Transfer of Ownership of New Dimension Assets

HERTFORDSHIRE COUNTY COUNCIL

COMMUNITY SAFETY AND CULTURE PANEL

WEDNESDAY 13 JANUARY 2010 AT 2.00 P.M.

TRANSFER OF OWNERSHIP OF NEW DIMENSION ASSETS

Report of the Chief Fire Officer

Author: Assistant Chief Fire Officer John Mills Tel: 01992 507506

Executive Member:Keith Emsall, Community Safety and Culture

1. Purpose of report

1.1To inform Panel Members of the proposal to seek Cabinet approval to sign the agreement that transfers the ownership of the New Dimension assets held in Hertfordshire to the Hertfordshire Fire and Rescue Authority from the Department for Communities and Local Government (CLG).

1. Summary

2.1The New Dimension project has been a collaboration between Communities and Local Government (CLG), the Fire and Rescue Service (FRS) and the Chief Fire Officers Association (CFOA), and has enhanced the ability of the FRS to respond to major disruptive events involving Chemical, Biological, Radiological and Nuclear materials, collapsed or unstable structures, the displacement of large volumes of water and major fires.

2.2From a Hertfordshire perspective, New Dimension has been a successful project. It has accomplished what it set out to do – to provide the Fire and Rescue Service with new capabilities to respond to terrorism and natural disasters. The new equipment which CLG has bought for the Hertfordshire Fire and Rescue Service is high quality and has been well-received. In Hertfordshire this is the High Volume Pumping Unit located at Welwyn Garden City Fire Station and the Incident Response Unit (mass decontamination) located at St Albans Fire Station. At a national level the roll-out of these new specialist resilience assets and training of firefighters to use them is now nearly complete. The roll out in terms of a Hertfordshire perspective has been completed and no additional New Dimension assets are to be hosted by the Hertfordshire Fire and Rescue Service.

3.Recommendation

3.1That the Panel recommends to Cabinet that it authorises the Chief Fire Officer to sign, on behalf of the County Council as Fire and Rescue Authority, an agreement which enables the Incident Response Unit and the High Volume Pumping Unit to be transferred from the ownership of the Department of Communities and Local Government to the County Council, the terms of such an agreement to be in the form of the document attached as Appendix 1 subject to any amendments agreed by the Chief Fire Officer in consultation with the Executive Member for Community Safety and Culture.

4.Background

4.1The origins of the New Dimension project were a result of the tragic events of the 2001 attack on the TwinTowers building in New York. Following this, both the Government and the Fire and Rescue Service had to adapt to new levels of threat to the population and, at the same time, to the unpredictability of disasters arising from extremes of weather.

4.2The aim of the New Dimension project has been to ensure that FRSs throughout the country are resourced and equipped to provide a fully co-ordinated, coherent and unified national response to the widest possible range of potential national level emergency incidents.

4.3From a Hertfordshire perspective the New Dimension project has been a successful project. It has accomplished what it set out to do – to provide the Fire and Rescue Service with new capabilities to respond to terrorism and natural disasters. The new equipment which CLG has bought for the Hertfordshire Fire and Rescue Service is high quality and has been well-received. In Hertfordshire this is the High Volume Pumping Unit located at Welwyn Garden City Fire Station and the Incident Response Unit located at St Albans Fire Station. At a national level the roll-out of these new specialist resilience assets and training of firefighters to use them is now nearly complete. The roll out in terms of a Hertfordshire perspective has been completed and no additional New Dimension assets are to be hosted by the Hertfordshire Fire and Rescue Service.

4.4The capabilities have already been used effectively in several major events including the December 2005 fire at Buncefield and the widespread flooding in 2007.

4.5New Dimension equipment is also starting to be used routinely across the country to improve or build upon the response to events at the local level – nearly 600 national mobilisations in the last quarter to June 2009, a rise of 25 per cent on the year before.

4.6This sort of embedding of these assets in day-to-day operations has not been done in Hertfordshire. This is because the costs connected to any wear and tear, and replacement of vehicles and equipment which is not as a result of use at regional or national level incidents, falls upon the Fire and Rescue Authority.

4.7The servicing arrangements for the equipment and associated vehicles has been arranged at a national level and the full costs connected to those contracts are also covered nationally.

4.8As the delivery of the New Dimensions project comes to an end, the CLG has been increasingly focussed on the long-term management plans for New Dimension type incidents and equipment, to ensure the new capabilities are integrated into Fire and Rescue Services core business and that standards are maintained to guarantee national interoperability over the life of the equipment.

4.9The Hertfordshire Fire and Rescue Service carries out regular exercises and training to ensure the equipment is ready for deployment and that the firefighters skills in the use of the equipment are maintained.

4.10Long term arrangements have focussed on four areas:

• Physical maintenance of the vehicles and kit.
• Assurance that the capabilities continue to be fit for purpose.
• Funding for the above.
• Transfer of the assets from CLG to Fire and Rescue Authorities (FRAs).

4.11The first three of these bullet points are in place. A long term national maintenance contract for the assets has been in place since October 2008, managed by Firebuy on behalf of CLG and the Fire Authority customers.

4.12The agreement attached at Appendix 1 has been has been considered by the Fire Lawyers Network and by the Hertfordshire County Council Legal Department.

4.13A copy of the correspondence between CLG and Chief Fire Officers Association president, John Bonney, is also attached as Appendix 2. This provides answers to the set of questions that have been raised at a national level regarding the transfer of assets.

5.0Financial Implications

5.1Fixed costs under the national contract – approximately £100m over

16 years to cover routine maintenance and servicing – are being paid for by CLG, and once assets are transferred to the fire authorities, the CLG will provide this funding via the FRAs.

5.2It is a condition of transfer of ownership that FRAs sign up to the maintenance contract. Maintenance costs due to unfair wear and tear arising from the use of New Dimension assets for FRA purposes, currently being borne by CLG, will be payable by the FRAs in future regardless of ownership. FRAs have been provided with access to the documentation surrounding the maintenance contract, which was drafted with FRS, Assurance Body and CFOA input.

5.3This documentation and maintenance contract is also being considered nationally by CFOA and the Fire Lawyers Network to ensure that all the relevant matters have been dealt with to the satisfaction of the Fire Authorities.

5.4Future assurance on a national basis will be provided by the Chief Fire Officers Association lead Assurance Body (the National Resilience Board). It is led by the Chair, CFO Terry Standing from Gloucestershire FRS, and Vice-Chair ACFO Jon Hall, Hereford and Worcester FRS. CFO Roy Wilsher also sits on the Board as the National Command and Control lead. It provides operational assurance that the New Dimension capabilities remain fit for purpose and can be deployed consistently across national and regional boundaries, including managing and monitoring operational practices, procedures and technical advice on the capabilities, and the associated operational IT, communications and training, asset refresh and any siting or re-siting of assets. The body reports to the LGA Fire Services Management Board through Cllr Jeremy Hilton, Gloucestershire County Council, as Lead Member.

5.5Funding for this CSR period of around £80m was announced by the Minister in July 2008 to enable FRA’s to continue to deliver New Dimension capabilities. The Assurance Body funding of over £5m per annum covers running of the body itself and the national team, annual refresh of equipment, and centralised training. CLG remains fully committed to providing new burdens funding for the net additional costs to FRAs that arise from the New Dimension arrangements.

5.6What remains is the transfer of ownership of the New Dimension assets from CLG to the FRAs which host them. As already mentioned in the context of Hertfordshire this means the transfer of ownership of the High Volume Pumping Unit and the Incident Response Unit.

5.7The Hertfordshire Fire and Rescue Service has received and responded to two previous consultation documents regarding the transfer of New Dimension assets and the questions and responses are attached to this paper (appendix 2).

5.8Due to the fact that the Hertfordshire Fire and Rescue Service has taken the decision not to use the New Dimension assets on a day-to-day basis there are no additional financial implications associated with the transfer of these assets.

5.9All training, asset refresh, maintenance and servicing arrangements are part of national level contractual arrangements and central funding is in place to cover those costs in full.

APPENDIX 1

AGREEMENT

BETWEEN:

(1) THE SECRETARY OF STATE FOR COMMUNITIES

AND LOCAL GOVERNMENT

-and-

(2) [FRA]

An agreement for the transfer of

the New Dimension assets and functions

Contract number:

MEPB

DCLG Legal Directorate

Eland House

Bressenden Place

London

SW1E

THIS AGREEMENT is made on

BETWEEN

(1)The Secretary of State for Communities and Local Government acting through the Department for Communities and Local Government of Eland House, Bressenden Place, London SW1E 5DU (“the Department”); and

(2) [FRA] of (“the FRA”).

BACKGROUND

(1) The Department has for some time maintained and kept available for use assets for the purposes of the New Dimension Programme in England (“the New Dimension Assets”).

(2) In accordance with Government policy, the Department wishes to transfer the ownership of the New Dimension Assets to the English Fire and Rescue Authorities. The specific equipment (being part of the New Dimension Assets) to be transferred to the FRA is listed in the Schedule 1 (“the Equipment”).

(3) The FRA has agreed with the Department with effect from 00.01 hours on […] (“ the Time of Transfer”) to accept the transfer of the Equipment in consideration of the assumption of the obligations ('the Obligations') set out in this Agreement in each case on the terms and conditions set out.

(4)The transfer of the Equipment from the Department to the FRA shall be treated as a “transfer of function”.

NOW IT IS AGREED as follows:

1. Interpretation

1.1Unless the context requires otherwise, the singular shall include the plural and vice versa, and words expressed in any gender shall include any other gender.

1.2The headings are inserted for convenience only and shall not affect the interpretation of this Agreement.

1.3Save where express provision is made to the contrary, any reference to a statute, statutory provision or subordinate legislation shall be construed as a reference to that legislation, as amended and in force from time to time, including any re-enactment, consolidation or replacement (with or without modification). In the case of a statute or statutory provision, the reference shall also be construed as a reference to all subordinate legislation made under such statute or statutory provision.

1.4Any reference to a Schedule is a reference to a Schedule to this Agreement.

2 Transfer

2.1The Department agrees to transfer ownership and the FRA agrees to accept that transfer with effect from the Time of Transfer the Equipment including without limitation all rights and claims of the Department against third parties with respect to the Equipment (including without limitation all rights in connection with insurance policies held by the Department subject to the consent of the relevant insurance companies) so far as the Department can assign the same BUT (for the avoidance of doubt):

2.1.1excluding all intellectual property rights owned or used by the Department in relation to the Equipment; and

2.1.2excluding the equipment of the Department set out in Schedule 2 ('the Retained Equipment”) including all property assets rights and liabilities relating to the Retained Equipment whether or not such Retained Equipment is incorporated in to or attached to the Equipment).

2.2The Department warrants that:

2.2.1it has legal and equitable title to the Equipment prior to the Time of Transfer;

2.2.2 no person has commenced or to its knowledge, threatened to commence, any legal proceedings in relation to the Equipment which would be materially inconsistent with the transfer of ownership of the Equipment under clause 2.1; and

2.2.3 there are no encumbrances in respect of the Equipment or agreement by the Department to create such an encumbrance.

3 Consideration

3.1The consideration for the [Assets] shall be the assumption by the FRA of the obligations set out in this Agreement.

3.2The accounts of the FRA shall reflect that the value of an item of the Equipment listed in the first and second columns of Schedule 1 is the amount specified in relation to that item in the fourth column of Schedule 1.

4 Completion

4.1 Completion of the transfer shall take place at the Time of Transfer by which time the Department shall have delivered the Equipment to the FRA.

4.2Risk and property in and title to the Equipment shall pass to the FRA at the Time of Transfer.

4.3The Department shall at or as soon as practicable after the Time of Transfer deliver to the FRA all transfers assignments and novations (if necessary) in connection with the Equipment together with the relevant documents of title (as detailed in schedule 4) necessary to give effect to this Agreement.

5 Liabilities

The FRA agrees to accept the transfer of the Equipment on the terms of this Agreement but the Department shall retain and discharge all debts owing by the Department in respect of the Equipment and all other liabilities of the Equipment subsisting as at the Time of Transfer.

6Further Assurance

The Department agrees and declares that it will after and notwithstanding completion of the transfer under this agreement execute and deliver any other documents and take any other steps that the Department considers necessary from time to time to vest in the FRA (or as it may direct) the Equipment.

7Obligations

7.1Firebuy Limited (Company number 5568715) ("Firebuy") (or any successor body thereof) has appointed a Prime Contractor under a prime contract for maintenance and management services in respect of the Equipment. The FRA shall contract for the maintenance and management services in respect of the Equipment from the Prime Contractor by entering into the relevant “Terms of Access” pursuant to the Access Agreement between the FRA and Firebuy. The FRA shall comply in all material respects with its obligations under the Terms of Access. The FRA agrees with the Department that, in the event of a breach of this term, specific performance would be appropriate remedy to be granted by the court.

7.2Subject to the Department complying with its obligations contained in this Agreement the FRA shall during the period of 16 years commencing at the Time of Transfer (“the Term”), comply with the obligations on its part set out in this Agreement and in Schedule 3.

7.3The FRA shall be liable for all costs relating to the maintenance and management of Equipment under the Terms of Access.

7.4The FRA agrees to maintain national interoperability of the Equipment by ensuring that the Equipment remains capable of being used or operated in the same way as other New Dimension Assets owned by other FRAs.

8Costs

Each party shall bear its own costs of and incidental to the preparation and completion of this Agreement and the formation and registration of the transfer of the Equipment to the FRA.

9Governing law

This Agreement shall be construed in accordance with and governed by the laws of England.

Schedule 1: The Equipment

[a breakdown of all New Dimension equipment by each FRA has been set out in Fire Service Circular 37/2007, which has subsequently been agreed or amended accordingly by FRSs. This data will be incorporated in to the table below for each FRA in due course]

Detailed descriptions of each asset can be found in the agreed annexes entitled [xxxxxxx] bearing reference number [xxxxxxxxxxx]

Schedule 2: The Retained Equipment

[Currently the Firelink related equipment, detailed description of such to be added]

Schedule 3

Obligations of the FRA

1. The FRA shall not without the prior written approval of the Department (the Department agrees that any approval by the Department is not to be unreasonably withheld and any request is to be responded to by the Department as soon as reasonably practicable):

1.1change the specifications (amounts, technology etc.), stowage arrangements, their training or operating procedures, or relocate the Equipment;

1.2carry-out repairs and/or maintenance to the Equipment or engage or contract with any other person to undertake the same save in accordance with Clause 7.1,or save where Firebuy and the Prime Contractor appointed by Firebuy in accordance with Clause 7.1 have agreed that the FRA can undertake such repairs and/or maintenance;