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More comment on false alarms / Contract challenge and review
March 13, 2020
More comment on false alarms from article on March 4, 2020
            I have to disagree with the false alarm program, if you by a Ford/GM/Chrysler car or van you don’t fine the company who made or sold the vehicle if the client or end user is speeding in it, you can train your clients to use the security system properly but if they do is another question. 
            The only way to reduce or stop the false alarms is to fine the end user directly. Which in turn their alarm company would have to go into the home/business again and retain the end user, at which time they would receive a training certificate to show the police false alarm unit they have been trained properly again to receive proper dispatch, otherwise they can go on a reduced response program, other than emergency codes, ie: fire, holdup, medical for a year before getting back to priority response. Also the verified response is a great idea if implemented properly but with some dealers they think that one microphone or camera inside would be sufficient for verified response.
            It’s hard to say what would work, but billing the alarm company or monitoring centers directly is not the solution, billing the end user is, but the police and municipalities don’t want to do that because of guaranteed funds, if the alarm company or monitoring center doesn’t pay the police don’t respond, show me that the funds are going into towards putting more police on our roads and municipalities then I would think about it, but the funds are going into general revenue.
Joseph Rossano
            If collection of the fine was really the issue the answer is to have the fine treated as a lien against the real property, like a tax, though that would probably require state law rather than local municipal law.
Contract challenge and review – are you a K&K client or at least have a K&K contract?
            I got a call from a San Diego attorney who asked to talk to me about the fire alarm contract presented by a local alarm company.  We discussed the indemnity provision.  Here is the email I received, followed by my response:
            I am an attorney based in San Diego and President of my Condominium HOA.  We are in the process of having our fire alarm system inspected and improved upon in a variety of ways.  To this end, we are looking to use a company out here named xxxxxxxxxxxx.
            Immediately below is the indemnification provision from xxxx’s contract.  I understand that the contract they are using came from you/your office, and am hoping you can help me understand the rationale for the “Client” (here, our HOA) agreeing to indemnify the “Company”  for third-party claims “caused by the Company’s negligent performance” among other things?  I was surprised to see this language since, I would generally not expect anyone to agree to this language.  Perhaps I am missing something so I thought I would reach out to you on this issue. 
            Please respond by email or call if easier.  Thank you!
THIRD PARTY INDEMNIFICATION. Client agrees to and shall indemnify, defend and hold harmless the Company, its employees and agents for and against all claims, lawsuits, and losses which claim and/or lawsuit is brought or loss sustained by parties and entities other than the parties to this Agreement (herein referred to as third parties). This provision shall apply to all claims, lawsuits, or damages caused by the Company’s negligent performance, whether active or passive and to all claims based upon defects in design, installation, maintenance, monitoring, operation or nonoperation of the alarm System, whether those claims be based upon negligence, active or passive, warranty, or strict or product liability on the part of the Company, its agents, servants, or employees. This Agreement by Client to indemnify the Company against third party claims as hereinabove set forth shall not apply to losses, damages, expenses resulting in injury or death to third persons, which losses, damages, expenses, and liability are solely and directly caused by the acts of said employee. [Who is meant to be “said employee”? Company or Company employee?]
My reply:
Jonathan - its standard in alarm contracts - and easily accepted by customers because the customer has to procure insurance and name the alarm company as additional insured - so you can limit the indemnity to the insurance coverage.
            as for why?  alarm co is providing fire alarm for small amount each month.  let's say there is fire.  one of the HOA owners loses his Rolls Royce.  alarm co can't be on hook for that kind of loss, not for what they are charging
Here’s the problem:
            We spoke on the phone and I convinced him that the provisions were standard and made sense.  But then I realized he was reading provisions that are NOT in my standard form, and I realized we weren’t talking about a K&K contract form.
            I asked where the attorney got my name.  I asked if the alarm company told him I was its attorney or it’s my form.  His response really amused me.  He said the alarm company told him they “talked to me a few years ago”.  
            I told him they weren’t a client, it wasn’t my contract, and that he was free to negotiate the terms any way he wanted.
            I am here for our clients to assist with contract negotiations.  If you’re a Concierge Client you get a FREE half hour each month for contract negotiations.  If you don’t have a K&K contract, if you’re not a Concierge Client, if you got your contract from someone else or put it together yourself, then guess what.  You’re on your own.  Good luck.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301