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HomeMy WebLinkAboutC-4540 - Agreement for the Fourth of July Holiday 2010 (Law Enforcement)1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AGREEMENT BETWEEN THE COUNTY OF ORANGE AND THE CITY OF NEWPORT BEACH THIS AGREEMENT is entered into this Fifteenth day of April, 2010, which date is enumerated for purposes of reference only, by and between the COUNTY OF ORANGE a political subdivision of the STATE OF CALIFORNIA, hereinafter referred to as "COUNTY" and CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "CITY ". WITNESSETH: WHEREAS, CITY wishes to contract with COUNTY Sheriff - Coroner Department, hereinafter referred to as "SHERIFF', for supplemental law enforcement services during certain events; and WHEREAS, COUNTY is agreeable to the rendering of such services, as authorized in Government Code Sections 51301 and 55632, on the terms and conditions hereinafter set forth: NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS: Page 1 of 6 20 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O 11 11 11 11 11 11 11 TABLE OF CONTENTS Page 2 of 6 PAGE 3 3 3 3 4 4 4 6 SECTION A. Term B. Optional Termination C. Services by COUNTY D. Payment E. Alteration of Terms F. Status of COUNTY G. Indemnification Signature Page Page 2 of 6 PAGE 3 3 3 3 4 4 4 6 1 2 3 4 5 6 7 s s 10 11 12 13 14 15 16 17 16 1s 20 21 22 23 24 25 26 27 26 A. TERM: I B. I C. The term of this Agreement shall be for two days, commencing July 4, 2010 and terminating July 5, 2010, unless earlier terminated by either party in the manner set forth herein. OPTIONAL TERMINATION: COUNTY or CITY may terminate this Agreement, without cause, upon twenty (20) days written notice to the other party. SERVICES BY COUNTY: CITY occasionally has a need for supplemental law enforcement support during special events. At the discretion of SHERIFF, COUNTY may provide such support services as requested by CITY. These services will be utilized within the COUNTY OF ORANGE. CITY shall notify COUNTY at least thirty (30) days in advance of the need for these services. I D. PAYMENT: 1. Pursuant to Government Code Section 51350, CITY agrees to pay to COUNTY the costs of performing the services mutually agreed upon in this Agreement. The cost of services includes: salaries, wages, benefits, mileage, services, supplies, and divisional, departmental and COUNTY General overhead. 2. The rate charged to CITY by COUNTY shall be computed by SHERIFF in accordance with COUNTY Auditor - Controller's law enforcement cost study in effect at the time the services are provided. 3. COUNTY shall invoice CITY upon completion of the specific event. 4. CITY shall pay COUNTY in accordance with COUNTY Board of Supervisors' approved County Billing Policy, which is attached hereto as Attachment A, and incorporated herein by this reference. 5. COUNTY shall charge CITY late payment penalties in accordance with County Billing Policy. Page 3 of 6 1 E. 2 3 4 5 6 7I A 10 11 12 13 I F. 14 15 16 17 G. 18 19 20 21 22 23 24 25 26 27 28 ALTERATION OF TERMS: This Agreement fully expresses all understanding of CITY and COUNTY with respect to the subject matter of this Agreement, and shall constitute the total Agreement between the parties for these purposes. No addition to, or alteration of, the terms of this Agreement shall be valid unless made in writing, formally approved and executed by duly authorized agents of both parties. STATUS OF COUNTY: COUNTY is, and shall at all times be deemed to be, an independent contractor. Nothing herein contained shall be construed as creating the relationship of employer and employee, or principal and agent, between CITY and COUNTY or any of COUNTY'S agents or employees. COUNTY and its SHERIFF shall retain all authority for rendition of services, standards of performance, control of personnel, and other matters incident to the performance of services by COUNTY pursuant to this Agreement. COUNTY, its agents and employees, shall not be entitled to any rights or privileges of CITY employees and shall not be considered in any manner to be CITY employees. INDEMNIFICATION: 1. COUNTY, its officers, agents and employees shall not be deemed to have assumed any liability for the negligence or any other act or omission of CITY or any of its officers or employees, or for any dangerous or defective condition of any public street or work or property of CITY, or for any illegality or unconstitutionality of CITY'S municipal ordinances. CITY shall indemnify and hold COUNTY, its officers, agents, employees, and independent contractors free and harmless from any claim or liability whatsoever, based or asserted upon the condition of any public street or work or property of CITY or upon the illegality or unconstitutionality of any municipal ordinances of CITY that SHERIFF had enforced, or upon any act or omission of CITY, its officers, agents, employees, subcontractors or independent contractors Page 4 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G. INDEMNIFICATION: (Continued) related to this Agreement, for property damage, bodily injury or death or any other element of damage of any kind or nature, and CITY shall defend at its expense, including attorney fees, COUNTY, its officers, agents, employees and independent contractors in any legal action or claim of any kind based upon such condition of public street or work or property, or alleged illegality or unconstitutionality of a municipal ordinance, or alleged acts or omissions. 2. COUNTY shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any claim or liability whatsoever, based or asserted upon any act or omission of COUNTY, its officers, agents, employees, subcontractors or independent contractors related to this Agreement, for property damage, bodily injury or death or any other element of damage of any kind or nature, and COUNTY shall defend at its expense, including attorney fees, CITY, its officers, agents, employees and independent contractors in any legal action or claim of any kind based upon such alleged acts or omissions. 11 // Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN WITNESS WHEREOF, the parties have executed the AGREEMENT in the County of Orange, State of California. BY: DATED: CITY APPROVED AS TO FORM: ( - J BY 5 f. City AttorneyOlt , COUNTY OF ORANGE BY: She 76 oroner APPROVED AS TO FORM: Office of the County Counsel Orange County, California 6/19/08 - (Public) Deputy DATED: � /,/-)Q/o DATED: / 10? b Page 6 of 6 ATTACHMENT A COUNTY BILLING POLICY APPROVED BY BOARD MINUTE ORDER DATED OCTOBER 27, 1992 POLICY All County agencies /departments /districts (County) governed by the Board of Supervisors shall bill contracting entities for materials and /or services provided under contract in accordance with the following standardized billing and collection policy. Billing frequency is dependent on whether the contract is a fixed price or actual cost contract. Payment due date is designed to be both responsive to the County's cash flow needs and reasonable enough as to not require special processing by the contracting entity. If payments are not received by the required due dates, a late payment fee shall be computed and billed to the contracting entity in accordance with the requirements of this procedure. Nothing herein shall affect the liability, including pre - judgment interest, of the contracting party for services or materials in as much as this is a policy to enact standard billing practices. II. DEFINITIONS A. Contract for the purposes of this policy - A contract is a formal written agreement, a purchase order from the contracting entity, or any other acceptable mutual understanding between the contracting parties. B. Received by the County - The phrase "received by the County ", as used in Section VI of this policy, refers to the date a payment is received by the County. It is defined as the date the payment is in the County's possession. It is not the date the payment is posted or deposited by the County. III. FIXED PRICE CONTRACTS A. Fixed Price (One- Time /Non- Recurrinq Contracts) - Invoices that represent a billing for a one -time, non - recurring provision of materials and /or services shall be issued no later than five (5) working days after delivery by the County of the materials and /or services. Examples of such one -time, non - recurring provision of materials and /or services might be a city contracting with the Sheriff for security service at a parade or sporting event; or, a city purchasing a computer listing containing certain city- requested data. Payment due date shall be invoice date plus 30 days. B. Fixed Price (Ongoing /Recurring Contracts) - Invoices that represent a billing for an ongoing, recurring provision of materials and /or services shall be issued according to the following frequency: 1. Annual Billings that total $10,000 or less per 12 -month period shall be billed via one (1) annual invoice. Annual invoices will be issued for each 12 -month period of the contract, or portions thereof. Invoices shall be issued no later than five working days after the beginning of each 12 -month period. Payment due date shall be invoice date plus 30 days. Page 1 of 4 2. Quarterly Billings that are greater than $10,000 but not more than $200,000 per 12- month period, shall be billed in quarterly installments. Quarterly invoices will be issued representing the contract amount for each 12 -month period of the contract, or portions thereof, prorated into four (4) installments. Invoices shall be issued no later than 30 days after the beginning of each quarter. Payment due date shall be 60 days after the beginning of each calendar quarter. Monthly Billings that are greater than $200,000 per 12 -month period shall be billed in monthly installments. Monthly invoices will be issued representing the contract amount for each 12 -month period of the contract, or portions thereof, prorated into 12 installments. Invoices shall be issued on or before the first day of each service month. Payment due date shall be 30 days after the beginning of each service month. An example of a fixed price contract for ongoing, recurring provision of materials and/or services might be a city contracting with the Sheriff for law enforcement services. IV. ACTUAL COST CONTRACTS A. Actual Cost (One - Time /Non - Recurring Contracts) - Invoices that represent a billing for a one -time, non - recurring provision of materials and /or services shall be issued after delivery by the County of the materials and /or services and no later than 15 days after actual cost data is available. Payment due date shall be invoice date plus 30 days. B. Actual Cost (Ongoing /Recurring Contracts) - Invoices that represent a billing for an ongoing, recurring provision of materials and /or services shall be issued on a monthly basis and shall represent the cost of materials and/or services provided to the contracting entity during the previous calendar month. Such invoices shall be issued no later than 15 days after the close of the monthly billing period. If the County agency /department/district does not utilize a monthly billing cycle, the invoice shall be issued no later than 15 days after actual cost data is available. Payment due date shall be invoice date plus 30 days. Examples of actual cost contracts for the ongoing, recurring provision of materials and /or services might be a city contracting with the County for communications equipment repair or waste disposal at a County landfill. V. PAYMENT DUE DATES Notwithstanding the provisions of Sections II and III above, payment due date shall be at least invoice date plus 30 days. If the County is late in issuing an invoice, the contracting entity would always have at least invoice date plus 30 days to pay. If the County is early in issuing an invoice, the contracting entity would still have a payment due date of either 60 days after the beginning of the quarter (quarterly invoices) or 30 days after the beginning of the service month (monthly invoices). (EXAMPLES: An invoice for October service, dated and issued October 8 (late) would have a payment due date of November 7. An invoice for August service, dated and issued July 20 (early) would have a payment due date of August 30.) Page 2 of 4 VI. LATE CHARGES The late payment of any invoiced amount by a contracting entity will cause the County to incur costs not contemplated by the County /contracting entity agreement, the exact amount of such cost will be extremely difficult to ascertain. Such costs include, but are not limited to, costs such as administrative follow -up and processing of delinquent notices, increased accounting costs, etc. Late charges will be assessed in the following situations: - Over - the - counter payments will be assessed a late charge if any payment is not received by the County by the payment due date. - Payments transmitted to the County via the U.S. Mail that have the payer's postage meter mark will be assessed a late charge if any payment is not received by the County by the payment due date plus one day. Payments transmitted to the County via the U.S. Mail that have a U.S. Post Office postmark dated after the payment due date will be assessed a late charge. The late charge assessed in each of these situations shall be three- quarters of one percent (0.75 %) of the payment due and unpaid plus $100.00 for late payments made within 30 days of the payment due date. An additional charge of three - quarters of one percent (0.75 %) of said payment shall be added for each additional 30 -day period that the payment remains unpaid. Late charges shall be added to the payment and invoiced to the contracting entity in accordance with this policy. VII. COLLECTIONS Any invoice remaining unpaid 90 days after the invoice date shall be referred to the Auditor - Controller for subsequent collection action, such as deduction from contracting entity moneys on deposit with the County Treasurer in accordance with Government Code Section 907 and any other applicable provision of law. Non- payment of invoices and applicable late charges will constitute a breach of contract for which the County retains all legal remedies including termination of the contract. VIII. DISCOUNT FOR EARLY PAYMENT Any payment received by the County from a contracting entity 20 days or more before the payment due date shall be entitled to a discount of one - quarter of one percent (0.25 %). If the contracting entity takes a discount, and the payment is received by the County less than 20 days before the payment due date, County staff shall immediately notify the contracting entity by telephone that the discount should not have been taken and that the balance is due by the original payment due date. If the balance is not received by the County in accordance with the dates as specified in Section VII, applicable late charges shall be calculated on the balance due. Page 3 of 4 IX. DEFERRED REVENUE At fiscal year end, any portion of revenue invoiced (not necessarily received) during the fiscal year being closed out that represents charges or prepayment for materials and/or services for the upcoming fiscal year shall be reclassified from a revenue account to a deferred revenue account (liability). In the new fiscal year the deferred revenue shall be reclassified to a revenue account. (EXAMPLE: On June 1, 19X1, a city is invoiced $48,000 which represents charges for the 12 -month period June 1, 19X1 to May 31, 19X2. The amount to be reclassified to deferred revenue would be $44,000, representing 11/12ths of the total amount. In July 19X1, the $44,000 would be reclassified to revenue.) Reclassification entries shall be made by Auditor - Controller Agency Accounting units, or for those agencies /departments /districts without such a unit, the agency /department/district shall notify the Auditor - Controller of the amounts to be reclassified. X. COST RECOVERY All County agencies /department/districts shall include all costs of providing contracted services in contract rates. Including all direct costs, allocated indirect costs such as departmental and County (CWCAP) overhead, and cost of capital financing. XI. EXISTING CONTRACTS Billing terms and provisions contained in existing contracting entity agreements (existing as of the date this policy is approved by the Board of Supervisors) shall remain in effect for the life of the contract. However, when these existing contracts are renegotiated, they shall contain the billing provisions as set forth in this policy. XII. DEVIATIONS FROM POLICY Deviations from this policy shall be approved by the Board of Supervisors. Proposed deviations by agencies /departments /districts shall be submitted to the CEO for concurrence in advance of filing an Agenda Item Transmittal (AIT) with the Clerk of the Board. The CEO, or his /her designee, shall advise the agency / department/district of approval or disapproval of the proposed deviations. If a County agency/department/district submits a contract to the Board of Supervisors for approval, and the billing provisions in the contract deviate from this policy, the agency/department/district shall specifically advise the Board of Supervisors in the AIT of the deviation, the reason for the deviation, and of the CEO's recommendation relative thereto. Page 4 of 4 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. s31 June 8, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David R. Hunt, City Attorney (949) 644 -3131; dhunt @newportbeachca.gov Kyle E. Rowen, Deputy City Attorney (949) 644 -3131, krowen @newportbeachca.gov SUBJECT: RESOLUTION AUTHORIZING THE TEMPORARY CLOSURE OF SEASHORE DRIVE, NEWPORT BOULEVARD AND BALBOA BOULEVARD, BACK BAY DRIVE, SELECTED PARKING LOTS, AND SELECTED FEEDER STREETS FOR THE JULY 4TH HOLIDAY RECOMMENDATION: It is recommended that the Council adopt the Resolution attached to this memo. DISCUSSION: Background: In preparation for the annual influx of visitors, this office has prepared a Resolution authorizing the Police Department to temporarily close, or divert traffic from, portions of Seashore Drive, the "100" block streets and alleys between 32"' Street and 54`h Street, Balboa Boulevard, Back Bay Drive, and Newport Boulevard during the Fourth of July Holiday, to install temporary boundaries on Seashore Drive, and to close certain parking lots. Environmental Review: The City council's approval of this item does not require environmental review because this is not a project under the California Environmental Quality Act. Public Notice: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Pre r� K . Rowen, Deputy City Attorney Attachments: Resolution S mitted bl �1 David R. Hunt, City Attorney RESOLUTION NO. 2010- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE TEMPORARY CLOSURE OF SEASHORE DRIVE, NEWPORT BOULEVARD, BACK BAY DRIVE AND BALBOA BOULEVARD, SELECTED PARKING LOTS, AND SELECTED FEEDER STREETS. SECTION 1: The City Council of the City of Newport Beach finds and declares as follows: A. Each year, during the July 4th Holiday, thousands of persons visit ocean front beaches between the Santa Ana River and the West Jetty; B. This large influx of visitors creates severe traffic congestion in West Newport, the McFadden Square area, and on the Balboa Peninsula; C. During the July 4th Holiday, traffic on streets in the ocean front areas of West Newport, Central Balboa and the Balboa Peninsula frequently results in little or no vehicular flow, with many vehicles not promptly moving when an opportunity arises to do so; D. During the July 4th Holiday, many visitors use public streets to celebrate the occasion and, pedestrian and bicycle traffic on many streets results in a defacto parade which makes vehicular use unsafe to those using the streets; E. This traffic congestion combined with the large number of visitors and a related increase in criminal conduct is, at times, beyond the capacity of the Newport Beach Police Department to control. The City routinely contracts with several other agencies to provide supplemental law enforcement services during the Fourth of July Holiday to enable the Newport Beach Police Department to respond to emergencies and maintain public safety. The Newport Beach Police Department could not provide police and emergency services in the ocean front area in the absence of the temporary street closures authorized by this Resolution; F. The Fourth of July Holiday brings with it an increased threat of fire (due to illegal fireworks), and much higher than normal incidence of medical emergencies. The City routinely enlists the aid of neighboring cities to provide supplemental fire support service to enable the Newport Beach Fire Department to respond to medical emergencies and suppress fires as necessary. The Newport Beach Fire Department could not travel to or from the scene of medical or fire emergencies in the ocean front area in the absence of the temporary street closures authorized by this Resolution; G. The Vehicle Code of the State of California permits the temporary closure of any street when the Legislative body determines that closure is necessary for the safety and protection of persons who are to use that portion of the street during closure, and the City Council determines that the closures authorized by this Resolution is necessary to protect both the individuals using the street and those visitors and residents in need of emergency police and fire services during the Fourth of July Holiday. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach as follows: SECTION 2: A. Pursuant to the provisions of Division 11, Chapter 1, Article 3 of the Vehicle Code of the State of California, the Newport Beach City Council hereby authorizes any peace officer to temporarily close, or divert traffic including, but not limited to, vehicles, bicycles and / or pedestrians from all, or a portion, of the following streets and public parking lots when, in the opinion of that peace officer, little or no vehicular flow is occurring and a significant number of vehicles are not promptly moving when an opportunity arises to do so, or when in the opinion of that peace officer, closure is necessary for the safety and protection of persons using the street for celebrations, parades, special events, or similar activities: 1. Seashore Drive between 32nd Street and Prospect; 2. Eastbound Balboa Boulevard between 32nd Street and West Coast Highway; 3. The southbound lanes of Newport Boulevard between Via Lido and Balboa Boulevard; and 4. All "100" block streets and alleys between 32nd Street and 54th Street. 5. Back Bay Drive. 6. Public areas and parking lots: a. On Seashore Drive; b. At Superior and Pacific Coast Highway; C. At City Hall. B. That the authority of a peace officer to temporarily close, or divert traffic including, but not limited to, vehicles, bicycles and / or pedestrians from, the V, streets listed above is limited to the period from 6:00 a.m. on July 3, 2010, to 11:00 p.m. on July 5, 2010. SECTION 3: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this day of , 2010. Keith D. Curry, Mayor ATTEST: Leilani Brown, City Clerk 3