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HomeMy WebLinkAboutResolution - 2016-R0313 - Interlocal Agreement - Lubbock County - LP&L Utility Records, Law Enforcement - 09/08/2016Resolution No.2016-R0313 Item No.5.21 September8,2016 RESOLUTION WHEREAS,Lubbock Power &Light ("LP&L")is the municipally owned electric utility of the City of Lubbock; WHEREAS,law enforcement employees of the Lubbock County Sheriffs Office and the Lubbock County Criminal District Attorney's Office desire to access portions of the City of Lubbock's Utility Database for legitimate law enforcement activities; WHEREAS,the Electric Utility Board of the City of Lubbock approved an Interlocal Agreement (as described below) on August 16,2016; WHEREAS,the City Council of the City of Lubbock is amenable to such access so long as all conditions of the below-described Interlocal Agreement are met;NOW,THEREFORE: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock that certain Interlocal Agreement (herein so called), by and between the County of Lubbock, acting by and through the Commissioner's Court, and the City of Lubbock, acting by and through the City Council and the Electric Utility Board, as attached hereto and incorporated herein as though set forth fully herein in detail, and any documents related thereto. Passed by the City Council this 8th _day of September ?2016. DANIEL M.POPE,MAYOR ATTEST: JVrts^. Rebedca Garza, City Secretary RI-:S CountyLawHnrorccmentll.A8-23-16 APPROVED AS TO CONTENT: Loomis, City Manager APPROVED AS TO FORM: Amy L. ' as, Deputy ' ey ^ RES.CountyLawEnforcementILA 8-23-16 • On August 10h, 2016, the Electric Utility Board passed Resolution No. EUB 2016- R0034. This was an Interlocal Agreement, "law enforcement employees of the Lubbock County Sheriff s Office and the Lubbock, County Criminal District Attorney's Office desire to access portions of the City of Lubbock's Utility Database for legitimate law enforcement activities," and that, "the Chairman of the Electric Utility Board of the City of Lubbock BE and his hereby authorized and directed to execute for and on behalf of the City of Lubbock, acting by and through the Electric Utility Board, that certain Interlocal Agreement (herein so called), by and between the County of Lubbock, acting by and through the Commissioner's Court, and the City of Lubbock, acting by and through the City Council and the Electric Utility Board..." • The same Interlocal Agreement passed through City Council on September 8, 2016 as Resolution No. 2016-R0313, but was amended and therefore went back to the Electric Utility Board with the amendments. • On September 20, 2016, the Electric Utility Board did not take action on the amended version of the Interlocal Agreement. • Therefore, the contract associated with Resolution No. EUB 2016-R0034 and City Council Resolution No. 2016-R0313 is not executed by all parties and is unenforceable. INTERLOCAL AGREEMENT This Interlocal Agreement (the "Agreement") is entered into on this day of 2016, in accordance with Chapter 791 of the Texas Government Code, between the County of Lubbock, acting by and through its governing body, the Commissioners Court (the "County"), and City of Lubbock, Texas (the "City"), a Texas Home Rule Municipal Corporation, acting by and through the City Council and the Electric Utility Board of the City of Lubbock. WHEREAS, Lubbock Power & Light ("LP&L") is the municipally owned electric utility of the City of Lubbock; and WHEREAS, LP&L maintains records regarding the City's electric and water utility customers (the "Utility Database"); and WHEREAS, the Sheriffs Office of the County of Lubbock and law enforcement personnel of the Lubbock County Criminal District Attorney's Office desire to access certain portions of the Utility Database for legitimate law enforcement purposes; and WHEREAS, certain types of electric utility customer information relating to customer billing, contract, and usage information may be considered competitive information under § 552.133 of the Texas Government Code; and WHEREAS, the City and LP&L are subject to administrative enforcement of the Federal Credit Reporting Act by the Federal Trade Commission pursuant to 15 U.S.C. 1681 s(a)(1) and the Fair and Accurate Credit Transactions Act of 2003 (the "Act"); and WHEREAS, pursuant to the requirements of the Act, the City and LP&L have developed and implemented an Identity Theft Prevention Program; WHEREAS, a utility customer of a government operated utility may request that certain personal information be kept confidential pursuant to § 182.052 of the Texas Utilities Code; and WHEREAS, pursuant to § 182.054 of the Texas Utilities Code it is a lawful exception to release information that is deemed confidential under § 182.052 of the Texas Utilities Code to an official or employee of the state or a political subdivision of the state acting in an official capacity; WHEREAS, the City and LP&L find, subject to the applicable statutes, resolutions and policies outlined in this Agreement, that providing access to the City's Utility Database to the County's Sheriff's Office and/or the law enforcement personnel of the Lubbock County Criminal District Attorney's Office benefits the health, safety and welfare of the City's citizens; NOW THEREFORE: 1. Utility Database Access. The City and LP&L agree to permit licensed law enforcement employees of the County's Sheriffs Office and the licensed law enforcement Pagel of 6 personnel of the Lubbock County Criminal District Attorney's Office (collectively "County Law Enforcement Personnel") to access certain portions of the City's Utility Database, as set forth below, for legitimate law enforcement activities. This access will be granted only on the premises of the business office of LP&L at 1301 Broadway, Lubbock, Texas. For the purposes of this Agreement, "legitimate law enforcement activities" shall mean information gathering for the purpose of locating wanted fugitives and suspects in an active criminal investigation. 2. Access Limits. The City and/or LP&L will determine, in its sole and absolute discretion, the manner and means of such access by County Law Enforcement Personnel, including but not limited to, the business hours when the County Law Enforcement Personnel may access the Utility Database. County Law Enforcement Personnel shall be permitted to examine solely the (i) customer name; (ii) customer address; and (iii) customer telephone number on the Utility Database. 3. Property Access. County Law Enforcement Personnel shall only be allowed access to those portions of the LP&L property necessary to utilize the Utility Database under the terms and conditions of this Agreement and may not utilize or enter any other portion of LP&L property. LP&L personnel may escort County Law Enforcement Personnel while utilizing the Utility Database and/or while on LP&L property. 4. No Printing or Copying. Unless otherwise required by applicable law, court order or judicial decree, County Law Enforcement Personnel shall not be permitted to print, download or copy to an electronic device any information or records of the Utility Database. County Law Enforcement Personnel shall only be permitted to take handwritten notes of the information on the Utility Database. 5. Use of Information. By signing this Agreement, the County and the County Law Enforcement Personnel hereby proclaim and agree to use the information obtained from the Utility Database ONLY FOR LEGITIMATE LAW ENFORCEMENT ACTIVITIES OF THE COUNTY. 6. No Release of Information. Nothing contained in this Agreement shall be construed as a release to the public under Chapter 552 of the Texas Government Code or a release of any competitive information of LP&L as that term is specifically defined in § 552.133 of the Texas Government Code. By entering this Agreement the County and the County Law Enforcement Personnel agree not to release to the public any information obtained from the Utility Database unless required to do so by applicable law. 7. Term. Subject to the early termination provisions of this Agreement, the term of this Agreement shall be for five (5) years from the Execution Date (the "Initial Term"). Upon the expiration of the Initial Term, this Agreement will renew on a year by year basis, beginning on the anniversary of the Execution Date and continuing for twelve (12) consecutive months thereafter. Notwithstanding anything herein to the contrary, either party may decide to terminate this Agreement for any reason or without cause upon thirty (30) days written notice to the other party. However, in no event shall this Agreement extend beyond ten (10) years after the Execution Date. Page 2 of 6 8. Termination for Violation. The City Manager or the Director of Electric Utilities may terminate this Agreement immediately by notifying the County in writing, upon the release to the public by the County or County Law Enforcement Personnel of any confidential information of the City or competitive information of LP&L, as defined in § 552.133 of the Texas Government Code or any violation or suspected violation (as determined solely by the City or LP&L) of the terms of this Agreement or any applicable law, resolution or policy, including, without limitation (i) Chapter 182 of the Texas Utilities Code; (ii) 15 U.S.C. 1681, et. seq., and regulations promulgated pursuant thereto; (iii) the Fair and Accurate Credit Transactions Act of 2003 (the "Act"), and regulations promulgated pursuant thereto; and/or (iv) the City's Identity Theft Prevention Program. 9. Disclaimer. The County acknowledges and agrees that neither the City nor LP&L make any representation or warranty as to the accuracy or completeness of the information in the Utility Database and specifically disclaims any such warranty. 10. Responsibility and Indemnification. The County shall be responsible for any and all losses, damages, claims or liabilities caused or contributed by, in any way, manner or form, the act or omission of the County's employees, including the County Law Enforcement Personnel, under this Agreement. The County shall, to the extent permitted by law, indemnify and save harmless the City, LP&L and its elected and appointed officers, agents, and employees, from and against all suits, actions, losses, damages, claims or liability of any character, type or description, including without limiting the generality of the foregoing, all expenses of litigation, court costs, and attorneys' fees, for personal injury or death to any person, or damage to any property of any person, or any other suit, action, loss, damage, claim or liability or injury or arising out of or related to activities performed under this Agreement, to the extent caused by the negligence of the County, its agents, contractors, employees and/or any other party acting pursuant to the authority granted to County herein. This indemnity shall survive to termination, expiration or voidance of this Agreement. 11. RELEASE. THE CITY AND LP&L, AND THEIR RESPECTIVE ELECTED AND APPOINTED OFFICERS, EMPLOYEES, OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND THE COUNTY HEREBY RELEASES THE CITY, LP&L AND THEIR RESPECTIVE ELECTED AND APPOINTED OFFICERS, EMPLOYEES, OFFICIALS AND AGENTS, FOR, FROM AND/OR AGAINST ANY LOSSES, DAMAGES, CLAIMS OR LIABILITIES TO OR OF THE COUNTY, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY TYPE OR DEGREE, OR FAULT, OF THE CITY, ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OF FORM, ACTIVITIES PERFORMED UNDER THIS AGREEMENT, OCCUPATION OF CITY OWNED PROPERTY BY COUNTY, OR THE UNENFORCEABILITY OR VOIDANCE, FOR ANY REASON, OF ALL OR ANY PART OF THIS AGREEMENT, EXCEPT TO THE EXTENT THAT SUCH LOSS, DAMAGE, CLAIM OR LIABILITY IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CITY. THIS RELEASE SHALL SURVIVE THE TERMINATION, EXPIRATION OR VOIDANCE OF THIS AGREEMENT. Page 3 of 6 12. Entire Agreement, Amendments. This Agreement contains the entire understanding between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. No modification or waiver of this Agreement or any provision hereof, nor consent to any departure there from shall in any event be effective, irrespective of any course of dealing between the parties, unless the same shall be in a writing executed by a duly authorized representative of the party whose rights are being waived, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is given. 13. Execution. City and County represent and warrant to each other, that the execution and delivery of this Agreement has been duly and validly authorized by all requisite corporate action on the part of each parry. This Agreement shall not be binding upon the City unless and until it has been duly authorized and executed by (i) the County; and (ii) the City Council and the Electric Utility Board, both on behalf of the City of Lubbock. 14. Authority. County represents and warrants to City that it possesses the authority to enter into and perform this Agreement pursuant to the Chapter 791 of the Texas Government Code, and that this Agreement is enforceable in accordance with the terms and provisions hereof. 15. Current Revenues. Payments, if any, for the performance of governmental functions hereunder shall be made from the current revenues available to the paying party. 16. County Insurance Coverage. County is a self -insured local government and maintains general liability coverage in the amount of $1,000,000. A copy of the Contribution & Coverage Declarations (CCD) of the County will be proved to the City at the request of the City. Page 4 of 6 EXECUTED on this the "Execution Date") CITY OF LUBBOCK, TEXAS Dan Pope, Mayor ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: James Loomis, City Manager APPROVED AS TO FORM: Amy L. Sims, Assistant City Attorney LUBBOCK POWER & LIGHT: Greg Taylor, Chairman Electric Utility Board ATTEST: James Conwright, Secretary Electric Utility Board day of , 2016 (the COUNTY OF LUBBOCK, TEXAS Tom Head, County Judge ATTEST: Kelly Pinion, County Clerk APPROVED AS TO CONTENT: Matthew Powell, Criminal District Attorney APPROVED AS TO CONTENT: Kelly S. Rowe, Lubbock County Sherriff APPROVED AS TO FORM: R. Neal Burt, Lubbock County Electric Criminal District Attorney's Office, Civil Division Page 5 of 6 APPROVED AS TO CONTENT: David McCalla Director of Electric Utilities APPROVED AS TO FORM: Richard K. Casner General Counsel — LP&L Page 6 of 6