Loading...
HomeMy WebLinkAboutBOCC Packet 01092013 Emergency Fire FundAGENDA ITEM SUMMARY REGULAR MEETING DATE: January 9, 2013 AGENDA ITEM TITLE: Emergency Resolution Approving Intergovernmental Agreement for Participation in the Emergency Fire Fund (EFF)with Colorado Department of Public Safety, Division ofFire Prevention and Control. STAFF RESPONSIBLE: Tom Grady, Emergency Manager ISSUE STATEMENT: Pitkin County participates in the Emergency Fire Fund (EFF) with Colorado Department of Public Safety, Division of Fire Prevention and Control. This emergency resolution codifies Pitkin County participation in the program. BACKGROUND: The EFF is a program which helps Counties pay the financial obligations of private property wildland fire suppression costs. The fund established by 2 - . -122 C.R.S. is funded by contributions by Counties as well as supplemental additions by the Governor should the fund be depleted. The fund is accessed when the Sheriff delegates the management of a wildland fire to the State Division of Fire Prevention and Control because the fire has or will exceed capability of the County to manage 29-22. -1 3 2 C.R.S. LINK TO STRATEGIC PLAN: Livable and Supportive Community KEY DISCUSSION ITEMS: Having funding in place proactively is a sensible and necessary tool. The most recent five year contract was allowed to lapse in 2012. This emergency resolution codifies a new Intergovernmental Agreement for Participation in the EFF with Colorado Department of Public Safety, Division of Fire Prevention and Control starting as soon as possible and will be in effect for 5 years. BUDGETARY IMPACT: : Participation in this intergovernmental agreement has been 100°%o allocated in the 2013 Sheriff s budget. RECOMMENDED EI BOCC ACTION: Adopt and sign the Resolution, Emergency Resolution Approving Intergovernmental Agreement for Participation in the Emergency Fire Fund (EFF) with Colorado Department of Public Safety, Division of Fire Prevention and Control, set for confimiatory public hearing January 23, 2013. Sign the EFF Intergovernmental Agreement. ATTACHMENTS: Intergovernmental Agreement EMERGENCY RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO APPROVING ADOPTION OF INTERGOVERNMENTAL AGREEMENT FOR PARTICIPATION IN THE COLORADO EMERGENCY FIRE FUND WITH COLORADO DEPARTMENT OF PUBLIC SAFETY, DIVISION OF FIRE PREVENTION AND CONTROL RESOLUTION NO. -2013 1. The purpose of the Intergovernmental Agreement for Participation in the Colorado Emergency Fire Fund (EFF) is to: establish the County's basis for participation in the EFF to provide for payments from the County to the EFF, payments from the EFF to the County, and describe the conditions under which the EFF will be managed. 2. The EFF helps the County pay the financial obligations of private property wildland fire suppression costs. The EFF established by 24-33.5-1220 is funded by contributions by Counties as well as supplemental additions by the Governor. 3. This agreement shall continue for a term of 5 years. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin County, to adopt this Intergovernmental Agreement for Participation in the EFF with the Colorado Department of Public Safety, Division of Fire Prevention and Control. INTRODUCED, READ AND ADOPTED AS AN EMERGENCY RESOLUTION ON THE 9th DAY OF JANUARY 2013 AND SET FOR CONFIRMATORY PUBLIC HEARING ON THE 23RD DAY OF JANUARY, 2013. NOTICE OF CONFIRMATORY PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE EMERGENCY RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON , 2013. NOTICE OF CONFIRMATORY PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE . s , e , it i . c s ON THE DAY OF 2013. CONFIRMED AT A CONFIRMATORY PUBLIC HEARING ON THE DAY OF 2013. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER CONFIRMATORY PUBLIC HEARING, IN THE ASPEN TIMES WEEKLY AND POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE . s , e it ®. s ON THE DAY OF 2013. 1 ATTEST: BOARD OF COUNTY COMMISSIONERS By By: Jeanette Jones George Newman, Chairman Deputy County Clerk Date: APPROVED AS TO FORM: MANAGER APPROVAL John Ely, County Attorney Jon Peacock, County Manager 2 INTERGOVERNMENTAL AGREEMENT FOR PARTICIPATION ATI N IN THE COLORADO EMERGENCY FIRE FIND Between COUNTY FFIlK! , STATE OF COLORADO And STATE COLORADO: COLORADO DEPARTMENT OF PUBLIC SAFETY, DIVISION of FIRE PREVENTION and CONTROL IN ACCORDANCE WITH Colorado Revised Statutes, as amended; 24-33.5-1201— Transfer CSFS Board of Agriculture to CDFPC 24-33.5-1218; Cooperation with governmental units 24-33.5-1219 Forest fires - duty of sheriff to report 24-33.5-1221 (nub TITLE 24; Government - State, Principal Departments, Article 33 5; Public Safety, Part '1 ; Division of Fire Prevention and Control 24-33.5-1221. State responsibility determined 24-33.5-1222 Cooperation by counties 24-33.5-1223 Sheriffs to enforce; 24-33.5-1224 Limitation of state responsibility 30-10-512 Sheriff to act as fire warden 30-10-513 Sheriff in charge of forest or prairie fire — expenses 30-11-107(1)u Powers ofthe Board. THIS INTERGOVERNMENTAL AGREEMENT "Agreement", is entered into by and Between the COLORADO DEPARTMENT T F PUBLIC SAFETY, DIVISION of FIRE PREVENTION and CONTROL for the use and benefit of the Colorado Division of Fire Prevention and Control, and the COUNTY COMMISSIONERS for the Count of p i41,‹ , and for the Sheriff of said county (hereinafter referred to as "The County"). WITNESSETH: In consideration of the mutual benefits and promises contained herein, the Parties hereby agree as follows: ,. I. PURPOSE The purpose of the Intergovernmental Agreement for Participation in the Colorado Emergency Fire Fund (EFF) is to: establish the County's basis for participation in the Emergency Fire Fund to provide for payments from the County to the Fund; and describe the conditions under which the Emergency Fire Fund will be managed. II. EFFECTIVE DATE This Agreement shall be effective as of the date that it has been fully executed by all Parties herein below ("Effective Date"), but in any event, the County shall have no right to submit any claim to the Division Director for EFF funding until: the County has timely paid to the CDFPC the full amount of its contribution to the EFF as set forth in Attachment C, for the agreement year in which the claim arises; and has updated and signed a county Annual Operating Plan by May 1 of each year. This Agreement shall continue for a tern of five agreement years Unless either party elects to terminate the Agreement at the end of any agreement year, with such termination to be conditioned upon 60 days prior notice to the other party. An "agreement year" is May 1 through April 30 of each year. III. WILDFIRE FIR ROT TI 1 Attachment A A. Prior to entering into this Agreement, the County shall have entered into a valid and current Agreement for Cooperative Wildfire Protection (the "Cooperative Agreement"). A true and correct copy of the current Cooperative Agreement shall be attached hereto as "Attachment A" and is hereby incorporated and made a part of this Agreement. Attachment B B. As required in the Cooperative Agreement, the County and CDFPC shall jointly develop, review, ,and sign an Annual Operating Plan AP before May 1 of each year with all cooperating agencies having wildfire suppression responsibilities within the County. Failure to complete the AOP by May 1 of any year during the term of this Agreement shall result in the automatic suspension of the County from EFF participation unless the County has requested, in writing, and received approval by the Division Director, a 60 day extension of the May I date to complete the AOP, stating the specific reason(s) for the extension. The Division of Fire Prevention and Control Director shall, in his or her sole discretion, approve or deny the request in writing. once completed, the AOP shall be made a part of this agreement and attached as Attachment B. Intergovernmental Agreement for Emergency Fire Fund Rev. 12-2012 z IV. EMERGENCY C FIRE FUND A. The Emergency Fire Fund (EFF or "the Fund") has been established through the payments provided by participating Colorado counties and other entities entering into EFF agreements with the CDFPC. The EFF is maintained as an account of Colorado Division of Fire Prevention and Control, under the fiscal management of the Division Director. Payments from the EFF account shall be made only in compliance with applicable laws, rules and regulations pertaining to Colorado Division of Fire Prevention and Control funds, including, but not limited to, the State Fiscal Rules, The Division Director is designated as the fiscal al manager of all such monies received and all interest accrued in the EFF. No upper limit shall be placed on the amount of fads in the EFF, and funds may accumulate from year to year. B. An estimate of the annual EFF assessment will be provided to the County for budget planning purposes in August of each year during the term of this Agreement. An invoice will be submitted to the County in December of each year for the following year's participation in the EFF. The County shall make payment to: Colorado Division of Fire Prevention and Control, Attn: EFF Account, Building 1049, Campus Delivery, Fort Collins, Colorado 80523-5060, on or before March 15 of each year. Current annual calculation of the County assessment is shown in Attachment C to this Agreement. C. Administration oft e EFF including annual reports will be reviewed annually by an advisory committee composed of the Division Director, three county commissioners, three county sheriffs and two Fire Chiefs each representing different participating counties in the EFF (the "EFF advisory committee"). County commissioner members will be designated by Colorado Counties, Inc.; sheriffs by County Sheriffs of Colorado; and Fire Chiefs by Colorado State Fire Chiefs Association. The EFF advisory committee shall make recommendations to the Division Director regarding matters relating to the Fund, including recommended annual assessments for subsequent years. Final decision making authority over fiscal management matters shall reside with the Division Director on behalf of the Counties collectively. D. The CDFPC shall make distribution of these funds only upon direction of the Division Director or his designee and will be subject to the "Emergencies" provisions of the State Fiscal Rules (Rule 2-2). I isbu sements shall be limited to such expenditures incurred in controlling a designated wildfire as are within the then -current, unencumbered balance of the Fund. E. All EFF participants shall pay annual assessments as invoiced. Any new participant entering into an EFF agreement with the CDFPC shall become eligible to receive benefits from the EFF, after remitting its assessment, on a pro rata basis as follows: Year 1 of participation in EFF: 50% of eligible control costs Year 2 of participation in EFF: 75% of eligible control costs Year 3 of participation in EFF: r 100% of eligible control costs Intergovernmental Agreement for Emergency Fire Fund Rev, 1 012 3 F. If at any time during the term of this Agreement the EFF becomes depleted, or has insufficient funds to meet the expected needs of the Fund, the Division Director will make every reasonable effort to obtain additional funds by requesting the Governor to make additional funds available. Should the Division Director be unsuccessful in efforts to obtain additional funding, fire control costs will remain the County' s responsibility. G. Failure of the County to make payment into the EFF by March 15 of each year shall be a breach of this Agreement. In the event of a breach by a county, if such breach is not cured within 30 days after written notice by CDFPC, then CDFPC may immediately terminate this agreement. The County will not be eligible for EFF benefits arising from fires that occur while the county does not have a valid EFF agreement or is in breach. All funds deposited into the EFF will remain in the Fund until expended for eligible control costs on an EFF designated fire(s). H. The Division Director will provide EFF participants an annual financial report identifying fund expenditures, encumbrances, and available balance. This report will be included with the annual invoice to participants. The EFF shall be subject to various audits under current audit standards, rules and practices of the State of Colorado and the Colorado Division of Fire Prevention and Control. J. The EFF Counties may terminate this Agreement effective at the end of an "agreement year" provided that 60 days notice of intent to terminate is provided to the Division Director in writing, as addressed in Section If "Effective Date" above. Such notice of intent to terminate must include a statement that the termination is the decision of the majority of the participating EFF Counties. In the event that the Agreement is terminated by the majority of the participating Counties, the EFF shall cease operations, and any un-obligated funds, including any accrued interest, remaining after all obligations of the fund have been paid will be returned to the participating counties and otherentities, prorated on the sole basis of the payments made to the fund in the most recent year. V. EFF IMPLEMENTATION A. The County will make every effort to control fire(s) upon non-federal lands within the County with resources available within the County. In the event that the County and the CDFPC .utuall agree that the fire(s) threatens to spread, or has spread, beyond control capability of the firefighting ghtin resources within the County (as outlined in the Count is Annual Operating Plan), the Division Director (or his authorized designee) and the authorized County representative shall signa Delegation of Duty giving the Division Director command responsibility for the fire(s). Once command responsibility has been assumed by the CDFPC, the -County shall nevertheless continue to make its maximum effort to provide firefighting resources from within the County. B. When a fire can again reasonably be managed by the County with resources available to it, command responsibility for incident management and for payment of all fire Intergovernmental Agreement for Emergency Fire Fund Rev. 12-2012 control costs will be returned by the Division Director to the County. No expenditures made by the County prior to assumption by the Division Director or after return to the County, will be eligible for payment by the EFF, without express prior approval of the Division Director. VI. FIRE CAUSE DETERMINATION A. As a condition precedent to entering into this Agreement, and to eligibility for continuing participation in the EFF throughout the term hereof, the County agrees that, in the event of a human -caused fire, the Sheriff of said County shall conduct an investigation as to cause of such fire and will provide the Division Director a copy of the preliminary investigation report within 30 days of control of the fire, and a final report upon the conclusion of that investigation consistent with State Law, The County Sheriff shall have administrative and financial responsibility with respect to the conduct of the investigation. VII. ADDITIONAL PROVISIONS A. Compliance with Laws, Regulations and Requirements. Each party agrees to comply with all applicable federal, state and local laws, codes, regulations, rules, and orders. B. Assigr a ht, Neither party shall assign or transfer any interest in this Agreement, nor delegate any of its obligations, nor assign any claims for money due or to become due to a party, without the prior written approval of the other party. C. Default; Termination. 1. A partywill be considered in default of its obligations under this Agreement if such party should fail to observe, to comply with, or to perform any term, condition, or covenant contained herein and such failure continues for thirty 0 days after the non -defaulting party gives the defaulting party written notice thereof. A default not cured within such period shall be a material breach if it is substantial and significant and affects the rights of the non -breaching Party or its ability to perform any of its obligations. In the event of a material breach, the non -breaching party, upon written notice to the defaulting Party, may terminate this Agreement as of the date specified in the notice, and may seek such other and further relief as may be provided by law. 2. This agreement may be terminated by a participating EFF County, without cause, upon 30 days advance written notice. Such termination shall have no effect on participation by other parties, and the terminating County shall not be entitled to a refund of any funds it has paid into the EFF. D. Binding Nature; EntireAgreement; Waiver. Except as herein provided, this Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. None of the terms or conditions in this Agreement shall give rise to any claim, benefit, or right of action by any third person not a party hereto. Any person or entity, other than the CDFPC or the County, receiving services or benefits under this Agreement or shall be deemed only an incidental beneficiary. This Agreement is executed and Intergovernmental Agreement for Emergency Fire Fund Rev. 12-2012 5 delivered with the understanding that it constitutes the entire agreement between the parties with respect to the su j ect matter hereof and that there are no prior representations, warranties, or agreements, oral or written, relating hereto. The failure of either party to insist upon performance of any covenant or condition hereof upon one or more occasions shall not constitute a waiver thereof E. Changp_s_i_ntAmendments. No modification or amendment to this Agreement shall be effective unless made in writing and signed by the authorized representatives of all parties hereto. F. Notices. All notices required to be given under this Agreement shall be deemed given when delivered by certified mail, return receipt, or on the next business day following delivery by facsimile transmission if confirmation of the fax transmission is made by telephone, to the designated representatives of the Party to whom_it is directed. A Party may change its designated representative or address at any time by written notice in the same manner as for any other notice. The initial representatives ofthe parties are as follows: CDFPC: Division Director Paul L. Cooke, Director 690 Kipling Street #2000 Lakewood, CO1 Intergovernmental Agreement for Emergency Fire Fund Rev. 12-2012 COUNTY: [Name] [Title] [Address] [Address] [Phone] [Fax] 6 G. Venue. Any legal action arising under this Agreement shall be filed and tried, if at all, in the Colorado District Court in and for the City and County of Denver, State of Colorado. H. Captions. Construction, and Agreement Effect; Se erabilit . The captions and headings used in the Agreement are for identification only, and will be disregarded in any construction ofthe contract provisions. If any portion,. clause, paragraph, or section of this Agreement will be determined to be invalid, illegal, or without force by a court of law or rendered so legislative act, then the remaining portions ofthis Agreement will re ai.n in full force and effect. I, No Beneficial Interest. The signatories aver that to their knowledge, no state employee has any personal or beneficial interest whatsoever in the service or property described herein. J. Ability to Contract. Each party represents, to the other, that it is not subject to any restrictive obligations imposed by any other contract or agreement that would impair its - ability to perform its obligations hereunder. K. Resolution of Disagreements. Should disagreement arise on the interpretation of the provisions of this Agreement that cannot be resolved at the operating level, the area(s) of disagreement shall be stated in writing by each party and presented to the other party for consideration. If agreement on interpretation is not reached within thirty days, the parties shall forward the written presentation of the disagreement to respective higher officials for appropriate resolution, failing which, a party may seek legal or equitable relief under applicable law. VIII. SPECIAL PROVISIONS The following Special Provisions are required by law to be contained in every Intergovernmental Agreement of the State of Colorado. Any conflict between the Special Provisions and any other provision of this Agreement shall be resolved in favor of the applicable Special Provision. SPECIAL PROVISIONS jFor Use Onl with Intern -Governmental Contracts) I . CONTROLLER'S APPROVALCRS 4- (1). This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may designate. 2. FUND AVAILABILITY.CRS 24-30-202(5.5). Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made ai lable. 3. INDEMNIFICATION. To the extent authorized by law, the contractor shall inderr nif , save, and hold harmless the State against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred a§ a result of any act or omission by the Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract. Intergovernmental Agreement for Emergency Fire Fund Rev. 12- 01 No term or condition of this contract shall be construed or interpreted as a waiver, expressed or implied, of any of the immunities, rights, benefits, protection, or other provisions for the parties, of the Colorado Governmental Immunity Act,'CRS 4- -1 1 et seq. or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. as applicable, as now or hereafter amended. 4. INDEPENDENT CONTRACTOR. CDR 801-2 . THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN- INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY. FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY THE STATE) AND UNEMPLOYMENT ENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED ED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR, F , ITS EMPLOYEES YEES AND AGENTS. 5. NON-DISCRIMINATION. The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. 6. CHOICE OF LAW. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any provision of this contract, whether or not incorporated herein by reference, which provides for arbitration by any extra- judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and state laws, rules, and regulations that have been or may hereafter be established. 7. SOFTWARE PIRACY PROHIBITION Governor's Executive Order D 002 00. No State or other public funds payable under this Contract shall be used for the acquisition, operation, or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that, for the term .of this Contract and any extensions, the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that the Contractor is in violation of this paragraph, the State may exercise any remedy available at law or equity or under this Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or applicable licensing restrictions. 8. EMPLOYEE FINANCIAL INTERE T,CRS 24-18-201 & ORS 24-50-507. The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. Issued by the State ontroll is Office Date Issued: 7/1/74 Rule 3-1 Date Revised: d:8/1/05 intergovernmental Agreement for Emergency Fire Fund Rev. 12,2012 8 IX. AGREEMENT EXECUTION The parties hereto, as evidenced by their authorized signatures below, have executed, and hereby entered into, this agreement upon the last date of signatures below. Upon signature ofthe County and CDFPC, this agreement supersedes all prior agreements and understandings related to the subject matter hereof, including (but not limited to) the previous agreement entitled "Emergency Fund Contract Agreement for Forest and Watershed Fire Control" and subsequent amendments to that agreement, between the County and CDFPC. Intergovernmental Agreement for Emergency Fire Fund R .J-Oi 9 ICI WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS INTERGOVERNMENTAL AGREEMENT COUNTY, COLORADO: STATE OF COLORADO: John likkenlooper, GOVERNOR Board of county Commissioners: By: Chairman Department of Public Safety: Division of Fire Prevention and Control By: Paul Cooke iision Director Print Name & Title of Authorized Officer ATTEST: APPROVED: (SEAL) County Clerk County Sheriff: Sheriff Intergovernmental Agreement for Emergency Fire Fund Rev.12-2012 LEGAL SUFFICIENCY: DEPARTMENT OF LAW John W. Suthers Attorney General By: ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24-30-202 requires that the State Controller approve all state contracts, This contract is not valid until the State ,Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below. If the State of Colorado may not be obligated to pay for the goods and/or services provided. STATE CONTROLLER: L SLIE M. SHENEFELT By: Date: