XII. TERM OF AGREEMENT AND HOUSEKEEPING PROVISIONS
A. City Reports and Records
175. Between 90 and 120 days following entry of this Agreement and no later than every August 1st and February 1st thereafter until this Agreement is terminated, the City shall file with the Court, with a copy to the Monitor and to DOJ, a status report delineating the steps taken by the City and the Department during the reporting period to comply with each provision of this Agreement. The City shall also file such a report documenting the steps taken to comply with each provision of this Agreement during the term of this Agreement 120 days before five years from the effective date of this Agreement.
176. During the term of this Agreement, the City and the Department shall maintain all records necessary to document its compliance with the terms of this Agreement and all documents expressly required by this Agreement. The Department shall maintain all Complaint Form 1.28 investigation files for at least ten years from the date of the incident. The City and the Department shall maintain an officer's training records during the officer's employment with the LAPD and for three years thereafter (unless required to be maintained for a longer period of applicable law).
177. Within a reasonable time following notice to the City or the Department, as applicable, the DOJ shall have access to all City staff, facilities and documents reasonably necessary to enable the DOJ to evaluate compliance with the Agreement, except that, absent Court order, access to any such staff, facilities and documents shall be limited to the same extent the Monitor's access is limited under paragraphs 163, 165, 166, 167, 168, 169, 170, and 171 and as to any such documents protected by the attorney-client privilege shall be consistent with the requirements of those paragraphs. DOJ shall retain any Sensitive Data and non-public information in a confidential manner and shall not disclose any Sensitive Data or non-public information to any person or entity, other than the Court or the Monitor, absent written notice to the City and either written consent by the City or a court order authorizing disclosure. In the event that DOJ intends to introduce Sensitive Data or non-public information to the Court, DOJ shall provide reasonable notice to the City.
178. This Agreement shall become effective on entry by the Court. The City shall implement immediately all provisions of this Agreement which involve the continuation of current Department policies, procedures, and practices. The City shall implement as soon as reasonably practicable and no later than 120 days after the effective date of this Agreement, the following provisions: paragraphs 57, 61, 73, 76, 79, 80 (subparts b through g inclusive), 82, 85, 86, 91, 101, 140, 145, 147, 148, 149, 150, and 153. The remaining provisions shall be implemented either by the specified implementation date or, for those provisions that have no specified implementation date, as soon as is reasonably practicable and no later than July 1, 2001. Provisions of this Agreement which require the use of TEAMS II shall become operable upon the implementation of TEAMS II pursuant to paragraphs 50(d) an (e).
179. The Court shall retain jurisdiction of this action for all purposes during the term of this Agreement. The Agreement shall terminate five years from the effective date without further action of the Court unless DOJ makes a motion to extend the term of the Agreement, which motion shall extend the term of the Agreement until the resolution of such motion. Such motion shall be made within 45 days prior to the expiration of the term of the Agreement. If the City contests the motion, the Court shall hold a hearing at which both parties may present evidence to the Court before ruling on the DOJ's motion. At the hearing, the burden shall be on the City to demonstrate that it has substantially complied with each of the provisions of the Agreement and maintained substantial compliance for at least two years. For the purposes of this paragraph, "substantial compliance" means there has been performance of the material terms of this Agreement. Materiality shall be determined by reference to the overall objectives of this Agreement. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance, will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of otherwise sustained noncompliance shall not constitute substantial compliance. If the Court finds that the City has not maintained substantial compliance for at least two years, the Court shall extend the term of this Agreement until such time as the City has been in substantial compliance with this Agreement for a period of two years including that period of time that the City had been in compliance prior to DOJ's motion.
180. The City and the DOJ may jointly stipulate to make changes, modifications and amendments to this Agreement, which shall be effective, absent further action from the Court, 45 days after a joint motion has been filed with the Court.
181. Neither the City nor the Department shall be deemed to be in breach of this Agreement by reason of failure to perform any of its obligations hereunder to the extent that such failure is due to unforeseen circumstances, including strikes, acts of God, acts of a court of competent jurisdiction (provided that the City takes the actions required by paragraph 187), weather conditions, or any similar circumstances for which the City is not responsible and which are not within the City's control (collectively, " unforeseen circumstances").
182. If any unforeseen circumstance occurs which causes a failure to timely carry out any requirements of this Agreement, the City shall notify the DOJ in writing within 20 calendar days of the time that the City becomes aware of the unforeseen circumstance and its impact on the City's ability to perform under the Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The City shall implement all reasonable measures to avoid or minimize any such failure.
183. If the DOJ and the City agree or the Court determines that delay in meeting any schedule or obligation in this Agreement has been caused by unforeseen circumstances then, subject to the provisions of paragraph 182, the time for performance shall be extended for a period up to that equal to such delay.
184. The following shall be the implementation of paragraph 8:
a. As part of any meet and confer or consulting process demanded by an employee bargaining unit (as described in paragraph 8), the City shall discuss and seek to resolve with such bargaining unit any disputes or uncertainties regarding which provisions are subject to such process. The City will identify and provide to such bargaining unit, with a copy to the DOJ, the provisions of this Agreement that it believes are subject to the process being demanded. The City shall report to the Court and the DOJ on the results of any such discussion on this question within 30 days of the date the Complaint in this action is filed. In the event that the City and such bargaining unit are unable to resolve the list of the provisions of the Agreement that are subject to that process, the City shall seek declaratory relief from this Court to resolve such issue, provided that such bargaining unit shall receive notice and an opportunity to be heard by the Court on this issue.
b. Following the resolution of any dispute or uncertainty regarding the issues subject to a demanded process, the City shall continue with that process and shall report to the Court and DOJ on the progress every 30 days, and (i) shall attach proposed agreements with the applicable bargaining unit relating to provisions of this Agreement as they are resolved or unilateral actions (as defined by subpart (f) of this paragraph) by the City arising from the meet and confer process as they are determined and (ii) shall identify provisions identified pursuant to subpart (a) of this paragraph that are scheduled for implementation within 45 days. With regard to a matter that is not a subject of mandatory bargaining, the City shall not propose or enter into any such agreement with a bargaining unit that will adversely affect the City's timely implementation of this Agreement. With regard to all such agreements with a bargaining unit and all such unilateral actions, the City shall not make them effective before the expiration of 45 days after such proposed agreement or unilateral action is reported to the Court and DOJ. The time for implementation of any provisions of this Agreement affected by such agreement with a bargaining unit concerning a mandatory subject of bargaining or such unilateral action shall be extended for such 45-day period. Upon receipt by DOJ of any such proposed agreement or unilateral action, the parties shall consult to determine whether, and if so to what extent, such proposed agreement or unilateral action would adversely affect the City's ability timely to implement any provision(s) of this Agreement. If the parties determine that implementation of such proposed agreement or unilateral action would not significantly impact the City's ability to implement the affected provision(s) of this Agreement, DOJ shall waive some or all of such 45-day period, and the City shall initiate such implementation. If such determination is not made, the parties shall discuss appropriate clarifications or modifications to this Agreement. Where the parties believe that a modification of this Agreement is appropriate, they shall present such modification to the Court for its consideration pursuant to paragraph 180, and the implementation date for the affected provision(s) of this Agreement shall be extended while the matter is before the Court unless the Court orders earlier implementation. Any motion concerning a proposed bargaining agreement or unilateral action shall be brought during the 45-day period and shall not be governed by the notice requirements of paragraph 186.
c. In the event that the City believes the meet and confer process, consultation, or any such proposed agreements with the applicable bargaining units or such proposed unilateral actions, resulting from the meet and confer process, will impair the City's ability timely to implement one or more provisions of this Agreement, and the DOJ and the City are unable to agree on an appropriate resolution, then the City shall so report to the Court and shall seek appropriate declaratory or injunctive relief (including specific performance) on such provision(s). The DOJ also may seek relief from the Court in the event that DOJ believes the meet and confer process, consultation, or any such proposed agreements with the applicable bargaining units or such proposed unilateral actions will impair the City's ability timely to implement one or more provisions of this Agreement, and the DOJ and the City are unable to agree on an appropriate resolution. Any such motion shall demonstrate how the City would be so impaired.
d. In ruling on a motion under this paragraph, paragraph 8, or in regard to any meet and confer issue identified pursuant to subpart (a) of this paragraph, the Court shall consider, inter alia, whether the City's proposed agreements with the applicable bargaining units or proposed unilateral actions that address provision(s) of this Agreement are consistent with the objectives underlying such provision(s) and whether the City has satisfied its labor relations obligations under state and local law. On any such motion, if the City has engaged in good faith efforts (including consideration of the manner in which the City carried out any applicable meet and confer or consulting obligations) to be able to implement this Agreement in a timely manner, the City (i) shall not be in contempt or liable for any other penalties, and (ii) may be potentially held in breach for such provision(s) only for the limited purpose of the issuance of declaratory or injunctive remedies (including specific performance), but may not be regarded as in breach for any other purpose.
e. In the event that DOJ believes the meet and confer process, consultation, or any such proposed agreements with the applicable bargaining units or unilateral actions resulting from the meet and confer process, will impair the City's ability to implement one or more material provision of this Agreement, the DOJ may alternatively file a motion seeking to dissolve this Agreement, which motion shall be granted if the Court finds that the meet and confer process, consultation, or such proposed bargaining agreements with the applicable bargaining units or such proposed unilateral actions will preclude meaningful implementation of one or more material provisions of this Agreement as contemplated on the date the DOJ's Complaint was filed. Should the Court grant a motion by the DOJ to dissolve this Agreement, the DOJ may commence litigation in this case to seek relief based on its Complaint.
f. The term "unilateral action" shall mean an action taken by the City as management at the conclusion of the meet and confer process on a mandatory subject of bargaining to implement its last, best, and final offer where (i) agreement could not be reached in the negotiations, (ii) any required impasse resolution procedure has been followed, and (iii) management has decided to make a unilateral implementation at the point of ultimate impasse.
185. If there is a significant change in a state law that impairs or impedes the City's ability to implement this Agreement then each of the parties reserve the right to seek declaratory or other relief from the Court regarding implementation of the affected provisions of this Agreement in light of the change in state law.
186. Before the DOJ pursues any remedy with the Court based upon the City's, Department's or LAPD's failure to fulfill an obligation under this Agreement, DOJ shall give written notice of such failure to the City. Except as set forth below, the City shall have 45 days from receipt of such notice to cure or cause the cure of such default. If such default continues beyond 45 days following notice of default, DOJ may, upon three days notice to the City (excluding weekends, federal or state holidays), at its election seek a remedy from the Court. Provided, however, that the City shall have only seven days, excluding weekends, federal or state holidays, to cure or cause the cure of any failure to fulfill an obligation that relates to the provisions of this Agreement regarding access to City or Department staff, facilities, or documents, or copies of such documents. If such default continues beyond the seven-day period following notice of default, DOJ may, at its election, immediately seek a remedy from the Court. The notice to be given under this paragraph shall be given by DOJ to the City Attorney on behalf of the City and the City Attorney shall provide copies to the Chief Legislative Analyst and the Chief of Staff to the Mayor.
187. The parties agree to defend the provisions of this Agreement. The parties shall notify each other of any court or administrative challenge to this Agreement. In the event any provision of this Agreement is challenged in any local or state court, removal to a federal court shall be sought by the parties.
The parties consent and seek entry of this Agreement as an Order of this Court:
FOR THE PLAINTIFF, THE UNITED STATES OF AMERICA:
/s/ Janet Reno
/s/ Bill Lann Lee
BILL LANN LEE
Assistant Attorney General
Civil Rights Division
/s/ Alejandro Mayorkas
United States Attorney
/s/ Steven H. Rosenbaum
STEVEN H. ROSENBAUM
Special Litigation Section
Civil Rights Division
/s/ Donna M. Murphy
DONNA M. MURPHY
Special Litigation Section
Civil Rights Division
/s/ Mark A. Posner
/s/ Robert J. Moossy
/s/ Patricia L. O'Beirne
MARK A. POSNER
ROBERT J. MOOSSY
PATRICIA L. O'BEIRNE
Special Litigation Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66400
Washington, D.C. 20035-6400
FOR THE DEFENDANTS, CITY OF LOS ANGELES, CALIFORNIA, BOARD OF POLICE COMMISSIONERS OF THE CITY OF LOS ANGELES, AND THE LOS ANGELES POLICE DEPARTMENT:
APPROVED AS TO FORM AND LEGALITY
/s/ James K. Hahn
JAMES K. HAHN
/s/ Richard Riordan
/s/ John Ferraro
President of City Council
/s/ Gerald Chaleff
President of Los Angeles Board of Police Commissioners
SO ORDERED this day of _________________, ______.
UNITED STATES DISTRICT JUDGE>