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CCR2015070-Attachment 911 EQUIPMENT SHARING AGREEMENT CITY OF MUSKEGO AND VILLAGE OF ELM GROVE AND VILLAGE OF MUKWONAGO 1 911 EQUIPMENT SHARING AGREEMENT This Agreement is an intergovernmental cooperation Agreement pursuant to Sec. 66.0301, Wis. Stats., by and between the City of Muskego (hereinafter referred to as Muskego), the Village of Mukwonago (hereinafter referred to as Mukwonago) and the Village of Elm Grove (hereinafter referred to as Elm Grove) (Muskego, Mukwonago and Elm Grove hereinafter referred to, collectively, as Parties, and individually each constitutes a Party). Whereas, the Parties intend to jointly acquire certain 911 equipment which will be located in Muskego, and which will be owned, operated and maintained by Muskego and used by Muskego, Mukwonago and Elm Grove pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, it is agreed by and between Muskego, Mukwonago and Elm Grove as follows: 1. TERM The initial term of the Agreement shall be for 10 years and shall automatically renew for five year periods thereafter. At any point during the initial or any subsequent term each of the Parties has the right to withdraw for any reason whatsoever from the Agreement or not to renew the Agreement provided it gives no less than one (1) year written notice to each of the Parties. The obligations under this Agreement shall terminate one year from the date of such notice on the part of the party giving notice. Notwithstanding the foregoing, Muskego shall not terminate the Agreement during the initial term, except upon breach of this Agreement by one of the other Parties in which case the Agreement shall continue for the duration of the initial term as between Muskego and all non- breaching parties. 2. ACQUISITION Muskego shall purchase the Shared Equipment identified in Exhibit A, which is attached hereto and incorporated herein by reference (such equipment is referred to hereinafter as the Shared Equipment). Each of the Parties shall pay an equal pro-rata share of the total actual acquisition cost of the Shared Equipment within 30 days of billing from Muskego. 3. OWNERSHIP For all purposes under this Agreement Muskego will be the sole owner of the Shared Equipment. 4. MUSKEGO SERVICES Muskego shall procure and provide all items related to hardware and software required for installing Shared Equipment, including but not limited to E911, console upgrades, reprogramming, logging recorder upgrades, computer programming services, and other costs associated directly with the operation of the Shared Equipment. 2 Muskego will provide personnel for support of the Shared Equipment. Muskego will serve as the fiscal agent whose responsibilities shall include, but not be limited to: duties to maintain financial records, accounts payable and accounts receivable; determine cost distribution; receive and disburse funds as necessary. Muskego shall provide the Parties with an annual financial report of the costs associated with the operation and maintenance, and if requested by the Parties, shall make available for inspection during reasonable business hours all of the records or data underlying the financial report as well as records or data related to the operation of the Shared Equipment. Muskego shall invoice each of the Parties for the provision of these services in the manner further described below. 5. OPERATIONS a. Muskego shall have primary responsibility for the operation of the Shared Equipment. b. Muskego shall coordinate with each Party’s Chief of Police, or designee, through whom Muskego shall communicate all critical information about the operation of the Shared Equipment. Any changes to equipment or protocol shall be done only by consensus of all of the parties which shall be confirmed in writing, subject to the following after a minimum of 90 days of negotiation. Should there be an event of an impasse between parties and the Muskego Common Council determines that upgrades, or changes to equipment or protocol, are necessary in the interests of public health, safety or welfare of its citizens, Muskego shall have sole authority to implement the changes and to charge each Party an equal pro- rata share of the costs. The dissenting party(s) shall then have the ability to withdraw from this Agreement without penalty or obligation to make payment for any share of the upgrades or changes. c. The individual identified in sec. 5 b. above shall not have authority to authorize any amendment to this Agreement as that authority shall be solely vested in the governing body of each Party. 6. MUKWONAGO AND ELM GROVE PAYMENT OBLIGATIONS a. Base Fee. In addition to the acquisition costs described in Section 2, each Party, other than Muskego, shall pay a pro-rata equal amount for Muskego’s services described in Section 4. The initial amount to be paid by each is $2,000 Dollars (the Base Fee). The Base Fee shall increase annually as follows: 3 i. The Base Fee shall automatically increase by any increase in the Consumer Price Index, calculated as follows. The increase shall be as reported in the Urban Wage Earners-Milwaukee/Racine Wage Earners for all items during the 12 month period ending on June 30 prior to the required September 15 budget allocation. ii. The Parties can agree to increase the Base Fee, by unanimous agreement. The Parties agree to negotiate in good faith in this regard, and conceptually agree that an increase is appropriate in the event the ordinary cost of operation, routine maintenance of Shared Equipment, repair, or other expense of the operation are larger than anticipated, due to unforeseen situations. Breach of this obligation of good faith negotiation shall constitute sufficient grounds for Muskego to terminate the Agreement in the initial term with respect to the breaching party only. iii. Muskego shall annually inform the Parties of the applicable fee, with reasonable supporting information derived pursuant to the foregoing calculations, no later than September 15, to be applied in the ensuing calendar year. b. Vendor Fee. In addition to the foregoing, each Party shall pay a Vendor Fee for the ongoing maintenance of the Shared Equipment and software. The initial Vendor Fee is estimated to be $13,100, for each Party, per year, but this amount is subject to change based upon the Vendor’s charges. If the Vendor contract requires Muskego to pay all of the Vendor Fees for all Parties, Muskego will invoice the other Parties for their pro-rata equal amount. If the Vendor allows for separate invoicing to each of the Parties, each Party shall make its timely payment directly to the Vendor. In any event, the Vendor Fee shall be the amount actually charged by the Vendor, without markup by Muskego. If any Party fails to pay its Vendor Fee when due, in the event the Vendor holds the other Parties accountable for this failure, the non-breaching Parties shall have the right of recovery against the breaching Party for the full amount of the unpaid Vendor Fee plus interest, in the amount of one percent (1%) per month and other expenses or liability arising out of the breaching Party’s failure to pay the Vendor Fee when due. c. Additional Costs. Muskego may charge additional costs to the Parties as expressly provided within this Agreement. 7. PAYMENT PROCEDURES Payment for any Shared Equipment or service pursuant to this Agreement shall be made to the City of Muskego in full within 30 days of billing. If any Party fails to pay in full each payment to be made by it as provided by this Agreement on the due date, in addition to any other penalties or remedies as may apply, 4 the Party shall be indebted to Muskego for the payment due, plus interest at the prevailing prime rate in Milwaukee, Wisconsin, from the due date until payment. Legal action to collect such payments due may be taken by Muskego. In addition to the sum in default, and interest, as above provided there shall be included in the indebtedness and any judgment all costs, disbursements, and a reasonable sum as attorney’s fees. 8. PUBLIC RECORDS To the fullest extent permitted by law, the Parties agree that any records, documents, data, and the like that may constitute public records pursuant to Chapter 19 of the Wisconsin Statutes that may be stored or kept in any manner within the Shared Equipment, shall be the public records of the respective Party to whom they pertain, and shall not be the public record of any other Party. In the event any Party receives a public records request for a document that it may have as a result of this Agreement, but that was created out of activities conducted by another Party, the Parties agree to the fullest extent permitted by law that it shall be the duty of the Party to whom the document pertains to respond to the records request. All Parties hereby agree to accept sole responsibility for each’s own public records. 9. PARTICIPATION Should additional parties not currently under contract with Muskego contract for the services of the Shared Equipment contribute assets, capital, revenue, personnel or make any other contribution which reduces the cost of the operation of the Shared Equipment, a credit shall be issued to all Parties in an amount to be negotiated. The credit shall be the reasonable estimated amount of the pro rata savings impact of such contribution, both for a reduction in on-going operating costs as well as a credit against capital costs already contributed by prior participating Parties. Said credit and reduction shall apply equitably to all contracted customers of the Shared Equipment. In no event shall this credit and reduction, however be larger than one-third of the contribution received by Muskego from any such additional party. Should any Party terminate its participation in this Agreement, pursuant to the termination procedures described herein, this Agreement shall continue between Muskego and the non-terminating Party(ies), subject to the following. The Base Fee described in Section 6 may be modified by mutual agreement, with the intent to compensate Muskego for the services provided to the same extent that Muskego was compensated prior to one of the Parties terminating their participation, recognizing that Muskego’s obligations to provide services may be reduced to some degree under those circumstances. If the Vendor Fee is adjusted by the Vendor under these circumstances, and each Party shall be responsible for the adjusted fees charged by the Vendor. 10. WARRANTIES AND DAMAGES The Parties all agree that there are no warranties, express or implied, by this Agreement or otherwise, as to the product and as to any parts of any systems design, program, 5 implementation, modification or other service provided by Muskego. There is no implied warranty of merchantability or fitness for a particular purpose. There is no warranty of any other kind. Nothing herein is intended to limit or preclude any claims any of the Parties may have against any third parties, including manufacturers, sellers, dealers, repairers, installers or others, nor shall this provision be construed as relating to, or defining in any way, liability as to third parties. In the event that, despite the disclaimer of warranties above, a court of competent jurisdiction determines Muskego to be liable to any other Party in any way under this Agreement or pursuant to any other cause of action, the amount of recoverable damages shall be limited to a pro rata refund of fees paid by the recovering Party to Muskego during the preceding twelve (12) months. 11. THIRD PARTY LIABILITY It is expressly understood by and between the Parties that each Party shall be responsible, in the event of a claim, or judgment by a court of competent jurisdiction, for liability to a third party, to the extent liability shall be found. Nothing in this Agreement shall be construed to limit the entitlement of contribution of a Party against the other in the event of liability to a third party. This Agreement is intended to be solely between the Parties hereto and no part shall be construed to add, supplement, or grant any rights, benefits or privileges of any kind whatsoever to any third party or parties. No Party to this Agreement waives any statutory defenses or liability limitations as a result of entry into this Agreement. The Parties expressly agree to name the other as an additional insured on any policies of liability insurance providing coverage against liability to a third party that in any way arises from or results from participation in this Agreement. 12. MAINTENANCE SERVICE, REPAIRS The Parties acknowledge that Muskego may from time to time render certain systems inoperative for service, repairs, alterations, upgrades, etc. and in doing so it is understood that each Party’s service may be interrupted. Muskego will make every effort to notify all Parties prior to any anticipated down time and provide for alternate methods of providing service for critical systems. The Parties also acknowledge that systems may become inoperative on their own for any number of reasons and Muskego shall only be held responsible for contacting appropriate service companies as soon as reasonably possible after receipt of the request for service and/or maintenance from any of the Parties. 13. DISPUTE RESOLUTION 6 The Parties agree that in the event of any dispute over the terms, performance, or administration of this Agreement, they shall submit first to mediation by a single mediator whose fee shall be split equally by all Parties regardless of outcome. 14. TERMINATION This Agreement may be terminated by a Party with respect to that Party’s obligation under this Agreement upon 30 days written notice, in the event of a material breach of this Agreement by any Party. In the event the Shared Equipment is damaged beyond 50 percent of its estimated value at the time, or becomes obsolete due to technology changes or changes in applicable laws, such that it cannot reasonably be used, this Agreement may be terminated by any Party upon 30 days written notice to the other Parties. This Agreement may be terminated by any Party without cause by providing written notice, with termination to be effective one year following the date of the notice, except that Muskego shall not terminate this Agreement without cause during the initial term. All payment obligations continue through the date of termination, and shall include full payment by all parties for their share of the initial acquisition costs for the Shared Equipment, if not previously paid. In addition, Vendor Fee payment obligations shall continue beyond the date of termination, to the end of the Shared Equipment and software Vendor contract year. Under no circumstances shall Muskego have an obligation to refund any payment made by any Party pursuant to the terms of this Agreement. 15. AMENDMENTS Any amendments to this Agreement shall be in writing and any exhibit hereto shall be approved by the Board or Council of all of the Parties. 16. SHARED EQUIPMENT UNINSURED DAMAGE Any uninsured damage to the Shared Equipment shall be paid by Muskego, subject to an equal pro-rata contribution by each of the Parties for actual costs paid. 17. ASSIGNMENT No Party may assign this Agreement. 18. SEVERABILITY If any provision of this Agreement shall be held or declared invalid, illegal, or unenforceable under any law applicable thereto, such provision shall be deemed deleted from this Agreement without impairing or prejudicing the validity, legality, and enforceability of the remaining provisions hereof. 7 19. INSURANCE Muskego shall procure and maintain during the term of this Agreement sufficient insurance to cover all aspects of this operation including insurance for fire and other perils on the Shared Equipment. Such insurance shall include, but not be limited to property, workers compensation, general and auto liability, energy systems, errors and omissions, and employee dishonesty coverage and advancement of funding by Muskego. Such insurance shall name each of the other Parties to this Agreement as an additional insured. Muskego shall charge an equal pro-rata amount to the Parties for costs incurred by Muskego in providing the insurance required by this paragraph. 20. WISCONSIN LAW This Agreement is to be interpreted in accordance with the laws of the State of Wisconsin. 21. SUBMISSION TO JURISDICTION The Parties agree that this Agreement is made in the State of Wisconsin. All Parties agree that the state and federal courts in the State of Wisconsin shall have exclusive jurisdiction to hear and determine any controversy which may arise out of this Agreement. 22. NO WAIVER OF IMMUNITIES Nothing in this Agreement shall constitute a waiver in whole or in part, of any immunities of any of the Parties under § 893.80 Wis. Stats. or any other statutory or common law. 23. ACKNOWLEDGMENT The respective Parties acknowledge by the signature of its duly authorized representatives below that its authorized agent has read and understands all the terms and conditions of this Agreement as set forth herein, and each of the Parties fully understand that Muskego is a provider of Shared Equipment and service and not an insurer, and the Parties all agree to be bound by such terms and conditions. 24. ENTIRE AGREEMENT This document, including any and all attachments, unless specified as illustrative, constitutes the entire Agreement between the Parties on this subject matter and is intended as a final expression of the Agreement of the parties and the complete and exclusive statement of the terms of the Agreement. All prior and collateral understandings, Agreements and promises with respect thereto are merged herein. No provision of this Agreement shall be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing signed by the party sought to be bound by the waiver, amendment or modification. 8 This Agreement is not binding unless approved in writing by an Authorized Representative of each of the Parties. In the event of failure of approval by Muskego, the only liability of Muskego shall be to return to the other respective Parties the amount, if any, paid to Muskego upon signing of this Agreement by each respective Party. 25. PRESUMPTIONS. This Agreement is the result of negotiations between the Parties, each of whom was represented by counsel. No Party may claim or enjoy any presumption with regard to the interpretation of this Agreement based on its draftsmanship. 26. AUTHORITY The Undersigned each represents and warrants that each is duly authorized to enter into this Agreement on behalf of a respective Party. CITY OF MUSKEGO By: _____________________________________ DATE: _______________ Kathy Chiaverotti, Mayor By: _____________________________________ DATE: _______________ Sharon Mueller, City Clerk VILLAGE OF ELM GROVE By: ______________________________________ DATE: _______________ David De Angelis, Village Manager By: ______________________________________ DATE: _______________ Mary Stredni, Village Clerk VILLAGE OF MUKWONAGO By: _____________________________________ DATE: _______________ Fred Winchowky, Village President By: _____________________________________ DATE: _______________ Steven A. Braatz, Jr., Village Clerk-Treasurer 9 EXHIBIT A Shared Equipment Description (Attach description of every piece of equipment that will be purchased in the performance of this Agreement, which will be subject to the cost sharing.) 10