Loading...
HomeMy WebLinkAboutResolution - 2002-R0554 - Public Telephone Agreement - TCG Public Communications, Inc. - 12_19_2002Resolution No. 2002-RO554 December 19, 2002 Item No. 24 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 Public Telephone Agreement between TCG Public Communications, Inc., a wholly owned subsidiary of AT&T Corporation and the City of Lubbock, for furnishing, installing, maintaining, and operating public telephones and public communications equipment. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 19th day of December, , 2002. M RC McDO G , MAYOR ATTEST: cQa" --e- Re ecca Garza, City Secretary APPROVED AS TO CONTENT: Sharlett Chowning, Director o Information Technology APPROVED AS TO FORM: -- Linda L. Chamales, Supervising Attorney Office Practice Section Lc: L/ATTY/Linda/RES-Public Telephone Resolution No. 2002-RO554 December 19, 2002 Item No. 24 PUBLIC TELEPHONE AGREEMENT This Agreement is effective as of December 19, 2002, by and between The City of Lubbock (hereafter "Customer"), and TCG Public Communications, Inc., a wholly owned subsidiary of AT&T Corp. (hereafter "AT&T") with respect to furnishing, installing, maintaining, and operating public telephones and public communications equipment to be located at the facilities, (hereafter "Premises"), as described in Addendum A, attached hereto and incorporated by reference herein. 1. GENERAL AGREEMENT. In accordance with the provisions of this Agreement, Customer hereby grants AT&T the exclusive right, license, and privilege to install, operate, and maintain certain public telephones, public communications equipment at the Premises described in Addendum A. 2. TERM OF THE AGREEMENT. Both Parties understand that this Agreement shall commence upon the date of execution of the Agreement; the effective date listed above and shall remain in full force and effect for three (3) years. 3. COMPENSATION. In consideration of the rights granted in this Agreement, AT&T agrees to pay the Customer a proportionate share of the revenues collected by AT&T during the term of this Agreement, at the rate and under the terms and conditions set forth in Addendum C, attached hereto. 4. AT&T's RESPONSIBILITIES. During the term of this Agreement, AT&T shall, at its own expense: 4.1 Install, operate, and maintain Public Communications Equipment for use at the Premises in the quantity mutually agreed upon by both Parties and stipulated in Addendum B. 4.2 Pay compensation monthly to the Customer, at the rate and under the terms and conditions, as set forth in Addendum C. 4.3 Perform diagnostic testing, preventative maintenance, and repair of the Public Communications Equipment in a manner such that the equipment shall be in good working order during the term of this Agreement. 4.4 Respond to all complaints or requests for service within 24 hours. 4.5 Place in a conspicuous place on the public telephone the AT&T name and logo and a toll free number for reporting service problems, as well as all other information required by law or regulation. The phone number of the phone should also be marked on the front of the phone. 4.6 Collect all coin revenues no less than once a month or more frequently as warranted to maintain the public telephones in good working order. 4.7 Submit a report monthly to the Customer detailing the revenues collected from each public telephone during the preceding month. 5. CUSTOMER'S RESPONSIBILITIES. During the term of this Agreement, Customer shall: 5.1 Not cause to have the AT&T public telephone equipment covered under this Agreement removed except for breach of contract as set forth in Section 9 "Termination of Agreement" or for temporary renovation as set forth in Subsection 5.6. 5.2 Provide adequate space, equipment room, lighting, conduit, and wiring for the public communications equipment which is easily accessible to the general public. 5.3 Provide and maintain uninterrupted 110-volt electricity to the point of connection to the public telephone equipment as required for operation of lights, fans, TDDs, lighted signs, etc. as may be required or requested by Customer. 5.4 Take reasonable precautions to protect the public telephone equipment from vandalism, theft, or hazardous conditions and immediately notify AT&T of any such occurrence or condition. Customer shall repair or replace any defective conduit, wiring, or other item under its control which prevents or hinders the operation of the AT&T public telephones within five (5) days of written notice to Customer. 5.5 Provide for access to the public telephone equipment to AT&T, its agents, subcontractors, or representatives at all times during normal hours of operation or 24 hours a day during an emergency. 5.6 Provide AT&T with notification in writing, at least three (3) business days prior to any renovation work which might interfere with the operations of the AT&T public telephones, to include removal of equipment. If Customer removes or causes the removal of Public Communications Equipment without prior written notice, Customer shall be fully liable for any damages to said equipment. 5.7 Make every reasonable effort to accommodate relocation of AT&T public telephones, which are required to be temporarily removed due to renovation. 6. OWNERSHIP OF EQUIPMENT. All Public Communications Equipment supplied and installed by AT&T shall remain the sole and exclusive property of AT&T. 7. REMOVAL OF EQUIPMENT. Upon the expiration or termination of this Agreement, either in whole or in part with respect to individual public telephones or Premises, AT&T will, at its own expense remove the equipment installed. AT&T will provide Customer with a written transition plan at least thirty (30) days prior to the termination date. 8. PREMISES ACCESS. AT&T shall have the right to enter the Customer's premises during normal business hours for the purpose of fulfilling its obligations under this Agreement. 9. TERMINATION OF AGREEMENT. This Agreement may be terminated by either Party after ninety (90) days prior written notice to the other Party, if either Party becomes insolvent, makes an assignment for the benefit of creditors, is unable to pay its debts, has a trustee or receiver appointed over all or any substantial part of its assets, or goes out of business. If the Customer experiences chronic problems, poor quality or poor service, the Customer may cancel this agreement without penalty after thirty (30) days prior written notice to AT&T. In the event AT&T fails to perform any material obligation under this Agreement, the Customer may terminate this Agreement by first giving AT&T a written demand to cure the deficiency within thirty (30) days of AT&T's receipt of the demand to cure, or such longer time as may be required to cure using due diligence and, thereafter, such deficiency is not cured, Customer shall be entitled to receive the commission due through the date of termination, but no other monetary damages, including, without limitation, no indirect or consequential damages. If AT&T cures the deficiency within thirty (30) days, the Agreement shall remain in full force and effect. In the event that this Agreement is breached by the Customer prior to the expiration of Agreement's term, Customer shall immediately pay liquidated damages to AT&T in an amount equal to the total revenue lost for the remainder of the term and the actual costs for removal of the Public Communications Equipment less any commissions that would have been due Customer. The amount of total revenue lost for the remainder of the term shall be calculated by multiplying the average monthly revenue realized by the number of months remaining in the term. In the event that Customer requests removal of more than 33% of the total public telephones installed by AT&T (after review to determine viable pay phone units), at any one time, for any reason, prior to expiration of the Agreement's term, and such public telephones are not reinstalled or relocated within Customer's Premises at a location acceptable to AT&T, at its sole discretion, within thirty (30) days, AT&T, may at its sole discretion, remove all of its public telephones. This Agreement may be otherwise terminated only upon mutual consent of both Parties. 10. MOVES, ADDS, OR CHANGES TO EQUIPMENT. AT&T will, at its own expense, accommodate all reasonable Customer requests for the addition, temporary removal, relocation, or change of public telephone equipment. AT&T reserves the right to deny any request for additional equipment, which it deems at its sole discretion, to be uneconomical unless the Customer deems the stations necessary and complies with the schedule set forth in Addendum C. 11. FORCE MAJEURE. Not withstanding any other provision of this Agreement, neither Party shall be deemed in default of this Agreement for delay, failure in performance loss or damage due to these conditions: fire, strike, embargo, explosion, power blackout, earthquake, flood, nuclear accident, volcanic action, labor disputes, civil actions, war, government requirements, civil or military authority, acts of God or public enemy, inability to secure products or transportation facilities, or omissions of carriers or other causes beyond the Parties' reasonable control. Each Party shall, however, make every reasonable effort to rectify any such interruption of service as soon as possible. 12.ASSIGNMENT. Neither Party shall assignor otherwise transfer this Agreement to any entity without prior written consent of the other Party except for legal successors and assigns. AT&T reserves the right to subcontract any of the services or obligations to be performed by AT&T under the provisions of this Agreement. 13.INDEMNITY. The Customer shall not be liable or responsible for, and shall be saved and held harmless by AT&T from and against any and all suits, actions, losses, damages, claims, or liability or any character, type, or description, including all expenses of litigation, court costs, and attorney's fee for injury or death to any person, or injury to any property, received or sustained by any person or persons or property, arising out of, occasioned by, directly or indirectly, in whole -er-Ira-peft, the performance of AT&T under this agreement, except claims and damages arising ' frg the negligence of Customer. ° , o Ias,.cn�v�by, 4 14.APPLICABLE LAW. This Agreement shall be governed and enforced in accordance with the laws of the State of Texas. In the event it shall become necessary to for either Party to file any action to enforce the terms and provisions of this Agreement, any such action shall be filed only in a Court of competent jurisdiction in the State of Texas. The Parties waive the right to a jury trial in such proceedings. The Parties agree to abide by all applicable laws, rules, and regulations pertaining to the operation of the public telephone equipment, as well as rules, regulations, and laws pertaining to nondiscrimination in the provision of service. 15. INVALIDITY OF PROVISIONS. In the event that any of the terms or provisions of this Agreement shall be declared invalid or inoperative, all the remaining terms and provisions shall remain in full force and effect. 16. NOTICES. All notices, requests, demands, tenders, and other communications shall be in writing and shall be deemed to have been duly delivered if made in person, by overnight courier, by certified, registered, or return receipt requested mail, or by regular mail upon expiration of five (5) days after the date posted on the correspondence where adequate postage was prepaid has been prepaid and sent to the addresses indicated for notices herein. City of Lubbock: Attn: Leslie Cox PO Box 2000 1625 13" Street Lubbock, TX 79457 Telephone: (806) 775-2376 Fax: (806) 775-3033 AT&T: AT&T Corp. Attn: Mr. Thomas Sweeney 927 Golf Island Drive Apollo Beach, Florida 33572 Telephone: 813-641-0537 With a copy to: AT&T Corp. Law and Governmental Affairs Business Law Group 900 Routes 202 & 206 Bedminster, N.J. 07921 17. WAIVER. Any term or condition of this Agreement may be waived, at any time, by the Party, hereto, which is entitled to the benefit thereof. A waiver on one occasion shall not be deemed to be a waiver of the same or any other term or condition of this Agreement on a future occasion. 18.AUTHORITY. The persons signing this Agreement represent and warrant that they have the authority to execute this Agreement. 19. ENTIRE AGREEMENT. Except for written amendments, supplements, or modifications made subsequently and signed by both Parties, this Agreement including attached Addendum A, Addendum B, and Addendum C is intended by the Parties as the final expression of their agreement and as the complete and exclusive statement of the terms thereof. This Agreement supercedes all prior representations. No agreement shall be made effective either to amend, change, modify, waive, release, discharge, or terminate this Agreement, in whole or in part, unless such agreement is in writing, refers expressly to this Agreement, and is signed by both Parties. EXECUTED as of the effective date hereof. CI OF LUBBOCK AT&T ARC MG -DO G L, MAYOR ' JOHN HYLA D, VP PUBLIC MARKETS ATTEST: Rebecca Garza City Secretary APPROVED AS TO CONTENT: APPROVED AS'TO FORM: Sharlett Chowning Director Information Technology Zantractl tatter/Attorney 6 Resolution No. 2002-R0554 ADDENDUM A THE PREMISES It is the intent of both Parties that this Agreement shall cover all AT&T Public Communications Equipment installed at the City of Lubbock. *35 Lubbock International Airport 6 Lubbock Memorial Civic Center 3 Citibus Transfer Station 1 Citibus Administration 4 Lubbock Auditorium/Coliseum 1 Meadowbrook Golf Course 5401 N. MLK Blvd 1501 6th Street 801 Broadway 801 Texas Avenue 2720 Drive of Champions 601 Municipal Drive *Pending review with AT&T representative on determination of viable phone locations. Other technology options as listed below will be discussed and installed where applicable based on discussions between AT&T and the City of Lubbock. • Individual terminal with Internet access located inside Lubbock International Airport Wireless connection inside the Lubbock International Airport Resolution No. 2002-RO554 ADDENDUM B THE SCOPE OF THE AGREEMENT It is the intent of both Parties that this Agreement shall cover the following AT&T Public Communications Equipment. Equipment will be identified during the initial walk-through by the City of Lubbock and AT&T representatives. TELEPHONE NO. LOCATION EQUIPMENT 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 10 Resolution No. 2002-R0554 ADDENDUM C COMMISSION SCHEDULE The following details the commission plan schedule: AT&T will pay the City 10% commission for local coin revenues, IntraLata coin revenues, InterLata coin revenues, local operator revenues, Intral-ata operator revenues, InterLata operator revenues, dial -around compensation revenues received from Interexchange Carrier, on any pay phone that exceeds $90 per month, per phone. AT&T reserves the right to remove low producing phones, those phones generating less than $90 per month. However, if the customer deems the stations necessary AT&T will negotiate with the customer to leave the station in place at a charge of $75 per month per station. The commissions AT&T offers is on Gross revenues (including "per -call compensation") on the following scale: 1st year 10% all revenues that exceed $90 per month. 2nd year 10% all revenues that exceed $90 per month 3rd year 10% all revenues that exceed $90 per month. AT&T shall pay the monthly commissions due the City of Lubbock within thirty (30) days after closing of that calendar month's collections and revenue reporting. All commission payments will be paid based upon revenues collected from the previous month's revenues. AT&T will place two TTD units. 11