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HomeMy WebLinkAboutMO #2399MUNICIPAL ORDER NO. 2399 A MUNICIPAL ORDER APPROVING AN AGREEMENT WITH MELBER NEW HOPE FIRE DISTRICT FOR DISPATCH COMMUNICATION SERVICES, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT BE IT ORDERED BY THE BOARD OF COMMISSIONERS OF THE CITY OF PADUCAH,KENTUCKY: SECTION 1. Recitals and Authorization. That the City of Paducah hereby approves a 911 Communications Service Agreement (the "Agreement') with Melber New Hope Fire District, in substantially the form attached hereto and made part hereof (Exhibit A), for 911 Dispatch Services. Further, the Mayor of the City of Paducah is hereby authorized to execute the Agreement. SECTION 2. Term. That the initial term of the Agreement shall be for a period of four (4) years. Such term shall automatically renew at the end of the Initial Term and any subsequent terms thereafter for an additional four (4) years unless either party terminates the Agreement as specified in the Agreement or otherwise places the other Party on notice of its intent to renegotiate the terms of this Agreement by providing written notification of such intent no later than six (6) months before the termination of the then applicable term. SECTION 3. This Order shall be in full force and effect from and after the date of its adoption._ A Brandi Harless, Mayor ATTEST: r� ay Parish, Ci ; Clerk Adopted by the Board of Commissioners, October 13, 2020 Recorded by Lindsay Parish, City Clerk, October 13, 2020 \mo\agree-dispatch services — Melber Exhibit A 911 Communications Service Agreement CITY OF PADUCAH 911 COMMUNICATIONS SERVICE AGREEMENT This Communications Service Agreement (hereinafter "Agreement") is made and entered into by and between the City of Paducah, Kentucky, a municipal corporation, (hereinafter "Paducah") and Melber New Hope Fire District (hereinafter "the District" or "Parties" where Paducah and the District are referred to collectively) pursuant to KRS 79.110 et. seq. RECITALS WHEREAS, Paducah Police Department 911 Communications Services Division (hereinafter "Paducah 911") is a certified Public Safety Answering Point (hereinafter "PSAP") which been providing 911 communications services to its citizens and visitors since July 1, 2016; WHEREAS, in doing so, Paducah provides 911 communications services to citizens and visitors of other governmental and emergency service agencies for a fee; WHEREAS, Paducah agrees to dispatch calls for the District in exchange for a fee, pursuant to the provisions as stated herein. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONDITIONS IDENTIFIED HEREIN; THE PARTIES HEREBY AGREE AS FOLLOWS: 1. SCOPE OF COMMUNICATIONS SERVICES. The Parties shall perform communications services in accordance with the terms and conditions contained within the current Policies and Procedures Manual and pursuant to a Dispatch Protocol agreed upon by both Parties. The Parties attach hereto the Current Dispatch Protocol, with the agreement and understanding that changes to the current Protocol may be necessary in the future. As such, the Parties agree to consult with each other prior to making any changes to the current Protocol. 2. PRIORITY OF COMMUNICATIONS SERVICES. Priority of communications services shall be allocated equally among all Users and according to Paducah 911's Policies and Procedures Manual. 93 a. "Calls For Service" means all incoming phone calls and all events in CAD that generate an incident number. b. "Call Rate" means the fee per call for service. The Call Rate is determined by taking the projected budget for the upcoming fiscal year, excluding expenses relating to infrastructure and dividing it by the total number of projected calls for service for the upcoming projected fiscal year. 4. TERM. This Agreement shall become effective on the date the Agreement is fully executed. The Initial Term of this Agreement shall be for a period of four (4) years. Such term shall automatically renew at the end of the Initial Term and any subsequent terms thereafter for an additional four (4) years unless either Party terminates this Agreement as specified in Paragraph 5 herein or otherwise places the other Party on notice of its intent to renegotiate the terms of this Agreement by providing written notification of such intent no later than six (6) months before the termination of the then applicable term. 5. TERMINATION. a. Termination without Cause. This Agreement may not be terminated without cause during the first two (2) years of this initial contract. Thereafter, if the District terminates this Agreement without cause before the termination date, it shall be subject to a termination fee equivalent to the total fees paid by the District to Paducah, as stated more particularly in Paragraphs 6 and 7 of this Agreement, during the previous twelve (12) months. The Parties expressly agree that this termination fee constitutes a reasonable estimate of Paducah' s loss from the early termination of this Agreement, and that the amount of the fee is in the nature of liquidated damages, and not a penalty. The District waives all rights to protest the amount of the termination fee, and agrees to be unconditionally bound thereto. Either Party may notify the other Party of its intent to not renew this Agreement at the end of the then applicable term by providing written notice to the other Party of its intent to not renew this Agreement no less than six (6) months prior to the expiration of the then applicable term. b. Termination for Cause. Either party shall have the right to terminate this Agreement upon written notice for cause. The term "cause' shall include (i) the failure of a party to perform and/or comply with any of their obligations or duties as specifically required by this Agreement or (ii) the failure of the District to pay any submitted invoice within sixty (60) days following date of invoice. In the event a party elects to terminate this Agreement for cause, the terminating party shall provide the defaulting party with written notice of its intent to terminate and the grounds for that termination. Upon receipt of that notice, the defaulting party shall be accorded a period of ten (10) business days within which to remedy the stated grounds. In the event the defaulting party fails or is unable to remedy the deficiency within the ten (10) day cure period, the terminating party shall have the right to terminate this Agreement and be relieved from all of its obligations hereunder. Upon termination, the terminating party shall have all rights and remedies as provided by law, subject to the limitations and exclusions that are contained in this Agreement. 6. COMMUNICATIONS SERVICE FEE. a. The District shall pay a fee for communications services provided by Paducah. The amount the District shall pay for communications services equal to all of the District's Calls For Service in the previous month multiplied by the then applicable Call Rate. b. During Paducah's Fiscal Year 2021, the Call Rate shall not exceed Twenty-one Dollars and Fifty Cents ($21.50). Thereafter, and for the remainder of the term of this Agreement, the Call Rate shall not be increased more than 2% annually. 16. CONFIDENTIAL INFORMATION. a. The term "Confidential Information" shall mean any and all information which is disclosed by either Party ("Owner") to the other ("Recipient") verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, customer lists, employee information, financial information, confidential information concerning Owner's business, as Owner has conducted it or as it may conduct itself in the fixture, confidential information concerning any of Owner's past, current, or possible future products or manufacturing or operational methods, including information about Owner's research, development, engineering, purchasing, manufacturing, accounting, marketing, selling or leasing, and any software (including third party software) provided by Owner. Owner's Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient except to those third parties with a need to know and that are operating under a confidentiality agreement with. non -disclosure provisions no less restrictive than those set forth herein. This Agreement imposes no obligation upon the Parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation to confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information or (e) is required to be disclosed by court order or applicable law, provided prior notice is given to the Owner. The Recipient shall not obtain, by virtue of this Agreement, any rights, title, or interest in any Confidential Information of the Owner. Within fifteen (15) days after termination of this Agreement, each party shall certify in writing to Owner that all copies of Owner's Confidential Information in any form, including partial copies, have been destroyed or returned to Owner. b. The Parties acknowledge that governmental agencies are required to release certain information pursuant to requests made under the provisions of the Kentucky Open Records Act and/or the Freedom of Information Act and further acknowledge and agree that a response in compliance therewith is not a breach of this Agreement. C. Each Recipient shall protect all Confidential Information received pursuant to or as a result of this Agreement with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, with which Recipient utilizes for Confidential Information. d. The terms of this Paragraph shall survive termination of this Agreement. 17. INDEMNIFICATION. To the extent not prohibited by the Kentucky Constitution or Kentucky law, the District shall indemnify, hold harmless, and defend Paducah (including its elected officials, officers, agents and employees) from and against any and all claims (including all litigation, demands, damages, liabilities, costs, expenses, and attorney's fees) resulting or arising from Paducah's performance, or failure to perform, under this Agreement except that the District shall not be required to indemnify, hold harmless, or defend Paducah from and against any claims resulting or arising from the negligence of Paducah, its elected officials, officers, agents or employees. 18. FORCE MAJEURE. If by reason of force majeure, Paducah is unable in whole or in part to perform the services under this Agreement, Paducah shall not be considered in breach during the continuance of such inability. The term "force majeure" as used herein shall mean the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States or of the State or any of their departments, agencies or officials, or any civil or military authority; insurrections, riots, landslides, earthquakes, fires, storms, droughts, floods, explosions, breakage or accident to machinery, transmission pipes or canals; or any other cause or event not reasonably within the control of Paducah. 19. RELATIONSHIP OF THE PARTIES. It is expressly understood that no agency, employee, partnership, joint venture or other relations is established by this Agreement. Nothing contained in this Agreement is intended to, nor shall it be construed in any way, to be a joint powers agreement of any kind. 20. CONTINUOUS SERVICE DELIVERY. The Parties agree that there is a public health and safety obligation to ensure uninterrupted and continuous service delivery to Paducah and the District. In the event of a material breach, Paducah will continue to provide services under this Agreement during any dispute resolution process and the District will continue to make payment of any fees owed during said process. Additionally, in the event the Agreement is terminated for any reason, the Parties agree to cooperate in transitioning the District to a new service provider for a reasonable period of time. The District will continue to be responsible for its fees, as set forth herein, during said transition period. 21. NO EXPRESS OR IMPLIED WARRANTY. Paducah provides the hardware, software, and ancillary systems without any warranty or condition, expressed or implied. Paducah specifically disclaims any implied warranties of title, merchantability, fitness for a particular purpose, and non -infringement. The District acknowledges that the systems may not operate continuously without interruption. Paducah makes no representations, warranties, or guarantees regarding uptime for the systems. Paducah agrees to pursue remedies through the vendor for the systems to all software problems arising from software provided by the vendor. Remedies for problems arising that are caused by circumstances outside of the vendor's control (network connection issues, user errors, hardware failures, etc.) shall be pursued by Paducah until a resolution is achieved. Paducah shall not be liable to the District for a hardware, software, or ancillary system failure for any direct, indirect, special, incidental, punitive, or consequential damages and losses incurred as a result thereof. 22. NOTICES. All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section. Communications shall be deemed to be effective upon the first to occur of (a) actual receipt by a party's Authorized Representative, or (b) actual receipt at the address designated below, or (c) three (3) working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. The Authorized Representative of either party may modify their respective contact information identified in this section by providing notice to the other party. To: City of Paducah Attn: Mayor City Hall 300 South 5th Street Paducah, KY 42003 To: Melber New Hope Fire District Attn: Chairman of the Board Danny Thurston 2905 County Line Road Melber, KY 42069 23. HEADINGS. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement. 24. SEVERABILITY. If any provision of this Agreement (including any phrase, section, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that provision, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the Parties' intent under this Agreement. _ 25. GOVERNING LAW, JURISDICTION, AND VENUE. This Agreement shall be governed in accordance with the laws of the Commonwealth of Kentucky. Should any dispute arise between the Parties, the Parties shall submit the dispute for administered mediation. The situs of the mediation shall be in Paducah, Kentucky, and shall be mediated by an experienced local mediator- selected by the Parties and paid for jointly and equally by the Parties. In the event the Parties are unable to resolve- the dispute through mediation, any unresolved dispute shall be brought exclusively in a state court located in McCracken County, Kentucky. By execution of the Agreement, each of the Parties consent to the exclusive jurisdiction of such courts, and waive their right to challenge jurisdiction or venue in such courts. Each Party also waives their right to trial by jury. In the event a dispute must be resolved through litigation, the prevailing party shall be entitled to recover the costs and expenses of the dispute from the other party, including its reasonable attorney fees. 26. ASSIGNMENT AND DELEGATION. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the Parties' duties be delegated, without the written consent of the other Party. Any attempt to assign or delegate this Agreement without the written consent of the other Party shall be void and of no force or effect. Consent by a Party to one assignment shall not be deemed to be consent to any subsequent assignment. 27. SUCCESSORS. This Agreement shall bind and inure to the benefit of all successors and assigns of the Parties and any associates in interest, and their respective directors, officers, agents, servants, and employees, and the successors and assigns of each of them, separately and collectively. 28. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both Parties. 29. WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. Each Party shall have the right at all times to enforce the provisions of this Agreement in strict accordance with the terms hereof, notwithstanding any prior conduct or custom. The failure of a Party to enforce its rights under this Agreement shall not be construed as having created a custom which is contrary to specific provisions of this Agreement, or as having in any way or manner modified or waived such provisions. All rights and remedies of the Parties shall be cumulative, and the exercise of one right or remedy shall not be deemed a waiver or release of any other right or remedy. 30. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the services described herein. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. This Agreement may not be amended except in writing signed by a duly authorized representative of each Party. 31. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective entities. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. IN WITNESS WHEREOF Paducah and the District do hereby agree to the full performance of the terms set forth herein. CITY OF PADUCAH Title: Mayor Date: APPROVED AS TO FORM: By: Title: Legal Counsel 223963 MELBER NEW HOPE FIRE DISTRICT By: Title: Chairman of Board Date: APPROVED AS TO FORM: By: Title: Legal Counsel