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HomeMy WebLinkAbout7564RESOLUTION NO. 7 5 6 4 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND U.S. WEST COMMUNICATIONS, INC., AND AUTHORIZING THE PRESIDENT OF THE COUNCIL TO EXECUTE SAME. BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, THAT: SECTION 1. The contract between the City of Pueblo, a Municipal Corporfaon, and U.S. West Communications, Inc., relating to the purchase of central office -based local exchange telecommunications service is hereby approved. SECTION 2. Funds for the contract have been budgeted and will be paid out of the accounts for departments using the service. SECTION 3. The President of the City Council is hereby authorized to execute this contract for and on behalf of the City and the City Clerk is authorized and directed to attest same and affix the seal of the City thereto. Introduced February 13 1995 B (HAPJ ES JONES Cou ilman APPROVE �JV4444 President of the Council ATTEST: 1 /0 - W-61 11-1-1-Al-Ve Agreement Number Billing Number U S WEST NETWORK SERVICE AGREEMENT GENERALTERMS Intrastate This is an agreement between PUEBLO, A MUNICIPAL CORPORATION ( "CUSTOMER ") and U S WEST Communications, Inc. ( "USWC "), for the provision of the U S WEST Service defined on the Attachments ( "Service "), which are incorporated herein by this reference. Where the Attachments conflicts with these General Terms, the Attachments will prevail. 1. SCOPE. Under this Agreement, USWC shall furnish and CUSTOMER shall pay for Service as defined on the Attachments. USWC shall provide Service up to the Standard Network Interface ( "SNI ") at CUSTOMER's premises. The SNI is that location where USWC's protected network facilities end and CUSTOMER's inside wire or network begins. USWC provides Service in accordance with the applicable Tariff, Price List, and /or Catalog ( "Tariff ") which governs Service in the state Service is provided, incorporated herein by this reference. 2. TERM. This Agreement will commence on the latest signature date, provided mandatory filing requirements are met. The term of this Agreement will expire thirty -six (36) months from the first installation date of Service, as evidenced by USWC's records. Should USWC 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. Customer and USWC will within ninety (90) days prior to the expiration of this Agreement confer with respect to extending this Agreement. 3. CHARGES AND BILLING. CUSTOMER agrees to pay the charges for Service as specified on the Attachments. These charges do not include applicable taxes imposed by law. CUSTOMER shall pay each bill in full by the payment due date on each bill. Where permitted by law, late payment charges shall be assessed according to Tariff, or law. 4. TERMINATION. Either party may terminate this Agreement for cause provided written notice specifying the cause for termination and requesting correction within thirty (30) days is given the other party and such cause is not corrected within such thirty (30) day period. Cause is any material breach of the terms of this Agreement. If USWC terminates this Agreement for cause, or if CUSTOMER terminates this Agreement WITHOUT cause, CUSTOMER shall pay discontinuance charges. If termination is prior to installation of Service, discontinuance charges shall be those reasonable costs incurred by USWC through the date of termination. Termination Charges for Service discontinued after installation are defined on the Attachments. 5. INTERRUPTIONS TO SERVICE. Tariff specifies the credit allowance due CUSTOMER, if any, for interruptions to Service which are not caused by CUSTOMER's negligence. OCTOBER 3, 1994 /EEM/CAMIPUEBLO CITY GOVERNMENT DEN - 941003 -0018 /EG PAGE 1 6. PERSONAL INJURY; PROPERTY DAMAGE. Each party shall be responsible for any actual physical damages it directly causes to the other 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 TO THE OTHER FOR ANY 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. 7. LIMITATION OF LIABILITY. USWC 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 SECTION 6, ANY USWC LIABILITY TO CUSTOMER FOR ANY DAMAGES OF ANY KIND UNDER THIS AGREEMENT SHALL NOT EXCEED, IN AMOUNT, A SUM EQUIVALENT TO THE APPLICABLE CREDIT FOR INTERRUPTIONS TO SERVICE UNDER THIS AGREEMENT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT. 8. NO WARRANTIES. EXCEPT AS OTHERWISE EXPRESSED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 9. UNCONTROLLABLE CIRCUMSTANCES. 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. 10. DISPUTE RESOLUTION. 10.1 Other than those claims over which a regulatory agency has exclusive jurisdiction, all claims arising under this Agreement, regardless of legal theory, whenever brought and whether between the parties or between one of the parties to this Agreement and the employees, agents or affiliated businesses of the other party, shall be resolved by arbitration. A single arbitrator engaged in the practice of law and knowledgeable about telecommunications law shall conduct the arbitration in accordance with the then current rules of the American Arbitration Association ( "AAA "). 10.2. All expedited procedures prescribed by the AAA shall apply. The arbitrator's decision shall be final and binding and judgment may be entered in any court having jurisdiction thereof. 10.3. Other than the determination of those claims over which a regulatory agency has exclusive jurisdiction, federal law (including the provisions of the Federal Arbitration Act, 9 U.S.C. Sections 1 -15) shall govern and control with respect to any issue relating to the validity of this Agreement to arbitrate and the arbitrability of the claims. 10.4. If any party files a judicial or administrative action asserting claims subject to arbitration, and another party successfully stays such action and /or compels arbitration of such claims, the party filing the action shall pay the other party's costs and expenses incurred in seeking such stay or compelling arbitration, including reasonable attorney's fees. OCTOBER 3, 1994 /EEM/CAM/PUEBLO CITY GOVERNMENT DEN - 941003 -0018 /EG PAGE 2 11. 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 including the Modification of Final Judgment (MFJ), as issued in United States v. Western Electric C o., et al., Civil Action No. 82 -0192, U.S. District Court for the District of Columbia, and all subsequent orders issued in or related to that proceeding. This Agreement shall be governed by the laws of the state where Service is provided. Any change in rates, charges or regulations authorized by the legally constituted authorities will act as a modification of any contract to that extent without further notice. 12. 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. Further, if USWC determines that this Agreement or a provision of this Agreement is inconsistent with the MFJ, this Agreement or that provision shall terminate upon written notice to the CUSTOMER to that effect. 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. 13. NON - APPROPRIATIONS. 13.1. CUSTOMER intends to continue this Agreement for its entire term and to satisfy its obligations hereunder. For each succeeding fiscal period, (a) CUSTOMER agrees to include in its budget request appropriations sufficient to cover CUSTOMER's obligations under this Agreement, (b) CUSTOMER agrees to use all reasonable and lawful means to secure these appropriations, (c) CUSTOMER agrees it will not use non - appropriations as a means of terminating this Agreement in order to acquire functionally equivalent products or services from a third party. CUSTOMER reasonably believes that sufficient funds to discharge its obligations can and will lawfully be appropriated and made available for this purpose. 13.2. In the event that CUSTOMER is appropriated insufficient funds, by appropriation, appropriation limitation or grant, to continue payments under this Agreement and has no other funding source lawfully available to it for such purpose (as evidenced by notarized documents provided by CUSTOMER and agreed to by USWC, CUSTOMER may terminate this Agreement by giving USWC not less than thirty (30) days prior written notice. Upon termination and to the extent of lawfully available funds, CUSTOMER shall remit all amounts due and all costs reasonably incurred by USWC through the date of termination. 14. GENERAL PROVISIONS. 14.1. Failure or delay by either party to exercise any right, power, or privilege hereunder, shall not operate as a waiver hereto. 14.2. This Agreement shall not be assignable by CUSTOMER without the express written consent of USWC. 14.3. This Agreement benefits CUSTOMER and USWC. There are no third party beneficiaries. 14.4. This Agreement constitutes the entire understanding between CUSTOMER and USWC with respect to Service provided herein and supersedes any prior agreements or understandings. OCTOBER 3, 19941EEMICAWPUEBLO CITY GOVERNMENT DEN - 941003 -00181EG PAGE 3 The parties hereby execute and authorize this Agreement as of the latest date shown below: Pueblo, a Municipal Corporation U S WEST Communications, Inc. \, J Authorized Signature Authorized Signature CHRISTIAN WEA Name Typed Or Printed Name Typed Or Printed PRESIDENT OF THE COUNCIL Title FEBRUARY 13, 1995 Date P. 0. Box 1427 PUEBLO, CO. 81002 Address for Notices Title Date Address for Notices OCTOBER 3,1994 /EEM/CAM/PUEBLO CITY GOVERNMENT DEN - 941003 -0018 /EG PAGE 4 ATTACHMENT 1 U S WEST CENTREX PLUS SERVICE RATE STABILITY PLAN 1. SCOPE. USWC shall provide and CUSTOMER shall purchase CENTREX PLUS Service ( "Service "). Service is an intrastate, intraLATA, USWC central office -based local exchange telecommunications service which includes: 1) transport of CUSTOMER's business communications between the SNI at CUSTOMER's location(s) covered by this Agreement and USWC's serving central office; 2) intraCUSTOMER calling capability (intercommunication); 3) use of related Service features; and 4) Exchange /Network Access. Service is provided by means of Main Station Lines, stored program controlled central office switching equipment, and either a per Main Station Line (non- blocked) access to the general network or controlled (blocked) access through the use of Network Access Registers, as determined by CUSTOMER. This Agreement provides rate stability for Main Station Lines, Features, and Facility Arrangements only 2. MOVES, CHANGES. CUSTOMER may request changes to location, quantity, type, or grade of Service and USWC shall grant such requests subject to the availability of facilities and the terms and conditions of the applicable Tariff. CUSTOMER agrees to pay all rates and charges that apply to the requested changes. 3. TERMINATION. If after installation of Service CUSTOMER requests termination of Main Station Lines to a level that is less than eighty percent (80 %) of the actual initial number of Main Station Lines installed (as evidenced by USWC's records), CUSTOMER shall pay early termination charges based on: monthly charges for Service terminated below the eighty percent (80 %) threshold, multiplied by fifty percent (50 %), multiplied by an annuity factor, plus the balance of all billed but unpaid recurring and all outstanding non - recurring charges. The annuity factor will be determined by a standard annuity table based on 1) an effective percentage rate that reflects the appropriate USWC cost of money; and 2) the number of months remaining in the term of this Agreement. 4. CHARGES. 4.1. The Main Station Lines covered by this Agreement shall be provided between USWC's Pueblo Main, Pueblo, CO and CUSTOMER's associated Service locations. Each Main Station Line will include the separately rated common line facility and the separately rated standard feature package. USWC's records shall document CUSTOMER's Service location(s), quantities, and the Tariff monthly recurring rates stabilized under this Agreement, as well as the Tariff non - recurring charges for initial installation. USWC's records are incorporated into this Agreement by reference. 4.2. For each Main Station Line, the sum of the Federal Communications Commission end user common line charge, the rate stabilized common line facility charge, and the rate stabilized standard feature package charge will remain the same during the term of this Agreement. OCTOBER 3, 1994 /EEM/CAM/PUEBLO CITY GOVERNMENT DEN - 941003 -0018 /EG PAGE 5 Agreement Number G ZZSL Billing Number -5 - U 3 WEST NETWORK SERVICE AGREEMENT GENERAL TERMS Intrastate This is an agreement between PUEBLO, A MUNICIPAL CORPORATION ( " CUSTOMER ") and U S WEST Communications, Inc. ( "USWC "), for the provision of the U S WEST Service defined on the Attachments ( "Service "), which are incorporated herein by this reference. Where the Attachments conflicts with these General Terms, the Attachments will prevail. 1. SCOPE. Under this Agreement, USWC shall furnish and CUSTOMER shall pay for Service as defined on the Attachments. USWC shall provide Service up to the Standard Network Interface ( "SNI ") at CUSTOMER's premises.. The SNI is that location where USWC's protected network facilities end and CUSTOMER's inside wire or network begins. USWC provides Service in accordance with the applicable Tariff, Price List, and /or Catalog ( "Tariff') which governs Service in the state Service is provided, incorporated herein by this reference. 2. TERM. This Agreement will commence on the latest signature date, provided mandatory filing requirements are met. The term of this Agreement will expire thirty-six (36) months from the first installation date of Service, as evidenced by USWC's records. Should USWC 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. Customer and USWC will within ninety (90) days prior to the expiration of this Agreement confer with respect to extending this Agreement. 3. CHARGES AND BILLING. CUSTOMER agrees to pay the charges for Servico as specified on the Attachments. These charges do not include applicable taxes imposed by law. CUSTOMER shall pay each bill in full by the payment due date on each bill. Where permitted by law, late payment charges shall be assessed according to Tariff, or law. 4. TERMINATION. Either party may terminate this Agreement for cause provided written notice specifying the cause for termination and requesting correction within thirty (30) days is given the other party and such cause is not corrected within such thirty (30) day period. Cause is any material breach of the terms of this Agreement. If USWC terminates this Agreement for cause, or if CUSTOMER terminates this Agreement WITHOUT cause, CUSTOMER shall pay discontinuance charges. if termination is prior to installation of Service, discontinuance charges shall be those reasonable costs incurred by USWC through the date of termination. Termination Charges for Service discontinued after installation are defined on the Attachments. 6. INTERRUPTIONS TO SERVICE. Tariff specifies the credit allowance due CUSTOMER, if any, for interruptions to Service which are not'caused by CUSTOMER's negligence. OCTOBER 3,19MEWCAMIPUE9LO CITY GOVERNMENT DEN- 94=3-0018IEG PAGE 1 0. PERSONAL INJURY; PROPERTY DAMAGE. Each party shall be responsible for any actual physical damages it directly causes to the other 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 TO THE OTHER FOR ANY 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. T. LIMITATION OF LIABILITY. USWC 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 SECTION 6, ANY USWC LIABILITY TO CUSTOMER FOR ANY DAMAGES OF ANY KIND UNDER THIS AGREEMENT SHALL NOT EXCEED, IN AMOUNT, A SUM EQUIVALENT TO THE APPLICABLE CREDIT FOR INTERRUPTIONS TO SERVICE UNDER THIS AGREEMENT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT. 8. NO WARRANTIES. EXCEPT AS OTHERWISE EXPRESSED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 9. UNCONTROLLABLE CIRCUMSTANCES. 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. 10. DISPUTE RESOLUTION. 10.1 Other than those claims over which a regulatory agency has exclusive jurisdiction, all claims arising under this Agreement, regardless of legal theory, whenever brought and whether between the parties or between one of the parties to this Agreement and the employees, agents or affiliated businesses of the other party, shall be resolved by arbitration. A single arbitrator engaged in the practice of law and knowledgeable about telecommunications law shall conduct the arbitration in accordance with the then current rules of the American Arbitration Association ( "AAA"). 10.2. All expedited procedures prescribed by the AAA shall apply. The arbitrator's decision shall be final and binding and judgment may be entered in any court having jurisdiction thereof. 10.3. Other than the determination of those claims over which a regulatory agency has exclusive jurisdiction, federal law (including the provisions of the Federal Arbitration Act, 9 U.S.C. Sections 1 -15) shall govern and control with respect to any issue relating to the validity of this Agreement to arbitrate and the arbitrability of the claims. 10.4. If any party files a judicial or administrative action asserting claims subject to arbitration, and another party successfully stays such action and /or compels arbitration of such claims, the party filing tho action shall pay the other party's costs and expenses incurred in seeking such stay or compelling arbitration, including reasonable attorney's fees. OCTOBER 3,1994/EEMICAMIPUEBLO CITY GOVERNMENT DEN- 941003.00181EG PAGE 2 -1W- f The parties hereby execute and authorize this Agreement as of the latest date shown below: Pueblo, a Municipal Corporation Authorized Signature U S WES ommunications, Inc. Authorized Signature CHRISTIAN WEAVER Name Typed Or Printed PRESIDEW OF THE COUNCIL Title FEBRUARY 13, 1995 Date Name Type* ftt " NILSEN SALES MANAGER Title Date P. O. Box 1427 PUEBLO, CO. 81002 Address for Notices Address for Notices OCTOBER 3,19941EEM CAMIPUEBLO CITY GOVERNMENT DEN- 941003-00181EG PAGE 4 ATTACHMENT 1 U S WEST CENTREX PLUS SERVICE RATE STABILITY PLAN 1. SCOPE. USWC shall provide and CUSTOMER shall purchase CENTREX PLUS Service ( "Service "). Service is an intrastate, intraLATA, USWC central office -based local exchange telecommunications service which includes: 1) transport of CUSTOMER's business communications between he SNI at CUSTOMER's location(s) covered by this Agreement and USWC's serving central office; 2) IntraCUSTOMER calling capability (intercommunication); 3) use of related Service features; and 4) Exchange/Network Access. Service is provided by means of Main Station Lines, stored program controlled central office switching equipment, and either a per Main Station Lino (non - blocked) access to the general network or controlled (blocked) access through the use of Network Access Registers, as determined by CUSTOMER. This Agreement provides rate stability for Main Station Lines. Features, and Facility Arrangements only 2. MOVES, CHANGES. CUSTOMER may request changes to location, quantity, type, or grade of Service and USWC shall grant such requests subject to the availability of facilities and the terms and conditions of the applicable Tariff. CUSTOMER agrees to pay all rates and charges that apply to the requested changes. 3. TERMINATION. If after installation of Service CUSTOMER requests termination of Main Station Lines to a level that is less than eighty percent (80 %) of the actual initial number of Main Station Lines installed (as evidenced by USWC's records), CUSTOMER shall pay early termination charges based on: monthly charges for Service terminated below the eighty percent (80 %) threshold, multiplied by fifty percent (50 %), multiplied by an annuity factor, plus the balance of all billed but unpaid recurring and all outstanding non- recurring charges. The annuity factor will be determined by a standard annuity table based on 1) an effective percentage rate that reflects the appropriate USWC cost of money; and 2) the number of months remaining in the term of this Agreement. 4. CHARGES. 4.1. The Main Station Lines covered by this Agreement shall be provided between USWC's Pueblo Main, Pueblo, CO and CUSTOMER's associated Service locations. Each Main Station Line will include the separately rated common line facility and the separately rated standard feature package. USWC's records shall document CUSTOMER's Service location(s), quantities, and the Tariff monthly recurring rates stabilized under this Agreement, as well as the Tariff non - recurring charges for initial installation. USWC's records are incorporated into this Agreement by reference. 4.2. For each Main Station Line, the sum of the Federal Communications Commission end user common line charge, the rate stabilized common line facility charge, and the rate stabilized standard feature package charge will remain the same during the term of this Agreement. OCTOBER 3,1994/EEMICAMIPUEBLO CITY GOVERNMENT DEN- 94UMM181EG PAGE 3