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HomeMy WebLinkAboutRes 2008-45RESOLUTION NO. 2008-45 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH THE CITY OF MESA M ITS CAPACITY AS ADMINISTRATIVE MANAGER FOR TOPAZ REGIONAL WIRELESS COOPERATIVE,. RELATING TO COMMUNICATIONS AND OPERATIONS AMONG PARTICIPATING PUBLIC SAFETY AND SERVICE ENTITIES. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. That the Intergovernmental Agreement between the Town of Fountain Hills and the City of Mesa in its capacity as Administrative Manager for TOPAZ Regional Wireless Cooperative, relating to communications and operations among participating public safety and service entities (the "Agreement'), is hereby approved in substantially the form attached hereto as Exhibit A and incorporated herein by this reference. SECTION 2. That the Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to cause the execution of the Agreement and to take all steps necessary and execute other related documents to carry out the purpose and intent of this Resolution. PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills, December 18, 2008. FOR THE TOWN OF FOUNTAIN HILLS: 1 T. chlum, Mayor REVIEWED BY: '44 101k& Richard L. Davis, own Manager 926353.1 ATTESTED TO: APP VED AS TO FORM: Andrew I . McGuire, Town Attomey EXHIBIT A TO RESOLUTION NO. 2008-45 [Intergovernmental Agreement] See following pages. 926353.1 When recorded, please return to: I I Town of Fountain Hills I 16705 E. Avenue of the Fountains I Fountain Hills, AZ 85268 I I Attn: Planning & Zoning Department I I CAPTION HEADING: 11111111111111111111111111111111111 Ills OFFICIAL RECORDS OF MARICOPA COUNTY RECORDER HELEN PURCELL 2009 - 0027267 01/13/09 01:20 PM 8OF8 xory RESOLUTION NO. 2008-45 The Town of Fountain Hills, Arizona Approving an Intergovernmental Agreement with the City of Mesa in its Capacity as Administrative Manager for Topaz Regional Wireless Cooperative, Relating to Communications and Operations among Participating Public Safety and Service Entities. This is part of the official document. Copies Routed To: ❑ Administration ❑ Public Works ❑ Planning and Zoning ❑ CAD ❑ File 13 Other rol� Z l c• 9���har is AY�tio� ASSOCIATED MYLAR MCR # BOOK OF MAPS ON PAGE COVERAGE /CAPACITY STUDY AGREEMENT This Agreement ( "Agreement ") is made and entered into this 1844' day of December, 2008 ( "Effective Date ") by and between the City of Mesa, an Arizona municipal corporation in it capacity as the TOPAZ Regional Wireless Cooperative Network's ( "TRWC ") Administrative Manager ("FRWC Administrative Manager ") and the Town of Fountain Hills, an Arizona municipal corporation ( "Applicant ") (collectively referred to as "the parties "). RECITALS: WHEREAS, Applicants desires to be considered for Membership into the TRWC; and WHEREAS, the TRWC is required to study Applicant's potential impact on existing and future TRWC Network operations and capacity before considering Applicant for TRWC Membership; and WHEREAS, the TRWC Administrative Manager and Applicant enter into this Agreement to initiate TRWC's evaluation and study of Applicant's potential impact on the TRWC Network operations and capacity. AGREEMENT: NOW, THEREFORE, it is agreed by and between the parties as follows 1.1 Purpose of Study. The TRWC Administrative Manager shall hire from the TRWC's list of authorized vendors an entity to study (the "Study ") the existing TRWC Network Radio Frequency ( "RF'), Network Grade of Service ( "GOS ") and Interoperability Capacity and Coverage, and the Applicant's potential impact on such capacity and coverage by adding Applicant to the TRWC Network. The Study also may examine other factors resulting from Applicant's joining the TRWC Network including, without limitation, the need for additional infrastructure, costs impacts, operational impacts, roaming impacts, and other factors as determined by the TRWC and the TRWC Administrative Manager. 1.2 Payment. Upon execution of this Agreement, Applicant shall pay to the Administrative Manager the sum of $15,000.00. Applicant shall also be responsible for paying any additional sums that refer or relate to the Study, including, the applicable fees for the TRWC's Administrative Manager and Executive Director related to the Study, the fees owed any outside consultants /vendors, and all other costs incurred by the TRWC that refer or relate to the Study. This Paragraph 1.2 shall survive the termination of this Agreement. 1.3 Applicant Information. Within ten (10) days after the execution of this Agreement, Applicant shall provide to the Administrative Manager the information identified in the Coverage /Study Agreement Checklist attached hereto as Exhibit A. 1.4 Termination. In the event of any breach of this Agreement by Applicant, which breach shall continue for more than five (5) days after receiving written notice from the Administrative Manager of such breach, this Agreement shall be terminated and the Administrative Manager shall be entitled to recover against Applicant all costs incurred under this Agreement through the date of termination, including without limitation all administrative costs, outside consultant costs, attorneys' fees and all other reasonable costs. Upon such termination, the Administrative Manager shall have no further obligations to Applicant. 1.5 Cancellation. This Agreement may be cancelled pursuant to § 38 -511, Arizona Revised Statutes. 1.6 No Representation regarding Membership. The TRWC makes not representation, warranty or guarantee to Applicant of any future membership in the TRWC. The determination of whether or not to admit Applicant as a TRWC Member is solely made by the TRWC's Board of Directors in their sole and absolute discretion. 1.7 Indemnity. Applicant shall indemnify, defend and hold the Administrative Manager and the TRWC harmless from and against all claims, damages, losses, and expenses (including reasonable attorneys' fees) based on Applicant's breach of this Agreement or negligent acts or omissions in its performance under this Agreement. 1.8 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: City Manager City of Mesa Box 1466 Mesa, Arizona 85211 -1466 APPLICANT: 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. A Party may change its mailing address or the person to receive Notice by notifying the other Party as provided in this paragraph. 1.9 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. 2 1.10 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. 1.11 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 agree 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. 1.12 Entire Agreement. 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 parties. 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. 1.13 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. 1.14 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. 1.15 No Assignment. This Agreement shall not be assigned, in whole or in part, without the prior written consent of the other party, made in that party's sole discretion. Any assignment made without such consent shall be void. 1.16 TRWC ADMINISTRATIVE MANAGER DISCLAIMER OF WARRANTIES. APPLICANT ACKNOWLEDGES AND AGREES THAT THE ADMINISTRATIVE MANAGER DOES NOT REPRESENT OR WARRANT THE ACCURACY OF ANY STUDY THAT RESULTS FROM THIS AGREEMENT. APPLICANT DISCLAIMS ALL WARRANTIES WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY, APPLICABLE OR RELATING TO THE STUDY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. APPLICANT ALSO HEREBY WAIVES ANY RIGHTS AND REMEDIES TO MAKE A CLAIM AGAINST THE ADMINISTRATIVE MANAGER OR THE TRWC INCLUDING, WITHOUT LIMITATION, ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, FOR ANY REASON WHATSOEVER, BASED ON THE STUDY OR THIS AGREEMENT. APPLICANT AGREES THAT THE STUDY RESULTING FROM THIS AGREEMENT IS DONE ON AN "AS -IS" BASIS WITH ALL FAULTS. 3 1.17 Conflicts 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. 1.18 Miscellaneous. Notice is provided of §§ 12 -1518 and 12 -133, Arizona Revised Statutes. 1.19 E- verify. Records and Audits. To the extent applicable under Ariz. Rev. Stat. § 41 -4401, the Parties and their respective subcontractors warrant compliance with all federal immigration laws and regulations that relate to their employees and compliance with the E -verify requirements under Ariz. Rev. Stat. § 23- 214(A). The Parties' or a subcontractor's breach of the above - mentioned warranty shall be deemed a material breach of the Agreement and may result in the termination of the Agreement by either Party under the terms of this Agreement. The Parties each retain the legal right to randomly inspect the papers and records of the other Party and the other Party's subcontractors who work under this Agreement to ensure that the other Party and its subcontractors are complying with the above - mentioned warranty. The Parties warrant to keep their respective papers and records open for random inspection during normal business hours by the other Party. The Parties and their respective subcontractors shall cooperate with the other Party's random inspections including granting the inspecting Party entry rights onto their respective properties to perform the random inspections and waiving their respective rights to keep such papers and records confidential. The Parties' inspection rights under this Paragraph 1.19 only extend to such employee records necessary to determine whether the other Party or other Party's Subcontractor is complying with the Immigration Warranty and not any other employment or other employee records. In conducting any inspections under this Paragraph 1. 19, except as required by law, the Parties agree to keep confidential and not disclose employee personal information such as social security numbers and other information of the Party's employees. 1.20 Scrutinized Business Operations. Pursuant to Ariz. Rev. Stat. §§ 35- 391.06 and 35- 393.06, the Parties each certify that they do not have a scrutinized business operation in Sudan or Iran. For the purpose of this subsection the term "scrutinized business operations" shall have the meanings set forth in Ariz. Rev. Stat. § 35 -391 or and 35 -393, as applicable. If the either Party determines that the other Party submitted a false certification, the Party making such determination may impose remedies as provided by law including terminating this Agreement. 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. TRWC ADMNINISTRATIVE MANAGER: CITY OF MESA n r_ APPLICANT: Town of Fountain Hills M&P, 4&x-MAZ ■ Vn F1 nowwuxvrwreoomuave TOPAZ Regional Wireless Cooperative Coverage /Capacity Study Agreement Checklist Purpose: A conceptual design is necessary to fully evaluate the scope of adding a potential Member to the TRWC. This design will be developed by a TRWC authorized vendor /consultant and will consider several factors including coverage and capacity requirements, existing communication facilities, and roaming needs. The cost for developing the conceptual design will be the responsibility of the potential Member. The Administrative Manager will coordinate the conceptual design effort. To complete the conceptual design, the Applicant must provide the following information to the Administrative Manager. Coveraee Reaulrements: ❑ Current and projected service area. Preferably, this service area shall be defined using NAD 83 latitude/longitude coordinates. ❑ Define areas that need increased signal levels to provide adequate coverage (e.g. industrial areas, high rises, commercial centers, parking structures, etc.). ❑ Current street -level map of the service area (soft-copy, if available). ❑ If drive testing to determine existing TRWC coverage is required, the applicant must provide reasonable access to those portions of their service area that will require radio coverage testing. Capacity Reaulrements: ❑ Number of existing radio channels/talkgroups in use by the potential Member by type (e.g. Police, Fire, Municipal). ❑ Number of existing subscriber units by application (Fire, Police, Municipal, etc.). ❑ Existing radio traffic statistics, if available, from the potential Member's current radio system(s). ❑ Anticipated talkgroups and subscriber units needed in the foreseeable future. ❑ Number of talkgroups and subscriber units needing wide area roaming capability and the portions of the Network where this roaming is desired. ❑ Number of 700 /800 MHz licensed frequencies the potential Member would have available for ineorpomthig into TOPAZ infrastructure to support the potential Member's capacity needs. ecellaneous• Vii:. ❑ Existing communication sites owned by the potential Member that could be used for Network L infrastructure. Specific details needed include location (NAD 83 latitude/longitude), tower height, " ati space availability communications building) and available tower loading capacity. p stinkagreements for access and use of communications sites owned by other entities. 5/8/2008. .., ❑ Dispatch requirements including number of dispatch positions and locations. ❑ Existing connectivity (microwave, fiber, etc.) between dispatch centers and existing communications facilities including available capacity and redundancy. ❑ Interoperability needs. ❑ Desire to be an Area Manager or solely a Member (subject to TRWC Board of Director's determination.). Applicant Name: Contact: Name: Phone Number: Email Address: