HomeMy WebLinkAboutMO #2836MUNICIPAL ORDER NO. 2836
A MUNICIPAL ORDER AUTHORIZING THE MAYOR TO EXECUTE AN
AGREEMENT WITH COMMUNICATIONS INTERNATIONAL AND THE
COUNTY OF MCCRACKEN FOR THE PADUCAH-MCCRACKEN COUNTY 911
RADIO UPGRADE PROJECT
WHEREAS, the City of Paducah adopted Municipal Order No. 2491 on
August 10, 2021, authorizing the City to enter into a Memorandum of Understanding with
McCracken County regarding an E-911 Partnership Formation; and
WHEREAS, the City of Paducah operates a 800 MHz trunked simulcast
voice radio system which is past end of life and in need of upgrade to ensure the continued
911 radio service in Paducah -McCracken County; and
WHEREAS, with the assistance of Federal Engineering acting as a
consultant, the City of Paducah and McCracken County jointly released a request for
proposals on December 2, 2022; and
WHEREAS, on March 2, 2023, two proposals were received, and
Communications International, Inc. was found to have the lowest and most responsive
proposal; and
WHEREAS, on July 11, 2023, the City Commission approved Municipal
Order No. 2761, authorizing the Mayor to issue an intent to award letter to Communications
International and authorizing the City Manager to begin conversations with Communication
International to develop a Master Contract for the project; and
WHEREAS, the City now desires to enter into an agreement with McCracken
County and Communications International for an upgraded 5 -site radio system for Paducah
and McCracken County.
NOW, THEREFORE, BE IT ORDERED BY THE BOARD OF
COMMISSIONERS OF THE CITY OF PADUCAH, KENTUCKY:
SECTION 1. Authorizations & Recitals. That the City hereby approves an
Agreement with Communications International, Inc. and McCracken County (hereinafter the
"Agreement") in substantially the form attached hereto and made part hereof (Exhibit A). It is
hereby found and determined that the Agreement is in the best interest of the citizens, residents,
and inhabitants of the City of Paducah and that it is in the best interest of the City of Paducah to
enter into the Agreement for the purposes therein specified. The execution and delivery of the
Agreement is hereby authorized and approved. The Mayor is hereby authorized to take all
reasonable and necessary actions to carry out the purposes of this Municipal Order and to
execute the Agreement, together with such other agreements, instruments, or certifications which
may be reasonable and necessary to accomplish the purchase, development, financing,
construction, and operation of the Project, together with such changes to the Agreement as may
be approved by the Mayor on behalf of the City, and as are not inconsistent with this Municipal
Order or substantially adverse to the City.
SECTION 2. Expenditures. The City's portion of upgrade costs shall be
expended from the City of Paducah, Kentucky General Obligation Bonds, Series 2020A, as well
as any future bonding necessary to complete the project. City of Paducah subscriber costs shall
be budgeted in future fiscal years. The Finance Director is hereby authorized to make payment to
Communications International, Inc. and to issue any invoices necessary to McCracken County
for the County's portion of the costs in accordance with the Memorandum of Understanding
regarding E-911 Partnership Formation with McCracken County and/or in accordance with any
Memorandums or Interlocal Agreements that supersede said Memorandum of Understanding.
SECTION 3. Severability. If any section, paragraph, or provision of this
Municipal Order shall be held to be invalid or unenforceable for any reason, the invalidity or
unenforceability of such section, paragraph, or provision shall not affect any of the remaining
provisions of this Municipal Order.
SECTION 4. Compliance with Open Meetings Laws. The Board of
Commissioners of the City hereby finds and determines that all formal actions relative to the
adoption of this Municipal Order were taken in an open meeting of the Board of Commissioners,
and that all deliberations of the Board ofCommissioners and of its committees, if any, which
resulted in formal action were conducted in meetings open to the public and in full compliance
with applicable legal requirements.
SECTION 5. Conflicts. All resolutions, orders, memorandums of understanding,
or parts thereof in conflict with the provisions of this Municipal Order are, to the extent of such
conflict, hereby repealed and the provisions of this Municipal Order shall prevail and be given
effect.
SECTION 6. Effective Date. This Order will be mull force and effect from
and after the date of its adoption.
George'Bray, Mayor
ATTEST:
ti
indsay Par' h, City Clerk
Adopted by the Board of Commissioners, December 12, 2023
Recorded by Lindsay Parish, City Clerk, December 12, 2023
\mo\911 Upgrade — Communications International Agreement
CONTRACT NO. PADUCAH/MCCRACKEN 2023-001
AGREEMENT BETWEEN
CITY OF PADUCAH, KENTUCKY
and
COUNTY OF McCRACKEN, KENTUCKY
and
COMMUNICATIONS INTERNATIONAL, INC.
Communications International, Inc.
Contract No. Paducah/McCracken 2023-001 P25 Phase 2 Proposal
CONTRACT NO. PADUCAH/MCCRACKEN 2023-001
AGREEMENT BETWEEN
CITY OF PADUCAH, KENTUCKY
and
COUNTY OF McCRACKEN , KENTUCKY
and
COMMUNICATIONS INTERNATIONAL, INC.
THIS AGREEMENT, is made and entered into this day of , 2023 ( the
"Effective Date") by and between CITY OF PADUCAH, KENTUCKY, a Kentucky municipal
corporation whose principal office is located at 300 South 5`" Street, Paducah, Kentucky 42003
and McCRACKEN COUNTY, KENTUCKY, a body politic and corporate, whose principal office
is located at 300 Clarence Gains Street, Paducah, Kentucky 42003 (hereinafter collectively, the
"Customer") and Communications International, Inc., a Florida corporation having its principal
place of business at 4450 U.S. Highway 1, Vero Beach, Florida 32967 (hereinafter, the
"Contractor"). Customer and Contractor may be severally referred to as a "Party" or collectively
referred to as "Parties".
WHEREAS, the Customer has determined it is necessary to replace its existing legacy 800
MHz trunked simulcast voice radio system with a digital, Association of Public Safety
Communications Officials ("APCO") Project P25 compliant communications system (the
"Project"); and
WHEREAS, the Customer has determined that it is necessary to retain a contractor to
provide equipment, design, engineering, installation, implementation, operation training, and
maintenance services for the Project; and
WHEREAS, the Customer, has issued RFP No. Paducah -McCracken P25 Phase
Proposal and the Addenda thereto for the Project (hereinafter collectively the "RFP"); and
WHEREAS, the Contractor has reviewed the RFP and has submitted a proposal in
response thereto dated March 2, 2023 (hereinafter the "Proposal"); and
WHEREAS, the Customer, through a selection process conducted in accordance with the
requirements of law and Customer policy, has determined it would be in the best interest of the
Customer to award a contract to Contractor for the Project; and
WHEREAS, both Parties are desirous of establishing the terms and conditions which shall
govern their relationship for the Project, and which will govern Contractor's rendering of those
services set forth in the hereinafter defined Scope of Services.
NOW, THEREFORE, in consideration of the covenants, premises, and mutual
agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the
Parties do hereby agree as follows:
Incorporation Of Documents.
1.1. The forgoing recitals are true and correct and are incorporated herein.
1.2. The RFP consists of pages 1 through 30 plus Attachments A through D and Appendix
A through B issued by the Customer on December 2, 2022; as well as the provisions of Addendum
#1 issued by Customer on January 9, 2023; 42 issued by the Customer on January 24, 2023;
Addendum 43 issued by the Customer on February 2, 2023;]Addendum 94 issued by the Customer
on February 16, 2023Jand the Proposal submitted by Contractor dated March 2, 2023 along with
all clarifications, all filed with the City Clerk of the City of Paducah are hereby specifically made
part of this Agreement as if same had been set forth at length herein.
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2. Definitions. As used throughout this Agreement and its attached Exhibits and Schedules
capitalized terms not defined when they first occur shall have the meanings set forth below:
2.1. "Agreement" means this Agreement and all attached Exhibits and Schedules hereto,
as the same may be amended, modified, or supplemented from time to time.
2.2. "Change Order" shall mean a written modification to the Price, Contract Time, or other
Agreement terms which is signed by both Parties.
2.3. "Customer's Environment" means the sites and other communications facilities,
including but not limited to the existing computers, operating systems, towers and other equipment
and systems, as the same may be from time to time amended, modified, or supplemented, with
which Customer intends to use the System.
2.4. "Detailed Design Documents" shall mean those documents delivered by Contractor to
Customer at the conclusion of the Detailed Design Review.
2.5. "Detailed Design Review" shall mean the phase during which the final design of the
System is established and approved by the Customer.
2.6. "Documentation" means any manuals, operator instructions, or other
documentation and materials to be used in conjunction with the System, Equipment, or Software
and provided by Contractor to Customer, whether in printed or electronic form.
2.7. "Equipment" means the equipment listed in Exhibit A to be supplied by Contractor
as part of the Services to be performed by Contractor under this Agreement as the same may be
from time to time amended, modified, or supplemented.
2.8. "Exhibit" means the following list of the exhibits attached to and incorporated into
this Agreement and deemed to be a part of this Agreement, as the same may be from time to time
amended, modified, or supplemented:
Exhibit A — Scope of Services
Exhibit B — Proiect Schedule
Exhibit C - Site Preparation Guidelines
Exhibit D - Detailed Design Documents
Exhibit E - Notice of Acce tp ante
Exhibit F — Final System Acceptance Test Plan
Exhibit G — Equipment Manufacturer Warranties
2.9. "Notice of Acceptance" means the form of notice set forth in the attached Exhibit E.
2.10. "Project Schedule" shall mean the schedule described in Exhibit B for performance
of the Work within the Contract Time.
2.11. "Project Sites" shall mean those sites where any Equipment is installed, or other
aspects of the work will be performed.
2.12. "Schedules" means the following list of the schedules attached to and incorporated
into this Agreement and deemed to be a part of this Agreement, as the same may be from time to
time amended, modified, or supplemented:
Schedule A — Pricing Schedule
Schedule B - Demand Service Fee Rates
Schedule C — Annual Maintenance Fees
2.13. "Scope of Work" or "SOW" shall mean the description of the Work to be performed
by Contractor to deliver and install the System and provide the Services, as more particularly
described in Exhibit A attached to this Agreement.
2.14. "Services" or "Work" shall mean the design, staging, installation, training, and
maintenance services (within the Warranty Period) to be provided by Contractor to Customer as
included in the Scope of Work. "Services" or "Work" includes installation of the Software but
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does not include Software design or those activities and responsibilities of Customer set forth
herein. "Services" or "Work" does not include maintenance services provided following
expiration of the Warranty Period.
2.15. "Software" means standard software components in object code form developed by
an Equipment manufacturer, and which are contained within the Equipment when initially
delivered or as thereafter upgraded pursuant to the terms hereof.
2.16. "System" means the communications facilities, equipment, other improvements, and
services described in this Agreement for a digital, Association of Public Safety Communications
Officials ("APCO") Project P25 compliant 800 MHz digital linear simulcast trunked radio network
which will be implemented by the Contractor for the Project.
2.17. "Term" means the Initial Term and any Term Extension as set forth in Section 10.
2.18. "Warranty Period" shall mean the applicable warranty period for each component of
the System, as described in Exhibit G hereto.
2.19. Usage/Interpretation.
(a)Headings are for convenience only and do not affect interpretation.
(b)Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without limitation".
(c)The word "will" shall be construed to have the same meaning and effect as the
word "shall".
(d)The word "or" shall not be exclusive.
(e)The phrase "to the extent" shall mean the degree to which a subject or other
matter extends, and such phrase shall not simply mean "if'.
(f) The words "hereof' "herein" "hereto" and "hereunder" and words of similar
import, shall refer to this Agreement as a whole and not any particular provision of
this Agreement.
(g)Words denoting any gender shall include all genders. Where a word is defined
herein, references to the singular shall include references to the plural and vice
versa.
(h)Any reference to an Article, Section, Exhibit, Appendix, or Schedule is to the
articles, sections, exhibits, appendices, or schedules, if any, of and to this
Agreement unless otherwise specified.
(i) A reference to any party to this Agreement or any other agreement or document
shall include such party's successors and permitted assigns.
0) All references to 'T' and dollars shall be deemed to refer to United States
currency.
(k)All references to a day or days shall be deemed to refer to a calendar day or
calendar days, as applicable, unless otherwise specifically provided. All references
to a year or years shall be deemed to refer to a to a calendar year or calendar years,
as applicable, unless otherwise specifically provided.
(1) The parties hereto have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party hereto
by virtue of the authorship of any of the provisions of this Agreement. Prior drafts
of this Agreement shall not be deemed to provide any evidence as to the meaning
of any provision hereof or the intent of the parties hereto with respect to the terns
hereof.
Contractor's Scope of Services.
3.1. Contractor agrees to provide the design, engineering, Equipment and installation,
implementation services, operator and technical training, and continued maintenance services for
the Project in accordance with the Scope of Services, attached hereto as Exhibit A, subject to the
limitations, qualifications and exclusions set forth therein (collectively the "Services" or"Work").
Page 4
3.2. The Contractor shall achieve substantial completion of the System within 463
calendar days (the "Contract Time"). The Contract Time shall commence from the date a Notice
to Proceed is delivered to Contractor.
3.3. The applicable milestones and dates for completion of aspects of the Project are as
described in the "Project Schedule" attached as Exhibit B. The Project Schedule shall be updated
as required by the Contractor. Any changes to the Project Schedule that impact the ultimate
Contract Time will be changed via a Change Order approved in accordance with Section 9 hereof.
3.4. Contractor shall designate a person to whom all communications from the Customer
may be addressed and who has the authority to act for Contractor connection with all aspects of
this Agreement (the "Project Manager"). Contractor may replace the Contractor Manager at any
time during the Term, upon prior written notice to the Customer. In the event of such replacement,
a resume of the replacement person will be provided to the Customer. All Services will be provided
under the direction of the Contractor Manager.
3.5. Within thirty (30) days after the Effective Date of the Agreement, the Contractor
Manager shall schedule a Project Kick -Off Meeting, the timing and location of which will be
mutually agreed upon by Contractor and Customer. The objectives of this meeting include
introduction of all project participants, review of the roles of the project participants, review of the
overall project scope and objectives, review of the resource and scheduling requirements and
review of Project Site status.
3.6. Within thirty (30) days after the Effective Date of the Agreement, the Customer shall
provide Contractor with safe access to all Project Sites for which the Customer has legal access
(whether by means of ownership, lease, agreement, or otherwise) at no charge upon reasonable
notice to allow Contractor to thoroughly examine each such Project Site, conduct due diligence,
perform Detailed Design Review, and prepare a schedule of preparatory work required for each
Project Site. For any Project Sites for which the Customer does not have legal access as of the
Effective Date, the Customer shall notify the Contractor upon securing legal access to same, and
the Contractor shall thereafter be afforded access to such Project Sites upon reasonable notice.
Customer shall issue temporary identification cards to Contractor's personnel and its authorized
subcontractors, if required, for access to the Project Sites.
3.7. The Parties acknowledge that: a) the Project includes other work contracted by the
Customer to other contractors which impacts this Project, and that Contractor has no control over
the work or schedule of those contractors; and b) Customer must provide Contractor with timely
access and the site environments prepared in accordance with Contractor's Site Preparation
Guidelines attached hereto as Exhibit C. The Parties agree that when the work or schedule
performed by other contractors outside of the scope of this Agreement delays or has a detrimental
effect on the work or schedule of Contractor or Contractor's access to a site is delayed or withheld
or a site is not prepared in accordance with Contractor's site preparation guidelines such event(s)
will be a Force Majeure Event and be subject to Section I 1 and the Contract Time shall be extended
as provided for therein.
3.8. As further described in the Scope of Services and the Project Schedule, a Detailed
Design Review phase shall commence on the Effective Date of the Agreement. During the Detailed
Design Review, Contractor's Project Manager will meet with Customer's project team on one or
multiple occasions to review the System design, technical data, and site-specific information to
confirm and to refine the System with the first meeting to occur within sixty (60) days after the
Effective Date of the Agreement. At the conclusion of the Detailed Design Review, Contractor
will provide Customer with Detailed Design Documents for review and approval by Customer.
Customer shall have thirty (30) days to conduct its review of the above documents. Approval of
Detailed Design Documents by the Customer shall not be unreasonably withheld, conditioned, or
delayed. Once approved the Detailed Design Documents will be attached to this Agreement as
Exhibit D.
3.9. Contractor shall issue Customer a notice of Ready for Service when the System has
been installed, functionally tested, and is deemed by Contractor to be ready for acceptance and
use.
Page 5
3.10. Upon issuance of the Ready for Service notice, the Customer shall have thirty (30)
days to issue a Notice of Acceptance to Contractor in the form of that included in the attached
Exhibit E, including, if any, material failures of non -conformity of the System in meeting the
testing specifications set forth in the Final System Acceptance Test Plan attached hereto as Exhibit
F (the "Test Plan").
3.11. For any nonconformance of the System to the Test Plan, which affects performance
and is reported to Contractor by Customer in the Notice of Acceptance, Contractor shall provide
an analysis of the issues, provide a workable solution, and bear any and all costs associated with
the planning, design, and installation of the workable solution.
3.12. After Contractor has implemented a corrective action and deems the System to be
ready for acceptance and use, it will provide Customer a new Ready for Service notice, and the
Customer shall have thirty (30) days to issue a Notice of Acceptance to Contractor in the form of
the attached Exhibit B , if any material failures of non -conformity of the System in meeting the
testing specifications set forth in the Test Plan have been identified during the performance of the
Test Plan. The foregoing process shall be repeated, if necessary, until the earlier of Acceptance, or
other agreement of the parties.
3.13. Once Contractor notifies Customer the System is Ready for Service, unless
Contractor is notified in writing, via the Notice of Acceptance within the timeframes set forth
above, of any material failures of non -conformity to the System in meeting the testing
specifications set forth in the Test Plan that have been identified during the performance of the
Test Plan, or if Customer uses the System for any purpose other than test and acceptance without
Contractor's written approval, an Acceptance will have occurred.
4. Compensation And Payment Of Contractor's Services.
4.1. The compensation for Contractor's Services hereunder shall Be Ten Million Thirteen
Thousand Four Hundred Thirty -Six Dollars And Sixty Four Cents ($10,013,436.64) as set forth in
the Fee Schedule, attached hereto as Schedule A and shall not exceed that amount without a
written modification to the Agreement in the form of a Change Order.
4.2. Contractor shall submit all invoices for payment of services rendered on a milestone
basis to the Customer for processing ("Milestone Billings"). Invoices shall refer to the specific
milestones set forth in Schedule A. Invoices shall include a summary of any amounts previously
billed and any credits for amounts previously paid. Milestone Billings shall be invoiced upon
milestone achievement and are due and payable upon receipt of invoice.
Customer shall pay Contractor's billings within 30 days of receipt. Vendor will allow a 15 -
day grace period before interest charges.
4.3. Contractor's pricing does not include sales tax in reliance on the Customer's
representation that this Project and Agreement is exempt under KRS 139.470 and that Customer
will provide Contractor a "sales tax exemption certificate" and such other documentation as may
be reasonably requested.
5. Contractor's Responsibilities; Warranty; Remedy.
5.1. Contractor warrants that the Services performed or furnished hereunder shall be
provided by qualified, trained individuals in a professional and workmanlike manner consistent
with industry standards, in compliance with applicable federal, state, and local laws and in
accordance with the terms, specifications, and requirements of this Agreement. The same standards
of care shall be required of any sub -contractor or subcontractor engaged by Contractor.
5.2. All Equipment furnished hereunder is warranted under the equipment manufacturer's
warranty. The Equipment manufacturer's warranties are included in the attached Exhibit E.
5.3. Customer agrees that it will in no event alter, modify, repair, disassemble, or adjust
the Customer Environment. Contractor will not be liable to the extent that any breach of the
foregoing warranties is caused by (i) third -party components of the System not provided by or
Page 6
approved in writing by Contractor; (ii) modifications to the System not made by Contractor or a
Subcontractor at the control or direction of the Contractor; (iii) unauthorized use or use of the
System other than in accordance with the Documentation; (iv) bugs, failures, or anomalies
resulting from changes in the Customer's Environment, including operating system updates, with
the exception of critical security patches, software patches, other than those provided by
Contractor, and hardware, firmware and/or hardware -software upgrades or updates; (v) use of the
System in an environment other than the Customer Environment; (vi) use of the System on
hardware not identified as compatible by Customer; (vii) damages or losses caused by a Force
Majeure events (as defined herein); or (viii) misuse of the System by Customer or users; (ix)
viruses introduced by Customer, its agents, or users.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES
EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.4. For any nonconformance of the Services to the Agreement's requirements, which
affects its use and is reported to Contractor by Customer, in writing, for two years after the Final
System Acceptance, Contractor shall, without additional compensation, correct, revise, and
remedy any errors, omissions, or other deficiencies in its work product or services arising from the
negligent act, error or omission of Contractor or any subcontractor engaged by Contractor.
5.5. During the warranty period, any Equipment defects in materials or workmanship or
if the Equipment does not conform to the manufacturer's specifications the equipment
manufacturer's remedies are set forth in the attached Exhibit G.
5.6. Insurance. Contractor agrees to carry insurance coverage as listed below, for the
duration of the agreement, as follows:
Type of Coveraf:e Minimum Limits
Worker's Compensation: Statutory
Employer's Liability: $2,000,000 per occurrence /$4,000,000 aggregate
Commercial General Liability: $1,000,000 per occurrence/$2,000,000 aggregate
Automobile Liability: $1,000,000
Umbrella: $5,000,000
Said insurance coverage shall be in compliance with the laws of the Commonwealth of Kentucky
and shall be placed with insurance companies authorized to do business in Kentucky. The
insurer shall have an AM Best rating of B+ or higher. Said insurance coverage shall be written
on an occurrence basis covering the Contractor's operations hereunder. Said insurance coverage
shall be primary and non-contributory. Said insurance coverage shall provide that if multiple
insurance policies or coverage(s) is/are found to exist for a claim covered by such insurance
policies then the Contractor's carrier shall be obligated to respond/pay first. The Contractor shall
maintain in effect all of said insurance coverage at the Contractor's sole expense. Said coverage
shall be with insurance companies acceptable to the Customer, which acceptance shall not be
unreasonably withheld. The policies shall contain a provision that coverage will not be cancelled
or not renewed until at least thirty (30) Days' prior written notice has been given to the
Customer. Certificates of insurance showing required coverage to be in force shall be filed with
the Customer prior to commencement of the Contractor's work.
5.7. Performance and Payment Bond. The Contractor shall furnish to the Customer, as the
named obligee, appropriate surety bonds to secure the faithful performance of the
Project and to satisfy all subcontractor payment obligations related to the subcontract
work. Such bonds shall be issued by a surety admitted and authorized to do business
in the Commonwealth of Kentucky and shall be acceptable to the Customer.
5.8. Indemnification. Subject to Article 17, Contractor hereby agrees to indemnify, defend
and hold harmless Customer, and their respective officers, representatives, employees
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and agents from any claim, liability, damage, loss, injury, expense, penalty, fine,
judgment or cost (including, but not limited to reasonable attorney's fees in arbitration,
administrative proceedings, court proceedings, or appeal) arising out of or in any
manner pertaining to this Agreement or the Contractor's work hereunder, caused in
whole or in part by any act, omission or fault of Contractor or any of Contractor's sub -
subcontractors or suppliers of any tier, or their respective employees or representatives,
whether or not caused in part by any act, omission or fault of Customer or any other
party indemnified hereunder. However, this Agreement shall not be construed to
indemnify the Customer against their own gross negligence or willful, wanton, or
intentional misconduct. Said indemnity and hold harmless obligation also extends to
any and all environmental rules or regulations. Said indemnity and hold harmless
obligation also extends to any activity performed by Contractor regardless of whether
the violation is discovered after the date that this Agreement is completed. Said
indemnity and hold harmless obligation shall survive the termination and/or expiration
of this Agreement. If any part of this indemnification provision is found to be invalid
or unenforceable, then the remaining portion of this indemnification provision will
remain fully in force.
6. Compliance
The Contractor hereby acknowledges that the following requirements are incorporated in and
made a part of this Agreement and assumes full responsibility in complying with these
requirements:
a) Federal and State Occupational Safety and Health Acts and Regulations.
b) Air and Water Pollution Standards established by State and Federal
Agencies.
C) All wage and hour laws, prevailing wage laws, or similar laws which may
be applicable to the Project.
d) Contractor certifies that it is legally authorized to do business in the
Commonwealth of Kentucky and that it has so registered with the
Kentucky Secretary of State. Contractor shall require any permitted sub -
subcontractors or suppliers to likewise be authorized/registered to do
business in the Commonwealth of Kentucky.
e) Conflict of interest statutes, including but not limited to KRS 45A.330 -
45A.340, 45A.990, 164.390, or KRS 11A.040 of the executive branch
code of ethics, relating to the employment of former public servants.
f) Campaign finance laws, including but not limited to KRS 121.056 and/or
KRS 523.020.
g) The Contractor represents that it has not been debarred or otherwise
disqualified from performing work on public contracts within any time
period that may apply to this Agreement.
Furthermore, the Contractor agrees to comply fully with the Fair Labor Standards Act of 1938,
the Civil Rights Act of 1964, all applicable Executive Orders and all amendments thereto. The
Contractor agrees not to discriminate against any employee or applicant for employment because
of race, color, creed, sex, sexual orientation, or national origin, and agrees to comply fully with
all provisions of law, rules, regulations and orders regarding employment. The Contractor agrees
to furnish all required information and to file all necessary reports related to the above. The
Contractor's indemnity and hold harmless obligations, described above, shall extend to any of
Contractor's violations of this Section.
7. Software License
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7. 1. Contractor hereby grants to Customer a license to use the Software, only in object
code form and only on the Equipment on which it was first delivered. Customer agrees not to copy
Software in whole or in part.
7.2. Title to the Software shall not pass to Customer. This license may not be assigned,
sublicensed, or otherwise transferred by Customer, except that Customer may transfer the license
to a transferee and such transferee will have the sole benefit of the Software as transferred from
Customer provided that Customer gives Contractor prior written notice of such transfer and
transferee agrees in writing to be bound under this license to the same degree as Customer.
7.3. The term of the license shall be from the Effective Date until the expiration or earlier
termination of this Agreement or upon any default of Customer of any term, covenant, or
obligation under this Agreement. Customer agrees that upon termination or expiration of this
Agreement, Customer will discontinue use of the Software.
7.4. Customer shall not modify, reverse assemble, or reverse compile any of the Software.
8. Ownership And Use Of Documents.
8.1. All documents, data, studies, surveys, analyses, sketches, tracings, specifications,
plans, designs, design calculations, details, computations, drawings, maps, models, photographs,
reports, and other documents and plans resulting from Contractor's services under this Agreement
shall become the property of and shall be delivered to Customer without restriction or limitation
as to use. However, any use subsequent to or other than for the specific project for which such
items were created, shall be at sole risk of Customer.
8.2. Contractor agrees that any software, computer systems and databases provided under
this Agreement shall be provided consistent with industry standards utilizing versions of Windows,
iOS, the Microsoft Office Suite, MS Project, Adobe Reader, AutoCad, and Adobe Creative Cloud
Suite and the like. Should the Contractor utilize specialty software, Contractor will be in
compliance with this provision if Contractor provides deliverables that can be accessed by or
imported into a format accessible to the Customer.
9. Customer's Responsibilities.
9.1. Customer shall perform the responsibilities contained in this Article 9 and the RFP
in a timely manner so as not to delay the Services of Contractor.
9.2. Customer shall furnish to Contractor, upon request of Contractor and at Customer
expense, all existing studies, reports, and other available data pertinent to the services to be
performed under this Agreement which are within the Customer's possession. However,
Contractor shall be required to evaluate all materials furnished hereunder using reasonable
professional judgment before relying on such materials.
9.3. Customer shall provide reasonable access and entry to all public property required
by Contractor to perform the services described in this Agreement. All such access and entry shall
be provided at Customer expense. Customer shall also use reasonable efforts to obtain permission
for reasonable access and entry to any private property required by Contractor to perform the
services described in this Agreement. In the event that there are any unreasonable delays or return
service calls required by Contractor or its authorized representative(s) because of denial of
reasonable and free access (excluding delays or denial of access caused by Contractor's
negligence), such events will be reasonable cause for delay of the Contractor's work and the work
timeline shall be extended on a day-to-day basis for the period of time reasonably necessary to
overcome the effects of the underlying cause of the delay and Customer may be responsible for
payment at the Demand Service Fee rates set forth in Schedule B.
9.4. The Customer shall have the responsibility to acquire by lease, purchase, easement,
or otherwise all rights and access to selected Project Sites or additional real estate as may be
required for the installation of the System. Customer also shall be responsible for paying all utility
charges to the appropriate utility for providing utility services to the System.
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9.5. The Customer shall designate a contact person ("Customer System Manager") who
shall be the primary interface with Contractor. The Customer may designate a new System
Manager at any time during the Term upon providing Contractor with prior written notice.
9.6. The Customer's System Manager shall approve all Change Orders and policies
applicable to operations and shall be authorized to act on behalf of the Customer on all matters in
connection with this Agreement.
10. Changes and additions to the Work.
The Customer may request changes in or additions to the Work or in the time or place of
performance of the Work under this Agreement The Project Manager shall have authority to order
minor changes in the Work not involving an adjustment to the Price or an extension to the Contract
Time. Such changes may be affected by a written order. Such changes shall be binding on the
Contractor when approved or accepted in writing by Contractor. Any change or addition to the
Work that causes a change to the Price, the Contract Time or both shall be effectuated by a Change
Order. Any such adiustment in the Price or Contract Time shall be mutually satisfactory to
Customer and Contractor, using the unit pricing and rates set forth in Schedule A Price increases
and/or extensions of time shall not be binding unless and until evidenced by a fully executed
Change Order.
11. Term / Termination.
11.1. The Effective Date of this Agreement is the date set forth on page one of this
Agreement.
11.2. This Agreement shall begin on the Effective Date and continue up through the
Contract Time specified in Section 3.2, as the same may be amended or changed from time to time
and shall terminate [one year] after the first to occur of. a) the date of the Notice of Acceptance,
or ii) the date of Acceptance (the "Term").
11.3. Should the Customer, at its sole discretion, desire Contractor to provide corrective
and preventative maintenance after the Term, the parties shall enter a separate annual contract for
said maintenance at the prices specified in Schedule C. Nothing in this Agreement shall obligate
the Customer to utilize the maintenance services of Contractor, and any annual maintenance
contract is subject to the provisions of Sections 11.4 and 11.5 below.
11.4. This Agreement may be terminated without cause by either party upon sixty (60)
calendar days written notice by certified mail to the other of intent to terminate. Upon termination
by either party, the Contractor shall cease work and shall deliver to the Customer all documents
(including reports, designs, specifications, and all other data) prepared or obtained by the
Contractor in connection with its services. The Customer shall, upon receipt of aforesaid
documents, pay to the Contractor, and the Contractor shall accept as full payment for its services,
fees for all tasks completed in accordance with the Scope of Services as well as expenses incurred
or obligated to be paid for by Contractor prior to receipt of the notice to terminate.
11.5. In the event that the Contractor has abandoned performance under this Agreement,
then the Customer may terminate this Agreement upon ten (10) calendar days written notice to the
Contractor indicating its intention to terminate. The written notice shall state the evidence
indicating the Contractor's abandonment. Payment for services performed prior to the Contractor's
abandonment shall be as stated Section 11.6, below.
11.6. In the event of termination by either party, Contractor shall be entitled to
compensation for services rendered and expenses incurred through the date of Contractor's receipt
of the notice to terminate. All finished or unfinished documents, data, studies, surveys, drawings,
maps, models, photographs, and reports, prepared by Contractor shall become the property of
Customer and shall be delivered by Contractor to Customer immediately upon the payment of the
Contractor's invoice.
12. Force Majeure. Neither Party shall be deemed in default of this Agreement, except for the
payment of monies owed, to the extent that any delay or failure in the performance of its
obligations results from any cause beyond its reasonable control and without its fault or negligence,
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such as acts of God, acts of civil or military authority, embargoes, epidemics, pandemics, war,
riots, insurrections, fires, explosions, earthquakes, landslides, lightning, hurricanes, fires, floods,
washouts, arrest and restraints of governments and people, or civil disturbances or any law,
regulation, ordinance, or requirements of any government or subdivision thereof, including
without limitation the Federal Communications Commission or its authorized carriers, or any other
circumstances beyond the reasonable control of the Parties, provided that such Party uses
reasonable efforts, under the circumstances, to resume performance as soon as reasonably
practicable then the obligation of performance shall be suspended during the continuance of such
Force Majeure occurrence. The obligations and rights of the Party so excused will be extended on
a day-to-day basis for the period of time reasonably necessary to overcome the effects of the
underlying cause of the delay.
13. Defaults and Remedies
13.1. Customer Events of Default. The Customer shall be in default hereunder if any of
the following events ("Customer Event of Default") shall occur:
13.1.1. The Customer fails to pay any of its obligations under this Agreement, when
such obligation is due and such failure shall remain unremedied for a period of
forty-five (45) days after written notice is provided by Contractor or its assigns; or
13.1.2. The Customer fails to observe any material term, covenant, or condition
contained herein and such failure shall remain unremedied for a period of forty-five
(45) days after written notice is provided by Contractor. However, if default is of
such a nature that it could not reasonably be performed within forty-five (45) days,
such forty-five (45) days period shall be extended so long as the Customer takes
some corrective action within such forty-five (45) days and thereafter diligently and
continuously works to cure the default.
13.2. Contractor Events of Default. Contractor shall be in default hereunder if any of the
following events ("Contractor Event of Default") shall occur:
13.2.1. Contractor initiates a proceeding in any court, seeking the liquidation,
reorganization, debt arrangement, dissolution, winding up, appointment of a
trustee, receiver, custodian, or the like for all or substantially all of its assets, and
such case or proceeding shall continue undismissed, or unstayed and in effect, for
a period of ninety (90) consecutive days; or immediately upon entry of an order for
relief in an involuntary case under the federal bankruptcy laws or other similar laws
now or hereafter in effect.
13.2.2. Contractor fails to observe any material term, covenant, or condition
contained herein and such breach shall remain unremedied for a period of thirty
(30) days after written notice is provided by the Customer. However, if the default
is of such a nature that it could not reasonably be performed or corrected within
thirty (30) days, such thirty (30) days period shall be extended so long as Contractor
takes corrective action within such thirty (30) days and thereafter diligently and
continuously works to cure the default.
13.3. Remedies. In the event Contractor is in default for a period of ninety (90) days
(excluding any time provided for in Section 13.2.2), this Agreement may be terminated sixty (60)
days after written notice is provided by the Customer.
13.4. Waiver of Default. No delay or omission by either Party to exercise any right or
power accruing upon any default shall impair any such right or power or shall be construed to be
a waiver of any such default or an acquiescence therein.
14. Notices. Any notice required or permitted to be sent hereunder shall be sent certified mail,
return receipt requested to the parties at the addresses listed below:
CONTRACTOR:
Name: Communications International, Inc.
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CUSTOMER:
Name: City of Paducah
Address: 4450 U.S. Highway 1 Address: 300 South 51 Street
Vero Beach, FL 32967 Paducah, KY 42003
With a Communications International, Inc.
copy to: 4450 U.S. Highway 1
Vero Beach, FL 32967
Attn.: Chief Financial Officer
15. Assignment. Each Party may assign its respective rights and obligations under this Agreement
with the express written consent of the other, which consent shall not be unreasonably withheld.
Notwithstanding anything to the contrary contained herein, the Customer acknowledges and agrees
that Contractor shall have the right, at any time and with the express written consent of the
Customer (which consent shall not be unreasonably withheld) to sell, transfer or assign i) all or
any portion of this Agreement to any Affiliate of Contractor or in connection with the sale of all
or substantially all of the assets or business of Contractor; ii) any rights to the payments described
herein. Contractor and its permitted assignees shall furthermore have the right, with the express
written consent of the Customer (which consent shall not be unreasonably withheld), to collaterally
assign all or any portion of its rights to such payments or to other rights to enforce such payments
provided herein to any financing party or lender or trustee in regard to secured debt. However, any
such assignment of payments shall not relieve Contractor of their respective responsibilities,
obligations, and liabilities under this Agreement.
16. Audit Requirements.
16.1. Contractor shall maintain books, records, documents, and other evidence directly
pertaining to or connected with the services under this Agreement which shall be available and
accessible at Contractor's offices for the purpose of inspection, audit, and copying during normal
business hours by the Customer, or any of its authorized representatives. Such records shall be
retained for a minimum of five (5) years after completion of the services. If any litigation, claim,
or audit is commenced prior to the expiration of the five (5) year period, the records shall be
maintained until all litigation, claims or audit findings involving the records have been resolved.
16.2. Contractor shall require all subcontractors to comply with the provisions of this
Article 16.
17. LIMITATION OF LIABILITY. CONTRACTOR OR ITS SUPPLIERS,
SUBCONTRACTORS, MANUFACTURERS OR AGENTS WILL NOT BE LIABLE FOR: (A)
ANY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT
LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF
CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR
IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A
CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT,
WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY;
UNLESS SUCH CLAIM, DEMAND OR ACTION IS DUE TO THE GROSS NEGLIGENCE
OR WILLFIL, WANTON OR INTENTIONAL MISCONDUCT OF THE CONTRACTOR OR
A SUBCONTRACTOR SUBJECT TO THE DIRECTION AND CONTROL OF THE
CONTRACTOR; (B) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH
CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS
BY CONTRACTOR BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE
RELATED TO THE SERVICES.
18. Public Records. Pursuant to the State of Kentucky's Open Records Act, Contractors acting on
behalf of the Customer must comply with the public records laws, specifically: a) keep and
maintain public records required by the Customer to perform the contracted services; b) provide
the Customer with a copy of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided by law; c) ensure that
public records that are exempt or confidential from public records disclosure requirements are not
disclosed except as authorized by law for the duration of the contract term and following
completion of the contract; and d) upon completion of the contract, keep and maintain all public
records required by the Customer to perform the service, and meet all applicable requirements for
retaining public records.
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19. Other Significant Provisions.
19.1. Relationship. Contractor and Customer agree that this is a non-exclusive relationship
and that each party is an independent contractor with respect to the other and that nothing herein
shall create an agency relationship, joint venture, partnership, or other like arrangement between
the parties. Additionally, neither party has the right or authority to assume or create any obligation
or responsibility on behalf of the other party. Furthermore, in no event shall any employee,
volunteer, or independent contractor of the Contractor be deemed to be a third -party beneficiary
of this Agreement.
19.2. Change Orders. When the Customer orders in writing, the Contractor, without
nullifying this Agreement, shall make any and all changes in the project which are within the
general scope of this Agreement. Any adjustment in the Agreement price or project time shall be
authorized only as provided by an approved change order. No adjustments in the price or time,
nor any payment for so-called extra work or equitable adjustments or impacts or so-called cardinal
changes, shall be made for any changes that have not been memorialized by an approved change
order from the Customer, which is a condition precedent to same. An approved change order is a
written instrument prepared by the Customer concerning a change in the Project.
19.3. Amendment and Waiver. No supplement, modification, amendment, or waiver of
this Agreement shall be binding unless executed in writing by both Parties. No waiver of any of
the provisions of this Agreement shall constitute a waiver of any other provision (whether similar)
nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
19.4. Further Assurances. The Parties shall with reasonable diligence do all things and
provide all reasonable assurances as may be required to complete the transactions contemplated
by this Agreement, and each Party shall provide such further documents or instruments required
by the other Party as may be reasonably necessary or desirable to give effect to this Agreement
and to carry out its provisions.
19.5. Severability. Any provision in this Agreement which is held to be illegal or
unenforceable in state or federal courts serving McCracken County, Kentucky shall be ineffective
to the extent of such illegality or unenforceability without invalidating the remaining provisions
and any such illegal or unenforceable provision shall be deemed to be restated to reflect as nearly
as possible the original intentions of the Parties in accordance with applicable law.
19.6. Governing Law and Other Dispute Related Provisions.
This Agreement is entered into in the Commonwealth of Kentucky and shall be governed
exclusively, as to all matters relating to it, both as to interpretation and performance, by the laws
of the Commonwealth of Kentucky and the laws of the United States of America, and no law of
any other jurisdiction shall be looked to or given any effect with respect to enlarging or reducing
the rights and obligations of the parties hereto, or with any respect to the creation of any rights
extraneous to this Agreement. The parties hereby consent and submit to the exclusive jurisdiction
of the appropriate state or federal courts serving McCracken County, Kentucky, as to any dispute
or controversy arising either directly or indirectly, under or in connection with this Agreement.
Unless otherwise agreed in writing, the Contractor shall continue the Project and maintain the
work schedule during any litigation, dispute mitigation, or dispute resolution proceedings, if any,
and if the Contractor continues to perform, the Customer shall continue to make payments in
accordance with this Agreement.
19.7. Execution in Counterparts and by Electronic Delivery. This Agreement may be
executed in several counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument. Signed counterparts of this Agreement
may be delivered by facsimile and by scanned .pdf image and an executed copy of this Agreement
received by way of facsimile or by scanned .pdf image shall be deemed to be an original enforceable
and admissible for all purposes as may be necessary under the terms hereof.
19.8. Conflicting Provisions. The terms and conditions of this Agreement shall supersede
any conflicting provision contained in any purchase order, quotation, or invoice to Customer.
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Unless otherwise agreed in writing, nothing contained in any purchase order, quotation or invoice
shall in any way modify or add any provision to this Agreement.
19.9. Order of Precedence. In the event of any conflict between the documents constituting
this Agreement, the documents shall be given precedence in the following order:
19.9.1. The main body of this Agreement;
19.9.2. The Exhibits and Schedules to this Agreement;
19.9.3. The Proposal;
19.9.4. The RFP.
19.10. Survivability. This Agreement and any and all promises, covenants, and
representations made herein are binding upon the parties hereto and any and all respective heirs,
assigns, and/or successors in interest. Any provision of this Agreement with a covenant extending
beyond completion of the Project, shall survive beyond the completion of the Project until the life
of the covenant has expired.
19.11. Entire Agreement. This Agreement including the following Exhibits and Schedules
constitute the entire agreement between the Parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings, negotiations, and
discussions, whether oral or written, of the Parties and there are no warranties, representations, or
other agreements between the Parties in connection with the subject matter hereof except as
specifically set forth in this Agreement:
Exhibit A — Scope of Services
Exhibit B — Project Schedule
Exhibit C - Site Preparation Guidelines
Exhibit D - Detailed Design Documents
Exhibit E - Notice of Acce tp ance
Exhibit F — Final System Acceptance Test Plan
Exhibit G — Equipment Manufacturer Warranties
Schedule A — Pricing Schedule
Schedule B - Demand Service Fee Rates
Schedule C — Annual Maintenance Fees
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and
year last written below.
CITY OF PADUCAH: COMMUNICATIONS INTERNATIONAL, INC.
Signed By:
George P. Bray, Mayor
Date:
Jeana Quintana, CFO
COUNTY OF McCRACKEN: Date:
Signed By:
Craig Z. Clymer, Judge Executive
Print Name:
Date:
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Exhibit A — Scope of Services
Exhibit A.1 - Addendum of Contract Changes to Scope of Services
Exhibit B — Project Schedule
Exhibit C - Site Preparation Guidelines
Exhibit D - Detailed Design Documents
Exhibit E - Notice of Acceptance
Exhibit F — Final System Acceptance Test Plan
Exhibit G — Equipment Manufacturer Warranties
Schedule A — Fee Pricing Schedule
Schedule B - Demand Service Fee Rates
Schedule C — Annual Maintenance Fees
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