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HomeMy WebLinkAboutReso 156-17 Approving and Authorizing the Execution of the Pooled Liability Assurance Network [Plan] Joint Exercise of Powers Agreement RESOLUTION NO. 156 - 17 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * * * * * APPROVING AND AUTHORIZING THE EXECUTION OF THE POOLED LIABILITY ASSURANCE NETWORK [PLAN] JOINT EXERCISE OF POWERS AGREEMENT WHEREAS, the City of Dublin is a member of PLAN corporation, a California non-profit corporation ("PLAN Corporation") comprised of twenty-eight member agencies pooling their property and liability risk in conjunction with the Association of Bay Area Governments ("ABAG") Joint Exercise of Powers Authority ("JPA"), established pursuant to California Government Code §6500 et seq.; and WHEREAS, in 1986 ABAG and PLAN Corporation entered into an Agency Agreement which irrevocably assigned the risk management duties and obligations of ABAG to PLAN Corporation; and WHEREAS, the Member Agencies of PLAN Corporation have entered into a Risk Coverage Agreement with each other and ABAG to provide for pooled liability services through PLAN Corporation; and WHEREAS, a JPA is required to act as fiscal agent and manage the transfer and assignment of all of the current assets and liabilities from PLAN Corporation to the new PLAN JPA; and WHEREAS, the Members of PLAN Corporation seek to separate from the current model of service involving the necessity of the Agency Agreement and use of the ABAG JPA to the new risk management focused PLAN JPA that would provide pooled risk coverage for its member agencies, with preference for the existing members of PLAN, under a new risk coverage agreement within the PLAN JPA; and WHEREAS, as part of the transition the Bickmore Contract with PLAN Corporation will be assigned to the PLAN JPA, so that these services can continue in a seamless manner. NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby authorize the City Manager to execute the Pooled Liability Assurance Network (PLAN) Joint Exercise of Powers Agreement, pursuant to California Government Code §6500 et seq., including the powers delegated therein, conditioned on the transfer of the assets of PLAN to the PLAN JPA, in substantially the form attached to this Resolution as Exhibit A. NOW, THEREFORE, BE IT FURTHER RESOLVED, that the CITY's PLAN Corporation representative is authorized to approve of the assignment of assets from PLAN Corporation to the JPA, and to approve the assignment of risk management services from PLAN Corporation to PLAN JPA. PASSED, APPROVED AND ADOPTED this 19th day of December, 2017, by the following vote: AYES: Councilmembers Biddle, Goel, Gupta and Hernandez NOES: ABSENT: Mayor Haubert Reso No. 156-17, Adopted 12/19/2017, Item No. 4.6 Page 1 of 2 ABSTAIN: • CY) l Mayor Pro Tempore ATTEST: (44.(Ad P City Clerk Reso No. 156-17, Adopted 12/19/2017, Item No. 4.6 Page 2 of 2 Exhibit A JOINT POWERS AGREEMENT CREATING THE POOLED LIABILITY ASSURANCE NETWORK [PLAN] JOINT POWERS AUTHORITY adopted December 19, 2017 1 JOINT POWERS AGREEMENT TABLE OF CONTENTS ARTICLE I CREATION OF THE POOLED LIABILITY ASSURANCE NETWORK [PLAN] JOINT POWERS AUTHORITY 4 ARTICLE II PURPOSES 5 ARTICLE III DEFINITIONS 6 ARTICLE IV PARTIES TO AGREEMENT 6 ARTICLE V TERM OF AGREEMENT 6 ARTICLE VI POWERS OF THE AUTHORITY 6 ARTICLE VII MEMBERSHIP 7 ARTICLE VIII MEMBER ENTITY RESPONSIBILITIES 8 ARTICLE IX POWERS RESERVED TO THE MEMBERSHIP 8 ARTICLE X BOARD OF DIRECTORS 9 ARTICLE XI POWERS RESERVED TO THE BOARD 9 ARTICLE XII COMMITTEES 9 ARTICLE XIII BOARD AND COMMITTEE MEETINGS 9 ARTICLE XIV OFFICERS AND EMPLOYEES 10 ARTICLE XV ANNUAL AUDITS AND AUDIT REPORTS 10 ARTICLE XVI INDEMNIFICATION OF DIRECTORS, OFFICERS, 10 AND EMPLOYEES ARTICLE XVII SELF INDEMNIFICATION AMONG THE MEMBER 11 ENTITIES ARTICLE XVIII NEW MEMBERS 11 ARTICLE XIX WITHDRAWAL 12 2 ARTICLE XX EXPULSION 12 ARTICLE XX I TERMINATION AND DISTRIBUTION 12 ARTICLE XXII NOTICES 13 ARTICLE XXIII BINDING EFFECT OF BYLAWS AND OTHER 13 GOVERNING DOCUMENTS ARTICLE XXIV ENFORCEMENT 13 ARTICLE XXV PROHIBITION AGAINST ASSIGNMENT 13 ARTICLE XXVI AMENDMENTS 13 ARTICLE XXVII SEVERABILITY 14 3 POOLED LIABILITY ASSURANCE NETWORK [PLAN] JOINT POWERS AUTHORITY JOINT POWERS AGREEMENT This Agreement is made by and among the public entities listed in Appendix A("Member Entities"), all of which are public entities organized and operating under the laws of the State of California and each of which is a local public entity as defined in California Government Code Section 989, as it may be amended from time to time. RECITALS The following state laws, among others, authorize the Member Entities to enter into the Pooled Liability Assurance Network Joint Powers Authority [PLAN] Joint Powers Agreement("Agreement"): 1. Labor Code Section 3700 allowing a local public entity to fund its own workers' compensation claims; 2. Government Code Sections 989 and 990 permitting a local public entity to insure itself against liability and other losses; 3. Government Code Section 990.4 permitting a local public entity to provide insurance and self-insurance in any desired combination; 4. Government Code Section 990.8 permitting two or more local public entities to enter into an agreement to jointly fund such expenditures under the authority of Government Code Sections 6500-6515; and 5. Government Code Sections 6500-6515 permitting two or more local public entities to jointly exercise under an agreement any power which is common to each of them. II. The governing board of each Member Entity has determined that it is in the Member Entity's best interest and in the public interest that this Agreement be executed and that it shall participate as a member of the public entity created by this Agreement. Now,therefore,the Member Entities,by,between,and among themselves,in consideration of the mutual benefits,promises, and agreements set forth below,hereby agree as follows: ARTICLE I CREATION OF THE "POOLED LIABILITY ASSURANCE NETWORK [PLAN] JOINT POWERS AUTHORITY" 4 Pursuant to Article 1,Chapter 5,Division 7,Title 1 of the Government Code of the State of California(commencing with Section 6500),the Member Entities create a public agency, separate and apart from the Member Entities, to be known as the "Pooled Liability Assurance Network [PLAN]Joint Powers Authority"(the"Authority"). Pursuant to Government Code Section 6508.1, the debts, liabilities, and obligations of this Authority shall not constitute debts, liabilities, or obligations of the Member Entities. ARTICLE II PURPOSES This Agreement is entered into by Member Entities under California Government Code Sections 990, 990.4, 990.8, and 6500, et. seq. and Labor Code Section 3700 in order to do one or more of the following: 1. Develop effective risk management programs to reduce the amount and frequency of losses; 2. Share the risk of self-insured losses; 3. Jointly purchase insurance either with or without any self-insured portion underlying the insurance, and administrative and other services including, but not limited to claims adjusting, data processing, risk management, loss prevention, accounting services,actuarial services, and legal services in connection with the Programs; 4. Provide administrative and other services including, but not limited to, claims adjusting, data processing, risk management, loss prevention, treasury, investment management, accounting services, audit, actuarial services, and legal services in connection with the various programs; 5. Assume the assets,liabilities and obligations of the ABAG PLAN CORPORATION (a California non-profit corporation), also known as Association of Bay Area Governments Pooled Liability Assurance Network on the basis of each Member Entity's responsibilities under those previously binding documents, including the Memorandum of Coverage,and Risk Coverage Agreement,as amended to reflect the formation of this JPA and its policies and procedures; and These purposes shall be accomplished through the exercise of the powers of the Member Entities jointly in the creation and operation of the Authority. It is also the purpose of this Agreement to provide,to the extent permitted by law,procedures for the addition, at subsequent date, of public entities to become parties to this Agreement and members of the Authority, subject to Article XVIII, and to provide for the removal of Member 5 Entities for cause or upon request, subject to Articles XIX and XX. ARTICLE III DEFINITIONS In this Agreement unless the context otherwise requires: 1. Board or Board of Directors is the governing body of the Authority constituted as set forth in Article X of this Agreement; 2. Governing Documents include this Agreement, the Bylaws of the Authority, and any other document identified as a Governing Document in the Bylaws. 3. Member Entity includes each public agency which is a party to this Agreement. 4. Program is the specific method used to provide coverage for a risk, scope,type, or area of insurance services,including,without limitation,the funding of loss reserves, where applicable, as prescribed in a Governing Document for a specific type of coverage, and may encompass such specific areas as general liability (including errors and omissions), property, automobile, workers' compensation, or employee benefits. ARTICLE IV PARTIES TO THE AGREEMENT Each Member Entity certifies that it intends to and does contract with every other Member Entity who is a signatory to this Agreement and,in addition,with such other Member Entity as may later be added as a Member Entity under Article XVIII. Each Member Entity also certifies that the deletion of any Member Entity from this Agreement does not affect this Agreement nor each Member Entity's intent to contract with the Member Entities then remaining. ARTICLE V TERM OF AGREEMENT This Agreement will become effective as of January 1,2018 and continues in full force until terminated in accordance with Article XXI. ARTICLE VI POWERS OF THE AUTHORITY 6 The Authority,through its Board of Directors, is authorized, in its own name,to do all acts necessary to fulfill the purposes of this Agreement referred to in Article II including,but not limited to, each of the following: 1. Make and enter into contracts, including but not limited to revision to the Risk Coverage Agreement and Memorandum of Coverage; 2. Incur debts, liabilities, and obligations; but no debt, liability, or obligation of the Authority is a debt, liability, or obligation of a Member Entity; 3. Acquire, hold, or dispose of real and personal property; 4. Receive contributions and donations of property,funds,services,and other forms of assistance from any source; 5. Sue and be sued in its own name; 6. Employ agents and employees; 7. Acquire, construct, manage, and maintain buildings; 8. Lease real or personal property, including that of a Member Entity; 9. Receive, collect, invest, and disburse monies; 10. Issue revenue bonds or other forms of indebtedness,as provided under Government Code Sections 6500, et. seq.; and 11. Carry out other duties as required to accomplish other responsibilities as set forth in this Agreement. 12. Hire attorneys, accountants, auditors and other professionals. These powers shall be exercised in the manner provided by applicable law and as expressly set forth in this Agreement. ARTICLE VII MEMBERSHIP Membership shall be restricted to public agencies located within the State of California as set forth in the Bylaws. Upon a Member Entity organization or re-organization, including dissolution, merger, or 7 consolidation, which results in extinguishment or dissolution of the legal existence of a Member Entity, the rights, obligations, and liabilities of such Member Entity under this Agreement, the Bylaws, or other Governing Documents or resolutions of the Board shall be the rights, obligations, and liabilities of the successor public entity. ARTICLE VIII MEMBER ENTITY RESPONSIBILITIES Each Member Entity has the obligations and responsibilities set forth in the Governing Documents as defined in the Bylaws and any resolution of the Board of Directors. Such responsibilities and obligations may include,but are not limited to,the following: 1. Cooperate with the Authority in determining the cause of losses and in the settlement of claims; 2. Pay all premiums,assessments,penalties,interest,and other charges promptly to the Authority when due; 3. Provide the Authority with statistical and loss experience,data,and other information as may be necessary; 4. Cooperate with and assist the Authority and any insurer, claims adjuster, or legal counsel retained by the Authority in matters relating to this Agreement,the Authority Bylaws,any other Governing Documents,and policies and procedures adopted by the Board; 5. Except for any new Member Entities as allowed for in Article XVIII, agree the Authority will assume the assets, liabilities and obligations of ABAG PLAN CORPORATION(a California non-profit corporation)also known as the Association of Bay Area Governments Pooled Liability Assurance Network, on the basis of its documents, including but not limited to the Memorandum of Coverage, and Risk Coverage Agreement,as amended to reflect the formation of this JPA and its policies and procedures; and ARTICLE IX POWERS RESERVED TO THE MEMBERSHIP The Member Entities retain the following powers: 1. The designation of the Board of Directors as specified in Article X; and 2. Approval of amendments to this Agreement as specified in Article XXVI. 8 ARTICLE X BOARD OF DIRECTORS There shall be a Board of Directors to govern the affairs of the Authority. The Board shall be comprised of one director, and one alternate director, from each Member Entity who shall have the authority to bind the Member Entity on any and all matters relating to the business of the Authority. Each director has one vote. Each director shall be appointed by the governing body of the Member Entity. The alternate director shall be appointed by and serve at the pleasure of the Member Entity. The alternate director may cast a vote as a member of the Board of Directors only in the absence of the director. ARTICLE XI POWERS RESERVED TO THE BOARD The powers of the Board are the powers of the Authority not specifically reserved to the Member Entities by this Agreement. The Board has authority to delegate its powers and authority. However,the Board shall retain unto itself the power to change the Bylaws,to expel a member by a two-thirds vote, and to establish a Program. ARTICLE XII COMMITTEES EXECUTIVE COMMITTEE The Board may create an Executive Committee comprised of members of the Board and delegate one or more of its powers to the Executive Committee except those powers not delegable. An appointment to the Executive Committee, if any, is by an election of the Board of Directors. OTHER COMMITTEES Other committees may be created by,or in accordance with,the procedures described in the Bylaws. ARTICLE XIII BOARD AND COMMITTEE MEETINGS The Board shall hold at least one regular meeting each year. The Board shall fix the date, hour, and place at which each regular meeting is to be held. A special meeting may be called upon written request by the President or at least one-third of the Board members. 9 Each regular,adjourned regular and special meeting of the Board,the Executive Committee, or any other Standing Committee shall be called,noticed,held,and conducted in accordance with the Ralph M. Brown Act(Section 54950 et. seq. of the Government Code). The Secretary shall keep or have kept minutes of each regular or special meeting of the Board and any Committee. As soon as possible after each meeting,the Secretary shall have a copy of those minutes forwarded to each member of the Board. No business may be transacted by the Board or a Committee without a quorum of members being present. A quorum consists of a majority of the members. ARTICLE XIV OFFICERS AND EMPLOYEES The Officers of the Authority are the President, Vice President, Administrator, Secretary, Treasurer,and others as may be declared in the Bylaws or resolution of the Board. The Officers are elected or appointed in accordance with the procedures described in the Bylaws. The Officers shall have the authorities and responsibilities as defined in the Bylaws. The Board may appoint such officers and employees and may contract with such persons or firms as it considers necessary to carry out the purposes of this Agreement. Any Member Entity which provides or performs assigned duties pursuant to this Article may be reimbursed by the Authority for services rendered on the Authority's behalf. ARTICLE XV ANNUAL AUDITS AND AUDIT REPORTS The Treasurer shall cause an annual financial audit to be made by an independent Certified Public Accountant with respect to all Authority receipts, disbursements, other transactions and entries into the books. A report of the financial audit shall be filed as a public record with each Member Entity. The audit shall be conducted in accordance with Government Code Section 6505 and filed with the County Auditor or others as required by the laws of California. The Authority shall pay the cost of the financial audit and charge the cost against the Member Entities in the same manner as other administrative costs. ARTICLE XVI INDEMNIFICATION OF DIRECTORS,OFFICERS, AND EMPLOYEES The members of the Board of Directors and the officers and employees of the Authority shall 10 act in good faith and in the best interests of the Authority in the performance of their duties hereunder. The members of the Board of Directors and the officers and employees of the Authority shall be liable for any act or omission within the scope of their office or employment by the Authority as a public entity only in the event that they act or fail to act because of actual fraud, corruption,or actual malice or willfully fail or refuse to conduct the defense of a claim or action in good faith or to reasonably cooperate in good faith in the defense conducted by the Authority. No member of the Board shall be liable for any action taken or omitted by any other member of the Board. No member of the Board, officer, or employee shall be required to deposit premium on a bond or other security to guarantee the faithful performance of his or her duties hereunder,although the Authority may provide such bonds. Funds of the Authority shall be used to defend and to indemnify members of the Board,officers,and employees of the Authority for any act or omission pursuant to the provisions of Government Code Sections 910 to 996.6. The Authority may purchase insurance to provide coverage for acts or omissions of directors, officers, and employees. The Authority shall indemnify, protect, defend, and hold harmless each and all of the Member Entities,and their officers and employees,for and from any and all liability,claims,causes of action,damages,losses,judgments,costs,or expenses(including attorney's fees)resulting from an injury caused by a negligent or wrongful act or omission occurring in the performance of this Agreement by the Authority, by one or more of the Member Entities, or any of their officers, employees, agents, or independent contractors. This indemnification provision is intended to supplant and supersede the pro rata right of contribution formula set forth in Government Code Section 895.6. ARTICLE XVII SELF-INDEMNIFICATION AMONG THE MEMBER ENTITIES Section 895.2 of the California Government Code imposes certain tort liability jointly upon entities solely by reason of such entities being parties to an agreement as defined in Section 895 of said Code. Therefore, the Member Entities hereto, as between themselves, pursuant to the authorization contained in Sections 895.4 and 895.6 of the California Government Code, each assumes the full liability imposed upon it for any of its officers, agents, or employees by law for injuries caused by a negligent or wrongful act or omission occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Section 895.2 of said Code. To achieve this purpose, each Member Entity indemnifies and holds harmless all other Member Entities for any loss, cost, or expense that may be imposed upon such other Member Entities solely by virtue of Section 895.2 of the California Code. ARTICLE XVIII NEW MEMBERS A public agency may be admitted as a Member Entity only upon a two-thirds vote of the Board of Directors. The application of any Member Entity to participate in any Program shall be determined under the Program's Governing Documents. Notwithstanding the above,members of 11 ABAG Plan Corporation in good standing as of July 1,2017 shall be automatically admitted upon adoption of a resolution by its governing body authorizing the execution of this Joint Powers Agreement,provided that said action occurs by June 30,2018. Each applicant for membership shall pay all fees and expenses set by the Board. ARTICLE XIX WITHDRAWAL A Member Entity may withdraw from the Authority only at the end of a fiscal year,provided it has given the Authority at least six months written notice of its intent to withdraw. A notice of intent to withdraw shall be final and irrevocable upon its receipt by the Authority unless the Board authorizes it to be rescinded by the Member Entity. A Member Entity joining after June 30, 2018 may only withdraw from the Authority after three (3) consecutive fiscal years following commencement of membership. The withdrawal of a Member Entity from membership in the Authority shall not terminate its responsibility,as defined by any of the Governing Documents of the Authority,to contribute its share of premiums or funds to any fund or coverage program created by the Authority in which the withdrawing Member Entity has participated. ARTICLE XX EXPULSION The Authority may expel a Member Entity from membership in the Authority by a two-thirds vote of the Board of Directors for a breach of any of the Governing Documents determined by the Board to be a material breach. Such expulsion shall automatically,and simultaneously,terminate the Member Entity's participation in any and all Programs in which it may be a Program participant. The procedure for hearing and notice of expulsion of a Member Entity shall be as provided in the Authority Bylaws. The expulsion procedures from any Program shall be defined in the Governing Documents for that Program. The expulsion of a Member Entity from membership in the Authority shall not terminate its responsibility,as defined by any of the Governing Documents of the Authority,to contribute its share of premiums or funds to any fund or coverage Program created by the Authority in which the expelled Member Entity has participated. ARTICLE XXI TERMINATION AND DISTRIBUTION This Agreement may be terminated by the written consent of two-thirds of the Member 12 Entities. However,this Agreement and the Authority shall continue to exist after termination for the purpose of disposing of all claims, debts and other obligations, distribution of assets, and all other functions necessary to conclude the obligations and affairs of the Authority. Upon termination of this Agreement, after disposition of all claims debts and other obligations, the remaining assets of the Authority shall be distributed and apportioned among the Member Entities that have been participants in its Programs,including those Member Entities which previously withdrew or were expelled pursuant to Articles XIX and XX of this Agreement, as provided in the Authority Bylaws. ARTICLE XXII NOTICES Notice to each Member Entity under this Agreement is sufficient if mailed to its respective address on file with the Authority. ARTICLE XXIII BINDING EFFECT OF BYLAWS AND OTHER GOVERNING DOCUMENTS Each party to this Agreement by its execution agrees to be bound by and to comply with all of the terms and conditions of the Governing Documents,and any Resolution adopted by the Board of Directors as they now exist or may hereafter be adopted or amended. ARTICLE XXIV ENFORCEMENT The Authority is hereby granted authority to enforce this Agreement. In the event action is instituted by the Authority to enforce any term of any of the Governing Documents of any Program or otherwise against any Member Entity,the prevailing party shall be entitled to reasonable attorney fees and costs incurred because of said action, in addition to other appropriate relief. ARTICLE XXV PROHIBITION AGAINST ASSIGNMENT No Member Entity may assign a right,claim, or interest it may have under this Agreement. No creditor,assignee,or third-party beneficiary of a Member Entity has a right,claim,or title to any part, share, interest, fund,premium,or asset of the Authority. ARTICLE XXVI AMENDMENTS 13 This Agreement may be amended if at least 2/3rds of the total Member Entities vote in favor of the amendment. A proposed amendment must be submitted to each Member Entity at least thirty (30) days prior to the date the amendment is considered by the Authority. An amendment will be effective immediately unless otherwise specified. Appendix A to the Agreement may be amended to correctly list current Member Entities without separate action by the Member Entities or the Board. ARTICLE XXVII SEVERABILITY If a portion,term, condition, or provision of this Agreement is determined by a court to be illegal or in conflict with a law of the State of California,or is otherwise rendered unenforceable or ineffectual,the validity of the remaining portions,terms,conditions,and provisions is not affected. 14 In witness whereof, the following parties have each executed this Agreement as amended on the dates set forth below and acknowledge their membership in the Authority: Entity: Date: Title: 15 APPENDIX A MEMBER ENTITIES City of American Canyon Town of Atherton City of Benicia City of Burlingame City of Campbell Town of Colma City of Cupertino City of Dublin City of East Palo Alto City of Foster City City of Half Moon Bay Town of Hillsborough Town of Los Altos Hills Town of Los Gatos City of Millbrae City of Milpitas City of Morgan Hill City of Newark City of Pacifica Town of Portola Valley Town of Ross City of San Bruno City of San Carlos City of Saratoga City of South San Francisco City of Suisun City Town of Tiburon Town of Woodside