Mutual Loan Agreement

Document Sample
Mutual Loan Agreement Powered By Docstoc
					 1                       Model Mutual Aid and Assistance Agreement for Intrastate
 2                          Water/Wastewater Agency Response Network (WARN)
 3
 4   This Model Agreement contains procedures and standards for a water and wastewater utility
 5   Mutual Aid and Assistance Program. The Model is based on existing water and wastewater
 6   utility Mutual Aid and Assistance agreements implemented in California, Florida, Texas,
 7   Louisiana, South Carolina, Oregon, Georgia, and Pennsylvania. While the Model shares some
 8   similarities with each of the eight agreements, it is a unique document in and of itself.
 9
10   Creating an agreement for Mutual Aid and Assistance involves a number of policy decisions.
11   The Model Agreement proposes specific approaches to Mutual Aid and Assistance Program
12   issues; however, reasonable minds will differ as to whether the approaches presented in the
13   model are the best. Accordingly, notes are included for each provision of the Model Agreement.
14   These notes highlight significant issues that arise in the drafting of a mutual aid and assistance
15   Program and how the Model Agreement approaches those issues. The notes also explain why
16   certain provisions are included in the Model Agreement.
17
18   Representatives of the water and wastewater industry can use this Model Agreement as a tool
19   to facilitate discussion on drafting an Intrastate Mutual Aid and Assistance agreement that best
20   illustrates their needs. However, while each intrastate steering committee may revise portions of
21   this Agreement, it is important to note that this Model Agreement allows for inclusion and
22   eventual connection with a national interstate mutual aid and assistance agreement. Because
23   mutual aid and assistance programs require standardized operational procedures, consistency
24   between the intrastate agreements is critical. Thus, major modifications to this Agreement
25   would preclude using it for connection with an interstate program for mutual aid and assistance
26   program.
27
28                                                    AGREEMENT
29
30   This Agreement is made and entered into by public and private Water and Wastewater Utilities
31   that have, by executing this Agreement, manifested their intent to participate in an Intrastate
32   Program for Mutual Aid and Assistance.
33
34   Statutory Authority – (cite authorizing state statute, if any) This Agreement is authorized under
35   Section XXX of the (state revised statutes on mutual aid) which provides that Water and
36   Wastewater Utilities may contract with each other to provide services.
37
38                                                           Note
39
40   Water and wastewater utilities may need statutory authority to enter into agreements for Mutual Aid and Assistance.
41   If there is no statutory authority, a legal question arises as to whether such authority is necessary for a water and
42   wastewater Mutual Aid and Assistance agreement. Agreements in California, Louisiana South Carolina and Oregon
43   reference statutory authority. The Florida and Texas Agreements do not.
44
45                                                      ARTICLE I.
46                                                      PURPOSE
47
48   Recognizing that emergencies may require aid or assistance in the form of personnel,
49   equipment, and supplies from outside the area of impact, the signatory utilities hereby establish
50   an Intrastate Program for Mutual Aid and Assistance. Through the Mutual Aid and Assistance
51   Program, Members coordinate response activities and share resources during emergencies.



                                                                1                 c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1   This Agreement sets forth the procedures and standards for the administration of the Intrastate
 2   Mutual Aid and Assistance Program.
 3
 4                                                    Note on Article I
 5
 6   Article I briefly describes why water and wastewater utilities established a Program for Mutual Aid and Assistance
 7   and the purpose of the Agreement. Inclusion of this Article recognizes the spirit and intent of the Mutual Aid and
 8   Assistance Program.
 9
10                                                     ARTICLE II.
11                                                    DEFINITIONS
12
13   A. Authorized Official – An employee or officer of a Member utility that is authorized to:
14       1. Request assistance;
15       2. Offer assistance;
16       3. Refuse to offer assistance or
17       4. Withdraw assistance under this agreement.
18
19   B. Emergency – A natural or human caused event or circumstance causing, or imminently
20      threatening to cause, loss of life, injury to person or property, human suffering or financial
21      loss, and includes, but is not limited to, fire, explosion, flood, severe weather, drought,
22      earthquake, volcanic activity, spills or releases of oil or hazardous material, contamination,
23      utility or transportation emergencies, disease, blight, infestation, civil disturbance, riot,
24      intentional acts, sabotage and war that is, or could reasonably be beyond the capability of
25      the services, personnel, equipment, and facilities of a Mutual Aid and Assistance Program
26      Member to fully manage and mitigate internally.
27
28   C. Members – Any public or private Water or Wastewater Utility that manifests intent to
29      participate in the Mutual Aid and Assistance Program by executing this Agreement.
30
31       1. Associate Member – Any non utility participant, approved by the State Steering
32          Committee, that provides a support role for the WARN program, for example State
33          Department of Public Health, or associations, who are members of the Regional or State
34          Steering Committees 1 and do not officially sign the WARN agreement.
35
36       2. Requesting Member – A Member who requests aid or assistance under the Mutual Aid
37          and Assistance Program.
38
39       3. Responding Member – A Member that responds to a request for aid or assistance under
40          the Mutual Aid and Assistance Program.
41
42       4. Non-Responding Member - A Member or Associate Member that does not provide aid or
43          assistance during a Period of Assistance under the Mutual Aid and Assistance Program.
44
45   D. Confidential Information - Any document shared with any signatory of this Agreement that is
46      marked confidential, including but not limited to any map, report, notes, papers, opinion, or
47      e-mail which relates to the system vulnerabilities of a Member or Associate Member.
48
49   E. Period of Assistance – A specified period of time when a Responding Member assists a
50      Requesting Member. The period commences when personnel, equipment, or supplies
51      depart from Responding Member’s facility and ends when the resources return to their



                                                               2                 c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1       facility (portal to portal). All protections identified in the agreement apply during this period.
 2       The specified Period of Assistance may occur during response to or recovery from an
 3       emergency, as previously defined.
 4
 5   F. National Incident Management System (NIMS): A national, standardized approach to
 6      incident management and response that sets uniform processes and procedures for
 7      emergency response operations.
 8
 9                                                      Note on Article II
10
11   These terms and corresponding definitions are drawn from the eight existing water and wastewater agreements for
12   Mutual Aid and Assistance. Only the definition for emergency is noteworthy. The Model Agreement specifies a
13   definition of an emergency that includes disasters that “could reasonably be” beyond the control of the participating
14   utility. As explained in the Note for Article V below, this permits a participating utility to request assistance prior to
15   the onset of a disaster. The request for aid does NOT require a declaration of an emergency by the local or state
16   agencies, and the aid may be provided during the emergency response or recovery phases.
17
18   The term confidential information and Article XIV has been included to address the sharing of potentially security
19   sensitive information in order to facilitate an appropriate response and recovery from an incident.
20
21
22                                                     ARTICLE III.
23                                                   ADMINISTRATION
24
25   The Mutual Aid and Assistance Program shall be administered through Regional Committees,
26   as needed, and a Statewide Committee. The purpose of a Regional Committee is to provide
27   local coordination of the Mutual Aid and Assistance Program before, during, and after an
28   emergency. The designated regions are consistent with the existing public health or emergency
29   management regions of the state and include (list the regions - for example: one for the
30   Southern Region Members, one for the Northern Region Members, one for the Western Region
31   Members, and one for the Eastern Region Members). Each Region Committee, under the
32   leadership of an elected Chairperson, shall meet annually to address Mutual Aid and Assistance
33   Program issues. Each Region Committee shall also meet annually to review emergency
34   preparedness and response procedures. The Chairperson of each Regional Committee
35   represents their Regional Committee’s interests on the Statewide Committee. In addition to
36   representing the interests of the Members, the Statewide Committee includes representatives
37   from (list other organizations that may have a role to play in the Mutual Aid and Assistance
38   Program, e.g., public health, emergency management, Rural Water Association, American
39   Water Works Association, etc.). Under the leadership of the Chair, the Statewide Committee
40   members shall plan and coordinate emergency planning and response activities for the Mutual
41   Aid and Assistance Program.
42
43                                                     Note on Article III
44
45   The Model Agreement conceptualizes a Mutual Aid and Assistance Program administered through regional
46   committees and a statewide committee. Article III formalizes this approach. The concept is drawn from a provision
47   in California’ Agreement which establishes a committee system for program administration. The Model Agreement
48   outlines administering the program through regional or “local” committees that could promote coordination and help
49   resolve program issues. However, the sample agreement recognizes that a committee system for Program
50   administration may be too elaborate for some states. There are other, less formal ways to ensure efficient operation
51   of a Mutual Aid and Assistance Program. For example, the Mutual Aid and Assistance agreement could require
52   participating utilities to develop operational and planning procedures. The main objective is to have a well-




                                                                  3                   c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1   developed system for Mutual Aid and Assistance whether through establishment of a committee system or a less
 2   formal approach. The more organized the utilities are, the less apt emergency response agencies will step in.
 3
 4                                                     ARTICLE IV.
 5                                                    PROCEDURES
 6
 7   In coordination with the Regional Committees, emergency management and public health
 8   system of the state, the Statewide Committee shall develop operational and planning
 9   procedures for the Mutual Aid and Assistance Program. These procedures shall be reviewed at
10   least annually and updated as needed by the Statewide Steering Committee.
11
12                                                    Note on Article IV
13
14   Article IV recognizes that an agreement by itself may be insufficient to cover the range of issues that arise in Mutual
15   Aid and Assistance Programs. To have an efficient Program, participating utilities may need to supplement the
16   Mutual Aid and Assistance agreement with a Program guidance document that includes detailed operational and
17   planning procedures. To supplement the agreement, participating utilities develop a Mutual Aid and Assistance
18   Program Manual and a Mutual Aid and Assistance Handbook.
19
20
21                                                 ARTICLE V.
22                                          REQUESTS FOR ASSISTANCE
23
24   A. Member Responsibility: Members shall identify an Authorized Official and alternates;
25      provide contact information including 24-hour access. and maintain resource information
26      that may be available from the utility for mutual aid and assistance response. Such contact
27      information shall be updated annually or when changes occur, provided to the State
28      Steering Committee.
29
30       In the event of an Emergency, a Member’s Authorized Official may request mutual aid and
31       assistance from a participating Member. Requests for assistance can be made orally or in
32       writing. When made orally, the request for personnel, equipment, and supplies shall be
33       prepared in writing as soon as practicable. Requests for assistance shall be directed to the
34       Authorized Official of the participating Member. Specific protocols for requesting aid shall
35       be provided in the required procedures (Article IV).
36
37   B. Response to a Request for Assistance – Members of the agreement are not obligated to
38      respond to a request. After a Member receives a request for assistance, the Authorized
39      Official evaluates whether or not to respond, whether resources are available to respond, or
40      if other circumstances would hinder response. Following the evaluation, the Authorized
41      Representative shall inform, as soon as possible, the Requesting Member whether it will
42      respond. If the Member is willing and able to provide assistance, the Member shall inform
43      the Requesting Member about the type of available resources and the approximate arrival
44      time of such assistance.
45
46   C. Discretion of Responding Member’s Authorized Official – Execution of this Agreement does
47      not create any duty to respond to a request for assistance. When a Member receives a
48      request for assistance, the Authorized Official shall have sole and absolute discretion as to
49      whether or not to respond, or the availability of resources to be used in such response. An
50      Authorized Member’s decisions on the availability of resources shall be final.
51
52                                                     Note on Article V



                                                                 4                  c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1
 2   1. The Model Agreement sets a low threshold for when Members can request mutual aid and assistance. Article V
 3   permits requests for mutual aid and assistance in the event of an “Emergency.” An “Emergency” under Article II is
 4   defined as “an event that is, or is likely to be, beyond the control of the services, personnel, equipment, and facilities
 5   of a Mutual Aid and Assistance Program Member.” This definition has two noteworthy characteristics. First, the
 6   use of the word “event”, rather than “disaster”, broadens the situations in which Members can request mutual aid
 7   and assistance. Second, an Emergency includes events that are “likely to be” beyond the control of the participating
 8   utility. By including the “is likely to be” language, participating utilities can request mutual aid and assistance
 9   before an event overwhelms their resources. This approach envisions situations where pre-event response would be
10   necessary to protect human health and property. The Florida and Texas Agreements do not allow for pre-event
11   assistance requests.
12
13   2. Article V permits oral and written requests for assistance; however, when made orally, the requesting member
14   must put the request in writing as soon as practicable. This approach balances the need to make a quick and prompt
15   request with the need for accuracy.
16
17   3. The Model Agreement does not provide specific details on the type of information that must be provided when a
18   participating utility requests assistance. This can be provided in the protocols that support the agreement. This
19   approach is in contrast to the Florida and Texas Agreements that do list the information that must be provided when
20   a member makes a request for assistance. Those agreements also require a responding member to provide certain
21   information to the requesting member. Again, the Model Agreement adopted a different approach. Article V only
22   requires responding members to indicate what resources will be provided and when the resources will arrive at the
23   requesting member’s facility.
24
25   4. The Model Agreement provides participating utilities with absolute discretion when deciding whether to respond
26   a request for assistance. This is consistent with all four existing water and wastewater Mutual Aid and Assistance
27   agreements.
28
29                                               ARTICLE VI.
30                                      RESPONDING MEMBER PERSONNEL
31
32   A. National Incident Management System - When providing assistance under this Agreement,
33      the Requesting Utility and Responding Utility shall be organized and shall function under the
34      National Incident Management System.
35
36   B. Control - While employees so provided may be under the supervision of the Responding
37      Member, the Responding Member’s employees come under the direction and control of the
38      Requesting Member, consistent with the NIMS Incident Command System to address the
39      needs identified by the Requesting Member. The Requesting Member’s Authorized Official
40      shall coordinate response activities with the designated supervisor(s) of the Responding
41      Member(s). The Responding Member’s designated supervisor(s) must keep accurate
42      records of work performed by personnel during the specified Period of Assistance.
43
44   C. Food and Shelter – Whenever practical, Responding Member personnel must be self
45      sufficient for up to 72 hours. When possible, the Requesting Member shall supply
46      reasonable food and shelter for Responding Member personnel. If the Requesting Member
47      is unable to provide food and shelter for Responding personnel, the Responding Member’s
48      designated supervisor is authorized to secure the resources necessary to meet the needs of
49      its personnel. Except as provided below, the cost for such resources must not exceed the
50      State per diem rates for that area. To the extent Food and Shelter costs exceed the State
51      per diem rates for the area, the Responding Member must demonstrate that the additional
52      costs were reasonable and necessary under the circumstances. Unless otherwise agreed
53      to in writing, the Requesting Member remains responsible for reimbursing the Responding



                                                                  5                   c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1       Member for all reasonable and necessary costs associated with providing food and shelter,
 2       if such resources are not provided.
 3
 4   D. Communication – The Requesting Member shall provide Responding Member personnel
 5      with radio equipment as available, or radio frequency information to program existing radio,
 6      in order to facilitate communications with local responders and utility personnel.
 7
 8   E. Status - Unless otherwise provided by law, the Responding Member’s officers and
 9      employees retain the same privileges, immunities, rights, duties and benefits as provided in
10      their respective jurisdictions.
11
12   F. Licenses and Permits – To the extent permitted by law, Responding Member personnel that
13      hold licenses, certificates, or permits evidencing professional, mechanical, or other skills
14      shall be allowed to carry out activities and tasks relevant and related to their respective
15      credentials during the specified Period of Assistance.
16
17   G. Right to Withdraw - The Responding Member’s Authorized Official retains the right to
18      withdraw some or all of its resources at any time for any reason in the Responding
19      Member’s sole and absolute discretion. Notice of intention to withdraw must be
20      communicated to the Requesting Member’s Authorized Official as soon as soon as is
21      practicable under the circumstances..
22
23
24   1. The National Incident Management System (NIMS) provides a consistent nationwide approach that allows
25   federal, state, local and tribal governments as well as private sector and nongovernmental organizations to work
26   together to manage incidents and disasters of all kinds. To be eligible federal emergency management assistance,
27   water and wastewater mutual aid and assistance programs must meet NIMS standards for emergency preparedness
28   and response.
29
30   2. The Model Agreement promotes “home” supervisory control over personnel. This approach recognizes that
31   personnel will likely work better with their regular supervisors. To ensure an efficient response, Article VI requires
32   responding member supervisors to coordinate with the requesting member’s authorized official.
33
34   3. Article VI requires the requesting member to supply food and shelter to responding member personnel. This may
35   be too onerous given that the requesting member will be faced with an emergency when it makes a request for
36   Mutual Aid and Assistance. Accordingly, Article VI permits the requesting member to reimburse the responding
37   member for food and shelter costs rather than securing such provisions.
38
39   4. Article VI includes a provision that allows the responding member to withdraw some or all of its resources at
40   anytime. This approach limits the commitment of the responding member. If a situation arose in the responding
41   member’s facility, resources could be withdrawn as appropriate. The Model Agreement promotes assistance
42   because participating utilities would be less likely to withhold resources out of concern that they could not respond
43   to needs at their own facilities.
44
45   5. Licensing and permitting authority will most likely not be an issue for intrastate mutual aid. However, this
46   Agreement is drafted to permit assistance under the Interstate Emergency Management Assistance Compact and an
47   Interstate Mutual Aid and Assistance Program for water and wastewater utilities, if such a program were established
48   (see Article XXI). Because state issued licensing and permitting credentials vary, it is important to clarify what
49   actions and tasks responding member personnel can take when participating in interstate mutual aid and assistance.
50   The licensing and permitting provision allows the maximum utilization of the professional skills held by responding
51   member personnel. However, it does provide responding member personnel with authority to conduct activities or
52   tasks that may only be completed by those holding locally issued professional credentials.
53
54                                                      ARTICLE VII.


                                                                 6                  c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1                                     COST- REIMBURSEMENT
 2
 3   The Requesting Member shall reimburse the Responding Member for each of the following
 4   categories of costs incurred during the specified Period of Assistance as agreed in whole or in
 5   part by both parties; provided, that any Responding Member may assume in whole or in part
 6   such loss, damage, expense, or other cost, or may loan such equipment or donate such
 7   services to the Requesting Member without charge or cost.
 8
 9
10   A. Personnel – The Responding Member shall be reimbursed by the Requesting Member for
11      personnel costs incurred for work performed during the specified Period of Assistance.
12      Responding Member personnel costs shall be calculated according to the terms provided in
13      their employment contracts or other conditions of employment. The Responding Member’s
14      designated supervisor(s) must keep accurate records of work performed by personnel
15      during the specified Period of Assistance. Requesting Member reimbursement to the
16      Responding Member could consider all personnel costs, including salaries or hourly wages,
17      costs for fringe benefits, and indirect costs.
18
19   B. Equipment – The Requesting Member shall reimburse the Responding Member for the use
20      of equipment during the specified Period of Assistance, including, but not limited to,
21      reasonable rental rates, all fuel, lubrication, maintenance, transportation, and
22      loading/unloading of loaned equipment. All equipment shall be returned to the Responding
23      Member in good working order as soon as is practicable and reasonable under the
24      circumstances. As a minimum, rates for equipment use must be based on the Federal
25      Emergency Management Agency’s (FEMA) Schedule of Equipment Rates. If a Responding
26      Member uses rates different from those in the FEMA Schedule of Equipment Rates, the
27      Responding Member must provide such rates orally or in writing to the Requesting Member
28      prior to supplying the equipment. Mutual agreement on which rates are used must be
29      reached in writing prior to dispatch of the equipment. Reimbursement for equipment not
30      referenced on the FEMA Schedule of Equipment Rates must be developed based on actual
31      recovery of costs. If Responding Member must lease a piece of equipment while its
32      equipment is being repaired, Requesting Member shall reimburse Responding Member for
33      such rental costs.
34
35   C. Materials and Supplies – The Requesting Member must reimburse the Responding Member
36      in kind or at actual replacement cost, plus handling charges, for use of expendable or non-
37      returnable supplies. The Responding Member must not charge direct fees or rental charges
38      to the Requesting Member for other supplies and reusable items that are returned to the
39      Responding Member in a clean, damage-free condition. Reusable supplies that are
40      returned to the Responding Member with damage must be treated as expendable supplies
41      for purposes of cost reimbursement.
42
43   D. Payment Period – The Responding Member must provide an itemized bill to the Requesting
44      Member for all expenses incurred by the Responding Member while providing assistance
45      under this Agreement. The Responding Member must send the itemized bill not later than
46      (90) ninety dates following the end of the Period of Assistance. The Responding Member
47      may request additional periods of time within which to submit the itemized bill, and
48      Requesting Member shall not unreasonably withhold consent to such request. The
49      Requesting Member must pay the bill in full on or before the forty-fifth (45th) day following
50      the billing date. The Requesting Member may request additional periods of time within
51      which to pay the itemized bill, and Responding Member shall not unreasonably withhold


                                                      7              c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1       consent to such request, provided, however, that all payment shall occur not later than one-
 2       year after the date a final itemized bill is submitted to the Requesting Member.
 3
 4   E. Records - Each Responding Member and their duly authorized representatives shall have
 5      access to a Requesting Member’s books, documents, notes, reports, papers and records
 6      which are directly pertinent to this Agreement for the purposes of reviewing the accuracy of
 7      a cost bill or making a financial, maintenance or regulatory audit. Each Requesting Member
 8      and their duly authorized representatives shall have access to a Responding Member’s
 9      books, documents, notes, reports, papers and records which are directly pertinent to this
10      Agreement for the purposes of reviewing the accuracy of a cost bill or making a financial,
11      maintenance or regulatory audit. Such records shall be maintained for at least three (3)
12      years or longer where required by law.
13
14                                                    Note on Article VII
15
16   1. Mutual Aid programs established in the 1950s did not have cost reimbursement procedures. Rather, program
17   members would provide assistance at no charge, with the understanding that assistance would be provided to them
18   when they were in need. For those utilities that wish to abide by that principle, the initial statement of Article VII
19   allows the requesting and responding member to determine which resources could be exchanged without cost.
20   Because public resources cannot normally be provided to private organizations, this process is appropriate only
21   when the assistance is exchanged between private utilities.
22
23   2. For those utilities that seek reimbursement for services, Article VII reflects the cost reimbursement procedures set
24   forth in the four existing water and wastewater agreements for Mutual Aid and Assistance. To qualify for FEMA
25   cost-reimbursement, this Article must be included in a mutual aid agreement.
26
27   3. In general, private organizations cannot receive public funds. This rule prevents gifts of private funds to private
28   organizations. However, public funds can be used to reimburse private organizations for costs incurred as a result of
29   providing assistance to a public entity as long as the costs are identified. Accordingly, Article VII requires an
30   itemized bill for all expenses incurred during a Period of Assistance.
31
32   4. The Model Agreement suggests procedures include a penalty provision for unpaid bills. Providing a penalty
33   provision will promote timely reimbursement to the requesting member.
34
35                                                      ARTICLE VIII.
36                                                       DISPUTES
37
38   If any controversy or claim arises out of, or relates to, the execution of the Agreement, including,
39   but not limited to, alleged breach of the Agreement, the disputing Members shall first attempt to
40   resolve the dispute by negotiation, followed by mediation and finally shall be settled by
41   arbitration in accordance with the Rules of the American Arbitration Association. Any court of
42   competent jurisdiction may enter the judgment rendered by the arbitrators as final judgment that
43   is binding on the parties.
44
45                                                    Note on Article VIII
46
47   Article VIII sets forth a two-tired process for handling disputes. First, members must try negotiation. If
48   unsuccessful, then the matter must be resolved through arbitration. Arbitration is much faster and less expensive
49   than traditional civil litigation. The Rules of the American Arbitration Association are widely recognized and often
50   cited in arbitration clauses. However, a dispute resolution provision could include specific procedures for arbitration
51   rather than require use of procedures developed by the American Arbitration Association. The Florida and Texas
52   Agreements take this approach.
53
54                                                       ARTICLE IX.


                                                                 8                  c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1                               REQUESTING MEMBER’S DUTY TO INDEMNIFY
 2
 3   The Requesting Member shall assume the defense of, fully indemnify and hold harmless, the
 4   Responding Member, its officers and employees, from all claims, loss, damage, injury and
 5   liability of every kind, nature and description, directly or indirectly arising from Responding
 6   Member’s work during a specified Period of Assistance. The scope of the Requesting
 7   Member’s duty to indemnify includes, but is not limited to, suits arising from, or related to,
 8   negligent or wrongful use of equipment or supplies on loan to the Requesting Member, or faulty
 9   workmanship or other negligent acts, errors or omissions by Requesting Member or the
10   Responding Member personnel.
11
12   The Requesting Member’s duty to indemnify is subject to, and shall be applied consistent with,
13   the conditions set forth in Article X.
14
15                                                     Note on Article IX
16
17   1. Article IX sets forth a comprehensive indemnity provision. The provision requires the requesting member to
18   indemnify responding members, and their officers and, employees. This requirement protects responding members
19   from the costs associated with civil suits that may arise from, or are related to, providing Mutual Aid and Assistance.
20   The Model Agreement allows an indemnity provision that would encourage participating utilities to provide
21   assistance in the event of an emergency.
22
23   2. However, it is important to recognize that Article IX places an added burden on members that request assistance.
24   The duty to indemnify, along with other requesting member obligations set forth in the Model Agreement, may deter
25   participating utilities from utilizing the Mutual Aid and Assistance Program. An alternative approach is provided in
26   the Florida and Texas Agreements. Those agreements require each member to bear the risks associated with
27   participating in the Mutual Aid and Assistance Program. This includes the risk of facing civil liability that arises
28   from, or is related to, providing Mutual Aid and Assistance. This approach reduces the burdens on members that
29   request assistance under the Mutual Aid and Assistance Program.
30
31                                                 ARTICLE X.
32                                          SIGNATORY INDEMNIFICATION
33
34   In the event of a liability, claim, demand, action, or proceeding of whatever kind or nature arising
35   out of a specified Period of Assistance, the Members who receive and provide assistance shall
36   have a duty to defend, indemnify, save and hold harmless all Non-Responding Members, their
37   officers, agents and employees from any liability, claim, demand, action, or proceeding of
38   whatever kind or nature arising out of a Period of Assistance.
39
40                                                      Note on Article X
41
42   A lawsuit or similar action that arises from or is related to a Mutual Aid and Assistance response may name all
43   participating utilities as defendants regardless of their involved in the transaction or occurrence that gave rise to the
44   suit. Article X protects non-responding members from costs associated lawsuits or similar actions. This protection
45   would encourage participation in the Mutual Aid and Assistance Program. Water and wastewater utilities would not
46   incur additional liability by participating in the Mutual Aid and Assistance Program.
47
48                                              ARTICLE XI.
49                                     WORKER’S COMPENSATION CLAIMS
50
51   The Responding Member is responsible for providing worker’s compensation benefits and
52   administering worker’s compensation for its employees. The Requesting Member is responsible




                                                                  9                  c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1   for providing worker’s compensation benefits and administering worker’s compensation for its
 2   employees.
 3
 4                                                     Note on Article XI
 5
 6   Most state law requires the employer to provide and manage worker’s compensation for their employees.
 7   This article recognizes that the Responding Member has knowledge of the potential risks associated with
 8   deployment while providing resources to the Requesting Member(s) and the community it serves. If a member is
 9   unwilling to accept such risk they are not obligated to provide aid and assistance under the terms of this agreement.
10
11
12                                                      ARTICLE XII.
13                                                        NOTICE
14
15   A Member who becomes aware of a claim or suit that in anyway, directly or indirectly,
16   contingently or otherwise, affects or might affect other Members of this Agreement shall provide
17   prompt and timely notice to the Members who may be affected by the suit or claim. Each
18   Member reserves the right to participate in the defense of such claims or suits as necessary to
19   protect its own interests.
20
21                                                     Note on Article XII
22
23   Article XII recognizes that Members of the Agreement need to know about claims or suits that affect, or might
24   affect, them. The Article also preserves the right of a Member to defend itself in any claim or suit that affects its
25   interests.
26
27                                                      ARTICLE XIII.
28                                                      INSURANCE
29
30   Members of this Agreement shall maintain an insurance policy or maintain a self insurance
31   program that covers activities that it may undertake by virtue of membership in the Mutual Aid
32   and Assistance Program.
33
34                                                    Note on Article XIII
35
36   1. Article XIII requires members to carry insurance to protect against risks associated with participation in the
37   Mutual Aid and Assistance Program. This provision provides a secure means of covering risks associated with
38   participation in the Mutual Aid and Assistance Program.
39
40   2. A requirement to carry insurance could be an alternative to the indemnity provisions provided in Articles IX and
41   X. That is, rather than place the burden on the Requesting Member to indemnify the responding member; the
42   mutual aid and assistance agreement could provide that all members bear the risks of their own actions. The Florida
43   and Texas Agreements take this approach; however these agreements do not require participating utilities to obtain
44   insurance.
45
46                                                      ARTICLE XIV.
47                                        CONFIDENTIAL INFORMATION
48
49   To the extent provided by law, any Member or Associate Member shall maintain in the
50   strictest confidence and shall take all reasonable steps necessary to prevent the
51   disclosure of any Confidential Information disclosed under this Agreement. If any
52   Member, Associate Member, third party or other entity requests or demands, by
53   subpoena or otherwise, that a Member or Associate Member disclose any Confidential


                                                                 10                  c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1   Information disclosed under this Agreement, the Member or Associate Member shall
 2   immediately notify the owner of the Confidential Information and shall take all
 3   reasonable steps necessary to prevent the disclosure of any Confidential Information by
 4   asserting all applicable rights and privileges with respect to such information and shall
 5   cooperate fully in any judicial or administrative proceeding relating thereto.
 6
 7                                                  Note on Article XIV
 8
 9   Many state laws were updated following 9/11 to address the management of confidential information or security
10   sensitive information. Therefore it may be appropriate for parties to this agreement to establish protocols for
11   handling such information to facilitate the rapid recovery of the impacted utility.
12
13
14                                                   ARTICLE XV.
15                                                 EFFECTIVE DATE
16
17   This Agreement shall be effective after the Water and Wastewater Utility’s authorized
18   representative executes the Agreement and the applicable Regional Committee Chair receives
19   the Agreement. The Regional Committee Chair shall maintain a list of all Members in the
20   respective region. The Statewide Committee Chair shall maintain a master list of all members
21   of the Mutual Aid and Assistance Program.
22
23                                                  Note on Article XV
24
25   Article XV provides a standard approach on the process for participation in the Mutual Aid and Assistance Program.
26
27                                                   ARTICLE XVI.
28                                                   WITHDRAWAL
29
30   A Member may withdraw from this Agreement by providing written notice of its intent to
31   withdraw to the applicable Regional Committee Chair and the Statewide Chair. Withdrawal
32   takes effect 60 days after the appropriate officials receive notice. Withdrawal from this
33   Agreement shall in no way affect a Requesting Member’s duty to reimburse a Responding
34   Member for cost incurred during a Period of Assistance, which duty shall survive such
35   withdrawal.
36
37                                                  Note on Article XVI
38
39   Article XVI recognizes that a Member may decide to withdraw from Mutual Aid and Assistance Program.
40
41                                                  ARTICLE XVII.
42                                                  MODIFICATION
43
44   No provision of this Agreement may be modified, altered or rescinded by individual parties to the
45   Agreement. Modifications to this Agreement may be due to programmatic operational changes
46   to support the agreement, legislative action, creation of an interstate aid and assistance
47   agreement, or other developments. Modifications require a simple majority vote of Members
48   within each region and a unanimous agreement between the regions. The Statewide
49   Committee Chair must provide written notice to all Members of approved modifications to this
50   Agreement. Approved modifications take effect 60 days after the date upon which notice is sent
51   to the Members.
52



                                                              11                 c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1                                                  Note on Article XVII
 2
 3   Article XVII recognizes that members may want to modify the Program agreement. There may also be
 4   circumstances that require modification of the Program agreement. For example, creation of an interstate water and
 5   wastewater utility Mutual Aid and Assistance Program may require agreement modifications.
 6
 7                                                  ARTICLE XVIII.
 8                                                  SEVERABILITY
 9
10   The parties agree that if any term or provision of this Agreement is declared by a court
11   of competent jurisdiction to be illegal or in conflict with any law, the validity of the
12   remaining terms and provisions shall not be affected, and the rights and obligations of
13   the parties shall be construed and enforced as if the Agreement did not contain the
14   particular term or provision held to be invalid.
15
16
17                                                  Note on Article XVIII
18
19   Conflict with one article of the agreement does not void the entire agreement.
20
21                                                  ARTICLE XIX.
22                                               PRIOR AGREEMENTS
23
24   This Agreement supersedes all prior Agreements between Members to the extent that such
25   prior Agreements are inconsistent with this Agreement.
26
27                                                   Note on Article XIX
28
29   Members of the Mutual Aid and Assistance Program may already have assistance agreements in place with utilities.
30   Article XIX ensures that existing assistance agreements do not interfere with the operation of the intrastate Mutual
31   Aid and Assistance Program.
32
33                                     ARTICLE XX.
34            PROHIBITION ON THIRD PARTIES AND ASSIGNMENT OF RIGHTS/DUTIES
35
36   This Agreement is for the sole benefit of the Members and no person or entity must have any
37   rights under this Agreement as a third party beneficiary. Assignments of benefits and
38   delegations of duties created by this Agreement are prohibited and must be without effect.




                                                               12                     c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc
 1                                                    Note on Article XX
 2
 3   Article XX covers issues of contract law that may interfere with the operation of the Mutual Aid and Assistance
 4   Program. The prohibition on third-party beneficiaries limits all rights and benefits under the agreement to
 5   participating utilities. Thus, a local government could not assert rights under this agreement as a third-party
 6   beneficiary. Article XX also prohibits the assignment of benefits created by the agreement to third parties. In other
 7   words, a participating utility could not assign its ability to request mutual aid and assistance to a non-participating
 8   utility. Prohibiting the delegation of duties ensures that only the participating utilities are involved in the Mutual
 9   Aid and Assistance Program.
10
11                                     ARTICLE XXI.
12            INTRASTATE AND INTERSTATE MUTUAL AID AND ASSISTANCE PROGRAMS
13
14   To the extent practicable, Members of this Agreement shall participate in Mutual Aid and
15   Assistance activities conducted under the State of XXX Intrastate Mutual Aid and Assistance
16   Program and the Interstate Emergency Management Assistance Compact (EMAC). Members
17   may voluntarily agree to participate in an interstate Mutual Aid and Assistance Program for
18   water and wastewater utilities through this Agreement if such a Program were established.
19
20                                                    Note on Article XXI
21
22   At least 13 states have an overarching statewide mutual aid program. Article XXI requires coordination with the
23   statewide mutual aid program, if one exists. Additionally, Article XXI permits participation in an interstate water
24   and wastewater mutual aid program if one were established.
25
26   Now, therefore, in consideration of the covenants and obligations set forth in this Agreement,
27   the Water and Wastewater Utility listed here manifests its intent to be a Member of the Intrastate
28   Mutual Aid and Assistance Program for Water and Wastewater Utilities by executing this
29   Agreement on this ___________ day of __________ 20XX.
30
31   Water/Wastewater Utility:
32
33
34   By:                                                                       By:
35
36   Title:                                                                    Title
37
38
39            Please Print Name                                                Please Print Name
40
41
42                                                                             Approved as to form and legality
43
44
45                                                                             By:
46                                                                                        Attorney for Utility
47
48
49                                                                                        Please Print Name
50




                                                                13                     c5f3b1bb-3c7c-4289-947b-469afeeaeaff.doc

				
DOCUMENT INFO
Description: Mutual Loan Agreement document sample