R-2013-017-2013-01-28RESOLUTION NO. R2013-17
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO AN AMENDED INTERLOCAL AGREEMENT WITH THE CITY
OF HOUSTON FOR THE PURCHASE OF RADIOS AND RELATED
EQUIPMENT FOR USE WITH THE CITY OF HOUSTON PUBLIC SAFETY
RADIO SYSTEM.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain amended Interlocal Agreement by and between the City of
Pearland and the City of Houston, a copy of which is attached hereto as Exhibit "A" and
made a part hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest an amended Interlocal Agreement with the City of Houston.
PASSED, APPROVED and ADOPTED this the 28th day of January, A.D., 2013.
4 2, t
TOM REID
MAYOR
ATTEST:
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
Resolution No. R2013-17
Exhibit "A"
INTERLOCAL AGREEMENT
FOR USE OF CITY OF HOUSTON PUBLIC SAFETY RADIO SYSTEM
THE STATE OF TEXAS
COUNTY OF HARRIS
This Agreement is made pursuant to Chapter 791 of the Texas Government Code and
entered into by and between the City of Houston, a home rule city of the State of Texas
(hereafter, the "City") acting by and through its governing body, the City Council of
Houston, and the City of Pearland, Texas (the "User") acting by and through its
governing body, the City Council.
RECITALS
The City of Houston owns a public safety trunked radio system that is licensed by the
Federal Communications Commission (the "FCC"), which permits radio communications
and transmissions via radio units; and
The User desires to obtain access to the City's communication system in order to
communicate among various public safety units; and
The City of Houston has entered into a System Procurement Agreement ("SPA")
with Motorola, Inc., ("Motorola") based on competitive bids for a Wireless Radio
System ("System"). The System is a public safety trunked radio system that is
licensed by the Federal Communications Commission (the "FCC"); and
The Agreement allows Houston to contract directly with "Third Party Users" to
purchase radio equipment specified in the SPA. The City of Pearland may
thereby directly purchase radios and other related equipment necessary for
Pearland's participation in the Public Safety Radio System, from Motorola
through Houston's SPA; and
The City of Houston and City of Pearland desire to enter into an agreement to
permit Pearland to utilize Houston's SPA to purchase radios; and
Section 791.025 of the Texas Government Code permits agreements between
local governments for the purchase of goods and services and satisfies the
requirement of local governments to seek competitive bids for the purchase of
such goods and services.
NOW, THEREFORE, the parties, in consideration of the mutual covenants and
agreements herein contained, do mutually agree as follows:
I. DEFINITIONS
For purposes of this agreement, the following definitions apply:
a. Primary Dispatch System: A communications system upon which the
User, its agents, employees or assigns rely primarily when it desires or
attempts the engagement of radio communications or radio transmissions
of energy among its Radio Units;
b. Priority Access: An assigned level of system access that determines
the choice of access to the Radio System between two or more Radio
Units seeking use simultaneously;
c. SmartZone Radio System: Trunked Radio System in and about The
City of Houston operating under a single centralized controller as a radio
system and managed by the City of Houston Information Technology
Department;
d. Public Safety Radio System: The SmartZone Radio System and all of
its components;
e. Radio Unit: Mobile, stationary, or portable voice radio communications
units communicating among other radio communications units at certain
air wave frequencies; and
f. System Code Identification Number: An identification number that
allows Radio Units to gain access to the Radio System to enable the
Radio Units to communicate among other Radio Units at certain airwave
frequencies, providing a Primary Dispatch System for a User's Radio
Units.
II. DUTIES OF THE CITY
The City agrees that during the term of this Agreement, it will:
a. Allow the User to have access to its Radio System to engage in radio
communications among its Radio Units as a Primary Dispatch System;
b. Provide the User with a Systems Code Identification Number for all Radio
Units;
c. Upon being notified that one or more of the User's Radio Units have been
lost or stolen, attempt to disable the lost or stolen Radio Units;
d. Provide the same level of Priority Access to the Radio System for the
User as that afforded the City.
e. It is expressly understood and agreed that one hundred percent (100%)
coverage of any area at all times is improbable. There may be adverse
transmission conditions such as short-term unpredictable meteorological
effects and sky -wave interference from distant stations that can interrupt
the Radio System. Likewise, there are other causes beyond reasonable
control of City, including, but not limited to, motor ignition and other
electrical noise that may be minimized by corrective devices at User's
expense. Any surveys, studies, research, or other measures taken to
ensure the adequacy of coverage provided to User under this Agreement
are the sole responsibility and expense of User.
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111. DUTIES OF USER
During the term of this Agreement, the User agrees to:
a. Assume all costs or responsibility for providing the Radio Units that will
have access to the City's Radio System;
b. Give the City at least ten (10) days prior written notice of its intent to
increase, decrease, or otherwise change the number of Radio Units that
have access to the City's Radio System;
c. Notify the City, in accordance with Section VII, if one or more of its Radio
Units have been lost or stolen within twenty-four (24) hours of determining
that the Radio Units have been lost or stolen;
d. Use the System Code Identification Number described in this Agreement
to access the City's Radio System as a Primary Dispatch System; and
e. Observe and abide by all applicable statutes, laws, rules and regulations,
including, but not limited to, those of the FCC. In addition, the User
agrees to observe and abide by any applicable administrative rules
promulgated by the City from and after the date such rules become
effective and have been delivered to User. Further, the User
acknowledges that should any of these statutes, rules, regulations or
administrative rules change during the term of this Agreement and if the
change necessitates a modification of the Agreement, the modification
may be effectuated by the City without incurring any liability for this
modification. Should the City notify the User of any such change, the
User shall have thirty (30) days to review and agree to any proposed
changes made to this Agreement. If assent to the change is not given,
this Agreement terminates.
IV. PAYMENTS BY USER
The User shall pay the City for access to the Radio System at the rate specified
in the Fee Schedule attached hereto as Exhibit A. The User expressly shall
prepay yearly charges in full at the beginning of each Annual Term of this
Agreement, based upon the number of the Radio Units then in service. During
such term, the following provisions apply:
a. In the event the number of Radio Units in service increases during an
Annual Term of this Agreement, the charge for each additional Radio Unit
is based upon the remaining annual charge multiplied by the fractional
part of the current one-year term of this Agreement. The User agrees to
prepay the City the entire amount owed for additional Radio Units for the
time remaining in the then current term at least ten (10) days before the
User obtains access to the Radio System with the additional Radio Units.
b. In the event the number of Radio Units in service decreases during an
Annual Term of this Agreement, the City agrees to either allow a credit or
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make a refund to the User of a fractional part of the current one-year term
remaining under this Agreement. The City agrees to effectuate said
credit/refund within thirty (30) days of the date the User gives the City
written notice of its decrease in the number of Radio Units it has in
service.
c. The User shall pay the City for the programming of the User's radios for
use on the Radio System at a rate specified in the Fee Schedule,
attached hereto and incorporated herein, upon initial access to the Radio
System. Should the User's Radio Units require maintenance that
destroys the original programming referred to above, after such
maintenance each radio will be reprogrammed by the City to the standard
configuration at the rate specified in the attached Fee Schedule. In any
instance in which the City performs Radio Unit programming services, the
User agrees to pay the City the entire amount owed for the re-
programming of Radio Units within thirty (30) days of the invoice date of
such services.
d. The City may increase the fees provided in this Agreement by giving the
User written notice of its intention to increase fees at least ninety (90)
days before the effective date of the proposed increase. Should such
increase become effective during an Annual Term of this Agreement, the
increase will be prorated based upon the number of months remaining in
the then current term of this Agreement. In the event of such mid-term
fee increase, the User agrees to pay the City the total, prorated fee
increase on or before thirty (30) days after the effective date of the fee
increase. The User agrees to pay the City the entire amount owed from
the fee increase within thirty (30) days of receiving notice. Notice may be
in the form of an invoice.
e. The User will pay its obligations hereunder from available current
revenues.
V. RADIO EQUIPMENT INSTALLATION AND RADIO SERVICES
To the extent resources are available and solely at its discretion, City may
provide radio equipment installation and radio services upon request of the User.
If these services are provided, the User agrees to pay the City on a Time and
Material basis at the rate specified in the Fee Schedule attached hereto and
incorporated herein. The City agrees to invoice the User after the services are
rendered, and the User agrees to pay invoices within thirty (30) days of the
invoice date. Solely at the discretion of the City, the User may purchase certain
additional parts and/or accessories from the City at a price set by the City. The
City agrees to invoice the User after the parts and/or accessories are supplied to
the User. The User agrees to pay the invoice within thirty (30) days of the
invoice's date.
IT IS EXPRESSLY UNDERSTOOD THAT THE CITY NEITHER WARRANTS
NOR ASSUMES ANY RESPONSIBILITY FOR INSTALLATION OR USE OF
EQUIPMENT OR FOR THE RELIABILITY OR ADEQUACY OF SERVICES
PROVIDED HEREUNDER. FURTHER, BY REQUESTING THAT THE CITY
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PROVIDE THESE SERVICES, THE USER ASSUMES THE TOTAL RISK OF
ANY LOSS ASSOCIATED WITH THE INSTALLATION OF THE RADIO
EQUIPMENT; ANY LOSS RESULTING FROM THE USE OF THE RADIO
EQUIPMENT SO INSTALLED; AND ANY LOSS RESULTING FROM THE USE
OF THE RADIO EQUIPMENT TO WHICH OTHER RADIO SERVICES HAVE
BEEN PROVIDED BY THE CITY.
VI. TERM AND TERMINATION
The term of this Agreement is one year ("Annual Term") and shall commence on
the Countersignature Date. Thereafter, this Agreement will automatically renew
for 30 successive one-year terms unless it is terminated by either party by giving
the other party prior written notice of its intention to terminate not Tess than sixty
(60) days prior to the expiration of the then current Annual Term of this
Agreement. Notwithstanding the preceding, this Agreement terminates:
a. Immediately if all or substantially all of the authorization held by the City
or the User is revoked by the FCC or its successor agency; or
b. Upon either party giving the other party thirty (30) days prior written notice
of its intention to terminate. Should the User terminate this Agreement as
provided in this paragraph, the User agrees that payment in full of all
obligations owed to the City by the User is a condition precedent to
termination. Should either party terminate this Agreement, the User is
entitled to a refund of the pro rata share of any prepayment.
c. If the User fails to make any payment of any sum due under this
Agreement and such failure continues for forty-five (45) days after the
City has given the User written notice of such failure, then the User is in
default under this Agreement. In the event of the User's default, the City
has the right to terminate this Agreement, deny the User any service
provided by the City under this Agreement, and retain all moneys paid to
the City pursuant to the terms and conditions of this Agreement as
liquidated damages.
d. Each and every right and remedy of the City and User are cumulative to
and not in lieu of each and every other such right and remedy afforded by
law and equity.
e. Should the City fail to perform as provided under the terms of this
Agreement, the User's sole remedy is termination of this Agreement, and
the City agrees to make a refund to the User of the portion of the pre -paid
fee based upon that fractional part of the one-year term remaining under
the Agreement.
VII. NOTICES
All notices to either Party to this Agreement must be in writing and must be
delivered by hand, facsimile, United States registered or certified mail, return
receipt requested, United States Express Mail, Federal Express, Airborne
Express, UPS or any other national overnight express delivery service. The
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notice must be addressed to the Party to whom the notice is given at its address
given for notices or other address the receiving Party has designated previously
by proper notice to the sending Party. Postage or delivery charges must be paid
by the Party giving the notice.
FOR THE CITY: All notices and communications must be mailed as follows:
If to City, to the following address:
Tom Sorley, Deputy Director
Radio Communications Services
611 Walker Street, Ste. 901
Houston, Texas 77002
FOR THE USER:
If to User, to the following address:
City of Pearland
City Manager, Bill Eisen
3519 Liberty Dr.
Pearland, TX 77581
with duplicate Copy to:
City of Houston
Director, Information Technology
611 Walker Street 9th Floor
Houston, Texas 77002
with duplicate Copy to:
City of Pearland Fire Dept.
Vance Riley
3519 Liberty Dr.
Pearland, TX 77581
These addresses may be changed upon giving prior written notice to the other
party. All mailed notices and communications are deemed given and complete
upon mailing as provided above.
VIII. ASSIGNMENT; PARTIES BENEFITED
Neither party hereto shall sell, assign, or transfer any of its rights or obligations
under this Agreement in whole or in part, without the prior written consent of the
other party. This Agreement shall bind and benefit the City and the User and
shall not bestow any rights upon any third party.
IX. GOVERNING LAW AND REVENUE
This Agreement is governed by and construed according to the laws of the State
of Texas. Exclusive venue of any action or claim arising out of this Agreement is
Harris County, Texas. Failure of either party hereto to insist on the strict
performance of any of the agreements herein or to exercise any rights or
remedies accruing hereunder upon the default or failure by an appropriate
remedy, shall not be considered a waiver of strict compliance with any other
obligation hereunder, and shall not be considered a waiver of any rights or
remedies occurring as a result of any future development or failure of
performance.
X. ENTIRE AGREEMENT
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This instrument contains the entire Agreement between the parties relating to the
rights granted and obligation assumed. Any modifications concerning this
Agreement are of no force and effect unless in writing and executed by both
parties except for those modifications effectuated pursuant to the provisions of
Paragraph III (e).
This Agreement may be executed in multiple counterparts, each having equal
force and effect of an original. This Agreement shall become binding and
effective only after it has been authorized and approved by the governing bodies
of each governmental entity, as evidenced by the signature of the appropriate
authority.
XI. FORCE MAJEURE
Neither Party shall be liable for any default or delay in the performance of its
obligations under this Agreement if, while and to the extent such default or delay
is caused by acts of God, unusual weather conditions, fire, riots, sabotage, acts
of domestic or foreign terrorism, or any other cause beyond the reasonable
control of such Party ("Force Maieure"). Force Majeure does not include
economic or market conditions, which affect a Party's cost, but not its ability to
perform. The party invoking Force Majeure shall give prompt, timely and
adequate notice to the other Party, by facsimile transmission or telephone
confirmed promptly thereafter in writing, and shall use due diligence to remedy
the event of Force Majeure, as soon as reasonably possible. In the event of
default or delay in Agreement performance due to any of the foregoing causes,
then the time for completion of the services will be extended by a mutually
agreeable period of time reasonably necessary to overcome the effect of such
failure to perform.
XII. LIAISONS
The Director of Fire Services of User and the Director of Information Technology
of Houston will designate a Project Liaison for each Party from time to time. The
initial Liaisons are as follows:
For Houston: Tom Sorley
For User: Director of Fire Services, Vance Riley
XIII. COMPLIANCE WITH OTHER LAWS
The Parties shall observe and comply with all federal, state, and local laws, rules,
ordinances, and regulations in any manner affecting the conduct of the services
herein provided and performance of all obligations undertaken by this
Agreement.
XIV. SEVERABILITY
In the event that one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability of this Agreement shall be construed as if
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such invalid, illegal or unenforceable provision has never been contained herein,
but shall not affect the remaining provisions of this Agreement, which shall
remain in full force and effect.
XV. LIABILITY OF PARTIES
The Parties agree and acknowledge that no entity is an agent of the other entity
and that each entity is responsible for its own acts, forbearance, negligence and
deeds, and for those of its agents or employees in conjunction with the utilization
of City's SPA and the Communication Equipment License except as hereinafter
provided. The Parties agree that no City funds, equipment or personnel will be
utilized in the acquisition of goods or services for the User pursuant to this
Agreement.
Nothing in this Agreement may be construed as creating any personal
liability on the part of any officer, director, employee or agent of any public
body that may be a Party to this Agreement and the Parties expressly agree
that the execution of this Agreement does not create any personal liability
on the part of any officer, director, employee or agent of City or User. The
Parties shall be responsible for their own acts of negligence.
Where any injury or property damage results from the joint or concurring
negligence of the Parties, liability, if any, shall be shared by each Party on the
basis of comparative responsibility in accordance with the applicable laws of the
State of Texas, subject to all defenses, including governmental immunity.
These provisions are solely for the benefit of the Parties hereto and not for the
benefit of any person or entity not a party to this Agreement. No provisions shall
be deemed a waiver of any defenses available by law.
[Intentionally left blank]
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The Parties have executed this Agreement in multiple copies, each of which is an
original.
CITY OF PEARLAND
ATTEST/SEAL
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By: OW'
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Name: Bill isen
Nam ou orfin
City Manager
City ecretary
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CITY OF HOUSTON
ATTEST/SEAL
By:
By:
Name: Annise Parker
Name: Anna Russell
Mayor
City Secretary
APPROVED:
COUNTERSIGNED BY:
Chief Information Technology Officer
City Controller
APPROVED AS TO FORM:
DATE COUNTERSIGNED:
Assistant City Attorney
L.D. File No.
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