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Home My WebLink About60C - OUTSOURCING FIRE AND EMERGENCY MEDICAL SERVICES REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: FEBRUARY 21, 2012 TITLE: APPROVED OUTSOURCING FIRE AND EMERGENCY ? As Recommended MEDICAL SERVICES ? As Amended ? Ordinance on 15f Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute an agreement with the Orange County Fire Authority for the purposes of outsourcing fire and emergency medical services effective April 20, 2012 for an eight-year term with renewal options, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The Orange County Fire Authority (OCFA) is one of the largest regional fire service providers in California. The Authority responds to over 87,000 emergency incidents throughout its fire protection area. The OCFA currently serves 1.4 million residents in an area of 550 square miles. The service area consists of 23 jurisdictions including the unincorporated county and 22 member cities with real property having an assessed valuation in excess of $213 billion dollars. OCFA is one of 12 fire agencies that are accredited by the Commission of Fire Accreditation International (CFAI) in California. This accreditation establishes high performance standards that its members must comply with, thereby ensuring the highest level of fire protection. The principle benefits of a regional system are reduced costs, increased effectiveness, and a larger depth of resources such as hazmat, swift water, urban search and rescue, and rotor and fixed wing aircraft. This agreement represents the following scope of services: all emergency fire, and emergency medical services, Fire Investigation, Training, Hazardous Materials response, Urban Search and Rescue response, Fire Prevention, Communications and Dispatch services, Information Technology services, facility and apparatus maintenance and administrative support by OFCA. The level of service provided to the City will be the same as the general level of similar services provided by OCFA elsewhere within its boundaries. Service criteria specific to Santa Ana are set forth in the proposed agreement. Any changes to such levels and method of service shall be agreed upon by the Board of Directors of the OCFA and the City. 60C-1 Outsourcing Fire and Emergency Medical Services February 21, 2012 Page 2 All ten fire stations in the City will remain operational. Any changes in fire suppression and emergency medical response service station assignments must be agreed upon between the Authority and the City. Additionally, the City will seek a private provider of ambulance services. A Request for Proposals is being distributed to solicit proposals which will then be approved by the City Council in a separate action. The implementation of a private ambulance service will coincide with the April 20, 2012 transfer date of the City's fire service to OCFA. If an interim service is required, a temporary contractor will be assigned for a maximum of 90 to 120 days. FISCAL IMPACT The FY11-12 Budget has sufficient funding to cover the net cost resulting from transitioning Santa Ana Fire to OCFA. The City will generate estimated annuals savings of $8.7M to $10M commencing with fiscal year 2012-13. APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 60C-2 AMENDED ORANGE COUNTY FIRE AUTHORITY JOINT POWERS AGREEMENT 4509-08 110179 v3 9/27/99 60C-3 TABLE OF CONTENTS Page No. RECITALS .......................................................................................................................1 AGREEMENT ..................................................................................................................3 ARTICLE I. POWERS AND PURPOSES .......................................................................3 1. Authority Created ..............................................................................................3 2. Purpose of the Agreement; Common Power to be Exercised ...........................3 3. Effective Date of Formation ...............................................................................3 4. Powers ..............................................................................................................4 ARTICLE II. ORGANIZATION ........................................................................................7 1. Membership ......................................................................................................7 2. Designation of Directors ....................................................................................7 3. Principal Office ..................................................................................................8 4. Meetings ...........................................................................................................8 5. Quorum; Voting .................................................................................................9 6. Executive Committee ........................................................................................9 7. Officers 9 8. Minutes ...........................................................................................................10 9. Rules ...............................................................................................................10 10. Fiscal Year ....................................................................................................10 11. Assent of Members .......................................................................................10 12. Committees ...................................................................................................11 4509-08 i 110179 v3 9/27/99 60C-4 13. Additional Officers and Employees; Contract Services .................................11 ARTICLE III. TRANSFER OF FIRE OPERATIONS .....................................................12 1. List of Assets and Liabilities ............................................................................12 2. Transfer of County Assets and Liabilities ........................................................12 A. Personnel ............................................................................................13 B. Assets .................................................................................................13 C. Reserves .............................................................................................14 D. Contracts ............................................................................................14 E. Records ...............................................................................................15 3. Authority Assumption of Liability .....................................................................15 ARTICLE IV. FUNDING OF FIRE OPERATIONS ........................................................16 1. General Budget ...............................................................................................16 2. Expenditures for the Approved Budget ...........................................................17 3. Contributions for Budgeted Amounts ..............................................................17 A. Structural Fire Fund ............................................................................17 B. Cash Contract Cities ...........................................................................17 C. Participation In Maintenance and Replacement Programs .................18 D. Responsibility For Capital Improvements ............................................18 E. Cap on Annual Adjustments ................................................................18 F. Cost Basis For Next year's Adjustment ...............................................21 G. Expiration of Cap ................................................................................21 H. New Resources To Cash Contract Cities ............................................21 450M8 110179 v3 ii 9127!99 60C-5 I. John Wayne Airport ..............................................................................21 J. Termination ..........................................................................................21 4. Equity ..............................................................................................................22 5. Approval of Bonded Indebtedness ..................................................................24 6. Authority Cooperation .....................................................................................24 ARTICLE V. ACCOUNTING AND AUDITS ..................................................................25 1. Accounting Procedures ...................................................................................25 2. Audit ................................................................................................................25 ARTICLE VI. PROPERTY RIGHTS ..............................................................................25 1. Vehicles, Equipment, Facilities and Property ..................................................25 A. Ownership ...........................................................................................25 B. Capital Improvements .........................................................................26 C. Maintenance and Repairs ...................................................................26 D. Equipment and Vehicle Replacement/Depreciation Programs ...........26 2. Disposition of Assets Upon Termination .........................................................27 3. Liabilities .........................................................................................................27 4. Indemnification and Insurance ........................................................................27 ARTICLE VII. WITHDRAWAL AND ADDITION OF MEMBERS ..................................30 1. City Member Withdrawal .................................................................................30 A. Initial Term ..........................................................................................30 B. Subsequent Terms ..............................................................................31 C. Removal From Board After Notice of Withdrawal ...............................32 4509-08 110179 v3 III 9/27/99 60C-6 D. Rescission of Notice ...........................................................................32 E. Property Tax Transfer Negotiations ....................................................33 2. Addition of New City Members ........................................................................33 3. Withdrawal of County ......................................................................................33 4. Property of Withdrawing Members ..................................................................34 ARTICLE VIII. TRANSITION TO AUTHORITY ............................................................34 ARTICLE IX. NOTICE OF AGREEMENT .....................................................................34 1. Initial Notice .....................................................................................................34 2. Additional Notices ...........................................................................................35 3. Notice to Members ..........................................................................................35 4. Amendment .....................................................................................................35 5. Headings .........................................................................................................35 6. Severability ......................................................................................................36 7. No Continuing Waiver .....................................................................................36 8. Successors ......................................................................................................36 9. No Third Party Beneficiary ..............................................................................36 SIGNATURE PAGES ....................................................................................................37 4509-08 110179 v3 iv 9727199 60C-7 AMENDED ORANGE COUNTY FIRE AUTHORITY JOINT POWERS AGREEMENT This amended Agreement is made this 23rd day of September, 1999 by and between the following public entities (collectively, the "members"), BUENA PARK, CYPRESS, DANA POINT, IRVINE, LAGUNA HILLS, LAGUNA NIGUEL, LAKE FOREST, LA PALMA, LOS ALAMITOS, MISSION VIEJO, PLACENTIA, SAN CLEMENTE, SAN JUAN CAPISTRANO, SEAL BEACH, STANTON, TUSTIN, VILLA PARK, WESTMINSTER AND YORBA LINDA (collectively, the "Cities") and the COUNTY OF ORANGE (the "County"). RECITALS A. County operates the Orange County Fire Department (the "Fire Department"), which presently provides fire protection, prevention and suppression services and related and incidental services to Cities, as well as to the unincorporated area of the County and State areas of responsibility ("SRA"). B. County agrees that Cities require additional policy input into and direction over the costs of such services and use of structural fire fund taxes levied therefor. 4509-08 1 110179 v3 9/27/99 60C-8 C. Cities and County have studied and discussed policy input and cost control for over three years and have determined that creation of a joint power entity to administer fire service operations and delivery serves their needs for policy input and cost control. D. Each member is a public agency as defined by Government Code Section 6500 et seq. and is authorized and empowered to contract for the joint exercise of powers common to each member. E. The members now wish to jointly exercise their powers to provide for mutual fire protection, prevention and suppression services and related and incidental services, including but not limited to, creation, development, ownership and operation of programs, facilities, and funds therefor through the establishment of the "Orange County Fire Authority" (the "Authority"). NOW, THEREFORE, in consideration of the mutual promises set out, the parties agree as follows: 4509-08 2 110179 v3 9/27199 60C-9 AGREEMENT ARTICLE I. POWERS AND PURPOSES 1. Authority Created. The Authority is formed by this Agreement pursuant to the provisions of Article 1, Chapter 5, Division 7, Title I (commencing with Section 6500) of the Government Code of the State of California. The Authority shall be a public entity separate from the parties hereto and its debts, liabilities and obligations shall not be the debts, liabilities and obligations of its members. 2. Purpose of the Agreement; Common Powers to be Exercised. Each member individually has the statutory ability to provide fire suppression, protection, i prevention and related and incidental services including but not limited to emergency medical and transport services, and hazardous materials regulation, as well as providing facilities and personnel for such services. The purpose of this Agreement is to jointly exercise the foregoing common powers in the manner set forth herein. 3. Effective Date of Formation. The Authority shall be formed as of February 3, 1995, or such later date as agreed to in writing by all the members (the "Effective Date"), provided that the Authority has met the insurance requirements set forth in Article VI., Section 4. D. below and has become enrolled as a member in the Orange County Employees Retirement System (OCERS). 4509-08 3 110179 v3 9/27/99 60C-10 4. Powers. Pursuant to and to the extent required by Government Code Section 6509, the Authority shall be restricted in the exercises of its powers in the same manner as is a general law city. The Authority shall have the power to do any of the following in its own name: A. To exercise the common powers of its members in providing fire suppression, protection, prevention and related and incidental services. B. To make and enter into contracts, including contracts with its members; notwithstanding, the Authority may not enter into real property development agreements. C. To assume Fire Department contracts relating to fire suppression, protection, prevention and related and incidental services. D. To determine compensation and working conditions and negotiate contracts with employees and employee organizations. E. To employ such agents, employees and other persons as it deems necessary to accomplish its purpose. 4509-08 4 110179 v3 9/27/99 60C-11 F. To lease, acquire, hold and dispose of property. G. To invest surplus funds. H. To incur debts, liabilities, or obligations, provided that all long term bonded indebtedness, certificates of participation or other long-term debt financing require the prior consent of the members as set out in Article IV. hereof. 1. To sue and be sued in its own name. J. To apply for grants, loans, or other assistance from persons, firms, corporations, or governmental entities. K. To use any and all financing mechanisms available to the Authority, subject to the provisions of Article IV. hereof. L. To prepare and support legislation related to the purposes of the Agreement. 4509-0a 5 110179 v3 9/27/99 60C-12 M. To lease, acquire, construct, operate, maintain, repair and manage new or existing facilities as well as to close or discontinue the use of such facilities. N. To levy and collect payments and fees for services, provided that paramedic or ambulance user fees shall be approved by the member(s) affected. 0. To impose new special taxes or assessments as authorized by law to the extent allowed by law, and in coordination with the underlying jurisdiction. P. To provide related services as authorized by law. Q. To contract for the services of attorneys, consultants and other services as needed. R. To purchase insurance or to self-insure and to contract for risk management services. 4509-08 6 110179 v3 9127199 60C-13 S. To adopt rules, regulations, policies, bylaws and procedures governing the operation of the Authority. T. To determine the compensation of Directors. ARTICLE II. ORGANIZATION 1. Membership. The members of the Authority shall be the original parties hereto which have not withdrawn from the Authority, and such other cities as may join the Authority after execution of this Agreement. New members may join on the terms and conditions set out in Article VII. hereof. 2. Designation of Directors. Each member by resolution of its governing body shall designate and appoint one representative to act as its Director on the Authority Board of Directors (the "Board"), except the County whose Board of Supervisors shall appoint two representatives to act as its Directors. Each representative shall be a current elected member of the governing body. Each Director shall hold office until the selection of a successor by the appointing body. Each member shall also appoint an alternate to act in each Director's absence. Each alternate shall be a current elected representative of the governing board of the member. Each Director and alternate shall serve at the pleasure of his or her appointing body and may be removed at any time, with or without cause, at the sole 4509-08 7 110179 v3 9127/99 60C-14 discretion of that appointing body. Any vacancy shall be filled in the same manner as the original appointment of a Director and/or alternate. With approval of the Board, a Director or alternate may be reimbursed for reasonable expenses incurred in the conduct of the business of the Authority. 3. Principal Office. The principal office of the Authority shall be the Fire Department's Water Street headquarters or as may be otherwise designated by the Authority from time to time. 4. Meetings. A. The first and organizational meeting of the Authority shall be held at its principal office on the Effective Date. At that meeting, the Board may determine whether to adopt a rotation system of two (2) and four (4) year terms to provide for increased continuity on the Board and shall classify themselves into any groups selected. B. The Board shall meet at the principal office of the Authority or at such other place as may be designated by the Board. The time and place of the regular meetings of the Board shall be determined by resolution adopted by the Board, and a copy of such resolution shall be furnished to each party hereto. All Board meetings, including regular, adjourned and special meetings, shall be called, noticed and held in 4509-08 8 110179 v3 9127199 60C-15 accordance with the Ralph M. Brown Act, Section 54950, et seq. of the Government Code (the "Brown Act") as it may be amended from time to time. 5. Quorum; Voting. A majority of the Directors shall constitute a quorum for the purpose of the transaction of business relating to the Authority. Each Director, or alternate in the absence of any voting Director, shall be entitled to one vote. Unless otherwise provided herein, a vote of the majority of those present and qualified to vote shall be sufficient for the adoption of any motion, resolution or order and to take any other action deemed appropriate to carry forward the objectives of the Authority. 6. Executive Committee. The Board shall select from among its members an Executive Committee, one member of which shall be a County Supervisor, and shall designate the functions to be performed by the Executive Committee, as allowed by law. 7. Officers. The Board shall elect from among its members a chair and vice-chair and thereafter at the first meeting in each fiscal year the Board shall elect or re-elect a chair and vice-chair. In the event that the chair or vice-chair ceases to be a Director, the resulting vacancy shall be filled in the same manner at the next regular meeting of the Board held after such vacancy occurs. In the absence or inability of the chair to act, the vice-chair shall act as chair. The chair, or in his or her absence the vice-chair, shall preside at and conduct all meetings of the Board. In the absence of the 4509-08 110179 v3 9 9127/99 60C-16 chair and vice-chair, the Board shall elect a chair pro tempore to preside at and conduct the meeting. The Board shall also appoint a clerk of the Authority. 8. Minutes. The clerk of the Authority shall provide notice of, prepare and post agendas for and keep minutes of regular, adjourned regular, and special meetings of the Board, and shall cause a copy of the minutes to be forwarded to each Director. The clerk will otherwise perform the duties necessary to ensure compliance with the Brown Act and other applicable rules or regulations. 9. Rules. The Board may adopt from time to time such bylaws, rules and regulations for the conduct of its affairs that are not in conflict with this Agreement, as it may deem necessary. 10. Fiscal Year. The Authority's fiscal year shall be July I of each year, or in the year of its formation, the Effective Date, to and including the following June 30. 11. Assent of Members. The assent or approval of a member in any matter requiring the approval of the governing body of the member shall be evidenced by a copy of the resolution of the governing body filed with the Authority. 4509-08 1 0 110179 v3 9127/99 60C-17 12. Committees. The Board may establish standing or ad hoc committees or subcommittees composed of Board members, staff and/or the public to make recommendations on specific matters. 13. Additional Officers and Employees; Contract Services. A. Pursuant to Government Code Sections 6505.5 and 6505.6, the Board shall appoint an officer or employee of the Authority, an officer or employee of a member public agency or a certified public accountant to hold the offices of treasurer and auditor for the Authority. Such person or persons shall possess the powers of and shall perform the treasurer and auditor functions for the Authority required by Government Code Sections 6505, 6505.5, and 6505.6, including any subsequent amendments thereto. Pursuant to Government Code Section 6505.1, the clerk of the Authority and the auditor and treasurer shall have charge of certain property of the Authority. The treasurer and auditor shall assure that there shall be strict accountability of all funds and reporting of all receipts and disbursements of the Authority. The treasurer, auditor and clerk of the Authority shall be required to file an official bond with the Board in an amount which shall be established by the Board. Should the existing bond or bonds of any such officer be extended to cover the obligations provided herein, said bond shall be the official bond required herein. The premiums on any such bonds attributable to the coverage required herein shall be appropriate expenses of the Authority. 4509-08 1 1 110179 v3 9127/99 60C-18 B. The Board shall appoint general counsel and special counsel to the Authority to serve as necessary. C. The Board may contract with a member to provide necessary administrative services to the Authority as appropriate. Any administrative duties also may rotate from year to year. ARTICLE Ill. TRANSFER OF FIRE OPERATIONS 1. List of Assets and Liabilities. An up-to-date list of all Fire Department personnel, employment agreements, pension agreements, assets (including but not limited to real property, equipment, Fire Department reserves, contracts and deposits) and all known liabilities (including but not limited to tort and workers' compensation cases and claims) shall be prepared by the transition team during the transition referred to in Article VIII. below. 2. Transfer of County Assets and Liabilities. Effective as of the date of Authority formation, County shall transfer to the Authority all assets and liabilities of the Fire Department, exclusive of the Weed Abatement and Hazardous Materials Program Office and their personnel (the Asset Transfer), as further set out in this Article. 4509-08 ) 2 110179 v3 9127199 60C-19 A. Personnel. The parties agree that the Authority is the successor employer to the County by operation of law, including for retirement and pension purposes. On the Effective Date, each and every employee of the Fire Department shall become an employee of the Authority on exactly the same terms and conditions as set forth in the County's existing Memoranda of Understanding ("MOU's"), employment agreements and all other applicable employment rules, regulations, ordinances and resolutions. The Board shall forthwith adopt and ratify such MOU's, employment agreements, and employment rules, regulations, ordinances and resolutions for each of the Authority employees and shall take such other and further actions as authorized and necessary to implement this subparagraph A. The Board also shall take all necessary steps to confirm continuation of membership in the County's 1937 Act Retirement system on the same terms and conditions. B. Assets. All Fire Department assets, including and not limited to real property, including the Fire Headquarters complex located at 180 South Water Street in Orange (but excepting the four deactivated fire stations located at 1502 South Greenville Street, Santa Ana; 12962 Dale Street, Garden Grove; 521 North Figueroa Street, Santa Ana; and 31411 La Matanza Street, San Juan Capistrano) and personal property and equipment and apparatus, whether or not located at fire stations, the Fire Headquarters complex, on equipment or otherwise shall transfer to the Authority in their "as is" condition as of the Effective Date. As part of the consideration for the County's Asset Transfer and contribution to the Authority of its SFF from the unincorporated area, 4509-0a 13 110179 v3 9/27/99 60C-20 the Authority shall assume the Fire Department's obligation for payment of $14.5 million to the County for purchase of Fire Department assets. The parties acknowledge that $8.2 million remains owing, and that the Authority shall make a $4.1 million payment by June 30, 1995 and a $4.1 million payment by June 30, 1996. C. Reserves. All Fire Department reserves, including the Fire Department's Fund 130 contingency, as shown in the County's 1994-95 Final Budget, shall transfer, unencumbered, to the Authority as of the Effective Date. D. Contracts. Except for the SRA agreement with the California Department of Forestry and Fire Protection ("CDF"), all existing County agreements and contracts involving the Fire Department or its personnel, including but not limited to contracts with Structural Fire Fund and cash contract Cities, mutual aid agreements, automatic aid agreements, County island agreements, and entry, access and roadwork agreements, shall be assigned to the Authority as of the Effective Date, with any service or obligation to be provided or performed thereafter by the Authority. A list of all such contracts shall be developed during the transition period. The Authority agrees to assume all of County's obligations, duties and liabilities under said agreements and contracts. With respect to contracts between County and the Structural Fire Fund Cities and cash contract Cities, each City member hereby agrees to the assignment to the Authority and agrees to release County as of the Effective Date from any further obligations to any City member under said contracts upon assignment. As part of the 4509-08 1 4 110179 v3 9/27/99 60C-21 consideration for the County's Asset Transfer and contribution to the Authority of its SFF from the unincorporated area, the Authority agrees to subcontract with County for the provision of services to all areas within the County which have been designated as SRAs or enter into another arrangement on such terms as are acceptable to the CDF and the County. As additional consideration for the County's Asset Transfer and contribution of its SFF from the unincorporated area, the Authority further agrees to contract with the County for the Authority's provision of services to the County's unincorporated areas and for the Authority's provision of aircraft rescue fire fighting service to John Wayne Airport. E. Records. Any and all business records and files, whether computer records, hard copy, microfilm or fiche, historical data, rosters, personnel records, organizational charts, job descriptions, deeds, easements, equipment logs, warranties, manuals and so forth, necessary or helpful to provide services shall be transferred by the County to the Authority during the transition period. 3. Authority Assumption of Liability. In further consideration for the County's Asset Transfer and contribution of its SFF from the unincorporated area, the Authority shall assume responsibility for any and all loss, litigation, liability, injury, damage, claim, demand, and tort or workers' compensation incidents that occur on or after the Effective Date. The County shall retain responsibility and liability for any and all such incidents that occur prior to the Effective Date and shall retain all risk management 4509-08 5 110179 v3 9/27199 60C-22 reserves that have been set aside for such prior incidents. The Authority may contract with the County to receive risk management services on such terms as agreed to by the Authority and the County. Notwithstanding, the Authority acknowledges that it shall not be entitled to become a member of the County's self-insurance pool without the County's written consent. ARTICLE IV. FUNDING OF FIRE OPERATIONS 1. General Budget. Within sixty (60) days after the first meeting of the Board, a general budget for the first fiscal year shall be adopted by the vote of a majority of all of the Directors. The initial budget and each succeeding budget shall include, but not be limited to, the following: (a) the general administrative expenses, operating expenses and necessary reserves of the Authority to be incurred during the period covered by the budget; and (b) the allocation of costs among the members of the Authority in the amounts necessary to cover the budget items set out in 1. (a) above. Thereafter, at or prior to the last meeting of the Board for each fiscal year, a general budget shall be adopted for the ensuing fiscal year or years by a vote of at least a majority of all of the Directors of the Board. A written budget performance report shall be presented to the Board. 4509-0s 16 110179 vs 9127199 60C-23 2. Expenditures for the Approved Budget. All expenditures within the designations and limitations of the approved general budget shall be made on the authorization of the Board for general budget expenditures without further action. No expenditures in excess of those budgeted shall be made without the approval of a majority of all of the Directors of the Board. 3. Contributions for Budgeted Amounts. A. Structural Fire Fund. County receives Structural Fire Fund ("SFF") from the unincorporated area and all member Cities except Stanton, Tustin, San Clemente, Buena Park, Placentia, Westminster and Seal Beach. On behalf of the cities receiving SFF, and the unincorporated area, County shall pay all SFF it receives to the Authority to meet budget expenses and fund reserves in accordance with the County's normal tax apportionment procedures pursuant to the California Revenue and Taxation Code and the County's tax apportionment schedules. B. Cash Contract Cities. As part of its annual budget process, the Authority shall determine amounts owing from cash contract Cities. Such amounts are due and payable within thirty (30) days of receipt of a billing therefor. Subject to the cap set forth in 3. E. below, the Authority shall make an adjustment in annual costs for its service to cash contract Cities to reflect the annual percentage change in the cost of fire system operations consistent with the cost calculation methodology in place on the Effective Date of the Authority, or the date they became members. Notwithstanding the 4509-08 110179 A 17 9127199 60C-24 foregoing, the cost calculation methodology shall include the cost of any proportional share of any long term debt repayment obligations. C. Participation In Maintenance and Replacement Programs. In addition to the cost calculation methodology set forth in B. above, and subject to the cap set forth in E. below, cash contract Cities shall pay (i) the cost of participation in the Authority's facilities maintenance program as set forth in Article VI., Section 1. C., (ii) the cost of participation in the Authority's vehicle replacement/depreciation program as set forth in Article VI., Section 1. D., and (iii) the cost of participation in the Authority's equipment replacement/depreciation program as set forth in Article VI., Section 1. D. D. Responsibility For Capital Improvements. In addition to the cost calculated in B. and C. above, and irrespective of the cap in E. below, cash contract Cities shall be responsible for making Authority-required capital improvements to City- owned stations or facilities, as set forth in Article VI., Section 1. B. A capital i improvement shall be any improvement or repair in excess of $15,000. E. Cap on Annual Adiustments. Except for the costs set forth in H. below and in Article VI., Section 1. B., no annual cost adjustment shall exceed three and a half percent (3.5%) in fiscal years 2000-2001 through 2004-2005, and four percent (4%) for the next five fiscal years, of the total charges for the preceding year. The determination of each city's annual adjustments shall be made as follows: 4509-08 1 8 110179 v3 9/27/99 60C-25 i (1) For Placentia Seal Beach Stanton and Tustin: (a.) The prior year's charge shall be adjusted by an amount which represents the percentage change in the cost of fire system operations as set forth in 3. B. above. (b.) Any difference between that amount and the amount of increase allowable under the applicable cap shall then be applied to the City's financial obligation under the Authority's facilities maintenance program. (c.) Any difference between the sum of those two amounts and the amount allowable under the applicable cap shall next be applied to the City's financial obligation under the Authority's equipment replacement/depreciation program. (d.) Any difference between the sum of those three amounts and the amount of increase allowable under the applicable cap shall then be applied to the City's financial obligation under the Authority's vehicle replacement/depreciation program. 4509-08 1 9 110179 v3 9/27/99 60C-26 (2) For Buena Park San Clemente and Westminster: (a.) The prior year's charge, exclusive of vehicle replacement/depreciation costs, shall be adjusted by an amount which represents the percentage change in the cost of fire system operations as set forth in 3. B. above. (b.) Any difference between that amount and the amount of increase allowable under the applicable cap shall then be applied to the City's financial obligation under the Authority's facilities maintenance program. (c.) Any difference between the sum of those two amounts and the amount allowable under the applicable cap shall next be applied to the City's financial obligation under the Authority's equipment replacement/depreciation program. (d.) Effective July 1, 2000, said cities shall continue to participate in the Authority's vehicle replacement/depreciation program on the terms and conditions in effect June 30, 2000; provided however, that the amount of any subsequent adjustment to an immediately preceding year's vehicle replacement/depreciation charge, when added to the adjustments set forth in a., b. and i c. above, shall not exceed the applicable cap on the total charges for the preceding year. 4509-08 2 0 110179 v3 9/27/99 60C-27 F. Cost Basis For Next Year's Adiustment. The total annual adjustment, with the applicable cap set forth herein, shall constitute the basis for next year's annual adjustment. G. Expiration of Cap. Notwithstanding any other provision of this Agreement, the Board of Directors, by two-thirds vote of all Directors, may adopt a new cost calculation methodology and/or a new cap for cash contract Cities, and/or a different membership term for all members, pursuant to Article VII., Section 1. B., to be operative July 1, of the first year of the next succeeding term. Any such changes must be adopted by board action no later than July 1, of the last year of the then current term. H. New Resources To Cash Contract Cities. Notwithstanding the foregoing provisions, whenever new resources are committed to a cash contract City, the member shall pay the incremental company cost for such resources. The additional resources and increased cost shall not be implemented without consent of the member. 1. John Wayne Airport. Service levels and charges therefore for aircraft rescue firefighting services to John Wayne Airport shall be agreed upon by the Authority and the member having fire service jurisdiction. J. Termination. Failure by any member to make payments when due constitutes grounds for expulsion from the Authority. Prior to expulsion, the Authority 4509-08 21 110179 v3 9127/99 60C-28 shall provide written notice of its intention to expel such member if payment is not received within thirty (30) days of the date of such notice. Repeated failure to make payments when due shall constitute grounds for expulsion and/or imposition of an Authority-determined late fee. Alternatively, or in addition to the remedies set forth herein, the Authority may bring legal action to collect unpaid amounts. 4. E quit . Annually after the conclusion of each fiscal year and consideration of the audited financial statements for that year, and after consideration of the Authority's financial needs, the Board of Directors in its sole discretion shall determine whether sufficient unencumbered funds from that fiscal year are available for additional services or resources to Structural Fire Fund members. In the event the Board determines that (1) such funds are available, (2) a distribution is warranted, and (3) that it is appropriate to do so, it shall allocate those funds, or any portion thereof, to a restricted Structural Fire Fund Entitlement fund, as follows: A. The Authority shall use the general methodology employed in Model 2A of the 1999 Final Report by the Davis Group regarding "Equity Issues Related to the Financing of OCFA Services" to determine the relative status of Structural Fire Fund members as follows: A base period comparison for each member of cost to serve, on the one hand, and Structural Fire Fund contributions and cash contract charges, on the other, will be established, taking into account, the three-year average of consumption, population and 4509-08 22 110179 v3 9/27/99 60C-29 assessed valuation for the immediately preceding three fiscal years. Upon a two-thirds vote of all Directors representing Structural Fire Fund members, a different methodology may be used to determine the relative status of Structural Fire Fund members. B. The above-mentioned base period status of Structural Fire Fund members shall be compared to all members, without regard to the 10% variance factor in the Davis study. C. Those Structural Fire Fund members whose Structural Fire Fund revenues were greater than the cost to serve, based on the base period comparison in A. above, shall receive a pro rata allocation from the Entitlement fund, based on the relative amounts by which, respectively, those Structural Fire Fund revenues exceeded said cost to serve. In no event shall a Structural Fire Fund member receive allocations that exceed the average amount by which such revenues exceeded said cost to serve during the applicable base period. 4509-0a 2 3 110179 0 9127/99 60C-30 Allocations from the Entitlement fund may thereafter be used for Board-approved and Authority-related service or resource enhancements to such Structural Fire Fund members. No Structural Fire Fund member will be required to make additional payments for service on account of equity. No Structural Fire Fund member will be entitled to receive cash payments or reimbursements on account of equity. 5. Approval of Bonded Indebtedness. By a two-thirds vote of all members, the Authority may authorize the issuance of any long term bonded indebtedness. Any cash contract City that withdraws pursuant to Article VII. shall, after ceasing to be a member of the Authority, not be responsible for payment of its proportional share of any bonded indebtedness approved by the Authority. Short-term tax anticipation notes with a one-year (or shorter) term may be authorized by a majority vote of all of the directors of the Board. 6. Authority Cooperation. The Authority agrees to fully cooperate with each of the members in pursuing federal and state claims for emergency response reimbursements. III 4509-08 24 110179 v3 9/27/99 60C-31 ARTICLE V. ACCOUNTING AND AUDITS 1. Accounting Procedures. Full books and accounts shall be maintained for the Authority in accordance with practices established by, or consistent with, those utilized by the Controller of the State of California for like public entities. In particular, the Authority's auditor and treasurer shall comply strictly with requirements governing joint powers agencies, Article 1, Chapter 5, Division 7, Title 1 of the Government Code of the State of California (commencing with Section 6500). 2. Audit. The records and accounts of the Authority shall be audited annually by an independent certified public accountant and copies of the audited financial reports, with the opinion of the independent certified public accountant, shall be filed with the County Auditor, the State Controller and each member within six (6) months of the end of the fiscal year under examination. ARTICLE VI. PROPERTY RIGHTS 1. Vehicles. Equipment, Facilities and Property. A. Ownership. Except as provided herein, all real and personal property, including but not limited to, facilities constructed, installed, acquired or leased by the Authority, apparatus and equipment, personnel and other records and any and all 4509-08 110179 v3 25 9/27/99 60C-32 reserve funds shall be held in the name of the Authority for the benefit of the members of the Authority in accordance with the terms of this Agreement. Fire stations that are owned by Cities shall be leased to the Authority for one dollar ($1.00) per annum. B. Capital Improvements. Capital improvements to cash contract city- owned stations or facilities, within their jurisdictions, shall be the responsibility of each member. Such capital improvements may be required by the Authority upon a determination by the Authority, after good faith consultation with a member agency, that such improvements are needed to protect the health, safety or welfare of Authority employees or to maintain the station in a state of operational readiness. Capital improvements to stations owned by the Authority shall be the responsibility of the Authority. For cash contract Cities, the construction of new stations or facilities, within and primarily benefiting their jurisdictions, shall be the responsibility of each city. Such construction shall meet reasonable standards and specifications prescribed by the Fire Chief. C. Maintenance and Repairs. Each cash contract City shall make an initial payment to the Authority of $15,000 for each fire station within its jurisdiction for maintenance and repairs not included in the original cost calculation methodology. The Authority shall carry forward unspent amounts to the next fiscal year. At the beginning of each fiscal year, said cities shall pay the Authority an amount sufficient to bring its balance back to $15,000 for each such station. D. Equipment and Vehicle Replacement/Depreciation Programs. Cash contract Cities shall participate in funding the Authority's equipment and vehicle replacement/depreciation programs. Such programs shall be administered fairly and equitably by the Authority and in accordance with Generally Accepted Accounting Principles. 4509-08 26 110179 v3 9/27/99 60C-33 2. Disposition of Assets Upon Termination. The Authority may vote to terminate this Agreement, or termination will occur if only one member is left in the Authority. If termination occurs, all surplus money and property of the Authority shall be conveyed or distributed to each member in proportion to all funds provided to the Authority by that member or by the County on behalf of that member during its membership, whether Structural Fire Fund or cash contract amounts. Each member shall execute any instruments of conveyance necessary to effectuate such distribution or transfer. In any such distribution, the amount of Structural Fire Fund derived from each incorporated or unincorporated city areas shall be considered as received from that member in the same manner as cash contract payments have contributed to surplus assets. 3. Liabilities. Except as otherwise provided herein, the debts, liabilities and i obligations of the Authority shall be the debts, liabilities or obligations of the Authority alone and not of the parties of this Agreement. 4. Indemnification and Insurance. A. Except as provided in Article VI., Section 4. E. below, from and after the Effective Date, the Authority shall defend, indemnify and hold harmless the County and each of the Cities and their officers, employees, agents and representatives with respect to any loss, damage, injury, claim, demand, litigation or liability and all 4509-08 27 110179 Q 9/27/99 60C-34 expenses and costs relating thereto (including attorneys' fees) arising out of or in any way related to the performance of services pursuant to this Agreement. B. Except as provided in Article VI., Section 4. E. below, from and after the Effective Date, the Authority shall defend, indemnify and hold harmless the County and each of the County's officers, employees, agents and representatives with respect to any loss, damage, injury, claim, demand, litigation or liability and all expenses and costs relating thereto (including attorneys' fees) arising out of or in any way related to any Fire Department contract or agreement assumed by or otherwise transferred to the Authority. C. Except as provided in Article VI., Section 4. E. below, from and after the Effective Date, the Authority shall defend, indemnify and hold harmless the County and each of the County's officers, employees, agents and representatives with respect to any loss, damage, injury, claim, demand, litigation or liability and all expenses and costs relating thereto (including attorneys' fees) arising out of or in any way related to any Fire Department asset to be transferred to the Authority, including but not limited to real property, personal property, equipment and apparatus. D. From and after the Effective Date, the Authority shall maintain during the term of this Agreement, workers' compensation insurance as required by law and, in addition, general comprehensive liability insurance in the minimum limit of 4509-08 110179 v3 28 9/27/99 60C-35 $5,000,000 combined single limit per occurrence and annual aggregate. Each of the Authority members shall be named as an additional insured on the general comprehensive liability policy. Alternatively, the Authority may self-insure. Prior to the Effective Date, the Authority shall provide the County with certificates of insurance or proof of self-insurance evidencing the coverage referred to in this Section 4. D. Such insurance is a condition precedent to performance under this Agreement, and until the Authority obtains insurance as provided for in this Section 4. D., performance under this Agreement is excused and no member shall have any right against any other member in equity or law. E. From and after the Effective Date, the County shall defend, indemnify and hold harmless the Authority and each City member and their officers, employees, agents and representatives with respect to any loss, damage, injury, claim, demand, litigation or liability and all expenses and costs relating thereto (including attorneys' fees) arising out of the Fire Department's actions or omissions prior to the Effective Date hereof which are related to the provision of fire services or to the administration of Fire Department contracts, facilities, sites or assets, and which may include past, present or ongoing, or any future release of any hazardous material, hazardous substance or hazardous waste as defined under state and federal law or regulation. The Authority and the Cities agree that the County's obligations under this Section 4. E. shall only apply to costs, losses, damage, injuries, claims, demands, 4509-0s 29 110179 v3 9/27/99 60C-36 litigation or liabilities for which a written claim has been received by the County prior to February 3, 2000. F. Notwithstanding Article VI., Section 4, the members agree that no immunity available to the County or the Cities under state or federal law or regulation shall be waived with respect to any third party claim. ARTICLE VII. WITHDRAWAL AND ADDITION OF MEMBERS 1. City Member Withdrawal. A. Initial Term. Cities shall be members of the Authority for an initial 10-year term. For Structural Fire Fund cities, the initial 10-year term shall begin on July 1, 2000 and end on June 30, 2010. For a cash contract City, the first 10-year term shall begin on July 1, 2000, only upon the consent of such city. Cash contract Cities that do not give such approval by July 1, 2000 shall give notice of withdrawal to the Clerk of the Authority by July 1, 2000, to be effective July 1, 2001. Failure to provide such notice shall be deemed that city's consent to a 10-year term, beginning July 1, 2000. Provided however, that the Cities of Stanton, Westminster and Buena Park may withdraw from the Authority by giving notice of withdrawal to the Clerk of the Authority by December 31, 2000, to be effective December 31, 2001. Failure to provide 4509-08 30 110179 v3 9/27/99 60C-37 such notice shall be deemed that city's consent to a 10-year term beginning July 1, 2000. Notwithstanding the foregoing paragraph, those three cities shall give notice of their respective intentions within thirty (30) days of completion of any study undertaken to consider creation of any alternative fire service organization. Notwithstanding Article IX., Section 4., this Agreement shall not be amended prior to December 31, 2000. No Authority time or funds shall be spent negotiating service levels with those three cities prior to such city's decision to remain members of the Authority. B. Subsequent Terms. Membership terms shall automatically renew, on the same terms and conditions as the prior term, and with the same cap in effect in the last year of the prior term, except under the following circumstances: (1) Any city may give notice of withdrawal by transmitting written notice of such withdrawal to the clerk of the Authority prior to July 1 of the second to last year of any term. (2) If the Board, by two-thirds vote of all Directors, adopts a new cost calculation methodology and/or a new cap for cash contract Cities, pursuant to Article IV., Section 3. G., then those cities shall have until June 30 of the last year of the 4509-08 110179 v3 31 9/27/99 60C-38 then current term to give written notice to the clerk of the Authority of their intent to renew. (3) If the Board, by two-thirds vote of all Directors, adopts a different minimum membership term pursuant to Article IV., Section 3. G., then cities shall have until June 30 of the last year of the then current term to give written notice to the clerk of the Authority of their intent to renew. Cities that do not give the notice required by B. (2) and (3) above shall be deemed to have elected to withdraw, effective June 30 of the first year of the next succeeding term. Until the effective date of withdrawal, such cities shall be governed by the changes adopted by the Board. C. Removal From Board After Notice of Withdrawal. In the event a notice of withdrawal is given by a city, or deemed to have been given, that city's representative shall be removed from the Board of Directors. D. Rescission of Notice. Any notices required hereunder may be rescinded by the member with approval of the Board of Directors. 4509-08 110179 0 32 9/27/99 60C-39 E. Property Tax Transfer Negotiations. Withdrawal by a Structural Fire Fund city may be subject to property tax transfer negotiations and such additional notices as required by applicable law. 2. Addition of New City Members. Notwithstanding any other provisions herein, a non-member City may join the Authority upon consent of a majority of all of the Directors of the Board and agreement to terms and conditions determined by the Board, which terms and conditions may vary from those set forth in this Agreement. A new City member may be required to transfer to the Authority its fire facilities and assets or to reimburse the Authority for a proportionate share of facilities which the new City will utilize. As a condition of membership, a city may also be required to accept responsibility for a proportion of the debts, obligations, and liabilities of the Authority from its transferred facilities, to the extent agreed upon by the Authority and the new member at the time of membership. The Authority Board may determine to waive all or part of such contribution requirements in return for an offsetting transfer of the new member's fire facilities and assets to the Authority. 3. Withdrawal of County. County shall be a member of the Authority for an initial 10-year term beginning on July 1, 2000 and ending June 30, 2010. Said term shall automatically renew for successive terms in accordance with and subject to the same provisions and exceptions applicable to cities in Section 1. B. and C. In the event of withdrawal, the County shall remain liable for payment of the Structural Fire Fund's 4509-08 110179 v3 33 9/27/99 60C-40 proportional share of any bonded indebtedness of the Authority incurred prior to the date of its withdrawal. 4. Property of Withdrawing Members. Any withdrawing member may negotiate with the Authority for return or repurchase of any and all stations and equipment serving that member's jurisdiction. ARTICLE VIII. TRANSITION TO AUTHORITY The cities and County shall designate a transition team to implement the transfer of assets and liabilities hereunder, to prepare for the Authority's organizational meeting, and to direct the transition of administrative services from the County to the Authority. ARTICLE IX. NOTICE OF AGREEMENT 1. Initial Notice. Upon the Effective Date of this Agreement, the Authority shall timely file with the Orange County Clerk and the Office of the Secretary of State the information required by Government Code Sections 6503.5 and 53051. 4509-08 110179 v3 34 9/27/99 60C-41 2. Additional Notices. Upon any amendments to this Agreement, the Authority shall prepare and timely file with the Orange County Clerk and the Office of the Secretary of State the information required by Government Code Sections 6503.5 and 53051. 3. Notice to Members. Notice to members shall be deemed given when mailed to them, first class, postage prepaid, or faxed to the address/or fax number set out by their signatures. 4. Amendment. This Agreement may not be amended or modified except by a vote of two-thirds of all of the members; provided however, that no amendment shall change the cap, the cost calculation methodology or the length of a term, during the pendency of any term. This Agreement represents the sole and entire agreement between the parties and supersedes all prior agreements, negotiations and discussions between the parties hereto and/or their respective counsel with respect to the subject matter of this Agreement. 5. Headings. The headings in this Agreement are for convenience only and are not to be construed as modifying or explaining the language in the section referred to. 4509-0a 35 110179 v3 9/27/99 60C-42 6. Severability. Should any part, term, or provision of this Agreement be determined by a court to be illegal or unenforceable, the remaining portions or provisions of this Agreement shall nevertheless be carried into effect. 7. No Continuing Waiver. No waiver of any term or condition of this Agreement shall be considered a continuing waiver thereof. 8. Successors. This Agreement shall inure to the benefit of and be binding upon any successors or assigns of the members. No member may assign any right or obligation hereunder without the written consent of a majority of all of the Directors of the Board. 9. No Third Party Beneficiary. The members agree that except as provided in Article IX., Section 8 above, the provisions of this Agreement are not intended to directly benefit, and shall not be enforceable by, any person or entity not a party to this Agreement. 4509-08 110179 v3 36 9/27/99 60C-43 CITY OF SANTA ANA Dated: By: ATTEST: City Clerk NOTICE TO CITY TO BE GIVEN TO: City Manager City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 90702 Phone: (714) 647-5200 Fax: (714) 647-6954 APPROVED AS TO FORM: City Attorney 60C-44 FIRST AMENDMENT TO AMENDED JOINT POWERS AUTHORITY AGREEMENT ORANGE COUNTY FIRE AUTHORITY This First Amendment ("Amendment") to the Amended Joint Powers Authority Agreement (herein referred to as "Agreement"), effective July 1, 2010, is made and entered into by and between the following public entities (collectively referred to as "members"): Aliso Viejo, Buena Park, Cypress, Dana Point, Irvine, La Palma, Laguna Hills, Laguna Niguel, Laguna Woods, Lake Forest, Los Alamitos, Mission Viejo, Placentia, Rancho Santa Margarita, San Clemente, San Juan Capistrano, Seal Beach, Stanton, Tustin, Villa Park, Westminster, and Yorba Linda (collectively referred to as "Cities") and the County of Orange (referred to as the "County"), each of whom is a member of the Joint Powers Authority, Orange County Fire Authority ("Authority"). RECITALS WHEREAS, the Authority presently provides fire protection, prevention and suppression services and related and incidental services to Cities as well as to the unincorporated area of the County and State Responsibility Areas ("SRA"); and WHEREAS, the County and Cities had entered into a Joint Powers Authority Agreement to form the Authority as of February 3, 1995 pursuant to the provisions of 1 554584,1 60C-45 Article 1, Chapter 5, Division 7, Title I (commencing with Section 6500) of the Government Code of the State of California; and WHEREAS, on September 23, 1999, the members entered into an amended Joint Powers Authority Agreement ("1999 Amended Agreement') which superseded all prior agreements between the parties and is incorporated herein by reference; and WHEREAS, the members wish to amend the 1999 Amended Agreement as set forth below and extend all other unamended terms of said Agreement. NOW THEREFORE, the members agree to amend the 1999 Amended Agreement as follows: AGREEMENT 1. Article IV, Sections 3.B., C. and E. are amended to read as follows: "B. Cash Contract Cities. As part of its annual budget process, the Authority shall determine the amounts owing from cash contract Cities. This amount shall be referred to as the "Service Charge." It shall consist solely of the annual cost for operational services (i.e., General Fund costs) consistent with the cost calculation methodology in place on the Effective Date of the Authority, or such later date as a cash contract City became a member, and will include the annual percentage change in the 2 554584 1 60C-46 cost of fire system operations. This amount shall be subject to the cap set forth in 3.E. below. The Service Charge shall not include any of the following: (1) the amortized installments of the 2010 Shortfall set forth and defined in Article IV, Section 3.B.; (2) facilities maintenance costs, as defined in Article VI, Section 1.C.; (3) vehicle replacement costs, as defined in Article VI, Section 1.D.; and (4) the Five-Year Shortfall in excess of seven and one half percent (7.5%) owed by any City as set forth in Article IV, Section 3.17. only in the first year that such payment is owed. Notwithstanding the foregoing, the cost calculation methodology shall include the cost of any proportional share of any long term debt repayment obligations. Cash contract Cities shall be billed quarterly and in arrears for services after services have been performed and such amounts are due and payable within thirty (30) days from receipt of a billing therefor. Additionally and irrespective of the cap set forth in Article IV, Section 3.E., each cash contract City shall pay the "2010 Shortfall." The "2010 Shortfall" is the difference between the actual Authority cost of operational services to the respective cash contract City for fiscal year 2009/2010 and the capped cost of those services. Beginning July 1, 2010, each cash contract City shall pay its 2010 Shortfall by means of equal quarterly payments that will be amortized over the period of July 1, 2010 to June 30, 2020. C. Participation in Maintenance and Replacement Programs. In addition to the cost calculation methodology set forth in Section B. above, and irrespective of the cap set forth in E. below, cash contract Cities shall pay (1) the cost of participation in the Authority's facilities maintenance program as set forth in Article VI, 3 554584 1 60C-47 Section 1.C., and (2) the cost of participation in the Authority's vehicle replacement / depreciation program as set forth in Article VI, Section 1.D. E. Cap on Annual Adjustments. Except for the costs excluded from the Service Charge as set forth in Article IV, Section 3.B, and the costs set forth in Article IV, Section 3.1-1. and Article VI, Section 1.B., no annual cost adjustment to the Service Charge shall exceed four and one half percent (4.5%) of the annual cost for operational services provided to the City for the preceding year. In any year in which the actual cost increase for operational services exceeds four and one half percent (4.5%), the excess amount shall be recorded (i.e., banked) and paid in a subsequent year in which the Service Charge cost adjustment is less than the four and one half percent (4.5%) cap. If only a portion of this excess amount can be paid in one year while remaining under the four and one half percent (4.5%) cap for that year, the remainder shall be carried over from year to year until it is paid in its entirety." 2. Article IV, Sections 3.E.(1) and (2) are deleted. 3. Article IV, Section 3. F. shall be replaced with the following: "F. Modifications to the Service Charge. Beginning with fiscal year 2014/2015, and every five years thereafter, data will be compiled to review the actual 4 554594.1 60C-48 Authority cost for operational services for that fiscal year compared to the capped Service Charge for each cash contract City for that year. The difference between these amounts shall be referred to as the "Five-Year Shortfall." The data will be reviewed and analyzed jointly by the City Managers' Technical Advisory Committee and City Managers' Budget & Finance Committee to confirm the amount of the Five-Year Shortfall, if any, and to determine whether that amount has exceeded the percentage thresholds set forth below which would in turn trigger an adjustment of the Service Charge. If, after reviewing the data which has been compiled, the joint Committees and the Authority cannot agree on the calculations or the data used to calculate the amount of the Five-Year Shortfall, the Authority reserves the right to retain an independent auditor to review the calculations and data. The independent auditor's results as to the calculated amount of the Five-Year Shortfall shall be final and binding. Modifications to the Service Charge, if any, shall be as follows. If the Five- Year Shortfall is less than seven and one half percent (7.5%) of the actual annual Authority costs, for a cash contract City, no additional amounts shall be owed by the City. If any Five-Year Shortfall exceeds seven and one half percent (7.5%), a cash contract City shall pay for the portion of the shortfall necessary to reduce the shortfall below seven and one half percent (7.5%). If the Five-Year Shortfall is between seven and one half percent (7.5%) and fifteen percent (15%), the amount shall be paid in its entirety in the following fiscal year. If the Five-Year Shortfall is more than fifteen percent (15%), that amount shall be paid through equal amortized installments over the subsequent five year period. Payment of the Five-Year Shortfall in excess of seven and 5 554584.1 60C-49 one half percent (7.5%) shall be excluded from the Service Charge only in the first year in which such payment is owed. The calculated Five-Year Shortfall amount paid shall be added to the Service Charge in the subsequent years." 4. Article 1V, Section 4.D. shall be added to read as follows: "D. Notwithstanding the foregoing, 50 percent of any unencumbered funds, as determined by the annual audited financial statements, shall be allocated to the Structural Fire Fund Entitlement Fund at every ten year interval beginning with fiscal year 2010/2011, unless it is determined by unanimous vote of the Directors representing structural fire fund members that a fiscal hardship would thereby result. Those monies shall be distributed in a manner consistent with the methodologies, criteria and purposes described in this Section 4.A, through 4.C. above. In the event of a finding of fiscal hardship, the 50 percent allocation shall be made during the subsequent fiscal year unless another finding of fiscal hardship is determined as described above." 5. Article Vl, Section 1. C. is amended to read as follows: "C. Maintenance and Repairs. Each cash contract City shall make an initial payment to the Authority of $15,000 for each fire station within its jurisdiction for maintenance and repairs. The Authority shall carry forward unspent amounts to the next fiscal year. At the beginning of the fiscal year, said cities shall pay the Authority an 6 5545841 60C-50 amount sufficient to bring its balance back to $15,000 for such station (referred to below as the "Station's $15,000 Maintenance Account"). (1) Funds shall be expended in accordance with the following procedure: (a) Minor maintenance or repairs costing less than $1,000 are funded through the cash contract City's base Service Charge and, therefore, shall be paid by the Authority out of its General Fund. These repairs will not be charged to the Station's $15,000 Maintenance Account. (b) Maintenance, repair, alteration, or improvement projects greater than $1,000 but less than the remaining balance in the Station's $15,000 Maintenance Account shall be paid from the Station's Maintenance Account. (c) Maintenance, repair, alteration, or improvement projects exceeding the remaining balance in the Station's $15,000 Maintenance Account are considered capital improvements and additional funding that is necessary to pay for such improvements shall be the responsibility of the City. (2) At its discretion, a cash contract City with multiple fire stations may allocate all or a portion of the balance of one Station's $15,000 Maintenance Account to another station within the City provided the balance of each station be restored to $15,000 at the beginning of the following fiscal year." 7 554584 1 60C-51 6. Article VII, Sections I.A. and B. are amended to read as follows: "A. Term. Cities shall be members of the Authority for a 20-year term commencing July 1, 2010. For Structural Fire Fund cities, the initial 20-year term shall begin on July 1, 2010 and end on June 30, 2030. For a cash contract City, the first 20- year term shall begin on July 1, 2010, only upon the consent of such city. Cash contract Cities that do not give such approval by June 30, 2010 shall give notice of withdrawal to the Clerk of the Authority by June 30, 2010, to be effective July 1, 2010. Failure to provide such notice shall be deemed that City's consent to a 20-year term, beginning July 1, 2010 subject to the ability to withdraw after the first ten years as set forth in Section B. below. B. Subsequent Terms. Twenty-year membership terms shall automatically renew, on the same terms and conditions as the prior term, and with the same cap in effect in the last year of the prior term, except under the following circumstances: (1) Any city may give notice of withdrawal by transmitting written notice of such withdrawal to the Clerk of the Authority prior to July 1 of the second to last year of every ten-year interval of a twenty-year term (e.g., for the first ten-year interval, notice must be given by July 1, 2018 to withdraw by June 30, 2020). 7. Article Vll, Section 1. F. shall be added to read as follows: 8 554584.1 60C-52 T. Negotiation of Terms Upon Notice of Withdrawal. Upon providing notice of withdrawal, a cash contract City may negotiate with the Authority regarding modifications to its payment obligation. If the City and the Authority are unable to reach agreement regarding modified payment terms, the balance of any shortfall that may have accumulated during a City's ten-year period of membership shall be paid upon withdrawal." 8. Article Vll, Section 3 is amended to read as follows: "3. Withdrawal of County. County shall be a member of the Authority for a term of twenty years beginning on July 1, 2010 and continuing to June 30, 2030. Said term shall automatically renew for successive terms in accordance with and subject to the same provisions and exceptions applicable to Cities in Section 1.13. and C. In the event of withdrawal, the County shall remain liable for payment of the Structural Fire Fund's proportional share of any bonded indebtedness of the Authority incurred prior to the date of its withdrawal." 9. All terms and conditions contained in this Amendment are incorporated by this reference into the Agreement. This Amendment modifies the Agreement only as expressly set forth above. This Amendment does not modify, alter, or amend the Agreement in any other way whatsoever. 9 554584.1 60C-53 CITY OF SANTA ANA Dated: By: Paul M. Walters Interim City Manager ATTEST: II Maria Huizar City Clerk NOTICE TO CITY TO BE GIVEN TO: City Manager City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 90702 Phone: (714) 647-5200 Fax: (714) 647-6954 APPROVED AS TO FORM: By: City Attorney 60C-54 SANTA ANA FIRE SERVICES AND EMERGENCY MEDICAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _ day of 2012, by and between the ORANGE COUNTY FIRE AUTHORITY, a Joint Powers Authority ("OCFA"), and the CITY OF SANTA ANA, a municipal corporation and charter city in the County of Orange ("CITY".) RECITALS A. CITY is located wholly within the County of Orange. B. CITY is legally obligated to provide fire protection services within its boundaries. C. OCFA is the successor entity to the County of Orange Fire Department and CITY has chosen to be a member of and contract with the OCFA for the provision of fire protection services within CITY's boundaries. NOW, THEREFORE. In consideration of the mutual promises contained herein, the Parties agree as follows: 1. DEFINITIONS: As used in this Agreement: 1. "CITY" means the City of SANTA ANA. 2. "AUTHORITY" or "OCFA" means the Orange County Fire Authority. 3. "Division Chief' means the Division Chief supervising Division 6, or any successor Division. 4. "CITY Council" means the City Council of the CITY of SANTA ANA. 5. "CITY Manager" means the City Manager of the CITY of SANTA ANA. 6. "JPA Board" means the Board of Directors of the Orange County Fire Authority. 7. "JPA Agreement" means the Amended Orange County Fire Authority Joint Powers Agreement dated September 23, 1999 as amended by the First Amendment to the Amended Joint Powers Agreement dated July 1, 2010, and any subsequent amendments hereafter approved as authorized therein. 8. "Fire Chief' means the chief executive officer of the Orange County Fire Authority. 9. "Fiscal Year' means the annual period commencing on July 1st and ending June 30th. 10. "MOU" means the Memoranda of Understanding between the OCFA and (a) International Association of Firefighters Local 3631 (the Orange County Professional Firefighters Association); (b) the OCFA Chief Officers Association; and (c) the Orange County Employees Association, as they exist on the effective date of this Agreement and as they may, from time to time, be amended or suspended. 11. "Division" means an area that identifies a specific geographical boundary that can include multiple fire suppression battalions and/or cities. 12. "Fire Battalion Chief" means an individual who supervises a battalion or an Orange County Fire Authority section, (e.g., Training Section). 13. "Battalion" means an area that identifies a specific geographical boundary that includes multiple stations and/or cities. Page 1 828042.3 60C-55 ll. MEMBERSHIP: CITY shall be a member of OCFA and shall be subject to all the provisions, conditions, benefits, obligations and liabilities set forth in the JPA Agreement, as that Agreement may be further amended from time to time, unless otherwise provided herein. CITY shall have one representative on the JPA Board. III. GENERAL SCOPE: 1. OCFA shall provide to CITY fire suppression, fire prevention, fire investigation, emergency medical, rescue and related services, hazardous materials response, hazardous materials disclosure, and community safety and education Services (collectively "fire services"). Services provided exclude weed abatement services. 2. The effective date in which OCFA will begin providing services to CITY is planned for April 20, 2012; however, in the event additional time is needed to obtain final approval of the transition, the effective date may be modified by mutual agreement of CITY and OCFA. The intent is that the effective date be scheduled approximately 60 days after final approval of the transition. 3. The level of service provided shall be the same as the general level of similar services provided by OCFA elsewhere within its boundaries. Specific service criteria are set forth in Attachment "A" to this Agreement, and incorporated herein as if fully set forth within the body of this Agreement. Any changes to such levels and method of service shall be determined by the Board of Directors and administered by the Fire Chief, who shall have direct control and supervision over the services provided pursuant to this Agreement, and who is hereby designated as the CITY Fire Chief and Fire Marshal. 4. The level of service provided shall be the same as the general level of similar services provided by OCFA elsewhere within its boundaries. Specific service criteria are set forth in Attachment "A" to this Agreement, and incorporated herein as if fully set forth within the body of this Agreement. Any changes to such levels and method of service shall be determined by the Board of Directors and administered by the Fire Chief, who shall have direct control and supervision over the services provided pursuant to this Agreement, and who is hereby designated as the CITY Fire Chief and Fire Marshal. 5. Fire suppression and emergency medical response stations located within or assigned to the CITY are set forth below and shall be the same as existed on the effective date of this Agreement. Prior to making any changes to assigned fire suppression and emergency medical response stations, the Fire Chief shall meet and confer with the CITY Manager. Any changes in fire suppression and emergency medical response service station assignments shall be set forth in a written Memorandum of Understanding ("MOU") between the Fire Chief and the CITY Manager. In the event of failure to reach agreement with the Fire Chief, the CITY shall have the right to appeal to OCFA's Board of Directors. 6. Subsection (3) above shall not restrict the OCFA Board of Directors from approving OCFA related service enhancements from the Structural Fire Fund Entitlement Fund. 7. Upon request, CITY shall adopt an ambulance ordinance, and take those steps and amend those agreements necessary to convert the status of SANTA ANA from a "Provider Agency" of the Orange County-City Hazardous. Materials Emergency Response Authority (OCCHMERA) to an "Orange County Fire Authority Member Agency" of the OCCHMERA. 8. The Division Chief assigned to the CITY, or his or her designee, shall attend CITY Council meetings, commission meetings and CITY staff meetings when requested by the CITY Manager and shall provide the CITY with any and all reports or documents pertaining to the CITY upon reasonable request by the CITY Manager. 9. Fire suppression and emergency medical response services shall be provided from the CITY locations stated below, which shall be redesignated as indicated: 828042.3 Page 2 60C-56 Location Old Designation New Designation 1029 W. 17th St. Station #1 Station #71 1688 E. 4th St. Station #2 Station #72 419 S. Franklin St. Station #3 Station #73 1427 S. Broadway St. Station #4 Station #74 120 W. Walnut St. Station #5 Station #75 950 W. MacArthur Ave. Station #6 Station #76 2317 S. Greenville St. Station #7 Station #77 501 N. Newhope St. Station #8 Station #78 1320 E. Warner Ave. Station #9 Station #79 2310 N. Old Grand St. Station #10 Station #70 IV. ADMINISTRATION: 1. In providing fire services, OCFA hereby is authorized to and may enforce applicable CITY codes and ordinances, collect and retain any and all Fire Prevention or Miscellaneous User fees (excluding paramedic user fees) as determined by OCFA, and file any claims or actions on behalf of CITY to recover and retain amounts for emergency and hazardous materials responses. 2. The OCFA Fire Chief hereby is designated as Fire Chief of CITY. 3. Personnel and equipment routinely assigned to provide services under this Agreement shall be assigned to Battalion 9. The Battalion Chief of Battalion 9 will exercise day-to-day operational responsibility within the CITY. 4. On activation of the CITY's Emergency Operations Center (EOC), the individuals designated by the CITY Manager and the Division Chief shall be detailed to assist in EOC operations and release of local resources may occur only after their evaluation of local conditions. V. LEASE OF APPARATUS: AUTHORITY hereby agrees to lease from CITY, and CITY hereby agrees to lease to OCFA, the following apparatus (the "specified apparatus"): 2005 CHEVROLET SUBURBAN 3GNGC26G65G201367 #29500 2005 CHEVROLET SUBURBAN 3GNGC26G95G201366 (#29501) 2005 ALF PUMPER 4Z3AAACG16RW36760 (#29502) 2005 EMERGENCY HAZ MAT 4P1CCL01H85A005559 (#29518) 2007 FT/LINER PUMPER 1AFAAACG47RY24686 (#29523) 2010 SPARTAN GLADIATOR 4S7AT2P90AC072519 (#29539) 2010 SPARTAN GLADIATOR 4S7AT2P97AC072520 #29540 1988 LTI LADDER TRUCK 1D91D51J3J1008938 (#57567) 1994 SPARTAN TRUCK 4S7ET9M08SC015521 (#58415) 1997 BME CUMS FIRE PUMP 4S7CT249XVC024890 (#58695) 1997 BME CUMS FIRE PUMP 4S7CT249XVC024891 (#58696) 2001 ALF/RESCUE SQURT 4Z3FAACG22RJ46943 (#59318) 2002 FT/LINER ALF/PUMP 4Z3AAACG92RK16576 #59365 2004 ALF 100' AERIAL 4Z3AAACK34RN46401 (#59520) 2004 ALF PUMPER 4Z3AAACGX5RU97758 (#59533) 2004 ALF AIR/LIGHT 1FVACYDC65HU29297 (#59534) 2007 CHEVROLET EX-PICK-UP 1GCCS19E878189701 (#59712) 2007 CHEVROLET EX-PICK-UP 1GCCS19EX78189831 (#59713) 2008 CHEVROLET COLORADO 1GCCS19E988170544 (#59799) 2008 CHEVROLET COLORADO 1GCCS19E488170919 (#59800) 2008 CHEVROLET COLORADO 1GCCS19EX881169936 (#59802) 2008 CHEVROLET TRAILBLAZER 1GNDS13S382215152 (#59820) 2005 FORD F650 MASS DECON UNIT 3FRNW65Z77V448965 (#29524) 1. The specified apparatus shall be delivered to the OCFA equipped as currently equipped by the CITY. OCFA will ensure that frontline emergency apparatus assigned within the CITY (including trucks, 828042.3 Page 3 60C-57 engines, and paramedic vans) will reflect the City of Santa Ana's seal, in addition to the OCFA's logo, along with wording to indicate that the apparatus is serving the City of Santa Ana. 2. For the specified apparatus, OCFA will lease from the CITY at no cost, the term of such lease shall commence concurrently with this Agreement, and the term of such lease shall terminate upon retirement of the apparatus from OCFA. 3. The specified apparatus shall be incorporated into the OCFA's established vehicle rotation and replacement programs (excluding the Mass Decon Unit), preventive maintenance programs, and will be enrolled in OCFA's vehicle insurance program. 4. Each fiscal year, commencing with fiscal year 2011/12, CITY shall pay to OCFA the CITY's share of the OCFA's vehicle replacement program. For fiscal year 2011/12, the annualized amount is $475,056. The prorated monthly amount of $39,588 is included in the costs of service set out in section VII below and is subject to annual increases. 5. For purposes of the vehicle replacement program, the following useful life assumptions apply: Useful Life: Suburban - 5 years or 120,000 miles Engine - 15 years or 120,000 miles Truck -17 years or 120,000 miles Paramedic Van - 4 years or 120,000 miles 6. Upon the effective date of any termination, the value of the funds paid by the CITY as its share of the vehicle replacement program shall be returned to the CITY in an amount no greater than the funds paid by the CITY, less actual costs incurred by the OCFA for the repair, maintenance, or replacement of the specified apparatus. The value, if positive, will be returned to the City in the form of returned apparatus, a refund of payments, or a combination of both. VI. LEASE OF FIRE STATIONS: 1. CITY shall lease to OCFA and OCFA shall lease from CITY the fire stations listed in Section III pursuant to the leases set out on Attachment C. This lease will have the same term as this Agreement and the rent will be one dollar ($1) per year per station. Upon the effective date of any termination, OCFA's lease-interest in the CITY's fire stations will terminate and the fire station facilities will be returned to CITY. 2. CITY will also provide OCFA with a $15,000 revolving maintenance expense account per fire station for appliance repair/replacement and other minor station repairs and improvements pursuant to the JPA Agreement. This amount is included in the costs of service set out in section VII below. VII. COST FOR SERVICE: Except as otherwise provided in this Agreement, all provisions in the JPA Agreement regarding the calculation and payment of Service Charges shall apply. To the extent of any conflict between the JPA Agreement and this Agreement, the terms set forth in this Agreement shall control with regard to the CITY. 1. CITY shall pay to OCFA the sum of $6,693,634 for Fire and Emergency Medical Services under this Agreement from April 20, 2012 until June 30, 2012. Payment shall be made as follows: a. by April 20, 2012- $1,100,422 b. by May 1, 2012 - $2,796,606 C. by June 1, 2012- $2,796,606 2. In a letter dated November 7, 2011 from the CITY Manager to the OCFA Fire Chief, the CITY requested a proposal from OCFA for the possible provision of Fire Protection and Emergency Medical Services. The amount paid by the CITY for the proposal ($75,000) has been applied to reduce the April 20, 2012 payment above from $1,175,422 to $1,100,422. Page 4 828042.3 60C-58 3. Except as otherwise expressly provided in this Agreement, all sums due to AUTHORITY from CITY shall be paid at the beginning of each calendar month, in advance. 4. On or before September 30, 2012, CITY shall either (a) obtain a bond, in form and substance acceptable to OCFA in its sole and absolute discretion, from a bonding company or insurer acceptable to OCFA in its sole and absolute discretion, in the amount of one full monthly payment for services rendered by OCFA under this Agreement (the "Bond"), or (b) establish an escrow account, naming OCFA as beneficiary and on terms and conditions acceptable to OCFA in its sole and absolute discretion, with an escrow agent acceptable to OCFA in its sole and absolute discretion and funded with cash in the amount of one full monthly payment for services rendered by OCFA under this Agreement (the "Escrow" and, collectively with the Bond, the "Security"). On or before July 1, 2013, and thereafter on or before July 1 ' of each succeeding year, CITY shall make payments sufficient to adjust the amount of the Security to equal the amount of one monthly payment for the final charges as established pursuant to Paragraph 5 of this Section VII, below. The Security shall serve as security for CITY's obligations under this Agreement. In the event that CITY defaults in any of such obligations, without in any way limiting any of OCFA's other rights and remedies, OCFA shall be entitled to collect upon the Bond or draw upon the Escrow, as applicable, in partial compensation for such default and in accordance with the terms of the documentation governing such Security. In the event that OCFA collects upon the Bond or draws upon the Escrow, CITY shall have a period of thirty (30) days to establish new Security in the amount and as set forth in the preceding Paragraph. If CITY fails to do so, OCFA shall have the right to terminate this Agreement upon written notice to CITY. On or after July 1, 2014, CITY may present information to the OCFA Board of Directors that the City's financial condition has improved such that the need for the Security has changed and that the requirement for the Security should be reduced, eliminated or modified as a result. The OCFA Board of Directors may, in its sole discretion, reduce, eliminate or otherwise modify the requirement of this Section VII. 4." 5. For each subsequent fiscal year covered by this Agreement, commencing with FY 2012/13, the Fire Chief shall notify the CITY Manager, in writing, of the estimated charges for providing the agreed services to CITY during the following fiscal year on or before March 1 of each year. Final charges for providing services to CITY during the following fiscal year will be provided, in writing, on or before May 1 of each year. CITY will pay such final charges, in monthly installments, at the beginning of each month, in advance. 6. The estimated costs and charges shall be determined pursuant to the JPA Agreement, including but not limited to Article IV, § 3B and Article VI of the JPA Agreement VIII.START-UP COSTS: 1. The parties agree that a sum, estimated not-to-exceed $1,580,439 is owing to OCFA by CITY for start-up costs, as specified in this Agreement. Those start-up costs are as follows: Communications/IT $843,727 Facilities 27,000 Personnel 220,764 Service Center 395,963 Fleet Services 92.985 TOTAL $1,580,439 2. OCFA agrees to amortize these one-time start-up costs over the first five years of this Agreement. OCFA will invoice CITY for the annual prorated amount of $316,088 with the first monthly invoice for each fiscal year for five years, commencing with FY 2012/13. The OCFA will track all costs relating to the start-up as the work is performed and those funds in excess to the amount listed above will be adjusted and, if already collected from CITY, reimbursed to the CITY upon conclusion of the transition. Page 5 828042.3 60C-59 I In the event of termination of this Agreement for any reason, and upon the effective date of the termination, the CITY shall immediately pay the full balance then remaining for the start-up costs adjusted as set forth herein. IX. PERSONNEL: 1. OCFA will offer employment effective 8:00 a.m., April 20, 2012 to the personnel employed by the CITY's fire department on the effective date of this Agreement, under the terms and conditions specified in Attachment "B" to this Agreement. Such offers are contingent upon those personnel who meet the minimum physical and medical standards for their designated positions in the OCFA, as determined by a physical examination conducted prior to the effective date of the Agreement. After 8:00 a.m., April 20, 2012, CITY shall not be liable for the payment of any wages or other compensation to any officer, employee, or agent of OCFA performing any services under this Agreement. CITY shall not be liable to any officer, employee, or agent of OCFA for any sickness or injury incurred by such person in the course of performing services under this Agreement. OCFA shall be solely responsible for all personnel actions relating to OCFA employees utilized in the performance of this Agreement. Those personnel who fail to meet the standards in the period prescribed solely because of injury or illness will be offered employment on the first occasion on which they meet the standards, but in no event shall they be offered employment after April 20, 2013. 2. Transitioning employees participate in a defined contribution plan or "Retiree Health Savings Plan" and are eligible for reimbursement benefits upon retirement as defined by the plan. X. WORKER'S COMPENSATION: To avoid the hazards, delays and risks of litigation, and to provide prompt and appropriate benefits to injured workers', the parties desire to establish a mechanism to determine their proportionate share of liability for all types of workers' compensation benefits which may become due to former employees of the Santa Ana fire department. 1. For any continuous trauma claim brought under the California Workers' Compensation law against OCFA by former employees of the CITY Fire Department, the Parties shall share liability in proportion to the period of time the former employee was employed by each agency. CITY agrees to indemnify and hold harmless OCFA for all workers' compensation and/or administrative costs incurred as a result of any such claim, of any nature or type whatsoever, to the extent of the proportion the period of time the former employee was employed by CITY bears to the total period of time the former employee was employed by both CITY and OCFA. 2. For any claim originally brought under the workers' compensation laws of California against CITY for which residual or ongoing benefits may be due, CITY shall indemnify and hold harmless OCFA for the cost of all such benefits, including any/all administrative costs, without reference to apportionment, and shall reimburse OCFA for the same to the extent paid by OCFA. Such indemnity, hold harmless, and reimbursement obligation shall specifically include, but is not limited to, costs of medical treatment, new and further disability, Labor Code section 4850 benefits, and any other benefits under the laws governing the California Workers' Compensation System. 3. For any specific injury claimed by former CITY Fire Department employees under the California Workers' Compensation laws, alleged to have occurred after the date of transfer of employment to OCFA, the OCFA shall bear the full cost of any workers' compensation benefit due, which is attributed solely and exclusively to such specific injury. 4. For any claim brought by former CITY fire Department employees arising under any presumption of injury arising out of the California Labor Code, regardless of the date such claim is filed, CITY shall indemnify and hold harmless OCFA for all workers' compensation benefits and/or administrative costs incurred, which may become due, based upon the proportionate respective percentage of employment as described in Section X.1. above. Page 6 828042.3 60C-60 5. The Parties expressly agree that the above indemnification and hold harmless obligations are contractual in nature and not based on any determination by the WCAB. 6. ARBITRATION: IN THE EVENT OF DISPUTES ARISING UNDER THIS SECTION X OF THE AGREEMENT, THE OCFA AND CITY AGREE SUCH DISPUTES SHALL BE DETERMINED EITHER BY AGREEMENT OF THE PARTY, OR IF EITHER PARTY DETERMINES THE DISPUTE CANNOT BE RESOLVED BY AGREEMENT, THEN BY BINDING ARBITRATION BEFORE AN INDIVIDUAL ARBITRATOR WITH EXPERTISE IN WORKER'S COMPENSATION ISSUES. SUCH ARBITRATOR SHALL BE SELECTED EITHER BY MUTUAL AGREEMENT OF THE PARTIES, OR FAILING THAT, BY THE JUDICIAL ARBITRATION AND MEDIATION SERVICE (JAMS). THE COST OF THE ARBITRATION SHALL BE SHARED EQUALLY BY THE PARTIES. XI. INDEMNIFICATION: 1. OCFA shall defend, indemnify and hold harmless the CITY and its officers, employees, agents and representatives with respect to any loss, damage, injury, claim, demand, litigation or liability and all expenses and costs relating thereto (including attorneys fees) arising out of or in any way related to acts or omissions of OCFA, its officers, employees or agents in the performance of services pursuant to this Agreement. 2. CITY shall defend, indemnify and hold harmless OCFA and its officers, employees, agents and representatives with respect to any loss, damage, injury, claim, demand, litigation or liability and all expenses and costs relating thereto (including attorneys fees) arising out of or in any way related to acts or omissions of CITY, its officers, employees or agents. This Section 11.2 shall apply whether or not the incident or occurrence occurred prior to or after the effective date. 3. The provisions of this Section XI shall survive termination or expiration of this Agreement. 4. For purposes of this Section Xl, the Fire Chief shall be deemed to be an officer, employee, agent and representative of OCFA, and not of CITY. XII. TERM AND TERMINATION: 1. This Agreement shall commence on the date first written above, provided the Agreement has been approved as required under the JPA Agreement and by the CITY Council. Delivery of services shall commence on April 20, 2012, or when this Agreement is approved, whichever is later. CITY may terminate this Agreement by giving written notice of withdrawal to the Clerk of the Authority prior to July 1 of the second to last year of every ten-year interval of the twenty-year term of the JPA Agreement (e.g. for the first ten-year interval, notice must be given by July 1, 2018 to withdrawal by June 30, 2020). OCFA may terminate this Agreement upon written notice to CITY in the event of non-payment or other default of the terms required herein or in the JPA Agreement. 2. Upon termination or expiration of this Agreement or other cessation of CITY's membership in OCFA, CITY agrees to pay OCFA the amount of the unfunded pension liability that had accrued during the term of this Agreement for the number of OCFA employees serving the CITY. In the event of any dispute regarding the amount of the unfunded pension liability at that time, the parties agree that the amount shall be determined by an independent actuary selected either by mutual agreement of the parties, or failing that, by the actuary used by the Orange County Employees Retirement System (OCERS). The parties shall share any costs charged by the actuary for calculating such amount. The Parties shall agree to a payment schedule for such amount. If the parties are unable to agree upon a payment schedule, the amount shall be amortized so the CITY will pay down the full amount of the unfunded liability over a fifteen (15) year period assuming a rate of return assumed by OCERS as its return on its investments as of the date of termination. Payments pursuant to this Section shall be made by the CITY to OCFA. The provisions of this Section XII shall survive termination or expiration of this Agreement. XIII. ANNEXATIONS: In the event of any CITY annexation of territory within the Structural Fire Fund, the level of Structural Fire Fund and redevelopment revenues existing at the time of the annexation shall 828042.3 Page 7 60C-61 continue to pass through to OCFA as compensation for the services provided pursuant to the JPA Agreement, unless otherwise agreed to by the parties hereto. As used herein, "level of Structural Fire Fund and redevelopment" shall mean the amount of such revenues existing at the time of annexation, adjusted by any diminution or growth in value occurring thereafter. It is the intent of the parties that CITY annexations not have an adverse financial effect on OCFA. Annexations that do not result in additional OCFA service demand and, therefore require no additional OCFA resources, will not result in additional charges to CITY as a result of said annexation. XIV. EFFECTIVE DATE AND TERM: The effective date of the Agreement shall be 8:00 a.m., April 20, 2012 and unless terminated in accordance with the provisions herein and in the JPA Agreement, this Agreement shall remain in force for the same duration as the JPA Agreement, and as the JPA Agreement may be amended from time to time. XV. INDEPENDENT CONTRACTOR: CITY shall not be liable for the direct payment of any wages or other compensation of any officer, employee, or agent of OCFA performing any services under this Agreement. CITY shall not be liable to any officer, employee, or agent of OCFA for any sickness or injury incurred by such person in the course of performing services under this Agreement, except to the extent set forth in Section XI. OCFA shall be solely responsible for all personnel actions relating to OCFA employees utilized in the performance of this Agreement. The employees of OCFA shall not be deemed employees of CITY as a result of this Agreement, except as necessary pursuant to Penal Code Section 1463 et sea. for cities to obtain their statutory share of fire revenues. XVI. MISCELLANEOUS PROVISIONS: 1. This agreement supersedes any prior agreements between OCFA and CITY. The CITY Manager and Fire Chief may enter into an MOU for operational issues. 2. This Agreement may be amended only in writing, in whole or in part, and signed by both parties. No waiver of any term or condition herein shall be a continuing waiver thereof. 3. This Agreement shall be interpreted in a manner complementary to the JPA Agreement, including the provisions which govem city member participation. In the event of an irreconcilable conflict between this Agreement and the JPA Agreement, this Agreement shall prevail. CITY OF SANTA ANA ORANGE COUNTY FIRE AUTHORITY By: City Mayor By: Mark Tettemer, Chair Attest: Attest: By: By. City Clerk Sherry A. F. Wentz, CIVIC, Clerk of the Authority Approved as to Form: Approved as to Form: By: By: City Attorney David Kendig, General Counsel 828042.3 Page 8 60C-62 ATTACHMENT A SERVICE CRITERIA SERVICE LEVEL Management Committee The OCFA Fire Chief, executive management team, and management staff are committed to providing CITY with an effective and efficient level of service. The Division 6 Chief will be assigned to attend CITY Council and CITY management meetings requested by CITY Manager. A battalion chief will have the day-today operational responsibility within the CITY of Santa Ana. CITY will become part of the Battalion 9. Additionally, the OCFA management is committed to being responsive to CITY requests for participation in community activities and other such meetings and/or functions upon the request of the CITY manager or designated CITY staff. The OCFA will provide personnel to the CITY's EOC in the event of activation and work with the CITY to provide training as mutually agreeable between the OCFA Fire Chief or his representative and the CITY Manager. Emergency Response 1. Response Performance OCFA will utilize the Board of Directors' adopted standards of cover for response performance. OCFA monitors all of the standards and reports on performance to the City Manager on a quarterly basis. 2. Station Resources Station #71 Station #72 Station #73 Station 974 (Current Station #1) (Current Station #2) (Current Station #3) (Current Station #4) Medic Engine Medic Engine Medic Engine Medic Engine Medic Truck Division Chief Battalion Chief Station #75 Station #76 Station #77 Station #78 (Current Station #5) (Current Station #6) (Current Station #7) (Current Station #8) Medic Engine Quint Truck PAU Engine PAU Engine PAU Medic Truck Medic Van Medic Van Station #79 Station #70 (Current Station #9) (Current Station #10) Engine PAU Engine PAU OCFA will provide minimum staffing for front line emergency units as outlined in the firefighter MOU. Page 1 60C-63 The standard response for various types of calls will be as follows: Type of Call Standard Response Small vehicle, fence, power One engine company pole, or trash fire Large vehicle, (trucks) or grass fire Two engine companies and one battalion chief All structural fires Three engine companies, one truck company, one paramedic unit, and one battalion chief Medical aid or rescue call The closest engine or truck company and one paramedic unit (back-up paramedic service will handle as many as five separate simultaneous emergencies) Traffic accident w/persons trapped One engine company, one truck company, one paramedic unit, and one battalion chief Hazardous materials incident One engine, the hazardous materials unit, one truck company, one battalion chief, and additional units as required (i.e., additional engines, paramedics etc.) Public service calls Closest engine or truck company Second and each additional alarm Three engines, one truck company, one air utility unit, one additional battalion chief, and a division chief, and a Safety Officer High rise response Six engines, two trucks, two battalion chiefs, one division chief, one medic unit, one air utility unit, one safety officer, and one duty officer Cover assignments Any emergency of extended duration will result in an automatic move-up of equipment in accordance with the OCFA's move-up and cover plans 3. Move-up and Cover The move-up and cover program is designed to meet the response needs of the community by the movement of apparatus into critical areas based on the probability of emergency responses. Move-up and cover assignments shall occur in accordance with the OCFA's standard operating procedure. 4. Emergency Dispatch Authority will provide dispatchers who are trained in Emergency Medical Dispatch (EMD). Authority will maintain Mobile Data Terminals within fire department emergency apparatus capable of utilizing the Authority's Computer Aided Dispatch (CAD). Authority will maintain emergency service radio system that will have coverage of 99% of the CITY and have multiple channel capability for major incidents. Page 2 60C-64 FIRE PREVENTION OCFA will provide education and prevention services as follows: 1. Analyze fire data to identify fire risks and target populations. Develop and implement programs to address them utilizing "best practices": education, engineering and/or enforcement. 2. Provide annual fire prevention inspections for identified occupancies. Provide fire protection and engineering consultation services to the CITY planning staff and commissions for tentative tract, parcel maps, and other land use proposals which may require fire department input, including fire department plan check and engineering review of specific risks (industrial, commercial, institutional, and applicable single and multi-family dwellings) for conformance with fire code requirements and state fire and life safety regulations, upon specific request. INCIDENT INVESTIGATION OCFA shall provide origin and cause investigative services on identified incident types reported to the fire department within the CITY. OCFA Fire Investigation Section shall be assigned to determine the cause of every major fire, fire fatality, or significant dollar loss. PUBLIC INFORMATION/EDUCATION OCFA will provide fire prevention and safety education programs to targeted schools, businesses, community associations, child-care providers, and other members of the community and will respond to information requests from the community. Community safety and education programs shall be provided, after consultation with the CITY manager, to educate targeted residents and businesses in order to help preserve life and property. HAZARDOUS MATERIALS RESPONSE The OCFA will provide hazardous materials response service to the CITY. The OCFA does not provide hazardous materials cleanup, removal, or disposal. The OCFA maintains a hazardous materials response capability, meeting the state standards for a Type I hazardous materials response team. EMERGENCY MEDICAL RESPONSE OCFA will provide emergency medical response services within the CITY. Ambulance service will be supervised by the OCFA. CITY will retain all revenues collected from existing paramedic subscription and ambulance transport program for medical responses within the CITY. The CITY will be responsible for the cost of the Ambulance Program. AUTOMATIC AID / MUTUAL AID OCFA will, immediately upon execution of this Agreement, commence negotiations for automatic aid agreements with those fire agencies that currently have automatic aid agreements with the CITY. GRANT ADMINISTRATION The OCFA will provide Grant Administration services for the City for grants relating to the provision of Fire and Emergency Medical Services. OCFA's Grant Administration services include the grant application process, approval process, and expenditure-management process, as well as ensuring compliance with reporting requirements. Page 3 60C-65 RESOURCE PLACEMENT ANALYSIS Based on service level need, the CITY and OCFA will evaluate and determine the service need for the following: 1. One CITY-funded Divisional Administrative Captain Option: This position is not currently included in the cost of service to the CITY; however, OCFA can add the position to the CITY's monthly invoice at the CITY's direction and agreement to fund the cost of the position. 2. CITY-funded Over-the-Counter Plan Check Services Option: This Over-the-Counter Plan Check option is not currently included in the cost of service to the CITY; however, OCFA can provide this optional service to CITY upon request. Upon City's direction and agreement, the optional service cost will be added to CITY's monthly invoice, based on the hours of dedicated over-the-counter services requested by CITY to maintain current service levels, billed at the hourly rate to backfill for OCFA's personnel. The position would provide the current level of service for over-the-counter plan review and project coordination located at the City's Planning and Building Agency. The position would accommodate over-the-counter plan review, complete limited plan submittals, attend development review meetings as prescribed by agenda, and other business related to fire prevention for the City of Santa Ana or OCFA. Upon future resource review, the position may transition to physically work at OCFA headquarters. 3. Response Performance for Configuration of Response Units: Following a two-year period, OCFA and the CITY will evaluate the response performance for the current configuration of response units in the CITY (excluding ambulance service, which may be reviewed sooner) and discuss the results of the analysis, including any recommendations from either party for modifications that are warranted. Resource modifications may be available with additional new partnering cities. Page 4 60C-66 ATTACHMENT B - EXHIBIT 1 The following CITY Fire Department safety employees shall be offered employment by the OCFA at the rank and salary stated below. 8WORN PERSONNEL ITOTAL COUNT =187) Sworn PasNons - C s*W by Cantract (Count = 161) Name Rank or Position Salary Sio 1. Dave Thomas Division Chief TBD Jim Henery Battalion Chief TBD 2. Tony Espinoza Battalion Chief TBD Randy Black Battalion Chief TBD 1. Cupples, Milton Fire Captain TBD 2. Soria, Robert Fire Captain TBD 3. Ovem, Tom Fire Captain TBD 4. Chedister, John Fire Captain TBD 5. Rivas, Thomas Fire Captain TBD 6. Ogren, Andrew Fire Captain TBD 7. Lee, Russell Fire Captain TBD 8. Eloe, Mark Fire Captain TBD 9. Snyder, Steve Fine Captain TBD 10. lhrderwood, Lawrence Fire Captain TBD 11. Petz, Mark Fire Captain TBD 12. VAlmovsky, Craig Fire Captain TBD 13. Lopez-Hidalgo, Arthur Fire Captain TBD U. Moreno, Stephen Fire Captain TBD 15. Homer, Stephen Fire Captain TBD 16. Johnson, Dean Fire Captain TBD 17. Tran holm, Christopher Fire Captain TBD 18. Caswell. Christian Fire Captain TBD 19. Moorhouse, Danny Fire Captain TBD X 20. Gonzalez ?Benito Fire Captain TBD 21. Twbutton, Kenneth Fire Captain TBD 22. McDermott Mark Fire Captain TBD 23. Grant, Kirk Fire Captain TBD 24. Atenclo, Dennis Fire Captain TBD 25. Lackey, William Fire Captain TBD 26. Mathews, Brian Fire Captain TBD 27. Flores, Mark Fire Captain TBD 28. Phoenbc, Brad-Allen Fire Captain TBD 29. Marquez, Brady Fire Captain TBD 30. McClelland, Tracy Fire Captain TBD 31. Parks, Daryl Fire Captain TBD 32. Salemo, Anthony Fine Captain TBD 33. Chumacero, Juan Fire Captain TBD 34. Rosselle, Pedro Fire Captain TBD 35. Mothers, John Fire Captain TBD 36. Vier, David Fire Captain TBD 37. Muir, Jon Fire Captain TBD 38. Anderson, Bret Fire Captain TBD 39. Rene Paquin Fire Captain TBD (optlarnrar*&%wnw* 60C-67 1. Amends, Gerald Fire Apparatus Engineer TBD 2. Timoti, John Fire Apparatus Engineer TBD 3. McHugh, Patrick Fire Apparatus Engineer TBD 4. Franco, Jose Fire Apparatus Engineer TBD 5. Adam, Victor Fire Apparatus Engineer TBD 6. Estrada, Augustine Fire Apparatus Engineer TBD 7. Lopez, David Fire Apparatus Engineer TBD 8. Suarez, Antonio Fire Apparatus Engineer TBD 9. Belies, John Fire Apparatus Engineer TBD 10. Lacy, Robert Fire Apparatus Engineer TBD 11. Hay, Brian Fire Apparatus Engineer TBD 12. Manning, John Fire Apparatus Engineer TBD 13. Avina, Sergio Fire Apparatus Engineer TBD 14. Barnard, Robert Fire Apparatus Engineer TBD 15. Townley, Thomas Fire Apparatus Engineer TBD 18. Edelman, Lenny Fire Apparatus Engineer TBD 17. Rubio, Christopher Fire Apparatus Engineer TBD 18. Castigo, Aaron Fire Apparatus Engineer TBD 19. Fernandez, Luis Fire Apparatus Engineer TBD 20. Tivenan, Michael Fire Apparatus Engineer TBD 21. Medrano, Eddie Fire Apparatus Engineer TBD 22. Polesant, Timothy Fire Apparatus Engineer TBD 23. Hall, Albert Fire Apparatus Engineer TBO 24. Grindie, Guy Fire Apparatus Engineer TBD 25. Luis, Alfonso Fire Apparatus Engineer TBD 26. Gammon, John Fire Apparatus Engineer TBD 27. Aguilar, Richard Fire Apparatus Engineer TBD 28. Gonzalez, Joseph Fire Apparatus Engineer TBD 29. Pearson, Dennis Fire Apparatus Engineer TBD 30. Biering, Derek Fire Apparatus Engineer TBD 31. Johannessen, Oddsverr Fire Apparatus Engineer TBD 32. Berger, Matthew Fire Apparatus Engineer TBD 33. Granied, Christopher Fire Apparatus Engineer TBD 34. Parmenter, Wayne Fire Apparatus Engineer TBD 35. Heredia, Joseph Fire Apparatus Engineer TBD 36. Gross, Michael Fire Apparatus Engineer TBD 1. Mahaffey, Herbert Firefighter TBD 2. Castro, Ronald Firefighter TBD 3. Morgan, Jeffrey Firefghter TBD 4. Leftige, Ronald Firefighter TBD 5. Garda, Russell Firefighter TBD 6. Castro, Fernando Firefighter TBD 7. Mosqueds, Edward Firefighter TBD 8. Forrester, David Firefighter TBD 9. Femberg, Mark Firefighter TBD 10. Melton, Jaynes Firefighter TBD 11. Yberre, Jaynes Firefighter TBD 12. Dasher, Albert Firefighter TBD 13. Sahm, John Firefighter TBD 14. Casson, Nicholas Firefighter TBD 15. Alba, Michael Firefighter TBD 16. Garda, Jose Firefighter TBD 17. Marinello, Dennis Firefighter TBD 18. Spitler, Richard Firefighter TBD 19. Kron, Kevin Firefighter TBD 60C-68 20. Bento, Jay Firefighter TBD 21. Robertson, James Firefighter TBD 22. Dotln, Glenn Firefighter TBD 23. Ciracto, Christopher Firefighter TBD 24. Richardson, Robert Firefighter TBD 25. Solomon, Steven Firefighter TBD 26. Hopp, Brian Firefighter TBD 27. Van Alemxler Firefighter TBD 28. Laraan, James Firefighter TBD 29. Trattrier, Harry Firefighter TBD 30. Rollie, Christopher Firefighter TBD 31. Castro, John Firefighter TBD 32. Lanzrw, Lewis Firefighter TBD 33. leas, Joseph Firefighter TBD 34. Bodo, John Firefighter TBD 35. Carrers, Robert Firefighter TBD 36. Sterling, William Firefighter TBD 37. Huerta, Carlos Firefighter TBD 38. Hencke, Willie 1- Firefighter TBD 39. Ochoe, Francisco Firefighter TBD 40. Novak, Michael Firefighter TBD 41. Urzue, Christian Firefighter TBD 42. Cloughen, John Firelighter TBD 43. Lars, Ronald Firefighter TBD 44. Critchfield, Michael Firefighter TBD 45. Little, Brian Firefighter TBD 46. Summers, Michael Fke%hter TBD 47. Monreai, Manuel Faefighter TBD 48. Castro, James Firefighter TBD 49. Vargas, Jorge Firefighter TBD 50. Defrfes, Trent Firefighter TBD 51. Amore, Anthony Firefighter TBD 52. Roseman, Cameron Prefghter TBD 53. Muro, Netzher Firefighter TBD 54. Sandford, Richart Firefighter TBD 55. Gonzales, Angel Firefighter TBD 58. Medina, Octavio Firefighter TBD 57. Humphrey, Ryan Firefighter TBD 58. Acosta, Candice Firefighter TBD 59. Clevenger, Donald Firefighter TBD W. Teed, Chris Firefighter TBD 61. Baptista, Joshua Firefighter TBD 62. Sakiana, Dion Firefighter TBD 63. Taylor, Ryan Firefighter TBD 54. Robles, Jorge Firefighter TBD 65. Sandlin, Brian Firefighter TBD 66. Hernandez, Pariet Firefighter TBD 67. Medina, Levi Firefighter TBD 68. Soria, Gaspar Firefighter TBD 69. Monville, Sean Firefighter TBD 70. Chamberlain, Brian Firefighter TBD 71. Evans, Taylor Firefighter TBD 72. Gomez, Gabriel Firefighter TBD 60C-69 Sworn P mfik a - Excess EMOS tFWAN Ponko a l !Count = 36) Nam! Rank or Poeition Santry Stec 1. Ortiz, Pedro Firefighter TED 2. Smith. Robert Firefighter TBD 3. Falrchlid, Jason Firefighter TED 4. Woods, Brian Firefighter TED 5. V* ft Eric Firefighter TED 6. Mayo, Brad Firefighter TED 7. Maresh, Matthew Firefighter TED 8. Bear, Bryan Firefighter TED 9. De Leon, Michael Firelighter TED 10. Nguyen, Thone Firefighter TED 11. Lopez, Jahn Firef fighter TED 12. Vazquez, Andres Firefighter TED 13. Carletta, Lewis Firefighter TED 14. Espinoza, Victor Firefighter TED 15. Miranda, Erik Firefighter TED 18. Titel, Daniel Firefighter TED 17. Poll, Ethan Firefighter TED 18. Roel, Erick Firefighter TED 19. Raygoza, Salvador Firefighter TED 20. HanslnK Joshua Firefighter TED 21. Maldonado, Miguel Firefighter TED I~ 22. Kkeating, Kenneth Firefighter TED 23. Aguirre, Jose Firefighter TED 24. Park, Jae Firefighter TED 25. Moyer, Tyler Firefighter TED 26. Ruelas, Enrique Firefighter TED 27. Vu, Khoa (Tony) Firefighter TED 28. Ruiz, George Firefighter TED 29. Jimenez, Rodrigo Firefighter TED 30. Laura, Rommel Firefighter TED 31. Lopez, Jorge Firefighter TED 32. Martinez, Obet Firefighter TED 33. Carrasco, Matthew Firefighter TED 34. Swabia, Rodoifo Firefighter TBD 35. Osodo, Juan Carlos Firefighter TED 36. Pahissa Jonathan Firefighter TED w/w 40. AFSNA& RFB%WAF 41. vacant firefighter n!a . n/a Firefighter n/a • *WosWn to be pW~ X the apftWAftin DMWon Ce I@O is not uftod by ft OW 60C-70 ATTACHMENT B - EXHIBIT 2 The following CITY Fire Department non-safety employees shall be offered employment by the OCFA at the position and salary step stoW below. NON SWORN PERSONNEL (TOTAL COUNT s 151 Name Poaltton Salary Slow 1. Smith, Lori Assistant Fire Marshal TBD 2. NoW Fire Prevention Analyst TBD 3. NoW Senior Fire Prevention Specialist TBD 4. Livingston, James Senior Fire Prevention Specialist TBD 5. Felerabend, Karl Senior Fire Piavermtion Specialist TBD 6. Thompson, Kristen Senior Fire Prevention Specialist TBD 7. Jennifer Talon Ofiice Services Specialist TBD 8. Rosalinds Mendoza-Gonzalez Administrative Assistant TBD 9. Cooper, Dawns Nurse Educator TBD 10. Laser, Amanda Fire Communications Dispatcher TBD 11. Barrett, Georgina Fire Communications Dispatcher TBD 12. Doval, Emilio Fire Communications Dispatcher TBD 13. Hall, Laura Fire Communications Dispatcher TBD 14. Evangelista, Sarah Fire Communications Dispatcher TBD 15. Romero, Grace Fire Communications Dispatcher TBD Matz These posllbns wit be filled by Kart Eiman and Eric Evans; however, it is not yet (mown which empbyse will be offered the Fire Prevention Analyst position and which wil! be oflerod the Ssnbr Floe Prevention *ociailstposR'bn. This detenMnation wiN be made IlolbWng 1n1srYbwa by OCFA with both employees. 60C-71 SANTA ANA FIRE SERVICES AND EMERGENCY MEDICAL SERVICES AGREEMENT Addendum to Attachment B Leave Agreement Transitionina Personnel from Santa Ana Fire Manaaement Association Upon transition, the City of Santa Ana (CITY) will establish a leave bank for each transitioning employee who transitioned from a Fire Management Association position at the CITY. These leave bank hours are based on shift schedules, and therefore will be converted to staff hours, as appropriate, depending on the transitioning employee's assigned position. OCFA recognizes that each employee's leave bank was derived from a combination of accrued holiday leave, vacation leave, compensatory time off, and sick leave while employed by CITY; however, upon transition, the leave balances will be treated by OCFA as General Leave, and no longer tracked based on the individual categories listed above. General Leave banks transferred from CITY will be tracked separately from new OCFA leave time accrued by the transitioning employees under the applicable MOU, and will be used as a supplement to OCFA accrued vacation and sick leave. Transitioning employees will be required to exhaust the balance of their respective OCFA accrued leave banks before using the General Leave transferred from CITY. Use of all leave time, whether General Leave or OCFA accrued leave, must comply with OCFA's applicable MOU; however, General Leave banks are not eligible to be cashed-out by OCFA in lieu of using said time. The General Leave balance in each employee's leave bank will be available for use by transitioning employees, as described above, up until and including April 13, 2017. OCFA will pay amounts due to transitioning employees who use time from the CITY's General Leave bank, and CITY will repay such amounts to OCFA, as invoiced on a quarterly basis. Any amounts remaining in the transitioning employees' General Leave banks effective April 14, 2017 (or such earlier date if the transitioning employee separates from OCFA) will no longer be available for use by transitioning employees. OCFA will provide a report to CITY within 30 days after April 14, 2017 (or within 30 days following separation) detailing the hours remaining in each employee's bank. Transitionino Personnel from Santa Ana Fire Benevolent Association with More than Ten (10) Years of City Service Upon transition, the City of Santa Ana (CITY) will establish a leave bank for each transitioning employee who transitioned from a Fire Benevolent Association position at the CITY with more than ten (10) years of CITY service. Leave bank hours for sworn personnel are based on shift schedules, and therefore will be converted to staff hours, as appropriate, depending on the transitioning employee's assigned position. OCFA recognizes that each employee's leave bank was derived from a combination of accrued holiday leave, vacation leave, compensatory time off, and sick leave while employed by CITY; however, upon transition, the leave balances will be treated by OCFA as General Leave, and no longer tracked based on the individual categories listed above. General Leave banks transferred from CITY will be tracked separately from new OCFA leave time accrued by the transitioning employees under the applicable MOU, and will be used as a supplement to OCFA accrued vacation and sick leave. Transitioning employees will be required to exhaust the balance 60C-72 of their respective OCFA accrued leave bank before using the General Leave transferred from CITY. Use of all leave time, whether General Leave or OCFA accrued leave, must comply with OCFA's applicable MOU; however, General Leave banks are not eligible to be cashed-out by OCFA in lieu of using said time. The General Leave balance in each employee's leave bank will be available for use by transitioning employees, as described above, up until and including April 13, 2017. OCFA will pay amounts due to transitioning employees who use time from the CITY's General Leave bank, and CITY will repay such amounts to OCFA, as invoiced on a quarterly basis. Any amounts remaining in the transitioning employees' General Leave banks effective April 14, 2017 (or such earlier date if the transitioning employee separates from OCFA) will no longer be available for use by transitioning employees. OCFA will provide a report to CITY within 30 days after April 14, 2017 (or within 30 days following separation) detailing the hours remaining in each employee's bank. Transitionina Personnel from Santa Ana Fire Benevolent Association with Less than Ten (10) Years of City Service Upon transition, the City of Santa Ana (CITY) will establish a Sick Leave bank of 48 hours for each transitioning employee who transitioned from a Fire Benevolent Association position at the CITY with less than ten (10) years of CITY service. Sick Leave banks transferred from CITY will be tracked separately from new OCFA sick leave accrued by the transitioning employees under the applicable MOU, and will be used as a supplement to OCFA accrued sick leave. Transitioning employees will be required first to use their OCFA accrued sick leave, before using the sick leave transferred from CITY. Transferred sick leave may only be used for non- occupational illness or injury for which the employee has no OCFA accrued sick leave balance available, and may not be cashed out by OCFA. The Sick Leave balance in each employee's bank will be available for use by transitioning employees, as described above, up until and including April 16, 2015. OCFA will pay amounts due to transitioning employees who use time from the CITY's Sick Leave bank, and CITY will repay such amounts to OCFA, as invoiced on a quarterly basis. Any amounts remaining in the transitioning employees' Sick Leave banks effective April 17, 2015 (or such earlier date if the transitioning employee separates from OCFA) will be forfeited and no longer available for use by transitioning employees. CITY OF SANTA ANA ORANGE COUNTY FIRE AUTHORITY By: By. Interim City Manager, Paul M. Walters Fire Chief, Keith Richter Date: Date: 60C-73 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Exempt from fees per Government Code § 27383 (space above for recorder's use) LEASE AGREEMENT FOR FIRE STATIONS #70-79 between City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 and VIR Orange County Fire Authority 1 Fire Authority Road Irvine, California 92602 This Facility Lease Agreement ("the Lease") is made to be effective as of April 20, 2012 (the "Effective Date"), by and between the Orange County Fire Authority ("OCFA" or "LESSEE"), a California joint powers authority, and the City of Santa Ana ("CITY" or "LESSOR"), a California general law city, (collectively, "the Parties"). Page 1 60C-74 RECITALS A. WHEREAS, CITY is the owner of ten (10) fire station facilities and related real property within the City of Santa Ana, California, at those locations described in Exhibit A and depicted in Exhibit B ( collectively referred to herein as the "Premises"); and B. WHEREAS, CITY is a member of OCFA and is a party to that certain Amended Orange County Fire Authority Joint Powers Agreement, dated September 23, 1999, as amended by that certain First Amendment to the Amended Joint Powers Agreement, effective July 1, 2010, (the "Joint Powers Agreement"); and C. WHEREAS, the Joint Powers Agreement requires fire stations owned by member cities to be leased to OCFA for one dollar ($1.00) per annum; and D. WHEREAS, CITY and OCFA are also parties to that certain Fire Services and Emergency Medical Services Agreement, dated , 2012 (the "Fire Services Agreement"), effective April 20, 2012, which sets forth the terms pursuant to which OCFA provides fire protection, emergency medical, and related services to CITY; and E. WHEREAS, the term of the Fire Services Agreement runs concurrently with the term of the Joint Powers Agreement and remains in effect for so long as CITY is a member of OCFA; and F. WHEREAS, the Parties mutually desire to enter into a lease agreement for the Premises; NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows. AGREEMENT 1.0 Premises I.I. CITY leases to OCFA and OCFA leases from CITY those portions of the Premises described in Exhibit A depicted in Exhibit B attached hereto and incorporated herein (hereinafter the "Leased Premises"). 2.0 Term The term of this Lease shall run concurrently with the term of the Fire Services Agreement and any extensions or renewals thereof. If the Fire Services Agreement is terminated for any reason, this Lease shall concurrently terminate in its entirety. This Lease may not be terminated during the term of this Lease except upon mutual agreement of the Parties. 3.0 Use of Premises 3.1. OCFA shall inspect the Leased Premises prior to taking possession. OCFA's possession and use of the Leased Premises after the Effective Date shall constitute acknowledgment that the Leased Premises are in good and acceptable condition. 2 827843.2 60C-75 'I i 3.2. The Leased Premises shall be used exclusively by OCFA, its officers, agents, employees, and volunteers to provide fire protection, suppression, and medical aid services, and related activities, to CITY and in surrounding geographic areas in accordance with the Joint Powers Agreement and Fire Services Agreement, or any subsequent amendments thereto, and for no other purposes. 3.3. OCFA shall not use the Premises in any manner contrary to the terms of this Lease without CITY's prior written consent. CITY's authorized representative shall have the right at all reasonable times to inspect the Leased Premises to determine if the OCFA and its guests are complying with the provisions of this Lease. 3.4. OCFA shall not commit any waste or any public or private nuisance on the Premises. 3.5. OCFA shall not violate any law, rule, or order of any federal, state, or municipal government or agency that may be applicable to the use of the Premises. 3.6. OCFA shall not commit any act on the Premises nor use the Premises in any manner that causes the cancellation of any fire, liability, or other insurance policy insuring the Premises or any improvement on the Premises. 3.7. On or before the effective date of termination of this Lease, OCFA shall vacate the Premises, remove all of OCFA's personal property from the Premises, and leave the Premises in good order and repair subject to the satisfaction of the City Manager. 4.0 Rent OCFA shall pay CITY as rent for the Leased Premises the sum of One Dollar ($1.00) per year per fire station facility, at the beginning of the first and subsequent years of the term of this Lease. Rent shall not include the cost of utilities or telephone services. 5.0 Telephone Service and Utilities 5.1 Telephones desired by OCFA for use by OCFA, its employees, or agents, and the cost thereof shall be secured by and paid for by OCFA. 5.2 OCFA shall pay all costs of utilities for the Leased Premises. 6.0 Alterations and Improvements 6.1 OCFA may make alterations, improvements and changes in or to the Leased Premises, including but not limited to, the installation of fixtures, partitions, counters, shelving, and equipment as OCFA deems necessary, with the prior written consent of the City Manager, which consent shall not be unreasonably withheld. It is agreed that any such fixtures, partitions, counters, shelving, equipment, or other alterations or improvements attached to or placed upon the Leased Premises by OCFA shall be considered as personal property of OCFA, which may be removed by OCFA upon termination of this Lease. OCFA shall repair any damages to the Leased Premises from such removal and agrees that the Leased Premises shall be left in as good condition as when received, reasonable wear and tear excepted. 3 827843.2 60C-76 6.2 Capital improvements to the Leased Premises required by OCFA shall be the obligation of CITY in accordance with Article VI of the Joint Powers Agreement, as it may be amended from time to time. 7.0 Maintenance and Repairs 7.1. OCFA shall keep the Leased Premises in good condition and repair. All damages or injury to the Leased Premises or its contents caused by OCFA, its employees, agents or visitors shall be promptly repaired by OCFA to the satisfaction of the City Manager. 7.2. Maintenance and repairs to the Leased Premises shall be funded in accordance with Article VI of the Joint Powers Agreement, as it may be amended from time to time. 7.3. The cost of repairs required to assure structural integrity and to maintain the habitability of the Premises in compliance with building and health and safety codes will be the sole responsibility of CITY. Significant maintenance or repairs to the Leased Premises that constitute capital improvements pursuant to the Joint Powers Agreement shall be the obligation of CITY in accordance with Article VI of the Joint Powers Agreement, as it may be amended from time to time. 7.4. Unless otherwise mutually agreed by the Parties, CITY shall be responsible for maintenance and repair of all exterior landscaping, parking areas, driveways, joint use areas, if any, and all portions of the Premises other than the Leased Premises. 8.0 Party Representatives 8.1. The City Manager is the CITY's representative for purposes of this Lease. 8.2. The Fire Chief is the OCFA's primary representative for purposes of this Lease. 9.0 Notices 9.1. All notices permitted or required under this Lease shall be deemed made when personally delivered or when mailed 60 hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at the following addresses: To CITY: City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Attn: City Manager To OCFA: Orange County Fire Authority 1 Fire Authority Road Irvine, California 92602 Attn: Fire Chief 9.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 4 827843.2 60C-77 i 10.0 Relationship of the Parties The only relationship created by this Lease is that of lessor and lessee. Neither CITY nor any of its elected officials, officers and employees, servants, designated volunteers, and agents serving as independent contractors in the role of CITY officials, shall have control over the means of service or means of production of OCFA or any of its of officers, employees, agent, or volunteers. 11.0 Assignment Neither Party shall assign or transfer any interest in this Lease whether by assignment or novation, without the prior written consent of the other Party. Any purported assignment without such consent shall be void and without effect. 12.0 Insurance 12.1. OCFA shall, at its expense, procure and maintain for the duration of the Lease, comprehensive general liability insurance and/or self insurance against claims for injuries to persons or damages to property that may arise from or in connection with its use of the Leased Premises, in an amount of no less than $2,000,000 per occurrence for bodily injury, personal injury and property damage for each location. All insurance coverage provided by OCFA shall be primary and not contributory insurance as respects the CITY, shall name CITY, its officials, officers, employees, agents, and volunteers as additional insureds, and shall be endorsed to provide that coverage shall not be suspended, voided, reduced, or cancelled except after thirty (30) days prior written notice to the CITY. At the time of execution of this Lease the OCFA shall provide CITY with evidence of compliance with these requirements. 12.2. CITY shall maintain throughout the duration of the Lease fire insurance with extended coverage on the Premises to the full insurable value of improvements located on the Premises. At the time of execution of this Lease the CITY shall provide OCFA with evidence of compliance with these requirements. 13.0 Indemnification, Hold Harmless, and Duty to Defend 13.1. OCFA shall defend, indemnify and hold harmless the CITY and its officers, employees, agents and representatives with respect to any loss, damage, injury, claim, demand, litigation or liability and all expenses and costs relating thereto (including attorneys fees) arising out of or in any way related to acts or omissions of OCFA, its officers, employees or agents relating to OCFA's occupancy and use of the Premises. 13.2. CITY shall defend, indemnify and hold harmless OCFA and its officers, employees, agents and representatives with respect to any loss, damage, injury, claim, demand, litigation or liability and all expenses and costs relating thereto (including attorneys fees) arising out of or in any way related to acts or omissions of CITY, its officers, employees or agents relating to CITY's ownership, occupancy, and use of the Premises. 13.3. All duties and obligations under this Section shall survive termination of this Lease. 5 827843.2 60C-78 II i 14.0 Taxes and Assessments All taxes and assessments, if any, which become due and payable upon the Premises, shall be the full responsibility of CITY, and CITY shall cause said taxes and assessments to be paid promptly. 15.0 Equal Opportunity OCFA affirmatively represents that it is an equal opportunity employer. OCFA must not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non- discrimination includes, but is not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 16.0 Labor Certification By its signature hereunder, OCFA certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing use of the Premises. 17.0 Defaults and Remedies In the event of any breach of this Lease by either party, the aggrieved party may notify the other in writing of such breach, and the breaching party shall have thirty (30) days in which to initiate action to cure said breach before the other party may proceed to complete the cure of such breach with due diligence or to take any other remedies for default. 18.0 Successors in Interest Unless otherwise provided in this Lease, the terms, covenants, and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators, assigns of all of the parties hereto, all of whom shall be jointly and severally liable hereunder. 19.0 Destruction of or Damage to Premises In the event of (A) partial destruction of the Premises; or (B) the Premises being declared unsafe or unfit for occupancy by any public authority authorized to make such declaration, for all reason other than OCFA's act, use, or occupation, except as otherwise provided herein: CITY shall immediately make repairs as are necessary to restore the Premises to the condition which existed prior to destruction or damage and/or make repairs as are necessary to make the Premises safe and fit for occupancy. The destruction (including any destruction necessary in order to make repairs required by any declaration), damage or declaration shall in no way render this Lease null and void. If CITY refuses to make such repairs or if such repairs are not completed by CITY within 60 days, OCFA may, at its option, terminate the Lease, or, OCFA's cost of such repairs, including labor, materials, and overhead, may be included by OCFA in amounts owing by CITY to OCFA pursuant to the Joint Powers Agreement, as it may be amended from time to time. 6 827843.2 60C-79 20.0 Circumstances Which Excuse Performance If either party hereto shall be delayed or prevented from the performance of any act required hereunder by reason of acts of God, restrictive governmental laws or regulations, or other cause without fault and beyond the control of the party obligated (financial inability excepted), performance of such act shall be excused for the period of delay; and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. However, nothing in this clause shall excuse either Party from the prompt payment of any rental or other charge required of it except as may be expressly provided elsewhere in this Lease. 21.0 Entire Agreement This Lease contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Lease may only be modified by a writing signed by both parties. Notwithstanding the foregoing, this Lease shall be subject to, and interpreted to be consistent with, the Joint Powers Agreement and the Fire Services Agreement, as they may be amended from time to time. In the event of any inconsistency between the terms of this Lease and the terms of the Joint Powers Agreement and/or the Fire Services Agreement, as they may be amended, the terms of the Joint Powers Agreement, then the terms of the Fire Services Agreement, shall govern, and the terms of this Lease shall be deemed to have been amended in accordance therewith. 22.0 Severability The invalidity in whole or in part of any provisions of this Lease shall not void or affect the validity of the other provisions of this Lease. 23.0 Construction and Governing Law The validity, interpretation, and performance of this Lease shall be controlled by and construed under the laws of the State of California. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Lease shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Lease or who drafted that portion of the Lease. 24.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Lease. 25.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 7 827843.2 60C-80 26.0 Holding Over In the event OCFA shall continue in possession of the Leased Premises after the term of this Lease, such possession shall not be considered a renewal of this Lease but a tenancy from month-to-month and shall be governed by the conditions and covenants contained in this Lease. 27.0 Time Time is of the essence in this Lease. 28.0 Prohibited Interests OCFA maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for OCFA, to solicit or secure this Lease. Further, OCFA warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for OCFA, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Lease. For breach or violation of this warranty, CITY has the right to rescind this Lease without liability. For the term of this Lease, no member, officer or employee of CITY, during the term of his or her service with CITY, shall have any direct interest in this Lease, or obtain any present or anticipated material benefit arising therefrom. 29.0 Attorneys' Fees If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Lease, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorney's fees and other costs incurred in connection with such action. 30.0 Incorporation of Recitals and Exhibits All Recitals set forth above and exhibits referenced in this Lease are hereby incorporated into the Lease as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms set forth in the main body of this Lease, the terms set forth in the main body of this Lease shall control. 31.0 Corporate Authority The persons executing this Lease on behalf of the Parties warrant that they are duly authorized to execute this Lease on behalf of said Parties and that by their execution, the Parties are formally bound to the provision of this Lease. 32.0 Lease Organization The various headings in this Lease, the numbers thereof, and the organization of the Lease into separate sections and paragraphs are for purposes of convenience only and shall not be considered otherwise. 8 827843.2 60C-81 IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Lease as of the date and year first above written. CITY OF SANTA ANA ORANGE COUNTY FIRE AUTHORITY By: City Manager By' Mark Tettemer, Chair Attest: Attest: ~I By: By. i City Clerk Sherry A.F. Wentz, CMC, Clerk of the Authority Approved as to Form: Approved as to Form: By: By: City Attorney David Kendig, General Counsel 9 827843.2 60C-82 EXHIBIT A Description of Premises i t I'~ 827843.2 60C-83 I EXHIBIT B Depiction of Premises 1 827843.2 60C-84