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HomeMy WebLinkAboutCity of Mesa - Maintenance Agreement for Fountain Hills - Two Way Radio FINAL - signed{00028844.DOC /} Two- Way Radio Equipment Maintenance Agreement Between The City of Mesa and The Town of Fountain Hills This Agreement (“Agreement”) is made and entered into upon execution (“Effective Date”) by and between the City of Mesa (“MESA” or “CITY”) and the Town of Fountain Hills (“TOWN” or “CUSTOMER” or “USER”). 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. 1.5 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 Agreement(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 $100.00 per technician hour, plus costs for parts. This rate may be subject to change over time as labor costs change. 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 so 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, accidents, physical abuse or misuse, force majeure, and fires. CUSTOMER shall be required to pay MESA all service costs for evaluating any such equipment. 2.5 Minimum billing time for service is one hour, including any service which 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 Thursday, excluding MESA holidays. {00028844.DOC /} 2 2.7 On or before the 10th day of each month, USER shall pay to MESA any amount due from the previous month’s billing. After the 10th day 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 be 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 USER must complete a Request for Service form for each piece of radio equipment for which service is desired. 3.2 USER must bring radio equipment along with the completed Request for Service form to the MESA Communications Division warehouse, at 161 East 6th 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. 3.3 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 The USER’s radio equipment will be serviced by a MESA radio technician at levels set forth in the manufacturer’s product manuals. 4.2 Radio equipment that is determined to need service under the manufacturer’s warranty service will be sent to the manufacturer’s depot service by MESA, at the USER’s or manufacturer’s expense, as determined by the warranty service plan the USER 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 USER. Cost for these parts will be in addition to the hourly service fee. 4.4 The radio equipment will be tested and serviced by MESA’s radio technician to return them to the equipment 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 USER’s radio equipment will be reprogrammed with the USER’s template, as provided by the USER, after the radio equipment has been serviced. 4.7 The USER may bring 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 90 days following the completion of each repair. USER’s sole remedy is to require MESA to re-perform the affected service. This warranty will apply only with respect to products which have not been abused, misused, neglected, improperly installed, repaired, altered or damaged 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. 4.10 This Agreement does not cover services for the installation and removal of radio equipment or services for sirens, light bars, antennas, wig wags, and other equipment which is mounted or installed on vehicles of the USER. {00028844.DOC /} 3 Article 5. Miscellaneous 5.1 The USER shall have the responsibility of budgeting for and funding its participation in this Agreement. 5.2 This Agreement shall be governed by the law of Arizona. 5.3 MESA is not responsible for any damages or loss to the USER’s radio equipment while in the possession of MESA for services. 5.4 City may assign its right to receive payment under this Contract. 5.5 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 Agreement shall be construed and enforced as if it did not contain the particular term or provision that is deemed to be invalid or unenforceable. 5.6 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. 5.7 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 Manager Address: P O Box 1466 Mesa, AZ 85211-1466 Telephone: 480-644-3333 USER: Fountain Hills Fire Department Address: 16426 E. Palisades Blvd. Fountain Hills, AZ 85268 Telephone: 480 816-5280 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 notifying the other party as provided in this paragraph. 5.8 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. 5.9 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. 5.10 MESA DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT USER ACKNOWLEDGES AND AGREES THAT MESA DOES NOT REPRESENT OR WARRANT: THAT THE USER RADIO EQUIPMENT OR TRWC SYSTEM MAY NOT BE COMPROMISED OR CIRCUMVENTED; OR THAT THE USER RADIO EQUIPMENT OR TRWC SYSTEM WILL OPERATE ERROR- FREE, FREE OF ANY SECURITY DEFECTS OR IN UNINTERRUPTED MATTER; OR THAT THE USER RADIO EQUIPMENT OR TRWC SYSTEM OR SERVICE PROVIDED WILL PREVENT ANY LOSS BY BURGLARY, HOLDUP, FIRE OR {00028844.DOC /} 4 OTHERWISE: OR THAT THE USER RADIO EQUIPMENT OR OTHER EQUIPMENT OR SERVICES PROVIDED OR THE TRWC SYSTEM 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 THE USER RADIO EQUIPMENT OR THE TRWC SYSTEM BY THE CITY OF 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 ACKOWLEDGES AND AGREES: THAT MESA IS NOT AN INSURER AND THAT USER ASSUMES ALL RISK OF LOSS OR DAMAGE RESULTING FROM A FAILURE OF THE USER RADIO EQUIPMENT PRWN OR THE TRWC SYSTEM OR THE EQUIPMENT OR SERVICES PROVIDED UNDER THIS AGREEMENT. 5.11 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. 5.12 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 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 take such action at its discretion, if such a construction is permitted by law. 5.13 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. 5.14 This Agreement constitutes the entire agreement between USER and MESA with respect to the subject matter hereof and supersedes all other oral and written representation, understandings or agreements relating to the subject matter hereof. This Agreement may be amended only in writing signed by both of the parties. 5.15 Israel. Parties certify that they are not currently engaged in, and agree for the duration of this Agreement that they will not engage in a “boycott,” as that term is defined in ARIZ. REV. STAT. § 35- 393, of Israel. 5.16 China. Pursuant to and in compliance with A.R.S. § 35-394, Parties hereby agree and certify that they do not currently, and agree for the duration of this Agreement that they will not, use: (1) the forced labor of ethnic Uyghurs in the People’s Republic of China; (2) any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China; or (3) any contractors, subcontractors or suppliers that use the forced labor or any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China. Parties also hereby agree to mutually indemnify and hold harmless the their officials, employees, and agents from any claims or causes of action relating to the Parties action based upon reliance upon this representation, including the payment of all costs and attorney fees incurred by the Parties in defending such as action. {00028844.DOC /} 5 5.17 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-4401, the City and its subcontractors warrant compliance with all federal immigration laws and regulations that relate to their employees and their compliance with the E-verify requirements under ARIZ. REV. STAT. § 23- 214(A). The City or its subcontractors’ failure to comply with such warranty shall be deemed a material breach of this Agreement and may result in the termination of this Agreement by the Town. 5.18 Records and Audit Rights. To ensure that the City and its subcontractors are complying with the warranty under subsection 13.17 below, the City and its subcontractor’s books, records, correspondence, accounting procedures and practices, and any other supporting evidence relating to this Agreement, including the papers of any City and its subcontractors’ employees who perform any work or services pursuant to this Agreement (all of the foregoing hereinafter referred to as “Records”), shall be open to inspection and subject to audit and/or reproduction during normal working hours by the Town, to the extent necessary to adequately permit (A) evaluation and verification of any invoices, payments or claims based on City’s and its subcontractors’ actual costs (including direct and indirect costs and overhead allocations) incurred, or units expended directly in the performance of work under this Agreement and (B) evaluation of the City’s and its subcontractors’ compliance with the Arizona employer sanctions laws referenced in subsection 13.17 below. To the extent necessary for the Town to audit Records as set forth in this subsection, Consultant and its subcontractors hereby waive any rights to keep such Records confidential. For the purpose of evaluating or verifying such actual or claimed costs or units expended, the Town shall have access to said Records, even if located at its subcontractors’ facilities, from the effective date of this Agreement for the duration of the work and until three years after the date of final payment by the Town to City pursuant to this Agreement. Consultant and its subcontractors shall provide the Town with adequate and appropriate workspace so that the Town can conduct audits in compliance with the provisions of this subsection. The Town shall give City or its subcontractors reasonable advance notice of intended audits. Cityshall require its subcontractors to comply with the provisions of this subsection by insertion of the requirements hereof in any subcontract pursuant to this Agreement. 5.19 Conflict of Interest. This Agreement is subject to the provisions of ARIZ. REV. STAT. § 38-511. The Town may cancel this Agreement without penalty or further obligations by the Town or any of its departments or agencies if any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the Town or any of its departments or agencies is, at any time while this Agreement or any extension of this Agreement is in effect, an employee of any other party to this Agreement in any capacity or a Consultant to any other party of this Agreement with respect to the subject matter of this Agreement. 5.20 Agreement Subject to Appropriation. This Agreement is subject to the provisions of ARIZ. CONST. ART. IX, § 5 and ARIZ. REV. STAT. § 42-17106. The provisions of this Agreement for payment of funds by the Town shall be effective when funds are appropriated for purposes of this Agreement and are actually available for payment. The Town shall be the sole judge and authority in determining the availability of funds under this Agreement and the Town shall keep the Consultant fully informed as to the availability of funds for this Agreement. The obligation of the Town to make any payment pursuant to this Agreement is a current expense of the Town, payable exclusively from such annual appropriations, and is not a general obligation or indebtedness of the Town. If the Town Council fails to appropriate money sufficient to pay the amounts as set forth in this Agreement during any immediately succeeding fiscal year, this Agreement shall terminate at the end of then-current fiscal year and the Town and the Consultant shall be relieved of any subsequent obligation under this Agreement. 5.21 To the extent permitted by law, each Party does hereby covenant and agree to indemnify, defend, and hold harmless the other Party, their elected officials, appointees, officers, employees, contractees, and agents from and against any and all suits, actions, legal or administrative proceedings, claims, demands or damages of any kind or nature relating to this Agreement which, are the result of any act or omission of the Party, its officers, employees, contractees, agents, and anyone acting under its direction or control, whether intentional or negligent, in connection with or incident to this Agreement. {00028844.DOC /} 6 Failure of a Party to comply with the terms of this Agreement shall not provide the basis of any third party action against any of the Parties.” IN 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 USER AGENCY By: City of Mesa By: Town of Fountain Hills Name:___________________________________ Name: Title:____________________________________ Title: Date:____________________________________ Date:___________________________________ ATTEST: ATTEST: ________________________________________ _______________________________________ City of MESA USER Agency ATTORNEY: ATTORNEY: ________________________________________ _______________________________________ City of MESA Town of FOUNTAIN HILLS Aaron D. Arnson (Nov 27, 2023 14:35 MST) Aaron D. Arnson Rachael Goodwin (Nov 28, 2023 07:42 MST) Rachael Goodwin Town Manager 11/28/2023