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HomeMy WebLinkAboutContract 38986THE STATE OF TEXAS COUNTY OF TARRANT COMMUNICATIONS SYSTEM AGREEMENT This COMMUNICATIONS SYSTEM 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 City of Kennedale ("USER"), acting herein by and through its duly authorized City Manager, individually referred to as a "party," collectively referred to herein as the "parties." The CFW or Fort Worth shall include all employees, directors, officials, agents, and authorized representatives. USER shall include all employees, directors, officials, agents, and authorized representatives. RECITALS WHEREAS, this Agreement is made under the authority of Sections 791.001-791.029, Texas Government Code; and WHEREAS, each governing body, in performing governmental functions or in paying for the performance of governmental functions hereunder, shall make that performance or those payments from current revenues legally available to that party; and WHEREAS, each governing body fmds that the subject of this Agreement is necessary for the benefit of the public and each has the legal authority to perform and to provide the governmental function or service which is the subject matter of this Agreement; and WHEREAS, each governing body 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, Fort Worth owns, operates, and maintains Trunked Voice Radio Systems for the purpose of providing Public Safety voice radio communications and is the sole licensee of the CFW Trunked Voice Radio Systems with all privileges and responsibilities thereof. NOW THEREFORE, Fort Worth and USER agree as follows: 1. GRANT OF LICENSE Fort Worth hereby grants the USER specific permission to operate its owned field radio equipment or equipment attached and/or interfaced to the CFW Trunked Voice Radio Systems he "System") infrastructure in accordance with the specific details and requirements for use as set forth in "Exhibit A, Terms of Use," which is attached hereto, incorgQrated herein. and made �,? �: L �:7 �..:.. 5J 444 a part of this Agreement for all purposes. Failure to comply with these specific details and requirements may result in the immediate withdrawal of the specified permissions. 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. Nothing in the performance of this Agreement shall impose any liability for claims against Fort Worth or USER other than claims for which liability may be imposed by the Texas Tort Claims Act. 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 City. 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 officers, agents, servants, employees, contractors and subcontractors. USER acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and USER, its officers, agents, employees, servants, contractors and subcontractors. USER further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and USER. 6. NON -APPROPRIATION OF FUNDS Fort Worth and USER 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 either party's governing body, and as a result, that party is unable to fulfill its obligations under this Agreement, that party (i) shall promptly notify the other party 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 City shall, 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 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 City 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 City. Which such right shall be granted solely at the discretion of the City. 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. AMENDMENTS No amendment to this Agreement shall be binding upon either party hereto unless such amendment is set forth in writing, and signed by both parties. 11. 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. 12. 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 City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 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 City immediately if the security or integrity of an City information has been compromised or is believed to have been compromised. 13. 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, fires, strikes, lockouts, national disasters, wars, riots, material or labor restrictions, transportation problems or existing contractual obligations directly related to the subject matter of this Agreement. 14. 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. 15. SIGNATURE AUTHORITY The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the 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. 16. 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. This Agreement may not be amended unless set forth in writing and signed by both parties. [Signature Page Follows] EXECUTED IN MULTIPLE ORIGINALS on this the 9th day of April, 2009. CITY OF FORT WORTH: By: Karen L. Assistant Date: ATTEST: By: Montgomery Marty Hendrix City Secretary APPROVED TO FORM AND LEGALIZY: B. Farmer Assistant City Attorney Contract Authorization: Date Approved: Lt I C) p j CITY OF KENNEDALE0 Title: City Manager Date: April 9, 2009 ATTEST: Name: Kathy Tuifer Title: City Secretary APPROVED TO LEGALITY: Name: Wayne Olsen Title: City Attorney ., �;2 t ;SIB J. b Pin Il i 3 EXHIBIT A CATEGORY 19 TERMS OF USE The following definons shall have the meanings set forth below and apply to this Agreement and the Terms of Use set forth herein: DEFINITIONS "Infrastructure Support Fee" shall mean the annual fee charged by CFW to offset any actual increased costs incurred by the City in the operation and maintenance of the radio systems. The annual Infrastructure Support Fee is billed per active subscriber radio ID, payable in advance on an annual basis for all active radio IDs issued to USER at the time of the annual billing. Invoicing will occur when new Radio IDs are issued on a pro-rata basis, and thereafter, at the beginning of each CFW fiscal year. There will be no refunds or credits for radios removed from service during the year billed. "Private Call" shall mean a trunked radio system feature that reserves channel resources specifically for conversations between two subscriber radios. Due to the radio infrastructure resource allocations required by "Private Call," this feature is normally not permitted on the City's trunked voice radio systems. "Subscriber Radio" shall mean a control station (desk top radio), mobile radio, or portable radio, which has a unique identification number and is programmed to operate on the CFW Trunked Voice Radio System. "System Affiliation Fee" shall mean anon- "Talk Group" shall mean a specific group of subscriber units allowed to communicate privately within that group over shared infrastructure resources. TERMS OF USE 1. The installation and maintenance of the CFW Trunked Voice Radio Systems infrastructure equipment is the responsibility of CFW unless otherwise stated in this Agreement. 2. The CFW is the holder of the FCC (Federal Communications Commission) license(s) that the CFW Trunked Voice Radio Systems uses for its operation. There shall be no interpretation, nor shall it be construed, that USER of the Trunked Voice Radio Systems infrastructure has any rights whatsoever to the Radio Frequency spectrum used by the systems. 3. The City makes no guarantee, either express or implied, as to radio signal strength or a specific level of radio coverage in a particular location. The USER is responsible for conducting appropriate and applicable in -building and geographical jurisdictional portable radio communications coverage testing to determine the expected radio coverage level. 4. USER will be responsible for the acquisition, programming, and maintenance of all subscriber radios and consoles, as well as any special equipment interfaced to the CFW Trunked Voice Radio System infrastructure such as ID decoding equipment. 5. In order to ensure hardware and software compatibility with the CFW Trunked Voice Radio Systems infrastructure, all radios intended for use by USER on the radio system shall be from the approved list in "Exhibit A4." The use of unauthorized radios on the system may result in suspended operation of the radios and/or termination of the Agreement. Due to the nature of use, CFW shall have the right to modify the list at the City's discretion. USER is not permitted to use an antenna that is not on the approved list. If USER wishes to add a radio that is not on the approved list, then USER must first contact the CFW and provide the radio to CFW Radio Services for testing and evaluation. The CFW reserves the right to remove any previously approved radio model from the list of approved radios. Written notice of such removal shall be sent to USER. Additionally, the City of Fort Worth has listed approved field radio antenna types for use on the CFW systems. 6. USER shall use due diligence in the maintenance and configuration of their subscriber radio equipment to ensure that no USER radio causes a degradation to system operation. The CFW shall have the right to remove from operation any field radio unit or equipment owned by USER that is operating on, attached and/or interfaced to the CFW infrastructure, if such equipment is found to cause interference or harm to the system in any way. The CFW reserves the right to request that USER operated field radio units or equipment operating on, attached and/or interfaced to the infrastructure be tested for proper operation and/or repaired by an authorized radio repair facility approved by the CFW. The cost of such testing or repair will be the sole responsibility of USER. Furthermore, the CFW shall have the right to deactivate, without prior notification to or consent of USER, any field radio suspected of causing interference, intentionally or unintentionally, to any other radios on the systems or the systems operation. 7. The radios owned by the USER may be used for voice radio communications over the CFW trunked voice radio systems infrastructure for as long as this Agreement remains in effect. 8. The CFW will be responsible for managing infrastructure loading and demand. If, in the sole opinion of the CFW, other entities/agencies can be added to the system without adversely impacting the current system over the life of the system, then the CFW reserves the right to enter into a similar agreement with other entities, or deny the addition of new subscriber radio equipment to any user of the system, without notice to other incumbent users 9. 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 access to the radio infrastructure and/or the right to terminate the Agreement immediately if USER fails to make full payment of invoiced system fees within thirty (30) days of the date payment is due. The CFW further reserves the right to terminate this Agreement immediately, or deny access to the USER, upon notice of USER misuse of the system. U. USER is prohibited from utilizing telephone interconnect on the City's trunked voice radio systems, connecting to either the PSTN (Public Switched Telephone Networlc), or its internal phone system(s), through a console patch into the CFW trunked voice radio system, or to any subscriber radio on the systems. 11. Due to the radio infrastructure resource allocations required by "Private Call," USER is not permitted to utilize "Private Call" on the City's trunked voice radio systems. 12. USER is not permitted to utilize any form of data communications on the City's trunked voice radio systems. 13. USER will be assigned talk group ID's unique to USER operation. No other agency will be authorized to use USER talk groups without the express written permission of USER, and a copy of such permission must be on file with the CFW. The CFW reserves the right to require certain talk group ID's to be programmed in USER radios. Additionally, the CFW shall have the right to limit the number of talk group ID's to be used by USER and to disable talk groups ID's as it deems appropriate. 14. The CFW requires that every radio on the system shall have the following talk groups: i. Tarrant 1. ii. Tarrant 2. Hi. All 5 NPSPAC Mutual Aid Channels, 15. USER shall pay anon -recurring, non-refundable System Affiliation Fee of $600.00 for each new radio added to the system per radio identification (ID) number. Each radio shall be issued a unique radio ID by the CFW, and this unique radio ID shall be programmed into one USER owned radio by a CFW approved radio service facility. 16. USER shall pay the City an Annual Infrastructure Support Fee in the amount of $24 per month, per subscriber radio, payable in advance on an annual basis for all active radio IDs issued to USER at the time of the annual billing. Invoicing will occur when new Radio IDs are issued on a pro-rata basis, and thereafter, at the beginning of each CFW fiscal year. Further, at the beginning of each fiscal year of this Agreement, the CFW may increase the Affiliation Fee and/or the Annual Infrastructure Support Fee to offset any actual increased costs incurred by the City in the operation and maintenance of the system. There will be no refunds or credits for radios removed from service during the fiscal year. COMPLIANCE WITH LAWS 17. 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. The USER will also comply with the guidelines, or procedures set out in this agreement. Furthermore, the USER is responsible for enforcing such compliance by its employees, volunteers, or any individual operating USER subscriber radio equipment. Furthermore, the USER will be responsible for payment of any fines and penalties levied against the CFW (as the licensee) as a result of improper or unlawful use of subscriber radio equipment owned by USER. 18. In order to comply with Federal, State, and Locai Laws and/ or Mandates, the CFW, as the licensee, may need to act on behalf of the USER regarding possible modifications, reconfiguration, or exchange of owned subscriber radio equipment in order to meet these obligations. For as long as this agreement is in force, the USER will allow the CFW to facilitate such activities on USER's behalf as necessary. 19. In the instance where USER subscriber radio equipment is to be replaced in order to be in compliance with Federal, State, and Local Laws and/or Mandates, title and ownership of such replacement subscriber radio equipment shall pass directly to USER upon delivery of subscriber radio equipment to the USER's site. The USER shall provide the CFW, or its designee, with the subscriber radio equipment to be replaced, in good working order, as determined by the CFW or its designee. USER shall be liable for payment of any fees associated with radios deemed to be not in proper working order. USER shall be liable for payment of any fees associated with upgrades to subscriber radio equipment. EXHIBIT A -I CITY OF FORT WORTH LIST OF APPROVED RADIOS Portables• MTS2000 Portable STX821 (model 11) Portable MTS2000 Portable XTS2500RB Portable XTS 1500 Portable XTS2500 Portable XTS3000 Portable XTS5000 Portable EF Johnson 5100 Mobiles Spectra Mobile XTL5000 Mobile XTL2500RB Mobile ASTRO Spectra Mobile MCS2000 Mobile XTL1500 Mobile XTL2500 Mobile XTL5000 Mobile LCS2000 Mobile Consolettes• Spectra Consolette XTL5000 Consolette ASTRO Spectra Consolette Additionally, the following requirements must also be met: 1) Only 7 inch antennas will be allowed for portables. 2) Stubby broad spectrum antennas are prohibited from use for portables. 3) No gain greater than 3 DB will be allowed for mobiles and consolettes. M&C Review Page 1 of 2 DATE: CODE: SUBJECT: {791€r,ir�i si€:e c�` titt Ci,y ��� Ec>r�: 4?%ort[., i'exe3s> COUNCIL ACTION: Approved on 6/9/2009 6/9/2009 REFERENCE NO.: **C-23569 LOG NAME: 04KENNEDALE C TYPE: CONSENT PUBLIC NO HEARING: Authorize the City Manager to Execute a Communications Systems Agreement with the City of Kennedale for Participation in the City of Fort Worth's Two -Way Public Safety Rad System at No Cost to the City of Fort Worth RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a Communications Systems Agreement with the City of Kennedale for participation in the City of Fort Worth's two-way public safety radio system in which the City of Kennedale will reimburse their share of operations anc maintenance to ensure no cost to the City of Fort Worth. For Fiscal Year 2009 the reimbursement is estimated to be $25,000.00. DISCUSSION: The City of Fort Worth (Fort Worth) has maintained agreements to provide access to its two-way radio system by other public safety agencies in Tarrant and Denton counties. In return for this access external agencies help offset the City's expense through the payment of annual fees. The federally -mandated 800 MHz Public Safety Radio Rebanding Project (M&C C-22865 approved June 17, 2008) has resulted in changes in the radio system infrastructure which require updates to the Communications Systems Agreements with external agencies. This Communications Systems Agreement grants the City of Kennedale (Kennedale) specific permission to operate its field radio equipment on the .Fort Worth Radio System under the new frequencies assigned through the Rebanding Project. The Communication System Agreement specifies that Kennedale shall pay anon -recurring, non- refundable System Affiliation fee of $600.00 for each new radio added to the system and an Annual Infrastructure Support Fee in the amount of $24.00 per month per radio. The agreement allows Fort Worth to adjust the annual infrastructure maintenance fee based on the City's cost. Kennedale is responsible for the procurement and maintenance of its radio field equipment. The equipment includes mobile radios, portable radios, consoles and consolettes. Upon replacement of all radios provided by the Rebanding Project, title and ownership shall pass directly to Kennedale. Kennedale will be responsible for all ongoing expense associated with this radio equipment. Approved expenses associated with the Rebanding Project are paid by Sprint/Nextel. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that the IT Solutions Department is responsibl for the collection and deposit of funds due to the City. http://apps.cfwnet.org/council packet/mc review.asp?ID=11789&counciidate=6/9/2009 6/10/2009 M&C Review Page 2 of 2 TO Fund/Account/Centers P168 475700 0046020 $25,000.00 Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS FROM_ Fund/Account/Centers Karen Montgomery (6222) Peter Anderson (8781) Steve Streiffert (2221) http://apps.cfwnet.org/council packet/mc review.asp?ID=11789&councildate=6/9/2009 6/10/2009