FIRST AMENDMENT TO
MEMORANDUM OF UNDERSTANDING
REGARDING THE OPERATION OF THE
AUTOMATED FINGERPRINT IDENTIFICATION SYSTEM
AND TO PROVIDE LOCAL LAW ENFORCEMENT AGENCIES
ACCESS TO THE CALIFORNIA IDENTIFICATION SYSTEM
This First Amendment to the Memorandum of Understanding
Regarding the Operation of the Automated Fingerprint Identification System and
to provide Local Law Enforcement Agencies access to the California
Identification System is made and entered into this 25th day of
April, 2003, by and among the COUNTY OF SANTA CLARA, a county of the State of
California (“County”), the CITY OF CAMPBELL, a municipal corporation, the CITY
OF CUPERTINO, a municipal corporation, the CITY OF GILROY, a municipal
corporation, the CITY OF LOS ALTOS, a municipal corporation, the TOWN OF LOS
ALTOS HILLS, a municipal corporation, the TOWN OF LOS GATOS, a municipal
corporation, the CITY OF MILPITAS, a municipal corporation, the CITY OF MONTE
SERENO, a municipal corporation, the CITY OF MORGAN HILL, a municipal
corporation, the CITY OF MOUNTAIN VIEW, a municipal corporation, the CITY OF
PALO ALTO, a municipal corporation, the CITY OF SAN JOSE, a municipal
corporation, the CITY OF SANTA CLARA, a municipal corporation, the CITY OF
SARATOGA, a municipal corporation, and the CITY OF SUNNYVALE, a municipal
corporation (hereinafter collectively referred to as “Incorporated Cities”).
RECITALS
Whereas, on April 26 1988, the County and Incorporated
Cities entered into an "Agreement to Provide Local Law Enforcement Agency
Access to the California Identification System" which Agreement has been
amended from time to time (CAL-ID Agreement); and
Whereas, on May 20, 1997, the County and City of San
Jose entered into a "Memorandum of Understanding Regarding the Acquisition
and Operation of the Automated Fingerprint Identification System between the
City of San Jose and the County of Santa Clara" (AFIS Agreement); and
Whereas, on October 8, 2002, County and Incorporated
Cities entered into a Memorandum of Understanding Regarding the Operation of
the Automated Fingerprint Identification System and to provide Local Law
Enforcement Agencies access to the California Identification System
("MOU") to set forth their respective obligations with respect to the
cost and operation and maintenance of the CAL-ID and AFIS Program
("Consolidated Program"); and
Whereas, County and Incorporated Cities desired to amend
the terms of the MOU
NOW,
THEREFORE, County and Incorporated Cities hereby agree as follows:
1. Section 2 of
the MOU is amended to read as follows:
SECTION
2. TERM AND TERMINATION
The Effective Date of this MOU shall be the date it has
been executed by the County and the City of San Jose. This MOU shall be additionally binding as to each of the other
Incorporated Cities as of the date that the individual Incorporated City has
executed a Signature Addendum. The MOU
shall continue in effect until terminated by the parties, either as a whole, or
individually.
Any party may terminate their participation in this MOU
by providing written notice of termination to the City of San Jose. Termination of this MOU by any Incorporated
City, excluding the City of San Jose, shall not terminate the MOU as to the
County, the City of San Jose or any of the other remaining Incorporated
Cities. The termination shall be
effective sixty (60) calendar days after the City of San Jose’s receipt of such
notice. Termination does not relieve
the County or any Incorporated City from paying costs to June 30 of the fiscal
year of termination as commitments have been made to all uses of the shared
operation costs for the fiscal year. In
addition, the County or Incorporated City remains obligated to payback for any
commitment that extends beyond the end of the fiscal year of termination,
provided that the City Manager/County Executive or City Council/Board of
Supervisors signs a separate agreement acknowledging the full payback
commitment.
2. Section 7 of the MOU is amended to read as follows:
SECTION
7. MUTUAL INDEMNIFICATION AND HOLD
HARMLESS
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 losses or liabilities
incurred by a party shall not be shared pro rata but instead the County and parties agree that pursuant to
Government Code Section 895.4, each of the parties hereto shall 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 Agreement.
No party, nor any officer, board member, employee or agent thereof shall
be 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 Agreement. For
purposes of this paragraph, "agents" does not include another party
to this MOU.
3. Section 8 is amended to read as follows:
SECTION
8. DISPUTE RESOLUTION
Any
dispute among the parties regarding the interpretation or application of any
term of this MOU or any exhibit thereto may be brought to the Local Policy
Board. The Local Policy Board shall
meet within 60 days of such notification by an interested party, or parties,
and shall make their best efforts to render a determination regarding the dispute.
4. The following new sections are added to be numbered
and entitled and to read as follows:
SECTION 9. NOTICE
All
notices required by this MOU will be deemed given when in writing and delivered
personally or deposited in the United States mail, postage prepaid, return
receipt requested. Notices given to
the City of San Jose and the County shall be given at the addresses set forth
below. Notices given to any of the
Incorporated Cities joining this MOU by signing a Signature Addendum shall be
sent to person indicated on the Signature Addendum.
City of
San Jose Police Department
Office
of the Chief of Police
201 West
Mission St.
San
Jose, CA 95110
Santa
Clara County Sheriff
Office
of the Sheriff
55 West
Younger Avenue
San
Jose, CA 95110
The
District Attorney of Santa Clara County
Office
of the District Attorney
70 West
Hedding Street
San
Jose, CA 95110
SECTION 10. AMENDMENTS
This
Agreement may be amended only by an instrument signed by the parties.
SECTION 11. COUNTERPARTS
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and
the same instrument.
SECTION 12. SEVERABILITY
If any
provision of this Agreement is found by a court of competent jurisdiction to be
void, invalid or unenforceable, the same will either be reformed to comply with
applicable law or stricken if not so conformable, so as not to affect the
validity or enforceability of this Agreement.
SECTION 13. 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 must be in
writing, and shall apply to the specific instance expressly stated.
SECTION 14. GOVERNING LAW
This
Agreement has been executed and delivered in, and will be construed and
enforced in accordance with, the laws of the State of California.
SECTION 15. ENTIRE AGREEMENT
This document represents the entire
Agreement between the parties with respect to the subject matter hereof. All prior negotiations and written and/or
oral agreements between the parties with respect to the subject matter of this
Agreement are merged into this Agreement.
5. Exhibit A is amended to read as set forth in
Revised Exhibit A which is attached hereto.
6. Exhibit B is amended to read as set forth in
Revised Exhibit B which is attached hereto.
7. Exhibit
D is amended to read as set forth in Revised Exhibit D which is attached hereto
8. All
of the terms and conditions of the original MOU not modified by this First
Amendment shall remain in full force and effect.
APPROVED AS TO FORM |
|
CITY OF SAN
JOSÉ |
||
|
|
|
By: |
|
|
|
Brian Doyle Senior Deputy
City Attorney |
|
|
Patricia L.
O’Hearn City Clerk |
|
|
|
|
COUNTY OF
SANTA CLARA |
||
|
|
|
By: |
|
|
|
|
|
|
George Kennedy District
Attorney |
|
|
|
|
By: |
|
|
|
|
|
|
Laurie Smith, Sheriff |
|
|
|
|
|||
|
APPROVED AS TO FORM AND LEGALITY |
|
|||
|
|
|
|||
FIRST
AMENDMENT TO
MEMORANDUM OF UNDERSTANDING
REGARDING THE OPERATION OF THE
AUTOMATED FINGERPRINT IDENTIFICATION SYSTEM
AND TO PROVIDE LOCAL LAW ENFORCEMENT AGENCIES
ACCESS TO THE CALIFORNIA IDENTIFICATION SYSTEM
SIGNATURE
ADDENDUM
By
executing below the undersigned Incorporated City acknowledges and accepts the
terms and conditions of the First Amendment to the Memorandum of Understanding Regarding The Operation Of The Automated
Fingerprint Identification System And To Provide Local Law Enforcement Agencies
Access To The California Identification System which has been approved
by City Council of the City of San Jose and the Board of Supervisors of the
County of Santa Clara, and executed by City and County and is on file in the
Office of the City Clerk of the City of San Jose.
All
notices required by this Agreement will be deemed given when in writing and
delivered personally or deposited in the United States mail, postage prepaid,
return receipt requested, addressed to the other party at the address set forth
below or at such other address as the party may designate in writing:
(Provide name and address to which notice must be sent)
|
INCORPORATED
CITY By: Name:__________________________ Title:____________________________ Date:
___________________________ |
REVISED
EXHIBIT A
COST RESPONSIBILITIES
A.1 LOCAL POLICY BOARD
A. Pursuant to California Penal Code Section
11112.4, a local, remote access network board, known as the “Santa Clara County
CAL-ID RAN Policy Board” (“Local Policy Board”), has been established, which is
currently composed of the following members: a member of the Board of Supervisors,
the Sheriff, the District Attorney, the Chief of Police of the department
having the largest number of sworn personnel within the county, a Chief of
Police selected by all of the Police Chiefs within the County, a Mayor selected
by City Selection Committee established pursuant to California Government Code
Section 50270, and a member-at-large chosen by the other members.
B. Pursuant to California Penal Code Section
11112.4, the Local Policy Board shall:
1. Establish policies and procedures necessary
to implement the purposes of this MOU.
2. Establish a budget and approve expenditures
consistent with the terms of this MOU.
3. Determine and coordinate the purchase,
acceptance, placement, installation, use, maintenance, replacement, disposition
of, and all other matters concerning the local AFIS and all local RAN equipment
within the County, adhering to the policy guidelines and procedures adopted by
the California Department of Justice.
4. Develop procedures to regulate the ongoing
use and maintenance of the local AFIS and the local RAN equipment adhering to
the policy guidelines and procedures adopted by the California Department of
Justice; and
5. Determine the placement of personnel funded
by the CAL-ID Program.
A.2 ADMINISTRATION
The City of San Jose has been and shall continue to be
the general administering agency for the CAL-ID Program. The City of San Jose has been and shall
continue to provide fiscal management of the CAL-ID Program fund and expenditures,
including but not limited to: (1) establishing the interest-bearing accounts
pursuant to Exhibit B into which shall be deposited all funds received under
this MOU and from which shall be paid all costs and expenses incurred under
this MOU; (2) billing each party for that party’s share of the costs under this
MOU; (3) providing each of the parties and the Local Policy Board with periodic
reports and an annual financial report at the end of each fiscal year; and (4)
payment of all Local Policy Board expenses.
A.3 COSTS
Cost components of the CAL-ID Program in Santa Clara
County include: (i) new equipment
costs; (ii) annual operating costs, and (iii) miscellaneous costs related to
the operation of the CAL-ID Program not included in Subparagraphs (i) and
(ii). For purposes or this MOU, “annual
operating costs” shall include, but not be limited to, the cost of personnel,
supplies, materials, utilities, maintenance, repair, training, and other
overhead costs incurred in the annual operation of the CAL-ID Program.
A.4 ALLOCATED PERCENTAGES
All costs of the
CAL-ID Program as set forth in subsection A.3, above, shall be allocated among
the parties to the MOU based on each party’s percentage share of the total
population of each local agency
participating in the CAL-ID Program (“the Allocated Percentages”) Additionally, the County’s Office of the
District Attorney shall contribute 26.8 percent of the entire budget. The initial Allocated Percentages shall be
as set forth in Attachment I to this First Amendment to MOU.
Thereafter, on an
annual basis, the Board shall recalculate the Allocated Percentages based upon
the population figures used for allocating these costs. The Allocated Percentages shall be based on
the most recent State of California Department of Finance Population
Estimates. For the purpose of this MOU,
the County share of population shall be the population of the unincorporated
area of the County.
A.5 ANNUAL
BUDGET
1. No later than 150 days prior to the
commencement of any fiscal year, the City of San Jose shall estimate the costs
for that fiscal year. The estimated
annual budget shall be approved, disapproved or amended by the Local Policy
Board.
2. On or before April 1 of the preceding fiscal
year, the City of San Jose shall notify each party of its share of the estimated
costs for the succeeding year, which shall be allocated among the parties in
the manner prescribed in Section A.4. above.
3. Payments required to be paid under this
Section shall be paid to the order of the City of San Jose and delivered to the
City of San Jose Finance Department, on or before August 15 of the fiscal year
for which the payments are due.
4. Payments made pursuant to this
MEMORANDUM OF UNDERSTANDING shall be nonrefundable and shall not be returned to
any party unless all parties agree to terminate this MEMORANDUM OF
UNDERSTANDING and to discontinue the CAL-ID Program in Santa Clara County.
5. Payments shall be deposited in
interest bearing trust accounts maintained by the City of San Jose for benefit
of the CAL-ID Program, with any earned interest being applied to the
account. The City of San Jose shall
serve as the trustee of the accounts and shall have the authority to deposit
and withdraw funds from the accounts to pay for costs according to the annual
budget approved by the Local Policy Board.
6. Reserve Fund. The Local Policy Board has since 1988
maintained in a separate interest bearing trust account a reserve fund
(“Reserve”) that has accrued since 1988 from budget surpluses and interest
accrued on the corpus of the fund. The
Reserve funds shall be held in interest bearing trust account for benefit of
the CAL-ID Program. The City of San
Jose shall serve as the trustee of the account and shall have the authority to
deposit and withdraw funds from the account.
The Local Policy Board shall develop written policies regarding the
maintenance and use of the Reserve. The
Local Policy Board shall have the authority to maintain this Reserve and to use
funds from it for the purpose of paying any of the costs required under this
Agreement.
A.6 BUDGET
ADJUSTMENTS
If, in any fiscal year, the actual annual costs are
higher than as previously determined by the Local Policy Board, the Local
Policy Board, with the assistance of the City of San Jose, shall determine the
additional amount needed to meet the costs for that fiscal year. Each party shall contribute its share of the
additional amount, which share will be based on the party’s percentage share of
the total population of all parties participating in the CAL-ID Program. The additional payments shall be paid to the
order of the City of San Jose and delivered to the City of San Jose Finance
Department within thirty (30) days of billing.
A.7 EMPLOYEES
The City of San Jose shall provide such employees as the
Local Policy Board considers necessary to the efficient operation of the CAL-ID
Program. The persons provided by the
City pursuant to this Section shall remain employees of the City of San
Jose. The salary and all fringe benefit
costs incurred by the City of San Jose in the employment of persons provided
pursuant to this section shall be paid for out of the payments made by the
parties pursuant to Section A.5 at the time these costs are due and payable.
A.8 RESIDUAL COSTS
Each of the following parties acknowledges and agrees
that the allocated costs outlined in Attachment A of this MOU are due and
payable to the City of San Jose under the CAL-ID Agreement.
A non-participating agency seeking to participate in the
CAL-ID System shall be allowed to become a party to this agreement only with
the approval of the Local Policy Board.
In addition new participating agencies may be required to execute an
addendum or amendment to the MEMORANDUM OF UNDERSTANDING by which the new
agency agrees to be a party to this MEMORANDUM OF UNDERSTANDING and to be
subject to all of its terms and conditions.
If the addendum or amendment does not require any greater expenditure by
the City of San Jose after approval of the Local Policy Board, it may be executed
by the City Manager of the City of San Jose, who is authorized to execute the
addendum or amendment on behalf of the parties to this MEMORANDUM OF
UNDERSTANDING.
REVISED
EXHIBIT B
OPERATIONAL RESPONSIBILITIES
B.1 PRIMARY OPERATION RESPONSIBILITY
The City of San Jose shall be primarily responsible for
the overall operation and maintenance of
the CAL-ID Program consistent with the budget and overall direction
mutually established by the Local Policy Board.
B.2 CITY OF SAN JOSE’S RESPONSIBILITIES
City of San Jose shall provide the following services:
B.3 COUNTY’S RESPONSIBILITIES
County shall provide the following services:
1.
County shall
provide space and power for all County operated AFIS equipment which is linked
to CIU.
2.
County shall
provide and maintain CJIC interface to AFIS.
3.
County shall
maintain and perform corrections to CJIC database and consolidate multiple
person files.
4.
County shall
provide and maintain all of the communication lines between CIU and all remote
access sites of the County.
5.
County shall maintain
the direct telephone line between CIU and Santa Clara Department of Corrections
Main Jail.
B.4 INCORPORATED CITY’S RESPONSIBILITIES
Incorporated Cities shall provide the following
services:
1.
Each Incorporated
City shall provide space and power for their City’s operated AFIS equipment
which is linked to CIU.
2.
Each Incorporated
City shall provide their own personnel that shall be responsible for rolling
fingerprints at their livescan sites.
3.
Each Incorporated
City shall be responsible for installation of any future communication lines
and to maintain current and future communications lines between CIU and the
Incorporated City.
B.5 ACCESS
City and County shall each have the right to search, to
determine system status (files, statistics, and throughput). Only CIU staff has the right to register
prints or to make changes to database files.
Terminals outside of CIU shall not have the ability to make file
changes. However, County and
Incorporated Cities, if they later purchase and install such equipment, may add
latent print files to the “Unsolved Latent Print” database from it’s Latent
Print terminal.
EXHIBIT
D
DEFINITIONS
AFIS the Automated Fingerprint Identification System including all hardware and software necessary to perform the intended purposes as stated in this Agreement
Annual Budget the CIU operating budget for a particular
fiscal year as agreed upon by the CAL-ID agencies through the procedure
established in relation to the CAL-ID RAN Policy Board
CAL-ID the
State of California Fingerprint Identification System; also used in reference
to an agreement with local law enforcement agencies related to provision of
certain specified fingerprint services including searches of the State database
from the LIT operated by CIU
CIU the
Central Identification Unit of the San Jose Police Department
CJIC Criminal
Justice Information Control, the County’s system for local adult criminal case
tracking, local criminal history recording and other related functions
County means
the County of Santa Clara, its agencies and subdivisions, including the Office
of the Coroner and the District Attorney’s Office
Fiscal Administrator a responsibility of the City
of San Jose that includes preparation of a proposed annual budget for CIU,
management of the agreed upon budget within the parameters established,
provision of periodic financial reports of revenues and expenditures, timely
payment of bills or warrants for agreed upon services and supplies, maintenance
of financial records according to GAAP, and provision of access as defined in
Section 5
GAAP Generally
Accepted Accounting Principles
Latent Print Files digital or hardcopy images of fingerprints
taken from crime scenes
LIT Equipment Local Input Terminal used to search the
state AFIS
Local Policy Board CAL-ID Remote Access Network (RAN) Policy Board as
described in Section A.1 (A).
RAN Remote
Access Network; access to the state AFIS through the LIT
Tenprint or 10-Print Files digital or hardcopy images of rolled
fingerprints