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HomeMy WebLinkAboutSanta Clara County - Probation Department Operational Agreement (2016) - Amendment No. 1DocuSign Envelope ID: A6B7488F-6855-4637-B572-DBACEDDBODCB FIRST AMENDMENT TO OPERATIONAL AGREEMENT BETWEEN COUNTY OF SANTA CLARA AND CITY OF GILROY Amended text (as of this amendment) is denoted below in BOLDFACED font. This is an Operational Agreement ("OA") between the County of Santa Clara ("County") and City of Gilroy ("City") (together, "Parties") relating to the goals and objectives of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Proposition 69). The purpose of this OA is to specify the roles and responsibilities of the participating parties. I. TERM The OA is effective August 1, 2016 through and including June 30, 2021, unless terminated sooner as provided in Section X. II. DESCRIPTION OF SERVICES Proposition 69 requires the collection of DNA of specified adults. The Probation Department ("Probation") has been designated by the County to collect the DNA of qualifying out -of - custody adults who are referred by the City Police Department and present themselves for collection. The collection shall include a buccal swab and right thumb print. City of Gilroy shall refer adults who are required to register under Section 290 or 457.1 of the Penal Code, because of the commission of, or the attempt to commit, a felony or misdemeanor offense (Section 296(a)(3)). III. COMPENSATION There is no monetary compensation between the Parties under this OA. IV. CITY OF GILROY OBLIGATIONS A. Verify in CJIC that a DNA sample of the referred adult has not yet been collected. B. Obtain the electronic finger and palm prints of the referred adult (if not already in AFIS). C. Provide the referred adult with a DNA referral form. The form must include the referred adult's CII number and qualifying offense. D. Instruct the referred adult to call for an appointment, to appear for the appointment on time, and to bring the referral form and a picture identification. E. Provide Probation with a copy of each referral form. F. Maintain updated Gilroy contact person phone number and e-mail address. V. COUNTY OBLIGATIONS A. Obtain DNA kits from the Department of Justice. B. Use picture identification or two -finger match on LiveScan to verify identity of referred adults. DocuSign Envelope ID: A6B7488F-6855-4637-B572-DBACEDDBODCB C. Collect a sample buccal swab of DNA (inner check cells of the mouth) and right thumb print of referred adults. D. Send buccal swab and completed State infortrtation card containing right thumb print to a Department oFJustice collection station. E. Update compliance of referred adult in CJIC within one week of collection. F. Buccal swabs shall only be collected from voluntarily cooperative referred adults. Any others shall be instructed to return to City of Gilroy for further instruction. V1. CONFIDENTIALITY The parties shall maintain confidentiality of all records generated during the term of this OA in accordance with all applicable state and federal laws and regulations. Confidentiality: All client or resident data gathered under this Agreement shall be the sole and exclusive property of the County and shall be subject to all confidentiality restrictions in this Agreement. During the performance of this Agreement, Contractor will have access to confidential information about the client/probationer, which is protected by California and Federal privacy laws and the confidentiality requirements in this Agreement. The Contractor must not disclose, disseminate, or distribute client or resident data gathered under this Agreement, or any anecdotal information about client data, to another entity or party other than the County's Probation Department or an entity designated to receive the data, in writing, by the County's Probation Department. Contractor must use all necessary care to maintain and secure confidential information at all times, including the destruction of this information when it is no longer needed and/or upon termination of this Agreement and ensuring that all data transfers to the County are achieved through a secure method such as encryption, password -protected transfer or other appropriate methods that are preapproved by the County. Contractor must not discuss such information with any other party, without the express written consent of Probation or with the signed consent of parent/guardian or as Contractor may be required by law to disclose. In the event that Contractor receives a subpoena, court order, or other legal document requiring release of the information, or is informed that such document is being requested, Contractor must immediately give notice to the Probation Department in order to permit the County to seek a protective order or other similar order. If it is discovered that unauthorized persons have accessed or attempted to access client or residential data, the Contractor will inform the County preferably immediately, but no later than within 24 hours. VII. INDEMNIFICATION In lieu of and not withstanding the pro rata risk allocation which might otherwise be imposed between the Parties pursuant to Government Code Section 895.6, the Parties agree that all First Amendment to Operational Agreement between the County of Santa Clara and City of Gilroy, FY 17-FY21 Prop 69 Pave 2 of 7 DocuSign Envelope ID: A6B7488F-6855-4637-B572-DBACEDDBODCB losses or liabilities incurred by a party are not be shared pro rata but instead the County and City of Gilroy agree that pursuant to Government Code Section 895.4, each of the parties hereto must fully indemnify and hold each of the other parties, their officers, board members, employees and agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as defined by Government Code Section 810.8) occurring by reason of the negligent acts or omissions or willful misconduct of the indemnifying party, its officers, board members, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such party under this OA. No party, nor any officer, board member, employee or agent thereof is responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of other parties hereto, their officers, board members, employees or agents, under or in connection with or arising out of any work, authority or jurisdiction delegated to such other parties under this OA. VIII. INSURANCE Each party to this OA shall, at its own expense, maintain a program of self-insurance and/or insurance for general liability coverage in the amount of at least one million dollars ($1,000,000) per occurrence and in the aggregate and statutory California workers' compensation coverage. This coverage shall remain in force during the entire term of this OA. Each party shall provide evidence that the required coverage is in place. IX. AMENDMENTS Any amendment to this OA shall be clearly marked as an "amendment" and is effective only upon the signed approval of all parties. X. TERMINATION A. Either party may terminate this OA upon 30 days written notice to the other party; such notice to be provided to the Chief Probation Officer and City of Gilroy Chief of Police. XI. STANDARD PROVISIONS: A. Entire Agreement — This Agreement and its Appendices (if any) constitutes the final, complete and exclusive statement of the terms of the agreement between the parties. It incorporates and supersedes all the agreements, covenants and understandings between the parties concerning the subject matter hereof, and all such agreements, covenants and understandings have been merged into this Agreement. No prior or contemporaneous agreement or understanding, verbal or otherwise, of the parties or their agents shall be valid or enforceable unless embodied in this Agreement. B. Conflicts of Interest — Contractor shall comply, and require its subcontractors to comply, with all applicable (i) requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code section 1090 et. seq., the California Political Reform Act (California Government Code section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations section 18700 et. seq.). Failure to do so constitutes a material breach of this Agreement and is grounds for immediate termination of this Agreement by the County. First Amendment to Operational Agreement between the County of Santa Clara and City of Gilroy, FY17-FY21 Prop 69 Page 3 of 7 DocuSign Envelope ID: A6B7488F-6855-4637-B572-DBACEDDBODCB In accepting this Agreement, Contractor covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of this Agreement. Contractor further covenants that, in the performance of this Agreement, it will not employ any contractor or person having such an interest. Contractor, including but not limited to contractor's employees and subcontractors, maybe subject to the disclosure and disqualification provisions of the California Political Reform Act of 1974 (the "Act"), that (1) requires such persons to disclose economic interests that may foresecably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will foreseeably financially affect such interests. If the disclosure provisions of the Political Reform Act are applicable to any individual providing service under this Agreement, Contractor shall, upon execution of this Agreement, provide the County with the names, description of individual duties to be performed, and email addresses of all individuals, including but not limited to Contractor's employees, agents and subcontractors, that could be substantively involved in "making a governmental decision" or "serving in a staff capacity and in that capacity participating in making governmental decisions or performing duties that would be performed by an individual in a designated position," (2 CCR 18701(a)(2)), as part of Contractor's service to the County under this Agreement. Contractor shall immediately notify the County of the names and email addresses of any additional individuals later assigned to provide such service to the County under this Agreement in such a capacity. Contractor shall immediately notify the County of the names of individuals working in such a capacity who, during the course of the Agreement, end their service to the County. If the disclosure provisions of the Political Reform Act are applicable to any individual providing service under this Agreement, Contractor shall ensure that all such individuals identified pursuant to this section understand that they are subject to the Act and shall conform to all requirements of the Act and other laws and regulations listed in subsection (A) including, as required, filing of Statements of Economic Interests within 30 days of commencing service pursuant to this Agreement, annually by April 1, and within 30 days of their termination of service pursuant to this Agreement. C. Governing Law, Venue — This Agreement has been executed and delivered in, and shall be construed and enforced in accordance with, the laws of the State of California. Proper venue for legal action regarding this Agreement shall be in the County of Santa Clara. D. Assignment — No assignment of this Agreement or of the rights and obligations hereunder shall be valid without the prior written consent of the other party. E. Assignment of Clayton Act, Cartwright Act Claims — Contractor assigns to the County all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), First Amendment to Operational Agreement between the County of Santa Clara and City of Gilroy, FY17-FY21 Prop 69 Page 4 of 7 DocuSign Envelope ID: A6B7488F-6855-4637-B572-DBACEDDBODCB arising from purchases of goods, materials, or services by the Contractor for sale to the County pursuant to this Agreement. F. Waiver — No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted by a party shall be in writing and shall apply to the specific instance expressly stated. G. Third Party Beneficiaries — This agreement does not, and is not intended to, confer any rights or remedies upon any person or entity other than the parties. H. Contract Execution - Unless otherwise prohibited by law or County policy, the parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term "electronic copy of a signed contract" refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term "electronically signed contract" means a contract that is executed by applying an electronic signature using technology approved by the County. I. Cultural Competency: Cultural Diversity and Inclusion Services must be provided in a culturally responsible manner to the entire target population, demonstrating fair and equitable practices for participants of diverse identities including gender, age, religion, race, ethnicity, sexual orientation, gender identity, and disability. It is the policy of the County of Santa Clara Probation Department to maintain and promote an organization that provides the highest quality of services to clients regardless of actual or perceived sexual orientation, gender identity, or gender expression. Lesbian, Gay, Bisexual and Transgender (LGBT) clients under the supervision of the Probation Department shall receive fair and equitable treatment, without fear of negative bias or discrimination and in a professional and confidential manner based on principles of sound professional practice. J. The Contractor must report all major and/or media -sensitive incidents to the Probation Department contract monitor. Major or sensitive incidents include but are not limited to: serious injury or death related to the services provided under the contract; serious injury or death of any person in the Contractor's care; serious injury or death of any person on property owned, leased, or operated by the Contractor, including but not limited to facilities, parks, sidewalks, roads, and parks; serious damage to the property of another related to the services provided by the Contractor under this Agreement; criminal conduct involving Contractor personnel; any event that has a significant possibility of resulting in a claim or lawsuit against the County; any event that has a significant possibility of resulting in First Amendment to Operational Agreement between the County of Santa Clara and City of Gilroy, FY17-FY21 Prop 69 Page 5 of 7 DocuSign Envelope ID: A6B7488F-6855-4637-B572-DBACEDDBODCB a claim or lawsuit against the Contractor that is related to this Agreement; and any event that has a possibility of receiving public or media attention. The Contractor shall report any such incidents as soon as possible but no later than twenty-four (24) hours from when the incident occurred. The Contractor must include the following information in all incident reports: name and contact information of the submitting individual; name and email address of the best contact for immediate access to a Contractor staff member who can answer questions regarding the incident; an indication of whether press coverage is likely; an incident description, including date, time, and location of the incident; the names and job titles of Contractor personnel involved in the incident; and a description any action taken in response to the incident. XII. NOTICES All notices prescribed by this OA shall be in writing and are deemed effective upon their deposit in the United States mail, postage prepaid with return receipt requested and addressed: a. To County: Administrative Services Division Probation Department 2314 N. First Street San Jose, CA 95131 b. To City: Administration Gilroy Police Department 7301 Hanna Street Gilroy, CA 95020 11 11 11 /1 11 1/ First Amendment to Operational Agreement between the County of Santa Clara and City of Gilroy, FY17-FY21 Prop 69 Page 6 of 7 DocuSign Envelope ID: A6B7488F-6855-4637-B572-DBACEDDBODCB XIII. SIGNATURES IN WITNESS WHEREOF, the parties have executed this OA as indicated below: CITY OF GILROY POLICE DEPARTMENT Gabriel Gonzalez ate City Administrator Approved as to Form: Gilroy City Attorney's Office 6y:_ 7 1 City Attorney TTES�T� ity r� — COUNTY OF SANTA CLARA E D­s11nea by: 1 I 66;2- ]499. 1/16/2020 Laura Garnette Date Chief Probation Officer APPROVED: Eocusignetl by: 1/ 16/2 02 0 �gn,nnen� Jeffrey V. Smith Date County Executive APPROVED AS TO FORM AND LEGALITY E D-8i,n,d by: 69a 9 &i&ems 1/14/2020 ] Marcelo Quinones Date Deputy County Counsel First Amendment to Operational Agreement between the County of Santa Clara and City of Gilroy, FYI7-FY21 Prop 69 Page 7 of 7