HomeMy WebLinkAboutCSS 2020-07-27 COMPLETE AGENDA PACKETCity of Tukwila
Community Services
and Safety Committee
O Kate Kruller, Chair
O Thomas McLeod
O Cynthia Delostrinos Johnson
AGENDA
MONDAY, JULY 27, 2020 — 5:30 PM
(6399 Building, Suite 199)
Distribution:
K. Kruller
Mayor Ekberg
T. McLeod
D. Cline
C. Delostrinos Johnson
R. Bianchi
D. Quinn
C. O'Flaherty
A. Youn
L. Humphrey
THIS MEETING WILL NOT BE CONDUCTED AT CITY FACILITIES
BASED ON THE GOVERNOR'S PROCLAMATION 20-28.
THE PHONE NUMBER FOR THE PUBLIC TO LISTEN TO THIS
MEETING IS: 1-253-292-9750, Access Code 209002899#
Item
Recommended Action
Page
1. BUSINESS AGENDA
a. A 3-year contract for school speed zone automated
a. Forward to 8/10 C.O.W.
Pg.1
safety cameras.
and 8/17 Regular Mtg.
Bruce Linton, Police Chief
b. Follow up to review of Police Department Use -of-
b. Discussion only.
Pg.35
Force Policy.
Bruce Linton, Police Chief
2. MISCELLANEOUS
Next Scheduled Meeting: August 10, 2020
SThe City of Tukwila strives to accommodate individuals with disabilities.
Please contact the City Clerk's Office at 206-433-1800(TukwilaCityClerk(a�TukwilaWA.gov) for assistance.
City of Tukwila
Allan Ekberg, Mayor
INFORMATIONAL MEMORANDUM
TO:
Public Safety Committee
FROM:
Bruce Linton, Chief of Police
BY:
Bruce Linton, Chief of Police
CC:
Mayor Ekberg
DATE:
07/09/2020
SUBJECT:
School Speed Zone Automated Safety Camera Contract
ISSUE
A contract between the City of Tukwila and NovaGlobal, Inc. to install and assist the city in the
administration and operation of systems to monitor and report school zone speed violations,
in accordance with applicable laws and ordinances, is required to conduct school speed zone
enforcement.
BACKGROUND
Ordinance No. 2612 codified in Chapter 9.53 (link) of The Tukwila Municipal Code authorized
the use of automated traffic safety cameras in school speed zones pursuant to the authority
granted to it under RCW 46.63.
The Informational Memo dated 7/10/19 (link) describes the School Speed Zone Program in
great detail. Additional background about the City Council's decision -making process can be
found in the 7/22/19 Committee of the Whole (link) and 8/5/19 Regular Meeting (link) minutes.
NovaGlobal was selected as the contract awardee after successfully demonstrating the
requisite expertise in implementing and managing Automated Traffic Enforcement Programs
during the Request for Proposal (RFP) process.
ANALYSIS
Using automated safety cameras will increase efficiencies in the areas of traffic enforcement,
education and the overall traffic and pedestrian safety within our city. They will provide more
efficient service with no immediate additional FTE's. Traffic Safety cameras are non-
discriminatory, and the Tukwila Municipal Court has indicated that it maintains the authority,
will consider, and mitigate the financial impact of fines to our vulnerable community with
alternative enforcement strategies.
NovaGlobal will collaborate with the police department to initiate pre -operational outreach
prior to system implementation. The Tukwila Police Department reached out to the
community over time and garnered the support leading up to the approval of Ordinance 2612
(link).
{KZ52207064.DOCX;1/13175.000001/ }
INFORMATIONAL MEMO
Page 2
• Former Public Safety Committee
• Tukwila School Board
• Community Oriented Police Citizens Advisory Board
• Tukwila International Boulevard Action Committee
• Equity and Social Justice Committee
• Tukwila Reporter Newspaper
• Hazelnut Publication
• City of Tukwila Website linked to Police Department Website
FINANCIAL IMPACT
Consistent with normal Red -Light and School Zone Camera Vendor business models, there
are no upfront costs. The equipment is leased from the vendor, and the program is self -
funding (two citations per day per camera will mitigate the lease costs). Pricing for NG Safety
systems relating to fixed speed photo enforcement shall be as follows:
$3,999.00 per system per month, with less than 400 citations issued by the City per
month.
$4,900.00 per system per month, with between 400 and 800 citations issued by the
City per month.
$5,700.00 per system per month, with more than 800 citations issued by the City per
month.
This is a 3-year contract, and the per -year contractual cost would range from approximately
$96,000 to 137,000 based on the pricing range associated with the volume levels indicated
above.
RECOMMENDATION
Forward to the Council for approval of the 3-year Pilot Program proposal for the School
Speed Zone Cameras to the August 10, 2020 Committee of The Whole Meeting and
subsequent August 17, 2020 Regular Meeting.
ATTACHMENTS
Services Agreement Between the City of Tukwila and NovaGlobal, Inc.
2{KZ52207064.DOCX;1/13175.000001/ }
SERVICES AGREEMENT
BETWEEN THE CITY OF TUKWILA, WASHINGTON
AND NOVOAGLOBAL, INC. FOR
TRAFFIC INFRACTION DETECTION & ENFORCEMENT PROGRAM
This AGREEMENT (the "Agreement") made this day of March, 2020, by and
between NovoaGlobal, Inc. (formerly known as Sensys America, Inc.), a Delaware corporation
having a place of business at 8018 Sunport Drive, Suite 203, Orlando, Florida 32809 ("NG"),
and the City of Tukwila, a municipal corporation of the State of Washington, having an address
at 6200 Southcenter Boulevard, Tukwila, WA 98188 (the "City" and together with NG, the
"Parties" and each singularly a "Party").
WITNESSETH:
WHEREAS, pursuant to the Municipal Code of the City of Tukwila, Washington, Title 9:
Automated Traffic Safety Cameras in School Zones, Chapter 9.53, §9.53 as amended, the City
may implement an automated photo enforcement program;
WHEREAS, NG has the knowledge, possession, and ownership of certain equipment,
licenses and processes, referred to collectively as the NG Safety System (the "System(s)");
WHEREAS, the City desires to use the Systems to monitor and enforce school zone speed
violations in accordance with applicable laws and ordinances;
WHEREAS, the Parties desire to enter into this Agreement, whereby NG will (i) install and
assist the City in the administration and operation of the Systems, as described in more detail on
Exhibit A to this Agreement at the locations within the City's jurisdiction, and provide to the City
the services (the "Services"), all as more fully described on Exhibit A, and (ii) in connection with
the Services, license certain software and lease certain equipment to the City.
NOW, THEREFORE, in consideration of the mutual terms, covenants, and conditions
contained herein, and other good and valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. RECITALS AND EXHIBITS. The foregoing recitals are true and correct and are hereby
incorporated in haec verba. All exhibits attached to this Agreement contain additional
terms of this Agreement and are hereby incorporated in haec verba.
2. SERVICES
2.1. NG agrees to install and provide to the City for the Term, the Systems (the
"Equipment") and software (the "Software") to be supplied and installed by NG
in accordance with Exhibit A (including the provision of all construction drawings,
permit applications and other documents required by applicable law for the
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installation and operation of the System(s)). In addition, if and to the extent set forth
in Exhibits A, B, C, and D, NG shall also supply to the City:
2.1.1. Citation preparation processes that assist the City in complying with current
applicable City, State, and Federal law;
2.1.2. Training of personnel designated by the City involved with the operation of
the Systems and/or the enforcement and disposition of citations;
2.1.3. Expert witness testimony regarding the operation and functionality of the
System; and
2.1.4. Other support services for the System as set forth in Exhibit A.
2.2. If and to the extent the City has or obtains during the Term custody, possession or
control over any of the Equipment or Software, the City agrees:
2.2.1. Such Software, if manufactured or licensed by NG, is supplied under the
license set forth in Exhibit B (the "License") to which the City agrees;
2.2.2. Such Software, if manufactured by third parties, is supplied under third -
party licenses accompanying the Software, which licenses the City
acknowledges receiving and to which it hereby agrees; and
2.2.3. Such Equipment is supplied under the lease terms set forth in Exhibit C (the
"Lease") to which the City hereby agrees.
2.3. The City understands and agrees that (i) NG may, subject to the prior approval of
the City, which approval shall not be unreasonably delayed, conditioned or
withheld, subcontract with third parties for the provision or installation of part or
parts of the Systems or Services and (ii) installation of the Systems requires the
City's cooperation and compliance with NG' reasonable instructions (including but
not limited to City's provision of the personnel, equipment, engineering plans, and
other resources as described in Exhibit A or as otherwise reasonably requested by
NG) and reasonable access by NG (or such third parties) to City premises and
systems and (iii) the City will provide all of the foregoing in Section 2.3(ii) to NG.
2.4. The City understands and agrees that the Systems will be owned by NG (or its
designees). The City shall use its best efforts to assist NG to identify any third -party
who is responsible for damage to the Systems or any part thereof.
2.5. NG shall coordinate its work with the City's Police and Public Works Departments.
3. TERM
3.1. The effective date of this Agreement shall be the date first written above (the
"Effective Date"). The initial term (the "Initial Term") of this Agreement, the
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License and the Lease shall begin upon the Effective Date, following full execution
of the Agreement by the Parties, and shall continue until the third (3rd) anniversary
of the Installation Date (the "Installation Date").
3.2. The City shall have the option to extend this Agreement, the License and the Lease
for two (2) additional three (3) year terms (each, a "Renewal Term"), on the same
terms and conditions specified herein except that the amounts due pursuant to
Section 5 hereof shall be adjusted in accordance with the change in the Consumer
Price Index — All Urban Consumers — U.S. City Average ("CPP') by multiplying
said amounts by the percentage change in the CPI from the beginning of the
immediately preceding term to the end of the immediately preceding Term. (Each
Renewal Term, if any, together with the Initial Term, the "Term"). The
"Installation Date" shall be the latest date that a System becomes installed and
operational at any of the originally selected locations described in Sections LA or
1.13 of Exhibit A.
4. TERMINATION AND EXPIRATION
4.1. This Agreement may be terminated by mutual written consent of the Parties.
4.2. This Agreement may be terminated for cause, by either Party if the other Parry fails
in any material way to perform its obligations under the Agreement or otherwise
defaults in the performance of any obligation under this Agreement and such failure
or default continues for more than forty-five (45) days after written notice thereof
to the defaulting Party.
4.3. NG may terminate this Agreement, without liability, on thirty (30) days advance
written notice if NG concludes in its reasonable discretion that (i) potential or actual
liability of NG to third parties (other than persons claiming to own Intellectual
Property required for the operation of the System) arising out of or in connection
with the System makes the program impractical, uneconomical or impossible to
continue.
4.4. The City may terminate this Agreement on thirty (30) days advance written notice
if the City concludes in its reasonable discretion that (i) potential or actual liability
of the City to third parties arising out of or in connection with the System makes
the program impractical, uneconomical, legally contested or impossible to
continue; and/or (ii) the Systems cannot be installed.
4.5. Upon termination or expiration of this Agreement, either for default or because it
has reached the end of its term, the Parties recognize that the City will have to
process violations in the "pipeline," and that NG accordingly must assist the City
in this accord. Accordingly, the Parties shall take the following actions during the
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wind -down period, and shall have the following obligations, which obligations
shall survive termination or expiration of the Agreement:
4.5.1. The City shall cease using the Software and
Equipment in its possession, custody or control and shall (a) immediately
allow NG a reasonable opportunity to remove such Equipment not to exceed
sixty (60) days and (b) immediately deliver to NG or irretrievably destroy,
or cause to be so delivered or destroyed, any and all copies of such Software
in whatever form and any written or other materials relating to such
Software in the City's possession, custody or control and within sixty (60)
days deliver to NG a certification thereof.
4.5.2. Unless directed by the City not to do so, NG shall
continue to process all images taken by the City before termination and
provide all services associated with processing in accordance with this
Agreement, and shall be entitled to reasonable fees specified in the
Agreement as if the Agreement were still in effect.
4.6. Notwithstanding anything to the contrary contained herein, or in the License or the
Lease, but except as provided in Section 21, the License and the Lease shall
terminate upon the termination or expiration of this Agreement.
5. FEES AND PAYMENT
The City agrees to pay NG a monthly fee as follows (the "Monthly Fees"):
5.1. Monthly Fees (pro -rated for any partial month) as described in Exhibit D
(Compensation & Pricing) in arrears with respect to each approach at which a
System has been installed. Such payment shall commence on the first business day
of the month following Commencement of Operations of each System and shall
continue on the first business day of each month for the Term or until this
Agreement is sooner terminated or such payment is modified in accordance with
Section 3.2. For purposes of this Agreement, "Commencement of Operations"
shall mean the first full day that the System captures events for processing and
issuance of notices of violation.
5.2. The City, being a Municipal Corporation, shall pay sales tax in accordance with
WAC 458-20-189. Accordingly, NG shall add sales tax to the invoices provided to
the City in compliance with Washington State Law.
5.3. In the event that the United States Postal Service increases applicable First Class
Mail and/or Certified Mail postage, NG may invoice the City for the increased
postage actually paid by NG in connection with this Agreement. For example, if
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First Class Mail postage were increased by $0.02, and NG mailed 1,000 notices,
NG would invoice the City $20.00.
5.4. Payment of all fees and other charges owed pursuant to this Agreement is due as
set forth above, and, to the extent invoice is required, within forty-five (45) days
after receipt of the invoice. Invoices will be sent to the City at:
SafetyCams@TukwilaWa.gov
5.5. Notwithstanding anything in this Agreement to the contrary, if amounts due to NG
pursuant to Section 5.1 in any month during the Term plus any amounts due to NG
pursuant to this Section 5.5 ("Monthly Photo Enforcement Fees") exceed the
revenue generated by operation of the Systems and actually received by the City
during that same month ("Monthly Photo Enforcement Revenue") then the City
shall pay to NG for such month only the amount of Monthly Photo Enforcement
Revenue. In such case, the difference between Monthly Photo Enforcement Fees
and Monthly Photo Enforcement Revenue (a "Payment Shortfall") shall be
accumulated and added to the Monthly Photo Enforcement Fees for the following
month. Payment Shortfalls, if any, shall accumulate from month -to -month until
paid in full, provided that under no circumstances shall the City ever be required to
make a payment of Monthly Photo Enforcement Fees to NG except from Monthly
Photo Enforcement Revenue. At the final expiration of this Agreement (last day of
validity of the agreement including any extensions) any accumulated Payment
Shortfalls shall be forfeited.
6. RESPONSIBILITIES OF THE CITY
6.1. The City shall provide NG with any "as built" drawings in electronic format that
are available at no cost to the City and shall consider for approval NG's engineering
drawings.
6.2. The City shall not levy any fees. However, if municipal ordinance requires the
assessment of fees by the City, said assessment shall be limited to permit fees as
required by the City's Municipal code. The City does not control fees for Public
Utilities or electrical permits for service. Levy of those fees for permits regarding
electrical service are outside the scope of this contract.
6.3. The City shall diligently prosecute citations in court at its own expense. NG shall,
at its own expense, participate in any proceeding challenging the use of the System,
the validity of the System's results, and/or use of the U.S. Mail to deliver a citation.
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6.4. The City will cooperate with NG in obtaining electrical connections at the roadside
and NG shall pay all costs associated with such connection and shall pay for all
power required by the System.
6.5. To allow for proper operation of the System, when known to the City, the City shall
provide NG with advance written notice of any modifications proposed to roadways
after installation of a System. In the event any such roadway modification requires
a material change to the System, the City shall pay the costs reasonably incurred by
NG to adapt the affected video monitoring system(s) or fixed speed enforcement
unit(s) to make such video monitoring system(s) or fixed speed enforcement unit(s)
compatible therewith. Notwithstanding the above, NG makes no guarantee that it
will be able to make any such adaptation. In the event that NG is unable to adapt
the affected System, then both parties shall be relieved of any further obligations
under this Agreement with respect only to the affected System.
6.6. During the Term, except as expressly permitted by this Agreement the City shall
not use the System, or allow the System's use by a third party, without the prior
written permission of NG.
7. LIMITED WARRANTY AND LIMITATION ON DAMAGES
7.1. NG warrants that the System's functionality will conform in all material respects to
the description of the System set forth on Exhibit A.
7.2. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, NG HEREBY
DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES AND
SYSTEM, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED
WARRANTIES OF TITLE, NON -INFRINGEMENT, NON-INTERFERENCE
WITH ENJOYMENT, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE AND ALL WARRANTIES IMPLIED FROM ANY
COURSE OF DEALING OR USAGE OF TRADE. THE CITY
ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY PROVIDED HEREIN
NO OTHER WARRANTIES HAVE BEEN MADE TO MUNICIPALITY BY OR
ON BEHALF OF NG OR OTHERWISE FORM THE BASIS FOR THE
BARGAIN BETWEEN THE PARTIES.
7.3. The City acknowledges and agrees that:
7.3.1. The Systems may not detect every speeding violation;
7.3.2. Since the System may flag as a violation conduct that is in fact not a
violation, the output of the System will require review, analysis and
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approval by personnel appropriately qualified and authorized by the City
under applicable law prior to the issuance of any citation;
7.3.3. The System has no control over, and relies on the proper functioning of
equipment provided by entities other than NG;
7.3.4. The proper functioning of the System requires the City's full and complete
compliance with the Systems' operating instructions, which it hereby agrees
to do; and
7.3.5. NG shall not be responsible for the configuration and/or operation of any
intersection traffic light systems and NG shall have no liability or
obligations with respect thereto.
8. INDEMNIFICATION AND INSURANCE
8.1. NG shall at all times comply with all federal, state and local laws, ordinances and
regulations and shall comply with the maintenance procedures and manufacturer's
recommendations for operation of the Systems which affect this Agreement and
shall defend, indemnify and hold harmless the City against any claims, injuries,
damages, losses, or suits including attorney fees, arising from NG's violation of
any such laws, ordinances and regulations or any claims arising from NG's
performance of this Agreement, including as a result of the negligence,
recklessness, or willful misconduct of NG, its officers and directors, agents,
attorneys, and employees, but excluding any employees or agents of City.
8.2. NG agrees to indemnify, defend, and hold harmless the City from any and all
claims, damages, injuries, losses, or suits including attorney fees, by a third party
arising from either (a) a finding that the System infringes any validly issued United
States patent or (b) NG's willful misconduct, recklessness, or negligence, provided
that such claim of damages, except for injuries and damages caused by the sole
negligence of the City, which is not attributable to (i) any act or omission set forth
in Section 8.3 or (ii) any third -party software or other third -party products used
with, required for use of, or supplied under their own names with or as part of the
System. If, as a final result of any litigation of which NG is obligated to indemnify,
the use of the System by the City is prevented, in whole or in part, by an injunction,
NG's sole obligation to the City as a result of such injunction shall be, at NG's
option, either to (i) replace such part as has been enjoined, or (ii) procure a license
for NG or the City to use same, or (iii) remove same and terminate this Agreement
at no additional cost to the City.
8.3. Should a court of competent jurisdiction determine that this Agreement is subject
to RCW 4.24.115, then, in the event of liability for damages arising out of bodily
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injury to persons or damages to property caused by or resulting from the concurrent
negligence of the NG and the City, its officers, officials, employees, and volunteers,
the NG's liability hereunder shall be only to the extent of the NG's negligence. It
is further specifically and expressly understood that the indemnification provided
herein constitutes the NG's waiver of immunity under Industrial Insurance, Title
51 RCW, solely for the purposes of this indemnification. This waiver has been
mutually negotiated by the parties. The provisions of this section shall survive the
expiration or termination of this Agreement.
8.4. Notwithstanding anything in this Agreement to the contrary, NG assumes no
obligation or liability for any claim of damages (including the payment of
reasonable attorneys' fees) by a third party arising from or related to (i) any
modification of the System made by the City, (ii) the sole negligence or willful
misconduct of the City, (iii) the failure to function properly of any hardware,
software or equipment of any kind used by, in or on behalf of the City (other than
that supplied by NG), or (iv) the review and analysis of the System data output by
the City personnel for citation preparation.
8.5. The rights of the City to seek indemnification under this Section 8 shall be
conditioned upon (i) the City notifying NG promptly upon receipt of the claim or
action for which indemnification is sought and (ii) the City's full cooperation with
NG in the settlement or defense of such claim or action at no cost to the City. The
City agrees not to charge NG for the time of the City's personnel engaged in such
cooperation. Such cooperation shall include, but not be limited to, the City
providing access for, and permission to, NG for the purpose of the replacement of
such part or parts of Systems as NG may deem necessary or desirable. The City
may participate in the defense of any indemnified matter through counsel of its own
choice and at its own expense provided that NG shall remain in, and responsible
for, control of the matter. This Section 8 states the entire liability and obligation
and the exclusive remedy of the City with respect to any actions or claims (i) of
alleged infringement relating to or arising out of the subject matter of this
Agreement or (ii) otherwise the subject of this paragraph.
8.6. NG shall maintain the following minimum scope and limits of insurance:
8.6.1. Comprehensive general liability insurance with limits no less than
$1,000,000 each occurrence, $2,000,000 general aggregate. Commercial
General Liability insurance shall be at least as broad as ISO occurrence form
CG 00 01 and shall cover liability arising from premises, operations, stop-
gap, products -completed operations, independent contractors, personal
injury and advertising injury, and liability assumed under an insured
contract. The City shall be named as an additional insured under NG'S
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Commercial General Liability insurance policy with respect to the work
performed for the City using an additional insured endorsement at least as
broad as ISO CG 20 26.Workers Compensation coverage as required by the
Industrial Insurance laws of the State of Washington; and
8.6.2. Comprehensive Automobile Liability Insurance for all owned, non -owned
and hired automobiles and other vehicles used by NG with a minimum
combined single limit for bodily injury and property damage of $1,000,000
per accident. Automobile Liability insurance shall cover all owned, non -
owned, hired and leased vehicles. Coverage shall be written on Insurance
Services Office (ISO) form CA 00 01 or a substitute form providing
equivalent liability coverage. If necessary, the policy shall be endorsed to
provide contractual liability coverage.
8.6.3. Other Insurance Provision. The Consultant's Automobile Liability and
Commercial General Liability insurance policies are to contain, or be
endorsed to contain that they shall be primary insurance with respect to the
City. Any Insurance, self-insurance, or insurance pool coverage
maintained by the City shall be excess of the Consultant's insurance and
shall not be contributed or combined with it.
8.6.4. Acceptability of Insurers. Insurance is to be placed with insurers with a
current A.M. Best rating of not less than A:VII.
8.6.5. Verification of Coverage. Consultant shall furnish the City with original
certificates and a copy of the amendatory endorsements, including but not
necessarily limited to the additional insured endorsement, evidencing the
insurance requirements of the Contractor before commencement of the
work. Upon request by the City, the Consultant shall furnish certified
copies of all required insurance policies, including endorsements, required
in this Agreement and evidence of all subcontractors' coverage.
8.6.6. Notice of Cancellation. The Consultant shall provide the City with written
notice of any policy cancellation, within two business days of their receipt
of such notice.
8.6.7. Failure to Maintain Insurance. Failure on the part of the Consultant to
maintain the insurance as required shall constitute a material breach of
contract, upon which the City may, after giving five business days notice to
the Consultant to correct the breach, immediately terminate the contract or,
at its discretion, procure or renew such insurance and pay any and all
premiums in connection therewith, with any sums so expended to be repaid
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to the City on demand, or at the sole discretion of the City, offset against
funds due the Consultant from the City.
8.7. The City shall be named as additional insured on the comprehensive general
liability policies provided by NG under this Agreement. NG shall require any
subcontractors doing work under this Agreement to provide and maintain the same
insurance, which insurance shall also name the City and its officers, employees,
and authorized volunteers as additional insured.
8.8. Certificates showing NG is carrying the above described insurance, and evidencing
the additional insured status specified above, shall be furnished to the City within
thirty (30) calendar days after the date on which this Agreement is made. Such
certificates shall show that the City shall be notified of all cancellations of such
insurance policies. NG shall forthwith obtain substitute insurance in the event of a
cancellation.
8.9. All insurance required by express provision of this Agreement shall be carried only
in responsible insurance companies licensed to do business in the State of
Washington and shall name as additional insured the City. NG will furnish the City
with Certificates of Insurance and applicable endorsements for all such policies
promptly upon receipt of them. NG may effect for its own account insurance not
required under this Agreement.
9. CHANGE ORDERS OR ADDITIONAL SERVICES. Changes to Services and
additional Systems may be added to this Agreement by mutual consent of the Parties in
writing as an addendum to this Agreement. The City and NG agree that should legislation
or local ordinance be enacted to enable new photo enforcement solutions within the City's
jurisdiction, the City shall have the option to negotiate services and fees and issue a change
order to cover such services.
9.1. The City will appoint a project manager, which shall be an administrative ranked
City Police Officer who will have oversight of the installation and implementation
of the NG systems. The project manager has the authority to make daily operational
management decisions. Only the Mayor or his/her designee has the authority to
authorize additional systems exceeding the original agreement, change orders,
request additional services, and extensions.
10. CONFIDENTIAL AND PROPRIETARY INFORMATION; PUBLIC RECORDS
LAW COMPLIANCE.
10.1. The Parties agree that they shall comply with the public records disclosure
provisions of the Revised Code of Washington, Chapter 42.56, Public Records Act
and RCW 46.63.170(1)(g).
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10.2. NG agrees that:
10.2.1. All information obtained by NG through operation of the Systems shall be
made available to the City at any time during the Tukwila Municipal Court's
normal business hours which are 08:30am to 5:00pm pacific time,
excluding Proprietary Information not reasonably necessary for the
prosecution of citations or fulfillment of the City's obligations under this
Agreement.
10.2.2. It shall not use any information acquired from the performance of the
Services contemplated in this Agreement, including without limitation,
information with respect to any violations, violators, information obtained
from recorded images or information concerning the City's law
enforcement activities for any purpose other than for the benefit of the City.
10.2.3. No information given by NG to the City will be of a confidential nature,
unless specifically designated in writing as "Proprietary Information" and
expressly exempt from public records disclosures required by the Revised
Code of Washington, Chapter 42.56, Public Records Act.
10.2.4. As used in this Agreement, the term "Proprietary Information" shall mean
all trade secrets or confidential or proprietary information designated as
such by NG, whether letter or by the use of an appropriate proprietary stamp
or legend, prior to or at the time any such trade secret or confidential or
proprietary information is disclosed by NG to the City. In addition, the term
"Proprietary Information" shall be deemed to include: (a) any notes,
analyses, compilations, studies, interpretations, memoranda or other
documents prepared by the Recipient which contain, reflect or are based
upon, in whole or in part, any Proprietary Information furnished to the
Recipient.
10.2.5. The City shall use the Proprietary Information only for the purpose of
fulfilling its duties hereunder (the "Purpose") and such Proprietary
Information shall not be used for any other purpose without the prior written
consent of NG. "Purpose" shall be deemed to not include any disclosure of
the Proprietary Information to any person or entity. The City shall hold in
confidence, and shall not disclose to any person or entity, any Proprietary
Information nor exploit such Proprietary Information for its own benefit or
the benefit of another without the prior written consent of NG.
10.2.6. Notwithstanding anything contained in this Agreement to the contrary, this
Agreement shall not prohibit the City from disclosing Proprietary
Information to the extent required in order for the City to comply with
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applicable laws and regulations, provided that the City provides prior
written notice of such required disclosure to NG.
11. INDEPENDENT CONTRACTOR; NO AGENCY.
11.1. It is understood that NG is an independent contractor and not an agent or employee
of the City for any purpose including, but not limited to, federal tax and other state
and federal law purposes. Nothing in this Agreement shall be considered to create
the relationship of employer and employee between the parties hereto. Neither
Contractor nor any employee of Contractor shall be entitled to any benefits
accorded City employees by virtue of the services provided under this Agreement.
The City shall not be responsible for withholding or otherwise deducting federal
income tax or social security or contributing to the State Industrial Insurance
Program, or otherwise assuming the duties of an employer with respect to the
Contractor, or any employee of the Contractor. NG specifically assumes
responsibility for payment of all federal, state and local taxes imposed or required
of NG under unemployment insurance, Social Security and income tax laws for the
duration of this contract. NG shall be solely responsible for any worker's
compensation insurance required by law and shall provide the City with proof of
insurance upon demand. The parties agree that the City shall not:
11.1.1. Pay dues, licenses or membership fees for NG;
11.1.2. Require attendance by NG, except as otherwise specified herein;
11.1.3. Control the method, manner or means of performing Services under this
Agreement, except as otherwise specified herein; or
11.1.4. Restrict or prevent NG from working for any other Party.
11.2. Neither Party has the right or the power to enter into any contract or commitment
on behalf of the other Party, including entering into agreements with third parties,
exercising incidents of ownership with respect to property owned by the Party or
executing contracts binding upon the other Party.
12. NOTICES.
12.1. Any notices or demands which, under the terms of this Agreement or under any
statute, must or may be given or made by NG or the City shall be in writing and
shall be given or made by personal service, first class mail, FedEx, or by certified
or registered mail to the Parties at the following addresses:
Notices to the City of Tukwila shall be sent to the following address:
City Clerk, City of Tukwila
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6200 Southcenter Blvd
Tukwila, WA 98188
Notices to NG shall be sent to the following address:
NovoaGlobal, INC
8018 Sunport Drive Suite 203
Orlando, FL 32809
12.2. Except as otherwise specified, all notices, payments and reports hereunder shall be
deemed given and in effect as of the date of mailing or transmission, as the case
may be, when sent by next day delivery or courier service, postage pre -paid, or
three (3) days after the date of mailing when sent by first class mail, postage pre-
paid, addressed in all such cases to the Parties as set forth in section 12.1, above, in
each case to the President of NG or the Mayor of the City.
13. ASSIGNMENT. Except as specifically provided in this Agreement, neither Party may
assign, or delegate performance of its obligations under, this Agreement, without prior
express written consent of the other Party, except that NG may assign or otherwise
encumber this Agreement, the License and the Lease for the purpose of obtaining
financing; provided, however, that this Agreement may be assigned to any Person that
acquires all or substantially all of NG' assets in one transaction.
14. AMENDMENT AND MODIFICATION. This Agreement may be modified or amended
from time to time by the Parties, provided, however, that no modification or amendment
hereto shall be effective unless it is stated in writing, specifically refers to this Agreement
and is executed on behalf of both Parties.
15. NON WAIVER. The failure of either Party to require performance of any provision of this
Agreement shall not affect the right to subsequently require the performance of such
provision or any other provision of this Agreement. The waiver of either Parry of a breach
of any provision shall not be taken or held to be a waiver of any subsequent breach of that
provision or any subsequent breach of any other provision of this Agreement.
16. FORCE MAJEURE. Neither Party shall be liable to the other for failure or delay in
meeting any obligations hereunder which arises in whole or in part from causes which are
unforeseen by, or beyond the control of, such Party, including without limitation, acts of
God or of a public enemy, acts of terrorism, acts of the Government (other than the City in
the case of the City) in either its sovereign or contractual capacity, fires, floods, epidemics,
quarantine restrictions, strikes, freight embargoes, acts or omissions of (i) non-
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subcontractor third -parties and (ii) third party equipment, telecommunications and
software suppliers, and unusually severe weather. When any such circumstance(s) exist,
NG shall have the right, in its sole discretion, to allocate its available production, deliveries,
services, supplies and other resources among any and all buyers (whether or not including
the City), as well as among departments and affiliates of NG, without any liability to the
City.
17. DISPUTE RESOLUTION AND REMEDIES.
17.1. All disputes arising out of or in connection with the Agreement shall be attempted
to be settled through good -faith negotiation between the City's appointed Project
Manager and the President of NG, followed, if necessary, within thirty (30)
calendar days, by professionally -assisted mediation. Any mediator so designated
must be acceptable to each party and must be a certified mediator in the State of
Washington. The mediation will be conducted as specified by the mediator and
agreed upon by the Parties. The Parties agree to discuss their differences in good
faith and to attempt, with the assistance of the mediator, to reach an amicable
resolution of the dispute. The mediation will be treated as a settlement discussion
and therefore will be confidential. The mediator may not testify for either party in
any later proceeding relating to the dispute. No recording or transcript shall be
made of the mediation proceedings. Each party will bear its own costs in the
mediation. The fees and expenses of the mediator will be shared equally by the
Parties.
17.2. Failing resolution through negotiation or mediation, all actions, disputes, claims
and controversies under common law, statutory law or in equity of any type or
nature whatsoever, whether arising before or after the date of this Agreement, and
whether directly or indirectly relating to: (a) this Agreement and/or any
amendments and addenda hereto, or the breach, invalidity or termination hereof;
(b) any previous or subsequent agreement between the parties; and/or (c) any other
relationship, transaction or dealing between the parties (collectively the
"Disputes"), will be subject to and resolved by binding arbitration pursuant to the
Commercial Arbitration Rules of American Arbitration Association. Any award or
order rendered by the arbitrator may be confirmed as a judgment or order in any
state or federal court of competent jurisdiction within the federal judicial district
which includes the residence of the Party against whom such award or order was
entered. The prevailing Party in any arbitration shall be entitled to reasonable
attorney fees and costs.
18. GOVERNING LAW; JURISDICTION; VENUE. The parties agree that this Agreement
is consummated, entered into, and delivered in King County, Washington. Notwithstanding
conflicts of laws provisions, this Agreement has been and is to be governed by, construed,
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interpreted and enforced in accordance with the laws of the State of Washington. In the
event that any litigation is commenced by either parry to enforce this Agreement, the action
will be filed and litigated, if necessary, solely and exclusively in a court of competent
jurisdiction located in King County, Washington. The parties waive any and all rights to
have this action brought in any place other than King County, Washington, under
applicable venue laws. The Parties hereby irrevocably waive any and all rights to have this
action brought in any place other those stated herein. The Parties hereby irrevocably waive
any claim that any such action has been brought in an inconvenient forum.
19. ATTORNEY'S FEES AND COSTS. In the event arbitration is commenced to enforce
this Agreement, costs of said suit including reasonable attorney's fees in all proceedings,
trials, investigations, appearances, appeals and in any bankruptcy proceeding or
administrative proceeding shall be paid to the prevailing Parry by the other Parry.
20. DISCRIMINATION PROHIBITED. NG, with regard to the work performed by it under
this Agreement, will not discriminate on the grounds of race, religion, creed, color, national
origin, age, veteran status, sex, sexual orientation, gender identity, marital status, political
affiliation, the presence of any disability, or any other protected class status under state or
federal law, in the selection and retention of employees or procurement of materials or
supplies.
21. GENERAL AND MISCELLANEOUS.
21.1. Time shall be of the essence of this Agreement.
21.2. In this Agreement, wherefore the singular and masculine are used, they shall be
construed as if the plural or the feminine or the neuter had been used, where the
context or the party or parties so requires, and the rest of the sentence shall be
construed as if the grammatical and the terminological changes thereby rendered
necessary had been made.
21.3. Paragraph headings are provided as an organizational convenience and are not
meant to be construed as material provisions of this Agreement.
21.4. Preparation of this Agreement has been a joint effort of the Parties and the resulting
document shall not, solely as a member of judicial construction, be construed more
severely against one of the parties than the other.
21.5. This Agreement may be executed in counterparts, each constituting a duplicate
original, but such counterparts shall constitute one and the same Agreement.
21.6. The burdens of this Agreement shall be binding upon, and the benefits of this
Agreement shall inure to, all successors in interest to the Parties to this Agreement
from and after the Effective Date.
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21.7. Each Party to this Agreement agrees to do, execute, acknowledge, and deliver or
cause to be done, executed, acknowledged and delivered, all such further acts, and
assurances in a manner and to the degree allowed by law, as shall be reasonably
requested by the other party in order to carry out the intent of and give effect to this
Agreement. Without in any manner limiting the specific rights and obligations set
forth in this Agreement or illegally limiting or infringing upon the governmental
authority of the City, the Parties declare their intention to cooperate with each other
in effecting the purposes of this Agreement, and to coordinate the performance of
their respective obligations under the terms of this Agreement.
21.8. Except as set forth in this Agreement and the Exhibits hereto, no representation,
statement, understanding or agreement, whether written or oral, has been made and
there has been no reliance on anything done, said or any assumption in law or fact
with respect to this Agreement for the duration, termination or renewal of this
Agreement other than as expressly set forth in this Agreement and there has been
no reliance upon anything so done or said that in any way tends to change or modify
the terms or subject matter of this Agreement or to prevent this Agreement from
becoming effective.
21.9. This Agreement supersedes any agreements and understandings, whether written
or oral, entered into by the Parties hereto prior to the Effective Date of this
Agreement.
22. SURVIVABILITY. Termination or expiration of this Agreement shall not relieve either
Parry of their respective obligations, which are expressly noted to survive termination or
expiration or under the following sections which shall survive termination and expiration:
Sections 4.5, 5, 7.2, 7.3, 8, 10, 17, 18, 19, 20, and this Section 21. Sections 4, 7 and 8 (but
only to the extent Section 8 corresponds to Sections of the Agreement which survive) of
the License and Sections 3, 4, 5, 6, 7 and 8 (but only to the extent Section 8 corresponds to
Sections of the Agreement which survive) of the Lease shall survive any expiration or
termination of this Agreement, the License or the Lease.
23. SEVERABILITY. If any covenant or provision of this Agreement is, or is determined to
be, invalid, illegal or unenforceable by a court of competent jurisdiction, then such
covenant or provision will be ineffective only to the extent of such prohibition or invalidity.
All remaining covenants and provisions of this Agreement shall nevertheless remain in full
force and effect, and no covenant or provision of this Agreement shall be deemed to be
dependent upon any covenant or provision so determined to be invalid, illegal or
unenforceable unless otherwise expressly provided for herein. The invalidity of any
provision of this Agreement or any covenant herein contained on the part of any party shall
not affect the validity of any other provision or covenant hereof or herein contained which
shall remain in full force and effect.
24. Each party acknowledges that it has read this Agreement and understands the terms and
conditions herein. Further, the Parties have caused this Agreement to be executed on its
behalf by the authorized officer whose signature appears below under its name, to be
effective as of the date written above.
IN WITNESS WHEREOF, the Parties hereto have set their hands by their duly authorized
representatives as of the day and year first above written.
NovoaGlobal, Inc.
Carlos Lofstedt
President and CEO
City of Tukwila, Washington
Allan Ekberg
Mayor
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EXHIBIT A SERVICES
NG shall provide the City with the Systems. In connection with furnishing the Systems, NG
shall provide the following to the City, each of which is more fully described below:
1. SITE INSTALLATION PLANNING; DESIGN AND EQUIPMENT INSTALLATION
2. TRAINING AND SUPPORT
3. CITATION PREPARATION AND PROCESSING SERVICES
4. MAINTENANCE
5. PUBLIC EDUCATION CAMPAIGN
6. EXPERT WITNESS TESTIMONY AND COURT TRAINING
7. REPORTING
1. SITE INSTALLATION PLANNING, DESIGN AND EQUIPMENT
INSTALLATION
1.1. The Systems.
1.1.1. NG will initially install two (2) Systems (which shall remain property of
NG), monitoring such locations as the City and NG shall mutually agree.
Up to fifty (50) additional Systems may be added at the option of the City
with NG's consent. None of the quantities mentioned under this paragraph
shall be interpreted as mandatory quantities. The actual quantities to be
installed can only be approved by the City. The installation of any system
will require the written approval of the Mayor or his/her designee. Each
System shall comprise of equipment capable of monitoring violations at a
single approach to a school zone for up to five lanes of traffic. NG will
install new Systems upon mutual agreement of the Parties. School zone
fixed speed enforcement systems will conduct enforcement while beacon
systems are in an activated state within the identified school zone. NG will
ensure school zone fixed speed enforcement systems are integrated with
City's school zone flashing beacons, if present.
1.1.2. Automated traffic safety cameras shall only take pictures of the vehicle and
vehicle license plate. The image must not display the face of the driver or
of passengers in accordance with RCW 46.63.170(1)(d).
1.1.3. The Systems shall include all equipment located on each roadway or in the
right of way, telecommunications equipment, and Software and shall have
the capability of transferring images from the roadside in accordance with
RCW 46.63.170 to be accessed at the City's Police Department processing
facility.
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1.1.4. Substitution, Relocation, or Addition o a Site. If NG or the City reasonably
determines that one or more sites selected for installation of a System is not
for any reason appropriate for the System (and such determination is made
at least fifteen (15) days prior to the commencement of installation of the
System at any such location), then alternate location(s) may be substituted
by written consent of the Parties. If the average monthly violation collected
from any individual system does not meet the level required for the
individual system to be cost neutral for a period of twelve (12) consecutive
months, the City shall have the right to request relocation of the system to
a more effective location. This request must be in writing and before twenty
four (24) months of the expiration of the contract or any of its extensions.
In response to said request, NG shall have the option to comply with the
request, reduce the fee temporarily, or permanently reduce the fee to a level
equal to the violation (revenue) collected from that individual system.
1.1.5. Timeframe for Installation of the System. NG shall install and activate the
Systems in accordance with an installation timeline to be mutually agreed
to by NG and the City, which installation shall conclude within sixty (60)
days after all necessary permits and approvals are received by NG. NG
shall endeavor to install the System in accordance with the schedule set
forth in the Implementation Plan. The City agrees that the estimated dates
of installation and activation of the System set forth in the Implementation
Plan are subject to delay based on conditions beyond the control of NG and
are not guaranteed.
1.1.6. Installation/Ownership of the System. NG shall procure, install and provide
support of installed equipment at each of the agreed upon locations. As
between NG and the City, all components for the System will remain the
property of NG.
1.2. Installation
1.2.1. NG shall submit plans and specifications to the City for review and
approval.
1.2.2. All cameras and other equipment shall be enclosed in lockable, weather and
vandal -resistant housing. All wiring shall be internal to equipment (not
exposed) and if commercially reasonable and if capacity exists,
underground in existing conduits, except where required to directly
interface with existing electrical service. Separate conduits or other
methods, as approved by the City or electrical service provider, may be used
by NG if existing conduit(s) are at capacity.
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1.2.3. NG will not enter City's traffic signal control boxes without permission
and/or authorization of the City's Public Works Department.
1.2.4. The provision, installation, and maintenance of all necessary electronic
system communication equipment will be the sole responsibility of NG.
1.2.5. The System may be mounted on or utilize support of existing traffic signal
poles, arms or other City -owned structures where possible, subject to City
review and approval.
1.2.6. The System poles, foundations, signs, and new infrastructure, as required,
shall conform to applicable law.
1.3. Restoration of Roadways and/or Right of Wad Upon termination or expiration of
the Agreement, NG shall remove the System and restore the affected public
facilities including returning the roadway and/or right of way to their original
condition; provided, however, that NG shall not be required to remove any conduit,
in -ground fixture, underground wiring or other infrastructure that will require
excavation or demolition. All costs incurred by NG thereby will be the
responsibility of NG.
1.4. Compliance with Law. NG shall design and install the System in compliance with
all currently existing federal, state and local laws and regulations. NG covenants
and agrees that its Systems shall, at all times, comply with all applicable laws,
regulations, rules and orders ("Legal Requirements"). NG shall continuously
monitor the status of such Legal Requirements to ensure continuous compliance. In
the event of any change in the Legal Requirements, NG shall modify or replace (at
its sole cost) all or any portion of its non -compliant Systems. Any such modification
shall be effected by NG in a reasonable period of time (not to exceed ninety (90)
days for modification or one hundred eighty (180) days for complete system
replacement) and NG's failure to effect such modification or replacement in a
timely manner shall be grounds for the City to terminate this Agreement for cause.
Any such termination shall not relieve NG of its obligation to restore each site to
its original condition.
2. TRAINING OF CITY PERSONNEL. After System installation, NG shall provide up to
eight (8) hours of training for up to ten (10) persons at two (2) sessions at the City's
facilities to acquaint City personnel with System operation. Training shall consist of
instructional and operational training as well as hands-on equipment exercises with an
instructor. All necessary training materials and documentation will be provided by NG at
NG's expense. NG shall make all such training services available to the City prior to the
end of the thirty (30) day period following the Installation Date. If the City requests
additional courses or training, NG shall provide these on a cost reimbursement basis.
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Additionally, NG will provide and maintain a web -based training service that includes
basic operation instructions as well any system or procedure changes to ensure continuity
for court personnel and law enforcement end users.
3. CITATION PREPARATION AND PROCESSING SERVICES
3.1. Citation Preparation and Processing. NG shall (1) perform the initial review of all
data generated at the roadside, (2) process and format violations utilizing a
computerized traffic citation program that shall store all information required for
citation processing required by state law, local law, and in accordance with court
of jurisdiction's specifications, and (3) transfer the citations to the Police
Department's computer for review and decision on whether or not to issue a
citation. If NG is permitted by applicable law or regulation to do so, NG shall also
review all Washington State Department of Licensing information and print and
mail citation forms. NG shall pay all mailing and postage costs, and such other
miscellaneous costs and expenses as may be reasonably necessary to issue a citation
and deliver it by U.S. mail. To the extent required by applicable law, NG shall
obtain a certification of mailing issued by the U.S. Post Office. Notwithstanding
anything to the contrary in the foregoing provisions of this Section 3. 1, NG will
shall not process nor support any citations not captured by the System and/or
approved by the City.
3.2. Officer Discretion. NG recognizes and agrees that the decision to issue or dismiss
a citation shall be the sole and exclusive decision of a sworn officer of the City's
Police Department. In no event shall any NG employee or representative have the
ability to authorize or dismiss any citations.
3.3. Mailing of Citations. Citations shall be mailed to the violator as soon as is
reasonably practicable, and in no event longer than ten (10) business days after
being approved by the City and NG has been notified of such approval. The form
of citation shall be subject to the approval of the City.
3.4. Cooperation With Police and the Courts. NG shall be responsible for, and pay for,
the cost of issuing and the mailing citations in accordance with applicable law. NG
shall coordinate with the City and the courts and shall comply with the applicable
law and court procedures regarding the mailing and other requirements necessary
for the issuance and processing of traffic citations. All citations shall be reviewed
and approved by the City's Police Department prior to mailing. In addition, NG
will cooperate with the courts to set up the necessary communications systems for
processing. It is agreed that the Tukwila Municipal Court will be solely responsible
for processing delinquent notices.
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3.5. With respect to each violation authorized by the City, within five (5) business days
after NG's receipt of such authorization, NG shall file with the Tukwila Municipal
Court, a copy (electronic or otherwise) of the citation. NG acknowledges that
Washington State law requires all citations be filed within five days of issuance
(i.e., date signed by Police Officer) or the infraction is subject to dismissal under
court rule. Filing of citations within five days of issuance shall be considered a
material provision of this Agreement. This paragraph only applies in case that the
City choses to use JIS. If the City elects to use NG's Back Office then no filing
would be required.
3.6. Rental car and business vehicles. NG will coordinate with the City and Courts to
establish an acceptable procedure to streamline and coordinate the processing,
notification, and accountability of rental car violation and corporate vehicle
violations.
3.7. Preparation ofEvidence Packages. NG shall provide electronic copies of evidence
packages in such form as may be reasonably agreed upon with the courts to enable
the City to enforce its citations in court.
3.8. Access to License Information. NG shall maintain the ability to access the license
information and the registered owner residence address for all U.S. registered
vehicles, and the per -request fee for information, if any, shall be paid by NG. If
possible, NG will identify rental vehicle and corporate vehicle violations to migrate
and merge original violation with rental and business nomination for appropriate
processing needs. If NG is unable to access such information, NG shall provide the
make and license plate number of each violator to the City, which will obtain and
input the information into the System, or provide such information to NG within a
reasonable period of time.
3.9. Numbering Svstem. NG, in coordination with the City, shall develop and
implement an independent numbering system for automated safety camera
speeding citations. This numbering system should be at least 9 digits and start with
the two letters SC (denoting Safety Camera). The final 7 digits should be numeric.
3.10. Transmission of Information. NG shall make all citation information available to
the City via an electronic file using comma separated value files on a secure FTP
site. NG shall maintain a documented chain of custody for all electronically
transmitted information while the information is under NG's control.
4. MAINTENANCE
4.1. Maintenance of Svstem. Except as provided herein, NG shall Maintain the System
(as such term is defined below); provided however, that NG shall not be responsible
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for any maintenance, repair or replacement required as a result of (i) the negligence
or intentional act of the City, its employees, agents or independent contractors
(other than NG) and/or (ii) any equipment or software not provided by NG. NG
shall maintain a maintenance log that documents all service issues. To "Maintain
the System" shall mean to keep the System in a state of operation such that the
System's functionality and operation conforms in all material respects to the
description of the System set forth in this Exhibit. All problems shall be
documented, and repairs commenced within seventy-two (72) business hours after
the time NG receives notice thereof. NG shall also install all software revisions for
Systems as and when developed and made commercially available by NG. NG is
responsible to ensure systems are operational. NG will repair and upgrade as
needed, including any vandalized equipment, and maintain a reasonably clean
appearance and in a graffiti -free condition. Graffiti shall be removed within 7 days
of notice to NG.
4.2. Equipment Checks. When possible, NG shall perform remote camera and
equipment checks to confirm proper operation of computers, cameras and
communications network. In -field camera equipment inspection will be done as
needed or when remote camera and equipment checks are not possible. The System
shall have the capability of on-line monitoring of all cameras in each school zone.
4.3. NG will conduct routine testing, evaluation, and monitor the system to ensure the
system is operational. If a deficiency, malfunction, or failure of the system is
detected, NG will notify the City's Police Department within 72 hours by written
or electronic notification. If the system cannot be restored or repaired to full
functional capability within 7 consecutive calendar days, NG will reduce the fee to
reflect the time the system is deficient, malfunctioning, or failing. The fee
reduction shall be applied to the affected billing cycle and continue until the system
is restored to full operation. This reduction shall be identified on the billing
statement to the City's Police Department.
5. PUBLIC EDUCATION CAMPAIGN
5.1. Public Awareness Program. NG shall assist the City with a Public Awareness
Program. Such assistance shall consist of:
5.1.1. Paying for and installing all signage required by State law and local
ordinance or as otherwise required by resolution of the City's Council
5.1.2. Reasonable assistance for a media event to launch the community education
program
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5.1.3. Preparing, publishing, and printing brochures in as many languages as
possible, but at least in English and Spanish
5.1.4. A reasonable amount of training for City staff.
5.1.5. Providing a multi-lingual (including English and Spanish) toll -free
customer service hotline which shall be staffed sufficiently during all
regular business hours.
6. EXPERT WITNESS TESTIMONY AND COURT TRAINING
6.1. Expert Witness Testimony. NG shall provide expert witness testimony at its sole
expense, as necessary, to testify regarding the accuracy and technical operation of
the System as necessary for court challenges to the operation of the System.
6.2. Court Training. NG shall conduct a one -day workshop -orientation session for
Municipal Courtjudges (and/or their designees), hearing officers, other appropriate
court officials and the City prosecutor. NG will provide and maintain a web -based
training service to the City that includes information regarding basic operation and
any system or procedure changes to ensure continuity for court staff end users.
7. REPORTING
7.1. Bi-Monthly Report. NG shall submit to the City a Bi-Monthly Report on project
results within fifteen (15) days after the end of two -week period and provide web
access to such reports.
7.2. Monthly Report. NG shall submit to the City's Public Works Department a monthly
Report on statistical information regarding traffic volumes, average speed, and
traffic congestion within thirty (30) days after the end of calendar month. Web
access to such reports shall also be provided to City's Public Works Department.
7.3. Annual Report. NG shall submit an annual report of the number of citations issued
for each camera system and any other relevant information about the automated
traffic safety cameras the City deems appropriate for the City's web page.
7.4. Additional Reports or Information. Any other reports and information are not part
of the Agreement and the preparation and delivery of any other such reports or
information may result in additional fees.
7.5. Database. NG shall maintain a database with the following information per
violation:
7.5.1. Location, date and time
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7.5.2. Speed of vehicle
7.5.3. Vehicle description including license plate state and number
7.5.4. Applicable vehicle code section violated (if available to NG)
7.5.5. Citation prepared or reason for not preparing citation (if available to NG)
7.5.6. Registered vehicle owner's name and address, and related information
required to prepare citations where violation is made by a driver other than
registered owner (if available to NG) (i.e., Affidavit of Non -Liability)
7.5.7. Status of citation (outstanding, cancelled, reissued, paid, bail forfeited,
traffic school, warrants issued, etc.) (if available to NG)
7.6. NG shall maintain, at its sole expense, all records, including, but not limited to all
video recordings, which it generates or receives as a result of the performance of
services pursuant to the Agreement for the period of time required by, and
otherwise in accordance with, the Revised Code of Washington, Chapter 42.56,
Public Records Act and Revised Code of Washington 46.63.170 as same may be
amended from time to time. Upon receipt of a request from the City for a copy of
any record being maintained by NG, NG shall provide the requested record to the
City within a reasonable time following such request, but in no event later than
seven (7) days following the date the request is received by NG.
7.7. Additional Services (if requested by the City in writing):
7.7.1. School Zone Assessment Pro r� NG will generate a video -based analysis
of school zones designed to evaluate the frequency of school zone speed
violations for each approach to the targeted school zone. The video media
will contain up to 16 hours of video monitoring assuming the equipment
remains installed at the school zone during the course of monitoring, but not
to exceed three consecutive calendar days. A report summarizing the
results, along with the media generated will be provided to the City. There
is no charge for the initial 16 approaches or any future system placement
requests to be evaluated by NG pursuant to this Agreement.
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EXHIBIT B
LICENSE AGREEMENT FOR NG SAFETY SYSTEM SOFTWARE
This LICENSE AGREEMENT (the "License") is part of an agreement (the "Agreement")
(to which a copy of this License is attached as Exhibit B) between the City named in the Agreement
and NovoaGlobal, Inc. ("NG") for the NG software product identified above, which includes
computer software and may include associated media, printed materials, and "online" or electronic
documentation (the "SOFTWARE PRODUCT"). The SOFTWARE PRODUCT also includes any
updates and supplements to the original SOFTWARE PRODUCT provided to the City by NG.
Any software provided along with the SOFTWARE PRODUCT that is associated with a separate
license agreement is licensed to the City under the terms of that license agreement. By execution
of the Agreement, the City has agreed to be bound by the terms of this License. Such agreement
by the City is an express condition to its ability to use the SOFTWARE PRODUCT.
1. GRANT OF LICENSE. The SOFTWARE PRODUCT is licensed, not sold. This License
grants the City only the following rights: The City may use those copies of the SOFTWARE
PRODUCT as installed by NG on its network ("Network").
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. The City may not reverse
engineer, decompile, or disassemble the SOFTWARE PRODUCT, except and only to the
extent that such activity is expressly permitted by applicable law notwithstanding this
limitation. The SOFTWARE PRODUCT is licensed as a single product. Its component parts
may not be separated for use on more than one computer unless so installed by NG. The City
may not rent, lease, transfer or lend the SOFTWARE PRODUCT. This License does not grant
the City any rights in connection with any trademarks or service marks of NG. Without
prejudice to any other rights, NG may terminate this License if the City fails to comply with
the terms and conditions of this License.
3. SUPPORT SERVICES AND UPGRADES. NG may provide the City with support services
related to the SOFTWARE PRODUCT ("Support Services"). Use of Support Services is
governed by the Agreement. Any supplemental software code provided to the City as part of
the Support Services shall be considered part of the SOFTWARE PRODUCT and subject to
the terms and conditions of this License. With respect to technical information the City
provides to NG as part of the Support Services, NG may use such information for its business
purposes, including for product support and development. In particular, NG will not utilize
such technical information in a form that personally identifies the City or any motor vehicle,
tag or person. If the SOFTWARE PRODUCT is labeled as an upgrade, the City must be
properly licensed to use a product identified by NG as being eligible for the upgrade in order
to use the SOFTWARE PRODUCT. A SOFTWARE PRODUCT labeled as an upgrade
replaces and/or supplements the product that formed the basis for the City's eligibility for the
upgrade. The City may use the resulting upgraded product only in accordance with the terms
of this License. If the SOFTWARE PRODUCT is an upgrade of a component of a package of
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software programs that the City licensed as a single product, the SOFTWARE PRODUCT may
be used and transferred only as part of that single product package and may not be separated
for use on more than one computer.
4. COPYRIGHT. All title and intellectual property rights in and to the SOFTWARE PRODUCT
(including but not limited to any images, photographs, animations, video, audio, music, text,
and "applets" incorporated into the SOFTWARE PRODUCT), the accompanying printed
materials, and any copies of the SOFTWARE PRODUCT are owned by NG or its suppliers.
As between the City and NG, all title and intellectual property rights in and to the images and
information which may be generated through use of the SOFTWARE PRODUCT is the City's
property. All rights not expressly granted are reserved by NG.
5. BACKUP COPY. After installation of one copy of the SOFTWARE PRODUCT pursuant to
this License, the City may keep the original media on which the SOFTWARE PRODUCT was
provided by NG solely for backup or archival purposes. If the original media is required to
use the SOFTWARE PRODUCT on the COMPUTER, the City may make one copy of the
SOFTWARE PRODUCT solely for backup or archival purposes. Except as expressly
provided in this License, the City may not otherwise make copies of the SOFTWARE
PRODUCT or the printed materials accompanying the SOFTWARE PRODUCT.
6. COMPLIANCE WITH LAW AND EXPORT RESTRICTIONS. The City represents and
agrees that it does not intend to and will not use, disseminate or transfer in any way the
SOFTWARE PRODUCT in violation of any applicable law, rule or regulation of the United
States, or any State of the United States or any foreign country of applicable jurisdiction.
Without limiting the foregoing, the City agrees that it will not export or re-export the
SOFTWARE PRODUCT to any country, person, entity or end user subject to U.S. export
restrictions. The City specifically agrees not to export or re-export the SOFTWARE
PRODUCT: (i) to any country to which the U.S. has embargoed or restricted the export of
goods or services, which currently include, but are not necessarily limited to Cuba, Iran, Iraq,
Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located,
who intends to transmit or transport the products back to such country; (ii) to any end -user who
the City knows or has reason to know will utilize the SOFTWARE PRODUCT or portion
thereof in the design, development or production of nuclear, chemical or biological weapons;
or (iii) to any end -user who has been prohibited from participating in U.S. export transactions
by any federal agency of the U.S. government.
7. OTHER PROVISIONS. Sections 3, 4, 7, 10, 17, 18, 19, 20, and 22 of the Agreement are
hereby incorporated by reference as if herein set forth in full.
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EXHIBIT C
LEASE AGREEMENT FOR NG SAFETY SYSTEMS
This LEASE AGREEMENT (the "Lease") is part of an agreement (the "Agreement") (to
which a copy of this Lease is attached as Exhibit C) between the City named in the Agreement
("City") and NovoaGlobal, Inc ("NG") (collectively, the "Parties"). The Parties hereto agree as
follows:
1. LEASE. NG hereby leases to the City and the City hereby leases from NG, subject to the terms
and conditions of this Lease, such items of System equipment (together with all attachments,
replacements, parts, additions, substitutions, repairs, accessions and accessories incorporated
therein and/or affixed thereto, the "Equipment") that the City obtains possession, custody or
control of pursuant to the Agreement.
2. USE AND LOCATION. The Equipment shall be used and operated by the City only in
connection with the operation of the System by qualified employees of and in accordance with
all applicable operating instructions, and applicable governmental laws, rules and regulations.
The City shall not part with control or possession of the Equipment without NG's prior written
consent.
3. CONDITION. NG shall maintain the Equipment in good condition and working order in
accordance with Section 4 of Exhibit A. The City shall not damage the Equipment or make
any alterations, additions or improvements to the Equipment without NG's prior written
consent unless such alterations, additions or improvements do not impair the commercial value
or the originally intended function or use of the Equipment and are readily removable without
causing material damage to such Equipment so as to return the Equipment to its original state,
less ordinary wear and tear. Any alteration, addition or improvement not removed prior to the
return of the Equipment shall without further action become the property of NG, provided,
however, that any alterations, additions and improvements which would reduce the value of
the Equipment must be removed prior to the return of such Equipment.
4. RETURN. Upon the expiration or earlier termination of the Agreement, the City shall allow
NG reasonable access to remove the Equipment at NG's expense.
5. OWNERSHIP, LIENS. The Equipment is and shall at all times be the property of NG. The
City agrees to take all action necessary or reasonably requested by NG to ensure that the
Equipment shall be and remain personal property. Nothing in this Lease, the Agreement or
any Exhibit shall be construed as conveying to the City any interest in the Equipment other
than its interest as a lessee hereunder. If at any time during the term hereof, NG wishes to
place on the Equipment labels, plates or other markings evidencing ownership, security or
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other interest therein, the City shall allow NG reasonable access therefore and keep the same
displayed on the Equipment.
6. NO CITY SUBLEASE; ASSIGNMENT. The City shall not assign or in any way dispose or
otherwise relinquish possession or control of all or part of its rights or obligations under this
lease or enter into any sub -lease of all or any part of the equipment without the prior written
consent of NG.
7. OTHER PROVISIONS. Sections 3, 4, 7, 10, 17, 18, 19, 20, and 22 of the Agreement are
hereby incorporated by reference as if herein set forth in full.
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EXHIBIT D
COMPENSATION AND PRICING
MONTHLY FEE
Pricing for NG Safety Systems relating to fixed speed photo enforcement shall be as follows:
• $3,999.00 per system per month, with less than 400 citations issued by the City per month.
• $4,900.00 per system per month, with between 400 and 800 citations issued by the City
per month.
• $5,700.00 per system per month, with more than 800 citations issued by the City per month.
NG acknowledges school zone fixed speed photo enforcement systems will only function during
specified times throughout the day and in accordance with City's flashing beacon system, if
available.
Additionally, NG acknowledges that schools often take breaks for more than seven (7) consecutive
calendar days. These school breaks do not constitute a temporary suspension, as defined below.
Consequently, NG shall bill the City monthly fees for all months of the year, but shall reduce the
monthly fees for all School Zone Systems by twenty five percent (25%).
Temporary Suspensions. In the event construction by the City causes a disruption of service under
the Agreement, upon NG's written request, the term of the Agreement may be extended at the
City's sole discretion. For every two (2) months, (per individual system) of disrupted service the
Agreement can be extended for a one -month period.
BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS
1. Except where a balance remains unpaid due to a deficit in the gross cash received as
described herein, City agrees to pay NG within forty-five (45) days after the invoice is
received. A monthly late fee of 1.5% is payable for amounts remaining unpaid sixty (60)
days from date of invoice or monthly report if such delay is the responsibility of the City.
2. Required Payment Convenience Fees will not be considered to be revenue received and are
the responsibility of the violator.
3. Required Refund Fees will not be considered to be revenue received and are the
responsibility of the violator.
4. Violations sent to a collection agency will have an additional charge as negotiated with the
chosen collection agency in mutual agreement with the City and the applicable court.
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City of Tukwila
Allan Ekberg, Mayor
INFORMATIONAL MEMORANDUM
TO:
Tukwila Community Services and Safety Committee
FROM:
Bruce Linton, Chief of Police
BY:
Bruce Linton, Chief of Police
CC:
Mayor Ekberg
DATE:
06/19/2020
SUBJECT: Tukwila Police Use -Of -Force Policy Review
ISSUE
The #8CantWait police use -of -force reform proposal and campaign has been
communicated and shared across the country at the speed of social media in the 21 st
century. Many agencies are scrambling to adopt significant changes to their use -of -
force policies to meet the demands of their respective communities, while agencies with
foresight have been making minor adjustments to fully address the rapidly evolving
movement towards change. If you are an agency that embraced 21 st Century Policing
five years ago, you are way ahead in the race to effect change.in the six pillars of 21 st
Century Policing.
I intend to work in parallel with the Community Services and Safety Committee as I
review and (when necessary) adjust the current Tukwila Use -of -Force Policies in
consideration of the communicated reform proposals. A copy of the Tukwila Police
Department Policy is attached absent the recent directive suspending the use of the
Vascular Neck Restraint (VNR) except when an officer is faced with a deadly force
situation.
The Tukwila Police Department uses the Lexipol policy for the State of Washington.
Lexipol provides fully developed, state -specific law enforcement policies researched
and written by subject matter experts and vetted by attorneys. Policies are based on
nationwide standards and are the leading content, policy and training platform for public
safety and local government, enabling first responders and leaders to better protect
their communities and reduce risk. (Policy Attached)
During the use -of -force policy review, I intend to review and consider recommendations
from the 2017 National Consensus Policy and Discussion Paper on Use of Force.
(Attached).
BACKGROUND
President Obama's Task Force on 21 St Century Policing report features 6 pillars:
1. Building Trust & Legitimacy
2. Policy and Oversight
3. Technology & Social Media
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Tukwila Police Use -Of -Force Policy Review
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4. Community Policing & Crime Reduction
5. Training & Education
6. Officer Wellness & Safety
Since 2016, The Tukwila Police Department have embraced this philosophy that
essentially is foundational to todays discussion on police reform. If you look at the
police department goals during the last three years of my tenure, you will notice a
common theme where each year at least several pillars were representative of the goals
selected.
Surveying the environment, anticipating change, and setting a course to navigate that
change has been our strategic roadmap. As we examine our policies and practices,
balanced against the #8CantWait police reform proposal, I can report that we are on the
right path. I will not stop moving forward because I believe there is always room for
improvement.
THE #8CantWait police reform proposal calls for:
1. The banning of chokeholds and strangleholds.
2. Required de-escalation using communication, distance, and eliminating the
need to use force.
3. Required verbal warning before shooting at a civilian.
4. Requirement to exhaust all other reasonable means before resorting to deadly
force.
5. Required intervention by officers to stop excessive use of force and required
reporting of these incidents to a supervisor.
6. Banned shooting at moving vehicles, which can be a dangerous and ineffective
tactic.
7. Required use of force continuum that limits the types of force/weapons that can
be used to respond to specific types of resistance.
8. Required comprehensive reporting when force is used against civilians.
An analysis grounded in the 21 st Century pillars will show that The Tukwila Police
Department Policies on the use -of -force are balanced and addressees each of the
#8CantWait reform proposals.
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Tukwila Police Use -Of -Force Policy Review
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ANALYSIS:
GUIDING PRINCIPLES OF THE TUKWILA USE -OF -FORCE POLICY:
As stated in our policy manual, the department recognizes and respects the value of all
human life and dignity without prejudice to anyone. Vesting officers with the authority tc
use reasonable force and to protect the public welfare requires monitoring, evaluation,
and a careful balancing of all interests.
The Tukwila Police Department use -of -force policy guidelines provide a basis for
officers to make professional, moral, and legal decisions based on a reasonable
standard set by the U.S. Supreme court.
The constitutional requirement for the use -of -force by an officer calls for an objective
reasonableness standard. Proper and reasonable use of force is measured by the
leading case on use of force which is the 1989 Supreme Court decision in Graham v.
Connor. The Court held, "...that all claims that law enforcement officers have used
excessive force — deadly or not — in the course of an arrest, investigatory stop, or other
seizure of a free citizen should be analyzed under the Fourth Amendment and its
objective reasonableness standard..." This standard is evaluated by a three -pronged
test.
1. The severity of the crime at issue
2. Whether the suspect poses an immediate threat to the safety of the officers or
others
3. Whether the suspect is actively resisting arrest or attempting to evade arrest
by flight
Other factors used to determine the reasonableness of force is listed in the Tukwila
policy manual under 300.3.2.
The #8CantWait police reform proposals, along with other important topics are
addressed in the following paragraphs:
USE -OF -FORCE CONTINUUMS:
The National Consensus Policy on Use of Force clearly communicate the pitfalls of use -
of -force continuums beginning with the use of the term "continuum." It is often
interpreted to mean that an officer must begin at one end of a range of use -of -force
options and then systematically work his or her way through the types of force that
follow on the continuum, such as less -lethal force options, before finally resorting to
deadly force. To maintain the safety of both the officer and others, an officer might need
to transition from one point on the continuum to another, without considering the options
in between in a linear order. For instance, when faced with a deadly threat, it is not
prudent to expect an officer to first employ compliance techniques, followed by an
electronic control weapon, and only then use his or her firearm. For this reason, the use
of a continuum is strongly discouraged. Instead, force models are preferred that allow
officers to choose a level of force that is based on legal principles, to include the option
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Tukwila Police Use -Of -Force Policy Review
Page 4
of immediately resorting to deadly force where reasonable and necessary. The Tukwila
Police Department does not use or recommend a use -of -force continuum. The
constitutional requirement for the use -of -force by an officer calls for an objective
reasonableness standard.
BODY -WORN CAMERAS:
The Tukwila Police Department led the way for the full implementation of the bodycam
in 2017 after we partnered with Axon to complete a national pilot program which
integrated in -car video, bodycams and taser deployments. We led the way in the state
of WA with full implementation because it was important to the agency to maintain a
level of transparency with our diverse community with the focus on building trust.
USE -OF -FORCE TRACKING & STATISTICS:
We believe that after the bodycam implementation in 2017, we saw a 50% reduction in
the use -of -force. Careful monitoring over the years provides for the basis of training and
adjustment in our use -of -force practices. Monitoring begins with a review of each
officer's use of force, first by the supervisor, then the command staff. Each use of force
is logged into The Administrative Investigations Management (AIM) database where all
uses of force, complaints and Internal Investigations are completed and saved. The use
of the database allows for easy retrieval of statistics and more importantly, there is an
early warning/intervention component designed to alert command staff of an officer's
use of force that meets a certain criteria set by the agency.
DUTY TO INTERCEDE:
Tukwila Police policy states that, in addition to making the scene secure, officers
present have a duty to intercede if they witness excessive force. If an officer believes
another officer use or is using force that does not appear reasonable, they need to bring
the situation to a safe resolution and report the use of force to a supervisor.
CRISIS INTERVENTION TACTICS:
Officers should consider that taking no action or passively monitoring the situation may
be the
most reasonable response to a mental health crisis.
Once it is determined that a situation is a mental health crisis and immediate safety
concerns have been addressed, responding members should be aware of the following
considerations and should generally:
• Evaluate safety conditions.
• Introduce themselves and attempt to obtain the person's name.
• Be patient, polite, calm, courteous and avoid overreacting.
• Speak and move slowly and in a non -threatening manner.
• Moderate the level of direct eye contact.
• Remove distractions or disruptive people from the area.
• Demonstrate active listening skills (e.g., summarize the person's verbal
communication).
• Provide for sufficient avenues of retreat or escape should the situation become
volatile.
Tukwila Police Use -Of -Force Policy Review
Page 5
Responding officers generally should not:
• Use stances or tactics that can be interpreted as aggressive.
• Allow others to interrupt or engage the person.
• Corner a person who is not believed to be armed, violent or suicidal.
• Argue, speak with a raised voice, or use threats to obtain compliance.
FORCE DE-ESCALATION:
The agency has been forward leaning in force de-escalation. During the conversation
regarding 1-940, the legislative mandate for the de-escalation of force, we resourced
and coordinated a mandatory de-escalation training taught by a National Leading Law
Enforcement Consulting Firm.
Our goal during 2018 was to build trust and legitimacy through community engagement.
As we moved forward in making great strides in our efforts to reduce uses -of -force
within the Tukwila Police Department, we recognized that de-escalation training and
tactics is an important line of effort in reducing use -of -force incidents.
After the Law Enforcement Training and Safety Act (LETSA) was passed, Tukwila
Police Department registered three Scenario -Based Trainers to attend the first iteration
of the Criminal Justice Training Commission (CJTC) Patrol Tactics Instructor Course
geared to teach officers the tactics of integrating de-escalation training into the use -of -
force curriculum. Our recently certified instructors are working on current programming
and I expect the first 8-hour module will be approved by the CJTC and trained in the 3ra
quarter of 2020. If this timeline is accomplished, I believe we will (again) lead the state
in LETSA de-escalation training requirements. Clear language will be added to the
policy directing de-escalation tactics as required by the state mandated LETSA.
LESS LETHAL FORCE:
Tukwila Less lethal force options range from impact weapons, launched chemical
weapons, Oleoresin Capsicum (OC)/Pepper Spray, Kinetic Energy Projectiles/Weapons
and Conducted Energy Weapons (Tasers) and use of impact weapons such as the
baton or Kinetic Energy Weapons such as less lethal launched impact rounds.
This department is committed to reducing the potential for violent confrontations. Kinetic
energy projectiles, when used properly, are less likely to result in death or serious
physical injury and can be used to de-escalate a potentially deadly situation
Use of impact weapons, kinetic energy weapons, the Taser in the probe mode and the
use of OC constitute a significant level of force that must be justified by a strong
governmental interest that compels the employment of such force.
A verbal warning of the intended use of the device should precede its application unless
it would otherwise endanger the safety of officers or when it is not practicable due to the
circumstances. The purpose of the warning is to give the individual a reasonable
opportunity to voluntarily comply and to warn other officers and individuals that the
device is being deployed.
Officer's may use CED's in the following circumstances:
1. When a subject causes an immediate threat of harm to officers or others; or 39
Tukwila Police Use -Of -Force Policy Review
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2. When public safety interests dictate that a subject must be taken into custody,
and the level of resistance presented by the subject is likely to cause injury to the
officer or the subject if hands-on control tactics are used.
Mere flight from a pursuing officer without other known circumstances or factors, is not
good cause for the use of the CED to apprehend an individual.
Training in the proper and ethical use of all less lethal force options is required prior to
use.
VASCULAR NECK RESTRAINT:
A choke hold is the physical restriction of a person's airway which disrupts their
breathing. A lateral vascular neck restraint (VNR) is not a choke hold; regardless, it is
confused with the term "choke hold." A VNR is the temporary disruption of the blood
flow to the brain by compression of the carotid arteries. It normally takes 4-10 seconds
with proper application to render a person unconscious which allows for safe compliant
handcuffing avoiding injury to the officer and arrestee. Regardless of the success of
this safe technique, the negative response from the community regarding its use (often
purported as a "choke hold") has made its use untenable.
I suspended the VNR pending a full review and potential adjustment in consideration of
the concerns surrounding its use unless the officer's life is at risk. When trained and
used properly, the VNR allows an officer to safely take a resistive/assaultive subject into
custody without having to use other intermediate level force such as punches, baton
strikes, Taser applications, or impact weapons, which are all less lethal options. VNR
when professionally trained and applied by a skilled officer and regulated, will
temporarily subdue the combative subject resulting in no injuries to officers and the
arrestee.
Continued use of the VNR will be difficult if not impossible; however, I believe law
enforcement will lose a viable de-escalation tool because of mis-information associated
with improper and untrained use of the variant called the "choke hold" which resulted in
the deaths of several subjects.
DEADLY FORCE APPLICATIONS:
The Tukwila Police policy states that deadly force is justified to protect oneself or others
from what he/she reasonably believes would be an imminent threat of death or serious
bodily injury.
An officer may use deadly force to stop a fleeing subject when the officer has probable
cause to believe that the person has committed, or intends to commit, a felony involving
the infliction or threatened infliction of serious bodily injury or death, and the officer
reasonably believes there is an imminent risk of serious bodily injury or death to any
other person if the subject is not immediately apprehended.
Under the above circumstances, a verbal warning should precede the use of deadly
force, where feasible.
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Tukwila Police Use -Of -Force Policy Review
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SHOOTING AT OR FROM MOVING VEHICLES:
Shots fired at or from a moving vehicle are rarely effective. Tukwila Police use -of -force
policy states that, Officers should move out of the path of an approaching vehicle
instead of discharging their firearm at the vehicle or any of its occupants.
An officer should only discharge a firearm at a moving vehicle or its occupants when the
officer reasonably believes there are no other reasonable means available to avert the
threat of the vehicle, or if deadly force other than the vehicle is directed at the officer or
others.
Officers should not shoot at any part of a vehicle to disable the vehicle.
REPORTING THE USE OF FORCE:
Any use of force by a member of this department shall be documented promptly (by the
end of shift, unless approved by a supervisor), completely and accurately in a case
report and on a Use of Force Report form.
APPLICATION OF HANDCUFFS:
Handcuffs, including temporary nylon or plastic cuffs, may be used only to restrain a
person's hands to ensure officer safety. Although recommended for most arrest
situations, handcuffing is discretionary and not an absolute requirement of the
Department. Officers should consider handcuffing any person they reasonably believe
warrants that degree of restraint. However, officers should not conclude that to avoid
risk every person should be handcuffed regardless of the circumstances.
While conducting non -compliant handcuffing where a subject is face down on the
ground, officers shall not place a knee on the subject's neck. A knee can be placed on
the upper portion of the subject back while most of the officer's body weight is
concentrated on the opposite knee resting on the ground. This technique avoids
damage to the subject's neck caused by prolonged compression while it assists with
stabilizing a non -compliant subject while speedily applying restraints. As soon as the
restraints are applied, the subject should be assisted up and placed in a sitting position
inside of a vehicle.
ANNUAL MANAGEMENT ANALYSIS OF THE USE OF FORCE:
The commander with oversight of the use -of -force training cadre shall compile and
analyze the data from use -of -force reports. The intent of the analysis is to identify
patterns or trends that could indicate training needs or policy modifications. A report of
this analysis shall be prepared for Assistant Chief of Police.
RENDERING MEDICAL AID:
Medical aid shall be obtained for any person who exhibits signs of physical stress, who
has sustained a visible injury, or expresses a complaint of injury or continuing pain, or
who was rendered unconscious. Any individual exhibiting signs of physical distress after
an encounter should be continuously monitored until he/she can be medically assessed.
RESPONSIBILITIES FOR IMMEDIATE MEDICAL CARE:
Whenever practicable, members should take appropriate steps to provide initial medical
aid (e.g., first aid, CPR and use of an automated external defibrillator (AED)) in 41
Tukwila Police Use -Of -Force Policy Review
Page 8
accordance with their training and current certification levels. This should be done for
those in need of immediate care and only when the member can safely do so.
RECOMMENDATION
What police need is support in the following areas.
Funding for cognitive/emotional intelligence training such as the Cognitive
Command C2 training for officers. Cognitive training has scientifically proven
that an officer's mental faculties are pragmatically more important than the
weapons on her or his tool belt and it can improve an officer's control of self,
others, and the environment during a critical situation to improve officer/citizen
safety.
2. Funding the integration of Mental Health Professionals in our patrol function to
respond to persons in crisis who are suffering from Mental Illnesses with the
intent to unburden the police as opposed to defunding the police.
3. Funding to support the integration of the legislative mandated training because of
LETSA. LETSA calls for 24 additional hours of training in scenario -based de-
escalation training and 16 hours of implicit bias, Crisis Intervention, and other
training such as Cognitive Command Training.
Attachments:
Tukwila Police Department Policy Manual (link)
The National Consensus Policy on Use of Force
42
NATIONAL
CONSENSUS
POLICYANn
DISCUSSION
PAPER DN USE of
FORCE
October 2017
POLICY
This National Consensus Policy on Use of Force is a collaborative effort among 11 of the most
significant law enforcement leadership and labor organizations in the United States (see back panel for list).
The policy reflects the best thinking of all consensus organizations and is solely intended to serve as a
template for law enforcement agencies to compare and enhance their existing policies.
I. PURPOSE
The purpose of this policy is to provide law
enforcement officers with guidelines for the use
of less -lethal and deadly force.
II. POLICY
It is the policy of this law enforcement agency to
value and preserve human life. Officers shall use
only the force that is objectively reasonable to
effectively bring an incident under control, while
protecting the safety of the officer and others.
Officers shall use force only when no reasonably
effective alternative appears to exist and shall
use only the level of force which a reasonably
prudent officer would use under the same or
similar circumstances.
The decision to use force "requires careful attention
to the facts and circumstances of each particular
case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to
the safety of the officer or others, and whether he
is actively resisting arrest or attempting to evade
arrest by flight."
In addition, "the `reasonableness' of a particular use
of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the
20/20 vision of hindsight ... the question is whether the
officers' actions are `objectively reasonable' in light of
the facts and circumstances confronting them."'
This policy is to be reviewed annually and any
questions or concerns should be addressed to the
immediate supervisor for clarification.
1 Graham v. Connor, 490 U.S. 386 (1989).
III. DEFINITIONS
DEADLY FORCE: Any use of force that creates
a substantial risk of causing death or serious
bodily injury.
LESS -LETHAL FORCE: Any use of force other than
that which is considered deadly force that involves
physical effort to control, restrain, or overcome the
resistance of another.
OBJECTIVELY REASONABLE: The determination
that the necessity for using force and the level of
force used is based upon the officer's evaluation
of the situation in light of the totality of the
circumstances known to the officer at the time
the force is used and upon what a reasonably
prudent officer would use under the same or
similar situations.
SERIOUS BODILY INJURY: Injury that involves a
substantial risk of death, protracted and obvious
disfigurement, or extended loss or impairment of
the function of a body part or organ.
DE-ESCALATION: Taking action or communicating
verbally or non -verbally during a potential force
encounter in an attempt to stabilize the situation
and reduce the immediacy of the threat so that more
time, options, and resources can be called upon to
resolve the situation without the use of force or with
a reduction in the force necessary. De-escalation
may include the use of such techniques as command
presence, advisements, warnings, verbal persuasion,
and tactical repositioning.
EXIGENT CIRCUMSTANCES: Those circumstances
that would cause a reasonable person to believe that
a particular action is necessary to prevent physical
1195, 1199 9th
harm to an individual, the destruction of relevant
evidence, the escape of a suspect, or some other
consequence improperly frustrating legitimate law
enforcement efforts.'
CHOKE HOLD: A physical maneuver that restricts
an individual's ability to breathe for the purposes of
incapacitation. This does not include vascular neck
restraints.
WARNING SHOT: Discharge of a firearm
for the purpose of compelling compliance
from an individual, but not intended to cause
physical injury.
IV. PROCEDURES
A. General Provisions
1. Use of physical force should be
discontinued when resistance ceases or
when the incident is under control.
2. Physical force shall not be used against
individuals in restraints, except as
objectively reasonable to prevent their
escape or prevent imminent bodily
injury to the individual, the officer, or
another person. In these situations, only
the minimal amount of force necessary
to control the situation shall be used.
3. Once the scene is safe and as soon
as practical, an officer shall provide
appropriate medical care consistent with
his or her training to any individual who
has visible injuries, complains of being
injured, or requests medical attention.
This may include providing first aid,
requesting emergency medical services,
and/or arranging for transportation to an
emergency medical facility.
4. An officer has a duty to intervene to
prevent or stop the use of excessive force
by another officer when it is safe and
reasonable to do so.
5. All uses of force shall be documented
B. De-escalation
1. An officer shall use de-escalation
techniques and other alternatives to
higher levels of force consistent with his
or her training whenever possible and
appropriate before resorting to force and
to reduce the need for force.
2. Whenever possible and when such delay
will not compromise the safety of the
officer or another and will not result in
the destruction of evidence, escape of a
suspect, or commission of a crime, an
officer shall allow an individual time
and opportunity to submit to verbal
commands before force is used.
C. Use of Less -Lethal Force
When de-escalation techniques are
not effective or appropriate, an officer
may consider the use of less -lethal
force to control a non -compliant or
actively resistant individual. An officer
is authorized to use agency -approved,
less -lethal force techniques and
issued equipment
1. to protect the officer or others from
immediate physical harm,
2. to restrain or subdue an individual who
is actively resisting or evading arrest, or
3. to bring an unlawful situation safely and
effectively under control.
D. Use of Deadly Force
An officer is authorized to use deadly
force when it is objectively reasonable
under the totality of the circumstances.
Use of deadly force is justified when one
or both of the following apply:
a. to protect the officer or others from
what is reasonably believed to be an
immediate threat of death or serious
bodily injury
and investigated pursuant to this b. to prevent the escape of a fleeing
agency's policies. subject when the officer has probable
cause to believe that the person has
committed, or intends to commit a
felony involving serious bodily injury
or death, and the officer reasonably
believes that there is an imminent risk
of serious bodily injury or death to
the officer or another if the subject is
not immediately apprehended
2. Where feasible, the officer shall identify
himself or herself as a law enforcement
officer and warn of his or her intent to
use deadly force.'
3. Deadly Force Restrictions
a. Deadly force should not be used
against persons whose actions are a
threat only to themselves or property.
b. Warning shots are inherently
dangerous. Therefore, a warning shot
must have a defined target and shall
not be fired unless
(1) the use of deadly force is justified;
(2) the warning shot will not pose a
substantial risk of injury or death
to the officer or others; and
(3) the officer reasonably believes
that the warning shot will reduce
the possibility that deadly force
will have to be used.
c. Firearms shall not be discharged at a
moving vehicle unless
(1) a person in the vehicle is
threatening the officer or another
person with deadly force by
means other than the vehicle; or
(2) the vehicle is operated in a
manner deliberately intended
to strike an officer or another
person, and all other reasonable
means of defense have been
exhausted (or are not present or
practical), which includes moving
out of the path of the vehicle.
d. Firearms shall not be discharged from
a moving vehicle except in exigent
circumstances. In these situations, an
officer must have an articulable reason
for this use of deadly force.
e. Choke holds are prohibited unless
deadly force is authorized.4
E. Training
3 Tennessee v. Garner, 471 U.S. 1 (1985).
4 Note this prohibition does not include the use of vascular neck restraints.
1. All officers shall receive training, at least
annually, on this agency's use of force
policy and related legal updates.
2. In addition, training shall be provided
on a regular and periodic basis and
designed to
a. provide techniques for the use of
and reinforce the importance of de-
escalation;
b. simulate actual shooting situations
and conditions; and
c. enhance officers' discretion and
judgment in using less -lethal and
deadly force in accordance with
this policy.
3. All use -of -force training shall be
documented.
Every effort has been made to ensure that this document incorporates the most current information and contemporary
professional judgment on this issue. However, law enforcement administrators should be cautioned that no "sample"
policy can meet all the needs of any given law enforcement agency.
Each law enforcement agency operates in a unique environment of court rulings, state laws, local ordinances, regulations,
judicial and administrative decisions, and collective bargaining agreements that must be considered, and should therefore
consult its legal advisor before implementing any policy.
DISCUSSION PAPER
This Discussion Paper on the National Consensus Use of Force Policy is a collaborative effort among 11 of the most
significant law enforcement leadership and labor organizations in the United States. The paper reflects the best
thinking of all Consensus organizations and is intended to provide background information for law enforcement
agencies to consider when implementing the National Consensus Policy on Use of Force in their own agencies.
I. INTRODUCTION
Managing uses of force by officers is one of the
most difficult challenges facing law enforcement
agencies. The ability of law enforcement officers
to enforce the law, protect the public, and guard
their own safety and that of innocent bystanders is
very challenging. Interactions with uncooperative
subjects who are physically resistant present
extraordinary situations that may quickly escalate.
Ideally, an officer is able to gain cooperation in such
situations through the use of verbal persuasion and
other de-escalation skills. However, if physical force
is necessary, an officer's use of force to gain control
and compliance of subjects in these and other
circumstances must be objectively reasonable.
While the public generally associates law
enforcement use of force with the discharge of a
firearm, use of force includes a much wider range
of compliance techniques and equipment. These
less intrusive, but more common uses of force may
range from hand control procedures to electronic
control weapons, pepper aerosol spray, or various
other equipment and tactics.
A. National Consensus Policy
on Use of Force
In recognition of the increased focus on law
enforcement use of force, in April 2016, the
International Association of Chiefs of Police and the
Fraternal Order of Police convened a symposium
to discuss the current state of policing, in general,
and use of force, in particular, inviting several of
the leading law enforcement leadership and labor
organizations to attend. The United States Supreme
Court has provided clear parameters regarding
the use of force. However, how this guidance is
operationalized in the policies of individual law
enforcement agencies varies greatly. This creates
a landscape where each agency, even neighboring
jurisdictions, are potentially operating under
differing, inconsistent, or varied policies when it
comes to the most critical of topics.
Symposium members decided to address these
disparities by creating a policy document on use
of force that can be used by all law enforcement
agencies across the country. The goal of this
undertaking was to synthesize the views of the
participating organizations into one consensus
document that agencies could then use to draft or
enhance their existing policies. The final product,
the National Consensus Policy on Use of Force
(Consensus Policy), was published in January 2017.
The Consensus Policy incorporates the most
current information and contemporary professional
judgment and is designed to provide a framework of
critical issues and suggested practices from which
agencies can develop their own use -of -force policies.
It is not intended to be a national standard by which
all agencies are held accountable, and agencies are not
required to institute the Consensus Policy.
Rather, chief executives should use the document
as a guideline, while taking into account the specific
needs of their agencies, to include relevant court
rulings, state laws, local ordinances, regulations,
judicial and administrative decisions, and collective
bargaining agreements. Many chief executives
might wish to make their own policies more
restrictive than the Consensus Policy. As with
any policy, before implementing these suggested
guidelines, agencies should consult their legal
advisors.
This paper is designed to accompany the Consensus
Policy and provide essential background material
and supporting documentation to promote greater
understanding of the developmental philosophy and
implementation guidelines for the Consensus Policy.
Chief executives should use the information
contained herein to better inform their decisions on
whether to implement the various directives found
in the Consensus Policy in their own agencies.
B. Scope of Policy
Law enforcement agencies must provide officers
with clear and concise policies that establish well-
defined guidelines on the use of force. It is essential
that officers have a complete understanding of
agency policy on this critical issue, regularly
reinforced through training. Therefore, a use -of -
force policy should be concise and reflect clear
constitutional guidance to adequately guide officer
decision making. Policies that are overly detailed
and complex are difficult for officers to remember
and implement and, as such, they create a paradox.
While they give officers more detailed guidance,
they can also complicate the ability of officers to
make decisions in critical situations when quick
action and discretion are imperative to successful
resolutions. The Consensus Policy is purposefully
short and provides the necessary overarching
guidelines in a succinct manner, while restricting
force in certain situations.
Some agencies may choose to develop separate
policies on less -lethal versus deadly force. However,
law enforcement use of both deadly and less -lethal
force is governed by the same legal principles and,
therefore, the Consensus Policy elects to address the
entire spectrum of force in one document. While
the development of individual policies on the use of
specialized force equipment is a prudent approach,
the legal grounds for selection and application of
any force option applied against a subject should
be based on the same legal principles cited in the
Consensus Policy.
It is also not the intended scope of either the
Consensus Policy, or this discussion document, to
address issues relating to reporting use -of -force
incidents; training of officers in the handling,
maintenance, and use of weapons; investigation of
officer -involved shooting incidents; officer post -
shooting trauma response; and early warning
systems to identify potential personnel problems.
Instead, agencies are urged to develop separate
policies addressing each of these topics.
. Legal Considerations
Use of force may have potential civil and criminal
consequences in state or federal courts or both.
As scores of these actions have demonstrated,
the scope and the wording of agency policy can
be crucial to the final resolution of such cases. It
should be emphasized that liability can arise for
an involved officer; the law enforcement agency;
agency administrator(s); and the governing
jurisdiction.
At a minimum, agency policy must meet state
and federal court requirements and limitations
on the use of force, with the U.S. Constitution
forming the baseline for the establishment of
rights. While states cannot take away or diminish
rights under the U.S. Constitution, they can, and
often do, expand upon those rights. In such cases,
law enforcement administrators must establish an
agency policy that meets the more stringent use -
of -force guidelines of their state constitution and
statutory or case law interpreting those provisions.
It is strongly recommended that this and other
policies undergo informed, professional legal review
before they are sanctioned by the agency.
A. Use of Policy in Court
Courts vary as to whether agency policy can
be introduced and carry the same weight as
statutory law. However, in some cases, it may be
permissible to introduce at trial the issue of officer
noncompliance for whatever weight and significance
a jury feels appropriate. Law enforcement
administrators should develop strong and definitive
policies and procedures without fear that they
might prove prejudicial to a future court assessment
of an officer's conduct. In fact, by adopting a use-
of -force policy in clear and unequivocal terms,
agencies can prevent more serious consequences for
themselves, their officers, and their jurisdiction.
B. Federal Guidelines for Use of Force
There are two landmark decisions by the United
States Supreme Court that guide law enforcement
use of force: Tennessee v. Garner and Graham v.
Connor.' Following is a brief review of each case.
Tennessee v. Garner. In Garner, a Memphis,
Tennessee, police officer, acting in conformance
with state law, shot and killed an unarmed youth
fleeing over a fence at night in the backyard of a
house he was suspected of burglarizing. The court
held that the officer's action was unconstitutional
under 42 U.S.C. 1983, stating that "such force may
not be used unless it is necessary to prevent the
escape and the officer has probable cause to believe
that the suspect poses a significant threat of death
or serious physical injury to the officer or others."'
The court ruled that apprehension by the use of
deadly force is a seizure subject to the Fourth
Amendment's reasonableness requirement. Thus,
even where an officer has probable cause to arrest
someone, it may be unreasonable to do so through
the use of deadly force.
Graham v. Connor. In Graham, a diabetic man
seeking to counter the effects of an insulin
reaction entered a convenience store with the
intent of purchasing some orange juice. After
seeing the line of people ahead of him, Graham
quickly left the store and decided instead to go to
a friend's house. An officer at the store, Connor,
determined Graham's behavior to be suspicious
and proceeded to follow and then stop the car
in which Graham was a passenger. Graham was
subsequently handcuffed and received multiple
injuries, despite attempts to inform Connor and the
other responding officers of his medical condition.
Graham was released once Connor confirmed that
no crime had been committed in the store, but later
filed suit alleging excessive use of force.
The court ruled that claims of law enforcement
excessive use of force must be analyzed using an
"objective reasonableness" standard. Specifically,
the court stated "[t]he Fourth Amendment
`reasonableness' inquiry is whether the officers'
actions are `objectively reasonable' in light of the
facts and circumstances confronting them, without
regard to their underlying intent or motivation. The
`reasonableness' of a particular use of force must be
judged from the perspective of a reasonable officer
on the scene, and its calculus must embody an
allowance for the fact that police officers are often
forced to make split-second decisions about the
amount of force necessary in a particular situation."'
C. Defining a Reasonable Use of Force
The potential of civil or criminal litigation
involving deadly force incidents also necessitates
close scrutiny of the language employed in a
use -of -force policy by legal authorities. Law
enforcement administrators should work closely
with knowledgeable attorneys in determining the
suitability of the use -of -force policy to their local
requirements, needs, and perspectives. Deliberation
over phrasing or word usage might seem
inconsequential or excessive, but such terms can,
and do, have significant consequences in a litigation
context.
The use of commonly employed terms and
phrases, even though well intentioned, can cause
unexpected and unnecessary consequences for the
officer and the agency. For example, phrases like
"officers shall exhaust all means before resorting
to the use of deadly force" present obstacles to
effective defense of legitimate and justifiable uses of
force. Such language in a policy can unintentionally
impose burdens on officers above those required
by law.
1 Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989).
2 Garner, 471 U.S. 1.
3 Graham, 490 U.S. at 396-397.
The foregoing discussion is not meant to suggest
that law enforcement agency policy must be
established only with potential litigation in mind.
On the contrary, law enforcement administrators
should use language that properly guides officers'
decision -making consistent with agency goals and
values while also protecting the officer, the agency,
and the community from unnecessary litigation.
There is value in using verbiage from statutes,
case law, and regulations in policy as a means of
providing officers with clearer guidance.
Training should effectively translate the general
guiding principles of agency policy and operational
procedures into real -world scenarios through
understanding and practice. Training shares an
equal importance in agency efforts to control and
manage the use of force and, as such, can have a
significant impact on an agency's efforts to defend
the use of force in court or other contexts.
III. Overview
A. Guiding Principles
It should be the foremost policy of all law
enforcement agencies to value and preserve
human life. As guardians of their communities,
officers must make it their top priority to protect
both themselves and the people they serve
from danger, while enforcing the laws of the
jurisdiction. However, there are situations where
the use of force is unavoidable. In these instances,
officers must "use only the amount of force that
is objectively reasonable to effectively bring an
incident under control, while protecting the safety
of the officer and others." 4 Introduced in Graham,
the "objectively reasonable" standard establishes
the necessity for the use and level of force to
be based on the individual officer's evaluation
of the situation considering the totality of the
circumstances.' This evaluation as to whether or
not force is justified is based on what was reasonably
believed by the officer, to include what information
others communicated to the officer, at the time
the force was used and "upon what a reasonably
prudent officer would use under the same or similar
circumstances." This standard is not intended
to be an analysis after the incident has ended of
circumstances not known to the officer at the time
the force was utilized.
The totality of the circumstances can include, but is
not limited to, the immediate threat to the safety of
the officer or others; whether the subject is actively
resisting; the time available for the officer to make
decisions in circumstances that are tense, uncertain,
and rapidly evolving; the seriousness of the crime(s)
involved; and whether the subject is attempting to
evade or escape and the danger the subject poses
to the community. Other factors may include
prior law enforcement contacts with the subject
or location; the number of officers versus the
number of subjects; age, size, and relative strength
of the subject versus the officer; specialized
knowledge skill or abilities of the officer; injury
or level of exhaustion of the officer; whether the
subject appears to be affected by mental illness
or under the influence of alcohol or other drugs;
environmental factors such as lighting, terrain,
radio communications, and crowd -related issues;
and the subject's proximity to potential weapons.
The decision to employ any force, including the use
of firearms, may be considered excessive by law and
agency policy or both, if it knowingly exceeded a
degree of force that reasonably appeared necessary
based on the specific situation. It is important to
note that in Graham, the U.S. Supreme Court
recognized that law enforcement officers do not
need to use the minimum amount of force in any
given situation; rather, the officer must use a force
option that is reasonable based upon the totality
of the circumstances known to the officer at the
time the force was used. Use -of -force decisions
are made under exceedingly varied scenarios and
often on a split-second basis. Based on this fact,
4 ASCIA, CALEA, FOP, FLEOA, IACP, HAPCOA, IADLEST, NAPO, NAWLEE, NOBLE, and NTOA, National Consensus
Policy on Use of Force, January 2017, 2, http://www.theiacp.org/Portals/O/documents/pdfs/National_Consensus_Policy_On_
Use_Of_Force.pdf.
5 Graham, 490 U.S. at 396.
state and federal courts have recognized that law
enforcement officers must be provided with the
necessary knowledge and training to make such
decisions, in addition to attaining proficiency with
firearms and other less -lethal force equipment
and force techniques that may be used in the line
of duty.
B. De -Escalation
De-escalation is defined as "taking action or
communicating verbally or non -verbally during a
potential force encounter in an attempt to stabilize
the situation and reduce the immediacy of the
threat so that more time, options, and resources
can be called upon to resolve the situation without
the use of force or with a reduction in the force
necessary."6 The term de-escalation can be viewed
as both an overarching philosophy that encourages
officers to constantly reassess each situation to
determine what options are available to effectively
respond, as well as the grouping of techniques
designed to achieve this goal. In most instances, the
goal of de-escalation is to slow down the situation
so that the subject can be guided toward a course
of action that will not necessitate the use of force,
reduce the level of force necessary, allow time
for additional personnel or resources to arrive, or
all three.
De-escalation is not a new concept and has been
part of officer training for decades. Historically, de-
escalation has been employed when officers respond
to calls involving a person affected by mental
illness or under the influence of alcohol or other
drugs. In these situations, an officer is instructed
to approach the individual in a calm manner and
remain composed while trying to establish trust and
rapport. Responders are taught to speak in low, or
nonthreatening tones, and use positive statements
such as "I want to help you" intended to aid in the
process of calming the subject. Awareness of body
language is also significant. For example, standing
too close to an angry or agitated person might cause
them to feel threatened.
6 National Consensus Policy on Use of Force, 2.
Another de-escalation technique is tactical
repositioning. In many cases, officers can move to
another location that lessens the level of danger.
An example is an incident involving an individual
with a knife. By increasing the distance from the
individual, officers greatly reduce the risk to their
safety and can explore additional options before
resorting to a use of force, notwithstanding the
need to control the threat to others.
Many of these steps —speaking calmly, positioning
oneself in a nonthreatening manner, and
establishing rapport through the acknowledgment
of what the person is feeling —are easily transferred
from Crisis Intervention Training for persons
affected by mental illness to de-escalation
encounters with people in general. While these
tactics are recommended steps, officers must
continually reassess each situation with the
understanding that force may be necessary if
de-escalation techniques are not effective.
One concern with de-escalation is that it can place
officers in unnecessary danger. By overemphasizing
the importance of de-escalation, officers might
hesitate to use physical force when appropriate,
thereby potentially resulting in an increase in line -
of -duty deaths and injuries. Consequently, it should
be stressed that de-escalation is not appropriate in
every situation and officers are not required to use
these techniques in every instance. If the individual
poses a threat of injury or death to the officer
or another, the officer must be permitted to use
the level of force necessary to reasonably resolve
the situation.
Agencies should strive to encourage officers to
consider how time, distance, positioning, and
especially communication skills may be used to
their advantage as de-escalation techniques and
as potential alternatives to force and to provide
training on identifying when these techniques will
be most useful to mitigate the need for force.
C. Force Models
The variety of compliance options available to law
enforcement officers in a confrontational setting
can be referred to as a force model. Using the
variety of different options found in this model,
officers are expected to employ only a degree
of force that is objectively reasonable to gain
control and compliance of subjects. Some agencies
may refer to this as the use -of -force continuum.
However, the use of the term "continuum" is often
interpreted to mean that an officer must begin at
one end of a range of use -of -force options and then
systematically work his or her way through the
types of force that follow on the continuum, such
as less -lethal force options, before finally resorting
to deadly force. In reality, to maintain the safety of
both the officer and others, an officer might need
to transition from one point on the continuum
to another, without considering the options in
between in a linear order. For instance, when faced
with a deadly threat, it is not prudent to expect
an officer to first employ compliance techniques,
followed by an electronic control weapon, and only
then use his or her firearm. For this reason, the use
of a continuum is strongly discouraged. Instead,
force models are preferred that allow officers
to choose a level of force that is based on legal
principles, to include the option of immediately
resorting to deadly force where reasonable
and necessary.
As noted previously, many law enforcement
agencies prefer to develop separate less -lethal and
deadly force policies. In addition to the comments
previously made on this topic, there are several
other reasons why the Consensus Policy combines
these into a single use of force policy. But perhaps
most importantly, integrating both deadly and
less -lethal force guidelines into one policy serves to
illustrate and reinforce for the officer the concept
of the use of force as an integrated, or response,
model. By placing both sets of guidelines under
one heading, an officer consulting the policy is
7 National Consensus Policy on Use of Force, 2.
8 Ibid.
encouraged to view force on a broader, more
integrated conceptual basis.
Effective guidance for law enforcement officers
on use of force, whether with firearms or by other
means or tactics, must recognize and deal with
force in all its forms and applications and with the
officer's ability to adjust his or her response as the
subject's behavior changes.
Whether an agency chooses to adopt a force model
or continuum, the various levels of force must be
defined and the guidelines for their use must be
clearly outlined in agency policy and reinforced by
training. Policies must also enumerate and address
all force options permitted by the agency. Per the
Consensus Policy, these levels should include less -
lethal force and deadly force.
D. Defining Deadly and
Less -Lethal Force
The Consensus Policy employs the terms deadly
force and less -lethal force. Deadly force is defined
as "any use of force that creates a substantial risk of
causing death or serious bodily injury."' The most
common example of deadly force is the use of a
handgun or other firearm.
Less -lethal force is "any use of force other than
that which is considered deadly force that involves
physical effort to control, restrain, or overcome
the resistance of another."' This includes, but is
not limited to, an officer's use of come -along holds
and manual restraint, as well as force options
such as electronic control weapons, pepper
aerosol spray, and impact projectiles. It does not
include verbal commands or other nonphysical
de-escalation techniques.
The difference between deadly and less -lethal
force is not determined simply by the nature of the
force technique or instrument that is employed by
an officer. Many force options have the potential
to result in the death or serious bodily injury of a
subject under certain circumstances. For example,
a police baton, if used properly in accordance
with professionally accepted training guidelines,
is not likely to cause death. But it can result in
the death of subjects when used inappropriately
by an officer who lacks training, or in situations
where blows are accidentally struck to the head
or other vulnerable area of the body. The same
could be said for a variety of other equipment used
by law enforcement officers. Therefore, a key to
understanding what separates deadly force from
less -lethal force has to do with the likelihood that
a given use of force will result in death, whether
it involves a handgun or other weapon or even an
object that may be close at hand.
Use of force that is likely to cause death or serious
bodily injury is properly judged using a reasonable
officer standard —how would a reasonably prudent
law enforcement officer act under the same
or similar circumstancesj9 This standard is an
objective test. That is, it is not based on the intent
or motivation of the officer or other subjective
factors at the time of the incident. It is based solely
on the objective circumstances of the event and the
conclusion that would be drawn by a "reasonable
officer on the scene."10
In determining the proper degree of force to
use, officers are authorized to use deadly force
to protect themselves or others from what is
reasonably believed to be a threat of death or
serious bodily harm. Officers have the option of
using less -lethal force options where deadly force is
not authorized, but may use only that level of force
that is objectively reasonable to bring the incident
under control.
E. Additional Definitions
Understanding of additional terms is helpful for the
following discussion.
Exigent circumstances are "those circumstances that
would cause a reasonable person to believe that a
particular action is necessary to prevent physical
harm to an individual, the destruction of relevant
evidence, the escape of a suspect, or some other
consequence improperly frustrating legitimate law
enforcement efforts.""
An immediate, or imminent, threat can be described
as danger from an individual whose apparent intent
is to inflict serious bodily injury or death and the
individual has the ability and opportunity to realize
this intention.
IV. PROCEDURES
A. General Provisions
The Consensus Policy begins by providing general
guidance that holds true for all situations involving
the use of force. First, officers must continually
reassess the situation, where possible, and ensure
that the level of force being used meets the
objective reasonableness standard. In situations
where the subject either ceases to resist or the
incident has been effectively brought under
control, the use of physical force should be reduced
accordingly. If the level of force exceeds what is
necessary to control a subject, then the officer can
be subject to allegations of excessive force.
Physical force should not be used against individuals
in restraints unless failure to do so would result in
the individual fleeing the scene or causing imminent
bodily injury to himself or herself, the officer, or
another person. Damage to property should not
be considered a valid reason to use force against
an individual in restraints. There might also be
instances where handcuffed individuals are able
to run from officers in an attempt to escape. In
these situations, physical force may be allowable
per policy, but only the minimal amount of force
9 Serious bodily injury is defined as "injury that involves a substantial risk of death, protracted and obvious disfigurement, or
extended loss or impairment of the function of a body part or organ."
10 Connor, 490 U.S. at 396.
11 Based on the definition from United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984).
necessary to control the situation should be used
deadly force will almost always be prohibited in
these cases.
As previously stated, the ultimate goal of law
enforcement officers is to value and preserve human
life. Therefore, the Consensus Policy requires
officers to provide medical care to anyone who is
visibly injured, complains of injury, or requests
medical attention.12 This should be undertaken
after the officers have ensured that the scene is
safe and it is practical to do so. In addition, officers
should only provide care consistent with their
training, to include providing first aid. Additional
appropriate responses include requesting emergency
medical services and arranging for transportation to
an emergency medical facility.
When verbal commands are issued, the individual
should be provided with a reasonable amount of
time and opportunity to respond before force is
used, with the understanding that such a pause
should not "compromise the safety of the officer
or another and will not result in the destruction of
evidence, escape of a suspect, or commission of a
crime."13 This is to prevent instances where officers
use force immediately following a verbal command
without providing the subject with an opportunity
to comply and might also apply in such situations
where an electronic control weapon is used and the
individual is physically incapable of responding due
to the effects of the weapon.
While the Consensus Policy strives to prohibit
excessive force, the reality is that excessive force
can occur no matter how well -crafted the policy
or extensive the training. In these situations, it is
crucial that other officers at the scene intervene
to prevent or stop the use of excessive force. By
requiring a pro -active approach to these situations
and encouraging accountability for all officers on
the scene, agencies can work toward preventing
excessive uses of force.
Finally, while it is not the scope of the Consensus
Policy or this document to provide specific
guidelines on these topics, agencies must develop
comprehensive policies for documenting,
investigating, and reviewing all uses of force.
Agency transparency to the public regarding these
policies will help to foster public trust and assure
the community that agencies are aware of and
properly responding to use of force by their officers.
Moreover, force review will help to assure that
agency policies are being followed and will give
the agency the opportunity to proactively address
deficiencies in officer performance or agency policy
and training or both.
B. De -Escalation
Procedurally, whenever possible and appropriate,
officers should utilize de-escalation techniques
consistent with their training before resorting to
using force or to reduce the need for force. In many
instances, these steps will allow officers additional
time to assess the situation, request additional
resources, and better formulate an appropriate
response to the resistant individual, to include
the use of communication skills in an attempt to
diffuse the situation. However, as previously stated,
de-escalation will not always be appropriate and
officers should not place themselves or others in
danger by delaying the use of less -lethal or even
deadly force where warranted.
C. Less -Lethal Force
In situations where de-escalation techniques are
either ineffective or inappropriate, and there is a
need to control a noncompliant or actively resistant
individual, officers should consider the use of less -
lethal force. In these cases, officers should utilize
only those less -lethal techniques or weapons the
agency has authorized and with which the officer
has been trained. As with any force, officers may
12 Note that "providing medical care" does not necessarily require that the officer administer the care himself or herself. In some
situations, this requirement may be satisfied by securing the skills and services of a colleague, emergency medical personnel,
etc.
13 National Consensus Policy on Use of Force, 3.
use only that level of force that is objectively
reasonable to bring the incident under control.
Specifically, the Consensus Policy outlines three
instances where less -lethal force is justified. These
include "(1) to protect the officer or others from
immediate physical harm, (2) to restrain or subdue
an individual who is actively resisting or evading
arrest, or (3) to bring an unlawful situation safely
and effectively under control."14
As noted in the prior discussion of the force model,
use of force can range widely. Therefore, law
enforcement officers should have at their disposal
a variety of equipment and techniques that will
allow them to respond appropriately to resistant
or dangerous individuals. The Consensus Policy
does not advocate the use of any specific less -lethal
force weapons. Instead, the appropriateness of any
such weapon depends on the goals and objectives
of each law enforcement agency in the context
of community expectations. Less -lethal weapons
and techniques are being continuously introduced,
refined, and updated, so law enforcement
administrators must routinely assess current options
and select equipment that is appropriate for their
agency. A critical element of that decision -making
process is an assessment of the limitations of each
device or technique, and environmental factors
that might impact its effectiveness. However, it is
suggested that law enforcement agencies ban the
use of several types of less -lethal impact weapons
that are designed to inflict pain rather than affect
control. These include slapjacks, blackjacks,
brass knuckles, nunchucks, and other martial
arts weapons.
14 National Consensus Policy on Use of Force, 3.
15 National Consensus Policy on Use of Force.
16 Ibid.
D. Deadly Force
Authorized Uses of Deadly Force. As with
all uses of force, when using deadly force, the
overarching guideline that applies to all situations is
that the force must be "objectively reasonable under
the totality of the circumstances." The Consensus
Policy identifies two general circumstances in which
the use of deadly force may be warranted. The first
instance is to "protect the officer or others from
what is reasonably believed to be an immediate
threat of death or serious bodily injury."15 Second,
law enforcement officers may use deadly force "to
prevent the escape of a fleeing subject when the
officer has probable cause to believe that the person
has committed, or intends to commit a felony
involving serious bodily injury or death, and the
officer reasonably believes that there is an imminent
risk of serious bodily injury or death to the officer
or another if the subject is not immediately
apprehended."16 In such cases, a threat of further
violence, serious bodily injury, or death must
impose clear justification to use deadly force.
For example, use of deadly force would be justified
in instances where an officer attempts to stop the
escape of a fleeing violent felon whom the officer
has identified as one who has just committed a
homicide, and who is armed or is likely to be armed
in light of the crime. However, the potential escape
of nonviolent subjects does not pose the same
degree of risk to the public or the officer, and use of
deadly force to prevent his or her escape would not
be justifiable under the Consensus Policy.
If a decision has been made to employ deadly force,
a law enforcement officer must, whenever feasible,
identify himself or herself, warn the subject of his
or her intent to use deadly force, and demand that
the subject stop. This requirement was made clear
in the Garner decision. If issuing a verbal warning Essentially, the intent of the Consensus Policy is
presents a heightened risk to the safety of the to provide officers with an alternative to deadly
officer or another person, the officer may employ force in the very limited situations where these
deadly force without delay. conditions are met.
Deadly Force Restrictions. Deadly force is
prohibited when the threat is only to property.
In addition, officers should avoid using deadly
force to stop individuals who are only a threat to
themselves, unless the individual is using a deadly
weapon such as a firearm or explosive device that
may pose an imminent risk to the officer or others
in close proximity. If the individual is attempting
to inflict self -harm with means other than a deadly
weapon, the officer should consider less -lethal
options and de-escalation techniques, if practical.
Warning Shots. Perhaps the most debated inclusion
in the Consensus Policy is the allowance for warning
shots. Their inclusion in the Consensus Policy
should not prevent an agency from establishing
a more restrictive policy on the topic. Defined
as "discharge of a firearm for the purpose of
compelling compliance from an individual, but not
intended to cause physical injury," warning shots
are inherently dangerous." However, the Consensus
Policy outlines very strict guidelines for their use in
an effort to address this threat, while still providing
latitude for officers to use this technique as a viable
alternative to direct deadly force in extreme and
exigent circumstances. The Consensus Policy states
that warning shots must have a defined target, with
the goal of prohibiting shots fired straight up in
the air. In addition, warning shots should only be
considered if deadly force is justified, so in response
to an immediate threat of death or serious bodily
injury, and when "the officer reasonably believes
that the warning shot will reduce the possibility
that deadly force will have to be used."" Finally,
the warning shot must not "pose a substantial
risk of injury or death to the officer or others.""
Shots Discharged at Moving Vehicles.20 The use
of firearms under such conditions often presents
an unacceptable risk to innocent bystanders. Even
if successfully disabled, the vehicle might continue
under its own power or momentum for some
distance thus creating another hazard. Moreover,
should the driver be wounded or killed by shots
fired, the vehicle might proceed out of control
and could become a serious threat to officers and
others in the area. Notwithstanding, there are
circumstances where shooting at a moving vehicle is
the most appropriate and effective use of force.
Officers should consider this use of deadly force
only when "a person in the vehicle is immediately
threatening the officer or another person with
deadly force by means other than the vehicle," or
when the vehicle is intentionally being used as a
deadly weapon and "all other reasonable means of
defense have been exhausted (or are not present
or practical)."21 Examples of circumstances where
officers are justified in shooting at a moving
vehicle include when an occupant of the vehicle is
shooting at the officer or others in the vicinity or,
as has happened recently, the vehicle itself is being
used as a deliberate means to kill others, such as
a truck being driven through a crowd of innocent
bystanders. Even under these circumstances, such
actions should be taken only if the action does not
present an unreasonable risk to officers or others,
when reasonable alternatives are not practical, when
failure to take such action would probably result
in death or serious bodily injury, and then only
when due consideration has been given to the safety
of others in the vicinity. In cases where officers
believe that the driver is intentionally attempting
17 National Consensus Policy on Use of Force, 3.
18 National Consensus Policy on Use of Force, 4.
19 Ibid.
20 For information regarding United States Supreme Court cases addressing firing at a moving vehicle, see Plumhoff v. Rickard,
134 S. Ct. 2012 and Mullenix v. Luna, 577 U.S. _ (2015) and the accompanying amicus curiae brief.
21 National Consensus Policy on Use of Force, 4.
to run them down, primary consideration must be
given to moving out of the path of the vehicle. The
Consensus Policy recognizes that there are times
when getting out of the way of the vehicle is not
possible and the use of a firearm by the officer may
be warranted.
Shots Discharged from a Moving Vehicle.
When discussing whether or not officers should
be permitted to fire shots from a moving vehicle,
many of the same arguments can be made as firing
at a moving vehicle. Most notably, accuracy of shot
placement is significantly and negatively affected
in such situations, thereby substantially increasing
the risk to innocent bystanders from errant shots.
Therefore, the Consensus Policy prohibits officers
from discharging their weapons from moving
vehicles unless exigent circumstances exist. In
these situations, as with all instances where exigent
circumstances are present, the officer must have an
articulable reason for this use of deadly force.
Choke Holds. For the purposes of this document,
a choke hold is defined as "a physical maneuver that
restricts an individual's ability to breathe for the
purposes of incapacitation."22 In the most common
choke hold, referred to as an arm -bar hold, an
officer places his or her forearm across the front
of the individual's neck and then applies pressure
for the purpose of cutting off air flow. These are
extremely dangerous maneuvers that can easily
result in serious bodily injury or death. Therefore,
the Consensus Policy allows their use only when
deadly force is authorized."
E. Training
While it is crucial that law enforcement agencies
develop a clear, concise policy regarding the use
of force, it is equally important that officers are
completely familiar with and fully understand the
policy and any applicable laws. Therefore, officers
should receive training on their agency's use -of -
force policy and any accompanying legal updates
on at least an annual basis. Training should also
be provided on all approved force options and
techniques permitted by agency policy, along with
regular refresher training that includes a review
of the policy and hands-on, practical training. In
addition, officers should also receive regular and
periodic training related to de-escalation techniques
and the importance of de-escalation as a tactic,
as well as training designed to "enhance officers'
discretion and judgment in using less -lethal and
deadly force."14
Firearms training should simulate actual shooting
situations and conditions. This includes night or
reduced light shooting, shooting at moving targets,
primary- or secondary -hand firing, and combat
simulation shooting. Firearms training should
attempt to simulate the actual environment and
circumstances of foreseeable encounters in the
community setting, whether urban, suburban, or
rural. A variety of computer -simulation training is
available together with established and recognized
tactical, exertion, and stress courses.
Law enforcement administrators, agencies, and
parent jurisdictions may be held liable for the
actions of their officers should they be unable to
verify that appropriate and adequate training has
been received and that officers have successfully
passed any testing or certification requirements.
Accordingly, agencies must provide responsive
training, and all records of training received
by officers must be accurately maintained for
later verification.
22 National Consensus Policy on Use of Force, 2.
23 A note regarding choke holds —the vascular neck restraint is not included in the definition of "choke hold" and thus its use is
not restricted to deadly force situations.
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