HomeMy WebLinkAbout*AGMT - Brea, City of City of Seal Beach
FILE REFERENCE FORM
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MOBILE DATA SYSTEM USER AGREEMENT
This Agreement, made and entered into this 3 day of AT), �fi 1999, by and
between the City of Brea, a municipal corporation, hereinafter sometimes referred to as "Brea,"
and the City of Seal Beach, a municipal corporation, hereinafter sometimes referred to as
"User," for the use of the City of Brea Mobile Data System, hereinafter referred to as BreaMDS.
A. Recitals.
(i) The City of Brea has heretofore established a mobile data system for public
safety purposes employing a state -of- the -art data communications system
backbone that consists of data frequencies, computer switches and remote base
stations owned by the City of Brea.
(ii) The City of Brea has heretofore obtained all necessary licenses and has
constructed all facilities necessary for the provision of BreaMDS services.
(iii) The City of Brea has capacity on BreaMDS to accommodate other users and,
further, is willing to administer and implement system enhancements and provide
for maximum system performance.
(iv) The City of Seal Beach desires to become a user of BreaMDS, subject to the
terms and conditions set forth in this Agreement.
B. Agreement.
NOW, THEREFORE; it is hereby agreed by and between Brea and User as follows:
1. Brea hereby grants to User the right to utilize BreaMDS for a period of not less
than five (5) years, unless earlier terminated as provided herein.
2. In consideration of being permitted to use BreaMDS, User shall pay to Brea a
monthly sum of $130.00 per mobile data computer which monthly fee shall be
MOBILE DATA SYSTEM L_ _R AGREEMENT 2
paid throughout the term of this Agreement, unless sooner terminated as
• provided herein.
3. Use of BreaMDS by User shall be limited to no more than 14 mobile data
computers unless adjusted by mutual written consent of Brea and User.
Furthermore, User may be limited in the number of inbound and outbound
messages as dictated by overall system needs as determined solely by Brea.
4. Brea agrees throughout the term of this Agreement to implement system
enhancements and take all reasonable steps to ensure optimal system
performance as may be deemed necessary by Brea in its sole discretion,
including the issuance of system operating rules and regulations.
5. User agrees to fully comply with BreaMDS Operational Rules and Regulations,
Exhibit "A" hereto, as issued by, and as amended from time to time by Brea.
6. User participating in the BreaMDS 1998 COPS MORE technology grant shall
pay the monthly rate as set forth above, prepaid for the entire five- (5) year term,
upon being invoiced by Brea.
7. User, if participating in the BreaMDS 1998 COPS MORE technology grant
agrees to fully comply with any and all grant program guidelines as may be
subsequently issued and /or amended by Brea.
8. Term and Termination.
a. The term of this Agreement shall be five (5) years.
b. User shall have the right to terminate this Agreement only for
nonperformance as outlined in Section 8.c of this Agreement.
c. Should any of the equipment necessary to operate the system become
unavailable or commercially infeasible to procure, or become
commercially infeasible to operate, or should Brea, for any reason, lose
MOBILE DATA SYSTEM U._ AGREEMENT 3
any license necessary to operate the system, or should User fail to
comply with any of the provisions of this Agreement, Brea shall be
authorized to terminate this Agreement upon thirty (30) days prior written
notice to User.
9. Performance Standards.
a. Brea guarantees that BreaMDS equipment utilized by Brea in
performance of this Agreement shall operate in accordance with its
manufacturer's specifications. It is mutually agreed, however, that
BreaMDS has been designed to provide 95% radio coverage in those
areas as set forth in radio coverage maps contained in the Motorola
Proposal to City of Brea for an Enhanced Mobile Data Communications
System. As such, Brea cannot guarantee radio coverage in any
particular circumstances. In the event of a lack of coverage suffered by
User, Brea agrees to informally interface between User and Motorola to
effect necessary and available modifications provided such modifications
are deemed necessary by Brea and require no financial expenditure by
Brea.
b. Brea guarantees that system will be functional and available 24 hours a
day, 7 days a week, no less than 98% of the time during any calendar
month; not including downtime for routine maintenance. If, at any time,
BreaMDS fails to perform as set forth above, upon receipt of written
notice, by mail or fax, of such deficiency, Brea agrees to take the
following remedial steps:
1) Brea will respond within one (1) hour of such notification by
advising User as to the remedial steps it shall take. To the extent
MOBILE DATA SYSTEM U. _r2 AGREEMENT 4
possible, Brea shalt immediately commence to correct such
deficiency. If Brea is unable to correct the reported problem, Brea
shall, as soon as is practical, advise the manufacturer of the
reported deficiency. Brea shall obtain a schedule for repair from
the manufacturer that shall be immediately provided to User.
2) In the event the remedial work proposed to be performed by the
manufacturer is determined by Brea to be insufficient under
Brea's agreement with the manufacturer, either as to the
proposed time of repair or scope of repair, Brea shall immediately
pursue any and all remedies available under its agreement with
the manufacturer.
c. During any periods of repair pursuant to subsection B, above, User shall
be entitled to the following monthly fee adjustments:
1) Major System Failure.
In the event BreaMDS malfunctions so as to completely prevent
User's use of system in any manner ( "Major System Failure "),
User shall be entitled to a 100% reduction of its monthly User fee,
on a per -hour, prorated basis, in accordance with the following
formula:
mf
md(24) x hrs = $ to be deducted from monthly User
fee.
Where mf = total monthly fee
md= total days in month
MOBILE DATA SYSTEM U. .. AGREEMENT 5
hrs = total number of whole hours of Major (or Minor —see below)
System Failure.
2) Minor System Failure.
In the event the BreaMDS continues to operate, but fails to
perform in accordance with the manufacturer's specifications
( "Minor System Failure "), User shall be entitled to up to a 50%
reduction of its monthly use fee, on a per -hour, prorated basis in
accordance with the following formula:
mf
md(24) x hours _ 2 = $ to be deducted from monthly
User fee.
3) In the event of a Major or Minor System Failure, User may present
Brea with its written documentation setting forth the dates and
times of such purported failure(s) and a request for deduction.
Upon confirmation by Brea, Brea shall authorize User to deduct a
specified amount from the next monthly User fee, in accordance
with the formulas set forth above.
4) In the event a Major System Failure continues for fourteen (14)
consecutive days, User may terminate this Agreement.
10. User agrees to comply with any and all applicable state and federal laws and
regulations while using BreaMDS.
•
11. At User's request, Brea will provide User with a detailed quarterly report showing
average, minimum and maximum acknowledge items, and the number of
inbound and outbound messages. The report will also include a recap of overall
system performance with the same information set forth above.
MOBILE DATA SYSTEM l,_ _R AGREEMENT 6
12. Throughout the term of this Agreement, User shall be entitled to participate in the
BreaMDS User Group. The various goals, benefits and privileges of the
BreaMDS User Group are set forth in the BreaMDS User Group Statement of
Purpose, Exhibit "B" hereto.
13. By entering into this Agreement, User shall be entitled to utilize BreaMDS as
specified herein. User expressly acknowledges and agrees that under no
circumstances shall User be deemed to have acquired any possessory or
ownership interest of any nature, whether tangible or intangible, as to any part of
BreaMDS, or any equipment or facilities thereof, regardless of amounts paid by
User to Brea pursuant to this Agreement (even if to enhance performance), or
the total duration of User's status as a "user" of BreaMDS, or otherwise.
14. User hereby agrees to indemnify, defend, and hold free and harmless the City of
Brea, its elected officials, officers, agents, employees and volunteers, from and
against any and all claims, liability or actions for damages to property or for injury
or death of any persons, which arise from User's use of BreaMDS. User
acknowledges that Brea's role in the performance of this Agreement is as a
system operator and, as such, takes no active role in User's law enforcement or
other safety - related activities or communications. Based thereon, Brea shall not
be liable to User for indemnity or otherwise, including personal injury or property
damage, arising out of any failure of BreaMDS to properly perform, except as
may otherwise be provided by law.
15. Any notices required or permitted to be given by the terms of this Agreement, or
by any law or statute, may be given by a party by depositing said notice in the
U.S. mail, postage prepaid, addressed to the other party, at the address of the
r
' MOBILE DATA SYSTEM L _R AGREEMENT 7
party's respective City Hall. Service of said notice should be deemed complete
• five (5) days after deposit of said notice in the mail.
16. This Agreement shall constitute the entire Agreement between Brea and User
with respect to the matters herein, and the same shall be deemed to supersede
any and all other oral or written representations or agreements which may have
been entered into between Brea and User.
17. No modification or amendment to this Agreement shall be deemed effective
unless the same is in writing and executed by Brea and User.
18. This Agreement may be executed in any number of counterparts, each of which
shall, for all purposes, be deemed an original, and all of which shall constitute
one and the same Agreement of Brea and User.
19. User shall not assign or attempt to transfer any rights that it might have which
arise from this Agreement, without the prior written consent of Brea.
20. Force Majeure.
Under no circumstances will Brea be responsible for delays or failures of
performance of its obligations under this Agreement that are the result of events
beyond the reasonable control of Brea. Such events include, but are not limited
to, acts of God, weather conditions, enactment of state or federal legislation
prohibiting Brea's performance or rendering it commercially impracticable, fire,
strikes, lockouts or other labor disruptions, riots, acts of war or earthquakes.
I
' MOBILE DATA SYSTEM L _R AGREEMENT 8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first set forth above.
CITY OF BREA
By: 1 �� C; \-_--C-
Tim O'Donnell, Assistant City Manager
CITY OF SEAL BEACH
By: 4.p
j:MDScontractsMNDS user agrmt -grantcity 4-99