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MAINTENANCE AND MONITORING AGREEMENT MMA6083405-01Clearwater U City of Clearwater Maintenance and Monitoring Agreement M MA6083405-01 December 2008 Prepared by: MCIS, Inc. 6550 New Tampa Hwy/ Ste B Lakeland, Florida 33815 Phone: (863) 327-1095 Advanced Microwave Engineering Fax: (863) 327-1091 www.mciszone.com TABLE OF CONTENTS ARTICLE 1 -DEFINITIONS ARTICLE 2 - SCOPE OF SERVICE PROVIDER'S DUTIES ARTICLE 3 - RESPONSIBILITIES OF THE OWNER ARTICLE 4 - COMPENSATION ARTICLE 5 - TERM AND TERMINATION ARTICLE 6 - INDEMNIFICATION ARTICLE 7 - FORCE MAJEURE This Proposal and Quotation is the property of MCIS, Inc. It cannot be copied or reproduced in whole or Pg 2 of 9 part without the express written consent of MCIS, Inc. ARTICLE 1 - DEFINITIONS As used in this Agreement, the following terms shall have the meaning specified below: "AA remement" shall mean this Maintenance and Monitoring Agreement and any and all exhibits attached hereto. The intent of this Agreement is guided by the Maintenance and Monitoring Agreement Goals, Approach, and Philosophy. "Approach" • Due to the complexity of Owner's microwave system and the potential for performance and reliability degradation associated with system modification and/or expansion, MCIS, Inc. will be Owner's exclusive microwave system service provider for the term of this Agreement. MCIS will provide maintenance, monitoring and on-demand services to facilitate a highly reliable and well performing microwave communication system. MCIS will provide microwave system expansion services in a manner that is well engineered, maintains microwave system reliability, maximizes microwave system performance, and minimizes self interference. MCIS, Inc will provide microwave system analysis in a manner that utilizes industry standard tools and methods to maintain microwave system performance and reliability. "Billing Period" shall mean the period commencing with the Effective Date and ending on the last day of each following month. "Direct Ex eases" shall mean the expenses incurred by the Service Provider during the performance of services. These expenses include but are not limited to (i) labor costs as described herein (see ARTICLE 4 - Compensation), (ii) the cost of consumables, materials, equipment, replacements and third-party services used by the Service Provider in the performance of services, (iii) all costs associated with the fees, rents, duties and transportation of material used in the performance of services, (iv) any applicable taxes, provided that Service Provider shall be responsible for any interest and penalties from any deficiency that arises from Service Provider's failure to remit to the appropriate authorities taxes that Service Provider has collected from Owner, or to invoice Owner for the applicable amount, provided, however that withstanding the foregoing, each party shall be responsible for taxes based on its own net income, employment taxes of its own employees and taxes on any property it owns or leases. This includes any interest and penalties from any related deficiencies thereon. Service Provider shall separately state on each invoice any amounts collected and payable by Services Provider as taxes under this Agreement, (v) any other documented expenses directly associated with services provided pursuant to this Agreement, other than Liquidated Damages. "Force Maieure" shall mean any unforeseeable or unpreventable event beyond the reasonable control and without gross negligence of the party alleging its occurrence, which, despite all reasonable efforts such party takes to prevent its occurrence or mitigate its effects, causes a delay or disruption in the performance of any obligation imposed on such a party hereunder. Subject to the foregoing, Force Majeure shall include but not be limited to: meteorological or atmospheric conditions; This Proposal and Quotation is the property of MCIS, Inc. It cannot be copied or reproduced in whole or Pg 3 of 9 . part without the express written consent of MCIS, Inc. interference from new or existing sources; explosions; fires; storms; floods; lightning; system emergencies; any Force Majeure event described in the foregoing clauses that affects the performance of any person that is party to any material services; and any events that are deemed to be Force Majeure events under applicable law. "Effective Date" shall mean February 1, 2009. "Maintenance" shall mean a routine and scheduled review of system performance and system conditions, as defined in Section 2.2 that will be performed annually to assess whether the System is in good working order and in accordance with manufactures' recommendations. "Monitoring" shall mean the 24x7x365 remote monitoring of the System by the Service Provider as a proactive approach to preventive monitoring of the System. To accomplish the remote monitoring, Owner shall permit Service Provider to place remote monitoring equipment on Owner's premises, with the equipment having network access to the radios, and Service Provider having remote access to the monitoring equipment. "Notification" shall mean verbal or written contact and communication with the Service Provider's Representative via the designated call number. "Owner" shall mean the exclusive owner of all rights to the System. "Owner's Representative" shall mean a representative of the Owner who will be available (or whose delegate will be available) at all times as a liaison between the Owner and Service Provider. "Parties" shall mean all named parties within this Services and Monitoring Agreement. City Of Clearwater (Owner) Dan Mayer Owner's Representative Director of Information Technology 100 S. Myrtle Ave. Clearwater, FL 33756-5520 MCIS INCORPORATED (Service Provider) Mr. Rue Hestand Service Provider's Representative President - MCIS, Inc. 6550 New Tampa Hwy Lakeland, FL 33815 (863) 327-1095 "Philosophy" The Owner's System represents a significant wireless system needing high reliability and effective. support services. The success of the project and quality of ongoing operations are important factors in not only the operational and financial performance of the project but also in the credibility and effectiveness of MCIS. The philosophy of this Agreement is to ensure the current, modified, or This Proposal and Quotation is the property of MCIS, Inc. It cannot be copied or reproduced in whole or Pg 4 of 9 part without the express written consent of MCIS, Inc. expanded system is well engineered and performs in a reliable manner and according to industry standards. "Replacements" shall mean the replacement of units of property. "Response Plan" shall mean a pre-determined plan to respond in a timely manner to correct various problem conditions that may arise from time to time. "Site" shall mean the real property on or in which the equipment is located. "Service" shall mean the services to be performed by the Service Provider pursuant to the provisions in this Agreement and submitted to the Owner for approval in accordance with ARTICLE 2 hereof. "Maintenance and Monitoring Agreement Goal": This Services Agreement has been structured with the goal of: Assuring a well engineered, reliable and effective wireless communication system exists to deliver connectivity between the Owner's facilities. Creating goal alignment among the parties in order to maximize performance of the System in the areas of connectivity, reliability, licensing, cost effectiveness, safety, customer satisfaction, and legal compliance. "Service Provider" shall mean the provider of services (MCIS, Inc.), as described in ARTICLE 2 herein. "Service Provider's Representative" shall mean a representative of the Service Provider who will be available (or whose delegate will be available) at all times as a liaison between the Owner and Service Provider. "System" shall mean the equipment, software, mounting hardware, equipment enclosures, and cabling related to the microwave links covered by this agreement. There are two (2) microwave links covered by this agreement. These are the links from the Missouri tower to Fire Station 48 and from the Missouri tower to PCSO. "Unscheduled Maintenance" shall mean any corrective action or repair of the system and equipment, whether of an emergency or non-emergency nature, other than maintenance as defined herein. ARTICLE 2 - SCOPE OF SERVICE PROVIDER'S DUTIES 2.1 Service Provider Policies 2.1.1 In maintaining the System, the Service Provider shall at all times (i) follow industry standards, (ii) comply with applicable laws and permits, (iii) comply with related agreements, and (iv) follow the industry acceptable procedures. This Proposal and Quotation is the property of MCIS., Inc. It cannot be copied or reproduced in whole or Pg 5 of 9 part without the express written consent of MCIS, Inc. 2.1.2 Due to the complexity of Owner's microwave system and the potential for performance and reliability degradation associated with system modification and/or expansion, MCIS, Inc. will be Owner's exclusive microwave system service provider for the term of this Agreement. MCIS will provide monitoring and on-demand services to facilitate a highly reliable and well performing microwave communication system. 2.1.3 For purposes of this Agreement, the Service Provider shall hold and treat all Owner's technical data, analysis, plans, programs, schedules, maps, records, reports, tapes and other information of any kind whatsoever developed or acquired at any time by the Service Provider in the strictest of confidence and shall not disclose without the prior written consent of the Owner. 2.2 Maintenance Services 2.2.1 Service Provider will perform an annual review of system performance through on-site visits, system performance testing, and summary reports documenting performance and system condition. 2.2.2 Service Provider will provide recommendations on any corrective action necessary to return the System to normal operating conditions and budgetary cost estimates for corrective action. 2.2.3 Service Provider will provide engineering and design services for system modifications, reconfigurations and/or system expansion at a mutually agreed upon cost. 2.2.4 Service Provider will document all services and activities performed, and submit detailed reporting of activities. 2.3 Unscheduled Maintenance Services 2.3.1 Service Provider will be available for Unscheduled Maintenance services twenty four (24) hours per day and seven (7) days per week by the Owner contacting the Service Provider Representative. 2.3.2 Service Provider will provide phone response to any Owner's request for Unscheduled Maintenance services within four (4) hours of notification. 2.3.3 Service Provider will develop and maintain an Unscheduled Maintenance Response Plan, as required, to enable timely response, efficient System restoration, and contingency planning. Service Provider will review Response Plan with Owner to achieve a mutually acceptable plan. 2.3.4 In the case of System repair or emergency restoration associated with Unscheduled Maintenance services, the Service Provider will begin troubleshooting and/or provide This Proposal and Quotation is the property of MCIS, Inc. It cannot be copied or reproduced in whole or Pg 6 of 9 part without the express written consent of MCIS, Inc. phone response within four (4) hours of notification and give priority service through continuous service to the owner until the System is restored to operating condition. 2.3.5 Service Provider will document all services and activities performed, and submit detailed reporting with billing invoices. 2.3.6 Service provider will coordinate with owner to develop an appropriate supplemental inventory to support system response. 2.4 Monitoring Services 2.4.1 Service Provider will provide 24x7x365 remote monitoring of the System as a proactive approach to preventive maintenance of the System, and Service Provider will provide Owner with quarterly reports reflecting the System's performance. 2.4.2 Service Provider will provide recommendations on any corrective action necessary to return the System to normal operating conditions and a proposal for corrective action. 2.4.3 Service Provider will document all services and activities performed, and submit detailed reporting of activities on a monthly basis. 2.4.4 Service Provider will respond to any Owner's request for maintenance and Service Provider will contact Owner if the remote monitoring shows signs of less-than-optimal performance of the System. ARTICLE 3 - RESPONSIBILITIES OF THE OWNER 3.1 The Owner shall be responsible for making such business decisions as may be required from time to time in connection with the expansion, operation and monitoring of the System. 3.2 The Owner shall permit Service Provider to place remote monitoring equipment on Owner's premises, with the equipment having network access to the radios, and Service Provider having remote access to the monitoring equipment. 3.3 The Owner shall ensure an Owner's Representative has been assigned. ARTICLE 4 - COMPENSATION In exchange for performing the Services hereunder, the Owner shall compensate and/or reimburse the Service Provider for Maintenance, Unscheduled Maintenance, Monitoring and Direct Expenses. 4.1 Services Fee This Proposal and Quotation is the property of MCIS, Inc. It cannot be copied or reproduced in whole or Pg 7 of 9 part without the express written consent of MCIS, Inc. 4.1.1 Maintenance Standby and Monitorin The Service Provider shall invoice and the Owner shall pay to the Service Provider service fees of $1,000.00 per month beginning on the Effective Date and lasting through the Term as defined in Article 5. 4.1.2 Maintenance / Expansion Where maintenance outside of the scope of this maintenance agreement and/or expansion is required, the Service Provider shall invoice and the Owner shall pay to the Service Provider service fees according to specific terms and conditions detailed in proposals that are mutually agreed to between Owner and Service Provider prior to work being performed. 4.1.3 Unscheduled Maintenance Where unscheduled maintenance is required or requested by the Owner or is in response to notification from the Service Provider of system anomalies, the Owner shall reimburse the Service Provider for Direct Expenses as defined in ARTICLE 2 plus Services Provider's time per the incorporated fee schedule, less 10% of the fees reflected on the schedule. In the case of an Emergency Call-Out, Service Provider will not invoice based on the Emergency Call-Out rates. Hours will be billed at our scheduled maintenance rates. ARTICLE 5 - TERM AND TERMINATION 5.1 Term This Agreement shall become effective on the Effective Date and, unless earlier terminated as hereinafter provided, shall remain in full force and in effect until the earlier to occur of (a) One Year (1) from the Effective Date (b) termination by the Owner, in accordance with Section 5.2, or (c) mutually acceptable termination by Owner and Service Provider. 5.2 Owner's Termination Owner shall have the right to terminate this Agreement upon (30) day prior written notice, without cause but with liability for reimbursement of all Maintenance and contractual fees prior to and including the effective date of termination. 5.3 Effect of Termination Except as expressly stated herein, notwithstanding termination, neither party shall be relieved from any obligations or limited liabilities accruing prior to the effective date of termination, including in the case of the Owner, its obligations to make payment to the Service Provider of all sums due to the Service Provider under this Agreement including payment for performance of Services prior to and including the effective date of termination. ARTICLE 6 - INDEMNIFICATION 6.1 Service Provider shall be liable for and shall indemnify, defend and hold Owner, its officers and directors, harmless against any claim, loss or damage, including reasonable attorneys' fees, arising from the fault or negligence of Service Provider or Service Provider's employees or agents for personal injury or death, or damage to personal or real property in connection with the performance of the Services. Service Provider shall make no claims against Owner for any damages This Proposal and Quotation is the property of MCIS, Inc. It cannot be copied or reproduced in whole or Pg 8 of 9 part without the express written consent of.MCIS, Inc. to Service Provider, either for personal injury, including death, or for injury to property of any nature, unless such loss is exclusively the result of Owner's gross negligence or willful misconduct. ARTICLE 7 - FORCE MA,IEURE 7.1 Effects of Force Majeure If either party hereto should be delayed in or prevented from performing or carrying out any of the agreements, covenants, and obligations made by and imposed upon the said party by this Agreement, by reason of or through Force Majeure, then and in such a case or cases, the affected party shall be excused, to the extent it has been affected by such Force Majeure, without cost or liability to the other for failure or delay in performance of any obligation set for in this Agreement except the obligation to pay money when due and any obligation of either party that arose before the Force Majeure event, and in the event of a delay, all times of performance shall be extended by a period equal to the time lost solely by reason of such delay; provided, however, that the equipment extended warrantees are not exceeded, the affected party shall use due and practicable diligence to remove the cause or causes thereof; and provided, further, that neither party nor its contractors shall be required by the foregoing provisions to settle a legal action without the other party's prior written consent, settle or compromise only if such settlement or compromise includes a full and unconditional release of the either party from any liability arising from such claim. 7.2 Required Notices The party affected by such Force Majeure event shall notify the other party in writing of the occurrence of the event including a description of the event as soon as practicable but no later than three (3) days from the date the affected party becomes aware of the Force Majeure event. MCIS, Inc. Owner By: By: SF A -IT ACH Eli `Q VAA., Rue S. Hestand IV President Date: /19,10 Date: This Proposal and Quotation is the property of MCIS, Inc. It cannot be copied or reproduced in whole or Pg 9 of 9 part without the express written consent of MCIS, Inc. City of Clearwater 112 South Osceola Avenue Clearwater, FL 33756 Re: MCIS, Maintenance and Monitoring Agreement MMA6083405-01 Approved as to form: Leslie K. Dougall i es Assistant City Attorney CITY OF CLEARWATER, FLORIDA By: . William B. Horne II City Manager Attest: - z A ?-? Cynt E. Goudeau City Irk