HomeMy WebLinkAboutContract 47739 C
ITN SECRETAkY
CONTRACT NO, "
SUBSCRIBER SERVICES AGREEMENT
This SUBSCRIBER SERVICES AGREEMENT (the "Agreement") is made and
entered into by and between the City of Fort Worth ("Fort Worth" or "CFW") acting herein
by and through its duly authorized Assistant City Manager, and BNSF Railway Company
("USER"), acting herein by and through its duly authorized _Chief Special Agent_,
individually referred to as a "party," collectively referred to herein as the "parties." The CFW or
Fort Worth shall include all employees, directors, officers, agents, and authorized
representatives. USER shall include all employees, directors, officers, agents, and authorized
representatives.
RECITALS
WHEREAS, USER is a private entity that employs or contracts with one or more
companies or individuals to provide security, fire protection, and/or other public-safety type
services; and
WHEREAS, each party finds that the performance of this Agreement is in the common
interest of both parties and that the division of costs fairly compensates the performing party for
the services or functions under this Agreement; and
WHEREAS, each party finds that the performance of this Agreement is in the common
interest of both parties and that the division of costs fairly compensates the performing party for
the services or functions under this Agreement; and
WHEREAS, it is the collective desire of both Fort Worth and USER to allow Fort Worth
to provide USER with installation, maintenance and repair services for wireless communications
components and systems.
NOW THEREFORE, Fort Worth and USER agree as follows:
1. SERVICES
CFW shall install, configure, maintain, and repair the following equipment: mobile,
portable, and fixed two-way radios and other wireless devices, antennas, speakers, and
ancillary equipment, sirens, mobile data computers and related hardware and cabling, and any
other similar or related public safety emergency response equipment. Unless mutually agreed
prior to commencement of work, CFW shall provide primary maintenance services for the
equipment at the CFW IT Solutions radio repair facility (or facilities). The service shall include
the regular inspection of the equipment and any maintenance or repair necessary to maintain it
in good working order. Upon request, CFW shall also install and remove equipment from
vehicles for reuse or disposal. USER shall approve equipment installation location and
configuration prior to commencement of work, and will inspect and approve installation upon
completion.
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OFFICIAL RECORD W,Y —62416 A
CITY SECRETARY 1N da�FORjWO y `�
City of Fort Worth Subscriber Services Agreement BNSF Kai y A�� 0
Page 1 of 7 FT. WORTH, TX �b SCO
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2. TERM
This Agreement shall begin upon the last day executed by all authorized parties and shall
continue in full force and effect unless terminated in accordance with the provisions set forth
herein.
3. COMPENSATION
USER shall remit payment to Fort Worth in the amount and manner set forth in Exhibit A "Fee
Schedule." CFW may revise Exhibit A to adjust service rates as needed without further action
by CFW provided that CFW shall provide not less than sixty (60) days advance written
notice to USER before any revision to Exhibit A is effective. Estimated total billing is
$5,000 per year. Billing will be from the first day of the month through the last day of the
same month. CFW will invoice USER no later than the 21st day of the month following the
end of each billing period, with the invoice dated on the day it is sent. USER will pay CFW
within thirty (30) days of receipt of any invoice for services under this Agreement. CFW shall
have the right to increase any applicable fees under this Agreement each fiscal year to offset any
increased costs incurred by CFW. Any increase in applicable fees will be effective at the
beginning of the next CFW fiscal year.
4. LIABILITY
Each party agrees to be liable for any damages or loss that may be caused by its own negligence,
omission or intentional misconduct. For purposes of this Section 4, the term party shall include
employees, directors, officers, agents, authorized representatives, subcontractors, consultants,
and volunteers of the respective party. Nothing in the performance of this Agreement shall
impose any liability for claims against Fort Worth other than for claims for which the Texas Tort
Claims Act may impose liability.
5. INDEPENDENT CONTRACTOR
It is expressly understood and agreed that USER shall operate as an independent contractor as
to all rights and privileges granted herein, and not as agent, representative or employee of the
CFW. Subject to and in accordance with the conditions and provisions of this Agreement,
USER shall have the exclusive right to control the details of its operations and activities and be
solely responsible for the acts and omissions of its employees, directors, officers, agents,
authorized representatives, subcontractors, and consultants. USER acknowledges that the
doctrine of respondeat superior shall not apply as between the CFW, its employees, directors,
officers, agents, and authorized representatives, and USER and its employees, directors,
officers, agents, authorized representatives, subcontractors, and consultants. USER further
agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise
between CFW and USER.
6. NON-APPROPRIATION OF FUNDS
Fort Worth will use best efforts to appropriate sufficient funds to support obligations under this
Agreement. However, in the event that sufficient funds are not appropriated by Fort Worth's
City of Fort Worth Subscriber Services Agreement BNSF Railway Company
Page 2 of 7
governing body, and as a result, CFW is unable to fulfill its obligations under this Agreement,
Fort Worth (i) shall promptly notify USER in writing and (ii) may terminate this Agreement,
effective as of the last day for which sufficient funds have been appropriated.
7. RIGHT TO AUDIT
USER agrees that the CFW shall, at no additional cost to the CFW, during and until the
expiration of three (3) years after termination of this Agreement, have access to and the right to
examine at reasonable times any directly pertinent books, documents, papers, records, and
communications of the USER involving transactions relating to this Agreement. USER agrees
that the CFW shall have access during normal working hours to all necessary USER facilities
and shall be provided adequate and appropriate work space in order to conduct audits in
compliance with the provisions of this section. The CFW shall give USER reasonable advance
notice of intended audits.
8. ASSIGNMENT
USER shall not have the right to assign or subcontract any of its duties, obligations or rights
under this Agreement without the prior written consent of the CFW, which such right shall be
granted solely at the discretion of the CFW. Any assignment in violation of this provision shall
be void.
9. NO WAIVER
The failure of either party to insist upon the performance of any provision or condition of this
Agreement or to exercise any right granted herein shall not constitute a waiver of that party's
right to insist upon appropriate performance or to assert any such right on any future occasion.
10. GOVERNMENTAL POWERS/IMMUNITIES
It is understood and agreed that by execution of this Agreement, CFW does not waive or
surrender any of its governmental powers or immunities.
11. AMENDMENTS
No amendment to this Agreement shall be binding upon either party hereto unless such
amendment is set forth in writing, dated subsequent to the date of this Agreement, and signed by
both parties.
12. SEVERABILITY
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired.
City of Fort Worth Subscriber Services Agreement BNSF Railway Company
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13. CONFIDENTIAL INFORMATION
To the extent permitted by law, USER for itself and its officers, agents and employees, agrees
that it shall treat all information provided to it by the CFW as confidential ("City Information")
and shall not disclose any such information to a third party without the prior written approval of
the CFW, unless such disclosure is required by law, rule, regulation, court order, in which event
USER shall notify CFW in writing of such requirement in sufficient time to allow CFW to seek
injunctive or other relief to prevent such disclosure. USER shall store and maintain City
Information in a secure manner and shall not allow unauthorized users to access, modify, delete
or otherwise corrupt City Information in any way. USER shall notify the CFW immediately if
the security or integrity of any City Information has been compromised or is believed to have
been compromised.
14. FORCE MAJEURE
The parties shall exercise their best efforts to meet their respective duties and obligations
hereunder, but shall not be held liable for any delay in or omission of performance due to force
majeure or other causes beyond their reasonable control, including, but not limited to,
compliance with any state or federal law or regulation, acts of God, acts of omission, tires,
strikes, lockouts, national disasters, wars, riots, material or labor restrictions, transportation
problems, existing contractual obligations directly related to the subject matter of this
Agreement, or declaration of a state of disaster or emergency by the federal, state, county, or
City government in accordance with applicable law.
15. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively determined
to have been delivered when (1) hand-delivered to the other party, its agents, employees,
servants or representatives, (2) delivered by facsimile with electronic confirmation of the
transmission, or(3) received by the other party by United States Mail, registered, return receipt
requested, addressed as follows:
City of Fort Worth BNSF Railway Company
Attn: Susan Alanis, Assistant City Manager Attn: Briant E. Thomas
1000 Throckmorton 3001 Lou Menk Dr.
Fort Worth TX 76102-6311 Fort Worth, TX 76131
Facsimile: (817) 392-8654 Facsimile: 817-352-7466
With Copy to the City Attorney
At same address
16. GOVERNING LAW/ VENUE
This Agreement shall be construed in accordance with the laws of the State of Texas. Venue for
any action brought on the basis of this Agreement shall lie exclusively in state courts located in
Tarrant County, Texas or the United States District Court for the Northern District of Texas —
Fort Worth Division. In any such action, each party shall pay its own attorneys' fees, court costs
and other expenses incurred as a result of the action.
City of Fort Worth Subscriber Services Agreement BNSF Railway Company
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17. SIGNATURE AUTHORITY
The person signing this Agreement hereby warrants that he/she has the legal authority to execute
this Agreement on behalf of his or her respective party, and that such binding authority has been
granted by proper order, resolution, ordinance or other authorization of the entity. The other
party is fully entitled to rely on this warranty and representation in entering into this Agreement.
18. ENTIRETY OF AGREEMENT
This written instrument, including all Exhibits attached hereto, contains the entire understanding
and agreement between Fort Worth and USER as to the matters contained herein. Any prior or
contemporaneous oral or written agreement is hereby declared null and void to the extent in
conflict with this Agreement. Any previously executed Communications System Agreement
between the parties shall be terminated simultaneously with the final execution of this
Agreement by both parties.
19. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and each counterpart shall, for all
purposes, be deemed an original, but all such counterparts shall together constitute one and the
same instrument.
20. TERMINATION.
Either USER or CFW may terminate this Agreement for any reason, with or without cause, upon
ninety (90) days written notice to the other party. The CFW, in its sole discretion, shall have the
right to deny USER services under this Agreement and/or the right to terminate the Agreement
immediately if USER fails to make full payment of invoiced fees within thirty (30) days of the
date payment is due.
21. COMPLIANCE WITH LAWS.
The USER shall comply with all current and future Federal, State, and Local laws, Ordinances,
and Mandates, including Federal Communications Commission rules and regulations regarding
proper use of radio communications equipment.
EXECUTED IN MULTIPLE ORIGINALS on this thele day of 20 .
[SIGNATURE PAGE FOLLOWS]
City of Fort Worth Subscriber Sen ices Agreement BNSF Railway Compan}
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CITY OF FORT WORTH: BNSF RAILWAY COMP Y:
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By: By: &4-J,
S an Alanis Name:—Briant E. Thomas
sistan Ci y Manager Title: _Chief Special Agent
Date: 4 61 aq 1 (p Date: L/
ATTEST: ATTEST:
By: Fo0-3y.a J. a e; me:
City Se V r10 e:
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APPROVED TO FORM � J �� PROVED TO LEGALITY:
AND LEGALI
By: By:
Assistant 'ty A orney Name:
`'�� Title:
Contract Authorization:
M&C: —.2 1�,'?
Date Approved:
OFFICIAL RECORD
CITY SECRETARY
City of Fort Worth Subscriber Services Agreement FT. WORT F X a Company
Page 6 of 7
EXHIBIT A
FEE SCHEDULE
Time And Materials Services
Covered Services:
• Mobile Radio Installation
• Mobile Computer Installation
• Radio Repair(Mobile and Portable)
• Base Station Radio Repair
• Radio Template Development
• Radio Code Plug Development
• Radio Programming
• Other Services As Agreed
Applicable Rates:
Labor
1. $65.00 per hour for work performed during regular business hours (Monday through
Friday from 7:30 AM to 6:00 PM except CFW holidays).
2. $97.50 per hour(with a two-hour minimum) for work performed outside regular
business hours when User requests work to be performed during these hours.
3. A per-visit trip charge of$32.50 if User requests work to be performed at a site other
than the Fort Worth Radio Services site. Labor rate will be charged beginning with
technician's arrival to User site.
Parts and Services
1. Parts and supplies used in the performance of maintenance and repair services will be
billed at the vendor's invoiced cost to the City plus 10%.
2. Services from third-parties (such as Motorola repair depot) will be billed at the
vendor's invoiced cost to the City plus 10%.
Flat Rate Services
Covered Services:
• Radio Tuning and Alignment (work performed at Fort Worth Radio Services site
only)
Applicable Rates:
1. $32.50 per radio for units delivered by User to the Fort Worth Radio Services site.
2. $65.00 per mobile radio removed and reinstalled in User vehicles. Vehicle must be
delivered by User to the Fort Worth Radio Services site.
3. A trip charge of$65.00 if the User requests Fort Worth Radio Services staff to pick
up and deliver radios to User site.
City of Fort Worth Subscriber Services Agreement BNSF Railway Company
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M&C Review
Official
CITY COUII CIL AEGENDA FORTWORTH
REFERENCE,, 04BNSF RAILWAY RADIO
DATE: 5/3/2016 NO NAME: SUBSCRIBER SERVICES
AGREEMENT
CODE: C TYPE: CONSENT PUBLIC NO
NO
SUBJECT: Authorize Execution of a Radio Subscriber Support Agreement with the BNSF Railway
Company for the Provision of Two-Way Radio Support Services at No Cost to the City
of Fort Worth (ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a Radio Subscriber Support
Agreement with BNSF Railway Company for the provision of two-way radio support services at no
cost to the City of Fort Worth.
DISCUSSION:
The City of Fort Worth (City) maintains Agreements with other public safety agencies North Central
Texas to provide access to its Public Safety Communications System. Many agencies have
expressed interest in having the City extend its support to the programming, repair and
maintenance of their two-way radios and other hardware and software used to access the City's
Public Safety Communications System.
Under this Radio Subscriber Support Agreement, the City will install, configure, maintain and repair
certain public safety emergency response equipment. The BNSF Railway Company (BNSF) will
reimburse the City for all labor and material costs associated with these services. The City's
performance of these additional services will not impact its ability to meet City department
requirements. It will, however, provide additional external revenues to help support the Public
Safety Communications System. It will also ensure that the equipment supporting the users of the
City's radio system is operating within manufacturer specifications, which is a critical requirement
of the digital technology used with the City's Public Safety Communications System.
In May 2014, the City Council approved M&C C-26803 authorizing the execution of a
Communications Systems Agreement with BNSF to provide access to the City's Public Safety
Radio System. In February 2016, BNSF approved a Radio Subscriber Services Agreement under
which the City would provide programming, repair and maintenance services to BNSF's two-way
radios and other emergency response equipment. Under this arrangement, the City will perform
these services upon request from BNSF and will be reimbursed on a time and materials basis to
offset all associated costs. Annual fees are estimated to total approximately $5,000.00.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon approval of the above recommendation the Information
Technology Solutions Department is responsible for the collection and deposit of funds due to the
City.
http://apps.cfWnet.org/council_packet/mc_review.asp?ID=22223&councildate=5/3/2016[5/3/2016 1:33:29 PM]
CERTIFICATE OF INTERESTED PARTIES CFORM 1Z'VM ,�O
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Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1.2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2016-40464
BNSF Railway Company
Fort Worth,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 04/14/2016
being filed.
City of Fort Worth Date Ackn wledg d:
J
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the goods or services to be provided under the contract.
BNSF CSA 2016
Communications/Repairs/Updates
4 Nature of interest(check applicable)
Name of Interested Party City,State,Country(place of business)
Controlling Intermediary
Briggs,Scott Fort Worth,TX United States X
Thomas,Briant Fort Worth,TX United States X
5 Check only if there is NO Interested Party. ❑
6 I swear,or affirm,under penalty of perjury,that t above disclosure is true and correct.
Y
LINDA DOUGLAS
My Commission Expires
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October-29;2017
OF
Signatur authorized agent of contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said 1 i2n f ee`• TWj=S .this the day of iqffiL
20 ,to certify which,witness my hand and seal of office.
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ignature of er ad stering oath Printed name of officer admiNsiering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www,ethics.state,tx.us Version V1.0.645