Staff Report1pW N OF
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DATE:
TO:
FROM:
SUBJECT:
MEETING DATE: 08/04/15
ITEM NO:
COUNCIL AGENDA REPORT
JULY 24, 2015
MAYOR AND TOWN COUNCIL
LES WHITE, INTERIM TOWN MANA V-71--
AUTHORIZE THE INTERIM TOWN MANAGER TO SIGN THE
MEMORANDUM OF UNDERSTANDING (MOU) SILICON VALLEY
REGIONAL COMMUNICATIONS SYSTEM BETWEEN THE SILICON
VALLEY REGIONAL INTEROPERABILITY AUTHORITY (SVRIA) AND
THE TOWN OF LOS GATOS
RECOMMENDATION:
Authorize the Interim Town Manager to sign the Memorandum of Understanding (MOU) Silicon
Valley Regional Communications System between the Silicon Valley Regional Interoperability
Authority (SVRIA) and the Town of Los Gatos.
BACKGROUND:
Since 2010, the Town of Los Gatos has participated in a Joint Powers Agreement along with the
County of Santa Clara and the Cities of Campbell, Cupertino, Gilroy, Los Alto, Milpitas, Monte
Sereno, Morgan Hill, Mountain View, Palo Alto, Santa Clara, San Jose, Saratoga, and Sunnyvale
to fonn the Silicon Valley Regional Interoperability Authority (SVRIA) to implement a strategy
for a regional interoperable communications network, to jointly purchase a radio and data
communications system, to integrate this system or network with other nearby regional public
safety communications systems, to jointly fund activities and systems related to interoperability,
and to jointly apply for grants and funding to facilitate accomplishing these goals.
The Town Council approved the Agreement for Silicon Valley Regional Communications System
Stage 2 between the County of Santa Clara and the Town of Los Gatos (Attachment I) on June 17,
2013 that authorized the purchase of radio consoles and miscellaneous equipment that will
ultimately integrate with the build -out of a regional interoperable radio system outlined in the
proposed MOU (Attachment 2). The two new radio consoles were installed during the 9 -1 -1
PREPARED BY: MATT FRISBY
Chief of Police
Reviewed by: LK-r Assistant Town Manager
Y:\Admm Ana1yst\COunc11\SVR1A Au.- 2015 \SVRIA Staff Report.doc
Attorney 4gFinance
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: AUTHORIZE THE INTERIM TOWN MANAGER TO SIGN THE
MEMORANDUM OF UNDERSTANDING (MOU) SILICON VALLEY
REGIONAL COMMUNICATIONS SYSTEM BETWEEN THE SILICON
VALLEY REGIONAL INTEROPERABILITY AUTHORITY (SVRIA) AND
THE TOWN OF LOS GATOS
JULY 24, 2015
Communications Center remodel and are currently in use with the Department's current radios and
will be able to upgrade to the new interoperable radio system.
DISCUSSION:
The MOU is intended to establish a means of requiring payments from the participating members
ensuring the sound operation and financing of the Silicon Valley Regional Communications
System (SVRCS) build -out. The SVRCS is the three cell, multi -site System P25 Phase 2 TDMA
700 MHz Trunked Radio Simulcast Communications System. The SVRCS includes the entire
build -out of the interoperable communications system.
The MOU also outlines the responsibilities for both participating members and the SVRIA for
the completion of the SVRCS build -out and the SVRIA's obligations to maintain and operate the
SVRCS.
This project with the SVRIA moves the Town closer to the Council's 2014 — 2016 Strategic Goal
to "Implement migration to regional communications and interoperability."
CONCLUSION:
Staff recommends that Council authorize the Interim Town Manager to sign the Memorandum of
Understanding Silicon Valley Regional Communications System with the Silicon Valley
Regional Interoperability Authority and the Town of Los Gatos.
ALTERNATIVE:
As an alternative to the staff recommendation, Council may consider to not authorize the Interim
Town Manager to sign the MOU with the SVRIA.
The disadvantage to not signing the MOU with the SVRIA is potential for withdrawal from the
SVRIA JPA. Withdrawal from the SVRIA JPA would halt any interoperable communications
with the Town of Los Gatos and other members of the SVRIA. This would affect the delivery of
emergency services in Los Gatos.
COORDINATION:
The contents of this staff report were drafted in collaboration with the Finance Department,
Parks and Public Works, and reviewed by the Town Attorney.
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: AUTHORIZE THE INTERIM TOWN MANAGER TO SIGN THE
MEMORANDUM OF UNDERSTANDING (MOU) SILICON VALLEY
REGIONAL COMMUNICATIONS SYSTEM BETWEEN THE SILICON
VALLEY REGIONAL INTEROPERABILITY AUTHORITY ( SVRIA) AND
THE TOWN OF LOS GATOS
JULY 24, 2015
FISCAL IMPACT:
The SVRIA has outlined the financial commitment from each participating member based on the
number of radios that each agency proposes to use. The Police Department has provided the
SVRIA with a total of 140 radios that will be used by both the Police Department and Parks and
Public Works. These radios include both mobile radios installed in vehicles and hand -held
portable radios.
The SVRIA has provided a cost for the Town of Los Gatos totaling $388,801 that needs to be
paid over the span of three years starting with FY 2015/16. The price per year is $129,600.
Funding for the project is outlined in CIP Project Number 841 -6305 that was approved as part of
the FY 2015/16 Budget. General Fund Appropriated Reserves (GFAR) funds have been
identified to pay for the project.
ENVIRONMENTAL ASSESSMENT:
This action is not a project defined under CEQA, and no further action is required.
Attachments:
1. Agreement for Silicon Valley Regional Communications System Stage 2 between the County
of Santa Clara and the Town of Los Gatos
2. Memorandum of Understanding Silicon Valley Regional Communications System between
the Silicon Valley Regional Interoperability Authority and the Town of Los Gatos
AGREEMENT FOR
SILICON VALLEY REGIONAL COMMUNICATIONS
STAGE 2
BETWEEN THE
COUNTY OF SANTA CLARA
AND
THE TOWN OF LOS GATOS
CLERK DEPARTMENT
AGR Z� . d' �
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This AGREEMENT is made and entered into this 25 day of June, 2013, by and between
the COUNTY OF SANTA CLARA, a political subdivision of the State of California
( "COUNTY ") and the TOWN OF LOS GATOS, a municipal corporation of the State of
California ( "TOWN ").
RECITALS
WHEREAS, the United States Department of Homeland Security ( "DHS ") consolidated
the separate San Jose, Oakland, and San Francisco Urban Area Security Initiatives into
a combined Bay Area Urban Area Security Initiative ( "BA UASI ") for the purpose of
application for and distribution of federal homeland security program grant funds; and
WHEREAS, the Bay Area UASI Approval Authority ( "Approval Authority ") was
established as the Urban Area Working Group ( "UAWG ") for the BA UASI, to provide
overall governance of the homeland security program across the BA UASI, to coordinate
development and implementation of all federal homeland security grant program
initiatives, and to ensure compliance with all grant program requirements; and
WHEREAS, the City and County of San Francisco ( "San Francisco ") has been
designated as the grantee for federal homeland security grant funds granted to the BA
UASI by DHS through the California Governor's Office of Homeland Security ( "OHS "),
with responsibility to establish procedures and execute sub -grant agreements for the
distribution of grant funds within the BA UASI; and
WHEREAS, pursuant to grant distribution decisions by the Approval Authority, the UASI
Management Team San Francisco has entered into an agreement with the COUNTY to
distribute a portion of the FY 2011 and FY 2012 UASI grant funds to the COUNTY (UASI
Grant); and
WHEREAS, pursuant to grant distribution decisions by the Approval Authority, the UASI
Management Team San Francisco has entered into an agreement with the COUNTY to
distribute a portion of the FY 2011 and FY 2012 SHSGP grant funds to the COUNTY
( SHSGP Grant); and
WHEREAS, the UASI Grants establish that San Francisco shall provide the COUNTY with a
total grant allocation of Two Million Two Hundred Thousand Dollars ($2,200,000) to be used
for the purpose of improving interoperability through the Stage 1 and Stage 2 build out of a
five site Project 25 Phase 2 TDMA 700 MHz Trunk Radio Simulcast Communications
System, to be known as the Silicon Valley Regional Communications System ( "SVRCS "),
Page 1 of 7
ATTACHMENT 1
z t__ I DtWLxCATE dRIGIM JUN 2 5 2013
with focused coverage and capacity within the Cities of Santa Clara and Sunnyvale; and
WHEREAS, the SHSGP Grants establish that the COUNTY will manage the total grant
allocation of One Million One Hundred Ninety -nine Thousand Dollars ($1,199,000) to be
used for the purpose of improving interoperability through the Stage 1 and Stage 2 build out
of a five site Project 25 Phase 2 TDMA 700 MHz Trunk Radio Simulcast Communications
System, to be known as the Silicon Valley Regional Communications System ( "SVRCS "),
with focused coverage and capacity within the Cities of Santa Clara and Sunnyvale; and
WHEREAS, COUNTY is both the Fiscal Agent and Project Manager for the SVRCS
and is also responsible for overseeing, developing, and completing the Stage 1 and
Stage 2 build -out of the system and administration of the competitively bid and
awarded contract for goods and services; and
WHEREAS, in order to facilitate the SVRCS project and maximize local best incentive
pricing on equipment and services for participating agencies and eligible purchasers, the
COUNTY and TOWN have agreed to share fiscal responsibility as needed to expedite
procurement of dispatch radio consoles, radios and /or other related equipment/accessories
purchased as further set forth in this AGREEMENT; and
WHEREAS, the Town of Los Gatos has agreed to contribute to the COUNTY upon invoice
an amount not to exceed two hundred thousand dollars ($200,000) as further described in
SECTION 2(A) of this AGREEMENT,
NOW, THEREFORE, for good and valuable consideration, the adequacy and
sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
SECTION 1. PURPOSES OF AGREEMENT
The purposes of this AGREEMENT are to (1) fully reimburse COUNTY from TOWN funds
for the TOWN'S purchase of dispatch radio console and related equipment and services and
(2) set forth the TOWN' and COUNTY's roles and responsibilities for completion of the
Stage 2 build out of SVRCS
SECTION 2. TOWN'S OBLIGATIONS
A. TOWNSs Contribution.
The Town of Los Gatos shall contribute funds as reimbursement upon invoice in an
amount not to exceed two hundred thousand dollars ($200,000) (" TOWNS Contribution ")
to the COUNTY to fully offset the TOWN'S procurement of dispatch radio consoles,
radios and /or other related equipment/accessories purchased on their behalf by the
COUNTY.
Page 2 of 7
SECTION 3. COUNTY'S OBLIGATIONS
In consideration of TOWN's Contribution, COUNTY shall fulfill the obligations listed
below.
A. Use of the TOWN'S Contribution. COUNTY shall use the TOWN's Contribution to
fully offset the TOWN'S cost for dispatch consoles, radios and /or other related
equipment/accessories purchased by the COUNTY on their behalf.
SECTION 4. FUNDING PROCEDURE
A. Maximum Funding.
a. The Town of Los Gatos shall contribute funds as reimbursement upon invoice
in an amount not to exceed two hundred thousand dollars ($200,000)
('TOWN's Contribution ") to the COUNTY to fully offset the cost to procure
dispatch radio consoles, radios and other related equipment and /or
accessories purchased on their behalf as specified in SECTION 2(A).
B. Funding Restrictions. TOWN's Contribution shall only be used to offset direct costs to
procure dispatch radio consoles, radios and other related equipment and /or
accessories on their behalf as requested in writing.
C. Payment to COUNTY. Upon receipt of an invoice from COUNTY, the TOWN shall
provide COUNTY with payment (e- transfer or check) to the Office of the County
Executive, Communications Department up to the amount specified in Section 4(A)
within thirty (30) days.
SECTION 5. TERM OF AGREEMENT
This AGREEMENT shall commence upon the execution by all of the Parties ( "Effective
Date ") and shall expire upon the completion of reimbursement for receipt of dispatch
radio consoles, radios and other related equipment and /or accessories.
SECTION 6. OWNERSHIP, MAINTENANCE INSURANCE AND MANAGEMENT
COUNTY, as Fiscal Agent for the FY 2011 and FY 2012 UASI and SHSGP Grants, shall
own, maintain, insure, and manage all infrastructure equipment and upgrades installed as
part of SVRCS project upon final acceptance of the project by the COUNTY, until such time
as the Silicon Valley Regional Interoperability Authority ( "SVRIA ") may assume ownership,
maintenance, insurance, and management responsibilities. Dispatch radio consoles,
radios and other related equipment and /or accessories purchased by the COUNTY on
behalf of the TOWN shall be transferred from the COUNTY to each TOWN following
Page 3 of 7
receipt of full reimbursement of costs utilizing an approved equipment transfer form
signed by both parties upon completion of physical transfer of goods.
SECTION 7. RELATIONSHIP OF THE PARTIES
Each Party shall perform the work and services described herein as an independent
contractor and not as an officer, agent, servant or employee of the other Party. None of
the provisions of this AGREEMENT is intended to create, nor shall be deemed or
construed to create, any relationship between the Parties other than that of independent
parties contracting with each other for purpose of effecting the provisions of this
AGREEMENT. The Parties are not, and will not be construed to be in a relationship of
joint venture, partnership or employer - employee. Neither Party has the authority to
make any statements, representations or commitments of any kind on behalf of the other
Party, or to use the name of the other Party in any publications or advertisements,
except with the written consent of the other Party or as is explicitly provided herein.
Contractors will be solely responsible for the acts and omissions of its officers, agents,
employees, contractors, and subcontractors, if any.
SECTION 8. MODIFICATION
This AGREEMENT shall not be altered, changed, modified, or amended without the
prior, express written consent of both Parties to this AGREEMENT. No amendment shall
be effective or binding unless approved by the TOWN and COUNTY.
SECTION 9. SEVERABILITY
The provisions of this AGREEMENT are severable, and if for any reason a clause,
sentence, or paragraph of this AGREEMENT is determined to be invalid by a Court or
County or commission having jurisdiction over the subject matter thereof, such invalidity shall
not affect other provisions of this AGREEMENT, which can be given effect without the invalid
provision.
SECTION 10. TERMINATION
This AGREEMENT may be terminated at any time by mutual written agreement of both
TOWN and COUNTY.
SECTION 11. SURVIVAL
All sections, paragraphs, subparagraphs, exhibits and financial responsibilities shall
survive termination or expiration of this AGREEMENT.
SECTION 12. ASSIGNMENT
This AGREEMENT shall be binding upon and shall inure to the benefit of the successors
of the Parties. With the exception of infrastructure asset transfer to the SVRIA and TOWN
detailed in Section 6, no Party may assign any rights or obligations hereunder without the
written consent of the other Party.
Page 4 of 7
SECTION 13. NO WAIVER
The failure of either Party to insist upon the strict performance of any of the terms,
covenants, and conditions of this AGREEMENT shall not be deemed a waiver of any right
or remedy that either Party may have, and shall not be deemed a waiver of its right to
require strict performance of all of the terms, covenants, and conditions thereafter.
SECTION 14. INDEMNIFICATION' INSURANCE
INDEMNIFICATION: TOWN shall defend, hold harmless, and indemnify the COUNTY, its
officers, agents, and employees from any claim, liability, loss, injury or damage arising out
of, or in connection with, the provisions of this AGREEMENT and which result from acts or
omissions of the TOWN, its officers, agents, or employees. TOWN shall reimburse the
COUNTY for all costs, attorneys' fees, expenses and liabilities incurred with respect to
any litigation in which the TOWN is obligated to indemnify, defend and hold harmless the
COUNTY under this AGREEMENT.
INSURANCE: TOWN shall, at its own expense, maintain a program of self- insurance
and /or insurance of general liability coverage, including automobile liability, in the
amount of at least one million dollars per occurrence and in the aggregate and statutory
California Workers' Compensation coverage. The coverage shall remain in force during
the entire term of this Agreement. TOWN shall provide evidence upon the request of
COUNTY that the required coverage is in place.
SECTION 15. FORCE MAJEURE
Neither Party shall be liable for failure of performance, nor incur any liability to the other
Party on account of any loss or damage resulting from any delay or failure to perform all or
any part of this AGREEMENT if such delay of failure is caused by events, occurrences, or
causes beyond the reasonable control and without negligence of the Parties. Such events,
occurrences, or causes will include, but not limited to, labor strikes, lockouts, riots, fire,
explosion, acts of war, and acts of God.
SECTION % DEFAULT
If TOWN defaults on the obligations of this AGREEMENT, COUNTY may immediately stop
work on the Stage 1 project in TOWN and terminate this AGREEMENT. Before exercising
the right to terminate, COUNTY shall give written notice of such default to TOWN. TOWN
shall have thirty (30) calendar days after such notice is given to start to cure the default. All
default shall be cured within thirty (30) calendar days after COUNTY'S written notice. If any
default or breach continues uncured following notice and opportunity to cure, and TOWN
has not completed cure of the default within the thirty (30) calendar days, then COUNTY
may terminate this AGREEMENT.
SECTION 17. NOTICES
A. All deliveries, notices, requests, demands, or other communications provided for or
Page 5 of 7
required by this AGREEMENT shall be in writing and shall be deemed to have been
given when sent by registered or certified mail, return receipt requested; when sent
by overnight carrier; or upon telephone confirmation to sender of receipt of a facsimile
communication which is followed by a mailed hard copy from sender.
Notices shall be addressed to:
COUNTY: Santa Clara County Communications
2700 Carol Drive
San Jose, CA 95125
Attn: Bert Hildebrand, Communications Director
TOWN: Town of Los Gatos Police Department
110 East Main Street
Los Gatos, CA 95030
Attn: Scott Seaman, Chief of Police
B. Each Party may designate a different person and address by sending written notice
to the other Party, to be effective no later than ten (10) days after the date of the
notice.
SECTION 18. TITLES AND HEADINGS
The titles and headings of paragraphs, sections, subsections, and exhibits are for
convenience only and are not intended to affect the proper construction of this
AGREEMENT.
SECTION 19. ENTIRE AGREEMENT
This AGREEMENT and attached exhibits incorporate all the agreements, covenants, and
understandings between the Parties concerning the subject matter hereof, and all such
agreements, covenants, and understandings have been merged into this AGREEMENT.
No prior agreement or understanding, verbal or otherwise, of the Parties or their agents
shall be valid or enforceable unless embodied in this AGREEMENT.
SECTION 20. WARRANTY OF AUTHORITY TO EXECUTE AGREEMENT
Each Party to this AGREEMENT represents and warrants that each person whose
signature appears hereon has been duly authorized and has the full authority to execute
this AGREEMENT on behalf of the entity that is a Party to this AGREEMENT.
SECTION 21, COUNTERPARTS
This AGREEMENT may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute one and the same
instrument.
Page 6 of 7
SECTION 22. GOVERNING LAWS
The Parties agree that the law governing this AGREEMENT shall be that of the State of
California.
SECTION 23. VENUE
In the event that suit shall be brought by either Party to this AGREEMENT, the Parties agree
that venue shall be exclusively vested in the State Courts of the County of Santa Clara or, if
federal jurisdiction is appropriate, exclusively in the United States District Court for the
Northern District of California, in San Jose, California.
IN WITNESS OF, the parties hereto have caused this AGREEMENT to be executed by
their duly authorized representative as of the last date set forth below.
Signed:
COUNTY OF SANT LARA
By.
Ken e ger, P sideff
Board of Supervisors
Date: JUN 2 5 2013
Signed and certified that a copy of this document
has been delivered by electronic or other means to
the President, Board of Supervisors
ATTEST:
Bye i %u� k _
L n Regad z
Clerk of the Board of Supervisors
Date: JUN 2 5 2013
TOWN OF LOS GATOS
By:'�.dC
Greg Larson,
Town Manager
Date:
Approved as to Form and Legality:
By_
4Tn Pro Attopm y
Date: (P -a —13
Approved as to Form and Legality: Attest
Jac <ie Rose
rk administrator
By: � '' II
Donald Larkin Date: d^ l
Deputy County Counsel
Date: �a `x'13
*1 County of Santa Clara is the authorized Project Manager and Fiscal Agent for the
SVRCS Project, being completed on behalf of the SYRIA.
Page 7 of 7
Full
Lq--)4 �9�
DATE:
TO:
FROM:
MEETING DATE: 6/17/13
ITEM NO: 4
COUNCIL AGENDA REPORT
JUNE 10, 2013
MAYOR AND TOWN COUNCIL
GREG LARSON, TOWN MANAGER
SUBJECT: AUTHORIZE THE TOWN MANAGER TO EXECUTE A MEMORANDUM OF
.AGREEMENT WITH THE COUNTY OF SANTA CLARA TO REIMBURSE THE
COUNTY FOR THE PURCHASE OF RADIO CONSOLES AND MISCELLANEOUS
EQUIPMENT FROM MOTOROLA IN AN AMOUNT NOT TO EXCEED $200,000
RECOMMENDATION:
Authorize the Town Manager to execute a Memorandum of Agreement with the County of Santa Clara
to reimburse the County for the purchase of radio consoles and miscellaneous equipment from Motorola
in an amount not to exceed $200,000.
BACKGROUND:
The County of Santa Clara and the Town of Los Gatos are jointly participating in the Silicon Valley
Regional Communications System (SVRCS) to ultimately build a regional interoperable radio system.
The Town has a current need to upgrade an element of its radio dispatch hardware. The County of Santa
Clara is managing a purchase agreement with the SVRCS selected vendor, Motorola, Inc, for discounted
pricing on hardware, This discounted pricing is offered during a specific time window which will expire
in Summer; 2013, The Town desires to utilize this discounted pricing window to purchase two radio
dispatch consoles, and possibly a small number of digital portable radios. The County has offered to
purchase the consoles on behalf of the Town under a memorandum of agreement and to be reimbursed
by the Town.
DISCUSSION:
The Police Department operates its own dispatch center which utilizes two dispatch positions. Each
position has a radio console, the hardware which transmits and receives the radio signal to and from
PREPARED BY: SCOTT R.
Chief of Police
Reviewed by:
Assistant Town Manager ()��Town Attorney
Purchase -i.doe
MEMORANDUM OF UNDERSTANDING
SILICON VALLEY REGIONAL COMMUNICATIONS SYSTEM
BETWEEN THE SILICON VALLEY REGIONAL INTEROPERABILITY
AUTHORITY
AND THE TOWN OF LOS GATOS
This Memorandum of Understanding ( "MOU ") is made and entered into this _ day of
, 2015, by and between the Silicon Valley Regional Interoperability
Authority, a California Joint Powers Authority ( "SVRIA "), and the Town of Los Gatos, a
municipal corporation of the State of California ( "AGENCY ") (together "Parties ").
RECITALS
WHEREAS, in 2001, the Cities of Campbell, Cupertino, Gilroy, Los Altos, Milpitas,
Monte Sereno, Morgan Hill, Mountain View, Palo Alto, Santa Clara, San Jose,
Saratoga, and Sunnyvale; the Towns of Los Gatos and Los Altos Hills; the South Santa
Clara County Fire District; the County of Santa Clara; San Jose State University; and
the Santa Clara Valley Water District executed a Joint Funding Agreement ( "Joint
Funding Agreement') pursuant to the Joint Exercise of Powers Act, Title 1, Division 7,
Chapter 5 of the California Government Code, Government Code Section 6500 et seq.,
to jointly hire consultants to complete the conceptual design and implementation
strategy for a regional interoperable communications network, to jointly purchase a
radio and data communications system, to integrate this system or network with other
nearby regional public safety communications systems, to participate in regional
interoperability systems, to jointly fund activities and systems related to interoperability
and to jointly apply for grants and funding to facilitate accomplishing these goals;
WHEREAS, in 2010, the Cities of Campbell, Cupertino, Gilroy, Los Altos, Milpitas,
Monte Sereno, Morgan Hill, Mountain View, Palo Alto, Santa Clara, San Jose,
Saratoga, and Sunnyvale; the Town of Los Gatos and the County of Santa Clara
(collectively "MEMBERS ") entered into a joint powers agreement ( "JPA Agreement') to
form the Silicon Valley Regional Interoperability Authority ( "SVRIA "), with similar goals
and purpose as commenced under the Joint Funding Agreement;
WHEREAS, paying entities, which are not MEMBERS of SVRIA ( "PARTICPANTS ") will
execute this MOU;
WHEREAS, SVRIA continues to plan and develop a regional communications
interoperability system that will require the financial commitment of SVRIA MEMBERS
and PARTICIPANTS by and through this MOU to fund the construction, operation and
maintenance of such system;
WHEREAS, grant and local funds have been provided to SVRIA directly or through
MEMBERS to improve interoperability through the multi -stage build out of a three cell,
multi -site P25 Phase 2 TDMA 700 MHz Trunked Radio Simulcast Communications
System, to be known as the Silicon Valley Regional Communications System ( "SVRCS ");
Page 1 of 19
ATTACHMENT
WHEREAS, the County of Santa Clara ( "County ") is the Fiscal Agent and the Contract
Manager for SVRIA and the SVRCS build -out ( "System ");
WHEREAS, in order to facilitate the construction of the SVRCS, the Parties wish to affirm
their continued financial support for a regional interoperable communication system as
agreed in this MOU;
WHEREAS, AGENCY and SVRIA enter into this MOU under which the SVRIA will own
and operate the System for the benefit of AGENCY and other MEMBERS and
PARTICIPANTS, which other MEMBERS and PARTICIPANTS will execute Memoranda
of Understanding similar to this one (collectively, the "MOU's "). MEMBERS and
PARTICIPANTS will pay, a portion of the cost of the System, consisting of a buy -in cost
based on the number of radios committed for use on the System (the "Construction and
Implementation Payments "), and the cost of annual operation (the "Operation and
Maintenance Payments "), (all Payments are referred to herein collectively as the
"AGENCY Payments ");
WHEREAS, this MOU is intended to establish a means of requiring the MEMBERS'
Payments and PARTICIPANTS' payments ensuring the sound operation and financing
of the System, and is not in itself an approval of the System or the grant of any land use
entitlement potentially required to develop the System; and
WHEREAS, it is anticipated that users of the SVRCS will include entities that enter into
a memorandum of understanding similar to this MOU, after the SVRCS is fully
functional. ( "FUTURE PARTICIPANTS ").
NOW, THEREFORE, for good and valuable consideration, the adequacy and sufficiency
of which is hereby acknowledged, the Parties hereby agree as follows.
SECTION 1. DEFINITIONS
AGENCY: The AGENCY entering into this MOU.
Construction: The complete planning, design, construction, acquisition, financing,
improvement, repair, modification and installation of the SVRCS .
Construction and Implementation Payments: Payments made under this MOU for
the purpose of building the SVRCS.
County: The County of Santa Clara.
FUTURE PARTICIPANTS 1: Entities who enter into a MOU and make their payment
after June 30, 2016, but on or before July 1, 2017.
FUTURE PARTICIPANTS 2: Entities who enter into this MOU after July 1, 2017
Page 2 of 19
Joint Funding Agreement: Joint Funding Agreement is the agreement entered into by
the predecessors to SVRIA in 2001 for the purposes of funding and implementing
interoperability countywide.
JPA Agreement: The original agreement entered into by Members of the SVRIA in
order to form the JPA.
Operations and Maintenance Payments: Payments made based upon this MOU for
the ongoing operations and maintenance of the SVRCS.
MEMBERS: The members of the SVRIA under the Joint Powers Agreement.
MOU: This Memorandum of Understanding.
PARTICIPANTS: Parties to a memorandum of understanding similar to this MOU that
are not members of SVRIA and enter into a MOU on or before June 30, 2016. .
SVRCS or System: The three cell, multi -site System P25 Phase 2 TDMA 700 MHz
Trunked Radio Simulcast Communications System, to be known as the Silicon Valley
Regional Communications System. This includes the entire build out interoperable
communications system envisioned by SVRIA.
SVRIA: The Silicon Valley Regional Interoperability Authority, formed in 2010 for the
purposes of funding and implementing interoperability countywide and as a successor
entity to the entity created under the Joint Funding Agreement.
Termination Date: December 31, 2029, unless earlier terminated by the Parties.
User Count: Radio Subscriber count as provided by the Members or Participants as of
April 13, 2015 and reflected in Exhibit "A ".
SECTION 2. PURPOSES OF THE MOU
The purposes of this MOU are to:
2.1 Require payment by the AGENCY for its share of the regional SVRCS costs; and
2.2 Set forth the MEMBERS, PARTICIPANTS and the SVRIA's responsibilities for
completion of the SVRCS build out.
2.3 Set forth SVRIA's obligations to maintain and operate the SVRCS.
SECTION 3. OPERATION OF THE SYSTEM
3.1 SVRIA has entered or will enter into purchase orders and contracts to supervise and
Page 3 of 19
provide for, or cause to be supervised and provided for, the complete planning, design,
construction, acquisition, financing, improvement, repair, modification and installation of
the SVRCS (collectively, "Construction "). SVRIA will cause the Construction to be
diligently performed in accordance with the specifications approved by the SVRIA.
3.2 SVRIA shall operate the System in conjunction with the MEMBERS for the duration of
this MOU.
3.3 AGENCY shall have the right to use the System during the term of the MOU, unless
AGENCY is in default on AGENCY Payments required hereunder after the applicable cure
period set forth in Section 20.
3.4 The SVRCS shall only be used for public safety communications and other
governmental uses for the MEMBERS' and PARTICIPANTS' benefit and convenience.
SVRIA agrees to maintain and preserve the System in good repair and working order at all
times, to operate the System in an efficient and economical manner, and to pay all the
System's maintenance and operation costs as they become due. AGENCY
acknowledges that SVRIA has complete ownership and the sole discretion to operate,
control and manage the System. Nothing in this MOU shall be construed to limit SVRIA's
discretion in the System's operation, control and management.
3.5 SVRIA agrees to use commercially reasonable efforts to hire the County of Santa
Clara, City of San Jose and /or other contractors to operate and maintain the System.
3.6 AGENCY agrees to purchase the components it uses with the SVRCS service from or
with the cooperation of SVRIA. AGENCY shall not use any components with the SVRCS
service which SVRIA has not authorized for its use. AGENCY shall not use the SVRCS in
any manner which may adversely affect the service provided by the System.
3.7 SVRIA shall attempt to obtain the land use permits, if any, that are required for
Construction. In the event a particular permit cannot be reasonably obtained for a
particular site, SVRIA will seek one or more reasonable alternate sites.
SECTION 4. MODIFICATION OF SYSTEM
SVRIA shall have the right to make additions, modifications and improvements to the
System or any portion thereof. All additions, modifications and improvements to the
System shall thereafter comprise part of the System and become subject to the MOU's
provisions. Such additions, modifications and improvements shall not in any way damage
the System, or cause the System to be used for purposes other than those authorized
under the MOU's provisions, state and federal law. The System, upon completion of any
additions, modifications and improvements made thereto pursuant to this Section, shall be
of a value which is not substantially less than the value thereof immediately prior to the
making of such additions, modifications and improvements.
Page 4 of 19
SECTION 5. PAYMENT OF THE INITIAL PAYMENT AND AGENCY PAYMENTS
5.1 AGENCY shall make Construction and Implementation Payments on the dates in
Section 22.1 and in the amounts shown in Exhibit "A ". AGENCY shall make annual
Operations and Maintenance Payments on the dates and in the amounts as calculated
by the formula listed in Exhibit "B" or the amounts listed in Exhibit "B
5.2 AGENCY provided User Counts are contained in Exhibit "A ". Agencies may
increase its User Count after entering into this MOU by the payment of user charge
based upon the following formula: Total User Count as shown on Exhibit "A" divided by
the total Infrastructure Cost = New User Count Charge. Effective January 1, 2016 and
each year thereafter the New User Count Charge shall be increased by an amount
equivalent to the then - current User Count Charge multiplied by the percentage increase
in the Consumer Price Index — Consolidated Metropolitan Statistical Area (CPI)
covering San Francisco - Oakland - San Jose, as published by the Bureau of Labor
Statistics, U.S. Department of Labor, between the most recent October and the
preceding October. The increase in New User Charge shall be compounded. Agency
Operations and Maintenance Costs shall be increased commensurate with the increase
in User Counts. Should the Agency User Count decrease in any year Operations and
Maintenance Payments will not be reduced except as described in Section 24.
SECTION 6. PARTICIPANTS AND FUTURE PARTICPANTS
6.1 PARTICIPANTS as listed in Exhibit "A" shall pay their pro rata share of the System
costs in a timely fashion at the same time MEMBERS make their Payments on or
before September 30, 2015. PARTICIPANTS, not listed in Exhibit "A" and join on or
before June 30, 2016 shall pay their pro rata share at the time of execution.
6.2 FUTURE PARTICIPANTS 1 who enter into a MOU after June 30, 2016, but on or
before July 1, 2017 shall make a special Construction and Implementation Payment to
cover previously expended costs by MEMBERS and PARTICIPANTS as well as
periodic payments at the times required of other MEMBERS and PARTICIPANTS
during the term of this MOU. These special Construction and Implementation payments
shall be utilized in part to recalculate payments for Construction and Implementation
payments for all MEMBERS, PARTICIPANTS and FUTURE PARTICIPANTS 1 and for
additional capacity or system enhancements or held in reserve for the same purpose.
6.3 FUTURE PARTICIPANTS 2 who enter into a MOU after July 1, 2017 shall make a
special Construction and Implementation Payment as well as periodic payments at the
times required of other MEMBERS and PARTICIPANTS and FUTURE PARTICIPANTS
1 during the term of this MOU. These special Construction and Implementation
payments shall be utilized in part to recalculate Operations and Maintenance payments
for all MEMBERS, PARTICIPANTS and FUTURE PARTICPANTS 1 and FUTURE
PARTICIPANTS 2 and for additional capacity or system enhancements or held in
reserve for the same purpose.
Page 5 of 19
SECTION 7. SOURCE OF PAYMENTS: BUDGET AND APPROPRIATION
7.1 AGENCY shall make the AGENCY Payments from any source of legally available
AGENCY funds. AGENCY agrees to include all AGENCY Payments in each proposed
annual AGENCY budget during the term of this MOU. AGENCY shall make the
necessary annual appropriations for Construction and Implementation payments in FY
2015 — 2016, 2016 — 2017 and 2017 — 2018. AGENCY Payments may be made at any
time prior to the deadline for such Payment; there are no prepayment penalties under
this MOU.
7.2 Notwithstanding paragraph 7.1, in accordance with Article XVI, Section 18 of the
California Constitution, if in any fiscal year subsequent to the execution of this MOU the
AGENCY fails to appropriate money for the purpose of funding this MOU, this MOU
shall terminate, without penalty effective upon the close of business on the last day of
the fiscal year for which funding has been appropriated.
SECTION 8. OPERATION AND MAINTENANCE PAYMENTS
In addition the Payments required in this MOU, AGENCY shall continue to make
MEMBER Assessment payments as required under the JPA Agreement through the
end of fiscal year 2017 — 2018.At the start of fiscal year 2018 — 2019, AGENCY shall
begin to make Operation and Maintenance Payments as listed in Exhibit "B ", in lieu of
Member Assessments so long as the SVRCS is operating.
SECTION 9. ROLE OF GRANT FUNDING
In the event that grant funding can be utilized to reduce the overall System costs, the
cost reduction will be apportioned to the SVRCS on behalf of all MEMBERS and
PARTICIPANTS in a pro rata fashion for the benefit of the System.
SECTION 10. CONSTRUCTION BUDGET CONTINGENCY
SVRIA has established a 20% construction budget contingency within the System
budget. SVRIA shall use these funds for the SVRCS, if unexpected construction costs
or increased costs occur. If at the conclusion of System Construction, contingency
funds remain, such funds shall be transferred to SVRIA for use as a reserve for
Operations and Maintenance costs.
SECTION 11. RECEIPT AND DEPOSIT OF AGENCY PAYMENTS
SVRIA agrees that it will deposit the AGENCY Payments with the SVRIA's fiscal agent,
the County, for the benefit of the SVRCS.
SECTION 12. COMPLIANCE WITH MOU
Time is of the essence with respect to the AGENCY Payments and the performance of
SVRIA under this MOU. AGENCY shall observe and perform all the agreements,
Page 6 of 19
conditions, covenants and terms contained herein. SVRIA shall observe and perform
all the agreements, conditions, covenants and terms contained herein. It is expressly
understood and agreed by the Parties that each of the agreements, conditions,
covenants and terms contained herein is an essential and material term of the MOU
and the operation of the System by SVRIA.
SECTION 13. ACCESS TO SYSTEM
Upon reasonable notice to SVRIA, AGENCY or its authorized representative shall have
the right at all reasonable times to enter, examine and inspect the System or any part
thereof. AGENCY, any Authorized Representative of AGENCY and AGENCY's
successors or assigns shall further have such rights of access to the System or any
component thereof as may be reasonably necessary to cause the proper maintenance
of the System in the event of failure by the SVRIA to perform its obligations hereunder;
provided, however, that neither AGENCY nor any of their assigns shall have any
obligation to cause such proper maintenance.
SECTION 14. INSURANCE
14.1 SVRIA shall procure and maintain, or cause to be procured and maintained,
throughout the term of this MOU, casualty insurance against loss or damage to the
System. This insurance shall, as nearly as practicable, cover loss or damage that is
normally covered by such insurance with extended coverage. This insurance shall not
be required to cover loss or damage caused by seismic activity. This insurance shall be
subject to deductibles as are customarily maintained by public agencies with respect to
works and properties of a like character. The insurance may be maintained as part of or
in conjunction with any other insurance coverage carried by SVRIA, and may be
maintained in whole or in part in the form of the participation by SVRIA in a joint powers
authority or other program providing pooled insurance. MEMBERS, PARTICIPANTS,
FUTURE PARTICIPANTS 1 and FUTURE PARTICIPANTS 2 as each approves the
MOU and makes their payment shall be named as additional insured on SVRIA's
liability coverage insurance.
14.2 SVRIA shall maintain or cause to be maintained throughout the MOU's term, a
standard comprehensive general insurance policy or policies whose minimums are at
least one million ($1,000,000) dollars per occurrence to protect SVRIA, AGENCY, and
their respective members, officers, agents, employees, designated volunteers and
assigns. The policy or policies shall provide for indemnification of said Parties against
direct or contingent loss or liability for damages for bodily and personal injury, death or
property damage occasioned by reason of operating the System as required by the JPA
Agreement. Such policy or policies shall provide coverage in such liability limits and be
subject to such deductibles as SVRIA shall deem adequate and prudent. This
insurance may be maintained as part of or in conjunction with any other insurance
coverage carried by SVRIA. Any available insurance proceeds broader than or in
excess of the specified minimum insurance coverage requirements and /or limits set
forth in this Agreement shall be deemed to be the minimum amount of insurance
required under this Agreement and shall be available to the Parties.
Page 7 of 19
14.3 Insurance required to be maintained by subparagraphs 14.1 or 14.2 above, may be
obtained under a self- insurance program. SVRIA's coverage shall be primary insurance
with respect to the Agency; and Agency's insurance shall be excess of SVRIA's
insurance and shall not contribute with it.
14.4 INSURANCE: AGENCY shall, at its own expense maintain in effect, a program of
self- insurance and /or insurance of general liability coverage, including automobile
liability, in the amount of at least one million ($1,000,000) dollars per occurrence and in
the aggregate as well as statutory California Workers' Compensation coverage. The
coverage shall remain in effect during the entire term of this MOU. AGENCY shall
provide evidence upon the request of SVRIA that the required insurance coverage is in
effect.
14.5 SVRIA shall require that errors and omissions insurance in the amount of at least
one million ($1,000,000) dollars per claim for any architects or engineers retained for
the design and construction of the system.
SECTION 15. BOOKS AND ACCOUNTS
15.1 SVRIA will keep complete and accurate financial records for the System. SVRIA
shall keep such records separate from all other SVRIA financial records. Upon
reasonable notice to SVRIA, AGENCY may inspect the SVRIA's System financial
records.
15.2 Not more than two hundred and ten (210) days after the close of each fiscal year,
SVRIA will prepare:
15.2.1 System financial statements in accordance with Generally Accepted Accounting
Principles.
15.2.2 An Accountant's Report based thereon, prepared by an Independent Certified
Public Accountant who examined such financial statements.
15.2.3 A summary statement of the System's financial condition. SVRIA shall furnish a
copy of the summary statement to AGENCY.
15.3 Not more than two hundred and ten (210) days after the completion of all work
associated with SVRCS Construction, the SVRIA shall prepare and submit a final report
to AGENCY disclosing SVRIA's disbursements of the funds provided by all MEMBERS,
PARTICIPANTS and FUTURE PARTICIPANTS.
SECTION 16. PAYMENT OF TAXES AND COMPLIANCE WITH GOVERNMENTAL
REGULATIONS
SVRIA will pay and discharge all taxes, assessments and other governmental charges,
if any, which may hereafter be lawfully imposed upon the System when due. SVRIA will
conform to the valid requirements of any governmental agency with authority relative to
the Construction or the System. Without limiting the foregoing, SVRIA shall comply with
Page 8 of 19
all applicable laws and written policies and regulations of the federal, state and local
governments in the construction and operation of the SVRCS and the performance of
SVRIA under this MOU.
SECTION 17. FURTHER ASSURANCES
SVRIA and AGENCY will each adopt, deliver, execute and make any and all further
assurances, instruments and resolutions as may be reasonably necessary or proper to
carry out the intention or to facilitate the Parties' performance of this MOU.
SECTION 18. SVRIA REPRESENTATIONS AND WARRANTIES
SVRIA represents and warrants to AGENCY as follows:
18.1 Due Organization and Existence. SVRIA is a joint exercise of powers authority
duly organized and validly existing under the JPA Agreement and the laws of the State
of California. SVRIA has the full legal right, power and authority under the laws of the
State of California to enter into this MOU and to carry out all of its obligations herein.
18.2 Due Execution. SVRIA's representatives, who sign this MOU, are authorized to
sign pursuant to a resolution adopted by the SVRIA's Board of Directors.
18.3 Valid, Binding and Enforceable Obligations. This MOU has been authorized and
executed by SVRIA and constitutes the legal, valid and binding agreement of SVRIA,
enforceable against SVRIA in accordance with its terms.
SECTION 19. AGENCY REPRESENTATIONS AND WARRANTIES
AGENCY represents covenants and warrants to SVRIA as follows:
19.1 Due Organization and Existence. AGENCY is a public body, corporate and politic,
duly organized and validly existing under the laws of the State of California. It has full
legal right, power and authority to enter into this MOU and to carry out all of its
obligations herein.
19.2 Due Execution. AGENCY's representatives, who sign this MOU, are authorized to
sign pursuant to an official action taken by AGENCY's governing body.
19.3 Valid. Binding and Enforceable Obligation. This MOU has been authorized and
executed by AGENCY and constitutes the legal, valid and binding agreement of
AGENCY, enforceable against AGENCY in accordance with its terms.
SECTION 20. EVENTS OF DEFAULT
The following events are Events of Default hereunder:
20.1 Failure by AGENCY to abide by or perform any of its obligations in this MOU within
the thirty (30) day period from the date of AGENCY's receipt of SVRIA's written notice
Page 9 of 19
specifying such failure and requesting that it be remedied. Such failure shall not
constitute an Event of Default if AGENCY diligently and in good faith, commences to
cure the failure within such thirty (30) day period and thereafter completes the cure of
such failure within a reasonable period of time. If AGENCY does not complete the cure
of the Event of Default in a reasonable time or fails to diligently attempt such cure,
SVRIA may terminate this MOU.
20.2 Failure by SVRIA to abide by or perform any of its obligations in this MOU within
the thirty (30) day period from the date of SVRIA's receipt of AGENCY's written notice
specifying such failure and requesting that it be remedied. Such failure shall not
constitute an Event of Default if SVRIA diligently and in good faith, commences to cure
the failure within such thirty (30) day period and thereafter completes the cure of such
failure within a reasonable period of time. If SVRIA does not complete the cure of the
Event of Default in a reasonable time or fails to diligently attempt such cure, AGENCY
may terminate this MOU.
20.3 AGENCY files a petition seeking arrangement or reorganization under federal
bankruptcy laws or similar state law, or if a court of competent jurisdiction shall approve
a petition filed against AGENCY seeking arrangement or reorganization under the
federal bankruptcy laws or similar state law, or if under the provisions of any other law
for the relief or aid of debtors any court of competent jurisdiction shall assume custody
or control of such AGENCY or of the whole or a substantial part of its property.
Notwithstanding the foregoing, such filing shall not constitute an Event of Default if
AGENCY continues to pay its AGENCY Payments on time.
20.4 SVRIA files a petition seeking arrangement or reorganization under federal
bankruptcy laws or similar state law, or if a court of competent jurisdiction shall approve
a petition filed against SVRIA seeking arrangement or reorganization under the federal
bankruptcy laws or similar state law, or if under the provisions of any other law for the
relief or aid of debtors any court of competent jurisdiction shall assume custody or
control of SVRIA.
SECTION 21. REMEDIES NOT EXCLUSIVE
No remedy herein conferred upon or reserved in this MOU is exclusive of any other
remedy, and each such remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing in law or in equity or by
statute or otherwise, and all such remedies may be exercised without exhausting and
without regard to any other remedy.
SECTION 22. AGENCY'S OBLIGATIONS
22.1 AGENCY's Payment. AGENCY shall pay to the SVRIA money in the amount stated
on the SVRIA invoice in an approximate amount as specified in Exhibit "A" to the SVRIA to
fully offset the AGENCY's portion of the regional SVRCS cost. Payments shall commence
in fiscal year 2015 — 2016 unless otherwise designated in Exhibit "A ". These payments
shall be made by September 30, 2015 and by each succeeding September 30 and shall
Page 10 of 19
last for a minimum of three fiscal years as delineated in Exhibit A. Operation and
Maintenance Payments, as shown in Exhibit "B ", shall commence on September 30, 2018
and continue throughout the term of the MOU. AGENCY shall make these payments on
or before September 30 of each successive fiscal year. Operations and Maintenance
costs for future years may increase, but such increase will be limited to actual costs and
reserve requirements.
22.2 AGENCY's Role in SVRCS. During the Construction and Operation of the SVRCS:
22.2.1 AGENCY shall provide technical support including testing during the System
Construction and delivery.
22.2.2 AGENCY shall participate in System meetings with SVRIA and its contractor(s).
22.2.3. AGENCY shall coordinate with SVRIA for the System upgrade and maintenance
work at all AGENCY facilities.
22.2.4 AGENCY shall assist SVRIA with the final acceptance of the SVRCS by testing
System performance, evaluating workmanship and verifying installed equipment
inventories.
22.2.5 AGENCY's costs to administer and participate in usage of the SVRCS will not be
reimbursed through the SVRCS grant funds, the JPA Agreement or by SVRIA.
SECTION 23. SVRIA'S OBLIGATIONS
In consideration of AGENCY's Payment, SVRIA shall fulfill the obligations listed
below:
23.1 Tasks. SVRIA shall perform and be responsible for the following tasks for
completing the SVRCS, including, but not limited to:
23.2.1 Serve as System Manager for the SVRCS, or retain a qualified contractor(s) to serve
as System Manager for the SVRCS,
23.2.2 Fulfill CEQA requirements, if any.
23.2.3 Implement Construction in accordance with UASI and SHSGP Grant guidelines
SECTION 24. TERM OF MOU
24.1 This MOU commences upon the full execution of the MOU ( "Effective Date ") and
shall expire on December 31, 2029. The MOU shall be automatically extended for two
(2) additional three -year periods. One year prior to each expiration date, SVRIA shall
inform each Member or Participant of the approaching automatic extension of the term
of the MOU. Any Member or Participant may notify the SVRIA in writing within one
Page 11 of 19
hundred and eighty (180) days of such notice, that it does not agree to the extension of
the term of the MOU. The Operations and Maintenance payments for the remaining
MEMBERS or PARTICIPANTS shall be adjusted based upon actual User Count as of
June 30 of the year in which the MOU terminates starting in, 2029, and at the expiration
of the first three year extension period. All financial commitments of AGENCY for
Payments while AGENCY is a MEMBER and /or while this MOU applies to AGENCY
shall extend past the termination date unless the commitments have been satisfied prior
to that date.
24.2 This MOU shall not commence unless and until the City of San Jose and the
County of Santa Clara have approved this MOU and budgeted funding for the first year
of the MOU. If the any Member or Participant terminates this MOU then the SVRIA
shall meet and confer in good faith concerning the continued operation of SVRCS and
possible amendment to this Agreement.
SECTION 25. OWNERSHIP MAINTENANCE INSURANCE AND MANAGEMENT
County, as Fiscal Agent for the UASI and SHSGP Grants, shall own, maintain, insure, and
manage all infrastructure equipment and upgrades installed as part of the SVRCS upon
the System's final acceptance by the County, until such time as SVRIA assumes
ownership, maintenance, insurance, and management responsibilities. If the SVRIA
purchases dispatch consoles, subscriber radios and other related equipment and /or
accessories on AGENCY's behalf, such equipment shall be transferred from the SVRIA
to AGENCY following SVRIA's receipt of AGENCY's full reimbursement of costs.
SECTION 26. RELATIONSHIP OF THE PARTIES
Each Party shall perform the work and services described herein as an independent
contractor and not as an officer, agent, servant or employee of the other Party. None of
the MOU's provisions are intended to create, nor shall be deemed or construed to
create, any relationship between the Parties other than that of independent parties
contracting with each other for purpose of effecting the MOD's provisions. The Parties
are not, and will not be construed to be in a relationship of joint venture, partnership or
employer - employee. Neither Party has the authority to make any statements,
representations or commitments of any kind on behalf of the other Party, or to use the
name of the other Party in any publications or advertisements, except with the written
consent of the other Party.
SECTION 27. MODIFICATION
The Parties may modify this MOU only through a written document, signed by both Parties.
SECTION 28. SEVERABILITY
The MOU's provisions are severable, and if for any reason, a Court with proper jurisdiction
determines a clause, sentence, or paragraph of this MOU to be invalid such invalidity shall
Page 12 of 19
not affect other provisions of this MOU, which shall be given effect without the invalid
provision.
SECTION 29. TERMINATION
29.1 This MOU may be terminated upon six months written notice to SVRIA. Should
AGENCY terminate this Agreement AGENCY shall have no interest or claim in the
assets of the SVRIA absent an SVRIA approved written agreement which contains
express provisions to the contrary. The terminating AGENCY shall be obligated to pay
a pro rata share of its payments up to the date of termination.
29.2 If the Agreement is terminated pursuant to Section 29.1 or Section 7.2 then SVRIA
may remove any SVRCS equipment and relocate the equipment to support the balance
of the system. Should the equipment need to be removed or relocated after termination
the costs of relocation or removal shall be borne by the terminating party.
29.3 Nothing contained in this MOU or the JPA Agreement requires that AGENCY
remain as a MEMBER, however the JPA Agreement does contain terms for withdrawal
from the JPA.
SECTION 30. SURVIVAL
30.1 After the MOU's termination or expiration, those provisions which by their nature or
context are intended to survive beyond termination or expiration, and all provisions
regarding indemnification and limitations of liability, will survive indefinitely or until the
expiration of the time period specified elsewhere in this MOU with respect to the provision
in question.
30.2 Upon the MOD's termination or expiration, as between the Parties, the SVRIA retains
all right, title and interest in and to the SVRCS.
SECTION 31. ASSIGNMENT
This MOU shall be binding upon and shall inure to the benefit of the successors of the
Parties. With the exception of asset transfer to SVRIA, and if applicable, AGENCY as
detailed herein, no Party may assign any rights or obligations hereunder without the
written consent of the other Party, except as provided herein.
SECTION 32. NO WAIVER
No waiver by either Party of any breach or default of any of the covenants or agreements
herein shall be deemed to be a waiver as to any subsequent and /or similar breach or
default.
Page 13 of 19
SECTION 33. INDEMNIFICATION
33.1 SVRIA agrees to indemnify, defend and hold harmless the AGENCY, its officers,
agents and employees to the fullest extent allowed by law from any and all claims,
actions, causes of action, losses, damages, liabilities and costs of every nature,
including all claims, actions, causes of action, losses, damages, liabilities for property
damage, bodily injury, or death, and all costs of defending any claim, action or cause of
action, caused by, arising out of, or resulting from, or alleged to have been caused by,
arise out of, or result from, in whole or in part, SVRIA's performance under this
Agreement, except for any claims, actions, causes of action, losses, damages, costs or
liabilities proximately caused by the sole negligence or willful misconduct of AGENCY.
33.2 The foregoing indemnity provision is intended to fully allocate the parties' risk of
liability to third - parties; and there shall be no rights to indemnity or contribution, in law or
equity or otherwise between the parties that are not set forth in this section. SYRIA
waives all rights to subrogation for any matters covered by this provision. SVRIA's
responsibility for such defense and indemnity obligations as set forth in this provision
shall survive the termination or completion of this MOU for the full period of time allowed
by law.
SECTION 34. FORCE MAJEURE
"Force Majeure Event" means any circumstances or occurrence which is beyond the
reasonable control of a Party including, but not limited to, acts of God, war or national
emergency, riot, civil commotion, fire, explosion, flood, epidemic, strike, lock -out or other
form of industrial action (other than those relating solely to any Party's own workforce). If
a Force Majeure Event affects either Party, that Party shall promptly notify the other Party
of the nature and extent of the Event. No Party shall be liable for any loss or damage
suffered or incurred by the other Party arising from the first Party's delay in performing or
failure to perform its obligations under the MOU to the extent that and for so long as the
delay or failure results from any Force Majeure Event, provided the same arises without
the fault or negligence of the first Party. Each Party shall use its commercially
reasonable efforts to minimize the effects of any Force Majeure Event on the operation of
this MOU and the System.
SECTION 35. SUCCESSOR IS DEEMED INCLUDED IN ALL REFERENCES TO
PREDECESSOR
Whenever SVRIA or AGENCY is named or referred to herein, such reference shall be
deemed to include the successor to the powers, duties and functions that are presently
vested in SVRIA or AGENCY, and all agreements and covenants required hereby to be
performed by or on behalf of SVRIA or AGENCY shall bind and inure to the benefit of
the respective successors thereof whether so expressed or not; provided; however, that
SVRIA shall not provide service from the System to any successor to AGENCY until
such successor accepts in writing, AGENCY's obligations.
Page 14 of 19
SECTION 36. WAIVER OF PERSONAL LIABILITY
No board member, officer, attorney or employee of AGENCY or SVRIA shall be
individually or personally liable under the MOU.
SECTION 37. NOTICES
37.1 All deliveries, notices, requests, demands, or other communications provided for or
required by this MOU shall be in writing and shall be deemed to have been given when
sent by registered or certified mail, return receipt requested or when sent by overnight
carrier;.
Notices shall be addressed to
SVRIA
Heather Tannehill- Plamondon
Executive Director, SVRIA
601 El Camino Real
Santa Clara, CA 95050
Telephone: 408 - 615 -5571
Email:hplamondon @svda.org
AGENCY: AGENCY ofXXXXXX
XXXXXXXXXXXXXX
XXXXXXXXXXXXXXX
Attn:XXXXXXX
Telephone:
Email:
37.2 A Party may change its Notice contact or Notice address by written Notice to the
other Party. Such change becomes effective no sooner than ten (10) days after the date
of such Notice.
SECTION 38. TITLES AND HEADINGS
The titles, numbers and headings of paragraphs, sections, subsections, and exhibits are
for convenience only and are not intended to affect the MOU's construction or
interpretation.
SECTION 39. ENTIRE AGREEMENT
This MOU and attached exhibits incorporate all the agreements, covenants, and
understandings between the Parties concerning the subject matter hereof, and all such
Page 15 of 19
agreements, covenants, and understandings have been merged into this MOU. No prior
agreement or understanding, verbal or otherwise, of the Parties or their agents shall be
valid or enforceable unless embodied in this MOU.
SECTION 40. COUNTERPARTS
This MOU may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same
instrument.
SECTION 41. GOVERNING LAW
California law governs the MOU's performance and interpretation.
11
Page 16 of 19
SECTION 42. VENUE
If a Party to this MOU brings a lawsuit connected to the System, the Parties agree that
venue shall be exclusively vested in the State Courts of the County of Santa Clara.
IN WITNESS OF, the Parties have executed the MOU through their duly authorized
representatives as of the last date set forth below.
Signed:
SVRIA AGENCY
By: By:
Chair of Board of Directors Name, or Designee
Date: 2015 Date: .2015
Attest:
in
Approved as to Form and Legality:
By:
Name, or Designee
(title
Date: 2015 Date: 2015
Approved as to Form and Legality:
IN
Gary M. Baum
General Counsel, SVRIA
Date: .2015
MOU SVRIA SVRCS clean version Los Gatos (26) 4 -14 -15
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