DETENTION_SERVICES_PHOENIX_4_2018.PDF

INTERGOVERNMENTAL AGREEMENT
FOR COUNTY DETENTION SERVICES
Between
MARICOPA COUNTY
ON BEHALF OF THE MARICOPA COUNTY SHERIFF’S OFFICE
AND
CITY OF PHOENIX
C-50-18-____-____-____

PREAMBLE
This Intergovernmental Agreement ("Agreement") is made and entered into
this ______ day of ______, by and between Maricopa County, a political subdivision of
the State of Arizona, acting by and through its Board of Supervisors ("Maricopa
County" or "County") on behalf of the Maricopa County Sheriff’s Office (“MCSO”) and
City of Phoenix ("Municipality") (collectively, the "Parties").
RECITALS
WHEREAS, pursuant to A.R.S. § 31-121 it is the duty of the Maricopa County
Sheriff to receive and provide for prisoners and County owns detention facilities
("County Jail") for housing persons ("Inmates") who have been committed to jail by
competent authority; and
WHEREAS, County, through the Maricopa County Sheriff ("County Sheriff”),
provides Inmates with necessary housing, food, clothing and bedding; and
WHEREAS, pursuant to A.R.S. § 31-121(D), Municipality is responsible for
the costs of incarceration of the following persons: (1) a person who is arrested by a
peace officer employed by Municipality and who is charged in the municipal court and
housed in the County Jail; and (2) a person who is convicted in the municipal court
and sentenced to the County Jail (collectively, "Municipal Inmates"), and
WHEREAS, County and Municipality desire to enter into an intergovernmental
agreement with one another to contract for services and payment of costs relating to
the incarceration of Municipal Inmates in the County Jail, and
WHEREAS, County and Municipality are authorized to enter into this
Agreement pursuant to A.R.S. §§ 11-951 et seq. and 31-121.
NOW, THEREFORE, in consideration of the mutual performance of services
by County and payment by Municipality as set forth herein, Maricopa County and
Municipality agree as follows:
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AGREEMENT
1. Authority
The above Recitals are incorporated into this Agreement and all rights and obligations of the
Parties shall be governed by the terms of this Agreement.
2. Definitions
As used throughout this Agreement, defined and capitalized terms set out in the body of this
Agreement are synonymous with the definitions set out in this section. Ambiguity as to a
defined term in the body of this Agreement shall be resolved in favor of the definition of the
term below.
2.1. Agreement means this document and all exhibits, attachments and appendices,
including all subcontracts or amendments, attached hereto.
2.2. Municipal Inmate means a person a r r e s t ed a n d booked into a County Jail
pursuant to A.R.S. § 31-121(D) and charged in Municipality's Court or sentenced to
the County Jail by Municipality's Court. Municipal Inmate does not include a person
arrested for and charged in Superior Court, irrespective of whether a municipal warrant
is outstanding for that person.
2.2.1 Designated Class 6 Felonies a r e for the limited purpose of this Agreement
only, all offenses designated as misdemeanors pursuant to A.R.S. § 13-604
and deferred to Municipality for prosecution in Municipality's Court. Inmates
with Designated Class 6 Felonies are not considered a Municipal Inmate for
purposes of this Agreement and therefore will not be a Municipal Cost or
charge that is a responsibility of Municipality. See Attachment A for the list of
Arizona Revised Statutes, including applicable dollar amount thresholds, which
the Maricopa County Attorney may defer to Cities and Towns for prosecution.
2.3. Correctional Health Services ("CHS") means the Maricopa County department
that provides Health Care Services to Inmates in the County Jails. As used in this
Agreement "CHS" includes and incorporates any successor, assign, employees,
contractor, subcontractor, designee or County budgetary unit performing any or all of
the duties of CHS.
2.4. County means Maricopa County, a political subdivision of the State of
Arizona.
2.5. County Jail or Jails means all facilities under the control or supervision of
Maricopa County, or the County Sheriff, and whose primary purpose is to incarcerate
persons.
2.6. County Sheriff or MCSO means the Maricopa County Sheriff's Office and those
activities and facilities for which it has legal responsibility.
2.7. First Day Booking/Processing Rate is a rate for the initial first calendar day of
booking and receiving a Municipality's Inmate into jail and is based upon a rate
established by the Maricopa County Board of Supervisors. The First Day rate
includes health care services, where applicable, provided to a Municipal Inmate,
including services provided in a County Jail or by any other health care provider.
2.8. Health Care Services include medically necessary medical and mental health
services provided to a Municipal Inmate, where applicable.
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2.9. Housing Per Diem Rate is a rate established by the Maricopa County Board of
Supervisors that is charged for incarcerating and maintaining a Municipal Inmate in a
County Jail housing unit beginning the calendar day immediately following the
calendar day on which the individual was booked into the County Jail. The final day
of incarceration shall not be included in the Housing Per Diem Rate invoice. The
Per Diem r a t e includes health care services, where applicable, provided to a
Municipal Inmate, including services provided in a County Jail or by any other health
care provider.
2.10. Municipality means the City or Town that is a signatory to this Agreement.
2.10 Municipal Cost means any costs the Municipality is responsible to pay for Municipal
Inmates.
2.11. Municipal Credit is a credit against the cost of incarceration pursuant to Section 4.5
below.
3. Term of Agreement
This Agreement shall become effective July 1, 2018 ("Effective Date") and shall have a term
of five (5) years from the Effective Date. After the initial term, the Parties may extend the
period of this Agreement for additional five year terms, or for such other period as may
be agreed upon in writing.
4. Compensation for County by Municipality
4.1. Setting of Rates. Housing Per Diem and First Day Booking/Processing. The
Maricopa County Board of Supervisors shall establish rates for the Housing Per
Diem and First Day Booking/Processing as follows:
4.1.1. By December 1st of each year, Maricopa County will provide the preliminary
detention inmate housing and booking rates to be effective July 1st of the
following fiscal year.
4.1.2. B y February 1st of each year, Maricopa County will provide the final
detention inmate housing and booking rates to be effective July 1st of the
following fiscal year.
4.1.3. In the event the Board does not establish such rate(s) as of July 1st, the
rate(s) most recently established shall continue in effect until the Board of
Supervisors establishes the new rates.
4.2. First Day Booking/Processing Rate. Municipality shall pay the County the prevailing
First Day Booking/Processing Rate established by the Board of Supervisors, for the
first calendar day of booking and processing each Municipal Inmate into the
County Jail. Housing Per Diem Rate will not be charged for the Municipal Inmate's
first day of incarceration.
4.3. Housing Per Diem Rate. Municipality shall pay t h e County the prevailing Housing
Per Diem Rate established by the Board of Supervisors, for each calendar day, or
portion thereof, that a Municipal Inmate is housed in the County Jail, excluding the
calendar day for which the Municipality is assessed the First Day Booking/Processing
Rate and the final calendar day of incarceration (e.g., if a Municipal Inmate is
booked into County Jail on Friday evening and released at noon the next day
(Saturday) on bail or on his or her own recognizance, the Municipality shall pay
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County the First Day Booking/Processing Rate only, and exclude Saturday from the
Housing Per Diem Rate invoice because it is the final day of incarceration.)
4.4. Second Conviction DUI. For Municipal Inmates who are incarcerated for a second
offense DUI conviction under A.R.S. §§ 28-1381 or 28-1382, the Municipality shall
be charged fifty percent (50%) of the First Day Booking/Processing Rate and fifty
percent (50%) of the Housing Per Diem Rate. The 50% is effective only once the
inmate is convicted. Maricopa County has requested a legal review of this current
practice and reserves the right to change this practice at any time.
4.5. Limitation on Municipal Credits. Municipality may obtain a "Municipal Credit"
against a Municipal Cost for a Municipal Inmate who is subsequently charged in a
Justice Court or in the Superior Court, for a felony arising from the booked charges.
4.5.1. In the event of a Municipal Inmate who is subsequently charged in a Justice
Court or in the Superior Court for a felony arising from the booked charges,
the Municipal Credit is effective from the date the felony charge is filed. The
Municipal Credit is not retroactive to date of booking.
4.5.2. In the event of a Municipal Inmate who is subsequently charged with both a
misdemeanor and felony arising from the booked charges, the Municipal
Credit will be apportioned according to the Municipality producing satisfactory
written documentation of any Municipal credit sought under this section,
within ninety (90) days of the i n v o i c e d a t e for the Municipal Inmate.
County shall not reimburse any credit claimed by Municipality which is filed
more than ninety (90) days after the invoice date.
4.6. Copayment. As authorized by law, County may charge Municipal Inmates a
copayment for each health care service or prescription that is provided by
Correctional Health Services. Municipality is not responsible for the Municipal
Inmate's copayment. No inmate will be refused health care services for financial
reasons.
4.7. Pre-Incarceration Health Care Services. Pre-booking and pre-incarceration
health care services provided to Municipal Inmates (including those provided to a
Municipal Inmate who self-surrenders, but requires medical, health and mental
health services in order to be admitted to jail) are not the subject of this Agreement.
Nothing in this Agreement is intended to create or provide any third party rights or
third party beneficiary rights.
4.8. Third Party Liability. This Agreement shall not relieve any responsible third party
of liability for health care services, including the Municipal Inmate.
5. Invoicing
5.1. Municipality's Duty to Track Municipal Inmates by Booking Number. The
Parties shall minimize problems in tracking or identifying a Municipal Inmate so that
their staffs will not perform unnecessary research concerning the financial
responsibility for the Municipal Inmate. The Parties acknowledge that the relevant
data for tracking and identifying an Inmate is the MCSO Booking Number assigned
to the Municipal Inmate by the Jail when the Municipal Inmate is fingerprinted and
booked into the Jail. Therefore, the Parties shall, at a minimum, track each
Municipal Inmate by MCSO Booking Number and shall refer to the MCSO Booking
Number to confirm whether an Inmate in the County’s invoice is a Municipal Inmate.
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5.2. Invoicing for Amounts Due. M C S O will invoice Municipality monthly for all
Municipal Costs due to County per Section 4 of this Agreement. Municipality shall
pay County's invoiced charges within forty five (45) days of the invoice date.
5.3. County may terminate this Agreement pursuant to Section 10, Termination, for failure
or refusal by Municipality to pay any balance due under this Agreement.
Notwithstanding termination, the Parties agree Municipal Costs and Municipal Credits
not in dispute will be paid. Costs and Credits in dispute will be addressed pursuant to
Section 9 until such Costs and Credits are not in dispute, which at such time will be
paid, accordingly.
5.4. Invoicing Adjustments. Municipality may request a credit or adjustment (i.e., a
Municipal Credit) of any portion of an invoice that Municipality believes is in error,
provided satisfactory written documentation is received within (90) days from the
invoice date. Credits or adjustments that have not been requested in writing within
the 90-day period shall be deemed waived, and an adjustment or credit will not be
given.
6. Audit
The Parties must give thirty (30) calendar days prior written notice to each other prior to
conducting an audit of records. The Parties agree that the ability to conduct audits survives
the termination of this Agreement for up to three (3) years, consistent with the provisions in
Records, Section 12.2.
7. Performance by Sheriff and County
7.1. Performance by County Sheriff. The County Sheriff shall receive Municipal
Inmates for booking, detention, and incarceration and determination of medical
stability by CHS or the County Sheriff at a booking facility. The County Sheriff is
responsible for housing Municipal Inmates and for supervising County Jail personnel
and officers and for other matters incidental to detention services.
7.2. County Jail Regulations and Standard of Conduct. Municipal Inmates will be,
and are, subject to the same rules and regulations that govern all inmates in the
County Jail.
7.3. County Sheriff's Determination is Conclusive. Notwithstanding anything to the
contrary in this Agreement, the County Sheriff is solely responsible for housing
Municipal Inmates and for supervising County Jail personnel and officers and for other
matters incidental to the services provided under this Agreement. In the event of a
dispute between the Parties as to the extent of the County Sheriff's duties and
responsibilities under this Agreement, or the minimum level of care or acceptable
manner of performance of such service, the determination made by the County
Sheriff shall be final and conclusive, subject to Municipality's right to perform an audit
of billings pursuant to Section 6 herein.
8. Medical and Health Care Information
The Parties shall comply with any and all Federal and State laws (i.e., the Health Insurance
Portability and Accountability Act (“HIPAA”)), rules and regulations regarding the
confidentiality of individual health information and health care records.
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9. Mandatory Alternative Dispute Resolution
The Parties to this Agreement agree that any disputes that arise regarding the terms of
this Agreement, shall be resolved amicably and informally. If any dispute relating to this
document cannot be resolved informally, then the parties will resolve the dispute according to
a process that is reasonably similar to, as agreed to by the Parties, the arbitration provisions
in A.R.S. §12-1501 et. seq. and Rules 72 through 77, Arizona Rules of Civil Procedure.
10. Termination
Either Party may terminate this Agreement, in whole or in part, as follows:
10.1. Upon delivery of a written notice of termination to the other Party not less than
one hundred eighty (180) calendar days prior to the termination date.
10.2. Upon one Party's default of the material terms, including financial terms, of this
Agreement and failure to cure the default within sixty (60) calendar days of a
written notice of default served on behalf of the non-defaulting Party as provided in
this Agreement.
10.3. The Parties shall continue to perform their respective obligations until the Agreement
has terminated.
11. Insurance and Indemnity
11.1. Nothing in this Agreement shall be construed as consent to any suit or waiver of any
defense in a suit brought in any state or federal court against either Party.
11.2. The Parties w i l l secure and maintain adequate insurance coverage (including
but not limited to public entity insurance) for any and all risks that may arise under
this Agreement. The Parties may fulfill this insurance obligation by acquiring
commercial insurance or by maintaining and operating a self-insurance program. Upon
request, the Parties shall exchange certificates of insurance or self-insurance.
11.3. Each Party (as “Indemnitor") agrees to indemnify, defend and hold harmless the other
Party (as the "Indemnitee") from and against any and all claims, losses, liability,
costs or expenses (including reasonable attorney's fees) (hereinafter collectively
referred to as "Claims") arising out of bodily injury of any person (including death)
or property damage, but only to the extent that such Claims which result in
vicarious/derivative liability to the Indemnitee are caused by the act, omission,
negligence, misconduct or other fault of the Indemnitor, its officers, agents, officials,
employees or volunteers. This general indemnity shall extend to the fullest extent
permitted by law. If any such injury, damage or death shall arise in part, but not in
whole, out of both Parties' negligence, then contribution rights shall apply in
accordance with applicable Arizona law.
12. Miscellaneous
12.1. Integration. This Agreement contains all the terms and conditions agreed to by the
Parties. No other understanding, oral or otherwise, regarding the subject matter of
this Agreement shall be deemed to exist or to bind any of the Parties hereto. Any
change, modification or extension of this Agreement must be in the form of a written
amendment and signed by the Parties.
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12.2. Records. Except for medical information and health care records governed by
Federal and State laws (i.e., HIPAA), the Parties shall maintain and upon request
furnish to each other such records and documents pertaining to the services provided
pursuant to this Agreement for a period of three (3) years after the end of the fiscal
year in which such records or documents are created or received. Such retention
complies with Arizona State Library, Archives and Public Records (AZLAPR) General
Record Retention Schedule for all Public Bodies related to Finance Records.
12.3. Non-Discrimination and Equal Employment Opportunity. Each Party shall not
discriminate against anyone because of race, age, disability, color, religion, gender or
national origin and will take action to insure that applicants are employed and that
employees are treated fairly during employment without regard to their race, age,
disability, color, religion, gender or national origin. Such action shall include, but
not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, lay-off or termination, rates of pay or other
forms of compensation, and selection for training, including apprenticeship. The
Parties shall comply with applicable federal, state or local laws or regulations that
mandate equal access for all persons to employment opportunities. Such applicable
laws and regulations include the following: Title VI and VII of the Federal Civil Rights
Act; the Federal Rehabilitation Act; the Age Discrimination in Employment Act; The
Immigration Reform and Control Act of 1986 (IRCA); The Americans with Disabilities
Act; the Legal Arizona Workers Act and Arizona Executive Order 99-4.
12.4. Notice. Unless otherwise expressly provided herein, legal notice under this
Agreement shall be given by personal delivery or by registered or certified mail to the
addresses set forth below and shall be effective upon receipt by the Party to whom
addressed unless a later effective date is indicated in said notice.
For Municipality:
Ed Zuercher
City Manager
City of Phoenix
200 West Washington St., 12th Floor
Phoenix, Arizona 85003
For Maricopa County: For Maricopa County Sheriff:
Joy Rich Paul Penzone, Sheriff
Maricopa County Manager Maricopa County Sheriff’s Office
301 West Jefferson, 10th Floor 550 W Jackson Street
Phoenix, Arizona 85003 Phoenix, Arizona 85003
12.5. Time of the Essence. Time is of the essence of this Agreement, all of the conditions
set forth herein are material to the Agreement and a breach of any condition is a
breach of the Agreement.
12.6. Severability. In the event competent authority finds that the law prohibits any term
or provision of this Agreement, such a finding shall not render the remaining portions of
this Agreement invalid or inoperative.
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12.7. No Waiver of Strict Compliance. A Party's failure to insist in any one or more
instances upon the other Party's full and complete performance of this Agreement or
to take any action permitted as a result of such non-performance, shall not be
construed as waiving or relinquishing the right to demand full and complete
performance of the same or any other covenant or condition in the past or in the future.
12.8. Accord and Satisfaction. The acceptance by either Party of sums less than may be
due and owing at any time shall not be construed as an accord and satisfaction.
12.9 Applicable Law. This Agreement shall be interpreted in accordance with Arizona law,
and subject to A.R.S. § 38-511.
12.10 Appropriations. Every payment obligation of the Municipality under this Agreement
is conditioned upon the availability of funds appropriated for payment of such
obligation. Continuation of this Agreement after the close of the City's fiscal year,
which ends June 30 of each year, is subject to the approval of the budget of the
City providing an appropriation covering this item as an expenditure. The City does
not represent that such budget item will be actually adopted, as that determination is
made by the City Council at the time of the adoption of the budget. If funds are not
appropriated for the continuance of this Agreement, this Agreement may be
terminated by the City at the end of the period for which funds are available. No
liability shall accrue to the City in the event this provision is exercised, and the City
shall not be obligated or liable for any future payments or for any damages as a
result of termination under this provision.
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IN WITNESS WHEREOF, the Parties enter into this Agreement on the date set forth
above.
MARICOPA COUNTY CITY OF PHOENIX, a municipal
corporation
BOARD OF SUPERVISORS Ed Zuercher, City Manager
BY:________________________________ BY:__________________________________
Steven Chucri, Chairman Ed Zuercher, City Manager
ATTEST: ATTEST:
BY:________________________________ BY:__________________________________
Clerk of the Board City Clerk
Maricopa County Sheriff
BY:_______________________________
Paul Penzone, Sheriff
This Agreement has been reviewed by the undersigned attorney, who has determined that
it is in proper form and is within the power and authority granted under the laws of the
State of Arizona, per A.R.S. §§ 11-951 et. seq.
MARICOPA COUNTY ATTORNEY MUNICIPALITY’S ATTORNEY
BY:________________________________ BY:__________________________________
Deputy County Attorney Attorney for Municipality
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ATTACHMENT A
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