IGA Assistance Program and Law Enforcement Joint Dispatch IGA Bill Sims, AMRRP Legal Advisor Arizona City Attorneys Summer Conference 2016

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Lessons Learned from Yarnell Need correct indemnity Had it been written differently, Prescott would have had to indemnify the State for the State’s negligence Need clear command & control Need to confirm insurance is available Risk Pool undertook review of member IGAs - - hundreds of IGAs reviewed State Forestry IGA ADOT IGAs 3

Lessons Learned Organizational Structure Preserving Immunities Command and Control Indemnity Insurance Joint Defense Agreement 4

Organizational Structure Create Independent Nonprofit under A.R.S. § Be a vendor Jointly act without creating nonprofit Multi-parties Two parties 5

Intergovernmental agreements and contracts A. If authorized by their legislative or other governing bodies, two or more public agencies or public procurement units by direct contract or agreement may contract for services or jointly exercise any powers common to the contracting parties and may enter into agreements with one another for a joint or cooperative action or may form a separate legal entity, including a nonprofit corporation, to contract for or perform some or all of the services specified in the contract or agreement or exercise those powers jointly held by the contracting parties. 6

Independent Nonprofit Insurance If in Risk Pool would have to join as member If not in Risk Pool, must procure insurance for the separate entity Organizational Costs Separate counsel Audits Articles and Bylaws Annual Reports 7

Organizational Structure Create Independent Nonprofit under A.R.S. § Be a vendor Jointly act without creating nonprofit Multi-parties Two parties 8

Simply Sell Service – as a Vendor City of Phoenix Regional Dispatch Services No indemnity Return equipment Repair equipment if damaged Prescott Dispatch Services Indemnity based on fee paid and not based on liability 9

10 INTERGOVERNMENTAL AGREEMENT FOR THE PHOENIX FIRE DEPARTMENT REGIONAL SERVICE SYSTEM THIS AGREEMENT is made and entered inti this 1 st day of July 2005, by and between the CITY OF PHOENIX, hereinafter referred to as “Phoenix” and the participating agencies of the PHOENIX FIRE DEPARTMENT REGIONAL SERVICE SYSTEM (“System”), hereinafter referred to as “Members” and listed in Appendix “A”, of this Intergovernmental Agreement, Titled PHOENIX FIRED DEPARTMENT REGIONAL SERVICE SYSTEM MEMBER AGENCIES”. WHEREAS, agreements for mutual assistance and intergovernmental cooperation in public safety areas, including operations and management of fire and police or the public safety related agencies have existed between municipalities and governmental jurisdictions; and WHEREAS, it is the desire of the municipalities, governmental jurisdictions, agencies and Fire Districts participating in this intergovernmental agreement, to work together for mutual benefit of our communities, the public and our personnel; and WHEREAS, Members desire to participate in the Phoenix Fire Department Regional Service System in order to more effectively provide emergency fire, medical and other services; and WHEREAS, Phoenix desires the participation of Members in the System to more effectively provide emergency fire, medical and other services; NOW THEREFORE, in consideration of the mutual promises and covenants herein contained, it is agreed by the parties as follows:

Simply Sell Service City of Phoenix Regional Dispatch Services No indemnity Return equipment Repair equipment if damaged Prescott Dispatch Services Indemnity based on fee paid and not based on liability 11

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Indemnification In the event any litigation, claims or other costs being incurred by the City as a result of its operation of the Dispatch Center, then and in that event each Participating Agency shall share in the cost thereof pursuant to the formula as provided for in Article 5 above. 13

Joint Action Without Creating Nonprofit – Two Parties Snowflake-Taylor Allocate cost Identify real property and personal property Governance – Advisory Committee Be careful to avoid liability caused by decisions of the committee Could trigger E&O insurance requirements 14

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Joint Action Without Creating Nonprofit – Two Parties Snowflake-Taylor Allocate cost Identify real property and personal property Governance – Advisory Committee Be careful to avoid liability caused by decisions of the committee Could trigger E&O insurance requirements 16

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Joint Action Without Creating Nonprofit – Two Parties Cottonwood – Sedona Fire District Limits liability to insurance – not necessarily a good idea Florence – Superior Joint Dispatch Much like a vendor selling services to one other party But, adds Joint Defense Agreement 19

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Joint Action Without Creating Nonprofit – Two Parties Cottonwood – Sedona Fire District Limits liability to insurance – not necessarily a good idea Florence – Superior Joint Dispatch Much like a vendor selling services to another party Includes mediation But, adds Joint Defense Agreement 22

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Joint Action Without Creating Nonprofit – Multi-parties Cochise County and Fire Districts and Municipalities Command and control Informal joint defense agreement Preserve workers’ compensation immunities 24

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Joint Action Without Creating Nonprofit – Multi-parties White Mountain Joint Dispatch Creates a Board of Directors What happens if a 4-3 vote of the Board triggers liability causing event? Need E&O insurance Don’t have overlapping and unnecessary insurance but require one of the participating agencies to take the lead: the County. 28

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Preserve Immunities Workers’ Comp Notice Contract claim Qualified and Absolute Immunity - - only if a public entity A.R.S. § and A.R.S. § Address Gross Negligence Standard A.R.S. § – Donor of Property A.R.S. § – EMTs providing emergency medical services Forestry IGA 34

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Insurance If you create a separate governing body, even without creation of nonprofit corporation E&O insurance If handle money, need crime insurance If housed in property not owned by one of the members, need property insurance If have independent employees, need separate workers’ compensation insurance 37

Joint Defense Agreement Ethical conflict rules prevail County Risk Pool and Cities & Towns Pool working on model Works until it fails, but worthwhile 38

Indemnity State Forestry ADOT 39

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45 Questions? Bill Sims 2020 North Central Avenue, Suite 670 Phoenix, AZ