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HomeMy WebLinkAbout09753RESOLUTION NO. 9753 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND QWEST CORPORATION IN THE AMOUNT OF $5,983.86 MONTHLY FOR SERVICES AND FEES, FOR CIRCUITS TERMINATING AT 315 RICHMOND STREET, FOR TELEPHONE AND DATA SERVICE, 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 the City of Pueblo and Qwest Corporation for circuits to be used for telephone and high speed data service between City sites and Qwest facilities, a copy of which is attached hereto and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. 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. SECTION 2. This resolution becomes effective upon final resolution and passage. INTRODUCED December 23, 2002 BY Al Gurule Councilperson APPROVED: resident of City Council ATTEST: 484 i 9� 93 [. - ._... 4 Background Paper for Proposed RESOLUTION AGENDA ITEM # ) 8 DATE: DECEMBER 23, 2002 DEPARTMENT: INFORMATION TECHNOLOGY DEPARTMENT TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND QWEST CORPORATION IN THE AMOUNT OF $5,983.86 MONTHLY FOR SERVICES AND FEES, FOR CIRCUITS TERMINATING AT 315 RICHMOND STREET, FOR TELEPHONE AND DATA SERVICE, AND AUTHORIZING THE PRESIDENT OF THE COUNCIL TO EXECUTE SAME. ISSUE Should Council approve an agreement for voice and data circuits from Qwest. RECOMMENDATION Approval of this Resolution BACKGROUND The Agreement is to establish new telephone and data circuit service from Qwest. This service is required for the citywide integrated telephone system. Most of the City sites that are within blocks of City Hall will use the City's fiber optic cable to connect to the telephone system. Sites that are not within a half - mile of City Hall will connect to the telephone system using leased services from Qwest. The agreement also will establish circuits for connecting the City's telephone system and the Public Switched Telephone Network, providing a means for users of the system to make outside calls. FINANCIAL IMPACT There is a positive financial impact from acquiring these Qwest services, as they replace other Qwest services that cost the City over $13,000 monthly. The savings from these changes will be used toward the acquisition of a Citywide integrated telephone system. Agreement Number: Main Billing Number: QWEST ISDN PRIMARY RATE SERVICE AGREEMENT This is an Agreement between City of Pueblo ( "Customer"), and Qwest Corporation ( "Qwest "), for the provision of Qwest Integrated Switched Digital Network ( "ISDN ") Service ( "Service "). Customer is a Colorado state or local government agency or K -12 school, and hereby represents that, as such, it is qualified to purchase Service as a qualified entity as defined in Attachment 4 for Integrated Switched Digital Network Service to the State of Colorado Master Services Agreement OOAMA00044 (Attachment 4 #CDS- 001206 -0114) executed on about February 8, 2001 between the State of Colorado and Qwest Corporation ( "Attachment 4 to the Master Agreement "). The pricing provided hereunder will remain in effect for the term of this Agreement, and so long as the State of Colorado maintains the conditions required for such pricing, as set forth in Attachment 4 to the Master Agreement. 1. SCOPE. 1.1. Qwest shall provide and Customer shall pay for digital intraLATA, intrastate, switched local exchange telecommunications service utilizing ISDN PRI Primary Rate Interface ( "ISDN -PRI ") technology that transports and distributes voice, data, image, and /or facsimile communications separately or simultaneously over the public switched local exchange network ( "Service "), as defined herein. Service components are DS1 transport ( "DS1 "), ISDN PRI configuration, and trunks as indicated on Attachment 1, incorporated herein. Other than pricing and termination liability, Qwest shall provide Service in accordance with the applicable State Tariff, Price List, and /or Catalog ( "Tariff') which governs Service in the state Service is provided, incorporated herein by this reference. Any Supplements to this Agreement, including such additional Attachment(s) as may be added from time to time, must be made in writing and executed by the parties. Qwest is offering Service to Customer with volume and term pricing provisions ("Service Volume/Term Discount Pricing Plan "). 1.2. Pursuant to state requirements, Qwest may be required to submit this Agreement to the state commission. In the event the state commission does not approve this unique offering, Service shall be offered in accordance with the applicable Tariff provisions. In states where Qwest is required to offer Service per Tariff provisions, any conflict between the Tariff and this Agreement shall be resolved in favor of the Tariff. Tariff shall be defined as the applicable State Tariff, Price List, Price Schedule, Administrative Guideline and /or Catalog ( "Tariff') which governs Service in the state in which Service is provided. 1.3. Service operates at 1.544 megabits per second (Mops). It is comprised of 23 B channels and one D channel. Each B Channel transmits voice or data at 64 kilobits per second (Kbps). The D channel carries signaling information at 64 Kbps. 1.4. Subject to availability, a second FRS may be equipped at the same location to provide 24 B channels only (248) or to provide 23 B channels plus 1 back -up channel (23B +BUD). 1.5. Customer may also select Uniform Access Solution ( "UAS ") as indicated in Attachment 1 . UAS is a digital service offering with single number route indexing which includes a DS1 facility with common equipment and a network connection which provides for local exchange, toll network access. Each DS1 facility utilizes the channels configured as In -Only or Two -Way trunk side termination. 1.6. Customer agrees that Service shall not be used to provide long distance carrier services, including voice traffic using internet technologies, thus avoiding switched access service charges. OMR #72546 Colorado GES ISDNPRS Form 5.doc Page 1 Version: 6 -26 -02 2. TERM. 2.1. This Agreement is effective on the latest signature date and expires sixty (60) months from the date Service is available to Customer under this Agreement, as evidenced by Qwest records ( "Term "). The Minimum Service Period ( "Minimum Service Period ") for Service is twelve (12) months. 2.2. This Agreement will become effective immediately in most states, in some states, only after mandatory filing requirements are met and approved. 2.3. Should Qwest continue to provide Service after this term without a further agreement, the service charges will convert to the applicable month -to -month rate under the terms and conditions of the applicable Tariff, or in its absence, this Agreement. 3. SERVICE PROVIDED. 3.1 Qwest will provide and maintain the Service at the locations and in the quantities specified in Attachment 1, which by this reference is incorporated and made part of this Agreement. 3.2 Qwest shall notify Customer of the date Service ordered is available to Customer under this Agreement. In the event Customer is unable or unwilling to accept service at such time, the subject Service will be held available for Customer for a period not to exceed thirty (30) business days from such date ( "Grace Period "). If after this Grace Period, Customer still has not accepted service Qwest may, at its sole discretion, after consultation with Customer either: (i) commence with regular monthly billing for the subject Service; or, (ii) terminate the subject Service and invoice Customer for any applicable cancellation charges pursuant to Section 6.2, which shall include the full non - recurring installation charges that would have otherwise applied. 4. CHARGES AND BILLING. 4.1 Charges for Service shall be those specified in Attachment 1. In addition to the monthly recurring charges and nonrecurring charges specified herein, Customer shall pay Qwest all applicable taxes, usual and customary surcharges and all government imposed fees and charges that relate to the Service or installation rendered hereunder. Customer is purchasing Service hereunder as a qualified Colorado state or local government agency or K -12 school under Attachment 4 to the Master Agreement. Charges for Service hereunder will remain in effect for the term of this Agreement, and so long as the State of Colorado maintains the conditions required for such pricing, as set forth in Attachment 4 to the Master Agreement (the State must 1) maintain a minimum of eleven (11) circuits with Qwest, or 2) have the PRS ride a contracted DS3 or higher, in order to receive discounts). Customer's Service hereunder will contribute to meeting the State's requirements. In the event the State does not maintain such conditions, a pricing adjustment will be made to all PRS DS1 circuits in service, including all DS1 circuits under this Agreement. The adjustment will revert circuits to existing Tariff rates, retroactive to the original installation date, as evidenced by Qwest records. 4.2. If, within ninety (90) days of the service order application date, Qwest is unable to provide Service, Qwest will recognize both Customer's active circuits and its ordered circuits, in calculating the applicable rates. Delayed ordered circuits shall be defined as those circuits that Qwest was unable to provide within the ninety (90) day cycle. If after ninety (90) days, Customer cancels any ordered circuits which are included in determining Customer's applicable rates , Qwest will adjust the billing to reflect the correct volume level. 43. The charges for Services under this Agreement, including any and all discounts to which Customer may be entitled, will be offered and charged to Customer independently from and regardless of the Customer's purchase of any customer premises equipment or enhanced services from Qwest. 4.4. Customer shall pay each billing statement in full by the payment due date. If late payment charges are applicable and permitted by law, they may be assessed and billed at 1 1/2 percent per month or the highest lawful rate, whichever is less, on the unpaid balance. OMR #72546 Colorado GES ISDNPRS Form 5.doc Page 2 Version: 6 -26 -02 4.5. If Service is not available in Customers switch, an interoffice mileage charge for transport between switches shall apply and it will be included in the charges stabilized and specified in the Attachment(s). 5. SERVICE CHANGES. 5.1. MOVES. Customer may move the physical location of all or part of Service to another location within the same Qwest intrastate intraLATA serving area as the Service being moved, provided the following conditions for the move are met; 1) Service moved to the new location is provided to Customer by Qwest; 2) Customer advises Qwest that Service at the new location replaces existing Service; 3) Customer's requests for the disconnection of the existing Service and the installation at the new location are received by Qwest on the same date; 4) Customer requests Qwest to install the service at the new location on or prior to the disconnection date of the existing Service; and 5) Customer agrees to execute written amendments to this Agreement; pay all then current recurring and nonrecurring charges related to the service at the new location, pursuant to this Agreement; and 6) Customer agrees if the move is within the same Qwest switch, to pay $500.00 per span, and if the move is to a different Qwest switch, to pay $1,000.00 per span. 5.2. ADDITIONS TO SERVICE. Customer may request additions to Service and Qwest will supply such additions to Customer, subject to the following conditions: 1) Qwest commercially offers such additions and necessary facilities are technically and practicably available; 2) the charges for additional Service will be charged according to the following criteria: (a) if term equals thirty -six (36) months, Service may only be added through month 18 and Customer will be charged at the rates specified herein and Customer will receive a fifty percent (50 %) discount on nonrecurring charges for such additions to Service, or (b) if term equals sixty (60) months, Service may only be added through month 36 and Customer will be charged at the rates specified herein through month 36 of this Agreement and nonrecurring charges for such additions to Service will be waived. Service added after the 18th month or 36th month respectively may be added as follows: 1) Customer and Qwest may renegotiate and execute a new term Agreement that would include existing Service plus additional Service, 2) Service may be ordered under a new and separate agreement, or 3) Service maybe ordered under the month -to -month tariff rates then in effect. Threshold quantities as defined in Section 6 below will be revised to reflect Service additions. 6. TERMINATION. 6.1 Either party may terminate this Agreement for cause provided written notice is given the other party specifying the cause for termination and requesting correction within thirty (30) days is given the other party and such cause is not corrected within that thirty (30) day period. Cause is any material breach of the terms of this Agreement. If Qwest terminates this Agreement for cause or if Customer terminates this Agreement WITHOUT cause, Customer shall pay early termination charges, as follows. 6.2 If termination is prior to installation of Service and after execution of this Agreement, early termination charges shall be those reasonable expenses incurred by Qwest through the date of termination. Such charges may include, but are not limited to all engineering, planning, preparation, materials, supplies, placement, facilities, acquisition, transportation, installation, construction, and labor costs and charges incurred by Qwest, or as specified in State Tariff. 6.3 Customer may disconnect up to fifteen percent (15 %) of the initial number of DS1 circuits used to deliver PRS trunking after installation and no termination charges will apply. Notwithstanding the above, should Customer drop below the Initial Threshold Quantity indicated in Attachment 1 at any time during the Term of this Agreement, the Termination Threshold shall no longer apply to existing Service and Customer shall no longer qualify for a Termination Threshold throughout the remaining Term of this Agreement. The Initial Threshold Quantity is defined as eighty-five percent (85 %) of the initial, total circuits on this Agreement at the time of execution as set forth in Attachment 1. Starting from the time Service drops below the Initial Threshold Quantity, Customer shall pay all applicable termination charges, as defined below. 6.4. If, during the Minimum Service Period of twelve (12) months and after installation, Customer disconnects Service below any applicable Termination Threshold, Customer shall pay a termination OMR #72546 Colorado GES ISDNPRS Form 5.doc Page 3 Version: 6 -26 -02 charge based upon 100% of the monthly recurring rate for the months remaining in the Minimum Service Period. After the Minimum Service Period, Customer shall pay termination charges for Service that is below the Threshold, calculated as follows: Quantity of Service terminated at the then current service level, multiplied by the number of months remaining in this Agreement, multiplied by the Termination Liability Percentage as identified below in Table 6.4.1. Table 6.4.1.— Termination Liability TERMINATION DATE/TERM YEAR MONTH TERMINATION LIABILITY (TLA %) (Section 6.4.) 1 (1 -12) Minimum Service Period a 100 /o 2 (13 -24) 80% 3 (25 -36) 70% 4 (37 -48) 65% 5 (49 -60) 45% 6.5. A termination charge will be waived when all of the following conditions are met: 1) the Customer discontinues their contracted service(s) and signs a new service agreement(s) for any other Qwest - provided service(s), 2) the new service agreement(s) have a total value equal to or greater than 115% of the remaining prorated value of the existing agreement(s) (excluding any special construction charges, applicable nonrecurring charges, or previously billed but unpaid recurring and /or nonrecurring charges), 3) the Customer places the orders to discontinue the service and establish new service at the same time, and 4) a new minimum service period goes into effect when the new service agreement term begins. New service is defined as newly installed service placed under new service agreement(s), or newly installed additions to existing service agreement(s), but does not include renewals of expiring service agreement(s), renegotiations of existing service agreement(s) or conversions from month -to- month service to contracted service. The waiver does not apply to changes between regulated products and services, and unregulated or enhanced products and services. 7. OUT -OF- SERVICE CREDIT. If Qwest causes a Service interruption, an out -of- service credit will be calculated under the state local exchange Tariff. If there is no applicable tariff and the interruption lasts for more than twenty -four (24) consecutive hours after Qwest receives notice of it, Qwest will give Customer credit calculated by: (a) dividing the monthly rate for the affected Service by thirty (30) days; and then (b) multiplying that daily rate by the number of days, or major fraction, that Service was interrupted. 8. OWNERSHIP AND PROVISIONING OF SERVICE. Title to, and ownership of, all equipment and facilities Qwest uses in supplying Service is and remains with Qwest. Qwest will provision and supply Service described in this Attachment in any manner and by means of any equipment, software, and facilities Qwest chooses. The method of provisioning of Service is a matter within Qwest's sole discretion. 9. SERVICE SUSPENSION /MAINTENANCE. Qwest may from time to time suspend Service for routine maintenance or rearrangement of facilities or equipment. Qwest will give Customer advance notification of the Service suspension. Such Service suspension is not considered an Out -of- Service condition provided Service is restored by the end of the period specified in the notification. 10. PERSONAL INJURY; PROPERTY DAMAGE. Each party shall be responsible for any actual physical damages it directly causes in the course of its performance under this Agreement, limited to damages resulting from personal injuries, death, or property damage arising from negligent acts or omissions; PROVIDED HOWEVER, THAT NEITHER PARTY SHALL BE LIABLE FOR ANY OMR #72546 Colorado GES ISONPRS Form 5.doc Page 4 Version: 6 -26 -02 INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT. 11. LIMITATION OF LIABILITY. QWEST SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT. EXCEPT AS PROVIDED IN THIS AGREEMENT, ANY QWEST LIABILITY TO CUSTOMER FOR ANY DAMAGES OF ANY KIND UNDER THIS AGREEMENT SHALL NOT EXCEED, IN AMOUNT, A SUM EQUIVALENT TO THE APPLICABLE OUT -OF- SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT. 12. NO WARRANTIES. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 13. UNCONTROLLABLE CONDITIONS. Neither party shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations under this Agreement by reason of severe weather and storms; earthquakes or other natural occurrences; strikes or other labor unrest; power failures; nuclear or other civil or military emergencies; acts of legislative, judicial, executive or administrative authorities; or any other circumstances which are not within its reasonable control. 14. DISPUTE RESOLUTION. The parties shall attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or related to this Agreement. Either party may initiate negotiations by providing a Notice to the other party setting forth the dispute and the relief requested. If the parties are unable to resolve such dispute within a reasonable period of time, either party may commence a civil action in a court of competent jurisdiction located, at the option of the moving party, in either (i) the place of business of the other party, as indicated in the address set forth for such party on the Signature Page to this Agreement, or (ii) in Pueblo, Colorado. Each party hereby expressly waives its right to a trial by jury and consents to the jurisdiction of such courts for the purposes herein. Such court shall have no authority to award any indirect, incidental, special, punitive or consequential damages, including damages for lost profits. 15. LAWFULNESS. This Agreement and the parties' actions under this Agreement shall comply with all applicable federal, state, and local laws, rules, regulations, court orders, and governmental agency orders. Any change in rates, charges or regulations mandated by the legally constituted authorities will act as a modification of any contract to that extent without further notice. The laws of the state where Service is provided shall govern this Agreement. 16. SEVERABILITY. In the event that a court, governmental agency, or regulatory agency with proper jurisdiction determines that this Agreement or a provision of this Agreement is unlawful, this Agreement, or that provision of the Agreement to the extent it is unlawful, shall terminate. If a provision of this Agreement is terminated but the parties can legally, commercially and practicably continue without the terminated provision, the remainder of this Agreement shall continue in effect. 17. GENERAL PROVISIONS. 17.1. Failure or delay by either party to exercise any right, power, or privilege hereunder will not operate as a waiver hereto. 17.2. This is a retail end user contract. It may be assigned only with the consent of Qwest which shall not be unreasonably withheld. Customer may not assign to a reseller or a telecommunications carrier under any circumstances. 17.3. This Agreement benefits Customer and Qwest. There are no third party beneficiaries. 17.4. This Agreement constitutes the entire understanding between Customer and Qwest with respect to Service provided herein and supersedes any prior agreements or understandings. OMR #72546 Colorado GES ISDNPRS Form 5.doc Page 5 Version: 6 -2fi -02 FED 18 2003 13:14 FR VICORP 3032954521 TO 93033838100 P.07i06 17.5. To the extent authorized by Section 10 of Article II or Articles X, XI, or XX of the Colorado Constitution, the Colorado Open Records Act, §24-72 -201, at seq., C.R.S., the Colorado Open Meetings Law, §24- 6-401, et. seq.. C.R.S., or the Charter or Ordinances of the City of Pueblo, nothing in this Agreement shall be construed to prohibit Customer from public dissemination of any information Concerning this Agreement, the identity of parties to this Agreement, the terms of this Agreement or Customer's assessments of Ciwesfs performance under this Agreement. Notwithstanding the foregoing, nothing in this paragraph shall authorize Customer to appropriate or to use any trademark, intellectual property or other identifying symbol of Qwest except as specifically authorized by the terms of this Agreement, or as allowed by law, or with the prior written approval of Qwest. 18. EXECUTION. If a party returns this Agreement by facsimile machine. the signing party intends the copy of this authorized signature printed by the receiving facsimile machine to be its original signature. The parties hereby execute and authorize this Agreement as of the latest date shown below. Notices concerning this Agreement may be sent to Qwest's Customer billing address of record or to Customer's Address for Notices specified herein, if any. City % eblo Authorized Signature Michael A. Occhiato Name Typed or Printed President of Council Title 1)ECcrn E2 2 3 1 200$ Date Address for Notices: 1 City Hall Place Pueblo, CO 81003 QWEST CORPORATION a" 4 j Y Authorized Signature Stephen Brinkman Name Typed or Printed Director of Offer Management Title 2/19/03. Date Address for Notices: 1801 California Blvd. Denver, CO 80202 OMR #72546 Colorado GES ISONPRS Farm 5.doc Page 0 Vereion: &2 6-02 Agreement Number: Main Billing Number: ATTACHMENT 1TO THE QWEST ISDN PRIMARY RATE SERVICE AGREEMENT City of Pueblo Customer Customer Address 315 Richmond Pueblo, Colorado Circuit ID or BTN Service — FS PRI Qty 2 USOC Z4D Z4D Higher Facility (Yes or No) Yes Monthly Recurring Charge/Ea 5750.00 $ Non - Recurring Charge/Ea $0.00 $ Z4D $ $ Z4D $ $ Z4D $ $ Z4D $ $ Z4D $ $ Z4D $ $ Z4D $ $ Z4D $ $ Total Rate Stabilized Monthly Recurring for above Service Total Nonrecurring Charge for above Service Customer's initial quantity of DS1 circuits used to deliver PRS is 2 DS1 circuits. The Initial Threshold Quantity is 1_7 DS1 Circuits Should th total number of DS1 Circuits drop below this Initial Threshold Quantity Customer shall no longer qualify Termination Threshold as set forth in Section 6.3 of the Supplement. Customer Initials' Date: $1500.00 $0.00 Colorado GES ISDNPRS Form 4.doc Page 7 Version: 4 -23 -02