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HomeMy WebLinkAbout2009-08-18; City Council; Resolution 2009-2231 RESOLUTION NO. 2009-223 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE SECOND 3 AMENDED AND RESTATED JOINT EXERCISE OF 4 POWERS AGREEMENT FOR NORTH COUNTY DISPATCH JOINT POWERS AUTHORITY. 5 6 WHEREAS, On April 1, 2003, the Carlsbad City Council authorized the North 7 County Dispatch Joint Powers Authority (NCDJPA) to begin fire dispatch services for 8 the Carlsbad Fire Department on July 1, 2003 and approved the Joint Exercise of 9 Powers Agreement between the NCDJPA and the City of Carlsbad for Fire Dispatching 10 0 .Services; and 11 WHEREAS, NCDJPA is an all fire dispatch agency, which equips, maintains, 12 operates and staffs a fire dispatch communications center which provides emergency 13 call receiving and dispatching services for fire agencies; and14 15 WHEREAS, The Second Amended and Restated Joint Exercise Of Powers 16 Agreement for NCDJPA (Exhibit No. 3), dated May 28, 2009, captures all minor 17 changes into one document, continuing to permit the joint exercise of certain powers for 18 the purpose of providing emergency communications services. 19 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 20 Carlsbad, California, as follows: 21 1. That the above recitations are true and correct. 22 2. That City Council approves the Second Amended And Restated Joint £j 24 Exercise of Powers Agreement For North County Dispatch Joint Powers 25 Authority. 26 // 27 // 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 18th day of August 2009, by the following vote to wit: AYES: NOES: ABSENT: Council Members Lewis, Kulchin, Hall, Packard, Blackburn None None LEWIS, Iftaybr L#V*#\S \J? \^r ATTEST: LORRAINE MHM3GD, £jfy Clerk Karen R. Kundtz, Assistant City Clerk SECOND AMENDED AND RESTATED JOINT EXERCISE of POWERS AGREEMENT for "NORTH COUNTY DISPATCH JOINT POWERS AUTHORITY" THIS SECOND AMENDED AND RESTATED JOINT EXERCISE of POWERS AGREEMENT, ("Agreement") made and entered into this _28th_ day of _May_, 2009, by and between the CITY OF CARLSBAD, CITY OF ENCINITAS, CITY OF OCEANSIDE, CITY OF SAN MARCOS, CITY OF SOLANA BEACH, CITY OF VISTA, NORTH COUNTY FIRE PROTECTION DISTRICT, and RANCHO SANTA FE FIRE PROTECTION DISTRICT, collectively the "Member Agencies" and individually "Member" or "Member Agency"), all of which are public agencies organized and existing under and by virtue of the laws of the State of California. RECITALS A. Each Member Agency to this Agreement provides public services, including fire protection, fire prevention, rescue, emergency medical, public works, and related administrative services, within their respective boundaries. B. Each Member Agency has determined that joint use of a central communications network and record keeping system reduces the administrative costs that would otherwise be incurred by each Member in providing fire suppression, emergency medical assistance, rescue service, public works and related services. C. Each Member Agency has determined that the costs associated with maintaining the staff and equipment necessary to operate a Communications Center should be funded by the Member Agencies through a formal Joint Powers Agreement with costs apportioned to reflect the extent to which each Member Agency utilizes the emergency Communications Equipment and staff. D. Each Member Agency has determined that joint use of a central communications network and record-keeping system facilitates the provision of higher quality services in a more efficient and effective manner. E. Each Member Agency has the power and authority to perform, and contract with one another pursuant to the Joint Exercise of Powers Act (Section 6500 et. seq. of the Government Code) for the performance of the duties and functions that form the basis of this Agreement. Page 1 F. Each Member Agency has the power to contract with other agencies for communications services, equipment and related items. G. Member Agencies entered into the initial Joint Powers Agreement on June 11, 1984, and subsequently executed an Amended and Restated Joint Powers Agreement dated October 30, 2002. The Member Agencies wish to further amend said Agreement in its entirety through this Second Amended and Restated Joint Exercise of Powers Agreement, which is intended to supersede all previous Agreements. SECTION 1. Purpose This Agreement is made pursuant to California Government Code Sections 6500, et seq., hereinafter referred to as the "Act", to permit the joint exercise of certain powers common to Member Agencies for the purpose of providing emergency communications services. The purpose of this Agreement is to equip, maintain, operate and staff a Communications Center and provide emergency call receiving and dispatching services to the Member Agencies. This Agreement shall continue the obligations of the Member Agencies under the previous Agreement that formed this Joint Powers Authority, along with all Amendments thereto. All pre-existing obligations, rights and privileges of the Member Agencies shall continue hereunder, subject to the terms and conditions of this Agreement. SECTION 2. Definitions For the purpose of this Agreement, the words or terms specified in this Chapter shall have the following meanings: A. "Administrator" The Authority may employ an administrator, to be known as the Administrator (hereinafter "Administrator"). The Administrator shall be authorized to act on behalf of the Board in all matters of personnel operations. With oversight by the Chiefs, the Administrator shall implement the budget established by the Board and the operations program established by the Chiefs. B. "Authority" shall mean the Joint Powers Authority known as the North County Dispatch Joint Powers Authority, created by this Agreement pursuant to the Joint Exercise of Powers Act (Section 6500 et. seq. of the Government Code). C. "Board" is the governing body of the Authority. D. "Board member" shall mean the voting member or alternate appointed by the governing body of each Member Agency to represent said Member Agency on the Board. Page 2 E. "Communications Center" shall mean that portion of any structure or physical facility that houses Communications Equipment and/or Communications Center Staff. F. "Communications Center Staff' or "Staff1 shall mean all personnel of the Authority performing services related to the operations and maintenance of the North County Communication Center, or such agency or individual as may be appointed by the Board to perform these functions. G. "Communications Equipment" shall mean all electronic equipment, including telephones, telephone lines, radios, computers and software located within, or connected to, the Communications Center and utilized for the fire or rescue-related emergency communications or records management of any of the Parties. H. "Contract Agency" means each of the public agencies that are not Members of the Joint Powers Authority that wish to contract with North County Dispatch Joint Powers Authority to receive communication services, equipment and related items and contribute to the cost of operating and administering this Joint Powers Authority by executing a contract agreement in a form approved by the Board. I. "Fiscal Year" shall mean the twelve-month period commencing July 1st and concluding June 30th. J. "Member" or "Member Agency" shall mean any public entity that is a member on the effective date of this Agreement or becomes a Member to this Agreement pursuant to the provisions of Section 15. K. "Recorded Incident" shall mean any call for service dispatched within the jurisdiction of a Member Agency that generates an incident number through any emergency Communications Facility used by any Member during any relevant period prior to the effective date of this Agreement and through the Communications Center on the effective date of this Agreement or at such time as the Communications Center begins operation pursuant to this Agreement. SECTION 3. Term This Agreement shall become effective on the date set forth at the beginning of this Agreement, and shall be binding on all Member Agencies hereto, and shall continue in full force and effect until one of the following occurs: 1) the Agreement is superseded by a new amended and restated Agreement; 2) the individual Member Agencies agree to terminate the Agreement; or 3) the number of Member Agencies is reduced to a single agency as a result of withdrawal of the other Member Agencies. Page 3 SECTION 4. Powers and Duties A. Authority. The Authority shall have the powers common to the Member Agencies, including the power to acquire sites and construct, equip, staff, maintain, operate and lease public buildings and related facilities for the purpose of communications and related services. B. The Authority is hereby authorized in its own name to perform all acts necessary for the exercise of common powers, including, but not limited to, any or all of the following: 1. to provide for the administration and management of the Authority; 2. to make and enter into contracts; 3. to employ agents and employees; and hire consultants, agents, attorneys, independent contractors and financial advisors; 4. to acquire, construct, manage, maintain and operate any buildings, works or improvements; 5. to acquire, hold, lease or dispose of property within the County of San Diego; 6. to incur debts, liabilities or obligations, subject to the limitations specified in this Agreement; 7. to receive gifts, contributions and donations of property and funds, services, and other forms of financial assistance, from persons, firms and corporation, and any governmental entity; 8. to provide communications services to public or non-public agencies by agreement, and on terms and conditions acceptable to the Authority; 9. to sue and be sued in its own name, as provided in Section 6508 of the Government Code; 10. to apply for any grant or grants offered in conjunction with any Federal, State, or Local program that is in any way related to the purpose of this Agreement; Page 4 • 55 11. to adopt rules, regulations, policies, by-laws and procedures governing the operation of the Authority; 12. to enter into leases, agreements and similar transactions that require the Authority to indemnify the person with whom the Board is contracting, so long as the exposure to liability under such indemnification is approved by Legal Counsel for the Authority; 13. to exercise any other power or perform any function necessary to accomplish the purposes of this Agreement, in the manner and according to the methods provided by applicable laws, rules or regulations. Such powers shall be exercised in the manner provided in the Act, and, except as expressly set forth herein, the debts, liabilities and obligations of the Authority shall not be the debts, liabilities and obligations of the Member Agencies, except as provided in Sections 6.C.3 and 6.C.4 of this Agreement. The Authority shall exercise aforesaid powers as needed to implement the purpose of this Agreement. Pursuant to Section 6504 of the Act, the Authority is empowered, and by this Agreement required, to assess the Member Agencies to finance the entire operation of the Authority in the manner set forth in this Agreement. The Authority may contract indebtedness for capital items only in the manner otherwise permitted by law. C. Board. The Board, as governing body of the Authority, shall formulate and set policies including budget and purchasing policies, and other operating policies, and shall exercise the powers set forth in Section 4.B of this Agreement to accomplish its purpose. The Authority's program development, implementation, and operation shall be accomplished through the adoption of a budget by the Board, in the manner set forth in this Agreement. D. Chiefs. The Chiefs are the administrative arm of the Board and are authorized to act on behalf of the Board as necessary for the ordinary conduct of business, through the JPA Administrator. The Chiefs are responsible to the Board for development of a consolidated regional public safety services communications program, and for the leasing of facilities, acquisition of equipment, personnel staffing, and full-time maintenance and operation of the communications program. PageS <$u> SECTION 5. Authority A. Creation of Authority. Pursuant to Section 6506 of the Act, there is hereby created a public entity, separate and apart from the Member Agencies, to be known as the "North County Dispatch Joint Powers Authority" ("Authority"). The debts, liabilities, and obligations of the Authority shall not constitute debts, liabilities or obligations of any of the Member Agencies, except as otherwise set forth in this Agreement. B. Conduct of Business. The Authority may utilize the services of a Member Agency in the general conduct of business, for which the Member Agency will be compensated as determined by a separate agreement between the Member and the Authority. Alternatively, the Authority may contract for administrative or general services following a bid process to be established by the Board of Directors. C. Board. The Authority shall be governed by a Board of Directors, which shall be called the "North County Dispatch JPA Board of Directors". Each Member Agency shall have one seat on the Board, and shall fill such seat by appointment from its governing body, in accordance with the Member Agency's policies and procedures. A Board Member shall serve at the pleasure of the appointing Member, except such appointee shall cease to be a Board Member if he/she ceases to be a member of the governing board of the appointing Member Agency, or if the appointing Member Agency ceases to be a party to this Agreement. Each appointing Member Agency shall notify the Secretary of the Board of its respective appointment. The Secretary of the Board shall notify each Member Agency of the appointments of the other Member Agencies. D. NCDJPA Chiefs. Pursuant to Section 6508 of the Act, there is hereby created an administrative entity, immediately subordinate to the Board to be known as the "NCDJPA Chiefs" ("Chiefs"). Each Member Agency shall have one member to be filled by the respective Member Agency's Fire Chief, or his/her designee. A Chief shall serve at the pleasure of the Member Agency of which he/she is an employee, except he/she shall cease to be a Chief if he/she ceases to be an employee of the Member, or if such Member Agency ceases to be a party to this Agreement. Each of the Member Agencies shall notify the Secretary of the Board of the name of its respective Chief, as applicable. Page 6 51 E. Board Alternates. The Governing Body of each Member Agency shall appoint an alternate Board Member, who shall serve in the same capacity as the Board Member when the Board Member is unavailable. Each appointing Member Agency shall notify the Secretary of the Board of its appointment of an Alternate Board Member. F. Administration. The Authority may employ an administrator, to be known as the NCDJPA Administrator. The Administrator shall be authorized to act on behalf of the Board in all matters of personnel administration. With technical assistance from the Chiefs, the Administrator shall implement the budget established by the Board and the operations program. The Chiefs Board shall appoint one of its members to serve as the Supervisor to the Administrator, whose duties shall be set forth in more detail in the Board's Policies and Procedures. The Supervisor to the Administrator shall be appointed for a two-year term. G. Meetings of the Board and the Chiefs. 1. Regular Meetings of the Board. The Board shall provide for its regular meetings; however, it shall hold at least one regular meeting immediately prior to each May 1st, The date and hour at which any regular meeting shall be held shall be fixed by resolution, and a copy of such resolution shall be filed with each of the Members. The Board shall determine the place of the meeting. 2. Regular Meetings of the Chiefs. The Chiefs shall provide for its regular meeting; however, it shall hold at least one regular meeting each quarter. Further meetings may be called by the Chair of the Chiefs or by a majority of the Chiefs. No designee representing a Chief of a Member may call a meeting or sit as Chair at any regular or special meeting of the Chiefs. The date and hour and place at which regular meetings shall be held shall be determined by a majority vote of the Chiefs. 3. Ralph M. Brown Act. The Board and the Chiefs shall adopt rules for conducting their meetings and other business. All meetings of the Board and the Chiefs, shall be called, noticed and conducted in accordance with the provisions of the Ralph M. Brown Act (commencing with Section 54950 of the Government Code of the State of California). 4. Minutes. The Secretaries of the Board and the Chiefs shall cause minutes of regular, adjourned regular, and special meetings to be kept, and shall, as soon Page? as possible after each meeting, provide a copy of the minutes to each Board Member and each Chief, respectively, and to each of the Member Agencies. 5. Quorum and Voting Requirements. A majority of the Board members or Chiefs members (or the alternate for any absent Board member) shall constitute a quorum for the transaction of business. A lesser number of each body may adjourn for lack of a quorum. When a quorum of Board members or Chiefs members is present, a majority vote of those who are present is required to take action, unless a different vote requirement is provided by this Agreement for a particular action. H. Officers and Respective Duties. 1. Chair and Vice Chair of the Board. The Board shall elect a Chair and Vice Chair at its first meeting, and thereafter, at the first meeting held in each second succeeding calendar year, the Board shall elect or re-elect its Chair and Vice Chair. In the event the Chair or Vice Chair so elected ceases to be a Board member, the resulting vacancy shall be filled at the meeting of the Board held after such vacancy occurs. In the absence or inability of the Chair to act, the Vice Chair shall act as Chair. The Chair, or, in his/her absence, the Vice Chair, shall preside and conduct all meetings of the Board. 2. Secretary of the Board. The Administrator shall be the Secretary of the Board. The Secretary or designee will keep minutes and will prepare an agenda for each meeting of the Board. The Secretary or designee will solicit agenda items for regular meetings at least fifteen working days in advance, and will distribute the agenda and supporting documentation in accordance with the provisions of the Ralph M. Brown Act. 3. Attorney of the Authority. The Authority shall select an Attorney that does not serve as City Attorney or General Counsel for any Member Agency. The Attorney shall advise the Board, the NCDJPA Chiefs, and the Administrator in connection with any business relating to the Authority. 4. Treasurer/Controller of the Authority. The Treasurer of the County of San Diego shall serve as Treasurer of the Authority. The Authority shall designate one Member Agency to act as the Controller of the Authority for a fee to be determined by the Board and the Member Agency acting as Controller. The Treasurer is required to comply with the provisions of Government Code § 6505.5. The Treasurer and/or Controller shall work in conjunction with the Administrator to perform the following functions, pursuant to the provisions of the Board's Policies and Procedures. PageS (a) establish, with the Board's approval, the budget format, accounts, and documentation pertaining thereto, which most nearly reflect the objectives of the Authority and the operation of the communications program; (b) establish and maintain the particular funds and accounts as required by generally accepted accounting practices and which most accurately and appropriately record and report the operations of the Authority as represented by the budget document; (c) enforce strict compliance with the approved budget and approve only expenditures authorized therein; (d) ensure that all available cash on hand is at all times fully invested in a cash management program and investment portfolio pertaining thereto, in accordance with the provisions of California Government Code sections 53600 et seq.; he/she will further ensure that sufficient liquidity is maintained to meet the Authority's cash disbursement needs; (e) ensure that all NCDJPA employees are properly compensated according to the rules of the Authority and the most current Memorandum of Understanding, if any, between the Authority and its employees; (f) ensure that all NCDJPA vendors are paid properly and in a timely manner; (g) furnish quarterly revenue, expenditure and funds status reports to the Board; (h) maintain an inventory of all property of the Authority; (i) with advice from the Board, obtain and maintain liability and casualty insurance for the Authority and for the property of the Authority, respectively; and (j) make all books and records of the Authority open to inspection at all reasonable times by representatives of the Member Agencies. 5. Chair and Vice Chair of the Chiefs. The Chiefs shall elect a Chair and Vice Chair at their first meeting, and thereafter, at the first meeting held in each succeeding calendar year, the Chiefs shall elect or re-elect its Chair and Vice Chair. The duties and responsibilities of the Chair and Vice Chair shall be set forth in more detail in the Board's Policies and Procedures. In the event the Chair or Vice Chair so elected ceases to be a Member, the resulting vacancy shall be filled at the meeting of the Chiefs held after such vacancy occurs. In the absence or inability of the Chair to act, the Page 9 Vice Chair shall act as Chair. The Chair, or, in his/her absence, the Vice Chair, shall preside at and conduct all meetings of the Chiefs. No designee sitting in for a Chief shall preside over any meeting of the Chiefs. 6. Secretary of the Chiefs. The Administrator shall be the Secretary of the Chiefs. The Secretary or designee will keep minutes and will prepare an agenda for each meeting of the Chiefs. SECTION 6. Fiscal Year. Financing, and Budget A. Fiscal Year. The Authority's Fiscal Year shall be the twelve-month period commencing each July 1. The Authority shall operate only under an approved budget based on the Fiscal Year. The Authority may not operate at a deficit. B. Budget Reserve. Each budget shall include a minimum Reserve as set forth in the Board's Policies and Procedures., Money may be expended from this Reserve only with the express approval of the Board. The Reserve shall lapse at the end of the budget period. The total assessment against the Member Agencies may be reduced by expected revenue from executed contracts for dispatch services to public and non-public agencies and by unexpended/unobligated monies available at the end of the fiscal year prior to the period for which the budget is applicable. C. Budget. (1) Funding from Member Agencies,, Each Member Agency shall pay a portion of the costs incurred by the Authority in providing the services described in this Agreement. The Board, in adopting a budget, shall determine each Member Agency's contribution for the budget cycle. The contribution of each Member Agency shall be determined based on the number of Recorded Incidents attributable to each Member Agency, divided by the Recorded Incidents attributable to all Member Agencies, during the calendar year preceding the Fiscal Year for which the Member's fair share percentage is being calculated. Once determined for any budget cycle Year, the Member Agency's contribution shall remain unchanged until the next budget cycle. The use of an alternative method for determining a Member Agency's contribution requires a two-thirds vote of the Board. Page 10 (2) Operation and Maintenance Expenses. The allocation of expenses among the Member Agencies for operating and maintaining the Communications Center and Communications Equipment shall be accomplished according to the provisions of the Board's Policies and Procedures. (3) Debt Financing. On behalf of the Authority, the Board may approve purchase of items or improvements using debt financing, in accordance with applicable law. The debt shall not be binding on any Member Agency unless the debt was approved by the governing board of such Member Agency. If a Member Agency has approved the debt financing, that Member Agency shall be liable for making payments in accordance with the payment schedule established at the time the Member approved the financing. (4) Payment of Contribution Upon adoption of the budget by the Board, and the forwarding thereof to the governing bodies of the Member Agencies by the Secretary, the assessments fixed therein are automatically due and payable without further notice according to the payment schedule set forth in the Board's Policies and Procedures. A five percent late charge shall be imposed upon assessment payments not received by the Authority within forty-five (45) calendar days following mailing of assessments. An additional five percent shall be imposed if payment is not made within an additional thirty calendar days. If an assessment including late charges is not paid in full within seventy-five (75) calendar days following any scheduled due date, the Member Agency shall be in default and subject to termination as provided under Section 7 of this Agreement. Upon termination of a Member Agency in default, all outstanding obligations or assessments under this section shall become immediately due and payable. Upon withdrawal by or termination of a Member Agency, payment of debt acquired under this section shall be governed by Section 13(E) of this Agreement. D. Budget Administration. The Administrator has the authority to fully implement the approved budget, in accordance with the Board's Policies and Procedures. The Administrator cannot exceed the personnel staffing authorized in the budget, either in number, position classification, or salary or alter the capital budget, utilize the Reserve for contingency, or increase the total amount of the approved expenditure budget without Board approval. Page 11 The Supervisor to the Administrator shall have the authority to negotiate the Administrator's annual salary, not to exceed the maximum amount allocated in the approved budget, in accordance with the Board's Policies and Procedures. E. Expenditures. All expenditures shall be within the limitations of the approved budget as approved or amended by the Board. Amendments to the approved budget shall require a majority vote of the total membership of the Board. F. Emergency Repairs. In the event the Communications Center or Communications Equipment suffers damage or malfunction that interferes with emergency communications services and requires emergency repairs, the Administrator is authorized without prior Board approval to expend the funds necessary to complete emergency repairs so that services are resumed as soon as possible. Prior Board approval shall be obtained whenever practical. SECTION 7. Non-payment or Other Default of a Member Agency The Board shall have the authority to terminate a Member Agency that materially breaches its duties pursuant to this Agreement. The term "material breach" shall include, without limitation, a failure to make any contribution or pay any assessment when due, and the failure to indemnify or defend other Member Agencies as required by Section 17. The Board shall give the Member notice of the breach and the right to cure the breach, in accordance with the Board's Policies and Procedures. In the event that the Member Agency fails to cure the breach within the time period stated in the notice, the Board shall have the authority to immediately terminate the Member. Termination of the membership of the Member Agency shall not relieve the terminated Member of its share of any debts or other liabilities incurred by the Authority prior to the effective date of the termination. However, termination shall result in forfeiture of all rights and claims of the terminated Member to any repayment of contributions or advances or other distribution of funds or property after termination, including distributions made as a result of the termination of the Authority. SECTION 8. Personnel A. The Authority may employ an Administrator and any other positions deemed necessary to staff the communications program. The positions must be authorized and funded in the Authority's annual budget. B. The Administrator, with oversight of the Chiefs, is authorized to act on behalf of the Board in all matters of personnel administration, given the positions and funding authorized by the Board in the Authority's budget. This includes, but is not limited to, hiring, supervisory direction, performance evaluations, disciplinary matters, and termination. The Board shall approve any Page 12 recognition of employee bargaining groups or the entry into any Memorandum of Understanding with a recognized bargaining group. SECTION 9. Records of the Authority The Authority shall maintain, during the term of this Agreement, all books, records, accounts and files relating to the Authority, its services, revenues and expenses, all of which shall be open to inspection at all reasonable times by the Member Agencies and their designated representatives. Management of Authority records and release of Authority records to the public shall be governed by the Board's Policies and Procedures. SECTION 10. Communications Center Equipment A. The Authority, through its Board, shall purchase, maintain and repair all Communications Center Equipment, including, without limitation, telephones, radios, computers, hardware, software, electrical systems and all related mechanical devices or facilities. Purchasing, management and title to equipment of the Authority shall be governed by the Board's Policies and Procedures. SECTION 11. Dispatch Service to Contract Agencies The Authority may provide dispatch service to agencies not a party to this Agreement, but only upon the majority vote of the Board. Such service shall be by contract, executed by the Chair of the Board on behalf of the Board. The Board shall establish the amount of charge for the service to a Contract Agency, which may be a set fee or a per-call charge, or both, to be billed and paid quarterly. SECTION 12. Withdrawal A Member Agency may withdraw as a party to this Agreement, effective at the end of any fiscal year (June 30) by giving written notice of its intention to withdraw to the Secretary of the Board no later than December 31 of the fiscal year preceding the fiscal year in which the withdrawal will be effective (a minimum of eighteen months notice). The written notice shall be accompanied by a resolution or minute order of the legislative body of the member Agency ("Notice of Withdrawal"). If a Member Agency does not submit its written notice of withdrawal to the Board Secretary by December 31 of the fiscal year prior to the fiscal year in which the Member Agency wishes to withdraw, the effective date of the withdrawal will be on June 30, eighteen months from the end of the calendar year in which the notice of withdrawal was submitted [by way of example only if a Page 13 Notice of Withdrawal is delivered to the Secretary of the Board on February 1, 2010 then the effective date of the withdrawal shall be June 30, 2012]. The Board, in its sole and absolute discretion, may by majority vote of the total membership of the Board make an exception allowing a member agency who does not meet the December 31 deadline an earlier withdrawal date. Such withdrawing party shall perform all obligations under this Agreement until the effective date of withdrawal. Modification to the timing requirements for withdrawal set forth above shall require a majority vote of the total membership of the Board. Notification of the intent to withdraw by a Member Agency shall not relieve the withdrawing Member Agency from the requirement to pay its contribution for debts and liabilities incurred by the Authority prior to the effective date of the withdrawal. Withdrawal of a Member Agency shall result in the forfeiture of all rights and claims of the withdrawing Member to any repayment of contributions or advances or other distribution of funds or property after withdrawal, including distribution made in the event of the termination of the Authority. SECTION 13. Dissolution and Disposition of Assets A. This Agreement shall terminate and the Authority is thereby dissolved if the number of Member Agencies to this Agreement becomes less than two, or if the Member Agencies unanimously agree to terminate the Agreement. In either instance, dissolution shall be effective only when all debts, liabilities, obligations and any other evidence of indebtedness is retired, but shall in no event be effective until the requirements of this section are satisfied. B. This Agreement may not be terminated and disposition of assets made to Member Agencies to the Agreement until the Authority reasonably exhausts all means of collecting any monies due the Authority. The Board must formally accept a final accounting prepared by the Controller before any final disposition of net assets may be made, and termination of the Agreement consummated. C. If the cause for termination was reduction of the number of Member Agencies to the Agreement to less than two, all net assets of the Authority shall become the property of the sole remaining Member to the Agreement. D. If the cause for termination is mutual agreement, the total dollar amount of the net assets shall be apportioned among such Member Agencies according to the relative assessments paid by those Member Agencies during the last year of the Agreement. Page 14 E. If the Authority issues debt, each Member Agency at the time of the issuance is responsible for its share of the annual debt service payment, regardless of whether it has withdrawn as a Member Agency. F. In the event of termination of the Authority, where there will be a successor public entity that will carry on the functions of the Authority and assume its assets and liabilities, the assets of the Authority shall be transferred to the successor public entity. G. Upon termination of this Agreement, where there will be no successor public entity, the assets of the Authority shall be disposed of as follows. All capital equipment purchased directly by any Member Agency shall be returned to the Member Agency or Agencies holding title to the equipment. All remaining capital equipment in the possession of the Authority may be purchased by any interested Member Agency, who has submitted a sealed bid for the equipment, and is the highest bidder. Capital equipment not purchased by the Member Agencies shall be offered for sale to the public at appraised value, or sold by public auction. The proceeds of all sales shall be paid to each Member Agency according to the pro rata share of each Member's contribution to the Authority budget, as determined for the most recent fiscal year. H. In the event of termination of the Authority, any remaining funds, property or other assets of the Authority, following discharge of all debts, liabilities and obligations of the Authority, shall be distributed to the Members according to the pro rata share of each Member's contribution to the Authority budget, as determined for the most recent Fiscal Year. I. In no event shall assets be transferred to Member Agencies until all debts are retired. SECTION 14. Amendment to Agreement The Agreement may be amended by majority vote of the Board only after approval of two-thirds vote of the Member Agencies. Any proposed amendment shall be formally directed to the Board. The Board shall in turn request a recommendation from the Chiefs, if applicable. The Board shall then review the proposed amendment and accompanying recommendation from the Chiefs, and forward the proposed amendment with its own recommendation to the governing body of each Member Agency to the Agreement. The proposal shall be accompanied by a copy of the proposed amendment to the Agreement, which shall be adopted, properly executed, and returned to the Board if the party concurs with the amendment. The Secretary shall notify eafch party of the resultant action. Page 15 SECTION 15. Additional Parties to the Agreement Member Agencies, as defined in the Act, which are not parties hereto, may become parties hereto only upon approval by the Board, and subject to the following terms and conditions. All board decisions related to adding new parties to the Agreement, including the setting of associated fees, shall be by a majority of the total membership of the Board. A. A new Member Agency may be permitted to join the Authority upon the approval of a majority of the total membership of the Board, upon such terms and subject to such conditions as the Board may approve, and upon the new Member Agency approving and executing the agreement. Admission of a new member shall not require amendment of this Agreement. The Board and the new Member Agency may enter into a separate agreement with respect to the terms and conditions for membership. B. The Board shall set the annual fee for the additional party and the number of years that this fee will apply. C. The additional party shall pay a buy-in fee to be paid annually, as determined by majority vote of the total membership of the Board after consideration has been given to the following factors: 1. The book value of the Authority's long-term fixed assets (capital expenditures). 2. The book value of the Authority's current assets. 3. The Authority's unappropriated reserves for contingencies. 4. Benefits received by Member Agencies by adding the additional party. 5. Such other facts that the Board believes are germane to the determination. D. The effective date of the inclusion as an additional party shall occur on a date mutually agreed upon by the Board and the new Member Agency. Such public agencies that become parties hereto shall otherwise be entitled to all the rights and obligations of, and shall become Member Agencies as defined in this Agreement. Page 16 SECTION 16. Severabilitv Should any part, term, portion, or provision of this Agreement or the application thereof of any person or circumstances, be in conflict with any State or Federal law, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms, portions or provisions, or the application thereof to other persons or circumstances, shall be deemed severable and shall not be affected thereby, provided such remaining portions or provisions can be construed in substance to continue to constitute the Agreement that the parties intended to enter into in the first instance. SECTION 17. Liability and Indemnification A. Except as otherwise provided herein, the debts, liabilities, and obligations of the Authority shall be the debts, liabilities and obligations of the Authority alone, and not of the Member Agencies. B. From and after the effective date of this Agreement, the Authority shall fully indemnify, defend, protect, and hold harmless each Member Agency and their respective officers, employees, agents and representatives (collectively, "Indemnified Parties") with respect to any loss, damage, injury, claim, demand, action, litigation, or liability and all expenses and costs relating thereto, arising out of or in any way related to (1) the performance of this Agreement; (2) any contract or agreement assumed by or otherwise transferred to the Authority; (3) any asset transferred to and accepted by the Authority, including but not limited to real property, personal property, equipment and apparatus. It is also understood and agreed that, pursuant to Government Code section 895.4, the Authority shall fully indemnify, defend, protect and hold harmless the Indemnified Parties from any liability imposed for injury occurring by reason of any acts or omissions on the part of the Authority. C. Each Member Agency agrees that it shall fully indemnify, defend, protect and hold harmless the Authority and the other Member Agencies, and their respective officers, employees, agents and representatives from any and all claims or damages, actual or alleged, arising out of that individual Member Agency's negligence or wrongful acts or omissions. Any loss or liability resulting from the negligent acts, errors, or omissions of the Board, Chiefs, Administrator, and/or staff, while acting within the scope of their authority under this Agreement, shall be borne by the Authority exclusively. The provisions of this Section 17 shall survive the termination or expiration of this Agreement. SECTION 18. Successors This Agreement shall be binding upon and shall inure to the benefit of the successors of the parties hereto. Page 17 SECTION 19. Dispute Resolution This Section shall govern all disputes arising out of this Agreement. A. Mediation 1. Upon delivery of a written request for mediation by a Member Agency to the Secretary of the Authority, any dispute concerning this Agreement may be submitted to a mutually acceptable mediator. The decision of the mediator shall not be final or binding unless otherwise agreed to in writing by the parties. Mediation shall be required before either party may proceed to litigation. Costs for mediation shall be shared equally between the Member Agency requesting mediation and the Authority. 2. All mediation proceedings, results and documentation, shall be non-binding and inadmissible for any purpose in any legal proceeding (pursuant to California Evidence Code Sections 1115 through 1128), unless such admission is otherwise agreed upon in writing by the Member Agency seeking mediation and the Authority. B. Performance Required During Dispute Nothing in this Section shall relieve the Authority or any Member Agency from its obligation to perform all obligations under this Agreement. The Authority and the Member Agencies shall be required to comply with this Agreement, including the performance of all disputed activity and disputed payments, pending the resolution of any dispute under this Agreement. SECTION 20. Notice to State A notice of the execution of this Second Amended and Restated Agreement shall be filed by the Authority with the Secretary of State within 30 days of the effective date of the Agreement, pursuant to Section 6503.5 of the Act. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by their proper officers thereunto duly authorized, and their official seals to be hereto affixed as of the day and year first above written. The Member Agencies agree that this Agreement may be executed in parts where the sum of the parts equals a whole and that a photocopy or facsimile signature shall be deemed an original. Page 18 CITY OF ENCINITAS By: CITY OF SOLANA BEACH By: CITY OF SAN MARCOS By: CITY OF VISTA By: RANCHO SANTA FE FIRE PROTECTION DISTRICT By: APPROVED^TO FORM MM-b *- I5V-L- Cfh ^7iev«w CLAUDE A. LEWIS, Mayor CITY OF OCEANSIDE By: NORTH COUNTY FIRE PROTECTION DISTRICT By: Page 19