HomeMy WebLinkAboutC-8872-1 - License Agreement for Detainee telephone SystemN
r LICENSE AGREEMENT BY AND BETWEEN THE CITY OF NEWPORT
Io BEACH AND NETWORK COMMUNICATIONS INTERNATIONAL CORP.
O40 FOR DETAINEE TELEPHONE SYSTEM
U This LICENSE AGREEMENT ("Agreement") is entered into this 1st day of May,
2022 ("Effective Date") by and between the City of Newport Beach, a California municipal
corporation and charter city ("Licensor" or "City"), and NETWORK COMMUNICATIONS
INTERNATIONAL CORP., a California corporation ("Licensee"), whose address is 607
East Whaley Street, Longview, Texas 75601, individually referred to as "Party" or
collectively as "Parties."
RECITALS
A. Licensor is a municipal corporation duly organized and validly existing under the
laws of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the charter of the
City.
B. Licensor is the owner of the following facilities: Newport Beach Police Department,
870 Santa Barbara Drive, Newport Beach, California ("Facilities").
C. The Facilities contain a jail equipped with a telephone system for use by inmates,
detainees, or other persons resident of the jail ("Detainees"), and Licensor has
determined it would be of benefit to enter into an agreement to upgrade the current
telephone system and terms of use.
D. Licensee desires to install and operate a telephone system for use by Detainees
and Licensor agrees to license such use in designated areas at the Facilities on
the terms and conditions contained herein.
E. Pursuant to City Council Policy F-7, Licensor conducted an open bid process and
published a Request for Proposals. After a careful evaluation process, Licensor
selected Licensee as the provider of the Detainee telephone system.
IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN,
the Parties agree as follows:
1. Use of Designated Premises.
1.1 License. Licensor hereby issues a revocable, non-exclusive, non -
assignable license to Licensee to use those areas designated by Licensor, in its sole and
absolute discretion, at the Facilities ("Premises"), upon the terms and conditions of this
Agreement, for the purpose of installing, operating and maintaining a telephone system
for use by Detainees, as described in the Scope of Services, attached hereto as Exhibit
"A" and incorporated herein ("Telephone System").
1.2 Condition of Premises. Licensee agrees that the Premises shall be made
available for the designated use by Licensee in its "as is" condition.
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1.3 No Real Property Interest. No grant of an easement, lease, or other interest
in land is intended by this Agreement.
1.4 Policies and Procedures. Licensor reserves to itself sole authority to
establish policies and procedures governing use of the Facilities and Premises, with
which Licensee, its employees, representatives, volunteers, invitees and agents shall
comply.
1.5 Hold Over. Nothing herein shall be construed to give Licensee any right to
hold over or to continue use of the Premises after the expiration or termination of this
Agreement. Notwithstanding the foregoing, in the event that Licensee holds over and
continues operation of the Telephone System on the Premises beyond the expiration or
termination of this Agreement, any such hold over shall be subject to the terms of this
Agreement.
2. Term and Termination.
2.1 Term. Initial term of this Agreement shall commence on the Effective Date
and shall expire April 30, 2027, unless terminated earlier as set forth herein.
2.2 Termination. Notwithstanding any provision of this Agreement, Licensor
shall have the right to terminate this Agreement at any time in its sole and absolute
discretion, for any reason, upon prior written notice to Licensee.
3. Consideration.
3.1 Compensation. In exchange for use of the Premises for operation of the
Telephone System, Licensee agrees to pay Licensor ten percent (10%) of all gross
revenue generated by the Telephone System on the Premises, in accordance with the
Schedule of Billing, attached hereto as Exhibit "B" and incorporated herein
("Commission"). The Commission shall be due and paid monthly on the first day of each
month based on the gross revenue generated the immediately preceding month.
3.2 Payment Details. All payments shall be made in lawful money of the United
States of America and shall be paid to Licensor in person, or by United States' mail or
overnight service, at the Cashier's Office located at 100 Civic Center Drive, Newport
Beach, California, 92660, or to such other address as Licensor may designate from time
to time in writing to Licensee. If requested by Licensor, Licensee shall make payments
electronically (at www.newportbeachca.gov) or by wire transfer at Licensee's cost.
Licensee assumes all risk of loss and responsibility for late charges and delinquency rates
if payments are not timely received by Licensor regardless of the method of transmittal.
3.3 Late Fee and Interest. The Parties agree that the late payment of any sums
due to Licensor pursuant to this Agreement will cause Licensor to incur costs and
expenses that are difficult to ascertain, including but not limited to, accounting, processing
and other such costs. Accordingly, any payment of any sum to be paid by Licensee
pursuant to this Agreement which is not received by Licensor within five (5) calendar days
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of its due date shall be subject to a ten percent (10%) late charge, plus interest on the
amount due at the rate of ten percent (10%) per annum from the date due until the same
shall be paid. Licensor and Licensee agree that this late charge and interest represent a
reasonable estimate of the costs and expenses suffered by Licensor and is fair
compensation therefor.
3.4 Production of Statement, Records and Audit. Licensee shall keep full,
complete and proper books, records and accounts of its daily transactions at the
Premises. Upon Licensor's written request, Licensee agrees to make these books,
records and accounts available for inspection by Licensor, along with all supporting
records ("Records"), at Licensee's notice address listed herein or at another address
within Orange County, California designated by Licensee. Alternatively, Licensee may
bring the Records to the Licensor's notice address listed herein. Licensee shall retain and
preserve for at least five (5) years all Records, including but not limited to, books,
bankbooks or duplicate deposit books and other evidence of monthly transaction details
from transactions at the Premises. Licensor may at any time during the Term and within
one hundred eighty (180) calendar days after expiration or Termination of this Agreement
inspect and complete an audit of Licensee's books and records and to make transcripts
to verify compliance with the terms of this Agreement. The audit may be conducted at any
reasonable time during normal business hours. Licensee shall cooperate with Licensor in
making the inspection and conducting the audit. The audit shall be limited to the
determination of compliance with the terms of this Agreement and shall be conducted
during usual business hours in a manner that minimizes any interference with the conduct
of Licensee's regular business operations. Licensor shall bear its costs of the audit unless
the audit shows that Licensee was in breach of this Agreement, in which case Licensee
shall pay all Licensor's actual and reasonable costs of the audit.
4. Conditions of Use.
4.1 Use of Premises. The Premises may only be used by Licensee for the
installation, operation, maintenance, repair and servicing of the Telephone System.
Licensee shall make no other use of the Premises without the prior written consent of
Licensor.
4.1 Due Care. Licensee shall operate and manage the Premises in a manner
comparable to other high quality businesses providing similar services.
4.2 Responsibility. Licensee shall be solely responsible for all administration
and operation of the Telephone System, including but not limited to, bookkeeping, taxes,
procurement and shipment of inventory, management, operations, collecting and
handling all monies, receiving and signing for the delivery of goods, installation,
maintenance, securing permits or other necessary approvals, and any and all other
aspects of operation.
4.3 Prohibited Uses. Licensee shall not use or permit the use of the Telephone
System or the Premises in any manner that: (a) creates a nuisance, (b) creates a potential
fire hazard, (c) violates any city, state, federal or other jurisdictional agency's law or
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regulation, or (d) promotes, directly or indirectly, any political party, political candidate, or
political activity.
4.4 Personnel. Licensee shall be responsible for hiring the necessary personnel
to conduct the operation and maintenance of the Telephone System. Licensee shall
comply with all federal, state, local and other jurisdictional agency's laws related to the
employment of workers, including but not limited to, minimum wage, social security,
nondiscrimination, ADA, unemployment compensation, and workers' compensation. If
required by the Licensor, Licensee's employees shall wear an identification badge while
at the Facilities.
4.5 Background Checks. Licensee's personnel, and Licensee's contractors and
subcontractors, who shall be present at the Facilities at any time must submit to and pass
a criminal background investigation by providing a complete set of fingerprints to the
Newport Beach Police Department prior to being present at the Facilities pursuant to this
Agreement. Licensee shall pay any fees for criminal background investigations according
to the applicable fee schedule or successor document. Fingerprints may be required to
be updated every five (5) years.
4.6 Independent Contractor. It is understood that Licensee is an independent
contractor and not an agent or employee of Licensor. The manner and means of operating
the Telephone System are under the control of Licensee, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Licensee's employees.
Nothing in this Agreement shall be deemed to constitute approval for Licensee or any of
Licensee's employees or agents, to be the agents or employees of Licensor. Licensee
shall have the responsibility for and control over the means of operating the Telephone
System, provided that Licensee is in compliance with the terms of this Agreement.
Licensor shall have no interest in the business of Licensee.
4.7 Other Operations. Licensee shall coordinate use of the Premises to avoid
conflict with any other activities that may be in operation at the Premises or within the
Facilities during the term of this Agreement. Licensee shall not interfere with other
businesses or activities currently operating at the Facilities.
4.8 Entry by Licensor. Licensor and its authorized representative(s) may
inspect the Premises during normal business hours for any lawful purpose. In case of
emergency, Licensor or its authorized representative(s) may, without prior notice, enter
the Premises by whatever force reasonably necessary. Any entry to the Premises by
Licensor under this Agreement shall not be construed as a forcible or unlawful entry into,
or a detainer of, the Premises, or an eviction of Licensee from the Premises or any portion
thereof. Any damage caused to the Premises pursuant to this Section by the Licensor
shall be repaired or replaced by Licensor at Licensor's sole expense.
4.9 Interruptions of Use. Licensor shall have the right to temporarily shut off
utilities to the Premises, or to close the Premises or Facilities for maintenance, operational
purposes, health and safety, emergencies, or other reason Licensor determines is
necessary or convenient. Licensor shall use best efforts to provide advance notice to
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Licensee prior to any such shut off or closure. Licensor shall not be in default of this
Agreement and shall not be liable to Licensee or any other party for any interference with
operation of the Telephone System occasioned by such shut off or closure.
4.10 Payment of Obligations. Licensee shall promptly pay, when due, all bills,
debts, liabilities and obligations incurred by Licensee arising out of or in connection with
operation of the Telephone System and Licensee's occupation and use of the Premises.
5. Installation and Maintenance.
5.1 Installation. Licensee, at Licensee's sole cost, shall be responsible for the
transport, delivery, setup and complete installation of the Telephone System at the
Premises. Licensee shall not physically alter or perform construction upon the Premises
or Facilities without the prior written approval of Licensor. Installation shall be completed
in a manner consistent with the quality, design and aesthetics as approved by Licensor.
5.2 Fixture, Equipment and Furnishings. Licensee shall furnish all fixtures,
equipment, and furnishings for operation of the Telephone System subject to Licensor
approval. Fixtures, equipment, and furnishings may include, but are not necessarily
limited to, electrical, telephone, data, and security cabling and equipment to the Premises
("Licensee Improvements").
5.3 Maintenance. Licensee shall diligently maintain and repair the Telephone
System and Licensee Improvements at Licensee's sole cost and expense.
5.4 Ownership. Telephone System and all of Licensee's trade fixtures and
personal property shall be and at all times remain the property of Licensee. Licensee shall
retain ownership of all equipment on the Premises.
5.5 Access to Premises. Licensee may access the Premises for installation,
maintenance, or other lawful purposes by coordinating access with the Licensor's
Representative in advance. Licensor reserves the right to delay, suspend, or deny
Licensee's access to the Premises at any time.
5.6 Subcontractors and Agents. nts. Any and all of Licensee's contractors and
subcontractors shall be fully licensed and bonded. Licensee's contractors and
subcontractors shall obtain insurance in an amount and form to be approved by Licensor's
Risk Manager, including but not limited to, workers compensation insurance as required
by law, general liability, automobile liability and builder's risk insurance covering
improvements to be constructed. Licensor, its elected or appointed officers, agents,
officials, employees, volunteers, and any person or entity owning or otherwise in legal
control of the Facilities shall be named as an additional insured on the contractor's and
any subcontractor's policies.
5.7 Failure to Maintain. Licensor may perform maintenance or repairs in the
event Licensee fails to commence required maintenance or repairs within three (3) days
of written notice from Licensor requesting such maintenance or repairs, and the failure to
commence maintenance repairs is not caused by Licensor. The cost of any such
maintenance or repairs performed by the Licensor pursuant to this Section shall be
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reimbursed by Licensee to Licensor promptly following written notice and demand from
Licensor to Licensee.
6. Operation of Telephone System.
Licensee shall use its best efforts to operate the Telephone System on a twenty-
four (24) hour basis. Licensee shall have the right, upon thirty (30) days' prior written
notice to the Licensor, to suspend operation of any Telephone System for periodic
maintenance inspections, adjustments, servicing operations or other maintenance
purposes. Licensor acknowledges that despite Licensee's best efforts, the Telephone
System may be rendered inoperative for reasonable periods of time due to breakdowns,
operations failures or other reasons. Licensee may engage an independent contractor to
perform Licensee's maintenance obligations hereunder in accordance with the terms of
this Agreement.
7. Removal of Telephone System.
Upon the expiration or termination of this Agreement, Licensee shall remove the
Telephone System and other trade fixtures and personal property from the Premises, and
restore the Premises to its original condition, at Licensee's sole cost and expense.
Licensee shall repair any damage to the Premises caused by such removal at Licensee's
sole cost and expense. Such removal shall occur not more than seven (7) calendar days
after the expiration or other termination of this Agreement. If the Telephone System, or
other trade fixtures and personal property are not removed from the Premises by this
time, and the failure to timely remove is not attributable to the Licensor, then Licensor
shall have the right to take ownership of, or dispose of, such items in such manner as it
may deem fit and to charge Licensee for the reasonable costs incurred therewith, which
reasonable costs Licensee shall pay promptly following written notice and demand.
8. Maintenance of Premises.
By taking possession of the Premises, Licensee shall be deemed to have accepted
the Premises as being in good and sanitary order, condition and repair. Licensee shall,
at all times during the term of this Agreement and any renewal or extension hereof,
maintain the Premises in a clean and orderly condition at Licensee's sole cost and
expense, and shall, upon termination of this Agreement, surrender the Premises to
Licensor in a clean, safe and orderly condition. Licensor shall maintain the other
improvements located on the Facilities, including without limitation the parking lot.
9. Alterations, Additions and Improvements.
Licensee shall not make any alterations, additions, or improvements to the
Premises without obtaining the prior written consent of Licensor. Should Licensor consent
to the making of any such alterations, additions, or improvements by Licensee, such
alterations, additions, or improvements shall be made at the sole cost and expense of
Licensee by a contractor or other person selected by Licensee and approved in writing
by Licensor before the work commences. All alterations must be constructed: (a) in a
good and workmanlike manner using materials of a quality comparable to those on the
Premises; (b) in conformance with all relevant codes, regulations, and ordinance; and (c)
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only after necessary permits, licenses, and approvals have been obtained by Licensee
from appropriate governmental agencies. All alterations must be diligently prosecuted to
completion. Except as provided otherwise in this Agreement, any and all alterations,
additions, or improvements shall on termination of this Agreement shall become the
property of Licensor and shall remain part of the Premises.
10. Services and Utilities.
Licensor shall provide, at no cost to Licensee, the Telephone System with
electricity, and access to existing telecommunication lines, data lines, and other utilities
appropriate for the use of the Premises for operation of the Telephone System.
11. Security and Safety.
Licensee shall be solely responsible for all security with respect to the operation of
the Telephone System. All installation and construction by Licensee on the Premises shall
be in conformity with all applicable building and zoning codes, and shall conform to the
safety requirements and any other applicable governmental law.
12. Taxes.
Licensee understands that this Agreement may create a possessory interest and
shall pay directly to the appropriate taxing authorities all taxes applicable under this
Agreement, including but not limited to any real estate tax, levy or assessment on the
Premises. Licensee shall pay before delinquency: (i) all taxes assessed by any taxing
authority which are attributable to Licensee's operations at the Telephone System, (ii) all
personal property taxes assessed on Licensee's fixtures, equipment and machinery, and
(iii) any possessory interest tax, levied pursuant to California Revenue and Taxation Code
Section 107 et seq., which Licensor has advised Licensee may be assessed based on
applicable law.
13. Damage or Destruction.
Should the Telephone System be destroyed by any cause not due to the negligent
or willful act of Licensor, Licensee shall, at its own cost and expense, promptly repair or
replace the same.
14. Assignment and Subletting.
Licensee shall not assign, sublease or otherwise transfer all or any part of this
Agreement without the prior written consent of Licensor.
15. Insurance.
Without limiting Licensee's indemnification of Licensor, Licensee shall obtain,
provide and maintain at its own expense during the Term of this Agreement, a policy or
policies of insurance of the type, amounts and form acceptable to Licensor. The policy
or policies shall provide, at a minimum, those items described in Exhibit "C" attached
hereto and incorporated herein by this reference.
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16. Default.
16.1 The occurrence of any one (1) or more of the following events shall
constitute an event of default under this Agreement:
16. 1.1 The Telephone System is not operational for more than an aggregate
of thirty (30) days in any twelve (12) calendar month period for any reason not
attributable to the Licensor.
16.1.2 The Telephone System is not operational for more than three (3)
consecutive days for any reason not attributable to the Licensor.
16.1.3 The failure by Licensee to observe or perform any of the covenants,
conditions or other provisions of this Agreement where such failure shall continue
for a period of seven (7) calendar days after written notice from the Licensor
thereof.
16.1.4 The making by Licensee of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against Licensee of a
petition to have Licensee adjudged a bankrupt, or a petition for reorganization or
arrangement under any law relating to bankruptcy, unless, in the case of a petition
filed against Licensee, the same is dismissed within sixty (60) calendar days; or
the appointment of a trustee or a receiver to take possession of, or the attachment,
execution or other seizure of substantially all of Licensee's assets located at
Premises, or of Licensee's interest in this Agreement, where such possessions,
attachment, execution or other seizure is not restored to Licensee within thirty (30)
calendar days.
17. Remedies on Default.
17.1 In the event of any default by Licensee, in addition to any other remedies
available to the Licensor at law or in equity, the Licensor may:
17.1.1 Continue this Agreement in effect and enforce all rights and remedies
under this Agreement; or
17.1.2 Immediately terminate this Agreement by providing written notice to
Licensee and recover from Licensee any amount necessary to compensate
Licensor for any and all detriment negligently or willfully caused by Licensee's
failure to perform its obligations under this Agreement.
18. Control of Telephone System.
Licensor acknowledges that the operation of the Telephone System shall be
governed by the policies and procedures developed or to be developed by Licensee from
time to time which shall be consistent with all applicable law and the terms of this
Agreement. Except as expressly set forth herein to the contrary, Licensee shall have the
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sole and exclusive right to control and manage the Telephone System, the operation and
maintenance thereof, and all business and transactions conducted thereby, including
without limitation, the functions and features provided, the development of products, and
the provision of services.
19. Parties Representatives.
19.1 Licensee shall designate in writing to Licensor who shall be responsible for
the day-to-day operation, maintenance, cleanliness, and general order of the Telephone
System.
19.2 The Licensor's Custody Supervisor, or his or her designee, shall represent
Licensor in all matters so assigned under this Agreement and shall be responsible for the
administration of this Agreement ("Licensor's Representative"). Nothing contained in this
section shall be construed to authorize Licensor's Representative to amend, cancel,
waive, or otherwise modify any terms of this Agreement, except to the extent such
changes or modifications are expressly authorized by this Agreement.
20. Notices.
Any notice required or permitted by this Agreement to be provided to either Party
hereto by the other Party hereto shall be in writing and shall be deemed duly provided
when personally delivered to the Party to which it is directed or, in lieu of such personal
delivery, three (3) days after deposit in the United States mail, sent certified mail with first-
class postage prepaid, and addressed as follows:
If to Licensor:
Attn: Tim Stewart
Police Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
If to Licensee:
Attn: William L. Pope
Network Communications International Corp.
607 East Whaley Street
Longview, TX 75601
Either Party hereto may, by written notice to the other Party hereto, specify a
different address for notice purposes.
21. Indemnification.
21.1 In addition to any other indemnity provided for in this Agreement, and
notwithstanding any other provisions of this Agreement to the contrary, Licensee shall
indemnify, defend and hold harmless Licensor, its elected officials, officers, employees,
agents, attorneys, volunteers and representatives from and against all claims, demands,
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obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties,
liabilities, costs and expenses (including, without limitation, attorney's fees,
disbursements and court costs) of every kind that may arise from or in any manner relate
to (directly or indirectly): (i) Licensee's rights, obligations, acts or omissions under this
Agreement, (ii) Licensee or its employees, contractors, subcontractors, guests,
volunteers, invitees, sublicensees, or other agents ("Licensee Parties") use of the
Premises or Telephone System, and (iii) Licensee Parties negligence or willful
misconduct (individually, each a "Claim" and, collectively, "Claims"). The indemnification
in this Section specifically includes, without limitation, all Claims arising by reason of:
21.1.1 The death or injury of any person or damage to real or personal property
caused or allegedly caused by the Telephone System, the goods associated
therewith, condition of the Premises, Licensee Improvements, or an act or
omission of Licensee Parties;
21.1.2 Any work performed on the Premises, Licensee Improvements, or materials
furnished in connection therewith, by or at the request of Licensee or Licensee
Parties, with the exception of maintenance performed by Licensor; and/or
21.1.3 Licensee's failure to perform any provision of this Agreement or to comply
with any requirement of law or any requirement imposed on the Premises or
Telephone System by any duly authorized governmental agency or political
subdivision.
21.2 Licensee's obligations in this Section (or any other provision providing
indemnity in this Agreement) shall not extend to the degree any Claim is caused by the
sole negligence or willful misconduct of Licensor.
21.3 This indemnification provision and any other indemnification or insurance
requirements provided elsewhere in this Agreement shall survive the termination of this
Agreement and shall survive for the entire time that any third party can make a Claim.
Policy limits, exclusions, or lack of coverage shall not operate to limit or reduce the
application or extent of Licensee's indemnity obligations under this Agreement.
22. Loss or Damage.
In the event the Premises are rendered partially or wholly unusable due to fire or
other casualty, Licensor may elect to require that the Licensee pay to Licensor the
proceeds of any insurance which may become payable to the Licensee by reason thereof,
or to permit such proceeds to be used for the restoration of any damage done, by an
amount equal to the diminution in value of the Facilities by reason of such loss or damage
or the amount of insurance payable to the Licensee, whichever is greater.
23. Compliance with Laws; ADA.
Each Party represents and warrants that it shall obey and conform at its sole cost
and expense and in every manner of its business related to this Agreement to all federal,
state and local laws, regulations and directives. Licensor shall be responsible for any
repairs, improvements, or upgrades to the Facilities required to comply with the provisions
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of the Americans with Disabilities Act ("ADA"); however, Licensee shall be solely
responsible for any repairs, improvements, or upgrades to the Telephone System
required to comply with the provisions of the ADA. Any breach of said warranty and
representation or claim of breach shall be the sole responsibility of the breaching Party
and the breaching Party will hold the non -breaching Party completely safe and harmless
for said breach or claim of breach.
24. Prevailing Wages.
Pursuant to the applicable provisions of the Labor Code of the State of California,
not less than the general prevailing rate of per diem wages including legal holidays and
overtime work for each craft or type of workman needed to execute the work contemplated
under this Agreement shall be paid to all workmen employed on the work to be done
according to the contract by Licensee and any subcontractor. In accordance with the
California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has
ascertained the general prevailing rate of per diem wages in the locality in which the work
is to be performed for each craft, classification, or type of workman or mechanic needed
to execute the contract. A copy of said determination is available by calling the prevailing
wage hotline number (415) 703-4774, and requesting one from the Department of
Industrial Relations. Licensee is required to obtain the wage determinations from the
Department of Industrial Relations and post at the job site the prevailing rate or per diem
wages. It shall be the obligation of Licensee or any subcontractor under him/her to comply
with all State of California labor laws, rules and regulations and the parties agree that
Licensor shall not be liable for any violation thereof.
25. General Provisions.
25.1 Recitals. Licensor and Licensee acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
25.2 Force Majeure. The performance of both Parties shall be excused during
the period, and to the extent, that performance by either Party is rendered impossible,
impracticable or unduly burdensome due to force majeure. The term "force majeure" shall
mean acts of God, strikes, lockouts, or labor difficulty; unavailability of parts, equipment
or materials through normal supply sources; or the failure of any utility to supply its
services for reasons beyond the control of the Party whose performance is to be excused.
25.3 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective heirs, personal representatives,
successors and assigns.
25.4 No Third Party Rights. The Parties do intend to create in or grant remedies
to, any third party as a beneficiary of this Agreement, or of any duty, covenant, obligation
or undertaking established herein.
25.5 No Attorneys' Fees. In any action between the Parties to interpret, enforce,
award, modify or rescind any of the terms or provisions of this Agreement, or any action
otherwise commenced or taken in connection with this Agreement, each Party shall be
responsible for its own respective costs and attorneys' fees.
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25.6 Jurisdiction and Venue. This Agreement shall be construed under the laws
of the State of California in effect at the time of the signing of this Agreement. The Parties
consent to the jurisdiction of the California courts with venue in County of Orange.
25.7 Titles and Captions. Titles and captions are for convenience of reference
only and do not define, describe or limit the scope or the intent of this Agreement or of
any of its terms. Reference to section numbers are to sections in this Agreement, unless
expressly stated otherwise.
25.8 Interpretation. The terms of this Agreement shall be construed in
accordance with the fair meaning of the language used and shall not be construed for or
against either Party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
25.9 No Waiver. A waiver by either Party of any breach, of any term, covenant
or condition contained herein this Agreement shall not be deemed a continuing waiver or
a waiver of any subsequent breach of the same or any other term, covenant or condition
contained herein this Agreement, whether of the same or a different character.
25.10 Severability. If any term, covenant, condition, provision or portion of this
Agreement is held to be invalid, void, or otherwise unenforceable by a court of competent
jurisdiction, the remaining provisions of this Agreement shall continue in full force and
effect.
25.11 Time of Essence. Time is expressly made of the essence with respect to
the performance by Licensee of each and every obligation and condition of this
Agreement.
25.12 Cooperation. Each Party agrees to cooperate with the other and, in that
regard, to sign any and all documents which may be reasonably necessary, helpful, or
appropriate to carry out the purposes and intent of this Agreement including, but not
limited to, releases or additional agreements.
25.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which, taken together,
shall constitute one and the same instrument.
25.14 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
25.15 Amendments. This Agreement may be modified or amended only by a
written document executed by both parties and approved as to form by the City Attorney.
25.16 No Discrimination. Licensee hereby covenants on behalf of itself, its
successors, and assigns, and all persons claiming under or through Licensee, and this
Agreement is made and accepted upon and subject to the condition, that there shall be
no discrimination against or segregation of any person or group of persons on account of
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race, religious creed, color, national origin, ancestry, physical handicap, medical
condition, marital status, sex, sexual orientation, age or any other impermissible basis
under law in the subleasing, transferring, use, occupancy, tenure, or enjoyment of the
Premises herein leased nor shall Licensee itself, or any person claiming under or through
Licensee, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use of or vendees of the
Premises.
25.17 Equal Opportunity Employment. Licensee represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religious creed, color, national origin,
physical handicap, ancestry, medical condition, marital status, sex, sexual orientation,
age, or any other impermissible basis under law.
[SIGNATURES ON NEXT PAGE]
Network Communications International Corp. 13
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first set forth above.
APPROVED AS TO FORM: CITY: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Date: qZ10- Date: MAY 0 4.2022
By: 4 -AL+ -1 By: _ 4A _� t--�
ron t. Harp e . Leung
City Attorney j0hy Manager
ATTEST:
Date: • 0, =I)-
c
By: gJ4�
Leilani I. Brown
City Clerk
NiLlaoRN:i
LICENSEE: NETWORK
COMMUNICATIONS INTERNATIONAL
CORP., a California corporation
Date: -"
By:
William L. Pope
President
By:
Jay Walters
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C —Insurance Requirements
Network Communications International Corp. 14
EXHIBIT "A"
Description:
SCOPE OF SERVICES
Inmate Phone
Licensee, Network Communications International Corp., shall provide inmate telephones
and communications management system for the entire period of this agreement at the
City Jail, located at Newport Beach Police Department, 870 Santa Barbara Drive, Newport
Beach, California. Installation shall be complete within seven (7) days of the effective date
of this agreement and all necessary hardware and software shall be included as part of
the service agreement. The telephone system to be provided must be approved by the
City. City shall not be charged or incur any fees for the installation, standard hardware,
software enhancements or upgrades, and removal of the proposed phone system.
2. Collect Calls
To the extent consistent with applicable federal and state laws, rules and regulations,
Licensee shall provide operator services with automated assistance for the Newport
Beach Police Department ("NBPD"). Each operator service call originating from the
telephones and placed through the system may be charged "collect" to pre -approved
destinations. Licensee will validate each call through the national Line Information
Database (LIDB) and will only process "collect" calls to destination points that do not have
registered blocks. Calls shall only be billed upon acceptance by the destined party.
Licensee shall notify each called destination that the call is coming from the Newport
Beach Police Department, announce the name of the "caller/inmate", provide an option to
access rate information, and allow for acceptance or denial of the call.
3. Pre -Paid "Collect" Service
Licensee shall provide pre -paid collect service as needed. Licensee will provide a toll-free
access number for friends and family to call to set up prepaid "collect" service accounts.
Licensee shall also provide access to an internet-based website where prepaid services
can be ordered.
4. Debit Card/Cardless Debit
Licensee shall provide Debit Card and/or Cardless Debit services.
5. Communications Management System
Licensee shall provide access to its inmate communications management system. This
system shall provide the City with the ability to record and store all inmate calls, live -
monitor inmate calls and detail reporting of call traffic (detailed reporting of call traffic shall
include but not limited to the date, times, start and end time between a specified date
range), and provide investigative tools (software and licensing) to perform these services.
The system must maintain secure storage of recorded calls that can be retrieved for a
period of no less than three (3) years. The system must have a mechanism or software
for authorized NBPD employees to have the ability to download the phone and audio/video
files of the visitation system to their local workstation.
The proposed system must allow authorized multiple users to simultaneous access while
maintaining adequate security to prevent unauthorized use and access to the system.
Network Communications International Corp.
The communications system shall have sufficient uninterruptible power supply (UPS)
system with surge protection capable of supporting all components, including recording
devices for a minimum of fifteen (15) minutes.
6. Non -Recordable Numbers
The communications management system shall enable telephone calls that may be
subject to protection under the attorney-client privilege to be made without being
monitored or recorded. NBPD staff shall also be granted permission to manually input
phone non -recordable numbers to the database on an as -needed basis.
7. Support Services
Licensee shall provide 24/7 technical support, in including on-site response. Licensee
shall be able to respond to the site within one (1) business day, three hundred and sixty-
five (365) days a year.
Licensee shall provide comprehensive training at no cost to the City for up to ten (10)
persons, to include those persons authorized to operate the system, and others involved
in the administration/operation of the program. Training shall include but not limited to the
following:
a. System features and functions.
b. Basic troubleshooting skills.
c. Familiarization with any software used for the system.
d. Remove access.
Licensee may be requested the following as needed:
a. Provide expert witnesses as needed for testifying in court and/or depositions
regarding the technical operation and accuracy of the system.
b. Provide evidence, system maintenance logs, records and any related information
as required by a court.
c. Provide a secured facility where all recorded information is to be stored, backed
up, and available for retrieval as needed.
d. Provide the names and contact information for engineers who will be available 24-
hours/day, 7 days/week to respond to system problems that may arise.
8. Additional Requirements
Licensee shall comply with all City jail policies related to the provision of phone services
to the inmates. A background check of all employees that will be on-site shall be required
prior to entry.
Licensee shall propose changes to the agreement when (a) the changes are required
by applicable law Licensee shall be responsible to ensure that the telephone system and
its operation complies with all applicable law at all times.
Network Communications International Corp.
EXHIBIT "B"
SCHEDULE OF BILLING
Network Communications International Corp. ("NCIC") shall provide the required services
and technologies at no cost to the City, whether initial or ongoing.
CONNECTION FEE PER MINUTE CONNECTION FEE PER MINUTE
$0.00 $0.07 $0.00 $0.07
$0.00 $0.07 $0.00 $0.07
$0.00 Varies by law $0.00 Varies by law
10% of TRUE Gross Call Revenue
City of Newport Beach shall allow NCIC bandwidth access (max 500k
upload/download) to the City's internet. NCIC shall provide a 10%
commission on all revenue generated from the inmate phone system.
$0.00
$0.00
$0.00
•
$1.50 (3 Minute Message)
*Proposed calling rates do not include applicable pass-through government taxes.
All charges related to cabling and internet services that are currently being charged by
any existing provider will be completely absorbed by NCIC. Additionally, NCIC shall
pay to the City a 10% commission on all gross revenue generated from the inmate phone
system, which shall be paid to the City monthly. NCIC shall be responsible to ensure
that any and all rates and fees comply with State and Federal law.
Network Communications International Corp.
EXHIBIT "C"
INSURANCE
Without limiting Licensee's indemnification of City, Licensee will obtain, provide and
maintain at its own expense during the Term of this Agreement, a policy or policies of
insurance of the type, amounts and form acceptable to City. The policy or policies shall
provide, at a minimum, those items described below.
1. Provision of Insurance. Without limiting Licensee's indemnification of City, and
prior to commencement of work on Premises by Licensee or Licensee's agents,
representatives, consultants, contractors and/or subcontractors, Licensee shall
obtain, provide and maintain at its own expense during the term of this Agreement
policies of insurance of the type and amounts described below and in a form
satisfactory to City. Licensee agrees to provide insurance in accordance with
requirements set forth here. Licensee may use existing coverage to comply with
these requirements.
2. Acceptable Insurers. All insurance or reinsurance policies shall be issued by an
insurance company currently authorized by the insurance commissioner to
transact business of insurance in the State of California, with an assigned
policyholders' rating of A- (or higher) and Financial Size Category Class VII (or
larger) in accordance with the latest edition of Best's Key Rating Guide, unless
otherwise approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Licensee and Licensee's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain Workers' Compensation Insurance, statutory limits, and
Employer's Liability Insurance with limits of at least One Million Dollars and
00/100 ($1,000,000) each accident for bodily injury by accident and each
employee for bodily injury by disease in accordance with the laws of the
State of California, Section 3700 of the Labor Code.
Licensee and Licensee's agents, representatives, consultants, contractors
and/or subcontractors, shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its officers,
agents, employees and volunteers.
B. General Liability Insurance. Licensee and Licensee's agents,
representatives, consultants, contractors and/or subcontractors, shall
maintain commercial general liability insurance, and if necessary umbrella
liability insurance, with coverage at least as broad as provided by Insurance
Services Office form CG 00 01, in an amount not less than One Million
Dollars and 00/100 ($1,000,000) per occurrence, Two Million Dollars and
00/100 ($2,000,000) general aggregate. The policy shall cover liability
arising from premises, operations, personal and advertising injury, and
Network Communications International Corp.
liability assumed under an insured contract (including the tort liability of
another assumed in a business contract) with no endorsement or
modification limiting the scope of coverage for liability assumed under a
contract.
C. Fire and Extended Coverage. Licensee shall maintain fire and extended
coverage insurance, together with insurance against vandalism, theft and
malicious mischief, on the improvements and fixtures, alterations, trade
fixtures, signs, equipment, personal property and inventory on or upon the
Premises from loss or damage to the extent of their full replacement value.
D. Automobile Liability Insurance. Licensee shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Licensee or
all activities of Licensee's consultants, contractors and/or subcontractors
arising out of or in connection with work to be performed on the Premises,
including coverage for any owned, hired, non -owned or rented vehicles, in
an amount not less than One Million Dollars and 00/100 ($1,000,000)
combined single limit each accident.
4. Endorsements: Policies shall contain or be endorsed to contain the following
provisions:
A. Additional Insured Status. City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as an additional
insured under all general liability with respect to liability arising out of
Licensee's activities related to this Agreement and with respect to use or
occupancy of the Premises. City, its elected or appointed officers, officials,
employees, agents and volunteers shall be named as an additional insured
on any of Licensee's contractor's or subcontractor's policies.
B. Primary and Non Contributory. Policies shall be considered primary
insurance as respects to City, its elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims, losses, or
liability arising directly or indirectly from Licensee's operations. Any
insurance maintained by City, including any self-insured retention City may
have, shall be considered excess insurance only and not contributory with
the insurance provided hereunder.
C. Liability Insurance. Liability insurance shall act for each insured and
additional insured as though a separate policy had been written for each,
except with respect to the limits of liability of the insuring company.
D. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees and
volunteers or shall specifically allow Licensee or others providing insurance
Network Communications International Corp.
evidence in compliance with these requirements to waive their right of
recovery prior to a loss. Licensee hereby waives its own right of recovery
against City, and shall require similar written express waivers from each of
its consultants, contractors or subcontractors.
E. Reportinq Provisions. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
F. Notice of Cancellation. The insurance required by this Agreement shall not
be suspended, voided, canceled, or reduced in coverage or in limits except
after thirty (30) calendar days (ten (10) calendar days written notice of non-
payment of premium) written notice has been received by City. It is
Licensee's obligation to ensure that provisions for such notice have been
established.
G. Loss Payee. City shall be included a loss payee under the commercial
property insurance.
5. Additional Requirements.
A. In the event City determines that (i) the Licensee's activities on the Facilities
creates an increased or decreased risk of loss to the City, (ii) greater
insurance coverage is required due to the passage of time, or (iii) changes
in the industry require different coverage be obtained, Licensee agrees that
the minimum limits of any insurance policy required to be obtained by
Licensee or Licensee's consultants, contractors or subcontractors, may be
changed accordingly upon receipt of written notice from City. With respect
to changes in insurance requirements that are available from Licensee's
then -existing insurance carrier, Licensee shall deposit certificates
evidencing acceptable insurance policies with City incorporating such
changes within thirty (30) calendar days of receipt of such notice. With
respect to changes in insurance requirements that are not available from
Licensee's then- existing insurance carrier, Licensee shall deposit
certificates evidencing acceptable insurance policies with City,
incorporating such changes, within ninety (90) calendar days of receipt of
such notice.
B. Any deductibles applicable to the commercial property or insurance
purchased in compliance with the requirements of this section shall be
approved by City.
C. Licensee and Licensee's consultants, contractors and/or subcontractors
shall be subject to the insurance requirements contained herein unless
otherwise specified in the provisions above or written approval is granted
by the City. Licensee shall verify that all consultants, contractors and/or
subcontractors maintain insurance meeting all the requirements stated
Network Communications International Corp.
herein, and Licensee shall ensure that City is an additional insured on
insurance required from contractors, consultants and/or subcontractors.
D. For General Liability coverage, contractors, consultants and/or
subcontractors shall provide coverage with a format at least as broad as
provided by Insurance Services Office form CG 203 80413.
E. If Licensee maintains higher limits than the minimums shown above, the
City requires and shall be entitled to coverage for the higher limits
maintained by the Licensee. Any available insurance proceeds in excess
of the specified minimum limits of insurance and coverage shall be available
to the City.
F. Licensee shall give City prompt and timely notice of any claim made or suit
instituted arising out of or resulting from Licensee or Licensee's agents,
representatives, consultants, contractors or subcontractors performance
under this Agreement.
G. Licensee shall provide certificates of insurance, with original endorsements
as required above, to City as evidence of the insurance coverage required
herein. Insurance certificates must be approved by City prior to
commencement of work or issuance of any permit. Current certification of
insurance shall be kept on file with City at all times during the term of this
Agreement.
H. All required insurance shall be in force on the Effective Date, and shall be
maintained continuously in force throughout the term of this Agreement. In
addition, the cost of all required insurance shall be borne by Licensee or by
Licensee's consultants, contractors or subcontractors.
If Licensee or Licensee's consultants, contractors or subcontractors fail or
refuse to maintain insurance as required in this Agreement, or fail to provide
proof of insurance, City has the right to declare this Agreement in default
without further notice to Licensee, and City shall be entitled to exercise all
available remedies.
J. Licensee agrees not to use the Premises in any manner, even if use is for
purposes stated herein, that will result in the cancellation of any insurance
City may have on the Premises or on adjacent premises, or that will cause
cancellation of any other insurance coverage for the Premises or adjoining
premises. Licensee further agrees not to keep on the Premises or permit
to be kept, used, or sold thereon, anything prohibited by any fire or other
insurance policy covering the Premises. Licensee shall, at its sole expense,
comply with all reasonable requirements for maintaining fire and other
insurance coverage on the Premises.
Network Communications International Corp.
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Network Communications International Corp. .t,,
FV00000726
607 E 1'.1haley Sheat Longvie;v, TX 75601-6526
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