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HomeMy WebLinkAboutContract 60333CSC No. 60333 COMMUNICATIONS SYSTEM AGREEMENT CATEGORY 1— GOVERNMENT ENTITY 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 Citv of Pelican Bay ("City of Pelican Bay"), acting herein by and through its duly authorized _ Mayor , 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, this Agreement is made under the authority of Sections 791, 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 finds 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 license holder 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 USER's owned or leased field radio equipment or equipment attached and/or interfaced to the CFW Trunked Voice Radio Systems (the "Radio 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, incorporated herein, and made 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. The Agreement shall become effective upon the signing of the Agreement by an Assistant City Manager of the City of Fort Worth (the "Effective Date") and shall continue in full force and effect unless terminated in accordance with the provisions set forth herein and in Exhibit A. OFFICIAL RECORD Communications System Agreement CITY SECRETARY Page 1 of 11 FT. WORTH, TX 3. Compensation. USER shall remit payment to Fort Worth in the amount and manner set forth in Exhibit A. " 4. Liability. Each party agrees to be liable for any damages or loss that maybe 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 either party 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-Anpronriation 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. Riaht 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. Asignment. 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. Communications System Agreement Page 2 of 11 10. Governmental Powers/Immunities. It is understood and agreed that by execution of this Agreement, the neither CFW nor USER waives 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. 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 Maieure. CFW and USER will exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but will not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance, or regulation; acts of God; acts of the public enemy; fires; strikes; lockouts; natural disasters; wars; riots; epidemics or pandemics; government action or inaction; orders of government; material or labor restrictions by any governmental authority; transportation problems; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any States; civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the reasonable control of the Party whose performance is affected (collectively, "Force Majeure Event"). The performance of any such obligation is suspended during the period of, and only to the extent of, such prevention or hindrance, provided the affected Party provides notice of the Force Majeure Event, and an explanation as to how it prevents or hinders the Party's performance, as soon as reasonably possible after the occurrence of the Force Majeure Event, with the reasonableness of such notice to be determined by CFW in its sole discretion. The notice required by this section must be addressed and delivered in accordance with Section 15 of this Agreement. 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: Communications System Agreement Page 3 of 11 City of Fort Worth Attn: IT Solutions Director 200 Texas Street Fort Worth, TX 76102 Facsimile: (817) 392-8654 With Copy to the City Attorney At same address City Of Pelican Bay Attn: Payables 1300 Pelican Circle Azle, Texas 76020 Facsimile: 817-444-2725 16. Governine 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. 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 Communication 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. [Signature Page Follows] Communications System Agreement Page 4 of 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples. CFW: ► /cJLb✓�- By: Valerie Washington (Oct19, 202313:41 CDT) Name: Valerie Washington Title: Assistant City Manager Date: Oct 19, 2023 USER: By: _ Name: a ra Olague.' Title:Mayor] Date: a- J FOR CITY OF FORT WORTH INTERNAL PROCESSES: Approval Recommended: By: Name: Kevin Gunn Title: Director, IT Solutions Department Approved as to Form and Legality: By: Name: Taylor Paris Title: Assistant City Attorney Contract Authorization: M&C: iM&C NUMBER Form 1295: FORM 1295 NUMBER Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: Lawrence Crockett (Oct 16, 202315:11 CDT) Name: Lawrence Crockett Title: Senior IT Solutions Manager dp44p�n b4``Ss FORT�aa City Secretary: p so 0°90� �oo Pv� oia zxc. /� ..ei�.mA� OQ�Il nEXA?o4.0 By: Name: Jannette Goodall Title: City Secretary OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Communications System Agreement Page 5 of l l EXHIBIT A CATEGORY 1, TERMS OF USE The following definitions shall have the meanings set forth below and apply to this Agreement and the Terms of Use set forth herein: DEFINITIONS "Console System" shall mean all hardware and software associated with any dispatch console or set of consoles operated by the USER that are connected to the CFW Master Switch. "Interoperable Communications Governance Committee" ("Governance Committee") shall mean that group of individuals tasked with maintaining and administering the Interoperable Communications Plan. The Governance Committee shall consist of ten to fifteen individuals with CFW selecting at least one representative and each classification of users selecting at least one representative. The Governance Committee shall determine and may periodically adjust the number of members and the method for selecting members for each classification of users with a goal of ensuring that the Governance Committee reflects the full range of user types. "Infrastructure Support Fee" shall mean the annual fee charged by CFW to offset costs incurred by the CFW in the operation and maintenance of the Radio System. "Interoperable Communications Plan" (the "Plan") means the plan developed and established by CFW and the Governance Committee to facilitate, enhance and simplify radio communications among all agencies utilizing the Radio System or connecting their Site Repeater Systems or Console Systems to the CFW Master Switch. The Plan is available upon request from CFW or can be found on the CFW website at httns://fortworthtexas.eov/itsolutions/cf-%&Tadiosi. "Master Switch" shall mean the primary processing and network infrastructure to which all Console Systems and Site Repeater Systems must connect in order to operate on the Radio System. The Master Switch is currently located at the CFW Eagle Mountain facility. "Over The Air Rekeying" ("OTAR") shall mean the management and support of Subscriber Radio encryption keys via over -the -air, radio channel transmission. "OTAR Administration Fee" shall mean the annual fee charged by CFW to offset costs incurred by the CFW in the management and support of Subscriber Radio encryption keys administered through the Radio System's OTAR functions. "Over the Air Programming" ("OTAP") shall mean the method of implementing programming changes to Subscriber Radios using the over -the -air data capabilities of the Radio System. "Private Call" shall mean a feature that reserves channel resources specifically for conversations between two Subscriber Radios. Communications System Agreement Page 6 of 11 "Site Repeater System" shall mean the base stations, shelter, tower and all site -specific hardware and software infrastructure associated with the provision of a radio site connected to the CFW Master Switch. "System Upgrade Agreement Fee" shall mean the annual fee charged by CFW to offset cost charged to CFW by Motorola Solutions for the maintenance of the Software Upgrade Agreement applicable to the USER's Console Systems and Site Repeater Systems. "Subscriber Radio" shall mean a radio that has a unique identification number and is programmed to operate on the Radio System. The term shall include, but not be limited to, control stations (desk top radios), mobile radios, and portable radios. "Talk Group" shall mean a specific group of Subscriber Radios allowed to communicate privately within that group over shared infrastructure resources. TERMS OF USE 1. The installation and maintenance of the Radio System 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 Radio System uses for its operation. This Agreement shall not be construed or interpreted to grant, convey, or otherwise provide USER with any rights whatsoever to the CFW FCC license(s) or to the Radio Frequency spectrum used by the Radio System. 3. The CFW 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 coverage testing to determine the expected radio coverage level for USER's equipment. 4. USER will be responsible for the acquisition, programming, and maintenance of all equipment USER will be utilizing in connection with the Radio System infrastructure, including, but not limited to, Subscriber Radios, consoles, and special equipment. 5. In order to ensure hardware and software compatibility with the Radio System infrastructure, all Subscriber Radios and consoles intended for use by USER on the Radio System shall be compliant with Project 25 standards established by the Telecommunications Industry Association. The use of unauthorized radios on the Radio System may result in suspended operation of the radios and/or termination of the Agreement. 6. USER agrees to exclusively utilize antennas specifically approved by the radio manufacturer for use with the specific models of USER's radios. The use of short, broad spectrum, or "stubby," antennas is not recommended. USER shall be solely liable for coverage gaps in the event USER utilizes short broad spectrum or stubby antennas or other antennas not approved by the manufacturer for use with the specific models of USER's radios. 7. No antenna gain greater than 3 DB will be allowed for mobiles and consolettes. Communications System Agreement Page 7 of 11 8. USER shall use due diligence in the maintenance and configuration of its Subscriber Radio equipment to ensure that no USER radio or console causes a degradation to the Radio System operation. The CFW shall have the right to remove from operation any field radio unit or equipment owned or leased by USER that is operating on, attached and/or interfaced to the CFW infrastructure, if CFW determines in its sole reasonable discretion that such equipment is causing interference or harm to the Radio 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 or other USER equipment suspected of causing interference, intentionally or unintentionally, to any other radios on the Radio System or to the Radio System's overall operation. 9. USER's radios may be used for voice radio communications over the Radio System infrastructure in accordance with the terms and conditions of this Agreement for as long as this Agreement remains in effect. 10. The CFW will be responsible for managing infrastructure loading and demand. CFW reserves the right, without notice to incumbent users, to enter into a similar agreement with other entities or to deny the addition of new Subscriber Radio equipment to any user of the Radio System. The CFW shall have sole discretion in determining whether to allow additional users or radios based on CFW's determination of whether such addition to the Radio System can be made without adversely impacting the Radio System. 11. USER is prohibited from utilizing telephone interconnect on the Radio System. This prohibition shall include, but is not limited to, connecting to either the PSTN (Public Switched Telephone Network) or USER's internal phone system(s) through a console patch into the Radio System or to any Subscriber Radio on the Radio System. 12. Due to the radio infrastructure resource allocations required by "Private Call," USER is not permitted to utilize "Private Call" on the Radio System. 13. USER's utilization of data communications on the Radio System will be limited to the Radio System's OTAP functions. Performance of data communications over the Radio System is not guaranteed. For programming changes involving more than ten Subscriber Radios, USER agrees to coordinate with CFW prior to executing changes to minimize impact on other users and on the Radio System. 14. The use of OTAR in association with Subscriber Radio encryption is prohibited without prior approval of CFW. Administration of encryption keys will be performed exclusively by CFW. USER may utilize and administer other encryption methods as required. 15. The CFW will provide USER with an Advanced System Key (ASK) for use with the USER's Subscriber Radios only. The ASK will expire annually, and USER shall be responsible for requesting a new ASK following expiration if one is required. USER will be Communications System Agreement Page 8 of 11 responsible for safeguarding the security of the ASK to prevent theft and/or loss. USER agrees to notify CFW immediately upon the theft or loss of the ASK. 16. CFW will assign the USER Talk Group IDs unique to USER operation. All Talk Group names shall include a prefix unique to the USER's agency. 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 before such use may occur. 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. 17. The CFW has established a coordinated Interoperable Communications Plan to apply to CFW and the users of its Radio System. USER agrees to participate in the Plan and include the Plan's interoperable Talk Groups in the programming of its Subscriber Radios and Console Systems. 18. Roaming to other systems or the use of USER's Talk Groups on other trunked systems that are interconnected to the Radio System is prohibited without prior approval by CFW. Roaming to other trunked systems will be limited to the Radio System's interoperable Talk Groups, although this capability may be terminated by CFW if its use is determined to result in performance degradation to either the Radio System or the interconnected trunked system. 19. USER may utilize a Network Management Console (NMC) to manage its own environment. USER is responsible for acquiring and maintaining, at USER's sole cost, all components required to connect the NMC to the Radio System. The USER's NMC must be partitioned in manner to limit access to USER's own environment only and to prevent USER from viewing, accessing, or making any changes to equipment that is not owned or leased by USER. The USER must ensure the NMC is located in a secure area. USB ports on the NMC must be deactivated except during maintenance activity. All security patches related to operating systems and other associated software must be maintained at current manufacturer -tested levels. No other software applications may be utilized by the NMC. 20. CFW generally maintains aliases for units operating on the Radio System. If the USER has acquired the capability to modify its aliases, it may administer and maintain its own subscriber unit aliases. From that point, USER will be responsible for administering and maintaining its own subscriber unit aliases, and the CFW will no longer administer and maintain the USER's subscriber unit aliases. 21. USB ports on the USER's Console Systems must be deactivated except during maintenance activity. All security patches related to operating systems and other associated software must be maintained at current manufacturer -tested levels. If required, all connectivity between the Console Systems and the Radio System is the responsibility of the USER, including software, hardware and carrier services. Associated costs will be incurred by the USER. Unless otherwise approved by CFW, connectivity will be achieved through local terrestrial circuit facilities. The use of other connectivity methods, including but not limited to microwave or fiber, must be approved by the CFW. USER may incur additional costs from CFW for other connectivity methods. Communications System Agreement Page 9 of 11 22. The CFW shall execute with Motorola Solutions a System Upgrade Agreement for the Console Systems and Site Repeater Systems that would be affected by the software upgrades, including those owned (or leased) and operated by the USER. Unless the USER is notified otherwise by CFW, the software for the Radio System, all Site Repeater Systems and all Console Systems will be upgraded to the current level every two years. The USER will provide all reasonable coordination necessary for the upgrade of its Console Systems. USER acknowledges that reductions in functionality may occur during the upgrade process. APPLICABLE FEES. TERMINATION: REFUNDS 23. USER shall pay the CFW an annual Infrastructure Support Fee in the amount of $33.50 per month, per Subscriber Radio or console. This fee is 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 on a pro-rata basis when new Radio IDs are issued, and thereafter, at the beginning of each CFW fiscal year. There will be no refunds or credits for radios removed from service during the fiscal year. 24. If the USER subscribes to OTAR services, the USER shall pay the CFW an annual OTAR Administration Fee in the amount of $1.00 per month, per Subscriber Radio. This fee is 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 on a pro-rata basis when new Radio IDs are issued, and thereafter, at the beginning of each CFW fiscal year. 25. USER shall pay the CFW an annual System Upgrade Agreement Fee equal to the amount invoiced to the CFW by Motorola Solutions, Inc., or its successors, for the upgrade of the USER's Console Systems and any other component subject to upgrade as a result of the upgrade of the Radio System. 26. CFW shall have the right to increase any applicable fees under this Agreement each fiscal year to offset any increased costs incurred by CFW in the operation or maintenance of the Radio System. Any increase in applicable fees will be effective at the beginning of the next CFW fiscal year. CFW shall provide USER with 60 days' written notice of any intended fee increase, provided, however, that this notice period may be less than 60 days if Motorola Solutions provides CFW with less than 60 days' notice of an increase in the System Upgrade Agreement Fee and such reduced notice period shall not impact USER's obligation to pay the increased fee. 27. 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. If USER terminates, there will be no refunds or credits for any fee. If CFW terminates, CFW will issue a refund to the USER of all fees, except for the System Upgrade Agreement Fee, which is non-refundable, pro -rated to the end of the current fiscal year. 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 Radio System. Notwithstanding the foregoing, the CFW, in its sole discretion, reserves the right to immediately deny access to the USER if such action is required to prevent the spread of a security breach or threatened security breach or due to Communications System Agreement Page 10 of 11 an emergency, operational issue, or other critical incident between the Master Switch and the USER's environment. The CFW will use best efforts to restore access to the USER as soon as possible once the security breach, emergency, operational issue, or critical incident is resolved. COMPLIANCE WITH LAWS 28. 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, directors, officers, agents, authorized representatives, subcontractors, and consultants for USER Subscriber Radio equipment. Furthermore, the USER will be responsible for payment of any fines and penalties levied against the CFW (as the license holder) as a result of improper or unlawful use of Subscriber Radio equipment owned or leased by USER. 29. In order to comply with Federal, State, and Local Laws and/ or Mandates, the CFW, as the license holder, may need to act on behalf of the USER regarding possible modifications, reconfiguration, or exchange of 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. 30. 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, upon delivery of Subscriber Radio equipment to the USER's site, pass directly to the owner of the equipment that is being replaced. 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. [End of Document] Communications System Agreement Page I 1 of 11