THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF TRAVIS §
This Fire Protection Agreement (this "Agreement") is entered into effective as of the date indicated below, between the City of Cedar Park, Texas, a home rule municipality (the "City"), and Travis County Emergency Services District No. 14, a political subdivision of the State of Texas operating under Chapters 775 of the Texas Health & Safety Code (the "District").
RECITALS:
WHEREAS, the District is a legally constituted political subdivision of the State of Texas located in Travis County, Texas with some of its territory located within the extraterritorial jurisdiction of the City, and its boundaries are as depicted on Exhibit "A", attached hereto and incorporated herein by reference; and,
WHEREAS, the District is empowered to provide emergency services within its territorial boundaries and has certain equipment, facilities, and other resources for the provision of fire suppression, rescue, emergency medical and other emergency services to its citizens; and,
WHEREAS, the District has the authority to contract with other entities, including other districts or municipalities, for reciprocal operation of services and facilities if the contracting parties find that reciprocal operation would be mutually beneficial and not detrimental to the District; and,
WHEREAS, the City has equipment, facilities, and other resources for the provision of fire suppression, rescue, emergency medical and other emergency services to its citizens; and,
WHEREAS, the City and the District desire to enter into this Fire Protection
Agreement to provide mutual response and first due fire protection and other
emergency services by the City to areas within the District, specifically the
subdivisions commonly known as the Ranch at Deer Creek, Bella Vista, and Twin
Creeks as depicted in the Fire Service Area on Exhibit "B".
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the District and the City, each acting by and through its duly authorized
representative, agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms have the following meanings:
"City" means the City of Cedar Park, Texas.
"City's Annual Budget" means the budget prepared in good faith and adopted by the City Council of the City for purposes of setting the City's tax rate for the fiscal year covered by the budget.
"Customer Meter" means a water meter located within the District which is read by the City on a monthly basis for purposes of determining water and wastewater consumption for billing purposes, but will not include any irrigation-only meter, District water meter, or fire-hydrant meter, or any meter at any inactive or vacant service address.
"District" means Travis County Emergency Services District No. 14.
"District Customer" means a water and wastewater customer within the District, who is billed by the City for water and wastewater services based on a Customer Meter.
"Fire Department" means the fire department operated by the City.
"Fire Protection Budget" means, with respect to any fiscal year, the total operating expenses and debt service expense for Fire Protection projected in the City's Annual Budget, calculated in good faith and in accordance with the practices of similarly situated governmental entities providing services that are the same as or substantially similar to the Services provided hereunder.
"Fire Protection Expenditures" means, with respect to any fiscal year, the City's actual, audited operating and debt service expenses for Fire Protection.
"Fire Service Area" means the map area shown in Exhibit "B."
"Service Rate" means the sum to be collected by the City from each District Customer per month for Services provided by the City under this Agreement, as determined under Section 4 of this Agreement.
"Services" means emergency medical, fire protection, and fire fighting services, including response to life-threatening emergencies and rescue calls, provided by the Fire Department.
"Station Personnel Expenses" means the portion of the personnel expenditures set forth in the Fire Protection Budget directly related to personnel normally and routinely assigned on a day-to-day basis to a designated City Fire Station, excluding any costs associated with specialized personnel such as search and rescue units, dive teams, bomb squads, and arson investigators, etc.
Section 2. Services. For and in consideration of the Service Rate, the City will diligently provide Services to all persons and property within the Fire Service Area to the best of its ability and on the same basis as such Services are provided to persons and property within the City's corporate limits. The City will provide the District, on a quarterly basis and with any bill from the City to the District pursuant to Section 4 hereof, a report of emergency incidents in the Fire Service Area of the call locations, the number of incidents to which the City responds pursuant to this agreement on both a monthly and "to date" basis, the type of call, and the response time for each first-arriving arriving unit responding to any incident pursuant to this agreement.
It is understood and agreed by the District that the City may bill individuals or entities for emergency services it provides in areas its serves outside the territorial limits of the District, but it is also understood and agreed that the City shall collect any fee for the provision of Services hereunder only from said individuals' or entities' insurer; in no event shall the City attempt to collect any bills or fees for Services provided under this Agreement from the individuals or entities to which Services are provided hereunder.
Section 3. Equipment; Fire Station. It is presently contemplated that Services to the District will be provided primarily out of Fire Station No. 2, located at 1570 Cypress Creek Road. The City agrees not to take any action that would reduce the response time or staffing available to the District throughout the term of this Agreement, unless such reduction in response times and/or staffing would apply consistently throughout the City. The City will provide all engines, trucks, equipment, logistics, infrastructure, personnel and premises necessary to provide Services to the District. The City will make diligent efforts to ensure that all receipt of requests and dispatching of Services under this agreement shall be made in the most efficient and expedient manner allowable under the circumstances. It is presently contemplated that Services to the Fire Protection Area served under this agreement may also be supplemented by Volente Station No. 1, located at 15406 FM 2769, Volente, Texas.
Section 4. Service Rates. For and in consideration of the Services, the City will be entitled to a payment from the District, on a quarterly basis, equal to the Service Rate from each privately improved and occupied property within the boundaries of the Fire Service Area. The properties for which a payment shall be due hereunder shall be determined as of January 1 of each calendar year based on records of the Travis Central Appraisal District for which the District is actually receiving tax revenue and reconciled with the city's water bill database and mutually agreed by both parties hereto, regardless of when any occupied improvement has actually been constructed on said property. It is the intent of this agreement that the District shall not pay for any Services hereunder until and unless the property has actually been occupied by its final owner or a tenant thereof, water service has actually initiated to the property for residential purposes, and the District is receiving tax revenue for an improved property. The City shall bill the District, on a quarterly basis, for any amounts due under this Agreement, and the District shall pay such bill within thirty (30) days of its receipt, subject to the approval of the district. The monthly Service Rate per District Customer will be as follows:
(a) for the period beginning initiation of the contract and ending December 31, 2004, the sum of $9.00;
(b) for the period beginning January 1, 2005, and ending December 31, 2005, the sum of $10.00;
(c) for the period beginning January 1, 2006, and ending December 31, 2006, the sum of $12.85;
(d) for the calendar year 2007, and thereafter during the term of this Agreement, the sum will be determined by the following formula:
[(A x 0.85) ÷ B] x 3, but in no event will the annual increase exceed
12 ($12.85 x C), where:
A = the City's Fire Protection Expenditures for the fiscal year immediately preceding the then-current calendar year;
B = the Fire Department's total service population for such previous fiscal year;
C = the actual percentage increase in Station Personnel Expenses for Fire Station No. 2 (1570 Cypress Creek Road) from the City's Annual Budget for the 2002-2003 fiscal year to the most recently completed fiscal year; and
For example, if Fire Protection Expenditures were $2,977,450 and the service
population was 49,259, the formula would be applied as follows:
($2,977,450 x 0.85) x 3 = $2,530,832.50 x 3 = $51.38 x 3 = $154.13 = $12.85
49,259 49,259 12
however, the increase in the Service Fee for any calendar year will in no event exceed $12.85 times the percentage determined by C.
Section 5. Optional Buy-down of Service Rate. The District will have the right to reduce the Service Rate to be collected from District Customers under this Agreement for any calendar year or portion thereof by giving at least 60 days written notice to the City and prepaying to the City, from any funds lawfully available to the District, a buy-down amount calculated as follows:
(A x B x C), where:
A = the amount by which the Service Rate is to be reduced;
B = the number of District Customers for the then-current calendar year; and
C = the number of months during which the Service Rate is to be reduced.
Section 6. Term; Termination. This Agreement will commence December 1, 2004, and terminate December 31, 2005. This agreement shall then automatically renew for one-year terms and continue thereafter on a yearly basis until such time as this Agreement is terminated by either party. No area of the District, upon annexation by the City, shall be included in the calculation of any payments under this Agreement. This Agreement may be extended for additional periods of time, upon mutual agreement of the City and the District. Either party may terminate this Agreement by providing one year's prior written notice to the other party, in which case this Agreement will terminate and the parties will be relieved and released of all further obligations hereunder; provided, however, that neither party will be entitled to provide notice of termination in accordance with this Section prior to December 31, 2007, unless:
(a) the other party fails or refuses to comply with its obligations hereunder or commits a material breach of this Agreement, in which case the non-defaulting party must, prior to exercising any available remedy, give written notice to party in default, specify the default, and extend 30 days from the date of the notice to cure the default (the "Cure Period"). If the party in default fails to cure the default on or before expiration of the Cure Period, then such party will be in default hereunder, and the non-defaulting party may terminate this Agreement by giving the defaulting party written notice of termination as provided above; or
(b) the City's actual, audited cost of providing Services under this Agreement on a per household basis (the "Calculated Rate") is more than 1 ½ times the applicable Service Rate calculated in accordance with Section 4(d), above, in which case the City must, prior to exercising any available remedy, give written notice to the District, specifying the amount by which the Calculated Rate exceeds the applicable Service Rate (the "Rate Difference"). If, following such notice, the District refuses to agree to phase in the Rate Difference over a three-year period in equal annual increments or other manner acceptable to the City, then the City may terminate this Agreement by giving the District written notice of termination as provided above.
(c) The District, in its sole discretion, determines this Agreement is not economically or otherwise feasible or in the best interests of the District, provided, however, that the District shall provide one year's prior written notice to the City in the event of termination under this section.
The foregoing non-termination period may be extended for additional periods of time, upon mutual agreement of the City and the District.
Section 7. Severability. If, for any reason, any provision of this Agreement is held invalid, such holding will not affect the remaining provisions of this Agreement, but the invalidity will be confined, in its operation, to the specific provision of this Agreement held invalid and the remaining provisions of this Agreement will remain in full force and effect.
Section 8. Notices. All written notices and/or payments required to be submitted to either party will be sent to the addressees and addresses set forth below:
District: President
Travis County Emergency Services District No. 14
15406 FM 2769
Volente, Texas 78641
City: City of Cedar Park
Attn: City Manager
600 North Bell Blvd.
Cedar Park, Texas 78613
Section 9. Insurance. The City must either (a) at all times while this Agreement is in effect, at its sole cost and expense, maintain general liability insurance insuring against liability arising out of the performance or non-performance of the Services, the coverage of which, in the aggregate, is reasonable in scope and amount, in light of the risks and liability attendant to the Services, and which is comparable to coverage customarily maintained by governmental entities providing services that are the same as or substantially similar to the Services, or (b) provide evidence reasonably satisfactory to the District of the City's (i) ability and affirmative commitment to self insure against liability arising out of the performance or non-performance of the Services or (ii) participation in the Texas Municipal League's Intergovernmental Risk Pool, in either case, to at least the same extent as if the City had maintained a policy of general liability insurance under clause (a) above. All insurance obtained or maintained by City under clause (a) above must name the District as an additional insured and contain provisions that require 30 days' prior written notice to the District of any cancellation of or change in the insurance. If the City fails to provide proof of self-insurance or to maintain insurance as required hereunder, the District may (but will not be obligated to) procure the insurance required under this Section, and the City agrees to reimburse the cost thereof to the District on demand. The City agrees that the District and its officials, staff, agents, employees, and consultants will have no liability for any claims or damages by reason of any injuries or losses to any persons or property arising out of the intentional, negligent, or reckless acts of the City's officials, staff, agents, employees and consultants. The District agrees that the City will have no liability for any claims or damages by reason of any injuries or losses to any persons or property arising out of the intentional, negligent, or reckless acts of the District's officials, staff, agents, employees and consultants. Both the City and the District agree to fully indemnify and hold harmless each other, their service providers, and their officials, staff, agents, employees, and consultants, including but not limited to attorney's fees and costs of court for the intentional, negligent, or reckless acts of the other party's officials, staff, agents, employees and consultants. It is the intent of this indemnity and hold harmless provision that the City and the District shall only be responsible for the acts or omissions of their respective officials, staff, agents, employees, and consultants and not the other party's officials, staff, agents, employees, and consultants.
Section 10. Entire Agreement. This Agreement supersedes all previous agreements between the City and the District, including the Original Agreement, relating to fire protection services.
Section 11. Amendment. This Agreement may be amended only in writing signed by each party hereto.
Section 12. Governing Law; Venue. The construction and validity of this Agreement shall be governed by the laws of the State of Texas. Venue shall be in a court of appropriate jurisdiction in Travis County, Texas. It is expressly understood that the City and the District do not waive, and shall not be deemed to waive, any immunity or defense that would otherwise be available to them against claims arising in the exercise of their governmental powers and functions.
Section 13. Counterparts. This Agreement may be executed in one or more counterparts (including, without limitation, facsimile counterparts), each of which will be deemed an original and all of which together will constitute one and the same instrument.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
to be effective as of the date indicated below.
TRAVIS COUNTY EMERGENCY DISTRICT NO. 14
Date:_________________________
By: __________________________
Ray Johnson
Board of Emergency
Services Commissions
ATTEST:
__________________________
Lonnie Moore
Secretary
APPROVED AS TO FORM:
__________________________
Kenton P. Campbell
District Attorney
CITY OF CEDAR PARK
Date:_________________________
By:___________________________
Bob Antle
Mayor, City of Cedar Park
ATTEST:
_________________________
LeAnn Quinn
City Secretary
APPROVED AS TO FORM:
_________________________
Leonard B. Smith
City Attorney