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R 4859 RESOLUTION NO. 4859 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE APPROVING A MEMORANDUM OF AGREEMENT AMENDING THE FIVE CITIES FIRE AUTHORITY JOINT EXERCISE OF POWERS AGREEMENT AND APPROVING A GENERAL COUNSEL CONFLICT WAIVER WHEREAS, the City of Arroyo Grande ("City") is a member agency of the Five Cities Fire Authority (FCFA), which was created in 2010 upon approval of a Joint Powers Authority Agreement by the City, City of Grover Beach and the Oceano Community Services District; and WHEREAS, the City, City of Grover Beach and the Oceano Community Services District wish to enter into a Memorandum of Agreement amending the FCFA Joint Exercise of Powers Agreement and adopting a General Counsel Conflict Waiver. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Arroyo Grande that the Memorandum of Agreement Amending the Five Cities Fire Authority Joint Exercise of Power Attorney and General Counsel Conflict Waiver, attached hereto and incorporated herein as Exhibit A, are hereby approved and the Mayor and City Clerk are directed to sign the same on behalf of said City. On motion of Council Member Barneich, seconded by Council Member Ray, and on the following roll call vote, to wit: AYES: Council Members Barneich, Ray, Brown, and Harmon NOES: Mayor Hill ABSENT: None The foregoing Resolution was passed and adopted this 29th day of May, 2018. RESOLUTION NO. / 59 PAGE 2 JIM LL, MAYOR ATTEST: KE LY WETM RE, CITY CLERK APPROVED AS TO CONTENT: ikkva JAMES _'' i* N, CITY MANAGER APPROVED AS TO FORM: , ____ Z, ------ EATHER WHITHAM, CITY ATTORNEY— !) EXHIBIT A Memorandum of Agreement(MOA) Amending the Five Cities Fire Authority Joint Exercise of Powers Agreement This agreement is entered into by the Cities of Arroyo Grande and Grover Beach, and the Oceano Community Services District, which are hereinafter referred to as the Parties. This amendment to the Joint Exercise of Powers Agreement, dated June 7, 2010 ("Amendment"), includes the following terms and provisions relating to the operations of the Five Cities Fire Authority("FCFA"), which operations shall continue as provided in the Joint Exercise of Powers Agreement("JPA"or"JPA Agreement"). 1. Each Parties' contributions for funding the Fiscal Year 2018/19 FCFA budget shall be: a. City of Arroyo Grande $ 2,523,661 b. City of Grover Beach $ 1,798,108 c. Oceano Community Services District $ 987,362 2. For Fiscal Year 2018/19, staffing shortages shall be operationally managed by the Fire Chief with updates provided to the Board of Directors. Such staffing shortages may result in temporary closure or reduced staffing at fire stations. 3. During Fiscal Year 2018/19, the Parties shall act in good faith to meet and confer for the purpose of considering amendments to the JPA including, but not limited to, modifications to the funding formula contained in Exhibit B of the JPA Agreement ("Funding Formula"),the provisions regarding member withdrawal, and future staffing levels beyond Fiscal Year 2018/19, so that the JPA may be amended to meet the needs of each of the Parties. If the Parties cannot agree upon amendments and a restructured JPA by April 1, 2019, then any member agency may withdraw pursuant to the terms of this Amendment. Notwithstanding the potential withdrawal of a member agency, if the remaining Parties cannot agree upon amendments and a restructured JPA by April 1, 2019, the JPA shall be terminated as of December 31, 2019, and assets and liabilities shall be distributed by and among the Parties pursuant to Sections 4 and 5 below. 4. During Fiscal Year 2018/19, the Parties shall also act in good faith to meet and confer in order to do the following by April 1, 2019, in preparation for the potential withdrawal of a member agency and/or termination of the JPA: a. Establish a distribution of assets currently owned and/or in the possession of the JPA, including, but not limited to major pieces of apparatus and capital equipment, which will allow all three Parties to maintain sufficient apparatus and capital equipment to establish an independent fire service; and b. Establish the obligations of the Parties to pay future obligations that were incurred by the FCFA prior to July 1, 2019, including, but not limited to, those future obligations related to lease payments on Engine 2 and 3 and future pension/PERS obligations. c. Notwithstanding the forgoing, the Parties mutually agree and understand that as a result of the withdrawal of a member agency or the termination of the JPA, no Party shall be obligated to future payment lease obligations for any Engine that does not remain in the custody, control, and possession of that agency. 5. If the Parties are unable to agree upon amendments and a restructured JPA by April 1, 2019, then the Parties shall act in good faith to meet and confer to finalize the distribution of all assets currently owned and/or in the possession of the JPA not established for distribution in accordance with Section 4.a above, such as additional tools, machines, parts, supplies, communication devices, computers, office equipment supplies and furnishings, by December 31,2019. 6. Upon mutual agreement of the City Manager of Grover Beach, the City Manager of Arroyo Grande, and the General Manager of Oceano CSD that the Parties are making progress towards JPA amendments and working in good faith, the April 1 deadlines contained within this Amendment will be extended for a period not to exceed six (6) months and will result in a corresponding extension of time of the December 31, 2019 deadline so as to always allow an eight month wind down for distribution of assets and establishment of new services. This extension may be handled administratively with no requirement of board approval from any of the Parties. 7. Upon termination of the JPA or the withdrawal of an agency, any two agencies subject to the JPA Agreement may agree, without consent of the third agency, to continue operating under the FCFA name and branding and/or reestablish the FCFA under a new agreement and operate under the FCFA name and branding. 8. The Parties understand and acknowledge that consistent with the Joint Exercise of Powers Agreement and the conflict waivers contained therein, dated June 7, 2010 and the signed waiver agreement, dated May 18, 2018, between the FCFA Board, the City Council of the City of Grover Beach, the City Council of the City of Arroyo Grande and Board of Directors of the Oceano Community Services District, the Grover Beach City Attorney, David Hale is representing the Five Cities Fire Authority as General Counsel and the City of Grover Beach as City Attorney in regards to the performance of the tasks identified in this Amendment. To the extent said representation may result in a potential or actual conflict of interest pursuant to Section 4. E. (7) of the JPA Agreement, the Parties hereby waive the requirement that Mr. Hale withdraw from representing either Party and agree to sign the conflict waiver agreement, attached as Exhibit "A", manifesting the subject waiver to the JPA Agreement Section 4. E. (7) and that the signing by the parties herein of the subject conflict waiver agreement is a representation by the parties the subject conflict waiver is in compliance with the California Rules of Professional Conduct, section 3-310 and has adequately advised them of the potential conflicts contained within the subject representation. Moreover, the City of Arroyo Grande and Oceano Community Services District are represented by independent legal counsel which has reviewed the conflict waiver and advised them regarding said agreement. 9. To the extent there is inconsistency between this Amendment and the JPA, the terms of this Amendment shall control, including but not limited to JPA Sections 4.E.(7), 6.B, 8.B.(3), and Section 17. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by their proper officers hereunto duly authorized, and their official seals to be hereto affixed, as of the day and year first above written. CITY OF ARROYO GRANDE CITY OF GROVER BEACH By: By: ,Mayor ,Mayor Attest: Attest: , City Clerk , City Clerk OCEANO COMMUNITY SERVICES DISTRICT Attest: By: ,President ,Board Secretary E= MI IN I EXHIBIT ADAVID P. HALE a Ptofessiona1 Corporation ATTORNEY AT LAW May 11, 2018 Five Cities Fire Authority Board of Directors And Member Agencies Fire Chief 140 Traffic Way Arroyo Grande, California 93420 Attention: Honorable Chair and Members of the Board of Five Cities Fire Authority; City Council for City of Grover Beach, City Council:for City of Arroyo Grande and Members of the Board for Oceano Community Services District Re: Conflict Waiver Dear Boards and Respective Councils: In 2010, when the Five Cities Fire Authority, ("Authority")was established,the member agencies entered into a Joint Exercise of Powers Agreement.("Agreement"), dated June 7, 2010. This Agreement established a Government Code section 6500 Joint Powers Authority,for the establishment and implementation of fire suppression and emergency medical services for the three member agencies consisting of the City of Grover Beach,the City of Arroyo Grande and Oceano Community Facilities District("Member Agencies"). The Authority was structured for the purposes of maximizing efficiencies and to accomplish that objective, delegated numerous operational functions to different member agencies. The function of the Authority's General Counsel was delegated by Section 4, E. (7)and subsection 2, of Exhibit"A" of the Agreement to the Grover Beach City Attorney. The Member Agencies recognizedat that timethere was the potential for a conflict of interest between the role of the City Attorney for Grover Beach representing the City and the role of representing the Authority at the same time. As a consequence,the Member Agencies agreed to waive the conflict and acknowledged that waiver in Section 4, E. (7) of the Agreement. There are currently discussions between the Member Agencies with how the Authority should proceed which is reflected in the proposed Memorandum of Agreement ("MOA")of which this Conflict Waiver is attached as Exhibit"A". The MOA contemplates a number of phases of negotiations including butnot limited to potential restructuring of the Authority, redrafting the provisions of the Agreement, distribution of major assets and equipment,the potential withdrawal of a member of the Authority or a complete termination of the Authority. Therefore, it is the intent of the Authority and the Member Agencies to allow the City Attorney for Grover Breach to participate in the subject negotiations and to continue to represent both 1 401 Clovis Ave., Suite 208 Clovis, CA 93612 0:559.229.2200 C:559.974.3274 the City of Grover Breachand the Authority notwithstanding the conflicts that may arise due to this representation. The following are the pertinent Rules of Professional.Conduct related to this engagement: ..RULES OF PROFESSIONAL CONDUCT Rule 3-310 of the California Rules of Professional Conduct provides in pertinent part:. (C) A member(of the Bar] shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict;or (3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter. (ID) A member who represents two or more clients shall not enter into an aggregate settlement of the claims of or against the clients without the informed written consent of each client. Mr. Hale's REPRESENTATION In this matter, I will continue to represent the Authority consistent with the Agreement while continuing to maintain the position of City Attorney and represent the City of Grover Beach as a Member Agency of the Authority. This has been previously agreed to by the.Member Agencies as indicated above, and by execution of this Agreement will continue to be approvedand authorized by the Member Agencies consistent with this letter. This considers and the Member Agencies acknowledge this will include, but not be limited to, megiving advice to the Authority and the City of Grover Beach related to the negotiations concerning the restructuring of the Authority, redrafting of any provisions of the Agreement, the potentially defining and negotiating the distribution of major assets or equipment of the Authority, the potential withdrawal of a Member Agency or the termination of the Authority. The Member Agencies are advised and acknowledge that at any stage of the various negotiations or actions defined within the MOA,the following adverse consequences could arise. Moreover, in the event the Parties herein cannot come to an agreement on any phase(s) of negotiation related to the MOA,then Mr. Hale shall withdraw from representation of the Authority and City of Grover Beach and special counsel shall be engaged. 2 ADVERSE CONSEQUENCES I am obliged to inform you of any actual or reasonably foreseeable adverse effects of this representation that could.arise as part of any phase or portion of the MOA negotiations. It is possible that: • I may be tempted to favor the interests of one client over the other. • I may not be able to present the appropriate position,claims or defenses for a client in order to avoid taking adverse positions to the other client. • I may be restricted from forcefully advocating a client's position for fear of alienating the other client. • I may be forced to withdraw from representing either or.both clients because of disputes or further conflicts of interest which could increase either or both clients' attorney's fees and costs. • There may be an appearance of impropriety in my representation of both clients simultaneously. YOUR CONSENT It is understood that this consent will not waive any protection that you may have with regard to attorney-client communications with me in this matter. Those communications will remain confidential and will not be disclosed to any third party without your consent. I believe that you are familiar with the factual background in this matter, and I have given you a sufficiently-detailed description for obtaining informed written consent. However,if you believe that there is any other information that you or I need to have before such consent can begranted, please let me know immediately: In the event that circumstances change or I becomeaware of new information that requires a new consent from the parties, you will be notified of that fact immediately, and continued representation will be subject to the informed written consent of involved parties. The Member Agencies acknowledge they are represented by independent legal counsel and that by signing this Conflict Waiver represent they have sought legal advice related to the proposed conflict represented by this waiver and based upon that advice is fully informed and agrees to sign this Conflict Waiver to allow the City Attorney for Grover Beach to continue to represent the Authority and the City of Grover Beach during the negotiations related to the subject MOA. Your execution of this consent form will constitute an acknowledgment of full disclosure in compliance with the requirements of Section 3-310 of the California Rules of Professional Conduct previously quoted in this letter. 3 A copy of this letter is enclosed for your files. If you have any questions, please do not hesitate to call. Very truly yours, David P. Hale A Professional Corporation Ci., Attorn y fo over Beach David P. Hale Accepted: Five Cities Fire Authority Board of Directors Date: Chair, Board of Directors City of Grover Beach City Council Date: Mayor City of Arroyo,Grande City Council Date: Mayor Oceano Community Services District Board of Directors Date: Chair, Board of Directors 4 OFFICIAL CERTIFICATION I, KELLY WETMORE, City Clerk of the City of Arroyo Grande, County of San Luis Obispo, State of California, do hereby certify under penalty of perjury, that the attached Resolution No. 4859 was passed and adopted at a special meeting of the City Council of the City of Arroyo Grande on the 29th day of May, 2018. WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 31St day of May, 2018. 4.e Ubeffig4Ce KELLY T RE, CITY CLERK