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31 AGREEMENT
BETWEEN THE
COUNTY OF ORANGE
AND
VILLA SAN CLEMENTE, LLC.,
a California limited liability Company
THIS AGREEMENT, entered into this First day of November 2022, which date is enumerated for purposes of reference only, by and between the COUNTY OF ORANGE, a political subdivision of the State of California, hereinafter referred to as “COUNTY”, and VILLA SAN CLEMENTE, LLC., a California limited liability company, hereinafter referred to as “EVENT OPERATOR”.
WITNESSETH:
WHEREAS, EVENT OPERATOR wishes to contract with COUNTY for COUNTY’S Sheriff-Coroner Department, hereinafter referred to as “SHERIFF”, to provide supplemental law enforcement services to preserve the peace at special events or occurrences that happen on an occasional basis; WHEREAS, COUNTY is agreeable to the rendering of such services, as authorized in Government Code Section 53069.8, on the terms and conditions hereinafter set forth; and
WHEREAS, COUNTY’S Board of Supervisors has authorized SHERIFF to execute Agreements in this format on behalf of COUNTY, NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
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Attachment 2
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31 TABLE OF CONTENTS
SECTION PAGE
A. Term 3
B. Optional Termination 3
C. Services by COUNTY 3
D. Payment 4
E. Alteration of Terms 5
F. Status of COUNTY 5
G. Indemnification 6
H. Insurance 6
I. Total Agreement 7
J. Notices 7
Signature Page 8
Attachment A: County Billing Policy
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31 A. TERM:
The term of this Agreement shall commence November 19, 2022 and terminate November 19, 2022, unless earlier terminated by either party in the manner set forth herein.
B. OPTIONAL TERMINATION:
COUNTY or EVENT OPERATOR may terminate this Agreement, without cause, upon ten (10) days written notice to the other party.
C. SERVICES BY COUNTY:
1. EVENT OPERATOR has a need for supplemental law enforcement services to preserve the peace at special events or occurrences that happen on an occasional basis. At the discretion of SHERIFF, taking into consideration factors pertaining to the public good, including, but not necessarily limited to, staffing levels and public safety concerns, COUNTY may provide such supplemental law enforcement services at such special events or occurrences as are timely requested by EVENT OPERATOR. Such services shall be provided by COUNTY only if SHERIFF so determines and if there are available adequate numbers of regularly appointed full-time peace officers, or other peace officers on terms negotiated with a certified employee organization(s), to perform such services. The services to be provided pursuant to this Agreement shall not include services authorized to be provided by private patrol operators, as defined in Business and Professions Code Section 7582.1. Services pursuant to this Agreement shall be provided only in the County of Orange. EVENT OPERATOR shall notify SHERIFF, at least twenty (20) days in advance of the need for services, of the nature, location and time of its planned special event or occurrence and the type of supplemental law enforcement services required.
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31 C. SERVICES BY COUNTY: (Continued)
2. In the event of a public emergency, SHERIFF shall have the right to withdraw all assigned personnel and equipment from the event as SHERIFF deems necessary and in the public interest to respond to the emergency.
Such withdrawal of personnel and equipment shall not constitute a breach of this Agreement, but EVENT OPERATOR shall not be required to pay for services which have not been rendered by COUNTY.
D. PAYMENT:
1. Pursuant to Government Code Section 53069.8, EVENT OPERATOR agrees to pay to COUNTY the costs of performing the services mutually agreed upon pursuant to this Agreement. The cost of services includes salaries, wages, benefits, mileage, services, supplies, and divisional, departmental and COUNTY General overhead.
2. The rate charged to EVENT OPERATOR by COUNTY shall be computed by SHERIFF in accordance with COUNTY’s law enforcement cost study in effect at the time the services are provided.
3. COUNTY shall invoice EVENT OPERATOR upon completion of the specific event.
4. EVENT OPERATOR shall pay COUNTY in accordance with COUNTY Board of Supervisors’ approved County Billing Policy, which is attached hereto as Attachment A, and incorporated herein by this reference.
5. COUNTY shall charge EVENT OPERATOR late payment penalties in accordance with COUNTY Board of Supervisors’ approved County Billing Policy.
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31 E. ALTERATION OF TERMS:
This Agreement fully expresses all understanding of EVENT OPERATOR and COUNTY with respect to the subject matter of this Agreement, and shall constitute the total Agreement between the parties for these purposes. No addition to, or alteration of, the terms of this Agreement shall be valid unless made in writing, formally approved and executed by duly authorized agents of both parties.
F. STATUS OF COUNTY:
1. COUNTY is, and shall at all times be deemed to be, an independent contractor. Nothing herein contained shall be construed as creating the relationship of employer and employee, or principal and agent, between EVENT OPERATOR and COUNTY or any of COUNTY’s officers or agents or employees. COUNTY and its SHERIFF shall retain all authority for rendition of services, standards of performance, control of personnel, and other matters incident to the performance of services by COUNTY pursuant to this Agreement. COUNTY, its agents and employees, shall not be entitled to any rights or privileges of EVENT OPERATOR’s employees and shall not be considered in any manner to be EVENT OPERATOR’s employees.
2. Nothing herein contained shall be construed as creating the relationship of employer and employee, or principal and agent, between COUNTY and EVENT OPERATOR or any of EVENT OPERATOR’s officers, agents, employees, subcontractors, or independent contractors. EVENT OPERATOR, its officers, agents, employees, subcontractors, and independent contractors shall not be entitled to any rights and privileges of COUNTY employees and shall not be considered in any manner to be COUNTY employees.
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31 G. INDEMNIFICATION:
COUNTY, its officers, agents, employees, subcontractors and independent contractors shall not be deemed to have assumed any liability for any of the following:
1. the negligence or any other act or omission of
(a) EVENT OPERATOR, or any of its officers, agents, employees, subcontractors, or independent contractors, or
(b) any persons or entities who are present at, or perform or are assigned to perform activities, services or work in connection with any special event or occurrence for which COUNTY provides services pursuant to this Agreement; or
2. any dangerous or defective condition of any real or personal property:
(a) that is possessed by EVENT OPERATOR or any of its officers, agents, employees, subcontractors, or independent contractors, or (b) upon which is held any special event or occurrence for which COUNTY provides services pursuant to this Agreement.
EVENT OPERATOR shall defend, indemnify and hold harmless COUNTY, its officers, agents, employees, subcontractors and independent contractors from any claim or liability whatsoever, for property damage, bodily injury, death or any other element of damage of any kind or nature, which is based or asserted upon any of the above-described acts or omissions or upon a condition of any of the above-described real or personal property.
H. INSURANCE:
For events to be held on public property, EVENT OPERATOR shall satisfy all insurance requirements for obtaining all permits and licenses required to hold the event in accordance with applicable laws. For events to be held on private property, EVENT OPERATOR shall provide to SHERIFF proof of written permission from the property’s owner to conduct the event.
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31 I. TOTAL AGREEMENT:
This Agreement, together with the attachment hereto, expresses the total understanding of the parties. There are no oral understandings of the parties or terms and conditions other than as are stated herein.
J. NOTICES:
All notices, reports and correspondence between the parties hereto respecting this agreement shall be in writing and deposited in the United States Mail, postage prepaid, addressed as follows:
COUNTY: ORANGE COUNTY SHERIFF-CORONER
ATTN: MANAGER, LAW ENFORCEMENT CONTRACTS
320 N. FLOWER STREET
SANTA ANA, CA 92703
EVENT OPERATOR: VILLA SAN CLEMENTE, LLC
4100 MacArthur Blvd. Suite 100
Newport Beach, CA 92660
Attn: General Counsel
with copy to:
OUTLETS AT SAN CLEMENTE
101 W. Avenida Vista Hermosa, Suite 190
San Clemente, CA 92672
Attn: General Manager
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT in the County of Orange, State of California.
BY:
CHAIRMAN OF THE BOARD
PRESIDENT OR VICE-PRESIDENT
DATED:
BY:
SECRET ARY, ASSIST ANT SECRET ARY,
CHIEF FINANCIAL OFFICER OR
ASSIST ANT TREASURER
BY:
APPROVED AS TO FORM:
COUNTY OF ORANGE
BY:
Sheriff-Coroner
DATED:
APPROVED AS TO FORM:
Office of the County Counsel
County of Orange, California
Deputy
DATED: '7"//5,/2,'
4/12/2021 (Private)
ATTACHMENT A
COUNTY BILLING POLICY
APPROVED BY BOARD MINUTE ORDER DATED OCTOBER 27, 1992
I. POLICY
All County agencies/departments/districts (County) governed by the Board of Supervisors shall bill contracting entities for materials and/or services provided under contract in accordance with the following standardized billing and collection policy. Billing frequency is dependent on whether the contract is a fixed price or actual cost contract. Payment due date is designed to be both responsive to the County’s cash flow needs and reasonable enough as to not require special processing by the contracting entity. If payments are not received by the required due dates, a late payment fee shall be computed and billed to the contracting entity in accordance with the requirements of this procedure.
Nothing herein shall affect the liability, including pre-judgment interest, of the contracting party for services or materials in as much as this is a policy to enact standard billing practices.
II. DEFINITIONS
A. Contract for the purposes of this policy - A contract is a formal written agreement, a purchase order from the contracting entity, or any other acceptable mutual understanding between the contracting parties.
B. Received by the County - The phrase “received by the County”, as used in Section VI of this policy, refers to the date a payment is received by the County. It is defined as the date the payment is in the County’s possession. It is not the date the payment is posted or deposited by the County.
III. FIXED PRICE CONTRACTS
A. Fixed Price (One-Time/Non-Recurring Contracts) - Invoices that represent a billing for a one-time, non-recurring provision of materials and/or services shall be issued no later than five (5) working days after delivery by the County of the materials and/or services.
Examples of such one-time, non-recurring provision of materials and/or services might be a city contracting with the Sheriff for security service at a parade or sporting event; or, a city purchasing a computer listing containing certain city-requested data. Payment due date shall be invoice date plus 30 days.
B. Fixed Price (Ongoing/Recurring Contracts) - Invoices that represent a billing for an ongoing, recurring provision of materials and/or services shall be issued according to the following frequency:
1. Annual Billings that total $10,000 or less per 12-month period shall be billed via one (1) annual invoice. Annual invoices will be issued for each 12-month period of the contract, or portions thereof. Invoices shall be issued no later than five working days after the beginning of each 12-month period. Payment due date shall be invoice date plus 30 days.
2. Quarterly Billings that are greater than $10,000 but not more than $200,000 per 12- month period, shall be billed in quarterly installments. Quarterly invoices will be issued representing the contract amount for each 12-month period of the contract, or portions thereof, prorated into four (4) installments. Invoices shall be issued no later than 30 days after the beginning of each quarter. Payment due date shall be 60 days after the beginning of each calendar quarter.
3. Monthly Billings that are greater than $200,000 per 12-month period shall be billed in monthly installments. Monthly invoices will be issued representing the contract amount for each 12-month period of the contract, or portions thereof, prorated into 12 installments. Invoices shall be issued on or before the first day of each service month. Payment due date shall be 30 days after the beginning of each service month.
An example of a fixed price contract for ongoing, recurring provision of materials and/or services might be a city contracting with the Sheriff for law enforcement services.
IV. ACTUAL COST CONTRACTS
A. Actual Cost (One-Time/Non-Recurring Contracts) - Invoices that represent a billing for a one-time, non-recurring provision of materials and/or services shall be issued after delivery by the County of the materials and/or services and no later than 15 days after actual cost data is available. Payment due date shall be invoice date plus 30 days.
B. Actual Cost (Ongoing/Recurring Contracts) - Invoices that represent a billing for an ongoing, recurring provision of materials and/or services shall be issued on a monthly basis and shall represent the cost of materials and/or services provided to the contracting entity during the previous calendar month. Such invoices shall be issued no later than 15 days after the close of the monthly billing period. If the County agency/department/district does not utilize a monthly billing cycle, the invoice shall be issued no later than 15 days after actual cost data is available. Payment due date shall be invoice date plus 30 days.
Examples of actual cost contracts for the ongoing, recurring provision of materials and/or services might be a city contracting with the County for communications equipment repair or waste disposal at a County landfill.
V. PAYMENT DUE DATES
Notwithstanding the provisions of Sections II and III above, payment due date shall be at least invoice date plus 30 days. If the County is late in issuing an invoice, the contracting entity would always have at least invoice date plus 30 days to pay. If the County is early in issuing an invoice, the contracting entity would still have a payment due date of either 60 days after the beginning of the quarter (quarterly invoices) or 30 days after the beginning of the service month (monthly invoices).
(EXAMPLES: An invoice for October service, dated and issued October 8 (late) would have a payment due date of November 7. An invoice for August service, dated and issued July 20 (early) would have a payment due date of August 30.)
VI. LATE CHARGES
The late payment of any invoiced amount by a contracting entity will cause the County to incur costs not contemplated by the County/contracting entity agreement, the exact amount of such cost will be extremely difficult to ascertain. Such costs include, but are not limited to, costs such as administrative follow-up and processing of delinquent notices, increased accounting costs, etc.
Late charges will be assessed in the following situations:
Over-the-counter payments will be assessed a late charge if any payment is not received by the County by the payment due date.
Payments transmitted to the County via the U.S. Mail that have the payer’s postage meter mark will be assessed a late charge if any payment is not received by the County by the payment due date plus one day.
Payments transmitted to the County via the U.S. Mail that have a U.S. Post Office postmark dated after the payment due date will be assessed a late charge.
The late charge assessed in each of these situations shall be three-quarters of one percent (0.75%) of the payment due and unpaid plus $100.00 for late payments made within 30 days of the payment due date. An additional charge of three-quarters of one percent (0.75%) of said payment shall be added for each additional 30-day period that the payment remains unpaid. Late charges shall be added to the payment and invoiced to the contracting entity in accordance with this policy.
VII. COLLECTIONS
Any invoice remaining unpaid 90 days after the invoice date shall be referred to the AuditorController for subsequent collection action, such as deduction from contracting entity moneys on deposit with the County Treasurer in accordance with Government Code Section 907 and any other applicable provision of law. Non-payment of invoices and applicable late charges will constitute a breach of contract for which the County retains all legal remedies including termination of the contract.
VIII. DISCOUNT FOR EARLY PAYMENT
Any payment received by the County from a contracting entity 20 days or more before the payment due date shall be entitled to a discount of one-quarter of one percent (0.25%). If the contracting entity takes a discount, and the payment is received by the County less than 20 days before the payment due date, County staff shall immediately notify the contracting entity by telephone that the discount should not have been taken and that the balance is due by the original payment due date.
If the balance is not received by the County in accordance with the dates as specified in Section VII, applicable late charges shall be calculated on the balance due.
IX. DEFERRED REVENUE
At fiscal year end, any portion of revenue invoiced (not necessarily received) during the fiscal year being closed out that represents charges or prepayment for materials and/or services for the upcoming fiscal year shall be reclassified from a revenue account to a deferred revenue account (liability). In the new fiscal year the deferred revenue shall be reclassified to a revenue account. (EXAMPLE: On June 1, 19X1, a city is invoiced $48,000 which represents charges for the 12-month period June 1, 19X1 to May 31, 19X2. The amount to be reclassified to deferred revenue would be $44,000, representing 11/12ths of the total amount. In July 19X1, the $44,000 would be reclassified to revenue.) Reclassification entries shall be made by Auditor-Controller Agency Accounting units, or for those agencies/departments/districts without such a unit, the agency/department/district shall notify the Auditor-Controller of the amounts to be reclassified.
X. COST RECOVERY
All County agencies/department/districts shall include all costs of providing contracted services in contract rates. Including all direct costs, allocated indirect costs such as departmental and County (CWCAP) overhead, and cost of capital financing.
XI. EXISTING CONTRACTS
Billing terms and provisions contained in existing contracting entity agreements (existing as of the date this policy is approved by the Board of Supervisors) shall remain in effect for the life of the contract. However, when these existing contracts are renegotiated, they shall contain the billing provisions as set forth in this policy.
XII. DEVIATIONS FROM POLICY
Deviations from this policy shall be approved by the Board of Supervisors. Proposed deviations by agencies/departments/districts shall be submitted to the CEO for concurrence in advance of filing an Agenda Item Transmittal (AIT) with the Clerk of the Board. The CEO, or his/her designee, shall advise the agency/department/district of approval or disapproval of the proposed deviations. If a County agency/department/district submits a contract to the Board of Supervisors for approval, and the billing provisions in the contract deviate from this policy, the agency/department/district shall specifically advise the Board of Supervisors in the AIT of the deviation, the reason for the deviation, and of the CEO’s recommendation relative thereto.