HomeMy WebLinkAbout6-26-08-08 - Resolution - 06/26/2008RESOLUTION NO. 6- 26 -08 -08
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION,
TEXAS, APPROVING AN INTERLOCAL AGREEMENT AMONG THE CITY OF
BRYAN, CITY OF BRENHAM, BRAZOS COUNTY, WASHINGTON COUNTY, TEXAS
A &M UNIVERSITY, AND BRAZOS VALLEY COUNCIL OF GOVERNMENTS TO
DESIGNATE THE BRAZOS VALLEY COUNCIL OF GOVERNMENTS AS THE
MANAGING ENTITY OF THE BRAZOS VALLEY WIDE AREA COMMUNICATIONS
SYSTEM
WHEREAS, Chapter 791 of the TEXAS GOVERNMENT CODE, also known as the
INTERLOCAL COOPERATION ACT, authorizes all local governments to contract with each
other to perform governmental functions or services; and
WHEREAS, the City of College Station, City of Bryan, City of Brenham, Brazos County,
Washington County and Texas A &M University are entering into an interlocal agreement for
interoperable radio and data communications to be known as the Brazos Valley Wide Area
Communications System ( "BVWACS Agreement "); and
WHEREAS, the Brazos Valley Council of Governments ( "BVCOG ") and the parties to the
BVWACS Agreement, including the City of College Station, desire the BVCOG to act as the
managing entity to implement such interoperable radio and data communications system
pursuant to provisions of the BVWACS Agreement and pursuant to provisions of the Interlocal
Cooperation Act; now therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION,
TEXAS:
PART 1: That the City Council hereby approves the interlocal agreement among the City
of Bryan, City of Brenham, Brazos County, Washington County, Texas A &M
University, and Brazos Valley Council of Governments designating the Brazos
Valley Council of Governments as the Managing Entity for the Brazos Valley
Wide Area Communications System. A copy of such agreement is attached
hereto as Exhibit "A" and incorporated herein.
PART 2: That this resolution shall take effect immediately from and after its passage..
ADOPTED this 26th day of J 11ne, A.D. 2008.
ATTEST:
e",,� o,,
City Secretary
APPROVED:
MAYOR
V Signed~ y Mary Ann Po II {-?�
EVERIFaufh nticity with Ar ve
City Attorney
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INTERLOCAL AGREEMENT
FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTATION,
OPERATION AND MAINTENANCE OF
THE BRAZOS VALLEY WIDE AREA COMMUNICATIONS SYSTEM
( BVWACS)
STATE OF TEXAS 5
COUNTIES OF BRAZOS AND WASHINGTON
This Agreement is by and among the City of Bryan, City of College Station, City of
Brenham, Brazos County, Washington County, and Texas A & M University.
RECITALS
A. The BVWACS Parties are combining their resources and desire to jointly acquire
additional resources for the Brazos Valley Wide Area Communications System to
improve the ability of public safety and public service radio communications
internally and among themselves, and to allow direct access to, and exchange of data.
B. The BVWACS Parties desire to join their Wide Area Communications System with
the regional communications system of Harris County, Texas, and to create a
mechanism to effectively administrate this endeavor pursuant to a separate
agreement with Harris County in a manner consistent with this Agreement.
C. The BVWACS Parties desire to provide for the organizational structure and funding
support for the construction, acquisition, implementation, operation and
maintenance of the Wide Area Communications System.
AGREEMENT
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30 NOW, THEREFORE, in consideration of the mutual covenants herein, the BVWACS
31 Parties agree as follows:
32 1. Definitions.
33 1.A, Annual Assessment means the proportionate share determined in accordance
34 with that BVWACS Party's participation share as shown on Exhibit A of that Fiscal
35 Year's Capital Costs and Operating Costs based on the approved Budget.
36 1.B. Brazos County means the corporate and political body of the state of Texas
37 known as Brazos County.
38
39 1.C. Brenham means the City of Brenham.
40 1.D. Bryan means the City of Bryan
41 1.E. BVWACS Associates means those entities that are sponsored by a BVWACS
42 Party that are eligible to use the licensed frequencies under FCC rules and
43 regulations, that are using the BVWACS and that are not BVWACS Parties pursuant
44 to the terms of this Agreement.
45 1.F. BVWACS Managing Entity means the Brazos Valley Council of
46 Governments contracted to supervise the performance of this Agreement or any
47 other BVWACS Party or third party entity designated to perform this function
48 pursuant to the terms of this Agreement and pursuant to Section 791.013 Texas
49 Government Code.
50 1.G. BVWACS Parties means the state political subdivisions that have entered
51 into this Agreement for the construction, acquisition, implementation, operation and
52 maintenance of the BVWACS, including Bryan, College Station, Brenham, Brazos
53 County, Washington County, and Texas A & M University. Additional parties may
54 be added from time to time pursuant to the terms of this Agreement.
55 1.14. BVWACS Systems Manager means the Employee of the Managing Entity
56 unless designated by the Governing Board otherwise tasked to perform services for
57 BVWACS as set forth in this Agreement.
58 1.I. BVWACS Support Vendor means any of the one or more vendors selected
59 to provide maintenance, repair, troubleshooting, and related services for the Brazos
60 Valley Wide Area Communications System.
61 1.J. BVWACS Value means the undivided interest of a BVWACS Party in the
62 BVWACS Infrastructure, Improvements and real property.
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63 1.K. College Station means the City of College Station.
64 U. Commencement Date means the date on which this Agreement has been
65 duly approved by all BVWACS parties.
66 1.M. Costs include Capital Costs and Operating Costs as defined below:
67 1.M.1. Capital Costs means all costs incurred for the construction,
68 acquisition and implementation of the BVWACS in accordance with the
69 terms of this Agreement. Capital Costs includes expenditures for the
70 construction, acquisition and implementation of any and all Improvements,
71 Infrastructure, additions, replacements, upgrades and enhancements to the
72 BVWACS; land acquisition costs, including appraisals, legal fees, surveys,
73 and other costs associated thereto; the procurement of any hardware or
74 software relating to the construction and implementation of any and all
75 Improvements, Infrastructure, additions, replacements, upgrades and
76 enhancements to the BVWACS; engineering studies, consulting reports,
77 analysis, design and planning; the cost of obtaining all licenses; auditing and
78 compliance with accounting principles and the fiscal and legal expenses
79 relating thereto, and any and all other costs and expenses relating to the
80 foregoing. The BVWACS will be implemented in phases. The Initial Phase is
81 attached hereto and made a part hereof labeled Exhibit B. Notwithstanding
82 any of the above, Capital Costs shall be processed in accordance with GASB
83 34 and GAAP Accounting Principles.
84 1.M.2. Operating Costs means all costs not specifically identified as Capital
85 Costs and includes all fixed and variable costs and expenses incurred, directly
86 or indirectly, in the operation and maintenance of the BVWACS consisting
87 of, without limit, the direct purchase of goods and services, such as
88 photographic supplies, developing and printing, educational materials, books,
89 office supplies, postage, computer supplies, computer software, small tools
90 and minor equipment, and minor computer hardware, office space or the
91 value thereof; costs associated with contracts to supply goods and services,
92 such as support contracts, rental of copy machines, vehicle maintenance and
93 fuel costs, tower site and infrastructure insurance, building maintenance,
94 computer hardware and software maintenance, printing and binding;
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95 personnel costs incurred by all entities for Employees approved in the
96 Budget to support the BVWACS including, without limitation, wages,
97 benefits, insurance, employment related taxes, employers' retirement
98 contributions, phone allowances, pagers, education and seminar fees, travel
99 for training, mileage reimbursement, and parking costs; and further including
100 ongoing utility costs, security, and the normal, periodic maintenance, tuning,
101 servicing, inspecting, parts replacement and repair and other similar activities
102 that are intended to keep the BVWACS functioning efficiently and to
103 maintain the useful life of the assets and reduce the probability of failures.
104 The term includes all other items or expenses of a like or different nature
105 reasonably required or desirable for the efficient maintenance and operation
106 of the BVWACS in full compliance with all current and future regulatory
107 requirements and the performance of the provisions of this Agreement; the
108 provision of liability and other insurance in amounts and types determined
109 necessary for the proper operation of BVWACS; assumption of legal liability
110 of the BVWACS Parties to pay money to satisfy an arbitration award,
111 administrative decision, settlement agreement, or court decision creating a
112 judgment against one or more of the BVWACS Parties as a result of a third
113 parry claim arising out of or incident to the terms of this Agreement,
114 including reasonable attorneys' fees and costs incurred in defending against
115 same; and costs incurred in enforcing or defending the provisions of this
116 Agreement, including reasonable attorneys' fees. Notwithstanding any of the
117 above, Operating Costs shall be processed in accordance with GASB 34 and
118 GAAP Accounting Principles.
119 1.N. LL ay unless otherwise described, means calendar day.
120 1.0. Employees means the person(s) employed by one or more of the Parties or
121 by the Managing Entity, devoted exclusively to the construction, acquisition,
122 implementation, operation and maintenance of the BVWACS as set forth in this
123 Agreement.
124 1.P. FCC means the Federal Communications Commission.
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125 1.Q. Fiscal Year means the fiscal year agreed upon by the entities signing this
126 Agreement. The Fiscal Year in effect as of the execution of this Agreement
127 commences on October 1st of each year and ends the following September 30th.
128 1.R. Improvements means any structure, facility, addition, replacement, upgrades
129 and enhancements to the BVWACS including, without limitation, hardware,
130 software, equipment and real property acquired for increasing functionality, range or
131 capacity of the Wide Area Communications System.
132 1.S. Infrastructure means collectively all Improvements, additions, replacements,
133 upgrades and enhancements to real property or personalty, real property acquisition,
134 and all system hardware and software procurement necessary for the normal
135 operation of the BVWACS and excluding Subscriber Equipment.
136 1.T. Initial Phase means that first phase of Infrastructure and Improvements,
137 including the Capital Costs relating thereto, for the Parties to utilize the BVWACS
138 within the designated portions of the Service Area all as shown on Exhibit C. As
139 proposed herein, the Initial Phase shall include radio voice communications but not
140 data transmission.
141 1.U. Quarterly Assessment means a BVWACS Party's proportionate share of the
142 Capital Costs and Operating Costs that are projected to be incurred and the amount
143 of money projected to be expended during the next fiscal quarter as presented in an
144 itemized schedule prepared by the Managing Entity, with the proportionate share
145 determined in accordance with the participation share of the BVWACS Party shown
146 on Exhibit A.
147 1.V. Remaining Parties means those BVWACS Parties to this Agreement who
148 remain committed to this Agreement if one or more BVWACS Parties withdraw
149 from this Agreement or is terminated pursuant to the terms of this Agreement.
150 1.W. Service Area means that geographical area designed to serve the Parties for
151 the BVWACS as same may, from time to time, be amended through approval by the
152 Governing Board. A map of the initial Service Area is attached hereto as Exhibit C.
153 1.X. Standard Terms and Conditions means the terms and conditions listed in
154 Exhibit D that must be included in all BVWACS Associate Interlocal Cooperation
155 Agreements.
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156 1.Y. Subscriber Equipment means the portable radios, mobile radios, control
157 station radios, radio consoles and other equipment operated by BVWACS Parties
158 and BVWACS Associates accessing BVWACS.
159 1.Z. Terminated Party means a BVWACS Party who has received a notice of
160 termination and whose participation in the BVWACS Agreement has been
161 terminated for default, after it failed to cure the default in a timely manner.
162 1.AA. Termination Date means twelve (12) months from the date of the notice of
163 withdrawal when a BVWACS Party gives notice of its intention to withdraw from
164 this Agreement and terminate its participation in BVWACS.
165 1.BB. Washington County means the corporate and political body of the state of
166 Texas known as
167 Washington County.
168 1.CC. Wide Area Communications System or BVWACS means the Regional Voice
169 and Data Radio System serving the Brazos County and Washington County, Texas
170 areas as shown on a Service Area map attached as Exhibit C as same may from time
171 to time be amended as provided in this Agreement, implemented by Parties for
172 public safety and public service purposes in accordance with the terms herein and
173 pursuant to applicable law for such type of public communications system.
174 MD. Withdrawing Party means a BVWACS Party who gives notice of its intention
175 to withdraw from this Agreement and terminate its participation in BVWACS.
176 2. Term of Agreement.
177 The term of this Agreement shall be effective when this Agreement has been duly
178 approved by all BVWACS Parties (termed the Effective Date), subject to the BVWACS
179 Parties' rights of termination in this Agreement. The initial term of this Agreement is from
180 the Effective Date to the next occurring September 30` After that, this Agreement
181 automatically renews for up to a maximum of four (4) additional terms of Twelve (12)
182 months on October 1 of each year, subject to the BVWACS Parties' rights of termination in
183 this Agreement. Nothing in this Agreement will prevent the BVWACS Parties from entering
184 into a separate Agreement with another group or entity providing similar radio services
185 provided such Party continues to adhere to the terms and conditions of this Agreement.
186 3. Purpose.
187 The purpose of this Agreement is to establish an organizational and management
188 structure for the construction, acquisition, implementation, ongoing administration,
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189 operation, and maintenance of the BVWACS by the Parties, including establishing a budget
190 proposal process, a funding process, and the allocation of Costs associated with the
191 construction, acquisition, implementation, operation, maintenance, and Improvements to the
192 Wide Area Communications System.
193 The BVWACS Parties have developed initial objectives, attached as Exhibit E, and
194 evaluation factors, attached as Exhibit F.
195 4. Governing Board.
196 4.A. P=ose. The Governing Board shall set policy for the BVWACS, direct and
197 approve the operating policies and procedures of the Operating Board, adopt a draft
198 budget annually, and carry out any and all other appropriate tasks necessary for the
199 proper functioning of the BVWACS. The Governing Board may exercise such
200 powers and duties as authorized under this Agreement.
201 4.B. Composition The Governing Board shall consist of one member from each
202 of the BVWACS Parties. Governing Board Members should be public officials or
203 senior executive level employees of their respective BVWACS Party. The Governing
204 Board is initially composed of Bryan's mayor, College Station's mayor, Brenham's
205 mayor, Brazos County's judge, Washington County's Judge, and Texas A & M's Vice
206 President and Associate Provost for Information Technology. Governing Board
207 Members may designate in writing an individual within their entity to act in their
208 place. The governing body of a BVWACS Party may designate in writing a change in
209 that BVWACS Party's Governing Board Member.
210 4.C. Officers The Governing Board shall elect a chair, vice - chair, and other
211 officers annually. The BVWACS Managing Entity shall provide secretarial services
212 and other administrative support services to the Governing Board.
213 4.D. Meeting Requirements The Governing Board shall meet at least semi -
214 annually, but special meetings may be called by the request of one (1) or more
215 Governing Board Members. These meetings shall be held in compliance with the
216 Texas Open Meetings Act. These meetings shall be publicly posted 72 hours before
217 the meeting by the Chair of the Governing Board. Meeting notices and meeting
218 agenda shall be sent to members of the Governing Board at least 72 hours before the
219 meeting.
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220 4.E. BVWACS Improvements The Governing Board may develop agreements
221 defining the roles and responsibilities of the BVWACS Parties for BVWACS
222 Improvements at the time the BVWACS Improvements are approved by the
223 BVWACS Parties. The funding for these BVWACS Improvements shall be included
224 in these agreements. Unless otherwise agreed by the BVWACS Parties in writing,
225 funding for the cost of BVWACS Improvements that are constructed or acquired to
226 benefit one (1) or more individual BVWACS Parties shall be paid only by the
227 BVWACS Parties benefiting from such BVWACS Improvements.
228 4.F. (Quorum and Voting No action may be taken by the Governing Board
229 unless a quorum is present. A quorum shall consist of a majority of members.
230 Unless expressly stipulated otherwise in this Agreement or unless required differently
231 pursuant to applicable law, the affirmative vote of a majority of members is required
232 for the Governing Board to adopt any resolution or take any action. Each member
233 of the Governing Board shall have one vote.
234 5. Operating Board.
235 5.A. PijMose. The management and technical operation of the BVWACS is
236 overseen by an Operating Board which ensures that the policies set by the BVWACS
237 Governing Board are carried out and which provides overall BVWACS advice as to
238 the construction, acquisition, implementation, operation and maintenance of the
239 BVWACS and provides advice to the BVWACS Managing Entity.
240 5.B. Composition The Operating Board consists of one member appointed by
241 each of the BVWACS Parties. In addition, each BVWACS Party may designate in
242 writing an alternate ( "Alternate ") to act in place of its appointed Operating Board
243 member. Notice of a change in designated Board Members or Alternate by a
244 BVWACS Party may be made by sending written notice of the newly designated
245 Board Member(s) or Alternate to the Chair of the Operating Board, with a copy to
246 the BVWACS Managing Entity. The composition of the initial Operating Board is
247 shown in Exhibit G.
248 5.C. Duties The Operating Board shall meet at least quarterly. The Operating
249 Board shall examine the apportionment of BVWACS Capital Costs and Operating
250 Costs among the BVWACS Parties and recommend any adjustments needed to the
251 Governing Board. The Operating Board shall annually submit a draft Operating and
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252 Capital Program budget for presentation to the Governing Board by February 1 of
253 each year unless directed otherwise by the Governing Board regarding funds needed
254 to improve, operate, maintain, and use the BVWACS. The Operating Board shall
255 review and recommend the operating policies and procedures for the BVWACS,
256 including policies related but not limited to system security, fleetmap management,
257 capacity management, and interoperability with other radio systems and equipment.
258 The Operating Board shall regularly review the evaluation factors for the BVWACS
259 as described in Exhibit F of this Agreement and take needed actions to ensure
260 reliable BVWACS performance. The BVWACS Managing Entity, together with the
261 Operating Board, shall develop and recommend to the Governing Board BVWACS
262 Improvements as needed to ensure optimal BVWACS functionality and
263 performance. The Operating Board shall consider the impact of proposed
264 BVWACS Associates and proposed new Parties to this Agreement on the capacity of
265 the BVWACS and recommend approval or denial of requests to sponsor an entity as
266 an Associate or to add an additional party to this Agreement.
267 In addition, the Operating Board annually provides input to the Governing
268 Board and to the BVWACS Managing Entity on the performance of the BVWACS
269 Systems Manager.
270 S.D. Terms The term of each Board Member shall be determined by the
271 appointing BVWACS Party. All Board Members serve at the pleasure of their
272 appointing BVWACS Party.
273 5.E. Attendance Requirements Either a Board Member or Alternate shall attend
274 all meetings. If a BVWACS Party has no representation at more than 25% of the
275 meetings during any calendar year, the BVWACS Party shall appoint new Board
276 Member(s) and new Alternate(s). Operating Board meetings are scheduled by the
277 Operating Board Chair.
278 5.F. Chair, Vice - Chair, and Secretary The Operating Board Members elect the
279 Chair, Vice - Chair, and Secretary in the first month of each Fiscal Year. The Chair is
280 responsible for scheduling meetings and providing Operating Board members with
281 meeting notices. One of the duties of the Secretary shall be to record and track
282 attendance of Board Members and Alternates. The BVWACS Managing Entity
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283 provides or arranges staff support to make written minutes of each Operating Board
284 meeting and provides other needed logistical support for the Operating Board.
285 S.G. Procedures at Meeting The Chair presides at the meetings and the Vice -
286 Chair acts in the absence of the Chair. No action may be taken by the Operating
287 Board unless a quorum of Board Members are present. A quorum shall consist of a
288 majority of Board Members. The Chair shall provide the Board Members with at
289 least 20 days notice of proposed dates for regular meetings. Any Board Member may
290 place items on the Operating Board's meeting agenda by submitting the item to the
291 Chair at least ten days before the next meeting. The Chair shall submit the agenda to
292 the Board Members no later than seven days before the meeting. Each Board
293 Member shall have one vote. The affirmative vote of more than 50 per cent of all the
294 members of the Operating Board is required to adopt any resolution or take any
295 action. Voting by proxy or delegate is permitted.
296 S.H. Actions of Operating Board The Operating Board may not take any action
297 that would violate any applicable statute, law, regulation, court order, ordinance,
298 commissioners' court order, city charter provision, articles of incorporation or other
299 governing document. If any such action is taken, it is null and void.
300 5.1. Special Meetings The BVWACS Managing Entity may call meetings upon
301 72 hours written notice to the Board Members to conduct regular business matters
302 or to address budget related items, which may require action by the Parties'
303 governing bodies to increase or decrease currently budgeted expenditures. The Chair
304 or a majority of the Board Members may also call special meetings of the Operating
305 Board. In the event of an emergency, the notice provision herein shall be
306 suspended.
307 6. Amendments to Agreement.
308 Any BVWACS Party may propose an amendment to this Agreement to the
309 Operating Board. The Operating Board considers the amendment and makes a
310 recommendation to the Governing Board for consideration. The Governing Board shall
311 review amendments to this Agreement and may recommend approval of the amendment to
312 the governing bodies of the BVWACS Parties. An amendment to this Agreement shall be
313 effective when approved by the governing bodies of five of the six BVWACS Parties. A
314 BVWACS Party whose governing body does not approve an amendment to this Agreement
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315 adopted as provided above, may withdraw from participation in the BVWACS as described
316 elsewhere in this Agreement.
317 7. Construction, Acquisition and Implementation of BVWACS.
318 7.A. Initial Phase, The Initial Phase of the BVWACS shall be comprised of
319 current Infrastructure and Improvements owned by one or more of the Parties hereto plus
320 additional Infrastructure and Improvements to be constructed or acquired. Exhibit B sets
321 out the Infrastructure, Improvements and real property currently owned by one or more of
322 the Parties as well as the additional proposed BVWACS Infrastructure and BVWACS
323 Improvements that will comprise the Initial Phase. The Parties agree that the Initial Phase
324 of the BVWACS shall be as set forth in Exhibit B.
325 7.B. Ownership and Permission Ownership of Infrastructure and Improvements
326 currently owned by the Parties shall remain the property of such Party. Permission for all
327 BVWACS Parties, BVWACS Associates, the BVWACS Managing Entity and their
328 respective agents and representatives to access and use such Infrastructure and
329 Improvements as part of the BVWACS in accordance with this Agreement is herein granted.
330 New BVWACS Improvements and BVWACS Infrastructure shall be owned as tenants in
331 common among the Parties then in existence at the time funding was provided for such
332 BVWACS Improvements or BVWACS Infrastructure.
333
334 8. Staffing and Operations.
335 B.A. Designation of Managing Entity The Governing Board shall designate one
336 of the BVWACS Parties or a mutually agreed upon third parry as the Managing
337 Entity for the BVWACS. The initial Managing Entity shall be the Brazos Valley
338 Council of Governments.
339 8.B. BVWACS Systems Manager The Managing Entity is responsible for
340 providing the BVWACS Systems Manager. This may be a full time Employee or,
341 with the approval of the Governing Board, contracted third party devoted to
342 managing the construction, acquisition, implementation, operation and maintenance
343 of the BVWACS under the direction of the Managing Entity. The Operating Board
344 will serve in an advisory capacity to the BVWACS Systems Manager on behalf of the
345 Governing Board. The BVWACS Systems Manager shall be an Employee of the
346 Managing Entity unless the Governing Board designates otherwise. As its
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347 Employee, the Managing Entity shall be responsible for the hiring, firing,
348 performance review, training and education, provision of health and retirement
349 benefits and all other costs associated with this position as well as costs associated
350 with being an Employee of the Managing Entity, subject to reimbursement by the
351 Parties through adoption of BVWACS Budget which shall include the costs of all
352 Employees. The Managing Entity shall obtain input from the Governing Board
353 before taking any formal action regarding performance, including annual reviews,
354 with respect to such Employee.
355 B.C. Management Duties of the BVWACS Managing Entity The BVWACS
356 Managing Entity will manage the BVWACS on a day to day basis. Responsibilities
357 include the following plus any other duties as determined by the Governing Board:
358 8.C.1. Management. Perform ongoing management of the construction,
359 acquisition, implementation, operation and maintenance of the BVWACS;
360 8.C.2. Coordination with other radio systems. Serve as principle coordinator
361 with other radio systems as determined by the Governing Board;
362 8.C.3. Minutes. Maintain minutes of the Governing Board and Operating
363 Board meetings;
364 8.C.4. Recommendations Make recommendations to the Operating Board
365 regarding proper performance of the BVWACS under the terms of this Agreement;
366 8.C.5. Supervision. Supervise additional Employees as applicable;
367 8.C.6. Dispute Resolution. Assist in the administrative dispute process as set
368 out elsewhere in this Agreement.
369 8.C.7. Agreement Copy. Maintain and make available at all reasonable times
370 to the Operating Board and to the Governing Board a current copy of this
371 Agreement, including any amendments and the most current version of all Exhibits
372 together with copies of the most current versions of any subsequently developed
373 operating procedures or standards;
374 8.C.8. Financial Responsibilities. Reconcile the budget on a quarterly basis
375 or as requested by the Governing Board. Prepare draft budget, coordinate
376 purchasing, conduct inventories, assist with any audits and handle such other fiscal
377 matters as may be directed by the Governing Board;
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378 8.C.9. Reports. Provide such performance reports, projection reports and
379 other reports regarding the technical, operational, fiscal and other aspects of the
380 BVWACS as required by the Governing Board or Operating Board;
381 8.C.10. Record Keeping, Maintain and keep current all records, legal
382 documents, contracts, manuals, warranties, etc. relating to the BVWACS and make
383 same available for review by any of the Parties upon request;
384 8.C.11. Contract Administration. Administer all contracts for the
385 construction, acquisition, implementation, operation and maintenance of the
386 BVWACS;
387 8.C.12. Project Management. Oversee the management of all projects
388 relating to the construction, acquisition and implementation of Infrastructure and
389 Improvements to the BVWACS;
390 8.C.13. Standard Operating Procedures. Develop, distribute and keep
391 current standard operating procedures for the BVWACS as directed by the
392 Operating Board;
393 8.C.14. BVWACS Availability. Ensure operational and technical availability
394 of the BVWACS features to the Parties and Associates in accordance with the goals
395 and objectives set forth herein and that support interaction and communications
396 with other public safety radio systems.
397 8.C.15. Grant Administration. Oversee the application, administration and
398 financial management of grant funding programs available for the construction,
399 acquisition, implementation, operation and maintenance of the BVWACS. This
400 includes performing as a recipient or sub - recipient for the BVWACS Parties in
401 relation to such grant programs.
402 B.D. Staffing There may be such other Employees as may, from time to time, be
403 budgeted and approved by the Governing Board. The BVWACS Parties through
404 action of the Governing Board may elect to contract out some or all services relating
405 to the construction, acquisition, implementation, operation and maintenance of the
406 BVWACS. The initial number and types of Employees to be provided or funded
407 by the BVWACS Parties are shown in Exhibit H. Notwithstanding anything herein
408 to the contrary, personnel provided by one or more of the Parties to support the
409 BVWACS are, and shall exclusively remain, employees of their respective entity,
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410 subject to all of the employment rules and personnel policies of that entity. The
411 personnel costs necessary to support the BVWACS are included in each year's draft
412 budget submitted to the Parties, subject to the provisions in Section 9. Budget, and
413 Section 18. Effect of Breach and Default.
414 8.E. Operating Procedures The BVWACS Managing Entity shall ensure that
415 standard operating procedures are prepared to govern the day -to -day management
416 and operation of the BVWACS and BVWACS staff ( "Standard Operating
417 Procedures ") as may be directed by the Governing Board, and shall submit such
418 Standard Operating Procedures to the Operating Board for review and approval.
419 Standard Operating Procedures shall be annually reviewed by the Operating Board
420 and updated as needed. The BVWACS Managing Entity also monitors the
421 implementation of and compliance with the Standard Operating Procedures. If there
422 is any conflict between the Standard Operating Procedures and the employment
423 rules and personnel policies of the entities, then the employment rules and personnel
424 policies of the entities control as they impact that entities' staff supporting the
425 BVWACS. The Operating Board shall also oversee the development and
426 implementation of corrective measures policies.
427 8.17. Roles and Responsibilities The BVWACS Parties shall use the BVWACS in
428 a manner consistent with the Standard Operating Procedures, directives of the
429 Governing Board and in compliance with applicable FCC rules and regulations. The
430 BVWACS Parties shall follow the established Standard Operating Procedures and
431 Governing Board directives regarding the programming and addition of Subscriber
432 Equipment to the BVWACS. The BVWACS Parties are encouraged to utilize and
433 improve the interoperation capabilities of the BVWACS. BVWACS Parties shall
434 utilize the BVWACS Managing Entity as their primary point of contact for requests
435 for BVWACS Improvements when dealing with problems, or to answer questions.
436 BVWACS Parties shall work in good faith with the BVWACS Managing Entity to
437 help resolve problems. Using Standard Operating Procedures or other directives
438 from the Governing Board, BVWACS Parties shall have access to system reports
439 including, but not limited to, system usage, utilization and performance. A
440 BVWACS Party is financially responsible for any FCC penalties, fines or other
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441 financial encumbrance caused by the actions of that BVWACS Party and any
442 BVWACS Associate sponsored by it.
443 8.G. Capacity Management. The BWACS Managing Entity shall develop a policy
444 for capacity management and submit the policy to the Operating Board for review
445 and approval. This policy shall be reviewed annually by the Operating Board, and
446 updated as needed to ensure appropriateness and applicability with current
447 BVWACS needs and industry standards and practices.
448 8.1-1. Withdrawal of Managing Entity. In the event the current entity ceases to be
449 the BVWACS Managing Entity and the BVWACS Managing Entity is not a
450 BVWACS Party subject to the provisions of Section 17.B herein, the Governing
451 Board Members representing five of the six BVWACS Parties shall appoint a
452 replacement BVWACS Managing Entity. Within ten (10) days after receipt of notice
453 of the identity of the replacement BVWACS Managing Entity, the current BVWACS
454 Managing Entity shall:
455 8.1-1.1 Possession Transfer control and possession of all BVWACS
456 Infrastructure, BVWACS Improvements including BVWACS real property
457 owned as tenants in common pursuant to this Agreement to the replacement
458 BVWACS Managing Entity.
459 8.H.2 Conveyance of Real Property. Transfer any and all ownership rights
460 it may have to real property acquired pursuant to the terms of this
461 Agreement to the BVWACS Parties.
462 8.1 Evidence of Ownership Provide evidence and documentation
463 adequate to prove ownership of the BVWACS Infrastructure, BVWACS
464 Improvements or real property, including, wherever applicable, transferring
465 all rights, tide and interests, including proprietary and intellectual property
466 rights, to enable the replacement BVWACS Managing Entity to manage,
467 upgrade, update, maintain, and operate or to sell, convey or otherwise
468 dispose of the BVWACS Infrastructure, BVWACS Improvements or real
469 property if or when the BVWACS Parties determine that this is appropriate,
470 and
471 8.1 Operations and Legal Documents Transfer the originals of all deeds,
472 operations manuals, warranties, bills of sale, licenses, leases, titles and other
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473 legal documents related to BVWACS Infrastructure, BVWACS
474 Improvements or BVWACS real property to the replacement BVWACS
475 Managing Entity.
476
477 9. Budget.
478 9.A. Budget Adoption The Governing Board shall annually approve a draft
479 BVWACS Budget upon the approval of five of its six members in accordance with
480 the timeframes set forth herein and recommend approval of the Budget to the
481 governing bodies of the BVWACS Parties, including approval to appropriate their
482 proportionate share of the BVWACS Budget. All Operating Costs must be included
483 in each annual BVWACS Budget as well as any Capital Costs. The Budget shall
484 include any and all costs relating to Employees in implementing and maintaining the
485 BVWACS. If any BVWACS Party does not agree with the draft BVWACS Budget
486 as presented, it must provide the Governing Board with a detailed explanation of its
487 issues with the draft Budget within 30 days after receipt of it. Each member of the
488 Governing Board shall consult with its governing body or appropriate budget review
489 personnel before voting to approve any Budget.
490 9.13. Annual Operating Costs Budget The annual Operating Costs shall be
491 shared according to the participation levels shown in Exhibit A. Each year the
492 BVWACS Managing Entity, following and abiding by its budgeting and accounting
493 practices, shall prepare an annual Operating Costs budget ( "Operating Budget ") on a
494 fiscal year basis and submit this budget to the Operating Board. The Operating
495 Budget must provide for all Operating Costs. The Operating Board shall review and
496 adjust, as needed, the Operating Budget and then submit its recommendation to the
497 Governing Board. The Governing Board shall, no later than March 1st of each year,
498 approve a draft budget and recommend approval of the Operating Budget by each
499 BVWACS Party and appropriation of their proportionate share of the Operating
500 Budget in their next Fiscal Year's budget. If budgeted amounts exceed actual
501 expenditures, the unexpended balances shall be credited against the budgeted
502 expenditure amounts in the Operating Budget for the next Fiscal Year unless
503 refunded to the Party at such Party's request.
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504 9.C. Annual Capital Costs Budget A Capital Costs budget shall be prepared
505 annually using the same process for adoption as the Annual Operating Costs Budget
506 except that while the Capital Costs budget is prepared annually, the planning period
507 for Capital Costs is five (5) years. Unless otherwise agreed by the BVWACS Parties,
508 Capital Costs shall be shared according to the participation levels shown in Exhibit
509 A; provided, however, that the Capital Costs that are incurred to benefit only one or
510 more individual BVWACS Parties shall be paid by the BVWACS Parties benefiting
511 from such BVWACS Improvements and Infrastructure.
512 9.D. Budgeted Expenditures After the Budget has been approved and funded by
513 the BVWACS Parties, the BVWACS Managing Entity is authorized to incur costs in
514 accordance with the Budget. Any costs to be incurred in excess of the approved and
515 funded Operating Costs or Capital Costs Budget amounts require additional budget
516 approval and funding, or re- allocation of existing funds, by the BVWACS Parties.
517 9.E. Other BVWACS Fees Fees payable by BVWACS Associates are determined
518 by the terms of their BVWACS Associate Interlocal Cooperation Agreement. Funds
519 received by new Parties are determined in accordance with this Agreement.
520 9.F. Funding Transfers to the Managing Entity Once each BVWACS Party
521 appropriates its portion of the BVWACS Budget in its annual budgetary process, the
522 Managing Entity shall provide timely and accurate invoices to facilitate the transfer
523 of funds by each BVWACS Party to the Managing Entity, and the Parties shall each
524 comply with the following procedures to facilitate payment by the Managing Entity
525 to the BVWACS vendors and contractors:
526 9.F.1. Quarterly Assessment At least 60 days prior to the beginning of
527 each Quarter of the Fiscal Year, the BVWACS Managing Entity shall give the
528 Operating Board, for its review, an itemized schedule of the Capital Costs
529 and Operating Costs that are projected to be incurred, and the amount of
530 money projected to be expended, during the next quarter. At least 30 days
531 prior to the beginning of each Quarter, the Managing Entity shall send each
532 BVWACS Party an invoice for its Quarterly Assessment.
533 9.F.2. Approval Each BVWACS Party must approve or dispute its
534 Quarterly Assessment and provide written notice of any dispute to the
535 BVWACS Managing Entity within 15 business days after receipt of the
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536
invoice for the Quarterly Assessment. If a dispute concerning the Quarterly
537
Assessment is not resolved by the time the BVWACS Party is required to
538
remit payment, the matter shall be resolved in accordance with the
539
procedures set forth in Section 21, Dispute Resolution.
540
9.F.3. Payment Instructions The Managing Entity must provide payment
541
instructions to each BVWACS Party for the transfer of BVWACS Party
542
funds to the Managing Entity.
543
9.F.4. BVWACS Party Funds Each BVWACS Party must pay its Quarterly
544
Assessment to the Managing Entity no later than 60 calendar days after
545
receipt of an invoice in accordance with the resolution of any dispute about
546
the Quarterly Assessment.
547
9.F.5. BVWACS Fund The Managing Entity shall establish a separate fund
548
for BVWACS in its accounting records (`BVWACS Fund ") that is dedicated
549
to the administration of the BVWACS. All funds received from BVWACS
550
Parties and other BVWACS revenues, including any interest earned, shall be
551
credited to the BVWACS Fund. All BVWACS obligations shall be debited
552
from the BVWACS Fund. The records for the BVWACS Fund shall be
553
maintained in compliance with generally accepted accounting principles.
554
9.F.6. Accounting The BVWACS Fund is managed by the Managing Entity
555
in the same manner as the Managing Entity manages funds held in its
556
depository accounts. Funds associated with the BVWACS, including accrued
557
interest, shall be accounted for separately by the Managing Entity for the
558
benefit of the BVWACS Parties, unless otherwise required by law or this
559 Agreement.
560 9.F.7. Statements The BVWACS Managing Entity is responsible for
561 providing quarterly statements showing the credits to and debits from the
562 BVWACS Fund, including any income earned, to each Party on or before the
563 20th day of the first month following the end of such quarter. The quarterly
564 statements must include beginning and ending BVWACS Fund balances.
565 Statements for `year -end' fund status must be provided as soon after year -end
566 closeout as possible.
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567 9.F.8. Payments Subject to the availability of sufficient funds in the
568 BVWACS Fund, the Managing Entity shall pay BVWACS contractors and
569 vendors in compliance with the Texas Prompt Payment Act.
570 9.F.9. Reports. The BVWACS Managing Entity is responsible for
571 providing each BVWACS Party with a quarterly written financial report on
572 the Budget, including current BVWACS Cost projections for the succeeding
573 quarter.
574 9.G. Fug The BVWACS Parties specifically acknowledge that funding for
575 each BVWACS Party's share of the BVWACS Operating Budget and Capital Costs
576 Budget goes through that BVWACS Party's normal budgeting process; and upon
577 approval by its governing body, is payable from current revenue available to each
578 funding BVWACS Party. Purchase, operation and maintenance costs of Subscriber
579 Equipment are the responsibility of each BVWACS Party.
580 9.1-1. Failure to Appropriate The failure of a BVWACS Party to appropriate its
581 proportionate share of the BVWACS Budget by the first day of the Fiscal Year for
582 which the Operating Budget and Capital Costs Budget is applicable shall be a
583 material default of such BVWACS Party under this Agreement, and the BVWACS
584 Parties shall follow the procedures for termination of a BVWACS Party set out in
585 this Agreement addressing the effect of breach and default.
586 9.I. Partial Funding If any BVWACS Party appropriates less than its
587 proportionate share of Operating Budget and Capital Costs budget for any year, or if
588 any BVWACS Party fails to pay its Quarterly Assessment, (herein called the
589 " Underfunding Party ") the other BVWACS Parties, acting through the Governing
590 Board may take one or more of the following actions:
591 9.I.1. Suspension of Representation Remove the Governing Board
592 representation and voting rights for the Underfunding Party.
593 9.I.2. Service Reduction Reduce the BVWACS services being provided to
594 the Underfunding Party.
595 9.I.3. Notice of Underfunding Send the Underfunding Party a notice
596 stating the amount of underpayment, which is the difference in the
597 Underfunding Party's Quarterly Assessment and the amount of funding
598 provided by the Underfunding Party ( "Deficiency "). Said Deficiency is an
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599 obligation of such Underfunding Party subject to the Prompt Payment Act.
600 Each Underfunding Party agrees that its future right to participate in the
601 BVWACS is dependent upon fully paying its Quarterly Assessments. The
602 Underfunding Party must appropriate and pay the Deficiency, and its entire
603 Quarterly Assessment for the remainder of that Fiscal Year.
604 9.I.4. Budget Revision Amend the BVWACS Operating Budget and
605 Capital Costs budget by reducing costs and /or increasing the amounts paid
606 by the other BVWACS Parties.
607 9.I.5. Termination of Participation Terminate the Underfunding Party's
608 participation in this Agreement by following the procedure for termination
609 of a BVWACS Party, if the level of funding is deemed by the other
610 BVWACS Parties to be substantially a failure to fund.
611 9.J. Asset Management BVWACS Infrastructure shall be tracked in accordance
612 with standard operating procedures approved by the Operating Board. These
613 procedures must be consistent with generally accepted accounting principles for
614 property held as tenants in common for one or more of the BVWACS Parties. If any
615 BVWACS Infrastructure needs to be retired, the BVWACS Managing Entity will
616 provide this information to the Operating Board for approval prior to removal. At a
617 minimum, the BVWACS Managing Entity shall provide the asset serial number, asset
618 ID tag (if any), location from which it is to be removed and description of the asset.
619 The asset to be retired shall be disposed as directed by the Governing Board upon
620 receiving the recommendation of the Operating Board. Any funds received from the
621 disposal of the asset shall be credited as revenue in the BVWACS Fund and shown
622 in the next BVWACS Capital Costs budget. These funds are managed in accordance
623 with the provisions of this Agreement.
624 With respect to Infrastructure, Improvements and real property owned by only one
625 or some of the Parties and that is not listed as BVWACS Infrastructure, BVWACS
626 Improvements, or BVWACS real property, right of access, license and use is herein
627 granted by such Parties to all Parties and to the BVWACS Managing Entity as
628 necessary for BVWACS purposes as determined by the Governing Board. With
629 respect to future Infrastructure, Improvements and real property owned by only one
630 or some of the Parties, such Parties agree that all rights of access, use or licenses
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631 required to make same a part of the BVWACS shall be granted. No Infrastructure,
632 Improvement or real property owned by only one or some of the Parties may be
633 conveyed to a third party, destroyed or otherwise removed from the BVWACS
634 without giving at least 12 months advance notice. Failure to do this shall be
635 considered a failure to perform substantially such Party's or Parties' material
636 obligations under this Agreement, and the provisions of Section 18. Effect of Breach
637 and Default shall apply. The Governing Board may determine to file Certificates of
638 Memorandums in the deed records of the county where an asset owned by one or
639 more Parties is located notifying the public regarding BVWACS rights associated
640 with such asset.
641 10. BVWACS Associates.
642 10.A. Procedure for Becoming BVWACS Associate To use the BVWACS, an
643 entity must be either a BVWACS Party or BVWACS Associate. To become a
644 BVWACS Associate, a BVWACS Party must sponsor the entity. A BVWACS Party
645 may only sponsor BVWACS Associates to the extent that it has a portion of its share
646 of BVWACS capacity that is unused and therefore available to assign. A BVWACS
647 Party may not sponsor any entity unless the entity is eligible to use the BVWACS
648 licensed radio frequencies under FCC rules, regulations and practices. A BVWACS
649 Party may sponsor one or more entities as BVWACS Associates. BVWACS Parties
650 shall use the following procedure for sponsoring an entity:
651 10.A.1. Share of Capac r ite . Determine the extent of the BVWACS Party's
652 share of the BVWACS capacity that is available for assignment to the entity.
653 10.A.2. Anticipated Usage Determine the anticipated usage of the entity to
654 be sponsored based on talk time if available, the number of radios used by
655 the entity and other relevant information as determined by the Governing
656 Board.
657 10.A.3. Compatibility Determine the compatibility of the Subscriber
658 Equipment used by the entity with the system and the impact of their
659 inclusion in the system based on voice traffic, talk -group needs, and
660 functionality.
661 10.A.4. Associate Agreement Negotiate a BVWACS Associate Interlocal
662 Cooperation Agreement with the prospective BVWACS Associate that
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663 includes the Standard Terms and Conditions as well as any other terms and
664 conditions related to payment, term of agreement, nature of the services to
665 be provided, curtailment of services or termination of the authority to
666 continue use of the BVWACS for breach, withdrawal by the entity, and other
667 matters that they desire as long as they are not contrary to or more expansive
668 than the Standard Terms and Conditions or the terms and conditions of this
669 Agreement.
670 10.A.5. Report to Board Present a report to the Operating Board that
671 includes the anticipated usage of the entity, the number of radios or
672 equipment used by the entity, the compatibility of the radios or equipment
673 used by the entity with the system and any other information relevant to
674 whether the addition of the entity is likely to cause the BVWACS Party to
675 exceed its share of the BVWACS capacity.
676 10.A.6. Board Approval of Draft Agreement Present a draft copy of the
677 proposed BVWACS Associate Interlocal Cooperation Agreement to the
678 Operating Board so that it can verify that the agreement contains the
679 Standard Terms and Conditions and is consistent with the terms and
680 conditions of this Agreement.
681 10.A.7. Parties Approval of Associate Agreement Obtain approval of the
682 BVWACS Associate Interlocal Cooperation Agreement by the governing
683 bodies of the sponsoring Party and the prospective BVWACS Associate to
684 the agreement.
685 10.B. Operating Board Duties The Operating Board shall review the report of the
686 BVWACS Party asking to sponsor an entity as a BVWACS Associate and evaluate
687 the following:
688 10.13.1. Impact on current and future BVWACS voice traffic capacity.
689 10.13.2. Impact on current and future BVWACS talkgroup capacity.
690 10.13.3. Impact on overall current and future BVWACS functionality.
691 The Operating Board shall review the proposed BVWACS Associate
692 Interlocal Cooperation Agreement to be entered into by the BVWACS Party asking
693 to sponsor an entity as a BVWACS Associate and determine whether it includes the
694 Standard Terms and Conditions.
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695 If the impact on these three aspects of the BVWACS capacity is not likely to
696 result in that BVWACS Party's exceeding its share of the BVWACS capacity or to
697 detrimentally affect the overall current and future functionality of the BVWACS, and
698 the proposed BVWACS Associate Interlocal Cooperation Agreement includes the
699 Standard Terms and Conditions, the Operating Board shall recommend approval of
700 the request to sponsor the entity to the Governing Board.
701 10.C. Governing Board Approval. The Governing Board must approve all
702 BVWACS Association Interlocal Cooperation Agreements before such prospective
703 BVWACS Associate may access or use the BVWACS.
704 10.D. Capacity for Sponsoring BVWACS Associates Initially, a BVWACS Party's
705 share of the capacity of the BVWACS is based on the participation levels stated in
706 Exhibit A. Two years after system acceptance of the BVWACS or when adequate
707 information is available, whichever occurs first, BVWACS capacity is based on the
708 capacity management process recommended by the Operating Board and approved
709 by the Governing Board. The share of capacity used may be adjusted as
710 Infrastructure or Improvements are made to BVWACS. A BVWACS Party may use
711 its share of BVWACS capacity for its own purposes or may allocate a portion of that
712 share through a BVWACS Associate Interlocal Cooperation Agreement. In no event
713 shall sponsoring a BVWACS Associate cause alteration to the Participation Table set
714 forth in Exhibit A.
715 10.E. Financial Effect of Sponsoring BVWACS Associate When a BVWACS
716 Party authorizes another entity to use a portion of its share of BVWACS capacity,
717 that BVWACS Party remains responsible for full payment of its entire cost share of
718 the BVWACS.
719 W.F. Sponsor's Control of BVWACS Associate's Access to BVWACS If a
720 BVWACS Party requests that the BVWACS System Manager disable . all or part of
721 the services available to a BVWACS Associate sponsored by that BVWACS Party,
722 the BVWACS System Manager shall comply with these requests and disable the
723 portion of the services available to a BVWACS Associate requested by the BVWACS
724 Party as soon as practicable.
725 10.G. Responlity for Subscriber Equipment BVWACS Associates are
726 responsible for purchasing and providing their own Subscriber Equipment to be
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727 used on the BVWACS. The purchase of Subscriber Equipment shall be coordinated
728 with the BVWACS Managing Entity.
729 10.H. Additional Units BVWACS Associates are not allowed to add units to the
730 BVWACS without approval from their sponsoring BVWACS Party.
731 10.I. Changes to Operations Each BVWACS Party that has sponsored BVWACS
732 Associates is responsible for informing the BVWACS Associates of changes in
733 BVWACS Standard Operating Procedures.
734
735 11. New BVWACS Parties.
736 11.A. New Parties to BVWACS. From time to time, entities may join the BVWACS
737 as full Parties. Entities desiring to join the BVWACS as full Parties shall petition the current
738 Parties for membership in accordance with the terms herein.
739 1 LB Contents of Petition. An entity desiring to join BVWACS shall submit a
740 petition. At a minimum, a petition to join BVWACS as a Party shall include the following:
741 11.13.1 Area to be Served. A description of the area to be covered and a
742 description of how the Service Area will be affected;
743 11.13.2 Proposed Subscriber Equipment. The type of Subscriber Equipment
744 proposed to use the BVWACS, including the approximate number of units to be added, talk
745 groups and talk time;
746 11.13.3 Compatibility and Impact on BVWACS A determination as to the
747 compatibility of the Subscriber Equipment accessing the BVWACS; and the impact of the
748 proposed uses by petitioner on the BVWACS as to overall current and future functionality,
749 based on voice traffic, talk -group needs, and other relevant factors determined by the
750 Governing Board;
751 11.13.5 Infrastructure, Improvements, Funds and Real Prop 1ty. A
752 description of any Infrastructure, Improvements, funds or real property that will be made
753 available to the BVWACS to offset costs associated with system expansion, and a
754 description of how this will affect the BVWACS and the current Service Area; and
755 11.13.6. Share of Capacity Provide an estimate of the requested capacity
756 desired, including the anticipated type and amount of usage based on talk time, talk group
757 needs and other relevant factors as determined by the Governing Board.
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758 11.C. Procedure. The following procedure shall be followed when petitioning to
759 become a Party.
760 11.C.1 Submit Petition. An entity desiring to become a Party to the
761 BVWACS shall petition the Governing Board through the BVWACS Managing
762 Entity who will then review such petition for completeness as well as content. The
763 BVWACS Managing Entity shall forward the petition to the Operating Board for
764 recommendation by the Operating Board within 30 days from submission of such
765 petition.
766 11.C.2 Operating Board. The Operating Board shall review the petition of
767 the submitting entity and make its recommendation to the Governing Board
768 within 60 days from the date of submission of such petition. The Operating Board
769 shall evaluate the petition based upon the following:
770 11.C.1.1 Whether the addition of petitioner as a Party will
771 have an adverse impact on the current and future needs of the existing Parties, on
772 the Service Area and on BVWACS as a whole; and
773 11.C.1.2 Whether the addition of petitioner as a Party is
774 consistent with the goals and objectives of BVWACS as set forth in this Agreement.
775 11.C.3 Governing Board. The petitioner may negotiate an amendment to
776 this Agreement relating to its inclusion as a Party. The Governing Board will
777 consider the request and the recommendation of the Operating Board within ninety
778 (90) days from the date of submission of the petition and approve, deny or request
779 additional information needed to consider the request. Adding a new Party to this
780 Agreement shall be considered an amendment subject to the terms and conditions
781 for approval of amendments set forth in Section 6 above.
782 11.D. Participation Level Initially, a BVWACS Party's share of the capacity of the
783 BVWACS is based on the participation levels stated in Exhibit A. Addition of new
784 Parties will require reevaluation and possible alteration of the participation levels.
785 The Operating Board will provide preliminary recommended participation levels
786 based on the new Party joining BVWACS at the time it reviews the petition. The
787 Governing Board shall then review such recommendation and determine whether
788 such participation levels set forth in Exhibit A should be modified. Such
789 determination must be approved by five of the six members of the Governing
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790 Board. From time to time, participation levels shall be re- evaluated upon request of
791 a Party using the same procedure set forth herein of recommendation by the
792 Operating Board and determination by the Governing Board as Infrastructure or
793 Improvements are made to BVWACS, as use of the BVWACS changes, or when
794 new information affecting BVWACS becomes available. A BVWACS Party may use
795 its share of BVWACS capacity for its own purposes or may allocate a portion of that
796 share through a BVWACS Associate Interlocal Cooperation Agreement.
797 11.E. Obligations of New BVWACS Parties When a new BVWACS Party is
798 authorized by the Governing Board, the participation levels determined above will
799 establish the Annual Assessment for the new Party. Once the new Party is approved
800 for membership, that Party assumes responsibility for its Annual Assessment and all
801 other obligations as a Party to this Agreement. New BVWACS Parties are
802 responsible for purchasing and providing their own Subscriber Equipment to be
803 used on the BVWACS. The purchase of Subscriber Equipment shall be coordinated
804 with the BVWACS Managing Entity.
805 12. Accounting Records.
806 The BVWACS Managing Entity maintains accounting records in accordance with
807 generally accepted accounting standards applicable to governmental entities, including
808 compliance with federal guidelines for spending federal funds or bond proceeds.
809 The BVWACS Managing Entity shall ensure that records pertaining to the BVWACS
810 shall be kept in accordance with the records retention policy of the Managing Entity and in
811 accordance with the Open Records Act. At any reasonable time, upon three days prior
812 written notice, any BVWACS Party may inspect, copy, examine, and /or audit the BVWACS
813 records, at that BVWACS Party's expense, at the office of the BVWACS Managing Entity,
814 or any other mutually acceptable location.
815 13. Contracting Authority.
816 Except for real estate transactions, the BVWACS Parties hereby grant such
817 BVWACS Managing Entity the authority to contract on behalf of the BVWACS Parties for
818 acquisitions and services that have been approved in the annual BVWACS Budget or as
819 otherwise approved by the Governing Board, so long as the contracted amount is within the
820 budgeted amount and the payments are made from available funds, using the BVWACS
821 Managing Entity's standard purchasing processes, unless expenditure of federal funds or
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822 bond proceeds requires use of additional procedures or guidelines. Procurements shall be
823 made in accordance with the laws applicable to such entity. These contracts shall be
824 administered by the BVWACS Managing Entity.
825 14. Federal Funds and Bond Funds.
826 If a BVWACS Party utilizes federal funds, grant funds, or bond funds to meet a
827 portion of their financial commitment under this Agreement, the BVWACS Parties agree to
828 conduct all procurements, maintain all records and otherwise conduct their activities in
829 furtherance of this Agreement so as to comply with all applicable statutes, regulations,
830 policies and grant contract provisions necessary to qualify the BVWACS expenditures
831 contemplated for federal or grant program reimbursement and to avoid arbitrage penalties.
832 Further, the BVWACS Parties agree to cooperate with each other in the application for and
833 administration of federal funds, grant funds, or bond funds to maximize funding
834 participation in the operation and maintenance of the BVWACS. Each BVWACS Party
835 intending to utilize federal funds, grant funds, or bond funds to meet a portion of its annual
836 financial commitment shall notify the BVWACS Managing Entity when those funds are
837 obligated to the BVWACS by October 1 of each year.
838 15. BVWACS Performance.
839 The Operating Board shall take such action as may be necessary for assuring that
840 Subscriber Equipment configuration changes or additions do not adversely affect the
841 performance of the BVWACS. The Operating Board may utilize the system assessment
842 services of the BVWACS Support Vendor or other qualified contractor to determine the
843 impact of adding Subscriber Equipment to the BVWACS. The Operating Board shall
844 develop policies involving the BVWACS Support Vendor that provide a review process
845 prior to implementing any Subscriber Equipment system configuration changes requested or
846 made by BVWACS Parties. BVWACS Parties shall not take any action that is known or
847 ought to be known to affect the operation of the BVWACS adversely and shall reverse any
848 action taken that affects the operation of the BVWACS adversely. BVWACS Parties shall
849 not change the configuration of their program or template in a way that is known or ought
850 to be known to affect the operation of the BVWACS adversely and shall reverse any change
851 in the configuration of their program or template that affects the operation of the BVWACS
852 adversely.
853 16. Dissolution of BVWACS.
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854 16.A. Dissolution of BVWACS This Agreement may be voluntarily dissolved
855 before the end of the final term if the governing bodies of five of the six BVWACS
856 Parties agree in writing to provide for a dissolution date. The dissolution date shall
857 not be less than twelve (12) months after these BVWACS Parties have executed the
858 agreement to dissolve the BVWACS unless all BVWACS Parties agree to an earlier
859 dissolution date.
860 16. B. Distribution of Assets If the BVWACS is dissolved either by agreement or
861 at the end of the final term, the assets of the BVWACS shall be equitably distributed
862 among the BVWACS Parties. The BVWACS Parties shall agree on which BVWACS
863 Party receives which assets in the distribution. An agreement for distribution of
864 assets of the BVWACS shall be effective after approval by five of the six the
865 governing bodies of BVWACS Parties. The manner of distribution shall consider
866 and be consistent with the following factors:
867 16.13.1. Participation Level The BVWACS Party's share of the Capital Costs
868 for Infrastructure and Improvements to the BVWACS and the BVWACS
869 Party's participation level as stated in Exhibit A;
870 16.13.2. Asset Value The value of the assets on the dissolution date;
871 16.13.3. Manner of Acquisition The basis on which the asset was acquired,
872 whether the asset
873 16.13.3.1 Was already owned by a Party;
874 16.B.3.2. Was acquired jointly by all BVWACS Parties or
875 16. B.3.3. Was acquired by only one or some of the BVWACS
876 Parties;
877 16.13.4. Early Termination Whether and, if so, when the BVWACS Party
878 terminated its participation in BVWACS before the dissolution of the
879 BVWACS; and
880 16.13.5. Utility of Asset The usefulness of the asset to the BVWACS Party
881 receiving it.
882 16.C. The BVWACS Party to which an asset is distributed shall also be provided
883 evidence and documentation adequate to prove ownership of that asset, including,
884 wherever applicable, transfer of all rights, title and interests, including proprietary
885 and intellectual property rights, to enable that BVWACS Party to upgrade, update,
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886 operate, and maintain it or to sell, convey or otherwise dispose of it and the originals
887 of all operations manuals, warranties, bills of sale, licenses, leases, titles and other
888 legal documents related to that asset.
889
890 17. Withdrawal of a BVWACS Party.
891 17.A. Notice of Withdrawal A BVWACS Party may withdraw from this
892 Agreement and terminate its participation in BVWACS at any time by giving at least
893 twelve (12) months prior written notice to the Remaining Parties. The Termination
894 Date shall not be earlier than twelve months after notice is given unless four of the
895 five Remaining Parties agree otherwise. The Withdrawing Party must continue to
896 fund its Annual Assessment through the Termination Date, and if it does so, the
897 Withdrawing Party may continue to participate in the BVWACS until its Termination
898 Date. The portion of the Budget allocated to a Withdrawing Party after receipt of the
899 notice of withdrawal may be reduced by the agreement of four of the five Remaining
900 Parties.
901 17.B. Withdrawal of Managing Entity. In the event the BVWACS Managing Entity
902 is a party to this Agreement and such Party withdraws from the BVWACS, the
903 Governing Board Members representing four of the five Remaining Parties shall
904 appoint a replacement BVWACS Managing Entity. Within ten (10) days after receipt
905 of notice of the identity of the replacement BVWACS Managing Entity, the
906 Withdrawing BVWACS Party that is the BVWACS Managing Entity shall:
907 17.B.1 Possession Transfer control and possession of all BVWACS
908 Infrastructure, BVWACS Improvements including BVWACS real property
909 owned as tenants in common pursuant to this Agreement to the replacement
910 BVWACS Managing Entity.
911 17.13.2 Conveyance of Real PropgLty. Transfer any and all ownership rights
912 it may have to real property acquired pursuant to the terms of this
913 Agreement to the Remaining Parties.
914 17.B.3 Evidence of Ownership Provide evidence and documentation
915 adequate to prove ownership of the BVWACS Infrastructure, BVWACS
916 Improvements or real property, including, wherever applicable, transferring
917 all rights, title and interests, including proprietary and intellectual property
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918 rights, to enable the replacement BVWACS Managing Entity to manage,
919 upgrade, update, maintain, and operate or to sell, convey or otherwise
920 dispose of the BVWACS Infrastructure, BVWACS Improvements or real
921 property if or when the Remaining Parties determine that this is appropriate,
922 and
923 17.B.4. Operations and Legal Documents Transfer the originals of all deeds,
924 operations manuals, warranties, bills of sale, licenses, leases, titles and other
925 legal documents related to BVWACS Infrastructure, BVWACS
926 Improvements or BVWACS real property to the replacement BVWACS
927 Managing Entity.
928 17.C. Disposition of BVWACS Value of Withdrawing Party All right, title, and
929 interest in and to the Withdrawing Party's BVWACS Value may be dealt with in one
930 of two ways: 1) sale and assignment by Withdrawing Party; or 2) determination of
931 valuation and disposition of Withdrawing Party's BVWACS Value by Remaining
932 Parties. In either event, all rights of access, licenses and use to such Withdrawing
933 Party's assets comprising a part of the BVWACS remain in place during the
934 withdrawal process.
935 17.C.1. Sale and Assignment by Withdrawing Pat . The Withdrawing Party
936 shall offer its BVWACS Value to the Remaining Parties. If none of the
937 Remaining Parties accept the offer within sixty (60) days after receipt of the
938 offer, the Withdrawing Party may sell its BVWACS Value to one or more
939 entities approved by all of the Remaining Parties if the entity or entities enter
940 into an assignment of this Agreement from the Withdrawing Party and
941 accept the duties and obligations of the Withdrawing Party under this
942 Agreement as its or their own duties and obligations. The assignee, if other
943 than a Remaining Party, shall also obtain the rights of the Withdrawing Party
944 under the BVWACS Agreement, including one representative on the
945 Governing Board and one representative on the Operating Board. After the
946 assignment, the BVWACS Agreement shall be construed as if the assignee
947 were listed in the definition of BVWACS Parties. If the Withdrawing Party
948 has an offer to purchase its BVWACS Value from an entity but all of the
949 Remaining Parties do not approve that entity as a reasonable replacement for
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950
the Withdrawing Party, the Remaining Parties shall compensate the
951
Withdrawing Party for its BVWACS Value in proportion to their Annual
952
Assessment of BVWACS and obtain a proportionate share of the
953
Withdrawing Party's BVWACS Value.
954
17.C.2. Determination of Value by Remaining Parties If the Withdrawing
955
Party does not give the Remaining Parties notice that it is exercising its rights
956
under 17.C.1. at least six (6) months before the Termination Date, no later
957
than the Termination Date the Remaining Parties must fairly determine what
958
the Withdrawing Party's BVWACS Value is at the Termination Date. If the
959
Withdrawing Party and the Remaining Parties are unable to agree on the
960
BVWACS Value, an accounting shall be performed by a panel of three
961
persons. The Remaining Parties shall select one person to represent them on
962
the panel. The Withdrawing Party shall select another person to represent it
963
on the panel. The two persons selected shall select a third person to
964
complete the panel and the accounting. If an accounting is performed, it
965
shall be the basis for determining BVWACS Value for the Withdrawing
966
Party. One half of the cost of this panel shall be born by the Withdrawing
967
Party and one half of the cost of this panel shall be born by the Remaining
968
Parties.
969
17.C.3. Disposition by Remaining Parties When the BVWACS Value is
970
determined, the Remaining Parties shall determine how to disburse the
971
ownership of the BVWACS Value of the Withdrawing Party. The
972
Remaining Parties shall consider at least the following options:
973
17.C.3.1. New Party Find another entity to compensate the
974
Withdrawing Party for its BVWACS Value, assume ownership of the
975
Withdrawing Party's BVWACS Value and assume its obligations and
976
rights under the BVWACS Agreement;
977
17.C.3.2. Share Value Divide the Withdrawing Party's
978
BVWACS Value proportionally among the Remaining Parties,
979
compensate the Withdrawing Party for its BVWACS Value, and
980
provide for a proportional increase in Annual Assessment;
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981
17.C.3.3. Single or some of BVWACS Parties Allow one or
982
only some of the Remaining Parties to compensate the Withdrawing
983
Party for its BVWACS Value, assume ownership of the Withdrawing
984
Party's BVWACS Value with a corresponding increase in Annual
985
Assessment; or
986
17.C.3.4. Ownership without Use Require the Withdrawing
987
Party to retain ownership of its BVWACS Value but forfeit its use of
988
the BVWACS and representation on the Governing Board and
989
Operating Board unless and until the Withdrawing Party pays what
990
its accrued share of the systems operations costs from the
991
Termination Date to the end of the then current Budget Year would
992
have been if it had not withdrawn.
993
17.D. Exclusion of Withdrawing Party's Votes The Withdrawing Party and its
994
vote on the Governing Board shall be excluded in determining the votes needed for
995
the Remaining Parties to make a decision about the disposition of the Withdrawing
996
Party's BVWACS Value after the Termination Date.
997
17.E. Disposition of BVWACS Value by Remaining Parties If the Remaining
998
Parties select the ownership alternative in 17.C.3.2, or 17.C.3.3 the Remaining Parties
999
shall provide for payment of the Withdrawing Party's BVWACS Value in the fiscal
1000
year following the fiscal year of the Termination Date.
1001
17.F. Effect of Disposition on Membership in Governing Board If the
1002
Remaining Parties select the option in 17.C.2 or 17.C.3.3 and Withdrawing Party's
1003
BVWACS Value is divided among the Remaining Parties or assumed by one or only
1004
some of the Remaining Parties, the representation of these BVWACS Parties on the
1005
Governing Board shall not be increased.
1006
17.G. Depreciation of BVWACS Value If the Withdrawing Party retains its
1007
BVWACS Value, the portion of the value that relates to depreciable assets shall be
1008
reduced annually on a declining balance method over the useable life of the asset as
1009
long as the depreciable assets that form part of the BVWACS Value are owned by
1010
one or more of the Remaining Parties. The portion of the BVWACS Value that
1011
relates to non - depreciable assets shall remain unchanged.
1012 18.
Effect of Breach and Default.
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1013
18.A. Events of Breach. Breach results from any of the following:
1014
18.A.1. Payment A BVWACS Party's failure to appropriate or pay its
1015
Annual Assessment timely;
1016
18.A.2. FCC Rules Violation of FCC rules and regulations by a BVWACS
1017
Party or any BVWACS Associate with which it has entered into a BVWACS
1018
Associate Interlocal Cooperation Agreement;
1019
18.A.3. Policies and Procedures Individual or repeated violations of
1020
approved written policies and procedures by a BVWACS Party or any
1021
BVWACS Associate with which it has entered into a BVWACS Associate
1022
Interlocal Cooperation Agreement;
1023
18.A.4. Inappropriate Use Use of the BVWACS by a BVWACS Party or
1024
any BVWACS Associate with which it has entered into a BVWACS
1025
Associate Interlocal Cooperation Agreement;
1026
18.A.5. Penalty Pam Failure to pay FCC penalties or fines resulting
1027
from the actions of a BVWACS Party or any BVWACS Associate with which
1028
it has entered into a BVWACS Associate Interlocal Cooperation Agreement;
1029
18.A.6 Improper Disposition of Assets or Interest. Disposing of assets
1030
owned by only one or some of the Parties in contravention of the provisions
1031
of this Agreement, or failure to follow the required process set forth in this
1032
Agreement of divesting a Party's interest in a BVWACS Improvement,
1033
BVWACS Infrastructure or BVWACS real property.
1034
18.A.7. Adverse Impact Any other action or omission that has a material
1035
adverse impact on the operation and maintenance of BVWACS; or
1036
18.A.8 Substantial Performance Failure to perform substantially its material
1037
obligations other than failure to appropriate or timely pay its Annual
1038
Assessment.
1039
18.B. Breach for Non- Pa,>� The decision to exercise rights granted by this
1040
subsection 18.B. shall be made by the Governing Board. If any BVWACS Party
1041
commits the breach described in 18.A.1, the Governing Board may determine to
1042
deliver a written notice of breach to the BVWACS Party that specifies the nature of
1043
the breach and indicates that unless the breach is cured within thirty (30) days,
1044
additional steps shall be taken. A breach described in 18.A.1 can only be cured by
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1045
paying that Annual Assessment. If the breaching BVWACS Party does not cure that
1046
breach within thirty (30) days of receiving the written notice of breach, the breaching
1047
BVWACS Party is in default and the Governing Board shall deliver a written notice
1048
of default to the BVWACS Party that specifies the following:
1049
18.B.1. The nature of the default;
1050
18.13.2. The date of the notice of breach;
1051
18.B.3. The failure of the breaching BVWACS Party to cure timely; and
1052
18.B.4. The BVWACS Party's interest in the BVWACS is terminated no later
1053
than 60 days from the date of the written notice of breach if the termination
1054
is approved by all of the BVWACS Remaining Parties unless the default is
1055
cured by the defaulting BVWACS Party paying that Annual Assessment
1056
within an additional thirty (30) days from the date of default as referenced in
1057
18.A.1 above for a total of sixty (60) days from the date of default unless the
1058
Governing Board approves a longer timeframe.
1059
18.C. Suspension for Other Breaches If any BVWACS Party commits a breach
1060
described in 18.A.2 through 18.A.8 or a breach described in 18.A.2 through 18.A.8
1061
involving use of any radio or other equipment accessing the BVWACS under the
1062
authority of a BVWACS Party, the Governing Board may suspend the right of that
1063
BVWACS Party to use the BVWACS for that radio or equipment or for any other
1064
radio or equipment for a period of time adequate to cure the breach and determine
1065
whether additional remedies are needed.
1066
18.D. Notice of Breach, Default, and Termination For Other Breaches The
1067
decision to exercise rights granted by this subsection 18.D. shall be made by the
1068
Governing Board. If any BVWACS Party commits a breach described in 18.A.2
1069
through 18.A.8, the Governing Board may deliver a written notice of breach to the
1070
BVWACS Party that specifies the nature of the breach and indicates that unless the
1071
breach is cured within thirty (30) days, additional steps shall be taken. If the
1072
breaching BVWACS Party begins to cure the breach within the thirty (30) day
1073
period, the thirty (30) day cure period is extended as long as the breaching BVWACS
1074
Party continues to prosecute a cure diligently to completion and is making a good
1075
faith effort to cure the breach. If the breaching BVWACS Party does not cure the
1076
breach within thirty (30) days of receiving the written notice of breach or additional
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1077
period as extended by diligent prosecution of a good faith effort to cure the breach,
1078
the breaching BVWACS Party is in default and the Governing Board shall deliver a
1079
written notice of default to the BVWACS Party which specifies the following:
1080
1 S.D.1. The nature of the default;
1081
18.D.2. The date of the notice of breach;
1082
18.D.3. The failure of the breaching BVWACS Party to cure timely; and
1083
18.D.4. The BVWACS Party's interest in the BVWACS is terminated on the
1084
effective date stated in the notice if the termination is approved by all of the
1085
BVWACS Remaining Parties unless the default is cured within thirty (30)
1086
days of the notice of default.
1087
18.E. Disposition of BVWACS Value The Remaining Parties shall determine as to
1088
how the Terminated Party's BVWACS Value shall be disposed. The Remaining
1089
Parties have ninety (90) days after the date that termination is effective to determine
1090
the value and disposition of the Terminated Party's BVWACS Value. The
1091
Remaining Parties may seek an agreement with the Terminated Party about its
1092
BVWACS Value. If the Terminated Party and the Remaining Parties are unable to
1093
agree on the Terminated Party's BVWACS Value, they shall use the method for
1094
determination of value in section 17.C. as if the Terminated Party were a
1095
Withdrawing Party. When the BVWACS Value is determined, the Remaining Parties
1096
shall determine how the ownership of the BVWACS Values is to be disposed. The
1097
Remaining Parties shall consider at least the following ownership alternatives for the
1098
BVWACS Value of the Terminated Party:
1099
18.E.1. New Party Find another entity to compensate the Terminated Party
1100
for its BVWACS Value, assume the ownership of the Terminated Party's
1101
BVWACS Value, and assume its obligations and rights under the BVWACS
1102
Agreement;
1103
18.E.2. Share Value Divide the Terminated Party's BVWACS Value
1104
proportionally among the Remaining Parties so that the Remaining Parties
1105
can each compensate the Terminated Party for their share of the BVWACS
1106
Value and pay a proportional increase in Annual Assessment in the fiscal year
1107
following the fiscal year in which the default last occurred;
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1108 18.E.3. One or More BVWACS Parties Allow one or more Remaining
1109 Parties to compensate the Terminated Party for its BVWACS Value and
1110 assume ownership of the Terminated Party's BVWACS Value with a
1111 corresponding increase in Annual Assessment; or
1112 18.E.4. Ownership without Use Require the Terminated Party to retain the
1113 ownership of its BVWACS Value but forfeit its use of the BVWACS and
1114 representation on the Governing Board and Operating Board and annually
1115 reduce its BVWACS Value by twenty per cent (20 %) of the original
1116 BVWACS Value so that the Terminated Party has no BVWACS Value
1117 remaining after five (5) years and transfer the reduction in value among the
1118 Remaining Parties proportionally based on their participation in the
1119 BVWACS based on participation levels in Exhibit A.
1120 18.F. Exclusion of Terminated Party's Votes The Terminated Party and its vote
1121 on the Governing Board shall be excluded in dete the votes needed for the
1122 BVWACS Remaining Parties to make a decision about the disposition of the
1123 Terminated Party's BVWACS Value after the date that termination is effective.
1124 18.G. Effect of Termination on Representation on Governing Board If the
1125 Terminated Party's BVWACS Value is divided among the Remaining Parties or
1126 assumed by only one or some of the Remaining Parties, the representation of these
1127 BVWACS Parties on the Governing Board shall not be increased.
1128 19. Effect of Withdrawal or Termination on Remaining Parties.
1129 Termination or withdrawal of a BVWACS Party has no effect on a Remaining
1130 Party's rights to participate in the BVWACS other than the specific rights and duties set out
1131 in this Agreement, and the continuing duty of all Remaining Parties to pay their Annual
1132 Assessment.
1133 20. FCC Licenses.
1134 Termination or withdrawal of any Party from the BVWACS shall include the
1135 surrender to the Remaining Parties of that BVWACS Party's radio frequency licenses that
1136 were licensed for the purpose of implementing the BVWACS. The Remaining Parties shall
1137 determine whether to request reassignment of the license to another BVWACS Party or
1138 surrender these licenses to the Federal Communications Commission (FCC). The
1139 Remaining Parties are responsible for complying with all rules and regulations of the FCC
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1140 related to reassignment and surrender of these licenses. Notwithstanding the above, licenses
1141 held, managed and owned by only one or some of the Parties as the exclusive license of such
1142 Party or Parties at the time of termination or withdrawal are not subject to the provisions of
1143 this section.
1144 21. Dispute Resolution Process.
1145 21.A. Cooperation All BVWACS Parties are encouraged to work together to
1146 resolve all disputes prior to invoking the dispute resolution process set forth herein.
1147 21.B. Hearing by Operating Board Any BVWACS Party that has an issue or
1148 dispute relating to the BVWACS may request a hearing before the Operating Board.
1149 The Operating Board shall hear such matter after requesting information regarding
1150 such dispute or issue from such BVWACS Party and from the BVWACS Managing
1151 Entity. The Operating Board shall then hold a hearing and render its decision in
1152 writing.
1153 21.C. Appeal to Governing Board A BVWACS Party that is adversely affected by
1154 the Operating Board's decision may appeal such decision to the Governing Board,
1155 which may elect to hear the appeal or refer the matter to mediation.
1156 21.D. Withdrawal of Dispute A dispute may be withdrawn at any time during the
1157 Dispute Resolution process.
1158 21.E. Timeframes
1159 21.E.1. Initial Dispute Hearing Any BVWACS Party may bring an issue or
1160 dispute to the Chair of the Operating Board. The Chair must schedule a
1161 meeting of the Operating Board within (15) fifteen business days of receipt
1162 of the notice and provide a written determination to the appropriate
1163 BVWACS Parties and to the BVWACS Managing Entity within (5) five
1164 business days after the hearing. Any appeal of the decision or
1165 recommendation of the Operating Board is to the Governing Board.
1166 21.E.2. Appeal to Governing Board Any appeal from the decision of the
1167 Operating Board must be made by delivery of written notice of appeal to the
1168 BVWACS Managing Entity and Governing Board within (15) fifteen
1169 business days after receipt of the Operating Board's decision or
1170 recommendation. The Governing Board may meet to hear the appeal or
1171 may elect to send the appeal to mediation. The Governing Board, assisted by
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1172 the BVWACS Managing Entity, either schedules a hearing or sends the
1173 appeal to mediation within (25) twenty -five business days of receipt of the
1174 notice of the appeal. Any appeal from the Governing Board's
1175 recommendation is to a mediator as described below.
1176 21.E.3. Mediation If the Governing Board refers a dispute to mediation, the
1177 parties to the dispute shall select, within thirty (30) days, a mediator trained in
1178 mediation skills to assist with resolution of the dispute. The parties to the
1179 dispute agree to act in good faith in the selection of the mediator and to give
1180 consideration to qualified individuals nominated to act as mediator. Nothing
1181 in the Agreement prevents the parties from relying on the skills of a person
1182 who is trained in the subject matter of the dispute or a contract interpretation
1183 expert. If the parties fail to agree on a mediator within thirty (30) days after
1184 the Governing Board refers the dispute to mediation, the mediator shall be
1185 selected by the Dispute Resolution Center of the Brazos Valley. The parties
1186 agree to participate in mediation sessions in good faith for a period of up to
1187 thirty (30) days from the date of the first mediation session. Notice of the
1188 date, time, and location of the mediation shall be given to the BVWACS
1189 Managing Entity, which may attend. The parties to the dispute shall share
1190 the costs of mediation equally. If efforts to mediate the dispute are
1191 unsuccessful, the parties to the dispute shall then be free to exercise all
1192 available rights and remedies under this Agreement, or at law or in equity.
1193
21.E.4. Application of Government Code, chapter 2260 To the extent that
1194
Chapter 2260, Texas Government Code, is applicable to this Agreement, is
1195
not inconsistent with the process set forth above, and is not preempted by
1196
other applicable law, the dispute resolution process provided for in Chapter
1197
2260 and the related rules adopted by the Texas Attorney General pursuant
1198
to Chapter 2260, shall be used in disputes involving Texas A & M University
1199
that cannot be resolved in the ordinary course of business. The designated
1200
officers of Texas A & M University, as applicable, shall examine the claim
1201
and any counterclaim and negotiate with the claimant in an effort to resolve
1202
such claims. The BVWACS Parties specifically agree that
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1203 21.E.4.1. Neither the execution of this Agreement by Texas A & M
1204 University nor any other conduct, action or inaction of any
1205 representative of Texas A & M University relating to this Agreement
1206 constitutes or is intended to constitute a waiver of Texas A & M
1207 University's or the state's sovereign immunity to suit; and
1208 21.E.4.2. Texas A & M University has not waived its right to seek
1209 redress in the courts.
1210 22. Miscellaneous.
1211 22.A. Interlocal Agreement This Agreement is an Interlocal Agreement
1212 authorized and governed by the Interlocal Cooperation Act, Chapter 791 of the
1213 Texas Government Code. Each BVWACS Party agrees that in the performance of
1214 its respective obligations as set forth in this Agreement, it is carrying out a duly
1215 authorized governmental function, which it is authorized to perform individually
1216 under the applicable statutes of the State of Texas and /or its charter. Each
1217 BVWACS Party agrees that the compensation to be made to the other BVWACS
1218 Parties as set forth in this Agreement is in an amount intended to fairly compensate
1219 each performing BVWACS Party for the services or functions it provides hereunder,
1220 and is made from current revenues available to the paying BVWACS Party. Where
1221 applicable, this Interlocal Agreement shall be administered in accordance with the
1222 laws applicable to a home -rule municipality.
1223 22.13. Immunity as a Defense No BVWACS Party has agreed to waive any
1224 defense, right, immunity, or other protection under law including any statutory
1225 provision, by entering into this Agreement or otherwise participating in the
1226 BVWACS.
1227 22.C. Retention of Defenses The Parties agree that neither this Agreement nor
1228 the operation or use of the BVWACS by the BVWACS Parties affect, impair, or limit
1229 their respective immunities and limitations of liability to the claims of third parties,
1230 including claims predicated on premises defects.
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1231 22.D. Notices Notices required under this Agreement must be in writing and
1232 delivered personally or sent by certified US Mail, postage prepaid, addressed to such
1233 BVWACS Party at the following respective addresses:
1234
1235
City:
1236
City of Bryan
1237
Attention: City Manager, with a copy to the City Attorney
1238
P. O. Box 1000
1239
Bryan, TX 77805
1240
1241
City:
1242
City of College Station
1243
Attention: City Manager, with a copy to the City Attorney
1244
1101 Texas Avenue
1245
College Station, TX 77840
1246
1247
City:
1248
City of Brenham
1249
Attention: City Manager, with a copy to the City Attorney
1250
200 West Vulcan Street
1251
PO Box 1059
1252
Brenham, TX 77834
1253
1254
County:
1255
Brazos County
1256
Attention: County Judge, with a copy to County Attorney
1257
300 East 26` Street
1258
Suite 114
1259
Bryan, TX 77803
1260
1261
County:
1262
Washington County
1263
Attention: County Judge, with a copy to County Attorney
1264
100 East Main Street
1265
Suite 104
1266
Brenham, TX 77833
1267
1268
Texas A & M University:
1269
Texas A & M University
1270
Attention:Vice President and Associate Provost
1271
For Information Technology
1272
1365 TAMU
1273
College Station, TX 77843 -1365
1274
1275
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1276
All notices so given, are deemed given on the date so delivered or so
1277
deposited in the US Mail. All BVWACS Parties may change their address by sending
1278
written notice of such change to the other Parties in the manner provided for above.
1279
22.E. Assignment This Agreement being based upon the special qualifications of
1280
each BVWACS Party, any assignment or other transfer of this Agreement or any part
1281
hereof without the express consent in writing of the other Parties is void and has no
1282
effect, which consent shall not be unreasonably withheld.
1283
22.F. Entire Agreement The entire agreement among the BVWACS Parties is
1284
contained herein and no change in or modification, termination, or discharge of this
1285
Agreement in any form whatsoever is valid or enforceable unless it is in writing and
1286
signed by duly authorized representatives of all Parties.
1287
22.G. Prior Agreements This Agreement supersedes any and all prior agreements
1288
regarding this subject that may have previously been made. The subject of this
1289
Agreement is the construction, acquisition, implementation, operation and
1290
maintenance of the BVWACS.
1291
22.H. Severability If any term or provision of this Agreement is, to any extent,
1292
rendered invalid or unenforceable, the remainder of this Agreement is not affected,
1293
and each other term and provision of this Agreement remains valid and enforceable
1294
to the fullest extent permitted by law.
1295
22.I. Non - waiver Failure of a BVWACS Party to exercise any right or remedy for
1296
a breach or default of any other BVWACS Party does not waive such right or
1297
remedy for that breach or default or in the event of a subsequent breach or default.
1298
22.J. Authority of Signatories Each BVWACS Party represents to all the other
1299
BVWACS Parties that the representative signing this Agreement on any BVWACS
1300
Party's behalf has been duly authorized by the governing body of that BVWACS
1301
Party in compliance with Texas law.
1302
22.K. Further Assurances Each BVWACS Party agrees to perform all other acts
1303
and execute and deliver all other documents as may be necessary or appropriate to
1304
carry out the intent and purposes of this Agreement.
1305
22.L. Exhibits The Exhibits, which are attached hereto and described below, are
1306
incorporated herein and made a part hereof for all purposes.
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1307
22.M. Counterparts and Multiple Originals. This Agreement is effective as of the
1308
Effective Date set forth in this Agreement. This Agreement may be executed
1309
simultaneously in one or several counterparts, each of which is deemed to be an
1310
original and all of which together constitute one and the same instrument. The
1311
terms of this Agreement become binding upon each BVWACS Party from and after
1312
the time that it is executed by all BVWACS Parties. The counterparts may be signed
1313
in multiple originals to allow each BVWACS Party to have an originally signed
1314
counterpart for each BVWACS Party. The Agreement has been executed in multiple
1315
originals, each having equal force and effect, on behalf of the Parties.
1316
1317
Exhibit List:
1318
Exhibit A — Participation Table
1319
Exhibit B — Initial Phase of the BVWACS
1320
Exhibit C — Service Area map for Initial Phase
1321
Exhibit D — BVWACS Associate Standard Terms and Conditions
1322
Exhibit E — Goals and Objectives
1323
Exhibit F — Monthly, Quarterly, and Annual Evaluation Factors
1324
Exhibit G — Governance, Operation, and Maintenance Flow Chart and
1325
Distribution of Board Membership
1326
Exhibit H — Initial staffing for BVWACS Program
1327
1328
1329
CITY OF BRYAN
1330
1331
1332
By: Date:
1333
1334
1335
CITY OF COLLEGE STATION
1336
1337
1338
By: Date:
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1339
1340
1341
1342
1343
1344
1345
1346
1347
1348
1349
1350
1351
1352
1353
1354
1355
1356
1357
1358
1359
1360
1361
1362
1363
1364
1365
1366
1367
1368
CITY OF BRENHAM
B
BRAZOS COUNTY
wm
WASHINGTON COUNTY
TEXAS A & M UNIVERSITY
i
Page 43
Da
Date:
Date:
Date:
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1369 INTERLOCAL AGREEMENT
1370 FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTATION,
1371 OPERATION AND MAINTENANCE OF
1372 THE WIDE AREA COMMUNICATIONS SYSTEM
1373
1374 Exhibit A — Participation Table
1375
1376
1377
1378 BVWACS Party Participation Level
1379
1380 City of Bryan 22.18%
1381 City of College Station 35.74%
1382 * City of Brenham 4.92%
1383 Brazos County 10.19%
1384 * Washington County 13.81%
1385 Texas A & M University 13.16%
1386
1387 * The City of Brenham and Washington County intend to enter into an interlocal
1388 agreement aggregating their participation and sharing the costs of such combined
1389 participation equally. This shall not affect the rights and duties of the Parties pursuant to
1390 this Agreement.
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1391 INTERLOCAL AGREEMENT
1392 FOR THE CONSTRUCTION, IMPLEMENTATION, OPERATION AND
1393 MAINTENANCE OF
1394 THE WIDE AREA COMMUNICATIONS SYSTEM
1395
1396 Exhibit B - Initial Phase:
1397
1398 Each of the BVWACS parties will contribute existing infrastructure, and real property
1399 currently owned or leased by the parties for the purpose set forth in the Agreement. The
1400 existing infrastructure and real property contributed by each of the parties at the execution
1401 of the Agreement is as follows:
1402
1403 College Station
1404 Access to 325' radio tower, equipment shelter, land (tower & shelter located), existing
1405 equipment and furnishings that will serve the BVWACS system.
1406
1407 Bryan
1408 Access to secure third floor equipment space, including 48 VDC battery plant, generator use,
1409 and tower use rights on a 133 foot communications tower atop the 4 story building located
1410 at 101 regent Street, Bryan, Texas.
1411
1412 Access to a climate- controlled, fenced, equipment shelter, including UPS system and
1413 generator, and use of two conventional 800 MHz repeaters, including their antenna system,
1414 at the City of Bryan water tower located on Luza Street, between 26` Street and 28` Street,
1415 Bryan, Texas.
1416
14 -17 Brenham
1418 Communications existing furnishings (console desks).
1419
1420 Washington County
1421 Access to three rental towers with shelters.
1422
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1423
1424
1425
1426
1427
1428
1429
1430
1431
1432
1433
1434
1435
1436
1437
1438
1439
1440
1441
1442
1443
1444
1445
1446
1447
1448
1449
1450
Brazos County
Access to a climate- controlled, fenced, equipment shelter on real property located at 21550
Kathy Fleming Road, Millican, Texas, in south Brazos County.
Texas A &M University
Access to a 320 foot tower located at Hensel Park for installation of the radio antennas and
cable.
Space in the TAMU radio transmission facility for up to six 19" floor mount racks.
Air conditioning and AC power (supported both by UPS and generator) for RF transmission
systems.
24x7 access to the radio facility via University issued keyless entry access cards for approved
personnel.
Environmental monitoring of facility by TAMU Network Operations Center on a 24x7
basis. The monitoring will include security cameras, temperature and humidity alarms,
power interruption alarms and high water alarms.
Phase I - Public Safety Interoperability Communications (PSIC) grant
Phase I will provide the necessary equipment and racks (consisting of base radios, site
controller and radio frequency distribution system), antennas and associated wiring located at
each of seven sites. Phase I will also provide operator consoles replacement /upgrade for the
parties. Estimated costs are anticipated to be paid primarily from PSIC grant funds.
Table 1: Phase I
Item /Site
Description
Network Connectivity
Leased connectivity to connect all the sites together
Bryan /Brazos County Site
Includes 700/800 MHz Multicast Base equipment
with racks 6 chls , Xmit & Rcv antennnas and coax
College Station Site
Includes 700/800 MHz Multicast Base equipment
with racks 12 chls , Xmit & Rcv antennnas and coax
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College Station Console
Sys
As shown in Table 2 below. - 6 operator positions
Bryan /Brazos county
Console Sys
Convert existing system to P25
Millican
Includes 700/800 MHz Multicast Base equipment
with racks 6 chis , Xmit & Rcv antennnas and coax
Hensel Park Site
Includes 700/800 MHz Multicast Base equipment
with racks 6 chis , Xmit & Rcv antennnas and coax
TAMU Console Equip
Convert existing system to P25
LCRA - Site
Includes 700/800 MHz Multicast Base equipment
with racks 6 chis , Xmit & Rcv antennnas and coax
Brenham Site
Includes 700/800 MHz Multicast Base equipment
with racks 6 chis , Xmit & Rcv antennnas and coax
Burton Site
Includes 700/800 MHz Multicast Base equipment
with racks 6 chis , Xmit & Rcv antennnas and coax
Brenham Emerg Comms
Console Sys
As shown in Table 2 below. - 4 operator positions
Management Reserve
Includes structural analysis of all towers and project
reserves.
1451
1452 Estimated console equipment to be installed at College Station and the City of Brenham is
1453 shown in Table 2.
1454 Table 2: Console Equipment
Console Sys Equipment
IP Based console sys
Console site router
Auxiliary 1/0 Server
Site Controller
Conventional Channel Gateway
LAN Switch
Operator Position Equip: PC, Mouse,
Speakers, Mic, Keyboard
IP Based Logging Sys: Archiving
Interface Server, Digital Logging
Server, Digital Logging Recorder,
Logging Playback Station
7001800 MHz P25 Trunked B/U
Stations
Remote Control - Multimode
Antenna System
Lightening Protection
UPS
1455
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1456
1457
1458
1459
1460
1461
1462
Milam
F --
ftt iszrri
N
1463
INTERLOCAL AGREEMENT
FOR THE CONSTRUCTION, IMPLEMENTATION, OPERATION AND
MAINTENANCE OF
THE WIDE AREA COMMUNICATIONS SYSTEM
Exhibit C - Service Area:
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1464
1465 INTERLOCAL AGREEMENT
1466 FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTATION,
1467 OPERATION AND MAINTENANCE OF
1468 THE WIDE AREA COMMUNICATIONS SYSTEM
1469
1470
1471 Exhibit D -- BVWACS Associate Standard Terms and Conditions
1472
1473 When using the Brazos Valley Wide Area Communications System ( "BVWACS "), BVWACS
1474 Associate shall abide by all policies, procedures and guidelines established by the BVWACS
1475 Operating Board, the BVWACS Governing Board, and the terms and conditions of this
1476 BVWACS Associate Interlocal Cooperation Agreement
1477
1478 BVWACS Associate shall use the BVWACS in a manner consistent with the Standard
1479 Operating Procedures established by the BVWACS Operating Board and in compliance with
1480 applicable Federal Communications Commission ( "FCC ") regulations and rules.
1481
1482 BVWACS Associate is encouraged to use and improve the interoperation capabilities of the
1483 BVWACS and to provide input to the BVWACS Managing Entity on the day -to -day
1484 operations of the BVWACS and development of BVWACS standard operating policies and
1485 procedures.
1486
1487 BVWACS Associate shall utilize its sponsoring BVWACS Party as its primary point of
1488 contact for requests for BVWACS Improvements.
1489
1490 BVWACS Associate shall utilize the BVWACS Managing Entity as its primary point of
1491 contact when dealing with problems, or to answer questions. BVWACS Associate shall
1492 work in good faith with the BVWACS Managing Entity to help resolve problems.
1493
1494
1495 BVWACS Associate shall purchase and provide its own subscriber radios and equipment to
1496 be used on the BVWACS. The selection and specifications for these radios and equipment
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1497 must be coordinated with the BVWACS Managing Entity so that all radios and equipment
1498 purchased are compatible with the BVWACS.
1499
1500 BVWACS Associate shall ensure that programming for its subscriber equipment that uses
1501 the BVWACS is consistent with the Standard Operating Procedures established by the
1502 BVWACS Operating Board.
1503
1504 BVWACS Associate has no right to use the BVWACS if the BVWACS Party entering into
1505 this BVWACS Associate Interlocal Cooperation Agreement with it is no longer eligible to
1506 use the BVWACS.
1507
1508 BVWACS Associate is subject to any limitations or restraints on its usage of BVWACS that
1509 apply to the BVWACS Party entering into this BVWACS Associate Interlocal Cooperation
1510 Agreement.
1511
1512 The current term of this BVWACS Associate Interlocal Cooperation Agreement shall not
1513 exceed the current term of the Interlocal Agreement for Construction, Acquisition,
1514 Implementation, Operations and Maintenance of a Wide Area Communications System.
1515
1516 BVWACS Associate may be subject to immediate suspension of this BVWACS Associate
1517 Interlocal Agreement for violation of FCC rules and regulations, individual or repeated
1518 violations of the BVWACS Standard Operating Procedures, or use of the BVWACS that is
1519 determined to be inappropriate by the Governing Board.
1520
1521 Upon thirty (30) days written notice that specifies the existence and nature of the default, the
1522 BVWACS Party sponsoring the BVWACS Associate may automatically terminate the
1523 participation of BVWACS Associate. Default results from failure to comply with the
1524 BVWACS Associate Interlocal Cooperation Agreement, including:
1525 1. Violation of FCC rules and regulations;
1526 2. Individual or repeated violations of the BVWACS Standard Operating Procedures;
1527 or
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1528 3. Use of the BVWACS that is determined to be inappropriate by the Governing
1529 Board.
1530 BVWACS Associate may avoid termination if the default is cured within thirty (30) days. If
1531 the BVWACS Associate begins to cure the default within the thirty (30) day period, the time
1532 to cure may be extended, at the sole discretion of the sponsoring BVWACS Party, for as
1533 long as the BVWACS Associate diligently continues to work toward completion of the cure.
1534
1535 BVWACS Associate shall ensure that the persons it authorizes to use its radios and
1536 equipment are trained in the proper use and etiquette for two -way radio communication.
1537
1538 BVWACS Associate shall reimburse the BVWACS Party that is the holder of an FCC license
1539 if there is any actual or alleged violation of any FCC rule or regulation as a result of any
1540 radios or equipment that is owned by BVWACS Associate or used by any person associated
1541 with BVWACS Associate for all costs arising from the actual or alleged violation, including
1542 costs and attorneys fees for defense against the allegation as well as fines and penalties
1543 incurred.
1544
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1545 INTERLOCAL AGREEMENT
1546 FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTAITON,
1547 OPERATION AND MAINTENANCE OF
1548 THE WIDE AREA COMMUNICATIONS SYSTEM
1549
1550
1551 Exhibit E — Goals and Objectives
1552
1553 GOALS
1554
1555 The goal of the Brazos Valley Wide Area Communications System is to provide voice radio
1556 and ultimately data transmission coverage and radio communication interoperability
1557 throughout the Service Area utilizing Infrastructure and Improvements currently provided
1558 by the Parties as well as new Infrastructure and Improvements in accordance with this
1559 Agreement.
1560
1561 OBJECTIVES
1562
1563 1. The Brazos Valley Wide Area Communications System shall maintain an appropriate
1564 reserve capacity system usage based on the determination of the Governing Board.
1565 2. The Brazos Valley Wide Area Communications System shall strive to maintain
1566 coverage at or above 95% reliability for a portable radio worn on the hip with a speaker
1567 collar microphone inside a —10db loss building within the Service Area.
1568 3. To the extent practicable, the Brazos Valley Wide Area Communications System
1569 shall maintain interoperability with other public safety and governmental radio systems
1570 within the Service Area, the Brazos Valley Council of Governments area, regionally,
1571 statewide, and nationally.
1572 4. The Brazos Valley Wide Area Communications System shall maintain the
1573 performance and equipment of the BVWACS at a standard consistent with the
1574 developments in technology and the needs of the BVWACS Parties.
1575 5. The Brazos Valley Wide Area Communications System shall research and pursue
1576 opportunities for assistance for funding the BVWACS through grants and other means.
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1577
INTERLOCAL AGREEMENT
1578 FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTATION,
1579 OPERATION AND MAINTENANCE OF
1580 THE WIDE AREA COMMUNICATIONS SYSTEM
1581
1582
1583 Exhibit F — Monthly, Quarterly and Annual Evaluation Factors
1584
1585
1586 Maintain system reserve capacity at or above the level approved by the Governing Board.
1587
1588 Maintain coverage at RFD's coverage specifications.
1589
1590 Report number of minutes of BVWACS non - normal operation.
1591
1592 Report number of system busies.
1593
1594 Report BVWACS Support Vendor response time to system problems.
1595
1596 Develop shared Staff performance measures.
1597
1598 Report peak Busy Hour for each month.
1599
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1600 INTERLOCAL AGREEMENT
1601 FOR THE CONSTRCTION, IMPLEMENTATION, OPERATION AND
1602 MAINTENANCE OF
1603 THE WIDE AREA COMMUNICATIONS SYSTEM
1604
1605 Exhibit G- Governance, Operation, and Maintenance Flow Chart
1606 and Distribution of Board Membership
BVWACS Governing Board
Bryan's Mayor, or delegate
College Station's Mayor or delegate
Brenham's Mayor or delegate
Brazos County's Judge or delegate
Washington County's Judge or delegate
Texas A & M's , Vice President and Associate
Provost for Information Technology, or delegate
BVWACS Operating Board
Bryan - 1 Member, 1 Alternate
College Station - 1 Member, 1 Alternate
Brenham - 1 Member, 1 Alternate
Brazos County - 1 Member, 1 Alternate
Washington County- 1 Member, 1 Alternate
Texas A & M University — 1 Member, 1 Alternate
BVWACS Managing
Entity
Brazos Valley Council of
Governments
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1607
INTERLOCAL AGREEMENT
1608 FOR THE CONSTRUCTION, ACQUISITION, IMPLEMENTATION,
1609 OPERATION AND MAINTENANCE OF
1610 THE WIDE AREA COMMUNICATIONS SYSTEM
1611
1612 Exhibit H — Staffing for BVWACS Program for FY 200_
1613
1614 Radio System Manager (100 %)
1615
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