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19940927 1994-24ORDINANCE NO. 1994- 24 AN ORDINANCE APPROVING AN AGREEMENT AMONG FAIRFAX COUNTY, VIRGINIA, THE CITY OF FALLS CHURCH, VIRGINIA, AND THE CITY OF FAIRFAX, VIRGINIA, FOR THE JOINT EXERCISE OF POWERS REGARDING THE ESTABLISHMENT OF THE FAIRFAX AREA DISABILITY SERVICES BOARD. BE IT ORDAINED, by the City Council of the city of Fairfax, Virginia, that the Council hereby approves an agreement among Fairfax County, Virginia, the City of Falls Church, Virginia, and the city of Fairfax, Virginia, for the joint exercise of powers regarding the establishment of the Fairfax Area Disability Services Board. The terms and conditions of the Agreement are as follows: Joint Exercise of Powers Agreement For the Fairfax Area Disability Services Board The Board of Supervisors of the County of Fairfax, Virginia, the City Council of the City of Falls Church, Virginia, and the City Council of the City of Fairfax, Virginia, which comprise the Fairfax Area Disability Services Board (hereinafter referred to as the FA-DSB), hereby enter into this interjurisdictional Agreement which shall govern the FA-DSB and shall be deemed to constitute that agreement required by Section 15.1-21, Code of Virginia, as amended, for the joint exercise of the powers of local jurisdictions. Section I. Duration The FA-DSB and this Agreement shall exist in perpetuity, subject, however, to dissolution and amendment under one of the following conditions: The FA-DSB may be dissolved at any time by agreement of the governing bodies of the participating jurisdictions therein. In the event the governing body of any participating jurisdiction desires to withdraw, it may do so provided it has given six (6) months notice to each of the participating jurisdictions. Such notice shall be in writing, and the withdrawing jurisdiction shall remain liable for any agreed upon financial commitments and expenditures incurred prior to such notice of with- drawal. The withdrawal of a participating jurisdiction will not dissolve the FA-DSB, provided that this Agreement and the Bylaws of the FA-DSB are amended to reflect such withdrawal. This Agreement may be amended at any time by the concur- rence of the governing bodies of all of the participat- ing jurisdictions. Section II. Purpose A. The purposes for which the FA-DSB is created are: 1994-24 1. To serve as and exercise the duties and responsibilities of the local Disability Services Board for the parti- cipating jurisdictions as specified in Sections 51.5-47 through 51.5-52 of the Code of Virginia, and as provided for in the Guidelines for the Establishment of Local Disability Services Boards developed by the Commonwealth of Virginia Disability Services Council ("Council"). 2. To provide input to state and local agencies on service needs and priorities of persons with physical and sensory disabilities. 3. To provide information and resource referral to local governments regarding the Americans with Disabilities Act (hereinafter referred to as the ADA). 4. To provide such other assistance and advice to local governments as may be requested. Section III. Manner of Financing Staff support will be provided by the Commonwealth of Virginia, Department of Rehabilitative Services ("Depart- ment'') with appropriate consultation from the Department for the Visually Handicapped and the Department for the Deaf and Hard-of-Hearing. Jurisdictions participating in this agreement may provide supplemental staff support to the FA- DSB at their own expense. Supplemental staff provided by a participating jurisdiction will remain employees of their jurisdictions and subject to their jurisdiction's personnel rules and procedures. B. FA-DSB expenditures will be reimbursed to the extent of general fund appropriations by the State of Virginia. Such appropriations for the support of the Disability Services Boards will be administered through the Department. C. The County of Fairfax Director of Finance is the designated Fiscal Agent for the FA-DSB for purposes of receiving, maintaining and disbursing any funds. The FA-DSB is respons- ible for determining its budget needs and preparing and submitting an approved budget to the governing bodies of the participating jurisdictions as appropriate. D. As specified in Section 51.5-50 of the Code of Virginia, incentive funds may be appropriated by the General Assembly and administered in accordance with guidelines established by the Council. The authority and responsibilities regarding incentive funds of the Council, the department, the FA-DSB and its participating jurisdictions are addressed in Sections 51.548 through 51.5-51 of the Code of Virginia. Any es- tablishment and use of incentive funds by the FA-DSB will be within the parameters specified in those sections. As specified in Section 51.5-49(B) (2) of the Code of Virginia, the Council shall develop a grant allocation system which requires a local match and annual guidelines for the grant applications for the state rehabilitative services incentive fund. The local match may be either public or private funds, or a combination, but in-kind contributions shall not be considered in the local match unless speci- fically approved by the Council. The Department shall distribute the guidelines to the local disability services boards annually. ae 1994-24 Fe Ge As specified in Section 51.5-51 of the Code of Virginia, the FA-DSB may establish a local rehabilitative services incen- tive fund and may make expenditures from such fund to meet programmatic and individual recipient needs not otherwise met through existing federal, state, or local programs to develop community programs to meet the needs of persons with physical and sensory disabilities. If the FA-DSB establishes such a fund, the County of Fairfax Director of Finance shall ad- minister the fund as the designated fiscal agent for the FA- DSB. In accordance with Section 51.5-51, the availability of this local fund shall not be taken into consideration in, nor used to reduce, state or local appropriations or pay- ments. Application for disability services incentive funds, when appropriated by the General Assembly, is at the option of the FA-DSB. In addition, the FA-DSB may apply for grants and other funds from additional sources. Any funding application is subject to prior approval of the governing bodies of the participating jurisdictions. The FA-DSB does not have the authority to obligate its participating jurisdictions in an amount greater than the funding approved by the governing bodies of the participating jurisdictions. Commitment of local funds from the parti- cipating jurisdictions must be in writing. Methods of funding, extent of obligations to be incurred, and local financial participation shall be as set forth in an expenditure plan approved by the governing bodies of the participating jurisdictions. If Rehabilitative Services Incentive Funds are received by the FA-DSB, such funds will be administered through the designated fiscal agent in accordance with the approved expenditure plan as specified in the grant. In accordance with Section 51.5-47(E) of the Code of Virqinia, participating jurisdictions to this Agreement shall not be mandated to fund any recommendations made by the FA- DSB. Section IV. Organization and Composition ae Bo The FA-DSB will consist of fifteen (15) members, the maximum number allowed by Section 51.5-47 of the Code of Virqinia, including at least one local official from each of the participating jurisdictions, two representatives of the business community, and consumers. The FA-DSB will have no less than 30 percent (5 persons) representation by indiv- iduals or family members of individuals with physical, visual, or hearing disabilities and the Fairfax County Board of Supervisors shall assure this 30 percent through its appointment to the FA-DSB. The members of the FA-DSB shall be appointed on the following basis and shall serve in accordance with this Agreement and the Bylaws of the FA-DSB: Fairfax County Districts: Appointed by Fairfax County Board of Supervisors upon one recommendation from each Board member 1994-24 Fairfax County At-Large: Appointed by Fairfax County Board of Supervisors upon recommendation of the Chair, Fairfax County Board of Supervisors m Fairfax County At-Large from the business community: Appointed by Fairfax County Board of Supervisors upon recommendation of the Chair, Fairfax County Board of Supervisors city of Fairfax local official: Appointed by Fairfax City Council 1 - city of Falls Church local official: Appointed by Falls Church City Council Fairfax County At-Large local official: Appointed by the Fairfax County Board of Supervisors upon recommenda- tion of the Chair, Fairfax County Board of Supervisors An alternate may be appointed from each of the cities. Ce To assure stability of membership and retention of exper- ienced members of the FA-DSB initial terms of members of the FA-DSB shall be staggered to insure that not all board members will be replaced at any one time. O O O one third of the members will serve for a term of one year from the date of approval of this Agreement. one third of the members will serve for a term of two years from the date of approval of this Agreement. one third of the members will serve for a term of three years from the date of approval of this Agreement. Thereafter, members will be appointed to three-year terms. A board member may be reappointed for up to two consecutive three-year terms. Persons may be reappointed after being off the FA-DSB for three years. Vacancies will be filled for the balance of the term by the governing body of the participating jurisdiction which orig- inally made the appointment of the member who has created the vacancy. The FA-DSB may make such rules of procedure (Bylaws) as it shall deem necessary and proper for the conduct of its business not inconsistent with this Agreement and shall hold meetings monthly. Meetings shall be conducted in conformance with the Virginia Freedom of Information Act. Ee The FA-DSB shall be responsible to the member jurisdictions to this Agreement which established the FA-DSB. Section V. Duties and Responsibilities of the Board ae Subject to the limitations contained in this Agreement and the Bylaws adopted by the FA-DSB, which Bylaws shall be subject to the provisions of this Agreement, the FA-DSB shall have all lawful powers conferred by this instrument and shall conduct and control the general policies and directions of the FA-DSB as specified in Section 51.5-47 through 51.5-52 of the Code of Virginia. 4 1994-24 Be Ce The FA-DSB shall have the following powers and duties as set forth in Section 51.5-48 of the Code of Virginia: Assess and evaluate the local service needs and existing services and advise the appropriate state and local agencies serving persons with physical and sensory disabilities of their findings; soliciting public comment as needed. Develop and make available for public comment a report with a six-year projection of local service needs, service delivery recommendations and priorities for persons with physical and sensory disabilities in accordance with state guidelines. Obtain input from persons with disabilities, and local public and private service providers and utilize such information in the development of the assessment report. o Review and update the assessment report biennially. Serve as a catalyst for the development of public and private funding sources. Develop requests to the state rehabilitative services incentive fund when local funding for match is iden- tified. Administer the incentive funds, if received, through the FA-DSB designated fiscal agent, the County of Fairfax Director of Finance, in accordance with an approved expenditure plan as specified within the grant. Exchange information with other local disability services boards and local organizations within the community regarding services to persons with physical and sensory disabilities and best practices in the delivery of services. The FA-DSB will provide input to state agencies on service needs and priorities of persons with physical and sensory disabilities. The FA-DSB will provide information and resource referral to local governments on the ADA. In addition, the FA-DSB may: Develop and support linkages between services to improve the continuum of services for persons with disabilities. Advise the governing bodies of the participating juris- dictions regarding issues of importance to persons with disabilities. Respond to mandates and regulations from the Council, and requests, inquiries and directives from the County of Fairfax Board of Supervisors, the Fairfax City Council and the Falls Church City Council. Provide oversight of ADA implementation in Fairfax County and monitor compliance with federal, state and local laws regarding disabilities. 1994-24 Inform and educate the public and persons with dis- abilities as well as policy makers at the federal state and local levels about disability issues, barriers, and options to ensure that persons with disabilities can participate in society and the workplace to the fullest extent possible. Develop procedures to facilitate the FA-DSB's perform- ance of duties. o Advocate for the rights of persons with disabilities. De o Document requests and actions taken on constituent queries. o Identify unmet needs and conduct such other activities which may be permitted by law and the participating jurisdictions. The participating jurisdictions retain the right to determine funding commitments on any recommendations made by the FA- DSB. Participating jurisdictions are not mandated to fund or follow any recommendations made by the DSB. Personal Care Attendants or Assistants may be used to help members overcome their disabilities in order to execute the functions of their office. Section VI. Administrative Authority of the Board ae To make application for and to accept grant funding at any time from any private or charitable source, or federal, state or local government or any agency or instrument thereof, subject to prior approval of the governing bodies of the participating jurisdictions. B. To adopt procedural rules necessary to conduct business. Section VII. Legal Services to the Board The County Attorney of the County of Fairfax, Virginia ("County Attorney") shall be the general counsel to the FA-DSB. Further, the County Attorney shall represent, without charge, all officers, employees, volunteers, and members of the FA-DSB with respect to any claim or cause of action of any nature arising from the conduct of such officers, employees, volunteers, and members in the discharge of their duties as officers, employees, volun- teers, and members of the FA-DSB. Said conduct is hereby deemed to include but is not limited to administrative and professional malpractice, as well as acts committed or alleged to be committed which result in or are alleged to result in deprivations of rights, privileges, and immunities guaranteed by the United States or Virginia Constitutions, or of any statute affording a cause of action for damages or injunctive relief for such deprivations. In the event of a real or potential conflict of interest involving the County Attorney's representation of the officers, employees, volunteers, and members of the FA-DSB on any claim, lawsuit, or combination of claims or lawsuits; and in the event that any such conflicts of interest or other ethical considerations might impede effective representation and legal defense by the County Attorney, the County Attorney shall be authorized to retain additional counsel, at his discretion, to represent any officers, employees, volunteers, and members of the FA-DSB who shall in his opinion require such counsel. 1994-24 Section VII. Liability and Insurance Coveraqe of the Board The three jurisdictions hereby agree to indemnify to the extent not otherwise covered by insurance or self-insurance, and only to the extent authorized by law, the members, officers, employees, and volunteers of the FA-DSB as follows: (a) The FA-DSB and all officers, employees, volunteers, and members of the FA-DSB who become legally obligated to pay any claims (other than criminal penalties), including but not limited to settlement, suits, satisfaction of judgments, costs, or award of attorney's fees, arising from the conduct of said officers, employees, volunteers, and members in the discharge of their duties, shall only be entitled to indem- nification therefor where the claim shall have been un- animously determined by the City Managers of the City of Fairfax and the City of Falls Church and the County Executive of the County of Fairfax, to have resulted from actions which: were done in good faith; and were done in reasonable belief that such activities were in the best interest of the FA-DSB and in the furtherance of its official practices and policies; and were within the scope of authority of the person so acting; and were within the course of employment of the person so acting; and were not willful, malicious, or wanton. The unanimous determination of the City Managers and the County Executive as to whether the conduct of any such officer, employee, volunteer, or member satisfies the requirements of subsections (1) - (5) shall be final. (b) The FA-DSB is authorized to continue to seek liability insurance policies for itself and for its officers, employ- ees, volunteers, and members with legal defense of claims thereunder to be provided in accordance with the terms of the policies of insurance. The County Attorney shall represent officers, employees, volunteers, and members to the extent deemed necessary by him to supplement legal counsel provided under said liability insurance policies. (c) In no event shall legal fees be paid on behalf of officers, employees, volunteers, and members of the FA-DSB, or legal counsel provided by the County Attorney for the defense of acts committed by officers, employees, volunteers, and members in violation of criminal laws, nor shall any fines or penalties imposed for criminal conduct be indemnified by the jurisdictions. (d) Claims filed against the FA-DSB, its members, officers, employees or volunteers may be settled for amounts of $25,000 or less, including costs and expenses incident to liability, compromise settlement, suits or satisfaction of judgments, arising from the conduct of its officers, employees, volun- teers, and members of the FA-DSB in the discharge of their duties at the unanimous discretion of the City Managers and County Executive after appropriate investigation. Settle- ments in excess of $25,000 shall require the approval of the 1994-24 Board of Supervisors of Fairfax County and the City Councils of the City of Fairfax and the City of Falls Church. (e) The costs of litigation, settlements, and judgments and other liabilities incurred under the authority of this section, exclusive of the costs for the County Attorney, shall be shared pro rata among the County of Fairfax, the city of Fairfax and the City of Falls Church based on the percentage of the aggregate population of all jurisdictions. The population estimates, current at the time the incident occurred, of the Tayloe-Murphy Institute will be recognized and used for the purpose of the computation of the pro rata shares. (f) Nothing contained in this section shall be construed to abrogate or waive any defense of governmental immunity on behalf of the FA-DSB or of its officers, employees, volun- teers, and members or of the member jurisdictions. (g) If the jurisdictions do not unanimously agree on entitlement to indemnification in accordance with paragraph (2)(a) or a settlement in accordance with paragraph (2)(d), any of the jurisdictions may proceed independently to provide entitle- ment and a settlement but that jurisdiction becomes respons- ible for the cost of litigation, settlements, and judgments and other liabilities incurred under the authority of this section. Section IX. Property The FA-DSB does not intend to acquire, hold, or dispose of any real or personal property, except for grants and other funds which will be received, maintained and disbursed by the FA-DSB in accordance with Section III of this Agreement. If it becomes necessary for the FA-DSB to acquire, hold or dispose of any real or personal property, this Agreement shall be amended to reflect the manner in which such property will be acquired, held and disposed. Section X. Termination Termination of this cooperative endeavor shall occur only as provided for in Section I. In the event this Agreement is ter- minated, payment and/or credit for the furnishing and use of real property owned by a participant shall be adjusted to the date of termination. All property shall be scheduled and valued by or at the direction of the FA-DSB and distributed in kind to the par- ticipants as nearly as is feasible in the same proportion as they contributed to acquiring it; provided, however, that one or more participants may purchase the interest of one or more others in the property. Section XI. Miscellaneous This Agreement shall be approved and effective in the respective participating jurisdictions upon its passage by the governing bodies of the participating jurisdictions by ordinance. If any provision of this Agreement is found to be void by a court of competent jurisdiction, such void provision shall not void the entire Agreement, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. 1994-24 IN WITNESS WHEREOF, the participating jurisdictions have caused their names to be signed and attested by their duly authorized officials. COUNTY OF FAIRFAX ATTEST: Chairman Board of Supervisors Date ATTEST: CITY OF FAIRFAX the City Council Date CITY OF FALLS CHURCH By. Mayor of the City Council ATTEST: Date This ordinance shall become effective as provided by law. INTRODUCED PUBLIC HEARING ADOPTED :September 13, 1994 :September 27, 1994 :September 27, 1994 ATTEST: ~ ~ty Clerk 9 Date