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R-1421 - 11/25/2014 - CONTRACTS - Resolutions RESOLUTION 2014-IT-ALARMBD-AG-R-1421 A RESOLUTION APPROVING AND AUTHORIZING AN ALARM MONITORING AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND TYCO INTEGRATED SECURITY, LLC WHEREAS, Chapter 3 of Title 6 of the Village Code of the Village of Oak Brook, Illinois, as amended ("Village Code"), sets forth rules and regulations for the installation, operation, and use of alarm systems in the Village; and WHEREAS, Village residents may subscribe for direct connect alarm services that connect directly to the Village's emergency monitoring equipment provided that a resident's alarm service provider enters into an agreement with the Village to connect the provider's alarm board monitoring equipment to the Village's equipment("Alarm Monitoring Agreement"); and WHEREAS, Tyco Integrated Security, LLC of Oak Brook, Illinois ("Tyco") entered into a five-year Alarm Monitoring Agreement with the Village in 2009, which Alarm Monitoring Agreement is expiring; and WHEREAS, the Village and Tyco desire to enter into a new five-year Alarm Monitoring Agreement, which Alarm Monitoring Agreement is attached hereto as Exhibit A; and WHEREAS, the President and Board of Trustees have determined that it is in the best interest of the Village to enter into the Alarm Monitoring Agreement with Tyco; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Approval of the Agreement. The President and Board of Trustees hereby approve the Alarm Monitoring Agreement by and between the Village and Tyco in substantially the same form attached hereto as Exhibit A. Section 3: Execution of Agreement. The Village President and the Village Clerk shall be, and are hereby, authorized to execute the approved final Alarm Monitoring Agreement on behalf of the Village after receipt of the final Alarm Monitoring Agreement fully executed by Tyco. Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and approval in the manner provided by law. [SIGNATURE PAGE FOLLOWS] Resolution 2014--IT-ALARMBD-AG-R-1421 Approving Alarm Monitoring Agreement 2 of 3 APPROVED THIS 25th day of November, 2014 Gopal G. Lalmalani Village President PASSED THIS 25th day of November, 2014 Ayes: Trustees Adler, Baar, Manzo, Moy Nays: Trustee Yusuf Absent: Trustee Wolin ATTEST. AtO Charlotte K. Pruss Village Clerk #33845712_v1 Resolution 2014--IT-ALARMBD-AG-R-1421 Approving Alarm Monitoring Agreement 3 of 3 EXHIBIT A Agreement #33845712_v1 AGREEMENT The Village of Oak Brook (hereinafter known as the "Village") and Tyco Integrated Security, LLC, (hereinafter known as "Tyco"), agree as follows: 1. The Village hereby grants to TYCO, the right to install, maintain, replace, upgrade and operate, at TYCO's cost, for a period of five (5) years beginning on November 1, 2014 an alarm monitoring and receiving system (the "System") in the Village's Communications Center. The Village and TYCO do hereby agree and acknowledge that the privileges, rights, duties and obligations granted to TYCO under this Agreement shall be held personally in trust by TYCO and shall not be transferred without the prior consent of the Village. 2. The Village and TYCO acknowledge that there is now installed in the Communications Center equipment owned by TYCO required to operate the System and provide monitoring services (the "Equipment") to residents of the Village's service area, including businesses operating in the Village, who are now monitored at the Communication Center (hereinafter called "a Customer" or "Customers"), TYCO shall monitor existing Customers and any new Customers who in the future desire to be monitored at the Communications Center, provided that such existing and new Customers meet reasonable application criteria and enter into a direct agreement with TYCO, TYCO will provide sufficient additional Equipment to upgrade the existing system to monitor all existing Customers by Keltron radio and as the need arises, any future Customers, TYCO upon reasonable request of the Village shall, at TYCO's cost, relocate the Equipment, and shall do so in a manner and at a time intended to minimize any disruption or disturbance of the operations of the Communications Center. 3. TYCO will maintain the Equipment with all attendant cable and labor, and further maintain it on a 24-hour basis, all at no expense to the Village. If the Equipment shall cease to be operable, TYCO shall immediately, after notification by the Village, endeavor to make any repairs necessary for the Equipment to be fully operable, TYCO shall replace the Equipment as necessary. 4. The Village understands that TYCO will charge other alarm companies an initial connection fee of$200 for each of their customers for whom monitoring is provided hereunder. The monthly monitoring fee charged Customers by TYCO shall be $25 per position, for phone line based systems and $25 for radio systems. These fees are exclusive of any fees of the Village, including the fee set forth in Paragraph 5, which may be passed to the Customers by TYCO, TYCO shall not charge the Village a connection fee or a monitoring fee for any monitoring services, which TYCO provides, to the Village through the System, TYCO may increase the monthly monitoring fees charged Customers effective as of any yearly anniversary of the date specified in Section I of this Agreement. Unless otherwise agreed by the Village in writing, the percentage increases in the monthly monitoring fees shall be no more than the percentage of increase in the wholesale price index for the Chicago Metropolitan Area as published for the U.S. Department of Commerce since the date specified in Section 1, or the effective date of the last increase in the monitoring fees, whichever date is later. 5. In addition to any other fees, TYCO shall collect from each customer a $22 per month service charge for phone line based systems. And $22 per month for radio systems for each site that is provided monitoring services through the System. TYCO shall account for and remit to the Village all funds collected as a result of the imposition of the service charge within sixty (60) days after the end of each calendar quarter. In addition, TYCO will pay the village for all accounts being monitored on the alarm board excluding village accounts regardless of the payment status. The Village of Oak Brook agrees that TYCO will be allowed to disconnect any nonpaying accounts, with ten (10) day written notice to the Village of Oak Brook. Any account so disconnected and seeking to be reconnected, will be subject to all charges or fees as well as moneys owed to TYCO and/or the Village. 6. TYCO's right to provide monitoring hereunder shall extend to all burglar, hold-up alarms, and fire alarms monitored by the Communications Center and other types of alarm monitoring requested by the Village, for a period of five (5) years from the date specified in Section 1 of this Agreement. 7. TYCO will continue to provide positions on the System for use of the Village, in a sufficient number to allow the supervision of existing Village, connections and shall provide a reasonable number of additional positions to the Village, as the need arises. 8. The Village acknowledges that the Equipment is owned by TYCO, and in the event this Agreement expires or is terminated for any reason, TYCO shall have the right to remove the Equipment upon a sixty (60) day written notice to the Village. In the event this Agreement expires or is terminated for any reason, TYCO shall remove the Equipment within ten (10) days after receiving a notice from the Village to remove the Equipment. In the event TYCO fails to remove the Equipment within this ten (10) day period, the Village shall have the right to remove and store the Equipment at TYCO's risk, cost and expense. 9. Prior to sixty (60) days before the end of this Agreement, as set forth in Section 6 either party may cancel this Agreement by giving the other party notice of cancellation by certified mail, return receipt requested. In the event that neither party gives the other party such notice of cancellation, then this Agreement shall be extended for successive three (3) month periods, provided that either party may terminate this Agreement at the end of any such three (3) month extension period by giving the other party notice of cancellation not less than sixty (60) days before the expiration of the three (3) Month period. If at any point this Agreement is terminated or expires, every reasonable effort will be made by TYCO so that there is no interruption of service to the Customers connected to the System at the time of termination of expiration. 10. Village shall, upon request, furnish to TYCO an opinion of legal counsel for the Village that this Agreement was properly authorized and is binding on the Village. 11. Indemnification: The TYCO shall protect, indemnify, save, defend and hold forever harmless the Village and/or its officers, officials, employees, volunteers and agents from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses, including without limitation court costs, insurance deductibles and attorney's fees and expenses, which the Village and/or its officers, officials, employees, volunteers and agents may 2 #34046271_v1 incur, suffer or sustain, or for which the Village and/or its officers, employees and agents may become obligated by reason for any accident, injury to or death of persons or loss of or damage to property, or civil and/or constitutional infringement of rights (specifically including violations of any federal civil rights law), arising indirectly or directly in connection with or under, or as a result of, tins or any Agreement by virtue of any act or omission of any of the TYCO's officers, employees, subcontractors, and/or agents, provided that the TYCO shall not be liable for claims, obligations, damages, penalties, causes of action, costs and expenses arising in part or in whole by any act or omission of the Village's officers, officials, employees, volunteers and/or agents. The TYCO shall hold the Village harmless for any and all claims for labor, material, apparatus, equipment, fixtures or machinery furnished to TYCO for the purpose of performing the work under the contract; and the payment of all direct and indirect damages to any person, firm, company or corporation suffered or sustained on account of the performance of such work during the time the contract is in force. In addition, to the fullest extent permitted by law, TYCO shall indemnify and hold harmless the Village, its officers, employees and agents, from any and all claims, costs liabilities, losses, damages, injuries, demands, actions, causes of actions, suits, proceedings,judgments and expenses, including without limitation, attorney's fees, court costs and other legal expenses arising out of or in connection with: A) TYCO's operation of the system. B) Any act or omission to act by TYCO, its employees, servants and agents, except to the extent a claim is based on the acts or omissions of the Village and/or its employees, officers or agents, when acting within the scope of their employment, office or agency. 12. It is understood and agreed that the Village shall have no liability to any third party as a result of the failure of the System to operate as intended. However, the Village shall notify TYCO of any system failures that it is or becomes aware of. TYCO agrees that it shall include in all contracts for services provided through the System, a provision which states that the customer agrees that the Village shall have no liability in the event that the System fails to operate as intended. 13. TYCO hereby assumes and shall bear the entire risk of loss and damage to any Equipment whether or not insured against, once such equipment is placed or installed in the Communication Center, without any recourse against the Village, its officers, employees and agents whatsoever. It is understood and agreed that the Village shall have no obligation to insure any part of the System or other property owned by TYCO located on premises owned or controlled by the Village against loss or damage. 14. It is understood and agreed that the Village shall endeavor to monitor the System, provided however, that the Village shall incur no liability of any kind, in the event it fails to monitor the System. TYCO's agreement with its customers shall include a provision that will exonerate or relieve the Village from liability to a customer and other third parties in the event 3 #34046271_v1 the Village fails to monitor the System or fails to promptly respond to an alarm transmitted through the System. 15. General Comprehensive Liability Insurance: Certificates of Insurance shall be presented to the Village within fifteen (15) days following approval of this Agreement by the Village. During the term of this Agreement TYCO shall maintain insurance with limits no less than: A) General Liability - $2,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage, provided that when the estimated cost of the work in question does not exceed $25,000, the required limit shall be $1,000,000; B) Automobile Liability (if applicable) - $1,000,000 combined single limit per accident for bodily injury and property damage; C) Worker's Compensation and Employer's Liability - Worker's Compensation limits as required by the State of Illinois and Employer's Liability limits of$1,000,000 per accident. Any deductibles or self-insured retention must be declared to and approved by the Village. At the option of the Village, either the insurer shall reduce or eliminate such deductible or self-insured retention as respects the Village, its officers, officials, employees and volunteers; or TYCO shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses to the extent of such deductible or self-insured retention. The policies shall contain, or be endorsed to contain,the following provisions: A) General Liability and Automobile Liability Coverage: (1) The Village, its officers, officials, employees and volunteers are to be covered as additional insureds with respect to: liability arising out of activities performed by or on behalf of TYCO; as well as premises owned, occupied or used by TYCO. The coverage shall contain no special limitations on the scope of protection afforded to the Village, its officers, officials, employees, volunteers, or agents. (2) TYCO's insurance coverage shall be primary insurance as respects the Village, its officers, officials, employees, volunteers and agents. Any insurance or self-insurance maintained by the Village, its officers, officials, employees, volunteers or agents shall be in excess of TYCO's insurance and shall not contribute with it. 4 #34046271_v1 (3) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Village, its officers, officials, employees, volunteers or agents. (4) TYCO's insurance shall apply separately to each covered party against whom claim is made or suit is brought except with respect to the limits of the insurer's liability. (5) Notwithstanding anything to the contrary contained in the foregoing, TYCO's insurance policies will not provide coverage for the negligence or other wrongful conduct of any additional insured. B) Worker's Compensation and Employer's Liability Coverage: (1) The policy shall waive all rights of subrogation against the Village, its officers, officials, employees, volunteers and agents for losses arising from work performed by TYCO for the Village. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail has been given to the Village. Each insurance policy shall name the Village, its officers, officials and employees, volunteers and agents as additional Insureds. All insurance shall be placed with insurers with a Best's rating of no less than A-: VII. TYCO shall furnish the Village with certificates of insurance and with original endorsements effecting coverage required by this provision. The certificate and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms shall subject to approval by the Village before work commences. The Village reserves the right to require complete, certified copies of all required insurance policies, at any time. In addition, TYCO shall provide proof of such insurance at any time during this Agreement, when requested by the Village. 16. In the event of any action at law or suit in equity in relation to this Agreement, the prevailing party shall be entitled to a reasonable sum for its attorney's fees. Venue for any action arising in connection with this Agreement shall be in the 18th Judicial Circuit (DuPage County) Illinois. 17. This Agreement does not confer any duties or benefits and any rights on any entities other than TYCO and the Village. 18. This Agreement incorporates the entire agreement and understanding between the parties and there are no oral agreements, understandings, or representations between the parties which are not reduced to writing herein, including attachments. This Agreement may not be changed, modified or discharged, except in writing executed by all parties hereto. 5 #34046271_v1 19. This Agreement shall not be assigned by any party without the express written consent of the parties, which consent may be withheld, in the sole discretion of the other parties. Notwithstanding the foregoing, TYCO shall have the right, without the Village's consent, to assign or otherwise transfer this Agreement to any of its affiliate, subsidiary or parent companies, or to an entity other than an affiliate, subsidiary or parent company that (i) acquires substantially all of the assets or stock of, merges or consolidates with or into, or acquires a controlling interest in it, and (ii) expressly assumes in writing TYCO' s obligations and responsibilities hereunder. 20. This Agreement may not be amended except pursuant to a written instrument signed by both parties. 21. If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable or unenforceable, then this entire Agreement shall be null and void. 22. This Agreement is binding upon the successors and assigns of the parties. 23. The waiver by either party of any breach or violation of any provision of this Agreement shall not be deemed to be a waiver or a continuing waiver of any subsequent breach or violation of the same or any other provision of this Agreement. 24. Under no circumstances shall this Agreement be construed as one of agency, partnership, joint venture or employment between the parties. The parties shall each be solely responsible for the conduct or their respective officers, employees and agents in connection with the performance of their obligations under this Agreement. 25. This Agreement may be executed in counterparts, facsimile signatures shall be sufficient. 26. Any notice or demand required or permitted hereunder shall be in writing and shall be deemed duly served if mailed by prepaid registered or certified mail, return receipt requested or personally delivered with evidence of receipt, addressed as follows: To the Village: Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60523 Attn: Village Manager To TYCO: Tyco Integrated Security, LLC 2010 Swift Drive Oak Brook, IL 60523 Attn: Randy Justin Notices shall be deemed effectively given as of the date, which is two (2) business days following the date of postmarking, by the U. S. Postal Service or as of the date of delivery if hand or personally delivered. 6 #34046271_v1 7 #34046271_v1 This A e ent suer �P agreements dated 11/1/2009 and shall become effective as of the 25thdayfovembe�1 provided that the term of the Agreement shall not start until the date specified in Section 1. This Agreement incorporates the terms set forth in the Letter of Understanding dated November 1, 2014, which is attached hereto as Exhibit A. Tyco Integrated Security, LLC Village of Oak B •ok By: .. .� By: Title: 4&-/-4--- Title: 8 #34046271_v1 EXHIBIT A LETTER OF UNDERSTANDING 9 #34046271_v1 Letter of Understanding --Village of Oak Brook and Tyco Integrated Security November 1, 2014 Village of Oak Brook 1200 Oak Brook Rd Oak Brook, IL 60523 Attn: Purchasing Department Gentlemen: Thank you for the opportunity to provide Wireless Alarm Services at the Village of Oak Brook. Outlined below,you will find the services Tyco Integrated Security will provide and the manner of the rollout/switchover to wireless: 1. Tyco Integrated Security agrees to supply all equipment and services necessary to receive wireless alarm signals and transmit them to the Village of Oak Brook. 2. The monthly wireless monitoring fee charged to subscribers shall be$45.00 per transceiver,with an on-site Radio rental and service plan of$46.00. The total is ninety- one dollars ($91.00)per month. 3. Tyco Integrated Security agrees to supply: A. All subscriber radios and all site installations in accordance with manufacturer recommendations. B. Provide 15 village accounts listed in the RFP and up to 5 additional Village accounts with a transceiver to be installed for($0.00)and a monthly monitoring fee $0.00+$0.00 QSP (quality service plan). Total is $0.00. 4. Tyco Integrated Security shall program the units to transmit only a standardized set of signals agreed upon by the Village of Oak Brook. This will apply to any and all transceivers throughout the Oak Brook system. 5. All subscriber transceivers will be installed by and owned by Tyco Integrated Security. The village may,with written request, authorize the direct sale of a radio on a limited basis. 6. Tyco Integrated Security will maintain an adequate inventory of spare parts for the base station receivers so as to be in a position to affect any necessary repairs as quickly as possible. 7. The Village administrative and monitoring fee will decrease on January 1,2015 from $22.51 to $22.00 per month. The automatic annual 3%increase will be removed. The $22.00 per month rate will remain in effect for the term of this agreement. 8.In addition to Village of Oak Brook buildings,monitoring fees will be waived for School District 35, and the Oak Brook Park District alarms.