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HomeMy WebLinkAboutResolutions - 2011.07.06 - 18637MISCELLANEOUS RESOLUTION #11145 BY: Public Services Committee, Jim Runestaq, Chairperson TN RE: SHERIFF'S OFFICE - AMENDMENT TO THE CONTRACT FOR FIRE DISPATCH SERVICES IN THE CITY OF PONTIAC To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS it is the policy of the Oakland County Board of Commissioners to permit the Sheriff's Office to enter into contracts with Cities, Villages and Townships for the purpose of providing fire dispatch services; and WHEREAS the Board of Commissioners approved M.R. #11020 which authorized a contract between the City of Pontiac through the Emergency Manager; and WHEREAS the County has determined that amendments to the contract are necessary; and WHEREAS there will he no change from M.R. 11020 for the positions, equipment and financial effect for this amendment; WHEREAS Corporation Counsel has drafted the amendments and they are included in the attached contract. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners approves the attached contract with the amendments, with the City of Pontiac. BE IT FURTHER RESOLVED that the all other aspects of M.R. #11020 remain in effect. Chairperson, I move the adoption of the foregoing resolutiorq 2 / SUMMARY OF CHANGES TO FIRE DISPATCH AGREEMENT WITH PONTIAC 1. Updated legal reference: All references to previous EFM statute have been replaced with new EFM law (Public Act No. 4 of 2011). 2. Start Date: Contract to take effect on July 31, 2011 at 11:59 p.m.. Service to begin on August 1, 2011 at 12:00 a.m.. 3. Payment terms: Paragraph 10. Instead of paying for fire dispatch services on a monthly basis after the service is rendered, the City will pre- pay for services on a monthly basis. 4. Default Triggers and Cancellation Rights: Paragraph 11. Contract provides that Pontiac will be in default of the agreement if it (1) fails to timely pay the County any amount due under the Agreement (2) fails to perform any other obligation required under the Agreement or (3) seeks authority from the governor and state treasurer to proceed under title 11 of the United States Code, 11 USC 101 to 1532, as provided for in section 23 of Pubic Act 4 of 2011. If the city is in default, the County will provide written notice of the default to the City and the City has 30 days to cure the default. If city fails to cure default within 30 days, the County may: a. Terminate this Agreement sixty (60) days from the date written notice of termination is provided to the CITY by the COUNTY; b. Declare all unpaid amounts owed under the Agreement immediately due and payable without further presentment, demand, protest or other notice of any kind, all of which are expressly waived by the CITY. c. Exercise any and all rights and remedies available to it under the Agreement (i.e. DTRF capture) or applicable law. Previous contract simply provided that either party could terminate upon 180 days written notice. 5. County access to City financial records. Paragraph 12. City is required to provide County with a copy of all financial reports prepared by the CITY pursuant to the requirements of Public Act 4 of 2011 within 10 days of request by County. [New to contract] FIRE DISPATCH SERVICE AGREEMENT BETWEEN THE COUNTY OF OAKLAND AND THE CITY OF PONTIAC This Agreement is made and entered into between the COUNTY OF OAKLAND, a Michigan Constitutional and Municipal Corporation, whose address is 1200 North Telegraph Road, Pontiac, Michigan 48341 (the "COUNTY"), and the CITY OF PONTIAC, whose address is 47450 Woodward Avenue, Pontiac, Michigan, 48342-2271 (the "CITY"). In this Agreement, the COUNTY shall be represented by the OAKLAND COUNTY SHERIFF, in his official capacity as a Michigan Constitutional Officer, whose address is 1200 North Telegraph Road, Bldg. 38 E., Pontiac, Michigan 48341 (the "SHERIFF"). In this Agreement, whenever the COUNTY and the SHERIFF are intended to be referred to jointly, they shall collectively be referred to as the "OAKLAND COUNTY SHERIFF'S OFFICE" ("O.C.S.0.") WITNESSETH WHEREAS, the CITY is authorized by law to provide fire protection service for its residents; and WHEREAS, in order to provide effective fire protection services for its residents, the CITY must also provide Fire Department communication and dispatch functions; and WHEREAS, the 0.0,5.0. provides police communication and dispatch functions and has the capability to provide fire dispatch but, absent this Agreement, is not obligated to provide "FIRE DISPATCH SERVICE", as defined in this Agreement, for the CITY; and WHEREAS, the COUNTY and CITY may enter into a contract by which the 0,C.S.O. would provide FIRE DISPATCH SERVICE for CITY; and WHEREAS, the CITY has concluded that it is more cost effective to contract for FIRE DISPATCH SERVICE with the 0.C,S.0, than to equip and staff its own fire communication and dispatch center; and WHEREAS, the 0.C.S.O, agrees to provide FIRE DISPATCH SERVICE for the "CITY FIRE PERSONNEL", as defined in this Agreement, under the following terms and conditions; NOW, THEREFORE, it is mutually agreed as follows: 1. The COUNTY, with the cooperation and approval of the SHERIFF, shall, in conjunction with its existing 0.C.S.O. police communications functions, provide FIRE DISPATCH SERVICE to CITY FIRE PERSONNEL. 2. Except as expressly provided for in this Agreement, the Parties agree that this Agreement does not, and is not intended to, transfer, delegate, or assign to the other Party or any civil or legal responsibility, duty, obligation, duty of care, cost, legal obligation, or liability associated with any governmental function delegated and/or entrusted to either party under any existing law or regulations. 3. For all purposes and as used throughout this Agreement, the words and expressions listed below; whether used in the singular or plural, within or without quotation marks, or possessive or nonpossessive, shall be defined, read, and interpreted as follows: 3.1, "FIRE DISPATCH SERVICE" shall be defined to include: any emergency or non-emergency telephone call or notice, of any kind, received by the 0.C.S.O., which requests, requires, or, in the sole judgment of the 0.C.S.O. or a COUNTY AGENT_appears to request or require the presence, attention, or services of any CITY FIRE PERSONNEL to address, respond, or attend to any issue, event, or circumstance involving public health or safety, an accident, an accidental injury, the protection of property, or any emergency (including, but not limited to medical, fire, and/or health), and an 0,C.S.O. or COUNTY AGENT radio communication, or any attempted radio communication to any CITY FIRE PERSONNEL. 3.2. "CITY FIRE PERSONNEL" shall be defined to include: all uniformed, non-uniformed, civilian, command, volunteer, administrative, and/or supervisory personnel employed and/or contracted by the CITY to provide, supply, support, administer, or direct any fire or emergency related services and/or any persons acting by, through, under, or in concert with any of them; or any CITY official, officer, employee or agent whose job duties may include the receipt of any 0.C.S.O. FIRE DISPATCH SERVICE. 3.3. "COUNTY AGENT" shall be defined to include the SHERIFF and all COUNTY elected and appointed officials, commissioners, officers, boards, committees, commissions, departments, divisions employees (including any SHERIFF'S DEPUTY), agents, predecessors, successors, or assigns, (whether such persons act or acted in their personal, representative, or official capacities), and all persons acting by, through, under, or in concert with any of them. COUNTY AGENT as defined in this Agreement shall also include any person who was a COUNTY AGENT at any time during the term of this Agreement but, for any reason, is no longer employed, appointed, or elected in his/her previous capacity. 3.4. "CLAIM" shall be defined to include any and all losses, complaints, demands for relief, damages, lawsuits, causes of action, proceedings, judgments, deficiencies, penalties, costs and expenses, including, but not limited to, reimbursement for reasonable attorney fees, witness fees, court costs, investigation, litigation expenses, amounts paid in settlement, and/or any other amount for which the COUNTY or COUNTY AGENT becomes legally and/or contractually obligated to pay, whether direct, indirect, or consequential, whether based upon any alleged violation of the constitution (federal or state), any statute, rule, regulation, or the common law, whether in law or equity, tort, contract, or otherwise, and/or whether commenced or threatened. 4 Except for the FIRE DISPATCH SERVICE expressly contracted for herein, the 0.C.S.O. and/or any COUNTY AGENT shall not be obligated to provide or assist CITY or any CITY FIRE PERSONNEL with any other direct, indirect, backup, or supplemental support or fire-related service or protection, of any kind or nature, or be obligated to send any COUNTY AGENT to respond, in any way, to any call for CITY FIRE PERSONNEL services. 5. Under all circumstances, CITY shall remain solely and exclusively responsible for all costs and/or liabilities associated with providing available on-duty CITY FIRE PERSONNEL to receive and respond to FIRE DISPATCH SERVICE in a timely and professional manner. 6 This Agreement does not, and is not intended to, obligate or require the 0.C.S.O. to change, alter, modify, or develop any different 0.C.S.O. dispatch related procedures, policies, and/or standards; purchase or use any special or additional equipment; or, alternatively, prohibit the 0.C.S.O, from implementing any future communication-related changes that the 0.0.5.0,, in its sole judgment and discretion, believes to be in its best interest. 7 CITY shall be solely and exclusively responsible, during the term of this Agreement, for guaranteeing that: (a) all CITY FIRE PERSONNEL radios and other communication equipment will be properly set, adjusted, and maintained to receive any FIRE DISPATCH SERVICE from the 0.C.S.O. and/or COUNTY AGENT and will comply with all current and future applicable 0.C.S.0, dispatching procedures, policies, standards, technical specifications, and/or any applicable state or federal communication requirements, including, but not limited, to all Federal Communications Commission orders, regulations, and policies; (b) all CITY FIRE PERSONNEL will be adequately trained and will comply with all current and future applicable 0.C.S.O. dispatching procedures, policies, standards, technical specifications and/or any applicable state or federal communication requirements, including, but not limited, to all Federal Communications Commission orders, regulations, and policies; and (c) CITY and all CITY FIRE PERSONNEL shall, at all times, promptly and properly notify the designated COUNTY AGENT of any on-duty or off-duty status and/or availability or unavailability of CITY FIRE PERSONNEL to receive FIRE DISPATCH SERVICE from the 0.C.S.O. n 8. The CITY shall be solely and exclusively responsible for all costs, expenses and liabilities associated with the purchase, lease, operation, and/or use of any CITY FIRE PERSONNEL radio or other communication equipment. The 0.C.S.O. shall not be obligated to provide CITY FIRE PERSONNEL with any radio or other communication equipment of any kind. CITY shall not be obligated under the terms of this Agreement to supply or provide the 0.C.S.O. with any additional telephones, telephone lines, radios, other communications equipment, or property. 9. The 0.C,S.O. may, at its sole discretion and expense, inspect any CITY FIRE PERSONNEL radio or other communication equipment to ensure that it conforms a applicable 0.C.S.O, dispatching procedures, policies, standards, technical specifications, and/or state and federal law. If the inspection reveals a lack of conformance, the 0.C.S.O. shall notify the CITY in writing of the specific violations. The CITY shall address and correct such violations at its own expense within thirty (30) calendar days of receiving the written notice or present a written plan to C.O.S.°. within 15 calendar days setting forth a procedure for correcting the violations. If CITY fails to address and/or correct such violations within the time period set forth in this paragraph, the 0.C.S O. may terminate and/or cancel the Agreement. 10, In consideration of the COUNTY'S promises and efforts under this Agreement, CITY shall pay the COUNTY •:.•• -- -- •••••••••••••:••••::..,--..a.., • ..: :• • . • • :"." • • : . • ••• • .. .• : ..• :.::•••••.• • ••. •,• • • • •: $18,384.22 (Eighteen• Thousand Three Hundred Eighty Four Dollars and Twenty Two Cents) per month for the months of 1,2011 through March 31, 2012. Said payments shall be made as follows: 10.1 Each monthly payment shall be :a: due and payable no later than the 15th calendar day of • .. . calendar month starting on the day after this Agreement takes effect and continuing each calendar month thereafter. 10.2 All a .:•ai•onthly payments shall be due and payable by CITY without any further notice or demand from the COUNTY. 10.3 Each monthly payment shall be made by a check drawn on a CITY account and shall be made payable to the County of Oakland and delivered to the attention of: Oakland County Treasurer, 1200 N. Telegraph Road, Pontiac, MI 48341- 0479, or in any manner directed by the County. 10.4 Each payment shall clearly identify that it is a monthly payment being made pursuant to this Agreement and identify the calendar month for which CITY intended the payment to apply. The COUNTY, in its discretion, may apply any monthly payment received from CITY to any past due amount or monthly payment then due and owing to the COUNTY pursuant to this Agreement. 11, If the CITY, for any reason, fails to pay the COUNTY any monies when and as due under this Agreement-the CITY agrees thata•••:•:.-: • • .. ••: . • •:••::.• .:•!•••• • the COUNTY or the County Treasurer, at their sole option, shall be entitled to setoff from any other CITY funds that are in the COUNTY'S possession for any reason . •, . .. a a Funds include but are not limited to the Delinquent .lax Revolving Fund ("DTRF") : Any setoff or retention of funds by the COUNTY shall be deemed a voluntary assignment of the amount by the CITY to the COUNTY, The CITY waives any CLAIMS against the COUNTY or its Officials for any acts related specifically to the COUNTY'S offsetting or retaining such amounts. This paragraph shall not limit the CITY'S legal right to dispute whether the underlying amount retained by the COUNTY was actually due and owing under this Agreement. If the COUNTY chooses not to exercise its right to setoff or if any setoff is insufficient to fully pay the COUNTY any amounts due and owing the COUNTY under this Agreement, the COUNTY shall have the right to charge up to the then-maximum legal interest on any unpaid amount. Interest charges shall be in addition to any other amounts due to the County under this Agreement. Interest charges shall be calculated using the daily unpaid balance method and accumulate until all outstanding amounts an accumulated interest are fully paid. Nothing in this Paragraph shall operate to limit the COUNTY'S right to pursue or exercise any other legal rights or remedies under this Agreement against CITY to secure reimbursement of amounts due the COUNTY under this Agreement. The remedies in this Paragraph shall be available to the COUNTY on an ongoing and successive basis if CITY at any time becomes delinquent in its payments. Notwithstanding any other terms and conditions in this Agreement, if the COUNTY pursues any legal action in any court to secure its payment under this Agreement, the CITY agrees to pay all costs and expenses, including attorney's fees and court costs, incurred by the County in the collection of any amount owed by CITY. 12. Each Party shall be responsible for any CLAIMS made against that Party and for the acts of its Employees or AGENTS. Further, the CITY agrees that it shall remain solely and completely liable for any and all CLAIMS that either arose or have their basis in circumstances or events occurring before the effective date of this Agreement, including but not limited to, any wage or benefit issues, any collective bargaining obligations, or any other related employment rights or obligations such as worker or unemployment compensation based upon any person's employment by the CITY prior to the effective date of this Agreement. 13. In any CLAIMS that may arise from the performance of this Agreement, each Party shall seek its own legal representation and bear the costs associated with such representation including any attorney fees, 14. Except as otherwise provided in this Agreement, neither Party shall have any right under any legal principle to be indemnified by the other Party or any of its employees or AGENTS in connection with any CLAIM. 15. This Agreement does not, and is not intended to, impair, divest, delegate or contravene any constitutional, statutory, and/or other legal right, privilege, power, obligation, duty or immunity of the Parties. Nothing in this Agreement shall be construed as a waiver of governmental immunity for either Party. 16. This Agreement does not, and is not intended to, create, by implication or otherwise, any direct or indirect obligation, duty, promise, benefit, and/or right to be indemnified, or any other right of any kind in favor of any person, organization, alleged third party beneficiary, or any right to be contractually, legally, equitably or otherwise subrogated to any indemnification or any other rights provided under the terms of this Agreement. 17. Neither the COUNTY nor any COUNTY AGENT, by virtue of this Agreement or otherwise, shall be considered employees of the CITY. The COUNTY and/or any COUNTY AGENTS legal status and relationship to the CITY shall be that of an Independent Contractor. No CITY FIRE PERSONNEL shall, by virtue of this Agreement or otherwise, be considered an employee, agent, or working under the supervision and control of the COUNTY and/or any COUNTY AGENT. 18. The CITY and the 0,C.S.O. shall each remain the sole and exclusive employer of each of their respective employees. The CITY and COUNTY each agree to remain solely and exclusively responsible for the payment of each of their respective employees' wages, compensation, overtime wages, expenses, fringe benefits, pension, retirement benefits, training expenses, or other allowances or reimbursements of any kind, including, but not limited to, workers' disability compensation, unemployment compensation, Social Security Act protection and benefits, employment taxes, or any other statutory or contractual right or benefit based, in any way, upon employment. 19. This Agreement does not, and is not it intended to, create, change, modify, supplement, supersede, or otherwise affect or control, in any manner, any term or condition of employment of any COUNTY AGENT, or any applicable 0.C.S.O. employment and/or union contract, any level or amount of supervision, any standard of performance, any sequence or manner of performance, and/or any 0.C.S.O. rule, regulation, training and education standard, hours of work, shift assignment, order, policies, procedure, directive, ethical guideline, etc., which shall solely and exclusively, govern and control the employment relationship between the 0.C,S.O. and/or all conduct and actions of any COUNTY AGENT. 20. Neither the CITY nor any CITY FIRE PERSONNEL shall provide, furnish or assign any COUNTY AGENT with any job instructions, job descriptions, job specifications, or job duties, or, in any manner, attempt to control, supervise, train, or direct any COUNTY AGENT in the performance of any COUNTY duty or obligation under the terms of this Agreement, 21. The CITY shall promptly deliver to the 0.C.S.O. written notice and copies of any CLAIM, accusation or allegation of negligence or other wrongdoing, whether civil or criminal in nature, that the CITY becomes aware of which involves, in any way, the 0.C.S.O. or any COUNTY AGENT. The CITY shall cooperate with the 0.C.S.O. in any investigation conducted by the SHERIFF of any act or performance of any duties by any COUNTY AGENT. Agreement shall become effective during the month sr..sectified in paragraph 10 and shall remain in effect continuously until it expires. without ;any .further O CT. r notice being required of any party This Agreement may be cancelled for any reason, including the convenience of any Party, and without any penalty, before its March 31, 2012 expiration by delivering a written notice of the cancellation to the other signatories to this Agreement, or their successors in office. Such written notice shall provide at least • • • calendar days notice of the effective date of cancellation, and such cancellation of this Agreement shall be effective at 11:59 P.M. on the last calendar day of the calendar month following the expiration of the • • calendar day notice period. If this Agreement is terminated for any reason, the CITY will fully reimburse the COUNTY for all direct and indirect labor costs incurred by the COUNTY as a result of the Agreement's termination. Such costs include, but are not limited to, unemployment compensation claims made by COUNTY employees hired by the COUNTY to fulfill the terms of this Agreement. 23. This Agreement, and any subsequent amendments, shall not become effective prior to the approval by the COUNTY Board of Commissioners and the duly-appointed Emergency ••:•••••••, • Manager of the CITY or his successor in office, or, if no Emergency •;:•e:.••••:..:.:. Manager is in place, by resolution of the CITY'S Governing Body. The approval and terms of this Agreement shall be entered into the official minutes and proceedings of the COUNTY Board of Commissioners and CITY Council and shall also be filed with the Office of the Clerk for the COUNTY and the CITY Clerk, In addition, this 22. IN WITNESS VVHEREOF, Michael F. Stampfler, Emergency- .:• Manager for the hereby acknowledges that he has been authorized by the to execute this Agreement on behalf of the CITY and hereby accepts and binds the CITY to the terms and conditions of this Agreement on this day of 201 WITNESS: THE CITY OF PONTIAC, Agreement, and any subsequent amendments, shall be filed by a designated COUNTY AGENT with the Secretary of State for the State of Michigan and shall not become effective prior to the filing of this Agreement with the Secretary of State. 24. Any signatory or any signatories' successor in office to this Agreement shall send, by first class mail, any correspondence and written notices required or permitted by this Agreement to each of the signatories of this Agreement, or any signatories' successor in office, to the addresses shown in this Agreement. Any written notice required or permitted under this Agreement shall be considered delivered to a party as of the date that such notice is deposited, with sufficient postage, with the U.S. Postal Service. 25. This Agreement is made and entered into in the State of Michigan and shall in all respects be interpreted, enforced and governed under the laws of the State of Michigan. The language of all parts of this Agreement is intended to and, in ail cases, shall be construed as a whole, according to its fair meaning, and not construed strictly for or against any Party. As used in this Agreement, the singular or plural number, possessive or non-possessive, shall be deemed to include the other whenever the context so suggests or requires. 26. Absent an express written waiver, the failure of any party to pursue any right granted under this Agreement shall not be deemed a waiver of that right regarding any existing or subsequent breach or default under this Agreement. No failure or delay on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall a single or partial exercise of any right, power or privilege preclude any other or further exercise of any other right, power or privilege. 27, The COUNTY and CITY acknowledge that this Agreement shall be binding upon them and, to the extent permitted by law, upon their administrators, representatives, executors, successors and assigns, and all persons acting by, through, under, or in concert with any of them. 28. This Agreement sets forth the entire contract and understanding between the COUNTY and CITY and fully supersedes any and all prior contracts, agreements or understandings between them in any way related to the subject matter hereof after the effective date of this Agreement shall remain effective and enforceable for any CLAIM arising or occurring during any prior contract period. This Agreement shall not be changed or supplemented orally. This Agreement may be amended only by concurrent resolutions of the COUNTY Board of Commissioners and CITY Board of Trustees in accordance with the procedures set forth herein. 29. Each Party shall comply with all federal, state, and local statutes, ordinances, regulations, administrative rules, requirements applicable to its activities performed under this Agreement. 30. If a court of competent jurisdiction finds a term, or condition, of this Agreement to be illegal or invalid, then the term, or condition, shall be deemed severed from this Agreement. All other terms, conditions, and provisions of this Agreement shall remain in full force. 31. For and in consideration of the mutual promises, acknowledgments, representations, and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the COUNTY and the CITY hereby agree and promise to be bound by the terms and provisions of this Agreement„ a Michigan Municipal Corporation BY: MICHAEL F. STAMPFLER Emergency Manager iN-VVITNESS WHEREOF, BILL BULLARD, Jr., Chairperson, Oakland County Board of Commissioners, hereby acknowledges that he has been authorized by a resolution of the Oakland County Board of Commissioners (a certified copy of which is attached) to execute this amendment to the Current Agreement on behalf of the COUNTY OF OAKLAND and hereby accepts and binds the COUNTY OF OAKLAND to the I terms and conditions of this Agreement on this day of 201: D. WITNESS: COUNTY OF OAKLAND, a Michigan Municipal Corporation BY: Jr. Chairperson, Oakland County Board of Commissioner IN WITNESS WHEREOF, MICHAEL J. BOUCHARD, in his official capacity as the OAKLAND COUNTY SHERIFF, a Michigan Constitutional Office, hereby concurs and accepts the terms and conditions of this I Agreement on this day of , WITNESS: OAKLAND COUNTY SHERIFF, a Michigan Constitutional Officer BY: MICHAEL J. BOUCHARD, Oakland County Sheriff I 07.01,11 001111101n1 1 RIM ANNE Resolution #11145 July 6, 2011 Moved by Dwyer supported by Middleton the resolution be adopted. AYES: Middleton, Nuccio, Potts, Scott, Taub, Weipert, Bosnic, Crawford, Dwyer, Gingell, Gosselin, Hoffman, Long, Matis. (14) NAYS: Nash, Quarles, Woodward, Zack, Covey, Gershenson, Greimel, Hatchett, Jackson, McGillivray. (10) A sufficient majority having voted in favor, the resolution was adopted. STATE OF MICHIGAN) 7 kill COUNTY OF OAKLAND) I, Bill Bullard Jr., Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and accurate copy of a resolution adopted by the Oakland County Board of Commissioners on July 6, 2011, with the original record thereof now remaining in my office. In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at Pontiac, Michigan this 6th day of July, 2011.