HomeMy WebLinkAboutCity Council - 2006-38 i
RESOLUTION NO. 2 0 0 6-3 8
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON
BEACH APPROVING THE AMENDMENT AND RESTATEMENT OF THE
JOINT POWERS AGREEMENT CREATING THE BIG INDEPENDENT
CITIES EXCESS POOL JOINT POWERS AUTHORITY, AND
AUTHORIZING, RATIFYING, AND APPROVING THE RELATED
BYLAWS, MEMORANDUM OF COVERAGE, LIABILITY PROGRAM AND
WORKERS COMPENSATION PROGRAM
WHEREAS, the City of Huntington Beach is a municipal corporation organized and
existing under and by virtue of the constitution and laws of the State of California(the "City");
WHEREAS, the Cities of Huntington Beach, Oxnard, West Covina, San Bernardino, and
Santa Ana are the current Members of the Big Independent Cities Excess Pool Joint Powers
Authority, a joint exercise of powers entity organized and existing under the laws of the State of
California("BICEP");
WHEREAS, the City Council adopted Resolution No. 5874 in 1988 approving the Joint
Powers Agreement for BICEP, the Liability Risk Coverage Agreement, and various other
actions; and
WHEREAS, each Member of BICEP entered into that the BICEP Joint Powers
Agreement, executed and delivered in and after September 1988, as subsequently amended; and
WHEREAS, BICEP approved and entered into certain operating documents to carry out
the purpose of BICEP to jointly develop and fund programs for comprehensive liability coverage
and other coverages, including but not limited to, the Bylaws, the Liability Risk Coverage
Agreement, a Memorandum of Liability Coverage, and the Trust Agreement, all originally dated
as of October 1, 1988 and subsequently amended from time to time (the "Original Operating
Documents"); and
WHEREAS, BICEP entered into the form of the Original Operating Documents in order
to issue bonded indebtedness in October 1988 to fund the necessary reserves for the
comprehensive liability coverage provided to the Members of BICEP; and
WHEREAS, in October 2003, BICEP, with the subsequent approval and ratification of
the City Council of each Member, determined and approved actions to defease and retire said
bonded indebtedness in March 2004; and
WHEREAS, BICEP now desires to amend and restate the form of its operating
documents in order to provide clarity and efficiency in providing coverages to its Members, and
to allow the expansion of membership in BICEP to any public agency, as that term is defined in
the California Government Code commencing at Section 6500 et seq.; and
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Reso. No. 2006-38
WHEREAS, the City desires to approve, ratify, and confirm in all respects all previous
actions taken by the City or any member of this City Council of this City(the "City Council") or
any other officer or staff member of the City with respect to the foregoing;
NOW, THEREFORE, the City Council of the City of Huntington Beach 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 amended and restated Joint Powers Agreement, attached as Exhibit 1,
is approved in substantially the form presented at this meeting. The Mayor is hereby authorized
and directed to execute, and the City Clerk to attest to and deliver the Joint Powers Agreement.
SECTION 3. The following amended and restated Operating Documents of BICEP are
hereby approved and the Original Operating Documents shall no longer be in force and effect in
accordance and as provided in these new Operating Documents:
(a) the Amended Bylaws (attached as Exhibit 2);
(b) the Memorandum of Liability Coverage (attached as Exhibit 3);
(c) the Liability Program (attached as Exhibit 4);
(d) the Workers' Compensation Program (attached as Exhibit 5).
SECTION 4. The Mayor, the City Clerk, the City Attorney, and any other proper officer
of the City 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 actions
contemplated by this Resolution or any of the documents referred to herein.
SECTION 5. Any document, the execution of which by the Mayor, the City Clerk, the
City Attorney, or any other proper officer of the City 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 City Council and by the officers and
staff of the City with respect to the matters addressed by this Resolution are hereby approved,
ratified, and confirmed in all respects.
SECTION 7. This Resolution shall immediately take effect from and after its date of
adoption.
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PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 3rd day of � , 2006.
T
Mayor
REVIEWED AND APPROVED: PPROYED AS TO FORM:
C'ty Adminqstrator C ty Attorne 2phc,
INIT AN PPROVED:
Deputy City Administrator
INITIATED AND APPROVED:
C ty Attorney /fir
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06-296/2573
EXHIBIT 1
JOINT POWERS AGREEMENT
THE BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY
Tfiis Agreement is executed by and-among those public agencies, duly organized
and existing, which are parties signatory to this Agreement. All such public agencies,
hereinafter called Members, shall be listed in Appendix A, which shall be attached
hereto and made a part hereof.
RECITALS
WHEREAS, Articles 1 through 4, Chapter 5, Division 7, Title 1 of the California
Government Code (commencing with Section 6500 et seq.) (hereinafter the "Joint
Powers Law") permits two or more public agencies by agreement to jointly exercise
powers common to the contracting parties; and
WHEREAS, a joint powers authority was formed pursuant to the Joint Powers
Law by the execution of the Members of that certain Joint Powers Agreement Creating
the Big Independent Cities Excess Pon( Joint Powers Authority (the "Original
Agreement"); and
WHEREAS, the Members desire to amend and restate the Original Agreement to
continue to join together for the purpose of sharing risk, jointly purchasing liability
insurance and other coverages and related programs that exist, or to be determined in
the future.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
DEFINITIONS
"Authority" shall mean the Big Independent Cities Excess Pool Joint Powers Authority
created by the Original Agreement and continued by this Agreement.
"Board of Directors" or"Board" shall mean the governing body of the Authority.
"Coverage(s)" means the liability coverage to be provided under a Memorandum of
Liability Coverage, and any other areas of coverage including but not limited to,
property, workers compensation, etc., as determined and approved by the Board.
"Executive Committee" shall mean the Executive Committee of the Board of Directors of
the Authority.
"Fiscal Year" shall mean that period of twelve months which is established by the Board
of Directors or the Bylaws as the fiscal year of the Authority.
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"Government Code" shall mean the California Government Code, as it may be
amended from time to time.
"Insurance" means commercial primary or excess insurance or reinsurance.
"Member(s)" means any public agency as the term "public agency" is defined by Section
6500 of the Joint Powers Law, which includes, but is not limited to, any federal, state,
county, city, public corporation, public district of this state or another state, or any joint
powers authority formed pursuant to the Joint Powers Law by any of these agencies
which has executed this Agreement and has become a member of the Authority.
'Risk Management Program(s)n means those programs of risk sharing, Insurance, and
risk management services created by Authority to provide Coverage to each Member.
ARTICLE 2
PURPOSES
This Agreement is entered into by the Members to amend and restate the Original
Agreement in order that they may jointly continue to develop and fund Coverage
including but not limited to such programs as risk sharing, excess insurance, the
purchase of reinsurance, and the provision of necessary administrative services. Such
administrative services may include, but shall not be limited to, risk management
consulting, loss prevention and control, centralized loss reporting, actuarial consulting,
claims adjusting, and legal defense services.
All such purposes shall be accomplished through a joint exercise of powers by such
public agencies, pursuant to this Agreement, to be administered by a separate legal
entity, the Big Independent Cities Excess Pool Joint Powers Authority.
Upon execution of this Agreement by two-thirds (2/3rds) of the Members, the Original
Agreement shall no longer be in force and effect.
ARTICLE 3
PARTIES TO AGREEMENT
Each Member, as a party to this Agreement, certifies that it intends to and does contract
with all other Members as parties to this Agreement and with such other public agencies
as later may be added as parties to this Agreement.
ARTICLE 4
TERM
This Agreement shall become effective when executed and returned to the Authority by
each Member. The Authority shall promptly notify all Members in writing of such
effective date. This Agreement shall continue in effect until terminated as provided
herein; provided that the termination of this Agreement with respect to an individual
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_Member, upon its withdrawal or expulsion from membership in the Authority, shall not
operate to terminate this Agreement with respect to the remaining Members; and
provided further that this Agreement shall continue in effect so long as any obligations
of the Authority are outstanding.
ARTICLE 5
THE AUTHORITY
Pursuant to the Joint Powers Law, there is hereby created and continued a public entity
separate and apart from each party hereto, to be known as the 'Big independent Cities
Excess Pool Joint Powers Authority,"with such powers as are hereinafter set forth.
ARTICLE 6
POWERS OF THE AUTHORITY
(a) Powers. The Authority shall have all of the powers common to its Members and
all additional powers set forth in the Joint Powers Law and other statutes applicable to a
joint powers authority created hereby, and is hereby authorized to do all acts necessary
for the exercise of said powers. Such powers include, but are not limited to, the
following:
(1) To make and enter into contracts.
(2) To incur debts, liabilities, and obligations and to encumber real or personal
property.
(3) To acquire, hold, or dispose of real or personal property, contributions and
donations of real or personal property, funds, services, and other forms of assistance
from persons, firms, corporations, and government entities.
(4) To sue and be sued in its own name, and to settle any claim against it.
(5) To receive and use contributions and advances from Members as
provided in Government Code Section 6504, including contributions or advances of
personnel, equipment or property.
(6) To invest any money in its treasury that is not required for its immediate
necessities, pursuant to Government Code Section 6509.5.
(7) To employ agents and employees.
(8) To receive, collect and disburse moneys.
(9) To develop and implement Risk Management Programs, including but not
limited to the purchase of excess insurance and reinsurance, to pay claims under
Coverages provided by the Authority.
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(10) To finance in accordance with applicable laws, by means of the issuance
of bonds or other instruments of indebtedness, self-insurance reserve funds necessary
or convenient for the implementation of this Agreement.
(11) To exercise other reasonable and necessary powers in furtherance or
support of any purpose of the Authority or power granted by the Joint Powers Law, this
Agreement or the Bylaws of the Authority.
(b) Restrictions on Powers. Pursuant to and to the extent required by Government
Code Section 6509, the Authority shall be restricted in the exercise of its powers in the
same manner as the City of Oxnard is restricted in its exercise of similar powers;
provided that, if the, City of Oxnard shall cease to be a Member, then the Authority shall
be restricted in the exercise of its power in the same manner as the City of Santa Ana.
ARTICLE 7
BOARD OF DIRECTORS
(a) Composition of Board. The Authority shall be governed by the Board of
Directors, which shall be composed of one director representing each Member,
appointed by the Member's City Council or Governing Board and serving at the pleasure
of such City Council or Governing Board. The City Council or Governing Board of each
Member shall also appoint an alternate director who shall have the authority to attend,
participate in and vote at any meeting of the Board when the director is absent. A
director or alternate director shall be a member of the City Council of the City or
Governing Board of the public entity which appoints such director or alternate director,
or an official or staff person of the Member which such director or alternate director
represents. Any vacancy in a director or alternate director position shall be filled by the
appointing Member's City Council or Governing Board, subject to the provisions of this
Article. Immediately upon admission of a new Member pursuant to Article 16, such
Member shall be entitled and required to appoint a director and alternate director.
(b) Termination of Status as Director. A director and/or alternate director shall be
removed from the-Board of Directors upon the occurrence of anyone of the following
events:
(1) the Authority receives written notice from the appointing Member of the
removal of the director or alternate director, together with a certified copy of the
resolution of the City Council or Governing Board of the Member effecting such
removal;
(2) the withdrawal or removal of the Member from the Authority;
(3) the death or resignation of the director or alternate director;
(4) the Authority's receipt of written notice from the Member that the director
or alternate director is no longer qualified as provided in subsection (a)of this Article.
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(c) Compensation. Directors and their alternates are not entitled to
compensation. The Board of Directors may authorize reimbursement of expenses
incurred by directors or their alternates.
(d) Powers of Board. The Board of Directors shall have the following powers and
unctions:
(1) Except as otherwise provided in this Agreement, the Board shall exercise
all powers and conduct all business of the Authority, either directly or by delegation to
other bodies or persons.
(2) The Board shall form an Executive Committee, as provided in Article 10.
The Executive Committee may exercise all powers or duties of the Board except
adoption of the Authority's annual budget.
(3) The Board may form, as provided in Article 11, such other committees as
it deems appropriate to conduct the business of the Authority or it may delegate such
power to the Executive Committee in the Bylaws or by resolution of the Board. The
membership of any such other committee may consist in whole or in part of persons
who are not members of the Board; provided that the Board and the Executive'
Committee may delegate decision-making powers and duties only to a committee
whose membership is comprised by a majority of directors or their alternate. Any
committee not so constituted may function only in an advisory capacity. -
(4) The Board shall elect the officers of the Authority and shall appoint or
employ necessary staff in accordance with Articles 9 and 12.
(5) The Board shall cause to be prepared, and shall review, modify as
necessary, and adopt the annual operating budget of the Authority. Adoption of the
budget may not be delegated.
(6) The Board shall receive, review and act upon periodic reports and audits
of the funds of the Authority, as required under Articles 13 and 14 of this Agreement.
(7) The Board shall have such other powers and duties as are reasonably
necessary to carry out the purposes of the Authority.
ARTICLE 8
MEETINGS OF THE BOARD OF DIRECTORS
(a) Regular Meetings. The Board of Directors shall hold at least three (3) regular
meetings eachyear. e Board of Directors shall fix by resolution or in the Bylaws the
date upon which, and the hour and place at which, each regular meeting is to be held.
(b) Ralph M. Brown Act. Each meeting of the Board of Directors,
including without limitation a regular, adjourned regular, and special meetings shall be
called, noticed, held, and conducted in accordance with the Ralph M. Brown Act,
Section 54950 et seq. of the Government Code.
(c) Minutes. The Authority shall have minutes of each regular, adjourned
regular, and special meetings kept by the Secretary. As soon as practicable after each
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meeting, the Secretary shall forward to each Board member a copy of the minutes of
such meeting.
(d) Quorum. A majority of the members of the Board is a quorum for the
transaction of business. However, less than a quorum may adjourn from time to time.
A vote of the majority of a quorum at a meeting is sufficient to take action unless
otherwise provided in the Bylaws.
(e) Voting. Each member of the Board shall have one vote.
ARTICLE 9
OFFICERS
The Board shall elect a President and Vice President from among its members at its last
meeting of each Fiscal Year. Each officer shall assume the duties of his office upon
election. If either the President or Vice President ceases to be a member of the Board,
the resulting vacancy shall be filled at the next regular meeting of the Board held after
the vacancy occurs or at a special meeting of the Board called to fill such vacancy. In
the absence or inability of the President to act, the Vice President shall act as President.
The President shall preside at and conduct all meetings of the Board. The Board may
appoint such other officers as it considers necessary and as provided in the Bylaws.
ARTICLE 10
EXECUTIVE COMMITTEE
The Board shall establish an Executive Committee of the Board which shall consist
solely of members selected from the membership of the Board. The composition and
the terms of office of the members of the Executive Committee shall be provided in the
Bylaws of the Authority. The Executive Committee shall conduct the business of the
Authority between meetings of the Board, exercising all those powers as provided for in
section (d)(2)of Article 7, or as otherwise delegated to it by the Board.
ARTICLE 11
COMMITTEES
The Board may establish committees as it deems appropriate to conduct the business
of the Authority or it may, in the Bylaws or by resolution, delegate such power to the
President. Members of committees shall be appointed by the Board or the President,
as the case may be. Each committee shall have those duties as determined by the
Board or the President, as the case may be, or as otherwise set forth in the Bylaws.
Each Committee shall meet on the call of its chairperson, and shall report to the
Executive Committee and the Board as directed by the Board or the Executive
Committee, as the case may be.
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ARTICLE 12
STAFF
(a) Principal Staff. The following staff members shall be appointed by and serve _
at the pleasure of the Board of Directors:
(1) General Manager/Secretary. The General Manager/Secretary shall administer
the business and activities of the Authority, subject to the general supervision and policy
direction of the Board and the Executive Committee; shall be responsible for all
minutes, notices and records of the Authority; and shall perform such other duties as
are assigned by the Board and Executive Committee.
(2) Treasurer. The Treasurer shall be appointed as provided in the Bylaws
and pursuant to Government Code Section 6505.5 or Section 6505.6, as these sections
may be amended from time to time. The duties of the Treasurer are set forth in Article
13 of this Agreement.
(3) Controller. The Controller shall be appointed as provided in the Bylaws
and pursuant to Government Code Section 6505.5 or Section 6505.6, as these sections
may be amended from time to time. The duties of the Controller are set forth in Article
14 of this Agreement.
(b) Other Staff. The Board,the Executive Committee or the General
Manager/Secretary shall provide for the appointment of such other staff as may be
necessary for the administration of the Authority.
(c) Compensation. The General Manager/Secretary, Treasurer, the Controller
and any other members of the staff or employees of the Authority shall be compensated
in such manner as shah be approved by the Board as permitted by applicable law.
ARTICLE 13
RESPONSIBILITIES FOR FUNDS AND PROPERTY
(a) Duties of Treasurer. The Treasurer shall perform all duties as required under the
Joint Powers Law including:
(1) Receive and receipt for all money of the Authority and place it in the
treasury of the treasurer so designated to the credit of the Authority.
(2) Be responsible, upon his or her official bond, for the safekeeping and
disbursement of all Authority money so held by him or her.
(3) Pay, when due, out of money of the Authority field by him or her, all sums
payable on outstanding bonds and coupons of the Authority.
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(4) Pay any other sums due from the Authority from Authority money, or any
portion thereof, only upon warrants of the public officer performing the functions of
Controller who has been designated pursuant to the Bylaws.
(5) Verify and report in writing on the first day of July, October, January,-and
April of each year to the Authority and to each Member to this Agreement, the amount
of money he or she holds for the Authority, the amount of receipts since his or her last
report, and the amount paid out since his or her last report.
(b) Authority Property. Pursuant to Government Code Section 6505.1, the General
Manager/Secretary, the Treasurer, and such other persons as the Board may designate
shall have charge of, handle, and have access to the property of the Authority.
ARTICLE 14
ACCOUNTS AND RECORDS
(a) Annual Budget. The Authority shall annually adopt an operating budget
pursuant to Article 7(d)(5)of this Agreement.
(b) Funds and Accounts. The Controller of the Authority shall establish and
maintain such funds and accounts as may be required by good accounting practices
and by the Board. Books and records of the Authority in the hands of the Controller
shall be open to inspection by authorized representatives of the Members at all
reasonable times. The Authority shall adhere to a standard of strict accountability of all
funds as set forth in the Joint Powers Law.
(c) Controller's Report. The Controller, within one hundred twenty (120) days after
the close of each Fiscal Year, shall give or cause to be given a complete written report
of all financial activities of such Fiscal Year to the Board and to each Member.
(d) Annual Audit. The Authority shall provide for a certified, annual audit of the
accounts and records of the Authority which audit shall conform to generally accepted
auditing standards. When such an audit of the accounts and records is made by a
Certified Public Accountant, such report shall be filed as a public record with each of the
Members and with the county auditor in which each of the Members is located. Such
report shall be filed within six (6) months of the end of the Fiscal Year under
examination. Costs of such audit shall be considered a general expense of the
Authority and included in the term "administrative costs."
ARTICLE 15
MEMBER RESPONSIBILITIES
Each Member shall have the following responsibilities:
(a) To appoint its director and alternate director to, or remove its director and
alternate director from the Board as set forth in Article 7.
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(b) To consider proposed amendments to this Agreement as set forth in Article 24.
(c) To make contributions in the form of membership premiums, assessments, fees _
and fees, if any, in accordance with the Bylaws and as determined by the Board, for the
purpose of defraying the costs of providing the annual benefits accruing directly to each
party from this Agreement.
(d) To provide to the Authority such other information or assistance as may be
necessary for the Authority to carry out the Risk Management Programs as determined
by the Board.
ARTICLE 16
NEW MEMBERS
With the approval of two-thirds (2/3rds) of all current members of the Board, and
compliance with all requirements of the Bylaws of the Authority and of the Joint Powers
Law, any qualified public agency may become a party to this Agreement. The date that
the applying public agency will become a Member shall be determined by the Board.
ARTICLE 17
DISSOLUTION AND DISTRIBUTION OF ASSETS
This Agreement may be terminated and the Authority dissolved by the written consent
of two-thirds (2/3rds) of all Members; provided however, that this Agreement and the
Authority shall continue to exist for the purpose of disposing of all claims, the distribution
of assets, and any other functions necessary to conclude the affairs of the Authority as
provided in the Bylaws of the Authority.
ARTICLE 18
WITHDRAWAL OF MEMBER
A Member may withdraw from membership in the Authority in accordance with the
procedures and the conditions as provided in the Bylaws of the Authority.
ARTICLE 19
EXPULSION OF MEMBER
A Member may be expelled from membership in the Authority by a two-thirds (2/3rds)
vote of all members of the Board in accordance with the procedures and the conditions
as provided in the Bylaws of the Authority.
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ARTICLE 20
OBLIGATIONS OF AUTHORITY
The debts, liabilities and obligations of the Authority shall not be the debts,_liabilities and
obligations of each Member. Any Member may separately contract or assume
responsibility for specific debts, liabilities, or obligations of the Authority.
Pursuant to Section 895.2 of the Government Code, the Members may be jointly and
severally liable for any liability which is imposed by any law for injury caused by a
negligent or wrongful act or omission occurring in the performance of this Agreement. In
the event that such liability arises out of a negligent or wrongful act or omission with
respect to a Risk Management Program, the Members hereby provide, pursuant to
Section 895.6 of the Government Code, that such liability shall be borne by the
Members participating in such Risk Management Program in the same proportion as
administrative expenses of the Risk Management Program are allocated among such
participating Members at the time the liability is determined. In the event a Member is
held liable upon any judgment for damages caused by such an act or omission and
makes payment in excess of its proportional share, as determined in the preceding
sentence, such Member is entitled contribution from each of the Members which have
not paid their proportional share. -
ARTICLE 21
LIABILITY OF BOARD OF DIRECTORS, OFFICERS AND COMMITTEE MEMBERS
The members of the Board of Directors, officers and committee members of the
Authority shall use ordinary care and reasonable diligence in the exercise of their
powers and in the performance of their duties pursuant to this Agreement. They shall
not be liable for any mistake of judgment or any other action made, taken or omitted by
them in good faith, nor for any action taken or omitted by any agent, employee or
independent contractor selected with reasonable care, nor for loss incurred through
investment of Authority funds, or failure to invest.
No director,officer or committee member shall be responsible for any action taken or
omitted by any other director, officer or committee member. No director, officer or
committee member shall be required to give a bond or other security to guarantee the
faithful performance of his or her duties pursuant to this Agreement.
ARTICLE 22
BYLAWS
The Board shall adopt Bylaws consistent with this Agreement which shall provide for the
administration and management of the Authority.
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ARTICLE 23
NOTICES
The Authority shall address notices, billings and other communications to a Member as
directed by such Member. Each Member shall provide the Authority with the address to
which communications are to be sent. Members shall address notices and other
communications to the Authority, at the office address of the Authority as set forth in the
Bylaws.
ARTICLE 24
AMENDMENT
This Agreement may be amended at any time by vote of two-thirds (2/3rds) of the
Members, acting through their City Councils or Governing Boards, and compliance with
any requirements of the Joint Powers Law. Any amendment of this Agreement shall
become effective upon receipt by the Authority of notice of the approval of such
amendment by the City Councils or Governing Boards of two-thirds (2/3rds) of the
Members and satisfaction of any requirements of the Joint Powers Law.
ARTICLE 25
SEVERABILITY
Should any portion, term, condition, or provision of this Agreement be decided by a
court of competent jurisdiction to be illegal or in conflict with any law of the State of
California, or be otherwise rendered unenforceable or ineffectual, the validity of the
remaining portions, terms, conditions, and provisions shall not be affected thereby.
ARTICLE 26
PROHIBITION AGAINST ASSIGNMENT
No Member may assign any right, claim or interest it may have under this Agreement,
and no creditor, assignee or third party beneficiary of any Member shall have any right,
claim, or title to any part, share, interest, fund or asset of the Authority.
ARTICLE 27
AGREEMENT COMPLETE
This Agreement constitutes the full and complete agreement of the parties. There are
no oral understandings or agreements not set forth in writing herein.
ARTICLE 28
FILING OF NOTICE OF AMENDMENT
The General Manager/Secretary of the Authority shall file a notice of this Agreement
within 30 days of its effective date with the office of the California Secretary of State, as
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required by Government Code Section 6503.5. Upon any change in membership, the
General Manager/Secretary shall file a notice of such change of membership within 10
days of its effective date with the Secretary of State and with the county clerk of the
county in which each Member is located, as required by Government Code Section
53051.
IN WITNESS WHEREOF, the undersigned party hereto has executed this Joint Powers
Agreement on the dated indicated below.
DATE: Tu y 03, 2006 CITY OF Huntington Beach
BY: ��-
Dave Sullivan
ITS: Mayor
ATTEST:
CITY CLERK
BY: ohi-IJ -
Joa L. Fl nn
APPROV AS TO-FORM:
CITY ATTORNEY
B`
(e 1G G
Joint Powers Agreement 12
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EXHIBIT 2
AMENDED BYLAWS
OF THE
BIG INDEPENDENT CITIES EXCESS POOL JOINT POWERS AUTHORITY
ARTICLE I
DEFINITIONS
The definitions of terms used in these Bylaws shall be the same as those contained in the Joint
Powers Agreement ("JPA Agreement") creating the Big Independent Cities Excess Pool Joint
Powers Authority,.hereinafter called BICEP, unless otherwise expressly provided herein.
1.1 "Board" means members of the Board of Directors of BICEP; provided that Members that
do not participate in a given risk sharing layer(s) shall not be entitled to vote on any action with
respect to those risk sharing layer(s) and any references in these Bylaws to a majority or specified
percentage of the Board shall be deemed to mean a majority of the affected Members of the
Board.
1.2 "Charter Member" means the Member cities that formed BICEP in September 1988 which
are Huntington Beach, Oxnard, Pomona, San Bernardino and Santa Ana.
1.3 "Coverage" means the liability coverage provided in the Memorandum attached as Exhibit
A hereto and incorporated herein by reference, and any other areas of coverage including but not
limited to, property, workers compensation, etc., as determined and approved by the Board.
1.4 "Coverage Period" means each year co-extensive with the Fiscal Year for which a Member
pays premiums for Coverage, unless and as amended by the Board.
1.5 "Fiscal Year" means from July 1 in each calendar year to June 30 of the next calendar year
unless later amended by the Board.
1.6 "Insurance" means commercial primary or excess insurance or reinsurance.
1.7 "Member" means any public agency as the term "public agency" is defined by Section 6500
of the Joint Powers Law, which includes, but is not limited to, any federal, state, county, city,
public corporation, public district of this state or another state, or any joint powers authority formed
pursuant to the Joint Powers Law by any of these agencies which has executed this Agreement
and has become a member of the Authority.
1.8 "Memorandum" means the BICEP Memorandum of Liability Coverage set forth in Exhibit A
hereto and incorporated herein by reference.
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05-31-06
1
1.9 "Risk Management Program" means those programs of risk sharing, Insurance, and risk
management services created by BICEP to provide Coverage to each Member.
ARTICLE 11 -
OPERATIONAL ITEMS AND GOVERNANCE
2.1 Term. The Term of these Amended Bylaws shall commence on the date of approval
by the Board as provided in Section 2.3 and shall continue until later amended by the
Board or dissolution of BICEP as provided herein.
2.2 Amendment of Bylaws. These Bylaws may be further amended at any time by a two-
thirds (2/3rds) vote of all members of the Board. Following adoption of amendments, the
General Manager shall prepare and distribute a revision of the Bylaws to all Members.
2.3 Effective Date. These Bylaws shall go into effect immediately upon adoption by the
Board as provided herein.
2.4 Election of Officers. The Board shall elect the President and the Vice President from
among the members of the Board. For each Fiscal Year, the officers shall be elected in the
following manner:
2.4.1 At the last regular meeting of each Fiscal Year, the Board shall elect officers as
required by the JPA Agreement and these Bylaws for the upcoming Fiscal Year. All
terms of office shall be for one year. The officers shall begin serving terms upon the
beginning of the fiscal year immediately following the election.
2.4.2 Each Board member may place themself or another Board member in nomination for
each office.
2.4.3 Each Board member shall cast one vote for the candidate of his/her choice for each
office.
2.4.4 The Board may remove an officer at any time. A vacancy in any office, due to death,
resignation, removal, disqualification, or any other cause, shall be filled by election of
the Board.
2.5 Duties of Officers.
2.5.1 Duties of the President.
The President shall preside at and conduct all meetings of the Board and perform all duties
as provided in these Bylaws or delegated by the Board. The immediate Past President shall
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serve as an ex officio member of the Executive Committee for a term of one (1) year, and as long
as he or she remains a member of the Board.
2.5.2 Duties of Vice President.
In the absence of the President, the Vice President shall perform all duties assigned to the
President by these Bylaws or by the Board.
2.6 Appointment and Duties of Treasurer.
The Board shall appoint the Treasurer as provided in Section 6505.5 or Section 6505.6 of the
California Government Code. The duties of the Treasurer shall be those specified in JPA
Agreement, in Section 6505.5 or 6505.6 of the California Government Code, and in accordance
with the laws applicable to any out-of--state Member. The Treasurer shall monitor and oversee the
deposits and investments of BICEP's funds by the General Manager and perform other duties as
specified by the Board.
2.7 Appointment and Duties of Controller.
The Board shall appoint the Controller as provided in Section 6505.5 or Section 6505.6 of the
California Government Code. The duties of the Controller shall be those specified in the JPA
Agreement, in Section 6505.5 or Section 6505.6 of the California Government Code, and in
accordance with the laws applicable to any out-of-state Member.
2.8 Appointment and Duties of General Manager.
By a majority vote of all members, the Board shall appoint a General Manager to conduct the day-
to-day operations of BICEP. The General Manager shall perform those duties as delegated and
authorized by the Board, including but not limited to, keeping minutes of the Board meetings, and
keeping and maintaining all of the records of BICEP.
2.9 Establishment of Committees
2.9.1 Executive Committee. There shall be an Executive Committee of the Board of
Directors which shall consist of not less than four (4) members, exclusive of any current
immediate Past President serving as an Ex Officio Executive Committee Member. Two of the
members of the Executive Committee shall be the President and the Vice President of the Board.
The other members of the Executive Committee shall be elected by the Board. The President, or
the Vice President in his/her absence, shall serve as the Chairperson of the Executive Committee.
2.9.2 Subject to approval of the Board, the President shall appoint any other committees
and determine the committees' structure, charge, size and membership. Committees may be
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established to consider any matter within the jurisdiction of BICEP. Committees shall operate
according to the policies adopted by the Board and shall submit their reports and
recommendations to the Board. The chairperson of a committee shall be a member of the Board
or an alternate director. '
2.10 Board Meetings
2.10.1 Regular Meetings.
A. Time Held. Unless otherwise changed by a majority vote of the
Board, regular meetings shall be held as required to conduct the business of BICEP,
not less than three (3)times in each Fiscal Year.
B. Business to be Transacted. At any meeting, the Board may
transact any business within its powers, and receive reports of the operations and
affairs of BICEP.
C. Notice. Written notice ("Notice") of each regular meeting of the
Board shall be delivered to each director-and/or alternate director at least fourteen
(14) days in advance of the meeting. Delivery of the Notice may be accomplished in
electronic form. The Notice shall include a proposed agenda and shall specify:
(i) The place, date and hour of the meeting.
(ii) Those matters which are intended to be presented for action by
the Board.
D. Inclusion of Items in Regular Meeting Agenda. Within three (3)
calendar days of receipt of the Notice which includes the proposed agenda, any
director or alternate director may cause an item to be included in the agenda for the
upcoming Board meeting by delivering to the President or the General Manager a
written request, which may be in electronic form, to include such item in the agenda.
2.10.2 Special Meetings.
A special meeting of the Board may be called at any time by the President or by a majority
of the directors subject to the requirements for 24-hour written notice to the directors and/or
alternate directors and to requesting representatives of the media. The notice of a special
meeting shall specify the time and place of the meeting and the business to be transacted.
No other business shall be considered at the meeting. A member of the Board may waive
notice as provided in Section 54956 of the Government Code and in accordance with the
laws applicable to any out-of-state Member. Notice of the calling of any special meeting
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shall be posted as provided in said Section 54956 and in accordance with the laws
applicable to any out-of-state Member.
2.10.3 Adjourned Meetings.
The Board may adjourn any regular or special meeting to a time and place specified in the
order of adjournment, whether or not a quorum has been established. If a quorum is not
established, no business other than adjournment may be transacted. A copy of the order
for adjournment shall be posted.
2.11 Alternate Director.
The alternate director appointed by a Member as its alternate representative on the Board may
attend and participate in any meeting of the Board and, in the absence of the director, may vote in
any meeting of the Board as the representative of the Member.
2.12 Quorum and Voting Requirements.
A majority of the Members shall constitute a quorum for the transaction of business. -All actions of
the Board shall require the affirmative votes of a majority of the Members present at a meeting
duly held at which a quorum is present unless otherwise expressly provided herein. Each
Member shall be entitled to cast only one vote.
2.13 Brown Act Compliance.
Notwithstanding anything herein to the contrary, all meetings shall be held in strict compliance
with the Ralph M. Brown Act (California Government Code Section 54950 et seq.), as it may be
amended from time to time, and in accordance with the laws applicable to any out-of-state
Member.
2.14 Robert's Rules of Order.
All meetings of the Board, its Committees or other bodies of BICEP shall be conducted in
accordance with Robert's Rules of Order, provided that in the event of a conflict, these Bylaws or
applicable state law shall supersede and control.
2.15 Authority to Sign Documents.
The Board may authorize any officer, staff member, or agent of BICEP to execute any contract in
the name of and on behalf of BICEP, and such authorization may be general or specific in nature.
Unless so authorized, no officer, staff member or agent shall have any power to bind BICEP by
contract.
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2.16 Offices.
BICEP's principal office for the transaction of business is located at 1100 S. Flower Street, Suite
2100, Los Angeles California 90015. The Board may change the location of the principal office
from time to time. The Board may establish one or more subordinate offices at any place or places
where BICEP is qualified to do business.
ARTICLE III
FINANCE
3.1 Budget.
Prior to the last Board meeting in a Fiscal Year, the General Manager shall submit to the Board a
proposed general budget for the next Fiscal Year. That budget shall include revenues and
expenses with beginning balances. Revenues are to be broken down by operating revenues and
interest income. Expenses are to be broken down by operating expenses,
professional/contractual services plus pool coverage and claim expense. The budget shall
provide information for the three prior Fiscal Years, the budget and projected budget for the
current Fiscal Year, and the proposed budget for the upcoming Fiscal Year. The Board shall
review and adopt the budget no later than at the last meeting of the Board in each Fiscal Year.
3.2 Delegation.
The General Manager shall manage all expenditures, subject to control of the Board. The
General Manager and Treasurer shall have power to transfer funds within the total detailed budget
to meet unanticipated needs or changed situations. Such action shall be reported to the Board at
their next meeting.
ARTICLE 1V
NEW MEMBER REQUIREMENTS
4.1 Conditions to providing Coverage to a New Member.
BICEP may provide Coverage to any new Member(s) which is not currently a Member under
these Bylaws, subject to the following conditions:
4.1.1 The new Member shall be a public agency as defined in Section 6500 of the
California Government Code.
4.1.2 The public agency shall have a full-time risk management employee, or subject to
the unanimous approval of the Board, shall have either: (i) a risk management
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professional or (ii) otherwise must be able to demonstrate a sound risk management
program.
4.1.3 The public agency shall have an active loss control program.
4.1.4 A new Member's participation in a coverage program of BICEP shall be subject to an
actuarial study of loss experience to compare with current Members to see if the
new Member's participation would adversely affect the actuarial soundness of a
BICEP program.
4.1.5 The recommendation of BICEP's insurance broker.
4.1.6 Submission of reasonably required information including but not limited to, audited
financial statements, underwriting data, claims and loss reports.
4.2 Acceptance of New Member.
Acceptance of a new Member shall be approved by a vote of two-thirds (2/3rds) of all current
Members of the Board.
4.3 Condition to Acceptance.
Acceptance of a new Member shall be subject to the approval and execution of the Joint Powers
Agreement, as it may be amended from time to time, by such Member's governing body and
agreement to be bound by these Bylaws.
ARTICLE V
COVERAGE ACCEPTANCE
5.1 BICEP hereby agrees to provide the Coverage to each Member, and each Member hereby
agrees to accept the Coverage, in accordance with these Bylaws and upon the terms and
conditions set forth in the Memorandum and/or Insurance purchased for Members in accordance
with each Risk Management Program in which a Member participates.
5.2 The Board shall annually determine each type of Risk Management Program which BICEP
may provide for Coverage, or for a portion of Coverage, to the Members. Each such Risk
Management Program shall provide for appropriate levels of self-insured retention, risk sharing
and the purchase of Insurance from a commercial insurer or reinsures, as determined and
approved by the Board. The Board may determine to suspend the Memorandum and accept the
policy of Insurance as the basis for liability coverage by the approval of a "reverse following form."
5.3 Coverage provided to each Member is expressly conditioned on that Member's payment of
applicable premiums related to the Risk Management Program in which the Member participates.
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ARTICLE VI
DISSOLUTION OF BICEP
6.1 BICEP shall continue until dissolution as determined by a two-thirds (2/3rds) vote of the
entire Board. The JPA Agreement and these Bylaws shall continue in force and effect for
purposes of disposing of all claims, payment of all expenses related to such dissolution, including
but not limited to, insurance company payroll audits, claims adjustment costs, financial auditing
expenses, accounting costs, investment services expenses, required official dissolution notices to
various parties, attorney costs and any other related necessary expenses, and the distribution of
remaining assets of BICEP.
6.2 The distribution of remaining assets of BICEP upon dissolution shall be in accordance with
the terms and conditions for distribution as provided in the Risk Management Program in which a
Member participates.
6.3 The Board is vested with all powers of BICEP for the purpose of concluding and dissolving
the business affairs of BICEP.
ARTICLE VII
WITHDRAWAL BY MEMBER
7.1 Conditions to Permitting Withdrawal of a Member from Coverage. On and after July 1,
2005, BICEP shall permit a Member to withdraw from Coverage subject to the following
conditions:
7.1.1 A Member shall not be in default of any of its obligations to pay any premium as
provided herein and pursuant to a Risk Management Program.
7.1.2 Notice to Withdraw.
(a) A Charter Member shall provide written notice to BICEP of its intent to
withdraw no less than six (6) months preceding the upcoming renewal date of Coverage. A
non-Charter Member may not withdraw for a period of thirty-six (36) months commencing
from the date of admission to BICEP ("Initial Term"). After the Initial Term, a non-Charter
Member shall provide written notice to BICEP of its intent to withdraw no less than six (6)
months preceding the upcoming renewal date of Coverage; except, however, a non-
Charter Member may provide such 6-month notice prior to the end of its Initial Term, which
withdrawal shall take effect on the next immediate renewal date of Coverage.
(b) Any Member may withdraw from a Risk Management Program which is non-
risk sharing by providing written notice no less than ninety (90) days preceding the
upcoming renewal date of such non-risk sharing Coverage.
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7.1.3 A Member shall have paid all fees and expenses incurred by BICEP as a result of
such withdrawal.
7.1.4 A Member's withdrawal shall be effective on the first day of a new Coverage Period.
7.2 The distribution to a Member of assets of BICEP upon withdrawal shall be in accordance
with the terms and conditions for such distribution as provided in the Risk Management Program
in which a Member participates.
7.3 A Member that is not participating in any Risk Management Program shall be deemed to
have withdrawn from BICEP.
ARTICLE Vlll
EXPULSION OF MEMBER
8.1 Conditions to permitting expulsion of a Member from Coverage. BICEP may expel a
Member from Coverage subject to the following conditions:
8.1.1 A Member shall be in default under these Bylaws, the Memorandum, or a Risk
Management Program and shall have failed to cure such default in accordance with the provisions
of Article X, below;
8.1.2 The Board, by not less than two-thirds (2/3rds) vote of the Members, excluding the
Member in default, shall have approved such expulsion and written notice of the final action of
expulsion shall have been given to the Member not less than sixty (60) days preceding the
effective date of such expulsion;
8.2 In the event that BICEP elects to expel any defaulting Member, subject to the conditions
described and in the manner provided in Section 8.1 hereof, the Member nevertheless agrees to
pay to BICEP all cost, losses or damages howsoever arising or occurring as a result of such
default: In no event shall expulsion waive or release such defaulting Member from its ongoing
obligations assumed during its years of participation in BICEP prior to the effective date of
expulsion.
8.3 The distribution to'a Member of assets of BICEP upon expulsion shall be in accordance
with the terms and conditions for such distribution as provided in the Risk Management Program
in which a Member participates.
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ARTICLE 1X
INDEMNIFICATION AND DISCLAIMER
9.1 Indemnification Covenants. Each Member hereby agrees to indemnify and save-
BICEP and all other Members and their respective officers harmless from and against all claims,
losses and damages, including legal fees and expenses, arising out of such Member's breach or
default in the performance of any of its obligations under these Bylaws, the Memorandum, and a
Risk Management Program.
9.2 Disclaimer. BICEP MAKES NO WARRANTY OR REPRESENTATION, EITHER
EXPRESS OR IMPLIED, AS TO THE ADEQUACY OF THE COVERAGE FOR THE NEEDS OF
ANY OR EACH OF THE MEMBERS.
ARTICLE X
DEFAULTS AND REMEDIES
10.1 Defaults. The following shall be an event of default under these Bylaws and the term
"Event of Default" shall mean, whenever it is used in these Bylaws with respect to a Member, any
one or more of the following events: -
10.1.1 Failure by a Member to pay any premium or various adjustments or
allocations required to be paid hereunder;
10.1.2 Failure by a Member to observe and perform any covenant, condition or
agreement on its part to be observed or performed herein or otherwise with respect hereto;
10.1.3 The filing by the Member of a case of bankruptcy, or the subjection of any
right or interest of the Member under these Bylaws to any execution, garnishment or attachment,
or adjudication of the Member as a bankrupt, or assignment by the Member for the benefit of
creditors, or the entry by the Member into an agreement of composition with creditors, or the
approval by a court of competent jurisdiction of a petition applicable to the Member in any
proceedings instituted under the provisions of the federal bankruptcy code, as amended, or under
any similar act which may hereafter be enacted;
10.1.4 Failure to fully comply with the terms and provisions of the Memorandum or a
Risk Management Program.
10.2 Notice of Default. BICEP shall give written notice of the Event of Default ("Notice of
Default") to the Member in default, specifying the Event of Default complained of by BICEP, in the
time periods as provided in Section 10.3 below. Failure or delay in giving such notice shall not
constitute a waiver of any Event of Default, nor shall it change the time of default.
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10.3 Right to Cure Default. The Member whose acts or omissions to act constitute an Event
of Default as defined in Section 10.1 shall be entitled to cure, correct, or remedy such Event of
Default, if (i) such defaulting Member commences and thereafter diligently pursues the curing of
said Event of Default within thirty (36) days of receipt of a Notice of Default, as defined in Section
10.2; and (ii) such defaulting Party fully completes such cure, correction or remedy within thirty
(30) days of receipt of said Notice of Default, or, in the event that the Event of Default is not
curable within said thirty(30) day period), within such additional period as is reasonably necessary
to cure said Event of Default; provided that such additional period shall not in any event exceed
ninety (90) days without the Board's consent. 1n the event Member reasonably and in good faith
contends that it will take more than ninety (90) days to cure the Event of Default, the defaulting
Member and Board shall meet and confer in good faith and determine whether additional time is
required to cure the Event of Default, and, if so, the Board shall extend the time to cure the Event
of Default. Notwithstanding anything to the contrary in this Section, if the Event of Default consists
of a Member's failure to timely discharge its monetary obligations to BICEP, then the Member in
default shall cure any such default within ten (10)days of receipt of a Notice of Default.
10.4 No Remedy Exclusive. Unless otherwise expressly provided in these Bylaws, the
Memorandum, or a Risk Management Program, the rights and remedies of BICEP are cumulative,
and the exercise by BICEP of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default
or any other default.
10.5 Agreement to Pay Attorneys' Fees and Expenses. In the event any party to these
Bylaws should default under any of the provisions hereof and the nondefaulting parties should
employ attorneys or incur other expenses for the collection of moneys or the enforcement of
performance or observance of any Obligation or agreement on the part of the defaulting party
contained herein, the defaulting party agrees that it will on demand pay to the nondefaulting
parties the reasonable fees of such attorneys and such other expenses so incurred by the
nondefaulting parties awarded to the nondefaulting parties by a court of competent jurisdiction.
10.6 No Additional Waiver Implied by One Waiver. No waiver by BICEP of any breach of these
Bylaws or any provisions of these Bylaws shall be deemed to constitute a waiver of any preceding
or succeeding breach of the same or any other provision of these Bylaws. Any failures or delays
by BICEP in asserting any of its rights and remedies as to any default shall not operate as a
waiver of any default or of any such rights or remedies. Delays by BICEP in asserting any of its
rights and remedies shall not deprive BICEP of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or enforce any such rights or
remedies.
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ARTICLE XI
APPLICABLE STATE LAW
11.1 The laws of the State of California shall govem the interpretation and enforcement of these
Bylaws. In the event of a conflict between California laws and an out-of-state Member's state law,
California law shall control; except however, notwithstanding any provision to the contrary, these
Bylaws shall not be construed to alter or change any applicable limitations to liability, e.g., caps on
liability judgments, more stringent claim requirements, or other immunities, applicable under the
state law of an out-of-state Member to such Member. To the extent that another state's laws do
not conflict with California laws as referenced herein, the other state's laws also apply. The
Members agree that any legal actions and proceedings to resolve any dispute under JPA
Agreement, these Bylaws or any Risk Management Program shall only be brought in the Superior
Court of the State of California.
ARTICLE XII
COMPANION DOCUMENTS
12.1 All Exhibits referred to in this Agreement are incorporated herein by such reference and
made a part hereof.
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� EXHIBIT 3 j
BICEP MASTER MEMORANDUM OF LIABILITY COVERAGE
This MEMORANDUM provides pooled risk sharing among the MEMBERS of the Big Independent
Cities Excess Pool Joint Powers Authority('BICEP")pursuant to Government Code sections 990.8 and
6500,et seq.
In consideration of the MEMBER's payment of the premium, BICEP and the MEMBER agree as
follows:
SECTION I--COVERAGES
BICEP will pay those sums on behalf of the COVERED PARTY for COVERED ULTIMATE NET
LOSS that the COVERED PARTY becomes legally obligated to pay as DAMAGES by reason of
liability imposed by law or assumed under a COVERED INDEMNITY CONTRACT because of
BODILY INJURY,PROPERTY DAMAGE,PERSONAL INJURY,EMPLOYMENT PRACTICES,
LAND USE CLAIM, or PUBLIC ENTITY ERRORS AND OMISSIONS caused by an
OCCURRENCE.
In the event there is no coverage for a LAND USE CLAIM through commercial insurance or
reinsurance, any coverage under the Memorandum for LAND USE CLAIM shall be limited per
Member to$5.0 million per occurrence and$5.0 million per annual aggregate.
BICEP will pay DEFENSE COSTS incurred within the COVERED ULTIMATE NET LOSS.
SECTION II—DEFINITIONS
Capitalized words and phrases have the special meanings given in this Section.
1. AGENCY--means any council,commission,agency,district,authority,board or similar public
entity under the MEMBER's direction or control or on which the MEMBER's governing board
sits as the governing body.
This Definition excludes an airport or hospital board or commission,regardless of how such body
is denominated.
2. AIRCRAFT -- means an operational vehicle designed for the transport of persons or property
principally in the air.
3. AUTOMOBILE -- means a self-propelled land motor vehicle and/or trailer or semi-trailer,
including any attached machinery or equipment,designed for travel on public roads and subject to
motor vehicle registration.
4. BODILY INJURY--means physical injury,emotional distress,sickness,or disease sustained by a
person, including death resulting from any of these at any time.
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5. CLAIM -- means a claim presented pursuant to Government Code section 910, et seq., and/or
demand, action, suit, or administrative proceeding against a COVERED PARTY to recover
DAMAGES caused by an OCCURRENCE.
6. COVERED PARTY--means:
a. BICEP;
b. The MEMBER,
c. The MEMBER's EMPLOYEES;
d. The MEMBER's AGENCIES;
e. With respect to any AUTOMOBILE owned by a COVERED PARTY or leased or hired for
use by or on behalf of a COVERED PARTY, any person while using such AUTOMOBILE
and any person or organization legally responsible for the use thereof,provided its actual use
is with the permission of the MEMBER. However, the following are not COVERED
PARTIES:
i- Any person or organization, or any agent or employee thereof, operating an
AUTOMOBILE sales agency, repair shop, service station, storage garage, or public
parking place with respect to an OCCURRENCE arising out of the operation thereof,
including road testing and delivery;or
ii. The owner or any lessee, other than the COVERED PARTY, of a leased or hired
AUTOMOBILE or any agent or employee of such owner or lessee;
f. Any person or entity holding a certificate of coverage duly issued by BICEP, as limited
therein("ADDITIONAL COVERED PARTY"). An ADDITIONAL COVERED PARTY is
not covered for claims arising from the ADDITIONAL COVERED PARTY's sole negligence
or for claims by another COVERED PARTY.
This Definition 6 excludes a joint powers agency,or any person or entity acting pursuant to a joint
powers agreement, other than an EMPLOYEE, unless the agency or agreement is added by
endorsement to this MEMORANDUM.
7. COVERED INDEMNITY CONTRACT--means an agreement pertaining to the MEMBER's or
its AGENCY'S routine governmental operations that incidentally requires either ofthem to defend
or indemnify another party for BODILY INJURY, PROPERTY DAMAGE or PERSONAL
INJURY to a third party caused by an OCCURRENCE.
8. COVERED ULTIMATE NET LOSS -- means an amount by which ULTIMATE NET LOSS
exceeds the SELF-INSURED RETENTION,but not exceeding the LIMIT OF LIABILITY,and
which this MEMORANDUM covers.
9. DAM --means any artificial barrier,together with appurtenant works,which:
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a. Is 25 feet or more in height from the natural bed of the stream or watercourse; or
b.- Has an impounding capacity of 50 acre-feet or more.
No structure specifically exempted from jurisdiction by the State of California Department of
Water Resources,Division of Safety of Dams shall be a DAM,unless such structure is under the
jurisdiction of any agency of the federal government.
10. DAMAGES -- means money damages, and includes attorney fees, costs and interest awarded
against the COVERED PARTY.
This Definition excludes any demand,action,suit or petition for restitution,disgorgement and any
non-monetary remedy or relief,including equitable relief,injunctive relief,administrative relief,
administrative mandamus, or declaratory relief and any attorney fees, costs and interest based
thereon.
This Definition also excludes attorney fees, costs and interest based on a contractual provision
not falling within the definition of 11.7. COVERED INDEMNITY CONTRACT.
11. DEFENSE COSTS -- means reasonable attorney fees, costs and expenses incurred by the
COVERED PARTY for the adjustment, investigation, defense or appeal of a CLAIM.
This Definition includes City Attorney Office fees, but excludes the MEMBER's claim
administration expenses.
However, attorney fees shall not exceed the rates specified in the LIABILITY RISK
MANAGEMENT REQUIREMENTS,unless the BICEP Board of Directors authorizes a higher
rate.
This Definition excludes the attorney fees,costs and interest that a COVERED PARTY incurs in
coverage or other disputes with BICEP.
12. EMPLOYEE--means a past or present elected or appointed official,employee or volunteer of the
MEMBER or its AGENCY acting within the scope of his or her employment with,or duties for,
the MEMBER or AGENCY.
13. EMPLOYMENT PRACTICES--means a COVERED PARTY's employment practices,policies,
acts or omissions that lead to an EMPLOYEE's CLAIM for harassment, wrongful termination,
wrongful employment,failure to hire or promote,retaliation,unlawful discrimination or violation
of civil rights.
14. INVERSE CONDEMNATION--means a CLAIM by any person or entity under the California or
United States Constitutions alleging that the MEMBER or its Agency has taken or damaged real,
personal, tangible or intangible property for public use through any means without payment of
just compensation.
15. LAND USE CLAIM—means any CLAIM,other than for INVERSE CONDEMNATION,arising
out of the enactment of any zoning ordinance,specific plan,general plan,or similar regulation or
use or improvement of real property, and the granting, denying or the conditional granting of a
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discretionary entitlement in the use of real property such as but not limited to,a conditional use
permit or variance.
16. LIABILITY PROGRAM -- means the BICEP Liability Program, dated , or any
later amendment or revision that the BICEP Board of Directors approves.
17. LIABILITY RISK. MANAGEMENT REQUIREMENTS -- means Exhibit A to this
MEMORANDUM, or any later amendment or revision that the BICEP Board of Directors
approves.
1.8. LIMIT OF LIABILITY --means BICEP's LIMIT OF LIABILITY per OCCURRENCE for the
MEMBER in the amount specified in Item 4 of the Declarations, and includes DEFENSE
COSTS. One LIMIT OF LIABILITY for all coverages applies collectively to the MEMBER,its
AGENCIES, its EMPLOYEES and any COVERED PARTY under Definitions 6.e. and 6.f.
19. MEMBER--means the public entity approved and admitted into BICEP and named in Item I of
the Declarations .
20. MEMORANDUM -- means this BICEP Master Memorandum of Liability Coverage and any
endorsements attached to it.
21. MEMORANDUM PERIOD--means the period stated in Item 3 of the Declarations.
22. NUCLEAR MATERIAL -- means Source Material, Special Nuclear Material, or Byproduct
Material. Source Material,Special Nuclear Material and Byproduct Material have the meanings
given to them by the Atomic Energy Act of 1954 and any law amendatory thereto.
23. OCCURRENCE--means:
a. With respect to BODILY INJURY or PROPERTY DAMAGE,an accident or event,including
continuous or repeated exposure to substantially the same conditions or course of conduct,
that results during the MEMORANDUM PERIOD in BODILY INJURY or PROPERTY
DAMAGE neither expected nor intended from the standpoint of the COVERED PARTY;
b. With respect to PERSONAL INJURY(other than BODILY INJURY),EMPLOYMENT
PRACTICES and PUBLIC ENTITY ERRORS AND OMISSIONS,an offense described
in the Definitions of those terms that results in DAMAGES during the MEMORANDUM
PERIOD.
24. PERSONAL. INJURY -- means DAMAGES caused by or arising out of one or more of the
following:
a. False arrest,detention or imprisonment,malicious prosecution or abuse of process;
b. Wrongful entry or eviction;
c. Publication or utterance of material that slanders or libels a person or organization or
disparages a persons or organization's goods, products or services, or infringement of
03-05-06 4
copyright, title or slogan, or oral or written publication of material that violates a persoWs
right of privacy;
d. Discrimination, other than EMPLOYMENT PRACTICES, based upon race, religion,
nationality,national origin,color,creed,sex,sexual orientation,handicap,disability,age or
employment or violation of civil rights;
e. Assault and battery.
25. POLLUTANTS--means any solid, liquid, gaseous,or thermal irritant or contaminant,
including smoke, vapor, soot, fumes, acids, alkalis,chemicals,silt, airborne particles or fibers,
mold, fungus,waste, or electromagnetic field. Waste includes materials to be discarded or be
recycled,reconditioned or reclaimed.
This Definition excludes potable water,agricultural water,water furnished to commercial users,
or water used for fire suppression.
26. PROPERTY DAMAGE--means:
a. Physical injury to tangible property,including all resulting loss of use of that property; or
b. Loss of use of tangible property that is not physically injured.
27. PUBLIC ENTITY ERRORS AND OMISSIONS--means any misleading statement,or any act or
omission of a COVERED PARTY, whether by misfeasance, malfeasance or nonfeasance, that
results in a CLAIM against the COVERED PARTY.
This Definition excludes BODILY INJURY,PROPERTY DAMAGE,PERSONAL INJURY,and
EMPLOYMENT PRACTICES.
28. SELF-INSURED RETENTION--means the amount stated in Item 5 of the Declarations that the
MEMBER must pay for each OCCURRENCE for judgments, settlements and DEFENSE
COSTS. A single SELF-INSURED RETENTION applies collectively to the MEMBER, its
AGENCIES,its EMPLOYEES, and any COVERED PARTY under Definitions 6.e and 6.f.
Payment by valid and collectable insurance or other coverage available to the MEMBER, its
AGENCIES,its EMPLOYEES,or a COVERED PARTY under Definition 6.e shall apply against
the SELF-INSURED RETENTION.
29. ULTIMATE NET LOSS -- means the sums for which the MEMBER is liable as DAMAGES
either by adjudication or by compromise after making proper deduction for all recoveries and
salvages and includes DEFENSE COSTS.
30. WATERCRAFT--means an operational vehicle in excess of 27 feet designed for the transport of
persons or property principally on the water.
03-05-06 5
SECTION III--DEFENSE AND SETTLEMENT
1. BICEP shall have the right but not the duty to participate at its own expense in the defense of any
CLAIM against a COVERED PARTY that BICEP determines will likely result in a COVERED
ULTIMATE NET LOSS.
2. After the amount of the SELF-INSURED RETENTION has been exhausted by payment of
judgments,settlements and DEFENSE COSTS,BICEP shall reimburse the COVERED PARTY
for any further DEFENSE COSTS within the LIMIT OF LIABILITY even if the allegations
against the COVERED PARTY are groundless, false or fraudulent.
3. Notwithstanding the above, BICEP shall not have the obligation to defend or reimburse the
DEFENSE COSTS of an EMPLOYEE if the MEMBER determines under California Government
Code section 995.2(a)that the EMPLOYEE is not entitled to a defense. BICEP shall,however,
reimburse DEFENSE COSTS if a court determines that the MEMBER has an obligation to pay
them.
4. A COVERED PARTY shall not settle a CLAIM for an amount in excess of the MEMBER's
SELF-INSURED RETENTION without the consent of BICEP's Board of Directors.
5. BICEP shall not settle a CLAIM without the MEMBER's consent. However, in the event a
MEMBER does not give its consent to accept a bona fide monetary settlement offer,BICEP's
liability shall be limited to the amount that BICEP would have paid in such settlement if:
a. Such settlement demand exceeds the MEMBER's SELF-INSURED RETENTION by
$500,000; and
b. The Member shall have expended or incurred$250,000 or more in DEFENSE COSTS.
6. BICEP shall not be obligated to pay any CLAIM or reimburse DEFENSE COSTS after the LIMIT
OF LIABILITY over the SELF-INSURED RETENTION has been tendered for settlements and/or
DEFENSE COSTS or has been exhausted by payment of judgments, settlements and/or
DEFENSE COSTS.
SECTION IV --MEMBER'S SELF-INSURED RETENTION
AND BICEP'S LIMIT OF LIABILITY
1. BICEP's liability to a COVERED PARTY as the result of anyone OCCURRENCE is only the
COVERED ULTIMATE NET LOSS.
2. For the purpose of determining the SELF-INSURED RETENTION and LIMIT OF LIABILITY,
all DAMAGES arising out of continuous or repeated exposure to substantially the same general
conditions or course of conduct shall be considered as arising out of one OCCURRENCE during
the first applicable coverage period.
03-05-016 6
SECTION V--COVERAGE PERIOD AND TERRITORY
The coverages stated in Section I of this MEMORADUM apply to DAMAGES caused by an
OCCURRENCE anywhere in the world during the MEMORANDUM PERIOD.
SECTION VI--EXCLUSIONS
This MEMORANDUM does not apply to any CLAIM for or arising out of.
l. Contamination of the environment by POLLUTANTS introduced at any time,into,under or upon
land, the atmosphere, or any watercourse or body of water or aquifer. This exclusion applies
whether or not the contamination is introduced into the environment intentionally or accidentally
or gradually or suddenly, and whether or not the COVERED PARTY or any other person or
organization is responsible for the contamination.
"Contamination"includes any unclean,unsafe,or unhealthful condition,either actual or potential,
which arises out of the presence in the environment of any POLLUTANT whether permanent or
transient.
"Environment" includes land,bodies of water,underground water or water table or aquifer,the
atmosphere, and any other natural feature of the earth, whether or not altered, developed or
cultivated.
This exclusion does not apply to:
a. Any discharge,dispersal,seepage,migration,release or escape of POLLUTANTS that meets
all of the following conditions:
i. It was accidental and neither expected nor intended by the COVERED PARTY. This
condition would not serve to deny coverage for a specific incident where such
discharge,dispersal,seepage,migration,release or escape of pollutants was a result of
an attempt by the COVERED PARTY to mitigate or avoid a situation where
substantial third party bodily injury,PROPERTY DAMAGE or PERSONAL INJURY
could occur;
ii. It was demonstrated as having commenced on a specific date during the tern of this
MEMORANDUM;
iii. Its commencement became known to the COVERED PARTY within twenty-one(21)
calendar days and was further reported to the person responsible for risk management
at the;MEMBER within a reasonable time frame;
iv. Its commencement was reported in writing to BICEP within sixty(60)calendar days of
becoming known to the person responsible for risk management at the MEMBER;and
03-05-06 7
v. Reasonable effort was expended by the COVERED PARTY to terminate the situation
as soon as conditions permitted.
However,nothing contained in this provision shall operate to provide any coverage
with respect to:
(1) Any site or location principally used by the COVERED PARTY or by others on
the COVERED PARTY's behalf, for the handling, storage,disposal, dumping,
processing or treatment of waste material;
(2) Any fines or penalties;
(3) Any clean up costs ordered by the superfund program, or any federal,state or
local governmental authority. However this specific exception shall not serve to
deny coverage for third party clean up costs otherwise covered by this
MEMORANDUM simply because of the involvement of a governmental
authority;
(4) Acid rain;
(5) Clean up,removal,containment,treatment,detoxification or neutralization of
POLLUTANTS situated on premises the COVERED PARTY owns,rents or
occupies at the time of the actual discharge,dispersal, seepage,migration,release
or escape of said POLLUTANTS;or
(6) Water pollution caused by oil or its derivatives.
b. DAMAGES caused by heat,smoke or fume from a hostile fire. "Hostile fire"means one that
becomes uncontrollable or breaks out where it was not intended to be;
c. Firefighting activities,including training fires,or intentional ignition of fires for the purpose
of limiting a fire,or to the discharge of POLLUTANTS for the purpose of controlling a fire;
d. Police use of mace,oleoresin capsicum(O.C. or pepper gas), or tear gas;
e. Weed abatement,tree spraying or sudden and accidental sewer backups.
f. Use of chlorine for domestic water, swimming pools or other routine sanitation.
2. Governmental orders,directions or requests that the COVERED PARTY test for,monitor,clean
up,remove,remedy,contain, treat,detoxify or neutralize POLLUTANTS.
3_ A governmental unit or other third party's loss or expenses,including attorney fees,for efforts to
monitor,clean up,remove,remedy, contain,trace,detoxify or neutralize POLLUTANTS.
4. Hazardous properties of NUCLEAR MATERIAL.
5. DAMAGES (unless arising out of liability for EMPLOYMENT PRACTICES)to:
03-05-06 $
a. An EMPLOYEE within the course and scope of his or her employment caused by the
MEMBER, its AGENCY or its EMPLOYEE.
b. An EMPLOYEE's spouse,child,parent,brother or sister resulting from the acts or omissions
of the EMPLOYEE within the course and scope of his or her employment by the MEMBER
or its AGENCY. _
This exclusion does not apply, however, to the MEMBER or its AGENCY's liability under a
COVERED INDEMNITY CONTRACT.
6. The liability of any MEMBER to its AGENCY,or the AGENCY to the MEMBER.
7. Liability of a COVERED PARTY to its own past or present employer.
8. Liability of a COVERED PARTY under Definition 6e to another COVERED PARTY.
9. Workers'compensation or disability benefits law or any similar law.
10. Use or operation by or on behalf of the MEMBER as respects:
a. Any hospital.
b. Any health care provider because of his or her professional arts, errors or omissions.
This exclusion does not apply to:
i. Paramedics, emergency medical technicians, medical examiners, technicians,
phlebotomists or nurses,but only when in employ of the MEMBER or its AGENCY;and
ii. Occupational physical examinations,tuberculosis testing and immunization conducted at
the direction of the MEMBER or its AGENCY.
c. Any clinic or infirmary that has:
i. Overnight facilities;or
ii. That performs invasive surgery of any kind, or
d. Any pharmacy operated by or for the MEMBER or its AGENCY.
11. Rupture,bursting,overflow, seepage,or release or failure to release water from any DAM.
12. Punitive or exemplary damages,or damage multiples such as double or treble damages awarded
pursuant to statute or law.
13. The COVERED PARTY's actual fraud, corruption,or actual malice.
14. The COVERED PARTY's"willful act",as used in Insurance Code Section 533.
03-05-06 9
15. PROPERTY DAMAGE to:
a. Property owned by the COVERED PARTY,
b. Property rented to or leased to the COVERED PARTY where the COVERED PARTY has
assumed liability for damage to or destruction of such property, unless the COVERED
PARTY would have been liable in the absence of such assumption of liability; or
c. AIRCRAFT or WATERCRAFT in the COVERED PARTY's care,custody or control.
16. Operation of any transit district,transit system,or public transportation system owned or operated
by the COVERED PARTY, except any transit system operating over non-fixed route systems
such as"dial-a-ride," senior citizen transportation,or handicapped transportation.
17. Ownership, maintenance, loading or unloading, use or operation of any AIRCRAFT, airfields,
runways,hangars,buildings or other properties in connection with aviation activities. However,
in connection with airfields,runways,hangars,buildings or other properties in connection with
aviation activities,this exclusion shall not apply to those areas open to the public for the purpose
of entering,leaving,or using the airport facilities,including parking lots and garages. "Loading"
and "unloading" of AIRCRAFT as set forth above shall not apply to paramedics, nurses or
emergency medical technicians.
This exclusion applies only to the coverages for BODILY INJURY and PROPERTY DAMAGE.
18. Failure to supply or provide an adequate supply of gas,water or electricity when such failure is a
result of the inadequacy of the COVERED PARY's facilities to supply or produce sufficient gas,
water or electricity to meet customary and expected demand.
19. Eminent domain, condemnation proceedings, regulatory takings or INVERSE
CONDEMNATION,by whatever name called.
This exclusion shall not apply to physical injury to tangible third-party property, including
resulting loss of use of that property-
20. Benefits payable by a COVERED PARTY under any employee benefit plan(whether the plan is
voluntarily established or mandated by statute).
This exclusion does not apply,however to liability of a COVERED PARTY for failure to secure
such benefits from a third party provider.
21. Refund of taxes, fees or assessments.
22. Remuneration or financial gain to which the COVERED PARTY was not legally entitled.
23. Willful violation of a penal code or ordinance committed by or with the knowledge or consent of
the COVERED PARTY.
24. Estimates of*probable costs or cost estimates being exceeded or faulty preparation of bid
03-05-06 10
specifications or plans,including architectural plans.
25. Failure to perform,or breach of, a contractual obligation, except for liability:
a. That would be imposed in the absence of the contractual obligation;
b. Assumed ijnder any COVERED INDEMNITY CONTRACT.
26. The Employee Retirement Income Security Act of 1974 (ERISA) and any law amendatory
thereto, or any state statute or common law rule which imposes fiduciary duties and
responsibilities with respect to employee benefit programs.
27. The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).
28. War, whether or not declared, civil war, or revolution or any act or condition incident to the
foregoing, except for a MEMBER's response to such acts or conditions.
29. The purchase,sale, issuance and holding of securities, including but not limited to bonds.
30. A lockout,strike,picket line,replacement or similar actions in connection with labor disputes or
labor negotiations.
This exclusion does not apply to the coverages for BODILY INJURY and PROPERTY
DAMAGE.
31 The cost of modifying any building or property in order to make said building or property more
accessible or accommodating to any disabled person in compliance with the Americans with
Disabilities Act(Public Law 101-336)or similar state law.
SECTION VII--CONDITIONS
The following are conditions precedent to coverage under this MEMORANDUM:
1. Premium and audit:
a. The MEMBER shall pay the Deposit Premium designated in the Declarations,and any further
premium that the LIABILITY PROGRAM requires.
b. BICEP may examine the MEMBER's books and records that relate to the subject matter of
this MEMORANDUM at any reasonable time until ten(10)years after the final termination
of coverage under this MEMORANDUM or until all known claims noticed under paragraph 3
below have been closed,whichever occurs last.
2. Inspections:
BICEP shall be permitted,but is not obligated to,inspect the MEMBER's property and operations
at any reasonable time. Neither such right to make inspections nor the making thereof,nor any
03-05-06 11
report thereon,shall constitute an undertaking,on behalf of or for the benefit of the MEMBER or
others,to determine or warrant that such property or operations are safe.
3. Duties in the event of an occurrence or claim:
The COVERED PARTY shall have the duty:
a. In the event of an OCCURRENCE that falls within the LIABILITY RISK MANAGEMENT
REQUIREMENTS, to give written notice as soon as possible to BICEP with reasonably
obtainable information about the time, place and circumstances thereof, and the names and
addresses of the involved COVERED PARTIES and witnesses.
b. If a CLAIM is made or legal action brought against the COVERED PARTY that falls within
the LIABILITY RISK MANAGEMENT REQUIREMENTS, to forward to BICEP every
demand, notice, summons or other process received by the COVERED PARTY or the
COVERED PARTY's representative.
c. To cooperate fully with BICEP in the investigation and defense.
d. Upon BICEP's request,to assist in enforcing any right of contribution or indemnity against
any person or organization that may be liable to the COVERED PARTY because of an
OCCURRENCE with respect to which coverage is afforded under this MEMORANDUM.
e. To attend hearings and trials and assist in securing and giving evidence and obtaining the
attendance of witnesses.
f. To comply with BICEP's LIABILITY RISK MANAGEMENT REQUIREMENTS.
4. No voluntary-payments:
The COVERED PARTY shall not,except at its own cost,voluntarily(that is,without BICEP's
approval)make any payment,assume any obligation or incur any expense,including DEFENSE
COSTS, after it has exhausted its SELF-INSURED RETENTION.
5. Bankruptcy and insolvency:
Bankruptcy or insolvency of the COVERED PARTY shall not relieve BICEP of any of its
obligations hereunder. Nor shall the bankruptcy or insolvency of the COVERED PARTY
increase BICEP's obligations hereunder.
6. Other coverage:
Insurance or other coverage available to the COVERED PARTY for a CLAIM (whether on a
primary, excess or contingent basis) shall be primary to, and shall not contribute with,this
Memorandum's coverage; except that this provision shall not apply with respect to the excess
insurance purchased specifically to be in excess of this Memorandum, or to insurance or
reinsurance which is intended to provide the remainder of the LIMIT OF LIABILITY stated in the
Declaration.
03-05-06 12
7. Duration of an occurrence:
An OCCURRENCE with a duration of more than one MEMORANDUM PERIOD shall be
treated as a single OCCURRENCE arising during the MEMORANDUM PERIOD when the
OCCURRENCE began.
8. Endorsements to the MEMORANDUM:
Notice to any agent or knowledge possessed by any agent or by any other person shall not affect a
waiver or change in any part of this MEMORANDUM or stop BICEP from asserting any right
under the ternis of this MEMORANDUM, nor shall the terms of this MEMORANDUM be
waived or changed,except by endorsement issued to form a part of this MEMORANDUM.
9. No third party beneficiaries:
Nothing in this MEMORANDUM is intended to make any person or entity, other than a
COVERED PARTY, a third party beneficiary of the coverage that this MEMORANDUM
provides.
This MEMORANDUM confers no coverage or benefits on any person or entity other than a
COVERED PARTY;no person or entity other than a COVERED PARTY shall have the right to
bring a legal action against BICEP,without its consent, to determine BICEP's obligations to a
COVERED PARTY under this MEMORANDUM.
10. Subrogation:
BICEP shall be subrogated to the extent of any payment hereunder to the COVERED PARTY's
rights of recovery thereof, and the COVERED PARTY shall do nothing after loss to prejudice
such right and shall do everything necessary to secure such right. Any amount so recovered shall
be apportioned as follows:
a. The expenses of all such recovery proceedings shall be paid before any reimbursements are
made. If there is no recovery in the proceedings conducted by BICEP,then BICEP shall bear
the expenses thereof.
b. The highest layer of coverage shall be reimbursed first and,if there be sufficient recoveries,
then the next highest layer,until all recoveries are used up.
11. Assignment of interest:
Assignment o f interest under this MEMORANDUM shall not bind BICEP unless approved by the
BICEP Board of Directors.
12. Drop down exclusion:
BICEP's LIMIT OF LIABILITY shall not be increased for any reason,including,but not limited
to,the refusal or inability of the COVERED PARTY to pay the SELF-INSURED RETENTION
or by the refusal or inability of any underlying insurer or joint powers authority to pay,whether by
reason of insolvency,bankruptcy,or otherwise.
03-05-00 13
13. Separate limits:
If two or more MEMBERS are jointly or jointly and severally liable for the same CLAIM or
OCCURRENCE,a separate SELF-INSURED RETENTION and LIMIT OF LIABILITY applies
collectively to each MEMBER and its AGENCIES, its EMPLOYEES and any COVERED
PARTY under Definition 6.e.-
14. Severability:
This MEMORANDUM uses the term COVERED PARTY severally and not collectively,so that
it applies separately to each COVERED PARTY as if it were the only COVERED PARTY.
However, this provision shall not increase a MEMBER's SELF-INSURED RETENTION or
BICEP's LM1IT OF LIABILITY.
15. Interpretation:
a. This MEMORANDUM does not provide insurance so that the rule that all ambiguities must
be construed against an insurer does not apply. This MEMORANDUM shall be construed
according to the principles of contract law,giving full effect to the intent of the MEMBERS
and BICEP's Board of Directors in adopting it.
b. This MEMORANDUM shall be interpreted without regard to the drafter. Its terms and intent,
with respect to the rights and obligations of any COVERED PARTY or BICEP, shall be
interpreted and construed on the express assumption that the MEMBERS and BICEP
participated equally in its drafting.
16. Law governing the MEMORANDUM:
This MEMORANDUM shall be governed and construed in accordance with the laws of the State
of California.
17. Cancellation:
This MEMORANDUM may,with respect to any MEMBER,be cancelled by BICEP on ninety
(90) days' notice either for the then-current MEMORANDUM PERIOD or, in the event of
expulsion, permanently upon the occurrence of the events and under terms set forth in the
LIABILITY PROGRAM.
19. Named Member:
The MEMBER first named in Item I of the Declarations is authorized to act on behalfof itself,its
AGENCIES,its EMPLOYEES,and any COVERED PARTY under Definitions 6.e and 6.f with
respect to giving and receiving Notice of Cancellation and for receiving any return premium that
may become payable under this MEMORANDUM. That MEMBER is also responsible for the
payment of all premiums.
03-05-06 14
EXHIBIT "A"TO BICEP MEMORANDUM OF COVERAGE
BIG INDEPENDENT CITIES EXCESS POOL -
LIABILITY RISK MANAGEMENT REQUIREMENTS
1.0. DEFINITIONS. The Definitions in the BICEP MASTER MEMORANDUM OF
COVERAGE(MEMORANDUM)apply to capitalized words in these Liability Risk Management
Requirements("Requirements").
2.0. MEMBER's'RISK MANAGER. Each MEMBER shall have and maintain a full-time risk
management employee,or subject to the unanimous approval of the Board, shall have either: (i)a
risk management professional, or(ii)otherwise must be able to demonstrate a sound risk
management program.
3.0. LOSS PREVENTION PROGRAM. Each MEMBER shall maintain a loss prevention
program, and shall act upon all recommendations of BICEP concerning the reduction of unsafe
conditions and the correction of policies or practices that are likely to lead to CLAIMS.
4.0. RECORDS.
4.1. The MEMBER shall furnish an annual audited financial statement to BICEP.
4.2. The MEMBER shall maintain individual claim files containing the Documentation
specified in Section 9.3 for all CLAIMS for the preceding ten(10) fiscal years. The files
shall be referenced and stored for retrieval by City Claim Number.
4.3. The MEMBER shall maintain a computer-generated spreadsheet showing the
following information by columns for all CLAIMS in the ten(10)preceding fiscal years:
• City Claim No.
• BICEP Claim No. [If any]
• Claimant
• City Department
• Loss Date
• Claim Date
• Description
• Current Status
• Amounts Reserved
• Amounts Paid
• Date Closed
4.4 The MEMBER shall submit copies of the above records to BICEP as directed by its
03-05-06 15
General Manager or its duly constituted committees.
5.0. DEFENSE ATTORNEYS AND FEES.
5.1. The MEMBER shall use qualified defense attorneys experienced in litigating the type
of CLAIM at issue.
5.2. BICEP retains the right to associate its attorneys with the MEMBER's attorneys in the
defense of any case that the BICEP Board of Directors determines has DAMAGES exposure
that will likely exceed the MEMBER's SELF-INSURED RETENTION. This right of
association extends to petitions for relief from the claim filing requirements.
5.3. The MEMBER shall contract to pay outside defense attorneys a reasonable rate for the
type of CLAIM at issue,not to exceed$250 an hour,unless the BICEP Board of Directors
authorizes a higher rate which determination shall consider the usual,customary and
reasonable rate for the complexity of the CLAIM at issue.
5.4. If the MEMBER elects to defend a CLAIM through its City Attorney Office,BICEP
will credit$150 an hour or the MEMBER's actual cost(as demonstrated by the MEMBER),
whichever is greater,as DEFENSE COSTS for services in defense of a CLAIM. The City
Attorney Office shall maintain hourly time records.
5.5. The BICEP Board of Directors may periodically revise the rates in sections 5.3 and 5.4
to reflect prevailing attorney hourly rates.
5.6. The MEMBER may select, subject to BICEP's approval,an alternative method of
accounting for DEFENSE COSTS, such as the resource allocation method.
6.0. NOTICE OF CLAIMS AND OCCURRENCES.
6.1 As soon as practicable,the MEMBER shall provide BICEP with written notice of any
CLAIM or OCCURRENCE that the BICEP MEMORANDUM covers or potentially covers,
if.
• The MEMBER reserves the CLAIM or OCCURRENCE in an amount at least
equal to 50%of the MEMBER's SELF-INSURED RETENTION or$500,000,
whichever is less;
• The CLAIM or OCCURRENCE has a potential DAMAGES exposure at least
equal to 50%of the MEMBER's SELF-INSURED RETENTION or$500,000,
whichever is less;
• The CLAIM or OCCURRENCE involves paralysis,brain damage,
dismemberment,or death; or
• A single OCCURRENCE results in two or more CLAIMS that, in the aggregate,
are reserved at, or have a potential DAMAGES exposure at least equal to 50%of the
MEMBER's SELF-INSURED RETENTION or$500,000,whichever is less.
03-05-06 16
6.2. The reserves and estimates of potential DAMAGES exposure in Section 6.1 above
shall include the MEMBER's potential exposure to claimant's attorney fees, costs,and
prejudgment interest, if applicable.
7.0. CLAIMS ADMINISTRATION AUDIT.
7.1. The BICEP Board of Directors shall select a claims auditor.-
7.2. Utilizing the Liability Claims Quality Control Guidelines in section 9 below,the
auditor shall conduct a claims administration audit once annually, or more often at the
discretion of the BICEP Board of Directors, particularly if:
• There is an unusual fluctuation or increase in the MEMBER's claims experience or
number of claims;
• There is a change of liability claims administration firms; or in-house
claims/litigation management; or
• The MEMBER is new.
7.3. Within sixty(60)days of receipt of the audit report, the MEMBER shall respond to
any recommendations and shall either outline in writing a program for corrective action or
explain why the MEMBER should not be required to follow the recommendations.
8.0 ACTUARIAL STUDY. The BICEP Board of Directors shall obtain an actuarial study
performed by a Fellow of the Casualty Actuarial Society annually,or more often if indicated. Based
on the actuarial recommendations,BICEP shall maintain Reserves and the MEMBER shall make
funding contributions equal to or exceeding the"Projected Ultimate Losses"shown in the actuarial
report.
9.0. LIABILITY CLAIMS QUALITY CONTROL GUIDELINES
9.1 The MEMBER will:
• Conduct investigation within thirty days of the MEMBER's knowledge of the
CLAIM,including taking statements from participants and witnesses.
• Develop information regarding liability issues, including immunities,comparative
negligence,joint tortfeasors, and joint and several liability.
• Develop information on damages, including property damage,nature and extent of
bodily injury and emotional distress claims,medical costs, and economic damages
such as wage loss, lost profits and loss of goodwill.
• Obtain and review contracts that may be in effect relating to specific accidents,
such as hold harmless and indemnity agreements, additional insured requirements,
other applicable insurance policies and joint powers agreements with other public
entities.
03-05-06 17
• Obtain defective products and/or other evidence,and hold if at all possible or at
least locate where such products are being held and obtain product information for the
file.
• Utilize experts appropriately in cases.
• Maintain membership in Claims Index Bureau;provide the Bureau with updated
indexing information as applicable; and make inquiries on claims when an index
match occurs.
• Arrange appraisals for damaged property.
• Timely report to BICEP and all insurers that potentially provide insurance
coverage.
9.2. Tort Claim Requirements. The MEMBER shall give all notices(pertaining to claims
insufficiency,returning late claims,claims rejections)in accordance with applicable law.
9.3. Documentation:
9.3.1. The MEMBER shall establish reasonable reserves based upon facts known,
within thirty(30)days of receipt of investigative report,with expenses included. The
reserves shall reflect the MEMBER's potential exposure to claimant's attorney fees,
costs and interest, if applicable. The MEMBER shall monitor reserves for adequacy
throughout the life of the CLAIM and modify them as needed.
9.3.2. The MEMBER shall maintain a claim file on each CLAIM against the
MEMBER or its EMPLOYEE.
9.3.3. The claims files shall contain documentation necessary to support the
decisions made with respect to disposition of CLAIMS.
9.3.4. Photos,diagrams,plans, contracts,medical and law enforcement reports,
reports of investigation,attorney reports and other relevant documents shall be
deposited in the claim file in a timely fashion.
9.4. Requirements for Written Reports from MEMBER's defense attorney after the
MEMBER has placed BICEP on notice of a CLAIM or OCCURRENCE.
9.4.1. The MEMBER shall provide its outside defense attorney(s)with copies of the
attached(a)BICEP Defense Attorney Reporting Requirements and(b)BICEP
Litigation Plan and Budget.
9.4.2. The MEMBER has the responsibility of ensuring that its outside defense
attomey(s)complies with BICEP's reporting and budgeting requirements.
9.4.3 If the City Attorney Office serves as lead defense attorney, it shall provide
BICEP with the Preliminary Evaluation described in Section I of the attached BICEP
Defense Attorney Reporting Requirements. Otherwise the City Attorney Office will
03-05-06 18
be required only to copy BICEP with its internal status and evaluation reports.
9.4.4. These requirements apply regardless of whether or not there is a coverage
controversy between BICEP and the MEMBER.
9.5. DEFENSE COSTS.
9.5.1. Upon giving notice to BICEP of a CLAIM or OCCURRENCE,the MEMBER
shall require its outside defense attorney(s)to provide the BICEP Claims
Administrator with copies of monthly billings for attorney fees and other DEFENSE
COSTS.
95.2. The MEMBER's risk manager or claims manager shall keep a current ledger of
payments of outside attorney(s)fees and other DEFENSE COSTS, and shall provide
it to BICEP's Claims Administrator upon request.
9.5.3. The City Attorney Office will not be required to submit a monthly record of
DEFENSE COSTS. However, it must keep a current record documenting them.
9.6. Settlement
9.6.1. Once the MEMBER gives the notice required by section 6 of the
Requirements,BICEP shall have the right to negotiate a settlement directly with the
claimant or plaintiff, subject to the MEMBER's approval of the settlement.
9.6.2. The MEMBER's defense attomey(s)shall provide BICEP with fully executed
releases, settlement agreements and,when appropriate,court endorsed copies of
dismissals and satisfactions of judgment.
10.0. DEFAULT.
10.1. No MEMBER that substantially complies with these Requirements may be found in
default.
10.2. BICEP shall furnish the MEMBER with written notification of the MEMBER's
failure to comply with these Requirements.
10.3. The MEMBER shall furnish a written response outlining a program for corrective
action,or showing that it has substantially complied with these Requirements,within thirty
(30)days of receipt of BICEP's notification.
10.4. If BICEP approves corrective action, the MEMBER shall implement the approved
program within sixty(60)days of notice of such approval.
10.5. Failure to cure noncompliance pursuant to sections 10.1 through 10.4 shall constitute
an event of default in accordance with the LIABILITY PROGRAM.
10.6. The MEMBER may appeal any notice of default to the BICEP Board of Directors.
03-05-06 19
[Member's Letterhead]I
_ [Date]
[Attorney with Firm Name/Address]
Re: [Case Name, Court Number, and Bicep Claim Number]
Dear
BICEP DEFENSE ATTORNEY(S) REPORTING REQUIREMENTS
Our City is a member of the Big Independent Cities Excess Pool(BICEP),a governmental
"Joint Powers"risk sharing pool that provides excess coverage to its member cities. BICEP directly
covers its member cities, and may also purchase commercial excess liability insurance or
reinsurance for them.
We have placed BICEP on notice of the referenced claim. Pursuant to agreements between
BICEP and our City,BICEP will monitor the claim and may take an active role in overseeing the
claim, litigation and settlement negotiations in cooperation with the City and you as its defense
attomey(s). Depending on the amount of potential damages,commercial excess liability insurers or
reinsurers may also become involved.
Under the agreements between BICEP and the City,you must adhere to the following
reporting requirements. Your reports,marked"Confidential Attorney Client Communication,"
should be addressed to the City with copies to BICEP and, if applicable,commercial excess liability
insurers or reinsurers and monitoring counsel.
I. PRELIMINARY EVALUATION.
Within ninety(90)days of notice to BICEP of the claim or occurrence, your firm shall
submit a letter to the City captioned"Preliminary Evaluation" and containing the following
information under separate headings:
• Brief Description of the Case. [A sentence or short paragraph will do.]
• Procedural History
• Trial and Settlement Conference Dates
• Statement of Facts
• Applicable Immunities
• City's Liability
• Plaintiff's Comparative Fault
• Comparative Fault or Other Liability of Third Parties
• Indemnification or Insurance Available from Other Parties
• Damages
• Litigation Cost Estimate
• Settlement Demands/Offers
I Revise format to correspond to public agency
03-05-06 20
• Evaluation and Recommendations
2. LITIGATION PLAN AND BUDGET.
Along with the Preliminary Evaluation,your firm shall complete and return the attached
Litigation Plan and Budget.
3. SUMMARIES OF COURT PROCEEDINGS AND DISCOVERY.
Your firm shall provide the City with timely letter reports of court proceedings,depositions
and written discovery. These letters shall comment on the significance of any new developments.
4. PRETRIAL EVALUATION.
Within sixty(60)days of the trial date,and one week before any settlement conference,your
firm shall provide the Member City with a letter report captioned"Pretrial Evaluation" that contains
an update on the topics noted in Section 1.
5. SETTLEMENT OFFERS AND DEMANDS.
Your firm shall immediately communicate all settlement demands and offers to the City,
BICEP's General Manager, BICEP's Claims Administrator, and when applicable,commercial
excess insurers and monitoring counsel. The Member City shall not enter into a settlement that
requires payment from BICEP's pooled funds without BICEP's consent.
6. COPIES TO BICEP AND COMMERCIAL EXCESS INSURERS.
Your firm shall direct copies of the reports in Sections I through 5 to BICEP's General
Manager and BICEP's Claims Administrator, and to any excess insurers whose layers of coverage
may be affected by a settlement or judgment. When requested, your firm shall also copy the reports
to any monitoring attorney for BICEP and/or its excess insurers.
Copies to BICEP should be directed as follows:
BICEP General Manager BICEP Claims Administrator
Gregory Spiker Craig Schweikhard
Ken Spiker&Associates Gregory Bragg&Associates,Inc.
1100 South.Flower Street, Suite 2100 P.O.Box 3544
Los Angeles,CA 90015 Ventura,CA 93006-3544
These BICEP representatives may request you to add others to the circulation of your
reports.
Thank you for your attention to the above.
Very truly yours,
[Title]
03-05-06 21
BICEP LITIGATION PLAN & BUDGET
To: Craig Schweikhard
Gregory Bragg&Associates,hic.
P.O. Box 3544
Ventura, CA 93006-3544
Case Name:
BICEP Claim No.:
Law Firm:
Firm Attorney:
Phone:
Address:
Damages Exposure:
Case Summary:_
I. FEES AND COSTS TO DATE:
Attorney Fees to Date: $
Costs to date: $
II. PREDISCOVERY (Identify and list under each heading) Estimated Fees
Case Evaluation/Preliminary Research
Estim. hrs. @ hour $
03-05-06 22
Drafting Pleadings Estimated Fees
Estim. hrs. @ hour $
III. DISCOVERY(Identify and list under each.heading)
A. Fact Investigation:
Estim. hrs. @ hour $
B. Witness Interviews:
Estim.hrs.—_@ hour $
C. Witness Preparation for Deposition:
Estim.hrs. @ hour $
D. Taking Depositions:
Estim. hrs. @ hour $
E. Defending Depositions:
Estim.hrs. @ hour $
F. Drafting Discovery:
Estim. hrs. @ hour $
03-05-06 23
G. Discovery Responses: Estimated Fees
Estim. hrs. @ hour $
H. Evaluation of Discovery:
Estim.hrs. @ hour $
IV. MOTIONS (Identify and list under each heading)
A. Procedural:
Estim. hrs. @ hour $
B. Discovery:
Estim. hrs. @ hour $
C. Summary Judgment:
Estim. hrs. @ hour $
D. In Limme:
Estim. hrs. @ hour $
E. Other:
Estim. hrs. @ hour $
03-05-06 24
V. PRETRIAL/TRIAL (Identify and list under each heading) Estimated Fees
A. Court Conferences:
Estim. hrs. @ hour $
B. Mediation/Arbitration:
Estim. hrs. @ hour $
C. Trial Preparation:
Estim. hrs. @ hour $
D. Trial:
Estim. hrs. @ hour $
VI. MISCELLANEOUS (Identify and list under each heading)
A. Settlement Matters:
Estim. hrs. @ hour $
B. Administration/Client Reports/Calls:
Estim. hrs. @ hour $
C. Securing Expert:
Estim.hrs. @ hour $
03-05-06 25
D. Miscellaneous: Estimated Fees
Estim.hrs. @ hour $
VII. ESTIMATED FUTURE EXPENSES FOR CASE
A. Prediscovery $
B. Discovery $
C. Motions $
D. Pretrial/Trial $
E. Miscellaneous $
F. Expert Fees $
G. Costs $
Total Estimated Future Expenses $ —
VIII. TIME DURATION ESTIMATE(In months):
Length of Time Before Settlement or Trial: Months
03-05-06 26
EXHIBIT 4
LIABILITY PROGRAM
BIG INDEPENDENT CITIES EXCESS POOL (BICEP)
Self-Insured Retention:
Program Year:
The Member, , hereby agrees to enter into and participate in the
Program of Coverage ("Program") as stated herein in accordance with the terms and
conditions as follows:
ARTICLE I
DEFINITIONS
The definitions of terms used in this Program shall be the same as those contained in
the Joint Powers Authority Agreement ("JPA") and the Bylaws of Big Independent Cities
Excess Pool ("BICEP"), unless otherwise expressly provided herein.
1.1 "Actuary" means a firm with at least one employee who is both a Fellow of the
Casualty Actuarial Society and a Member of the American Academy of Actuaries, which
firm is appointed by BICEP with the approval of at least a majority of the Board.
1.2 "Administrative Premium" means each Member's proportion of all administrative
costs of BICEP including, but not limited to, fees of any accountants, Actuary, attorneys,
Claims Auditor, financial auditors, general management, investments services, trustee
services, and all other necessary administrative costs of BICEP or charges required to
be paid by it in order to administer BICEP, as further set forth in Section 4.1.2.1 hereof.
1.3 "Case Reserves" means amounts in the Claims Payment Fund required to be
designated as reserves for payment of Settlements pursuant to Article III hereof in
accordance with prudent claims practice and the recommendations in the Claims
Auditor's annual report. Case Reserves will be adjusted to reflect any changed
circumstances subsequent to the year any Claim is filed and to reflect the amount by
which a Settlement exceeds or is less than reserves established for any Claim;
provided, however, that there shall be no Case Reserves established for a Claim or any
portion thereof within a Member's Self-insured Retention or which is covered by
Insurance pursuant to Section 2.1.1 hereof.
1.4 "Claim(s)" means a demand(s) against a Member to recover for losses or
damages within or alleged to be within the scope of Coverage in accordance with
Section 2.1.below.
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05-3 t-06
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1.5 "Claims Auditor" means an individual or an organization experienced in the
handling of public entity liability Claims, appointed by BICEP with the approval of a
majority of the Board who shall be independent of any party who administers Claims on
behalf of BICEP or its members. -
1.6 "Claims Payment Fund" means the fund established for the payment of
Settlements pursuant to Section 3.2 hereof. Nothing in this Program is intended to
prohibit BICEP from designating the Claims Payment Fund as being comprised of
separate accounts for the purposes of issuing and securing funding.
1.7 "Coverage Period" means each year coextensive with the Memorandum Period
(as set forth in Section II, Paragraph 20 of the Memorandum) for which a Member pays
Participation Premium.
1.8 "Experience Percent Contribution" means each Member's percentages set forth
in the BICEP Experience Rating Study performed by BICEP's Actuary in each year
prior to the next Coverage Period using the methodology set forth in the Liability Rating
Plan, attached hereto as Exhibit A in this Program.
1.9 "Participation Premium" means with respect to each Member, the sum of the
Administrative Premium, Risk Sharing Premium and Insurance Premium, due and
payable by each Member on each Premium Payment Date as determined in
accordance with Article IV hereof.
1.10 "Payroll" means with respect to a Member, the workers' compensation payroll of
such Member as reported to the State of California or if a Member is not domiciled in
California, as required to be reported in the other state.
1.11 "Participation Premium Adjustment" means the actual accounting of revenue and
expenses and all Claims, including incurred but not reported (IBNR), for each Coverage
Period that occurred on or after July 1, 2004 versus the amounts deposited for each
Coverage Period commencing July 1, 2004 and thereafter, in accordance with the
Liability Rating Plan.
1.12 "Pure Premium Adjustment" means the annual adjustment on all risk-shared
Claims that occurred from October 1, 1988 (inception date of BICEP) up to July 1, 2004.
1.13 "Retained Earnings" shall be that as identified in the audited annual financial
statements of BICEP.
1.14 "Reverse Following Form" means suspending the terms and conditions of the
Memorandum and replacing them with terms and conditions of the policy of Insurance,
or with the terms and conditions of another public agency's memorandum of coverage.
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05-31-06
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1.15 "Risk Sharing Premium" means the amount necessary to fund expected losses
required to be established to pay Settlements of the Members for a Coverage Period as
determined in accordance with the Liability Rating Plan.
1.16 "Risk Sharing Layer" means a specific layer of coverage per occurrence
applicable to one or more Members. BICEP may establish one or more levels of self-
insured retention in compliance with Section 2.1 hereof as approved by the Board
annually.
1.17 "Settlement(s)" means the settlement by BICEP or a Member, in accordance with
Insurance in effect or the Memorandum, of a Claim against such Member, or the final
adjudication of such Claim. The amount of any Settlement may include any costs or
expenses deemed appropriate by BICEP in connection therewith including DEFENSE
COSTS as described in the Memorandum or as covered by Insurance.
1.18 "Supplemental Premium" means the amount new Members must deposit with
BICEP if the new Member will participate in BICEP's Retained Earnings on an equal
footing with Charter Members.
1.19 "Terminated Member" means a Member permitted to withdraw from Coverage
pursuant to Article Vll of the Bylaws or a Member expelled pursuant to Article Vlll of the
Bylaws.
ARTICLE 11
COVERAGE PROGRAMS
2.1 Coverage.
In accordance with Article V of the Bylaws, BICEP hereby provides and the
Member hereby accepts the Coverage and shall participate in the Risk Sharing Layer as
set forth in the Declaration for each year's Coverage Period.
2.1.1 BICEP may provide Coverage, or a portion of Coverage, to the Members
by purchase of insurance ("Insurance")from a commercial insurer or reinsurer, upon the
approval of the Board. BICEP shall be obligated to assist and cooperate with each
Member in collecting for covered Claims from such insurers to the fullest extent.
2.1.2 BICEP shall pay any covered Claims in each Coverage Period in
accordance with the Memorandum. However, prior to each Coverage Period, BICEP
may also determine whether or not to suspend the Memorandum and to approve and
accept a Reverse Following Form as the basis for liability coverage of Claims.
2.1.3 Notwithstanding any recoveries through reinsurance or insurance, in no
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05-31-O6
-3-
event shall BICEP be obligated to pay any covered Claim in excess of the maximum
amount of$10 million per occurrence or$25 million annual aggregate for all Claims.
-ARTICLE III
PAYMENT OF CLAIMS
3.1 Case Reserves.
BICEP shall retain a Claims Auditor for the purpose of submitting an annual
report to BICEP setting forth (a) the amount of Case Reserves necessary to be
established with respect to each Claim arising during the preceding full Coverage
Period and a breakdown of the amount of Case Reserves applicable to each Risk
Sharing Pool, and (b) any adjustments (whether upward or downward) necessary to be
made in the amount of each Case Reserve previously established pursuant to this
Section.
3.2 Payment of Settlements.
BICEP shall establish a Claims Payment Fund for the payment of Settlements.
Settlements shall be paid upon submission to BICEP in accordance with the procedures
of the Liability Risk Management Requirements, attached as Exhibit A to the
Memorandum, and incorporated herein by reference, as approved and adopted by the
Board.
3.3 Structuring Settlements.
Each Member hereby covenants to cooperate with BICEP in the settlement
and/or litigation of Claims in excess of the Member's Self-Insured Retention. To the
extent such Member has control over any negotiation or structuring of a Settlement and
subject to the limitations as determined by BICEP in accordance with Section 2.1.2.,
above, each Member shall not allow Settlement payment dates earlier than the date the
Claims Payment Fund has been or will be fully funded to cover Case Reserves
established for the payment of such Claim. With respect to any judgment(as defined in
California Government Code Section 970 or in accordance with the laws applicable to
any out-of-state member) in an amount which exceeds such Member's Self-insured
Retention, each Member shall petition the court for payment of such judgment in
installments pursuant to the provisions of California Government Code Section 970.6 or
in accordance with the laws applicable to any out-of-state member upon request by
BICEP after consideration by the BICEP Board of its Target Retained Earnings Policy
Statement attached hereto as Exhibit B and incorporated herein by reference.
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05-31-06
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ARTICLE 1V
PREMIUMS
4.1 Member's Premium Costs. -
4.1.1 Appropriation of Premium Payments. Each Member shall take such action
as may be necessary to include Participation Premium payments payable hereunder in
its annual agency budget and to make the necessary annual appropriations for all such
payments to BICEP. The obligations on the part of each Member herein contained shall
be deemed to be and shall be construed to be duties imposed by law and it shall be the
duty of each and every public official of each Member to take such action and do such
things as are required by law in the performance of the official duty of such officials to
enable each Member to carry out and perform its obligations herein.
4.1.2 The Participation Premium payments are made in consideration for
Coverage for each Coverage Period. The entire amount of Participation Premium is due
on the Premium Payment Date, which shall be August 1 of each Fiscal Year which is
coextensive with the applicable Coverage Period. The determination of the amount of
the Participation Premium payable for such Coverage Period by each Member shall be
made as soon as reasonably possible but no later than the day before,the renewal date
preceding the next Coverage Period. Each Member shall be obligated to pay the
Participation Premium, which is determined as follows:
4.1.2.1. Administrative Premium. Each Member shall pay to BICEP
an Administrative Premium. The method for charging Administrative Premium may be
to apply the Experience Percent Contribution set forth in the Liability Rating Plan,
Exhibit A, or to divide all administrative costs equally between the Members, as annually
determined by the Board.
4.1.2.2 Risk Sharing Premium. Each Member shall be responsible
for its proportion of the Risk Sharing Premium, as calculated in the Liability Rating Plan,
Exhibit A. The Risk Sharing Premium shall be calculated in the following manner. With
respect to each Coverage Period, BICEP shall determine the total of the Risk Sharing
Premium by retaining an Actuary to prepare a report to be delivered to BICEP preceding
the beginning of such Coverage Period which recommends the amount of funds to be
deposited in the Claims Payment Fund such that the deposit, along with anticipated
investment income, equals the expected value of all pooled losses, plus any margin for
contingency the Board may determine appropriate for the Risk Sharing Layer retained
by BICEP for said Coverage Period.
In no event will Risk Sharing Premium be payable to establish Case
Reserves for Coverage in excess of $10 million per occurrence unless the Board raises
the limit above $10 million per occurrence.
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05-31-0G
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4.1.2.3 Insurance Premium. In a Coverage Period for which
BICEP has purchased Insurance on behalf of each Member, each such Member shall
be obligated to pay its proportion of the costs of such Insurance in accordance with the
Experience Percent Contribution under the Liability Rating Plan, in lieu of all or a portion
of Risk Sharing Premium, in addition to the other components of Participation Premium.
4.1.2.4 Supplemental Premium. In the sole discretion of each
Member, a Member may pay to BICEP a Supplemental Premium that shall be applied
and credited to that Member's portion of Retained Earnings.
4.1.3 Adjustments to Participation Premium. The Participation Premium may
be adjusted as follows:
4.1.3.1 Participation Premium Adjustment. Annually beginning
after July 1, 2005, the Participation Premium may be adjusted by a Participation
Premium Adjustment.
BICEP shall give prompt written notice to each Member of the
determination of such adjustment. If assessed due to a deficit in a prior Coverage
Period, each Member shall be obligated to pay the full amount of the assessment on the
Premium Payment Date; unless, at the discretion of the Board, each Member is allowed
to pay a portion of the assessment prorated up to five (5) years as authorized by the
Board. In the event of an excess in payment in any Coverage Period, each Member
shall be credited its proportion of such excess payment in accordance with Exhibit A
Liability Rating Plan and attachments thereto, which shall be held by BICEP as
Retained Earnings until released in accordance with the provisions of this Program.
4.1.3.2 Pure Premium Adjustment. A Pure Premium Adjustment
shall be applied to the Participation Premium as applicable to Claims of each Member
that occurred during the period from October 1, 1988 up to July 1, 2004. The amount of
the Pure Premium Adjustment shall be calculated in accordance with the Liability Risk
Coverage Agreement, dated as of October 1, 1988, which shall remain in force and
effect for such calculation. Said Liability Risk Coverage Agreement shall automatically
expire upon the event that all such Claims have been fully satisfied. Such Pure
Premium Adjustment shall be detailed and included in each Member's renewal invoice.
4.1.4. Use of Retained Earnings. The Board may, but is not obligated to,
authorize the release of Retained Earnings as a dividend to be applied to the
Participation Premium of a Member or to be paid to a Member, upon consideration of
the Target Retained Earnings Policy Statement(Exhibit B).
4.2 Terminated Member's Premium Costs
4.2.1. Each Terminated Member shall take such action as may be necessary to
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05-31-06
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include Termination Premium payments payable hereunder in its annual agency budget
and to make the necessary annual appropriations for all such payments to BICEP. The
obligations on the part of each Terminated Member herein contained shall be deemed _
to be and shall be construed to be duties imposed by law and it shall be the duty of
each and every public official of each Terminated Member to take such action and do
such things as are required by law in the performance of the official duty of such officials
to enable each Terminated Member to carry out and perform its obligations herein. This
obligation may not be imposed in any given year that a Terminated Member's account
exceeds their charges for adjustments and allocations, depending on the condition of
the Claims Payment Fund and the Board's determination whether to release any
Retained Earnings after consideration of the Target Retained Earnings Policy Statement
(Exhibit B).
4.2.2. Termination Premium. A Terminated Member shall pay a Termination
Premium which is comprised of all costs, including but not limited to, any administrative
costs and any adjustments applicable pursuant to Section 4.1.3 of this Program, for any
Coverage Period in which the Terminated Member was an active Member of BICEP.
4.2.3 Determination of a Member's Retained Earnings Upon Withdrawal or
Expulsion. In connection with permitting withdrawal of a Member from Coverage
pursuant to Article VII of the Bylaws or expelling a Member pursuant to Article Vill of the
Bylaws, a portion of Retained Earnings shall at such time be allocated to the
Terminated Member in accordance with the most recent annual audited financial
statement of BICEP available as of the effective date of the Terminated Member's
withdrawal or expulsion. The sum of such amounts allocated to such Terminated
Member shall be applied first to the payment of Termination Premium pursuant to
Section 4.2.2.
4.2.4. After credit to pay the Termination Premium and all other obligations due
from such Terminated Member under the terms of this Program and any interest
thereon, BICEP shall hold the remaining balance of the Terminated Member's Retained
Earnings ("Remaining Assets") due to the Terminated Member, if any, in a segregated
account. BICEP will transfer to a Terminated Member its Remaining Assets on the
earliest practicable date when such Member is no longer subject to the payment of a
Termination Premium under the terms of this Program i.e., when all Claims within the
scope of Coverage prior to withdrawal or expulsion of such Member have been finally
determined and/or paid as Settlements, unless the Board upon consideration of its
Target Retained Earnings Policy Statement (Exhibit B) determines that release of the
Remaining Assets will substantially affect the financial condition of BICEP. If there are
insufficient Remaining Assets to meet the Terminated Member's continuing obligations
to BICEP, the Terminated Member shall be obligated to pay any such deficit amount.
4.2.5 The release of Retained Earnings to each Member upon the dissolution of
BICEP pursuant to Article VI of the Bylaws shall be handled in substantially the same
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05-31-0G
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manner as hereinabove provided in this Section 4.2.
4.3 Common Premium Provisions to Members and Terminated Members
4.3.1 No Withholding. Notwithstanding any dispute between BICEP and a
Member or Terminated Member, including a dispute as to the scope or nature of
Coverage provided by BICEP or the availability of amounts in the Claims Payment Fund
to pay Claims made against any Member or Terminated Member, or for any other
reason (other than the termination of the obligation to pay Participation Premium
pursuant to Section 4.2.4 hereof) each Member including Terminated Member shall
appropriate funds sufficient to pay and shall make all Participation Premium payments
including Pure Premium Adjustments, and Participation Premium Adjustments for
Members or Terminated Members when due and'shall not withhold any such payments
pending the final resolution of such dispute.
4.3.2. Payment of Invoices. BICEP invoices are to be paid within 30 days of
presentation to Members unless another due date is specified on the invoice.
4.3.3 Rate on Overdue Payments. In the event a Member or Terminated
Member fails to make any of the payments required in this Article, the payment in
default shall continue as an obligation of the Member or Terminated Member until the
amount in default shall have been fully paid, and in addition to any remedies available
with respect to such default, the Member or Terminated Member agrees to pay the
same with interest thereon. Interest shall be calculated using BICEP's average
earnings rate as determined in the latest 12-month Investment Performance Portfolio
prepared by BICEP's investment managers, but not to exceed the highest rate
permitted by law, from the date such amount was originally payable. This provision can
be waived by the Board on a case-by-case basis.
4.3.4 Damages; Revocation of Withdrawal. In no event shall withdrawal from
Coverage release a Member from its obligation to pay damages resulting from default
under the terms of this Program which is not remedied by payment of Termination
Premium or from its obligation to pay Pure Premium Adjustments and Participation
Premium Adjustments with respect to Claims within the scope of Coverage prior to such
withdrawal. BICEP shall continue to pay Settlement of Claims relating to the withdrawn
Member within the scope of Coverage prior to withdrawal as provided herein, unless the
Member defaults in the payment of its continuing obligations described herein.
4.3.5 Member's Rights Upon Dissolution of BICEP. In the event of the
dissolution of BICEP in accordance with Article VI of the Bylaws, the terms and
conditions of this Liability Program shall remain in full force and effect until such time as
all Claims within the scope of Coverage have been finally determined and/or paid as
Settlements. Remaining Assets (as defined in Section 4.2.4, above) shall be distributed
consistent with Section 4.2.4.
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... r
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05-31-06
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IN WITNESS WHEREOF, the undersigned Member acknowledges reading, fully
understanding and accepting the terms and provisions of the Program.
Date: By:
Print Name:
City of:
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Exhibit A
Big Independent Cities Excess Program (BICEP)
Liability Rating Plan
1. Participation Premium
For each Coverage Period, beginning July 1, 2004, a Participation Premium shall be
calculated for each member. The Members' Participation Premium shall be sufficient to
pay the Members' Risk Sharing Premium, Insurance Premium and Administrative
Premium. The process for calculating each Members' share of these three Premiums is
set forth in Appendix A-1, Exhibits CA-1 through CA-9, inclusive, and as more
specifically set forth below.
A. Risk Sharing Premium. As stated in I. above, each Member's Risk
Sharing Premium shall be based on the following data for the three years
beginning four years prior to the Coverage Period for which Participation
Premiums are being calculated:
1. Reported incurred losses. These are loss payments plus reserves for
incurred but unpaid claims, as established by BICEP's claims
administrator. Only liability claims of the type covered by the
Memorandum or in accordance with Section 2.1.2 shall be
considered.
2. Number of reported incurred claims exceeding$250,000.
3. Workers compensation payroll, as reported to the State of
California or any other state if a member is domiciled in another
state.
The above three amounts shall be used to compute an experience
modification factor (Xmod) for each Member for the upcoming Coverage
Period.
Each Member's share of the Risk Sharing Premium shall be the product of
its:
1. Xmod,multiplied by its
2. Workers compensation payroll for the year for which Participation
Premiums are being calculated,multiplied by
CADocuments and Settingslcrs\Local Settings\Temporary Internet Files\0LK2\BiCEP_ExhibitR_060205(Liability Program)(5-10-06)(final).doc
A-1
3. The loss rate calculated by BICEP's actuary and as adopted by
BICEP for the Risk Sharing Layer(s) in which the Member will
participate. The BICEP Board may elect to include an addition to
Retained Earnings in the loss rate(s).
B. Insurance Premium. Each Member's Insurance Premium shall be
calculated as the product of its Experience Percent Contribution multiplied
by the total premium to be paid by BICEP for insurance for the upcoming
program year.
C. Administrative Premium. Each Member's Administrative Premium
shall be calculated as the product of its Experience Percent Contribution
multiplied by the total amount of Administrative Premium required by
BICEP for the upcoming program year.
II. Participation Premium Adjustment
Following the close of each Coverage Period, an adjustment shall be made to the
Participation Premium, as described in I. above,paid by each Member.The adjustment to
each component of the Participation Premium shall be calculated as set forth below.
A. Risk Sharing Premium. Each Member's share of the total Risk Sharing
Premium paid by all Members for,the Coverage Period shall be calculated.
The percentage so determined shall be multiplied by total losses in all Risk
Sharing Layers in which a Member participates to determine each
Member's actual share of the Risk Sharing Premiums. Total losses shall
include amounts paid, case reserves and incurred but not reported losses.
The BICEP Board may elect to include an addition to or deletion from
Retained Earnings.
B. Administrative Premium. Each Member's share of actual
administrative costs shall be its Experience Percent Contribution
multiplied by total administrative costs for the year.
C. Insurance Premium. Each Member's share of actual insurance
premiums shall be its Experience Percent Contribution multiplied by total
insurance premiums for the year.
CADocuments and Settings\crs\Local Settings\Temporary intemet Files\OLK2\1310EP_ExhibitA 060205(Liability Prograni)(5-10-06)(final).doc
A-2
Each Member's Participation Premium Adjustment for each Coverage Period shall be:
A. The Participation Premium paid at the beginning of the year, less
B. The Member'-s share of Risk Sharing Premium, Administrative Premium
and Insurance Premium, as calculated in Section II, items A, B and C
above.
The process for calculating Member Participation Premium Adjustments is set forth in
Appendix A-1,Exhibits EQ-1 and EQ-2.
A Participation Premium Adjustment for each Coverage Period shall be calculated
18 months following the close of the Coverage Period and at annual intervals thereafter
until all claims in the Risk Sharing Layer are closed.
CADocuments and Settings\crs\Locai Settings\Temporary Internet Files\OLK2\RICFP_FxhibitA_060205(Liability Program)(5-10-05)(final)-doc
A-3
APPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL Exhibit CA-1
EXPERIENCE RATING
Payroll 2001 102 to 2003/04
I.Payroll($000)
Payroll
($000)
Payroll Payroll Payroll 2001/02 to
($000) ($000) ($OOO) 2003104
City 2001/02 2002103 2003104 (2)+(3)+(4)
(1) (2) (3) (4) (5)
Huntington Beach $76,759 $79,241 $82,938 $238,939
Oxnard 44,061 47.693 52,796 144,550
San Bernardino 76,036 75,443 91,446 242.925
Santa Ana 115,928 118,978 120.367 355,273
West Covina 21.671 22,111 26,776 70,558
Total $334,455 $343,467 $374,322 $1,052,244
11.Percent of Payroll
Average
Percent
Percent Percent Percent Payroll
Payroll Payroll Payroll 2001/02 to
City 2001102 2002103 2003/04 2003/04
Huntington Beach 23.0% 23.1% 22.2% 22.7%
Oxnard 132% 13.9% 14.1% 13.7%
San Bernardino 22.7% 22.0% 24.4% 23A%
Santa Ana 34 7% 34.6% 32.2% 33.8%
West Covina 6.5% 6.4% 7.2% 6.7%
Total 100.0% 100.0% 100.0% 100.0%
Section 1 is from the ARM Tech actuarial study.
Section Il is based on Section 1. _
BICEP_LICA_123104_sampte_val-,,jed(05-10-06).xls
APPENDIX A-1
A
PPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL Exhibit CA-2
EXPERIENCE RATING
Reported Incurred Losses as of December 31,2004 for 2001 102 to 2003/04
1. Reported incurred Losses as of December 31,2004
2001 102 to
2003/04
Reported Reported Reported Reported
Incurred Incurred Incurred Incurred
Losses Losses Losses Losses
City 2001/02 2002/03 2003104 (2)+(3)+(4)
(1) (2) (3) (4) (5)
Huntington Beach $1,929.567 $2.427,825 $962,625 $5,320,017
Oxnard 3,338,783 1,600,419 821,421 5,760,622
San Bernardino 2,042,436 564,543 2,023.605 4,630,583
Santa Ana 1,323,683 1,506,485 970,20E 3,800,376
West Covina 925,638 77,440 121,814 1.124,892
Total $9,560,107 $6.176,711 $4.899.673 $20,636,491
ft. Percent of Reported Incurred Losses as of December 31,2004
Percent
Percent Percent Percent Reported
Reported Reported Reported Incurred
Incurred Incurred Incurred Losses
Losses Losses Losses 2001102 to
2001 102 2002103 2003/04 2003104
City
Huntington Beach -20.2% 39.3% 19.6% 25.8%
Oxnard 34.9% 25.9% 16.8%- 27.9%
San Bernardino 21.4% 9.1% 41.3% 224%
Santa Ana 13.8% 24.4% 19.8% 18A%
Wegt Covina 9.7% 1.3% 2.5% 5.5%
Total 100.0% 100.0% 100.0% 100.0%
BICEP_LICA_123104_sample_valued(05-10-06).xls
APPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL Exhibit CA-3
EXPERIENCE RATING
2001102 to 2003104 Claims with Reported Incurred Losses Over a$250,000 Threshold as of December 31,2004
L Claims Over$250,000 Threshold
Claims
Over
Claims Claims Claims $250,000
Over Over Over Threshold
$250,000 $250,000 $250,000 2001102 to
_ - Threshold Threshold Threshold 2003104
2001/02 2002/03 2003/04 (2)+(3)+(4)
City (2) (3) (4) (5)
(1)
Huntington Beach 3 3 0 6
Oxnard 2 1 0 3
San Bernardino 2 0 2 4
Santa Ana 0 1 1 2
West Covina 1 0 0 1
Total 8 5 3 16
IL Percent Claims Over $250,000 Threshold
Percent
Percent Percent Percent Claims
Claims Claims Claims Over
Over Over Over $250,000
$250,000 $250,000 $250.000 Threshold
Threshold Threshold Threshold 2001102 to
2001102 2002/03 2003104 2003/04
City
Huntington Beach 37.5% 60.0% 0.0% 37.5%
Oxnard 25.0% 20.0% 0.0% 18.8%
San Bernardino 25.0% 0 0% 667% 25.0%
Santa Ana 0.0% 20.0% 33.3% 12.5%
West Covina 12.5% 0.0% 0.0% 6.3%
Total 100.0% 100.0% 100.0% 100.0
BICEP LICA 123104 sample_valued(05-10-06).xis
APPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL Exhibit CA-4
EXPERIENCE RATING
Relative Loss Rates
I.2001 102
Percent Relative
Reported Lass
Percent Incurred Rate
Payroll Losses 2001/02
2001/02 2001/02
City (3) {(4) _
Huntington Beach 23.0% 20.2% 0.879
Oxnard 13.2% 34.9% 2.651
Sam Bernardino 22.7% 21.4% 0.940
Santa Ana 34.7% 13.8% 0.399
West Covina 6.5% 9.7% 1.494
Total 100.0% 100.0% 1.000
11.2002103
Percent Relative
Reported Loss
Percent Incurred Rate
Payroll Losses 2002/03
City 2002/03 2002103 (3)/(2)
(1) (2) (3) (4)
Huntington Beach 23.1% 39.3% 1_704
Oxnard 13.9% 25.9% 1.866
San Bernardino 22.0% 9.1% 0.416
Santa Ana 34.6% 24.4% 0.704
West Covina 6.4% 1.3% 0.195
Total 100.0% 100.0% 1.000
I It.2003/04
Percent Relative
Reported Loss
Percent Incurred Rate
Payroll Losses 2003104
City 2003/04 2003/04 (3)/(2)
(1) (2) (3) (4)
Huntington Beach 22.2% 19.6% 0,887
Oxnard 14_1% 16.8% 1.189
San Bernardino 24.4% 41.3% 1.691
Santa Ana 32.2% 19.6% 0.616
West Covina 7.2% 2.5% 0.348
Total 100.0% 100.0% 1.000
Sections L 11 and 111,(2)are from Exhibit CA-1.
Sections 1,11 and 11t,(3)are from Exhibit CA-2.
APPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL Exhibit CA-5
EXPERIENCE RATING -
Relative Claim Rates
1.2001 f02 '
Percent
Claims Relative
Over Claim
Percent $250,000 Rate
Threshold
Payroll 2001 102- 2001!02
City 2001102 (3)/(2)
(1) (2) (3) (4)
Huntington Beach 23.0% 37.5% 1.634
Oxnard 13.2% 25.0% 1.898
San Bernardino 22.7% 25.0% 1.100
Santa Ana 34.7% 0.0% 0.000
West Covina 6.5% 12.5% 1.929
Total 100.0% 100.0% 1.000
11.2002/03
Percent
Claims Relative
Over Claim
Percent $250,000 Rate
Payroll Threshold 2002103
City 2002103 2002/03 (3)/(2)
(1) (2) (3) (4)
Huntington Beach 23.1% 60.0% 2.500
Oxnard 13.9% 20.0% 1,440
San Bernardino 22.0% 0.0% 0.000
Santa Ana 34,6% 20.0% 0.577
West Covina 6.4% 0.0% 0.000
Total 100.0% 100.0% 1_000
Ill.2003/04
Percent
Claims Relative
Over Claim
Percent $250,000 Rate
Payroll Threshold 2003f04
City 2003/04 2003104 (3)1(2)
(1) (2) (3) (4)
Huntington Beach 22.2% 0.0% 0.000
Oxnard 14.1% 0.0% 0.000
San Bernardino 24.4% 66.7% 2.500
Santa Ana 322% 33.3% 1A37
West Covina 72% 0.0% 0.000
Total 100.0% 100.0% 1.000
Sections 1,II and III,(2)are from Exhibit CA-1.
Sections i,If and Ill,(3)are from Exhibit CA-3-
Sections I,If and Ill,(4)is capped to 2.500.
APPENDIX A-1
A
PPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL Exhibit CAS
EXPERIENCE RATING
Calculation of Experience Modification Factor for 2005106
I. Average Relative Loss Rate
Average
Relative
Loss
Rate
Relative Relative Relative 2001 102 to
Loss Loss Loss 2003/04
Rate Rate Rate Avg((2)
City 2001102 2002/03 2003104 (3),(4))
(1) (2) (3) (4) (5)
Huntington Beach 0.879 1.704 0.887 1.157
Oxnard 2.651 1.866 1.189 1,902
San Bernardino 0.940 0.416 1,691 1.015
Santa Ana 0.399 0.704 0.616 0.573
West Covina 1.494 0.195 0.348 0.679
Total 1 000 1.000 1 000 1.000
11. Average Relative Claim Rate
Average
Relative
Claim
Rate
Relative Relative Relative 2001/02 to
Claim Claim Claim 2003/04
Rate Rate Rate Avg{(2),
City 2001/02 2002/03 2003104 (3),(4)1
(t) (2) (3) (4) (5)
Huntington Beach 1.634 2.500 0.000 1.378
Oxnard 1 898 1.440 0.000 1.113
San Bernardino 1.100 0.000 2500 1.200
Santa Ana 0.000 0.577 1-037 0.538
West Covina 1.929 0.000 0.000 0.643
Total 1 000 1.000 1.000 1.000
Ill. Experience Modification Factor
Average Average
Relative Relative Average
Loss Claim Percent Credibility Prior 2005/06
Rate Rate Payroll Rating y Weight Experience Experience
2001/02 to 2001 102 to 1 2001 02 to
Factor (5)1[(5)+ Modification Modification
City 2003/04 2003/04 Avg[(2).(3)) 2003/04 Max(5)Xt) Factor Factor
(1) (2) (3) (4) (5) (6) (7) (8)
Huntington Beach 1A57 1.378 1267 22.7% 0.402 1.040 1.129
Oxnard 1.902 1,113 1507 13.7% 0289 1.479 1.484
San Bernardino 1.015 1.200 1_108 23A% 0.406 0.985 1.033
Santa Ana 0.573 0.538 0.556 33.8% 0.500 0.760 0-656
West Covina 0.679 0.643 0.661 6.7% 0.166 1.166 1.080
Total 1.000 1.000 1.000 1.000 1.000
Section 1.(2),(3)and(4)are from Exhibit CA-4.
Section 11,(2).(3)and(4)are from Exhibit CA-5-
Section III,(5)is from Exhibit CA-1.
Section Ill,(6)is designed to give the largest city a weight of 0.500 and others proportionally less.
Section Ili,(7)is from the prior experience rating study.
Section Ill,(8)_(4)x(6)+11.000-(6))x(7).It is subject to an off-balance factor of 0.998.
APPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL Exhibit CA-7
EXPERIENCE RATING
Calculation of Experience Percent Contribution 2005106
I.Using Maximum City Weight at 0.500
Experience
Percent
Payroll Percent Experience Contribution
($000) Payroll Modification 2005/06
City 2003/04 2003104 Factor (3)X(4)
(1) (2) (3) (4) (5) _
Huntington Beach $82,938 22.2% 1.129 25.01%
Oxnard 52,796 14.1% 1.484 20.93%
San Bernardino 91,446 24.4% 1.033 25.23%
Santa Ana 120,367 32.2% 0.656 21.10%
West Covina 26,776 7.2% 1.080 7.72%
Total $374,322 100.0% 1.000 100.00%
(2)was provided by BICEP for 2005/06 rating.
(3)is based on(2).
(4)is from Exhibit CA-6.
APPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL Exhibit CA-8
EXPERIENCE RATING
Example of Recommended Rating Plan
1. Risk Sharing Premium for 2005106
Premium Premium
Loss Rate Loss Rate at$500,000 at$1,000,000
Experience Payroll at$500,000 at$1,000,000 Retention Retention
Modification ($000) Retention Retention 2005106 2005/06
City Factor 2005/06 2005/06 2005106 (2)X(3)X(4) (2)X(3)X(5)
(1) (2) (3) (4) (5) (6) (7)
Huntington Beach 1.129 $87,989 $6.000 $3.040 $595,849 $301.897
Oxnard 1.484 56,011 6.000 3,040 498,784 252,717
San Bernardino 1.033 97,015 6.000 3.040 601.199 304,608
Santa Ana 0.656 127,697 6.000 3.040 502,827 254,766 _
West Covina 1.080 28,407 6.000 3.040 184,048 93,251
Total 1.000 $397,118 $2,382,708 $1,207,239
11.Administrative Premium and Insurance Premium for 2005/06
2005106 2005106
Insurance Insurance
Premium Premium
Experience $2,000,000 $12,000,000
Percent Admnistrative to to
Contribution Premium $12.000,000 $17,000,000
City 2005/06 (2)XTotal(3) (2)XTotai(4) (2)XTotal(S)
(1) (2) (3) (4) (5)
Huntington Beach 25.01% $56.266 $425,123 $62,518
Oxnard 20.93% 47,100 355,869 52,334
San Bernardino 2523% 56,771 428,940 63,079
Santa Ana 21 A0% 47,482 358,754 52,758
West Covina 7.72% 17,380 131,313 19,311
Total 100.00% $225,000 $1,700,000 $250,000
Section 1,(2)is from Exhibit CA-7-
Section I,(3)is based on payroll for 2003/04 and a 3%trend.
Section 1,(4)and(5)are approximations.
Section 1,(4)and(5)fund losses from SIR shown to$2 million.
Section It.(2)is from Exhibit CA-7.
Section It,Total(3),Total(4)and Total(5)are for example only.
APPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL Exhibit CA-9
EXPERIENCE RATING
Calculation.of Total Payment for 2005/06
2005106
Insurance
Premium 2005/06
2005/06 $2,000,000 2005106 Total
Risk Sharing to Administrative Payment
City Retention
Premium $17,000,000 Premium Sum[(3)..(5)]
(1) (2) (3) (4) (5) (6)
Huntington Beach $1.000,000 $301.897 $487.641 $56.266 $845.804
Oxnard 1,000.000 252,717 408.203 47,100 708,021
San Bernardino 1,000,000 304,608 492.019 56.771 853,398
Santa Ana 1,000,000 254,766 411.512 47,482 713,760
West Covina 500.000 184,048 150,624 17.380 352,052
Total $1.298,036 $1,950,000 $225.000 $3,473,036
(3),(4)and(5)are from Exhibit CA-8.
BICEP_LiCA_123104_sampie_valued(05-10-06).xls
APPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL - Exhibit EQ-1
COST ALLOCATION
2005106 Expenses
1.Total Expenses --
Amount Actual
Type of - Deposited in Costs in
Expenditure 2005I06 2005/06
(1) (2) (3)
Incurred losses $1,298,036 $950,000
Excess insurance 1,950,000 2,000,000
Legal Expense 75,000 5,000
Audit 20,000 8,000
Consulting 50.000 20,000
Management 65,000 65,000
Other Expense 15,000 15,000
Investment Income 0 (15,000)
Total $3.473,036 $3,048,000
It.Expenses by Type
Amount Actual
Deposited in Costs in
Type 2005106 2005/06
Losses $1,298,036 $935,000
Excess Insurance 1.950,000 2,000,000
AN Other 225,000 113,000
Total $3.473.036 $3,048,000
Section 1,(2)and(3)are for illustration.
In Section I,incurred losses,(2)is greater than(3)due to reserve changes in prior years.
Section It is based on Section 1.
In Section 11,investment income is an offset to losses.
APPENDIX A-1
BIG INDEPENDENT CITIES EXCESS POOL Exhibit EQ-2
COST ALLOCATION
2005/06 Member Allocation
1.Allocation by Member
Share of Share of Share of
Experience AtlOther Insurance Percent Poole Total
Percent Expenses Premium Risk Losses Actual
Contribution 2005/06 2005106 Risk Sharing Sharing 2005106 Costs
City 2005/06 (2)XTotal(3) (2)XTotal(4) Paid for Premium (6)XTotal(7) (3)+(4)+(7)
2005106 (5yfotal(5)
(1) (2) (3) (4) (5) (6) (7) (8)
Huntington Beach 25.01% $28,258 $500,145 $301,897 - $217,462 $745,865
Oxnard 20.93% 23,655 418,670 252,717 19.47% 182,037 624,362
San Bernardino 25.23% 28,512 504,635 304,608 23.47% 219,415 752,562
Santa Ana 21.10% 23,847 422,064 254,766 19.63% 183.513 629,423
West Covina 7.72% 8,728 154,486 184,048 14.18% 132,573 295,788
Total 100.00% $113,000 $2,000,000 $1,298,036 �100.001/6 $935,000 $3,048,000
II.Member Equity
Equity]
(Deficit)for
Amount Total 2005106
Deposited in Actual Operations
City 2005106 Costs (2}(3)
(1) (2) (3) (4)
Huntington Beach $845,804 $745,865 $99,939
Oxnard 708,021 624,362 83,659
San Bernardino 853,398 752,562 100,837
Santa Ana 713,760 629,423 84,337
West Covina 352,052 295,788 56,264
Total $3,473,036 $3,048,000 $425,036
Section 1,(2)is from Exhibit CA-7.
Section 1,Total(3)and Total(4)are from Exhibit EQ-1.
Section 1,(5)is from Exhibit CA-9.
Section 1,Total(?)is from Exhibit EQ-1.
Section 11,(2)is from Exhibit CA-9-
Section 11,(3)is from Section 1,(8).
Exhibit B
BICEP
Liability Program
Target Retained Earnings Policy Statement
1. PURPOSE. The purpose of this policy statement is to give guidance to the Board in
making annual funding decisions for the Liability Program. By adoption of this policy
statement, the Board of Directors acknowledges that the long-term financial strength
of the Liability Program is of utmost importance. There is a high degree of
uncertainty in actuarial estimates due to the possibility of occasional catastrophic
claims and inconsistent or inaccurate case reserving; therefore, the Board of
Directors desires to fund the Program in a cautious and prudent manner and return
dividends to its members in an equally cautious and prudent manner.
2. TARGET RETAINED EARNINGS. BICEP has determined that the target retained
earnings goal for the Liability Program is the actuarially determined 85% confidence
level discounted for investment income, subject to the following ratios:
Participation Premium to Retained Earnings ratio: Target= 1.5:1
This ratio is a measure of how Retained Earnings is leveraged against
possible pricing inaccuracies. A low ratio is desirable.
BICEP Retention to Retained Earnings ratio: Target= 0.5:1
This ratio is a measure of the maximum amount that Retained Earnings
could decline due to a single loss. A low ratio is desirable.
Outstanding Reserves to Retained Earnings ratio: Target= 1.5:1
This ratio is a measure of how Retained Earnings is leveraged against
possible reserve inaccuracies. A low ratio is desirable.
• Retained Earnings is the amount shown as Retained Earnings in BICEP'S most
recent financial audit.
• Participation Premium includes the Risk Sharing Premium and
reinsurance/excess insurance premium but does not include administrative costs.
• BICEP Retention is the maximum amount of exposure to a single loss retained
by BICEP over the most recent 10 years.
Liability Program 01-21-06
-8-1-
• Outstanding Reserves are the sum total of unpaid case reserves, and incurred
but not reported claims, in the Risk Sharing Layer as determined by the Claims
Auditor and Actuary.
3. ANNUAL ACTUARIAL STUDY. BICEP will conduct an annual actuarial analysis to assist
the Board of Directors in making funding decisions on a prospective and
retrospective basis.
4. APPLICATION OF TARGET SURPLUS CRITERIA. After annual review of the target
retained earnings ratios, the Board of Directors will be able to determine whether it is
desirable to increase, decrease, or stabilize retained earnings. If the Board desires
to decrease retained earnings, it may approve a funding level below the 85%
confidence level. Conversely, a funding decision above the 85% confidence level
will indicate a bias toward increasing retained earnings. A determination to fund at
the 85% confidence level will reflect the Board's desire to keep retained earnings at
the current level.
5. RETROSPECTIVE DIVIDENDS. Dividends may be available four (4) years from the end
of a Coverage Period. The Board of Directors, using the target retained earnings
ratios as a guide, may declare additional retrospective dividends at any time_
6. PROSPECTIVE DIVIDEND. To the extent the Board approves funding a new year at a
confidence level less than the target 85%, the Board recognizes the difference
between actual funding and the 85% confidence level as a prospective (up front)
dividend.
7. AMENDMENT. This policy statement, amended by the Board dated , 2006,
shall be reviewed annually and reaffirmed or modified accordingly.
Liability Program 01-21-06
-B-2-
EXHIBIT 5
WORKERS' COMPENSATION PROGRAM
BIG INDEPENDENT CITIES EXCESS POOL (BICEP) \
Self-Insured Retention:
Program Year:
The Member, , hereby agrees to enter into and participate in the
Workers' Compensation Program of Coverage ("Program") as stated herein in
accordance with the terms and conditions as follows:
ARTICLE I
DEFINITIONS
The definitions of terms used in this Program shall be the same as those contained in
the Joint Powers Authority Agreement("JPA") and the Bylaws of Big Independent Cities
Excess Pool ("BICEP"), unless otherwise expressly provided herein.
1.1 "Administrative Premium" means each Member's proportion of all administrative
costs of BICEP relating to the Program, as further set forth in Section 4.1.2.1 hereof.
1.2 "Allocated Costs" means those costs of the Program which are specifically
related to a Member.
1.3 "Claim(s)" means a demand(s) against a Member to recover for losses or
damages within or alleged to be within the scope of the Program.
1.4 "Coverage Period" means each year coextensive with the Fiscal Year(as defined
in the Bylaws)for which a Member pays Participation Premium, unless and as amended
by the Board.
1.5 "Insurance" means providing coverage for Claims in excess of a Member's Self-
Insured Retention amount by commercial insurance or reinsurance.
1.6 "Participation Premium" means with respect to each Member, the Administrative
Premium, if any, and estimated Insurance Premium payable by each Member on each
Premium Payment Date as determined in accordance with Article IV hereof.
1.7 "Settlement(s)" means the settlement by a Member and/or insurer, in accordance
with the Program, of a Claim against such Member, or the final adjudication of such
Claim.
Workers'Compensation Program
01-21-06
-t-
ARTICLE 11
COVERAGE PROGRAMS
2.1 Coverage.
In accordance with Article V of the Bylaws, BICEP hereby provides and Member
hereby accepts workers' compensation coverage ("Coverage") as set forth in the
Declaration for each year's Coverage Period.
2.1.1 Upon the approval of the Board, BICEP shall provide Insurance which is in
excess of the Self-insured Retention as determined by the Member. The usual method
of funding will be to have each Member deposit their portion of premium for Insurance
purchased at the beginning of each Fiscal Year as a component part of their
Participation Premium.
2.1.2 Insurance provided for BICEP to its Members for Coverage, or any portion
thereof, shall be primary to pay any covered Claims. BICEP shall be obligated to assist
and cooperate with each Member in-collecting for covered Claims from such insurers to
the fullest extent.
2.1.3 BICEP shall not be obligated to pay any covered Claim.
ARTICLE III
PAYMENT OF CLAIMS
3.1 Settlements.
3.1.1 Each Member shall retain the right to approve or reject a Claim where the
settlement amount is less than their Self-Insured Retention.
3.1.2 Each Member shall have the authority and responsibility for.all legal costs
for defense of a Claim that does not involve the insurance carrier(s). The Member may
choose the attorney to handle its Claim.
ARTICLE 1V
PREMIUMS
4.1 Member's Premium Costs.
4.1.1 Appropriation of Premium Payments. Each Member shall take such action
as maybe necessary to include Participation Premium payments payable hereunder in
Workers'Compensation Program
0 i-21-06
-2-
its annual agency budget and to make the necessary annual appropriations for all such
payments to BICEP. The obligations on the part of each Member herein contained shall
be deemed to be and shall be construed to be duties imposed by law and it shall be the
duty of each and every public official of each Member to take such action and do such
things as are required by law in the performance of the official duty of such officials to
enable each Member to carry out and perform its obligations herein.
4.1.2 The Participation Premium payments due in any Coverage Period shall be
made in consideration for Coverage for such Coverage Period. The entire amount of
Participation Premium is due on the Premium Payment Date which shall be August 1 of
each Fiscal Year. The determination of the Participation Premium payable in each
Coverage Period by each Member shall be made as soon as reasonably possible but
no later than the day before the renewal date preceding a Coverage Period. Each
Member shall be obligated to pay the Participation Premium which is determined as
follows:
4.1.2.1. Administrative Premium. Each Member shall pay to BICEP
as Administrative Premium such amounts as shall be required for the payment of all
administrative costs of BICEP including but not limited to, general management and all
other necessary administrative costs of BICEP or charges required to be paid by it in
order to administer the Program, if any. The Administrative Premium shall be equally
shared by each Member in the Program.
4.1.2.2. In a Coverage Period for which BICEP has purchased
insurance on behalf of each Member, each such Member shall be obligated to pay its
Allocated Costs which includes but is not limited to the premium for such insurance and
includes insurance brokerage fees and/or commissions.
4.1.3 At the end of a Coverage Year, insurers may audit each Members payroll
which may result in refunds, credits or additional premium payable.
4.2 Common Premium Provisions to Members and Terminated Members
4.2.1. No Withholding. Notwithstanding any dispute between BICEP and a
Member or Terminated Member, including a dispute as to the scope or nature of
Coverage provided by insurers or for any other reason, each Member including a
Terminated Member shall appropriate funds sufficient to pay and shall make all
Participation Premium payments when due, including any audited payroll as provided in
Section 4.1.3 above, and shall not withhold any such payments pending the final
resolution of such dispute.
4.2.2. Payment of Invoices. BICEP invoices are to be paid within 30 days of
presentation to members unless another due date is specified on the invoice.
Workers'Compensation Program
01-21-06
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4.2.3. Rate on Overdue Payments. In the event a Member or Terminated
Member fails to make any of the payments required in this Article, the payment in
default shall continue as an obligation of the Member or Terminated Member until the
amount in default shall have been fully paid, and in addition to any remedies available
with respect to such default, the Member or Terminated Member agrees to pay the
same with interest thereon. Interest shall be calculated using the BICEP's average
eamings rate as determined in the latest 12-month Investment Performance Porfolio
prepared by BICEP's investment managers, but not to exceed the highest rate
permitted by law from the date such amount was originally payable. This provision can
be waived by the Board on a case-by-case basis.
4.2.4. Termination of Coverage. In no event shall termination of
Coverage due to withdrawal or expulsion release a Member from its obligation to pay
damages resulting from default under the terms of this Program or from its obligation to
pay their Self-insured Retention of Claims within the scope of Coverage prior to such
withdrawal. BICEP shall continue to pay Settlement of Claims relating to the withdrawn
Member within the scope of Coverage prior to withdrawal as provided herein, unless the
Member defaults in the payment of its continuing obligations described in the preceding
sentence. Notice to withdraw shall be revocable by the Member only with the consent
of BICEP.
4.2.5. Member's Rights Upon Dissolution of BICEP. In the event of the
dissolution of BICEP in accordance with Article VI of the Bylaws, the terms and
conditions of this Workers' Compensation Program shall remain in full force and effect
until such time as all Claims within the scope of Coverage have been finally determined
and/or paid.
IN WITNESS WHEREOF, the undersigned Member acknowledges reading, fully
understanding and accepting the terms and provisions of the Program.
Date: By:
Print Name:
Workers'Compensation Program
01-21-06
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Res. No. 2006-38
STATE OF CALIFORNIA
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, JOAN L. FLYNN the duly elected, qualified City Clerk of the
City of Huntington Beach, and ex-officio Clerk of the City Council of said City,
do hereby certify that the whole number of members of the City Council of the
City of Huntington Beach is seven; that the foregoing resolution was passed
and adopted by the affirmative vote of at least a majority of all the members of
said City Council at an regular meeting thereof held on the 3rd day of July,
2006 by the following vote:
AYES: Bohr, Green, Coerper, Sullivan, Hardy, Hansen, Cook
NOES: None
ABSENT: None
ABSTAIN: None
Cita,lerk and ex-officio erk of the
City Council of the City of
Huntington Beach, California