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Home My WebLink Aboutresolution.council.092-03 RESOLUTION # 92 (Series of2003) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND QWEST CORPORATIbN SETTING FORTH THE TERMS AND CONDITIONS REGARDING CENTREX PLUS SERVICE AND AUTHORIZING THE CITY MANAGER. Tb EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Qwest Corporation, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESbL VED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Qwest Corporation regarding Centrex Plus Service, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: ~Vj( ~ /~ ~ :3 /~v-/<? Helen Kalin Klanderud, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held October 14,2003. ~)Ak K S. Koch, City Clerk Agreement Number: _ Billing Number: 970-920-5000 QWEST CENTREX PLUS SERVICE RATE STABILITY PLAN AGREEMENT This is an agreement between Aspen City Govt ("Customer"), and Qwest Corporation ("Owesf') for the provision of Owest Centrex Plus Service as defined herein ("Agreement"). 1. SCOPE. 1.1 Owest shali provide and Customer shali purchase Centrex Plus Service ("Service"). Service is an intrastate, intraLATA, Owest centrai office-based local exchange teiecommunications service which includes: 1) transport of Customer's business communications between the SNI at Customer's location(s) covered by this Agreement and Owest'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 controlied 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 AQreement provides rate stabilitv for all Service elements except ExchanQe/Network Access. Common Access Line CharQes (CALC) or End User Common Line CharQes (EUCl). and inter.office mileaQe charQes. 1.2 Owest shali provide Service up to the ("SNI") at Customer's premises. The SNI is that location where Owest's protected network facilities end and Customer's inside wire or network, begins. Owest provides Service in accordance with the applicable Tariff, Price List, Price Schedule, Administrative GUideline, and/or Catalog ("Tariff")which governs Service in the state Service is provided, incorporated herein by this reference. Where any term or condition of this Agreement and/or Attachment conflicts with the Tariff, the then current Tariff shali prevail. 2. TERM. 2.1 This Agreement is effective on the latest signature date and expires twelve (12) months from the date Service is available to Customer under this Agreement, as evidenced by Owest records ("Term"). ' 2.2 If Owest continues to provide Service after this Term without a further Agreement, the provisions for month.to- month service in the Tariff will apply. 3. CHARGES AND BilLING. 3.1 'Customer agrees to pay the charges for Service as specified herein. Customer shall pay Owest ali applicable taxes, usual and customary surcharges, and all government imposed fees and charges that relate to the Service or instaliation rendered hereunder. Customer shali pay each bill in fuli by the payment due date on each bill. Where permitted by law, late payment charges shall be assessed according to Tariff, or law. The charges for Service 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 Owest. 3.2 The initial number of Main Station Lines covered by this Agreement is 307 which shali be provided between Owest's Central Office and Customer's associated Service locations. Customer's total initial monthly recurring and nonrecurring charges for the rate stabilized Service elements are: Monthly Recurring: $4884.68 and Nonrecurring: $0.00. Owest's service and billing records shall document Customer's Service elements, locations, and quantities initially instalied or added during the Term of this Agreement and the associated Tariff monthly recurring stabilized rates. Owest's records are incorporated into this Agreement by reference. The initial Service locations and number of Main Station Lines per Service location are set forth on Attachment. 1 , fncorporated by reference herein. 3.3 Each stabilized monthly recurring Main Station Line rate shown on Customer's bill is the sum of the applicable Owest Tariff flat Main Station Line rate and the current Federal Communications Commission ("FCC") End User Common Line charge. 4. MOVES, CHANGES. Customer may request changes to location, quantity, type, or grade of Service and Owest 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. 5. TERMINATION. 5.1 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 that thirty (30) day period. Cause is any material breach of the terms of this Agreement. If Owest terminates this Agreement for @ 2003 Owest Corporation Page 1 v1.060303 CTRXPLUS cause, or if Customer terminates this Agreement in whole or in part WITHOUT cause, Customer shall pay early termination charges. If termination is prior to installation of Service and after execution of this Agreement, early termination charges shall be those reasonable expenses incurred by Owest through the date of termination. After installation of Service, a Customer requested termination of station lines, in whole or in part, below a minimum line commitment quantity, wili be subject to a termination charge. A service date will be considered the date of initial installation of station lines for a new system or the effective date of a contract renewal for existing systems. A minimum line commitment will be considered to be 60% of the number of lines initially installed and in service on the annual anniversary date of the Agreement. Owest billing records will serve as documentation of the number of lines in service for the purpose of establishing the minimum line commitment. During the first year of this Agreement, the minimum line commitment will be based on the total number of lines in service 60 days after the first line is installed for a new system or the number of lines in service upon renewal of Agreement for an existing system. In subsequent years of the Agreement, the minimum line commitment will be based on the number of lines in service on the anniversary date of the agreement. The anniversary date will be considered to be the date of the last signature executing the agreement or a date specified in the agreement. Termination charges will only be applicable to Centrex Plus main station lines unless other applicable elements are noted in the Agreement. Termination charges are not applied to common equipment or optional features. Customer shall pay early termination charges based on: total remaining monthly charges for Service terminated below the sixty percent (60%) Threshold, multiplied by forty percent (40%), plus the balance of ali billed but unpaid recurring and ali outstanding nonrecurring charges. 5.2 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 piaces 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. 6. INTERRUPTION TO SERVICE. Tariff specifies the credit allowance due Customer, if any, for interruptions to Service which are not caused by Customer's negligence. In the event Service is provided where there is no Tariff, the provisions of the FCC Access Tariff No.1 shall apply with respect to credit allowances due Customer. 7. PERSONAL INJURY; PROPERTY DAMAGE. Each party will 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 WILL BE LIABLE 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. 8. LIMITATION OF LIABILITY. OWEST WILL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEOUENTIAL 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 OWEST LIABILITY TO CUSTOMER FOR ANY DAMAGES OF ANY KIND UNDER THIS AGREEMENT WILL NOT EXCEED, IN AMOUNT, A SUM EOUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT. 9. NO WARRANTIES. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 10. UNCONTROLLABLE CONDITIONS. Neither party will 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. 11. DISPUTE RESOLUTION. Any dispute arising out of, or relating to, this Agreement shall be settled by arbitration to be conducted in accordance with the Judicial Arbitration and Mediation Services ("JAMS") Comprehensive Arbitration Rules. The Federal Arbitration Act, 9 U.S.C. Sections 1-16, not state law, shall govern the arbitrability of the dispute. The costs of the arbitration, including the arbitrator's fees, shall be shared equally by the parties; provided, however, that each party shall bear the cost of preparing and presenting its own claims and/or d~fenses (including its own attorneys fees). The arbitration will be held in Denver, Colorado. The arbitrator has no authority to award any indirect, incidental,special, @2003 Owest Corporation Page 2 v1.060303 CTRXPLUS reliance, punitive, or consequential damages, including damages for lost profits. The arbitrator's decision shall be final, binding, and enforceable in a court of competent jurisdiction. If either party fails to comply with the dispute resolution process set forth herein (including, without limitation, nonpayment of an arbitration award) and a party is required to enforce such compliance in court or elsewhere, then the non-compiying party shall reimburse all of the costs and expenses incurred by the party seeking such enforcement (including reasonable attorneys fees). 12. 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. 13. PUBLICITY. Neither party shall, without the prior written consent of the other, issue any press release or public announcement regarding this Agreement or any relation between Customer and Owest or use the name, trademarks, or other proprietary identifying symbol of the other party or its affiliates. Such consent by Qwest may be given in writing by the Executive Vice President of Corporate Communications or his or her designee. 14. NOTICES. Except as otherwise provided herein, all required notices shall be in writing, transmitted to Qwest at 1801 California Street, Suite 3800, Denver, Colorado 80202; Facsimile #: (303) 295-6973; Attention: Legal Department, and to Customer at .Owesl's then current address of record for Customer; Attention: General Counselor other person designated for notices. Notices will be considered given either: (a) when delivered in person to the recipient designated for notices; (b) when deposited in either registered or certified U.S. Mail, return receipt requested, postage prepaid; or (c) when delivered to an overnight courier service. Customer's current address, facsimile number and person designated for notices are: 130 South Galena Aspen, Co 81611. 15. GENERAL PROVISIONS. 15.1 This Agreement shall be governed by the laws of the state where Service is provided, without regard to its choice of law principles; provided however, that Service may also be subject to the Communications Act of 1934, as amended. 15.2 Neither party's failure to insist upon strict performance of any provision of this Agreement shall be ~onstrued as a waiver of any of its rights hereunder. 15.3 If any term of this Agreement is held to be unenforceable, the unenforceable term shall be construed as nearly as possible to reflect the original intent of the parties and the remaining terms shall remain in effect. 15.4 All terms of this Agreement, which should by their nature survive the termination of this Agreement, shall so survive. 15.5 Customer may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Qwest, which consent will not be unreasonably withheld. Customer may not assign to a reseller or a telecommunications carrier under any circumstances. 15.6 This Agreement is intended solely for Owest and its affiliates and Customer and it shall not benefit or be enforceable by any other person or entity. 15.7 This Agreement and any exhibits hereunder constitute the entire agreement between Customer and Owest with respect to the subject matter hereof, and supersede all prior agreements or understandings, whether oral or written, relating to the subject matter hereof. Except for Service and Tariff modifications initiated by Qwest, all amendments to this Agreement shall be in writing and signed by the parties' authorized representatives. Owest may act in reliance upon any instruction, instrument, or signature reasonably believed by Qwest to be genuine. Customer agrees that any empioyee of Customer who gives anywritten notice or other instruction in connection with this Agreement has the authority to do so. @ 2003 Owest Corporation Page 3 v1.060303 CTRXPLUS The parties ,have read, understand and agree to all of the above terms and conditions of this Agreement and hereby execute and authorize this Agreement. Asp Qwest Corporation AU~d Signatu~ Sd Na~~~nted ~'Vj ~(rY)~{ FYvk--; Title CD -2 7-~ Date u-rt ~. Title DUe *10,,3 Oat @ 2003 Qwest Corporation Page 4 v1,060303 CTRXPLUS ATTACHMENT 1 TO QWEST CENTREX PLUS SERVICE RATE STABILITY PLAN AGREEMENT Customer's initial Service locations and initial number of Main Station Lines at each location are as follows: Initial Number of Service Locations Main Station Lines 475 E Airport Rd 1 405 Castle Creek Rd 5 450 Maroon Creek Rd 0 500 Doolittle Circle 9 1080 Power Plant Rd 4 1085 Power Plant Rd 5 110 E Hallam St , 14 130 South Galena 126 215 N Garmish 8 219 Puppy Smith Rd 2 233 W Hyman Ave 11 39551 Highway 82 33 429 Rio Grande PI 5 506 E Main 32 530 E Main 17 515 E Bleeker St 4 535 E Cemeterv Ln 31 @ 2003 Qwest Corporation Page 5 v1.060303 CTRXPLUS