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HomeMy WebLinkAboutCounty of Mendocino 2021-07-01COU No. 2122-097 Feb 17, 2022 3 GENERAL TERMS AND CONDITIONS 1. INDEPENDENT CONTRACTOR: No relationship of employer and employee is created by this Agreement; it being understood and agreed that COUNTY is an Independent Contractor. COUNTY is not the agent or employee of the UPD in any capacity whatsoever and UPD shall not be liable for any acts or omissions by COUNTY nor for any obligations or liabilities incurred by COUNTY. 2. WORKERS’ COMPENSATION: Each party shall be responsible for providing its own Worker’s Compensation insurance. 3. CONFORMITY WITH LAW AND SAFETY: a. In performing services under this Agreement, COUNTY shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, state, municipal, and local governing bodies, having jurisdiction over the scope of services, including all applicable provisions of the California Occupational Safety and Health Act. COUNTY shall indemnify and hold UPD harmless from any and all liability, fines, penalties and consequences from any of COUNTY’s failures to comply with such laws, ordinances, codes and regulations. b. Accidents: If a death, serious personal injury or substantial property damage occurs in connection with performance of this Agreement, COUNTY shall immediately notify Mendocino County Risk Manager's Office by telephone. COUNTY shall promptly submit to UPD a written report, in such form as may be required by UPD of all accidents which occur in connection with this Agreement. This report must include the following information: (1) name and address of the injured or deceased person(s); (2) name and address of involved sub-contractor, if any; (3) name and address of COUNTY's liability insurance carrier; and (4) a detailed description of the accident and whether any of UPD's equipment, tools, material, or staff were involved. c. COUNTY further agrees to take all reasonable steps to preserve all physical evidence and information which may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and to grant to the UPD the opportunity to review and inspect such evidence, including the scene of the accident. 4. PAYMENT: For services performed in accordance with this Agreement, payment shall be made to COUNTY as provided in Exhibit “B” hereto as funding permits. If UPD over pays COUNTY for any reason, COUNTY agrees to return the amount of such overpayment to UPD, or at UPD’s option, permit UPD to offset the amount 4 of such overpayment against future payments owed to COUNTY` under this Agreement or any other agreement. 5. TAXES: Payment of all applicable federal, state, and local taxes shall be the sole responsibility of UPD. 6. THIRD PARTY LICENSES: If contemplated in Attachment A of this agreement, COUNTY may provide copies, licenses, sublicenses, or other right to computer software at the rate for reimbursement so provided. Such software is subject to all terms, conditions and other restrictions under which it may be licensed by its author, vendor, or other licensor. UPD agrees to adhere to and be bound by such licensing terms. COUNTY is not the manufacturer of any such software, and provides no warranties or representations, including but not limited to any warranty as to fitness for any particular purpose. 7. NOTICES: All notices, requests, demands, or other communications under this Agreement shall be in writing. Notices shall be given for all purposes as follows: Personal delivery: When personally delivered to the recipient, notices are effective on delivery. First Class Mail: When mailed first class to the last address of the recipient known to the party giving notice, notice is effective three (3) mail delivery days after deposit in a United States Postal Service office or mailbox. Certified Mail: When mailed certified mail, return receipt requested, notice is effective on receipt, if delivery is confirmed by a return receipt. Overnight Delivery: When delivered by overnight delivery (Federal Express/Airborne/United Parcel Service/DHL WorldWide Express) with charges prepaid or charged to the sender’s account, notice is effective on delivery, if delivery is confirmed by the delivery service. Facsimile transmission: When sent by facsimile to the facsimile number of the recipient known to the party giving notice, notice is effective on receipt, provided that, (a) a duplicate copy of the notice is promptly given by first-class or certified mail or by overnight delivery, or (b) the receiving party delivers a written confirmation of receipt. Any notice given facsimile shall be deemed received on the next business day if it is received after 5:00 p.m. (recipient’s time) or on a non- business day. Addresses for purpose of giving notice are as follows: To COUNTY: MENDOCINO COUNTY EXECUTIVE OFFICE INFORMATION SERVICES DIVISION 501 Low Gap Road, Room 1440 Ukiah, CA 95482 Attn: Administration 5 To UPD: CITY OF UKIAH, POLICE DEPARTMENT 300 Seminary Avenue Ukiah, CA 95482 ATTN: Administration Any correctly addressed notice that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified shall be deemed effective as of the first date that said notice was refused, unclaimed, or deemed undeliverable by the postal authorities, messenger, or overnight delivery service. Any party may change its address or facsimile number by giving the other party notice of the change in any manner permitted by this Agreement. 8. USE OF UPD PROPERTY: COUNTY shall not use UPD property (including equipment, instruments and supplies) or personnel for any purpose other than in the performance of his/her obligations under this Agreement. 9. AUDITS; ACCESS TO RECORDS: Each party shall make available to the other, its authorized agents, officers, or employees, for examination any and all ledgers, books of accounts, invoices, vouchers, cancelled checks, and other records or documents evidencing or relating to the expenditures and disbursements charged in connection with this agreement. Each party shall maintain full and adequate records to show the actual costs incurred by in the performance of this Agreement. Each party further reserves the right to examine and reexamine said books, records and data during the four (4) year period following termination of this Agreement or completion of all work hereunder, as evidenced in writing, and each party shall in no event dispose of, destroy, alter, or mutilate said books, records, accounts, and data in any manner whatsoever for four (4) years after the UPD makes the final or last payment or within four (4) years after any pending issues between the UPD and COUNTY with respect to this Agreement are closed, whichever is later. 10. TIME OF ESSENCE: Time is of the essence in respect to all provisions of this Agreement that specify a time for performance; provided, however, that the foregoing shall not be construed to limit or deprive a party of the benefits of any grace or use period allowed in this Agreement. 11. TERMINATION: UPD has and reserves the right to suspend, terminate or abandon the execution of any work by the COUNTY without cause at any time upon giving to the COUNTY prior 30 day written notice. COUNTY has and reserves the right to suspend, terminate or abandon the execution of any work for UPD without cause at any time upon giving to UPD prior 30 day written notice. 6 In the event this Agreement is terminated prior to June 30, 2021, COUNTY shall be paid on a prorated basis for only that portion of the Agreement term during which COUNTY provided services pursuant to this Agreement. 12. NON APPROPRIATION: If UPD should not appropriate or otherwise make available funds sufficient to purchase, lease, operate or maintain the products set forth in this Agreement, or other means of performing the same functions of such products, UPD may unilaterally terminate this Agreement only upon ninety (90) days written notice to COUNTY. Upon termination, UPD shall remit payment for all products and services delivered to UPD and all expenses incurred by COUNTY prior to COUNTY’S receipt of the termination notice. 13. CHOICE OF LAW: This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by the laws of the State of California, excluding any laws that direct the application of another jurisdiction’s laws. 14. VENUE: All lawsuits relating to this contract must be filed in Mendocino County Superior Court, Mendocino County, California. 15. WAIVER: No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure, right or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 16. ENTIRE AGREEMENT: This Agreement, including all attachments, exhibits, and any other documents specifically incorporated into this Agreement, shall constitute the entire agreement between UPD and COUNTY relating to the subject matter of this Agreement. As used herein, Agreement refers to and includes any documents incorporated herein by reference and any exhibits or attachments. This Agreement supersedes and merges all previous understandings, and all other agreements, written or oral, between the parties and sets forth the entire understanding of the parties regarding the subject matter thereof. This Agreement may not be modified except by a written document signed by both parties. In the event of a conflict between the body of this Agreement and any of the Exhibits, the provisions in the body of this Agreement shall control. 17. HEADINGS: Herein are for convenience of reference only and shall in no way affect interpretation of this Agreement. 18. MODIFICATION OF AGREEMENT: This Agreement may be supplemented, amended or modified only by the mutual agreement of the parties. No supplement, amendment or modification of this Agreement shall be binding unless it is in writing and signed by authorized representatives of both parties. 7 19. ASSURANCE OF PERFORMANCE: If at any time the UPD has good objective cause to believe COUNTY may not be adequately performing its obligations under this Agreement or that COUNTY may fail to complete the Services as required by this Agreement, UPD may request from COUNTY prompt written assurances of performance and a written plan acceptable to UPD, to correct the observed deficiencies in COUNTY’s performance. COUNTY shall provide such written assurances and written plan within thirty (30) calendar days of its receipt of UPD’s request and shall thereafter diligently commence and fully perform such written plan. COUNTY acknowledges and agrees that any failure to provide such written assurances and written plan within the required time is a material breach under this Agreement. 20. SUBCONTRACTING/ASSIGNMENT: COUNTY shall not subcontract, assign or delegate any portion of this Agreement or any duties or obligations hereunder without the UPD’s prior written approval. a. Neither party shall, on the basis of this Agreement, contract on behalf of or in the name of the other party. Any agreement that violates this Section shall confer no rights on any party and shall be null and void. b. Only the department head or his or her designee shall have the authority to approve subcontractor(s). 21. SURVIVAL: The obligations of this Agreement, which by their nature would continue beyond the termination on expiration of the Agreement, including without limitation, the obligations regarding Indemnification (Paragraph 2), shall survive termination or expiration for two (2) years. 22. SEVERABILITY: If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected, unless an essential purpose of this Agreement would be defeated by the loss of the illegal, unenforceable, or invalid provision. 23. INTELLECTUAL PROPERTY WARRANTY: During the course of this AGREEMENT, COUNTY may access UPD’s computers or other electronic devices for the purposes of providing the services contemplated in Attachment A or any amendment or addendum thereto. UPD represents and warrants that it has obtained all appropriate licenses for any software or other intellectual property on such devices. Said licenses shall be sufficient for both UPD’s ordinary operation of the devices and all maintenance or other services COUNTY performs pursuant to this agreement. In the event COUNTY is subject to any claim, lawsuit, or demand by a third party related to such software or other intellectual property, UPD shall indemnify and defend COUNTY pursuant to Paragraph 2 of this Agreement. 8 24. ELECTRONIC COPIES: The parties agree that an electronic copy, including facsimile copy, email, or scanned copy of the executed Agreement, shall be deemed, and shall have the same legal force and effect as, an original document. 25. COOPERATION COUNTY and UPD shall cooperate in the performance of all work hereunder. [END OF GENERAL TERMS AND CONDITIONS] 9 EXHIBIT A 1. COUNTY’s maintenance personnel will inspect all equipment listed in the attached documents, referenced as Exhibit B, at least once every 180 days, making such repairs, adjustments and replacements of component parts as may be necessary to maintain the equipment in normal operating condition and consistent with the manufacturer’s specifications. This is in regards to the UPD’s VHF Radio Communications Systems. 2. COUNTY will provide technical engineering and labor required, UPD will provide all replacement component parts, which may necessitated because of routine maintenance or normal service failure. This includes all parts and labor for any incidental and emergency repairs required on listed equipment. This is in regards to the UPD’s VHF Radio Communications Systems. 3. At least twice each year, COUNTY shall provide the transmitter performance measurements required by the Federal Communications Commission, consisting of at least frequency measurement, deviation measurement and all transmitters listed herein. This is in regards to the UPD’s VHF Radio Communications Systems. 4. COUNTY shall maintain or cause to be maintained, records of all work performed, separately, for each item of equipment covered by this maintenance contract. FCC license(s) held by UPD shall be kept current with assistance of COUNTY as needed. 5. COUNTY agrees to provide fully qualified and trained personnel currently licensed by the Federal Communications Commission or certified industry equivalent that will perform all required services, tests and measurements and maintain required records. 6. COUNTY further agrees to procure all necessary State and Local license and permits, and to comply with all State and Local laws and regulations in carrying out this contract. 7. All Dispatch, Control, Base, Remote and Repeater sites listed as covered equipment in the attached. 8. Other locations mutually agreed upon by COUNTY and UPD shall be the sites where mobile equipment maintenance can be performed by County. 9. All portable hand-held equipment can be delivered to COUNTY’s principle business site for maintenance (501 Low Gap Road, Suite 1440) or COUNTY can pick up equipment at UPD Dispatch at County’s convenience. 10 10. COUNTY agrees to make every effort to supply all services as soon as possible after a request is made irrespective of these two and twenty-four hour limits. 11. COUNTY agrees to provide emergency response to any calls for service to the Mission Critical Public Safety County base, remote and repeater sites, within two (2) hours of notification at all times, including nights, weekends and holidays. 12. Exceptions to this response time would be only in cases of extreme weather, fire, or acts of God causing base and or remote sites to be inaccessible by vehicle. In the event a remote site or sites are inaccessible to perform service / repairs, COUNTY will work with UPD to utilize backup systems as needed until repairs can be completed. All other non-mission critical equipment will be serviced within twenty-four (24) hours of notification of malfunction. 13. COUNTY warrants that all services performed hereunder shall be of the nature and quality necessary to assure performance of the equipment in accordance with the manufacturer’s published specifications. 14. This Agreement shall not include repairs to covered equipment for other than normal use. Not covered by this agreement are repairs occasioned by wrecking of a vehicle, acts of God, physical mistreatment or destruction of the equipment or its components, accidental damage, water/liquid intrusion, tampering or service by unauthorized personnel not employed by the COUNTY. 15. Not included in this Agreement are; maintenance of any towers unless such work is listed in the attached documentation. Also portable antennas and batteries, mobile antennas are not included. 16. COUNTY agrees to maintain those items listed in Exhibit B for UPD 17. COUNTY can provide additional consultation, engineering or other radio and communications related services as needed on a time and materials basis. [END OF DEFINITION OF SERVICES] 11 EXHIBIT B PAYMENT TERMS COUNTY will receive payment according to the Technical Services and Support rates listed below. Within 30 days following each month, COUNTY shall submit to UPD an invoice detailing the COUNTY hours spent performing technical support as specified in this Agreement for which reimbursement is sought. Based on the expenses identified in the invoice, UPD shall remit payment within thirty (30) days, following acceptance of cost report/invoice. COUNTY and UPD will exercise due diligence in resolving any questions that may arise in regards to services and/or billings. UPD shall not be charged for operational mistakes and errors unless the errors clearly originated in UPD. COUNTY shall bill UPD for direct costs of any and all equipment purchases, not limited to, but including the following: QTY DESCRIPTION PLACE OF SVC PER UNIT TOTAL 1 ea MTR3000 Repeater (PD Main) Spanish Mountain $40.00 $40.00 1 ea MTR3000 Base Station (CLEMARS) UPD Radio Vault $40.00 $40.00 1 ea MTR2000 Repeater (Fire Command) UPD Radio Vault $40.00 $40.00 1 ea MTR2000 Base Station (PD Control) UPD Radio Vault $40.00 $40.00 3 ea MTR2000 Voting Receiver UPD Radio Vault MCSO Radio Vault Airport $20.00 $60.00 1 ea XTL5000 Base Station Console UPD Radio Vault $20.00 $20.00 3 ea R1225 Base Stations, (Schls, FD, PW) UPD Radio Vault $20.00 $60.00 3 ea R1225 Tone Remote adaptors UPD Radio Vault $5.00 $15.00 1 ea Telewave Master Receive Dist.Filter/Ant System UPD Radio Vault $10.00 $10.00 2 ea Telewave Master Transmit Combining/Ant System UPD Radio Vault $10.00 $20.00 1 ea Motorola MLC-8000 Voting Comparator Spanish Mtn $20.00 $20.00 1 ea Carlson Comm Trailblazer 4.9 MW Spanish Mtn $20.00 $20.00 1 ea Carlson Comm Trailblazer 4.9 MW UPD Radio Vault $20.00 $20.00 1 ea Carlson Comm Trailblazer 4.9 MW Ukiah Airport $20.00 $20.00 1 ea Carlson Comm Trailblazer 4.9 MW Spanish Mtn $20.00 $20.00 1 ea Carlson Comm IDU-T1-E1 Spanish Mtn $20.00 $20.00 1 ea Carlson Comm IDU-T1-E1 UPD Radio Vault $20.00 $20.00 1 ea Charles Ind T1 MUX Shelf, Controller, 12 Chan Spanish Mtn $20.00 $20.00 1 ea Charles Ind T1 MUX Shelf, Controller, 12 Chan UPD Radio Vault $20.00 $20.00 Monthly Total $525.00 12 COUNTY shall bill UPD for time associated with services provided under this agreement, based upon the following rate schedule: MENDOCINO COUNTY EXECUTIVE OFFICE INFORMATION SERVICES DIVISION TECHNICAL SERVICES AND SUPPORT RATES SUPPORT COSTS* RATE UNIT OF COST Communications Coordinator $103.31 Per Hour Communications Technician $80.79 Per Hour Information Services Division Manager $114.93 Per Hour Information Systems Technician $47.08 – $73.38 Per Hour Network Systems Analyst $86.50 – $107.16 Per Hour TRAVEL COSTS RATE UNIT OF COST Mileage $0.56 Per Mile 1. Weighted average salary rate is per hour based on the above referenced class specifications. Weighted rates may be modified during the term of this agreement when updates are provided by the Mendocino County Auditor’s Office. 2. Requests for services outside of regular business hours, as identified in Exhibit A, will be billed at the following rates: a. Service charges will equal 1.5 times the weighted average salary rate b. The minimum call out will equal three (3) hours 3. Mileage rate is based on the Internal Revenue Service standard mileage rates and mileage calculations are based on travel from 501 Low Gap, Ukiah and returning to same address. [END OF PAYMENT TERMS]