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CITY COUNCIL AGENDA ITEM NO. 22c

Meeting Date: April 25, 2006

Subject/Title: Adopt a Resolution approving and authorizing the City Manager to execute an Interim Fire Protection Services Agreement with East Contra Costa Fire Protection District in the amount of $142,327.50 in substantially the same form as attached to the Resolution and further authorizing the City Manager, in consultation with the City Attorney, to make non-material changes to the Agreement.

Prepared by: Denise Davies, Chief Finance Officer

Submitted by: Pamela Ehler, City Treasurer/Director of Finance and Information Systems

RECOMMENDATION
Adopt a Resolution approving and authorizing the City Manager to execute an Interim Fire Protection Services Agreement with East Contra Costa Fire Protection District in the amount of $142,327.50 in substantially the same form as attached to the Resolution and further authorizing the City Manager, in consultation with the City Attorney, to make non-material changes to the Agreement.

PREVIOUS ACTION
On February 12, 2002, the City Council adopted Resolution No. 2469, which authorized the City Manager to approve a contract with the Fire District to increase 24-hour firefighter crews in Brentwood Fire Station Nos. 52 and 54 from two firefighters to three firefighters.

BACKGROUND
In December 2002, the City of Brentwood entered into a three-year agreement with the East Contra Costa Fire Protection District to increase the staffing level at the 2 stations in Brentwood from 2 to 3 firefighters per shift. The agreement calls for the City to fund 7 full time equivalent fire fighters to provide the 24/7 coverage.

This agreement ended December 31, 2005.

The City of Brentwood has made quarterly payments to the Fire District for the costs of the firefighter’s salary, benefits, insurance and overtime. Payments made to the Fire District for the three-year period of January 2003 through December 2005 total $1,389,708.75. The City has received an invoice from the Fire District for the period January 1, 2006 through March 31, 2006 in the amount of $142,327.50.

FIRE ISSUES
There are very significant policy issues that Council needs to address regarding future fire service for the City of Brentwood. The District, under the governance of the Board of Supervisors, has completed a draft Fire Service and EMS Master Plan. That plan has not yet been adopted by the Board of Supervisors.

The City is analyzing the Fire Service and EMS Master Plan developed for the district. Staff has very significant concerns about the impacts of the Plan’s recommendations on the City of Brentwood. These concerns include the governance of the District, which is currently under the Board of Supervisors; funding equity between the City of Brentwood and the other areas of the District; levels of service; location and funding of new stations for Brentwood; and the likely need for the voters to approve a special tax to increase the service level.

The City of Brentwood is the only entity paying additional money from its general fund while the District considers these issues so this is fiscally more urgent for the City than the other entities. Now that the draft Master Plan has been released the City Council needs to consider how best to provide fire service for the long term future of Brentwood.

It is staff’s recommendation that the Council authorize payment to East Contra Costa Fire Protection District for the “third firefighter” on a quarter by quarter basis while the discussions regarding the District wide fire issues continue. At this time, the District has not commented upon the Interim Fire Services Agreement. To ensure that the Agreement is processed in an expedient fashion, the Resolution authorizes the City Manager, in consultation with the City Attorney, to make non-material changes (e.g. those changes that do not substantially alter the Agreement term or dollar amount) prior to its execution.

FISCAL IMPACT
The expenditure of $142,327.50 is included in the 2005/2006 Operating Budget. Council approval regarding further payments will be requested through a staff report on a quarterly basis. Annual cost of the 3rd fire fighter position (7 ftes) is currently $569,310. This amount is expected to increase after the upcoming labor negotiations between the County and Local 1230 conclude.

Attachments
Resolution
Exhibit A - Contract

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERIM FIRE PROTECTION SERVICES AGREEMENT WITH EAST CONTRA COSTA FIRE PROTECTION DISTRICT IN THE AMOUNT OF $142,327.50 IN SUBSTANTIALLY THE SAME FORM AS ATTACHED TO THE RESOLUTION AND FURTHER AUTHORIZING THE CITY MANAGER, IN CONSULTATION WITH THE CITY ATTORNEY, TO MAKE NON-MATERIAL CHANGES TO THE AGREEMENT.

WHEREAS, On February 12, 2002, the City Council adopted Resolution No. 2469, which authorized the City Manager to approve a contract with the Fire District to increase 24-hour firefighter crews in Brentwood Fire Station Nos. 52 and 54 from two firefighters to three firefighters; and

WHEREAS, in December 2002, the City of Brentwood entered into a three-year agreement with the East Contra Costa Fire Protection District to increase the staffing level at the 2 stations in Brentwood from 2 to 3 firefighters per shift. The agreement calls for the City to fund 7 full time equivalent fire fighters to provide the 24/7 coverage. This agreement ended December 31, 2005; and

WHEREAS, the City of Brentwood has made quarterly payments to the Fire District for the costs of the firefighter’s salary, benefits, insurance and overtime. Payments made to the Fire District for the three-year period of January 2003 through December 2005 total $1,389,708.75. The City has received an invoice from the Fire District for the period January 1, 2006 through March 31, 2006 in the amount of $142,327.50; and

WHEREAS, the City is analyzing the Fire Service and EMS Master Plan developed for the district; and

WHEREAS, the City of Brentwood is the only entity paying additional money from its general fund while the District considers these issues so this is fiscally more urgent for the City than the other entities. Now that the draft Master Plan has been released the City Council needs to consider how best to provide fire service for the long term future of Brentwood; and.

WHEREAS, it is staff’s recommendation that the Council authorize payment to East Contra Costa Fire Protection District for the “third firefighter” on a quarter by quarter basis while the discussions regarding the District wide fire issues continue; and

WHEREAS, the expenditure of $142,327.50 is included in the 2005/2006 Operating Budget. Council approval regarding further payments will be requested through a staff report on a quarterly basis; and

WHEREAS, annual cost of the 3rd fire fighter position (7 ftes) is currently $569,310. This amount is expected to increase after the upcoming labor negotiations between the County and Local 1230 conclude; and

WHEREAS, the City has drafted an Interim Fire Services Agreement, a copy of which is attached hereto as Exhibit “A”; and

WHEREAS, the District has not yet commented upon the Interim Fire Services Agreement; and

WHEREAS, the City Council wishes to move forward with an Interim Agreement and therefore will authorize the City Manager, in consultation with the City Attorney, to make non- material changes to the agreement (e.g. changes that do not substantially alter the agreement’s term or dollar amount) following the District’s review of it.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood hereby authorizes the City Manager to:

Section 1. Approve and execute the attached agreement for interim fire protection services with East Contra Costa Fire Protection District; and

Section 2. Authorize the City Manager, in consultation with the City Attorney, to make non-material changes to the Interim Agreement prior to its execution.

Section 3. Make the payment of $142,327.50 for the period of January 1 through March 31, 2006.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 25th day of April 2006 by the following vote:

INTERIM AGREEMENT FOR
FIRE PROTECTION SERVICES

THIS INTERIM AGREEMENT FOR FIRE PROTECTION SERVICES, (the “Interim Agreement”) is made and entered into this __ day of ___________, 2006 by and between the City of Brentwood, a municipal corporation existing under the laws of the State of California, (“City”), and East Contra Costa Fire Protection District (“Fire District”) (collectively “the Parties”).

RECITALS

A. Effective January 1, 2003, the Parties entered into a 3 year Agreement for Fire Protection Services whereby the Fire District provided supplemental fire protection services to the City (the “Agreement”).

B. The Agreement adds a third firefighter to the two firefighters provided by the Fire District at Stations 52 and 54 in Brentwood.

C. The Agreement expired on December 31, 2005.

D. The Fire District has prepared a draft Fire Service and EMS Master Plan which identifies the need for additional staffing and funding needs for the Fire District (the “Plan”).

E. The Parties desire to continue the supplemental services on a quarter by quarter basis to provide time for both the City and the District to consider the Plan.

NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, the Parties agree as follows:

1. Term. This Interim Agreement shall become effective the date first written above and continue in force through August 31, 2006. The Agreement will thereafter extend on a quarter by quarter basis unless terminated by either Party upon thirty (30) days advance written notice to the other Party or canceled immediately by written mutual consent.

2. Legal Authority. This Interim Agreement is entered into under and subject to Government Code section 55631, et. seq.

3. Fire District’s Obligations. The Fire District shall provide to City those services described in the attached Exhibit A- Fire Services (the “Services”) which is incorporated herein by this reference.

4. Payment. Payment shall occur in the manner and amount set forth in the attached Exhibit B- Terms of Payment which is incorporated herein by this reference.

5. City Cooperation. The City shall give the Fire District the full cooperation and assistance of its officers, agents, and employees and hereby designates its City Manager as its representative to coordinate with the Fire District for provision of the Services.

6. Independent Contractor Status. This Interim Agreement is by and between two independent contractors and is not intended to and shall not be construed to create the relationship between the Parties of agent, servant, employee, partnership, joint venture or association. Firefighters employed in the performance of services hereunder are Fire District employees, and do not have and do not acquire any pension, civil service, or any other status or right that the City confers upon its employees.

7. No Third-Party Beneficiaries. Notwithstanding mutual recognition that the Services may provide some aid or assistance to members within the City’s population, it is not the intention of either the Fire District or the City that such individuals occupy the position of intended third-party beneficiaries of the obligations assumed by either Party.

8. Amendments. This Interim Agreement may be modified or amended by a written document executed by the Parties.

9. Entire Agreement. This Interim Agreement contains all of the terms and conditions agreed upon by the Parties and replaces, in its entirety, the Agreement. Except as expressly provided herein, no other understanding, oral or otherwise, regarding the subject matter of this Interim Agreement shall be deemed to exist or to bind any either of the Parties. The sole remedy for violation of this Interim Agreement shall be the specific performance of this Interim Agreement.

10. Construction. The section headings and captions of this Interim Agreement are, and the arrangement of this instrument is, for the sole convenience of the Parties. The section headings, captions and arrangement of this instrument do not in any way affect, limit, amplify, or modify the terms and provisions of this Interim Agreement. This Interim Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties prepared it. The Parties and their counsel have read and reviewed this Interim Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply to the interpretation of this Interim Agreement.

11. Notices. All notices provided for by this Interim Agreement shall be in writing, and shall be personally delivered or delivered by deposit in United States first class certified mail, postage prepaid, and return receipt requested. Notices to the Fire District shall be addressed to the East Contra Costa Fire Protection District Office, 134 Oak Street, Brentwood, CA, 94513. Notices to the City shall be addressed to the City Manager, City of Brentwood, 150 City Park Way Brentwood, CA, 94513. The effective date of notice shall be the date of personal delivery or the date of delivery as shown on the return receipt.

12. Indemnity. Except as to the sole negligence or willful misconduct of the Fire District, the City will defend, indemnify and hold the Fire District, its officers, agents and employees, harmless from any and all loss, damage, claims, demands, liability, expense or cost, including attorney’s fees, which arises out of, or is in any way connected with the performance of, this Interim Agreement by the City or any of the City‘s employees, agents or subcontractors, notwithstanding that the Fire District may have benefited from their efforts.

Except as to the sole negligence or willful misconduct of the City, the Fire District will defend, indemnify and hold the City, its officers, agents and employees, harmless from any and all loss, damage, claims, demands, liability, expense or cost, including attorney’s fees, which arises out of, or is in any way connected with the performance of, this Interim Agreement by the Fire District or any of the Fire District’s employees, agents or subcontractors, notwithstanding that the Fire District may have benefited from their efforts.

13. Dispute Resolution. Should any dispute arise out of this Agreement, either Party may request that it be submitted to mediation. The Parties shall meet in mediation within thirty (30) days of a request. The cost of mediation shall be borne equally by the Parties. Neither Party shall be deemed the prevailing party. No Party shall be permitted to file a legal action without first requesting mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator shall last until agreement is reached by the Parties but not more than sixty (60) days, unless the maximum time is extended by the Parties.

14. Severability. If any section, clause, or phrase of this Agreement, or the application thereof to any Party or any other person or circumstance, is held to be invalid by a final decision of a court of competent jurisdiction, it shall be deemed severable and the reminder of this Agreement, or the application thereof to any Party or any other person or circumstance, shall not be affected thereby.

15. Choice of Laws. This Agreement is made in Contra Costa County, State of California, under the Constitution and laws thereof, and shall be construed and enforced in accordance with the laws of the State of California.

16. Authority. The individuals executing this Agreement and the instruments referenced in it on behalf of the Parties each represent and warrant that they have the legal power, right and actual authority to bind the Parties to the terms and conditions of this Agreement.

Fire District:

By:

Date:

ATTEST:

By:

APPROVED AS TO FORM:

By: County Counsel City:

By: Donna Landeros, City Manager

Date:

ATTEST:

By: Margaret Wimberly, City Clerk

APPROVED AS TO FORM:

By: Damien B. Brower, City Attorney

Exhibit “A”- Fire Services

1. The Fire District shall provide the City with the fire protection services of two (2) additional firefighters for twenty four (24) hour per day, seven (7) days per week coverage. One (1) firefighter will serve Brentwood fire station number 52 and one firefighter will serve Brentwood fire station number 54. The addition of each firefighter will create three (3) person crews for each engine instead of the usual two (2) person crews.

2. The Fire District will furnish the firefighting equipment, supplies, and a vehicle for use in carrying out the services under this Interim Agreement.

Exhibit B- Terms of Payment

1. The City shall pay the Fire District: One hundred forty-two thousand three hundred twenty-seven dollars and fifty cents ($142,327.50) in advance every quarter, with the first payment due, at a prorated amount, within ten (10) days after the effective date of this Interim Agreement. Payments thereafter must be received in the Fire District’s Office by 5:00 p.m. no later than the first day of January, April, July and October as may be applicable. Payments include the salary, benefits, insurance and overtime pay of the firefighter(s) provided. In addition, the dollar amount of this Interim Agreement shall be adjusted for any compensation increase resulting from labor negotiations.
2. The Fire District shall submit written demands for payment to the City on a quarterly basis before services are rendered for that quarter. The failure to submit such demand, however, will not excuse payment by the City to the Fire District in a timely manner.
3. The Fire District shall account for all funds provided hereunder and maintain appropriate records and reports regarding all receipts and disbursements. The Fire District shall provide financial reports to the City upon request.
4. Within a reasonable time following the expiration of each month, the Fire District shall provide the City with written documentation showing the date(s) and hour(s) where an engine was not staffed with three (3) firefighters. The Fire District shall reimburse the City for each increment of one (1) hour or more that is not covered by three (3) firefighters by paying City the proportional amount of that firefighter’s cost per hour. Repayment by the Fire District may be accomplished by deducting the amount owed by the City for the following quarter. Such reduction shall be reflected in the written demand for payment to the City in the following quarter.
 

City Administration
City of Brentwood City Council
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Brentwood, CA 94513
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E-mail allcouncil@brentwoodca.gov