R-02-10-24-11C3 - 10/24/2002CITY OF ROUND ROCK AGREEMENT
FOR PROVISION OF ELECTRONIC
TRACKING SYSTEMS BY
ELECTRONIC TRACKING SYSTEMS, L.L.C.t
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oe;r066/2d THIS AGREEMENT is made and entered into on this the day of the month of
, 2002, by and between the City of Round Rock, a Texas home -rule municipal
corporation, whose offices are located at 221 East Main Street, Round Rock, Texas 78664 -5299
(hereinafter referred to as "City "), and Electronic Tracking Systems, L.L.C., whose offices are located at
2545 Tarpley Road, Carrollton, Texas 750061 (hereinafter referred to as "ETS ").
NOW, THEREFORE, WITNESSETH:
RECITALS:
WHEREAS, City has requested that ETS provide goods and services, training, operation and
maintenance of a tracking system and its necessary components to aid in City's provision of police
services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective
rights, duties and obligations hereunder.
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually
agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date it has been signed by each party hereto, and shall
remain in full force and effect unless and until it expires by operation of the term indicated herein, or is
terminated as provided herein.
The term of this Agreement shall be for an initial term of three (3) years from the effective date
hereof, and thereafter may be renewed for successive one (1) year periods by written agreement of the
parties unless previously terminated in writing by either party as provided for herein.
City reserves the right to review the relationship at the end of any year with a sixty day notice,
and may elect to terminate this Agreement with or without cause or may elect to continue.
1.02 DEFINITIONS
N, \CONTRACT ADMINISTRATION\Round Rock ETS tracking contract with PD (00032935).DOC
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As used in this Agreement, the following terms shall be defined as Kt forth in this section. All
capitalized terms not otherwise defined in this Section 1.02 shall have the meanings assigned in the part
of this Agreement in which they are defined.
A. AWM — the Area Wide Monitor installed in the Round Rock Police Department dispatch center
that allows the general location tracking of specific wireless radio frequency transmitters powered
by a battery within the System Coverage Area.
B. Fixed Site Beacon — a low power transmitter typically located near the Primary Location that
allows the operator to confirm the proper operation of, and calibrate, a Vehicle Receiver and
Vehicle Display.
C. Host Agency — Round Rock Police Department, the City agency that is designated to host the
AWM in the Tracking System.
D. Installation Kit — a kit used to outfit a vehicle with cabling to allow the use of a Vehicle Receiver
and Vehicle Display in that vehicle, consisting of an Interconnect Cable, three color-coded
antenna cables, antennas and a receiver rack.
E. New Area — a geographical area, denoted by municipal limits (or geographical area within a
municipality) or other geographical area, not covered by the ETS Services at the Effective Date,
but which, by subsequent written agreement of the parties, is "built out" by ETS and becomes
covered by ETS' Services during the term of this Agreement or any extension of this Agreement.
F. Order — a purchase order, work order, electronic transmission or Round Rock Police Department
request that is documented in writing within thirty (30) days after the date such request is made.
A "Service Acknowledgment" form that is signed by or on behalf of City and /or Round Rock
Police Department at the time of delivery of Services shall be deemed to be an Order and an
acknowledgment that the Services were performed.
G. Party — City of Round Rock, Texas or Electronic Tracking Systems, L.L.C.
H. Person — any individual, corporation, partnership, limited liability company, trust, association,
agency or other entity.
I. Pocket Detector or Hand -Held Tracker — portable, handheld equipment that is able to receive
transmissions from, and track the location of, a Tag.
J. Primary Location — the precinct headquarters or similar central office of Round Rock Police
Department.
K. Rat Trap — a plastic box with an affixed magnetic plate that deactivates a TracPac when it is
placed inside the box.
L. Remote Receiver — a device that is able to receive transmissions from Tags within the System
Coverage Area and transmits information to the AWM, by telephone, microwave or other data
transmission medium to enable the recipient to determine a general location of a Tag.
M. Representative — a person designated herein as an official agent or representative of a party
hereto.
N. Services — includes, without limitation, all professional, management, labor and general services,
together with any materials, supplies, tangible items, or other goods furnished or used by ETS in
connection with the operation and maintenance of the Tracking System, as further described in
Section 1.03.
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O. Stake -Out Tag — a wireless radio signal transmitter powered by a battery, and used by Round
Rock Police Department, concealed or housed in a medium to allow the tracking of products,
vehicles or persons.
P. System Coverage Area — the geographical area determined and defined by ETS within which a
radio signal transmitted by a non - stationary Tag could be received by at least one Remote
Receiver.
Q. Tag — a TracPac or a Stake -Out Tag.
R. Tracker — a Receiver and a Display.
S. Tracking System — a wireless system designed to establish and /or track the approximate location
of Tags within a defined geographical area.
T. TracPac — a wireless radio signal transmitter powered by a battery, covered on both sides with
currency, or housed in jewelry pedestals, and used at locations of clients of ETS within the
Coverage Area.
U. Training Tag — a wireless radio signal transmitter powered by a battery used for training purposes
that transmits on either the standard frequency or the training frequency used by the Tracking
System.
V. User Components — AWM, Vehicle Receivers, Pocket Detectors, Stake -Out Tags, Installation
Kits, Hand Held Trackers, Vehicle Displays, Fixed Site Beacons, Training Tags, Pocket Beacons
Cable Testers, Remote Receivers, Test Transmitters and Rat Traps.
W. Vehicle Display — a device typically installed on the dash of a vehicle that receives information
from a Vehicle Receiver and indicates the direction and relative signal strength of a transmitting
Tag within range of the Vehicle Receiver.
X. Vehicle Receiver — a device typically installed in the trunk of a vehicle that is able to receive
transmissions from a Tag and, along with other Tracking System components, is able to track to
the location of a Tag.
1.03 ETS' RESPONSIBILITIES (SCOPE OF WORK)
ETS shall satisfactorily and timely provide and perform the following Services in accordance
with this Agreement and the specifications and timeframes set forth in this Section 1.03. ETS shall
commence work only upon receipt of an Order to Proceed from City /Round Rock Police Department.
During the term of this Agreement, ETS shall:
A. Deliver the User Components to Host Agency in good operating condition for use in the Tracking
System.
B. Install the User Components (other than Installation Kits) and train personnel designated by Host
Agency on the installation of the vehicle and helicopter installation kits (including special tools
and templates).
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C. Select the location of, install and secure the Fixed Site Beacons.
D. Install Mini AWM, and coordination of telephone interface.
E. Train personnel designated by Host Agency as instructors in the operation of the Tracking
System.
F. Perform annual preventive maintenance on all Tracking System components.
G. Use its best efforts to repair and replace all User Components within two (2) business days of
receiving such User Component, at ETS' sole cost and expense if the repair or replacement is
necessitated by ordinary wear and tear or because of a defect in the User Component. Repaired
and replaced equipment will be retumed by ETS to the address on the equipment repair form via
Federal Express 2 Day Air Service; provided, however, that Host Agency may request (subject
to the reasonable approval of ETS) that ETS return any such equipment by Federal Express Next
Day Air Service for parts critical to the functioning of the Tracking System.
H. Replace vehicle Installation Kit parts from the Spare Parts Kit maintained by the Host Agency,
upon written request by Host Agency, if Host Agency (i) provides ETS with evidence reasonably
satisfactory to ETS that the Installation Kit parts are actually replaced in Host Agency vehicle;
and (ii) returns to ETS any defective cable connectors or similar items so replaced if requested in
writing by ETS.
I. Replace antenna stingers as reasonably necessary from time to time for Host Agency vehicles;
provided, however, that if such replacement is a result of events or circumstances other than
ordinary wear and tear, then such replacement shall be at the expense of Host Agency.
J. Provide a Troubleshooting Guide and test equipment to Host Agency to allow Host Agency
personnel to test, troubleshoot and service the User Components before returning the User
Components to ETS for repair.
K. Provide technical assistance either by telephone or, if necessary or specifically requested by Host
Agency, in person. In this regard and pursuant to provisions of paragraph 1.04, Host Agency
shall make reasonable, good faith attempts to remedy any technical issue via telephonic
consultation prior to requesting a personal visit.
L. Participate in an annual review of the Tracking System operations.
M. Coordinate the use of TracPacs by financial institutions and other businesses in the Coverage
Area with Host Agency, and provide appropriate training of such clients in the use of TracPacs
and the operation of the Tracking System.
1.04 CITY'S RESPONSIBILITIES
Host Agency Installation Obligations: Host Agency shall:
A. Provide a key liaison person to coordinate efforts of all Divisions /Departments in the Host
Agency and a contact point for ETS personnel. The liaison officer is designated as the following:
Sergeant Joe Klingensmith
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B. Provide facilities for the following:
• installing User Components (vehicle Installation Kits, AWM, Fixed Beacons):
• receiving and storing equipment shipped from ETS to the installation site; and
• training facilities to train trainers.
C. Provide a phone termination point at the AWM location for Remote Detector lines.
D. Provide power to the Mini AWM and Fixed Site Beacons (conduit and hook -up on hot circuit).
E. Install vehicle Installation Kits.
F. Designate and make available an appropriate number of Host Agency personnel to be trained by
ETS as instructors to enable Host Agency personnel to train other personnel in sufficient numbers
to provide optimum utilization of the Tracking System on an ongoing basis.
G. Train patrol, communications, installers and other persons involved in the Tracking System with
Host Agency trainers trained by ETS and ensure the participation of patrol and communications
personnel in Tracking System testing and training prior to the activation of the Tracking System
to ensure optimum utilization of the Tracking System.
H. Create a training plan for future training for:
• new personnel who may operate the User Components;
• periodic retraining of patrol and communications personnel; and
• scenario training with operational system
I. Develop and prepare written departmental procedures for each division involved in the system
operation of the Tracking System.
J. Develop and prepare a tactical plan for use of the Tracking System to ensure coverage within the
Coverage Area 24 hours per day, 7 days per week.
K. Provide, or secure permission to use, Remote Detector sites and pay any associated lease
payments or fees.
L. Obtain and pay for the installation and monthly fees for phone lines from Remote Detectors to the
AWM based upon information provided by ETS.
M. Provide personnel and/or communications to assist in range testing of Tracking System, and final
training and testing of the Tracking System.
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Host Agency Maintenance Obligations: Host Agency shall perform the following obligat
A. Vehicle Installations
• Repair/Replace Vehicle Installations with parts from ETS Spare Parts Kit provided by ETS
including the following:
• Pull equipment out of retiring cars and install in new cars.
• Check power connections.
• Check cables (antenna and interconnect) with Cable Tester provided and repair as indicated.
• Check Interconnect Cable connectors for bent pins, loose connections, and locks and repair as
required.
• Check antennas for condition and repair /replace as needed with parts from the Spare Parts
Kit.
• Replace Velcro on dash as needed from Spare Parts Kit.
• Check Receiver rack mountings and repair as needed.
B. Trackers and Displays
Troubleshoot with Troubleshooting Guide provided by ETS to determine problem. If problem is
with the equipment, return to ETS (in Carrollton, Texas) for repair after acquiring necessary
RMA number form ETS.
C. Pocket Detectors and Hand Held Trackers
• Replace batteries as needed.
011S:
• Troubleshoot with Troubleshooting Guide provided by ETS to determine problem. If
problem is with the equipment, return to ETS (in Carrollton, Texas) for repair after acquiring
necessary RMA number form ETS.
D. Fixed Site Beacons
• Replace light bulbs as needed.
• Reset times as needed (daylight savings time).
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• Troubleshoot with Troubleshooting Guide provided by ETS to determine problem. If
problem is with the equipment, return to ETS (in Carrollton, Texas) for repair after acquiring
necessary RMA number from ETS.
E. Area Wide Monitor
• Check power to unit problems and repair.
• Troubleshoot with guidance provided by ETS over the phone.
F. Remote Detectors and phone lines
• Troubleshoot with Troubleshooting Guide provided by ETS to determine problem. If
problem is with the equipment, return to ETS (in Carrollton, Texas) for repair after acquiring
necessary RMA and number from ETS.
• Call phone company to report phone line problems and follow up with checks.
G. Other Obligations:
• Cause no less than fifty percent (50 %) of vehicles equipped with Vehicle Receivers/Vehicle
Displays to be in service at all times.
• Participate in an annual review of Tracking System operations
• Maintain a current inventory of parts for User Components to perform maintenance
obligations.
• Maintain all User Components and return defective User Components to ETS for repair or
replacement.
• Provide personnel and/or communications to assist in annual range testing of the Tracking
System.
• Pay for the repair or replacement (whichever is less) for all User Components that are
damaged or lost, ordinary wear and tear and defects excepted, in accordance with the
following schedule:
Mini AWM
Vehicle Receiver
Pocket Detector
Stake -Out Tag
Vehicle Installation Kit
Aircraft Installation Kit
Hand Held Tracker
Vehicle Display
Fixed Site Beacon
Training Tag
Test Transmitter
Pocket Beacon
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$1,250.00
52,050.00
$275.00
5135.00
$200.00
$500.00
52,200.00
$325.00
$400.00
$120.00
5300.00
5145.00
H. Return Procedures:
Cable Tester $550.00
Remote Detector 52,700.00
• Obtain from ETS a Return Material Authorization (RMA) number before returning
equipment to ETS (in Carrollton, Texas)
• Complete ETS Equipment Repair Form prior to return of equipment and return completed
form with equipment.
• Pack and ship equipment to ETS (in Carrollton, Texas) facility via Federal Express 2nd Day
Air Service with an airway bill provided by ETS.
Host Agency Obligations Regarding Robbery Information: Host Agency shall promptly notify ETS
of any robbery within the Coverage Area in which a TracPac was activated. Host Agency shall also
provide ETS, as soon as reasonably possible after the end of each calendar year, a report on the total
number of robberies within the Coverage Area during that previous calendar year at all financial
institutions, whether serviced by the Tracking System or not. Host Agency and ETS will compile and
reconcile data for the robberies in the previous year. All such information is subject to Section 1.09
entitled "Confidential Information" in this Agreement.
Host Agency Obligations Regarding Maintenance Visits: All maintenance visits shall be planned and
scheduled by ETS, subject to the reasonable approval of Host Agency, and Host Agency shall be
responsible for distributing to its personnel notice of such maintenance sessions so that all maintenance
events may be attended by the appropriate Host Agency personnel.
1.05 PAYMENT AMOUNT
In consideration for the satisfactory provision of the goods and services delineated herein, and
pursuant to this Agreement, City shall pay the following service fees and invoices. ETS invoices shall be
submitted to Host Agency at the address listed herein for notices to Host Agency, unless Host Agency
specifies another address in writing to ETS.
A. ETS' invoices for damaged or lost User Components shall be paid within thirty (30) days upon
the receipt of an invoice.
B. ETS' invoices for additional or one -time components of the Services such as additional Stake -Out
Tags will be invoiced at ETS' then - current rates as disclosed by ETS to Host Agency prior to the
time of Order, and shall be due and payable in full thirty (30) days upon the invoice receipt.
1.06 PAYMENT TERMS
To be eligible to receive payments under this Agreement, ETS shall timely complete activities
delineated in Section 1.03 entitled "ETS' Responsibilities (Scope of Work)." Upon satisfactory
completion, ETS shall prepare and submit itemized invoices in a form acceptable to City, with
appropriate documentation attached. City shall pay ETS in accordance with the prompt payment policy
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described in Section 1.07 herein.
1.07 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to ETS will be
made within thirty (30) days of the day on which City receives the performance, or within thirty (30) days
of the day on which the performance of services was complete, or within thirty (30) days of the day on
which City receives a correct invoice for the performance or services, whichever is later. I3TS may
charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not
made in accordance with this prompt payment policy; however, this policy does not apply to payments
made by City in the event:
there is a bona fide dispute between City and ETS concerning the services performed that
causes the payment to be late; or
2. the terms of a federal contract, grant, regulation, or statute prevent City from making a
timely payment with federal funds; or
3. there is a bona fide dispute between ETS and a subcontractor or between a subcontractor
and its supplier concerning the services performed which causes the payment to be late;
or
4. the invoice is not mailed to City in strict accordance with instructions, if any, on any
purchase order, or this Agreement or other such contractual agreement.
1.08 NON - APPROPRIATION
This Agreement is a commitment of City's current revenues only. It is understood and agreed that
City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing
body of City does not appropriate funds sufficient to purchase the services as determined by City's budget
for the fiscal year in question. City may effect such termination by giving ETS a written notice of
termination 30 days prior to the end of its then - current fiscal year.
1.09 CONFIDENTIAL INFORMATION
A. Each Party (a) shall hold in strict confidence the contents of this Agreement and all information
that is either designated as confidential by the other Party or is otherwise of a confidential or
proprietary nature, including, without limitation, any information relating to (i) the Services, (ii)
the records of Host Agency, (iii) all clients of ETS, (iv) the practices and procedures used by ETS
in performing the Services, (v) any relationships of ETS with any other law enforcement or
governmental agency or (vi) the business, operations, methods or plans of either Party
(collectively, the "Confidential Information "), and (b) shall take all reasonable steps to protect
such Confidential Information, and (c) shall not use or disclose any Confidential Information of
the other Party other than in furtherance of the purposes of this Agreement or as expressly
authorized herein. However, ETS shall have the right, in its sole discretion, (a) to disclose and
describe its services and products and any other Confidential Information of ETS in any
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described in Section 1.07 herein.
1.07 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to ETS will be
made within thirty (30) days of the day on which City receives the performance, or within thirty (30) days
of the day on which the performance of services was complete, or within thirty (30) days of the day on
which City receives a correct invoice for the performance or services, whichever is later. ETS may
charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not
made in accordance with this prompt payment policy; however, this policy does not apply to payments
made by City in the event:
1. there is a bona fide dispute between City and ETS concerning the sery ices performed that
causes the payment to be late; or
2. the terms of a federal contract, grant, regulation, or statute prevent City from making a
timely payment with federal funds; or
there is a bona fide dispute between ETS and a subcontractor or between a subcontractor
and its supplier concerning the services performed which causes the payment to be late;
or
4. the invoice is not mailed to City in strict accordarce with instructions, if any, on any
purchase order, or this Agreement or other such contractual agreement.
1.08 NON - APPROPRIATION
This Agreement is a commitment of City's current revenues only. It is understood and agreed that
City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing
body of City does not appropriate funds sufficient to purchase the services as determined by City's budget
for the fiscal year in question. City may effect such termination by giving ETS a written notice of
termination 30 days prior to the end of its then - current fiscal year.
1.09 CONFIDENTIAL INFORMATION
A. Each Party (a) shall hold in strict confidence the contents of this Agreement and all information
that is either designated as confidential by the other Party or is otherwise of a confidential or
proprietary nature, including, without limitation, any information relating to (i) the Services, (ii)
the records of Host Agency, (iii) all clients of ETS, (iv) the practices and procedures used by ETS
in performing the Services, (v) any relationships of ETS with any other law enforcement or
governmental agency or (vi) the business, operations, methods or plans of either Party
(collectively, the "Confidential Information "), and (b) shall take all reasonable steps to protect
such Confidential Information, and (c) shall not use or disclose any Confidential Information of
the other Party other than in furtherance of the purposes of this Agreement or as expressly
authorized herein. However, ETS shall have the right, in its sole discretion, (a) to disclose and
describe its services and products and any other Confidential Information of ETS in any
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advertising media or in presentation with potential clients or customers, and (b) to disclose any
Confidential Information to any other law enforcement agencies (each a "Permitted Disclosure ");
provided further that any such Permitted Disclosure shall not diminish the confidentiality
obligations of Host Agency set forth herein. Each Party further agrees to take all reasonable
precautions to prevent any unauthorized disclosure of any Confidential Information by its
representatives, consultants or any third party, either before or after any termination of this
Agreement. Each Party shall indemnify the other Party for loss incurred by the Party seeking
indemnification as a result of such unauthorized disclosure.
B. Each Party will take reasonable steps to ensure that confidentiality agreements are entered into
with any representative, consultant, or third party to whom this Confidential Information is
disclosed that provide protections similar to the protections set forth in this Section 1.09, and no
Confidential Information regarding the other Party shall be disclosed other than (a) to any person
who needs to know such information in performing services to or on behalf of the disclosing
Party, (b) to law enforcement or governmental agencies or insurers that have a need to know such
Confidential Information, (c) to any lender or person entering into a business relationship with
such Party that has a need to know Confidential Information regarding the other Party in
evaluating a proposed transaction, (d) in connection with any disclosure list compelled by a court
or similar tribunal having jurisdiction overthe Party from whom disclosure is requested, or (e) as
a result of any Permitted Disclosure by ETS. If a subpoena or other legal process in any way
concerning Confidential Information is served upon a party to which Confidential Information
has been disclosed ( "Recipient "), the Recipient shall notify the disclosing Party ( "Discloser ")
promptly and cooperate with the Discloser, at the Disclosure's expense, in any lawful effort to
contest the validity of such subpoena or other legal process. This paragraph will in no way limit
either Party's ability to satisfy any governmentally required disclosure of its relationship with the
other Party, or either Party's ability to satisfy any requests or demands generated in the course of
audits (whether legal, accounting, regulatory, insurance or otherwise) of such Party (or with
respect to ETS,' of its clients or customers). Agency may reproduce all reports provided by ETS.
However, all reports provided by ETS are to be held and treated by Agency as Confidential
Information under this Section 1.09 of this Agreement and shall receive the same care for
confidentiality that Host Agency uses for its own Confidential Information.
C. The obligations of confidentiality in this Section 1.09 and in Section 1.10 herein shall not apply to
any information which must be disclosed by City as a municipality subject to the Texas Open
Meetings Act and Open Records Act or similar statutes, any information which a Party
independently develops, information which is or becomes known to the public other than by
breach of this Section 1.09 or Section 1.10 herein (other than as a result of a Permitted Disclosure
by ETS or city), or information rightfully received by a party from a third party without the
obligation of confidentiality.
D. Upon any termination of this Agreement, each Party shall return to the other any Confidential
Information in its possession regarding the other Party.
1.10 NO UNAUTHORIZED DISCLOSURE; INJUNCTIVE RELIEF
Neither Party shall advertise or publicly release any information (other than any Permitted
Disclosure by ETS) regarding the existence of this Agreement or the Services to be provided hereunder
without the prior written approval of the other Party. Host Agency acknowledges and agrees that the
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effectiveness of the Services provided to Host Agency and other clients of ETS depends, in part, upon the
absence of public knowledge regarding the Services and the business processes of the products of ETS,
and further acknowledges that any improper disclosure of the business processes of ETS could materially
and adversely affect the business operations of ETS. Therefore, the Parties further agree that because
monetary damages alone may not be sufficient to compensate a Party for the loss of its Confidential
Information, that either Party, in addition to any other legal and equitable remedies that it may have, shall
be entitled to injunctive or equitable relief against the breach or threatened breach of this Agreement by
the other Party.
The obligations of non - disclosure in this Section 1.10 shall not apply to any information which
must be disclosed by City as a municipality subject to the Texas Open Meetings Act and Open Records
Act or similar statutes.
1.11 TAXES
The prices specified in this Agreement, unless otherwise expressly stated herein, shall exclude all
taxes, assessments and duties of any kind that ETS is required to pay with respect to the provision of
Services pursuant to this Agreement. Host Agency shall either (i) pay or reimburse ETS for any sales,
use, and property taxes, where applicable, and any other governmental charges levied, imposed, or
assessed on Services furnished to Host Agency or on property used to provide such Services to Host
Agency or (ii) provide to ETS a certificate and other evidence reasonably requested by ETS that Host
Agency is exempt from the payment of such taxes, assessments, charges or duties.
1.12 RELATIONSHIP OF THE PARTIES
The Parties to this Agreement are independent contractors. Nothing in this Agreement nor the
activities contemplated by the Parties hereunder shall be deemed to create an agency, partnership,
employment, or joint venture relationship between the Parties. Each Party hereto acts solely on its own
behalf and, except as expressly stated, has no authority to pledge the credit of, or incur obligations or
perform any acts or make any statements on behalf of the other Party. Neither Party shall represent to any
person nor permit any person to act upon the belief that it has any such authority from the other Party.
1.13 WARRANTIES OF ETS
Subject to the limitation in Section 1.14 hereof, ETS warrants to and covenants with Host Agency
as follows:
A. The Services shall be performed by ETS in a timely and professional manner and shall conform
to or exceed in all material respects the service specifications described herein, and any
equipment provided by ETS to support the Services supplied hereunder shall be free of material
defects in workmanship and design.
B. The sale, license, or use of any product in the performance of Services furnished under this
Agreement, including but not limited to software, system design, equipment, or documentation,
does not infringe upon any patent, copyright, trade secret, or other proprietary right of any third
party ( "Intellectual Property Right "). ETS shall be solely responsible to defend or settle, at its
expense and its sole and absolute discretion, any claim, suit, or proceeding arising from or
alleging infringement of any Intellectual Property Right based upon Services furnished under this
Agreement. ETS shall indemnify and hold Host Agency harmless from direct losses, costs, and
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damages, including royalties and license fees, arising from such claim, suit, or proceeding,
provided that the indemnification obligations set forth in this Section 1.13(B) shall exclude (i)
Host Agency's attomey's fees determined to be unreasonable, and (ii) any claim of infringement
resulting from Host Agency's unauthorized modification of Services or equipment used m
performance of Services. For any occurrence for which Host Agency may make a claim for
indemnification, it shall give ETS prompt notice of any such claim, suit, or proceeding, and shall
cooperate with ETS in any appeals, negotiations, and any settlement or compromise thereof;
provided that ETS shall have sole control over the defense or settlement of the claim and shall
have sole authority to accept or reject the terms of any proposed settlement or compromise.
If Agency notifies ETS of any deviation between ETS' implementation of the Services and the
specifications of the Services set forth herein, ETS shall correct such deviation within a
reasonable period of time given the then existing circumstances. If Host Agency alters in any
material way, or implements any material deviation from, the specifications of the Services set
forth herein, Host Agency shall correct such deviation within a reasonable period of time given
the then existing circumstances after discovery of such alteration, deviation, or receipt of ETS'
notice of alteration or deviation.
1.14 WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
A. THE EXPRESS WARRANTIES IN THIS AGREEMENT SHALL BE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON - INFRINGEMENT.
B. ETS' CUMULATIVE MAXIMUM AGGREGATE LIABILITY TO AGENCY ARISING
HEREUNDER FOR ANY REASON SHALL NOT EXCEED $100,000.
C. ETS IS NOT, AND DOES NOT REPRESENT OR WARRANT THAT EITHER ETS OR
ANY OF ITS PERSONNEL IS TRAINED IN ANY WAY IN THE PRACTICE OF LAW
ENFORCEMENT AND ETS IS NOT RESPONSIBLE IN ANY WAY FOR THE
PERFORMANCE OF LAW ENFORCEMENT OR USE BY LAW ENFORCEMENT OF
ETS EQUIPMENT.
D. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR
ANY LOST PROFITS OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
E. THE PROVISIONS OF THIS SECTION 1.14 SET FORTH EACH PARTY'S ENTIRE
LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF THE OTHER PARTY
WITH RESPECT TO ANY CLAIM UNDER THIS AGREEMENT.
1.15 FORCE MAJEURE
No failure, delay, or default in performance of any obligation of a Party to this Agreement shall
constitute an event of default or breach of the Agreement to the extent that such failure to perform, delay,
or default arises out of a cause, existing or future, that is beyond the control of and without negligence of
the Party otherwise chargeable with such failure, delay, or default including, but not limited to: action or
12
inaction of government, police, any telephone company(s), civil or military authority; fire, strike, lockout
or other labor dispute, flood, war, riot, theft, earthquake or other natural disaster. The affected Party shall
take action to minimize the consequences of any such cause.
1.16 TERMINATION; EVENT OF DEFAULT
City reserves the right to review the relationship at the end of any year with a sixty day notice,
and may elect to terminate this Agreement with or without cause or may elect to continue.
This Agreement may be terminated by either City or ETS upon "Event of Default." An Event of
Default shall occur if (a) either Party fails to pay any amount payable hereunder within thirty (30) days of
the date such payment is due, subject to Section 1.07 herein, (b) either Party materially breaches any tem
or condition of this Agreement (other than any payment obligation addressed in the preceding clause) and
such breach is not cured within thirty (30) days (or such longer period as may reasonably be required to
cure such breach, so long as the breaching Party diligently pursues such cure) of such Party's receipt of
written notice of such breach from the non - breaching Party, (c) a voluntary or involuntary petition is filed
by or against either Party under the U. S. Bankruptcy Code (Title 11, U.S. Code, the `Bankruptcy Code "),
or (d) either Party becomes insolvent, or should any material part of either Party's property be subject to
any levy, seizure, assignment, application, or sale for or by any creditor or governmental agency that is
not dismissed within thirty (30) days. Upon any Event of Default, the non - defaulting Party may pursue
any and all remedies available at law or in equity against the defaulting Party. Further, in addition to and
not in limitation of any other available remedies, the non - defaulting party may terminate this Agreement
upon written notice to the defaulting Party. Within thirty (30) days after the effective date of any
termination, Host Agency shall pay any undisputed invoices to ETS.
1.17 RETURN AND REMOVAL OF PROPERTY
Upon an Event of Default by Host Agency or any termination of this Agreement, (a) Host
Agency shall return (or at the written request of ETS, cooperate with ETS to allow only ETS to remove)
all User Components used in the Tracking System; (b) ETS may enter any premises controlled by Host
Agency where User Components are located, during working hours if the facility is still operating, and
recover all User Components without prejudice to any other right or remedy it might have; and (c) ETS
may retain all payments made under this Agreement and seek to recover the unpaid balance of any fee
due. Host Agency shall strictly comply with the removal procedures of ETS and applicable law
enforcement agencies. Title to all User Components shall be and remain with ETS, and Host Agency
shall not allow any liens or other encumbrances to attach to such components. All User Components
returned to ETS shall be returned in good working condition, reasonable wear and tear excepted.
1.18 INDEMNIFICATION
SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 1.14, EACH PARTY SHALL
BE LIABLE FOR AND AGREES TO INDEMNIFY AND HOLD THE OTHER HARMLESS FROM
ANY AND ALL LIABILITY, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES),
COSTS, DAMAGES, SETTLEMENTS OR OBLIGATIONS RESULTING FROM (I) THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PARTY OR ITS REPRESENTATIVES OR
(II) ITS OBLIGATIONS UNDER OR BREACH OF SECTION 1.09 OR SECTION 1.10. NO ACTION
ARISING OUT OF THE PERFORMANCE UNDER THIS AGREEMENT MAY BE BROUGHT BY
13
EITHER PARTY MORE THAN TWO (2) YEARS AFTER THE DATE SUCH CAUSE OF ACTION
ACCRUES.
1.19 NON - ASSIGNMENT AND DELEGATION
No Party may assign any rights or delegate any duties under this Agreement without the other
Party's prior written approval. This Agreement shall be binding upon each of the Parties and their
respective successors and assigns.
1.20 NOTICES
All notices and other communications in connection with this Agreement shall be in writing and
shall be delivered by personal service, by certified mail (return receipt requested), or by acknowledged
facsimile addressed to the other Party at the addresses indicated in this Section 1.20 or as the same may be
changed in writing from time to time. Such notice shall be deemed given on the same day on which
received.
1.21 APPLICABLE LAW
Notice to ETS (Financial and/or Contract Matters):
ETS
Attention: Vice President -Controller
2545 Tarpley Road
Carrollton, Texas 75006
Notice to ETS (Operational Matters):
ETS
Attention: Vice President -Customer Support
2545 Tarpley Road
Carrollton, Texas 75006
Notice to City:
City of Round Rock
Attention: City Manager
221 East Main Street
Round Rock, Texas 78664
AND TO:
City of Round Rock
Attention: City Attorney
309 East Main Street
Round Rock, Texas 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of City and ETS.
The laws of the State of Texas shall govern this Agreement. Venue shall lie in Williamson
County, Texas.
14
1.22 EXCLUSIVE AGREEMENT
This document, and all attachments, constitutes the entire Agreement and understanding between
ETS and City. This Agreement is the final, full, and exclusive expression of the Parties and supersedes
all previous agreements, understandings, writings, proposals, communications, or representations, either
written or oral, between ETS and City made with respect to the matters herein contained and the
transactions contemplated hereby. The terms of this Agreement shall prevail over any conflicting terms
of any Order or any Service Acknowledgment of an Order. This Agreement shall not be binding upon the
Parties hereto unless and until it has been duly executed by authorized representatives for the Parties.
1.23 DISPUTE RESOLUTION
If a dispute or claim arises under this Agreement, the Parties agree to first try to resolve the
dispute or claim by appropriate internal means, including referral to each Party's senior management. If
the Parties cannot reach a mutually satisfactory resolution, then and in that event any such dispute or
claim will be sought to be resolved with the help of a mutually selected mediator. If the Parties cannot
agree on a mediator, City and ETS shall each select a mediator and the two mediators shall agree upon a
third mediator. Any costs and fees, other than attorneys fees, associated with the mediation shall be
shared equally by the Parties. Mediation shall be held in Williamson County, Texas.
City and ETS hereby expressly agree that no claims or disputes between the Parties arising out of
or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including
without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1 -14) or any
applicable state arbitration statute.
1.24 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect
the validity of enforceability of any other portion or provision of this Agreement. Any void provision
shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and
enforced as if this Agreement did not contain the particular portion of provision held to be void. The
Parties further agree to amend this Agreement to replace any stricken provision with a valid provision that
comes as close as possible to the intent of the stricken provision. The provisions of this Section 1.24 shall
not prevent this entire Agreement from being void should a provision which is of the essence of this
Agreement be determined void.
1.25 MISCELLANEOUS PROVISIONS
A. Section headings are included for convenience only and are not to be used to construe or interpret
this Agreement.
B. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy
under this Agreement shall operate to limit, impair, preclude, cancel, waive, or otherwise affect
such right or remedy. Wherever this Agreement requires either Party's approval, consent, or
satisfaction, the response shall not be unreasonably or arbitrarily withheld or delayed.
15
C. No changes, amendments, or modifications of any provision of this Agreement shall be valid
unless made by an instrument in writing signed by both Parties; and, in the event of City, unless
and until such written instrument, when required by law, is duly passed by appropriate action of
City Council.
D. Each Party represents and warrants to the other that this Agreement constitutes its duly
authorized, legal, valid, binding, and enforceable obligation.
E. This Agreement may be executed by the Parties in one or more counterparts, and each of which,
when so executed, shall be an original but all such counterparts shall constitute one and the same
instrument.
F. This Agreement shall be governed by the intemal laws of the State of Texas, and not by the laws
regarding conflicts of laws.
G. The remedies under this Agreement shall be cumulative and are not exclusive. Election of one
remedy shall not preclude pursuit of other remedies
H. Time is of the essence in this Agreement.
1N WITNESS WHEREOF, City and ETS have executed this Agreement on the dates below
indicated.
CITY OF ROUND ROCK, TEXAS ATTEST:
Bv:
l i42f t�-U�Y� �l. • I �Z��. /Yl�/
Christine R. Martinez, City Secretary
Date Signed: I O - c. 4 { - Q- Date Signed: /Q -off 4' -Q a.
AOtalle
well, Mayor
ELECTRONIC TRACKING SYSTEMS, L.L.C.
By:
Barbar
Title: ice President / Controller
Date Signed:
16
SENT BY: SPECTRUM -ETS; 4695742001;
August 14, 2002
Dear Joe,
ELECTRONIC
TRACKING
SYSTEMS
Sergeant Joe Klingensmith
Round Rock Police Department
615 East Palm Valley Blvd.
Round Rock, TX 78664 -3227
AUG -14 -02 11 ::i6AM; PAGE 2/2
Electronic Tracking Systems (ETS) authorizes the Round Rock Police Department to
present the pending City Services Agreement to the Round Rock City Counsel for their
Approval.
ETS also authorizes the Round Rock Police Department to divulge any information
necessary regarding the agreement between ETS and Round Rock Police Department to
the Round Rock City Counsel.
Sincerely,
James Van Cleave
Executive Vice President, Marketing
Electronic Tracking Systems, LLC
2545 Taipley Road 4 Carrollton, TX 75006 ► (469) 574 -4000 • Fax (469) 574 -400 5
Mayor
Nyle Maxwell
Mayor Pro-tem
Tom Nielson
Council Members
Alan McGraw
Carrie Pitt
Scot Knight
Isabel Callahan
Gary Coe
City Manager
Robert 1, Bennett, Jr.
City Attorney
Stephan L. Sheets
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY.
November 18, 2002
Ms. Barbara J. Kent
Electronic Tracking Systems, L.L.C.
2545 Tarpley Road
Carrollton, TX 75006
Dear Ms. Kent:
The Round Rock City Council approved Resolution No. R- 02- 10 -24-
11C3 at their regularly scheduled meeting on October 24, 2002. This
resolution approves the Agreement for Provision of Electronic Tracking
Systems to aid in the City's provision of police services.
Enclosed is a copy of the resolution and Agreement for your files. If
you have any questions, please do not hesitate to contact Paul Conner
at 218 -6650.
Christine R. Martinez
City Secretary
Enclosure
CITY OF ROUND ROCK 221 East Main Street • Round Rock, Texas 78664
Phone: 512.218.5400 • Fax: 92.218.7097 • www.ci.round- rock.tx.us
RESOLUTION NO. R- 02- 10- 24 -11C3
WHEREAS, the City has a need for technical services for goods and
services, training, operation, and maintenance of a tracking system to
aid in the City's provision of police services, and
WHEREAS, Electronic Tracking Systems, L.L.C. has submitted an
agreement to provide said services, and
WHEREAS, the City Council desires to enter into said agreement
with Electronic Tracking Systems, L.L.C., Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City an Agreement for Provision of Electronic Tracking
Systems with Electronic Tracking Systems, L.L.C. for goods and
services, training, operation and maintenance of a tracking system to
aid in the City's provision of police services, a copy of said
agreement being attached hereto as Exhibit "A" and incorporated herein
for all purposes.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
.. ODMMW ORLDOK\ o : \WDOX \RESOL1TI \R210240.we0/ec
RESOLVED this 24th day of October, 2002
AT EST: a I j n n 1
itt
CHRISTINE R. MARTINEZ, City Secretary
2
N J' WELL, Mayor
City of Round Rock, Texas
THIS AGREEMENT is made and entered into on this the 1 day of the month of
2002, by and between the City of Round Rock, a Texas home -rule municipal
corporation, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299
(hereinafter referred to as "City "), and Electronic Tracking Systems, L.L.C., whose offices are located at
2545 Tarpley Road, Carrollton, Texas 750061 (hereinafter referred to as "ETS ").
WHEREAS, City has requested that ETS provide goods and services, training, operation and
maintenance of a tracking system and its necessary components to aid in City's provision of police
services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective
rights, duties and obligations hereunder.
NOW, THEREFORE, WITNESSETH:
CITY OF ROUND ROCK AGREEMENT
FOR PROVISION OF ELECTRONIC
TRACKING SYSTEMS BY
ELECTRONIC TRACKING SYSTEMS, L.L.C.
RECITALS:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually
agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date it has been signed by each party hereto, and shall
remain in full force and effect unless and until it expires by operation of the term indicated herein, or is
terminated as provided herein.
The term of this Agreement shall be for an initial term of three (3) years from the effective date
hereof, and thereafter may be renewed for successive one (1) year periods by written agreement of the
parties unless previously terminated in writing by either party as provided for herein.
City reserves the right to review the relationship at the end of any year with a sixty day notice,
and may elect to terminate this Agreement with or without cause or may elect to continue.
1.02 DEFINITIONS
As used in this Agreement, the following terms shall be defined as srt forth in this section. All
capitalized terms not otherwise defined in this Section 1.02 shall have the meanings assigned in the part
of this Agreement in which they are defined.
A. AWM — the Area Wide Monitor installed in the Round Rock Police Department dispatch center
that allows the general location tracking of specific wireless radio frequency transmitters powered
by a battery within the System Coverage Area.
N: \CONTRACT ADMINISTRATION Round Rock ETS tracking contract with PD (00032935).DOC
B. Fixed Site Beacon — a low power transmitter typically located near the Primary Location that
allows the operator to confirm the proper operation of, and calibrate, a Vehicle Receiver and
Vehicle Display.
C. Host Agency — Round Rock Police Department, the City agency that is designated to host the
AWM in the Tracking System.
D. Installation Kit— a kit used to outfit a vehicle with cabling to allow the use of a Vehicle Receiver
and Vehicle Display in that vehicle, consisting of an Interconnect Cable, three color-coded
antenna cables, antennas and a receiver rack.
E. New Area — a geographical area, denoted by municipal limits (or geographical area within a
municipality) or other geographical area, not covered by the ETS Services at the Effective Date,
but which, by subsequent written agreement of the parties, is "built out" by ETS and becomes
covered by ETS' Services during the term of this Agreement or any extension of this Agreement.
F. Order — a purchase order, work order, electronic transmission or Round Rock Police Department
request that is documented in writing within thirty (30) days after the date such request is made.
A "Service Acknowledgment" form that is signed by or on behalf of City and/or Round Rock
Police Department at the time of delivery of Services shall be deemed to be an Order and an
acknowledgment that the Services were performed.
G. Party — City of Round Rock, Texas or Electronic Tracking Systems, L.L.C.
H. Person — any individual, corporation, partnership, limited liability company, trust, association,
agency or other entity.
I. Pocket Detector or Hand -Held Tracker — portable, handheld equipment that is able to receive
transmissions from, and track the location of, a Tag.
J. Primary Location — the precinct headquarters or similar central office of Round Rock Police
Department.
K. Rat Trap — a plastic box with an affixed magnetic plate that deactivates a TracPac when it is
placed inside the box.
L. Remote Receiver — a device that is able to receive transmissions from Tags within the System
Coverage Area and transmits information to the AWM, by telephone, microwave or other data
transmission medium to enable the recipient to determine a general location of a Tag.
M. Representative — a person designated herein as an official agent or representative of a party
hereto.
N. Services — includes, without limitation, all professional,management, labor and general services,
together with any materials, supplies, tangible items, or other goods furnished or used by ETS in
connection with the operation and maintenance of the Tracking System, as further described m
Section 1.03.
2
O. Stake -Out Tag — a wireless radio signal transmitter powered by a battery, and used by Round
Rock Police Department, concealed or housed in a medium to allow the tracking of products,
vehicles or persons.
P. System Coverage Area — the geographical area determined and defined by ETS within which a
radio signal transmitted by a non - stationary Tag could be received by at least one Remote
Receiver.
Q. Tag — a TracPac or a Stake -Out Tag.
R. Tracker — a Receiver and a Display.
S. Tracking System — a wireless system designed to establish and/or track the approximate location
of Tags within a defined geographical area.
T. TracPac — a wireless radio signal transmitter powered by a battery, covered on both sides with
currency, or housed in jewelry pedestals, and used at locations of clients of ETS within the
Coverage Area.
U. Training Tag — a wireless radio signal transmitter powered by a battery used for training purposes
that transmits on either the standard frequency or the training frequency used by the Tracking
System.
V. User Components — AWM, Vehicle Receivers, Pocket Detectors, Stake -Out Tags, Installation
Kits, Hand Held Trackers, Vehicle Displays, Fixed Site Beacons, Training Tags, Pocket Beacons
Cable Testers, Remote Receivers, Test Transmitters and Rat Traps.
W. Vehicle Display — a device typically installed on the dash of a vehicle that receives information
from a Vehicle Receiver and indicates the direction and relative signal strength of a transmitting
Tag within range of the Vehicle Receiver.
X. Vehicle Receiver — a device typically installed in the trunk of a vehicle that is able to receive
transmissions from a Tag and, along with other Tracking System components, is able to track to
the location of a Tag.
1.03 ETS' RESPONSIBILITIES (SCOPE OF WORK)
ETS shall satisfactorily and timely provide and perform the following Services in accordance
with this Agreement and the specifications and timeframes set forth in this Section 1.03. ETS shall
commence work only upon receipt of an Order to Proceed from City/Round Rock Police Department.
During the term of this Agreement, ETS shall:
A. Deliver the User Components to Host Agency in good operating condition for use in the Tracking
System.
B. Install the User Components (other than Installation Kits) and train personnel designated by Host
Agency on the installation of the vehicle and helicopter installation kits (including special tools
and templates).
3
C. Select the location of, install and secure the Fixed Site Beacons.
D. Install Mini AWM, and coordination of telephone interface.
E. Train personnel designated by Host Agency as instructors in the operation of the Tracking
System.
F. Perform annual preventive maintenance on all Tracking System components.
G. Use its best efforts to repair and replace all User Components within two (2) business days of
receiving such User Component, at ETS' sole cost and expense if the repair or replacement is
necessitated by ordinary wear and tear or because of a defect in the User Component. Repaired
and replaced equipment will be retumed by ETS to the address on the equipment repair form via
Federal Express 2 " Day Air Service; provided, however, that Host Agency may request (subject
to the reasonable approval of ETS) that ETS return any such equipment by Federal Express Next
Day Air Service for parts critical to the functioning of the Tracking System.
H. Replace vehicle Installation Kit parts from the Spare Parts Kit maintained by the Host Agency,
upon written request by Host Agency, if Host Agency (i) provides ETS with evidence reasonably
satisfactory to ETS that the Installation Kit parts are actually replaced in Host Agency vehicle;
and (ii) returns to ETS any defective cable connectors or similar items so replaced if requested in
writing by ETS.
I. Replace antenna stingers as reasonably necessary from time to time for Host Agency vehicles;
provided, however, that if such replacement is a result of events or circumstances other than
ordinary wear and tear, then such replacement shall be at the expense of Host Agency.
J. Provide a Troubleshooting Guide and test equipment to Host Agency to allow Host Agency
personnel to test, troubleshoot and service the User Components before returning the User
Components to ETS for repair.
K. Provide technical assistance either by telephone or, if necessary or specifically requested by Host
Agency, in person. In this regard and pursuant to provisions of paragraph 1.04, Host Agency
shall make reasonable, good faith attempts to remedy any technical issue via telephonic
consultation prior to requesting a personal visit.
L. Participate in an annual review of the Tracking System operations.
M. Coordinate the use of TracPacs by financial institutions and other businesses in the Coverage
Area with Host Agency, and provide appropriate training of such clients in the use of TracPacs
and the operation of the Tracking System.
1.04 CITY'S RESPONSIBILITIES
Host Agency Installation Obligations: Host Agency shall:
A. Provide a key liaison person to coordinate efforts of all Divisions/Departments in the Host
Agency and a contact point for ETS personnel. The liaison officer is designated as the following:
Sergeant Joe Klingensmith
4
B. Provide facilities for the following:
• installing User Components (vehicle Installation Kits, AWM, Fixed Beacons):
• receiving and storing equipment shipped from ETS to the installation site; and
• training facilities to train trainers.
C. Provide a phone termination point at the AWM location for Remote Detector lines.
D. Provide power to the Mini AWM and Fixed Site Beacons (conduit and hook -up on hot circuit).
E. Install vehicle Installation Kits.
F. Designate and make available an appropriate number of Host Agency personnel to be trained by
ETS as instructors to enable Host Agency personnel to train other personnel in sufficient numbers
to provide optimum utilization of the Tracking System on an ongoing basis.
G. Train patrol, communications, installers and other persons involved in the Tracking System with
Host Agency trainers trained by ETS and ensure the participation of patrol and communications
personnel in Tracking System testing and training prior to the activation of the Tracking System
to ensure optimum utilization of the Tracking System.
H. Create a training plan for future training for:
• new personnel who may operate the User Components;
• periodic retraining of patrol and communications personnel; and
• scenario training with operational system
I. Develop and prepare written departmental procedures for each division involved in the system
operation of the Tracking System.
J. Develop and prepare a tactical plan for use of the Tracking System to ensure coverage within the
Coverage Area 24 hours per day, 7 days per week.
K. Provide, or secure permission to use, Remote Detector sites and pay any associated lease
payments or fees.
L. Obtain and pay for the installation and monthly fees for phone lines from Remote Detectors to the
AWM based upon information provided by ETS.
M. Provide personnel and/or communications to assist in range testing of Tracking System, and final
training and testing of the Tracking System.
5
Host Agency Maintenance Obligations: Host Agency shall perform the following obligations:
A. Vehicle Installations
• Repair/Replace Vehicle Installations with parts from ETS Spare Parts Kit provided by ETS
including the following:
• Pull equipment out of retiring cars and install in new cars.
• Check power connections.
• Check cables (antenna and interconnect) with Cable Tester provided and repair as indicated.
• Check Interconnect Cable connectors for bent pins, loose connections, and locks and repair as
required.
• Check antennas for condition and repair /replace as needed with parts from the Spare Parts
Kit.
• Replace Velcro on dash as needed from Spare Parts Kit.
• Check Receiver rack mountings and repair as needed.
B. Trackers and Displays
Troubleshoot with Troubleshooting Guide provided by ETS to determine problem. If problem is
with the equipment, return to ETS (in Carrollton, Texas) for repair after acquiring necessary
RMA number form ETS.
C. Pocket Detectors and Hand Held Trackers
• Replace batteries as needed.
• Troubleshoot with Troubleshooting Guide provided by ETS to determine problem. If
problem is with the equipment, return to ETS (in Carrollton, Texas) for repair after acquiring
necessary RMA number form ETS.
D. Fixed Site Beacons
• Replace light bulbs as needed.
• Reset times as needed (daylight savings time).
6
• Troubleshoot with Troubleshooting Guide provided by ETS to determine problem. If
problem is with the equipment, return to ETS (in Carrollton, Texas) for repair after acquiring
necessary RMA number from ETS.
E. Area Wide Monitor
• Check power to unit problems and repair.
• Troubleshoot with guidance provided by ETS over the phone.
F. Remote Detectors and phone lines
• Troubleshoot with Troubleshooting Guide provided by ETS to determine problem. If
problem is with the equipment, return to ETS (in Carrollton, Texas) for repair after acquiring
necessary RMA and number from ETS.
• Call phone company to report phone line problems and follow up with checks.
G. Other Obligations:
• Cause no less than fifty percent (50 %) of vehicles equipped with Vehicle Receivers/Vehicle
Displays to be in service at all times.
• Participate in an annual review of Tracking System operations.
• Maintain a current inventory of parts for User Components to perform maintenance
obligations.
• Maintain all User Components and return defective User Components to ETS for repair or
replacement.
• Provide personnel and/or communications to assist in annual range testing of the Tracking
System.
• Pay for the repair or replacement (whichever is less) for all User Components that are
damaged or lost, ordinary wear and tear and defects excepted, in accordance with the
following schedule:
Mini AWM $1,250.00
Vehicle Receiver $2,050.00
Pocket Detector $275.00
Stake -Out Tag $135.00
Vehicle Installation Kit $200.00
Aircraft Installation Kit $500.00
Hand Held Tracker $2,200.00
Vehicle Display $325.00
Fixed Site Beacon $400.00
Training Tag $120.00
Test Transmitter $300.00
Pocket Beacon $145.00
7
H. Return Procedures:
Cable Tester
Remote Detector
$550.00
$2,700.00
• Obtain from ETS a Return Material Authorization (RMA) number before returning
equipment to ETS (in Carrollton, Texas)
• Complete ETS Equipment Repair Form prior to return of equipment and return completed
form with equipment.
• Pack and ship equipment to ETS (in Carrollton, Texas) facility via Federal Express 2nd Day
Air Service with an airway bill provided by ETS.
Host Agency Obligations Regarding Robbery Information: Host Agency shall promptly notify ETS
of any robbery within the Coverage Area in which a TracPac was activated. Host Agency shall also
provide ETS, as soon as reasonably possible after the end of each calendar year, a report on the total
number of robberies within the Coverage Area during that previous calendar year at all financial
institutions, whether serviced by the Tracking System or not. Host Agency and ETS will compile and
reconcile data for the robberies in the previous year. All such information is subject to Section 1.09
entitled "Confidential Information" in this Agreement.
Host Agency Obligations Regarding Maintenance Visits: All maintenance visits shall be planned and
scheduled by ETS, subject to the reasonable approval of Host Agency, and Host Agency shall be
responsible for distributing to its personnel notice of such maintenance sessions so that all maintenance
events may be attended by the appropriate Host Agency personnel.
1.05 PAYMENT AMOUNT
In consideration for the satisfactory provision of the goods and services delineated herein, and
pursuant to this Agreement, City shall pay the following service fees and invoices. ETS invoices shall be
submitted to Host Agency at the address listed herein for notices to Host Agency, unless Host Agency
specifies another address in writing to ETS.
A. ETS' invoices for damaged or lost User Components shall be paid within thirty (30) days upon
the receipt of an invoice.
B. ETS' invoices for additional or one -time components of the Services such as additional Stake -Out
Tags will be invoiced at ETS' then - current rates as disclosed by ETS to Host Agency prior to the
time of Order, and shall be due and payable in full thirty (30) days upon the invoice receipt.
1.06 PAYMENT TERMS
To be eligible to receive payments under this Agreement, ETS shall timely complete activities
delineated in Section 1.03 entitled "ETS' Responsibilities (Scope of Work)." Upon satisfactory
completion, ETS shall prepare and submit itemized invoices in a form acceptable to City, with
appropriate documentation attached. City shall pay ETS in accordance with the prompt payment policy
8
described in Section 1.07 herein.
1.07 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to ETS will be
made within thirty (30) days of the day on which City receives the performance, or within thirty (30) days
of the day on which the performance of services was complete, or within thirty (30) days of the day on
which City receives a correct invoice for the performance or services, whichever is later. ETS may
charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not
made in accordance with this prompt payment policy; however, this policy does not apply to payments
made by City in the event:
1. there is a bona fide dispute between City and ETS concerning the services performed that
causes the payment to be late; or
2. the terms of a federal contract, grant, regulation, or statute prevent City from making a
timely payment with federal funds; or
3. there is a bona fide dispute between ETS and a subcontractor or between a subcontractor
and its supplier concerning the services performed which causes the payment to be late;
or
4. the invoice is not mailed to City in strict accordance with instructions, if any, on any
purchase order, or this Agreement or other such contractual agreement.
1.08 NON - APPROPRIATION
This Agreement is a commitment of City's current revenues only. It is understood and agreed that
City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing
body of City does not appropriate funds sufficient to purchase the services as determined by City's budget
for the fiscal year in question. City may effect such termination by giving ETS a written notice of
termination 30 days prior to the end of its then - current fiscal year.
1.09 CONFIDENTIAL INFORMATION
A. Each Party (a) shall hold in strict confidence the contents of this Agreement and all information
that is either designated as confidential by the other Party or is otherwise of a confidential or
proprietary nature, including, without limitation, any information relating to (i) the Services, (ii)
the records of Host Agency, (iii) all clients of ETS, (iv) the practices and procedures used by ETS
in performing the Services, (v) any relationships of ETS with any other law enforcement or
governmental agency or (vi) the business, operations, methods or plans of either Party
(collectively, the "Confidential Information "), and (b) shall take all reasonable steps to protect
such Confidential Information, and (c) shall not use or disclose any Confidential Information of
the other Party other than in furtherance of the purposes of this Agreement or as expressly
authorized herein. However, ETS shall have the right, in its sole discretion, (a) to disclose and
describe its services and products and any other Confidential Information of ETS in any
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described in Section 1.07 herein.
1.07 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to ETS will be
made within thirty (30) days of the day on which City receives the performance, or within thirty (30) days
of the day on which the performance of services was complete, or within thirty (30) days of the day on
which City receives a correct invoice for the performance or services, whichever is later. ETS may
charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not
made in accordance with this prompt payment policy; however, this policy does not apply to payments
made by City in the event:
1. there is a bona fide dispute between City and ETS concerning the services performed that
causes the payment to be late; or
2. the terms of a federal contract, grant, regulation, or statute prevent City from making a
timely payment with federal funds; or
3. there is a bona fide dispute between ETS and a subcontractor or between a subcontractor
and its supplier concerning the services performed which causes the payment to be late;
or
4. the invoice is not mailed to City in strict accordame with instructions, if any, on any
purchase order, or this Agreement or other such contractual agreement.
1.08 NON - APPROPRIATION
This Agreement is a commitment of City's current revenues only. It is understood and agreed that
City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing
body of City does not appropriate funds sufficient to purchase the services as determined by City's budget
for the fiscal year in question. City may effect such termination by giving ETS a written notice of
termination 30 days prior to the end of its then- current fiscal year.
1.09 CONFIDENTIAL INFORMATION
A. Each Party (a) shall hold in strict confidence the contents of this Agreement and all information
that is either designated as confidential by the other Party or is otherwise of a confidential or
proprietary nature, including, without limitation, any information relating to (i) the Services, (ii)
the records of Host Agency, (iii) all clients of ETS, (iv) the practices and procedures used by ETS
in performing the Services, (v) any relationships of ETS with any other law enforcement or
governmental agency . or (vi) the business, operations, methods or plans of either Party
(collectively, the "Confidential Information "), and (b) shall take all reasonable steps to protect
such Confidential Information, and (c) shall not use or disclose any Confidential Information of
the other Party other than in furtherance of the purposes of this Agreement or as expressly
authorized herein. However, ETS shall have the right, in its sole discretion, (a) to disclose and
describe its services and products and any other Confidential Information of ETS in any
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advertising media or in presentation with potential clients or customers, and (b) to disclose any
Confidential Information to any other law enforcement agencies (each a "Permitted Disclosure ");
provided further that any such Permitted Disclosure shall not diminish the confidentiality
obligations of Host Agency set forth herein. Each Party further agrees to take all reasonable
precautions to prevent any unauthorized disclosure of any Confidential Information by its
representatives, consultants or any third party, either before or after any termination of this
Agreement. Each Party shall indemnify the other Party for loss incurred by the Party seeking
indemnification as a result of such unauthorized disclosure.
B. Each Party will take reasonable steps to ensure that confidentiality agreements are entered into
with any representative, consultant, or third party to whom this Confidential Information is
disclosed that provide protections similar to the protections set forth in this Section 1.09, and no
Confidential Information regarding the other Party shall be disclosed other than (a) to any person
who needs to know such information in performing services to or on behalf of the disclosing
Party, (b) to law enforcement or governmental agencies or insurers that have a need to know such
Confidential Information, (c) to any lender or person entering into a business relationship with
such Party that has a need to know Confidential Information regarding the other Party in
evaluating a proposed transaction, (d) in connection with any disclosure list compelled by a court
or similar tribunal having jurisdiction over the Party from whom disclosure is requested, or (e) as
a result of any Permitted Disclosure by ETS. If a subpoena or other legal process in any way
concerning Confidential Information is served upon a party to which Confidential Information
has been disclosed ( "Recipient "), the Recipient shall notify the disclosing Party ( "Discloser ")
promptly and cooperate with the Discloser, at the Disclosure's expense, in any lawful effort to
contest the validity of such subpoena or other legal process. This paragraph will in no way limit
either Party's ability to satisfy any governmentally required disclosure of its relationship with the
other Party, or either Party's ability to satisfy any requests or demands generated in the course of
audits (whether legal, accounting, regulatory, insurance or otherwise) of such Party (or with
respect to ETS,' of its clients or customers). Agency may reproduce all reports provided by ETS.
However, all reports provided by ETS are to be held and treated by Agency as Confidential
Information under this Section 1.09 of this Agreement and shall receive the same care for
confidentiality that Host Agency uses for its own Confidential Information.
C. The obligations of confidentiality in this Section 1.09 and in Section 1.10 herein shall not apply to
any information which must be disclosed by City as a municipality subject to the Texas Open
Meetings Act and Open Records Act or similar statutes, any information which a Party
independently develops, information which is or becomes known to the public other than by
breach of this Section 1.09 or Section 1.10 herein (other than as a result of a Permitted Disclosure
by ETS or city), or information rightfully received by a party from a third party without the
obligation of confidentiality.
D. Upon any termination of this Agreement, each Party shall return to the other any Confidential
Information in its possession regarding the other Party.
1.10 NO UNAUTHORIZED DISCLOSURE; INJUNCTIVE RELIEF
Neither Party shall advertise or publicly release any information (other than any Permitted
Disclosure by ETS) regarding the existence of this Agreement or the Services to be provided hereunder
without the prior written approval of the other Party. Host Agency acknowledges and agrees that the
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effectiveness of the Services provided to Host Agency and other clients of ETS depends, in part, upon the
absence of public knowledge regarding the Services and the business processes of the products of ETS,
and further acknowledges that any improper disclosure of the business processes of ETS could materially
and adversely affect the business operations of ETS. Therefore, the Parties further agree that because
monetary damages alone may not be sufficient to compensate a Party for the loss of its Confidential
Information, that either Party, in addition to any other legal and equitable remedies that it may have, shall
be entitled to injunctive or equitable relief against the breach or threatened breach of this Agreement by
the other Party.
The obligations of non - disclosure in this Section 1.10 shall not apply to any information which
must be disclosed by City as a municipality subject to the Texas Open Meetings Act and Open Records
Act or similar statutes.
1.11 TAXES
The prices specified in this Agreement, unless otherwise expressly stated herein, shall exclude all
taxes, assessments and duties of any kind that ETS is required to pay with respect to the provision of
Services pursuant to this Agreement. Host Agency shall either (i) pay or reimburse ETS for any sales,
use, and property taxes, where applicable, and any other govemmental charges levied, imposed, or
assessed on Services furnished to Host Agency or on property used to provide such Services to Host
Agency or (ii) provide to ETS a certificate and other evidence reasonably requested by ETS that Host
Agency is exempt from the payment of such taxes, assessments, charges or duties.
1.12 RELATIONSHIP OF THE PARTIES
The Parties to this Agreement are independent contractors. Nothing in this Agreement nor the
activities contemplated by the Parties hereunder shall be deemed to create an agency, partnership,
employment, or joint venture relationship between the Parties. Each Party hereto acts solely on its own
behalf and, except as expressly stated, has no authority to pledge the credit of, or incur obligations or
perform any acts or make any statements on behalf of the other Party. Neither Party shall represent to any
person nor permit any person to act upon the belief that it has any such authority from the other Party.
1.13 WARRANTIES OF ETS
Subject to the limitation in Section 1.14 hereof, ETS warrants to and covenants with Host Agency
as follows:
A. The Services shall be performed by ETS in a timely and professional manner and shall conform
to or exceed in all material respects the service specifications described herein, and any
equipment provided by ETS to support the Services supplied hereunder shall be free of material
defects in workmanship and design.
B. The sale, license, or use of any product in the performance of Services furnished under this
Agreement, including but not limited to software, system design, equipment, or documentation,
does not infringe upon any patent, copyright, trade secret, or other proprietary right of any third
party ( "Intellectual Property Right"). ETS shall be solely responsible to defend or settle, at its
expense and its sole and absolute discretion, any claim, suit, or proceeding arising from or
alleging infringement of any Intellectual Property Right based upon Services furnished under this
Agreement ETS shall indemnify and hold Host Agency harmless from direct losses, costs, and
11
damages, including royalties and license fees, arising from such claim, suit, or proceeding,
provided that the indemnification obligations set forth in this Section 1.13(B) shall exclude (i)
Host Agency's attorney's fees determined to be unreasonable, and (ii) any claim of infringement
resulting from Host Agency's unauthorized modification of Services or equipment used in
performance of Services. For any occurrence for which Host Agency may make a claim for
indemnification, it shall give ETS prompt notice of any such claim, suit, or proceeding, and shall
cooperate with ETS in any appeals, negotiations, and any settlement or compromise thereof;
provided that ETS shall have sole control over the defense or settlement of the claim and shall
have sole authority to accept or reject the terms of any proposed settlement or compromise.
If Agency notifies ETS of any deviation between ETS' implementation of the Services and the
specifications of the Services set forth herein, ETS shall correct such deviation within a
reasonable period of time given the then existing circumstances. If Host Agency alters in any
material way, or implements any material deviation from, the specifications of the Services set
forth herein,. Host Agency shall correct such deviation within a reasonable period of time given
the then existing circumstances after discovery of such alteration, deviation, or receipt of ETS'
notice of alteration or deviation.
1.14 WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
A. THE EXPRESS WARRANTIES IN THIS AGREEMENT SHALL BE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON - INFRINGEMENT.
B. ETS' CUMULATIVE MAXIMUM AGGREGATE LIABILITY TO AGENCY ARISING
HEREUNDER FOR ANY REASON SHALL NOT EXCEED $100,000.
C. ETS IS NOT, AND DOES NOT REPRESENT OR WARRANT THAT EITHER ETS OR
ANY OF ITS PERSONNEL IS TRAINED IN ANY WAY IN THE PRACTICE OF LAW
ENFORCEMENT AND ETS IS NOT RESPONSIBLE IN ANY WAY FOR THE
PERFORMANCE OF LAW ENFORCEMENT OR USE BY LAW ENFORCEMENT OF
ETS EQUIPMENT.
D. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR
ANY LOST PROFITS OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
E. THE PROVISIONS OF THIS SECTION 1.14 SET FORTH EACH PARTY'S ENTIRE
LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF THE OTHER PARTY
WITH RESPECT TO ANY CLAIM UNDER TIIIS AGREEMENT.
1.15 FORCE MAJEURE
No failure, delay, or default in performance of any obligation of a Party to this Agreement shall
constitute an event of default or breach of the Agreement to the extent that such failure to perform, delay,
or default arises out of a cause, existing or future, that is beyond the control of and without negligence of
the Party otherwise chargeable with such failure, delay, or default including, but not limited to: action or
12
inaction of govemment, police, any telephone company(s), civil or military authority; fire, strike, lockout
or other labor dispute, flood, war, riot, theft, earthquake or other natural disaster. The affected Party shall
take action to minimize the consequences of any such cause.
1.16 TERMINATION; EVENT OF DEFAULT
City reserves the right to review the relationship at the end of any year with a sixty day notice,
and may elect to terminate this Agreement with or without cause or may elect to continue.
This Agreement may be terminated by either City or ETS upon "Event of Default." An Event of
Default shall occur if (a) either Party fails to pay any amount payable hereunder within thirty (30) days of
the date such payment is due, subject to Section 1.07 herein, (b) either Party materially breaches any term
or condition of this Agreement (other than any payment obligation addressed in the preceding clause) and
such breach is not cured within thirty (30) days (or such longer period as may reasonably be required to
cure such breach, so long as the breaching Party diligently pursues such cure) of such Party's receipt of
written notice of such breach from the non - breaching Party, (c) a voluntary or involuntary petition is filed
by or against either Party under the U. S. Bankruptcy Code (Title 11, U.S. Code, the "Bankruptcy Code "),
or (d) either Party becomes insolvent, or should any material part of either Party's property be subject to
any levy, seizure, assignment, application, or sale for or by any creditor or governmental agency that is
not dismissed within thirty (30) days. Upon any Event of Default, the non - defaulting Party may pursue
any and all remedies available at law or in equity against the defaulting Party. Further, in addition to and
not in limitation of any other available remedies, the non - defaulting party may terminate this Agreement
upon written notice to the defaulting Party. Within thirty (30) days after the effective date of any
termination, Host Agency shall pay any undisputed invoices to ETS.
1.17 RETURN AND REMOVAL OF PROPERTY
Upon an Event of Default by Host Agency or any termination of this Agreement, (a) Host
Agency shall return (or at the written request of ETS, cooperate with ETS to allow only ETS to remove)
all User Components used in the Tracking System; (b) ETS may enter any premises controlled by Host
Agency where User Components are located, during working hours if the facility is still operating, and
recover all User Components without prejudice to any other right or remedy it might have; and (c) ETS
may retain all payments made under this Agreement and seek to recover the unpaid balance of any fee
due. Host Agency shall strictly comply with the removal procedures of ETS and applicable law
enforcement agencies. Title to all User Components shall be and remain with ETS, and Host Agency
shall not allow any liens or other encumbrances to attach to such components. All User Components
returned to ETS shall be returned in good working condition, reasonable wear and tear excepted.
1.18 INDEMNIFICATION
SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 1.14, EACH PARTY SHALL
BE LIABLE FOR AND AGREES TO INDEMNIFY AND HOLD THE OTHER HARMLESS FROM
ANY AND ALL LIABILITY, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES),
COSTS, DAMAGES, SETTLEMENTS OR OBLIGATIONS RESULTING FROM (I) THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PARTY OR ITS REPRESENTATIVES OR
(II) ITS OBLIGATIONS UNDER OR BREACH OF SECTION 1.09 OR SECTION 1.10. NO ACTION
ARISING OUT OF THE PERFORMANCE UNDER THIS AGREEMENT MAY BE BROUGHT BY
13
EITHER PARTY MORE THAN TWO (2) YEARS AFTER THE DATE SUCH CAUSE OF ACTION
ACCRUES.
1.19 NON - ASSIGNMENT AND DELEGATION
No Party may assign any rights or delegate any duties under this Agreement without the other
Party's prior written approval. This Agreement shall be binding upon each of the Parties and their
respective successors and assigns.
1.20 NOTICES
All notices and other communications in connection with this Agreement shall be in writing and
shall be delivered by personal service, by certified mail (return receipt requested), or by acknowledged
facsimile addressed to the other Party at the addresses indicated in this Section 1.20 or as the same may be
changed in writing from time to time. Such notice shall be deemed given on the same day on which
received.
Notice to ETS (Financial and/or Contract Matters):
ETS
Attention: Vice President - Controller
2545 Tarpley Road
Carrollton, Texas 75006
Notice to ETS (Operational Matters):
ETS
Attention: Vice President- Customer Support
2545 Tarpley Road
Carrollton, Texas 75006
Notice to City:
City of Round Rock
Attention: City Manager
221 East Main Street
Round Rock, Texas 78664
1.21 APPLICABLE LAW
AND TO:
Nothing contained in this section shall be construed
communications between representatives of City and ETS.
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City of Round Rock
Attention: City Attomey
309 East Main Street
Round Rock, Texas 78664
to restrict the transmission of routine
The laws of the State of Texas shall govern this Agreement. Venue shall lie in Williamson
County, Texas.
1.22 EXCLUSIVE AGREEMENT
This document, and all attachments, constitutes the entire Agreement and understanding between
ETS and City. This Agreement is the final, full, and exclusive expression of the Parties and supersedes
all previous agreements, understandings, writings, proposals, communications, or representations, either
written or oral, between ETS and City made with respect to the matters herein contained and the
transactions contemplated hereby. The terms of this Agreement shall prevail over any conflicting terms
of any Order or any Service Acknowledgment of an Order. This Agreement shall not be binding upon the
Parties hereto unless and until it has been duly executed by authorized representatives for the Parties.
1.23 DISPUTE RESOLUTION
If a dispute or claim arises under this Agreement, the Parties agree to first try to resolve the
dispute or claim by appropriate intemal means, including referral to each Party's senior management. If
the Parties cannot reach a mutually satisfactory resolution, then and in that event any such dispute or
claim will be sought to be resolved with the help of a mutually selected mediator. If the Parties cannot
agree on a mediator, City and ETS shall each select a mediator and the two mediators shall agree upon a
third mediator. Any costs and fees, other than attomeys fees, associated with the mediation shall be
shared equally by the Parties. Mediation shall be held in Williamson County, Texas.
City and ETS hereby expressly agree that no claims or disputes between the Parties arising out of
or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including
without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1 -14) or any
applicable state arbitration statute.
1.24 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect
the validity of enforceability of any other portion or provision of this Agreement. Any void provision
shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and
enforced as if this Agreement did not contain the particular portion of provision held to be void. The
Parties further agree to amend this Agreement to replace any stricken provision with a valid provision that
comes as close as possible to the intent of the stricken provision. The provisionsof this Section 1.24 shall
not prevent this entire Agreement from being void should a provision which is of the essence of this
Agreement be determined void.
1.25 MISCELLANEOUS PROVISIONS
A. Section headings are included for convenience only and are not to be used to construe or interpret
this Agreement.
B. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy
under this Agreement shall operate to limit, impair, preclude, cancel, waive, or otherwise affect
such right or remedy. Wherever this Agreement requires either Party's approval, consent, or
satisfaction, the response shall not be unreasonably or arbitrarily withheld or delayed.
15
C. No changes, amendments, or modifications of any provision of this Agreement shall be valid
unless made by an instrument in writing signed by both Parties; and, in the event of City, unless
and until such written instrument, when required by law, is duly passed by appropriate action of
City Council.
D. Each Party represents and warrants to the other that this Agreement constitutes its duly
authorized, legal, valid, binding, and enforceable obligation.
E. This Agreement may be executed by the Parties in one or more counterparts, and each of which,
when so executed, shall be an original but all such counterparts shall constitute one and the same
instrument.
F. This Agreement shall be govemed by the internal laws of the State of Texas, and not by the laws
regarding conflicts of laws.
G. The remedies under this Agreement shall be cumulative and are not exclusive. Election of one
remedy shall not preclude pursuit of other remedies
H. Time is of the essence in this Agreement.
IN WITNESS WHEREOF, City and ETS have executed this Agreement on the dates below
indicated.
CITY OF ROUND ROCK, TEXAS A l 1 EST:
By:
By:
Nyle Maxwell, Mayor Christine R. Martinez, City Secretary
Date Signed: Date Signed:
ELECTRONIC TRACKING SYSTEMS, L.L.C.
Barbar
Title: ice President / Controller
Date Signed:
16
DATE: October 18, 2002
SUBJECT: City Council Meeting — October 24, 2002
ITEM:
11.C.3. Consider a resolution authorizing the Mayor to execute an
Agreement for Provision of Electronic Tracking Systems with
Electronic Tracking Systems, L.L.C.
Resource: Paul Conner, Chief of Police
History: This is an agreement for equipment and services from Electronic Tracking Systems.
There is no cost to the City, although a formal agreement is required.
Funding:
Cost: N/A
Source: N/A
Outside Resources: None
Impact/Benefit: Approving this resolution will allow the Police Department to receive the
contracted services.
Public Comment: None
Sponsor: None