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1j. Newly revised Southwest Mutual Aid Association AgreementCITY OF �' CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 Action by CRY Adnllnbft W' MEMORANDUM 6ndotsed� —. modftd- TO: Mayor & City Council City Manager Don Ashworth - - s(V ' po Snbm&ed to CommissiN FROM: Scott Harr, Public Safety Director 9V De® 3nbmi!1ed io Coutrci{ DATE: February 15, 1995 9" + ,27' 95 SUBJ: Newly Revised Southwest Mutual Aid Association Agreement This memo is to recommend that the attached lution regarding the above be passed by the City Council. BACKGROUND Because the current mutual aid agreement by the Chanhassen has continued to be a mem of, has r, years ago, the group has sought to upd the docum n 1 1 ANALYSIS included in the previous document. to be removed for failure to comply with the costs. RECOMMENDATIONS ;st Mutual Aid Association, which rewritten since its creation many or a member organization or failing to pay the member's share of It is the recommendation of the Chanhassen City Attorney, with whom we have consulted, and staff that the resolution be passed by the City Council. We have also had our insworn agent review the documents. g-�safetyNshhmutaWlmem CITY OF CHANHASSEN , CARVER AND HENNEPIN COUNTIES, MINNESOTA DATE: RESOLUTION NO: ' MOTION BY: SECONDED BY: WHEREAS, the City of Chanhassen has previously approved and participated in a mutual aid agreement between the southwest suburban governmental agencies to provide cooperative use of fine personnel and equipment; WHEREAS, the agencies participating in this agreement have been designated the Southwest Mutual Aid Association; WHEREAS, the participating agencies have determined that it is advisable to clarify and simplify the language of that agreement; and WHEREAS, the existing agreement requires that all parties unanimously adopt any amendments; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chanhassen, Minnesota, that: 1. The revised Southwest Mutual Aid Association Joint and Cooperative Agreement for Use of Fire Personnel and Equipment, a copy of which is attached, is hereby approved, and the proper City officials are directed to execute said agreement on behalf of the City as a participating member of the Association. 2. If the revised Agreement is not approved unanimously by all of the existing parties, the City Manager and Fire Chief are directed to vote in favor of transferring any assets of the pre- existing Mutual Aid Association to the new Southwest Mutual Aid Association and to give notice that the City is withdrawing from the pre - existing agreement. Passed and adopted by the Chanhassen City Council this _ day of , 1995. ATTEST: Don Ashworth, City Clerk/Manager Donald J. Chmiel, Mayor NO ABSENT S.We"hnWAW2j- Southwest Mutual Aid Association M E M O R A N D U M To: Southwest Mutual Aid Association Members From: George Magdal Date: February 1, 1995 Subject: New Agreement What is attached? • A memo from Desyl Peterson explaining the new agreement • A sample resolution approving the agreement The APPROVED new agreement dated 1 -19 -95 • A copy of the current "Appendix A" (potential signers of the new agreement) What is missing? • NOTHING What should you do? • Prepare the resolution to go to your council in March. • Mail the signed signature page and a copy of the resolution to me at the address below. What's next? • Expect approval of all City Councils by the next SWMA meeting in April 20,1995. 1010 1 st St S * Hopkins MN 55343 * (612)939-1321 MEMORANDUM 14600 Minnetonka Boulevard ' Minnetonka, Minnesota 55345 Telephone (612) 939 -8266 • Fax (612) 939 -8248, City Attorney's Office ' Providing Prosecution Services for the Cities of.- Minnetonka, Minnetonka Beach, Minnetrista, Orono and St. Bonifacius ' TO: Chief Administrative Officers, Members of Southwest Mutual Aid Association FROM: Desyl L. Peterson, Minnetonka City Attorney DATE: November 15, 1994 RE: Recommended Changes to New Joint Powers Agreement A few years ago, staff members of the Southwest Mutual Aid Association decided that the mutual aid agreement should be rewritten. It had not been significantly revised since its creation, and there was a need to simplify some language and procedures. In addition, the agreement provided that if a number of parties were sued because of an incident, each party had to retain its own attorney. A more economical approach would be to allow one attorney to represent all parties. A new joint powers agreement was prepared and recommended to the various governing bodies. Some members approved this agreement. Unfortunately, however, staff members subsequently learned that certain federal laws prohibit the Veterans Administration from signing it. This caused a general re- assessment of the agreement. As a result, staff members are recommending some changes. Some of these relate directly to the V.A. situation. Others are recommended because they appear advisable. The following discusses the recommendations in more detail. 1. V.A. Amendments. Federal law prohibits the V.A. from agreeing to a general indemnification provision. As a result, the V.A. is excepted from that provision in Section VI. In addition, federal law requires the V.A. to. obtain a reciprocal waiver of claims between the parties. This provision is added in a new Section VIII. Some members have asked why the association should make any special exceptions for the V.A. As indicated above, the indemnification language was originally recommended to improve the situation. The ' SW Fire Amendments November 15, 1994 Page 2 new language allows only one lawyer to represent all of the parties, at a significant cost savings to everyone. By excepting the V.A., the rel between the -other parties ' and the V.A. will be the same as under the original agreement. Achieving 92% of a better situation is an acceptable result when the last 8% is prohibited by law and is no worse than before. Because the matter is totally out of their control, it is not ' appropriate to exclude the V.A. from the new agreement. 2. Term ination /Amendment. Both the original agreement and the previously recommended revision provide that a member can withdraw from the Association. Beyond that, there is no provision for terminating the agreement or amending it. As a result, 'unanimous approval of all members is required. ' This creates a situation in which one member has a veto over proposed action. This raises the possibility of one member being totally unreasonable and thereby preventing action which really benefits the whole group. As a result, changes are proposed for Sections III, VIII, and IX. ' To become effective, only three - quarters of the existing members need to approve the agreement. Any further amendments or a decision to terminate the agreement would also be effective upon approval by three - quarters of the membership. This is an ' extraordinary majority, so changes would not be easily accomplished but also would not be subject to a one -party veto. ' 3. Status of Original Agreement. Nothing was said in the previously recommended revision about what happens to the original joint powers agreement. New language is ' proposed for Section VIII which states that if all parties approve the new agreement, it supersedes any prior agreements, and any assets of the Association are transferred to the new Association. ' If the approval is less than unanimous, the parties will vote to transfer the assets and then withdraw from the pre- existing Association. The only assets of the Association are a small amount ' of money which is used to pay for administrative mailings. The major asset of the Association was the Fire Safety House, which the Association previously transferred to one of its members in order I to save on insurance costs. L SW Fire Amendments November 15, 1994 Page 3 4. Removal of M embe Neither the original agreement nor the previously recommended revision had a provision for a member. Section III would be amended to allow three - quarters of the members to remove a ' member, but only for failure to comply with the Agreement or to pay the member's share of costs. It seems appropriate to provide for removal in these limited situations. ' Please present the attached agreement to your respective governing bodies for approval. Attached is a sample resolution which could ' be adopted. If you have questions, please contact your fire chief. In I addition, feel free to call me at 939 -8262 if I can be of help. J Southwest Mutual Aid Association Joint And Cooperative Agreement For Use Of Fire Personnel And Equipment 1. PURPOSE This Agreement is made pursuant to Minnesota Statutes Section 471.59, which - authorizes the joint and cooperative exercise of- powers common to contracting Parties. The Parties to this Agreement wish to create a regional Mutual Aid Association, hereafter called the Southwest Mutual Aid Association, for the purpose of making fire equipment, personnel and facilities available to each other upon request. This Agreement is intended to give each Party the authority to send its equipment and personnel into the other communities and to provide for an Operating Committee to administer this Agreement. Il. DEFINITION OF TERMS For the purposes of this Agreement, the terms defined in this section shall have the meanings given them below. Subd. 1. "Assistance" means the providing of fire personnel and equipment, fire ' investigators, fire inspectors, fire educators, fire instructors, training personal and associated equipment and facilities. ' Subd. 2. "Emergency" means a sudden and unforeseen situation requiring immediate action. ' Subd. 3. "Party" means a governmental unit which is a Party to this Agreement. Subd. 4. "Requesting Official" means the person designated by a Party who is responsible ' for requesting Assistance from other Parties. Subd. 5. "Requesting Party" means a Party which requests Assistance from other Parties. Subd. 6. "Responding Official" means the person designated by a Party who is ' responsible to determine whether and to what extent that Party should provide Assistance to a Requesting Party. I Subd. 7. "Responding Party" means a Party which provides Assistance to a Requesting Party. ' Subd. 8. "Specialized Activities" means non - emergency Assistance to include but not be limited to: fire investigators, fire inspectors, fire educators, fire instructors, training personal and associated equipment and facilities. ■ Subd. 9. "Extraordinary Services" means emergency Assistance that includes activities beyond the normal scope of fire fighting, such as hazardous materials incidents, high level rescue, or dive rescue. I Southwest Mutual Aid Association Joint And Cooperative Agreement For Use Of Fire Personnel And Equipment f -19 -95 III. PARTIES ' The Parties to this Agreement are those entities which approve this Agreement and execute a separate signature page in accordance with Section VIII. I "If The Parties constitute the membership the Southwest Mutual Aid Association. Other entities may become a Party to this Agreement by complying with the conditions provided in the Association rules, by applying to and receiving approval of all member Parties, and by executing a separate signature page for this Agreement. Any Party may withdraw from membership at any time upon thirty days written notice to the other members. A party may be removed from membership only by a vote of at least three - quarters of all other Parties to the Agreement and only for the following causes: failure to comply with the terms of the agreement as may be modified or a failure to pay dues. Action by any Party which is required or permitted under this Agreement will be evidenced by: • for a municipality, a resolution adopted by the governing body, or • for a non - municipality, a letter executed by an official with sufficient authority to bind that party which recites the basis of that authority. PROCEDURE Subd. 1. Whenever, in the opinion of a Requesting Official, there is a need for Assistance from other Parties, such Requesting Official may, at his /her discretion, call upon the Responding Official of any other Party to furnish Assistance to and within the boundaries of the Requesting Party. Subject to the limitations set forth herein, it is the intention of the Parties to this Agreement to cooperate in the event of an emergency by making the necessary Assistance available to a Requesting Party without undue delay. Subd. 2. Upon the receipt of a request for Assistance from a Party, the Responding Official may authorize and direct the Fire Department personnel under his /her control to provide Assistance to the Requesting Party. Whether the Responding Party provides such Assistance to the Requesting Party and, if so, to what extent such Assistance is provided shall be determined solely by the Responding Official (subject to such supervision and direction as may be applicable to him /her within the governmental structure of the Party by which he /she is employed). Failure to provide Assistance will not result in liability to a Party. Subd. 3. When a Responding Party provides Assistance under the terms of this Agreement, it may in turn request Assistance from other Parties as "backup" during the time that it is providing Assistance outside its boundaries. Subd. 4. Whenever a Responding Party has provided Assistance to a Requesting Party, the Responding Official may at any time recall such Assistance or any part thereof if the Responding Official in his /her best judgment deems such recall necessary to provide for the best interests of his /her own community. Such action will not result in liability to any Party. Southwest Mutual Aid Association Joint And Cooperative Agreement For Use Of Fire Personnel And Equipment 1 -19 -95 I • ayc v Subd. 5. The Requesting Party shall be in command of the emergency scene. The personnel and equipment provided by the Responding Party shall be under the ' direction and control of the Requesting Party until the Responding Official withdraws Assistance. ' Subd. 6. A Responding Party shall be responsible for its own personnel, equipment, and for injuries or death to any such personnel or damage to any such equipment, ' except that unused equipment provided by the Responding Party shall be returned to the Responding Party by the Requesting Party when circumstances permit this to be done. Responding personnel shall be deemed to be performing ' their regular duties for the Responding Party. Insurance coverage and any financial compensation shall be the responsibility of the Responding Party. Each Party waives the right to sue any other Party for any workers compensation ' benefits paid to its own employee or volunteer even if the injuries were caused wholly or partially by the negligence of any other Party, its officers, employees, or volunteers. Subd. 7. Specialized activities of a non - emergency nature may be requested and /or provided by the Parties to this Agreement. ' Subd. 8. No charge shall be made to a Party for Assistance rendered under this Agreement except that a Party providing Assistance shall be paid for the cost of supplies. A Party providing Assistance may charge for time and materials for Specialized activities and Extraordinary Service as provided for in the association rules. V. OPERATING COMMITTEE ' The association shall have an Operating Committee to administer this Agreement. Subd. 1. The Chief of each Party's Fire Department, or designee, shall be the Party's representative to the Association Operating Committee. Subd. 2. It is the responsibility of the Operating Committee to establish rules, policies, and standards and to take other necessary or prudent action to administer this Agreement. ' Subd. 3. The Operating Committee shall meet periodically, but not less than quarterly to conduct the business of the Association. ' Subd. 4. The Association is not a separate legal entity. The Operating Committee shall have no authority to own property, enter into contracts, or to receive and expend funds except for routine administrative expenses. VI. RECIPROCAL DEFENSE AND INDEMNIFICATION ' Except for the United States Veteran's Administration Medical Center ( "the V.A. ") which is subject to federal laws prohibiting the following provision the Requesting Party agrees to indemnify and defend against any claims brought or actions filed against the Responding ' Party or any officers, employees, or volunteers of the Responding Party for injury or death to any third person or persons, or damage to the property of third persons, arising out of the ' Southwest Mutual Aid Association Joint And Cooperative Agreement For Use Of Fire Personnel And Equipment 1 -19 -95 performance and provision of Assistance in responding to a request for Assistance by the Requesting Party pursuant to this Agreement. The intent of the indemnification requirement of this section is to impose on each Requesting Party a limited duty to defend and indemnify any Responding Party for claims arising within the Requesting Party's jurisdiction subject to the liability limits under Chapter 466, Minnesota Statutes. The purpose of creating these reciprocal duties to defend and indemnify is to simplify the defense of liability claims by eliminating conflicts among defendants, and to permit liability claims against multiple defendants from a single occurrence to be defended by a single attorney. Under no circumstances, however, shall a Party be required to pay, on behalf of itself and other Parties, any amounts in excess of the liability limits established in Chapter 466, Minnesota Statutes, applicable to only one Party. The limits of liability for some or all Parties may not be added together to increase the maximum statutory liability limits for any Party. VII.. WAIVER Each party waives all claims against the V.A. and the V.A. waives all claims it may have against any Party, for any compensation for any loss, damage, personal injury, or death occurring in the consequence of the performance of fire protection services for the V.A. or by V.A. personnel. However, this waiver does not preclude a fire organization from filing claims for fire fighting costs and losses pursuant to 15 U.S.C. 2210, beneficiaries from filing claims for the deaths of firefighters and other public safety officers pursuant to 42 U.S.C. 3796, and individuals other than the Parties and their employees, from filing claims against the United States pursuant to 28 U.S.C. 1346(b) and 2671 -2680. VIII. EFFECTIVE DATE This Agreement shall be effective upon execution by three - quarters of the entities listed on the attached Exhibit A which is incorporated by reference herein. Each Party shall execute a separate signature page and forward that page to the Association Secretary, along with a resolution or letter as provided in Section III. Upon receipt of all executed signature pages, the Secretary shall send a copy of the fully executed agreement to each member. If this Agreement is executed by all of the entities listed on the attached Exhibit A, this Agreement shall supersede, replace, and void all prior agreements which provide for the existence of the Southwest Mutual Aid Association, and all assets of the Association under those agreements shall be transferred to the Association created pursuant to this Agreement. If the Agreement becomes effective by less than unanimous approval, the Parties to this Agreement shall vote to transfer any assets of the pre- existing Southwest Mutual Aid Association to the Association created under this Agreement and shall thereafter give notice that they are withdrawing from the pre- existing Association. IX. AMENDMENT This Agreement may be amended or terminated upon the affirmative vote of three - quarters of the Parties then existing. Southwest Mutual Aid Association Joint And Cooperative Agreement For Use Of fire Personnel And Equipment 1 -19-95