HomeMy WebLinkAboutD-3 Staff Report - USACE MOU SCHEDULED ITEM
D-3
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: SERGIO GONZALEZ, CITY MANAGER
FROM: MIKE BERTELSEN, CHIEF OF POLICE
DATE: SEPTEMBER 21, 2020
SUBJECT: REVIEW AND PROVIDE INPUT ON THE DRAFT MEMORANDUM OF
UNDERSTANDING BETWEEN THE CITY OF AZUSA AND UNITED STATES
ARMY CORPS OF ENGINEERS FOR LAW ENFORCEMENT SERVICES FOR THE
FEDERAL WATER INFRASTRUCTURE SITES LOCATED WITHIN THE CITY OF
AZUSA’S JURISDICTION
BACKGROUND:
The U. S. Army Corps of Engineers (USACE) is charged with the responsibility of managing and
ensuring the safety of federal water infrastructure, including but not limited to water bodies, dams,
levees, spillways, basin areas, and other infrastructure. The San Gabriel Riverbed, which lies within the
jurisdiction of the City of Azusa, falls under the responsibility of the USACE. In the past, the City of
Azusa has entered into an agreement, Memorandum of Understanding (MOU), with USACE in order to
contribute to the safety and security of the federal Water Infrastructure Sites located within the City of
Azusa, and has supported the local security and law enforcement needs of the City of Azusa.
RECOMMENDATION:
Staff recommends the City Council take the following actions:
1)Review and provide input on the draft 12 month Memorandum of Understanding between the
U.S. Army Corps of Engineers and the City of Azusa to provide law enforcement services for the
Federal Water Infrastructure Sites located within the City of Azusa’s jurisdiction and direct staff
and the city attorney to execute the agreement accordingly subject to any non-substantive
changes needed.
2)Discuss and consider establishing an Ad Hoc Committee to work with neighboring cities, the
San Gabriel Valley Council of Governments (SGVCOG) and interested groups to address
homelessness in the riverbed, temporary housing, and other available resources.
APPROVED
CITY COUNCIL
9/21/2020
Direction Provided
U.S. Army Corps of Engineers MOU
September 21, 2020
Page 2
ANALYSIS:
This Memorandum of Understanding establishes a foundation on which a working collaboration is being
formed between the USACE and the City of Azusa Police Department (AZPD) to establish security and
law enforcement services of the Federal Water Infrastructure Sites within the City of Azusa. The
agreement allows AZPD to carry out police powers, state statues and local ordinances, for the protection
of life and property on and around Federal Water Infrastructure Sites. The agreement establishes a
means to facilitate effective communication and exchange of relevant information between the parties.
ACE has recently established a Park Ranger program and has currently hired four Rangers for the
Southern California region. The Park Rangers will eventually be able to issue citations, but the
procedures are still under development. AZPD has joined ACE’s Security and Law Enforcement
working group to assist and provide input on the future of law enforcement services of Federal Water
Infrastructure Sites.
AZPD is also working with ACE’s Security and Law Enforcement Branch in hopes of entering into a
Law Enforcement Services Contract to provide some reimbursement for the costs of law enforcement
services of the Federal Water Infrastructure Sites within the City of Azusa.
Currently the ACE budget of approximately seventeen (17) million dollars is for the maintenance of
forty-five (45) miles of river and five (5) dams. ACE currently have no funding for clean-up operations
or issues related to homeless encampments. ACE has recently appointed a regional Homeless Liaison
and is working on allocating funds to address the homeless issues throughout Federal Water
Infrastructure Sites.
ACE has stated they are in discussions with the Federal Protection Services (FPS) to provide
intermittent armed law enforcement services to their Federal Water Infrastructure Sites. This service
would be in conjunction with this agreement to provide AZPD with additional resources.
FISCAL IMPACT:
Currently there is no funding obligation but the cost of services in the Federal Water Infrastructure Sites
falls partially on the City of Azusa. Costs include salaries/overtime of police personnel for services and
outreach within the Federal Water Infrastructure Sites. Additionally, the City of Azusa has allowed for
city crews to assist in clean-up operations and the rental of trash dumpsters. Some costs of outreach,
enforcement, and cleanup operations are partially funded through HOST and the SGVCOG Measure H
Grant.
Prepared by: Reviewed and Approved:
Mike Bertelsen Sergio Gonzalez
Chief of Police City Manager
Attachment:
1) U.S. Army Corps of Engineers Memorandum of Understanding
i
MEMORANDUM OF UNDERSTANDING
BETWEEN
U.S. ARMY CORPS OF ENGINEERS, LOS ANGELES DISTRICT
AND
CITY OF AZUSA
SUBJECT: Mutual Assistance, Incident Response, Resolution
Table of Contents
1. Introduction
2. Purpose
3. Authority
4. Response Guidelines
5. Term And Termination
6. No Funding Obligation
7. Miscellaneous
8. Acknowledgement
Enclosure A – Points of Contact
Attachment 1
1
MEMORANDUM OF UNDERSTANDING
BETWEEN
U.S. ARMY CORPS OF ENGINEERS, LOS ANGELES DISTRICT
AND
CITY OF AZUSA
SUBJECT: Mutual Assistance, Incident Response, Resolution
1. Introduction
a. This Memorandum of Understanding (“MOU”) is entered into by and between the
United States of America, acting by and through the U.S. Army Corps of Engineers, Los
Angeles District, Security and Law Enforcement Division, as authorized by applicable
law (hereinafter referred to as “USACE”) and the City of Azusa, a California
municipality, acting by and through the Azusa Police Department as authorized by
applicable law (hereinafter referred to as “APD”). This MOU is effective (“Effective
Date”) as of the last date executed by all the parties set out below. USACE and APD
are each referred to herein as a “party” and collectively as the “parties” to this MOU.
b. USACE is charged with the responsibility of managing and ensuring the security
and safety of federal water infrastructure and other federal real property within its
jurisdictional control or oversight, including but not limited to water bodies, dams,
levees, spillways, basin areas, structures, facilities and other infrastructure (each and
collectively referred to herein as the “Federal Water Infrastructure Sites”).
c. The APD acknowledges the importance of securing the Federal Water
Infrastructure Sites against acts of terrorism, theft, sabotage and other crimes and
desires to enter into this MOU in order to contribute to the safety and security of the
Federal Water Infrastructure Sites located within its jurisdiction, which supports the local
security and law enforcement needs of the City of Azusa and falls within APD’s local
police power.
d. The parties both acknowledge and agree that this MOU is intended to facilitate
implementation of Homeland Security Presidential Directive – 12 (“HSPD-12”),
Presidential Decision Directives 39 and 62 (the “PDDs”), Homeland Security PD 5
(“HSPD”), the National Response Plan (“NRP”) and the National Incident Management
System (“NIMS”) and other applicable laws, each as amended from time to time.
2. Purpose. This MOU does not restrict a party in exercising its discretion in each case
to make decisions based on its judgment about the specific facts and application of
relevant statutes, regulations, policies and other applicable standards. With this
understanding, the purpose of the MOU is to:
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SUBJECT: Mutual Assistance, Incident Response, Resolution
a. Provide a clear basis for contingency response planning, coordination and
collaboration between APD and USACE for the security of the Federal Water
Infrastructure Sites located within the City of Azusa and other nearby areas within
APD’s jurisdiction, where allowed by applicable law.
b. Facilitate effective communication and exchange of relevant information between
the parties.
c. Ensure timely, reliable, effective decision-making and response actions by the
parties.
d. Except as otherwise provided in applicable federal law or regulation (e.g., 36
CFR 327), allow APD to carry out its police powers, including enforcement of state
statutes, and city ordinances, for the protection of property and civilians in, on and
around the Federal Water Infrastructure Sites where allowed by applicable law, with
respect to:
(1) Operation and use of motor vehicles, vessels, and aircraft;
(2) Hunting, fishing and trapping;
(3) Use or possession of firearms or other weapons;
(4) Civil disobedience or criminal acts (e.g. unauthorized camping, structures or
occupancy);
(5) Littering, sanitation and pollution; and,
(6) Alcohol or other controlled substances.
e. Support the parties’ ability to work together to achieve the common goals of:
(1) Protection of life in or on the Federal Water Infrastructure Sites;
(2) Protection of security in or on the Federal Water Infrastructure Sites; and,
(3) Assistance with the removal of debris and homeless encampments in or on
the Federal Water Infrastructure Sites.
3. Authority. The following standards, regulations, policies and statutes are
incorporated into and made a part of this MOU by this reference:
a. HSPD-12, PDDs 39 and 62, HSPD- 5, the NRP and NIMS. In particular, HSPD-
5, the NRP and NIMS instruct federal agencies to coordinate with local jurisdictions for
incident management and provide for incident response at the lowest possible
organizational level.
3
SUBJECT: Mutual Assistance, Incident Response, Resolution
b. Section 102-74.440 of Part 102-74 of Title 41 of the Code of Federal Regulations
(41 CFR 102-7.440). Part 102-74 applies to all real property operated under or subject
to the authority of the General Services Administration (“GSA”) regardless of which
federal agency uses or occupies said real property. Pursuant to Section 102-74.15,
USACE is responsible for reporting all crimes and suspicious circumstances occurring
on Federally controlled property first to the regional Federal Protective Service, and as
appropriate, to the local responding law enforcement authority, which, for purposes of
this MOU, is the APD.
c. Section 930(d) of Title 18 of the United States Code (18 U.S.C. 930(d)) and 41
CFR 102.74 (Appendix). Possession of firearms or other dangerous weapons are
prohibited on Federal property except that such requirement does not apply to:
(1) the lawful performance of official duties by an officer, agent, or employee of
the United States, a State, or a political subdivision thereof, who is authorized by law to
engage in or supervise the prevention, detection, investigation, or prosecution of any
violation of law; or,
(2) the possession of a firearm or other dangerous weapon by a Federal official
or a member of the Armed Forces if such possession is authorized by applicable law.
d. Part 327 of Title 36 of the CFRs (36 CFR 327) --“Rules and Regulations
Governing Public Use of Water Resource Development Projects Administered by the
Chief of Engineers”. In particular, refer to Section 327.26 (36 CFR 327.26).
e. Other local, state and federal laws, as applicable. This MOU does not modify
existing APD or USACE authorities by reducing, expanding or transferring any of the
statutory or regulatory authorities and responsibilities of either party.
f. This MOU is not a final Federal agency action by USACE, and does not, and is
not intended to, create any right, benefit, or responsibility, substantive or procedural,
enforceable at law or equity by any person or party against the United States, its
agencies, its officers, or any other person, except as otherwise expressly provided
elsewhere in this MOU.
g. This MOU neither expands nor is in derogation of those powers and authorities
vested in either USACE or APD by applicable local, state or federal law and this MOU
does not alter or modify compliance with any applicable local, state or federal laws. This
MOU is to be construed in a manner consistent with all applicable laws.
4
SUBJECT: Mutual Assistance, Incident Response, Resolution
4. Response Guidelines
a. Notification. When suspicious activity, a terrorist threat or criminal act occurs or
is reasonably believed to have occurred, or a warrant for arrest exists for a civilian, on,
in or upon any of the Federal Water Infrastructure Sites, a USACE authorized
representative will make good faith efforts to notify APD of the activity or incident and
relay status of the situation.
b. Command and Control. APD and other responding agencies will make good
faith efforts to coordinate response and activity on, in or upon the Federal Water
Infrastructure Sites through established on or off-site emergency operations centers in
accordance with NIMS and other applicable federal procedures, if applicable and
disclosed to APD. At a minimum, on-site APD and USACE officers or other authorized
officials will strive to coordinate and establish appropriate inter-agency communication
utilizing available resources or visual and verbal recognition (as directed by their
respective commanders).
c. Response. APD will apply good faith efforts to initiate the response and direct
APD personnel to provide the Federal Water Infrastructure Sites with law enforcement
actions within their existing authority. As such, APD may be needed to:
(1) Provide available resources to respond to safety and security needs,
incidents, accidents and crimes;
(2) Establish roadblocks on public roadways;
(3) Participate in operations to pursue and stop fleeing persons who may pose a
threat to the public or to the safety or security at any of the Federal Water
Infrastructures Sites, if not apprehended. Custody of suspects should be maintained by
APD unless federal law enforcement agencies are on scene. Suspects should be
turned over to appropriate federal authorities upon request;
(4) Provide assistance in the command and control of responding law
enforcement personnel to help ensure an integrated level of communication is
maintained between the parties;
(5) Assist with re-establishing USACE access control at the Federal Water
Infrastructure Sites and where needed, APD may assist in removal and arrest of
civilians who are identified as potential threats;
(6) Coordinate with USACE and other federal law enforcement agencies to
investigate incidents, accidents and other situations in accordance with applicable
protocols, as requested; and,
(7) APD may also assist in other ways, as needed (e.g. stabilizing the scene;
securing the evidence and chain of custody through lawful means; identifying and
interviewing perpetrators, victims or witnesses).
5
SUBJECT: Mutual Assistance, Incident Response, Resolution
d. Pursuit. Except as otherwise provided in applicable federal law, upon pursuit, the
command and control of all responding local or state law enforcement agencies should
be in accordance with all applicable local and state laws, regulations and standards.
e. Homeless Encampment Coordination & Debris Removal. Upon knowledge or
awareness of potential (i) debris build up that may be harmful to life or property, (ii)
criminal activity, or (iii) homeless encampments or occupancy at any of the Federal
Water Infrastructure Sites, the parties will exercise good faith efforts to coordinate with
the points of contact (Enclosure “A”) in the order of priority set out in Enclosure “A”.
(1) The parties will strive to mutually engage in active collaboration in order to
respond to and remedy the situation in a manner intended to restore the safety and
security of the impacted site(s).
(2) During any operation involving removal of debris or homeless encampments,
APD will comply, and will ensure its agents, employees and contractors comply, with
applicable local and state laws (and where applicable, federal laws) pertaining to notice,
removal and storage of personal property. All APD clean-up of debris and homeless
encampments will be in accordance with applicable local, state and federal laws and to
the reasonable satisfaction of USACE.
f. Federal Protective Services. Where APD has initiated response to an incident,
accident or situation at any of the Federal Water Infrastructure Sites, USACE, acting
through its designated personnel and/or Federal Protective Services, will strive to:
(1) Maintain responsibilities as the lead agency for hostile adversary situations
involving interests within the confines of the buildings or other facilities located within
any of the Federal Water Infrastructure Sites;
(2) Ensure necessary USACE response resources remain available to support
tactical operations;
(3) Coordinate with other responding agencies for mutual assistance and
response;
(4) Continue to collaborate and coordinate with APD as needed and provide
APD access to impacted locations. In such situations, APD (and its employees, agents,
and contractors) will use good faith efforts to comply with applicable federal facility and
site entry requirements, protocols, policies, rules and regulations;
(5) Assist with APD establishment of roadblocks required to restrict traffic flow to
the area; and,
(6) Assist APD with hazardous materials response, including biological
substances, as necessary.
6
SUBJECT: Mutual Assistance, Incident Response, Resolution
5. Term and Termination
a. Term. The Term of this MOU is for a period of twelve (12) months from the
Effective Date, unless terminated sooner by either party. This MOU may be terminated
for any or no reason at any time by either party, so long as the terminating party
provides advance written notice to the other party, which may be less than 24-hour’s
notice. However, no termination notice is required under the conditions set forth in
Section VII.A. or VII.D. to this MOU.
b. Extension of Term. The Term of this MOU may be extended by written
agreement, executed by authorized representatives of both parties.
6. No Funding Obligation
a. The Parties do not intend for this MOU to result in the transfer of funds, or other
financial obligations from one party to the other. This MOU neither authorizes, nor
intends to obligate the Parties to expend, exchange, or reimburse funds, services, or
supplies, or transfer or receive anything of value (except as specifically outlined above).
Furthermore, no provision of this MOU will be interpreted to require obligation or
payment of funds in violation of 31 U.S.C. § 1341 or any other applicable law.
b. Any actions or responses initiated or performed by either party, that may be
described in or fulfill objectives set out in this MOU, are intended to meet each party’s
duties, obligations and responsibilities under existing law and would be performed
regardless of the existence of this MOU. This MOU serves as a vehicle for coordination
of each party’s respective duties, obligations and responsibilities under existing law and
does not create new duties, obligations or responsibilities of either party.
c. This MOU is not a contract for goods, services or other deliverables. Local, state
and federal contracting laws do not apply.
d. Nothing in this MOU may be construed to obligate USACE or the United States
to any current or future expenditure of resources. Each party will handle its own
activities and use its own resources, including the expenditure of its own funds when
legally appropriate, in pursing the objectives enumerated in this MOU. This MOU does
not create or support a gift of public funds.
7. Miscellaneous
a. Dispute Resolution. The parties each acknowledge that issues may arise that
require resolution between them. Except as otherwise provided by applicable federal
7
SUBJECT: Mutual Assistance, Incident Response, Resolution
law, the parties agree to voluntarily meet and confer to resolve such issues. Either
party may notify the other party, with at least 72-hours advance notice, whenever a
party desires to meet and confer. If a party does not want to meet and confer, then this
MOU will terminate automatically, without any notice required to either party.
b. Notice. Communications relating to this MOU should be in writing and should be
(i) delivered in person, (ii) sent by United States Mail (first class mail, postage prepaid),
or (iii) sent by private messenger or courier service. Notice will be deemed given upon
receipt or, if sent by U.S. Mail, then three (3) business days from date of mailing. All
notices should be sent to the persons and addresses provided below:
APD:
Azusa Police Department
ATTN: Lieutenant Rocky Wenrick
725 N Alameda Ave.
Azusa, CA 91702
Office: (626) 812-3200
Email: rwenrick@azusaca.gov
USACE:
U.S. Army Corps of Engineers
Los Angeles District
Security & Law Enforcement Division
Antiterrorism, Law Enforcement Operations Center (LEOC) - West NCIC
ATTN: Glen Tucker, Chief/Antiterrorism Officer
915 Wilshire Blvd, Suite 930
Los Angeles, CA 90017-3489
Office: (213) 452-3969
Cell: (213) 410-9166
LEOC-West: (213) 283-2220
Email: glen.tucker@usace.army.mil
c. Entire Agreement. This MOU represents the entire understanding by and
between the parties in relation to the subject matter contained in this MOU. Except as
otherwise required by applicable federal law, all prior understandings and written and/or
oral arrangement between the parties with respect to the specific subject matter of this
MOU are terminated and no longer applicable.
8
SUBJECT: Mutual Assistance, Incident Response, Resolution
d. Amendment. This MOU can only be amended by a written instrument signed by
authorized representatives of both parties. To the extent that any changes in federal
law or in the Homeland Security NRP applicable to this MOU, in whole or in part,
requires amendment to this MOU, then the parties will strive to amend the MOU in
accordance with such applicable law or standard. If the parties are unable to amend
this MOU, then this MOU will automatically terminate without advance notice to either
party.
e. Governing Law, Venue. This MOU, and all the rights and duties of the parties
arising from or relating in any way to the subject matter of this MOU or the activities
contemplated by it, shall be governed by, construed, and enforced in accordance with
applicable federal law (excluding any conflict of laws provisions that would refer to and
apply the substantive laws of another jurisdiction). Any suit or proceeding relating to
this MOU shall be brought only in a federal court of law having jurisdiction over the
subject matter. Each of the parties consent to the exclusive personal jurisdiction and
venue of the federal courts, located in California or the District of Columbia
(Washington, D.C).
f. No Assignment. Without the express written consent of both parties, this MOU
cannot be assigned or transferred to any third party, nor can it be assigned or
transferred in violation of any federal law.
g. Freedom of Information Act. APD understands that communications and
documents exchanged with USACE, not otherwise protected from disclosure, may be
subject to disclosure under the Freedom of Information Act (“FOIA”). APD understands
and agrees that USACE is not liable to APD or any third party for disclosures made
under FOIA.
h. No Third-Party Beneficiaries. This MOU does not, and is not intended to, confer
any rights or remedies upon any person or entity. There are no third-party beneficiaries
to this MOU. Contractors, subcontractors, employees, agents, sponsors and affiliates of
either party shall have no right or claim attaching to this MOU or to either party.
i. Relationship of the Parties. The parties acknowledge and agree that nothing set
forth in this MOU shall be deemed or construed to render the parties as contractors of
each other, as joint venturers, partners or agents of each other, as a joint enterprise, as
employer-employee, or as lender-borrower. This MOU does not give either party any
authority to employ any person as an employee or agent on behalf of the other party for
any purpose. Neither party shall hold itself out as an officer, agent or representatives of
the other party.
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SUBJECT: Mutual Assistance, Incident Response, Resolution
j. No Indemnification and Insurance. Nothing contained in this MOU is to be
construed as an indemnification by any of the parties for any loss, for any personal or
real property damage, or for any injury or death arising out of or caused by, in whole or
in part, the actions or inactions of either party, or their respective officers, directors,
employees, agents, representatives, contractors or subcontractors. Nothing contained
herein shall be construed to, and nothing shall, obligate any party to this MOU to
provide any insurance, indemnity or protection to, for or on behalf of any third party.
This MOU does not, and is not intended to, create any other right or benefit, substantive
or procedural, enforceable at law or equity by a party against the United States, the City
of Azusa, any agencies thereof, any officers or employees thereof, or any other person,
except as otherwise express provided in this MOU.
k. Subcontractors. If performance is made for or on behalf of a party through its
consultants, contractors or subcontractors, said party will remain solely responsible for
all payments due to its contractors, consultants and subcontractors.
l. Nonexclusive Agreement. APD understands and agrees that this MOU is non-
exclusive and USACE may at any time, in its sole discretion, enter into other MOUs or
arrangements with third parties for any purpose deemed to be in the best interest of the
USACE.
m. Paragraph Headings. The headings and captions of the various paragraphs and
subparagraphs in this MOU are for convenience only, and they shall not limit, expand or
otherwise affect the construction or interpretation of this MOU.
n. Counterparts. This MOU may be executed in several counterparts, and all of
such counterparts so executed together shall be deemed to constitute one and the
same MOU, and each such counterpart shall be deemed to be an original. Facsimile or
electronic signatures shall have the same legal effect as original or manual signatures if
followed by mailing of a fully executed original to both parties.
o. Construction/Severability. This MOU shall not be construed more strongly
against either party regardless of who is more responsible for its preparation. If any
provision of this MOU is found by a court of competent jurisdiction to be invalid or
unenforceable, such invalidity or unenforceability shall invalidate or render
unenforceable the entire MOU. Under such circumstances, the parties will endeavor to
negotiate and draft a new MOU where allowed by applicable law.
p. Enclosures. Any and all enclosures referenced in this MOU are incorporated into
and made a part of this MOU by this reference.
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SUBJECT: Mutual Assistance, Incident Response, Resolution
q. Survival. All terms and conditions that by their nature should survive termination
or expiration of this MOU, shall so survive.
8. Acknowledgement and Signing Authority
a. The undersigned recognize each party’s status as a friendly force identified in
the USACE Site Security Plan for the Federal Water Infrastructure Sites within the City
of Azusa.
b. The APD signing representative acknowledges, represents and agrees that he is
an authorized representative of the APD and as such is delegated with the authority to
execute and enter into this MOU on behalf of the APD. The USACE signing
representative acknowledges, represents and agrees that he is an authorized
representative of the USACE and as such is delegated with the authority to execute and
enter into this MOU on behalf of USACE.
___________________________ ___________________________
MIKE BERTELSEN COL JULIE A. BALTEN,
Chief of Police Commander and District Engineer
Azusa Police Department Los Angeles District
City of Azusa U.S. Army Corps of Engineers
___________________________ ___________________________
(Date) (Date)
11
ENCLOSURE A
MEMORANDUM OF UNDERSTANDING
BETWEEN
U.S. ARMY CORPS OF ENGINEERS, LOS ANGELES DISTRICT
AND
CITY OF AZUSA
SUBJECT: Mutual Assistance and Incident Response and Resolution
Official Points of Contact
City of Azusa Police Department:
Lieutenant: Rocky Wenrick (626) 812-3200
Chief of Police: Mike Bertelsen (626) 812-3200
U.S. Army Corps of Engineers:
Chief of Security & Law Enforcement
Los Angeles District: Glen Tucker (213) 452-3969
Chief of Security & Law Enforcement
South Pacific Division: Steve Diamond (415) 503-6617