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HomeMy WebLinkAboutC-265744 1 _. /lao -go czos;' LITTLEJOHN COMMUNICATIONS, INC P.O. BOX 176 MALIBU, CA 90265 Tel: 310 457 -9198 Fax: 310 457 -1668 Email: Iic(a_)gte.net INMATE TELEPHONE SERVICE AGREEMENT This Inmate Telephone Service Agreement ( "Agreement ") is made by and between Littlejohn Communications, Inc, having its principal place of business at 28990 Pacific Coast Hwy, #C215, Malibu, CA 90265 ( "Company ") and The City of Arcadia PD, 250 West Huntington Dr., Arcadia, CA 91007 ( "Premise Provider "). 1. Term. This Agreement shall be in effect for 2 years, commencing from the date of the installation of the first phone at the facility by LJC. Unless either party notifies the other in writing of its intention not to renew this Agreement at least ninety (90) days from the end of the original or any renewal term, this Agreement shall automatically renew for additional 2 year terms. 2. Equipment. This Agreement applies to the installation, management, operation and maintenance of inmate telephones, enclosures, and related equipment furnished by the Company as listed on Exhibit B at the time of execution of the Agreement or during the term of this Agreement, whether existing, newly installed or renovated, located at: The City of Arcadia PD (Facility) and all other facilities under the control of Premise Provider. The term "Equipment" is defined herein as the inmate telephone set(s) and related equipment, including but not limited to (and if applicable) guard posts, concrete pads, mast poles, and site preparation. Where guard posts, concrete pads, enclosures, pedestals, bumper pads, or other property of the Company are installed upon the premises owned or controlled by Premise Provider or any of its agencies or affiliates, such property shall remain in all respects that of the Company. The Company reserves the right to remove or relocate equipment which is subjected to recurring vandalism or insufficient traffic and/or revenue to warrant the continuation of service. The Company shall not exercise such a right of removal or relocation unreasonably. The Company will notify the Premise Provider in writing of its intention to remove or relocate prior to such action. Upon removal of equipment by the Company, the Company shall restore said premise to its original condition, ordinary wear and tear excepted. However, the Company shall not be liable for holes placed in walls, pillars or floors or other conditions on the premises which resulted from the proper installation of equipment described herein. The Premise Provider may not make alterations or attachments to the Equipment provided under this agreement, unless otherwise mutually agreed upon by all parties. 3. Services. At no cost to the Premise Provider, the Company shall provide all management services necessary to implement this Agreement; and shall be responsible for furnishing, installing, repairing and servicing the Equipment; the establishment (if and to the extent required by the Company) and compliance with all tariffs and all rules, regulations, orders and policies of federal and state regulatory authorities applicable to the payphone and automated operator services provided by the Company; the establishment and maintenance of all billing and payment arrangements with the local and interexchange carriers; the processing of all telephone call records; the performance (alone or through others) of all validation, billing, out - clearing and collection services; and the handling of all billing and other inquiries, fraud control, and all other services essential to the performance of the Company's obligations under this Agreement. The Company reserves the right to control un- billable, bad debt and fraud. 4. Compensation. Compensation for each Application, if any, and the applicable payment addresses are as stated in the Schedules. 5. Rates. The telephone rate structure and surcharge rates shall not exceed the maximum rates as authorized by the state's telecommunication regulatory authority and the Federal Communications Commission (FCC). Any rate changes mandated by the state /local regulatory authority and/or the FCC which adversely affect this Agreement shall entitle the Company to, as its option, renegotiate or cancel this Agreement in accordance with Paragraph 18 below. 6. Records & Confidentiality. The Company shall maintain records sufficient to permit proper determination of funds due the Premise Provider. Such records shall be made available to the Premise Provider for review upon request. During and after the term of this Agreement, including any renewal period(s), the Company shall recognize and protect the confidentially of all information regarding the inmate telephone station location provided by Premise Provider, including revenue and remuneration paid to the Premise Provider, and shall not disclose such information to any party other than the Premise Provider and the Company, except through the express, written consent of the Premise Provider. The revenue payment and reporting cycle will be a maximum of 45 days following the end of the previous month. Both summary and detail reports will be provided. The original reports and payment will be mailed directly to the Premise Provider. The following information will be provided for each location by telephone number: • Total Calls • Total minutes of use • Type of call • Total usage revenue 7. Further Assurances. During the term of this Agreement, including any renewal period(s), Premise Provider agrees to: (a) Reasonably protect the Equipment against willful abuse and promptly report any damage, service failure or hazardous conditions to the Company. (b) Provide, at its expense, necessary power and power source, and provide suitable space, accessible to the users. (c) Permit reasonable access to its respective facilities without charge or prejudice to Company employees or representatives, patrons, or consignees. (d) Premise Provider represents and warrants that he /she has legal authority to enter into this Agreement and to make all decisions concerning the providing of space and the installation and use of the Equipment at the facility; and agrees that during the term of this Agreement, including any renewal period(s), the Company shall have the exclusive right to provide inmate and/or payphone service at the Facility provided, however, that the Company may choose not to exercise this exclusive right. (e) During the term of this agreement, Premise Provider agrees it will not allow other pay telephones or inmate telephones to either remain or be installed at the facility's property. This is to include any additional inmate telephones required to facilitate Premise Provider's expansion at its present or future location(s) during the term of this Agreement and any extensions of this Agreement. (f) Stipulate that Company has no responsibility to advise Premise Provider with respect to any applicable law, regulation, or guideline that may govern or control telephone call recordation or monitoring by Premise Provider, or compliance therewith. Premise Provider has its own legal counsel to advise it concerning any and all such applicable law, regulation, or guideline, and compliance therewith. Company disclaims any responsibility to provide, and in fact has not provided, Premise Provider any legal advice concerning such applicable law, regulation or guideline, or compliance therewith. Premise Provider agrees to indemnify, defend, and hold Company harmless from any liability, claims, suits, proceedings, damages, costs, and expenses (including attorney's fees) relating to any claims made against Company by any person arising out of failure of Premise Provider to comply with such applicable law, regulation or guideline. (g) Acknowledge that all call detail records (CDRs) and call recordings contained in the inmate telephone system equipment provided by Company to Premise Provider are the exclusive property of the Premise Provider for the term of this Agreement and any resulting extensions of this Agreement. 8. Title. Title to Equipment hereunder shall be and at all times remain in the Company. 9. Relocation. Equipment shall not be disconnected or moved by Premise Provider from the location in which it is installed. By agreement of all parties, installed Equipment may be relocated by the Company. 10. Notices. Any notice, demand, request, approval or other communication (a "notice ") which, under the terms of this Agreement or by law, must or may be given by either party, must be in writing, and must be given by personally delivering or mailing the same by registered or certified mail, return receipt requested, to the respective parties as follows: To Company: Littlejohn Communications, Inc PO Box 176 Malibu, CA 90265 Phone: (310) 457 -9198 Fax: (310) 457 -1668 ATTN: Steve Littlejohn Email: lie(a)gte.net To Premise Provider: The City of Arcadia PD 250 West Huntington Dr. Arcadia, CA 91007 Phone: (626) 574 -5165 Fax: (626) 447 -6581 ATTN: Lieutenant Flores Email: crflores @ci.arcadia.ca.us 11. Governing Law. The construction, interpretation and performance of this agreement and all transactions Under it shall be governed by the domestic laws of the State of California. 12. Indemnification & Consequential Damages. Each party shall indemnify the other from any loss, cost, damage, expense, or liability arising out of the performance of this Agreement and caused, in whole or in part, by the acts or omissions, negligence or fault, of the indemnifying party, except to the extent such loss, cost, damage, expense, or liability arises from the acts of omissions, negligence or fault of the other party; provided, however, that the Company shall not be liable for interruption of telephone service from any cause. Neither party hereunder shall be liable to the other for any consequential or indirect loss, including but not limited to loss of profits, telephone or business interruption, howsoever caused and even if due to the negligence, breach of contract or other fault of the respective parties. The Company's aggregate liability to the Provider relating to or arising out of this Agreement, whether in contract, tort, or otherwise, shall not exceed the amount the Company paid the Provider under this Agreement during the twelve (12) month period prior to the date the claim arose. 13. Risk of Loss. The company and its insurers, if any, shall relieve Premise Provider of all risks of loss or damage to the Equipment during the periods of transportation, installation and operation of the Equipment. However, Premise Provider shall be responsible for loss or damage to Equipment in its possession caused by fault or negligence of Premise Provider or its employees. 14. Default. In the event any party shall be in breach or default of any terms, conditions, or covenants of this agreement and such breach or default shall continue for a period of thirty (30) days after the giving of written notice thereof to any party by the other, then in addition to all other rights and remedies of law or equity or otherwise, the offended party shall have the right to cancel this agreement without charge of liability. 15. Assignment. This agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns; provided, however, that neither party shall assign this Agreement or any interest herein without the other's prior written consent, except that the Company shall have the right to assign this Agreement or any interest herein at any time to any parent, successor, subsidiary, or affiliate of the Company without the consent of the Premise Provider. 16. Independent Contractor. The company acknowledges that it is an independent contractor and that nothing contained in this Agreement or the relationship of the parties is intended to or shall create a partnership or joint venture or agency relationship of any kind between the parties. This agreement shall not be constructed as a contract of agency or employment. Company shall be solely responsible and liable for compliance with all laws, rules and regulations and payment of all wages, unemployment, Social Security and other payroll taxes relating to Company's employees including contribution from such persons, when required by law. 17. Solicitation. The Premise Provider acknowledges that no officer or employee of the Company has been employed, induced, or directed by Premise Provider to solicit or secure this agreement with the Company upon agreement, offer, understanding, or implication involving any form of remuneration whatsoever. Premise Provider agrees, in the event of an allegation of substance (the determination of which will be solely made by the Company) that there has been a violation hereof, Premise Provider will cooperate in every reasonable manner with the Company in establishing whether the allegation is true. Not withstanding any provisions of this agreement to the contrary, if a violation of this provision is found to have occurred and is deemed material by the Company, the Company may terminate this agreement. 18. Force Maieure. Neither party to this Agreement shall be responsible or liable to the other for delays or inability to act or perform their obligations under this contract due to circumstances, events or acts of others beyond their reasonable control, including, but not limited to, acts of God, fire, flood, storm, hurricane, tornado, theft of equipment, or changes in regulatory rules or regulations affecting the ability of either party to reasonably carry out its obligations under this Agreement. It is agreed and understood that this Agreement will be subject to termination by either party upon sixty (60) days notice to the other should there be imposed upon Premise Provider or Company any rule or regulation by any state, federal or local regulatory agency which would substantially adversely affect the operation of the equipment or service provider hereunder. 19. Dispute Resolution. Premise Provider and Company agree that any disputes or claims arising under this Agreement shall be resolved through alternative dispute resolution means in the following manner: (a) Initially, the parties shall engage in non - binding mediation. Mediation shall be held in Los Angeles County or such other site as is mutually agreed to by the parties. The mediator shall be jointly appointed by the parties and shall have expertise in commercial dispute resolution. (b) In the event the dispute or claim is not satisfactorily resolved through mediation within ninety (90) days of notice of such claim or dispute by a party, then agreement shall be governed by the laws of the State of California. If for any reason suit is brought by either party of this agreement, the party in whose favor judgment is rendered shall be entitled to recover reasonable legal fees and litigation related expenses from the other party. The proper venue for any legal action will be the Los Angeles County Superior Court System Malibu Division. 20. Entire Agreement. This Agreement constitutes the entire agreement between the Premise Provider and the Company and supersedes all other agreements between parties pertaining to the subject matter hereof. 21. Amendment. No course of dealing between the parties, their employees, agents or representatives, shall vary any of the terms hereof. This agreement may be modified, amended, or supplemented only by a written agreement executed by the parties. 22. Counterparts. This agreement may be executed in multiple counterparts, each of which shall be an original, and all of which shall be one and the same contract. 23. Software license. We grant you a personal, non - exclusive, non - transferable license (without the right to sublicense) to access and use certain proprietary computer software products and materials in connection with the Applications (the "Software "). The Software includes any upgrades, modifications, updates, and additions to existing features that we implement in our discretion (the "Updates "). Updates do not include additional features and significant enhancements to existing features. You are the license holder of any third -party software products we obtain on your behalf. You authorize us to provide or preinstall the third -party software and agree that we may agree to the third -party End User License Agreements on your behalf. Your rights to use any third -party software product that we provide shall be limited b the terms of the underlying license that we obtained for such products. The Software is to be used solely for your internal business purposes in connection with the Applications at the Facilities. You will not (i) permit any parent, subsidiary, affiliated entity, or third party to use the Software (ii) assign, sublicense, lease, encumber, or otherwise transfer or attempt to transfer the Software or any portion thereof, (iii) process or permit to be processed any data of any other party with the Software, (iv) alter, maintain, enhance, disassemble, decompile, reverse engineer or otherwise modify the Software or allow any third party to do so, (v) connect the Software to any products that we did not furnish or approve in writing, or (vi) ship, transfer, or export the Software into any country, or use the Software in any manner prohibited by the export laws of the United States. We are not liable with regard to any Software that you use in a prohibited manner. 24. Ownership and use. The System, the Applications, and related records, data, and information shall at all times remain the Company's sole and exclusive property unless prohibited by law, in which event, we shall have the unlimited right to use such records, data, and information for investigative and law enforcement purposes. However, during the term of this Agreement and for a reasonable period of time thereafter, we will provide you with reasonable access to the records. The Company (or our licensors, if any) have and will retain all right, title, interest, and ownership in and to (i) the Software and any copies, custom versions, modifications, or updates of the Software, (ii) all related documentation, and (iii) any trade secrets, know -how, methodologies, and processes related to our Applications, the System, and our other products and services (the "Materials "). The Materials constitute proprietary information and trade secrets of Provider and its licensors, weather or not any portion thereof is or may be the subject of a valid copyright or patent. 25. Leeality /Limited License Agreement. For services related to Applications which may allow you to monitor and record inmate or other administrative telephone calls, or transmit or receive inmate electronic messages ( "e- mail "); by providing the Application, we make no representation or warranty as to the legality of recording or monitoring inmate or administrative telephone calls or transmitting or receiving inmate e-mail messages. Further, you retain custody and ownership of all recordings, and inmate e-mail messages; however you grant us a perpetual limited license to compile, store, and access recordings or inmate calls and access inmate e-mail messages for purposes of (i) complying with the requests of officials at the Facility, (ii) disclosing information to requesting law enforcement and correctional officials as they may require for investigative, penological or public safety purposes, (iii) performing billing and collection functions, or (iv) maintaining equipment and quality control purposes. The license does not apply to recordings of inmate calls or e-mail messages with their attorneys or to recordings or e-mail messages protected from disclosure by other applicable privileges. 26. Insurance. We maintain comprehensive general liability insurance having limits of not less than $2,000,000.00 in the aggregate. You agree to provide us with reasonable and timely written notice of any claim, demand, or causes of action made or brought against you arising out of or related to the utilization of the Applications and the System. We have the right to defend any such claim, demand, or cause of action at our sole cost and expense and within our sole and exclusive discretion. You agree not to compromise or settle any claim or cause of action arising out of or related to the utilization of the Applications or System without our prior written consent, and you are required to assist us with our defense of any such claim, demand, or cause of action. 27. Default and termination. If either party defaults in the performance of any obligation under this Agreement, then the non - defaulting party shall give the defaulting party written notice of its default setting forth with specificity the nature of the default. If the defaulting party fails to cure its default within thirty (30) days after receipt of the notice of default, then the non - defaulting party shall have the right to terminate this Agreement upon thirty (30) days written notice and pursue all other remedies available to the non - defaulting party, either at law or in equity. Notwithstanding the foregoing, the thirty (30) day cure period shall be extended to ninety (90) days if the default is not reasonable susceptible to cure within such thirty (30) day period, but only if the defaulting party has begun to cure the default during the thirty (30) day period and diligently pursues the cure of such default. Notwithstanding the foregoing, if you breach your obligations in the section entitled "Software License" or the section entitled "Confidentiality ", then we shall have the right to terminate this Agreement immediately. The Premise Provider may terminate this agreement with out penalty c�w ith a 90 day written notice to the Company at any time during an active term. 28. Uncontrollable Circumstance. The Company reserve the right to renegotiate or terminate this Agreement upon sixty (60) days advance written notice if circumstances other than those under our control related to the Facilities (including, without limitation, changes in rates, regulations, or operations mandated by law; material reduction in inmate population or capacity; material changes in jail policy or economic conditions; acts of God; actions you take for security reasons (such as lockdowns) negatively impact our business; however, we shall not unreasonably exercise such right. Further, Customer acknowledges that Provider's provision of the services is subject to certain federal, state or local regulatory requirements and restrictions which are subject to change from time -to -time and nothing contained herein to the contrary shall restrict Provider from taking any steps necessary to perform in compliance therewith. 29. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California. No waiver by either party of any event of default under this Agreement shall operate as a waiver of any subsequent default under the terms of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, the validity or enforceability of the other provisions shall remain unaffected. This Agreement shall be binding upon and inure to the benefit of Provider and Customer and their respective successors and permitted assigns. Except for assignments to our affiliates or to any entity that succeeds to our business in connection with a merger or acquisition, neither party may assign this Agreement without the prior written consent of the other party. Each signatory to this Agreement warrants and represents that he or she has the unrestricted right and requisite authority to enter into and execute this Agreement, to bind his or her respective party, and to authorize the installation and operation of the System. Provider and Customer each shall comply, at its own expense, with all applicable laws and regulations in the performance of their respective obligations under this Agreement and otherwise in their operations. Nothing in this Agreement shall be deemed or construed by the parties or any other entity to create an agency, partnership, or joint venture between Customer and Provider. This Agreement cannot be modified orally and can only be modified by a written instrument signed by all parties. The parties' rights and obligations, which by their nature would extend beyond the termination, cancellation, or expiration of this Agreement, shall survive such termination, cancellation, or expiration (including, without limitation, any payment obligations for services or equipment received prior to such termination, cancellation, or expiration). This Agreement may be executed in counterparts, each of which shall be fully effective as an original, and all of which together shall constitute one and the same instrument. This Agreement, together with the exhibits and Schedules, constitutes the entire agreement of the parties regarding the subject matter set forth herein and supersedes any prior or contemporaneous oral or written agreements or guarantees regarding the subject matter set forth herein. [Signature Page Follows] IN WITNESS WHEREOF, the foregoing Agreement has been executed by the parties hereto, this 15th day of /}tAAu si' , 2011. Comnany Littlejohn Communications, Inc Signature f- i3,:/N�Ri�N�LctS Name: Steve Littlejohn Title: President Premise Provider The City of Arcadia PD O- Vw. -t-- Signature Name: Donald Penman Title: City Manager APPROVED AS TO FORM: 0 Steplfen P. Deitsch Citv Attorney ATTEST: LITTLEJOHN COMMUNICATIONS, INC P.O. BOX 176 MALIBU, CA 90265 Tel: 310 457 -9198 Fax: 310 457 -1668 Email: Ijc(a�Lte.net Schedule Arcadia PD This Schedule is between Littlejohn Communications, Inc., ( "Company "), and The City of Arcadia PD ( "Provider ") and is part of and governed by the Master Services Agreement (the "Agreement') executed by the parties. The terms and conditions of the Agreement are incorporated herein by reference. This Schedule shall be coterminous with the Agreement ( "Schedule Effective Date "). A. Applications. The Company will provide the following Applications: CALL MANAGEMENT SERVICE DESCRIPTION: Correctional Control Network (CCN). The proposed Inmate Telephone System is a facility- friendly, web -based system designed by our partners Custom Teleconnect, Inc. (CTI) in order to provide facilities of less than 2000 inmates with the same comprehensive features that are routinely provided to larger correctional institutions. Key design aspects of the system are: (1) carrier class redundancy of every component, which has resulted in greater than 99% uptime; (2) centralized hardware and software for rapid and easy access for maintenance and upgrades combined with minimal on -site maintenance and repair; (3) secure access to all system features from any computer connected to the Internet; (4) completely scalable and open architecture so that all features are available to all sites, regardless of whether the facility houses 2 or 2000 inmates; and (5) a cost - effective design that allows us to offer a feature -rich solution along with competitive commissions. COMPENSATION: Collect Calls. We will pay you commission (the "Commission ") in the amount of the applicable Collect Commission Percentage (as specified in the chart below) of the applicable revenue base (as specified in the chart below) that are made through the completion of collect calls placed from the Facilities. "Gross Billed and Collected Revenue" (hereinafter GBC) means all charges billed and collected by us relating to collect calls placed from the Facilities. Regulatory required and other items such as federal, state and local charges and taxes and fees are excluded. We shall remit the Commission for a calendar month to you on or before the 30`h day after the end of the calendar month in which the calls were made (the "Payment Date "). All Commission payments shall be final and binding upon you unless we receive written objection within sixty (60) days after the Payment Date. Your payment address is as set forth in the signature block below. You shall notify us in writing at least sixty (60) days prior to a Payment Date of any change in your payment address. FACILITIES AND RELATED SPECIFICATIONS: Facility Name and Address Type of Call Collect Revenue Base Payment Address Management Commission for Calculation Service Percentage of Commission The City of Arcadia PD CCN 50% GBC SAME EXHIBIT A The City of Arcadia PD, 250 West Huntington Dr., Arcadia CA 91007: Actual on -site eauipment: The installation of software and/or hardware on Company provided Equipment is not approved. System conditions can change and become unstable with the addition of software other than that installed by the Company. The Company does not warranty, troubleshoot, or maintain any system that contains software installed by a third party. The Company assumes no liability for any data stored on the Equipment which is not directly related to the Services provided under this Agreement. Company also does not furnish, maintain or provide consumables for peripheral equipment associated with the Inmate Telephone System. Consumables consist of items such as printer paper, cassette tapes, compact disks, etc. List of On -Site Equipment QTY PART NUMBER ITEM DESCRIPTION Inmate Telephone System Cite of Arcadia. California Inmate Telephone System DOMESTIC COLLECT & INTERNATIONAL CALL RATES Collect Calls to cell phones, either by billing to cell phone co. or by called party using credit card. $9.99 flat rate per call up to 20minute call (no connect fee, no charge per minute) Domestic Collect Call Price Sheet LJC charges a $3.00 connect fee and a $1.00 Intra St PIF Charge. Rate per Conversation Minute Local $ 0.99 IntraLATA $ 0.99 InterLATA $0.99 Collect Interstate $ 0.99 Call Type Definitions LATA — Local Access Transport Area. The California Public Utilities Commission has divided the State into Telephone Exchange Areas. (Some LATAs contain multiple area codes). Intra -LATA — Calls made within a LATA in California Inter- LATA — Calls made between one LATA to another LATA within California Interstate — Calls made from a LATA within California to another State All pricing is negotiable Littlejohn Communications, Inc.