HomeMy WebLinkAboutRES 08-20RESOLUTION NO. 08-20
A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY
OF APACHE JUNCTION, ARIZONA, AUTHORIZING THE CITY TO
ENTER INTO AN INTERGOVERNMENTAL AGREEMENT TO: 1) PLAN,
DESIGN,CONSTRUCT,OPERATE,MAINTAIN AND FINANCE A
REGIONAL WIRELESS COOPERATIVE NETWORK; AND 2)PROVIDE
FOR RELATED TWO-WAY RADIO EQUIPMENT MAINTENANCE AND
EMERGENCY DISPATCH SERVICES.
WHEREAS, on November 9, 2005, the City of Apache Junction
("Apache Junction")entered into a five-year intergovernmental
agreement with the City of Mesa ("Mesa")for use of a radio
communications system shared with the City of Phoenix
("Phoenix"); and
WHEREAS,in September 2007,Mesa began the process of
transitioning from such system to Implementing its own system on
the Trunked Open Arizona ("TOPAZ") Network; and
WHEREAS,the TOPAZ Network will allow Apache Junction
to connect to,expand and enhance its police radio
communications systems, as well as have the autonomy to maintain
its own infrastructure,frequencies,and control over its own
radio systems; and
WHEREAS,the parties each seek to enhance the public
services they provide by enhancing their radio communications
systems and by providing for equipment maintenance and emergency
dispatch services; and
WHEREAS, Apache Junction and Mesa desire to enter into an
intergovernmental agreement allowing Apache Junction to connect
to Mesa's TOPAZ system; and
WHEREAS, the parties have crafted legal documents which set
forth the conditions for such arrangements; and
WHEREAS,pursuant to A.R.S.§ 11-952(A),public entities
may enter into Intergovernmental Agreements for joint or
cooperative action.
RESOLUTION NO. 08-20
PAGE 1 OF 3
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL
OF THE CITY OF APACHE JUNCTION, ARIZONA AS FOLLOWS:
Section I
The Mayor and City Council approve the Intergovernmental
Agreement to plan,design,construct,operate,maintain and
finance the TOPAZ Regional Wireless Cooperative Network and the
Mayor is hereby authorized to sign the agreement on behalf of
the City.
Section II
The Mayor and City Council approve the Intergovernmental
Agreement between the City Of Mesa and the City of Apache
Junction for Two -Way Radio Equipment Maintenance and the Mayor
is hereby authorized to sign the agreement on behalf of the
City.
Section III
The Mayor and City Council approve the Intergovernmental
Agreement between the City Of Mesa and the City of Apache
Junction relating to Emergency/Fire Dispatch Services and the
Mayor is hereby authorized to sign the agreement on behalf of
the City.
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION, ARIZONA, THIS 1ST DAY OF JIHY r 2008.
SIGNED AND ATTESTED TO THIS 1ST
ATTEST:
KATHLEEN CONNELLY
City Clerk
RESOLUTION NO. 08-20
PAGE 2 OF 3
DAY OF JULY r 2008.
APPROVED AS TO FORM:
4c0---6.27.08
RICHARD J. STERN
City Attorney
RESOLUTION NO. 0 8 -2 0
PAGE 3 OF 3
INTERGOVERNMENTAL AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
TABLE OF CONTENTS
Parties ................................................................................................................................2
Recitals ..............................................................................................................................2
Term and Duration of Agreement; Dissolution .............................................................2
Manner of Financing ........................................................................................................3
Obligations as Members ...................................................................................................5
Voluntary Termination or Withdrawal as Members ....................................................5
Additional Parties .............................................................................................................5
Failure to Pay Financial Obligation ................................................................................5
Open Meeting Law ............................................................................................................5
Records; Confidentiality ...................................................................................................6
Conflict of Interest • .................................................................................................................6
Compliance with Applicable Laws ..................................................................................6
Cooperation .......................................................................................................................6
Amendment .......................................................................................................................7
Existing and Future Agreements .....................................................................................7
Notices ................................................................................................................................
Alternative Dispute Resolution ........................................................................................9
Waiver ..............................................................................................................................10
Performance and Uncontrollable Events ......................................................................10
Assignment and Binding Effect .....................................................................................I
Entire Agreement............................................................................................................11
Governing Law ................................................................................................................II
Severability......................................................................................................................Ii
Headings ..........................................................................................................................11
Counterparts ...................................................................................................................11
Exhibit A ............................................................................................A- I
INTERGOVERNMENTAL AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
I.Parties. The Parties to this intergovernmental agreement ("Agreement") are the City of
Mesa, the City of Apache Junction, the Town of
Gilbert,
2.Recitals.
2.1.The Parties enter into this Agreement for the purpose of planning, designing,
constructing, operating, maintaining and financing the TOPAZ Regional Wireless Cooperative
Network ("TRWC").
2.2.The Parties are authorized to enter into this Agreement by the joint exercise of
powers provisions of Title 11, Cbapter 7, Article 3 (§§ 11-951 et seq.), Arizona Revised Statutes
and the authorization of their legislative or other governing bodies.
2.3.The Parties agree to form the TRWC, an unincorporated association of the Parties,
to jointly and cooperatively exercise their powers to achieve the purposes specified in paragraph
2.1.
2.4.The TRWC shall use its reasonable efforts, through cooperation and the pooling of
common resources, to improve communications and operations among various public safety and
public service agencies.
2.5.The rules and policies governing the TRWC's regulation and management are set
forth in a governance document ("Governance Agreement"), which is attached to this Agreement
as Exhibit A and incorporated herein and made a part of this Agreement by this reference.
Certain terms that are defined in the Governance Agreement are used in this Agreement.Those
terms shall have the same meaning in this Agreement as such terms are defined in the
Governance Agreement.
2.6.It is the Parties' intention that the Governance Agreement be enforceable to the
same extent as this Agreement. The Governance Agreement shall be subject to amendment as
provided herein and shall be valid for the duration of this Agreement. The Governance
Agreement is approved by all initial Parties and shall be binding upon any Parties that are
admitted after the initial Parties. No additional Parties shall be admitted to the TRWC without
first agreeing to be as bound by the Governance Agreement as are the initial Parties.
3.Term and Duration of Agreement; Dissolution.
3.1.This Agreement shall become effective and binding upon the Parties on the
date (the "Effective Date") when the Agreement has been executed by all Parties and all
Parties have complied with the requirements of A.R.S. § 11-952, which includes
appropriate action by the legislative or other governing body of the Party for the approval
of the Agreement, determination by the Party's attorney that the Agreement is within the
powers and authority of the Party, and the proper filing of the Agreement.The initial
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INTERGOVERNMENTAL AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
term of this Agreement is ten (10) years commencing on the Effective Date; thereafter,
the Agreement will automatically renew for terms of ten (10) years. This Agreement
shall continue until such time as the TRWC is dissolved.
3.2.The Parties do not anticipate that the TRWC will be dissolved until it is no
longer desirable and feasible for the TRWC to operate the Network or the Network is
transferred to another entity.
3.3.If the Parties dissolve the TRWC other than by transferring the Network to
anolher entity, the assets of the TRWC shall be returned to the Members in proportion to
their contributions to the TRWC as determined in section 10.2 of the Governance
Agreement.
4.Manner of Financing.
4.1.The cost of planning, designing, constructing, operating and maintaining the
Network shall be paid in the manner specified in the Governance Agreement.
4.2.Each Party agrees to timely pay its share of the cost of planning, designing,
constructing, operating and maintaining the Network as specified in the Governance
Agreement. Each Party shall render its amounts payable to the TRWC no later than thirty
(30) days from the invoice date. The TRWC may collect interest at the rate of one
percent (1%) per month for payments not received thirty (30) days from the invoice date.
The interest collected shall be deposited in the operating and maintenance budget and
used to offset the costs of operation and maintenance.
4.3.It will be the responsibility of each Party to this Agreement to take the
appropriate steps in conformity with state or local laws to ensure that it appropriates
sufficient funds to cover the obligations it assumes under this Agreement. Each Party
recognizes that the performance by the Parties under this Agreement may be dependent
upon the appropriation of funds to or by that Party.Should any Party fail to appropriate
or fail to be appropriated the necessary funds, that Party may withdraw from this
Agreement as specified in Section 6 on the last day of the fiscal period for which funds
are legally available and, notwithstanding anything to the contrary in this Agreement,
subject to Board of Director approval, shall forfeit all equipment and real property owned
by such Member that is used in the Network. Each Party agrees to give notice to the
other Parties as soon as reasonably possible after the unavailability of funds comes to the
Party's attention.
4.4.Each Party understands and acknowledges that claims and lawsuits may be
filed for damages resulting from acts or omissions in connection with planning,
designing, constructing, operating, maintaining and financing the Network or that other
unforeseen costs and expenses may be incurred in connection with the planning,
designing, constructing, operating, maintaining and financing the Network. The Parties
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PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
agree that all damages, costs and expenses not specifically provided for in this
Agreement, shall be shared by the Parties in proportion to each Party's share of the total
weighted votes at the time the claim or lawsuit, whichever first occurs, is first served on
any Party or the unforeseen costs or expenses were incurred.Each Party shall promptly
notify the TRWC and the Administrative Manager upon receipt of a claim or lawsuit
relating to the Network. The Administrative Manager shall take the lead role on behalf of
the TRWC in coordinating the investigation and defense of any claim or lawsuit made in
connection with planning, designing, constructing, operating, maintaining or financing
the Network.Nothing in this section shall preclude any Party, at its expense, from
providing its own legal counsel in connection with any claim or lawsuit made in
connection with planning, designing, constructing, operating, maintaining or financing
the Network.
4.5.The Administrative Manager subject to Board of Directors approval may
apply for such federal, state or other grants as are made available for the planning,
designing, constructing, operating, maintaining and financing the Network.The
Administrative Manager may submit the grant application on behalf of the TRWC in
accordance with applicable laws, rules, regulations and procedures.Any grant funds
received will be used to reduce the cost of the project for which a grant application was
submitted. The application for or the award of a grant shall not relieve a Party of its
obligation to pay costs billed by the TRWC as provided in this Agreement.
4.6.Any Party that intends to individually submit a grant application that may
benefit the TRWC or the Network shall first submit its proposal and grant application to
the TRWC for its recommendation. With approval of the Board of Directors, the Party
may submit its application to obtain the grant funding. Acceptance and use of any grant
funds so obtained for the TRWC and the Network is subject to the discretion and
approval of the Board of Directors. A Party who applies for, is awarded, and accepts
grant funds under this paragraph 4.6 is individually responsible for meeting all terms,
conditions and obligations of the grant.
4.7.The TRWC's Board of Directors shall adopt procurement procedures.
4.8.The TRWC's Board of Directors shall determine what insurance coverage is
appropriate to protect the Parties from risks concerning the TRWC and the Network. The
Board of Directors shall obtain such insurance on behalf of the TRWC.In deciding what
insurance coverage and indemnities are appropriate, the Board of Directors may elect to
self -insure for all or a portion of the risks.
4.9.The Parties understand and acknowledge that certain Network equipment,
hardware, software and other personal property that is held jointly and owned in common
by the Parties will become in time unfit or unnecessary for use by the TRWC. To
provide for the disposal of such surplus Network personal property during the term of this
Agreement, each Party agrees to obtain from its legislative or other coverning body by
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PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
ordinance, resolution or other applicable legal action, appropriate authorization enabling
the TRWC to sell by public auction, sealed bids, or negotiation any and all surplus
Network personal property.
5.Obligations as Members.Each Party agrees to become a TRWC Member and to comply
with and be subject to the obligations of Members as set forth in the Governance Agreement,
including the obligation to contribute to the cost of the Network. This Agreement shall not
relieve any Party of any obligation or responsibility imposed upon it by law.
6.Voluntary Termination or Withdrawal as Members.Any Party may voluntarily
terminate its participation in the TRWC by providing twenty-four (24) months' prior written
notice to the other Parties and complies with the requirements of Section 10.5 and any other
provision of the Governance Agreement that addresses voluntary termination or withdrawal from
the TRWC.
7.Additional Parties.Other cities, towns, counties, and Indian communities and other public
agencies, as that term is defined by A.R.S. § 11-951, shall become additional parties to this
Agreement and shall be bound by the terms of this Agreement at such times as those public
agencies are admitted as TRWC Members.
8.Failure to Pay Financial Obligation.
8.1.If a Party is relieved from payment of its financial obligation to the TRWC
as a matter of law, then the TRWC may suspend the Party's right to vote and participate
in the affairs of the TRWC until such time as the Party has paid the difference between
the Party's share of the costs and the amount the Party has paid for such costs. All other
obligations of the Party shall remain in effect, except for obligations specifically excused
as a matter of law.
8.2.Except as provided in paragraph 8.1, if a Party fails to pay a financial
obligation within thirty (30) days of the invoice date and then- upon notice by the
Administrative Manager of the deficiency, fails to cure the non-payment within thirty
(30) days of the date of the deficiency notice. the TRWC shall suspend the Party's right
to vote and participate in the affairs of the TRWC until such time as the Party has paid
the difference between the Party's share of the costs and the amount the Party has paid
for the costs.All other obligations of the Party shall remain in effect, except for
obligations specifically excused as a matter of law.
9.Oven Meeting Law.The TRWC, including the Board of Directors, shall comply with
A.R.S. §§ 38-43),et seq. (Arizona Open Meeting Law) in conducting meetings to the extent the
law is applicable.
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INTERGOVERNMENTAL AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
10.Records: Confidentiality.
0.1 The TRWC shall comply with A.R.S. §§ 39-121 et seq. (Arizona Public
Records Law) in maintaining and providing access to the records of the TRWC.
10.2. The TRWC shall make its financial records regarding the planning,
designing, constructing, operating, maintaining and financing the Network available to
any Party to this Agreement.Such request for inspection shall not be made more
frequently than once a month.
10.3. Each Party to this Agreement agrees to make available to the TRWC its
financial records related to planning, designing, constructing, operating, maintaining and
financing the Network.Such request for inspection shall not be made more frequently
than once a month.
10.4. To the extent permitted by taw, the Parties shall treat Network information
as proprietary and confidential. Network information includes, but is not limited to,•
technical data, engineering details, construction documents, equipment lists,
programming configurations, and operational procedures.Any Party who receives a
request for information or a public records request concerning the Network shall
promptly forward the request to the Administrative Manager for consideration and
response.
11.Conflict of Interest.The Parties understand and acknowledge that this Agreement may be
subject to cancellation under A.R.S. § 38-511 (Arizona's public employee conflict of interest
law) in the event there is a conflict of interest of the type specified in A.R.S. § 38-511 by persons
significantly involved in initiating, negotiating, securing, drafting or creating this Agreement.
12.Compliance with Applicable Laws.Each Party shall comply with all applicable laws,
statutes, ordinances, executive orders, rules, regulations, standards, and codes of federal, state
and other governments with jurisdiction over the Party whether or not specifically referred to in
this Agreement.
13.Cooperation.
13.1. The Parties agree to make, sign and deliver all documents and to perform all
acts that are necessary to fully carry out the terms of this Agreement.Each of the Parties
shall fully cooperate with and assist one another in obtaining all licenses. permits,
authorizations, approvals and consents required in the performance of this Agreement.
Nothing in this Agreement shall be construed or interpreted to require the TRWC to be
responsible for dispatching or otherwise causing its Members to respond to an event
within another Member's jurisdiction.
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TFIE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
13.2.1n the event any legal proceeding is instituted challenging the authority and
power of any of the Parties to execute this Agreement or to perform its terms and
conditions, the Parties shall jointly and cooperatively defend the validity of this
Agreement.
13.3. The Parties may elect and shall have the right to seek specific performance
by any Party of any or all of the obligations set forth in this Agreement.The Parties
agree that specific performance may be sought by way of special action filed in superior
court seeking an injunction ordering the Party to perform its obligations under this
Agreement.The Parties agree not to raise as a defense the position that there is an
"adequate remedy at law." The Parties hereby stipulate and consent to the jurisdiction of
the superior court in any such special action.
14.Amendment.
14.1. This Agreement may be amended only by a written document executed by a
duly authorized representative of each of the Parties:.•
14.2. This Agreement and the Governance Agreement may be amended by one of
the following two procedures:
14.2.1. TRWC-Legislative Procedure.A proposed amendment to this Agreement
or the Governance Agreement shall be submitted for approval to the TRWC's Board of
Directors. Upon approval of the Board of Directors in accordance with the voting process set
forth in the Governance Agreement. each Party shall take appropriate steps in conformity with
state and local law to authorize and approve the proposed amendment.
14.2.2. Formal Addendum Procedure. A proposed amendment to this Agreement
or the Governance Agreement shall be presented to each Party in the form of an addendum, and,
if approved by the Board of Directors in accordance with the voting process set forth in the
Governance Agreement, each Party will take appropriate steps in conformity with state and local
law to authorize and approve the amendment.
14.3. Each Party shall file a copy of the appropriate resolution, ordinance or other
recorded action by which its legislative or governing body approved the amendment with
the Executive Director of the TRWC.
IS.Existing and Future Agreements.
15.1. The Parties agree that the provisions of this Agreement shall be incorporated
in any future subcontracts between the Parties and any other person, political subdivision
or public agency that contracts with the Parties to make use of the Network.
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THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
15.2, The Parties agree that they will not enter into subcontracts for the use of the
Network without the prior approval of the Board of Directors, which shall have the
authority to review the subcontracts for conformity with the rights and obligations set
forth in this Agreement.
15.3. The Parties agree that this Aureement is a modification of all existing
agreements between the Parties in regard to the Network.In the event of any conflict,
inconsistency, or incongruity between the provisions of this Agreement and any of the
provisions of any previous agreement between the Parties, the provisions of this
Agreement shall in all respects govern and control.
1.5.4.Nothing in this Agreement shall be construed or interpreted:
15.4.1. To supersede prior existing mutual aid agreements or radio support
agreements between or among the Parties.
15.4.2. To prohibit a Party from entering into separate agreements after the
Effective Date of this Agreement concerning real estate, buildings and structures, and towers that
the Party owns, leases, or licenses and that the Party authorizes and allows the TRWC to use as
part of the Network, provided the separate agreements are consistent with this Agreement and
compatible with the TRWC's use of the property for the Network.
15.4.3. To supersede prior existing agreements concerning real estate, buildings
and structures,and towers that the Party owns, leases, or licenses and that the Party authorizes
and allows the TRWC to use as part of the Network.
15.5. This Agreement is entered into for the sole and exclusive benefit of the
Parties, and no other person shall claim any implied right, benefit or interest in this
Agreement.The Parties do not intend to create rights in or remedies to any third party as
a beneficiary of this Agreement or of any duty, obligation, or undertaking established
under this Agreement.
16.Notices.
16.1.Any notice, consent or other communications ("Notice") required or
permitted under this Agreement shall be in writing and either delivered in person, or,
deposited in the United States mail, postage prepaid, registered or certified mail, return
receipt requested, or deposited with any commercial air courier or express service
addressed with confirmed receipt to the addresses of each Member that are on file with
the Executive Director:
16.2.Notices shall be deemed received at the time it is personally served, on the
day received as confirmed by any commercial air courier or express services, or if
mailed, upon the date that registered or certified mail confirms that it was delivered.Any
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INTERGOVERNMENTAL AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
time period stated in a Notice shall be computed from the time the Notice is deemed
received. A Party may change its mailing address or the person to receive Notice by
notifying the Executive Director and the other parties as provided in this paragraph.
17.Alternative Dispute Resolution.
17,1. Each Party agrees that it will perform all duties and obligations weed to be
performed by it under the terms and conditions of this Agreement, and that the unexcused
failure of the Party to perform its duties and obligations shall constitute a default under
this Agreement.In the event of a default by a Party, the Executive Director shall give
written notice of the default, specifying the existence and the nature of the default.The
defaulting Party shall have thirty (30) days to remedy the default by rendering the
necessary performance.In the event that the defaulting Party disputes an asserted
default, the Party shall perform the disputed obligation, but may do so under protest.The
protest shall be in writing, and shall precede the performance of the disputed obligation,
and shall specify the reasons upon which the protest is based. After performance of the
disputed obligation under protest, the Party disputing the asserted default shall have the
right to submit the dispute to the TRWC's Board of Directors for a recommendation on a
non -binding resolution under paragraph 17.3.
17.2. Notwithstanding the provisions of paragraph 17.1, in the event a Member
disputes an amount billed, it shall do so in writing to the Executive Director within six (6)
months after the invoice date or within sixty (60) days of the end of the fiscal year in
which the invoice was issued, whichever is earlier. The Member shall pay the disputed
amount, but may do so under protest. The protest shall be in writing, and shall
accompany the disputed payment if not previously paid and shall specify the reason upon
which the protest is based. After the protest has been filed and the disputed amount has
been paid, the dispute shall be handled in accordance with the dispute resolution process
specified in paragraph 17.3. Payments not made under protest shall be deemed to be
correct.If a protest is not filed within the earlier of six (6) months after the invoice date
or within sixty (60) days of the end of the fiscal year in which the invoice was issued, the
Member waives its right to file a protest
17.3. If any dispute, complaint or controversy, including a protest made pursuant
to paragraph I 7,1 or 17.2, ("dispute") arises between or among the Parties under this
Agreement. the Parties agree that the dispute shall be brought to the TRWC's Board of
Directors for non -binding dispute resolution.The Board of Directors may establish
appropriate and prompt procedures to govern the processing of complaints and the
internal dispute resolution process.If a Party disagrees with the Board of Directors'
determination, the Party may pursue the remedies otherwise provided for in this
Agreement or provided at law.
17.4. The Parties agree that notwithstanding the existence of a dispute between or
among the Parties, insofar as is possible under the terms of this Agreement. each Party
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shall continue to perform the obligations that are required of it and that are not related to
the dispute.The Parties agree that at any point in the internal dispute resolution process,
the Board of Directors may adopt and impose an interim emergency remedy to ensure the
continuation of essential communication services until the dispute is resolved.
17.5. This Agreement shall not be construed or interpreted to prohibit a Party from
seeking injunctive relief for the preservation of property.
17.6. In the event a dispute is not resolved pursuant to paragraph 17.3, the Parties
agree to use arbitration to the extent required under A.R.S. § 12-133 and A.R.S. § 12-
15 I•8.
.18.Waiver.The waiver by any Party of any breach of any term, covenant or condition of this
Agreement shall not be deemed a waiver of such term, covenant or condition or any subsequent
breach of the same or any other term, covenant or condition of this Agreement,
19.Performance and Uncontrollable Events.
191 All terms and conditions that are to be performed by the Parties or any of the
Parties shall be performed at the sole expense of the Party so obligated, and if any other
Party pays any sum of money or does any act that requires the payment of money by
reason of the failure, neglect or refusal of the obligated Party to perform such term or
condition, the sum of money paid by the other Party shall immediately be payable to the
other Party by the Party obligated to perform.
19.2. No Party shall be considered to be in default in the performance of any
obligations under this Agreement (other than obligations of a Party to pay costs and
expenses) if failure of performance is due to an uncontrollable event. The term
"uncontrollable event" means any cause beyond the control of the Party affected,
including but not limited to flood, earthquake, storm, fire, epidemic, war, riot, civil
disturbance or disobedience, labor dispute, and action or non -action by or failure to
obtain the necessary authorizations or approvals from any governmental agency or
authority or the electorate, labor or material shortage, sabotage and restraint by court
order or public authority, that by exercise of due diligence and foresight the Party
reasonably could not have been expected to avoid and that by exercise of due diligence it
will be unable to overcome. A Party that is rendered unable to fulfill any obligation by
reason of an uncontrollable event shall exercise due diligence to remove such inability
with all reasonable dispatch.
19.3.1f any Party claims that its failure to perform was due to an uncontrollable
event, the Party shall bear the burden of proof that such activity was within the meaning
and intent of this section, if such claim is disputed by any Party to this Agreement.
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THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
20.Assignment and Binding Effect,This Agreement shall be binding upon and shall inure to
the benefit of the Parties and their respective successors and assigns; provided, however, that
nothing shall relieve any Party of any obligation under this Agreement, except upon the express
written consent of the other Parties.
21,Entire Agreement.This Agreement, including the Governance Agreement, contains the
entire agreement and understanding among the parties regarding the formation, governance and
operations of the TRWC, and supersedes and replaces all related prior negotiations, agreements
and proposed agreements, written or oral.Each Party acknowledges that no other Party, nor any
agent or attorney of any Party, has made any promise, representation, or warranty whatsoever,
expressed or implied, not contained in this Agreement and acknowledges that this Agreement has
not been executed in reliance on any promise, representation or warranty not contained in this
Agreement. This Agreement shall not be amended, modified or supplemented at any time unless
in writing.
22.Governing Law.This Agreement shall be governed by and construed in accordance with
the laws of the State of Arizona applicable to contracts executed and intended to be performed
entirely within the State of Arizona by residents of the State of Arizona. Any action at law, suit
in equity or judicial proceeding for the enforcement of this Agreement or any provision therefore
shall be instituted only in the courts of Maricopa County, Arizona.
23.Severabilitv.If any provision of this Agreement is declared void or unenforceable by a
court of competent jurisdiction,the provision shall be severed from this Agreement, which shall
otherwise remain in full force and effect if the remaining provisions permit the Parties to obtain
the practical benefits of the Network.If any law or court of competent jurisdiction prohibits or
excuses any Party from undertaking any contractual commitment to perform any act under this
Agreement, this Agreement shall remain in full force and effect, but the provisions requiring
such action shall be deemed to permit the Party to tak.e such action at its discretion, if such a
construction is permitted by law.This section shall not limit the discretion of the Parties to
suspend a Pany's right to vote and participate in the affairs of the TRWC as provided in section
8, entitled Failure To Pay Financial Obligation.
24,Headings.Section headings are inserted in this Agreement solely for convenience and the
section headings shall not by themselves alter, modify, limit, expand or otherwise affect the
meaning of any provision of this Agreement.
25.Counterparts.This Agreement may be signed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
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TFIE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized officers.
CITY OF MESA
By
Chris Brady, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the City of Mesa
City Attorney
CITY OF APACHE JUNCTION
By
ATTEST:
City Clerk
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the City of Apache Junction
City Attorney
1
TRWC 1GA FINAL
, City Manager
INTERGOVERNMENTAL AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
TOWN OF GILBERT
By
ATTEST:
Town Clerk
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the Town of Gilbert
Town Attorney
, Town Manager
[INSERT SIGNATURE BLOCKS FOR OTHER PARTIES HERE]
13
TRWC IGA FINAL
Two -Way Radio Equipment Maintenance Agreement
between
The City of Mesa and Customer
This Agreement ("Agreement") is made and entered into this day of 20 ("Effective
Date") by and between the City of Mesa (MESA) and ("CUSTOMER").
Article 1. Effective Date, Term and Termination
1.1 Term.The term of this Agreement shall begin on the Effective Date and shall continue until terminated
or cancelled pursuant to the provisions of this Agreement.
1.2 Voluntary Termination on Notice.Either CUSTOMER or MESA may terminate this Agreement by
providing sixty (60) days written notice to the non -terminating party of its intention to terminate.Such
termination shall be effective sixty (60) days after the date the termination notice is issued.
1.3 Termination for Cause.MESA may terminate this Agreement if CUSTOMER fails to timely make
any payment under this Agreement and such nonpayment continues for more than ten (10) days after
MESA providing written notice to CUSTOMER of such non-payment.
1.4 cancellation. This Agreement may be canceled pursuant to Section 38-511, Arizona Revised Statutes.
13 Priority of Agreement This Agreement supersedes and replaces any previous agreement entered into
by the Parties for the maintenance of CUSTOMER radio equipment by MESA.Upon execution of this
Agreement, such prior ageement(s) shall be of no force and effect except for any payment obligations
remaining to be paid to MESA under such prior agreement(s).
Article 2. Maintenance Costs and Conditions
2.1 MESA radio technicians shall perform Maintenance services and repairs to. CUSTOMER's radio
equipment that operates on the TOPAZ Regional Wireless Cooperative ("TRWC") Network or any
MESA communications systems at the rate of S75.00 per technician hour. plus costs for parts. This rate
may be subject to change over time as labor costs chance.Advanced notice of one hundred eighty
(180) days will be provided when labor rates are expected to change.
2.2 CUSTOMER may deliver to MESA'S Communications Division warehouse all eligible radio
equipment •uninstalled from any vehicle from which it operates.Subject to prior arrangement with
MESA, CUSTOMER also may bring to MESA the vehicles containing the radio equipment for repair.
2.3 CUSTOMER is required to request and pay for all radio manufacturer warranty service.Radios sent
by MESA to manufacturer's repair service for warranty covered services and/or depot repair service
must be done pursuant to CUSTOMER's written request and CUSTOMER must pay for all shipping
and estimated costs not covered by the manufacturer.
2.4 MESA is not responsible for repair of equipment that has been damaged due to physical. liquid, and/or
chemical damage. accident.s,physical abuse or misuse, force majeure, and tires. CUSTOMER shall be
required to pay MESA for all service costs for evaluating whether such equipment is capable of repair.
2.5 Minimum billing time for service is one hour, including any service that may be less than one hour to
perform.
2.6 Until changed by MESA, services under this Agreement shall be performed during the work hours of
7:00 AM to 3:30 PM, Monday through Friday, excluding MESA holidays.
2.7 On or before the 106 day of each month. CUSTOMER shall pay to MESA any amount due from the
pmvious month's billing.After the 100 cley of each month,a five dollar ($5) per day late fee will be
added to such payment until payment is received or agreement is terminated.In addition, MESA shall
he entitled to interest at the annual rate of 12% for any payments not timely made under this
Agreement
Article 3. Request For Service
3.1 CUSTOMER must complete a Request for Service form for each piece of radio equipment for which
service is desired.
3.2 CUSTOMER must bring radio equipment along with the completed Request for Service form to the
MESA Communications Division warehouse, at 161 East 60 Place, to receive service on that piece of
equipment. The serial number for the piece of equipment must be on the Request for Service form.
1.3 A MESA radio technician will perform a performance check on the piece of radio equipment to
determine the required services.
3.4 All accessory items brought in for repair without the radio equipment with which it is used must
reference the serial number of the radio equipment on the Request for Service form.
Article 4. Services
4.1 A MESA radio technician will service CUSTOMER's radio equipment at levels set forth in the
manufacturer's product manuals,
4.2 Radio eguipment that is determined to need service tinder the manufacturer's warranty service will be
sent to the manufacturer's depot service by MESA, at the CUSTOMER's or manufacturer's expense.
as determined by the warranty service, plan the CUSTOMER has with the manufacturer.
4,3 The manufacturer's parts. new or warranted as new, or parts of equal quality will be used by MESA for
all repair services required that are not covered by the manufacturer's warranty with the CUSTOMER.
Cost for these parts will be in addition to the hourly service fee..
4.4 The radio equipment will be tested and serviced by ESA's radio technician to return such equipment
to the specifications set forth in the manufacturer's product manuals.
4.5 Routine service procedures, as updated by the manufacturer for its products, will be followed.
4.6 The CUSTOMER's radio equipment mill be reprogrammed with the CUSTOMER's template, as
provided by the CUSTOMER, after MESA services the radio equipment.
4.7 The CUSTOMER may brine radio equipment for operating template changes or flash upgrades (as
provided by the manufacturer).This service will be available at the hourly rate charge for service fees.
4.8 MESA. warrants its service will be free of defects in materials and workmanship for ninety (90)days
following the completion of each repair.CUSTOMER'S sole remedy is to require MESA to re-
perform the affected service.This wananty will apply only with respect to products which have not
been abused. misused, neglected, improperly installed, repaired, altered or damned including being
operated or maintained not in conformance with manufacturer's instructions or specifications.
4.9 Each piece of radio equipment Will be adjusted to operate within the terms of FCC license
authorization and the manufacturer's specifications by MESA 's radio technicians.
4.10This Agreement does not cover services for the installation and removal of radio equipment or services
for sirens. light bars. antennas. wigwags. and other equipment that is mounted or installed on vehicles
of the CUSTOMER.
Article S. Miscellaneous
5.1 The CUSTOMER shall have the responsibility of budgeting for and funding its participation in this
Agreement_
5.2 MESA is not responsible for any damages or loss to the CUSTOMER's radio equipment while in the
possession of MESA for services.
5.3 MESA may assign its right to receive payment under this Contract.
5.4 In the event that any term or provision of the Agreement is held to be invalid or unenforceable, the
validity of the other provisions shall not be affected, and the Aereement shall be construed and
enforced as if it did not contain the particular term or provision that is deemed to be invalid or
unenforceable.
5.5 The waiver by any Party of any breach of any term, covenant or condition of this Agreement shall not
be deemed a waiver of such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition of this Agreement.
5.6 Any notice, consent or other communications ("Notice") required or permitted under this Agreement
shall be in writing and either delivered in person, or, deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested, or deposited with any commercial air
courier or express service addressed with confirmed receipt as follows:
MESA:City Manaeer
Address:P 0 Box 1466
Mesa, AZ 85211-1466
Telephone:480-644-3333
FAX:
CUSTOMER:Manager
Address:
Telephone:
Notices shall be deemed received at the time it is personally served, on the day received as confirmed
by any commercial air courier or express services, or if mailed, upon the date that registered or
certified mail confirms that it was delivered.Any time period stated in a Notice shall be computed
from the time the Notice is deemed received.Either Party may change its mailing address or the
person to receive Notice by notifr,ing the other Party as provided in this paragraph.
5.7 No term or provision of this Agreement is intended to be. nor shall be, for the benefit of any person
not a Party to this Agreement. and no such person shall have any right or cause of action hereunder.
5.8 The Parties agree that a waiver of any provision of this Agreement shall not act as a waiver of any
other provision of this Agreement.If a provision of this Agreement is for any reason declared invalid.
illegal or unenforceable, that declaration shall not affect the remaining provisions of this Agreement.
5.9 MESA DISCLAIMER OF WARRANTIES.CUSTOMER ACKNOWLEDGES AND AGREES
THAT MESA DOES NOT REPRESENT OR WARRANT:THAT THE CUSTOMER RADIO
EQUIPMENT OR TRWC SYSTEM MAY NOT BE COMPROMISED OR CIRCUMVENTED: OR
THAT THE CUSTOMER RADIO EQUIPMENT OR TRWC SYSTEM WILL OPERATE ERROR-
FREE. FREE OF ANY SECURITY DEFECTS OR IN UNINTERRUPTED MATTER: OR THAT
THE CUSTOMER RADIO EQUIPMENT OR TRWC SYSTEM OR SERVICE PROVIDED WILL
PREVENT ANY LOSS BY BURGLARY. HOLDUP. FIRE OR OTHERWISE: OR THAT THE
CUSTOMER RADIO EQUIPMENT OR OTHER EQUIPMENT OR SERVICES PROVIDED OR
3
THE TRWC SYSTEM WILL IN ALL CASES PROVIDE THE COMMUNICATIONS FOR WHICH
THEY ARE INTENDED. CUSTOMER DISCLAIMS ALL WARRANTIES WHETHER WRITTEN,
ORAL,IMPLIED OR STATUTORY,APPLICABLE OR RELATING TO THE CUSTOMER
RADIO EQUIPMENT, SUPPLIES, MAINTENANCE OF THE CUSTOMER RADIO EQUIPMENT,
OR OTHER OR ITEMS PROVIDED UNDER THE AGREEMENT BY MESA, INCLUDING BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.CUSTOMER ALSO HEREBY WAIVES ANY RIGHTS AND
REMEDIES TO MAKE A CLAIM INCLUDING, WITHOUT LIMITATION, ANY GENERAL,
SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES,FOR ANY REASON
WHATSOEVER, BASED ON THE OPERATION AND MAINTENANCE OF THE CUSTOMER
RADIO EQUIPMENT OR THE TRWC SYSTEM BY MESA. ALL EQUIPMENT AND SERVICES
PROVIDED PURSUANT TO THIS AGREEMENT IS ON AN "AS -1S"BASIS WITH ALL
FAULTS.CUSTOMER FURTHER ACKNOWLEDGES AND AGREES;THAT ANY
AFFIRMATION OF FACT OR PROMISE SHALL NOT BE DEEMED TO CREATE AND
EXPRESS WARRANTY,AND THAT THERE ARE NO WARRANTIES WHICH EXTEND
BEYOND THE FACE OF THE AGREEMENT HEREOF.CUSTOMER FURTHER
ACKOWLEDGES AND AGREES: THAT MESA IS NOT AN INSURER AND THAT CUSTOMER
ASSUMES ALL RISK OF LOSS OR DAMAGE RESULTING FROM A FAILURE OF THE
CUSTOMER RADIO EQUIPMENT, THE TRWC SYSTEM OR THE SERVICES PROVIDED
UNDER THIS AGREEMENT.
5:10 This Agreement shall be governed by the law of Arizona.The forum selected for any proceeding or
suit in law or equity arising from or incident to this Agreement shall be Maricopa County, Arizona.
5.11 If any provision of this Agreement is declared void or unenforceable by a court of competent
jurisdiction, the provision shall be severed from this Agreement, which shall otherwise remain in full
force and effect if the remaining provisions permit the Parties to obtain the practical benefits of this
Agreement.If any law or court of competent jurisdiction prohibits or excuses any Parry from
undertaking any contractual commitment to perform any act under this Agreement, this Agreement
shall remain in full force and effect, but the provisions requiring such action shall be deemed to permit
the Party to take such action at its discretion, if such a construction is permitted by law.
5.12 This Agreement may be signed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
5.13 This Agreement constitutes the entire agreement between CUSTOMER and MESA with respect to the
subject matter hereof and supercedes all other oral and written representation.understandings or
agreemems relating to the subject matter hereof.This Agreement may be amended only in writing
signed by both of the Parties.
4
TN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly
authorized officers and agents on the day and year written below.
CITY OF MESA CUSTOMER AGENCY
By:By....._____
Name:Name:
Title:Title:
Date:Date:
ATTEST:ATTEST:
City o f MESA
ATTORNEY:
City of MESA
CUSTOMER AGENCY
ATTORNEY:
INTERGOVERNMENTAL AGREEMENT
between
THE CITY OF MESA AND THE USER
relating to
FIRE DISPATCH SERVICES PROVIDED BY THE CITY OF MESA
This Intergovernmental Agreement ("Agreement") is made and entered into this
day of ,20 by and between the City of Mesa,an Arizona municipal
corporation ("MESA")and ,an Arizona municipal corporation ("USER")
(collectively referred to as "the Parties").
RECITALS:
WHEREAS, MESA and USER have the power to execute intergovernmental agreements
pursuant to A .R.S. §§11-951, 11-952, and 15-342; and
WHEREAS, MESA has the power to enter into intergovernmental agreements pursuant
to Section 103 of the MESA City Charter; and
WHEREAS, USER has the power to enter into intergovernmental agreements pursuant to
A.R.S. § 48-805(b)(7); and
WHEREAS,MESA and USER desire to enter into an intergovernmental agreement
relating to fire dispatch services.
AGREEMENT:
NOW, THEREFORE, it. is agreed, by and between the Parties as follows:
Article 1. Term, Termination, Effective Date
1.1 Effective Date.This Agreement shall be effective upon its filing with the Secretary of
State. as provided in Section 5.13(b) of this Agreement ("Effective Date).
1.2 Term.The term of this Agreement shall begin on the Effective Date and shall continue
until terminated or cancelled pursuant to the provisions of this Agreement.
1.3 Termination on Notice.Either USER. or MESA may terminate this Agreement by
providing one hundred eighty (180) days' written notice to the non -terminating party of
its intention to terminate.Such termination shall be effective one hundred eighty (180)
days after the date the termination notice is issued.
1.4 Termination for Cause.In the event of a material breach of any of the provisions of this
Agreement, the non -defaulting Party may terminate this Agreement by delivering written
notice to the defaulting Party specifically setting forth the nature of the breach.Upon
being served with such notice, the defaulting Party shall have sixty (60) days from the
date of the notice in which to cure said breach.If said breach has not been cured within
this sixty (60) day time period, this Agreement shall be deemed terminated.
1.5 Disposition of Property.
(a)In the event of expiration,cancellation or any other termination of this
Agreement, any and all equipment or other materials purchased for joint use and
paid for by one or both of the parties shall remain as part of the Computer Aided
Dispatch ("CAD") system and no reimbursement for such equipment or material
shall be made.
(b)In the event of expiration,cancellation,or any other termination of this
Agreement, Mobile Dispatch Equipment (as defined herein)purchased by USER
shall belong to USER, whether such equipment is in the possession of MESA or
the possession of USER.
1.6 Disconnection Fee.In the event that USER terminates this Agreement,or this
Agreement is terminated as a result of USER's material breach, USER shall pay to
MESA all reasonable costs associated with USER's disconnection, including without
limitation MESA's administrative costs.
Article 2. Dispatch Services
•2.1 Dispatch Policies, Procedures. Specifications.MESA shall dispatch USER fire units in
accordance with the policies, procedures and specifications, as the same may be issued
and/or amended by Mesa Public Safety Communications, and in accordance with CAD
data specifications implemented on MESA's CAD system ("CAD data specifications").
USER agrees to adhere to said policies, procedures and specifications.USER also agrees
to provide appropriate representation to ad hoc dispatch functional meetings scheduled by
MESA.
2.2 Public Safety Communications Chankes.
(a)Dispatch Service Changes.If USER desires changes to be made to MESA
dispatch services, USER shall request these changes in writing to MESA.To be
implemented, all changes must have the mutual consent of all governmental units
impacted by the requested changes and serviced by MESA's dispatch system.
Such changes, if consented to and approved, shall be implemented as amendments
to the Public Safety Communications policies and procedures.The costs of
implementing all changes shall be determined as provided in Section 4.2(g) of this
Agreement.
2
(b)CAD Systems Changes.As long as a valid software maintenance agreement
exists between MESA and its CAD vendor, any changes to the CAD system
source code must be authorized and implemented by the CAD vendor. To be
implemented, all changes must have the mutual consent of all governments units
impacted by the requested changes and serviced by MESA's CAD system.Such
changes, if duly consented to and approved, shall be implemented as amendments
to the CAD data specifications set forth in Exhibit A, which is incorporated herein
by this reference.The costs of implementing all changes shall be determined as
provided in Section 4.2(g) of this Agreement.
2.3 Geographical Information.
(a)USER shall provide MESA with geographic information within USER's
jurisdiction, as specified under Data Elements in the Geographical Information
Specifications, Exhibit B, which is incorporated herein by this reference.USER
shall provide all geographic information identified as required.USER may
provide any optional layers of geographic data as defined in Exhibit B, with
MESA's prior approval.
(b)USER shall periodically, to be determined by mutual agreement, provide MESA
with its current geographical information that conforms to the CAD data
specifications.MESA shall load such current geographical information onto
MESA's CAD system.MESA disclaims all liability and USER holds MESA
harmless from any errors in the geographical information provided by USER.
USER shall be responsible for adhering to MESA procedures for submission and
correction of geographical information.
(c)MESA shall notify USER with CAD geographical information data updates for
the mobile mapping system, (installed on USER Mobile Computer Terminals) on
a periodic basis to be mutually agreed upon between USER and MESA.
2.4 Emergency 911 Databases.
(a)USER shall be responsible for the maintenance of all applicable Emergency 911
("E911") databases supplied by USER to MESA (e.g., Master Sireet Address
Guide ("MSAG"),and Automatic Number Identifications and Automatic
Location Identification ("ANIJALI") databases).
(b)USER shall ensure that Public Safety Answering Point(s) ("PSAPs") continue to
provide the ability for a one button transfer of E911 phone calls,including
ANI/ALI.
(c)USER shall provide all necessary ringdown lines between MESA's dispatch
center and USER' s PSAP(s).
3
2.5 Use of Dispatch Systems.
(a)USER shall follow radio operation guidelines and procedures as defined in
MESA's Fire Department standard operating guidelines,as well as MESA's
Public Safety Communications procedure manual, unless other guidelines and
procedures are mutually agreed upon.
(b)MESA will allow USER access to MESA's Automatic Vehicle Location ("AVL")
feature.
(c)MESA will allow USER access to MESA's Computer Aided Dispatch ("CAD")
System.
2.6 Requests to Expand Dispatch Services.Requests to expand or enhance the CAD system
functionality, voice, AVL or mobile data communication, or to provide interconnection to
future USER fire stations or administrative sites, shall be submitted to MESA in writing.
MESA shall determine the feasibility of the request and provide USER with a
recommendation for the expansion or enhancement.If the request is deemed acceptable,
MESA will provide an estimate of costs to provide such expansion or enhancement.
Equipment, installation, and engineering costs for such expansion or enhancement shall
be paid by USER.
Article 3.USER Equipment
3.1 Equipment to be Purchased.USER shall purchase and maintain the items necessary to
effectively participate in MESA's Fire Dispatch Services systems,including the
communications and record keeping aspects of such systems.The minimum equipment
requirements for such participation are listed on Exhibit C, which is incorporated in this
Agreement by this reference.
Mobile Dispatch Equipment.Maintenance Services.At MESA 's absolute and sole
discretion. MESA, if requested by USER, may maintain the equipment used by USER in
the Fire Dispatch Service systems.Conditions and the rate for providing such repair
services shall be those as set by MESA for the repair of radio subscriber equipment in
their "Two -Way Radio Equipment Maintenance Agreement between the City of Mesa
and Other User Agencies."
Article 4.Costs and Fees
4.1 Dispatch Services.USER agrees to pay MESA a set fee for each dispatched call.This
fee shall be established by the MESA's Public Safety Communications or other
applicable departments and is subject to revision on an annual basis in accordance with
the procedure set forth in Section 4.4 of this Agreement.
4
4.2 USER Participation Costs.
(a)USER shall be responsible for any costs associated with the preparation of its
sites and vehicles, and for the installation of required dispatch services hardware.
(b)USER shall pay all costs for any ner•Pssary communication facilities between
MESA and each interconnected USER site (fire station, administrative offices,
transmitting or receiving locations) and any connecting devices required solely for
USER participation. The parties acknowledge that any costs for services provided
by a utility shall be billed to USER by the utility providing such service and that
USER shall pay such costs directly to such utility.
(c)USER shall reimburse MESA for all costs incurred solely to supply USER with
access to the MESA Fire Dispatch Services System.
(d)USER shall reimburse MESA, or MESA's designated contractor. for all expenses
required to correct any dispatch service problems that are directly attributed to the
use of USER's geographic information, which cannot be remedied by correcting
and reloading USER's geographic information.
(e)USER shall be responsible for all replacement costs for equipment USER
purchased to participate in MESA's CAD system.
(t)In the event that USER requests that MESA install Mobile Dispatch Equipment to
its existing apparatus/vehicles, USER agrees to pay to MESA the costs of such
installation.
(g)All analysis, design,engineering,and programming requested by USER and
agreed to by MESA shall be performed at the hourly labor rate established by the
MESA Communications' or other applicable departments plus mileage at IRS
Standard mileage rates or at the quoted vendor rate, if the work is not performed
by MESA personnel.If only USER requests such services,USER shall pay the
total cost of the services.If other governmental units participating in the MESA
dispatch services request such services, the total cost shall be prorated among all
the governmental units requesting the services, based on the number of dispatched
calls that each governmental unit made in the previous calendar year.
4.3 Maintenance Services for Other Equipment, Costs.
(a)Maintenance services for record terminals, mapping terminals, network devices,
or network connectivity used in conjunction with this Agreement may, at MESA's
sole and absolute discretion, be performed by MESA, when requested by USER.
Costs for this service will be billed to USER at the hourly labor rate established
by MESA plus mileage at IRS Standard mileage rates or at the quoted vendor
rate, if the work is not performed by MESA personnel.
4.4 Update of Maintenance Service Fees.MESA reserves the right to review the cost and fee
structure, set out in Sections 4.1 though 4.3 of this Agreement on an annual basis and
increase or decrease such fees based on the actual costs incurred by MESA in performing
such services.Any increase or decrease in fees shall become effective ninety (90)
calendar days after notification of the increase or decrease is given to USER.MESA
shall notify USER of any increase or decrease in fees by no later than April 1 of the
calendar year to allow USER to include such increase or decrease in USER's next annual
budget.
Article 5. Miscellaneous
5.1 Funding.Each Party to this Agreement shall have the separate and independent
responsibility of budgeting for and funding its own participation in the joint Fire Dispatch
services and its obligations under this Agreement.
5.2 USER. Responsibility and Indemnification.
(a)USER shall defend, hold harmless and indemnify MESA and its agents and
employees from and against all claims, damages, losses and expenses (including
reasonable attorneys'fces)that arises from any negligent act or omission of
USER in its performance under this Agreement.
(b)Without limiting the generality of Section 5.2(a),USER shall defend,hold
harmless and indemnify MESA and its agents and employees from and against all
claims, damages, losses and expenses (including reasonable attorneys'fees) that
arises from any of the following:
(i)USER's use of hardware or software:
(ii)USER's alterations of CAD system hardware, software or configuration
settines;
(iii)USER submission of erroneous data;
(iv)Failure of USER to submit appropriate data; or
(v)Failure of USER to properly provide and maintain the hardware and
software required to support the MESA dispatch function.
(c)USER agrees to accept all legal responsibilities directly or indirectly associated
with the accuracy and completeness of the geographical information provided to
MESA by USER.Nothing set forth in this Section 5.2(c), relieves USER of the
obligations set forth in Sections 5.2(a) and (b) above.
6
5.3 Notices.All notices or demands upon either Party to this Agreement shall be in writing
and shall be delivered in person or sent by regular mail as follows:
MESA:
USER:
City Manager
City of Mesa
Box 1466
Mesa, Arizona 85211-1466
5.4 Governing Law.This Agreement shall be governed by the law of Arizona.The forum
selected for any proceeding or suit in law or equity arising from or incident to this
Agreement shall be Maricopa County, Arizona.
5.5 Divisibility of Contract.If any term, covenant, condition or provision of this Agreement
is held to be invalid, void or unenforceable, the remainder of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or invalidated.
5.6 Non -Waiver of Rights.No term or provision of this Agreement shall be deemed to be
waived and no breach excused unless such waiver or consent is in writing and signed by
the Party claimed to have waived or consented.The Parties wee that no waiver of any
default or breach of any of the terms or conditions of this Agreement shall be construed
to be a waiver of any succeeding breach or default.
5.7 Entire Aereement.This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter hereof and shall not be changed or added to except in
writing signed by both Parries.All prior and contemporaneous agreements,
representations and understandings of the Parties, oral or written, pertaining to the subject
matter hereof are hereby superseded and merged herein.
5.8 No Joint Venture, No Agency.
(a)Nothing contained in this Agreement shall create any partnership, joint venture or
other arrangement between the Parties.
(b)Each Party shall at all times be an independent operator and shall not at any time
purport to act as an agent of the other Party, or any of its officers or agents.
5.9 No Third Party Beneficiary.No term or provision of this Agreement is intended to nor
shall be for the benefit of any person not a Party to this Agreement, and no such other
person shall have any right or cause of action hereunder.
7
5.10 No kisignment.This Agreement shall not be assigned, in whole or in part, without fill:
prior written consent of the other Party, made in that Party's sole discretion.Any
assignment made without such consent shall be void.
5.11 Non Discrimination.The Parties agree to comply with all applicable state and federal
laws, rules, regulations, and executive orders governing equal ,employment opportunity,
immigration,nondiscrimination,including the Americans with Disabilities Act,and
affirmative action.
5.12 MESA DISCLAIMER OF WARRANTIES. USER ACKNOWLEDGES AND AGREES
THAT MESA DOES NOT REPRESENT OR WARRANT:THAT MESA'S FIRE
DISPATCH SERVICES SYSTEMS OR EQUIPMENT MAY NOT BE
COMPROMISED OR CIRCUMVENTED;OR THAT MESA'S FIRE DISPATCH
SERVICES SYSTEMS WILL OPERATE ERROR FREE, FREE OF ANY SECURITY
DEFECTS OR IN UNINTERRUPTED MATTER;OR THAT MESA'S FIRE
DISPATCH SERVICES SYSTEMS OR SERVICE PROVIDED WILL PREVENT ANY
LOSS BY FIRE, HOLDUP, OR OTHERWISE: OR THAT MESA'S FIRE DISPATCH
SERVICES SYSTEMS OR EQUIPMENT OR SERVICES PROVIDED WILL IN ALL
CASES PROVIDE THE COMMUNICATIONS FOR WHICH THEY ARE INTENDED.
USER DISCLAIMS ALL WARRANTIES WHETHER WRITTEN, ORAL, IMPLIED
OR STATUTORY,APPLICABLE OR RELATING TO THE EQUIPMENT,
SUPPLIES,MAINTENANCE OF THE EQUIPMENT,OR OTHER OR ITEMS
PROVIDED UNDER THE AGREEMENT BY MESA,INCLUDING BUT NOT
LIMITED TO,THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.USER ALSO HEREBY WAIVES ANY
RIGHTS AND REMEDIES TO MAKE A CLAIM INCLUDING,WITHOUT
LIMITATION, ANY GENERAL, SPECIAL,INCIDENTAL OR CONSEQUENTIAL
DAMAGES, FOR ANY REASON WHATSOEVER, BASED ON THE OPERATION
AND MAINTENANCE OF MESA'S FIRE DISPATCH SERVICES SYSTEMS BY
MESA.ALL EQUIPMENT AND SERVICES PROVIDED PURSUANT TO THIS
AGREEMENT IS ON AN "AS -IS" BASIS WITH ALL FAULTS.USER FURTHER
ACKNOWLEDGES AND AGREES;THAT ANY AFFIRMATION OF FACT OR
PROMISE SHALL NOT BE DEEMED TO CREATE AND EXPRESS WARRANTY,
AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE
FACE OF THE AGREEMENT HEREOF.USER FURTHER ACKNOWLEDGES AND
AGREES: THAT MESA IS NOT AN INSURER AND THAT USER ASSUMES ALL
RISK OF LOSS OR DAMAGE RESULTING FROM A FAILURE OF MESA'S FIRE
DISPATCH SERVICES SYSTEMS OR THE EQUIPMENT OR SERVICES
PROVIDED UNDER THIS AGREEMENT.
5.13 Conflicts of Interest.All Parties hereto acknowledge that this Agreement is subject to
cancellation by either Party, without penalty, pursuant to the provisions of A.R.S. § 38-
511.
8
5,14 Miscellaneous.
(a)Notice is provided of §§ 12-1518 and 12-133, Arizona Revised Statutes.
(b)An execui.gi copy of this Agreement shall be filed with the Office of the Secretary
of State, Mesa City Clerk, and the Clerk of USER.
(c)Attached to this Agreement are copies of appropriate action by ordinance,
resolution or otherwise authorizing the respective Parties to enter into this
Agreement.Furthermore, any individual executing this Agreement on behalf of
or as representative for the Parties to this Agreement, represents and warrants that
he/she is duly authorized to execute and deliver this Agreement on behalf of said
Party.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized officers and agents on the day and year first written above.
ATTEST:
City Clerk
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the City of Mesa
City Attorney
9
CITY OF MESA
By
Chris Brady, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the City of
City Attorney
10
CITY OF
By
, City Manager