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HomeMy WebLinkAboutResolution - 6150 - Contract - NTS Communications Inc.- Long Distance Telephone Service - 01_14_1999Resolution No. 6150 Item No. 36 January 14, 1999 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 long distance telephone service, by and between the City of Lubbock and NTS Communications, Inc., 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 14th day of January 1999. /+ mi.&FAA �-� ;W.; ATTEST: Darnell, City Secretary APPROVED AS TO CONTENT: ALiLg Sharlett Chowning, Information Technology Manager APPROVED AS TO FORM: William de Haas Competition and Contracts Manager/Attorney CcdocslNTs.Kes Jan.05,1999 Resolution No. 6150 Item No. 36 January 14, 1999 LONG DISTANCE SERVICE CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK This contract, (the "Contract"), effective as of January 14, 1999, (the "Effective Date"), is by and between the City of Lubbock, (the "City"), a Texas Home Rule Municipal Corporation, and NTS Communications, Inc., a Texas corporation, whose principal place of business is located at 5307 W. Loop 289, Lubbock, Lubbock county, Texas (the "Contractor"). WITNESSETH WHEREAS, the City requires long distance telephone service; and WHEREAS, the Contractor is qualified to provide long distance telephone service and desires to provide long distance telephone services to the City; and WHEREAS, the City desires to contract with Contractor to receive long distance telephone service; and NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Contract, the City and Contractor hereby agree as follows: ARTICLE 1 REPRESENTATIONS AND WARRANTIES A. Existence. Contractor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas and is qualified to carry on its business in the State of Texas. B. Corporate Power. Contractor has the corporate power to enter into and perform this Contract and all other activities contemplated hereby. C. Authorization. Execution, delivery, and perfonnance of this Contract and the activities contemplated hereby have been duly and validly authorized by all the requisite corporate action on the part of the Contractor. This Contract constitutes legal, valid, and binding obligations of the Contractor and is enforceable in accordance with the terms thereof. Long Distance Telephone Service, City of Lubbock & NTS Conununications, Inc. Pam-e I D. Contractor. Contractor maintains a professional staff and employs, as needed, other qualified specialists experienced in telecommunication services, and are familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the activities contemplated hereby. E. Performance. Contractor will and shall conduct all activities contemplated by this Contract in a good and workmanlike mariner, and comply with all laws, rules, and regulations, both state and federal, relating to telecommunications services, as contemplated hereby. If any of the activities of the Contractor, or omissions of the activities required herein, shall cause, in whole or in part, liability or loss on the part of the City, it shall be deemed that the Contractor did not perform said activities (or omitted the performance of said activities) in a good and workmanlike manner. F. Use of Copyrighted Material. Contractor warrants that any materials provided by Contractor for use by City pursuant to this Contract shall not contain any proprietary material owned by any other party that is protected under the Copyright Act or any other similar law. Contractor shall be solely responsible for ensuring that any materials provided by Contractor pursuant to this Contract satisfy this requirement and Contractor agrees to hold City harmless from all liability or loss to which City is exposed on account of Contractor's failure to perform this duty. ARTICLE II SCOPE OF WORK A. General. Contractor agrees to furnish to the City long distance telephone service as set forth in Contractor's Proposal dated September 1, 1998, attached hereto as Exhibit A. B. Billings. NTS will furnish to the City a hard copy and an electronic copy of each monthly billing. The electronic copy will be on a diskette in ASCII format as mutually agreed upon. C. Exemptions and Discounts. The City is eligible for an exemption of sales taxes and will provide the certification of tax exemption. The City libraries are currently eligible for the E-rate discounts. These, and all other discounts and exemptions for which the City or its departments may qualify, shall be passed on to the City. D. Year 2000 Compliance. Contractor warrants that all of its equipment and software is Year 2000 compliant on or before July 31, 1999. NTS will notify the City of Lubbock regarding compliancy status. At that time, the City of Lubbock has the option to cancel this contract if NTS is not Year 2000 Compliant. E. Non -Appropriation of Funds. There will be no penalty for termination due to non -appropriation of fiends. Long Distance Telephone Service, City of Lubbock & NTS Communications, Inc. Page 2 F. Restoration of Service. If long distance service remains impaired for four (4) hours or more during any three-month period due to Contractor network failures, the City may elect to contract with an alternate carrier. G. Early Cancellation. If the City experiences chronic problems, poor quality or poor service, the City may cancel this Contract without penalty. H. Single Point of Contact. Contractor agrees to contact and coordinate all vendors deemed necessary for problem resolution. ARTICLE III INDEPENDENT CONTRACTOR STATUS Contractor and City agree that Contractor shall perform the duties under this Contract as an independent contractor. The Contractor has the sole discretion to determine the manner in which the services are to be performed. ARTICLE IV TERM The term of this Contract commences the next billing period following the date this Contract is executed and continues without interruption for a term of three (3) years. After expiration of the original term, this Contract shall automatically be renewed for additional successive thirty (30) day terms terminable by either party with not less than sixty- (60) day's advance written notice. ARTICLE V COMPENSATION Contractor shall be compensated in accordance with Exhibit A, attached hereto. ARTICLE VI TERMINATION In the event the Contractor breaches any term and/or provision of this Contract the City shall be entitled to exercise any right or remedy available to it at law or equity, including without limitation, immediate termination of this Contract and assertion of action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any other right or remedy and all other rights and remedies shall be cumulative. Long Distance Telephone Service, City of Lubbock & NTS Communications, Inc. Page 3 ARTICLE VII INSURANCE A. General. Contractor shall procure and carry, at its sole cost and expense through the life of this Contract insurance protection hereinafter specified, in form and substance satisfactory to the City. City must approve all policies prior to the commencement of any activities whether performed by the Contractor, subcontractor, agents, or third parties. The insurance carrier must be an insurance company authorized to transact business in the State of Texas and have a Best's Financial rating of A VII. A Certificate of Insurance specifying each and all coverage shall be submitted to City prior to the execution of this Contract. All insurance shall be prepared and executed by the insurance company or it's authorized agents and shall contain an endorsement naming the City of Lubbock an additional insured. Written notice of cancellation or any material change will be provided thirty (30) days in advance of cancellation or change. All insurance shall provide a waiver of subrogation in favor of the City of Lubbock, and shall contain cross liability and severability clauses. B. Required Coverage. Contractor shall obtain and maintain policies of insurance throughout the Contract term in limits specified below. Commercial General Liability. The Contractor shall maintain Commercial General Liability coverage endorsed to include premises/operations, contractual liability, and independent contractors' and completed operations. The policy shall have a minimum of One Million and no/100 Dollars (S1,000,000) combined single limit in the aggregate and per occurrence. C. Subcontractors. The Contractor shall require each subcontractor with whom it contracts to provide activities as contemplated by this Contract, to obtain proof of insurance coverage as set forth herein, and to provide to Contractor, prior to such person performing any such activities, a Certificate of Insurance establishing such coverage. ARTICLE VIII EMPLOYMENT OF AGENTS Contractor may employ or retain agents, consultants, contractors, or third parties, to perform certain duties of Contractor under this Contract provided that Contractor is in no event relieved of any obligation under this Contract. Any such agents, contractors, or third parties retained and/or employed by Contractor shall be required to carry, for the protection and benefit of the City and Contractor and naming said third parties as additional insureds, insurance as described in Article VII of this Contract. Long Distance Telephone Service, City of Lubbock & NTS Communications, Inc. Page 4 ARTICLE IX CONFIDENTIALITY Contractor shall retain all information received from or concerning the City and the City's business in strictest confidence and shall not reveal such information to third parties without prior written consent of the City, unless otherwise required by law. ARTICLE X INDEMNITY City of Lubbock shall not be liable or responsible for, and shall be saved and held harmless by Contractor from and against any and all suits, actions, losses, damages, claims, or liability of any character, type, or description, including all expenses of litigation, court costs, and attorney's fees 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, or occasioned by, directly or indirectly, the performance of Contractor under this agreement, including claims and damages arising in whole or in part from the negligence of City of Lubbock, ARTICLE XI COMPLIANCE WITH APPLICABLE LAWS Contractor shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this Contract, and any amendments thereto. ARTICLE X1I NOTICE A. General. Whenever notice from contractor to City or City to Contractor is required or permitted by this Contract and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand, (2) facsimile, or other reasonable means (in which case such notice shall be effective upon delivery), or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. Contractor's Address. Contractor's address and numbers for the purposes of notice are: Long Distance Telephone Service, City of Lubbock & NTS Communications, Inc. Page 5 NTS Conununications, Inc. Attn: Barbara Andrews 5307 W. Loop 289 Lubbock, Texas 79414 Telephone: (806) 797-0687 Facsimile: (806) 788-2916 C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Attn: Dianna Romans P. O. Box 2000 1625 13th Street Lubbock, Texas 79457 Telephone: (806) 775-2376 Facsimile: (806) 775-3033 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this Contract, and setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice is effective. ARTICLE XIII MISCELLANEOUS A. Captions. The captions for the articles and sections in this Contract are inserted in this Contract strictly for the parties' convenience in identifying the provisions to this Contract and shall not be given any effect in construing this Contract. B. Audit. Contractor shall provide access to its corporate hooks and records to the City. The City may audit, at its expense and during normal business hours, Contractor's books and records with respect to this Contract between the Contractor and City. C. Records. Contractor shall maintain records that are necessary to substantiate the services provided by the Contractor. D. Assignability. Contractor may not assign this Contract without the prior written approval of the City. E. Successor and Assigns. This Contract binds and inures to the benefit of the City, Contractor, and their respective successors, legal representatives, and assigns. Long Distance Telephone Service, City of Lubbock & NTS Communications, Inc. Page 6 F. Construction and Venue. THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Contract is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstances, the remainder of this Contract and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. H. Amendment. No amendment, modification, or alteration of the terms of this Contract shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Contract, and duly executed by the Contractor and City. I. Entire Agreement. This Contract, including Exhibit A hereto, contains the Entire Contract between the City and Contractor, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. EXECUTED as of the Effective Date hereof. CITY OF LUBBOCK WINDY sifdroV, MAYOR ATTEST: NTS COMMUNICATIONS, INC. By: Long Distance Telephone Service, City of Lubbock & NTS Communications, Inc. Page 7 APPROVED AS TO CONTENT: Shar]ett Chowning Information Technology Manager APPROVED AS TO FORM: William de Haas Competition and Contracts Manager Long Distance Telephone Service, City of Lubbock & NTS Communications, Inc. Page 8