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which contract for new owner - fire and security/ more on PERS employee fingerprinting / mutual indemnity May 6, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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which contract for new owner - fire and security/ more on PERS employee fingerprinting / mutual indemnity
May 6, 2017
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Next Webinar: May 9, 2017.  
Title: All You Need to Know Before You Add DIY to Your Business
Presented by: Megan McDonald, VP of Marketing, Alarm Capital Alliance and MyAlarm Center
Register here:  https://attendee.gotowebinar.com/register/1457595459244475906
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which contract for new owner - fire and security
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Ken.
    Need a refresher.  Restaurant.  We’re doing a system that covers burg and fire.  We installed the system years ago and the new owner wants to continue service with us.  Do we just use the Standard commercial security agreement?  Or also the Fire alarm sales, monitoring, inspection and service agreement?  The only item we are adding is a cell communicator for the main phone line. 
DF
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Response
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    What seems like an easy answer, isn't.  You need to enter into a new contract with this new owner/occupant/subscriber.  There is a commercial fire alarm in place and a security system.  Even though you installed this system for the then occupant and you've been servicing and monitoring it since it was installed, you need to be careful that the system is still up to date and code compliant.  What was once acceptable and compliant may no longer be approved by the AHJ.  The new fire alarm contract will need to make it clear that this is essentially a take over of a system installed for a previous occupant that may or may not meet current code requirements.  Keep in mind that if the system may not meet current code requirements and yet because no work is being done in the premises the system is grandfathered in, or the AHJ just hasn't gotten around to demanding updates.  What the subscriber may be able to get away with may not be code compliant.  If there is a fire loss, believe me, someone is going to wonder why you didn't mention to the new owner that a new system should be installed.  If you did mention it then make sure it's in your contract or the Disclaimer Notice you require the subscriber to sign.
    The Fire All in One is the appropriate contract for the fire alarm system.  The Commercial All in One is the proper contract for the security system, and that includes the intrusion system, cameras and access control.
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more on PERS employee fingerprinting
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Ken,
      Is this a federal law that’s being passed?  Do you know where I could go to get more information?
Regards,
Amanda
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Ken
    How will this change our contract??
Ron 
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Response
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    Section 6401 of the Affordable Care Act requires a fingerprint-based criminal background check as part of new screening and enrollment requirements for all “high“ risk providers and all persons with a 5% or greater direct or indirect ownership interest in such providers. 
    If the Act gets repealed this may no longer be an issue.
    The final rule for Section 6401 assigned risk levels for provider types that are recognized by Medicare. 
    Provider types that are considered high risk, requiring fingerprint compliance, includes Personal Emergency Response System (PERS) Providers.  Massachusetts Insurance Bulletin [Bulletin 4-23-2017] was issued April 23, 2017 and is directed to all providers participating in the MassHealth system.  Other health care systems are likely to follow.
    The change will not affect your PERS contracts.
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mutual indemnity
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Ken, 
    We have a customer who wants to change paragraph 20 of the All In One Residential Agreement that you have drawn up for us.  They want mutual indemnity.  We need to know what is the liability to this company if done.
    Thank you for your opinion
KN
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Response
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    The indemnity provision is an important protective clause in your contract, but not the only one.  When subscribers object to one or more provisions and seek modification of the agreement you need to know what you can give up to make the deal.  It's not a one answer response because often the objection will address one provision yet not challenge another.  Since the contract has many protective provisions giving up one or two may still leave you with sufficient protection from the others that are retained.  But it's not like there are 6 provisions and you can give any 2 or 3.  It depends which ones are selected.  
    Indemnity is important to your insurance carrier because it enables it to recover its defense costs and shift exposure for damages, if the provision works.  If you think about it, it doesn't make too much sense for each party to indemnity the other, especially when the indemnity does not depend on negligence or wrong doing by the indemnifying party [which is how the Standard Form Agreements are written].  Mutual indemnity cancels each other out.\
    When faced with a lot of resistance I usually recommend omitting the indemnity provision, which is only the first sentence of the Indemnity paragraph.  
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WEBINARS:  Sign up for any or all of the webinars that interest you.
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FREE Webinar Series "All You Need To Know About" alarm industry issues. 
Register for one or all.  Each presentation scheduled for half hour to hour.  Not recorded.
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Title: All You Need to Know Before You Add DIY to Your Business
When: May 9, 2017 12 noon EST
What will be covered: This session will cover the basics of the DIY model, the critical factors of succeeding with a DIY business, the DIY customer and how the market has shifted over the last few years.
Who should attend: Alarm company owners, managers and those interested in DIY business model
Presented by: Megan McDonald, VP of Marketing, Alarm Capital Alliance and MyAlarm Center. 866-484-4800 x 8470   megan.macdonald@myalarmcenter.com 
Register here:  https://attendee.gotowebinar.com/register/1457595459244475906
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Title: All You Need to know about getting NICET certified
When: May 23,  2017 noon EST
Where: Your computer for power point, live video and call in on computer or phone
What will be covered:  Why you should get NICET certified and how to do it
Who should attend: Alarm company owners with technical skills, technicians
Presented by:  Bryan McLane, National Training Center, 4148 Mantle Ave., N Las Vegas, NV 89084. Direct phone 828-649-1337  Bryan@NationalTrainingCenter.net
Register here: https://attendee.gotowebinar.com/register/1545079201485816579
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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
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com
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