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HomeMy WebLinkAbout25L - LAW ENFORCEMENT HELICOPTER SERVICESREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: September 8, 2009 TITLE: AGREEMENT FOR LAW ENFORCEMENT HELICOPTER SERVICES ~ ~~ ~ ~ ~_ V i' it. CITY MA GER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 151 Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreement with the Airborne Law Enforcement Services Joint Powers Authority for law enforcement helicopter services in an annual amount not to exceed $320,294, approved by the City Manager and City Attorney. DISCUSSION In October 1994, the City of Santa Ana began participating in the Airborne Law Enforcement Services (ABLE) program. ABLE is a regional helicopter program, which combines the airborne resources of the City of Costa Mesa and the City of Newport Beach to provide enhanced law enforcement services to participating agencies. The intent of the program is to make helicopters more available and affordable to law enforcement agencies throughout the region. Law .enforcement helicopters allow the Police Department to continue to provide a rapid and enhanced response to incidents posing the greatest risk to the public, including robberies, burglaries, assaults, and fleeing felons. The agreement provides for services from July 1, 2009 through June 30, 2010. This program is being funded by the Community Development Block Grant Program and will comply with the program regulations. In addition, the Santa Ana Police Department will provide one full-time sworn pilot/observer to ABLE program and, in exchange, receive credit of $161,725 to reduce the cost to $320,294 25L-1 Agreement for Law Enforcement Helicopter Services September 7, 2009 Page 2 FISCAL IMPACT Funds will be available in the FY 2009-10 Community Development Block Grant fund (account no. 1351878362300-10751001172). APPROVED AS TO FUNDS AND ACCOUNTS; Paul M. Walters Chief of Police Police Department Cynthia J. Nelson Deputy City Manager for Development Services Community Development Agency Francisco Gutierrez Executive Director ~'"Y Finance & Mgmt. Services Agency 25L-2 AIRBORNE LAW ENFORCEMENT SERVICES AGREEMENT WITH SANTA ANA POLICE DEPARTMENT This Agreement is made 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. TERM This Agreement shall commence on July 1, 2009 and end on June 30, 2010, subject to renewal for successive one (1) year terns as mutually agreed to by the parties. 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 "). 25L-3 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 JPA. The term of the Agreement shall be for one (1) 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, dining 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 complete or that the assignment must be terminated due to a higher priority assignment. 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-1"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 and Operations Manual section 4085 in making calls for services, which establishes priority for calls to ABLE. 3.03 AGENCY agrees to install within its communications/dispatch center any radio equipment necessary to communicate directly with ABLE on the designated "ABLE CALL" frequency (800 MHz Talk Group). All costs associated with said installation shall be paid by AGENCY. Airborne Law Enforcement Services Agreement 2 25L-4 3.04 AGENCY shall provide afull-time sworn police sergeant employed by the AGENCY for use by ABLE in providing law enforcement helicopter services. AGENCY shall receive an adjusted rate that accounts for the cost to AGENCY for the salary and benefits of the AGENCY employed sergeant utilized by ABLE as provided for in Article IV and Exhibit "A." IV ABLE COLLECTIONS 4.01 AGENCY shall pay ABLE Twenty-Six Thousand Six Hundred Ninety-One Dollars and Seven Cents per month ($26,691.07) as set forth in Exhibit "A," for 391.67 flight hours of service provided to AGENCY under this Agreement ("Contract Amount"). Any services in excess of 391.67 flight hours, on an annual basis, shall be billed at a rate of One Thousand Two Hundred Thirty Dollars and Sixty Seven Cents ($1,230.67). AGENCY shall not receive a refund if the total flight hours, on annual basis, are less than 391.67 flight hours. Upon thirty (30) days written notice to AGENCY, ABLE tnay adjust the rate in Exhibit "A" based on ABLE's annual operating cost and the average time per call. AGENCY shall pay the Contract Amount set forth herein and in Exhibit "A" for the preceding month of service. 4.02 The Contact Amount .reflects a credit that takes into account the cost of the provision of a full-time sworn police sergeant from AGENCY to ABLE as set forth in Section 3.04 and Exhibit "A." 4.03 ABLE will provide the AGENCY with a monthly statement detailing all calls for service and tithe 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. 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 To the fullest extent permitted by law, AGENCY shall indemnify, defend and hold harmless ABLE, its Member Agencies their boards, officers, agents and employees (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, Airborne Law Enforcement Services Agreement 3 25L-5 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 services provided under this Agreement including, but not limited to, activities that relate in any way to this Agreement (including the negligent and/or willful acts, errors and/or omissions of AGENCY, its council members, officers, agents, employees, and anyone employed directly or indirectly by any of theta or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require AGENCY to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. 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 sole negligence or willful misconduct 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 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 police officer or employee arising out of his/her 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 oftcer 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 of the AGENCY and not as an employee of ABLE or the Member Agencieso AGENCY shall secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unetnploytnent 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 cetnain 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. Airborne Law Enforcement Services Agreement 4 25L-6 VI JPA CONSISTENCY 6.01 The provisions of this Agreement shall be interpreted in light of, and in a manner consistent with, the JPA. In the event of any conflict between the provisions of the JPA and this Agreement, the provisions of the JPA shall control. AGENCY agrees to perform all duties required of it pursuant to the JPA as presently constituted or as hereafter amended. 6.02 AGENCY agrees to the indemnification provisions of Paragraph 5.05 of the JPA, 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 7.01 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 JPA. 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 JPA, as well as any effort of ABLE to collect money from persons or entities responsible for any request for law enforcement helicopter services. 7.03 Each of the Parties to this Agreement may terminate this Agreement without cause upon one hundred twenty (120) days prior written notice. 7.04 The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 7.05 If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 7.06 This Agreement may be modified or amended only by a written document executed by both ABLE and AGENCY. 7.07 The terms of this Agreement 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 Agreement or any other rule of construction which might otherwise apply. 7.08 This Agreement 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 Airborne Law Enforcement Services Agreement 5 25L-7 held to vary the provisions herein. 7.09 A waiver by either party of any breach, of any teen, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other tet7n, covenant or condition contained herein, whether of the same or a different character. 7.10 Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred, contracted or subcontracted out without the prior written approval of ABLE and AGENCY. 7.1 1 This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. 7.12 AGENCY 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. 7.13 AGENCY represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Airborne Law Enforcement Services Agreement 6 25L-8 IN WLTNESS WHERE OF, the parities hereto have executed this Agreement the day and year first above written. CITY OF SANTA ANA DAVID REA ,CITY ANAGER for the City of Santa Ana ABLE CHRIS SHAWKEY, Chair ABLE Board of Governors ATTEST: PATRICIA E. HEA Y Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER Santa Ana City Attorney By: Lau Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: V~ PAUL M. WALTERS Chief of Police Santa Ana ATTEST: PHYLLI~SCHIEL Secretary to ABLE Board of Governors APPROVED AS TO FORM: OFF[C OF THE CITY ATTORNEY ~C Aaro C. Harp Assistant City Attorney for the City of Newport Beach and ABLE Legal Counsel Airborne Law Enforcement Services Agreement 25L-9 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 for fiscal year 2009/2010. The service provided by ABLE will coincide with available funds and credits as provided for in the below 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 $40,168.25 ($320,294.00 divided by 12 months) less the employee credit of $13,477.08 per month ($161,725.00 divided by 12 months) for a total of $26,691.07 per month. The AGENCY shall provide afull-time sworn police sergeant from Santa Ana for supervisor/pilot duties, for which AGENCY will receive a credit toward the total cost for services provided by ABLE. The credit amount for the sergeant is equal to the salary and benefits payable over fiscal year 2009/2010 year, ie. from July 1, 2009 to June 30, 2010, for a total compensation of $161,725. The subscriber discounted hourly operating rate for ABLE is $1,230.67 as established by the ABLE Board of Governors on April 16, 2009. PERIOD COVERED -July 1, 2009 to June 30, 2010 (twelve month term). ABLE Santa Ana Budget $320,294 Employee Credit (Total $161 725 Compensation) , TOTAL COST FOR SERVICES $482,019 Flight Hours @ $1,230.67 per hour ($489,770.00 / $1230.67 hr) 391.67 hours Number of Helicopter Shifts per year 730 Flight Time per Shift 32.2 minutes Flight Time per Day 64.4 minutes Exhibit A-1 25L-10 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 sergeant to ABLE to serve as a supervisor/member of the flight crew. This supervisor will maintain all responsibilities of the ABLE Helicopter Sergeant as defined in the ABLE Operations Manual. ABLE will require that this supervisor meet all of the qualifications and requirements as set forth in the ABLE Operations Manual for Pilots and Certified Flight Instructors. This supervisor 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 two designated officers, who will serve as tactical flight officers, 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 sickleave accrued annually by the current Santa Ana police sergeant serving as the ABLE Sergeant/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. Exhibit A-2 25L-11 25L-12