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Home My WebLink About2003-301 RESOLUTION NO. 2003- 301 2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN BERNARDINO AMENDING THE LIABILITY RISK COVERAGE AGREEMENT AND THE JOINT POWERS AGREEMENT CREATING THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY, APPROVING THE PREPAYMENT OF BASIC PREMIUM, AND AUTHORIZING, RATIFYING, AND APPROVING CERTAIN OTHER DOCUMENTS AND ACTIONS IN CONNECTION THEREWITH 3 4 5 6 WHEREAS, the City of San Bernardino is a municipal corporation organized and 7 existing under and by virtue of the constitution and laws of the State of California (the "City"); 8 and 9 10 WHEREAS, the Cities of Huntington Beach, Oxnard, Pomona, San Bernardino, and II Santa Ana formed the Big Independent Cities Excess Pool Joint Powers Authority, a joint 12 exercise of powers entity organized and existing under the laws of the State of California (the 13 "Authority"); and 14 WHEREAS, the Authority and the Cities of Huntington Beach, Oxnard, Pomona, San 15 Bernardino, and Santa Ana entered into the Liability Risk Coverage Agreement dated as of 16 October I, 1988 (the "Original Agreement"), as amended by the First Amendment to Liability 17 Risk Coverage Agreement dated as of December I, 1988 (the "First Amendment"), by and 18 among the Authority and the Cities of Huntington Beach, Oxnard, Pomona, San Bernardino, and 19 Santa Ana, and by Resolution No. 95-1, adopted by the Board of Directors ofthe Authority (the 20 "Board") on November 25, 1995 (the "Second Amendment") (the Original Agreement, as 21 amended by the First Amendment and the Second Amendment, is referred to herein as the 22 23 "Agreement"); and 24 WHEREAS, the City of Pomona ("Pomona") has been expelled from Coverage (as 25 defined in the Agreement) as a Participant (as defined in the Agreement) under the Agreement, effective as of August 18, 2003; and 2003-301 2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN BERNARDINO AMENDING THE LIABILITY RISK COVERAGE AGREEMENT AND THE JOINT POWERS AGREEMENT CREATING THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY, APPROVING THE PREP A YMENT OF BASIC PREMIUM, AND AUTHORIZING, RATIFYING, AND APPROVING CERTAIN OTHER DOCUMENTS AND ACTIONS IN CONNECTION THEREWITH 3 4 5 WHEREAS, the City has been informed that the City of West Covina ("West Covina") 6 has delivered to the Authority an application to be admitted as a new Participant; and 7 WHEREAS, in connection with the admission of West Covina as a new Participant and 8 the expulsion of Pomona from Coverage as a Participant under the Agreement, certain provisions 9 of the Agreement and the exhibits thereto are required to be amended, supplemented, or waived, 10 as applicable; and 11 WHEREAS, the City proposes to enter into a Third Amendment to Liability Risk 12 Coverage Agreement (the "Third Amendment") by and among the Authority and the Cities of 13 Huntington Beach, Oxnard, San Bernardino, Santa Ana, and West Covina, to provide for, among 14 15 other things, the admission of West Covina as a new Participant; and 16 WHEREAS, in connection with the admission of West Covina as a new Participant, West 17 Covina is required under the Agreement, among other things, to become a member of the 18 Authority under the Joint Powers Agreement Creating the Big Independent Cities Excess Pool 19 Joint Powers Authority (the "JPA Agreement"), executed by each of the Cities of Huntington 20 Beach, Oxnard, Pomona, San Bernardino, and Santa Ana in September 1998; and 21 WHEREAS, in connection with the expulsion of Pomona from Coverage as a Participant 22 under the Agreement, Pomona shall be deemed under Article 17 of the JP A Agreement to have 23 withdrawn from the JP A Agreement and shall no longer be a party to the JP A Agreement; and 24 25 2003-301 2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN BERNARDINO AMENDING THE LIABILITY RISK COVERAGE AGREEMENT AND THE JOINT POWERS AGREEMENT CREATING THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY, APPROVING THE PREPAYMENT OF BASIC PREMIUM, AND AUTHORIZING, RATIFYING, AND APPROVING CERTAIN OTHER DOCUMENTS AND ACTIONS IN CONNECTION THEREWITH 3 4 5 WHEREAS, in connection with the admission of West Covina as a member of the 6 Authority and the withdrawal of Pomona as a member of the Authority, certain provisions of the 7 JP A Agreement are required to be amended or supplemented, as applicable; and 8 9 WHEREAS, the City proposes to enter into a First Amendment to Joint Powers 10 Agreement Creating the Big Independent Cities Excess Pool Joint Powers Authority (the "JP A II Amendment") by and among the Cities of Huntington Beach, Oxnard, San Bernardino, Santa 12 Ana, and West Covina, to provide for, among other things, the admission of West Covina as a 13 member of the Authority and the acknowledgement of the withdrawal of Pomona as a member 0 14 the Authority; and 15 WHEREAS, Section 11.2 of the Agreement permits all Participants (i.e., the Cities of 16 Huntington Beach, Oxnard, San Bernardino, and Santa Ana), with at least two-thirds approval of 17 the members ofthe Board, to exercise as a group the option to prepay the Basic Premium (as 18 defined in the Agreement) of all Participants pursuant to Section 11.1 or 11.3 of the Agreement, 19 as applicable, in the manner and upon the terms set forth in such applicable section; and 20 21 WHEREAS, the City desires to approve the prepayment of its Basic Premium, subject to 22 the conditions set forth herein; and 23 WHEREAS, the City desires to approve, ratify, and confirm in all respects all previous 24 actions taken by the City or any member of this City Council of this City (the "City Council") or 25 any other officer or staff member of the City with respect to the foregoing and , I , I I 2003-301 2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN BERNARDINO AMENDING THE LIABILITY RISK COVERAGE AGREEMENT AND THE JOINT POWERS AGREEMENT CREATING THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY, APPROVING THE PREPAYMENT OF BASIC PREMIUM, AND AUTHORIZING, RATIFYING, AND APPROVING CERTAIN OTHER DOCUMENTS AND ACTIONS IN CONNECTION THEREWITH 3 4 5 WHEREAS, the forms of the following documents are on file with the City Clerk of the 6 City (the "City Clerk") and have been submitted to this City Council, and the Risk Manager of 7 the City (the "Risk Manager"), in consultation with the City Attorney of the City (the "City 8 Attorney"), has examined and approved each document and has recommended that this City 9 Council direct the completion, where appropriate, and the execution and delivery of such 10 documents and the consummation ofthe foregoing recitals: 11 (a) the Third Amendment; and 12 (b) the JP A Amendment; 13 NOW, THEREFORE, the City Council of the City of San Bernardino does hereby find, 14 15 determine, resolve and order as follows: 16 SECTION I. The foregoing recitals, and each of them, are true and correct. 17 SECTION 2. The Third Amendment is approved in substantially the form presented at 18 this meeting. Each of the Mayor of the City (the "Mayor") and the Vice-Mayor of the City (the 19 "Vice-Mayor"), acting alone, is hereby authorized and directed, for and in the name ofthe City, 20 to execute and deliver the Third Amendment with such changes, insertions, and omissions as 21 such officer or the Risk Manager shall require or approve, such approval to be conclusively 22 evidenced by the execution and delivery thereof. 23 SECTION 3. The JPA Amendment is approved in substantially the form presented at 24 this meeting. Each of the Mayor and the Vice Mayor, acting alone, is hereby authorized and 25 directed, for and in the name of the City, to execute and deliver the JP A Amendment with such 2003-301 2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN BERNARDINO AMENDING THE LIABILITY RISK COVERAGE AGREEMENT AND THE JOINT POWERS AGREEMENT CREATING THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY, APPROVING THE PREPAYMENT OF BASIC PREMIUM, AND AUTHORIZING, RATIFYING, AND APPROVING CERTAIN OTHER DOCUMENTS AND ACTIONS IN CONNECTION THEREWITH 3 4 5 changes, insertions, and omissions as such officer or the Risk Manager shall require or approve, 6 such approval to be conclusively evidenced by the execution and delivery thereof. 7 SECTION 4. The option to prepay all of the City's Basic Premium at any time pursuant 8 9 to Section 11.2 of the Agreement is approved, without further action by this City Council; 10 provided that all ofthe following conditions are satisfied: (a) all Participants (i.e., the Cities of II Huntington Beach, Oxnard, San Bernardino, and Santa Ana) shall have approved such option to 12 prepay, so that such option shall be exercised by all such Participants as a group; (b) at least two- 13 thirds of the members of the Board shall have so approved the exercise of such option to prepay 14 all Basic Premium; (c) Undesignated Reserves (as defined in the Agreement) in the Claims 15 Payment Fund (as defined in the Agreement), moneys in the Debt Service Reserve Fund (as 16 defined in the Agreement), or any other lawfully available moneys shall be used for such 17 prepayment; and (d) notwithstanding the last paragraph of Section 11.2 of the Agreement, the 18 majority of the Participant members of the Board shall have determined that the Authority's 19 pooled self-insurance program shall not terminate by virtue of such prepayment of Basic 20 Prernium. The Board shall determine the time that any such optional prepayment of Basic 21 22 Premium shall be made under Section 11.2 of the Agreement and whether any such optional 23 prepayment shall be exercised pursuant to Section 11.1 or 11.3 of the Agreement, in the manner 24 and upon the terms set forth in such applicable section. 25 2003-301 2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN BERNARDINO AMENDING THE LIABILITY RISK COVERAGE AGREEMENT AND THE JOINT POWERS AGREEMENT CREATING THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY, APPROVING THE PREPAYMENT OF BASIC PREMIUM, AND AUTHORIZING, RATIFYING, AND APPROVING CERTAIN OTHER DOCUMENTS AND ACTIONS IN CONNECTION THEREWITH 3 4 5 SECTION 5. The Mayor, the Vice Mayor, the Risk Manager, the City Clerk, the City 6 Attorney, and any other proper officer of the City are hereby authorized and directed, jointly and 7 severally, to do any and all things and to execute and deliver any and all documents necessary or 8 proper for carrying out the transactions contemplated by this Resolution or any of the documents 9 10 referred to herein, and to execute and deliver any and all certificates, representations, opinion 11 letters, and other documents necessary or desirable to accomplish the transactions described in 12 such documents or herein. 13 SECTION 6. Any document, the execution of which by the Mayor, the Vice Mayor, the 14 Risk Manager, the City Clerk, the City Attorney, or any other proper officer of the City is 15 authorized by this Resolution, shall, in the absence or inability to act of such officer, be executed 16 by any authorized designee of such officer, such authorization to be given in writing. 17 SECTION 7. All actions previously taken by this City Council and by the officers and 18 staff of the City with respect to the matters addressed by this Resolution are hereby approved, 19 ratified, and confirmed in all respects, including, without limitation, all actions necessary or 20 desirable to provide for Coverage for West Covina, effective as of July 1,2003. 21 SECTION 8. This Resolution shall take effect from and after its date of adoption. 22 23 24 25 2003-301 2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN BERNARDIN AMENDING THE LIABILITY RISK COVERAGE AGREEMENT AND THE JOIN POWERS AGREEMENT CREATING THE BIG INDEPENDENT CITIES EXCESS POO JOINT POWERS AUTHORITY, APPROVING THE PREPAYMENT OF BASIC PREMIUM AND AUTHORIZING, RATIFYING, AND APPROVING CERTAIN OTHER DOCUMENT AND ACTIONS IN CONNECTION THEREWITH 3 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Commo 6 Council of the City of San Bernardino at a joint regular meeting thereof, held on th 7 17th day of November COUNCILMEMBERS: AYES ESTRADA X LEIN-LONGVILLE X MC GINNIS X DERRY X SUAREZ X ANDERSON X MC CAMMACK X ,2003, by the following vote, to wit: 8 NA YES ABSTAIN ABSENT 9 10 II 12 13 14 15 ~ar~it:~~ IS hereby approved this ~(: !.i o 16 17 The foregoing resolution ,2003. ~L Wen cCarnrnack, Mayor Pro Tern City of San Bernardino 18 November 19 _c 20 21 Approved as to form and Legal content: 22 JAMES F. PENMAN, City Attorney , 23 24 By: 25 Q.XffrB IT Ir THIRD AMENDMENT TO LIABILITY RISK COVERAGE AGREEMENT THIS THIRD AMENDMENT TO LIABILITY RISK COVERAGE AGREEMENT dated for reference purposes as of November 1, 2003 (this "Third Amendment"), by and among the BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY, a joint exercise of powers agency duly organized and existing under the laws of the State of California (the "State"), including, without limitation, Section 6500 et seq. ofthe Government Code of the State (the "Authority"), and the CITY OF HUNTINGTON BEACH ("Huntington Beach"), the CITY OF OXNARD ("Oxnard"), the CITY OF SAN BERNARDINO ("San Bernardino"), the CITY OF SANTA ANA ("Santa Ana"), and the CITY OF WEST COVINA ("West Covina"), each a municipal corporation duly organized and existing under the Constitution and laws of the State, amends the Liability Risk Coverage Agreement dated as of October 1, 1988 (the "Original Agreement"), by and among the Authority and Huntington Beach, Oxnard, San Bernardino, Santa Ana, and the CITY OF POMONA ("Pomona"), a municipal corporation duly organized and existing under the Constitution and laws of the State, as amended by the First Amendment to Liability Risk Coverage Agreement dated as of December I, 1988 (the "First Amendment"), by and among the Authority and Huntington Beach, Oxnard, San Bernardino, Santa Ana, and Pomona, and by Resolution No. 95-1, adopted by the Board of Directors ofthe Authority on November 25, 1995 (the "Second Amendment") (the Original Agreement, as amended by the First Amendment and the Second Amendment, is referred to herein as the "Agreement"). All capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Agreement. RECITALS: WHEREAS, Pomona has been expelled from Coverage as a Participant under the Agreement, effective as of August 18,2003; and WHEREAS, West Covina, a municipal corporation having a population of at least 100,000, has delivered to the Authority an application to be admitted as a new Participant under the Agreement; and WHEREAS, Section 6.1 ofthe Agreement sets forth the conditions under which the Authority may admit and provide Coverage to a new Participant that is not currently a Participant under the Agreement; and WHEREAS, in connection with the admission of West Covina as a new Participant, certain provisions ofthe Agreement and the Exhibits thereto are required to be amended, supplemented, or waived, as applicable; and WHEREAS, Section 9.3 ofthe Agreement sets forth the conditions under which and the procedures pursuant to which the Agreement may be amended; and Third Amendment to LRCA I WHEREAS, each of the Authority, Huntington Beach, Oxnard, San Bernardino, Santa Ana, and West Covina desire to amend the Agreement in accordance with Section 9.3 and waive certain other provisions of the Agreement, all as further set forth herein; NOW, THEREFORE, in consideration ofthe premises and ofthe mutual covenants contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree at follows: I. Amendment of Exhibits. The Agreement is hereby amended by adding the following Exhibits in substitution for the corresponding Exhibits attached to the Agreement: Exhibit A: Schedule of Basic Premium Payments Exhibit B: Allocable Proportion for each Participant Exhibit I: Notice Addresses 2. Admission of West Covina as a New Participant. West Covina is hereby admitted as a Participant, effective as ofthe Effective Date (as defined in Section 5 hereof); provided, however, that the Authority shall provide Coverage to West Covina, effective retroactively as of July I, 2003. In connection with the foregoing: (a) Solely in connection with the admission of West Covina as a Participant, each of the Authority, Huntington Beach, Oxnard, San Bernardino, and Santa Ana hereby (i) waives the provisions of subsection (a) of Section 6.1 of the Agreement pertaining to the date by which West Covina is required to have become a member ofthe Authority and (ii) agrees that, notwithstanding such subsection (a), such membership shall instead be effective on or before the Effective Date. (b) Solely in connection with the admission of West Covina as a Participant, each of the Authority, Huntington Beach, Oxnard, San Bernardino, and Santa Ana hereby (i) waives the provisions of subsection (b) of Section 6.1 of the Agreement pertaining to the date by which West Covina is required to have provided to the Authority a completed application for admission and (ii) agrees that, notwithstanding such subsection (b), such application shall instead be provided on or before the Effective Date. (c) Solely in connection with the admission of West Covina as a Participant, each of the Authority, Huntington Beach, Oxnard, San Bernardino, and Santa Ana hereby (i) waives the provisions of subsection (c) of Section 6.1 of the Agreement pertaining to the date by which West Covina is required to have approved an amendment to the Agreement pursuant to which West Covina shall become subject to all of the terms thereof as a Participant and (ii) agrees that, notwithstanding such subsection (c), such approval by West Covina may instead be provided on any date on or prior to the Effective Date. (d) Solely in connection with the admission of West Covina as a Participant, each of the Authority, Huntington Beach, Oxnard, San Bernardino, and Santa Ana hereby (i) waives the provisions of subsection (d) of Section 6.1 ofthe Agreement pertaining to the first date of the Third Amendment to LRCA 2 Coverage Period for West Covina and (ii) agrees that, notwithstanding such subsection (d), such Coverage Period shall instead commence retroactively as of July 1, 2003. (e) Solely in connection with the admission of West Covina as a Participant, each of the Authority, Huntington Beach, Oxnard, San Bernardino, and Santa Ana hereby (i) waives the provisions of subsection (e) of Section 6.1 of the Agreement pertaining to the date by which the Authority's Governing Board shall have approved the admission of West Covina as a Participant and (ii) agrees that, notwithstanding such subsection (e), such approval by the Authority's Governing Board may instead be provided on any date on or prior to the Effective Date. 3. Selected Premium Payments Payable bv West Covina. In connection with its admission as a new Participant, West Covina shall be liable for the payment of 8.61 % of the total Administrative Premium and 8.61 % of the total Pure Premium payable on the Basic Premium Payment Date with respect to fiscal year 2003-04. West Covina shall be liable for the payment of a portion of the total Administrative Premium and the total Pure Premium in future fiscal years, and shall be assessed, credited, or refunded Pure Premium Adjustments, in accordance with and as provided in the Agreement or other procedures or policies ofthe Authority. West Covina and each of the other Participants shall be deemed to have an Allocable Proportion for purposes of determining amounts to be allocated or distributed pursuant to Article V of the Agreement. Each Participant's (including West Covina's) Allocable Proportion for such purposes shall be the average of the Pure Premium Proportion determined by the Actuary for each Participant for each Coverage Period that such Participant received Coverage under the Agreement. 4. as follows: Notices. Section 12.1 of the Agreement is hereby amended in its entirety to read Notices. All approvals, authorizations, consents, demands, designations, notices, offers, requests, statements, or other communications hereunder (each, a "Notice") from any party hereto to any other party shall be in writing and shall be deemed sufficiently given and served upon the other party, if delivered via hand delivery, as of the date and time ofreceipt of such delivery, or, if mailed, three days after deposit in the United States mail as first-class mail, postage prepaid, at the addresses set forth in Exhibit I hereto. Each party, by Notice given hereunder, may designate an address to which subsequent Notices shall be sent. 5. Effective Date of this Third Amendment. Notwithstanding the first sentence of the penultimate paragraph of Section 9.3 of the Agreement, this Third Amendment shall become effective immediately after the last to occur of the following (the "Effective Date"): (i) each of Huntington Beach, Oxnard, San Bernardino, Santa Ana, and West Covina, and all members of the Governing Board of the Authority have approved and consented to the form and execution of this Third Amendment, (ii) this Third Amendment has been executed and delivered by all of the parties hereto, (iii) counsel for each of Huntington Beach, Oxnard, San Bernardino, Santa Ana, and West Covina has delivered an opinion substantially in the form of Appendix I attached hereto, (iv) counsel for the Authority has delivered an opinion substantially in the form of Third Amendment to LRCA 3 Appendix II attached hereto, (v) all of the conditions set forth in Section 6.1 of the Agreement, as amended or waived, as applicable, by this Third Amendment, have been satisfied; (vi) Bond Counsel has delivered an opinion in form and substance as required under Section 9.3 ofthe Agreement, (vii) an Actuary has delivered a certificate in form and substance as required under Section 9.3 ofthe Agreement, and (viii) West Covina shall have become a member of the Authority. 6. Costs and Expenses. In accordance with the last sentence of the penultimate paragraph of Section 9.3 of the Agreement, all costs, fees, and expenses incurred in connection with this Third Amendment shall be borne pro rata by Huntington Beach, Oxnard, San Bernardino, Santa Ana, and West Covina. 7. Incorporation of Terms; Reaffirmation of Agreement. From and after the Effective Date, (a) all references to the "Agreement" shall mean and include the Original Agreement, as amended by the First Amendment, the Second Amendment, and this Third Amendment, and (b) all references to "Participant" or "Participants" shall mean and include each or all, as applicable, of Huntington Beach, Oxnard, San Bernardino, Santa Ana, and West Covina. Each of the Authority, Huntington Beach, Oxnard, San Bernardino, Santa Ana, and West Covina hereby reaffirms each of the provisions ofthe Agreement and confirms that, as so amended, the Agreement is and remains in full force and effect for the term thereof and is binding upon the parties hereto and their respective successors or assigns (but only to the extent, if any, permitted under the Agreement). 8. Resolution of Conflicting Provisions. If any terms of this Third Amendment conflict with terms of the Agreement that have not been explicitly amended or waived by this Third Amendment, the terms of this Third Amendment shall control and the applicable terms of the Agreement shall be deemed to have been amended or waived to conform to the terms hereof. 9. Severabilitv. In the event any provision of this Third Amendment shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 10. Applicable Law. This Third Amendment shall be governed by and construed solely in accordance with the laws of the State of California. 11. Captions. The captions or headings in this Third Amendment are for convenience only and in no way define, limit, or describe the scope or intent of any terms, provisions, or sections of this Third Amendment. 12. Execution in Counterparts. This Third Amendment may be executed in several counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] Third Amendment to LRCA 4 IN WITNESS WHEREOF, the undersigned have caused this Third Amendment to be executed as of the date first written above, to be effective on and after the Effective Date. APPROVED AS TO FORM: BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY By: By: APPROVED AS TO FORM: CITY OF HUNTINGTON BEACH By: By: APPROVED AS TO FORM: CITY OF OXNARD By: By: By: CITY OF SAN BERNARDINO .~~6?/ZL CITY OF SANTA ANA APPROVED AS TO F By: By: APPROVED AS TO FORM: CITY OF WEST COVINA By: By: Third Amendment to LRCA 5 APPENDIX I FORM OF OPINION OF CITY ATTORNEY [LETTERHEAD OF CITY ATTORNEY] Big Independent Cities Excess Pool Joint Powers Authority clo Ken Spiker and Associates, Inc. 1100 South Flower Street, Suite 2100 Los Angeles, CA 90015-2115 Pillsbury Winthrop LLP 10100 Santa Monica Boulevard, 23'd Floor Los Angeles, CA 90067 Re: Third Amendment to Liability Risk Coverage Agreement Ladies and Gentlemen: I am City Attorney for the City of (the "City"). This opinion is provided pursuant to Section 5 of that certain Third Amendment to Liability Risk Coverage Agreement, dated as of November 1, 2003 (the "Third Amendment"), by and among the Big Independent Cities Excess Pool Joint Powers Authority, the City of Huntington Beach, the City of Oxnard, the City of San Bernardino, the City of Santa Ana, and the City of West Covina. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Third Amendment. (1) The City is duly organized and validly existing as a [charter/generallaw] city under and by virtue of the laws ofthe State of California. (2) The resolution adopted by the City Council of the City (the "City Council") approving the execution and delivery of the Third Amendment was duly adopted at a meeting of the City Council that was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout; and such resolution is in full force and effect and has not been modified, amended, or rescinded as of the date hereof. (4) The City has full right and lawful authority to execute and deliver the Third Amendment; the Third Amendment has been duly authorized, executed, and delivered by the City; and the Third Amendment is the legal, valid, and binding obligation ofthe City enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws relating to or limiting creditors' rights generally and by the principles of equity if equitable remedies are sought. (5) The execution and delivery of the Third Amendment and compliance by the City with the provisions thereof, under the circumstances contemplated thereby, does not and will not in any material respect conflict with or constitute on the part of the City a breach of or Third Amendment to LRCA I-I default under any agreement or other instrument applicable to or binding upon the City, or any existing law, regulation, court order, or consent decree to which the City is subject. (6) There is no action, suit, proceeding, or investigation before or by any court, public board, or body pending with respect to which the City has been served with process or, to my knowledge, threatened, wherein an unfavorable decision, ruling, or finding would: (a) affect the creation, organization, existence, or powers of the City or the titles oftheir respective officers or the City Council members to their respective offices; (b) in any way question or affect the validity or enforceability of the Third Amendment; or (c) in any way question or affect the transactions contemplated by the Third Amendment. Respectfully submitted, Third Amendment to LRCA 1-2 APPENDIX II FORM OF OPINION OF AUTHORITY COUNSEL [LETTERHEAD OF COUNSEL] City of Huntington Beach City of Oxnard 2000 Main Street 305 West Third Street Huntington Beach, CA 92648 Oxnard, CA 93030 City of San Bernardino City of Santa Ana 300 North "D" Street 20 Civic Center Plaza San Bernardino, CA 92418 Santa Ana, CA 92701 City of West Covina Pillsbury Winthrop LLP 1444 West Garvey Avenue 10100 Santa Monica Boulevard, 23,d Floor West Covina, CA 91790 Los Angeles, CA 90067 Re: Third Amendment to Liability Risk Coverage Agreement Ladies and Gentlemen: I am special counsel to the Big Independent Cities Excess Pool Joint Powers Authority (the "Authority"). This opinion is provided pursuant to Section 5 of that certain Third Amendment to Liability Risk Coverage Agreement, dated as of November 1, 2003 (the "Third Amendment"), by and among the Authority, the City of Huntington Beach, the City of Oxnard, the City of San Bernardino, the City of Santa Ana, and the City of West Covina. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Third Amendment. (1) The Authority is a joint exercise of powers agency duly organized and existing under the laws of the State of California, including, without limitation, Section 6500 et seq. of the Government Code ofthe State of California. (2) The resolution adopted by the Governing Board of the Authority (the "Governing Board") approving the execution and delivery ofthe Third Amendment was duly adopted at a meeting of the Governing Board that was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout; and such resolution is in full force and effect and has not been modified, amended, or rescinded as of the date hereof. (4) The Authority has full right and lawful authority to execute and deliver the Third Amendment; the Third Amendment has been duly authorized, executed, and delivered by the Authority; and the Third Amendment is the legal, valid, and binding obligation of the Authority enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws relating to or Third Amendment to LRCA II-I limiting creditors' rights generally and by the principles of equity if equitable remedies are sought. (5) The execution and delivery ofthe Third Amendment and compliance by the Authority with the provisions thereof, under the circumstances contemplated thereby, does not and will not in any material respect conflict with or constitute on the part ofthe Authority a breach of or default under any agreement or other instrument applicable to or binding upon the Authority, or any existing law, regulation, court order, or consent decree to which the Authority is subject. (6) There is no action, suit, proceeding, or investigation before or by any court, public board, or body pending with respect to which the Authority has been served with process or, to my knowledge, threatened, wherein an unfavorable decision, ruling, or finding would: (a) affect the creation, organization, existence, or powers of the Authority or the titles of their respective officers or the Governing Board members to their respective offices; (b) in any way question or affect the validity or enforceability of the Third Amendment; or (c) in anyway question or affect the transactions contemplated by the Third Amendment. Respectfully submitted, Third Amendment to LRCA II-2 EXHIBIT A SCHEDULE OF BASIC PREMIUM PAYMENTS Period Endioe- Princioal Interest Rate Interest Total Debt Service Annual Debt Service March t, 2004 $ 865,000.00 6.100% $ 189,299.96 $1.054,299.96 $1.054,299.96 September I, 2004 163,975.00 t63,975.00 March I, 2005 925,000.00 6.300 163,975.00 1,088.975.00 1,252,950.00 September I, 2005 134,837.50 134,837.50 March I, 2006 980,000.00 6.400 134,837.50 1,114,837.50 1.249,675.00 September I, 2006 103,477.50 103,477.50 March I, 2007 1.045,000.00 6.400 103,477.50 1,148,477.50 1,251,955.00 September I, 2007 70,037.50 70,037.50 March 1.2008 1,105,000.00 6.500 70,037.50 1,175,037.50 1.245,075.00 September t, 2008 34,125.00 34,t25.00 March t, 2009 1.050000.00 6.500 34.125.00 1.084.125.00 1.118.250.00 Total 5,970,000.00 $1,202,204.96 $7,172,204.96 $7,172,204.96 Third Amendment to LRCA A-I EXHIBIT B ALLOCABLE PROPORTION FOR EACH PARTICIPANT City of Huntington Beach City of Oxnard Citv of San Bernardino City of Santa Ana 24.80% 18.08% 22.09% 35.03% Notwithstanding the foregoing table, the Allocable Proportion of each of above Participants and West Covina, for purposes of determining amounts to be allocated or distributed pursuant to Article V ofthe Agreement, shall be determined as set forth in Section 3 of the Third Amendment and in Article V of the Agreement. Third Amendment to LRCA B-1 EXHffiIT I NOTICE ADDRESSES If to the Authority: Big Independent Cities Excess Pool Joint Powers Authority clo Ken Spiker and Associates, Inc. 1100 South Flower Street, Suite 2100 Los Angeles, CA 90015-2115 Attention: General Manager If to the Participants: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention: Risk Manager City of Oxnard 305 West Third Street Oxnard, CA 93030 Attention: Risk Manager City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Attention: Risk Manager City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Attention: Risk Manager City of West Covina 1444 West Garvey Avenue West Covina, CA 91790 Attention: Risk Manager Third Amendment to LRCA I-I ex.}H8rT 13 FIRST AMENDMENT TO JOINT POWERS AGREEMENT CREATING THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY THIS FIRST AMENDMENT TO JOINT POWERS AGREEMENT CREATING THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY, dated as of November 1,2003 (this "First Amendment"), by and among the CITY OF HUNTINGTON BEACH ("Huntington Beach"), the CITY OF OXNARD ("Oxnard"), the CITY OF SAN BERNARDINO ("San Bernardino"), the CITY OF SANTA ANA ("Santa Ana"), and the CITY OF WEST COVINA ("West Covina"), each a municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "State"), amends the JOINT POWERS AGREEMENT CREATING THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY, executed and delivered in September 1988 (the "Agreement"), by and among Huntington Beach, Oxnard, San Bernardino, Santa Ana, and the CITY OF POMONA ("Pomona"), a municipal corporation duly organized and existing under the Constitution and laws of the State. All capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Agreement. RECITALS: WHEREAS, pursuant to Chapter 5, Division 7, Title 1 ofthe California Government Code (Section 6500 et seq.) (the "Joint Powers Law") and the Agreement, Huntington Beach, Oxnard, Pomona, San Bernardino, and Santa Ana formed the BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY (the "Authority") as joint exercise of powers agency; and WHEREAS, Article 17 ofthe Agreement provides, among other things, that a Member which no longer participates in any Insurance Program of the Authority by reason of expulsion from an Insurance Program or otherwise, shall be deemed to have withdrawn from the Agreement and shall no longer be a party to the Agreement; and WHEREAS, Pomona has been expelled, effective August 18, 2003, from Coverage as a Participant under, and as such terms are defined in, the Liability Risk Coverage Agreement, dated as of October 1, 1988, by and among the Authority and Huntington Beach, Oxnard, San Bernardino, Santa Ana, and Pomona, as amended by the First Amendment to Liability Risk Coverage Agreement, dated as of December 1,1988, by and among the Authority and Huntington Beach, Oxnard, San Bernardino, Santa Ana, and Pomona, as further amended by Resolution No. 95-1, adopted by the Board of Directors ofthe Authority (the "Board") on November 25, 1995 (collectively, the "Liability Risk Coverage Agreement"), and as further proposed to be amended by the Third Amendment to Liability Risk Coverage Agreement, dated for reference purposes as of November I, 2003 (the "Third Amendment"), and does not currently participate in any other Insurance Program of the Authority; and WHEREAS, Article 16 of the Agreement provides, among other things, that any qualified city may become a party to the Agreement with the approval of two-thirds of the members of the Board; and First Amendment to lPA 1 WHEREAS, the Board has unanimously approved the admission of West Covina as a new Participant under the Liability Risk Coverage Agreement and as a member of the Authority and a party to the Agreement; and WHEREAS, pursuant to the Third Amendment, West Covina shall be admitted as a new Participant under, and as such term is defined in, the Liability Risk Coverage Agreement; and WHEREAS, all of the Members of the Authority desire to execute this First Amendment to approve the admission of West Covina as a Member under, and as a party to, the Agreement and to acknowledge the withdrawal of Pomona as Member under the Agreement; and WHEREAS, in connection with the admission of West Covina as a new Member, certain provisions of the Agreement are required to be amended; and WHEREAS, Article 23 of the Agreement sets forth the conditions under which and the procedures pursuant to which the Agreement may be amended; and WHEREAS, Huntington Beach, Oxnard, San Bernardino, Santa Ana, and West Covina desire to amend the Agreement in accordance with Article 23 thereof and to make certain certifications in connection therewith, all as further set forth herein; NOW, THEREFORE, in consideration of the premises and of the mutual covenants contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree at follows: I. Acknowledgement of Withdrawal of Pomona as a Member. Because Pomona has ceased to participate in any Insurance Program of the Authority, in accordance with and subject to Article 17 ofthe Agreement, Pomona has withdrawn from the Agreement and as a Member of the Authority and is no longer a party to the Agreement. 2. Admission of West Covina as a Member. West Covina is hereby admitted as a Member of the Authority and as a party to the Agreement. 3. Amendment to Appendix A. Appendix A of the Agreement is hereby amended to read in its entirety as follows: MEMBERS City of Huntington Beach City of Oxnard City of San Bernardino City of Santa Ana City of West Covina 4. Incorporation of Terms; Reaffirmation of Agreement. From and after the effective date hereof, (a) all references to the "Agreement" shall mean and include the First Amendment to JPA 2 Agreement, as amended by this First Amendment, and (b) all references to "Member" or "Members" shall mean and include each or all, as applicable, of Huntington Beach, Oxnard, San Bernardino, Santa Ana, and West Covina. Each of Huntington Beach, Oxnard, San Bernardino, Santa Ana, and West Covina hereby reaffirms each of the provisions of the Agreement and confirms that, as so amended, the Agreement is and remains in full force and effect for the term thereof and is binding upon the parties hereto and their respective successors or assigns (but only to the extent, if any, permitted under the Agreement). 5. Resolution of Conflicting Provisions. If any terms of this First Amendment conflict with terms of the Agreement that have not been explicitly amended or waived by this First Amendment, the terms ofthis First Amendment shall control and the applicable terms of the Agreement shall be deemed to have been amended or waived to conform to the terms hereof. 6. Severability. In the event any provision of this First Amendment shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 7. Applicable Law. This First Amendment shall be governed by and construed solely in accordance with the laws of the State of California. 8. Captions. The captions or headings in this First Amendment are for convenience only and in no way define, limit, or describe the scope or intent of any terms, provisions, or sections of this First Amendment. 9. Execution in Countemarts. This First Amendment may be executed in several counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument. 10. Effective Date ofthis First Amendment. This First Amendment shall be effective on and after the date that the Board shall have received written notice ofthe approval, execution, and delivery of this First Amendment by each of the Members and the satisfaction of any requirements of the Joint Powers Law. II. State and County Filings. The General ManagerlSecretary of the Authority is hereby directed to file all appropriate notices pertaining to this First Amendment with the office of the California Secretary of State and the County Clerk of the County of Los Angeles, as applicable, within thirty (30) days of its effective date as required by Government Code Section 6503.5, and within ten (10) days of its effective date as required by Government Code Section 53051. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] First Amendment to JPA 3 IN WITNESS WHEREOF, the undersigned, each of which is a Member of the Authority, have caused this First Amendment to be executed as of the date first written above, to be effective on and after the effective date. APPROVED AS TO FORM: CITY OF HUNTINGTON BEACH By: By: It's: APPROVED AS TO FORM: CITY OF OXNARD By: By: It's: CITY OF SAN BERNARDINO By: ~~/ I~*L ~ CITY OF SANTA ANA By: By: It's: APPROVED AS TO FORM: CITY OF WEST COVINA By: By: It's: First Amendment to lP A 4 01.. if{ 6 rr C!- RESOLUTION NO. 2003-3 RESOLUTION OF THE BOARD OF DIRECTORS OF THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY APPROVING THE PREP A YMENT OF BASIC PREMIUM AND AUTHORIZING, RATIFYING, AND APPROVING CERTAIN OTHER DOCUMENTS AND ACTIONS IN CONNECTION THEREWITH WHEREAS, the Big Independent Cities Excess Pool Joint Powers Authority (the "Authority") is ajoint exercise of powers entity organized and existing under the laws of the State of California, and was initially formed by the Cities of Huntington Beach, Oxnard, Pomona, San Bernardino, and Santa Ana; and WHEREAS, the Authority and the Cities of Huntington Beach, Oxnard, Pomona, San Bernardino, and Santa Ana entered into the Liability Risk Coverage Agreement dated as of October 1, 1988 (the "Original Agreement"), as amended by the First Amendment to Liability Risk Coverage Agreement dated as of December 1,1988 (the "First Amendment"), by and among the Authority and the Cities of Huntington Beach, Oxnard, Pomona, San Bernardino, and Santa Ana, and by Resolution No. 95-1, adopted by the Board of Directors of the Authority on November 25, 1995 (the "Second Amendment") (the Original Agreement, as amended by the First Amendment and the Second Amendment, is referred to herein as the "Agreement"); and WHEREAS, the City of Pomona has ceased to be a Participant (as defined in the Agreement) under the Agreement; and WHEREAS, Section 11.2 ofthe Agreement permits all Participants (i.e., the Cities of Huntington Beach, Oxnard, San Bernardino, and Santa Ana), with at least two-thirds approval of the members of the Board, to exercise as a group the option to prepay the Basic Premium (as defined in the Agreement) of all Participants pursuant to Section 11.1 or 11.3 of the Agreement, as applicable, in the manner and upon the terms set forth in such applicable section; and WHEREAS, the Authority desires to approve the prepayment ofthe Basic Premium by the Participants, subject to the conditions set forth herein; and WHEREAS, the Authority desires to approve, ratifY, and confirm in all respects all previous actions taken by the Authority or any member ofthis Board of Directors of the Authority (the "Board") with respect to the foregoing; NOW, THEREFORE, the Board of Directors of the Big Independent Cities Excess Pool Joint Powers Authority does hereby find, determine, resolve and order as follows: SECTION 1. The foregoing recitals, and each of them, are true and correct. SECTION 2. The prepayment of the Basic Premium by all of the Participants pursuant to Section 11.2 of the Agreement is approved, without further action by this Board; provided that all ofthe following conditions are satisfied: (a) all Participants (i.e., the Cities of Huntington Beach, Oxnard, San Bernardino, and Santa Ana) shall have approved such option to prepay, so that such option shall be exercised by all such Participants as a group; and (b) Undesignated -1- 20470736vl Reserves (as defined in the Agreement) in the Claims Payment Fund (as defined in the Agreement), moneys in the Debt Service Reserve Fund (as defined in the Agreement), or any other lawfully available moneys shall be used for such prepayment. The optional prepayment of Basic Premium shall be made under Section 11.2 of the Agreement at the earliest practicable date and shall be exercised pursuant to Section 11.1 or 11.3 of the Agreement, in the manner and upon the terms set forth in such applicable section, as shall be determined by the President of the Authority (the "President") or the Vice-President ofthe Authority (the "Vice President"), acting alone, in consultation with the General Manager of the Authority (the "General Manager"). SECTION 3. Notwithstanding the last paragraph of Section 11.2 of the Agreement, the Authority's pooled self-insurance program shall not terminate by virtue of such prepayment of Basic Premium. SECTION 4. The President, the Vice President, the General Manager, the Secretary of the Authority (the "Secretary"), and any other proper officer of the Authority are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents necessary or proper for carrying out the transactions contemplated by this Resolution or the documents referred to herein, and to execute and deliver any and all certificates, representations, and other documents necessary or desirable to accomplish the transactions described in such documents or herein. SECTION 5. Any document, the execution of which by the President, the Vice President, the General Manager, the Secretary, or any other proper officer of the Authority is authorized by this Resolution, shall, in the absence or inability to act of such officer, be executed by any authorized designee of such officer, such authorization to be given in writing. SECTION 6. All actions previously taken by this Board and by the officers and staff of the Authority with respect to the matters addressed by this Resolution are hereby approved, ratified, and confirmed in all respects. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] -2- 20470736v1 '. SECTION 7. This Resolution shall take effect from and after its date of adoption. ADOPTED, SIGNED, AND APPROVED this 23rd day of October, 2003, by the following vote: AYES: NOES: ABSENT: ABSTAIN: President Big Independent Cities Excess Pool Joint Powers Authority ATTEST: Secretary Big Independent Cities Excess Pool Joint Powers Authority -3- 20470736vl . . STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I, ,Secretary of the Board of Directors of the Big Independent Cities Excess Pool Joint Powers Authority, do hereby certify that the above and foregoing is a full, true and correct copy of Resolution No. 2003-2 of said Board, that the same was duly and validly adopted on October 23, 2003, and that the same has not been amended or repealed. DATED: Secretary Big Independent Cities Excess Pool Joint Powers Authority -4- 20470736vl