Loading...
HomeMy WebLinkAboutAGMT - Cypress, Los Alamitos & West-Comm (Shared Use of Vehicle) AGREEMENT BETWEEN THE CITY OF CYPRESS, THE CITY OF LOS ALAMITOS, THE CITY OF SEAL BEACH AND WEST CITIES COMMUNICATIONS CENTER JOINT POWERS AUTHORITY FOR SHARED USE OF A MOBILE COMMAND VEHICLE This SHARED USE AGREEMENT ("Agreement") is entered into this day of , 2009, by and between the CITY OF CYPRESS, a charter city and municipal corporation ("Cypress"), the CITY OF LOS ALAMITOS, a charter city and municipal corporation ("Los Alamitos"), the CITY OF SEAL BEACH, a charter city and municipal corporation ("Seal Beach") and West Cities Communications Center Joint Powers Authority ("West-Comm"). The three cities are individually referred to hereunder as "City" and collectively as "Cities." The Cities and West-Comm are individually referred to hereunder as "Party" and collectively referred to as "Parties." RECITALS A. The Cities are municipal corporations duly organized and validly existing under the Constitution and laws of the State of California and their respective charters, if any. B. The Cities are in possession of a Mobile Command Vehicle ("MCV") acquired to strengthen regional response capabilities and to enhance countywide emergency preparedness. C. The federal Depaitment of Homeland Security, Office of Domestic Preparedness, through the State of California, Office of Homeland Security, through the FY2005 Urban Area Security Initiative Grant Program ("Grant Program") establishes "Urban Areas." The Cities are located within the Anaheim Urban Area ("AUA") (also referred to as the North Orange County Urban Area). D. The City of Anaheim received certain grants, in accordance with the Grant Program, which were used to purchase the MCV in 2006. E. The MCV was subsequently transferred to the Cities by the City of Anaheim in accordance with the agreement attached hereto as Exhibit "A", and incorporated herein by reference. F. The Parties enter into this Agreement with the intent to address and coordinate ownership, liability, duties, responsibilities, and costs related to the shared use of the MCV by the Cities' law enforcement agencies in the furtherance of homeland security efforts. G. In an effort to increase the service life of the MCV and maintain the MCV in a condition of readiness for deployment, the MCV will be stored by Cypress. Los Alamitos and Seal Beach will each reimburse Cypress for providing maintenance, operation and repair to the MCV, on an annual basis. - 1 - • \ • H. Pursuant to Section 9 of this Agreement the Cities will obtain a vehicle insurance policy to serve as primary coverage for the MCV and each City will pay equal shares for the policy, by reimbursing the City designated as the lead insurance carrier who has secured the insurance policy, prior to the time the annual and /or monthly premium is due. I. The Parties acknowledge that authorized drivers may include dispatchers employed by West -Comm. The Parties acknowledge and agree that any authorized driver employed by West -Comm shall be provided insurance by and through West -Comm. J. The Cities do not intend this Agreement to be a joint powers agreement, nor do they intend to create through this Agreement a joint powers agency or entity as such terms are defined in the Joint Exercise of Powers Act, California Government Code Sections 6500, et seq. AGREEMENT NOW THEREFORE, the Parties agree to the following: Section 1. Purpose The purpose of this Agreement is to set forth the respective responsibilities of the Parties and the Cities respective law enforcement agencies: the Cypress Police Department, the Los Alamitos Police Department and the Seal Beach Police Department. This Agreement sets forth policy, guidance, and planning, in order to maximize interagency coordination and cooperation for the purpose of sharing and using the MCV purchased with homeland security grant funds. The Parties jointly and separately agree to abide by the terms and provisions of this Agreement throughout the duration of this Agreement. Section 2. Ownership Each City is a joint owner with a one -third (1/3) ownership interest in the MCV. Section 3. Cities' General Responsibilities (a) The responsibility of the Cities is to take a unified approach toward the administration, maintenance, and shared use of the MCV. (b) The Cities are jointly responsible for ensuring that any licenses, permits and approvals which may be required by law or the Grant Program are valid and current. To comply with the law, Cypress registered the MCV with the Department of Motor Vehicles. The Cities acknowledge that Cypress does not incur any additional liability or responsibility with regard to the MCV by virtue of this registration. The Cities remain jointly liable for ensuring that all licenses, permits and approvals, including the registration with the DMV remain valid and current. (c) The Parties shall exercise due care to preserve and safeguard the MCV from damage and destruction. -2- • • (d) The Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. (e) The Parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. (f) The Parties acknowledge and agree they are bound by all applicable provisions of the Grant Program and the attached Exhibit "A." Section 4. Maintenance and Storage of MCV (a) Cypress' Responsibilities Cypress will: (1) Maintain and store the MCV in a condition of readiness, coordinate use of the MCV and maintain the MCV's costs and maintenance records. (2) Determine the manner for procuring a service provider to maintain the MCV. (3) Provide MCV maintenance service through its fleet division. Such maintenance shall be consistent with any warranty or owners manual for the MCV. (4) Provide an annual cost statement to serve as a bill for cost of services. (b) Los Alamitos and Seal Beach's Responsibilities Los Alamitos and Seal Beach will: (1) Each pay to Cypress, on a bi- annual basis, one -third (1/3) the costs for the maintenance, operation and repair of the MCV. Said payment shall be made to Cypress within thirty (30) days of receipt of an invoice or annual cost statement from Cypress. Section 5. Shared Use and Cost Sharing of MCV (a) Should the Grant funds, or payments as provided in Section 4 above, fail to cover any costs associated with the MCV, not specifically addressed in this Agreement, each City will share in the costs associated with the MCV on a one third (1/3) basis. All costs incurred shall be subject to prior written approval by the Cities. (b) The Cities shall utilize the MCV primarily as a resource within the Cities or the AUA, however, in the event of a major disaster or terrorist act requiring mutual aid, it may be taken to another area outside of the Cities or AUA as long as the MCV remains under the operation and control of the Cities' employees. -3- • • (c) No Party shall permit anyone to drive the MCV unless they are an authorized driver, except as provided herein. The Parties agree that all authorized drivers of the MCV shall have a Class B driver's license and shall have completed the training program as may be required by any protocols established by the Cities. Notwithstanding the foregoing, all Cities acknowledge that City employees responsible for maintenance of the MCV will occasionally drive the vehicle solely for the purposes of storage, repair and maintenance. In addition, the Cities acknowledge that authorized drivers of the MCV need not be sworn officers but may include dispatchers or other authorized personnel. Any and all authorized users shall be insured in accordance with Section 9. (d) No Party shall permit anyone to use or otherwise operate the MCV or any device or equipment of or related to the MCV unless they are authorized to do so. All authorized users shall undergo any training required by any protocols established by the Cities. (e) All Cities agree that no City shall incur any additional liability for providing training or establishing protocols as it relates to the use of the MCV. Section 6. Final Disposition of MCV Upon expiration or termination of this Agreement, the Cities shall mutually agree upon the physical disposition of the MCV (and any related equipment, if any), in accordance with the terms of the Grant Program and in accordance with the instructions of the City of Anaheim as required by the agreement attached hereto as Exhibit "A." Any proceeds from the sale of the MCV or related equipment, after any refund of Grant monies (if required), shall be shared equally amongst the Cities. Any unamortized value of the MCV or related equipment shall be determined and shared equally between the Cities by payment of one -third (1/3) of said value to each of the other Cities, by the City that retains possession of the MCV or related equipment. This paragraph shall survive expiration or termination of this Agreement. Section 7. Term of Agreement (a) The term of this Agreement shall commence on and terminate per the terms in paragraph (a)(1) of this Section, or when the vehicle becomes permanently inoperable or unserviceable. (1) A Party may withdraw from this Agreement by providing ninety (90) days written notice to the Parties as provided in Section 12 below. Withdrawal shall not relieve the Party from any obligation incurred under this Agreement,prior to withdrawal. A City that withdraws from this Agreement shall still be responsible for its share of expenses until the end of that fiscal year. (2) Failure to meet the responsibilities by any City will result in loss of use of the MCV in non - emergency circumstances. The vehicle may be requested as mutual aid during emergency situations if operated by a City compliant to this Agreement. 4- Section 8. Indemnification (a) Each Party to this Agreement shall be solely liable for, and shall indemnify, defend and hold harmless the other Parties and each of their officers, officials, employees, agents and volunteers ( "Indemnitees ") from, any and all loss, liability, errors, obligations, fines, penalties, forfeitures, costs and damages to persons or property (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by any of the Indemnitees, the indemnifying party or any other person, and from any and all claims, suits, demands and actions in law or equity (including attorneys fees and litigation expenses), arising directly or indirectly from: (1) The active negligence or intentional acts or omissions of the indemnifying party or any of its officers, officials, employees, agents or volunteers in the performance of this Agreement; or (2) The ownership, maintenance, operation or use of the MCV or any related equipment when in the care, custody and control of the indemnifying party. (b) It is the intent of the Parties that, where negligence is determined to have been contributory, principles of comparative negligence will be followed and each Party shall bear the proportionate cost of any loss, liability, fines, penalties, forfeitures, costs and damages, expense and liability attributable to that Party's negligence. (c) Each Party shall notify the other Parties, in accordance with Section 12 below, of any claims, administrative actions or legal actions with respect to any of the matters described in this indemnification provision. The Parties shall cooperate in the defense of such actions brought by others with respect to the matters covered in this Agreement. Nothing set forth in this Agreement shall establish a standard of care for, or create any legal rights in, any person not a party to this Agreement. (d) It is expressly understood and agreed that there are inherent risks in the operation of the MCV and that each Party assumes those risks by entering into this Agreement. (e) This Section shall survive termination or expiration of this Agreement. Section 9. Insurance (a) The Cities agree to share the cost of obtaining and maintaining insurance for the MCV including the monthly and /or annual payments required for maintaining insurance. Each City will be responsible for paying one -third (1/3) the cost of the insurance. Prior to when an insurance payment is due, the City designated as the lead insurance carrier shall issue to the other two Cities a request for funds. The City designated as the lead insurance carrier agrees to provide to the other two Cities with a copy of the insurance policy. After consultation among all Cities, the City designated as the lead insurance carrier agrees to notify the other Cities in the -5- • event there are any alterations or modifications to the insurance policy or premiums. For the purposes of this Agreement, the "City designated as the lead insurance carrier" shall mean the City that obtains and maintains the insurance coverage on the MCV. (b) West -Comm agrees to provide and maintain insurance for any of its employees which are authorized drivers or any employee which may otherwise use or operate the MCV. Said insurance coverage shall be provided to the satisfaction of the Cities and proof of the insurance coverage shall be provided when requested by the Cities. Section 10. Independent Contractor (a) In performance of the work, duties and obligations assumed by each Party under this Agreement, it is mutually understood and agreed that each Party, including any and all of its officers, agents, and employees will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee, joint venturer, partner, or associate of any other Party. Furthermore, no Party shall have the right to control or supervise or direct the manner or method by which any other Party shall perform its work and function. However, each Party shall retain the right to administer this Agreement so as to verify that the other Parties are performing their respective obligations in accordance with the terms and conditions thereof. (b) The Parties 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. (c) Because of its status as an independent contractor, a Party shall have absolutely no right to employment rights and benefits available to any other Party's employees. Each Party shall be solely liable and responsible for providing to, or on behalf of, its employees all legally required employee benefits. In addition, each Party shall be solely responsible and save the other Parties harmless from all ma tters relating to payment of its employees, including compliance with Social Security withholding and all other regulations governing such matters. (d) Each Party retains full responsibility for the professional and personal conduct of its own personnel. Each Party will remain responsible for establishing and assuming all personnel costs, including salaries, fringe benefits, overtime, Worker's Compensation Insurance and training for assigned personnel. Section 11. Maintenance of Records Each Party shall maintain all books, documents, papers, accounting records, and other evidence pertaining to the performance of this Agreement and any addenda, including but not limited to, the costs of administering the Agreement. The Parties shall make such materials available at their respective offices at all reasonable times during the term of this Agreement. Each Party and any duly authorized representative of the state or federal government that has provided funding for any acquisition or activities under this Agreement shall have access to . any books, -6- • • records, and documents of the Cities that are pertinent to the Agreement for audits, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested. This paragraph shall survive termination of this Agreement. Section 12. Notice Any notice, demand, request, document, consent, approval, or communication any Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first -class mail, to the Chief of Police as follows: Cypress Police Department Attn: Chief Mark Yokoyama 5275 Orange Avenue Cypress, CA 90630 Los Alamitos Police Department Attn: Chief Todd Mattem 3201 Katella Avenue Los Alamitos, CA 90720 Seal Beach Police Department Attn: Chief Jeff Kirkpatrick 911 Seal Beach Boulevard Seal Beach, CA 90740 Notice shall be deemed communicated at the time personally delivered or seventy -two (72) hours from the time of mailing if mailed as provided in this Section. Section 13. Non - waiver Waiver of any breach or default hereunder will not constitute a continuing waiver or a waiver of any subsequent breach, of either the same or another provision of this Agreement. Section 14. Severability In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. -7- • • Section 15. 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 any Party, but rather by construing the terms in accordance with their generally accepted meaning. Section 16. Legal Action and Governing Law (a) In addition to any other rights or remedies, any Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. (b) The interpretation and enforcement of this Agreement will be governed by the laws of the State of California and where applicable, by federal law. The Parties agree to submit any disputes arising under this Agreement to a court of competent jurisdiction located in Orange County, California. Section 17. Attorney's Fees If any Party to this Agreement is required to initiate, defend or made a Party to any action or proceeding in any way connected with this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a Party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such action or proceeding. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. Section 18. No Third Party Beneficiaries The rights, interests, duties and obligations defined within this Agreement are intended for the specific Parties hereto as identified in the preamble of this Agreement. It is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. Section 19. Assignment, Transfer, and Entrustment No Party shall assign, transfer, hypothecate or encumber voluntarily or by operation of law, whether for the benefit of creditors or otherwise, its rights or obligations under this Agreement, or its ownership interest in the MCV, except as expressly provided in this Agreement. No Party shall entrust the MCV to the care, custody or control of any third party, without prior written approval of the Cities, except for the sole purpose of repairing the MCV. -8- • • Section 20. Extent of Agreement; Integration; Amendment It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing. Section 21. Authority The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. IN WITNESS WHEREOF, the Parties have caused this Agreement to be entered into effective on the date last executed hereinafter. City of Cypress By: oug s Bailey, ayor ATTESTED: �C By: 1 F 'LLoiL4t Y City Clerk APPROVED AS TO FORM: Aleshire & Wynder, LLP By: Lam. City Atto '* -9- City of Los Alamitos By: , Mayor ATTESTED: By: City Clerk APPROVED AS TO FORM: Best Best & Krieger, LLP By: City Attorney City of Seal Beach By: aLr David Carmany ,A4saj�x City Manager ATTESTED: By: #11 [,:: A\ JL„ City Clerk APPROVED AS TO FORM: By: ea.W/ City Attorney - 1 0 - • • West Cities Communications Center Joint Powers Authority By: ATTESTED: By: APPROVED AS TO FORM: By: [END OF SIGNATURES] - 11 -