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HomeMy WebLinkAboutNATIONAL ASSOCIATION FOR CIVIL OVERSIGHT OF LAW ENFORCEMENTINSURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES N-2024-090 CfiZ+6C CITY CLERK DATE: 0 . GMu CA CONSULTANT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND CD.Slrb)'r NATIONAL ASSOCIATION FOR CIVILIAN OVERSIGHT OF LAW ENFORCEMENT FOR TRAINING AND CONSULTING SERVICES a THIS AGREEMENT FOR CONSULTANT SERVICES ("Agreement") is made and entered into this 14th day of February 2024 by and between the National Association for o Civilian Oversight of Law Enforcement, a non-profit organization ("Consultant" or H "NACOLE"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City") hereinafter collectively referred to as the "Parties". RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of training and consulting services for its civilian commissioners appointed to City's Police Oversight Commission on topics including, but not limited to, the following: fundamentals of procedure, evidence, and due process; procedural rights and confidentialities afforded to police officers under California law (including, but not limited to, Government Code section 3300, et seq., Penal Code sections 832.7 and 832.8, and Evidence Code sections 1040-1043); in -person implicit bias training; and best practices for conducting investigations. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the Parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete those services described above in the Recitals and as identified in "Exhibit A - Scope of Work", attached hereto an incorporated herein by this reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit A. The total amount to be expended during the term of this Agreement shall not exceed twenty thousand dollars ($20,000). Page 1 of 8 b. Payment by City shall be made within 45 days (forty-five) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and shall terminate on December 31, 2024, unless terminated earlier in accordance with Section 15, below. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify or reuse materials for the purpose of training and education. All materials provided through technical assistance may be used by the City for purposes directly related to the scope of work laid out in this agreement. The City may not use or disseminate materials outside of the purposes outlined in this scope without the written permission of the National Association for Civilian - -----Oversight of Law Enforcement, except-rs-required-by- subpoena, -court order, -request for records pursuant to the California Public Records Act, or as otherwise required by law. 6. INSURANCE Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors. a. Consultant shall not continence work for the City until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has secured all insurance required under this Section. b. Insurance coverage shall be at least as broad as: Page 2 of 8 (i) Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $500,000 per accident for bodily injury or disease. (ii) Professional Liability: applicable to the work being performed, with a limit no less than $1,000,000 per claim or occurrence and $1,000,000 aggregate per policy period of one year. (iii) If the Consultant maintains broader coverage and/or higher limits than the minimums shown above, the Entity requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Entity. 7. INDEMNIFICATION Consultant agrees to defend, and shall indenmify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for, personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and ( 2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due to the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from Consultant's performance render this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant' s services are subject to Civil Code Section 2782. 8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782. 8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. Page 3 of 8 9. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 12. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Page 4 of 8 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the Parties. In the event of a conflict between the terms of this Agreement and any exhibits or other attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The Parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. This Agreement and all related obligations and services hereunder are intended for the sole benefit of City and Consultant and are not intended to create any third -party rights or benefits. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 15. TERMINATION This Agreement may be terminated by either party for default after five (5) days written notice to the other if the other party has substantially failed to fulfill any of its obligations under ---this Agreement -after -a thirty (30)-day noticed core period —CITY -has -and reserves the right Yo terminate this Agreement at its convenience and without cause upon thirty (30) days written notice to Consultant. In the event that the City should terminate this Agreement for its convenience, Consultant shall be entitled to payment for services provided hereunder, as provided in Section 2, Exhibit A, including for such services performed prior to the effective date of said termination, including travel, accrued as of the date of the termination, which payment shall be per the terms set forth in Section 2, Exhibit A, subject to the following conditions: a. As a condition of such payment, the City may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. Page 5 of 8 16. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. JURISDICTION —VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both Parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 18. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 19. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by — first-class or certified -mail —postage prepaid, or -sent by-faxor-other-telegraphic ommunication in the manner provided in this Section, to the following persons: To CITY: City Clerk City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 With courtesy copies to: Tom Hatch Interim City Manager City of Santa Ana 20 Civic Center Plaza Page 6 of 8 P.O. Box 1988 Santa Ana, CA 92702 To CONSULTANT: National Association for Civilian Oversight of Law Enforcement Cameron McEllhiney Executive Director P.O. Box 20851 Indianapolis, IN 46220 Email: meellhiney@naeole.org Phone: 317-721-8133 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. Any correctly addressed notice that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified shall be deemed effective as of the fast date that said notice was refused, unclaimed, or deemed undeliverable by the postal authorities, messenger, or oveniight delivery service. 20. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective Parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. Page 7 of 8 N-2024-090 SIGNATURE PAGE FOR CONSULTANT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND NATIONAL ASSOCIATION FOR CIVILIAN OVERSIGHT OF LAW ENFORCEMENT FOR TRAINING AND CONSULTING SERVICES IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the date and year first above written. ATTEST: APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Jonathan T. Martinez Assistant City Attorney CITY OF SANTA ANA: 7,01A Tom Hat Interim City Manager CONSULTANT: Di9i W q signet by Cmnemn Cameron McEllhiney MaElihlney Dnte: 2024 0Zs 17:29:21-0FW By: Cameron McEllhiney Title: Executive Director Page 8 of 8 c'ov �ryHian EXHIBIT A a Scope of Work Prepared for: Daniel Soto, Principal Management Analyst City of Santa Ana City Manager's Office 20 Civic Center Plaza Santa Ana, CA 92701 As the only professional organization in the field of civilian oversight of law enforcement, the National Association for Civilian Oversight of Law Enforcement (NACOLE) plays an essential role in identifying effective practices and guiding principles in the complex arena of civilian oversight of law enforcement. In that capacity, NACOLE proposes the following scope of work to assist the City of Santa Ana with implementing the ordinance establishing the Santa Ana Police Oversight Commission (Commission) and training Commission members. TECHNICAL ASSISTANCE NACOLE will provide up to 40 hours of consultation to the City of Santa Ana to assist with the technical aspects, considerations, and facilitation related to implementation of the ordinance establishing the Commission. This will include but not be limited to: • Assisting the City with preparing recommendations to implement the provisions of the ordinance establishing the Commission; • Assisting the City with conducting public meetings to educate the community on the purpose of the Police Oversight Commission and provide a forum for discussions about police policies, practices, and procedures; • Providing additional technical assistance, as needed, to advise the City on implementation of the ordinance; and • Virtual attendance at Commission and other relevant meetings. Additional hours can be added upon approval of both parties, in writing. TRAINING Formulate and deliver 12 hours of educational sessions and facilitated discussions for the Commission on the following topics: • Fundamentals of Procedure • Evidence • Due Process • In -person Implicit Bias Training • Best Practices for Conducting Investigations • Civilian Oversight of Law Enforcement: History, Principles, Role, and Function • Conducting Civilian Oversight of Law Enforcement: Review of the Santa Ana Ordinance and Applicable Authorities • Establishing Expectations, Building Legitimacy, and Carrying out Board Responsibilities • Effective, Location -Based Community Outreach and Engagement • Recommended Reporting Practices for Civilian Oversight Agencies • Developing a Board Job Description • Public Reporting and Transparency • Identifying and Addressing Challenges and Opportunities A detail of the proposed topics and estimated time allotted for each maybe found in Attachment A. The training topics and delivery method (in -person or virtual) may be altered after consultation with the Commission and staff. NACOLE intends to provide the most up-to-date, relevant information and, therefore, acknowledges that some adjustments may need to be made to content and format. Fees for Services Rendered: not to exceed $20,000 This represents the fee for all items described in this scope of work and in Attachment A: Technical Assistance: $250 per hour, in an amount not to exceed $10,000 Consultation with staff/Commission members regarding relevant issues up to 40 hours, Additional hours may be added, with approval of both parties. Training Assistance: $10,000 Development and delivery of 12 hours of virtual and in -person training and facilitated discussion for Commission members and staff, carried out by two trainers. This proposal is made with the assumption that training will be done both virtually and in -person; the fee includes the cost for two trainers to travel and present in -person. Although changes may be made to the content proposed in this scope upon mutual agreement by both parties, NACOLE assumes that the same time allotment will be necessary to provide the training and technical assistance put forth in this scope and, therefore,, the-fee-s-associated- with -this-scope -will-remain-unaltered. Attachment A In -Person Educational Sessions Subject Description Estimated Time Civilian Oversight of Law This session will provide a brief overview of civilian Enforcement: History, Principles, oversight, its history, principles, role, and function. 1h:15m Role, and Function Conducting Civilian Oversight of This session will explore the authorities given to the Law Enforcement: Review of the Commission, the definitions, and how this Santa Ana Ordinance and compares/relates to oversight being performed 1h:00m Applicable Authorities throughout the United States Establishing Expectations This session will address expectations and the Building Legitimacy, and Carrying need to set realistic expectations for all interested 1h:00m out Board Responsibilities parties while building legitimacy for the _ Commission. Effective, Location -Based This session will discuss methods for effectively Community Outreach and engaging stakeholders in the oversight process, 1h:00m Engagement from development to implementation. Recommended Reporting This session will discuss what the Commission should Practices for Civilian Oversight produce to sustain a level of transparency regarding 1h:00m Agencies police misconduct and the work being done by the Commission. Identifying and Addressing This session will explore local expectations and Challenges and Opportunities the desired outcomes of oversight 1h:15m implementation —What is the end goal? This session will define implicit bias, provide In -person Implicit Bias Training examples, and describe how implicit biases are 1h:30m formed and the ways in which they impact individuals' lives. Virtual Educational Sessions Subject Description Estimated Time This session will provide an overview of the rights Fundamentals of Procedure or protections provided to public safety officers 1h:00m pursuant to the Public Safety Officers Procedural Bill of Rights Act. This session will provide an overview of the Evidence different types of evidence and how they are 1h:00m evaluated, and describe how to preserve and document evidence and chain of custody. This session will provide an overview of due Due Process process procedures related to the Public Safety 1h:00m Officers Procedural Bill of Rights Act. Best Practices for Conducting This session will detail what goes into an Investigations investigation and effective practices for 1h:00m reviewing them. Soto, Daniel From: City of Santa Ana < certificate- req uest@ctrax.jd idata.com > Sent: Wednesday, February 28, 2024 5:10 PM To: Soto, Daniel; kayla.rybicki@huntington.com; mcellhiney@nacole.org Subject: Internal Notice of Compliance NOTICE OF COMPLIANCE CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL Contractor National Association for Civilian Oversight of Law Enforcement Name: Project NACOLE TBD Number: Project CONSULTANT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND Name: NATIONAL ASSOCIATION FOR CIVILIAN OVERSIGHT OF LAW ENFORCEMENT FOR TRAINING AND CONSULTING SERVICES The Certificate of Insurance (COI) submitted indicates that the coverages comply with the insurance requirements. TYPE OF INSURANCE POLICY !EXPIRATION COI DATE FILE NAME NUMBER DATE Certificate of CRIME J0635497A 10/t8/2024 12/05/2023 Insurance_ 20231018- _ 20241018.pdf CUSTOM COVERAGE J0635497A 10/18/2024 02/28/2024 City of Santa Ana.pdf D&O LIABILITY J0635497A 10/18/2024 02/28/20214� City of Santa Ana.pdf EPLI J0635497A 10/18/2024 02/28/2024 City of Santa Ana.pdf WORKERS COMPENSATION AND ARP 12000218306 04/25/2024 02/28/2024 City of Santa EMPLOYERS' LIABILITY Ana.pdf No further action is required at this time. Thank you,