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3.9 Fire Contract Elk River Request for City Council Action DEPARTMENT INFORMATION ORIGINATING DEPARTMENT REQUESTOR: MEETING DATE: Administration City Administrator/Finance Director Flaherty December 13, 2021 PRESENTER(s) REVIEWED BY: ITEM #: Consent City Attorney Kendall 3.9 – Firefighting Services Contract STRATEGIC VISION MEETS: THE CITY OF OTSEGO: Is a strong organization that is committed to leading the community through innovative communication. Has proactively expanded infrastructure to responsibly provide core services. X Is committed to delivery of quality emergency service responsive to community needs and expectations in a cost-effective manner. Is a social community with diverse housing, service options, and employment opportunities. Is a distinctive, connected community known for its beauty and natural surroundings. AGENDA ITEM DETAILS RECOMMENDATION: City staff is recommending that the City Council approve the Contract for Firefighting and Ancillary Services between the City of Otsego and the City of Elk River. ARE YOU SEEKING APPROVAL OF A CONTRACT? IS A PUBLIC HEARING REQUIRED? Yes No BACKGROUND/JUSTIFICATION: The City of Otsego contracts with the City of Elk River for Firefighting Services within their designated coverage area within the City. In addition, the City of Elk River provides for mutual aid services to the Fire Departments from Albertville and Rogers across the entire City. The current Contract for Firefighting Services with the City of Elk River originally was set to expire on December 30, 2020; however, both cities agreed to an Amendment in December 2020 which extended the contract to a new expiration date of December 31, 2021. The proposed contract would continue to provide firefighting and ancillary services and would commence on January 1, 2022 and shall remain in effect unless and until terminated. Within the proposed contract, there are a few notable changes, which will be summarized as follows: - Costs: Previous contract costs were calculated based upon a fee per parcel of property located within the Fire Service Area (FSA). The proposed contract costs are based on a formula of calls from the FSA (20%) compared to total calls, which is then multiplied by an adjusted budget. The cost formula change resulted in a significant budget increase of $86,855 (34%) when compared to the current contract formula. - Fire Inspections: This is a service level increase compared to the current contract, and will provide fire code inspection for existing commercial/industrial buildings on a rotating schedule based on risk. These inspections provide an opportunity to identify hazards, educate property owners and prevent more serious fire calls. This service will be billed at an hourly rate of $50.00 per hour. The remainder of the contract is consistent with the current contract. The proposed contract was drafted by the Elk River City Attorney, and has been reviewed by City staff as well as City Attorney Kendall with recommendation of approval. SUPPORTING DOCUMENTS ATTACHED: • Contract for Firefighting and Ancillary Services POSSIBLE MOTION PLEASE WORD MOTION AS YOU WOULD LIKE IT TO APPEAR IN THE MINUTES: Motion to approve the Contract for Firefighting and Ancillary Services between the City of Otsego and the City of Elk River. BUDGET INFORMATION FUNDING: BUDGETED: General Fund – Fire Protection Department 101-42200-390 Yes (2022) Page | 1 CONTRACT FOR FIREFIGHTING AND ANCILLARY SERVICES This Contract for Firefighting and Ancillary Services (“AGREEMENT”) is made and entered into effective January 1, 2022, by and between the City of Elk River, a Minnesota municipal corporation (“ELK RIVER”) and the City of Otsego, a Minnesota municipal corporation (“OTSEGO”). IT IS HEREBY AGREED BY AND BETWEEN SAID PARTIES AS FOLLOWS: ARTICLE I FIREFIGHTING SERVICES ELK RIVER agrees to furnish, through the Elk River Fire Department (“ERFD”), firefighting services (“SERVICES”), as outlined in EXHIBIT A attached hereto, to all properties in OTSEGO located within the Fire Service Area set forth in EXHIBIT B attached hereto (“FSA”). A. Response and Resources ERFD will make reasonable efforts to promptly respond to requests for service (“CALL(s)”) in the FSA upon notification of such request through the ERFD’s primary Public Safety Answering Point (“PSAP”), subject to the following terms and conditions: 1. The ERFD Fire Chief and/or his/her designee (“CHIEF”), shall be in command of ERFD, including its personnel, equipment, and resources, at all times, as outlined in the ERFD’s policy manual and/or the ELK RIVER Code of Ordinances. Furthermore, ELK RIVER owns the buildings and equipment associated with ERFD, and the amounts paid by the OTSEGO for firefighting services do not give rise to any ownership interest in, or responsibility toward, those items. 2. The safety of ERFD personnel and equipment are of the utmost importance when responding to and operating at an incident. The CHIEF shall have the authority to modify and/or cancel a response if road, weather and/or other hazardous condition(s) pose a safety threat to ERFD’s personnel and/or equipment. 3. ELK RIVER and/or ERFD shall not be liable to OTSEGO, for loss or damage of any kind whatever resulting from any failure to furnish or delay in furnishing personnel or equipment, or from any failure to prevent, control or extinguish any fire or control or mitigate a situation, whether or not such loss or damage is caused by the negligence of the officers, agents or employees of ELK RIVER or the ERFD, except when such loss or damage is caused by gross negligence or criminal acts by ELK RIVER and/or ERFD. OTSEGO shall indemnify and hold harmless ELK RIVER and/or the ERFD from any claims of loss or damage arising from ELK RIVER’s undertaking to furnish SERVICES under this AGREEMENT, except for loss or damage caused by the gross negligence or criminal acts of ELK RIVER or ERFD. 4. In the event that ERFD is committed and unavailable at the time of a CALL in OTSEGO, ERFD will respond as soon as reasonably possible in the sole discretion of the CHIEF. The CHIEF has the sole authority to prioritize CALLs, to allocate equipment and resources, and to request mutual aid assistance at his/her discretion and professional judgment. Page | 2 B. Reimbursement for SERVICES OTSEGO shall reimburse ELK RIVER for SERVICES as follows: 1. During the five (5) calendar years between 2016 and 2020, 20% of the CALLs responded to by ERFD have been to sites in the FSA. 2. For the calendar year 2022, OTSEGO shall reimburse ELK RIVER for SERVICES in an amount equal to 20% of the 2022 ERFD Adjusted Budget, plus 20% of the ERFD fleet depreciation (based on replacement cost). 3. The ERFD Adjusted Budget shall be the total ERFD budget, less: (a) Amounts budgeted for Emergency Management; and (b) Amounts budgeted for Fire State Aid. (c) Line item for budgeted fleet purchases. 4. In years 2023 and beyond, OTSEGO’s reimbursement for SERVICES each calendar year shall be the total of: (a) the percentage of the ERFD Adjusted Budget for that year equal to the percentage of CALLs generated in the FSA over the five (5) years preceding the most recent year; and (b) an additional amount equal to the same percentage as calculated in 4(a) of the ERFD depreciation for that year. ARTICLE II FIRE INSPECTION SERVICES Commencing on January 1, 2022, ELK RIVER shall undertake required Fire Inspection within the Elk RIVER FSA of OTSEGO. A. Process and Indemnification 1. OTSEGO shall provide to ELK RIVER an annual list of sites that require fire inspections. 2. ELK RIVER shall provide to OTSEGO, at the time of billing, documentation and reports (in written or electronic format) regarding each inspection setting forth the address of the site inspected, the time spent on the inspection, observations made at the site, and the result of the inspection. 3. ELK RIVER shall defend, hold harmless and fully indemnify OTSEGO from any and all claims or causes of action of whatever nature resulting from or arising from the fire inspections undertaken pursuant to this AGREEMENT. However, nothing in this AGREEMENT shall waive any immunities or liability caps applicable to ELK RIVER under Minnesota statutory or case law, including Minnesota Statutes, Chapter 466. Page | 3 B. Reimbursement for Fire Inspection Services 1. OTSEGO shall pay to ELK RIVER, upon receipt of properly detailed billing, $50.00 per hour only for time spent on fire inspection within OTSEGO. No additional costs such as mileage will be paid above the $50.00 per hour above stated. ARTICLE III PAYMENT A. 2022 1. ELK RIVER shall notify OTSEGO of the amount due for firefighting services in 2022 once the ERFD budget for 2022 is approved by the Elk River City Council. 2. ELK RIVER shall invoice, and OTSEGO shall pay, the amount due for 2022 in two (2) equal installments due on the last day of January and July 2022. B. 2023 and beyond 1. ELK RIVER shall calculate the amount due from OTSEGO for 2023 and years beyond as provided in this AGREEMENT and notify OTSEGO of that amount by January 15 of each year. 2. ELK RIVER shall invoice, and OTSEGO shall pay, the amount due for 2023 and each year beyond 2023 in two (2) equal installments due on the last day of January and July each year. ARTICLE IV MUTUAL AID Because ERFD has heretofore entered into mutual assistance firefighting agreements with other fire departments, municipalities, and agencies possessing equipment and/or personnel, which equipment and/or personnel could be called by the CHIEF to a CALL in the FSA, OTSEGO agrees to pay such additional cost as may be incurred thereby if in the sole judgment of the CHIEF such additional equipment and/or personnel are needed for assistance in the FSA and are requested by the CHIEF. ARTICLE V FALSE ALARMS All parties acknowledge that excessive false alarms constitute a public nuisance. OTSEGO agrees to enforce its false alarm policy and to collect and forward to ELK RIVER penalties and fees collected from properties within the FSA for excessive false alarms. Page | 4 ARTICLE VI TERM This Agreement shall commence on January 1, 2022 and shall remain in effect unless and until terminated as provided in Article VIII herein. ARTICLE VII MODIFICATION A. Amendments This writing contains the entire agreement between the parties and no alterations, variations, modifications, or waivers of the provisions of this AGREEMENT are valid unless reduced to writing and signed by both ELK RIVER and OTSEGO, with the exception that: 1. Otsego may adjust the FSA effective January 1st of any year by providing Elk River with an amended exhibit B no later than September 1 of the preceding year. B. Entire agreement This AGREEMENT and the exhibits attached hereto contain the entire agreement of the parties with respect to the subject matter of this AGREEMENT, and supersede all prior negotiations, agreements, and understandings with respect thereto. ARTICLE VIII TERMINATION A. By Agreement This AGREEMENT may be terminated at any time during its term by mutual agreement of the parties. Such mutual agreement to terminate shall be in writing and shall be effective when fully executed by both parties. B. By Either Party Either party may terminate this AGREEMENT by serving a 365-day written notice of termination to the other party. This AGREEMENT shall terminate 365 days from the date of written notice of termination, unless the party serving the notice specifies a later date of termination or withdraws the notice of termination in writing before it is effective. C. By ELK RIVER 1. If OTSEGO fails to pay for SERVICES as provided in Articles I, ll and III hereof, ELK RIVER may terminate this AGREEMENT upon 60 days’ written termination notice. 2. If OTSEGO fails to reimburse ELK RIVER for mutual aid costs as provided in Article IV hereof or fails to collect and forward to ELK RIVER penalties for false alarms as provided in Article V hereof, ELK RIVER may give 30 days’ notice to make payment or settle any dispute. In the event that payment is not made, or any dispute is not resolved within the 30-day period, ELK RIVER may terminate this AGREEMENT upon 180 days written termination notice. Page | 5 D. Effect of Termination In the event this AGREEMENT is terminated, OTSEGO shall still be responsible for paying in full any amount owed to ELK RIVER for SERVICES provided under this AGREEMENT up to the date of termination. ELK RIVER shall return any portion of the annual fee already paid allocated for SERVICES provided after the date of termination. Notice to either party shall be made to the Office of the City Clerk. ARTICLE IX SEVERABILITY The provisions of this AGREEMENT shall be deemed severable. If any part of this contact is rendered void, invalid, or otherwise unenforceable, such rendering shall not affect the validity and enforceability of the remainder of this contract. IN WITNESS WHEREOF, the parties have executed this AGREEMENT effective on the date indicated above. CITY OF ELK RIVER CITY OF OTSEGO By its Mayor: By its Mayor: Signature Signature Print Name Print Name Date Date City Clerk: City Clerk: Signature Signature Print Name Print Name Date Date Page | 6 EXHIBIT A: SERVICES The CITY OF ELK RIVER and the FIRE DEPARTMENT agrees to provide the CITY OF OTSEGO the following SERVCIES, subject to the terms and conditions of the AGREEMENT:  Structural Firefighting, specifically: o Exterior Structural Firefighting o Interior Structural Firefighting  Grass/Forest Firefighting  Other Firefighting, specifically: o Vehicle & Equipment Firefighting  Technical Rescue, specifically: o Vehicle & Equipment Extrication o General Search and Rescue o Surface Ice Rescue o Rope Access/Confined Space Rescue (subject to team availability)  Other, specifically: o Investigation of Fire and Carbon Monoxide Alarms  Hazardous Materials Response, specifically: o First Responder, Awareness Level o First Responder, Operations Level  Emergency Medical Services, specifically: o First Responder Level to Personal Injury Accidents (as requested per ERFD policy) and to support Technical Rescue Operations  Disaster Response, specifically: o Initial response for rescue, life-safety and incident stabilization (not including emergency management related functions) EXHIBIT B Fire Service Area (FSA)