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CR 08-067 Joint Powers Agreement with the City of St. PaulJuly 15, 2008 C ITY OF HOPKINS Council Report 2008 -067 Joint Powers Agreement with the City of St. Paul Proposed Action Staff recommends adoption of the following motion: Move to approve a joint powers agreement with the City of St Paul. Overview In September of 2008, the City of St Paul will host the Republican national convention. The Office of Homeland Security has declared this event a national security event. The cities of St Paul, Minneapolis and Bloomington have trained a large percentage of their officers to work this event and handle special security and enforcement details directly tied to the convention and expected protests that may occur. With the number of officers required to work the special security assignments connected with this event the St Paul Police Department does not have enough manpower and is seeking an additional 1,000 to 1, 500 licensed police officers to fill assignments connected with the convention. The Hopkins Police Department currently has a joint powers agreement (JPA) that covers requests for law enforcement assistance within Hennepin County. Under that agreement the Hopkins Police Department does not receive compensation for hours worked in other jurisdictions and is responsible for providing labiality and insurance coverage for our officers when they work in other jurisdictions. This proposed joint powers agreement would allow officers from Hopkins to work in St Paul during the event and receive compensation for hours worked during this event from any agreement between St Paul PD and the convention organizers. The Hopkins Police Department would be responsible to maintain liability and insurance coverage for Hopkins Officers working under this agreement in St. Paul. Nothing in this agreement would limit the ability of the Hopkins Chief of Police to refuse any assignment that did not match the training and scope of duties that our officers could perform. Primary Issues to Consider • The League of Minnesota Cities Insurance Trust has reviewed the joint powers agreement on behalf of all cities involved. • Some law enforcement duties have a higher risk of injury and /or civil liability. The Hopkins Chief of Police has already refused to accept assignments placing officers on teams responsible to respond to protest incidents or bicycle patrol outside the convention site in St. Paul. • Because of the responsibilities outlined under this JPA the Hopkins Police would retain liability for any civil action initiated against a Hopkins Police Officer working in St. Paul. This could result in multiple lawyers from the Council Report 2008 -067 Page 2 League Insurance Trust being required to defend different government agencies in a single lawsuit. • The Republican National Committee has obtained a $10 million Law Enforcement Liability Policy. Officers acting under the JPA will have additional coverage with this policy. Supporting Information • Joint Powers Agreement with the City of St. Paul • League of Minnesota Cities Insurance Trust review of the St. Paul JPA. Craig A. Reid Chief of Police o JOINT POWERS AGREEMENT REGARDING PUBLIC SAFETY RELATED TO 2008 REPUBLICAN NATIONAL CONVENTION THIS JOINT POWERS AGREEMENT REGARDING PUBLIC SAFETY RELATED TO 2008 REPUBLICAN NATIONAL CONVENTION (hereinafter referred to as the "Agreement "), is made effective, except as otherwise made operationally effective as set forth in Section 4 herein, on this 15th day of July, 2008, by and between the CITY OF SAINT PAUL, MINNESOTA, a municipal corporation, (hereinafter referred to as the "City "), acting through its Police Department (hereinafter referred to as the "SPPD ") and the City of Hopkins, Minnesota, a charter city acting through its Police Department(hereinafter referred to as the "Provider "). WHEREAS, the City is a host city for the 2008 National Republican Convention to be held between September 1, 2008 and September 4, 2008 (hereinafter referred to as the "2008 RNC "); and WHEREAS, the City has entered into a "City Service Agreement For The 2008 Republican National Convention" with the Minneapolis Saint Paul 2008 Host Committee, Inc., a Minnesota non - profit corporation (hereinafter referred to as the "Host Committee "), whereby the City has agreed to undertake certain public safety and security measures related to the 2008 RNC within the boundaries of the City of Saint Paul, Minnesota, and all other special event venues related to the 2008 RNC, and to act as the lead local law enforcement agency to help facilitate the provision of such measures in other locations throughout the greater Saint Paul - Minneapolis metropolitan area to which the RRT (as defined herein) may be deployed, or such other locations that may be subject to a Unified Command (as defined herein) (hereinafter such above - described locations shall be collectively referred to as the "Security Event "); WHEREAS, the City is in need of procuring additional law enforcement personnel to provide the public safety and security measures required of an event the size and unique nature of the 2008 RNC; and WHEREAS, the Hopkins Police Department provides law enforcement services to the Provider pursuant to the police powers and law enforcement authority granted under the laws of the State of Minnesota; and WHEREAS, at the request of the City, the Provider is willing to provide the services of the law enforcement personnel identified in this Agreement to the City to assist the SPPD with the Security Event; and WHEREAS, the Provider may also avail itself of a rapid response team (herein referred to as the "RRT "), comprised of licensed peace officers employed by the SPPD and certain other law enforcement organizations, that will be established for the sole and exclusive purpose of 1 providing public safety - related aid and assistance to law enforcement organizations throughout the greater Saint Paul - Minneapolis metropolitan area that have entered into an agreement with the City, similar to this Agreement, provided that such aid and assistance is actually and directly related to the 2008 RNC, and only if such aid and assistance is warranted by extraordinary circumstances, all as more fully set forth in Section 3.6 herein. NOW THEREFORE, pursuant to the authority contained in Minnesota Statutes Section 471.59, commonly known as the Joint Powers Act, and/or Minnesota Statutes, Sections 626.76 and 626.77, and in consideration of the mutual covenants herein contained and the benefits that each party hereto shall derive hereby, the Parties agree as follows: 1.1 1 PURPOSE OF THE AGREEMENT; BASIC CRITERIA OF LPOs AND NON - LPOS The purpose of this Agreement is to set forth the terms and conditions whereby the Provider will provide the City with the professional services of those certain licensed peace officers identified on Attachment A attached hereto (such licensed peace officers identified on Attachment A shall be collectively referred to herein as the "LPOs ") to assist the SPPD with the Security Event, and to set forth the terms and conditions in which the Provider, subject to Section 3.6 herein, can avail itself of the aid and assistance of the RRT. 1.1.1 Subject to the prior written approval of the SPPD, the Provider may also provide the City with persons who are employed and actively utilized by the Provider in a public safety capacity who do not meet the criteria of an LPO as set forth in this Agreement but whose special public safety training and experience may enable such persons to provide further assistance to the SPPD with regard to the Security Event (hereinafter such persons are identified on Attachment B attached hereto, and shall be collectively referred to herein as the "Non- LPOs ") (an example of a Non -LPOs might include parking enforcement and /or traffic control officers, detention staff, special deputies, and emergency center dispatchers). If the SPPD, in its sole discretion, desires to use any Non -LPOs, the SPPD will so notify the Provider in writing of the conditions by which the Non -LPOs will be used, and such writing will be incorporated as an addendum to this Agreement. 1.1.2 Provider will exercise its best efforts to assist with the Security Event. The parties acknowledge and agree that resource availability requires Provider to exercise its best judgment in prioritizing and responding to the public safety needs of its jurisdiction including, but not limited to, the Security Event. That prioritization decision belongs solely to Provider. This Agreement does not entitle City or the Security Event to a higher priority or special consideration during Provider's prioritization process. Further, Provider may, at any time, recall its LPOs when, it is considered to be in Provider's best interest to do so. 1.2 Each of the LPOs must meet the following criteria as defined in Minnesota Statutes, 2 Sections 626.84, Subdivision 1(c) and 471.59, Subd. 12, which reads: "(1) the peace officer has successfully completed professionally recognized peace officer pre - employment education which the Minnesota Board of Peace Officer Standards and Training has found comparable to Minnesota peace officer pre - employment education; and (2) the officer is duly licensed or certified by the peace officer licensing or certification authority of the state in which the officer's appointing authority is located." 2 ADDITIONAL CRITERIA OF LPOs; PROVIDER SCOPE OF SERVICE 2.1 In addition to meeting the criteria set forth in Section 1 of this Agreement, the Provider agrees that each of the LPOs shall also meet the following criteria: A. That each LPO shall by reason of experience, training and physical fitness be deemed in the sole discretion of the SPPD, that she /he is capable of performing the duties required by the SPPD of each such LPO during the Security Event; and B. That: (i) each LPO shall have been employed as a licensed peace officer for a minimum of two (2) years in the United States; or (ii) in the event that an LPO has been employed as a licensed peace officer for less than two (2) years in the United States, that such LPO will at all times when providing the services described in this Agreement, be directly supervised by an LPO who in addition to satisfying the minimum criteria described in this Section 2.1 B. (i), shall also possess sufficient supervisory skills and experience generally recognized and accepted throughout the greater Saint Paul- Minneapolis law enforcement community; and C. That each of the LPOs are officers in good standing with the Provider. Throughout the term of this Agreement, the Provider shall promptly notify the SPPD in the event that any LPO is no longer an officer in good standing with the Provider. D. That throughout the term of this Agreement and subject to Chapter 13, Minnesota Statutes, commonly known as the "Minnesota Governmental Data Practice Act" (hereinafter referred to as the "MGDPA "), the Provider shall give notice using the form attached hereto as Attachment C, to the SPPD of any public data, as defined by the MGDPA, related to internal affairs type of investigations either pending and/or sustained against any LPO during the past three (3) years, involving excessive /unnecessary /unreasonable use of force, improper conduct or conduct unbecoming of a licensed law enforcement officer; and E. That unless otherwise provided or requested by the SPPD, each of the LPOs shall be equipped and/or supplied by Provider at Provider's own expense, with a seasonally appropriate patrol uniform of the day and equipment, including but not 3 limited to service belts with Provider radio equipment, service weapon and personal soft ballistic body armor that are required to be worn by each LPO while on duty for the Provider; see Attachment E attached hereto for uniform and equipment list; and F. That Provider shall furnish all of the information required in Attachments A and B attached hereto, for each LPO and Non -LPO, no later than ten (10) business days after the effective date of this Agreement, with the understanding that the City will hold the data in the same classification as the Provider does under the MGDPA. 2.1.1 Provider acknowledges and agrees that at anytime during the term of this Agreement the City has the sole discretion to decline to accept and/or use any LPO or Non -LPO without cause or explanation. 2.2 The Provider agrees to provide the City with the following services: A. That upon reasonable advance written notification from the SPPD, each LPO so designated by the SPPD shall participate in training activities related to the Security Event, that are coordinated or conducted by the SPPD or its designee (hereinafter each such training session shall be referred to as a "Security Event Training Session ") for a period of time commencing from the Security Event Training Session Commencement Date to the Security Event Training Session Termination Date as those respective terms are defined in Section 4 herein; and B. That upon reasonable advance written notification from the SPPD, each LPO so designated by the SPPD shall participate in the Security Event for a period of time commencing from the Security Event Commencement Date to the Security Event Termination Date as those respective terms are defined in Section 4 herein. C. That each LPO agrees to be placed by the SPPD, if so determined by the SPPD, in an "On Assignment" status in which the LPO is physically proximate to a Security Event location within the City of Saint Paul, so as to be able to physically report in a timely manner to such duty post assigned by the SPPD prepared to undertake the specific job task or responsibility assigned to such LPO by the SPPD related to the Security Event. D. That at the request of the SPPD, each LPO and Non -LPO shall participate in and/or provide information to and otherwise cooperate with the SPPD in any "after action activities" following the conclusion of a Security Event Training Session and/or the 4 2.3 Notwithstanding Section 12 herein, Provider acknowledges and agrees that at all times during each Security Event Training Session and/or the Security Event, each LPO regardless of such LPO's rank or job title held as an employee of the Provider, shall be subject to a structure of supervision, command and control coordinated through a unified law enforcement command and following unified command principals and practices established throughout the law enforcement community (herein referred to as "Unified Command "). Security Event. For purposes of this Agreement "after action activities" may include, but not be limited to the following activities related to Security Event Training Sessions and the Security Event: debriefings of information and experiences, completion of surveys and questionnaires and assisting and/or participating in any civil and/or criminal legal proceedings. 2.4 The Provider agrees to cooperate and provide the City, with any other information reasonably requested by the City that the City deems necessary to facilitate and enable compliance with the terms and conditions contained in this Agreement. By way of illustration only, such cooperation and information may include, but not be limited to the Provider's timely completion and production of information required for insurance purposes and audit purposes. 3 CITY RESPONSIBILITIES 3.1 City agrees that it will provide or facilitate the Security Event Training Session[s], the SPPD deems necessary. The substance of the training, including the locations, dates and times of any Security Event Training Session, shall be detailed in a separate writing provided from the SPPD to the Provider. 3.2 The City anticipates certain financial assistance will be provided to it by the federal government and/or third parties other than the City (hereinafter referred to as the "Security Subsidy "), to fully and completely fund and/or reimburse the Provider for the necessary costs of participating in the Security Event Training Session[s], the Security Event, the RRT and any "after action activities" related thereto. Subject to the City's good faith duty to provide the Provider with as much advance written notice that is reasonable under the circumstances that the Security Subsidy is insufficient to reimburse all or a portion of the costs and expenses described in this Agreement, Provider acknowledges and agrees that the City's obligation to reimburse such costs or expenses shall be limited only to the funds available in the Security Subsidy. In such event, City agrees that funds available shall be distributed between/among Provider and any other law enforcement organizations providing services under this or similar agreements in, at least, a ratio based on each organization's contribution as a share of the total contributions 3.3 Subject to the prior written approval of the City and the Provider's compliance with the 5 requirements of Section 5 of this Agreement, the City agrees to provide reimbursement from the Security Subsidy to the Provider for each LPO and Non -LPO whose services are actually utilized by the SPPD during the Security Event Training Sessions and/or the Security Event, for the following: the prevailing hourly contract wages at the rate of one and one -half times, together only with the employer's share of Medicare and PERA contributions being paid by the Provider to each LPO and Non -LPO (based on such hourly wages and employer's share of Medicare and PERA contributions described in Attachments A and B attached hereto) at the time the services of such LPO or Non -LPO have been actually utilized by the SPPD in accordance with this Agreement. Unless otherwise agreed to in writing by the City, the City shall only reimburse the Provider in accordance with this Agreement for any pre- approved reimbursable costs incurred by the Provider related to the actual participation by an LPO or Non -LPO in a Security Event Training Session, only upon the satisfaction of one of the following conditions: (a) the actual participation by such LPO or Non -LPO in the Security Event as required by the SPPD; or (b) such LPO or Non -LPO, was ready, willing and available to participate in the Security Event as required and needed by the SPPD hereunder, despite the LPO or Non -LPO not having actually participated in the Security Event. 3.4 The person responsible on behalf of the SPPD for the daily operation, coordination and implementation of this Agreement, which responsibilities shall include, but not limited to, determining the assignments of the LPOs, shall be SPPD Assistant Chief Matt Bostrom (hereinafter referred to as the "Coordinator "). Except as otherwise provided in this Agreement, all contact or inquiries made by the Provider with regard to this Agreement shall be made directly to the Coordinator or the Coordinator's designee. 3.5 The City shall provide the Provider with the eligibility guidelines for the costs described in this Section 3 and a checklist for submitting the Reimbursement Payment Form attached hereto as Attachment F, and related required documentation. 3.6 The RRT will be established for the sole and exclusive purpose of providing public safety- related aid and assistance as requested by law enforcement organizations with the legal responsibility for providing police services to local units of government throughout the Twin Cities metropolitan area (hereinafter referred to as the "Requesting Party "),who have entered into an agreement substantially similar to this Agreement, with the City, provided that: (i) such aid and assistance is actually and directly related to the 2008 RNC; and (ii) only if such aid and assistance is warranted by extraordinary circumstances. For purposes of this Agreement, the term "extraordinary circumstances" shall mean those circumstances that significantly exceeds the usual and customary ability of the Requesting Party to effectively and safely provide police services within its jurisdictional boundaries (which by way of example only, may include, but not be limited to, providing security for critical infrastructure, transportation routes and venues and facilities). Nothing contained in this Agreement shall preclude the Provider from also becoming a Requesting Party and availing itself of the RRT in accordance with this Section 3.6. 4 TERM OF AGREEMENT 6 4.1 Unless otherwise terminated earlier as provided in Section 16 herein, this Agreement shall become operationally effective as follows: 4.1.1 Security Event Training Session[s] — The Security Event Training Session Commencement Date and the Security Event Training Session Termination Date shall be the date[s] and time[s] so referenced in the writing described in Section 2.2 A of this Agreement which writing will incorporate the terms and conditions of this Agreement. 4.1.2 Security Event - The Security Event Commencement Date and the Security Event Termination Date shall be the date[s] and time[s] so referenced in a separate writing to be provided by the SPPD to the Provider, which writing will incorporate the terms and conditions of this Agreement. 4.1.3 The SPPD reserves the reasonable discretion to extend the Security Event Training Session Termination Date[s] and the Security Event Termination Date upon verbal or other non - written notice provided to Provider. 5 BILLINGS AND PAYMENTS 5.1 That in consideration for the Provider's faithful performance of this Agreement, the City hereby agrees to compensate Provider from the Security Subsidy as provided in Section 3 herein and this Section 5. Notwithstanding any other provision contained in this Agreement, the Provider agrees that the City's reimbursement to the Provider from the Security Subsidy for all aggregate reimbursable costs and expenses, otherwise allowable in Section 3 herein, shall not exceed an amount to be mutually agreed to by the City and the Provider, no later than June 30, 2008. This not to exceed amount shall be memorialized in a separate writing that will be incorporated as an addendum to this Agreement. 5.2 Reimbursement Requirements 5.2.1 Except as may otherwise be provided either by this Agreement or with the written consent of the City, any payments due and owing by the City to the Provider for approved reimbursable costs and expenses described in this Agreement for which the Provider has completed and delivered to the City all of the documentation required herein, shall be made no earlier than the Security Event Termination Date. Subject to the conditions described in this Section 5.2.1, the City shall make every effort to make the payment to the Provider within thirty -five (35) days after the City's receipt of all of the documentation required herein. 5.2.2 As a condition precedent to receiving any reimbursement from the City for approved reimbursable costs and expenses described in this Agreement, the Reimbursement Payment Form, referenced in Attachment F, attached hereto, 7 must: A. Be submitted to the City no later than November 15, 2008, unless such deadline is otherwise extended with the written consent of the City. The Reimbursement Payment Form shall be submitted to the Attention of Lori Lee, Office of Financial Services, 15 West Kellogg Boulevard, Room 700, City of Saint Paul, MN 55102; and B. Include a cover letter signed by the Provider's Chief Financial Officer or his /her designee, detailing the total amount sought to be reimbursed and a including a summary narrative and cost overview that provide context to the submission, including any unusual circumstances, all provided under the following certification: "1 certify that all information presented in this application supports only costs incurred for security related services provided for the 2008 Republican National Convention, and that all information was obtained from payroll records, invoices or other documents that are available for audit. "; and C. Include an itemized invoice as specified on checklist; and D. Include all back -up documentation, as outlined on the checklist provided by the City to the Provider. 5.2.3 In addition to any other requirements contained herein, Provider agrees that it will promptly provide to the City upon request, any other information or documentation of approved reimbursable costs and expenses described in this Agreement as may be required by the federal government as a condition to the City's receipt of the Security Subsidy. All records must be maintained for future audits and the entity being reimbursed will be fiscally responsible for the results of any such audit. 5.2.4 Any questions regarding this reimbursement process should be directed to: Lori Lee or designee, Office of Financial Services. 5.2.5 The Provider acknowledge and agree that the City's obligations to provide reimbursement pursuant to this Agreement are solely and exclusively limited to the Security Subsidy, and that the City shall not be liable for any payment hereunder: (i) to the extent that the Security Subsidy is insufficient to fully reimburse the Provider and the City provides the notice described in Section 16 of this Agreement; or (ii) in the event that the funder[s] of the Security Subsidy determine, independent of the City and the SPPD, that a cost that may otherwise be reimbursable pursuant to the terms of this Agreement, is not eligible for reimbursement and that any payment for reimbursement previously made by the City to the Provider is deemed to be ineligible by the funder[s] and is required to be returned to the funder[s]. 8 5.3 In the event the Provider fails to comply with any terms or conditions of the Agreement or to provide in any manner the work or services as agreed to herein, the City reserves the right to withhold any payment until the City is satisfied that corrective action has been taken or completed. This option is in addition to and not in lieu of the City's right to termination as provided in the sections of this Agreement. 6 AGREEMENT MANAGEMENT 6.1 In addition to the person described in Section 2.3 of this Agreement, the Provider has identified the following person[s] as persons to contact only with regard to the following matters regarding the Agreement: Captain Tony Hanlin Patrol Commander Connie Kurtz Administrative Services Director 7 WORK PRODUCTS, RECORDS, DISSEMINATION OF INFORMATION 7.1 For purposes of this Agreement, the following words and phrases shall have the meanings set forth in this section, except where the context clearly indicates that a different meaning is intended. "Work product" shall mean any report, recommendation, paper, presentation, drawing, demonstration, or other materials, whether in written, electronic, or other format that are used or belong to SPPD or results from Provider's services under this Agreement. "Supporting documentation" shall mean any surveys, questionnaires, notes, research, papers, analyses, whether in written, electronic, or in other format and other evidences used to generate any and all work performed and work products generated under this Agreement. "Business records" shall mean any books, documents, papers, account records and other evidences, whether written, electronic, or in other format, belonging to SPPD or Provider and pertain to work performed under this Agreement. 7.2 All deliverable work products, supporting documentation and business records or copies thereof, that are needed from or are the results from the Provider's services under this Agreement shall be delivered to the City either pursuant to this Agreement or upon reasonable request of the City. 7.3 The City and the Provider each agrees not to release, transmit, disclose or otherwise disseminate information associated with or generated as a result of the work performed under this Agreement without prior notice to the other. Except as otherwise required by federal and/or state law, neither the City nor the Provider shall release, transmit, disclose or disseminate any security information, security service or security service data, defined under Minnesota Statutes, Sections 13.37 and 13.861 or any like data, as defined and/or 9 required in all federal, state, and local laws or ordinances, and all applicable rules, regulations, and standards. 7.4 In the event of termination, all supporting documents and business records prepared by the Provider under this Agreement, shall be delivered to the City by Provider by the termination date. 7.5 Both the City and the Provider agree to maintain all business records in such a manner as will readily conform to the terms of this Agreement and to make such materials available at its office at all reasonable times during this Agreement period and for six (6) years from the date of the final payment under the contract for audit or inspection by the City, the Provider, the Auditor of the State of Minnesota, or other duly authorized representative. 7.6 Both the City and the Provider agree to abide strictly by Chapter 13 , Minnesota Government Data Practice Act, ( "MGDPA ")and in particular Minnesota Statutes, Sections 13.05, Subd. 6 and 11; 13.37, Subd. 1 (b), 138.17 and 15.17. All of the data created, collected, received, stored, used, maintained, or disseminated by the Provider or the City in performing functions under this Agreement is subject to the requirements of the MGDPA and both the City and the Provider must comply with those requirements. If any provision of this Agreement is in conflict with the MGDPA or other Minnesota state laws, state law shall control. 8 EQUAL OPPORTUNITY EMPLOYMENT Neither the City nor the Provider will discriminate against any employee or applicant for employment for work under this Agreement because of race, creed, religion, color, sex, sexual or affectional orientation, national origin, ancestry, familial status, age, disability, marital status, or status with regard to public assistance and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to the same. This provision shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment advertising, layoff or termination; rates of pay or their forms of compensation; and selection for training, including apprenticeship. 9 COMPLIANCE WITH APPLICABLE LAW Both the City and the Provider agree to comply with all federal, state, and local laws or ordinances, and all applicable rules, regulations, and standards established by any agency of such governmental units, which are now or hereafter promulgated insofar as they relate to their respective performances of the provisions of this Agreement. 10 CONFLICT OF INTEREST 10.1 Both the City and the Provider agree that it will not contract for or accept employment for the performance of any work or services with any individual, business, corporation, or 10 government unit that would create a conflict of interest in their respective performances of their obligations pursuant to this Agreement. 10.2 Acceptance of this Agreement by both the City and the Provider indicates compliance with Chapter 24.03 of the Saint Paul Administrative Code, which provides that: "Except as permitted by law, no City official or employee shall be a party to or have a direct financial interest in any sale, lease, or contract with the City." 10.3 Both the City and the Provider agree that, should any conflict or potential conflict of interest become known, the party learning of such conflict or potential conflict shall advise the other party of the situation so that a determination can be made about each party's ability to continue performing services under this Agreement. 11 INSURANCE 11.1 The Host Committee for the 2008 RNC, at its own cost, shall provide the following insurance coverage in which the Provider shall be covered as a named insured party: A. Police Professional Insurance (the "Insurance Coverage ") providing coverage for claims arising out of actions of each LPO and Non -LPO who provide security and law enforcement during the convention and convention related events with a limit of coverage not less than Ten Million Dollars ($10,000,000), as evidenced by a certificate of insurance provided to the Provider providing at least a ten (10) day notice of cancellation or any significant material change in coverage. 11.1.1 The Provider agrees to be bound by the terms and conditions contained in the Insurance Coverage policy ( "Policy "), the terms and conditions of which are incorporated herein by reference. 11.1.2 The parties acknowledge and agree that the Insurance Coverage shall only provide coverage during the time period set forth in the Policy. 11.1.3 The Provider agrees that is shall cooperate with the insurer who will be underwriting the Insurance Coverage by timely providing information as reasonably requested by said insurer or its designees. For purposes of this Section 11.1.3, this cooperation will include, but not be limited to both the underwriting process and the claims process, and this obligation shall survive and extend if necessary, beyond the termination of this Agreement. 11.2 The Provider shall be responsible for injuries or death of its own LPOs and Non -LPOs. The Provider will maintain workers' compensation insurance or self - insurance equivalent coverage, covering each of its own LPOs and Non -LPOs while such LPOs and Non - LPOs are providing services pursuant to this Agreement. The Provider waives the right to sue any other party for any workers' compensation benefits paid to its own LPOs or Non - LPOs and any dependants of such LPOs and Non -LPOs, even if the injuries were caused 11 wholly or partially by the negligence of any other party. 12 INDEPENDENT CONTRACTOR; RULES OF CONDUCT 12.1 Notwithstanding any other provision of this Agreement, including, but not limited to Section 2.3, it is understood and agreed by the parties hereto that, at all times and for all purposes within the scope of the Agreement, the relationship of the Provider to the City is that of independent contractor and not that of employee. No statement contained in this Agreement shall be construed so as to find the Provider or the LPOs and Non -LPOs, to be employees of the City, and the Provider shall be entitled to none of the rights, privileges, or benefits of City employees. 12.2 During the Security Event Training Session[s] and the Security Event, each LPO shall be required to comply with the rules of conduct established by the Provider, the SPPD and/or the Unified Command. In the event that a conflict exists between the Provider's rules of conduct and the SPPD's rules of conduct and the Unified Command has not otherwise provided rules of conduct, the SPPD's rules of conduct shall apply. The Coordinator or his designee shall refer disciplinary matters involving LPOs to the Provider for an investigation. Based on the judgment of the Coordinator or his designee, if a particular matter represents probable cause for the issuance of a criminal complaint, the matter shall be referred directly to an external law enforcement agency for investigation, provided the person's agency head is notified in advance thereof. 13 SUBCONTRACTING. Both the City and the Provider agree not to enter into any subcontracts for any of the work contemplated under this Agreement without obtaining prior written approval of the other party. 14 MUTUAL RESPONSIBILITY; NO WAIVER OF IMMUNITIES 14.1 Each party hereto agrees that it will be responsible for its own acts and /or omissions and those of its officials, employees, representatives and agents in carrying out the terms of this Agreement and the results thereof to the extent authorized by law and shall not be responsible for the acts and/or omissions of the other party and the results thereof. Notwithstanding the foregoing, nothing contained in this Section 14.1 shall waive, nor shall be construed to waive any rights and benefits either party has with regard to its status under the insurance coverage described in Section 11 of this Agreement. 14.2 It is understood and agreed that each party's liability shall be limited by the provisions of Minnesota Statutes, Chapter 466 (Tort Liability, Political Subdivisions) or other applicable law. Nothing contained in this Agreement shall waive or amend, nor shall be construed to waive or amend any defense or immunity that either party, their respective officials and employees, may have under said Chapter 466, or any common -law 12 immunity or limitation of liability, all of which are hereby reserved by the parties hereto. 15 ASSIGNMENT The City and the Provider each binds itself and its successors, legal representatives, and assigns of such other party, with respect to all covenants of this Agreement; and neither the City nor the Provider will assign or transfer their interest in this Agreement without the written consent of the other. 16 EVENTS OF DEFAULT; TERMINATION 16.1 By the City - The City may terminate this Agreement based on the occurrence of any of the following events: A. the cancellation of the 2008 RNC; B. the determination made in the sole discretion of the City, that the Security Subsidy is insufficient to reimburse all or a portion of the costs and expenses described in Section 3 of this Agreement, which determination must be made and disclosed to the Provider prior to the Security Event Commencement Date; C. the failure of the Host Committee to purchase and provide the insurance coverage described in Section 11 of this Agreement in a timely manner determined by the City; D. the failure of the Provider to comply with or perform any term, condition or obligation contained in this Agreement and to fail to cure such default within seven (7) calendar days after the City or SPPD provides Provider with notice of such default. 16.2 By the Provider - The Provider may terminate this Agreement based on the occurrence of any of the following events: A. without cause, prior to any Security Event Training Session[s] Commencement Date[s] in which any of the Provider's LPOs shall participate; B. the cancellation of the 2008 RNC; C. the failure of the Host Committee to provide the Provider with evidence in the form of a certificate of insurance naming the Provider as a named insured in the policy of insurance coverage described in Section 11 of this Agreement; 13 D. the Provider's receipt of the notice described in Section 3.2 of this Agreement; E. the failure of the City to comply with or perform any term, condition or obligation contained in this Agreement and to fail to cure such default within seven (7) calendar days after the Provider provides the SPPD with notice of such default. 16.3 Both the City and the Provider shall act in good faith, to provide as much advance written notice of an event of default in this Section 16, to the other party that is reasonable under the circumstances. 16.4 In the event of termination, the City will only pay Provider for those services actually, timely, and faithfully rendered up to the receipt of the notice of termination and thereafter until the date of termination. Except as otherwise provided in this Section 16.4, neither the City nor the Provider shall be entitled to the recovery of any consequential damages or attorney fees related to an event of default hereunder. 17 GOOD FAITH DISPUTE RESOLUTION The City and the Provider shall cooperate and use their best efforts to ensure that the various provisions of this Agreement are fulfilled and to undertake resolution of disputes, if any, in good faith and in an equitable and timely manner. In the event such a dispute arising out of or relating to this Agreement or breach thereof cannot be resolved exclusively among the parties, such dispute shall be referred to non - binding mediation before, and as a condition precedent to, the initiation of any legal action hereof, provided for herein. Each party agrees to participate in up to four hours of mediation. The mediator shall be selected by the parties, or if the parties are unable to agree on a mediator then any party can request the administrator of the Ramsey County District Court Civil ADR Program and/or similar person, to select a person from its list of qualified neutrals. All expenses related to the mediation shall be borne by each party, including without limitation, the costs of any experts or legal counsel. All applicable statutes of limitations and all defense based on the passage of time are tolled while the mediation procedures are pending, and for a period of 30 days thereafter. 18 AMENDMENT OR CHANGES TO AGREEMENT 18.1 Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when reduced to writing and duly signed by the parties hereto, after all appropriate and necessary authority has been acquired by each such party. 18.2 Modifications or additional schedules shall not be construed to adversely affect vested rights or causes of action which have accrued prior to the effective date of such amendment, modification, or supplement. The term "this Agreement" as used herein shall be deemed to include any future amendments, modifications, and additional 14 schedules made in accordance herewith. 19 NOTICES Except as otherwise stated in this Agreement, all notice or demand to be given under this Agreement shall be delivered in person or deposited in United States Certified Mail, Return Receipt Requested. Any notices or other communications shall be addressed as follows: To City: City Manager Rick Getschow City Hall 1010 1 Street South Hopkins, MN 55343 -7475 20 WAIVER Any fault of a party hereto to assert any right under this Agreement shall not constitute a waiver or a termination of that right, this Agreement, or any of this Agreement's provisions. 21 SURVIVAL OF OBLIGATIONS 15 To Provider: Chief Craig Reid Hopkins Police Department 1010 1 Street South Hopkins, MN 55343 -7475 21.1 The respective obligations of the City and Provider under these terms and conditions, which by their nature would continue beyond the termination, cancellation, or expiration hereof, shall survive termination, cancellation or expiration hereof. 21.2 If a court or governmental agency with proper jurisdiction determines that this Agreement, or a provision herein is unlawful, this Agreement or that provision, shall terminate. If a provision is so terminated but the parties hereto legally, commercially, and practicably can continue this Agreement without the terminated provision, the remainder of this Agreement shall continue in effect. 22 INTERPRETATION OF AGREEMENT This Agreement shall be interpreted and construed according to the laws of the State of Minnesota. 23 FORCE MAJEURE Neither the City nor the Provider shall be held responsible for performance if its performance is prevented by acts or events beyond the party's reasonable control, including, but not limited to: severe weather and storms, earthquake or other natural occurrences, strikes and other labor unrest, power failures, electrical power surges or current fluctuations, nuclear or other civil military emergencies, or acts of legislative, judicial, executive, or administrative authorities. 24 ENTIRE AGREEMENT It is understood and agreed that this entire Agreement supersedes all oral agreements and negotiations between the parties hereto relating to the subject matters herein. IN WITNESS WHEREOF, the parties hereto are authorized signatories and have executed this Agreement, the day and year first above written. CITY OF SAINT PAUL CITY OF HOPKINS By: By: Its: Mayor Its:_Mayor Date: Date: Approval Recommended: Approval Recommended: By: By: Its: Chief of Police Its: Chief of Police Saint Paul Police Department By: Its: Director, Office of Financial Services By: Its: Director, Department of Human Rights Approved as to form and legality: By: 16 By: Its:City Manager Its: Assistant City Attorney Funding: Provider's Taxpayer I.D. No Activity # and Activity Manager Signature ************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** 17 LEAGUE OF MINNESOTA CITIES LEAGUE OF MINNESOTA CITIES INSURANCE TRUST LOSS CONTROL FIELD SERVICES CONNECTING & INNOVATING SINCE 1913 June 11, 2008 To: LMCIT Members Re: Considerations in responding to requests for public safety assistance at the Republican National Convention The Republican National Convention (RNC) will be held in St. Paul, Minnesota from September 1 -4, 2008. The Saint Paul Police Department (SPPD) is the lead local agency responsible for providing public safety and crowd control during the convention and related events preceding the convention. To provide for public safety and crowd control, the SPPD is seeking the assistance of a number of non -SPPD law enforcement personnel, including law enforcement personnel from cities that are members of the League of Minnesota Cities Insurance Trust (LMCIT). St. Paul has developed a "Joint Powers Agreement Regarding Public Safety Related to 2008 Republican National Convention" (JPA) that must be executed by each city planning to provide law enforcement personnel during the RNC. It is LMCIT's understanding that St. Paul wishes to have the same agreement with all governmental entities. Accordingly, SPPD has indicated the terms of the JPA are not negotiable at this point in time. A number of LMCIT members have asked us to review and provide comments regarding the JPA. The decision whether to enter into a JPA with St. Paul to provide public safety services in conjunction with the RNC is one each city will need to consider and make for itself. A city's choice to assist may depend on its own evaluation of the risks, staffing availability, adequacy of proposed reimbursement terms, etc. Please remember that in most cases only the city council is authorized to enter into contracts — so the decision to provide assistance to the RNC under the JPA is one that the city council needs to make, most likely after hearing from the police chief and city attorney. JPA Considerations The most critical item LMCIT would note in a city's consideration is the way that liability is handled under the JPA. Typically in a joint powers or mutual aid agreement, LMCIT advises cities to try to put all liability with one party to the agreement. For example, we routinely recommend the city requesting assistance should accept liability. This approach is consistent with the way Minnesota Statutes, Section 12.331, which authorizes political subdivisions to provide emergency aid to each other, allocates liability in disaster assistance situations. 222 SOUTH 9TH ST., SUITE 1300 PHONE: (612) 766 -3000 FAX: (612) 766 -3199 MINNEAPOLIS, MN 55402 -3332 TOLL FREE: (800) 449 -7707 WEB: WWW.LMC.ORG Republican National Convention JPA Page 2 The JPA does not place liability with one party. Rather, the JPA states that each party "will be responsible for its own acts and /or omissions and those of its officials, employees, representative and agents in carrying out the terms of this Agreement...and shall not be responsible for the acts and/or omissions of the other party." See Section 14.1. While it may sometimes seem appropriate to make parties responsible for their own acts or omissions, and city contracts do sometimes contain such provisions, it can greatly complicate the defense of a lawsuit by creating conflict and litigation between the parties and requiring multiple defense attorneys. Thus, a city should consider the potential burdens of defending a lawsuit if it gets sued over conduct that happens pursuant to the JPA. For example, let's assume a police officer from City A injures a protestor. The protestor sues City A alleging the officer from City A was negligent. The protestor also sues City B because the officer from City A was under the command of an officer from City B at the time of the incident. The protestor also sues City C alleging City C did not properly train the officer from City A. So who is responsible? It's hard to tell. Each city will have its own attorney and there will be a lot of finger pointing among the defendants which will probably strengthen the protestor's case. If liability had been placed on one party, the internal disputes would have been removed and one attorney could have been assigned to represent all three cities. A city should also consider the type of services that its police officers will be asked to provide during the RNC. Some services may be deemed to create a lower risk of liability. Of course, there is no way to predict what actions may lead to claims. St. Paul officials have stated that the perceived higher risk activities to be performed by rapid response teams under the JPA will be mostly performed by non -LMCIT members. There are a couple other provisions of the JPA that cities may wish to specifically review and consider: • Workers' Compensation. The parties to the agreement are responsible for injuries or death to their own employees and agree to waive claims against the other city. See Section 11.2. Accordingly, a city executing the JPA cannot bring a claim against St. Paul and St. Paul cannot bring a claim against the other city. This is the manner LMCIT recommends handling workers' compensation. Since each city pays for the workers' compensation coverage of its own employees, it makes sense that a city should be responsible for injuries to its own employees. This also helps to eliminate conflicts between governmental entities. The JPA, however, is only an agreement with St. Paul. Thus, a city entering into the agreement would not be precluded from bringing a claim against a third governmental entity that injured a city's police officer. Accordingly, there is some risk that a city entering into the agreement could be faced with defending a claim that the city's police officer injured an officer from a governmental entity other than St. Paul. Republican National Convention JPA Page 3 • Reimbursement. Cities will be reimbursed at "the prevailing contract wages at the rate of one and one -half times, together with the employer's share of Medicare and PERA contributions." See Section 3.3. St. Paul's obligation to reimburse a city is limited to the funds available in its security subsidy. See Sections 3.2, 5.2.5. St. Paul has a "good faith duty" to provide cities with as much advance notice as possible if it believe the security subsidy will be insufficient to reimburse all or a portion of a city's costs and expenses. See Section 3.2. A city may also withdraw from the JPA if St. Paul notifies a city that the security subsidy will be insufficient. See Section 16.2(D). One consideration for cities to make is whether the reimbursement will be sufficient for any "backfilling" to cover local needs while some officers respond to the RNC. • The JPA does not address damage to property. However, any claims for damage to a city's property would be addressed by the city's LMCIT coverage, to the extent that such property is covered. Additional information relating to joint powers issues can be found in the following LMCIT Risk Management Information memos which are available on the League website: • Liability Coverage for Joint Powers Agreements (http: / /www.lmnc. org/ pdfs/ LMCITMemos/ LiabilitvCoverageJointPowers .pdf) • Risk Allocation and Coverage Issues for Joint Powers and Mutual Aid Agreements (http://www.lmnc.org/pdfs/LM C I "I' Memos. /Ri skAndCoverageitPowersMAA.pdf) • Joint Powers Agreements: An Outline of Risk Considerations (http: / /www.lmnc.org /pdfs /I:.: MCIT Mem. os/ JointPow ersAgreementsR .iskConsiderations .pdt) Liability Insurance The host committee for the RNC has secured a $10 million Law Enforcement Professional Liability Policy. Each city that executes the JPA will be a "named insured" on the policy and will be protected to the extent of the policy's coverage. One consideration for LMCIT members considering responding under the proposed JPA is whether the $10 million limit provided under this policy is sufficient. The $10 million provided is subject to an aggregate limit, meaning that the most the policy will pay out is $10 million for any and all claims. If there are multiple claims of civil rights violations or similar claims to which the state afforded tort cap protections do not apply, these limits could be insufficient. According to SPPD representatives, no other national convention has held a policy with similarly - sized limits and there have not been claims of this size or scope as a result of past national conventions. While this is certainly no guarantee of whether $10 million is sufficient liability coverage, a city could reasonably determine that the risk of this policy being inadequate is minimal. Republican National Convention JPA Page 4 The following is a brief summary of the policy: • $10 million limit of liability for each wrongful act. • $10 million aggregate limit (i.e., the most the policy will pay out is $10 million for any and all claims). • No deductible. • Occurrence policy (i.e., coverage for losses which occur during the policy period, regardless of when the claim is asserted). • The coverage is primary (the policy will respond to a claim before a city's LMCIT coverage applies, subject to the policy limits). • Defense costs are outside the liability limit (however, attorney fees or expenses awarded to a plaintiff would be subject to the limit). In terms of the coverage, it is important to look at the exclusions in Section V of the law enforcement policy. The policy excludes coverage for a "willful violation...of any federal, state, or local statute, ordinance rule, or regulation" and any "dishonest, fraudulent, bad faith, criminal or malicious: [a]ct; [e]rror or [o]mission." It is easy to imagine that a claim might involve allegations of this kind of conduct. The terms of the policy indicate coverage for damages in a claim of this sort against a peace officer would be excluded, although the policy may provide for defense. More importantly, the policy language seems to exclude coverage for damages against the city when an officer is found to have acted in willful violation, bad faith, etc. The policy also appears to exclude any claim for punitive damages. It is our understanding that some of the terms of the policy are still being clarified, specifically with regards to coverage for a city when its officer is found to have acted in willful violation of the law, bad faith, or similar. One factor that cities should consider is that municipal tort liability limits of $400,000 per claimant and $1.2 million per occurrence would not apply to federal claims against a police officer, including claims 'of excessive force. In addition, cities should be aware that if a plaintiff is successful, the city could be ordered to pay a substantial award of attorney fees even if the actual damages awarded to the plaintiff are relatively small. The payment of a plaintiff's attorney fees would count toward the $10 million policy limit. If the $10 million limit of the law enforcement liability policy is exhausted, a city's LMCIT liability coverage would provide excess coverage. In other words, a city's LMCIT coverage would respond to a claim against the city or a city's police officer that arose from the officer's actions during the RNC. Such a claim would be subject to the city's deductible and LMCIT coverage limits. In addition, the claim would affect a city's experience rating. The experience rating formula used by LMCIT looks at a city's past loss experience as a way to project the city's future losses. The experience rating will then be used to determine future premiums. A claim could also affect the amount of a dividend that is returned to a city by LMCIT. A dividend is only Republican National Convention JPA Page 5 returned when there are unneeded surplus funds. There is never a guarantee that LMCIT will be able to return a dividend in any given year. In conclusion, each city must make a decision whether it will enter into the JPA with the City of St. Paul taking into account the city's desire to provide security during the RNC versus possible risks to the city by providing security. Representatives from the City of St. Paul are available to discuss specific concerns that a city may have regarding the JPA. Law enforcement matters should be directed to Assistant Police Chief Matt Bostrom, (651) 266 - 5545, matt.bostrorn(ci ci.stpaul.rnn.us. Other matters — including clarification about the law enforcement liability policy — should be directed to Ron Guilfoile, Risk Manager, (651) 266 -8888, ron.guilfoile( r,.ci.stpaul.mn.us. The following LMCIT staff are also available to discuss any matters related to the JPA or risks related to a city's response to the RNC: • Ann Gergen, Associate Administrator, (651) 281 -1291, agergenglmc.org • Tom Grundhoefer, General Counsel, (651) 281 -1266, tgrundhoefer@lmc.org • Chris Smith, Risk Management Attorney, (651) 281 -1269; csm.ith@1mc.org