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HomeMy WebLinkAbout11692RESOLUTION NO. 11692 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE PUEBLO, A MUNICIPAL CORPORATION AND CELLCO PARTNERSHIP D /B /A VERIZON WIRELESS, FOR THE PURPOSE OF PROVIDING 311 DIALING SERVICE WITHIN THE CITY OF PUEBLO AND AUTHORIZING THE PRESIDENT OF THE COUNCIL TO EXECUTE SAME. BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement between Pueblo, a Municipal Corporation and Cellco Partnership, dba Verizon Wireless, a copy of which is attached hereto and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of Council is hereby directed and authorized to execute the Agreement in the name and on behalf of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. A77TSTDD SY: CITY CLERK INTRODUCED: September 14, 2009 BY: Michael Occhiato } C � OUNCILPERSON APPR D' } �- PRESIDENTaf Cfty Council 4 Background Paper for Proposed RESOLUTION AGENDA ITEM # M -7 DATE: 9/14/2009 DEPARTMENT: INFORMATION TECHNOLOGY DEPARTMENT & LAW OFFICE TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND CELLCO PARTNERSHIP D /B /A VERIZON WIRELESS, FOR THE PURPOSE OF PROVIDING 311 DIALING SERVICE WITHIN THE CITY OF PUEBLO AND AUTHORIZING THE PRESIDENT OF THE &J -11] Should the City Council approve an agreement between the City and Cellco Partnership to provide 311 dialing service on Verizon's wireless network within the City of Pueblo? RECOMMENDATION Approval of Resolution BACKGROUND The City of Pueblo implemented 311 services for calls placed within the Pueblo area in March of 2004. 311 service is a three digit dialing arrangement available within designated 311 service areas for delivery of non - emergency police and other government agency information and assistance via voice grade facilities, in compliance with the Federal Communications Commission's ( "FCC ") order in Docket No. 92- 105 ( "FCC Order "). The City has been authorized to provide this service in Pueblo by the Colorado Public Utilities Commission. "311" service is operated by the City of Pueblo to field calls regarding diverse local issues including notice of downed trees, noise complaints, and street or traffic signal problems. At the time of implementation, "311" service was available mostly on landlines within the City limits. Persons calling "311" on landlines were directed to City call takers based upon their zip code. Many of the wireless providers were unable to provide "311" service to their customers who were within only the City limits because of the capital expense required to route calls based upon the caller's number, the path of the call, and its location proximate to a cell tower. Over the years, 311 service has become a desired phone service in many communities as citizens used and come to rely on its ease of use, consequently, many wireless providers have started making the investments necessary to provide "311" services in order to better serve their customers. In order to provide citizens with Verizon wireless service the ability to dial "311" and obtain assistance, the City of Pueblo must enter into this agreement with Verizon. FINANCIAL IMPACT None anticipated. COOPERATIVE AGREEMENT BETWEEN PUEBLO, COLORADO AND CELLCO PARTNERSHIP DB /A VERIZON WIRELESS This Cooperative Agreement ( "Agreement "), effective as of the date executed by authorized representatives of both parties ( "Effective Date "), shall constitute the terms and conditions under which Cellco Partnership d /b /a Verizon Wireless, a Delaware general partnership, and the entities denoted on the attached Verizon Wireless signature page, having their principal place of business at 180 Washington Valley Road, Bedminster, New Jersey 07921 (individually and collectively " Verizon Wireless ") shall provide 311 dialing service to Pueblo, a Municipal Corporation, having its principal place of business at 1 City Hall Place, Pueblo, CO 81003(the "Requesting Entity") within the City of Pueblo, Colorado as identified in Exhibit A (the "Designated 311 Service Area "). Terms and Conditions General Information. a. 311 Service Description. 311 service is a three digit dialing arrangement available in specified areas the Designated 311 Service Area for delivery of non - emergency police and other government agency information and assistance via voice grade facilities, in compliance with the Federal Communications Commission's ( "FCC ") order in Docket No. 92 -105 ( "FCC Order "), but only in the areas, described below, where Verizon Wireless operates its wireless service. b. Certification of Requesting Entity. The Requesting Entity certifies that it provides access to the non - emergency police and other government agency information and assistance via voice grade facilities within the Designated 311 Service Area that it has received any requisite state approval to 311 dialing service, and thus is qualified to request the use of 31 1 Service. 2. Requesting Entity's Obligations. a. Provision of Termination Number. The Requesting Entity will provide with a single local number to which all 311 calls should be translated as identified in Exhibit A (the "Termination Number "). b. Change of Termination Number(s). The Requesting Entity may change the Termination Number, provided, however, that it must give Verizon Wireless at least 30 days notice of the change of such number so that Verizon Wireless can make the necessary changes in its network to ensure proper routing. The Requesting Entity must also give Verizon Wireless 30 days notice of a change in the carriers providing the Termination Number, as this will affect Verizon Wireless' routing. C. Provision of the Designated 311 Service Area Non - emergency Police and Other Government Agency Information and Assistance. No later than 6 months from the date of request (or upon another mutually agreed upon date) the Requesting Entity shall provide the Designated 311 Service Area non - emergency police and other government agency information and assistance to customers who dial 311 within the Designated 311 Service Area. The Requesting Entity agrees (i) to have procured telecommunications facilities and services that are, in the opinion of the Requesting Party, sufficient to handle its expected volume of calls, and (ii) to have staffing levels and hours of service that are, in the opinion of the Requesting Party, adequate to handle its expected volume of calls. The Requesting Entity will: i. be responsible for all costs associated with the establishment, operation and maintenance of such telephone number and call center. ii. be responsible for ensuring that, even during peak calling periods and times of increasing call volumes, sufficient capacity is available in connection with such telephone number to enable 311 calls to be answered by the Requesting Entity's call center within a reasonable period of time. This provision shall not apply during any denial of service attacks upon the 311 service. iii. be solely responsible to answer, respond to, transfer, redirect, terminate or otherwise handle 311 calls made by Verizon Wireless customers in the Designated 311 Service Area and translated by Verizon Wireless to the Termination Number provided to Verizon Wireless by the Requesting Entity. iv. promptly furnish Verizon Wireless, at the Requesting Entity's expense, all technical material, data and like information reasonably requested by Verizon Wireless under this Agreement as necessary to provide the services described in this Agreement. v. provide Verizon Wireless with prompt access to the Requesting Entity's premises if reasonably requested by Verizon Wireless as necessary to provide the services described in this Agreement. vi. cooperate with Verizon Wireless and all necessary third parties in all aspects of implementing, scheduling, testing, verifying, operating and maintaining the Service, provided that if such cooperation imposes a financial obligation upon the Requesting Entity, then the parties shall agree in advance as to the costs and courses of action. vii. develop and provide to Verizon Wireless, processes for receiving and responding to inquiries, complaints and requests for information from Verizon Wireless customers about the Requesting Entity's 311 Service. d. Testing. The Requesting Entity shall participate fully in all testing deemed necessary or appropriate by Verizon Wireless for implementation of 311 service. Verizon Wireless' Obligations. a. Implementation. Verizon Wireless customers will be able to dial 311 using their wireless handsets when within the Designated 311 Service Area serviced by certain Verizon Wireless Mobile Telephone Switching Office(s) ( "MTSO(s) "), and Verizon Wireless will translate those calls to the Termination Number provided to Verizon Wireless by the Requesting Entity within this area (the "Service "). The Designated 311 Service Area may include adjoining areas beyond the Requesting Entity's jurisdiction ( "Bleed Over Area "), both of which are described in more detail in Exhibit A. Verizon Wireless will use commercially reasonable efforts to design call routing based on the location of its MTSO to provide the Service to include the entire area indicated by the Requesting Entity however, both Parties acknowledge that the actual Service Area may differ from the area requested by the Requesting Entity. Verizon Wireless customers who make 311 calls using their wireless handsets in the Designated 311 Service Area will be charged by Verizon Wireless in accordance to the calling plans applicable to each such customer at the time of the calls. These charges are subject to change at any time, in the sole discretion of Verizon Wireless, in accordance with the agreements in place between Verizon Wireless and the customers. To the extent the Designated 311 Service Area includes Bleed Over Area beyond the Requesting Entity's boundaries, if Verizon Wireless receives a request from an entity that has authority to provide 311 services in any portion of the Bleed Over Area ( "Surrounding Jurisdiction ") to provide 311 Service within such Bleed .Over Area, the Requesting Entity agrees to coordinate with Verizon Wireless and such Surrounding Jurisdiction to implement 311 services within the affected Bleed Over Area(s). Such coordination shall include the routing by the Requesting Entity of 311 calls made within the Bleed Over Area of the Designated 311 Service Area, through its interactive voice response or call centers systems, to the Surrounding Jurisdiction's interactive voice response or call center systems, upon translation of those calls by Verizon Wireless to the Requesting Entity's Termination Number. If the Requesting Entity does not provide routing of 311 calls made within the affected Bleed Over Area (s), through its interactive voice response or call centers systems, to the Surrounding Jurisdiction, the Requesting Entity agrees to resolve any jurisdictional issues with the Surrounding Jurisdiction(s) and will, to the extent permitted by law, indemnify Verizon Wireless against any claim brought by a Surrounding Jurisdiction that the Requesting Entity's 311 Service impinges on the 311 service jurisdiction of the Surrounding Jurisdiction. The Service is subject to transmission limitations and dropped calls. The Designated 311 Service Area may contain areas with no service. The Service is subject to network and transmission limitations, including cell site unavailability, particularly in remote areas. Customer equipment, weather, topography and other atmospheric and environmental considerations associated with radio technology also will affect the Service. Voice clarity and reception may vary near coverage boundaries. Additionally, voice clarity and reception may vary significantly within buildings depending on location or building structure. The Service may be temporarily refused, limited, interrupted or curtailed due to Designated 311 Service Area coverage disputes, system capacity limitations and/or equipment modifications, upgrades, relocations, repairs and similar activities necessary for the proper operation of the Service. Verizon Wireless assumes no liability for any such limitations, constraints or restrictions. Unless otherwise stated herein, there shall be no charge to Requesting Entity to design, implement and maintain the 311 Service as outlined in this Agreement. In the event that modifications are required after implementation to continue providing the Service which result from: (1) a change in the current scope of the Service, (2) the Requesting Entity's failure to comply with the terms of this Agreement or (3) other conditions required by law, the parties will meet and confer to determine whether any portion of the costs of same should be borne by the Requesting Entity. b. Timing of Implementation. Verizon Wireless will provide the Requesting Entity's order within a reasonable time to be mutually agreed upon by the parties, no sooner than six weeks, nor later than six months after receiving a request. C. Delay/Force Majeure: Verizon Wireless shall provide the services described in this Agreement pursuant to applicable law, rules and regulations, and any mutually agreed to implementation plan, but Verizon Wireless shall not be liable for any delays resulting from acts of God, acts of third parties, equipment failures, strikes, severe weather conditions, fires, riots, wars, earthquakes, equipment or facility shortages or any other causes beyond its reasonable control. The Parties further acknowledge that successful and timely provision of the Service is contingent upon the timely performance of actions by and cooperation of many third parties, including, but limited to, actions that must be completed by the provider of the transmission links between Verizon Wireless and the Requesting Entity or between Verizon Wireless and any agents used by the Requesting Entity. 4. General Provisions. a. Term. Subject to section 4.b., the term of this Agreement shall commence on the date of execution of the Agreement by the parties and shall continue for a period of one (1) year. After the conclusion of the one -year term, the Agreement will continue until terminated by either party with thirty (30) days advance written notice. b. Termination. The Requesting Entity acknowledges that a final decision has not been reached by the FCC as to whether commercial mobile radio service ( "CMRS ") providers such as Verizon Wireless are required to provide 311 service. Motions for Reconsideration are currently pending in CC Docket No. 92 -105 regarding CMRS carrier participation in certain abbreviated dialing services. Accordingly, Verizon Wireless may elect to terminate this Agreement upon 60 days notice to the Requesting Entity, if the FCC determines by a final and non - appealable order that (i) CMRS carriers, such as Verizon Wireless, are not required to provide 311 service; or (ii) the 311 dialing code should no longer be assigned to non emergency police and other governmental agency information and assistance. Either party may terminate this Agreement upon 60 days notice in the event of any emergency or other event outside the reasonable control of the party that impairs or prevents the party from performing its obligations herein. Either party may terminate this Agreement in whole or in part in the event of a material default by the other party; provided however, that the non - defaulting party notifies the defaulting party in writing of the alleged default and that the defaulting party does not cure the alleged default within 60 days of receipt of written notice thereof. Default is defined to include (i) a party's insolvency or the initiation of bankruptcy or receivership proceeding by or against the party; or (ii) a party's refusal or failure in any material respect properly to perform its material obligations under this Agreement, or the violation of any of the material terms or conditions of this Agreement. C. Transfer /Assignment. The Requesting Entity may not sell or otherwise transfer the 311 number (or the provision of the designated 311 Service area non - emergency police and other governmental agency information and assistance) to any person or entity not affiliated with the Requesting Entity. The Requesting Entity may not assign any of its rights, nor delegate any of its obligations, under this Agreement to any person or entity not affiliated with the Requesting Entity without the prior written consent of Verizon Wireless. Verizon Wireless, however, may assign this Agreement to any third party without the consent of the Requesting Entity. All the terms and conditions of this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective permitted successors and assigns. d. Indemnification. (i) To the extent permitted by law, the Requesting Entity shall defend, indemnify, protect and hold Verizon Wireless harmless against all third party claims, suits, actions, demands and judgments, and all of the costs, expenses (including reasonable attorneys' fees and costs) ( "Claims ") arising out of or in connection with (directly or indirectly) (a) any breach or default in the performance of any obligation on the Requesting Party's part to be performed under this Agreement, and, (b) with Requesting Entity's provision of the designated 31 1 Service Area non- emergency police and other governmental agency information and assistance via voice grade facilities, except to the extent such Claims arise from the negligence or willful misconduct of Verizon Wireless, its directors, officers, employees, agents or subcontractors . (ii) To the extent permitted by law, Verizon Wireless shall defend, indemnity, protect and hold the Requesting Entity harmless against all third party Claims arising out of, or in connection with (directly or indirectly) any material breach or default in the performance of any obligation on Verizon Wireless' part to be performed under this Agreement, except to the extent such Claims arise from the negligence or willful misconduct of the Requesting Entity, its directors, officers, employees, agents or subcontractors. e. Limitation of Liability. In no event shall Verizon Wireless be liable for any losses or damages of any kind resulting from the unavailability of its equipment or facilities or for any act, omission or failure of performance by the Requesting Entity, its employees, or agents, in connection with the service requested by the Requesting Entity. In no event shall Requesting Entity be liable for any losses or damages of any kind resulting from the unavailability of its equipment or facilities or for any act, omission or failure of performance by Verizon Wireless, its employees, or agents, in connection with the service provided by Verizon Wireless. Verizon Wireless shall not be responsible to the Requesting Entity for calls that cannot be completed as a result of repair or maintenance difficulties on Verizon Wireless facilities and equipment nor on equipment owned or leased by the Requesting Entity. Requesting Entity shall not be responsible to Verizon Wireless for calls that cannot be completed as a result of repair or maintenance difficulties on Requesting Entity's facilities and equipment. Except as otherwise provided in this Agreement, each party agrees that the other party shall in no event be liable for, and each party expressly waives its right to claim, any indirect, special, collateral, exemplary, incidental or consequential damages (including, but not limited to, lost profits) directly or indirectly arising out of or in connection with performance or nonperformance of the services provided under this Agreement. EXECPT AS OTHERWISE EXPRESSELY PROVIDED IN THIS AGREEMENT, NEITHER VERIZON WIRELESS NOR THE REQUESTING ENTITY ASSUMES ANY LIABILITY FOR ANY ACT OR OMISSION OF THE OTHER, BY VIRTUE OF ENTERING INTO THIS AGREEMENT. Nothing in this Agreement is intended, nor should it be construed, to create or extend any rights, claims or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations otherwise conferred to Requesting Entity under or by virtue of federal or state law, including but not limited to the Colorado Governmental Immunity Act, C.R.S. §24 -10 -101, et. seMc . f. No Third Party Beneficiary Relationship or Liability Created: Verizon Wireless offers the services described in this Agreement solely as an aid in the Requesting Entity's provision of non - emergency public safety services pursuant to the FCC Order. Verizon Wireless' provision of the Services described in this Agreement does not create any relationship or obligation, direct or indirect, to any person or entity other than the Requesting Entity. g. Disclaimer of Warranties. NOT WITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE PARTIES AGREE THAT NO PARTY HAS MADE, AND THAT THERE DOES NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE FOR ANY SERVICE (OR GOODS) PROVIDED UNDER THIS AGREEMENT. VERIZON WIRELESS PROVIDES A SERVICE UNDER THIS AGREEMENT AND NOT "GOODS" AS DEFINED IN THE UNIFORM COMMERCIAL CODE. h. Contact Information. All contacts regarding this Agreement shall be provided in writing (by fax or overnight courier), as follows: Name: David Kostreva Address: 8350 E Crescent Pkwy City: Greenwood Village Phone Number: 303 - 694 -5545 Name: Lori Pinz /Asst. IT Director Address: 150 Central Main City: Pueblo Phone Number: 719 -553 -2424 CONTACT INFORMATION (240065) State: CO ZIP: 80111 Fax Number. (303)694 -5590 CONTACT INFORMATION (240065) State: CO ZIP: 81003 Fax Number: 719 -553 -2488 Governing Law: The laws of the State of Colorado, without reference to its conflict of laws provisions, except for matters within the exclusive jurisdiction of the FCC or federal law, rules or regulations. j. Severability: If any provision(s) of this Agreement is determined to be invalid or contrary to any existing or future law, rules or regulations in any jurisdiction, or any order of a court of competent jurisdiction or other governmental authority of competent jurisdiction, such invalidity shall not impair the operation of any other provision(s) in this Agreement or affect the operation of that provision(s) in any other jurisdiction. To the extent a provision(s) cannot be severed from this Agreement without substantially diminishing the economic value of this Agreement to a Party, that Party may terminate this Agreement consistent with Section 4. k. Headings: The headings and captions of this Agreement are inserted for convenience and identification only and are in no way intended to define, limit or expand the scope and intent of this Agreement. Where the context so requires, the singular shall include G1 the plural. The references in this Agreement to "Section" or "section" are to sections of this Agreement unless the context clearly requires otherwise. Entire Agreement: This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements or understandings, whether written or oral, with respect to the Service. In WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Cooperative Agreement and to affix their respective corporate seals, as of the Effective Date. REQUESTING ENTITY: PUEBLO A MUNICIPAL CORPORATION Signature: u� Printed Name: Vera Ortegon Title: President of City Council Date: September 14, 2009 VERIZON WIRELESS: CELLCO PARTNERSHIP d /b /a Verizon ss Signatur : Printed Name: Walter L. Jones, Jr. Title: Area Vice Preside t Network Date: 2 I Appr n To Form 3y: hn topher W. Moors: Staff Counsel Verizon Wireless EXHIBIT A - TERMINATION NUMBER & DESIGNATED 311 SERVICE AREA YY "M I nl 11Li1 =11u'I1DI:1W3111W rWf1 SERVICE AREA (by State and County): City of Pueblo, Colorado BLEED OVER AREA (by State and County): Fremont County, El Paso County, Crowley County, Lincoln County, Custer County, Huerfano County, Las Animas County, and Pueblo County. Please Note: These cities and /or counties listed above do not represent actual wireless service availability or wireless coverage. The Designated 311 Service Area and Bleed Over Area contain areas with no service. The Service is subject to network and transmission limitations, including cell site unavailability, particularly in remote areas. Customer equipment, weather, topography and other environmental considerations associated with radio technology also will affect the Service. Voice clarity and reception may vary near coverage boundaries. Additionally, voice clarity and reception may vary significantly within buildings depending on location or building structure.