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HomeMy WebLinkAbout2009-04-28 - AGENDA REPORTS - TOLLING AGMT (2)Agenda Item: i 3 CITY OF SANTA CLARITA AGENDA REPORT UNFINISHED BUSINESS City Manager Approval: j Item to be.presented by: Ken Pulskamp DATE: April 28, 2009 SUBJECT: TOLLING AGREEMENT DEPARTMENT: City Manager's Office RECOMMENDED ACTION City Council approve and authorize the City Manager to execute a Tolling Agreement between the County of Los Angeles, including its Sheriff, and Sheriff Department on the one hand and the California Contract Cities Association, the Liability Trust Fund Oversight Committee and each of the cities that contract with the County for municipal law enforcement services provided by the Los Angeles County Sheriffs Department on the other hand, for the purpose of continuing discussions to return the Liability Trust Fund monies used for settlements in relation to inappropriate behavior on behalf of the Los Angeles County Sheriff's Department Deputies. BACKGROUND Asa contract city, the City of Santa Clarita contracts with the Los Angeles County Sheriffs . Department (hereafter "LASD") for law enforcement services. The City's contract with LASD includes a 6% surcharge that is deposited into a Liability Trust Fund (LTF). This Trust Fund was established to pay for liability issues associated with the LASD's delivery of services to cities under contract. The County of Los Angeles has financial control over this Fund. The County is authorized to determine what portions of County overhead and which claims, that are attributable to contracted services, may be charged to this Fund. Customarily, when a claim or lawsuit regarding law enforcement services in a contract city is presented to the County, it is forwarded to LASD for investigation in the matter. In turn, the LASD will make a recommendation to County Counsel as to the proper attribution of liability. In order to determine which liabilities are within the scope of the agreement for use of the LTF, the LASD has long used a three-point test which questions whether an act was: APPROVED • Performed due to a contractual service. Occurred in a Contract City. Occurred during routine Contract City business. Examples of cases that would meet the three-point test criteria include cases such as excessive force allegations arising during an arrest of combative suspects or alleged violations of civil rights in carrying out a contractual function. Previously, the LTF has been used to pay for issues involving traffic collisions, wrongful shootings, and other issues directly related to the provision of law enforcement provided in contact cities. However, in 2006 California Contract Cities Association became aware that the County of Los Angeles used the LTF to pay for claims that the California Contract Cities Association feels is an inappropriate use of funds. These funds were used to pay for three settlements regarding improper behavior of a deputy who raped and sexually assaulted three women during the period from March 2002 to January 2003. California Contract Cities Association has argued that the liability for the conduct of the deputies, who clearly acted outside of the course and scope of their duties, such as committing sex crimes or any other type of criminal activity, does not fall upon contract cities or the LTF. To date, approximately $5.7 million has been withdrawn from the LTF for the three claims involving the rape and sexual assault by the Sheriffs Deputy. The past practice and understanding between the County of Los Angeles, LASD and contract cities has been that the County bears the liability for cases of criminal conduct by Sheriffs Deputies. In addition to costs, this is the reason why many contract cities find contract law enforcement so appealing. In September 2007, California Contract Cities Association filed a claim against the County seeking return of the funds that were used towards the settlements. The County did not reject the claim within the time allowed under the Government Code, so the claim was deemed rejected by operation of law. Since the time has passed and California Contract Cities Association and the County of Los Angeles have not been able to come to an amicable agreement, California Contract Cities Association has initiated a Tolling Agreement which will provide both parties an additional year to come to a resolution. The Tolling Agreement also gives contract cities the right to file a lawsuit in the event that the issue is not resolved through discussions. The County has agreed to sign the Tolling Agreement as well. At this point, a majority of contract cities, such as the City of Santa Clarita, need to also sign the agreement. According to the California Contract Cities Association, they are unaware of any member cities that are opposed to the Tolling Agreement. ALTERNATIVE ACTIONS 1. Do not approve and do not authorize the City Manager to execute the Tolling Agreement. 2. Other action as determined by Council. __Z FISCAL IMPACT There is no direct fiscal impact on the City of Santa Clarita by this action. ATTACHMENTS California Contract Cities Association Tolling Agreement 3 TOLLING AGREEMENT This Tolling Agreement ("TOLLING AGREEMENT") is effective, made and entered as of March 1, 2009, by and between the COUNTY OF LOS ANGELES ("COUNTY"), including its SHERIFF ("SHERIFF"), and, Sheriff's Department ("LASD") on the one hand and the CALIFORNIA CONTRACT CITIES ASSOCIATION ("CCCA"), the LIABILITY TRUST FUND OVERSIGHT COMMITTEE ("LTFOC") and each of the cities that contract with the COUNTY for municipal law enforcement services provided by the LASD (hereafter "CONTRACT CITIES") on the other hand. RECITALS A. The COUNTY is a duly formed, existing and operating governmental entity authorized by the Constitution of the State of California. The SHERIFF is the duly elected peace officer for the County of Los Angeles and is the chief law enforcement officer of the LASD. B. Each of the CONTRACT CITIES is a lawfully created, existing and operating public entity under the laws of the State of California, within the County of Los Angeles. Each of the CONTRACT CITIES, together with cities from other counties, are members of the CCCA, which is an association created and operated for their mutual benefit and to promote the interests of its member cities. C. In the early 1970s various cities within the borders of the COUNTY entered into agreements with the COUNTY, whereby the COUNTY would provide services to the cities in exchange for payment. Included within these services were municipal law enforcement services. The form of the agreements varied by city and took the form of an ASSUMPTION OF LIABLITY AGREEMENT, JOINT INDEMNITY AGREEMENT. In addition, the Cities and the CWNTY executed specific agreements whereby the LASD would provide law enforcement services. The latter agreernents took the form of CITY -COUNTY MUNICIPAL LAW ENFORCEMENT SERVICES AGREEMENTS, the exact terms of which varied by city. Each of the foregoing agreements were executed, and from time to time renewed, separately by each city and the County. Supplementing these agreements was a letter form Memorandum of Understanding dated May 19, 1999. All of these agreements . shall be cumulatively referred to herein as THE AGREEMENTS. While the terms of these AGREEMENTS may have varied from city to city, and from time to time, the purposes and essential terms were essentially identical. D. Pursuant to the terms of the AGREEMENTS, as modified and amended over time, the parties agreed that a LIABILITY TRUST FUND would be established to pay for various expenses and losses associated with the services rendered by the LASD to the CONTRACT CITIES. A claims board was TOLLING AGREEMENT Page 1of14 established to oversee the use of the funds for payment of claims made arising out of the services rendered by county employees to the CONTRACT CITIES known as the LIABILITY TRUST FUND CLAIMS BOARD. A committee of the CCCA was empanelled and empowered to oversee the operations of the LIABILITY TRUST FUND and to make recommendations regarding claims and operations of the LIABILITY TRUST FUND: E. In 2002 and 2003 a Sheriff's Deputy committed three known acts of sexual assault during a period when he was assigned by the LASD to provide contract law enforcement services as a contract item pursuant to one or more of the AGREEMENTS (the three known acts of sexual assault shall be referred to as the "INCIDENTS"). The term "contract item" shall have the meaning provided in the AGREEMENTS. Over the objection of the CCCA, LTFOC and the LTFCB, the COUNTY withdrew funds from the LTF to reimburse itself for the costs of settling two INCIDENTS on or about March 31, 2007 and the third in or about December 2008 and advised the CCCA in March 2009 (the "WITHDRAWALS"). F. A dispute has arisen between the COUNTY, on the one hand, and the CCCA, CONTRACT CITIES, and the LTFOC, on the other, with regard to who bears the responsibility under the AGREEMENTS and applicable law to satisfy the legal liability(ies), losses, expenses, settlements and costs for the criminal acts committed by Sheriff's Deputies when those acts are committed while they are assigned to provide contract law enforcement services under one or more of the AGREEMENTS, the propriety of the WITHDRAWALS and the respective obligations, if there are any, of the COUNTY and the CONTRACT CITIES to indemnify each other for losses, expenses, claims and settlements, among other things, related to the criminal acts of its employees while providing services under one or more of the AGREEMENTS. On September 27, 2007 the CCCA and the LTFOC filed a claim (the ".CLAIM") with the COUNTY related to the WITHDRAWALS. (All of the foregoing shall be collectively referred to as the "DISPUTES"). G. The parties wish to provide additional time to address their DISPUTES before undertaking litigation and, therefore, enter into this TOLLING AGREEMENT the purpose of extending any and all statutes of limitation applicable to the DISPUTES, INCIDENTS, the AGREEMENTS, together with all related matters to facilitate, further investigation, discussion and the potential for resolution. Therefore, for good and valuable consideration, receipt of which is acknowledged and in further consideration of the mutual promises stated in this TOLLING AGREEMENT, the parties agree as follows: AGREEMENT In consideration for the promises contained herein, the parties hereto agree that the period of time between March 1, 2009 and March 1, 2010 shall not be included in determining TOLLING AGREEMENT Page 2 of 14 T or calculating the applicability of any statute of limitation, laches, or any other defense based on the lapse or passage of time in any action or proceeding brought by, filed or asserted by the CCCA, the LTFOC or CONTRACT CITIES, or any of them, based upon any claims arising out of or related to the AGREEMENTS, INCIDENTS, THE CLAIM or the DISPUTES. Nothing in this TOLLING AGREEMENT shall operate to prevent, hinder, or otherwise bar the COUNTY from asserting that claims relating to the INCIDENTS filed by one or more of the parties were untimely, and/or that late claim relief is required and/or was not obtained. Without acknowledging that a claim or further claim is required, nothing herein shall prevent or restrict the rights of the CCCA, LTFOC or the CONTRACT CITIES from filing any claim with the COUNTY. 2. The COUNTY acknowledges and agrees that the CCCA, the LTFOC and the CONTRACT CITIES, and each of them, are justifiably and reasonably relying upon the . terms and conditions set forth in this TOLLING AGREEMENT in not filing legal suit or otherwise initiating legal proceedings with regard to the DISPUTES. Nothing herein shall prevent the filing of an action or suit by the CCCA, the LTFOC or CONTRACT CITIES prior to the Termination Date, provided, however, that sixty (60) days advance notice that a party or city intends to file suit shall be given to the COUNTY, however no such notice is necessary during the last sixty (60) days of the tolling period. Nothing herein is intended to foreshorten or limit the amount of time provided by law for the bringing of suit, claims, causes of action or other proceedings by the CCCA, CONTRACT CITIES, or any of them, or the LTFOC nor shall it extend or revive any claims for which the applicable statute of limitation has run. The intent of this agreement is to exclude the time period during which this TOLLING AGREEMENT is in effect from the calculation of the time within which an action on the DISPUTES must be filed. 4. In the event that the AGREEMENTS, or any of them, are extended, renewed, amended, modified or restated, such action shall not be deemed a waiver of any right, claim, cause of action or defense and the same shall not be considered ratification with respect to the DISPUTES. The parties expressly agree and warrant that the rights, benefits and obligations provided by this TOLLING AGREEMENT shall inure to the benefit of all the CONTRACT CITIES, and each of them, and the LTFOC regardless of whether or not they execute the TOLLING AGREEMENT and each them shall be deemed a direct and third -party beneficiary of this TOLLING AGREEMENT. This agreement shall be effective upon execution by the COUNTY and the CCCA, whether or not executed by the CONTRACT CITIES, or any other party to this agreement. 6. Any notice given under this agreement shall be served via U.S. Mail or Overnight Carrier, as follows: TOLLING AGREEMENT Page3of14 To CCCA: California Contract Cities Association Attn: Sam Olivito 8119 Somerset Blvd. Paramount, California 90723 With a copy to: William Litvak, Esq. DAPEER, ROSENBLIT & LITVAK, LLP 11500 W. Olympic Blvd., Suite 550 Los Angeles, California 90064 To LTFOC: Curtis Morris, Chair . Liability Trust Fund Oversight Committee 243 E. Fourth St. San Dimas, Ca 91773 To CONTRACT CITIES: c/o Sam Olivito 8119 Somerset Blvd. Paramount, California 90723 To COLA: County of Los Angeles Attn: Roger H. Granbo Assistant County Counsel 648 Kenneth Hahn Hall of Administration 500 West Temple Street Los Angeles., California 90012 To the SHERIFF.: Sheriff Leroy Baca 4700 Ramona Blvd. Monterey Park, California 91754 With a copy to: Capt. Edward F. Rogner 4700 Ramona Blvd. Monterey Park, California 91754 Any party may change the address to which it should be given notice by giving written notice of the change of address to the other party and its counsel at the above addresses. Such written notice will be sent by certified mail, return receipt requested. 7. This TOLLING AGREEMENT comprises the entire agreement of the parties with respect to the tolling of the statute of limitation as specified in paragraph 1, above, and the doctrine of laches; and this TOLLING AGREEMENT may be extended, modified; amended, or supplemented only by a written instrument signed by all of the parties who have executed this TOLLING AGREEMENT. Nothing herein shall limit the rights of the parties to modify or extend the termination date if done so in writing. TOLLING AGREEMENT Page 4 of 14 - f7 During the term of this TOLLING AGREEMENT, and for a period of not less than 180 days following the final resolution of the DISPUTES, no party to this TOLLING AGREEMENT shall destroy, or cause or permit to be destroyed, any documents or tangible things in the possession, custody or control that refers or relates to the AGREEMENTS, INCIDENTS or the DISPUTES 9. Neither the terms of this TOLLING AGREEMENT, nor its execution by any party, shall be construed as an admission of liability and shall not inure to the prejudice any of the parties to this TOLLING AGREEMENT, including but not limited to the issue of the commencement or running of any applicable statue of limitations or the merits of any potential claim or defense. 10. The parties agree that neither this TOLLING AGREEMENT, nor its terms shall be admissible in any trial or other civil proceeding except as may be required in connection with its enforcement or as is relevant to any issue of the timeliness of the filing of such action or proceeding or as otherwise ordered of court. 11. Each undersigned party represents, warrants, and states that all legal action necessary for the effectuation and execution of this TOLLING AGREEMENT has been validly taken and that the individuals whose signatures appear below on behalf of each party are duly authorized to execute this TOLLING AGREEMENT on behalf of their respective parties. The individuals executing this TOLLING AGREEMENT acknowledge, represent and warrant that they have notified any and all insurance carriers or indemnitors which have or may have obligations to provide coverage or indemnity for any claims arising out of the AGREEMENTS, INCIDENTS or the DISPUTES and that such carrier(s) and indemnitors have acknowledged that they consent to the parties entering into this TOLLING AGREEMENT and that coverage will not be affected thereby. The persons executing this TOLLING AGREEMENT on behalf of The COUNTY, including the LASD and the SHERIFF, represent and warrant that they have the authority to do so and to bind their respective entities. 12. 'The recitals are made part of this TOLLING AGREEMENT. 13. This TOLLING AGREEMENT shall be construed under the laws of the State of California and shall not be interpreted with regard to who prepared the TOLLING AGREEMENT and shall be interpreted as though .all parties participated equally in its preparation. 14. This TOLLING AGREEMENT shall be binding upon any successors -in -interest and permitted assigns of each party to this TOLLING AGREEMENT. Nothing in this paragraph shall create any rights enforceable by any person not a party to this TOLLING AGREEMENT, except as provided above, and except for the rights of the successors -in - interest and assigns of each party to this TOLLING AGREEMENT, unless such rights are expressly granted in this TOLLING .AGREEMENT to other specifically identified persons. TOLLING AGREEMENT Page 5of14 E NO 15. This TOLLING AGREEMENT may be executed in counterparts, which taken together shall constitute one agreement. Fax signatures shall be effective upon transmission and the received fax copy shall be treated as though they were originals bearing original signatures. IT IS SO AGREED. Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 [Signatures continued on .following pages] COUNTY OF LOS ANGELES By: Its: CALIFORNIA CONTRACT CITIES ASSOCIATION By Its: Sam Olivito Executive Director LIABILITY TRUST FUND COMMITTEE Its: TOLLING AGREEMENT. Page 6of14 OVERSIGHT Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 H CITY OF AGOURA HILLS RON Its: CITY OF ARTESIA By: Its: CITY OF AVALON IRA Its: CITY OF BELLFLOWER Its: CITY OF BRADBURY By: Its: TOLLING AGREEMENT Page 7 of 14 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 CITY OF CALABASAS . IN Its: CITY OF CARSON Its: CITY OF CERRITOS Rom Its: CITY OF COMMERCE wo Its: CITY OF COMPTON By: Its: TOLLING AGREEMENT Page 8 of 14 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 CITY OF DAIMOND BAR By: Its: CITY OF DUARTE By: Its: CITY OF HAWAIIAIN GARDENS Eon Its: CITY OF HIDDEN HILLS By: Its: CITY OF INDUSTRY By: Its: TOLLING AGREEMENT Page 9 of 14 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 CITY OF LA CANADA FLINTRIDGE Its: CITY OF LA HABRA HEIGHTS By: Its: CITY OF LAKEWOOD Its: CITY OF LA MIRADA By: Its: CITY OF LANCASTER By: Its: TOLLING AGREEMENT Page 10 of 14 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 : )96•Zo)a9W.1v77l100ty0, By: Its: CITY OF LAWNDALE By: Its: CITY OF LOMITA By: Its: CITY OF LYNWOOD By: Its: CITY OF MALIBU By: Its: CITY OF NORWALK By: Its: TOLLING AGREEMENT Page 11 of 14 — 14 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 CITY OF PALMDALE By: Its: CITY OF PARAMOUNT By: Its: CITY OF PICO RIVERA By: Its: CITY OF RANCHO PALOS VERDES By: Its: CITY OF ROLLING HILLS By: Its: CITY OF ROLLING HILLS ESTATES By: Its: TOLLING AGREEMENT Page 12 of 14 -'5� Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 Dated: March , 2009 CITY OF ROSEMEAD By: Its: CITY OF SAN DIMAS By: Its: CITY OF SANTA CLARITA By: Its: CITY OF SOUTH EL MONTE By: Its: CITY OF TEMPLE CITY By: Its: CITY OF WALNUT By: Its: TOLLING AGREEMENT Page 13 of 14 . A Dated: March , 2009 CITY OF WEST HOLLYWOOD Its: Dated: March , 2009 CITY OF WESTLAKE VILLIAGE CCCA.CO LAJOLLI NGAGR.090319fin..DOC Its: TOLLING AGREEMENT Page 14 of 14