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HomeMy WebLinkAboutResolution - 2002-R0462 - Contract For Internet Services - Cox Business Services, LLC - 10_24_2002Resolution No. 2002-RO462 October 24, 2002 Item No. 33 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Contract for Internet Services, by and between the City of Lubbock and Cox Business Services, LLC, and related documents. Said Contract is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 24th day of October 2002. Din ATTEST: Re ecca Garza City Secretary APPROVED AS TO CONTENT: i 1704 L ( eho- 0 Sharlett Chowning Managing Director of Information Technology APPROVED AS TO FORM: William de Haas Contract Manager/Attorney CCdocs/kb/Cox Business Svcs. res October 14, 2002 e18: Resolution No. 2002—RO462 Commercial Services Agreement — Private Line-ICB Customer Account Number System Address Federal Tax ID Number Contract Number AE: TE e a : e a 3 zr} i s � {,� '#'% � s �-' % is _ ad =tk p 3 � i Customer Name: The City of Lubbock a `rQ■ n �; � ',( r �.w � !.; ,y F�. Name: The City of Lubbock Address: 916 Texas Avenue Address: P. O. Box 2000 City/State/Zip: Lubbock Texas City/State/Zip: Lubbock Texas Contact Name: Mark Yearwood Contact Name: Mark Yearwood Contact Phone Number: 806-775-2355 Contact Phone Number: 806-775-2355 Contact Fax Number: 806-775-3033 Contact Fax Number: 806-775-3033 Service Ordered By: Requested Service Date: p&000kkfh ` ffim Address of Origination Point A Address of Termination Point B Terms and Conditions of Service 1. Payment Customer shall pay for all monthly service charges, plus one-time set- up, installation and/or construction charges. Unless stated otherwise herein, monthly charges for Services shall begin upon installation of Service, and installation charges, if any, shall be due upon completion of installation. Any amount not received by the due date shown on the applicable bill will be subject to interest or a late charge at the maximum rate allowed by law. If applicable to the Service, Customer shall pay sales, use, gross receipts, excise, access, universal service fund assessments, 911 fees, franchise fees, bypass or other local, state and Federal taxes or charges imposed on the use of the Services. Taxes will be separately stated on the Customer's invoice. If Customer is tax-exempt under Federal or state law, Customer may submit to Cox a tax-exempt certificate which is valid with the appropriate taxing authority and Cox will not assess the applicable tax to Customer. Customer shall notify Cox if Customer's tax-exempt status changes during the term of this Agreement. 2. Use Customer may use the Services for any lawful purpose, provided that such Purpose does not interfere with or impair service or the privacy of any communication over any of the facilities and equipment comprising the Cox networks. 3. Service Date and Term This Agreement shall be effective upon execution by the parties. Services shall be provided for the applicable term set forth on the first page of this Agreement. Cox shall use reasonable efforts to make the Services available by the requested service date in this Agreement. Cox shall not be liable for any damages whatsoever resulting from delays in meeting any service dates due to delays resulting from normal construction or for reasons beyond its control. If Service is provided on a month -to -month basis, Service shall continue until cancelled in writing by Customer. If Service is provided for a specific term as set forth in this Agreement, then Customer may terminate Service by providing written notice to Cox, however, Customer may be subject to a termination liability as set forth in Section 8 of this Agreement unless the termination is due to default or breach of this Agreement by Cox. 4. Customer Responsibilities Customer is responsible for arranging all necessary rights of access within the Service premises, including space for cables, conduits, and equipment as necessary for Cox -authorized personnel to install, repair, inspect, maintain, replace or remove any and all facilities and equipment provided by Cox. Such access shall include provision for emergency restorations and, if necessary, temporary provisioning of cable and electronic equipment. Customer shall provide a secured space with electrical power, climate control and protection against fire, vandalism, and other casualty for Cox's equipment. Customer shall use the Services in compliance with all applicable laws and ordinances, as well as applicable leases and other contractual agreements between Customer and third parties. 5. Equipment Customer agrees that Cox shall retain all rights, title and interest to facilities and equipment installed by Cox thereunder and that Customer shall not create or permit to be created any liens or encumbrances on such equipment. Upon disconnection of the Services, Cox shall remove its equipment and shall have the right, but not the obligation, to remove all other Cox owned facilities from any applicable premises. Cox shall use reasonable efforts to maintain the Services at no cost to Customer provided, however, that Cox shall have no responsibility for the maintenance or repair of facilities and equipment it does not furnish and Cox may assess Customer a charge for any service call when no trouble is found in Cox's facilities. 6. Default If Customer fails to comply with any material provision of this Agreement, including, but not limited to failure to make payment as specified, and if such failure continues for ten (10) days after Cox gives written notice to Customer of same, then Cox, at its sole option, may elect to pursue one or more of the following courses of action: (i) terminate this Agreement whereupon all sums then due and payable shall become immediately due and payable, (ii) suspend all C:\Documents and Settings\20200\My Documents\CSAPrivLine-COL.doc Revision Date: 02/01/2002 2 or any part of Services, and/or (iii) pursue any other remedies as may be provided at law or in equity, including the applicable termination liabilities in Section 8. Cox shall be in Default under this Agreement if it fails to comply with the terms of this Agreement and such failure continues for ten (10) days after Customer gives written notice to Cox. 7. Limitations of Liabilitv If the Service is unavailable, interrupted, degraded, or experiences a service interruption or outage for any reason, Customer's sole and exclusive remedy shall be the credit allowances in Section 9 or its right to terminate this Agreement as provided herein. Cox shall not be liable for any damages for services or equipment of others or for any act or omission of any entity furnishing to customer services or equipment used with the services. Cox shall be entitled to take and shall have no liability for any action necessary, including disconnection, to bring the services into conformance with any governmental mandate. In no event shall Cox be liable for any special, consequential, indirect, exemplary or punitive damages as a result of its performance or nonperformance of this Agreement. 8. Termination Customer, at its sole option, may terminate this Agreement for any reason, provided, however, that all sums for Services rendered shall become immediately due and payable. If Services are subject to a specific term as forth in this Agreement, Customer shall be liable for a termination liability which shall be equal to all charges for Services rendered to date of termination; plus the monthly recurring charge (MRC) for Services for the remaining term selected by Customer. 9. Credit Allowances A credit allowance will be given when the Service is interrupted, except as specified below. A Service interruption is not a Default under this Agreement but may entitle Customer for credit allowances as provided herein. An interruption period begins when Customer reports an interruption in Service to Cox. Credit allowances shall not apply to interruptions: (i) caused by Customer and/or its employees, contractors, subcontractors, vendors or agents, (ii) due to failure of power or other equipment provided by Customer or others; (iii) during any period in which Cox is not allowed access to the Service premises; (iv) due to maintenance and repair operations scheduled in advance with Customer; (v) caused by fiber cuts or other wiring cuts on the premises of Customer (unless caused by Cox); (vi) caused by an outage in Customer's internal network, internal wiring, Private Branch Exchange (PBX) or multiplexers; or (vii) caused by an outage in Customer's long distance provider's network or switching equipment. Interruption Length Credit Less than 30 minutes None 30 minutes to 1 hour 1/12 of daily charge More than 1 hour 1/12 of daily charge for each hour or portion thereof Provided, however, that no more than one full day's credit will be allowed for any period of 24 hours. 10. Indemnity. Cox, its affiliates, and each of their respective owners, directors, employees, officers and agents shall be indemnified, defended and held harmless by Customer against all claims, suits, proceedings, expenses, losses, liabilities or damages (collectively "Claims") arising from use of Services pursuant to this Agreement involving: (i) Claims of third parties, including patrons or end users of Customer, arising out of, resulting from, or related to the Customer's resale or attempted resale of the Services; (ii) Claims for libel, slander, invasion of privacy, or any infringement of copyright or other intellectual property rights arising from any communication using the Services; (iii) claims arising out of any act or omission of Customer, or end users of Customer, in connection with the Services made available to Customer. Customer agrees to defend Cox against any such Claims and to pay, without limitation, all litigation costs, reasonable attorneys' fees and court costs, settlement payments, and any other damages awarded or resulting from any such Claims. 11. Assianment Customer may not assign any of the rights, privileges or obligations conveyed under this Agreement without first obtaining the written consent of Cox, which consent may be withheld in Cox's discretion. Cox shall have the right, without Customer's consent, to assign this Agreement and/or any of its rights hereunder to any affiliate of Cox or pursuant to a merger, stock sale or sale or exchange of substantially all the assets of Cox. 12. Warranties There are no agreements, warranties or representations, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties of merchantability and fitness for a particular purpose, relating to the Services except those expressly set forth herein. 13. Reaulatory Authority -Force Maieure This Agreement may be subject to filing with the regulatory authority with jurisdiction over the Services. If this Agreement is required to be filed, Customer shall execute such additional forms as are reasonably necessary to permit Cox to make an appropriate filing. In some states, this Agreement may not be effective until approved by such regulatory authority. If this Agreement and/or the related filing documents are not approved by the applicable regulatory authority, Cox may terminate this Agreement This Agreement and the obligations of the parties shall be subject to modification to comply with all applicable laws, regulations, court rulings, administrative orders, as amended. In no event shall either party have any claim against the other for failure of performance if such failure is caused by acts of God, natural disasters including fire, flood, or winds, civil or military action, including riots, civil insurrections or acts of terrorists or the taking of property by condemnation. 14. Miscellaneous This Agreement may be modified, waived or amended only by a written instrument signed by the party against which enforcement thereof is sought, shall be binding upon the parties' respective successors and assigns, and constitutes the entire agreement between Cox and Customer. The rights and obligations of the parties under this Agreement shall be governed by and construed in accordance with the laws of the State of where the Services are provided. C:\Documents and Settings\20200\My Documents\CSAPrivLine-COL.doc The undersigned represen9Mq/c-McD6u;gaI his auth d t sign on behalf of Customer. By signing below, Customer agrees to the terms and conditions for Sd he Customer Signature: Date: October 24, 2002 ' Title: Mayor Attest: C" Rebecca Garza Title: City Secretary Approved as to Content: harlett Chowning Title: Managing Director of Information Technology Approved as to Form: William de Haas Title: Contracts Manager/ Attorney Cox Business Services, LLC, as agent for CoxConn, Inc.; TCA Cable Partners, II,; Cox Texas Tel corn, LP By its General artaer, Cox TelconPart, By:Title: Date: October 24, 2002 CADocuments and Settings\20200\My Documents\CSAPrivLine-COL.doc Resolution No. 2002—RO462 TELECOMMUNICATIONS FACILITIES LICENSE AGREEMENT (Commercial) This Telecommunications Facilities License Agreement ("Agreement") is entered into this 30t" day of October, 2002, by and between CoxCom, Inc. dba C ox Communications West Texas ("Cox") and The City of Lubbock J Owner holds title to, or is the authorized agent of the titleholder of, certain real property located at 916 Texas Avenue Lubbock. Texas and commonly known as Municipal Sauare ("Property"). Owner and Cox desire to enter into this Agreement for Cox to provide its services to the Property under the terms and conditions herein. 1. Grant of Access. Owner hereby grants to Cox permission to install and maintain its telecommunications distribution facilities ("Facilities") on the Property to provide telecommunications services including voice, video and data telecommunications services ("Services") to Owner's tenants and/or other persons occupying the Property ("Tenants"). Owner further grants to Cox the right to enter the Property to install, connect, disconnect, transfer, service, remove or repair the Facilities. Upon termination of Cox's provision of Services to the Property, Cox may at its option enter upon the Property and remove the Facilities. Cox's right to enter upon the Property for the purpose of removing the Facilities shall survive termination of this Agreement. At Owner's written request, however, Cox shall remove the Facilities (excluding "Internal Wiring" (defined below)) within thirty (30) days of the termination of this Agreement. 2. Ownership of Facilities. Except for Internal Wiring, the Facilities are and shall remain the sole and exclusive property of Cox and shall not become fixtures of the Property. Internal Wiring is defined as the wiring, ports and outlets located within a commercial unit receiving Services back up to the demarcation point. The demarcation point in the case of telephone Services is the building's minimum point of entry, and for all other telecommunication Services is that point roughly twelve (12) inches outside of the Tenant's individual commercial unit. 3. Obligations of Cox. Cox agrees: (i) to pay for any materials and labor reasonably necessary to install the Facilities in accordance with the attached Exhibit A, including dirt trenching, backfill, compacting and boring, cable, conduit, electronics, pedestals and splitters; (ii) to keep the Property free of liens resulting from the installation of the Facilities; (iii) Owner shall have no responsibility for the Services provided by Cox to Tenants or for the proper functioning of the Facilities; (iv) to repair any damage to Owner's landscaping, personal property or underground facilities located on the Property (including any necessary replacements), if such damage results directly from Cox's installation of the Facilities, and to restore the Property to as near its condition prior to installation of the Facilities as may be practicable to Owner's reasonable s atisfaction; and (v) to obtain all necessary governmental authorizations for the construction and operation of the Facilities on the Property and to perform such construction in accordance with Exhibit "A". 4. Obligations of Owner. Owner agrees: (i) not to use or permit others to use the Facilities or any equipment that interferes with the Facilities' operation; (ii) not to move, disturb, or alter the Facilities or permit any third party to do so without Cox's prior written consent; (iii) that this Agreement and Cox% rights granted herein shall be binding upon Owner's successors and assigns; (iv) to notify any successor Property owner of Cox's rights under this Agreement; (v) that Owner has full authority to execute this Agreement and grant the rights herein granted and there are no prior or existing agreements, nor will there be any agreements during the Term, that would be breached by the execution by Owner of this Agreement or by Cox's provision of the Services; and (vi) to be responsible for locating all private utility lines within the Property which are not identified or covered by the local Utility Protection laws. 5. Indemnification. Cox agrees to indemnify, defend and hold Owner harmless from all claims, suits, proceedings, liabilities, losses, costs, damages, and expenses, including reasonable attorneys' fees (the "Claims") for personal injury or property damages arising out of (a) Cox's negligence in the installation or removal of the Facilities; or (b) Cox's breach of this Agreement. Owner agrees to indemnify, defend and hold Cox harmless from all Claims arising out of (a) the renting, leasing or purchasing of space at the Property; (b) injuries or damage to Cox's employees, agents or the Facilities arising out of the negligent acts or omissions of Owner, its agents or employees; or (c) Owner's breach of this Agreement. This Section 5 (Indemnification) shall survive the expiration or termination of this Agreement. 6. Term. The "Term" shall begin upon execution b y t he parties and continue for five (5) years from the first day of the first full calendar month following both parties' execution of this Agreement. Thereafter, the Term shall continue for as long as Cox is providing Services to Tenants. The foregoing notwithstanding, Cox may terminate this Agreement if Cox is unable to provide any Services because of any law, rule, regulation or judgment of any court, or any similar reason beyond the reasonable control of Cox, or if the applicable franchise or licenses are assigned, terminated, surrendered or revoked for any reason. 7. Default. If either party fails to perform any material obligation and such default is not cured within thirty (30) days after written notice from the other party, the non -defaulting party may immediately terminate this Agreement by providing written notice to the defaulting party. 8. Miscellaneous. This Agreement is the entire understanding between the parties and supercedes any prior agreements or understandings related to this subject matter, whether oral or written. This Agreement may not be amended except in a writing signed by both parties. Cox may assign this Agreement, in whole or part, to (i) to any affiliate; (ii) any entity merging with or acquiring substantially all of, the assets of Cox or (iii) any telecommunications or information carrier providing Services to Tenants. Notices shall be sent by United States Certified Mail or nationally recognized courier to the address s rth below. This Agreement shall be goverped by the 1 of st e where the property is located // OWNER' Mayor 3€{ ,°tress: P.O. Box 2000, Lubbock, TX 79457 1 vlpib"806-775-3000 Date: v / t — i � - o -o,'- Address: 6710 Hartford, Lubbock Texas 79413 Telephone: 806-771-6015 Fax: 806-771-6016 Attest: R ecca Garza City Se�,ccrretary � Approved as to Contentc, '_, mot. Sharlett Crowning Managing �D/'rector of Information Technology Approved as to Form:�""�""— William de Haas Contract Manager/Attomey