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HomeMy WebLinkAbout2009-12-28 10-043 ORDERCOUNCIL ACTION Item No. 3 4 Date: December 28, 2009 Item/Subject: Order, Authorizing Execution of Mutual Aid and Assistance Agreement with Maine Water/Wastewater Agency Response Network Responsible Department: Wastewater Treatment Commentary: The Maine Water/Wastewater Agency Response Network (MEWARN) is a statewide organization of utilities operating pursuant to a Mutual Aid and Assistance Agreement for assisting each other to prepare for or respond to serious problems in service. Its mission is to provide for statewide emergency preparedness and response for public and private water and wastewater utilities. Response to a request for assistance is strictly voluntary. Members of MEWARN have the sole discretion whether to and how to respond to any particular situation. This Order will authorize Bradley Moore, Superintendent of the City's Wastewater Treatment Plant, to execute a Mutual Aid and Assistance Agreement making the City a member of MEWARN. Department Head Manager's Comments: This has been reviewed and is recommended by the Infrastructure Committee. jklilm AlCity Manager Associated Information: Budget Approval: Legal Approval: Introduced for X Passage First Reading Referral Finance Director Page _of_ 0 043 �;. Assigned to Councilor — Hawes December 28, 2009 OF BAN S d; 9. - CITY OF BANGOR (TITLE.) ORDER, Authorizing Execution of Mutual Aid and Assistance Agreement for Maine Water/Wastewater Agency Response Network WHEREAS, a number of Maine Communities, water districts and wastewater districts have created the Maine Water/Wastewater Response Network (MEWARN); and WHEREAS, the purpose of this reorganization is to provide mutual aid and assistance to each other in the form of personnel, equipment, supplies and/or other resources; and WHEREAS, it is in the best interest of the citizens of Bangor that the City of Bangor join MEWARN; By the City Council of the City of Bangor. ORDERED, That Bradley Moore, Superintendent of the City of Bangor Wastewater Treatment Plant, is hereby authorized, on behalf of the City of Bangor, to execute the Mutual Aid and Assistance Agreement for Maine Water/Wastewater Agency Response Network. Said Agreement shall be in a form substantially as attached hereto and in a final form as approved by the City Solicitor or Assistant City Solicitor. IN CITY COUNCIL December 28, 2009 Motion Made and Seconded for Passage CLERK ORDER (TITLEJAuthorizing Execution of Mia -nal Aid and Assistance Agreement with Mainp Vat&-rjXasjCXAter Agency Response Assigned to Councilor .0 043 Mutual Aid and Assistance Agreement for 2 Maine Water/Wastewater Agency Response Network (MEWARN) 3 4 AGREEMENT 5 6 This Agreement is made and entered into by public and private Water and Wastewater Utilities 7 that have, by executing this Agreement, manifested their intent to participate in an Intrastate 8 Program for Mutual Aid and Assistance through the Maine Water/Wastewater Agency 9 Response Network (MEWARN). 10 11 12 ARTICLE I. 13 PURPOSE 14 15 Recognizing that emergencies may require aid or assistance in the form of personnel, 16 equipment, and supplies from outside the area of impact, the Members hereby establish a 17 Maine Program for Mutual Aid and Assistance, Through the Mutual Aid and Assistance 18 Program, Members may, at their discretion, coordinate response activities and share resources 19 during emergencies. This Agreement sets forth the procedures and standards for the 20 administration of the Maine Mutual Aid and Assistance Program. 21 22 23 ARTICLE 11. 24 DEFINITIONS 25 26 A. Authorized Official - An employee or officer of a Member utility that is authorized to: 27 1. Request assistance; 28 2. Offer assistance; 29 3. Refuse to offer assistance or 30 4. Withdraw assistance under this agreement. 31 32 13. Emergency - A natural or human caused event or circumstance causing, or imminently 33 threatening to cause, loss of life, injury to person or property, human suffering or financial 34 loss, and includes, but is not limited to, fire, explosion, flood, severe weather, drought, 35 earthquake, volcanic activity, spills or releases of oil or hazardous material, contamination, 36 utility or transportation emergencies, disease, blight, infestation, civil disturbance, riot, 37 intentional acts, sabotage and war that is, or could reasonably be beyond the capability of 38 the services, personnel, equipment, and facilities of a Member to fully manage and mitigate 39 internally. 40 41 C. Members — Any public or private Water or Wastewater Utility that manifests intent to 42 participate in the Mutual Aid and Assistance Program by executing this Agreement. 43 44 1. Associate Member - Any non utility participant, approved by the State Steering 45 Committee (the Committee), that provides a support role for the MEWARN program, for 46 example the Maine Emergency Management Agency, or associations who are members 47 of the Committee. Associate Members are not eligible to sign the MEWARN agreement 48 not are they eligible to vote. 49 50 2. Requesting Member - A Member who requests aid or assistance under the Maine 51 Mutual Aid and Assistance Program. A0 6040 3. Responding Member — A Member that responds to a request for aid or assistance under the Maine Mutual Aid and Assistance Program. D. Non -Responding Member - A Member or Associate Member that does not provide aid or assistance during a Period of Assistance under the Maine Mutual Aid and Assistance Program. 9 li. Period of Assistance — A specified period of time when a Responding Member assists a 10 Requesting Member. The period commences when personnel, equipment, or supplies I I depart from Responding Member's facility and ends when the resources return to their 12 facility (portal to portal). All protections identified in the agreement apply during this period. 13 The specified Period of Assistance may occur during response to or recovery from an t4 emergency, as previously defined. 15 16 F. National Incident Management System (NIMS): A national, standardized approach to 17 incident management and response that sets uniform processes and procedures for 18 emergency response operations. 19 20 G. Incident Command System (ICS): The nationally -used, standardized on -scene emergency 21 management concept specifically designed to allow users to adopt an integrated 22 organizational structure equal to the complexity and demands of single or multiple incidents 23 without being hindered by jurisdictional boundaries. 24 25 26 ARTICLE Ill. 27 ADMINISTRATION 28 29 The Mutual Aid and Assistance Program shall be administered through a Statewide Steering 30 Committee (the Committee). In addition to representing the interests of the Members, the 31 Committee may include representatives from government agencies, industry associations and 32 related organizations. Under the leadership of the Chair, the Committee members shall plan 33 and coordinate emergency planning and response activities for the Mutual Aid and Assistance 34 Program. 35 36 37 ARTICLE IV. 38 PROCEDURES 39 40 In coordination with the Committee, emergency management and public health system of the 41 state, the"Committee shall develop operational and planning procedures for the Maine Mutual 42 Aid and Assistance Program. These procedures shall be reviewed at least annually and 43 updated as needed by the Committee. 44 45 46 ARTICLE V. Q7 _REQUESTS FOR ASSISTANCE 48 49 A. Member Responsibility: Members shall identify an Authorized Official and alternates; 50 provide contact information including 24-hour access and maintain resource information that 51 may be available from the utility for mutual aid and assistance response. Such contact 7 8 9 10 11 B. 12 13 14 15 16 17 18 19 20 C. 21 22 23 24 25 26 27 28 29 30 31 32 33 information shall be updated annually or when changes occur and provided to the Committee. In the event of an Emergency, a Member's Authorized Official may request mutual aid and assistance from a participating Member. Requests for assistance can be made orally or in writing. When made orally, the request for personnel, equipment, and supplies shall be prepared in writing as soon as practicable. Requests for assistance shall be directed to the Authorized Official of the participating Member. Specific protocols for requesting aid shall be provided in the required procedures (Article IV) as amended from time to time. Response to a Request for Assistance — Members of the agreement are not obligated to respond to a request. After a Member receives a request for assistance, the Authorized Official evaluates whether or not to respond, whether resources are available to respond, or if other circumstances would hinder response, Following the evaluation, the Authorized Official shall inform, as soon as possible, the Requesting Member whether it will respond. If the Member is willing and able to provide assistance, in its sole discretion, the Member shall inform the Requesting Member about the type of available resources and the approximate arrival time of such assistance. Discretion of Responding Member's Authorized Official — Execution of this Agreement does not create any duty to respond to a request for assistance. When a Member receives a request for assistance, the Authorized Official shall have sole and absolute discretion as to whether or not to respond, and the availability of resources to be used in such response. An Authorized Member's decisions on the availability of resources shall be final. ARTICLE VI. RESPONDING MEMBER PERSONNEL_ A. National Incident Management System - When providing assistance under this Agreement, the Requesting Member and Responding Member shall use the organizational principals set forth in the National Incident Management System 34 B. 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 so 51 Control - The Requesting Member's Authorized Official shall coordinate response activities with the designated supervisor(s) of the Responding Member(s), consistent with the NIMS Incident Command System (ICS), to address the needs identified by the Requesting Member. The personnel of the Responding Member shall be under the supervision of the Responding Member. The Responding Member's designated supervisor(s) must keep accurate records of work performed by personnel during the specified Period of Assistance. C. Food and Shelter — Whenever practical, Responding Member personnel must be self sufficient for up to 72 hours. When possible, the Requesting Member shall supply reasonable food and shelter for Responding Member personnel. If the Requesting Member is unable to provide food and shelter for Responding personnel, the Responding Member's designated supervisor is authorized to secure the resources necessary to meet the needs of its personnel. Except as provided below, the cost for such resources must not exceed the State per diem rates for that area. To the extent Food and Shelter costs exceed the State per diem rates for the area; the Responding Member must demonstrate that the additional costs were reasonable and necessary under the circumstances. Unless otherwise agreed to in writing, the Requesting Member remains responsible for reimbursing the Responding Member for all reasonable and necessary costs associated with providing food and shelter, A 040 A 040 1 if such resources are not provided. Current State of Maine per diem rates are available at: 2 httn•//wvm, nco n,,.,ro...x i,. -- . _ . - 5 D. Communication — The Requesting Member shall provide Responding Member personnel 6 with appropriate communications devices and procedures, as available.- 7 8 l=. Status - Unless otherwise provided by law, the Responding Member's officers and 9 employees and the Requesting Member's officers and employees retain the same 10 privileges, immunities, rights, duties and benefits as provided in their respective jurisdictions. 11 12 F. Licenses and Permits — To the extent permitted by law, Responding Member personnel that 13 hold licenses, certificates, or permits evidencing professional, mechanical, or other skills 14 shall be allowed to carry out activities and tasks relevant and related to their respective 15 credentials during the specified Period of Assistance. 16 17 G. Right to Withdraw - The Responding Member's Authorized Official retains the right to 18 withdraw some or all of its resources at any time for any reason in the Responding 19 Member's sole and absolute discretion. Notice of intention to withdraw must be 20 communicated to the Requesting Member's Authorized Official as soon as practicable under 21 the circumstances. 22 23 24 25 ARTICLE VII. 26 COST- REIMBURSEMENT 27 28 The Requesting Member shall reimburse the Responding Member for each of the following 29 categories of costs incurred during the specified Period of Assistance as agreed in whole or in 30 part by both parties; provided, that any Responding Member may assume in whole or in part 31 such loss, damage, expense, or other cost, or may loan such equipment or donate such 32 services to the Requesting Member without charge or cost. 33 34 35 A. Personnel — The Responding Member shall be reimbursed by the Requesting Member for 36 personnel costs incurred for work performed during the specified Period of Assistance. 37 Responding Member personnel costs shall be calculated according to the terms provided in 38 their employment contracts or other conditions of employment. The Responding Member's 39 designated supervisor(s) must keep accurate records of work performed by personnel 40 during the specified Period of Assistance. The Responding Member may seek 41 reimbursement from the Requesting Member for all personnel costs, including salaries or 42 hourly wages, costs for fringe benefits, and indirect costs. 43 -10 043 I B. Equipment — The Requesting Member shall reimburse the Responding Member fort he use 2 of equipment during the specified Period of Assistance, including, but not limited to, 3 reasonable rental rates, all fuel, lubrication, maintenance, transportation, and 4 loading/unloading of loaned equipment. All equipment shall be returned to the Responding 5 Member in good working order as soon as is practicable and reasonable under the 6 circumstances. In the event loaned equipment is damaged while being dispatched to a 7 Requesting Member, or while used during a Period of Assistance, and such damage is not 8 due to negligence or intentional acts of the Responding Member, Requesting Member shat! 9 reimburse the Responding Member for the reasonable cost of repairing such equipment. If 10 the damaged equipment cannot be repaired, then Requesting Member shall reimburse the 11 Responding Member for the reasonable cost of replacing such damaged equipment with 12 equipment that is of equivalent age, condition and of at least equal capability. If Responding 3 Member must lease a piece of equipment while its equipment is being repaired, Requesting 14 Member shall reimburse Responding Member for such rental costs. 15 16 As a minimum, rates for equipment use must be based on the Federal Emergency 17 Management Agency's (FEMA) Schedule of Equipment Rates, If a Responding Member 18 uses. rates differ from those in the. FEMA Schedule of Equipment Rates, the Responding 19 Merrrrber must provide such rates orally or in writing to the Requesting Member prior to 20 supplying the equipment. Mutual agreement on which rates are used must be reached in 21 writing prior to dispatch of the equipment. Reimbursement for equipment not referenced on 22 the FEMA Schedule of Equipment Rates must be developed based on actual recovery of 23 costs. 24 25 C. Materials and Supplies — The Requesting Member shall reimburse the Responding Member 26 in kind or at actual replacement cost, plus handling charges, for use of expendable or non - 27 returnable supplies. The Responding Member shall not charge direct fees or rental charges 28 to the Requesting Member for other supplies and reusable items that are returned to the 29 Responding Member in a clean, damage -free condition. Reusable supplies that are 30 returned to the Responding Member with damage shall be treated as expendable/non- 31 returnable supplies for purposes of cost reimbursement. 32 33 O. Payment Period — The Responding Member must provide an itemized bill to the Requesting 34 Member for all expenses incurred by the Responding Member while providing assistance 35 under this Agreement. The Responding Member must send the itemized bill not later than 3G (90) ninety days following the end of the Period of Assistance. The Responding Member 37 may request additional periods of time within which to submit the itemized bill, and 38 Requesting Member shall not unreasonably withhold consent to such request. The 39 Requesting Member must pay the bill in full on or before the forty-fifth (45th) day following 40 the billing date. The Requesting Member may request additional periods of time within 41 which to pay the itemized bill, and Responding Member shall not unreasonably withhold 42 consent to such request, provided, however, that all payment shall occur not later than one - 43 year after the date a final itemized bill is submitted to the Requesting Member. 44 45 E. Records - Each Responding Member and their duly authorized representatives shallh ave 46 access to a Requesting Member's ICS forms, books, documents, notes, reports, papers and 47 records which are directly pertinent to this Agreement for the purposes of reviewing the 48 accuracy of a cost bili or making a financial, maintenance or regulatory audit. Each 49 Requesting Member and their duly authorized representatives shall have access to a 50 Responding Member's books, documents, notes, reports, papers and records which are 51 directly pertinent to this Agreement for the purposes of reviewing the accuracy of a cost bill A 043 1 or making a financial, maintenance or regulatory audit. Such records shall be maintained for 2 at least three (3) years or longer where required by law. 3 4 5 ARTICLE VIII. 6 DISPUTES 7 8 If any controversy or claim arises out of, or relates to, the execution of the Agreement, including, 9 but not limited to, alleged breach of the Agreement, the disputing Members shall first attempt to 10 resolve the dispute by negotiation, followed by mediation and finally shall be settled by 11 arbitration in accordance with the Rules of the American Arbitration Association. This 12 Agreement is made under and shall be construed and enforced in accordance with the laws of 13 the State of Maine. Any court of competent jurisdiction may enter the judgment rendered by the 14 arbitrators as final judgment that is binding on the parties. 19 16 17 ARTICLE IX. 18 INDEMNIFICATION 19 20 Each Member shall determine for itself what kinds of insurance, and in what amounts, it should 21 carry. With respect to Worker's Compensation coverage, each Member shall carry Worker's 22 Compensation insurance as required by law. Except as otherwise provided by law, nothing 23 herein shall act or be construed as a waiver ofany sovereign immunity, insurance or other 24 exemption or limitation on liability or damages, that a Member may enjoy pursuant to the Maine 25 Tort Claims Act, 14 M.R.S.A. § 8101 et seq., or to the terms of any State or Federal law. The 26 Requesting Member agrees to indemnify and hold harmless the Responding Member and its 27 respective directors, employees and agents from and against any and all liabilities, damages, 28 injuries, costs, expenses and claims of any kind, including any claim by a third party and the 29 costs of defense and attorneys' fees, which may arise in the performance of this Agreement, 30 except for claims arising from the willful misconduct or gross negligence of the Responding 31 Party. 32 33 Notwithstanding anything herein to the contrary, each party shall be solely responsible for any 34 Worker's Compensation claim which may arise from its own employees in the performance of 35 this Agreement. 36 37 The obligations created by this Article IX during the term of this Agreement shall survive 38 termination of this Agreement. 39 40 41 ARTICLE X. 42 SIGNATORY INDEMNIFICATION 43 (DELETED) 44 45 46 ARTICLE Xl. 47 WORKER'S COMPENSATION CLAIMS 48 49 The Responding Member is responsible for providing worker's compensation benefits and 50 administering worker's compensation for its employees. The Requesting Member is responsible �0 043 for providing worker's compensation benefits and administering worker's compensation for its employees. ARTICLE XII. 7 NOTICE 8 A Member who becomes aware of a claim or suit that in anyway, directly or indirectly, 9 contingently or otherwise, affects or might affect other Members of this Agreement shall provide 10 prompt and timely notice to the Members who may be affected by the suit or claim. Each I I Member reserves the right to participate in the defense of such claims or suits as necessary to 12 protect its own interests. 13 14 I5 ARTICLE XIII. 16 INSURANCE 17 18 Members of this Agreement and Associate Members shall maintain an insurance policy or 19 maintain a self insurance program that covers activities that it may undertake by virtue of 20 membership in the Mutual Aid and Assistance Program, 21 22 23 ARTICLE XIV. 24 CONFIDENTIAL INFORMATION 25 26 Confidential Information shall be defined and managed by current applicable Federal and State 27 laws and; regulations. The obligations created by this Article XIV during the term of this 28 Agreement shall survive termination of this Agreement. 29 30 31 ARTICLE XV. 32 EFFECTIVE DATE 33 34 This Agreement shall be effective after two or more Water or Wastewater Utilities' authorized 35 representatives execute the Agreement and the Committee Chair receives the Agreement. The 36 Committee Chair shall maintain a master list of all members of the Mutual Aid and Assistance 37 Program, 38 39 40 ARTICLE XVI. 41 WITHDRAWAL 42 43 A Member may withdraw from this Agreement by providing written notice of its intent to 44 withdraw to the Committee Chair. Withdrawal takes effect 60 days after the Committee Chair 45 receives appropriate notice. Withdrawal from this Agreement shall in no way affect a 46 Requesting Member's duty to reimburse a Responding Member for cost incurred during a 47 Period of Assistance, which duty shall survive such withdrawal, or the responsibilities of any 48 remaining Members under the Agreement. 49 0 143 ' ARTICLE XVII. 2 MODIFICATION 3 4 No provision of this Agreement may be modified, altered or rescinded by individual Members to 5 the Agreement. Modifications to this Agreement may be required due to programmatic 6 operational changes to support the agreement, legislative action, creation of an interstate aid 7 and assistance agreement, or other developments. Any modifications require a simple majority 8 vote of Committee Members. The Committee Chair must provide written notice to all Members 9 of approved modifications to this Agreement. Approved modifications take effect 60 days after 10 the date, upon which notice is sent to the Members. 11 12 13 14 ARTICLE XVIII. 15 16 SEVERABILITY 17 The parties agree that if any term or provision of this Agreement is declared by a court of 18 competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms 19 and provisions shall not be affected, and the rights and obligations of the parties shall be 20 construed and enforced as if the Agreement did not contain the particular term or provision held 21 to be invalid. 22 23 24 ARTICLE XIX. 25 PRIOR AGREEMENTS 26 27 This Agreement supersedes all prior Agreements between Members to the extent that such 28 prior Agreements are inconsistent with this Agreement. 29 30 31 ARTICLE XX. 32 PROHIBITION ON THIRD PARTIES AND ASSIGNMENT OF RIGHTSIDUTIES 33 34 This Agreement is for the sole benefit of the Members and no person or entity has any rights 3S under this Agreement as a third party beneficiary. Assignments of benefits and delegations of 36 duties created by this Agreement are prohibited and are without effect. 37 38 39 ARTICLE XXI. 40 MAINE AND INTERSTATE MUTUAL AID AND ASSISTANCE PROGRAMS 41 42 Members may voluntarily agree to participate in an Interstate Mutual Aid and Assistance 43 Program for water and wastewater utilities through this Agreement when such a Program is 44 established. 45 10 6� 2 Now, therefore, in consideration of the covenants and obligations set forth in this Agreement, 3 the Water and/or Wastewater Utility listed here manifests its intent to be a Member of the Maine 4 Mutual Aid and Assistance Program for Water and Wastewater Utilities by executing this 5 Agreement on this day of 200 . 6 7 R 9 IQ 11 12 13 14 15 16 17 18 WaterNVastewater Utility: By: Title: Please Print Name By: Title Please Print Name