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HomeMy WebLinkAbout32358 - 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 A G R E E M E N T THIS AGREEMENT is made and entered into this day of , 2016, by and between the COUNTY OF FRESNO, a political subdivision of the State of California, hereinafter referred to as "COUNTY," and the CITY OF FRESNO, a Municipal Corporation, hereinafter referred to as "CONTRACTOR." W I T N E S S E T H: WHEREAS, the State of California, under Assembly Bill 109, the Public Safety Realignment Act (AB 109), has realigned responsibilities for probation, post release community supervision (PRCS) and mandatory supervised release of offenders; and WHEREAS, the Public Safety Realignment Act AB 109 Implementation Plan of 2011, including its updates, hereinafter collectively referred to as “AB 109 PLAN,” was developed by the Fresno County Community Corrections Partnership (CCP) and approved by the Fresno County Board of Supervisors; and WHEREAS, the AB 109 PLAN includes formation of the Adult Compliance Team (ACT) to create a cooperative unit capable of addressing public safety concerns and issues facing local law enforcement in Fresno County; and WHEREAS, the ACT is comprised of representatives of the Fresno County Sheriff’s Department, the Fresno County District Attorney’s Office, the Fresno County Probation Department, and officers of the Fresno, Clovis, Selma, and Reedley Police Departments; and WHEREAS, the State of California has provided funding to COUNTY for the purpose of implementing AB 109 services. NOW, THEREFORE, in respect of the mutual promises contained herein, the Parties hereto agree as follows: 1. OBLIGATIONS OF THE COUNTY COUNTY shall compensate and remit to CONTRACTOR, as provided herein an amount equal to the cost of one (1) City of Fresno Police Officer (“Police Officer”) for assignment to the ACT, not to exceed, in aggregate, the maximum amount payable under this - 2 - 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 of One Hundred Seventy-Eight Thousand Eight Hundred Thirty-Eight dollars ($178,838). 2. OBLIGATIONS OF THE CONTRACTOR CONTRACTOR shall assign one (1) Police Officer to be responsible for fulfilling the responsibilities of an ACT member, as set forth in the AB 109 PLAN, including by way of example, pages 15 and 16 of the 2011 version thereof, and in accordance with the ACT Operational Guidelines and Procedures, both attached hereto as Exhibits “A” and “B”, respectively, and incorporated herein by reference. In the event that the AB 109 PLAN is revised by the CCP, and approved by the Fresno County Board of Supervisors, the responsibilities of the Police Officer under this Agreement may be modified accordingly. Should such modification result in additional costs to CONTRACTOR, the maximum reimbursement for services rendered under this Agreement by CONTRACTOR may only be increased in accordance with Section 7 of this Agreement. 3. TERM This Agreement shall become effective July 1, 2015 and shall terminate on June 30, 2016. 4. TERMINATION A. Non-Allocation of Funds - The terms of this Agreement, and the services to be provided thereunder, are contingent on the approval of funds by the appropriating government agency. Should sufficient funds not be allocated, the services provided may be modified, or this Agreement terminated by COUNTY, at any time, by giving the CONTRACTOR not less than thirty (30) days advance written notice. B. With or Without Cause – COUNTY or CONTRACTOR may immediately terminate this Agreement by delivering not less than sixty (60) days advance written notice to the other party. In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach of this Agreement or any default which may then exist on the part of the CONTRACTOR. Neither shall such payment impair or prejudice any remedy available to the - 3 - 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 COUNTY with respect to the breach or default. The COUNTY shall have the right to demand of the CONTRACTOR the repayment to the COUNTY of any funds disbursed to the CONTRACTOR under this Agreement, which in the judgment of COUNTY were not expended in accordance with the terms of this Agreement. CONTRACTOR shall promptly refund any such funds upon demand. 5. COMPENSATION/INVOICING COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive compensation as follows: CONTRACTOR shall submit quarterly invoices for actual expenditures to the County of Fresno Probation Department at: ProbationInvoices@co.fresno.ca.us. Invoices must be submitted on or after the dates of October 1, 2015 and January 1, April 1, and July 1, 2016, respectively, and include a breakdown of expenses identified in the final approved budget of the CCP in the County of Fresno for use in executing the mission of ACT. COUNTY shall make payment within 45 days of receipt of invoice. Upon any termination of this Agreement, CONTRACTOR shall be compensated for costs incurred under this Agreement, up to and including the date of termination. The terms of this Section 5 shall survive the expiration or earlier termination of this Agreement. In no event shall compensation of costs for services performed under this Agreement be in excess of One Hundred Seventy-Eight Thousand Eight Hundred Thirty-Eight dollars ($178,838). 6. INDEPENDENT CONTRACTOR The parties are acting in an independent capacity with respect to the performance of their respective obligations under this Agreement. Each of the parties agrees that it, including any and all of its officers, agents, and/or employees, shall have absolutely no right to employment rights and benefits available to the other party’s employees. Each party shall be solely liable and responsible for providing to, or on behalf of, its own officers, agents, and/or employees all legally and contractually required employee benefits. In addition, each party shall be solely responsible and save the other party harmless from all matters relating to payment of - 4 - 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 each party’s employees, including, but not limited to, compliance with applicable social security withholding and all other regulations governing such matters. Further and without limitation, each party to this Agreement will be responsible for its own actions in performance of their respective obligations under this Agreement. CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the rules and regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof. 7. MODIFICATION Any matters of this Agreement may be modified from time to time by the written consent of all the parties without, in any way, affecting the remainder. 8. NON-ASSIGNMENT Neither party shall assign, transfer or sub-contract this Agreement nor their rights or duties under this Agreement without the prior written consent of the other party. 9. HOLD HARMLESS CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs and expenses, damages, liabilities, claims, and losses, including attorney’s fees and costs, occurring, resulting, or arising from the negligent or wrongful performance, or failure to perform, by CONTRACTOR, or its officers, agents, or employees of obligations agreed to be performed under this Agreement. COUNTY agrees to indemnify, save, hold harmless, and at CONTRACTOR'S request, defend the CONTRACTOR, its officers, agents, and employees from any and all costs and expenses, damages, liabilities, claims, and losses, including attorney’s fees and costs, occurring, resulting, or arising from the negligent or wrongful performance, or failure to perform, by COUNTY, or its officers, agents, or employees of obligations agreed to be performed under this Agreement. 10. INSURANCE It is understood and agreed that, without limiting the right of either party to - 5 - 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 obtain indemnification from the other party or any third parties, CONTRACTOR and COUNTY shall maintain insurance policies or self-insurance programs to fund their respective liabilities. Evidence of Insurance, e.g., Certificates of Insurance or other similar documentation, shall not be required of either party under this Agreement. 11. AUDITS AND INSPECTIONS The CONTRACTOR shall at any time during business hours, and as often as the COUNTY may deem necessary, make available to the COUNTY for examination all of its records and data with respect to the matters covered by this Agreement. The CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all of such records and data necessary to ensure CONTRACTOR'S compliance with the terms of this Agreement. If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject to the examination and audit of the Auditor General for a period of three (3) years after final payment under contract (Government Code Section 8546.7). 12. NOTICES The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY CONTRACTOR COUNTY OF FRESNO Rick Chavez, Chief Probation Officer 3333 E. American Avenue, Suite B Fresno, CA 93725 CITY OF FRESNO Jerry Dyer, Chief of Police 2323 Mariposa Mall Fresno, CA 93721 Any and all notices between the COUNTY and the CONTRACTOR provided for or permitted under this Agreement or by law shall be in writing and shall be deemed duly served when personally delivered to one of the parties, or in lieu of such personal services, when deposited in the United States Mail, postage prepaid, addressed to such party. 13. GOVERNING LAW The rights and obligations of the parties and all interpretation and performance of this Agreement shall be governed in all respects by the laws of the State of California. Venue for any action arising out of or related to this Agreement shall only be in Fresno County, California. - 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 14. CUMULATIVE REMEDIES No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 15. SEVERABILITY In the event any provisions of this Agreement are held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement will nevertheless continue in force and effect without being impaired or invalidated in any way. 16. WAIVER The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No waiver of a party’s breach of any provision of this Agreement shall be effective unless the waiver is in writing and signed by the party against whom the waiver is sought to be enforced. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 17. INTERPRETATION The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 18. NO THIRD PARTY BENEFICIARIES Nothing set forth in this Agreement shall create any legal rights in any person not a party to this Agreement. 19. EXHIBITS Each exhibit and attachment referenced in this Agreement is, by reference, incorporated into and made a part of this Agreement. / / / 1 2 3 4 5 6 7 8 9 10 11 20. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all previous Agreement negotiations, proposals, commitments, writings, advertisements, publications, and understandings of any nature whatsoever unless expressly included in this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first hereinabove written.· COUNTY OF FRESNO Ernest Buddy Mendes Chairman, Board of Supervisors 12 DATE: DATE: 13 14 15 16 17 18 19 20 21 22 23 24 25 -26 27 28 ATTEST: Yvonne Spence; CMC City Clerk, City of Fresr:10 ATTEST: Bernice E. Seidel, Clerk Board of Supervisors BY: 72?aA.oo--~-W ~~ tit I I I~ ==BY:_:_:---""""~~~=----=~""--'~ =· '--'-=-If"-------+ Deputy . · · · · Date Deputy APPROVED AS TO FORM: Douglas T. Sloan City Attorney, City of Fresno s/2~~ J-;;7{.-.~ /..2j;aj;r ~manda B. Freeman Date Deputy City Attorney -7- Exhibit B 1 AB 109 The Criminal Justice Realignment Act Adult Compliance Team (ACT) February 2012 OPERATIONAL GUIDELINES AND PROCEDURES Fresno County Probation Department Fresno County Sheriff’s Department Fresno County District Attorney’s Office Fresno Police Department Clovis Police Department Reedley Police Department Selma Police Department 2 I. PURPOSE This document establishes the purpose of the Adult Compliance Team (ACT) as a joint and cooperative effort. Additionally, it formalizes relationships between participating agencies for policy and planning in order to create a cooperative unit capable of addressing the public safety concerns and issues facing local law enforcement in Fresno County regarding probation, post release community supervision (PRCS), and mandatory supervised release that may occur due to the passage of the Criminal Justice Realignment Act (AB 109) effective October 1, 2011. II. MISSION The mission of ACT is to provide an additional layer of offender supervision to ensure offender accountability, surveillance, and supervision through mobile, intensive and evidence based practices leading to enhanced public safety and offender compliance. III. GOALS A. To reduce the occurrence of new criminal acts by targeting offenders on probation, post release community supervision, and mandatory supervised release with intensive surveillance by peace officers dedicated to enforcement of conditions of release. B. To identify supervised offenders who are not meeting their conditions of release in order to ensure compliance. C. To mitigate the need for custodial sanctions through appropriate early interventions. D. To document trends in the realignment population and respond efficiently to emerging trends that adversely affect public safety. E. To gather, collect, and provide information and direction regarding the post release community supervision (PRCS) and realignment populations for all law enforcement agencies in the County of Fresno and act as the point of contact for dissemination of offender information to law enforcement. F. To respond rapidly to emergency situations with knowledge and information about the offenders. G. To provide other public safety responses including searches as authorized by the terms of release and warrant services, as needed. IV. GENERAL OPERATIONAL STRATEGIES Intensive supervision based on offender assessment, enjoined with evidence based practices, forms the cornerstone of the Fresno County AB 109 supervision model. This intensive approach is seen in the formation of ACT; an interagency public safety allian ce with local law enforcement agencies and county justice partners that provides an additional level of offender 3 accountability and public safety. The “strike team” concept is used to describe peace officers under ACT, dedicated to particular enforcement and public safety purposes, with an immediate capacity to take action with offenders under probation supervision, post release community supervision (PCRS), and mandatory supervised release by the Fresno County Probation Department. To this end, the participating agencies developed these operational guidelines and procedures concerning the formation of the Adult Compliance Team. The participating agencies agree jointly and separately to abide by these terms and provisions set forth throughout the formation of the joint operation. V. ORGANIZATIONAL STRUCTURE The Adult Compliance Team will be co-located at the Fresno County Probation AB-109 Unit. The team will be under the administrative direction of the Probation Division Director who maintains responsibility for the Adult Probation Field operations. The team will consist of sworn officers from the following agencies: two (2) deputy probation officers from the Fresno County Probation Department; one (1) police officer from the Fresno Police Department; one (1) police officer from the Clovis Police Department; one (1) police officer from the Reedley Police Department; one (1) police officer from the Selma Police Department; one (1) senior district attorney investigator from the Fresno County District Attorney’s Office; and one (1) sergeant from the Fresno County Sheriff’s Department. Dependent upon future funding, the size of ACT may fluctuate according to the number of officers and agencies. Under the policy and planning direction of the Community Corrections Partnership (CCP), ACT will utilize an Advisory Sub-Committee of CCP. A. Policy and Direction The CCP Executive Committee will establish policy and set direction for ACT consistent with the Mission and Goals stated in this document. B. ACT Advisory Sub-Committee of the CCP Each law enforcement agency that assigns personnel to ACT may designate a member to the ACT Advisory Sub-Committee of the CCP. All law enforcement agencies operating within the county with an interest in ACT are welcome to attend the meetings of the ACT Advisory Sub- Committee. Appointments to and removal from the ACT Advisory Sub-Committee and appointment of a Sub-Committee Chairperson will be made by the CCP Executive Committee. C. Operations Commander 4 The assigned Fresno County Sheriff’s Department Sergeant will be the day-to-day operations commander and responsible for overall coordination of tactical field operations. The Operations Commander has overall responsibility for the operation of ACT. The Operations Commander is accountable to the CCP Executive Committee for implementing direction set by them. The Operations Commander will liaison with individual members of the ACT Advisory Sub-Committee, and will attend meetings of the CCP as required. D. Probation Department All probation conditions and release compliance remains the responsibility of the AB 109 probation officer assigned to a specific offender. These conditions are predetermined before release from custody to probation, post release community supervision or mandatory supervised release. The offenders will be under the supervision of their assigned probation officer or ACT probation officer. VI. OPERATIONS A. Supervision and Field Responsibility The use of surveillance, supervision, and field contacts will be established in conjunction with Fresno County Probation Department policies and as established by the CCP Executive Committee, ACT Advisory Sub-Committee, and policies and procedures of general law enforcement accepted practices as established by statute and case law. B. Records and Reports All reports created by ACT related to contacts with those offenders under probation supervision, post release community supervision, and mandatory supervised release will be entered into the Adult Probation System (APS). All agencies participating on the ACT will have full access to Sharenet and the information in APS. Information sharing with other law enforcement agencies regarding offenders under probation supervision, post release community supervision, and mandatory supervised release allowing for appropriate law enforcement response is a priority for ACT. Any additional crime, arrest, or incident report will be documented by the primary investigative officer through the use of their own departmental report writing system. VII. ADMINISTRATION A. Financial Administration Financial administration of ACT funds allocated by the CCP Executive Committee will be the responsibility of the Fresno County Probation Department Business Office through the duration of the program. In addition, the allocation and management of funds are guided by Fresno 5 County Fiscal Policy and under the review quarterly of the CCP Finance and Audit Sub- Committee for presentation to the CCP. B. Vehicles Vehicles will be provided for probation staff and for participating law enforceme nt officers as specified in the final approved budget of the CCP and Fresno County, for use in executing the mission of ACT. C. Communications Each participating law enforcement agency will provide communications equipment for its own personnel. Each agency is responsible for its interagency communication operability. The policies and procedures of each agency will govern communication by its own personnel. The Fresno County Sheriff’s Dispatch will be the primary contact for operations of ACT D. Firearms Each participating law enforcement agency will provide all necessary firearms for its own personnel. The policies and procedures of each agency will govern the use of firearms by its own personnel. E. Equipment and Property Any property, equipment or other items acquired with funds allocated by the CCP Executive Committee shall be the property of ACT. Upon termination of participation in ACT, each agency shall return all property of ACT, which shall be distributed as determined by the CCP Executive Committee. F. Training ACT assigned officers will complete training as required by their respective agencies and as approved by the Operations Commander and each law enforcement agency. Training will include training in Evidence Based Practices defined as supervision policies, procedures, programs, and practices demonstrated by scientific research to reduce recidivism among individuals under probation, parole, or post release community supervision. G. Personnel Management The selection of ACT members will be made by each participating agency. If any ACT policies and procedures conflict with any of the participating agencies’ policies and procedures, notice of said conflict shall be immediately given to a supervisor. The supervisor will take whatever action necessary to reconcile the conflict. 6 Each participating agency retains full responsibility for the professional and personal conduct of its own personnel assigned to ACT. Each participating agency will follow their agency directives/MOU for working modified schedules. VIII. MULTI-AGENCY ADMINISTRATIVE CONCERNS All ACT personnel will conform to their own agencies’ policies and procedures as well as policies and procedures that may be required by participation in ACT. There are a number of administrative issues or situations pertaining to individual team members which will, or may, arise. Those include, but are not limited to: a. Citizen Complaints b. Employee Evaluations c. On-Duty Motor Vehicle Accidents d. Injuries Sustained on Duty e. Officer-Involved Shooting f. Discharge of Firearm g. Vehicle Pursuits h. Use of Force Each participating team member’s agency has in place an administrative process for addressing the situations listed above. Should these situations occur, ACT will immediately notify the involved officer’s agency. It will remain the responsibility of the involved officer’s agency to address those situations pursuant to their own administrative process. All agencies involved in a critical incident will have the opportunity to observe other agency interviews with their own employees. IX. AMENDMENT Any member of the ACT Advisory Sub-Committee may propose an amendment to these Operational Guidelines and Procedures by submitting it at any regular meeting of the ACT Advisory Sub-Committee. The proposed amendment would be submitted to the Executive Committee of the Community Corrections Partnership for their approval. X. TERMINATION OF PARTICIPATION An agency shall terminate participation in the following manner: delivery of written notice to COUNTY, to the Chairperson of the CCP Executive Committee and to all other participating agencies, with termination to be effective 60 days after delivery to COUNTY.