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HomeMy WebLinkAbout25B - TOBACCO RETAIL REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: MARCH 1, 2010 TITLE: APPROVED ? As Recommended AGREEMENT FOR TOBACCO RETAIL ? As Amended ? Ordinance on ist Reading LICENSE COMPLIANCE CHECKS 8~ ? Ordinance on 2"d Reading INVESTIGATIONS ? Implementing Resolution ? Set Public Hearing For CONTINUED TO ~G~~"'"1--^- FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached agreement with the California State Department of Public Health for tobacco license compliance checks and investigations in the amount of $75,000 for cone-year term, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On October 16, 2006, Council adopted the Tobacco Retail License Ordinance to Chapter 18 of the Santa Ana Municipal Code to strengthen existing prohibitions against the unlawful sale, use, or distribution of tobacco and to curb youth access to tobacco. Council also approved the establishment of an annual tobacco retail license fee at $635 effective January 1, 2007. Since the implementation of the ordinance, 291 retailers have complied with the tobacco retail license requirement. As part of this program the Police Department has partnered with the California State Department of Public Health (CDPH) to conduct investigations throughout the City of Santa Ana to determine if tobacco retailers are in compliance with the City's Tobacco Retail License Ordinance and with California's Stop Tobacco Access to Kids Enforcement Act. Staff recommends entering into the agreement for aone-year term in an amount not to exceed $75,000. CDPH will conduct a minimum of 100 investigations at a rate of $460 per investigation. 25B-1 Agreement for Tobacco Retail License Compliance Checks March 1, 2010 Page 2 FISCAL IMPACT Funds are available in the Police Department's Tobacco Retail License Ordinance (account no. 01114490-62300). APPROVED AS TO FUNDS AND ACCOUNTS: ~ Paul M. Walters Fran s Gut rre~z ~ ~ Chief of Police Executive Director Police Department Finance & Mgmt. Services Agency 25B-2 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND THE DEPARTMENT OF PUBLIC HEALTH FOR TOBACCO LICENSE COMPLIANCE CHECKS AND INVESTIGATIONS THIS AGREEMENT, made and entered into this 1st day of March, 2010 by and between the California State Department of Public Health, Food and Drug Branch (hereinafter "Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City enacted a Tobacco Retail License Ordinance and desires to investigate compliance of Tobacco Retailers with the City's Ordinance. B. Contractor has previously implemented programs throughout the state to conduct compliance checks and investigate Tobacco Retailers. Contractor represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional in the field of compliance checks and investigations. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall perform services as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay Contractor as compensation, for complete and satisfactory performance of the terms of this Agreement, an amount not to exceed Seventy Five Thousand Dollars ($75,000.00) to be paid at the rate of $460.00 per investigation during the term of this Agreement. During the term the Contractor agrees to conduct a minimum of 100 investigations at a rate of $460.00 per investigation. The foregoing amount represents the total compensation paid by City to Contractor for services to be performed as designated by this Agreement. b. Contractor shall submit invoices to the City on a quarterly basis. Invoices will state the time period covered as well as the number of compliance checks completed during the billing period. Compliance check locations completed during the billing period will be identified on an attachment submitted with each invoice. Funds shall not be released until the City has approved l 25B-3 the work received from the Contractor for each invoice period. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. c. It is understood that the City makes no commitment to fund this Agreement beyond the terms set forth herein and is conditioned upon funds being allocated for this program. 3. TERM This Agreement shall commence on July 1, 2010 and terminate on June 30, 2011 subject to the termination provisions herein. 4. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 6. INDEMNIFICATION Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, Contractors, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Contractor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. 2 25B-4 7. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Police Chief City of Santa Ana 60 Civic Center Plaza Santa Ana, California 92702 telefacsimile (714) 245-8007 and City Attorney City of Santa Ana 3 25B-5 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Contractor: Mr. Benson Yee Chief of STAKE Enforcement Unit Department of Public Health Food and Drug Branch 1500 Capitol Avenue, MS-7602 Post Office Box 997435 Sacramento, California 95899-7435 A party may change its address by giving notice in writing to the other party. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other a reements, oral or written between the g arties. In P the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City. 12. TERMINATION 4 25B-6 Either Party to this agreement may terminate the Agreement or any part hereof upon giving the other party at least thirty (30) days written notice prior to the effective date of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, however, as a condition of such payment, the Chief of Police may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate. 13. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER Department of Public Health City Attorney B y: Ryan O. Hodge LISA JOHNSON Deputy City Attorney Chief of Contracts and Purchasing Services Section 5 25B-7 EXHIBIT A "SCOPE OF SERVICES" Services to be Provided by the Contractor A. The Contractor shall implement a program to expand enforcement of the Stop Tobacco Access to Kids Enforcement Act (hereinafter "STAKE Act") within the City of Santa Ana and to investigate compliance of tobacco retailers with the City's Tobacco Retail License Ordinance. During the term of this Agreement, the Contractor shall conduct compliance checks and investigations throughout the City of Santa Ana in order to determine: 1 . Whether or not tobacco retailers display a valid City license in accordance with the Tobacco Retailer License Ordinance; and 2. Whether or not tobacco retailers maintain displays of cigarettes and tobacco products in accordance with Cal. Bus. & Prof. Code 22962: and 3. Whether or not tobacco retailers are selling tobacco to minors in violation of the STAKE Act. B. Contractor shall utilize funds provided through this Agreement to increase the number of STAKE Act investigations conducted in the City of Santa Ana. Funds from this Agreement shall be used to augment and not supplant existing STAKE Act investigations within the City of Santa Ana. C. The Contractor shall prepare and submit reports on its observations of tobacco retailers' compliance with the City's Tobacco Retail License Ordinance and within thirty (30) calendar days after completion of each compliance check. D. The Contractor shall report compliance check results on STAKE Act investigations to the City on a quarterly basis and such reports shall be submitted with each quarterly billing. E. Contractor shall provide evidence and testimony regarding investigator's observations as required by the City for trial or other enforcement action. Scone of Work A. Pro ram The State, through the Department of Public Health (hereinafter "CDPH") will conduct investigations of tobacco retailers during the term of this agreement, within the City of Santa Ana, in order to determine compliance with the STAKE Act, and the City's Tobacco Retail License Ordinance. These investigations will be in addition to and not in lieu of investigations otherwise planned for the City of 6 25B-8 Santa Ana because the purpose of this program is to augment and not supplant existing State enforcement efforts. Additionally, 30% of the compliance checks will be conducted at store locations where previous STAKE violations have occurred. CDPH will provide adequate staff, youth operatives and equipment to implement the program described herein in order to reduce the incidence of tobacco sales to minors within the City of Santa Ana. CDPH will implement the program utilizing the following methodology: B. CDPH will subcontract for youth recruitment with an agency capable of assuring confidentiality of youth data, as well as providing insurance coverage and reimbursement for participation to the youth participants. Additionally, the agency with which CDPH contracts will serve as the Agent for Service for the youths in the event that they are subpoenaed for hearing or court appearance, and maintain security of all personal information of the youths including names and home addresses. C. CDPH will provide investigators who will conduct STAKE investigations; develop schedules for compliance checks; map activities; procure and maintain all necessary equipment; confirm store ownership of tobacco retailers; generate investigation reports; secure evidence obtained as a result of compliance checks; meet with selected appropriate youth operatives and provide necessary training; file STAKE Act violation cases with CDPH legal staff as required; observe, document and report compliance with the Tobacco Retail License Ordinance to the City; liaison with City staff; and provide evidence and testimony for the purpose of enforcing the Santa Ana City Tobacco Retail License Ordinance as needed. D. The investigations will require, and CDPH will provide, vehicles to travel throughout the City. The vehicles will be equipped with two-way radios and cellular telephones in order to provide communication with local law enforcement and each other for ensured safety. The investigators will also be equipped with digital cameras to provide the required photographs of the youth operative, portable computers to generate and store investigative reports, and surveillance equipment used to collect electronic evidence during compliance checks. All of this equipment is standard equipment for STAKE operations throughout California. E. Santa Ana Police Department will develop a list of retailers to be visited and select a target area using addresses. Santa Ana PD staff will generate a list of sites within a selected area from a database of tobacco retailers. A survey of the stores in the targeted area will be performed prior to the actual day of compliance checks. The survey will increase safety and efficiency in that only viable tobacco retailers will be visited and investigators will be aware of any concerns or obstacles such as parking conditions, traffic, etc. CDPH will also utilize an 7 25B-9 extensive list that it has compiled and continues to update. In the future, CDPH will use City tobacco license information to update this list. This system of selecting retailers will provide an efficient means of covering all areas in a methodical manner. F. Once the list has been generated and the locations to be visited confirmed, investigators will contact the youth operative, coordinate their respective schedules, and conduct the investigations. G. The compliance check investigations will be conducted according to a schedule developed by the investigator. The investigator will pick up the youth operative and proceed from one location to the next following the plan. Youth operatives will not be used in areas where they live or normally shop. During the investigation, the youth operative will attempt to buy tobacco products from the retailer. if a purchase is made, the tobacco product and any other evidence will be marked and secured. The investigator will then return the youth to his/her home, complete the investigative reports, review and store electronic evidence as required and return to the violative retailers to present them with a Notification of Violation form within 48 hours of the sale of tobacco to the minor. All reports and evidence remain in the custody of the investigator. H. As part of the compliance check investigation, the investigator will note and document whether or not the tobacco retailer has a permit posted in accordance with the City's Tobacco Retail License Ordinance Number 2729. Observations on compliance with these ordinances will be documented on a report form and photographic evidence as well as other evidence obtained will be provided to the City in accordance with paragraph I below. I. CDPH will provide the City with two monthly reports on compliance check outcomes. One will contain information on cases that have been closed via payment of a penalty assessment. The other will contain information on currently pending cases. The reports will be drawn from data which is entered directly into the STAKE database by the investigators and includes the following fields: case number, firm number, firm name, street address including zip code, telephone number (if available), store type, investigation date and time, notification date and time, the names and badge numbers of investigators, information about the selling clerk, name of the person presented with the Notification of Violation form, the name and address of the store owner, the agent for service in case of corporate ownership, the type and cost of tobacco purchased, evidence numbers, prior sales history, a narrative section stating the details of the case, the council district in which the violation occurred and other miscellaneous information. In addition to the standard report, CDPH will provide the City with information regarding the posting of the required License by the Tobacco Retail License Ordinance. The investigative reports, and any evidence obtained, including photographic evidence, documenting violation of the City ordinances, shall be made available s 25B-10 to the City as requested. Only redacted youth IDs (not showing youth name, home address or CDL number) will be provided unless release of this information has been approved by the recruitment agency acting as Agent for Service for the youth recruits. The City may request these reports even if no violation has occurred. However, if a violation of the STAKE Act has occurred, CDPH shall provide the City with updated information regarding the outcome of the case in the monthly report immediately following adjudication and closure of the case. 9 25B-11 25B-12