented management's discussion and analysis that accounting principles generally accepted in the United States of America has determined is necessary to supplement, although not required to be part of, the basic financial statements. Our audit was conducted for the purpose of forming opinions on the financial statements that collectively comprise Airborne Law Enforcement Services' basic financial statements. The required supplementary information is not a required part of the basic financial statements, but is supplementary information required by accounting principles generally accepted in the United States of America. This supplementary information is presented for purposes of additional analysis and is also not required part of the basic financial statements. The required supplemental information has been subject to the auditing procedures applied in the audit of the basic financial statements, and in our opinion, are fairly stated in all material respects in relation to the basic financial statements taken as a whole. Irvine, California December 8, 2010 GOVERNMENT -WIDE FINANCIAL STATEMENTS AIRBORNE LAW ENFORCEMENT SERVICES Statement of Net Assets June 30, 2010 (With Comparative Data for Prior Year) Assets: Cash and investments (note 2) Interest receivable Due from other governments Inventory Prepaid expenses Capital assets, net of accumulated depreciation (note 3) Total assets Liabilities: Accounts payable Total liabilities Net assets: Invested in capital assets Unrestricted Total net assets Governmental Activities 2010 2009 $ 3,626,466 3,182,325 16,291 22,366 346,368 176,340 167,074 157,751 88,010 17,138 1,141,274 1,602,170 5,385,483 5,158,090 131,944 78,409 131,944 78,409 1,141,274 1,602,170 4,112,265 3,477,511 $ 5,253,539 5,079,681 See accompanying notes to the basic financial statements. 4 AIRBORNE LAW ENFORCEMENT SERVICES Statement of Activities Year ended June 30, 2010 (With. Comparative Data for Prior Year) Prop-ram Revenues General revenues: Investment income Other Total general revenues Change in net assets Net assets at beginning of year Net assets at end of year 96,239 2,905 67,436 85,473 163,675 88,378 173,858 140,756 5,079,681 4,938,925 $ 5,253,539 5,079,681 See accompanying notes to the basic financial statements. 5 Operating Capital Charges for Contributions Contributions Net Governmental Activities Functions/Programs Expenses Services and Grants and Grants 2010 2009 Law enforcement $ 1,945,711 431,133 1,524,761 10,183 52,378 Total governmental activities $ 1,945,711 431,133 1,524,761 10,183 52,378 General revenues: Investment income Other Total general revenues Change in net assets Net assets at beginning of year Net assets at end of year 96,239 2,905 67,436 85,473 163,675 88,378 173,858 140,756 5,079,681 4,938,925 $ 5,253,539 5,079,681 See accompanying notes to the basic financial statements. 5 FUND FINANCIAL STATEMENTS AIRBORNE LAW ENFORCEMENT SERVICES Governmental Funds Balance Sheet June 30, 2010 (With Comparative Data for Prior Year) Assets Cash and investments (note 2) Interest receivable Due from other governments Inventory Prepaid expenses Total assets Liabilities and Fund Balances Liabilities: Accounts payable Total liabilities Fund balances: Reserved for: inventory Prepaid expenses Asset forfeiture Unreserved - undesignated, reported in: General Fund Capital Projects Fund Total fund balances Total liabilities and fund balances Capital General Projects Fund Fund $ 564,228 3,062,238 2,534 13,757 309,063 37,305 167,074 - 88,010 Totals 2010 2009 3,626,466 3,182,325 16,291 22,366 346,368 176,340 167,074 157,751 88,010 17,138 $ 1,130,909 3,113,300 4,244,209 3,555,920 $ 131,944 - 131,944 78,409 131,944 - 131,944 78,409 167,074 - 167,074 157,751 88,010 - 88,010 17,138 20,655 - 20,655 20,655 723,226 - 723,226 694,898 - 3,113,300 3,113,300 2,587,069 998,965 3,113,300 4,112,265 3,477,511 $ 1,130,909 3,113,300 4,244,209 3,555,920 See accompanying notes to the basic financial statements, 8 AIRBORNE LAW ENFORCEMENT SERVICES Governmental Funds Reconciliation of the Balance Sheet of Governmental Funds to the Statement of Net Assets June 30, 2010 Fund balances of governmental funds $ 4,112,265 Amounts reported for governmental activities in the Statement of Net Assets are different because: When capital assets that are to be used in governmental activities are purchased or constructed, the cost of those assets are reported as expenditures in governmental funds. However, the Statement of Net Assets includes those capital assets among the assets of ABLE as a whole. Capital assets 4,600,492 Accumulated depreciation (3,459,218) Net assets of governmental activities $ 5,253,539 See accompanying notes to the basic financial statements. 9 AIRBORNE LAW ENFORCEMENT SERVICES Governmental Funds Statement of Revenues, Expenditures and Changes in Fund Balances Year ended June 30, 2010 (With Comparative Data for Prior Year) Revenues: Charges to other agencies Contributions from member agencies Reimbursements from County of Orange Investment income Other Total revenues Expenditures: Financial and administrative Labor and maintenance Insurance Fuel Capital outlay Education and training Supplies, tools and materials Rent Total expenditures Excess (deficiency) of revenues over (under) expenditures Fund balances at beginning of year General Fund Capital Projects Fund Totals 2010 2009 $ 320,293 - 320,293 277,374 1,193,072 447,654 1,640,726 1,716,020 431,133 - 431,133 491,432 17,662 78,577 96,239 2,905 67,436 - 67,436 85,473 2,029,596 526,231 2,555,827 2,573,204 11,931 - 11,931 20,805 1,099,275 - 1,099,275 1,134,732 177,755 - 177,755 94,751 321,784 - 321,784 415,885 - - - 37,179 141,004 - 141,004 70,840 9,900 - 9,900 12,168 159,424 - 159,424 159,408 1,921,073 - 1,921,073 1,945,768 108,523 526,231 634,754 627,436 890,442 2,587,069 3,477,511 2,850,075 Fund balances at end of year $ 998,965 3,113,300 4,112,265 3,477,511 See accompanying notes to the basic financial statements. 10 AIRBORNE LAW ENFORCEMENT SERVICES Governmental Funds Reconciliation of the Statement of Revenues, Expenditures and Changes in Fund Balances of Governmental Funds to the Statement of Activities Year ended June 30, 2010 Net change in fund balances - total governmental funds $ 634,754 Amounts reported for governmental activities in the Statement of Activities are different because: When capital assets that are to be used in governmental activities are purchased or constructed, the resources expended for those assets are reported as expenditures in governmental funds. However, in the Statement of Activities, the cost of those assets is allocated over their estimated useful lives and reported as depreciation expense. As a result, fund balance decreases by the amount of financial resources expended, whereas net assets decreased by the amount of depreciation expense charged for the year. Depreciation expense (460 896) Change in net assets of governmental activities $ 173,858 See accompanying notes to the basic financial statements_ II AIRBORNE LAW ENFORCEMENT SERVICES Notes to the Basic Financial Statements Year ended June 30, 2010 (1) Summary of Significant Accounting Policies The accounting policies of Airborne Law Enforcement Services (hereinafter referred to as "ABLE ") conform to accounting principles generally accepted in the United States of America for local governmental units. The following is a summary of the significant policies. (a) Description of Reporting Entity ABLE currently operates as a joint venture involving the City of Costa Mesa ( "Costa Mesa ") and the City of Newport Beach ( "Newport Beach "), collectively referred to as "Member Agencies ". The purpose of ABLE is to use the equipment and personnel of the member agencies in order to provide regional law enforcement helicopter services to their respective jurisdictions. (b) Fund Accounting The basic accounting and reporting entity is a "fund". A fund is defined as an independent fiscal and accounting entity with a self - balancing set of accounts, recording resources, related liabilities, obligations, reserves and equities segregated for the purpose of carrying out specific activities or attaining certain objectives in accordance with special regulations, restrictions, or limitations. The accounting records of ABLE are organized on the basis of funds. The following funds have been classified as major governmental funds: General Fund The general fund is the general operating fund of ABLE. All general revenues and other receipts that are not allocated by law or contractual agreement to some other fund are accounted for in this fund. Expenditures of this fund include the general operating expenditures and other costs which are not paid through other funds. Capital Projects Fund The Helicopter Replacement Fund is used to account for financial resources segregated for major capital acquisitions. IN AIRBORNE LAW ENFORCEMENT SERVICES Notes to the Basic Financial Statements (Continued) (1) Summary of Significant Accountine Policies, (Continued) (c) Measurement Focus and Basis of Aceountine The basic financial statements of ABLE are composed of the following: • Government -wide financial statements • Fund financial statements • Notes to the basic financial statements Government -wide Financial Statements Government -wide financial statements display information about ABLE as a whole. All activities of ABLE are classified as governmental activities. Government -wide financial statements are presented using the economic resources measurement focus and the accrual basis of accounting. Under the economic resources measurement focus, all (both current and long -term) economic resources and obligations of the reporting government are reported in the government -wide financial statements. Basis of accounting refers to when revenues and expenditures are recognized in the accounts and reported in the financial statements. Under the accrual basis of accounting, revenues, expenses, gains, losses, assets and liabilities resulting from nonexchange transactions are recognized in accordance with the requirements of GASB Statement No. 33. Program revenues include charges for services, special assessments, and payments made by parties outside of the reporting government's citizenry if that money is restricted to a particular program. Program revenues are netted with program expenses in the statement of activities to present the net cost of each program. Amounts paid to acquire capital assets are capitalized assets in the government - wide financial statements, rather than reported as an expenditure. Fund Financial Statements The underlying accounting system of ABLE is organized and operated on the basis of separate funds, each of which is considered to be a separate accounting entity. The operations of each fund are accounted for with a separate set of self - balancing accounts that comprise its assets, liabilities, fund equity, revenues and expenditures or expenses, as appropriate. Governmental resources are allocated to and accounted for in individual fiords based upon the purposes for which they are to be spent and the means by which spending activities are controlled. 14 AIRBORNE LAW ENFORCEMENT SERVICES Notes to the Basic Financial Statements (Continued) (1) Summary of Significant Accounting Policies, (Continued) Fund financial statements for ABLE's governmental funds are presented after the government -wide financial statements. These statements display information about governmental major funds individually. Governmental Funds In the fund financial statements, governmental funds are presented using the modified-accrual basis of accounting. Their revenues are recognized when they become measurable and available as net current assets. Measurable means that the amounts can be estimated, or otherwise determined. Available means that the amounts were collected during the reporting period or soon enough thereafter to be available to finance the expenditures accrued for the reporting period. ABLE generally considers revenues collected within sixty days after the fiscal year -end to be available. Revenue recognition is subject to the measurable and availability criteria for the governmental funds in the fund financial statements. Exchange transactions are recognized as revenues in the period in which they are earned (i.e., the related goods or services are provided). Imposed non- exchange transactions are recognized as revenues in the period for which they were imposed. If the period of use is not specified, they are recognized as revenues when an enforceable legal claim to the revenues arises or when they are received, whichever occurs first. Government- mandated and voluntary non - exchange transactions are recognized as revenues when all applicable eligibility requirements have been met. In the fund financial statements, governmental funds are presented using the current financial resources measurement focus. This means that only current assets and current liabilities are generally included on their balance sheets. The reported fund balance (net current assets) is considered to be a measure of "available spendable resources." Governmental fund operating statements present increases (revenues and other financing sources) and decreases (expenditures and other financing uses) in net current assets. Accordingly, they are said to present a summary of sources and uses of "available spendable resources" during a period. Amounts expended to acquire capital assets are recorded as expenditures in the year that resources were expended, rather than as fund assets. The proceeds of long -term debt are recorded as other financing sources rather than as a fund liability. Amounts paid to reduce long -term indebtedness are reported as fund expenditures. When both restricted and unrestricted resources are combined in a fund, expenses are considered to be paid first from restricted resources, and then from unrestricted resources. 15 AIRBORNE LAW ENFORCEMENT SERVICES Notes to the Basic Financial Statements (Continued) Summary of Significant Accounting Policies, (Continued) (d) Cash and Investments Investments are reported in the accompanying financial statements at fair value. Changes in fair value that occur during a fiscal year are recognized as investment income reported for that fiscal year. Investment income includes interest earnings, changes in fair value, and any gains or losses realized upon the liquidation, maturity, or sale of investments, (e) Due from Other Governments Amounts shown as due from other governments represent billings to other parties for services rendered during the year which had not been collected as of the balance sheet date. (f) Inventories Inventories of materials and supplies are carried at cost on an average cost basis. ABLE uses the consumption method of accounting for inventories. (g) Capital Assets Capital assets are recorded at historical cost at the time of purchase. Assets acquired from gifts of contributions are recorded at fair market value on the date received. Generally, capital asset purchases in excess of $5,000 are capitalized if they have an expected useful life of 2 years or more. Capital assets used in operations are depreciated in the government -wide financial statements. Depreciation of such assets is computed using the straight -line method over the estimated useful lives noted below and charged to operations: Helicopters 10 years FUR systems 7 years Other helicopter equipment 5 years (h) Use of Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect certain reported and amounts and disclosures. Accordingly, actual results could differ from those estimates. 16 AIRBORNE LAW ENFORCEMENT SERVICES Notes to the Basic Financial Statements (Continued) (1) Summary of Significant Accounting Policies, (Continued) (i) Charges to Other Agencies Revenues received from other agencies represent amounts billed to other public service agencies contracting with ABLE for helicopter services on an hourly basis at a rate of $1,230 per hour. 0) Prior Year Data Selected information regarding the prior year has been included in the accompanying financial statements. This information has been included for comparison purposes only and does not represent a complete presentation in accordance with generally accepted accounting principles. Accordingly, such information should be read in conjunction with the government's prior year financial statements, from which this selected financial data was derived. (2) Cash and Investments Cash and investments as of June 30, 2010 are classified in the accompanying financial statements as follows: Statement of Net Assets: Cash and investments 62 466 Cash and investments as of June 30, 2010 consist of the following: Petty cash $ 100 Equity in City of Costa Mesa investment pool 3,526,366 Total cash and investments ja&M 466 Equity in the Cash and Investment Pool of the City of Costa Mesa ABLE has a separate bank account however, ABLE's cash and investments are maintained in an investment pool managed by the City of Costa Mesa. ABLE is a voluntary participant in that pool. This pool is governed by and under the regulatory oversight of the Investment Policy adopted by the City Council of the City of Costa Mesa. ABLE has not adopted an investment policy separate from that of the City of Costa Mesa. The fair value of ABLE's investment in this pool is reported in the accompanying financial statements at amounts based upon ABLE's pro -rata share of the fair value calculated by the City for the entire City portfolio. The balance available for withdrawal is based on the accounting records maintained by the City, which are recorded on an original cost basis. 17 AIRBORNE LAW ENFORCEMENT SERVICES Notes to the Basic Financial Statements (Continued) 21 Cash and Investments, (Continued Disclosures Relating to Interest Rate Risk Interest rate risk is the risk that changes in market interest rates will adversely affect the fair value of an investment. Generally, the longer the maturity of an investment, the greater the sensitivity of its fair value to changes in market interest rates. One of the ways that the City of Costa Mesa manages its exposure to interest rate risk is by purchasing a combination of shorter term and longer term investments and by timing cash flows from maturities so that a portion of the portfolio is maturing or coming close to maturity evenly over time as necessary to provide the cash flow and liquidity needed for operations. Information about ABLE's exposure to interest rate risk as a result of its equity in the cash and investment pool of the City of Costa Mesa is provided by disclosures in the notes to the basic financial statements of the City of Costa Mesa that shows the distribution of the City's investments by maturity. Disclosures Relating to Credit Risk Generally, credit risk is the risk that an issuer of an investment will not fulfill its obligation to the holder of the investment. This is measured by the assignment of a rating by a nationally recognized statistical rating organization. Minimum ratings required by (where applicable) the California Government Code and the City of Costa Mesa's Investment Policy and the actual ratings as of year -end for each investment type are provided by disclosures in the notes to the basic financial statements of the City of Costa Mesa. Concentration of Credit Risk Investments in any one issuer (other than U.S. Treasury securities, mutual funds and investment pools) that represent 5% or more of total investments for the entire entity (or for each separate major fund or for nonmajor funds in the aggregate) are disclosed in the notes to the basic financial statements of the City of Costa Mesa. Custodial Credit Risk ABLE does not have any significant certificates of deposit or demand accounts that are subject to disclosabie custodial credit risk (as defined by GASB Statement No. 40). ABLE does not have direct investments in securities subject to disclosabie custodial credit risk (as defined by GASB Statement No. 40). is AIRBORNE LAW ENFORCEMENT SERVICES Notes to the Basic Financial Statements (Continued) (3) Capital Assets A summary of changes in capital assets for the year ended June 30, 2010 is as follows: Balance at Balance at Governmental Activities: July 1, 2009 Additions Deletions June 30, 2010 Capital assets being depreciated: Helicopters $3,227,076 - - 3,227,076 Helicopter equipment 1,487,096 (136,610) 1,350,486 Automotive equipment 22,930 22,930 Total capital assets 136,610 (3,459,218) Governmental activities capital being depreciated 4,737,102 - 13( 6,610) 4,600,492 Less accumulated depreciation for: Helicopters (2,126,775) (322,708) - (2,449,483) Helicopter equipment (985,227) (138,188) 136,610 (986,805) Automotive equipment (22,930) - - (22,930) Total accumulated depreciation-(a,134 ,932) 46( 0.896) 136,610 (3,459,218) Governmental activities capital assets being depreciated, net 1 602 170 460 896 - 1 Depreciation expense of $460,896 was charged to the law enforcement function in the Statement of Activities. 19 REQUIRED SUPPLEMENTARY INFORMATION 21 AIRBORNE LAW ENFORCEMENT SERVICES General Fund Schedule of Revenues, Expenditures and Changes in Fund Balances - Budget and Actual Revenues: Charges to other agencies Contributions from member agencies Reimbursements from County of Orange Investment income Other Total revenues Expenditures: Financial and administrative Labor and maintenance Insurance Fuel Education and training Supplies, tools and materials Rent Total expenditures Excess (deficiency) of revenues over (under) expenditures Fund balances at beginning of year Fund balances at end of year For the year ended June 30, 2010 Variance with Final Budget Original Final Positive Prior Year Budget Budget Actual (Negative) Actual $ 350,294 350,294 320,293 (30,001) 277,374 1,193,072 1,193,072 1,193,072 24,143 1,268,366 588,506 588,506 431,133 (157,373) 491,432 12,000 12,000 17,662 5,662 - 28,274 28,274 67,436 39,162 85,473 2,172,146 2,172,146 2,029,596 (142,550) 2,122,645 16,415 16,415 11,931 4,484 20,805 1,123,418 1,123,418 1,099,275 24,143 1,134,732 189,131 189,131 177,755 11,376 94,751 536,366 536,366 321,784 214,582 415,885 47,045 47,045 141,004 (93,959) 70,840 18,121 18,121 9,900 8,221 12,168 161,233 161,233 159,424 1,809 159,408 2,091,729 2,091,729 1,921,073 170,656 1,908,589 80,417 80,417 108,523 28,106 214,056 890,442 890,442 890,442 - 676,386 $ 970,859 970,859 998,965 28,106 890,442 22 AIRBORNE LAW ENFORCEMENT SERVICES Note to Required Supplementary Information Year ended Tune 30, 2010 (1) Budgetary Reporting ABLE adopted an annual budget prepared on the modified accrual basis for the General Fund, which is consistent with generally accepted accounting principles. 23 AMENDED JOINT POWERS AGREEMENT FOR AIRBORNE LAW ENFORCEMENT SERVICES This Agreement is made and entered into by and between the City of Costa Mesa ( "Costa Mesa ") and the City of Newport Beach ( "Newport Beach "), collectively referred to as "Member Agencies." This Agreement is dated January 1, 2001 for reference purposes. RECITALS WHEREAS, the Member Agencies have and possess the power and authorization to finance, acquire and maintain a public law enforcement helicopter service and facilities for the benefit of the lands and inhabitants within their respective boundaries; and WHEREAS, the Member Agencies propose to join together to establish, operate and maintain a helicopter service for the benefit of their respective lands and inhabitants; and WHEREAS, it is in the public interest to provide a means by which other public agencies acquire helicopter service for the benefit of their lands and inhabitants. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein the parties hereto agree as follows: 1 PURPOSE 1.01 The purpose of this Agreement is to cooperate with each Member Agency in the exercise of some or all of their powers to establish a regional air support unit in the manner set forth in this Agreement. 1.02 Each Member Agency expressly retains all rights and powers to finance, plan, develop, construct, equip, maintain, repair, manage, operate, and control equipment, facilities, properties, and projects that it deems in its sole discretion to be necessary or desirable and that are authorized by the laws governing it. This Agreement shall in no way impair any of the Member Agencies' respective rights, powers or title to such equipment, facilities, properties and projects. 1.03 Each Member Agency expressly retains all rights and powers to use other funds or funding sources to finance, plan, develop, construct, equip, maintain, repair, manage, operate and control equipment and facilities for a law enforcement helicopter service system. i • 11 CREATION OF REGIONAL AIR SUPPORT UNIT 2.01 By this Agreement, the Member Agencies hereby create a separate legal entity to be known as the Airborne Law Enforcement Services ( "ABLE "). The Member Agencies may agree on a different call name for ABLE. 2.02 ABLE shall possess in its own name and the Member Agencies delegate to it the following enumerated powers: (a) To make and enter into Agreement, including, bu purchase and /or dispose including helicopters; contracts consistent with this not limited to, contracts to of supplies and equipment, (b) To receive compensation, gifts, contributions and donations of property, funds, services and other forms of financial assistance from persons, firms, corporations, and any governmental entity; (c) To sue and be sued in its own name; (d) To apply for an appropriate grant or grants under any Federal, State, or local programs for assistance in developing any of its programs or providing helicopter services to other public entities; (e) To adopt rules, regulations, policies, by -laws and procedures governing the operation of ABLE; (f) To add Member Agencies to ABLE which contribute flight crews and aircraft equipment and execute agreements and resolutions consistent with the terms of this Agreement; (g) To contract with public entities to provide helicopter services to their land and residents; IN To appoint officers, employees or agents. (i} It is the intent of the parties to this agreement that ABLE shall constitute a separate legal entity separate and apart from the member agencies, and that its debts, obligations and liabilities are its own and not that of the member agencies, except as specifically provided for herein. 2.03 Said powers shall be exercised in the manner provided in the California law, Joint Exercise of Powers, Government Code section 6500, at seq., and, except as expressly set forth herein, shall be subject to the restrictions upon the manner of Joint Powers Agreement — AirBorne Law Enforcement Program 2 9 0 exercising such powers as are imposed upon the Member Agency whose employee or officer is designated as ABLE Treasurer /Controller pursuant to section 3.12 below. 2.04 Costa Mesa and Newport Beach each agree as an initial contribution to ABLE to transfer to ABLE one helicopter and any associated equipment and supplies free and clear of any other ownership or security interests for its use in fulfilling the purposes of this Agreement. These two helicopters and associated equipment and supplies and all new supplies and equipment purchased by ABLE shall be owned by ABLE as its sole and separate property. III ORGANIZATION 3.01 The membership of ABLE shall be the original Member Agencies, and any additional Member Agencies, which are public entities that contribute aircraft, equipment, flight crews and /or other employees and /or funding for aircraft, equipment, flight crews and /or other employees to ABLE and have executed this Agreement, and any subsequent amendments thereto, and which have not withdrawn from ABLE. 3.02 ABLE shall be managed by a Board consisting of the Chiefs of Police of Costa Mesa and Newport Beach and one additional appointee from each Member Agency for a total of four (4) Board Members. The Chiefs of Police of Costa Mesa and Newport Beach shall each appoint from his respective city one Board member and his or her alternate. Each Board member, or in the absence of a Board member, the alternate shall have one vote on all matters before the Board. The members of the Board appointed by the Chiefs of Police may be replaced from time to time at the appointing Chief's discretion. 3.03 Each Board member and alternate shall hold office until a successor is selected, elected or appointed, as the case may be, under the powers of each Member Agency. The term of the Board member or alternate who is a public official or employee of a Member Agency shall terminate upon such Board Member or alternate leaving office and the vacancy shall be filled by selection, election or appointment, as the case may be, under the powers of each Member Agency. 3.04 Board members and alternates shall not receive additional compensation for the service on ABLE Board, but may be reimbursed by ABLE for reasonable expenses incurred in conducting the business of ABLE, as provided in this Agreement, when the expenses are not paid by the employing Member Agencies. 3.05 The principal office of ABLE shall be established by the Board and shall be located within the County of Orange. The Board may change the principal office from one location to another within the County of Orange. Any change of address shall be noted by the Board but shall not be considered an amendment to this Agreement. Joint Powers Agreement — Airl3orne Law Enforcement Program 3 3.06 The Board shall meet at a location as may be designated by the Board. The time and place of regular meetings of the Board shall be determined by resolution adopted by the Board. A copy of such resolution shall be furnished to the Member Agencies. All meetings of the Board, including regular, adjourned, and special meetings, shall be called and held in a manner as provided in the Ralph M. Brown Act, Chapter 9, Division 2, Title 5 of the California Government Code commencing with section 54950 at seq., as amended. 3.07 All of the powers and authority of ABLE shall be exercised by the Board unless specifically delegated to the extent permitted by law or reserved to the Member Agencies under this Agreement. Unless otherwise provided herein, each Board Member shall be entitled to one (1) vote. Except as otherwise provided herein, an affirmative majority vote of the full membership of the Board, or their alternate, may adopt any motion, resolution, or order and take any other action appropriate to carry forward the objectives of ABLE pursuant to this agreement. In the event there should be a tie vote, then the presiding officer shall have the right to cast the deciding vote. 3.08 The Board shall designate a recording secretary to keep the minutes of all open meetings of the Board, and shall cause a copy of such minutes to be forwarded to each Member Agency within a reasonable time after each meeting. 3.09 The Board may adopt from time to time policies, rules and regulations for the conduct of its affairs and that of ABLE as may be required and consistent with this Agreement. 3.10 Where this Agreement requires an approval of a resolution by Member Agencies in any matter, the approval shall be evidenced by a certified copy of the resolution of the governing body of such Member Agency filed with ABLE. It shall be the responsibility of the Board to obtain certified copies of said actions. 3.11 On an annual basis, the Board shall appoint a Board member to be the presiding officer for the purpose of conducting the Board meetings. 3.12 The Board shall appoint an officer or employee of a Member Agency to hold the offices of Treasurer and Controller ( "Treasurer /Controller "), whose duties shall be in conformance with Government Code sections 6505 and 6505.5. The Treasurer /Controller shall also administer all contracts subsequent to the Board's approval and shall contract with a certified public accountant to make an annual audit of the accounts and records of ABLE as provided in Government Code section 6505. The annual audit shall be submitted to the Board and each Member Agency when completed. The budget, covering a budget cycle set by the Board, shall be prepared by the Treasurer /Controller for the approval by the Board. ABLE's investment policies shall be the policies of the Member Agency of the Treasurer /Controller as those may be modified by the Board of ABLE. The cost of the Treasurer's services shall be reimbursed by ABLE. Joint Powers Agreement — AirElome Law Enforcement Program 4 0 0 3.13 The Board shall have the power to appoint additional officers, employees, or agents. Any officer, employee or agent of ABLE shall also be an officer, employee or agent of any of the Member Agencies, provided, however, that ABLE may appoint employees of ABLE that are subject to the personnel system of ABLE and said employees would not be employees of the Member Agencies. The appointment by the Board of such a person from a Member Agency shall be evidence that the two positions are compatible. 3.14 The City Attorneys or their Deputies of the Member Agencies shall serve jointly as counsel to ABLE, to the extent permitted by such waivers of conflict of interests to authorize such representation as may be executed by the Member Agencies and ABLE Board. and: 3.15 The officers shall perform all duties normal to their respective offices (a) The presiding officer shall sign all contracts on behalf of ABLE board. (b) The secretary shall perform such duties as assigned by the Board and shall keep minutes of the board meetings. . (c) The Treasurer /Controller shall be bonded in the amount to be determined by the Board and the bond fee shall be paid by ABLE. The Treasurer /Controller shall perform the duties as set forth in Sections 3.12, 4.02, 4.03, 4.04, 4.05, 4.09 and 4.10. 3.16 The Board shall appoint a Commander to manage and oversee day -to- day operations of ABLE. The Commander shall be a sworn police officer of a Member Agency and of a rank of at least a sergeant. Each Member Agency shall appoint a liaison officer ( "LO ") to ABLE and the LO shall be a sworn police officer and of a rank of at least a Captain. The LO's of each Member Agency shall meet collectively, as needed, to advise the Board on the levels of service and methods of operation of ABLE, and supervision of ABLE Commander. The Commander shall manage the daily operations of ABLE and supervision of the other employees appointed by ABLE Board, the helicopter crews and mechanics of ABLE and mechanics of other Member Agencies as directed by ABLE. 3.17 All of the privileges and immunities from liability, exemption from laws, ordinances and rules, all relief, pension, disability, worker's compensation, and other benefits which apply to the activity of officers, employees, or agents of any of the Member Agencies when performing their respective functions for their respective Member Agency shall apply to them to the same degree and extent while they are assigned to ABLE to perform any of the functions and other duties of ABLE under this Agreement. None of the officers, agents or employees of a Member Agency appointed to the Board or performing services at the direction of Joint Powers Agreement — AirBOrne Law Enforcement Program 5 0 0 ABLE shall be deemed by reason of their appointment or service to be employed by any of the other Member Agencies or ABLE or be subject to any of the requirements of the other Member Agencies. IV BUDGET AND DISBURSEMENTS 4.01 The Board shall adopt a budget for the ensuing fiscal year(s) pursuant to procedures developed by the Board. At the conclusion of each fiscal year, the Treasurer /Controller shall make a report to the Board regarding the excess or deficiency of revenues over (or under) expenditures. Such report shall include "budget to actual" comparisons based upon the adopted budget. Upon receipt of the report, the Board shall determine what extent, if any, unexpended budgetary appropriations shall be re- appropriated or whether any excess of revenues over expenditures shall be allocated or expended. 4.02 The Treasurer /Controller shall draw warrants upon the approval and written order of the Board or the Board's designated LO. The Board shall requisition the payment of funds only upon approval of such claims or disbursements and such requisition for payment in accordance with rules, regulations, policies, procedures, and by -laws adopted by the Board. 4.03 All funds received by the Treasurer /Controller for helicopter services provided by ABLE, will be placed in object accounts, and the receipt, transfer, or disbursement of such funds during the term of this Agreement shall be accounted for in accordance with generally accepted accounting principles applicable to governmental entities. There shall be strict accountability of all funds. All revenues and expenditures shall be reported to the Board on a quarterly basis. 4.04 All expenditures within the approved budget shall be made upon the approval of the Treasurer /Controller in accordance with the rules, policies and procedures adopted by the Board. No expenditure in excess of those budgeted shall be made without the unanimous approval of the Board and the budget shall thereafter be revised and amended. 4.05 The records and accounts of ABLE shall be audited annually by an independent certified public accountant and the cost of the audit shall be paid by ABLE. The minimum requirements shall be those prescribed by the State Controller under California Government Code section 26909 and in conformance with generally accepted auditing standards. Copies of such audit report shall be filed with the County Auditor and each Member Agency no later than fifteen (15) days after receipt of said audit by the Board. 4.06 The Member Agencies have agreed by resolution through their respective City Councils to fund on an equal basis ABLE helicopter operations fund through annual budget appropriations. The subject resolutions shall not limit the authority of each Member Agency to cease appropriations for ABLE helicopter Joint Powers Agreement — AirBorne Law Enforcement Program 6 operations as determined by their respective City Councils, provided, however, that a decision to cease appropriations shall be subject to the terms of Section 6.2, below. 4.07 The Member Agencies acknowledge and agree that ABLE will act as a conduit for the management, direction and provision of law enforcement helicopter services to the Member Agencies and to other public agencies that contract with ABLE for such services. The Commander shall keep a written account of the actual flight hours of the services provided to each Member Agency, each contracting agency, and the Regional Narcotics Suppression Program ( "RNSP "). The written account of such flight hours shall be provided to the Board on a monthly basis. 4.08 Based on information provided by the Commander, the Treasurer /Controller shall keep a written account of services provided to other public agencies by ABLE. All revenues, except those derived from narcotic surveillance support, received from other public agencies contracting or receiving services from ABLE for helicopter services shall be used to offset each Member Agency's obligation to fund ABLE's operations pursuant to sections 4.06 and 4.10. Such revenues shall be applied equally against the monthly invoice to each Member Agency for said funding for the month following the month in which the revenues are received. 4.09 In establishing rates for helicopter services to public agencies, the Board shall assure that the contracts for such services provide for the reimbursement of the actual expenses of providing the services, insurance coverage for ABLE's personnel and equipment, and administrative expenses of ABLE. Payment for ABLE helicopter services by contracting public agencies shall be made on a monthly basis to the Treasurer /Controller of ABLE. The Treasurer /Controller shall provide a written monthly account of all revenues and expenses of ABLE services to other public agencies to the Board. 4.10 ABLE budget shall include provision for a Capital Replacement fund that will provide for, among other things, the replacement of the helicopters owned and operated by ABLE and other associated equipment. Provided funds are available for appropriation, the Member Agencies agree to budget the necessary funds in equal amounts to purchase such aircraft and equipment for ABLE as mutually agreed upon by the Member Agencies based upon recommendations by the Board. Said funds shall be transferred to ABLE monthly by the Member Agencies for deposit in ABLE's Capital Replacement fund. The actual purchase of new helicopters and equipment and disposal of unneeded helicopters shall be done whenever determined appropriate and justified by the Board. 4.11 All revenues derived from either narcotic asset forfeiture or service contracts with other public agencies for narcotic related surveillances shall be maintained in a separate revenue account for ABLE. The Treasurer /Controller shall be responsible for accounting for all State and Federal asset forfeiture fund receipts. Joint Powers Agreement — AirBorne Law Enforcement Program 7 The Board shall be responsible for determining the appropriate allocation of such funds as part of the budget adoption process. V LIABILITIES 5.01 ABLE and the Member Agencies agree that the Member Agencies should be fully protected from any loss, injury, liability, damage, claim, lawsuit, cost or expense arising out of, or in any way related to, the performance of this Agreement by ABLE. Accordingly, the provisions of this Agreement should be broadly construed in favor of protection for the Member Agencies and interpreted to provide the fullest possible protection to the Member Agencies and Member Agency's officers and employees. ABLE acknowledges that the Member Agencies would not have entered into this Agreement in the absence of the commitments of ABLE as specified in this Article V. 5.02 The Member Agencies acknowledge that each agency is assigning its own personnel to a cooperative pool of personnel to be managed by ABLE. ABLE shall be solely responsible for and retain all debts, liabilities, and other obligations for all activities for which ABLE has insurance coverage in effect at the time of any such claim, loss, liability or obligation. The Member Agencies shall equally share and retain all debts, liabilities, insurance, and other obligations for its personnel assigned to ABLE and for any claims or liabilities for which ABLE does not have insurance coverage. 5.03 ABLE shall protect, defend, indemnify and hold free and harmless the Member Agencies and their respective elected and appointed boards, officers, and employees from and against any and all liabilities, damages, claims, expenses, actions or proceedings of any kind or nature, including, but not by way of limitation, claims for personal injury by ABLE employees, and attorney fees and costs, for injury to or death of any person, and for injury or damage to any property, including consequential damages, resulting or arising out of or in any way connected with the negligent acts or failure to act in the performance of this Agreement by ABLE and for which ABLE has insurance coverage in effect at the time of any such claim, loss, liability or obligation. 5.04 Any contract with a non - member public agency receiving services pursuant to this Agreement shall include a mutual indemnification provision wherein AGENCY and ABLE shall agree to defend and indemnify the other in an amount equal to its proportionate share of liability on a comparative fault basis. The contract shall also provide: 1) That the indemnity obligation shall exist with respect to any claim, loss, liability, damage, lawsuit, cost, or expense that arises out of, or is in any way related to, the performance of services by ABLE pursuant to the contract; and 2) The obligation of AGENCY and ABLE pursuant to the indemnification provision will extend, without limitation, to an injury, death, Ioss or damage which occurs in the performance of the contract and which is sustained by any third party, any agent or contractor of AGENCY or ABLE. Joint Powens Agreement — AirElorne Law Enforcement Program 8 5.05 Member Agencies shall be responsible for the continued provision of worker's compensation coverage for the officers or agents of the Member Agencies that are assigned to ABLE to perform this Agreement and /or serve as officers or employees of ABLE. In this regard, each Member Agency shall defend, indemnify and hold harmless ABLE and any other Member Agencies, and their respective officers, employees, contractors, agents and representatives with respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to any industrial /worker compensation injury sustained by an employee of the indemnifying Member Agency during the performance of service by ABLE or the responding Member Agencies under this Agreement. 5.06 ABLE shall employ the principles of sound risk management in its aviation operations. Risks of loss shall be identified, evaluated, and treated in a manner that protects ABLE and each Member Agency from adverse financial consequences. This shall be accomplished in part through the purchase of appropriate commercial insurance. The Risk Manager, or his /her designee, of one Member Agency shall be designated by the Board as the "ABLE Risk Manager" and shall act in an advisory capacity to ABLE Board to provide guidance in the area of risk management, loss control, insurance procurement, and claims management. ABLE Risk Manager will be responsible for maintaining the original insurance policies and other risk management and insurance documents. During the term of this Agreement, ABLE shall purchase and maintain, at a minimum, the following commercial insurance coverage: AIRPORT Owners and Operators General Liability Insurance, including • Bodily Injury and Property Damage • Personal Injury • Premises Liability • Advertising Injury • Products and Completed Operations • Hangarkeepers Liability • Contractual Liability AIRCRAFT Liability Insurance, including • Bodily Injury and Property Damage, including passengers • Personal Injury • Non -owned Aircraft Physical Damage • Non -owned Aircraft Liability • Owned Aircraft Physical Damage CRIME Insurance, including • Employee Dishonesty • Faithful Performance of Duties Joint Powers Agreement — AirBorne Law Enforcement Program 9 9 • • Forgery and Alteration Coverage • Theft, Disappearance, and Destruction • Robbery and Safe Burglary • Computer Fraud, including Funds Transfer, Money Orders, and Counterfeit Paper Currency The limits, retention levels, deductibles, policy forms, and carriers providing the above required insurance coverages shall be recommended by the ABLE RISK Manage to the board for its approval. VI ADMISSION AND WITHDRAWAL OF PARTIES 6.01 Additional public agencies that contribute personnel and aircraft equipment may become Member Agencies to ABLE upon such terms and conditions as provided by the Board and upon the unanimous consent of the existing Member Agencies as evidenced by approval of resolutions therefore and the execution of a written amendment to this Agreement by all of the Member Agencies, including the additional Member Agency. 6.02 The withdrawal of any Member Agency, either voluntarily or involuntarily shall, unless otherwise provided for by the Board, be conditioned as follows: (a) Involuntary withdrawal shall mean those circumstances where a Member Agency must withdraw due to fiscal or budgetary impacts which discontinue the funding of flight crews or aircraft; (b) In the case of a voluntary withdrawal, written notice shall be given one hundred twenty (120) days prior to the end of a fiscal year except that such notice may be shortened by unanimous approval of the Board; (c) Neither voluntary or involuntary withdrawal shall relieve the withdrawing Member Agency of its proportionate share of any debts or other liabilities incurred by ABLE prior to the effective date of the Member Agency's withdrawal, nor any liabilities imposed upon or incurred by the Member Agency pursuant to this Agreement prior to the effective date of the Member Agency's withdrawal; (d) Withdrawal shall not result in the forfeiture of that Member Agency's rights and claims relating to revenues received by ABLE during the time period that the Member Agency provided services under ABLE direction; and Joint Powers Agreement — AirBorne Law Enforcement Program 10 0 0 (e) The withdrawing Member Agency shall be entitled to remove its personnel and any equipment whose title was not transferred to ABLE from the possession and direction of ABLE. ABLEABLE The withdrawing Member Agency may also recover any other equipment no longer needed by ABLE, including a helicopter it previously transferred to ABLE, according to the terms and conditions determined by the Board in its sole discretion to be fair and equitable. VII TERMINATION AND DISPOSITION OF ASSETS 7.01 ABLE shall continue to exist and exercise the powers herein until this Agreement is terminated by action of the Member Agencies; provided, however, that no termination shall be complete and final until ABLE has satisfactorily disposed of all financial obligations and claims, distributed all assets, and performed all other functions deemed necessary by the Board to conclude the affairs of ABLE. 7.02 Termination shall occur upon the written consent of all Member Agencies, upon the withdrawal from ABLE of a sufficient number of the Member Agencies to leave fewer than two (2) Member Agencies remaining in ABLE and full satisfaction of all outstanding financial obligations of ABLE. However, no such termination shall occur until all other contractual obligations of ABLE have been satisfied. 7.03 In the event of the termination of this Agreement, any funds remaining following the discharge of all obligations shall be disposed of by returning to each current Member Agency of ABLE immediately prior to the termination of this Agreement, a share of such funds proportionate to the contribution made to ABLE by said Member Agency, to the extent determined by the Board in its sole discretion to be fair and equitable. 7.04 Notwithstanding other provisions in the Agreement, the Member Agencies Costa Mpsa and Newport Beach agree to abide by the following procedure for selling of equipment and aircraft in the event the Agreement is terminated. The equipment and aircraft shall be given a fair market value by an appraiser mutually agreed upon by Costa Mesa and Newport- Beach. Before the equipment and aircraft are sold on the open market, Costa Mesa and Newport Beach each shall have the right to purchase the equipment and aircraft at a price and under terms as mutually agreed upon by Costa Mesa and Newport Beach which may include a financing arrangement for the purchaser and a leasing arrangement for the non - purchasing Member Agency to allow for a transition period after the termination of this Agreement. If an agreement cannot be reached concerning a purchase of the equipment, then it shall be sold on the open market. Proceeds from the sale of equipment and aircraft upon termination of the Agreement shall be equally distributed (50/50) to Costa Mesa and Newport Beach. Joint Powers Agreement — AirBome Law Enforcement Program 11 vul MISCELLANEOUS 8.01 Amendments. This Agreement may be amended with the unanimous approval of all Member Agencies; provided, however, that no amendment may be made which would adversely affect the interests of the owners of bonds, letters of credit or other financial obligations of ABLE. 8.02 Notices. Any notice or instrument required to be given or delivered by depositing the same in any United States Post Office, registered or certified, postage prepaid, addressed to the Member Agencies, shall be deemed to have been received by the Member Agency to whom the same is addressed at the expiration of seventy -two (72) hours after deposit of the same in the United States Post Office for transmission by registered or certified mail as aforesaid. 8.03 Effective Date. This Agreement shall be effective at such time as this Agreement has been executed by any two or more of the Member Agencies enumerated in the introduction of this Agreement. 8.04 Conflicts of Interest. No officer or employee of ABLE or any Member Agency shall have any financial interest, direct or indirect, in ABLE. Nor shall any such officer or employee participate in any decision relating to ABLE which affects his or her financial interests or those of a corporation, partnership, or association in which he or she is directly or indirectly interested, in violation of any State law or regulation. 8.05 Arbitration. (a) Any controversy or claim between any two or more Member Agencies, or between any such Member Agency or Member Agencies and ABLE, with respect to ABLE's operations, or to any claims, disputes, demands, differences, controversies, or misunderstandings arising under, out of, or in relation to this Agreement, shall be submitted to and determined by arbitration. To the extent not inconsistent herewith, the rules of the American Arbitration Association shall apply. Joint Powers Agreement — AirBorne Law Enforcement Program 12 0 0 (b) The Member Agency desiring to initiate arbitration shall give notice of its intention to arbitrate to every other Member Agency and ABLE. Such notice shall designate such other Member Agencies as the initiating Member Agency intends to have bound by any award made therein. (c) The decision of the arbitrator shall be binding upon all Member Agencies involved in the arbitration. Each Member Agency to the arbitration shall bear its own legal costs, including attorney fees. 8.06 Partial Invalidity. If any one or more of the terms, provisions, sections, promises, covenants or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable or void for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, sections, promises, covenants and conditions of this Agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 8.07 Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of the Member Agencies hereto. 8.08 Assianment. A Member Agency shall not assign any rights or obligations under this Agreement without the written consent of all other Member Agencies. 8.09 Execution. The legislative bodies of the Member Agencies enumerated herein have each authorized execution of this Agreement, as evidenced by the authorized signatures below, respectively. 8.10. Entire Agreement. This Agreement, supersedes any and all other agreements whether oral or written, between the parties hereto with respect to the subject matter hereof and contains all of the covenants and agreements between the parties with respect to said matter, and each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not Joint Powers Agreement — AirElorne Law Enforcement Program 13 embodied herein, and that any other agreement or modification of this Agreement shall be effective only if executed in writing and signed by ABLE and all Member Agencies. CITY OF COSTA MESA Fb:?� ul MIN " Mdwain, Mayor ATTEST: By: i Mary Eliot Deputy City Clerk CITY OF NEWPORT BEACH Dated: 3- 3 o- o l APPROVED AS TO FORM: E By: —` Dated: Garold B. Adams. Mavor AT' in LaVonne Harkless, City Clerk F:\users\cat\shared\da\Ag\Able\030201 final.doc APPROVED AS TO FORM: 4 By: Daniel K. Ohl, Deputy City Attorney Joint Powers Agreement - AirBorne Law Enforcement Program 14 ( -30i l r JOINT POWERS AGREEMENT FOR AIRBORNE LAW ENFORCEMENT SERVICES This Agreement is made and entered into this �5M day of OC16bc r 1999, in the County of Orange, State of California, by and between the City of Costa Mesa ( "Costa Mesa ") and the City of Newport Beach ( "Newport Beach "), collectively referred to as "Member Agencies." RECITALS WHEREAS, the Member Agencies have and possess the power and authorization to finance, acquire and maintain a public law enforcement helicopter service and facilities for the benefit of the lands and inhabitants within their respective boundaries; and WHEREAS, the Member Agencies propose to join together to establish, operate and maintain a helicopter service for the benefit of their respective lands and inhabitants; and WHEREAS, it is in the public interest to provide a means by which other public agencies acquire helicopter service for the benefit of their lands and inhabitants. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein the parties hereto agree as follows: I PURPOSE 1.01 The purpose of this Agreement is to cooperate with each Member Agency in the exercise of some or all of their powers to establish a regional air support unit in the manner set forth in this Agreement. 1.02 Each Member Agency expressly retains all rights and powers to finance, plan, develop, construct, equip, maintain, repair, manage, operate, and control equipment, facilities, properties, and projects that it deems in its sole discretion to be necessary or desirable and that are authorized by the laws governing it. This Agreement shall in no way impair any of the Member Agencies' respective rights, powers or title to such equipment, facilities, properties and projects. 1.03 Each Member Agency expressly retains all rights and powers to use other funds or funding sources to finance, plan, develop, construct, equip, maintain, repair, manage, operate and control equipment and facilities for a law enforcement helicopter service system. Ah a CREATION OF REGIONAL AIR SUPPORT UNIT 2.01 By this Agreement, Costa Mesa and Newport Beach agree to cooperate with each other in the provision of helicopter service in the manner and under the terms of this Agreement. The cooperative provision of helicopter services shall be known as the Airborne Law Enforcement Services ( "ABLE ") and the Member Agencies may agree on a different call name for ABLE. 2.02 The ABLE shall possess in its own name and the Member Agencies delegate to it the following enumerated powers: (a) To make and enter into contracts consistent with this Agreement; (b) To receive compensation, gifts, contributions and donations of property, funds, services and other forms of financial assistance from persons, firms, corporations, and any governmental entity; (c) To sue and be sued in its own name; (d) To apply for an appropriate grant or grants under any Federal, State, or local programs for assistance in developing any of its programs or providing helicopter services to other public entities; (e) To adopt rules, regulations, policies, by -laws and procedures governing the operation of the ABLE; (f) To add Member Agencies to the ABLE which contribute flight crews and aircraft equipment and execute agreements and resolutions consistent with the terms of this Agreement; (g) To contract with public entities to provide helicopter services to their land and residents; (h) To appoint officers, employees or agents. (i) It is the intent of the parties to this agreement that ABLE shall constitute a separate legal entity separate and apart from the member agencies, and that its debts, obligations and liabilities are its own and not that of the member cities. 2.03 Said powers shall be exercised in the manner provided in the California Joint Powers Act subject to the restrictions upon the manner of exercising such 2 0 0 powers as are imposed upon the city of the presiding officer. It is understood that the chief of police of the city of Costa Mesa and the chief of police of the city of Newport Beach shall alternate as the presiding officer on an annual basis. III ORGANIZATION 3.01 The membership of the ABLE shall be the Member Agencies, public entities which contribute flight crews, funding for aircraft equipment, and ABLE employees and have executed or hereafter execute this Agreement, or any subsequent amendments thereto, and which have not withdrawn from the ABLE. 3.02 The ABLE shall be managed by a Board consisting of the Chiefs of Police of Costa Mesa and Newport Beach and one appointee for each Member Agency for a total of four (4) Board Members. The Chiefs of Police of Costa Mesa and Newport Beach shall each appoint one Board member and their alternate. Each Board member, or in the absence of a Board member, the alternate shall have one vote on all matters before the Board. The members of the Board may be supplemented or amended from time to time. 3.03 Each Board member and alternate shall hold office until a successor is selected, elected or appointed, as the case may be, under the powers of each Member Agency. The term of the Board member or alternate who is a public official or employee of a Member Agency shall terminate upon such Board Member or alternate leaving office and the vacancy shall be filled by selection, election or appointment, as the case may be, under the powers of each Member Agency. 3.04 Board members and alternates shall not receive additional compensation for the service on the ABLE Board, but may be reimbursed by the ABLE for reasonable expenses incurred in conducting the business of the ABLE, as provided in this Agreement, when the expenses are not paid by the employing Member Agencies. 3.05 The principal office of the ABLE shall be established by the Board and shall be located within the County of Orange. The Board may change the principal office from one location to another within the County of Orange. Any change of address shall be noted by the Board but shall not be considered an amendment to this Agreement. 3.06 The Board shall meet at a location as may be designated by the Board. The time and place of regular meetings of the Board shall be determined by resolution adopted by the Board. A copy of such resolution shall be furnished to the Member Agencies. All meetings of the Board, including regular, adjourned, and special meetings, shall be called and held in a manner as provided in the Ralph M. Brown N Act, Chapter 9, Division 2, Title 5 of the California Government Code commencing with section 54950 et seq., as amended. 3.07 All of the powers and authority of the ABLE shall be exercised by the Board unless specifically delegated to the extent permitted by law or reserved to the Member Agencies under this Agreement. Unless otherwise provided herein, each Board Member shall be entitled to one (1) vote. Except as otherwise provided herein, an affirmative majority vote of the full membership of the Board, or their alternate, may adopt any motion, resolution, or order and take any other action appropriate to carry forward the objectives of the ABLE pursuant to this agreement. In the event there should be a tie vote, then the presiding officer shall have the right to cast the deciding vote. 3.08 The Board shall designate a recording secretary to keep the minutes of all open meetings of the Board, and shall cause a copy of such minutes to be forwarded to each Member Agency within a reasonable time after each meeting. 3.09 The Board may adopt from time to time policies, rules and regulations for the conduct of its affairs and that of the ABLE as may be required and consistent with this Agreement. 3.10 Where this Agreement requires an approval of a resolution by Member Agencies in any matter, the approval shall be evidenced by a certified copy of the resolution of the governing body of such Member Agency filed with the ABLE. It shall be the responsibility of the Board to obtain certified copies of said actions. 3.11 On an annual basis, the Board shall appoint a Board member to be the presiding officer for the purpose of conducting the Board meetings. 3.12 The Board shall appoint an officer or employee of a Member Agency to hold the offices of Treasurer and Controller ( "Treasurer /Controller "), whose duties shall be in conformance with Government Code sections 6505 and 6505.5. In performing the duties of Treasurer /Controller, he /she shall follow the Member Agencies' policies and procedures. The Treasurer /Controller shall also administer all contracts subsequent to the Board's approval and shall contract with a certified public accountant to make an annual audit of the accounts and records of the ABLE as provided in Government Code section 6505. The annual audit shall be submitted to the Board and each Member Agency when completed. The annual budget shall be prepared by the Treasurer /Controller for the approval by the Board. The ABLE's investment policies shall be the Member Agencies' investment policies as those may be modified by the Treasurers of the Member Agencies and approved by the Board of the ABLE. The cost of the Treasurer's services shall be reimbursed by the ABLE as provided in this Agreement. 3.13 The Board shall have the power to appoint additional officers, employees, or agents. Any officer, employee or agent of the ABLE shall also be an 4 • • officer, employee or agent of any of the Member Agencies, provided, however, that the ABLE may appoint employees of the ABLE that are subject to the personnel system of the ABLE and said employees would not be employees of the Member Agencies. The appointment by the Board of such a person from a Member Agency shall be evidence that the two positions are compatible. 3.14 The City Attorneys or their Deputies of the Member Agencies shall serve jointly as counsel to the ABLE, to the extent permitted by such waivers of conflict of interests to authorize such representation as may be executed by the Member Agencies and the ABLE Board. and: 3.15 The officers shall perform all duties normal to their respective offices (a) The presiding officer shall sign all contracts on behalf of the ABLE board. (b) The secretary shall perform such duties as assigned by the Board and shall keep minutes of the board meetings. (c) The Treasurer /Controller shall be bonded in the amount to be determined by the Board and the bond fee shall be paid by the ABLE. The Treasurer /Controller shall perform the duties as set forth in Sections 3.12, 4.02, 4.03, 4.04, 4.05, 4.09 and 4.10. 3.16 The Board shall appoint a Commander to manage and oversee day -to- day operations of the ABLE. The Commander shall be a sworn police officer of a Member Agency and of a rank of at least a sergeant. Each Member Agency shall appoint a liaison officer ( "LO ") to the ABLE and the LO shall be a sworn police officer and of a rank of at least a Captain. The LO's of each Member Agency shall meet collectively, as needed, to advise the Board on the levels of service and methods of operation of the ABLE, and supervision of the ABLE Commander. The Commander shall manage the daily operations of the ABLE and supervision of the other employees appointed by the ABLE Board, the helicopter crews and mechanics of the ABLE and mechanics of other Member Agencies as directed by the ABLE. 3.17 All of the privileges and immunities from liability, exemption from laws, ordinances and rules, all relief, pension, disability, worker's compensation, and other benefits which apply to the activity of officers, employees, or agents of any of the Member Agencies when performing their respective functions shall apply to them to the same degree and extent while they are engaged in the performance of any of the functions and other duties under this Agreement. None of the officers, agents or employees of a Member Agency appointed to the Board or performing services at the direction of the ABLE shall be deemed by reason of their 61 0 0 appointment or service to be employed by any of the other Member Agencies or the ABLE or be subject to any of the requirements of the other Member Agencies. IV BUDGET AND DISBURSEMENTS 4.01 The Board shall adopt an annual budget for the ensuing fiscal year pursuant to procedures developed by the Board. 4.02 The Treasurer /Controller shall draw warrants upon the approval and written order of the Board or the Board's designated L0. The Board shall requisition the payment of funds only upon approval of such claims or disbursements and such requisition for payment in accordance with rules, regulations, policies, procedures, and by -laws adopted by the Board. 4.03 All funds received by the Treasurer /Controller for helicopter services provided by the ABLE, will be placed in object accounts, and the receipt, transfer, or disbursement of such funds during the term of this Agreement shall be accounted for in accordance with generally accepted accounting principles applicable to governmental entities. There shall be strict accountability of all funds. All revenues and expenditures shall be reported to the Board on a quarterly basis. 4.04 All expenditures within the approved annual budget shall be made upon the approval of the Treasurer /Controller in accordance with the rules, policies and procedures adopted by the Board. No expenditure in excess of those budgeted shall be made without the unanimous approval of the Board and the budget shall thereafter be revised and amended. 4.05 The records and accounts of the ABLE shall be audited annually by an independent certified public accountant and the cost of the audit shall be paid by the ABLE. The minimum requirements shall be those prescribed by the State Controller under California Government Code section 26909 and in conformance with generally accepted auditing standards. Copies of such audit report shall be filed with the County Auditor and each Member Agency no later than fifteen (15) days after receipt of said audit by the Board. 4.06 The Member Agencies have agreed by resolution through their respective City Councils to fund on an equal basis the ABLE helicopter operations fund through annual budget appropriations. The subject resolutions shall not limit the authority of each Member Agency to cease appropriations for the ABLE helicopter operations as determined by their respective City Councils provided, however, that a decision to cease appropriations shall be subject to the terms of Section 6.2. below. 4.07 The Member Agencies acknowledge and agree that the ABLE will act as a conduit for the management, direction and provision of law enforcement 6 helicopter services to the Member Agencies and to other public agencies that contract with the ABLE for such services. The Commander shall keep a written account of the actual flight hours of the services provided to each Member Agency, each contracting agency, and the Regional Narcotics Suppression Program ( "RNSP "). The written account of such flight hours shall be provided to the Board on a monthly basis. 4.08 Based on information provided by the Commander, the Treasurer /Controller shall keep a written account of services provided other public agencies by the Member Agencies at the direction of the ABLE. All revenues received from other public agencies contracting with the ABLE for helicopter services shall be shared equally on a monthly basis by each Member Agency. 4.09 In establishing rates for helicopter services to public agencies, the Board shall assure that the contracts for such services provide for the reimbursement of the actual expenses of providing the services, insurance coverage by the Member Agencies for their personnel and equipment, and administrative expenses of the ABLE. Payment for the ABLE helicopter services by contracting public agencies shall be made on a monthly basis to the Treasurer /Controller of the ABLE. The Treasurer /Controller shall provide a written monthly account of all revenues and expenses of the ABLE services to other public agencies to the Board. 4.10 Provided funds are available for appropriation, the Member Agencies agree to budget the necessary funds to purchase such aircraft for the ABLE as mutually agreed upon by the Member Agencies. V LIABILITIES 5.01 The Member Agencies acknowledge that each agency is contributing its own personnel and equipment to a cooperative pool of personnel and equipment to be managed by the ABLE. Each Member Agency shall retain all debts, liabilities, insurance, and other obligations for its personnel and the ABLE shall retain all debts, liabilities, insurance, and other obligations for the helicopter equipment and the ABLE appointed employees subject to the ABLE personnel system. Where necessary, and at the direction of the ABLE Board, each Member Agency agrees to add the ABLE as an additional insured on their respective insurance or self - insurance coverage for their personnel and equipment. In the event that the costs of each Member Agency's personnel and equipment contributed to the ABLE for each fiscal year exceeds the amount of funds to be reimbursed by the ABLE for such costs, the Member Agencies agree to waive all rights to be reimbursed for such costs by the ABLE from funds received by the ABLE in subsequent fiscal years. Each Member Agency agrees to expressly waive any and all rights to be reimbursed by the other Member Agencies for personnel and equipment contributed to the ABLE to the extent that revenues received by the ABLE are not sufficient for YI the ABLE to reimburse the Member Agency for the costs of its personnel and equipment contributed to the ABLE. 5.02 Each Member Agency hereto agrees to defend, indemnify and hold harmless the ABLE and the other Member Agencies from any liability for damages, costs or attorney fees, actual or alleged, to persons or property arising out of or resulting from defective equipment owned or leased by the indemnifying Member Agency or from negligent acts or omissions of the indemnifying Member Agency or its officials or employees in the performance of this agreement. In the event of liability. imposed upon any of the Member Agencies, or upon the Board created by this Agreement, for injury which is caused by defective equipment or the negligent or wrongful act or omission of any of the Member Agencies in the performance of this Agreement, the Member Agency or Member Agencies that own or lease such defective equipment or are directly responsible for the negligent or wrongful acts or omissions shall indemnify, defend, and hold harmless the ABLE and all other Member Agencies from any liability for personal injury or property damage arising out of the performance of this Agreement. 5.03 Member Agencies agree that the ABLE and Member Agencies should be fully protected from any loss, injury, liability, damage, claim, lawsuit, cost or expense arising out of, or in any way related to, the performance of services pursuant to this Agreement. Accordingly, the .provisions of this Agreement should be construed and interpreted to provide the fullest possible protection to the ABLE, Member Agencies and Member Agency's officers and employees. Member Agencies acknowledge that the ABLE would not provide services pursuant to this Agreement or related agreements in the absence of the commitments of each Member Agency as specified in this section. Member Agencies acknowledge that the ABLE Board, Commander and LO may be subject to liability for decisions, management and actions in the supervision and direction of the ABLE. In this regard, Member Agencies agree that the ABLE shall obtain directors and officers insurance for the ABLE directors and officers, and that the cost of such insurance coverage shall be deducted from funds distributed by the ABLE to the Member Agencies on a pro rata basis equal to the number of Member Agencies, i.e., fifty percent (50 %) for two (2) Member Agencies, etc. 5.04 Except as provided herein, each Member Agency waives and gives up any claim against or right to sue the ABLE, any Member Agency, or any of their officers, employees or representatives, for any loss, damage or injury that arises out of, or is in any way related to the performance of services pursuant to this Agreement to the extent that said claim or right is not covered by insurance. This waiver extends to liability for death, bodily injury, or property damage that may be sustained by the ABLE, any Member 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 ABLE, any Member Agency, and/or their respective officers, employees, agents, contractors, representatives, or any third party. This waiver does not extend to death, bodily injury or property damage 8 caused by fraudulent or willful conduct, or any act which constitutes a violation of a penal statute, and to a Member Agency's right to bring a legal action against other Member Agencies who refuse or fail to honor its requirement to defend and/or indemnify the ABLE and other Member Agencies as set forth in Sections 5.02 and 5.06. 5.05 Any public agency, other than the Member Agencies, receiving services pursuant to this Agreement, and /or any other contract with the ABLE, shall be required to agree as follows: AGENCY and ABLE (including its member agencies and their respective officers, employees, contractors, agents and representatives) shall mutually defend and indemnify the other in an amount equal to its proportionate share of liability on a comparative fault basis. This indemnity obligation shall exist with respect to any claim, loss, liability, damage, lawsuit, cost, or expense that arises out of, or is in any way related to the performance of services by ABLE within the public agency's jurisdiction. The obligation of each public agency pursuant to his section extends, without limitation, to an injury, death, loss or damage which occurs within that public agency's jurisdiction and which is sustained by any third party, any employee or contractor of the public agency, or the contractor's employees. The terms of this section shall be contained in any agreement by ABLE with non - member public agencies. 5.06 Member Agencies shall be responsible for the continued provisions of worker's compensation for the officers or agents of the Member Agencies that serve as officers or employees of the ABLE. In this regard, each Member Agency shall defend, indemnify and hold harmless the ABLE and any other Member Agencies, and their respective officers, employees, contractors, agents and representatives with respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to any industrial /worker compensation injury sustained by an employee of the indemnifying Member Agency during the performance of service by the ABLE or the responding Member Agencies under this Agreement. VI ADMISSION AND WITHDRAWAL OF PARTIES 6.1 Additional public agencies that contribute personnel and aircraft equipment may become Member Agencies to the ABLE upon such terms and conditions as provided by the Board and upon the unanimous consent of the existing Member Agencies as evidenced by approval of resolutions therefore and the execution of a written amendment to this Agreement by all of the Member Agencies, including the additional Member Agency. 6.2 The withdrawal of any Member Agency, either voluntarily or involuntarily shall, unless otherwise provided for by the Board, be conditioned as follows: 9 (a) Involuntary withdrawal shall mean those circumstances where a Member Agency must withdraw due to fiscal or budgetary impacts which discontinue the funding of flight crews or aircraft; (b) In the case of a voluntary withdrawal, written notice shall be given one hundred twenty (120) days prior to the end of a fiscal year except that such notice may be shortened by unanimous approval of the Board; (c) Neither voluntary or involuntary withdrawal shall relieve the withdrawing Member Agency of its proportionate share of any debts or other liabilities incurred by the ABLE prior to the effective date of the Member Agency's withdrawal, nor any liabilities imposed upon or incurred by the Member Agency pursuant to this Agreement prior to the effective date of the Member Agency's withdrawal; (d) Withdrawal shall not result in the forfeiture of that Member Agency's rights and claims relating to revenues received by the ABLE during the time period that the Member Agency provided services under the ABLE direction; and (e) The withdrawing Member Agency shall retain all rights and title to its personnel and shall remove such personnel from the direction of the ABLE. The helicopter equipment shall be held in title by the ABLE and subject to reasonable sale upon termination of the ABLE. VII TERMINATION AND DISPOSITION OF ASSETS 7.01 The ABLE shall continue to exercise the powers herein until the termination of this Agreement and any extension thereof as provided in this paragraph or until the Member Agencies have mutually rescinded this Agreement; provided, however, that the ABLE shall continue to exist for the purposed of disposing of all claims, distribution of assets and all other functions necessary to conclude the affairs of the ABLE. 7.02 Termination shall occur upon the written consent of all Member Agencies, upon the withdrawal from the ABLE of a sufficient number of the Member Agencies to leave fewer than two (2) Member Agencies remaining in the ABLE and full satisfaction of all outstanding financial obligations of the ABLE. ion • • However, no such termination shall occur until all other contractual obligations of the ABLE have been satisfied. 7.03 In the event of the termination of this Agreement, any funds remaining following the discharge of all obligations shall be disposed of by returning to each current Member Agency of the ABLE immediately prior to the termination of this Agreement, a share of such funds proportionate to the contribution made to the ABLE by said Member Agency, to the extent legally possible. 7.04 Notwithstanding other provisions in the Agreement, the Member Agencies Costa Mesa and Newport Beach agree to follow a procedure for selling of equipment and aircraft in the event the Agreement is terminated. The equipment and aircraft shall be given a fair market value by an appraiser mutually agreed upon by Costa Mesa and Newport Beach. Before the equipment and aircraft are sold on the open market, Costa Mesa and Newport Beach each shall have the right to purchase the equipment and aircraft at a price and under terms as mutually agreed upon by Costa Mesa and Newport Beach which may include a financing arrangement for the purchaser and a leasing arrangement for the non - purchasing Member Agency to allow for a transition period after the termination of the Agreement. Proceeds from the sale of equipment and aircraft upon termination of the Agreement shall be equally distributed (50/50) to Costa Mesa and Newport Beach. Vlll MISCELLANEOUS 8.01 Amendments. This Agreement may be amended with the unanimous approval of all Member Agencies; provided, however, that no amendment may be made which would adversely affect the interests of the owners of bonds, letters of credit or other financial obligations of the ABLE. 8.02 Notices. Any notice or instrument required to be given or delivered by depositing the same in any United States Post Office, registered or certified, postage prepaid, addressed to the Member Agencies, shall be deemed to have been received by the Member Agency to whom the same is addressed at the expiration of seventy -two (72) hours after deposit of the same in the United States Post Office for transmission by registered or certified mail as aforesaid. 0 0 8.03 Effective Date. This Agreement shall be effective at such time as this Agreement has been executed by any two or more of the Member Agencies enumerated in the introduction of this Agreement. 8.04 Conflicts of Interest. No officer or employee of the ABLE or any Member Agency shall have any financial interest, direct or indirect, in the ABLE. Nor shall any such officer or employee participate in any decision relating to the ABLE which affects his or her financial interests or those of a corporation, partnership, or association in which he or she is directly or indirectly interested, in violation of any State law or regulation. 8.05 Arbitration. (a) Any controversy or claim between any two or more Member Agencies, or between any such Member Agency or Member Agencies and the ABLE, with respect to the ABLE's operations, or to any claims, disputes, demands, differences, controversies, or misunderstandings arising under, out of, or in relation to this Agreement, shall be submitted to and determined by arbitration. To the extent not inconsistent herewith, the rules of the American Arbitration Association shall apply. (b) The Member Agency desiring to initiate arbitration shall give notice of its intention to arbitrate to every other Member Agency and the ABLE. Such notice shall designate such other Member Agencies as the initiating Member Agency intends to have bound by any award made therein. (c) The decision of the arbitrator shall be binding upon all Member Agencies involved in the arbitration. Each Member Agency to the arbitration shall bear its own legal costs, including attorney fees. 8.06 Partial Invalidity. If any one or more of the terms, provisions, sections, promises, covenants or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable or void for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, sections, promises, covenants and conditions of this Agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 12 8.07 Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of the Member Agencies hereto. 8.08 Assignment. A Member Agency shall not assign any rights or obligations under this Agreement without the written consent of all other Member Agencies. 8.09 Execution. The legislative bodies of the Member Agencies enumerated herein have each authorized execution of this Agreement, as evidenced by the authorized signatures below, respectively. Dated: F. fS t! City Council Approved On: ATTEST: Deputy City Jerk of the City Costa Mesa Dated: ATTEST: <�Fo Nor City Clerk of the City of Newport Beach IN CITY OF COSTA MESA By: C4. -- Mayor APPROVED AS TO FORM: City Attorney, CITY OF NEWPORT BEACH By: APT VED AS TO FORM: City Attorney JPA AGR 050699 ADDENDUM NO. 3 TO MEMORANDUM OF UNDERSTANDING This Addendum is entered into on November Via`, 1996, by and between the City of Costa Mesa ( "Costa Mesa "), a municipal corporation, and the City of Newport Beach ( "Newport Beach "), a municipal corporation, to amend the Memorandum of Understanding ( "MOU "), dated August 3, 1995, and, as amended by Addendums No. ,. 1 and No. 2 on August 1, 1996. RECITALS WHEREAS, Costa Mesa and Newport Beach approved the reorganization of the Airborne Law Enforcement Services Agency ( "ABLE ") upon the withdrawal of the City of Huntington Beach ( "Huntington Beach ") and County of Orange ( "County"); and WHEREAS, this Addendum will amend the MOU to reflect the reorganizatin plan approved by Costa Mesa and Newport Beach and to address the provision and disposal of helicopterfaircraft by ABLE should the amended MOU be terminated. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein the parties agree as follows: 1. Paragraph 4.11 is added to the MOU to read as follows: "Provided funds are available for appropriation, the member agencies Costa Mesa and Newport Beach agree to budget for fiscal year 1997 -98, and thereafter, the necessary funds to purchase the aircraft as identified in the letter of intent, attached hereto and incorporated herein by this reference -and marked as Exhibit 1, and such other aircraft for ABLE as mutually agreed upon by Costa Mesa and Newport Beach." 2. Paragraph 4.12 is added to the MOU to read as follows: "Revenues received by ABLE from LoJack Corporation shall be disbursed in equal amounts four (4) ways between Costa Mesa, Newport Beach, Huntington Beach and Orange County Sheriff's Department. ABLE shall be the primary contractor for LoJack and may execute subcontracts to Huntington Beach and Orange County and other public agencies as determined by the Board." 3. The provisions of Subparagraph (B) of Paragraph 6.02 of the MOU is amended to read as follows: "(B) In the case of voluntarily withdrawal, written notice shall be given one hundred twenty days (120) prior to the end of a fiscal year, except that such notice may be shortened by unanimous approval of the Board." 4. Paragraph 7.04 is added to the MOU to read as follows: "Notwithstanding other provisions in the MOU, the member agencies Costa Mesa and Newport Beach agree to follow a procedure for selling of equipment and aircraft in the event the MOU is terminated. The equipment and aircraft shall be given a fair market value by an appraiser mutually agreed upon by Costa Mesa and Newport Beach. Before the equipment and aircraft are sold on the open market, Costa Mesa and Newport Beach, each, shall have the right to purchase the equipment and aircraft at a price and under terms as mutually agreed upon by Costa Mesa and Newport Beach which may include a financing arrangement for the purchaser and a leasing arrangement for the non - purchasing member agency to allow for a transition period after the termination of the MOU. Proceeds from the sale of equipment and aircraft upon termination of the MOU shall be equally distributed (50/50) to Costa Mesa and Newport Beach." 5. The provisions of Subparagraph (c) of Paragraph 4.09 of the MOU is deleted. 6. The provisions of this Addendum shall supercede all other amendments to the MOU by Addendums Nos. 1 and 2. In the event of a dispute concerning the provisions of this Addendum, the parties agree to submit the matter to binding arbitration before a retired judge mutually agreed upon by the parties. 7. Except as provided herein, all other provisions of the MOU Addendum Nos. 1 and 2 shall remain in full force and effect. 8. The legislative bodies of Costa Mesa and Newport have each authorized execution of this Addendum as evidenced by the authorized signatures below, respectively. Dated: !I (�'` 9 CITY OF COSTA MESA C.v y r of the City of Costa Mesa ATTEST: Deputy City0CIerk of the City of Costa Mesa Dated ATTEST: City Clerk of the City of Newport Beach,`. ie{� lg,a } '"ode.,_ �- % � f l �''� f`, .a✓� APPROVED AS TO FORM: City Attorney of the City of Costa Mesa CITY OF NEWPORT BEACH Mayor of the City of Newport Beach APPROVED AS TO FORM: 'y Attorney of the City of wport Beach ! c 3oli RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, APPROVING ADDENDUM NO. 3 TO THE MEMORANDUM OF UNDERSTANDING FOR AIRBORNE LAW ENFORCEMENT SERVICPS. THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY RESOLVE AS FOLLOWS: WHEREAS, the public agencies of the City of Costa Mesa and the City of Newport Beach desire to cooperate with each other to exercise some or all of their powers to establish, operate, and maintain the regional AirBorne Law Enforcement Services Agency ( "ABLE ") consistent with the Memorandum of Understanding ( "MOU ") dated August 3, 1993; and WHEREAS, the City of Costa Mesa and the City of Newport Beach have and possess the power and authorization to finance, acquire, and maintain a public law enforcement helicopter service and facilities for the benefit of the lands and inhabitants within their respective boundaries and such services by ABLE have benefitted their respective lands and inhabitants; and WHEREAS, the City of Costa Mesa and the City of Newport Beach have the authority to adopt Addendum No. 3 to formalize the reorganization of ABLE pursuant to California Government Code Sections 6500 at seq.; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Costa Mesa, California, pursuant to the aforesaid authority, hereby adopts and approves 0 r- -I u Addendum No. 3 to the MOU, attached hereto as Exhibit "A" and incorporated herein by this reference. BE IT FURTHER RESOLVED that the City Manager is hereby authorized to take the necessary steps consistent with Addendum No. 3 to effectuate the reorganization of ABLE. PASSED AND ADOPTED this 18th day of November, 1996. ATTEST: Deputy City Jerk of the City of Costa Mesa STATE OF CALIFORNIA } COUNTY OF ORANGE ) ss CITY OF COSTA MESA ) Ma of the City of Costa Mesa PR VED AS TO FORM CITY ATTORNEY I, MARY T. ELLIOTT, Deputy City Clerk and ex- officio Clerk of the City Council of the City of Costa Mesa, hereby certify that the above and foregoing Resolution No. 9 - 00 was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on the 18th day of November, 1996. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the City of Costa Mesa this 19th day of November, 1996. Deputy y Clerk and ex- officio Clerk of the City Council of the City of Costa Mesa WORANDUM OF UNDERSTANDI` FOR AIRBORNE LAW ENFORCEMENT SERVICES This agreement is made and entered into this � day of 4!�-� • , 19 5, in the County of Orange, State'of California, by and between the City of Costa Mesa ( "Costa Mesa "), the City of Huntington Beach ( "Huntington Beach "), City of Newport Beach ( "Newport Beach "), the County of Orange ( "County "), and the Orange County Fire Authority ( "OCFA "), collectively referred to as "Member Agencies." RECITALS WHEREAS, the Member Agencies have and possess the power and authorization to finance, acquire and maintain a public safety helicopter service and facilities for the benefit of the lands and inhabitants within their respective boundaries; and WHEREAS, this Agreement supercedes the Memorandum of Understanding adopted on August 3, 1993; and WHEREAS, the Member Agencies propose to join together to establish, operate and maintain a cooperative program of management for a helicopter service for the benefit of their respective lands and inhabitants; and WHEREAS, it is in the public interest to provide a means by which other public agencies acquire helicopter service for the benefit of their lands and inhabitants. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein the parties hereto agree as follows: I PURPOSE 1.01 The purpose of this Agreement is to cooperate with each Member Agency in the exercise of some or all of their powers to establish a regional air support unit in the manner set forth in this Agreement. 1.02 Notwithstanding, each Member Agency expressly retains all rights and powers to finance, plan, develop, construct, equip, maintain, repair, manage, operate, and control equipment, facilities, properties and projects that it deems in its sole discretion to be necessary or desirable and that are authorized by the laws governing it. The Agreement shall in no way impair any of the Member Agencies' respective rights, powers or title to such equipment, facilities, properties and projects. 1.03 Notwithstanding, each Member Agency expressly retains all rights and powers to use other funds or funding sources to finance, plan, develop, construct, equip, maintain, repair, manage, operate and control equipment and facilities for a public safety helicopter service system. 1 ® II CREATION OF REGIONAL AIR SUPPORT UNIT 2.01 By this Agreement, Costa Mesa, Huntington Beach, County, Newport Beach and OCFA agree to cooperate with each other in the provision of helicopter service in the manner and under the terms of this Agreement. The cooperative use of the Member Agencies helicopter services shall be known as the Airborne Law Enforcement Services ( "ABLE ") the Member Agencies may agree on a different call name for ABLE. 2.02 ABLE shall possess in its own name, and the Member Agencies delegate to it the following enumerated powers:_ (A) To make and enter into contracts consistent with this Agreement; (B) To receive compensation, gifts, contributions and donations of property, funds, services and other forms of financial assistance from persons, firms, corporations and any governmental entity; (C) To sue and be sued in its own name; (D) To apply for an appropriate grant or grants under any federal, state, or local programs for assistance in developing any of its programs or providing helicopter services to other public entities; (E) To adopt rules, regulations, policies, by -laws and procedures governing the operation of ABLE; (F) To add Member Agencies to ABLE which contribute flight crews and aircraft equipment and execute agreements and resolutions consistent with the terms of this Agreement; (G) To contract with public entities to provide helicopter services to their land and residents; 2.03 Said power shall be exercised in the manner provided in the California Joint Powers Act, and except as expressly set forth herein, subject to restrictions on the manner of exercising such powers as are imposed upon Member Agencies in the exercise of similar powers. 2 m ORGANIZATION 3.01 The membership of ABLE shall be the Member Agencies, public entities which contribute flight crews and aircraft equipment and have executed or hereafter execute this Agreement, or amendment thereto, and which have not withdrawn from ABLE. 3.02 ABLE shall be managed by a Board consisting of the Chiefs of Costa Mesa, Huntington Beach, Newport Beach, OCFA and the Sheriff of the County, and one appointee for each Member Agency for a total of ten (10) Board Members. The Chiefs of Costa Mesa, Huntington Beach, OCFA and the Sheriff of the County shall each appoint one Board member and their alternate. Each Board member, or in the absence of a Board member, the alternate shall have one vote on all matters before the Board.. The members of the Board may be supplemented or amended from time to time. 3.03 . Each Board member and alternate shall hold office until a successor is selected, elected or appointed as the case may be under the powers of each Member Agency. The term of the Board member or alternate who is a public official or employee of a Member Agency shall terminate upon such Board Member or alternate leaving office and the vacancy shall be filled by selection, election or appointment as the case may be under the powers of each Member Agency. The Sheriff, or his or her designee, will always be a representative for the County of Orange. 3.04 Board members and alternates shall not receive additional compensation for the service on the ABLE Board, but may be reimbursed by ABLE for reasonable expenses incurred in conducting the business of ABLE as provided in this Agreement, when the expenses are not paid by the employing Member Agencies. 3.05 The principal office of ABLE shall be established by the Board and shall be located within the County of Orange. The Board may change the principal office from one location to another within the County of Orange. Any change of address shall be noted by the Board but shall not be considered an amendment to this Agreement. 3.06 The Board shall meet at a location as may be designated by the. Board. The time and place of regular meetings of the Board shall be determined by resolution adopted by the Board. A copy of such resolution shall be furnished to the Member Agencies. All meetings of the Board, including regular, adjourned, and special meetings, shall be called and held in a manner as provided in the Ralph M. Brown Act, Chapter 9, Division 2, Title 5 of the California Government Code commencing with Section 54950 et seq., as amended. 3.07 All of the powers and authority of ABLE shall be exercised by the Board unless specifically delegated to the extent permitted by law or reserved to the Member Agencies under this Agreement. Unless otherwise provided herein, each Board Member shall be entitled to one vote. Except as otherwise provided herein, an 3 affirmative unanimous0te of the full membership of the B *d, or their alternate, may adopt any motion, resolution, or order and take any other action appropriate to carry forward the objectives of ABLE pursuant to this Agreement. 3.08 The Board shall designate a recording secretary to keep the minutes of all open meetings of the Board, and shall cause a copy of such minutes to be forwarded to each Member Agency within a reasonable time after each meeting. 3.9 The Board may adopt from time to time policies; rules and regulations for the conduct of its affairs and that of ABLE as may be required and consistent with this Agreement. 3.10 Where this Agreement requires an approval of a resolution by Member Agencies in any matter, the approval shall be evidenced by a certified copy of the resolution of the governing body of such Member Agency filed with ABLE. 'it shall be the responsibility of the Board to obtain certified copies of said actions. 3.11 -On an annual basis, the Board shall appoint a board member to be the presiding officer for the purpose of conducting the board meetings. 3.12 The Board shall appoint an officer or employee of a Member Agency to hold the offices of Treasurer and Controller whose duties shall be in conformance with Government Code Sections 6505 and 6505.5. In performing the duties of Treasurer and Controller, he /she shall follow the Member Agencies' policies and procedures. The Treasurer /Controller shall also administer all contracts subsequent to the Board's approval and shall make or contract with a certified public accountant to make an annual audit of the accounts and records of ABLE as provided in Government Code Section 6505. The annual audit shall be submitted to the Board and each Member Agency when completed. The Annual Budget shall be prepared by the Treasurer /Controller for the approval by the Board. ABLE's investment policies shall be the Member Agencies' investment policies as those may be modified by the treasurers of the Member Agencies and approved by the Board of ABLE. The cost of the Treasurer's services shall be reimbursed by ABLE as provided in this Agreement. 3.13 The Board shall have the power to appoint additional officers, employees or agents. Any officer, employee or agent of ABLE shall also be an officer, employee or agent of any of the Member Agencies. The appointment by the Board of such a person shall be evidence that the two positions are compatible. 3.14 The City Attorneys and County Counsel of the Member Agencies, or such persons deputy shall serve jointly as counsel to ABLE, to the extent permitted by such waivers of conflict of interests to authorize such representation as may be executed by the Member Agencies and the ABLE Board. 3.15 The officers shall perform all duties normal to their respective offices and: 4 (A) The&cretary shall countersign all coacts and other written documents and perform such other duties as assigned by the Board and shall keep minutes of the Board meetings. (B) The Treasurer /Controller shall be bonded in the amount to be determined by the Board, and the bond fee shall be paid by ABLE. The Treasurer /Controller shall perform the duties as set forth in Sections 3.12, 4.02, 4.03, 4.04, 4.05, 4.09 and 4.10. 3.16 The Board shall appoint a Commander to manage and oversee day -to -day operations of ABLE. The Commander shall be a sworn officer of a Member Agency and of a rank of at least Lieutenant or Battalion Chief. Each Member Agency shall appoint a liaison officer ( "LO ") to the ABLE and the LO shall be a sworn police officer and of a rank of at least a Captain. The LO's of each Member Agency shall meet collectively, as needed, to advise the Board on the levels of service of ABLE, methods of operation of ABLE and supervision of ABLE Commander. The Commander shall manage the daily operations of the ABLE and supervision of the helicopter sergeants from each respective Member Agency. The helicopter Sergeants will directly supervise their respective helicopter crews and mechanics and crews and mechanics of other Member Agencies as directed by ABLE: 3.17 All of the privileges and immunities from liability, exemption from laws, ordinances and rules, all relief, pension, disability, worker's compensation and other benefits which apply to the activity of officers, employees, or agents of any of the Member Agencies when performing their respective functions shall apply to them to the same degree and extent while they are engaged in the performance of any of the functions and other duties under this Agreement.. None of the officers, agents or employees of a Member Agency appointed to the Board or performing services at the direction of ABLE shall be deemed by reason of their appointment or service to be employed by any of the other Member Agencies or ABLE or be subject to any of the requirements of the other Member Agencies. IV BUDGET AND DISBURSEMENTS 4.01 The Board shall adopt an annual budget for the ensuing fiscal year pursuant to procedures developed by the Board. 4.02 The Treasurer /Controller shall draw 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 and such requisition for payment in accordance with rules, regulations, policies, procedures and bylaws adopted by the Board. 4.03 All funds received by the Treasurer /Controller for services provided by ABLE will be placed in object accounts; and the receipt, transfer, or disbursement of such funds during the term of this Agreement shall be accounted for in accordance with generally accepted accounting principles applicable to governmental entities. 5 There shall be strict accountability of all funds. All revenues and expenditures shall be reported to the Board on a quarterly basis. 4.04 All expenditures within the approved annual budget shall be made upon the approval of the Treasurer /Controller in accordance with the rules, policies and procedures adopted by the Board. No expenditures in excess of those budgeted shall be made without the unanimous approval of the Board, and the budget shall thereafter be revised and amended. 4.05 The records and accounts of the ABLE shall be audited annually by an independent certified public accountant and the cost of the audit shall be paid by ABLE. The minimum requirements shall be those prescribed by the State Controller under Section 26909 of the California Government Code and in conformance with generally accepted auditing standards. Copies of such audit report shall be filed with the County Auditor and each Member Agency no later than fifteen (15) days after receipt of said audit by the Board. 4.06 The Member Agencies acknowledge that the County of Orange provides law enforcement helicopter services to incorporated municipal public agencies. 4.07 The Member Agencies acknowledge and agree that ABLE will act as a conduit for the management, direction and provision of law enforcement helicopter services to the Member Agencies and to other public agencies that contract with ABLE for such services. The Commander shall keep a written account of the actual flight hours of the services provided to each Member Agency, each contracting agency, and the Regional Narcotics Suppression Program ( "RNSP "). The written account of such flight hours shall be provided to the Board on a monthly basis. 4.08 All revenues received by the Member Agencies from the RNSP program shall be divided equally among the Member Agencies regardless of which agency flew a particular shift for RNSP except OCFA. 4.09 Based on information provided by the Commander, the Treasurer /Controller shall keep a written account of services provided other public agencies by the Member Agencies at the direction of ABLE. The crews and equipment of the Member Agencies shall be rotated as directed by the Board in providing services to the other public agencies. All revenues received from other public agencies contracting with ABLE for helicopter services shall be distributed on a quarterly basis to each Member Agency under the following formula: (A) First, to reimburse the actual direct costs for the Member Agency's providing Treasurer /Controller and Secretary services to the ABLE. (B) Second, to reimburse each Member Agency for crew and equipment costs based upon the percentage of law enforcement flight hours produced by each Member Agency during the fiscal year. Revenues received as reimbursement for "light helicopter" (Type III) fire 9 suppression acti *s shall also be shared utilizing thoame formula for all Member Agencies with the exception of the OCFA. Any reimbursement revenues resulting from the activity of OCFA helicopters or crews shall be distributed directly back to the OCFA. The percentage of flight hours shall be based on the total flight time produced by ABLE divided into the amount of flight hours produced by each Member Agency. 4.10 In establishing rates for helicopter services to public agencies, the Board shall assure that the contracts for such services provide for the reimbursement of the actual expenses of providing the services, insurance coverage by the Member Agencies for their personnel and equipment, and administrative expenses of ABLE. Payment for ABLE helicopter services by contracting public agencies shall be made on a monthly basis to the Treasurer/ Controller of ABLE. The Treasurer /Controller shall provide a written monthly account of all revenues and expenses of ABLE services to other public agencies to the Board. V LIABILITIES 5.01 The Member Agencies acknowledge that each agency is contributing its own personnel and equipment to a cooperative pool of personnel and equipment to be managed by ABLE. Each Member Agency shall retain all debts, liabilities, insurance obligations and other obligations for its personnel and equipment. Where necessary and at the direction of ABLE Board, each Member Agency agrees to add ABLE as an additional insured on their respective insurance or self- insurance coverage for their personnel and equipment. In the event that the costs of each Member Agency's personnel and equipment contributed to ABLE for each fiscal year exceeds the amount of funds to be reimbursed by the ABLE for such costs, the Member Agencies agree to waive all rights to be reimbursed for such costs by ABLE from funds received by ABLE in subsequent fiscal years. Each Member Agency agrees to expressly waive any and all rights to be reimbursed by the other Member Agencies for personnel and equipment contributed to ABLE to the extent that revenues received by the ABLE are not sufficient for ABLE to reimburse the Member Agency for the costs of its personnel and equipment contributed to ABLE. 5.02 Each Member Agency hereto agrees to indemnify and hold ABLE and the other Member Agencies harmless from any liability for damages, costs or attorney fees, actual or alleged, to persons or property arising out of or resulting from defective equipment owned or leased by the indemnifying Member Agency or from negligent acts or omissions of the indemnifying Member Agency or its officials or employees. In the event of liability imposed upon any of the Member Agencies or upon the Board created by this Agreement, for injury which is caused by defective equipment or the negligent or wrongful act or omission of any of the Member Agencies in the performance of this Agreement, the Member Agency or Member Agencies that own or lease such defective equipment or are directly responsible for the negligent or wrongful acts or omissions shall indemnify, defend, and hold ABLE and all other Member Agencies harmless from any liability for personalury or property damage arising out of the performance of this Agreement. 5.03 Member Agencies agree that ABLE and Member Agencies should be fully protected from any loss, injury, liability, damage, claim, lawsuit, cost or expense arising out of, or in any way related to, the performance of services pursuant to this Agreement. Accordingly, the provisions of this Agreement should be construed and interpreted to provide the fullest possible protection to ABLE, Member Agencies and Member Agency's officers and employees. Member Agencies acknowledge that ABLE would not provide services pursuant to this Agreement or related Agreements in the absence of the commitments of each Member Agency as specified in this section. Member Agencies acknowledge that ABLE board, Commander and LO may be subject to liability for decisions, management and actions in the supervision and direction of ABLE. In this regard, Member Agencies agree that ABLE shall obtain Directors and Officers insurance for ABLE directors and officers, and that the cost of such insurance coverage shall be deducted from funds distributed by ABLE to the Member Agencies on a prorata basis equal to the number of Member Agencies (i.e., 33-1/3% for 3 Member Agencies, etc.). 5.04 Except as provided herein, each Member Agency waives and gives up any claim against or right to sue ABLE, any Member Agency, or any of their officers, employees or representatives, for any loss, damage or injury that arises out of, or is in any way related, to the performance of services pursuant to this Agreement. This waiver extends to liability for death, bodily injury, or property damage, that may be sustained by ABLE, any Member 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 ABLE, any Member Agency, and /or their respective officers, employees, agents contractors, representatives, or any third party. This waiver does not extend to death, bodily injury or property damage caused by the fraudulent or willful conduct or any act which constitutes a violation of a penal statute, and to a Member Agency's right to bring a legal action against other Member Agencies who refuse or fail to honor its requirement to defend and /or indemnify ABLE and other Member Agencies as set forth in Section 5.02 and 5.06. 5.05 Any public agency, other than the Member Agencies, receiving services pursuant to this Agreement, and /or any other contract with ABLE, shall defend, indemnify and hold harmless the ABLE, the responding Member Agency, and their respective officers, employees, contractors, agents and representatives, with respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to the performance of services by ABLE or the responding Member Agencies within the public agency's jurisdiction. Prior to ABLE providing services, the public agency shall provide written proof of insurance or self- insurance coverage in amounts approved by the Board which covers the scope and type of services provided by ABLE to the public agency. The obligations of each public agency pursuant to this section extends, without limitation, to any injury, death, loss or damage which occurs within that public agency's jurisdiction and which is sustained by any third party, any employee or contractor of the public agency, or the contractor's employees. The N -terms of this section sh be contained in any agreement IJWBLE with non - member public agencies. 5.06 Member Agencies shall be responsible for the continued provision of workers' compensation for the officers or agents of the Member Agencies that serve as officers or employees of ABLE. In this regard, each Member Agency shall defend, indemnify and hold harmless ABLE and any other Member Agencies, and their respective officers, employees, contractors, agents and representatives with respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to any industrial /worker compensation injury sustained by an employee of the indemnifying Member Agency during the performance of service by ABLE or the responding Member Agencies under this Agreement. 5.07 In the event that joint and several liability is imposed upon ABLE and /or among and between the Member Agencies for any act or omission that occurs while performing services for a non - member public agency, the public agency contracting for services under Section 4.10 shall be responsible to fully satisfy any such judgment or award and shall fully indemnify ABLE and the Member Agencies and their respective officers, employees, contractors, agents and representatives for any such liability. The terms of this section shall be contained in any agreement by ABLE with non - member public agencies. VI ADMISSION AND WITHDRAWAL OF PARTIES 6.01 Additional public agencies that contribute personnel and aircraft equipment may become Member Agencies to ABLE upon such terms and conditions as provided by the Board and upon the unanimous consent of the existing Member Agencies as evidenced by approval of resolutions therefore and the execution of a written amendment to this Agreement by all of the Member Agencies, including the additional Member Agency. 6.02 The withdrawal of any Member Agency, either voluntarily or involuntarily shall, unless otherwise provided for by the Board, be conditioned as follows: (A) Involuntary withdrawal shall mean those .circumstances where a Member Agency must withdraw due to fiscal or budgetary impacts which discontinue the funding of flight crews or aircraft. (B) In the case of a voluntary withdrawal, written notice shall be given one hundred and twenty 0 20) days prior to the end of a fiscal year; (C) Neither voluntary or involuntary withdrawal shall relieve the withdrawing Member Agency of its proportionate share of any debts or other liabilities incurred by ABLE prior to the effective date of the Member Agency's withdrawal, nor any liabilities imposed upon or incurred by the E Member Agency pursuant to this Agreement prior the effective date of the Member Agency's withdrawal; (D) Withdrawal shall not result in the forfeiture of that Member Agency's rights and claims relating to revenues received by ABLE during the time period that the Member Agency provided services under ABLE direction; and (E) The withdrawing Member Agency shall retain all rights and title to its personnel and aircraft equipment and shall remove such personnel and aircraft equipment from the direction of ABLE. ki.gWiliff-I •R � • • • 7.01 ABLE shall continue to exercise the powers herein until the termination of this Agreement and any extension thereof as provided in this paragraph or until the Member Agencies have mutually rescinded this Agreement provided, however, ABLE shall continue to exist for the purposes of disposing of all claims, distribution of assets and all other functions necessary to conclude the affairs of ABLE. 7.02 Termination shall occur upon the written consent of all of the Member Agencies, upon the withdrawal from ABLE of a sufficient number of the Member Agencies to leave less than two (2) Member Agencies remaining in ABLE and full satisfaction of all outstanding financial obligations of ABLE. However, no such termination shall occur until all other contractual obligations of ABLE have been satisfied. 7.03 In the event of the termination of this Agreement, any funds remaining following the discharge of all obligations shall be disposed of by returning to each Member Agency that is a member of ABLE immediately prior to the termination of this Agreement, a share of such funds proportionate to the contribution made to ABLE by said Member Agency, to the extent legally possible. VIII MISCELLANEOUS 8.01 Amendments. This Agreement may be amended with the unanimous approval of all Member Agencies; provided, however, that no amendment may be made which would adversely affect the interests of the owners of bonds, letters of credit or other financial obligations of ABLE. 8.02 Notices. Any notice or instrument required to be given or delivered by depositing the same in any United States Post Office, registered or certified, postage prepaid, 10 addressed to the Mer>tr Agencies, shall be deemed to a been received by the Member Agency to wh the same. is :addressed at the exp tion of seventy -two (72) hours after deposit of the same in the United States Post Office for transmission by registered or certified mail as aforesaid. 8.03 Effective Date. This Agreement shall be effective at such time as this Agreement has been executed by any two or more of the Member Agencies enumerated in the introduction of this Agreement. No officer or employee of ABLE or any Member Agency shall have any financial interest, direct or indirect, in. ABLE. Nor shall any such officer or employee participate in any decision relating to ABLE which affects his or financial interests or those of a corporation, partnership, or association in which he or she is directly or indirectly interested, in violation of any State law or regulation. 8.05 Arbitration. (A) Any controversy or claim between any two or more Member Agencies, or between any such Member Agency or Member Agencies and ABLE, with respect to the ABLE's operations, or to any claims, disputes, demands, differences, controversies, or misunderstandings arising under, out of, or in relation to this Agreement, shall be submitted to and determined by arbitration. To the extent not inconsistent herewith, the rules of the American Arbitration Association shall apply. (B) The Member Agency desiring to initiate arbitration shall give notice of its intention to arbitrate to every other Member Agency and ABLE. Such notice shall designate such other Member Agencies as the initiating Member Agency intends to have bound by any award made therein. (C) The decision of the.arbitrator shall be binding upon all Member Agencies involved in the arbitration. Each Member Agency to the arbitration shall bear its own legal costs including attorneys fees. ADD insiongil-NM ti4=lfC:ti4►� If any one or more of the terms, provisions, sections, promises, covenants or conditions of this Agreement shall .to any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, sections, promises, covenants and conditions of this Agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 8.07 Successors. 11 This Agreement shall be binding upon and shall inure to the benefit of the successors of the Member Agencies hereto. 8.08 Assignment. A Member Agency shall not assign any rights or obligations under this Agreement without the written consent of all other Member Agencies. 8.09 Execution. The legislative bodies of the Member Agencies enumerated herein have each authorized execution of this Agreement, as evidenced by the authorized signatures below, respectively. Dated CITY OF COSTA MESA W2 Mayor ATTEST APPROVED AS TO FORM Deputy City Clerk City Attorney of the City of Costa Mesa Dated ATTEST City Clerk of City of Huntington Beach CITY OF HUNTINGTON BEACH By: Mayor APPROVED AS TO FORM City Attorney Dated CITY OF NEWPORT BEACH 12 ATTEST City Clerk of City .v Newport 13 By j Mayor APPROVED AS TO FORM lftu-11�1� - Cit , Attorney Dated 0 ATTEST: Signed and certified that a copy of this document has been delivered to the Chairman, Board of Supervisors Phyllis A. Anderson Clerk, Board of Supervisors Dated: A9LEWA A9LE.MOU (7 -14 -951 14 COUNTY OFOANGE, a Political Subdivision of the State of California By: Chairman, Board of Supervisors APPROVED AS TO FORM Terry C. Andrus, County Counsel ORANGE COUNTY FIRE AUTHORITY 22 0 ADDENDUM AGREEMENT NO. 2 This agreement is made and entered into this isr day of C, , 1994, in the County of Orange, State of California, by and between .the City of Costa Mesa ( "Costa Mesa "), the City of Huntington Beach ( "Huntington Beach "), the City of Newport Beach ( "Newport Beach "), and the County of Orange ( "County "), collectively referred to as "Member Agencies." RECITALS WHEREAS, the Member Agencies have entered into the Memorandum of Understanding for Airborne Law Enforcement Services ( "Agreement ") to establish a regional air support unit in the manner set forth in the Agreement; and WHEREAS, the Member Agencies by this Addendum Agreement intend to amend the Agreement to more fully set forth, their rights and obligations concerning the provision of law enforcement helicopter services to public agencies other than the Member Agencies as provided in paragraph 5.05 of the Agreement. NOW THEREFORE, for and in consideration of the mutual promises and covenants contained herein the parties hereto agree as follows: 1.01 The provisions of paragraph 5.05 of the Agreement are amended as follows: "Any public agency, other than the Member Agencies, receiving services pursuant to this Agreement, and /or any other contract with the ABLE, shall defend, indemnify and hold harmless the ABLE, the responding Member Agency, and their respective officers, employees, contractors, agents and representatives, with respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to the performance of services by the ABLE or the responding Member Agencies within the public agency's jurisdiction. Prior to the ABLE providing services, the public agency shall provide written proof of insurance or self- insurance coverage in amounts approved by the Board, or oarticinate in insurance coverage obtained by ABLE, which covers the scope and type of services provided by the ABLE to the public agency. The obligations of each public agency pursuant to this section extends, without limitation, to any injury, death, loss or damage which occurs within that public agency's jurisdiction and which is sustained by any third party, any employee or contractor of the public agency, or the contractor's employees. The terms of this section shall may be contained in any agreement by ABLE with non - member public agencies. 1.02 Except as provided herein, all other provisions of the Agreement shall remain in effect. 1.03 The legislative bodies of herein have each authorized the Agreement as evidenced by the respectively. Dated / ATTEST &-L� Deputy C' y Clerk of the City of osta Mesa Dated ATTEST the Member Agencies enumerated execution of this Addendum authorized signatures below, CITY OF COSTA MESA By: Mayor APPROVED AS TO FORM -4�' tel'zt-e- City Attorney CITY OF HUNTINGTON BEACH 7 Mayor APPROVED AS TO FORM i City Clerk of City of City Attorney Huntington Beach Dated //-/� -q CITY OF NEWPORT BEACH By: Mayor 2 �1ranVy ATTEST }.~� City Clerk of City o Newport Beach Dated MAY 2 3 W5 ATTEST4 Signed and certified that a copy of this document has been delivered to the Chairman, Board of Supervisors 1� &T44"Z� W.A11;1 Fi" i € - GQQII�NQ, P, ri IPlC Clerk, Board of Supervisors ABLEADEN.AGR (1-5-95) COUNTY OF ORANGE, a Political Subdivision of the State of California Y Chairman, Board of Supervisors APPROVED AS TO FORM Terry C. Andrus, County Counsel Dated: '/ v J " 0 0 ADDENDUM AGREEMENT NO. 1 dl This agreement is made and entered into this I day of UCN 19 CJ in the County of Orange, State of California, by and between the City of Costa Mesa ( "Costa Mesa "), the City of Huntington Beach ( "Huntington Beach ") , the City of Newport Beach ( "Newport Beach") and the County of Orange ( "County "), collectively referred to as "Member Agencies." RECITALS WHEREAS, Costa Mesa, Huntington Beach and County have entered into the Memorandum of Understanding ( "MOU") to create the Airborne Law Enforcement Services Agency ( "ABLE "); and WHEREAS, Newport Beach has decided to join ABLE as a Member Agency of ABLE as provided in the MOU; and WHEREAS, this Addendum Agreement will amend the MOU to reflect the addition of Newport Beach as a Member Agency of ABLE. NOW THEREFORE, for and in consideration of the mutual promises and covenants contained herein the parties hereto agree as follows: 1.01 Paragraph 2.01 of the MOU is amended to read as follows: "2.01 By this Agreement, Costa Mesa, Huntington Beach, Newport Beach and County agree to cooperate with each other in the provision of helicopter services in the manner and under the terms of this Agreement. The cooperative use of the Member Agencies helicopter services shall be known as the Airborne Law Enforcement Services ( "ABLE "). The Member Agencies may agree on a different call name for ABLE." 1.02 Paragraph 3.02 of the MOU is amended to read as follows: "3.02 The ABLE shall be managed by a Board consisting of the Chiefs of Police of Costa Mesa, Huntington Beach and the Sheriff of Orange County and one appointee for each Member Agency for a total of eight (8) Board Members. The Chiefs of Police of Costa Mesa, Huntington Beach, Newport Beach . and the Sheriff of Orange County shall each appoint one Board member and their alternate. Each Board member, or in the absence of a Board member, the alternate shall have one vote on all matters before the Board. The members of the Board may be supplemented or amended from time to time." 1.03 Except as provided herein, all other provisions of the MOU shall remain in full force and effect, which MOU is attached hereto as Exhibit A and incorporated herein by this reference. 1.04 The legislative bodies of the Member Agencies enumerated herein have each authorized execution of this Agreement, as evidenced by the authorized signatures below, respectively. Dated 1 ATTEST CITY OF COSTA MESA B Ma APPROVED AS TO FORM City erk of the City of City Attorney Costa esa Dated CITY OF HUNTINGTON BEACH Mayor ATTEST APPROVED AS TO FORM City Clerk of City ofv City Attorney Huntington Beach Ad 0 o-5'vGc-/-/ Dated //-�� 9� PC) ATTEST City Clerk of Cit f Newport Beach 2 CITY OF NEWPORT BEACH By: — Ab Mayor APPROV AS TO FORM City Attorney Dated ATTEST:ASigned and certified that a copy of this document has been delivered to the Chairman, Board of Supervisors AkLAA.)E GWS KATHLEEN E. GOODNO, ACTING Nancy H. Smanson I-1=M.'±staT& Clerk, Board of Supervisors ABLE-ADD.NB (1-5-95) COUNTY OF ORANGE, a Political Subdivision of the State of California BVQ �g Chairman, Board of Supervisors APPROVED AS TO FORM Terry C. Andrus, County Counsel IF 1 1. WE 1124�122/- -!, 16 Dated: a J MEMORANDUM OF UNDERSTANDING FOR AIRBORNE LAW ENFORCEMENT SERVICES Th s agreement is made and entered into this 3 '" day of It iiIL3, in the County of orange, State of California, by and between the City of Costa Mesa ( "Costa Mesa "), the City of Huntington Beach ( "Huntington Beach "), and the County of Orange ( "County "), collectively referred to as "Member Agencies." RECITALS WHEREAS, the Member Agencies have and possess the power and authorization to finance, acquire and maintain a public law enforcement helicopter service and facilities for the benefit of the lands and inhabitants within their respective boundaries; and WHEREAS, the Member Agencies propose to join together to establish, operate and maintain a cooperative program of management for a helicopter service for the benefit of their respective lands and inhabitants; and WHEREAS, it is in the public interest to provide a means by which other public agencies acquire helicopter service for the benefit of their lands and inhabitants. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein the parties hereto agree as follows: I PURPOSE 1.01 The purpose of this Agreement is to cooperate with each Member Agency in the exercise of some or all of their powers to establish a regional air support unit in the manner set forth in this Agreement. 1.02 Notwithstanding, each Member Agency expressly retains all rights and powers to finance, plan, develop, construct, equip, maintain, repair, manage, operate, and - control equipment, facilities, properties and projects that it deems in its sole discretion to be necessary or desirable and that are authorized by the laws governing it. The Agreement shall in no way impair any of the Member Agencies' respective rights, powers or title to such equipment, facilities, properties and projects. 1.03 Notwithstanding, each Member Agency expressly retains all rights and. powers to use other funds or funding sources to finance, plan, develop, construct, equip, maintain, repair, manage, operate and control equipment and facilities for a law enforcement helicopter service system. 004. A i II CREATION OF REGIONAL AIR SUPPORT UNIT 2.01 By this Agreement, Costa Mesa, Huntington Beach and County agree to cooperate with each other in the provision of helicopter service in the manner and under the terms of this Agreement. The cooperative use of the Member Agencies helicopter services shall be known as the Airborne Law Enforcement Services ( "ABLE ") the Member Agencies may agree on a different call name for ABLE. 2.02 The ABLE shall possess in its own name, and the Member Agencies delegate to it the following enumerated powers: , (A) To make and enter into contracts consistent with this Agreement; (B) To receive compensation, gifts, contributions and donations of property, funds, services and other forms of financial assistance from persons, firms, corporations and any governmental entity; (C) To sue and be sued in its own.name; (D) To apply for an appropriate grant or grants under any federal, state, or local programs for assistance in developing any of its programs or providing helicopter services to other public entities; (E) To adopt rules, regulations, policies, by -laws and procedures governing the operation of the ABLE; (F) To add Member Agencies to the ABLE which contribute, flight crews and aircraft equipment and execute agreements and resolutions consistent with the terms of this Agreement; (G) To contract with public entities to provide helicopter services to their land and residents; 2.03 Said power shall be exercised in the manner provided in the California Joint Powers Act, and except as expressly set forth herein, subject to restrictions on the manner of exercising such powers as are imposed upon Costa Mesa in the exercise of similar powers. - III 3.01 The membership of the ABLE shall be the Member Agencies, public entities which contribute flight crews and aircraft equipment and have executed or hereafter execute this Agreement, or amendment thereto, and which have not withdrawn from the ABLE. 2 • • 3.02 The ABLE shall be managed by a Board consisting of the Chiefs of Police and Sheriff of Costa Mesa, Huntington Beach and County and one appointee for each Member Agency for a total of six (6) Board Members. The Chiefs of Police and Sheriff of Costa Mesa, Huntington Beach and County shall each appoint one Board member and their alternate. Each Board member, or in the absence of a Board member, the alternate shall have one vote on all matters before the Board. The members of the Board may be supplemented or amended from time to time. 3.03 Each Board member and alternate shall hold office until a successor is selected, elected or appointed as the case may be under the powers of each Member Agency. The term of the Board member or alternate who is a public official or employee. of a Member Agency shall terminate upon such Board Member or alternate leaving office and the vacancy shall be filled by selection, election or appointment as the case may be under the powers of each Member Agency. The Sheriff, or his or her designee, will always be a.representative for the County of Orange. 3.04 Board members and alternates shall not receive additional compensation for the service on the ABLE Board, but may be reimbursed by ABLE for reasonable expenses incurred in conducting the business of the ABLE as- provided in this Agreement, when the expenses are not paid by the employing Member Agencies. 3.05 The principal office of the ABLE shall be established by the Board and shall be located within the County of Orange. The Board may change the principal office from one location to another within the County of Orange. Any change of address shall be noted by the Board but shall not be considered an amendment to this Agreement. 3.06 The Board shall.meet at a location as may be designated by the Board. The time and place of regular meetings of the Board shall be determined by resolution adopted by the Board. A copy of such resolution shall be furnished to the Member Agencies. All meetings of the Board, including regular, adjourned, and special meetings, shall be called and held in a manner as provided in the Ralph M. Brown Act, Chapter 9, Division 2, Title 5 of the California Government Code commencing with Section 54950 et seq., as amended. 3.07 All of the powers and authority of the ABLE shall be exercised by the Board unless specifically delegated to the extent permitted by law or reserved to the Member Agencies under this Agreement. Unless otherwise provided herein, each Board Member shall be entitled to one vote. Except as otherwise provided herein, an affirmative unanimous vote of the full membership of the Board, or their alternate, may adopt any motion, resolution, or order and take any other action appropriate to carry forward the objectives of the ABLE pursuant to this Agreement. 3 0 0 3. 08 The Board shall designate a recording secretary to keep the minutes of all open meetings of the Board, and shall cause a copy of such minutes to be forwarded to each Member Agency within a reasonable time after each meeting. 3.9 The Board may adopt from time to time policies, rules and regulations for the conduct of its affairs and that of the ABLE as may be required and consistent with this Agreement. 3.10 Where this Agreement requires an approval of a resolution by Member Agencies in any matter, the approval shall be evidenced by a certified copy of the resolution of the governing body of such Member Agency filed with the ABLE. It shall be the responsibility of the Board to obtain certified copies of. said actions. 3.11 On an annual basis, the Board shall appoint a board member to be the presiding officer for the purpose of conducting the board meetings. 3.12 The Board shall appoint an officer or employee of a Member Agency to hold the offices of Treasurer and Controller whose duties shall be in conformance with Government Code Sections 6505 and 6505.5. In performing the duties of Treasurer and Controller, he /she shall follow the Member Agencies'-policies and procedures. The Treasurer/ Controller shall also administer all contracts subsequent to the Board's approval and shall make or contract with a certified public accountant to make an annual audit of the accounts and records of ABLE as provided in Government Code Section 6505. The annual audit shall be submitted to the Board and each Member Agency when completed. The Annual Budget shall be prepared by the Treasurer /Controller for the approval by the Board. The ABLE's investment policies shall be the Member Agencies' investment policies as those may be modified by the treasurers of the Member Agencies and approved by the Board of the ABLE. The cost of the Treasurer's services shall be reimbursed by the ABLE as provided in this Agreement. .3.13 The Board shall have the power to appoint additional officers, employees or agents. Any officer, employee or agent of the ABLE shall also be an officer, employee or Agent of any of the Member Agencies. The appointment by the Board of such a person shall be evidence that the two positions.are compatible. 3.14 The City Attorneys and County Counsel of the Member Agencies, or such persons deputy shall serve jointly as counsel to the ABLE, to the extent permitted by such waivers of conflict of interests to authorize such representation as may be executed by the Member Agencies and the ABLE Board. 3.15 The officers shall perform all duties normal to their respective offices and: 4 0 0 (A) The Secretary shall countersign all contracts and other written documents and perform such other duties as assigned by the Board and shall keep minutes of the Board meetings. (B) The Treasurer /Controller shall be bonded in the amount to be determined by the Board, and the bond fee shall be paid by the ABLE. The Treasurer /Controller shall perform the duties as set forth in Sections 3.12, 4.02, 4.03, 4.04, 4.05, 4.09 and 4.10. 3.16 The .Board shall appoint a Commander to manage and oversee day -to -day operations of the ABLE. The Commander shall be • sworn police officer of a Member Agency and of a rank of at least • Lieutenant. Each Member Agency shall appoint a liaison officer ( "LO") to the ABLE and the LO shall be a sworn police officer and of a rank of at least a Captain. The IA's of each Member Agency shall meet collectively, as needed, to advise the Board on the levels of service of ABLE, methods of operation of ABLE and supervision of the ABLE Commander. The Commander shall manage the daily operations of the ABLE and supervision of the helicopter sergeants from each respective Member Agency. The helicopter Sergeants will directly supervise their respective helicopter crews and mechanics and crews and mechanics of other Member Agencies as directed by the ABLE. 3.17 All -of the privileges and immunities from liability, exemption from laws, ordinances and rules, all relief. pension, disability, worker's compensation and other benefits which apply to the activity of officers, employees, or agents of any of the Member Agencies when performing their respective functions shall apply to them to the same degree and extent while they are engaged in the performance of any of the functions and other duties under this Agreement. None of the officers, agents or employees of a Member Agency appointed to the Board or performing services at the direction of the ABLE shall be deemed by reason of their appointment or service to be employed by any of the other Member Agencies or the ABLE or.be subject to any of the requirements of the other Member Agencies. IV BIIDUT .AND DISBURSEMENTS 4.01 The Board shall adopt an annual budget for the ensuing fiscal year pursuant to procedures developed by the Board. 4.02 The Treasurer /Controller shall draw 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 and such requisition for payment in accordance with rules, regulations, policies, procedures and bylaws adopted by the Board. 5 • • 4.03 All funds received by the Treasurer /Controller for helicopter services provided by the ABLE, except funds from the City of Santa Ana, will. be placed in object accounts; and the receipt, transfer, or disbursement of such funds during the term of this Agreement shall be accounted for in accordance with generally accepted accounting principles applicable to governmental entities. There shall be strict accountability of all funds. All revenues and expenditures shall be reported to the Board on a quarterly basis. 4.04 All expenditures within the approved annual budget shall be made upon the approval of the Treasurer /Controller in accordance with the rules, policies and procedures adopted by the Board. No expenditures in excess of those budgeted shall be made without the unanimous approval of the Board, and the budget shall thereafter be revised and amended. 4.05 The records and accounts of the ABLE shall be audited annually by an independent certified public accountant and the cost of the audit shall be paid by the ABLE. The minimum requirements shall be those prescribed by the State Controller under Section 26909 of the California Government Code and in conformance with generally accepted auditing standards. Copies of such audit report shall be filed with the County Auditor and each Member Agency no .. later than fifteen (15) days after receipt of said audit by the Board. 4.06 The Member Agencies acknowledge and agree that the Costa Mesa currently contracts law enforcement helicopter services to the Santa Ana. This will continue until July, 1994. The Member Agencies acknowledge that the County of Orange provides law enforcement helicopter services to incorporated municipal public agencies. 4.07 The Member Agencies acknowledge and agree that the ABLE will act as a conduit for the management, direction and provision of law enforcement helicopter services to the Member Agencies and to. other public agencies that contract with the ABLE for such services. The Commander shall keep a written account of the actual flight hours of the services provided to each Member Agency, each contracting agency, and the Regional Narcotics Suppression Program ( "RNSP "). The written account of such flight hours shall be provided to the Board on a monthly basis. 4.08 All revenues received by the Member Agencies from the RNSP program shall be divided equally among the Member Agencies regardless of which agency flew a particular shift for RNSP. 4.09 Based on information provided by the Commander, the Treasurer /Controller shall keep a written account of services provided other public agencies by the Member Agencies at the direction of the ABLE. The crews and equipment of the Member 6 Agencies shall be rotated as directed by the Board in providing services to the other public agencies. All revenues received from other public agencies contracting with ABLE for helicopter services, except for revenues from Santa Ana to Costa Mesa, shall be distributed on a quarterly basis to each Member Agency under the following-formula: (A) First, to reimburse the actual direct costs for the Member Agency's providing Treasurer /Controller and Secretary services to the ABLE. (B) Second, to reimburse each Member Agency for crew and equipment costs based upon the percentage of flight hours produced by each Member Agency during the fiscal year. The percentage of flight hours shall be based on the total flight time produced by the ABLE divided into the amount of flight hours produced by each Member Agency. (C) The County and Huntington Beach are each to receive reimbursement equal to the value of the Santa Ana contract ($200,000) before Costa Mesa shares in any reimbursement for expenses described in paragraph (B). When this reimbursement level is attained, all three agencies will share reimbursement by their percentage of scheduled flight hours flown .thereafter., The flight hours spent by Costa Mesa servicing the Santa Ana contract will not be included in determining their percentage of scheduled "flight hours. 4.10 In establishing rates for helicopter services to public agencies, the Board shall assure that the contracts for such services provide for the reimbursement of the actual expenses of providing the services, insurance coverage by the Member Agencies for their.personnel and equipment, and administrative expenses of the ABLE. Payment for ABLE helicopter services by contracting public agencies shall be made on a monthly basis to the Treasurer/ Controller of the ABLE. The Treasurer /Controller shall provide a written monthly account of all revenues and expenses of ABLE services to other public agencies to the Board. V LIABILITIES 5.01 The Member Agencies acknowledge that each agency is contributing its own personnel and equipment to a cooperative pool of personnel and equipment to be managed by the ABLE. Each Member Agency shall retain all debts, liabilities, insurance obligations and other obligations for its personnel and equipment. Where necessary and. at the direction of the ABLE Board, each Member Agency agrees to add the ABLE as an additional insured on their respective insurance or self - insurance coverage for their personnel 7 and equipment. In the event that the costs of each Member Agency's personnel and equipment contributed to the ABLE for each fiscal year exceeds the amount of funds to be reimbursed by the ABLE for such costs, the Member Agencies agree to waive all rights to be reimbursed for such costs by the ABLE from funds received by the ABLE in subsequent fiscal years. Each Member Agency agrees to expressly waive any and all rights to be reimbursed by the other Member Agencies for personnel and equipment contributed to the ABLE to the extent that revenues received by the ABLE are not sufficient for the ABLE to reimburse the Member Agency for the costs of its personnel and equipment contributed to the ABLE. 5.02 Each Member Agency hereto agrees to indemnify and hold the ABLE and the other Member Agencies harmless from any liability for damages, costs or.attorney fees, actual or alleged, to persons or property arising out of or resulting from defective equipment owned or leased by the indemnifying Member Agency or from negligent acts or omissions of the• indemnifying Member Agency or its officials or employees. In the event of liability imposed upon any of the Member Agencies or upon the Board created by this Agreement, for injury which is caused. by. defective equipment or the negligent or wrongful act or omission of any of the Member Agencies in the performance of this Agreement, the Member Agency or Member Agencies that own or lease such defective equipment or are directly responsible for the negligent or wrongful acts or omissions shall indemnify, defend, and hold the ABLE and all other Member Agencies harmless from any liability for personal injury or property damage arising out of the performance of this Agreement.. 5.03 Member Agencies agree that the ABLE and Member Agencies should be fully protected from any loss, injury, liability, damage, claim, lawsuit, cost or expense arising out of, or in any way related to, the performance of services pursuant to this Agreement. Accordingly, the provisions of this Agreement should be construed and interpreted to provide the fullest possible protection to the ABLE, Member Agencies and Member Agency's officers and employees. Member Agencies acknowledge that the ABLE would not provide services pursuant to this Agreement or related Agreements in the absence of the commitments of each Member Agency as specified in this section. Member Agencies acknowledge that the ABLE board, Commander and LO may be subject to liability for decisions, management and actions in the supervision and direction of the ABLE. In this regard, Member Agencies agree that the ABLE shall obtain Directors and Officers insurance for ABLE directors and officers, and that the cost of such insurancb coverage shall be deducted from funds distributed by the ABLE to the Member Agencies on a prorata basis equal to the number of Member Agencies (i.e., 33 -1/3& for 3 Member Agencies, etc.). 5.04 Except as provided herein, each Member Agency waives and gives up any claim against or right to sue the ABLE, any Member Agency, or any of their officers, employees or representatives, for 8 • • any loss, damage or injury that arises out of, or is in any way related, to the performance of services pursuant to this Agreement. This waiver extends to .liability for death, bodily injury, or property damage, that may be sustained by the ABLE, any Member 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 ABLE, any Member Agency, and /or their respective officers, employees, agents contractors, representatives, or any third party. This waiver does not extend to death, bodily injury or property damage caused by the fraudulent or willful conduct or any act which constitutes a violation of a penal statute, and to a Member Agency's right to bring a legal action against other Member Agencies who refuse or fail to honor its requirement to defend and /or indemnify the ABLE -and :other Member Agencies as set forth in Section 5.02 and 5.06. 5.05 Any public agency, other than the Member Agencies, receiving services pursuant to this Agreement, and /or any other contract with the ABLE, shall defend, indemnify and hold harmless the ABLE, the responding Member Agency, and their respective officers, employees, contractors, agents and representatives, with respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to the performance of services. by the ABLE or the responding Member Agencies within the public agency's jurisdiction. Prior to the ABLE providing services, the public agency shall provide written proof of insurance or self- insurance coverage in amounts approved by the Board which covers the scope and type of services provided by the ABLE to the public agency. The obligations.of each public agency pursuant to this section extends, without limitation, to any injury, death, loss or damage which occurs within that public agency's jurisdiction and which is sustained by any third party, any employee or contractor of the .public agency, or the contractors employees. The terms of this section shall be contained in any agreement by ABLE with non - member public agencies. 5.06 Member Agencies shall be responsible for the continued provision of workers' compensation for the officers or agents. of the Member Agencies that serve as officers or employees of the ABLE. In this regard, each Member Agency shall defend, indemnify and hold harmless the ABLE and any other Member Agencies, and their respective officers, employees, contractors, agents and representatives with respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to any industrial /worker compensation'injury sustained by an employee of the indemnifying Member Agency during the performance of service by the ABLE or the responding Member Agencies under this Agreement. 5.07 In the event that joint and several liability is imposed upon the ABLE and /or among and between the Member Agencies for any act or omission that occurs while performing services "_for a non- 9 • • member public agency, the public agency contracting for services under Section 4.10 shall be responsible to fully satisfy any such judgment or award and shall fully indemnify the ABLE and the Member Agencies and their respective officers, employees, contractors, agents and representatives for any such liability. The terms of this section shall be contained in any agreement by ABLE with non- member public agencies. VI ADMISSION AND WITHDRAWAL OF PARTIES 6.01 Additional public agencies that contribute personnel and aircraft equipment may become Member Agencies to the ABLE upon such terms and conditions as provided by the Board and .upon, the unanimous consent of the existing Member Agencies as evidenced by approval of resolutions -therefore and the execution of a written amendment to this Agreement by all of the Member Agencies, including the additional Member Agency. 6.02 The withdrawal of any Member Agency, either voluntarily or involuntarily shall, unless otherwise provided for by the Board, be conditioned as follows: (A) Involuntary withdrawal shall mean those circumstances where a Member Agency must withdraw due to fiscal or budgetary impacts which discontinue the funding of flight crews or aircraft. (B) In the case of a voluntary withdrawal, written notice shall be given one hundred and twenty (120) days prior to the end of a fiscal year; (C) Neither voluntary or involuntary withdrawal shall relieve the withdrawing Member Agency of its proportionate share of any debts or other liabilities incurred by the ABLE prior to the effective date of the Member Agency's withdrawal, nor any liabilities.imposed upon or incurred by the Member Agency pursuant to this Agreement prior to the effective date of the Member Agency's withdrawal; (D) Withdrawal shall not result in the forfeiture Of that Member Agency's rights and claims relating to revenues received by the ABLE during the time period that the Member Agency provided services under. ABLE direction; and (E) The withdrawing Member Agency shall retain all rights an& title to its personnel and aircraft equipment and shall.remove such personnel and aircraft equipment from the direction of the ABLE. 10 • 0 VII TEX'INATION AND DISPOSITION OF ASSETS 7.01 The ABLE shall continue to exercise the powers herein until the termination of this Agreement and any extension thereof as provided in this paragraph or until the Member Agencies have mutually rescinded this Agreement provided, however, that the ABLE shall continue to exist for the purposes of disposing of all claims, distribution of assets and all other functions necessary to conclude the affairs of the ABLE. 7.02 Termination shall occur upon the written consent of all of the Member Agencies, upon the withdrawal from the ABLE of a sufficient number of the Member Agencies to leave less than two (2) Member Agencies remaining in the ABLE and full satisfaction of all outstanding financial obligations of the ABLE. However, no such termination shall occur until all other contractual obligations of the ABLE have been satisfied. 7.03 In the event of the termination of this Agreement, any funds remaining following the discharge of all obligations shall be disposed of by returning to each Member Agency that is a member of ABLE immediately prior to the termination of this Agreement, a share of such funds proportionate to the contribution made to ABLE by said Member Agency, to the extent legally possible. VIII 8.01 Amendments. This Agreement may be amended with the unanimous approval of all Member Agencies; provided, however, that no amendment may be made which would adversely affect the interests of the owners,of bonds, letters of credit or other financial obligations of the ABLE. 8.02 Notices. Any notice or instrument required to be given or delivered by depositing the same in any United States Post Office, registered or certified, postage prepaid, addressed to the Member Agencies, shall be deemed to have been received by the Member Agency to whom the same is addressed at the expiration of seventy -two (72) hours after deposit of the same in the United States Post Office for transmission by registered or certified mail as aforesaid. 8.03 Effective Date. This Agreement shall be effective at such time as this Agreement has been executed by any two or more of the Member Agencies enumerated in the introduction of this Agreement. 11 0 0 8.04 Conflicts of Interest. No officer or employee of the ABLE or any Member Agency shall have any financial. interest, direct or indirect, in the ABLE. Nor shall any such officer or employee participate in any decision relating to the ABLE which affects his or financial interests or those of.a corporation, partnership, or association in which he or she is directly or indirectly interested, in violation of any State law.or regulation. 8.05 Arbitration. (A) Any controversy or claim between any two or more Member Agencies, or between any such Member Agency or Member Agencies and ABLE, with respect to the ABLE's operations, or to any claims, disputes, demands, differences, controversies, or misunderstandings arising under, out of, or in relation to this Agreement, shall be submitted to and determined by arbitration. To the extent not inconsistent herewith, the rules of the American Arbitration Association shall apply. (B) The Member Agency desiring to initiate arbitration shall give, notice of its intention to arbitrate to every other Member Agency and the ABLE. Such notice shall designate such other Member Agencies as the initiating Member Agency intends to have bound by any award made therein. (C) The decision of the arbitrator shall be binding upon all Member Agencies involved in the arbitration. Each Member Agency to the arbitration shall bear its own legal costs including attorneys fees. 8.06 Partial Invalidity. If any one or more of the terms, provisions, .sections, promises, covenants or conditions of this Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, sections, promises, covenants and conditions of this Agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 8.07 successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of the Member Agencies hereto. 12 0 0 A Member Agency shall not assign any rights or. obligations under this Agreement without the written consent of all other Member Agencies. 8.G9 Execution. . The legislative bodies of the Member Agencies enumerated herein have each authorized execution of this Agreement, as evidenced by the authorized signatures below; respectively. 11 . IN 1 City Council App.-Owed On: 0-u ib� � qq3 ATTEST CITY OF COSTA MESA APPROVED AS TO FORM 4- 18 -%3 City C erk of the City o City Attorney Costa esa ATTEST � d� ya;a� Cit Clerk of City of Huntington Beach 411, /13 13 CITY OF HUNTINGTON BEACH By: N . Mayor APPROVED AS TO FORM �, City Attorney Dated_ ��f�s�i % sn /9193 ATTEST: Signed and certified that a copy of this document has been delivered to the Chairman, Board of Supervisors Phyl t'Henderson' Cle k, Board of Supervisors &�'=-3 -g3 - 14 COUNTY OF ORANGE, a Political Subdivision of the State of California Y= Chairman, Board of Supervisors APPROVED AS TO FORM . Terry C. Andrus, County Counsel wil MWA Dated; y 7