CITY COUNCIL: Resolution Authorizing Interim Agreement with City of Monterey for Fire Department Administrative & Division Chief Services

Meeting Date: December 2, 2008
Prepared by: George Rawson,
Public Safety Director

City Council
Agenda Item Summary

Name: Consideration of a Resolution authorizing an interim agreement with the City of Monterey to provide Fire Department administrative and Division Chief services.

Description: As a result of the merger between the Pacific Grove and Monterey fire departments, the existing fire services agreement between the cities of Pacific Grove and Carmel will terminate on December 16, 2008. The City of Monterey has proposed an interim fire services agreement to offer continuity of administrative services and Division Chief (Duty Chief) coverage to Carmel. The City Administrator requests approval of the draft interim agreement.

Overall Cost:
City Funds: $ 11,250 per calendar month (funds are appropriated in the Fire Department FY 08-09 budget to cover this expense).
Grant Funds: N/A

Staff Recommendation: Adopt the Resolution to allow the Monterey Fire Department to provide administrative and Division Chief services formerly provided by the Pacific Grove Fire Department to the City of Carmel-by-the-Sea.

Important Considerations: This fire services agreement will continue to preserve the quality of the firefighting system and the activities associated with effective fire protection. Approval of this agreement will provide staff additional time to further study and recommend the best option for future long-term administrative and Division Chief services.

Decision Record: Resolution 2008-32, authorizing execution of a fire services agreement with City of Pacific Grove to provide fire administrative services.

Reviewed by:

_________________________________ ______________________
Rich Guillen, City Administrator Date


TO: MAYOR McCLOUD AND COUNCIL MEMBERS
THROUGH: RICH GUILLEN, CITY ADMINISTRATOR
FROM: GEORGE E. RAWSON, PUBLIC SAFETY DIRECTOR
DATE: NOVEMBER 12, 2008
SUBJECT: CONSIDERATION OF A RESOLUTION AUTHORIZING AN INTERIM AGREEMENT WITH THE CITY OF MONTEREY TO PROVIDE FIRE DEPARTMENT ADMINISTRATIVE AND DIVISION CHIEF SERVICES
__________________________________________________________________
I. RECOMMENDED MOTION:
Adopt the Resolution.

II. BACKGROUND:
For the past eight years, the Carmel Fire Department has been managed by the Pacific Grove Fire Chief, pursuant to yearly agreements. The first in a series of agreements began on November 17, 2004, with subsequent, annual renewal. The Public Safety Director has overseen the contract and has worked closely with Pacific Grove Fire Chief Andrew Miller to ensure the Carmel Fire Department operates at or above standards relating to all aspects of fire protection.

The latest agreement expires on December 15, 2008, and can not be renewed since the Pacific Grove Fire Department has combined with the Monterey Fire Department. The decision by Pacific Grove to merge with the Monterey Fire Department was preceded by exhaustive research, planning and public collaboration between the two cities. The end result was ratification of an agreement between Monterey and Pacific Grove to proceed with a fully integrated fire protection merger contract. Consequently, the Pacific Grove Fire Department staff will transition to become City of Monterey employees, and all functions related to command, administration, and operations of the Pacific Grove Fire Department will become the responsibility of the Monterey Fire Department.

III. STAFF REVIEW:
Through the imminent “Pacific Grove-Monterey” merger, the concept of the City of Carmel-by-the-Sea contracting with Pacific Grove for administrative fire services is no longer viable. Carmel must identify, choose, and implement a future option to best ensure proper management of all aspects of its fire protection system. Because time is critical, staff has worked with the City of Monterey to draft an interim agreement that is very similar to the Pacific Grove contract. A copy of the proposed contract is attached as Exhibit “A.”.

Under the terms of the contract, the City of Monterey will provide “Fire Administration and Duty Division Chief” services to the City of Carmel-by-the-Sea. The Monterey agreement will become effective upon expiration of the Pacific Grove agreement, thus ensuring a continuity of management of the Carmel Fire Department. The City of Monterey has agreed to maintain the same billing rate ($11,250 per month), as approved in the 2008 Pacific Grove-Carmel contract. Funds are budgeted in the FY 08-09 Fire Department contractual account to continue paying expenses for contract fire administrative services.

IV. FISCAL IMPACT:
There is no adverse fiscal impact; FY 08-09 fire budget account 72053 (Contractuals) allocates funds for fire services contract costs.

V. SUMMARY:
The supervision of the Carmel Fire Department by the Monterey Fire Department will ensure our fire department continues to be managed in accordance to state statutes. The Monterey Fire Chief is committed to provide the best service possible to ensure the City of Carmel-by-the-Sea continues to receive capable, responsive fire protection.


CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
RESOLUTION NO. 2008-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARMEL-BY-THE-SEA AUTHORIZING AN INTERIM AGREEMENT WITH THE CITY OF MONTEREY TO PROVIDE FIRE ADMINISTRATIVE AND DIVISION CHIEF SERVICES TO THE CITY OF CARMEL-BY-THE-SEA
__________________________________________________________________

WHEREAS, the City of Carmel-by-the-Sea contracts with the City of Pacific Grove to receive fire administrative and Division Chief services; and

WHEREAS, on December 16, 2008, the City of Pacific Grove will no longer provide fire services to Carmel as a result of its consolidation with the Monterey Fire Department; and

WHEREAS, the City of Carmel-by-the-Sea desires continued assistance with administering the Fire Department, including Division Chief services; and

WHEREAS, the City of Monterey has offered to recommence the fire services previously provided by the City of Pacific Grove at the same billing rate stipulated in the Carmel– Pacific Grove 2008 contract.

NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA DOES:

1. Authorize the City Administrator to execute an interim Fire Services Agreement with the City of Monterey as specified in Exhibit “A” attached hereto.

2. Authorize funds from Fire Department account 72053 (Contractuals) be used for payment to the City of Monterey for services related to this agreement.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this 2nd day of December 2008 by the following roll call vote:

AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:

SIGNED:

_____________________
Heidi Burch, City Clerk

ATTEST:

______________________
SUE McCLOUD, MAYOR


Exhibit “A”
AGREEMENT TO PROVIDE LIMITED FIRE SERVICES
BETWEEN THE CITIES OF MONTEREY AND CARMEL-BY-THE-SEA
THIS AGREEMENT, made and executed this day of December 2, 2008 by and between the CITY OF MONTEREY, a municipal corporation, herein after referred to as "Monterey", and the CITY OF CARMEL-BY -THE-SEA, a municipal corporation, hereinafter referred to as "Carmel" (collectively referred to as “the Parties”), provides as follows:

RECITALS
WHEREAS, Carmel desires to contract with Monterey for the provision of Fire Administration and Duty Division Chief services within its jurisdiction; and

WHEREAS, it is the desire of the Parties to address, by this Agreement, all matters which are related to the services to be provided to Carmel by Monterey; and

WHEREAS, this Agreement is entered into pursuant to Government Code § 54981 and §55632.

AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual advantages to be derived therefrom, and in consideration of the mutual covenants herein contained, it is mutually agreed by and between the Parties hereto as follows:

ARTICLE I
TERM OF AGREEMENT
1.1 Initial Term. The term of this Agreement shall be from 12:00 midnight on December 15, 2008 through 11:59 p.m. on February 28, 2009.

1.2 Extension of Term. This Agreement may be extended by mutual agreement of the Parties conditioned upon joint commitment and good faith effort to develop and execute a successor agreement for full fire department services.

1.3 Termination. Notwithstanding Section 1.1 or 1.2 of this Agreement, either party may terminate this Agreement by providing thirty (30) calendar days written notification to the other party, and the term of this Agreement or any extension thereof shall be shortened accordingly. Written notice of termination shall be provided to the City Manager of the affected city with duplicate notification to the Fire Chief.

ARTICLE II
DUITES OF MONTEREY UNDER THIS AGREEMENT
2.1 Scope of Services. Monterey shall provide fire services within the geographical boundaries of Carmel as more specifically described in Section 2.2 of this Article. In providing such services, Monterey shall administer the provisions of the Carmel Fire Code and other Carmel rules, regulations, policies and procedures as applicable to this Agreement. Throughout the term of the Agreement and as needed or requested by Carmel, Monterey shall consult with Carmel regarding Monterey’s implementation of the provisions of this Agreement.

2.2 Description of Fire Services to be provided by Monterey. Monterey’s duties to provide fire services under this Agreement shall be as follows:
(a) Fire Department Administration. Monterey shall provide the following administrative and support services necessary to maintain fire services within Carmel:
(i) Administrative oversight and management of all services and activities of the Carmel Fire Department Operations and Training Divisions as authorized by the Carmel City Council and funded within the current fiscal year Carmel fire services budget.
(ii) Coordination, development, and administration of the annual Carmel fire services budget.
(iii) Coordination and administration of Carmel Fire Department sub-programs as authorized and funded within the current fiscal year Carmel fire services budget.
(iv) Administrative oversight of the Carmel Fire Department training program to
ensure conformance with all mandated federal and state training requirements, and any additional training as may be authorized and funded within the current fiscal year Carmel fire services budget.
(v) Coordination of procurement of all operational supplies services, and equipment
as authorized by the Carmel City Council and funded within the current fiscal year Carmel fire services budget.
(vi) Administrative oversight of emergency incident operations to ensure conformance with applicable laws, regulations, policies, procedures, and accepted industry standards.
(vii) Administrative coordination and representation with other Carmel City departments, external cooperating agencies, and other applicable stakeholders.
(viii) The Monterey Fire Chief, while remaining an employee of Monterey, shall be designated as the Fire Chief of the Carmel Fire Department for purposes of statutory regulations and overall administrative management of the Carmel Fire Department. The Monterey Assistant Fire Chief, while remaining an employee of Monterey, shall be designated as the Assistant Fire Chief of the Carmel Fire Department for purposes of statutory regulations and overall administrative oversight and management of the Training and Operations Divisions of the Carmel Fire Department.
(b) Emergency Incident Response and Management. Monterey shall provide operational
response and management of emergency incidents identified in Sections 2.2(b)(i)-(ii) below within the incorporated limits of Carmel.
(i) Chief Officer Coverage. Monterey shall provide a qualified Chief Fire Officer, or
qualified Acting Chief Fire Officer, to be immediately available for response and management of emergency incidents as necessary to provide incident command and coordination functions in conformance with state and federal laws, regulations, and accepted industry standards.
a. In the event that this service is not immediately available due to the onduty Monterey Duty Chief Officer being otherwise committed to another emergency incident, an administrative Chief Officer, off-duty Chief Officer, or qualified Acting Chief Officer shall be recalled and assigned to provide operational Duty Chief Officer coverage as soon as possible.
b. Monterey shall provide all transportation and equipment necessary to provide these services.
(ii) Major Disaster Response. In the event of a major emergency or disaster in Carmel, Monterey will, to the extent possible, provide support to the Carmel Emergency Operations Center (EOC). In the event of a multi-jurisdictional emergency or disaster, coordination of fire resources may be provided from the Monterey Emergency Operations Center.

ARTICLE III
DUTIES OF CARMEL UNDER THIS AGREEMENT
3.1 Payment for Fire Services. Carmel agrees to compensate Monterey for all services provided pursuant to the terms and conditions of this Agreement as follows:
(a) $11,250.00 per calendar month, prorated at $375.00 per day, or any portion of a day, for services provided during any partial calendar month.
(b) Carmel agrees to remit to Monterey the monthly fee in arrears of services provided on or before the 15th day of each month. The initial monthly payment of $6,000.00 shall be due on or before January 15, 2009 for services provided from December 16, 2008 through December 31, 2008. Thereafter, monthly payments of $11,250.00 shall be due on or before the 15th of each calendar month.
(c) In the event Carmel fails to pay the entire amount described in Section 4.1(b) above within thirty (30) days of the due date, interest shall accrue to the unpaid balance at an annual equivalent rate equal to the Prior Year Penalty Factor, determined from the date the payment was originally due. The Prior Year Penalty Factor shall be the interest rate earned on Monterey’s entire investment portfolio or the preceding fiscal year plus two percent (2%). For example, if the rate of return on Monterey’s entire investment portfolio for the preceding fiscal year was four percent (4%), the Prior Year Penalty Factor will be six percent (6%).

ARTICLE IV
INDEMNIFICATION AND INSURANCE
4.1 Mutual Indemnification.
(a) Each Party shall indemnify, defend and hold harmless the other party, to the extent allowed by law and in proportion to fault, against any and all third-party liability for claims, demands, costs or judgments (direct, indirect, incidental or consequential) involving bodily injury, personal injury, death, property damage or other costs and expenses (including reasonable attorneys’ fees, costs and expenses)
arising or resulting from the acts or omissions of its own officers, agents, employees or representatives carried out pursuant to the obligations of this Agreement.
(b) Each Party shall protect, defend, indemnify and hold harmless the other party (including their officials, employees and agents as the same may be constituted now and from time to time hereafter) from and against any and all liabilities, losses, damages, expenses or costs, whatsoever (including reasonable attorneys’ fees, costs and expenses), which may arise against or be incurred by the other Party as a result of or in connection with any actual or alleged breach of this Agreement by either
Party.

4.2 Mutual Indemnification Obligations Survive Termination. As to activities occurring or being carried out in performance of this Agreement and during the term of this Agreement, the obligations created by Section 8.1 shall survive termination of this Agreement.

4.3 Public Liability and Property Insurance.
(a) Each Party shall maintain in effect, at its own cost and expense, the following
insurance coverage provided either through a bona fide program of self-insurance, commercial insurance policies, or any combination thereof:
(i) Commercial general liability or public liability with minimum limits of
$1,000,000 per occurrence and $2,000,000 in the aggregate.
(ii) Auto liability including owned, leased, non-owned, and hired automobiles, with a combined single limit of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate.
(iii) If a Party employs others in the performance of this Agreement, that Party
shall maintain Workers’ Compensation in accordance with California Labor Code section 3700 with a minimum of $1,000,000 per occurrence for employer’s liability, for the duration of time that such workers are employed.
(iv) All risk property insurance, excluding earthquake and flood, on all permanent property of an insurable nature in an amount sufficient to cover at least 100% of the replacement costs of said property.
(b) All insurance required by this Agreement shall:
(i) Be placed (1) with companies admitted to transact insurance business in the State of California and with a current A.M. Best rating of no less than A:VI or with carriers with a current A.M. Best rating of no less than A:VII; or (2) disclosed self-insurance with limits acceptable to the other Party.
(ii) Provide that each Party’s insurance is primary and non-contributing insurance to any insurance or self-insurance maintained by the other Party and that the insurance of the other Party shall not be called upon to contribute to a loss covered by a Party’s insurance.
(c) Prior to December 16, 2008, each Party shall file certificates of insurance with the other Party evidencing that the required insurance is in effect.

4.4 Workers’ Compensation. Each party shall be responsible for their own employees with regard to Workers’ Compensation insurance coverage during the tenure of this Agreement. In the event of a claim for workers compensation, the respective City shall admit their employment relationship to the employee within 14 days of the filing of the claim.

ARTICLE V
MISCELLANEOUS
5.1 Special Employment Relationship Established. The parties agree that whenever Monterey performs the services outlined in Section 3.2 of this Agreement that Monterey shall become a special employer of the Carmel fire department employees, and that Monterey shall have the authority to direct and control the work of said Carmel employees. The parties agree that the command structure creates a dual employment relationship among Carmel fire fighter employees subjected to the supervision of Monterey. The parties agree that for the purpose of any potential injuries arising during the dual employment that each City will be responsible for compensation due to said injured person according to which entity has that employee on payroll at the time of the injury pursuant to Insurance Code section 11663. Carmel employees have consented to this special employment relationship as set forth in the letter agreement attached hereto as Exhibit A.

5.2 Amendments to Agreement. No part of this Agreement shall be altered or amended except by mutual written agreement of the signatory Parties.

5.3 Assignment. The rights and obligations of the Parties under this agreement are not assignable and shall not be delegated without the prior written approval of the other party’s City Manager.

5.4 Dispute Resolution. The Parties recognize that this Agreement cannot represent a complete expression of all issues that may arise during the performance of the Agreement. Accordingly, Monterey and Carmel agree to meet and confer in good faith over any issue not expressly described herein. It is the Parties’ intention to avoid the cost of litigation and to resolve any issues that may arise amicably if possible. To that end, the Parties agree to meet within ten (10) business days of a request made by the other party in writing to discuss the issues and attempt to resolve the dispute. If the dispute is not resolved after that meeting, the Parties agree to mediate the dispute within 30 calendar days of the meeting or as soon thereafter as possible. The mediator will be chosen by mutual agreement of the Parties.

The costs of mediation will be borne by the Parties equally. No party may initiate litigation prior to the conclusion of mediation. In any action brought under this Agreement, the prevailing Party shall be entitled to recover its actual costs and attorney fees pursuant to California Civil Code section 1717.

5.5 Notices. All notices required or permitted hereunder shall be deemed sufficiently given if delivered by hand, electronic mail, or by United States mail, postage prepaid, addressed to the Parties at the addresses set forth below or to such other address as may, from time to time, be designated in writing.

To Carmel:
City Administrator
City Hall
City of Carmel-By-The-Sea
P.O. Box CC
Carmel-by-the-Sea, CA 93921

To Monterey:
City Manager
Monterey City Hall
580 Pacific Street
Monterey, CA 93940
* * * * * * * * * * * * * * *
IN WITNESS WHEREOF, the Parties execute this agreement hereto on the day and the year first written above.

APPROVED AS TO FORM AND CONTENT:

By: _____________________________________________
Don Freeman, City Attorney, City of Carmel-By-The-Sea

By: _____________________________________________
Deborah Mall, City Attorney, City of Monterey

ADOPTED BY:
CITY OF CARMEL-BY-THE-SEA, A Municipal Corporation

By: Date:
Rich Guillen, City Administrator

CITY OF MONTEREY, A Municipal Corporation

By: Date:
Fred Meurer, City Manager

EXHIBIT A
Acknowledgement and Consent to Agreement to
Provide Limited Fire Services between the Cities of Monterey and Carmel-By-The-Sea Carmel Professional Firefighters Association

I hereby attest that I represent all members of the Carmel Professional Firefighters Association, and am authorized to act on their behalf. In that capacity, I have received and reviewed a copy of the draft agreement, dated December 2, 2008, to provide limited fire services between the Cities of Monterey and Carmel-By-The-
Sea.

As representative of the Carmel Professional Firefighters Association, I interpose no objection to any term or condition of said agreement.

_________________________________________
Signature
_______________________________________________
Printed Name
_________________________________________________
Title
___________________________________________________
Date