HomeMy WebLinkAboutC-8137-1 - MOU for Investigative Assistance Servicesf JILL 2 2 2016
MEMORANDUM OF UNDERSTANDING
BETWEEN CITY OF NEWPORT BEACH AND CITY OF SANTA ANA
FOR INVESTIGATIVE ASSISTANCE SERVICES
N-2016-109
THIS MEMORANDUM OF UNDERSTANDING ("MOU") is made and entered into
as of this 20th day of July, 2016 ("Effective Date") by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ("City"), and the
CITY OF SANTA ANA, a California municipal corporation and charter city ("Santa Ana"),
whose address is 20 Civic Center Plaza, Santa Ana, California 92701 and is made with
reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to enter into this MOU to engage the Santa Ana Police Department
in assisting City's Police Department with ongoing investigative services.
C. City and Santa Ana desire to enter this MOU to set forth the responsibilities of
each party regarding such services.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this MOU shall commence on the Effective Date and shall terminate
on July 18, 2017, unless terminated earlier pursuant to Section 10 of this MOU.
2. MUTUAL UNDERSTANDING OF THE PARTIES
2.1 City shall engage Santa Ana's Police Department in providing City's Police
Department with ongoing investigative services ("Services" or "Work").
2.2 Santa Ana's Police Department shall assist and cooperate with City's
Police Department's requests for investigative services to the extent that Santa Ana has
staff available. The Chief of Police for the City of Santa Ana shall have the ultimate
authority to determine whether Santa Ana has the resources available to provide services
pursuant to this MOU.
2.3 City shall pay Santa Ana for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit A and incorporated herein by reference. Santa Ana's
compensation for all Work performed in accordance with this MOU, including all
reimbursable items and subconsultant fees, shall not exceed Twenty Five Thousand
Dollars and 001100 ($25,000.00), without prior written authorization from City. No billing
rate changes shall be made during the term of this MOU without the prior written approval
of City.
2.4 Santa Ana shall submit monthly invoices to City describing the Work
performed the preceding month. Santa Ana's invoices shall include the name of the
person who performed the Work, a brief description of the Services performed and/or the
specific task to which it relates, the date the Services were performed, the number of
hours spent on all Work billed on an hourly basis, and a description of any reimbursable
expenditures. City shall pay Santa Ana no later than thirty (30) calendar days after
approval of the monthly invoice by City staff.
2.5 City shall reimburse Santa Ana only for those costs or expenses specifically
identified in Exhibit A to this MOU or specifically approved in writing in advance by City.
3. NO AGENCY, JOINT VENTURE, OR PARTNERSHIP
City and Santa Ana agree that neither Santa Ana nor any officers, agent, or
employee of Santa Ana, by virtue of this MOU or otherwise, shall be considered to be
an employee, contractor, subcontractor, partner, joint venturer, representative, or agent
of City.
4. SANTA ANA AS EMPLOYER OF OFFICERS
4.1 City agrees that, at all times, and for all purposes relevant to the MOU,
Santa Ana shall remain the sole and exclusive employer of their own officers and in the
following regard:
4.1.1 Notwithstanding any payment by City made pursuant to this MOU,
Santa Ana shall remain solely and exclusively responsible for the direct
payment to their officers of any applicable wages, compensation, overtime
wages, expenses, fringe benefits, pension or retirement benefits, travel
expenses, mileage allowances, training expenses, transportation costs,
and/or other allowances or reimbursement of any kind, including but not
limited to, workers' disability compensation, unemployment compensation,
Social Security Act protection and benefits, any employment taxes and/or
other statutory or contractual right or benefit based, in any way, upon any
Officer's status as an employee of Santa Ana.
4.1.2 Notwithstanding any payment by City made pursuant to this MOU,
City agrees that it shall not grant, give, allow, pay, reimburse,
compensate, or otherwise provide any wage, fringe benefits, gifts,
equipment, personal property, supplies, entitlement, consideration
(monetary or otherwise), or any other thing of value, either directly or
indirectly, to the officers of Santa Ana. Any money paid directly to Santa
Ana by City to reimburse Santa Ana for costs pursuant to this MOU shall
not be deemed consideration paid by City to the Santa Ana officers.
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4.1.3 City and Santa Ana agree that this MOU does not, and is not
intended to create grant, modify, supplement, supersede, alter, or
otherwise affect or control, in any manner or form: (1) any right privilege,
benefit or any other term or condition of employment of any kind or nature
whatsoever, in, upon or for any officers and/or any officers' agents,
representatives, unions, or the successors or assigns of any of them; (2)
any applicable Santa Ana employment and/or union contract; (3) any level
or amount of officers' supervision, standard of performance, training or
education; (4) any Santa Ana rule, regulation, hours of work shift
assignment order, policy, procedure, directive, guideline, etc., which shall
solely and exclusively, govern and control the employment relationship
between Santa Ana and the officers.
4.1.4 City and Santa Ana agree that this MOU does not and is not
intended to, limit, modify, control, or otherwise affect in any manner Santa
Ana's sole and exclusive right, obligation, and responsibility to determine,
establish, modify, or implement any and all operational policies,
procedures, orders, rules, regulations, guidelines, and/or any other policy
or directive which in any way governs or controls the activity of any Santa
Ana officers.
4.1.5 City agrees and promises that the Santa Ana officers shall not be
asked or required to perform any services directly for City or otherwise be
available to perform any other work or assignments for City or be
expected to perform any acts other than governmental law enforcement
functions, crime prevention or police protection.
4.1.6 City agrees that neither City nor any of its agents shall otherwise
provide, furnish or assign any Santa Ana officers with any job instructions,
job descriptions, job specifications, or job duties, or in any manner attempt
to control, supervise, train or direct any Officers in the performance of any
Santa Ana duty to provide police protection services under the terms of
this MOU.
5. NO SPECIAL BENEFIT CREATED
5.1 City agrees that this MOU does not, and is not intended to, create, by
implication or otherwise, any specific, direct, or indirect obligation, duty, promise, benefit
and/or special right to police protection services or governmental law enforcement
protection in favor of City, any City agent(s) and/or any other person. Further, City
agrees that at all times, and for any and all purposes under this MOU, Santa Ana and
the officers present under the terms of this MOU, shall be present strictly and solely to
perform governmental law enforcement functions authorized by law to and for the
benefit of the general public.
5.2 City agrees that this MOU does not, and is not intended to include any
Santa Ana warranty, promise, or guaranty, either express or implied, of any kind or
nature whatsoever, in favor of City, any agent, or any other person that any
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supplemental police services provided by Santa Ana under the terms and conditions of
this MOU will result in any specific reduction in or prevention of any criminal activity, or
any other performance based outcome.
6. INSURANCE
City is self-insured for general liability, auto liability and worker's compensation
insurance and shall provide proof of self-insurance in these areas up to $1,000,000 to
Santa Ana for purposes of this Agreement. City agrees that its insurance will be primarily
and Santa Ana's insurance non-contributory in the event of an incident and/or injury
involving one or more of City's officers.
7. HOLD HARMLESS
To the fullest extent permitted by law, City shall indemnify, defend and hold
harmless Santa Ana, its City Council, boards and commissions, officers, agents,
volunteers, employees, and any person or entity owning or otherwise in legal control of
property not owned by Santa Ana upon which City uses as contemplated herein
(collectively, the "Indemnified Parties") from and against any and all claims (including,
without limitation, claims for bodily injury, death or damage to property), demands,
obligations, damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including, without limitation, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever (individually, a
Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or
indirectly) to any breach of the terms and conditions of this MOU, City's presence or
activities conducted on Santa Ana facilities (including, but not limited to, the negligent
and/or willful acts, errors and/or omissions of City , its principals, officers, agents,
players, employees, vendors volunteers, suppliers, consultants, contractors, anyone
employed directly or indirectly by or associated in any way with any of them or for
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require City
to indemnify the Indemnified Parties from any Claim arising from the sole negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be
construed as authorizing any award of attorney's fees in any action on or to enforce the
terms of this MOU. This indemnity shall apply to all claims and liability regardless of
whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by City .
8. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
MOU shall be given in writing, and conclusively shall be deemed served when delivered
personally, or on the third business day after the deposit thereof in the United States mail,
postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands,
requests or approvals from Santa Ana to City shall be addressed to City at:
City of Santa Ana Page 4
Attn: Chief of Police
Newport Beach Police Department
870 Santa Barbara Drive
Newport Beach, CA 92660
Phone: 949-644-3681
E-mail: JLewis6a�nbpd.org
All notices, demands, requests or approvals from City to Santa Ana shall be addressed to
Santa Ana at:
Attention: Chief of Police
Santa Ana Police Department
60 Civic Center Plaza
Santa Ana, CA 92702
Phone: (714) 245-8001
Email: SAPDC@Santa-Ana.orq
9. CLAIMS
The parties agree that they shall promptly deliver to each other written notice and
copies of any claim(s), complaint(s), charges, or any other accusation or allegation of
negligence or other wrongdoing, whether civil or criminal in nature, of which either party
becomes aware that involves in any way the other party or any of its officers. The
parties agree to reasonably cooperate with each other in any investigation conducted by
either party into any act(s) or work performance of any officers, including the officers in
connection with the services provided under this MCU.
10. TERMINATION
Either City or Santa Ana may, before the scheduled termination of this MOU,
cancel this MOU, without cause, without incurring any penalty or liability to the other
party because of the cancellation. Cancellation may be effectuated by delivering a
written notice of cancellation of this MOU to the other party at least thirty (30) days
before the effective date of cancellation (which cancellation date shall be clearly stated
in in this written notice).
11. STANDARD PROVISIONS
11.1 Recitals. City and Santa Ana acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this MCU.
11.2 Compliance with all Laws. The parties shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted.
11.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
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breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
11.4 Integrated Contract. This MOU represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
11.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this MOU and any attachments attached hereto, the terms of
this MOU shall govern.
11.6 Interpretation. The terms of this MOU shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either
party by reason of the authorship of the MOU or any other rule of construction which
might otherwise apply.
11.7 Amendments. This MOU may be modified or amended only by a written
document executed by both Santa Ana and City and approved as to form by the City
Attorney.
11.8 Severability. If any term or portion of this MOU is held to be invalid, illegal,
or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this MOU shall continue in full force and effect.
11.9 Controlling Law and Venue. The laws of the State of California shall
govern this MOU and all matters relating to it and any action brought relating to this
MOU shall be adjudicated in a court of competent jurisdiction in the County of Orange,
State of California.
11.10 Equal Opportunity Employment. The parties represent that they are
equal opportunity employers and they shall not discriminate against any subcontractor,
employee or applicant for employment because of race, religious creed, color, national
origin, ancestry, physical handicap, medical condition, marital status, sex, sexual
orientation, age or any other impermissible basis under law.
11.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this MOU, the prevailing party shall not be entitled to attorneys' fees.
11.12 Counterparts. This MOU may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
City of Santa Ana Page 6
IN WITNESS WHEREOF, the parties have caused this Memorandum of
Understanding to be executed on the dates written below.
CITY OF SANTA ANA,
A California municipal corporation
Date:
� 1
David Ca zos
City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: �2; Ilc�
CITY OF NEWPORT BEACH,
A California municipal corporation
APPROVED AS TO FORM:
CITY ATT RNI)Y'S OFFICE
Date:
ti Sonia R. Carvalho Aaron C. Harp �µ vFlu I Itr
City Attorney City Attorney
ATTEST:
Date:
Maria 0. Huizar
Clerk of the Council
Attachments:
ATTEST: - /]� rl
Date: . i f
[END OF SIGNATURES]
Exhibit A — Schedule of Billing Rates
ATTEST: /�1�
Date: 7 l
( I/- Z�
Carlos Rojas
Chief of Police
City of Santa Ana Page 7
EXHIBIT A
SCHEDULE OF BILLING RATES
Santa Ana Police Department Hourly Rates:
Detective: $85.58 per hour
Detective Sergeant: $102.49 per hour
City of Santa Ana Page A-1