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HomeMy WebLinkAboutAIRBORNE LAW ENFORCEMENT 10 - 2005 A-2005-165 I ~,Ii. ' , I .I~,JU I'; ,>f r (::.ilmL' DA.TE. Ci.J U; 7.;;l.o--eS \NOi-ii<. e.- 'PI> G's U'I-l-- AIRBORNE LAW ENFORCEMENT SERVICES AGREEMENT (SUBSCRIBER) This Agreement is made this 19th day of May 2005, by and between the Airborne Law Enforcement Services Joint Powers Authority ("ABLE") and the City of Santa Ana ("AGENCY") based on the following: A. ABLE, through its Member Agencies (City of Costa Mesa and City of Newport Beach), employs, maintains, trains and equips personnel capable of responding to requests for law enforcement helicopter services from ground based law enforcement personnel. B. AGENCY is responsible for providing law enforcement services within its jurisdiction, which include law enforcement helicopter services. C. AGENCY requires the services of ABLE to provide law enforcement helicopter services to its land and residents. D. AGENCY has prior to the effective date of this Agreement, adopted a resolution authorizing certain of its employees to sign this Agreement and make requests for law enforcement helicopter service for the AGENCY. I PURPOSE 1.01 The purpose of this Agreement is to provide law enforcement helicopter services to AGENCY'S land and residents and for AGENCY to pay for the cost of the services provided by ABLE. 1.02 Nothing in this Agreement shall be interpreted to give AGENCY a right to services from ABLE. ABLE expressly retains all rights and powers to direct, manage, maintain, train, employ, equip, operate and control all equipment, facilities, properties and personnel in providing law enforcement helicopter services to AGENCY pursuant to this Agreement. AGENCY acknowledges and agrees that the efficient use of public safety helicopter services requires a timely and prioritized response of a helicopter. AGENCY agrees that ABLE will have the sole discretion to determine the priority of calls for service and when an assignment of an air crew to a call will be terminated. 1.03 Notwithstanding anything in the Agreement to the contrary, the AGENCY expressly retains all rights and powers to direct, manage, maintain, train, employ, equip, operate and control all equipment, facilities, properties and personnel in providing ground based public safety services to its land and residents. 1.04 This Agreement shall not alter, amend, supersede or modify any of the provisions of the Joint Powers Agreement for Airborne Law Enforcement Services, dated October 25, 1999, and as amended ("JPA "). II SERVICES 2.01 ABLE, through its Member Agencies, will furnish the AGENCY with public safety helicopter services as more particularly set forth in Exhibit "A", attached hereto and incorporated herein by this reference, and subject to the limitations in the JP A. The term of the Agreement shall be for one (I) year, subject to renewal for successive one (1) year terms as mutually agreed to by the parties. ABLE, the Member Agencies and helicopter aircrews retain the sole and exclusive discretion as to the specific type, nature, timing and duration of the services performed pursuant to this Agreement. 2.02 In no event shall ABLE, the Member Agencies or the aircrew be responsible for the direction and control of ground based law enforcement personnel and equipment of AGENCY during the course and scope of the services performed pursuant to this Agreement. III AGENCY DUTIES 3.01 AGENCY shall pay ABLE a subscriber cost, as determined by ABLE pursuant to Paragraph 4.01 of this Agreement, for services provided by ABLE under this Agreement. The services performed by the ABLE aircraft shall commence as of the date and time the aircraft is dispatched to or arrives over the airspace of the AGENCY, whichever occurs first. These services shall continue until the aircrew notifies the AGENCY that the assignment is completed or terminated due to higher priority assignments. Services performed by ABLE Aircraft for the AGENCY shall be defined as: A. A direct request for air support services by the AGENCY where an ABLE aircraft arrives over the incident as logged by the aircrew (operationally identified as a "D-l " call) or; B. Any public safety call generated by the AGENCY and monitored by an ABLE aircrew in which they arrive over the incident as logged by the air crew (operationally identified as a "D-2" call) or; C. Routine patrol over AGENCY's jurisdictional areas. The AGENCY may authorize its ground based public safety supervision to cancel a response as defined under subsection B. 3.02 AGENCY agrees to comply with the FAR Part 91 Operations Manual Section 4085 in making calls for services, which establishes priority for calls to ABLE. 2 3.03 AGENCY agrees to install within its communications/dispatch center any radio equipment necessary to communicate directly with ABLE on the designated "Airnet" frequency (Low Band). All costs associated with said installation will be paid by AGENCY. 3.04 AGENCY shall provide a full-time sworn police officer employed by the AGENCY for use by ABLE in providing law enforcement helicopter services. AGENCY shall receive a credit against monthly service charges as provided in Section 4.02. IV ABLE COLLECTIONS 4.01 AGENCY shall pay the rate, set forth in Exhibit "A" to ABLE for services provided to AGENCY under this Agreement. Upon thirty (30) days written notice to AGENCY, ABLE may adjust the rate in Exhibit A based on ABLE's annual operating cost and the average time per call. AGENCY shall pay the monthly rate set forth in Exhibit "A" for the preceding month of service. 4.02 AGENCY shall receive a credit for the provision of a full-time sworn police officer from AGENCY to ABLE as set forth in Section 3.04. Such credit shall be equal to the cost to AGENCY for the salary and benefits for each month the officer is utilized by ABLE. The credit shall be included in the total service provided to the AGENCY as set forth in Exhibit "A". A credit shall not result in a refund of monies paid by AGENCY to ABLE. A credit shall not be transferred by AGENCY to another public agency. 4.03 ABLE will provide the AGENCY with a monthly statement detailing all calls for service and time spent on routine patrol over the AGENCY's jurisdiction as provided by ABLE aircrews. The AGENCY shall notify the ABLE Bureau Commander within ten (10) days of receipt of the monthly statement of any disputed calls for service in which they are billed. The Bureau Commander and the AGENCY Supervisor will review the service provided by ABLE on a monthly basis to ensure that it coincides with the service level as set forth in Exhibit "A". The Bureau Commander will be responsible for resolving disputes and adjusting service levels to coincide with Exhibit "A". V INDEMNIFICATION AND WAIVER 5.01 AGENCY agrees that ABLE and the Member Agencies should be fully protected from any loss, injury, damage, claim, lawsuit, cost or expense arising out of, or in any way related, to the performance of services pursuant to this Agreement. Accordingly, the provisions of this Agreement should be construed and interpreted to provide the fullest possible protection to ABLE and the Member Agencies. AGENCY acknowledges that ABLE would not provide services in the absence of the commitments of AGENCY as specified in this Agreement. 5.02 AGENCY shall defend, indemnify and hold harmless ABLE and the Member Agencies, and their respective officers, employees, contractors, agents and representatives, with 3 respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to the performance of services by ABLE or the Member Agencies within the AGENCY's jurisdiction, except those which arise out of the sole negligence of ABLE. The obligation of the AGENCY pursuant to this section extends, without limitation, to any injury, death, loss or damage which occurs within the AGENCY's jurisdiction and which is sustained by any third party, any employee or contractor of ABLE and to such contractor's employees. 5.03 ABLE shall defend, indemnify and hold harmless AGENCY and its officers, employees, contractors, agents and representatives, with respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to the negligent performance of services by ABLE or the Member Agencies within the AGENCY's jurisdiction. The obligation of ABLE pursuant to this section extends, without limitation, to any injury, death, loss or damage which occurs within the AGENCY's jurisdiction and which is sustained by any third party, any employee or contractor of AGENCY and to such contractor's employees. 5.04 In the event that liability is imposed on AGENCY and ABLE, any Member Agency, or their respective officers, employees, agents or representatives, that arises out of or is in any way related to providing law enforcement helicopter services pursuant to this Agreement, or the existence of any emergency within AGENCY's jurisdiction, AGENCY and ABLE (including its member agencies and their respective officers, employees, contractors, agents and representatives) shall mutually defend and indemnify each other in proportion to their share of liability on a comparative fault basis. Nothing in this Section shall in any way alter or modify the provisions of Section 5.02 and or Section 5.03. 5.05 With regard to any sworn police officer or employee provided by AGENCY to ABLE pursuant to Section 3.04, or any other provision of this Agreement, the following provisions shall apply: A. AGENCY shall defend and indemnify ABLE, any Member Agency, or their respective officers, employees, agents or representatives for any liability resulting from any negligence on the part of said sworn peace officer or employee arising out of hislher acts undertaken for or on behalf of ABLE. B. AGENCY and any sworn police officer or employee provided to ABLE pursuant to Section 3.04 shall release ABLE, any Member Agency, and their respective officers, employees, agents or representatives from any liability for injury or damage sustained by said sworn police officer or employee arising out of his/her activities for or on behalf of ABLE. C. Any sworn police officer or employee provided to ABLE pursuant to Section 3.04 is and shall be acting at all times as an employee ofthe AGENCY and not as an employee of ABLE or the Member Agencies. AGENCY shall secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation and other payroll deductions of such sworn police officer or employee of the AGENCY. Any and all liability for workers compensation benefits that may be due to any sworn police officer or employee provided to ABLE pursuant to Section 3.04 shall 4 remain the responsibility of the AGENCY that supplied said employee. Neither ABLE, nor any Member Agency, their respective officers, their employees, agents or representative shall have any liability to said sworn police officer or employee for workers compensation benefits. VI JPA CONSISTENCY 6.01 The provisions of this Agreement shall be interpreted in light of, and in a manner consistent with, the lP A. In the event of any conflict between the provisions of the lP A and this Agreement, the provisions of the lPA shall control. AGENCY agrees to perform all duties required of it pursuant to the lP A as presently constituted or as hereafter amended. 6.02 AGENCY agrees to the indemnification provisions of Paragraph 5.05 of the lP A, which is incorporated herein by this reference. ABLE has obtained liability insurance coverage for helicopter services provided to AGENCY under this Agreement as set forth in Exhibit B, and AGENCY will be added as an additional insured under the policy on execution of this Agreement, and receive notice if the policy is canceled. VII MISCELLANEOUS PROVISIONS 7.0] Each of the parties to this Agreement shall immediately notify the other of any litigation or claim that is asserted by or against either party regarding this Agreement or the lP A. 7.02 Each of the Parties to this Agreement shall cooperate with one another in the defense of any lawsuit or claim filed against either party, arising out of, or in any way related, to this Agreement or the lP A, as well as any effort of ABLE to collect money from persons or entities responsible for any request for law enforcement helicopter services. To the extent reasonably feasible, ABLE and Agency agree to submit to binding arbitration, before a lAM judge or similar agency mutually acceptable to the parties, any disputes concerning the interpretation of this Agreement and arising out of the performance of this Agreement. Furthermore, any such arbitration shall be commenced within thirty (30) days of written notice given by one party to the other party on the demand for arbitration, and the arbitration award shall be final to the extent permitted by law. 7.03 Each of the Parties to this Agreement may terminate this Agreement for any reason upon one hundred twenty (120) days prior written notice. 7.04 The validity of this Agreement, and any of its terms and provisions, as well as the rights and duties of the Parties, shall be interpreted and construed pursuant to, and in accordance with, the laws of the State of California. 5 IN WITNESS WHERE OF, the parities hereto have executed this Agreement the day and year first above written. CITY OF SANTA ANA ABLE ~ i/ / /-::1~'7 ' ! //t}J GA ihl/CI-' /(l, // ut," DAVID N. REAM, City Manager BOB cDONELL, Chief of Police Chairman, ABLE Board of Governors ATTEST: ATI~ (It.. ~ CHRIS SALENIffi' Secretary to Board of Governors r..~l~~ -€.,~ J ,v'ATRICIA E. HEALY '6' Clerk of the Council JOSEPH W. FLETCHER City Attorney By: ']i", 'l~., (, Laura Sheedy . / Assistant City Attorney DAN OHL Deputy City Attorney City of Newport Beach APPROVED AS TO FORM: RECOMMENDED FOR APPROVAL: ~J~.[~ PAUL . WA TERS Chief of Police 6 EXHIBIT" A" The fees set forth in this exhibit represents the total cost of service provided by ABLE to the City of Santa Ana, referred to herein as AGENCY. The service provided by ABLE will coincide with available funds and credits as provided for in the following table. Service is based on ABLE's hourly operating cost and amortized over the entire contract period on a monthly basis. The billing shall be divided into twelve equal monthly payments of $27,931.08, less the employee credit of $10,858.17 for a total of $17,072.91. The AGENCY shall provide a full-time sworn police officer of Santa Ana for pilot/observer duties, for which AGENCY will receive a credit toward the total cost for service provided by ABLE. The cost for the officer is $130,298.00 for the period from July 1, 2005 to June 30, 2006 (twelve months). The hourly operating cost for ABLE is $994.23 as established by the ABLE Board of Governors on May 19, 2005. PERIOD COVERED - July 1, 2005 to June 30, 2006 (twelve months). SANTA ANA BUDGET EMPLOYEE CREDIT (Total Comp) TOTAL $204,875.00 $130,298.00 $335,173.00 Flight Hours @ $994.23 per hour Number of Helicopter Shifts Flight Time per Shift Flight Time per Day 337 hours 730 shifts 28 minutes 56 minutes Management of flight time provided to the AGENCY shall be the responsibility of the ABLE Bureau Commander. Flight time over the City will be recorded and monitored daily for the purpose of providing service in accordance with the above table. The AGENCY will be provided with a detailed log of calls and flight time for each monthly billing period. Due to the inherent unknown nature in the need for airborne law enforcement service, ABLE will adjust daily service levels to coincide with the above table. In recognition that it will not always be possible to meet this goal (by either exceeding or falling short), ABLE will compensate for variations to arrive at an appropriate "daily average", on a monthly basis. Section 3.04 of this Agreement provides for the assignment of a full-time sworn police officer to ABLE to serve as a member of the flight crew. Currently, each member of the flight crew is a trained pilot. In order to realize the full benefit of this position, ABLE will require that this officer meet all of the qualifications and requirements as set forth in the ABLE Operations Manual for Pilots. This officer will be subject to and meet all of the requirements for pilots as set forth in the ABLE Pilot Training Program. This training will be provided by ABLE personnel and designated professional training facilities with all associated costs being the responsibility of the AGENCY. The cost of such training is in addition to the cost for helicopter service set forth in this Exhibit "A" and will be billed directly to the AGENCY. The AGENCY agrees to provide ABLE with one designated officer, who will serve as a helicopter observer, for the purpose of providing vacation and sick leave relief. The AGENCY agrees to make this officer available for training pursuant to the ABLE Helicopter Observer Training Program. This officer will serve in a pool of personnel trained to fill shortfalls due to vacation, sick leave and miscellaneous unscheduled absences. The cost for this position is approximately equivalent to the vacation and sick leave accrued annually by the current Santa Ana police officer serving as an ABLE pilot. ABLE shall participate in the selection process for officers assigned to the unit as flight crewmembers and reserves the right to revoke assignments without cause. Officers assigned to the ABLE program pursuant to this agreement shall meet all requirements set forth in the ABLE Operations Manual. 2