CITY OF BOISE. Finance and Administration and Information Technology Departments

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1 CITY OF BOISE TO: FROM: Mayor and Council Finance and Administration and Information Technology Departments RESOLUTION NUMBER: R DATE: November 19, 2009 SUBJECT: Approval of Contract, SS ; Telephone & Data Services, Information Technology to tw telecon of idaho llc in a total annual amount not to exceed $251, ACTION REQUIRED: Contract approval by resolution. RECOMMENDATION: Finance and Administration and Information Technology Departments recommend that a sole source contract be awarded to tw telecon of idaho llc in a total annual amount not to exceed $251, FISCAL IMPACT/BUDGET IMPLICATIONS: This expenditure is funded from normal funds and there are sufficient appropriations for this contract available in accounts under each department for this expenditure. BACKGROUND: tw telecon of idaho llc has been a service supplier to the City for the last 5 years. The original contract was for three years with a two year extension. Although other providers could deliver similar services, they cannot deliver them without incurring additional costs to the City, or in the exact manner that tw telecon of idaho llc does. If a different vendor were selected that could not deliver routed telephone and data services to our sites, the additional costs to the City would be approximately $50,000. ATTACHMENTS: Resolution and Contract.

2 RESOLUTION NO. BY THE COUNCIL: BISTERFELDT, CLEGG, EBERLE, JORDAN, SHEALY AND TIBBS A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE ON BEHALF OF THE CITY OF BOISE CITY, AN AGREEMENT FOR SS TELEPHONE & DATA SERVICES, INFORMATION TECHNOLOGY DEPARTMENT, BETWEEN THE CITY OF BOISE CITY AND TW TELECON OF IDAHO LLC.; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Finance and Administration and Information Technology Departments staff recommended award of SS Telephone & Data Services, Information Technology Department to the sole source provider, tw telecon of idaho llc.; and, WHEREAS, during their meeting of, the City Council followed staff recommendation and awarded Resolution No. Services, Information Technology Department, to tw telecon of idaho llc., SS Telephone & Data NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO: Section 1. That the contract by and between the City of Boise City and tw telecon of idaho llc, for SS Telephone & Data Services, Information Technology Department, attached hereto and incorporated herein by reference, be, and the same hereby is, approved both as to form and content. Section 2. That the Mayor and City Clerk be, and they hereby are, authorized to respectively execute and attest said Agreement for and on behalf of the City of Boise City. Section 3. That this Resolution shall be in full force and effect immediately upon its adoption and approval. ADOPTED by the Council of the City of Boise, Idaho, this day of December, APPROVED by the Mayor of the City of Boise, Idaho this day of December, APPROVED: ATTEST: MAYOR CITY CLERK R

3 PROFESSIONAL SERVICES CONTRACT AGREEMENT PURCHASING CONTRACT NUMBER: SS (Original Contract RFP ) Project: Telephone & Data Services Vendor: tw telecom holdings inc. and tw telecom of idaho llc Owner: Information Technology Department, City of Boise, Ada County, Idaho, a municipal corporation. THIS AGREEMENT, made this day of, 2, by and between the City of Boise, a municipal corporation organized under the laws of the State of Idaho, hereinafter referred to as "Owner" or City, and Vendor, hereinafter referred to as Vendor, a corporation organized under the laws of the State of Idaho. 1. Scope of Services: Vendor shall perform all services, and comply in all respects, as described herein for the consideration stipulated, and in compliance with State and City Codes. Contract documents consist of the following together with any amendments that may be agreed to in writing by both parties: Contract Agreement Acknowledgment Liability Insurance Worker s Compensation Vendor will own and control the telecommunications equipment, cable and facilities installed and operated by Vendor for provision of the services to Owner ( Vendor Network ). Vendor and Owner must execute Vendor s Service Order Forms prior to installation of services. 2. Time of Performance: All work and products described in the Scope of Services shall be completed within two (2) years from the date hereof. The term may be modified by mutual written agreement of the parties. 3. Indemnification and Insurance: Vendor shall indemnify and save and hold harmless City from and for any and all losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses caused by the negligence or willful misconduct of Vendor, it s servants, agents employees, guests, and business invitees, and not caused by or arising out of the tortious conduct of City or its employees. Owner shall indemnify and save and hold harmless the Vendor from and for any and all losses, claims, actions, judgments for damages, or injury to persons or property caused by the negligence or willful misconduct of Owner, it's servants, agents employees, guests, and business invitees, and not caused by or arising out of the tortuous conduct of Vendor or its employees. In addition, Vendor shall maintain, and specifically agrees that it will maintain, throughout the term of this Agreement, liability insurance, in which the City shall be named an additional insured in the minimum amount as specified in the Idaho Tort Claims Act set forth in Title 6, Chapter 9 of the Idaho Code. The limits of insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless City; and if City becomes liable for an amount in excess of the insurance limits, herein provided, Vendor covenants and agrees to indemnify and save and hold harmless City from and for all such losses, claims, actions, or Page 1 of 9

4 judgments for damages or liability to persons or property. Vendor shall provide City with a Certificate of Insurance, or other proof of insurance evidencing Vendor's compliance with the requirements of this paragraph and file such proof of insurance with the City. In the event the insurance minimums are changed, Vendor shall immediately submit proof of compliance with the changed limits. Additionally, the Additionally, Vendor shall maintain Workers Compensation Insurance, in the statutory limits as required by law. 4. Proof of all insurance: To be submitted to City of Boise, Department of Finance and Administration, Purchasing Office, P.O. Box 500, Boise, ID Independent Contractor: In all matters pertaining to this agreement, Vendor shall be acting as an independent Contractor, and neither Vendor, nor any officer, employee or agent of Vendor will be deemed an employee of City. The selection and designation of the personnel of the City in the performance of this agreement shall be made by the City. 6. Compensation: For performing the services specified in Section 1 herein, the City agrees to pay THE SUM OF Two Hundred, Fifty One Thousand, ten dollars and seventy two cents ($251,010.72) per year, for a period of two (2) years. They shall not include any sub-contract or other personal services except as may be agreed to in writing in advance by the parties. Change Orders may be issued, subject to Purchasing/Council approval. Upon completing installation of a service referenced in Section 1 above, Vendor will notify Owner that service has been installed, tested by Vendor and is available for Owner's use ("Service Date"). Unless Owner notifies Vendor by fax or in writing within thirty six (36) hours from receipt of Vendor's written notification that service is not operational, the term of the service will begin and billing will commence. If Owner so notifies Vendor, Vendor will work to correct any compliance issues. If Vendor does not find a defect in service, Vendor will notify Owner, and the Service Date will remain unchanged. Vendor is subject to Public Utilities Commission (PUC) and the tariffs approved by the PUC. Vendor has a legal obligation to treat similar customers equally and any changes to the tariff are applicable to all customers purchasing those tariff regulated services. Vendor and the Owner agree that Vendor shall notify the Owner of any tariff modifications approved by the PUC that amend the compensation of this agreement and the Owner agrees to amend the compensation of this agreement accordingly, provided however that the base amount established with this agreement shall not be amended without prior written notification from Vendor. For any non-regulated tariff increases requested by Vendor, and not approved by the Owner, the Owner shall have the right to terminate this agreement in accordance with Section 22 of this Agreement in its sole discretion. Billing for services begins on the Service Date and will not be delayed due to Owner premises equipment or Owner's readiness to accept or use service. 7. Method of Payment: Vendor will invoice the Information & Technology Department, PO Box 500, Boise, ID directly for all current amounts earned under this Agreement. 8. Claims and Disputes: If Owner disputes any charges billed hereunder, Owner must submit a documented claim regarding the disputed amount within 120 days of receipt of the bill on which the disputed charges appear. All claims regarding disputed charges are not submitted to Vendor within such time are deemed waived. All claims regarding disputed charges will be reviewed by Page 2 of 9

5 Vendor and Owner to determine commercially reasonable acceptance following the mutual accepted settlement of the claim, Owner will promptly pay Vendor for all disputed amounts resolved in Vendor s favor. 9. Service Level Guarantee and Credits: Vendor will issue credit allowances for service outages as set forth below upon Owner's written request, which credit will appear on the next invoice following processing. A service outage begins when Owner reports the outage to the appropriate Vendor number(s) to open a trouble ticket, and ends when the affected circuit is fully operational, as evidenced by the closing of the trouble ticket. Vendor shall use commercially reasonable efforts to give first priority to the resolution of service outages affecting Owner. No credits will be given for outages that are (a) caused by Owner or an end user; (b) due to failure of power or equipment provided by Owner or 3rd parties; (c) during any period in which Vendor is not given access to the service premises; (d) part of a planned outage for maintenance; or (e) due to a force majeure event. Services provisioned entirely on Vendor's Network will be credited at 1/1440 of the monthly recurring charges per 30 minute outage up to and including a 24-hour period, or if an outage is greater than 24 hours, at 1/144 of the monthly recurring charges per 3 hour outage. If 2 or more trouble tickets have been opened for a particular service in a 30-day period, and the cause of outage is determined to be in Vendor's Network or System Equipment, such service will be deemed a Chronic Trouble Service. If at any time during any 90 day period a 3rd trouble ticket is opened on a Chronic Trouble Service or at any time during a rolling twelve (12) month period four (4) or more tickets are opened for a particular service, and the cause of such outages is determined to be in Vendor's Network or System Equipment, Owner may disconnect the affected service without incurring termination liability. The remedies set forth in the service level agreements and in this section constitute Owner s sole and exclusive remedy for Service Outages. 10. Limitation of Liability: Neither party is liable to pay for any indirect, incidental, consequential, special or punitive damages (included without limitation, lost profits or revenue) arising out of or related to this Agreement or the provision of services hereunder, including any claims made by or through third parties. Vendor has no liability whatsoever for the content of information passing through its Network. 11. Notices: Any and all notices required to be given by either of the parties hereto, unless otherwise stated in this agreement, shall be in writing and be deemed communicated when mailed in the United States mail, certified, return receipt requested, addressed as follows: City of Boise tw telecom holdings inc. Information & Technology 2223 W Airport Way P. O. Box 500 Boise, Idaho Boise, Idaho Either party may change their address for the purpose of this paragraph by giving written notice of such change to the other in the manner herein provided. 12. Attorney Fees: Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be Page 3 of 9

6 granted, to court costs and reasonable attorneys' fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 13. Time is of the Essence: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to timely perform any of the obligations hereunder shall constitute a breach of, and a default under, this Agreement by the party so failing to perform. 14. Force Majeure: Any delays in or failure of performance by Vendor shall not constitute a breach or default hereunder if and to the extent such delays or failures of performance are caused by occurrences beyond the reasonable control of Vendor, including but not limited to, acts of God or the public enemy; compliance with any order or request of any governmental authority; fires, floods, explosion, accidents; riots, strikes or other concerted acts of workmen, whether direct or indirect; or any causes, whether or not of the same class or kind as those specifically named above, which are not within the reasonable control of Vendor. In the event that any event of force majeure as herein defined occurs, Vendor shall be entitled to a reasonable extension of time for performance of its Services under this Agreement. 15. Assignment: It is expressly agreed and understood by the parties hereto, that Vendor shall notify the Owner if it assigns, transfers, hypothecates or sells any of its rights an/or obligations to this Agreement to a parent, affiliate or subsidiary to Vendor. Neither party shall have the right to assign, transfer, hypothecate or sell any of its rights and/or obligations under this Agreement except upon the prior express written consent of the other party. 16. Discrimination Prohibited: In performing the Services required herein, Vendor shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age or physical disability. 17. Reports and Information: Owner may request that Vendor, at such times and in such forms as the Owner may request, furnish to the Owner such statements, records, reports, data and information pertaining to matters covered by this Agreement ( Reports ). Upon receipt of Owner's request, Vendor agrees to use commercially reasonable efforts to provide Owner with such Reports in a timely manner. 18. Audits and Inspections. At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City for examination all of Vendor's records with respect to all matters covered by this Agreement. Vendor shall permit the City to audit, examine, and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. 19. Publication, Reproduction and Use of Material: No material produced in whole or in part under this Agreement shall be subject to copyright in the United States or in any other country. Excluding any Confidential Information of Vendor, the Owner shall have unrestricted authority to publish, disclose and otherwise use, in whole or in part, any reports, data or other materials prepared under this Agreement. Neither party shall disclose to any third party any Confidential Page 4 of 9

7 Information of the other party, unless such disclosure is required by any state or federal governmental agency, is otherwise required to be disclosed by law, or is necessary in any proceeding establishing rights or obligations under this Agreement. "Confidential Information" includes only: (a) information contained in a document that is marked as confidential by the party providing the information at the time of the disclosure; (b) information communicated orally that is identified as confidential by the provider at the time of the communication; and (c) information that the party receiving the information knows or has reason to know is confidential. "Confidential Information" does not include any information that (a) is generally available to the public, either at the time of the disclosure or later, unless the information becomes publicly available as a result of a wrongful disclosure by the recipient; or (b) is independently developed by Recipient without violating any of its obligations under this Agreement. 20. Compliance with Laws: In performing the scope of services required hereunder, Vendor shall comply with all applicable laws, ordinances, and codes of Federal, State, and local governments. Vendor must comply with Public Utilities Commissions (PUC) mandated changes which may affect the Terms and Conditions contained herein for a portion of the services and Vendor agrees to notify the Owner of any mandated changes required during the term of this Agreement. 21. Changes: The City may, from time to time, request changes in the Scope of Services to be performed hereunder. Such changes, including any increase or decrease in the amount of Vendor's compensation, which are mutually agreed upon by and between the City and Vendor, shall be incorporated in written amendments to this Agreement. 22. Termination for Cause: If, through any cause excluding an event of force majeure, Vendor shall fail to fulfill in a timely and proper manner its obligations under this Agreement, or if Vendor shall violate any of the covenants, agreements, or stipulations of this Agreement, and Vendor fails to cure such breach after thirty (30) days prior written notice, the City shall thereupon have the right to terminate this Agreement by giving written notice to Vendor of such termination and specifying the effective date thereof at least fifteen (15) days before the effective date of such termination. If, through any cause excluding an event of force majeure, Owner shall fail to fulfill in a timely and proper manner its obligations under this Agreement, or if Owner shall violate any of the covenants, agreements, or stipulations of this Agreement, and Owner fails to cure such breach after thirty (30) days prior written notice, the Vendor shall thereupon have the right to terminate this Agreement by giving written notice to Owner of such termination and specifying the effective date thereof at least fifteen (15) days before the effective date of such termination. In such event, excluding any Confidential Information of Vendor, all finished or unfinished documents, data, maps, studies, surveys, drawings, models, photographs and reports prepared by Vendor under this Agreement shall, at the option of the City, become its property, and Vendor shall be entitled to receive just and equitable compensation for any work satisfactorily complete hereunder. Notwithstanding the above, Vendor shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of this Agreement by Vendor, and the City may withhold any payments to Vendor for the purposes of set-off until such time as the exact amount Page 5 of 9

8 of damages due the City from Vendor is determined. This provision shall survive the termination of this agreement and shall not relieve Vendor of its liability to the City for damages. For any services provided by Vendor which are not subject to tariff, the Owner shall have the right to terminate this agreement if any government mandated changes materially increase the rates or adversely affect the Owner's use of the Services, provided that the Owner and Vendor cannot mutually agree upon alternative Terms and Conditions that are mutually satisfactory. 23. Termination for Convenience of City: The City may terminate this Agreement at any time by giving at least thirty (30) days notice in writing to the Vendor. If the Agreement is terminated by the City as provided herein, all monthly recurring charges associated with the terminated service(s) for the balance of the applicable service term shall become immediately due and payable. If this Agreement is terminated due to the fault of Vendor, Section 22 hereof relative to termination shall apply. 24. Minimum Monthly Revenue Commitment: The City commits to purchase service(s) from Vendor, for use at service addresses that do not require Vendor to incur additional expense ( Eligible Service Address/es ), sufficient to produce at least $21, in total monthly recurring revenue to Vendor ( Minimum Monthly Revenue Commitment ) for the remainder of the term. Customer shall pay a shortfall fee to Vendor for each month of the term in which the City fails to meet the Minimum Monthly Revenue Commitment. The shortfall fee shall be equal to the difference between the Minimum Monthly Revenue Commitment and the total monthly revenue to Vendor from on-net service(s) purchased by the City from Vendor at Eligible Service Address(es). When applicable, the shortfall fee shall appear on the City s monthly invoice in the form of a local loop charge. 25. Representations and Warranties: Each party represents and warrants that it is fully authorized to enter into this Agreement. Vendor represents and warrants to Owner that any Services provided hereunder will be performed in a professional manner by qualified and trained personnel. UNLESS SPECIFICALLY STATED HEREIN, VENDOR MAKES NO WARRANTIES, REPRESENTATIONS OR AGREEMENTS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 26. Severability: If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. 27. Entire Agreement: This Agreement, any applicable tariffs on file with the Idaho PUC, and the applicable tw telecom Service Order Forms contain the entire agreement of the parties and supersedes any and all other agreements or understandings, oral or written, whether previous to the execution hereof or contemporaneous herewith. 28. Non-Appropriation: Vendor acknowledges that funding to pay for Services hereunder is subject to annual appropriations, and in the event adequate dollars are not appropriated in any Page 6 of 9

9 fiscal year to fund Owner's use of telecommunications services, Owner may terminate this agreement upon no less than 45 days prior written notice. If Owner exercises this termination right, it may not during the unexpired original term of the terminated Services obtain like services from another provider; and if funds are re-appropriated for a later fiscal year during the unexpired service term, Owner will notify Vendor and reinstate the terminated Services. Owner represents and warrants, however, that Owner will include sufficient funding to cover the charges set forth herein in each Owner budget submitted for approval during the term of this agreement, and will actively support the appropriation of such funding during the term of this agreement. If the Agreement is terminated by the Owner as provided herein, Vendor will be paid an amount which bears the same ratio to the total compensation as the services actually performed bear to the total services of Vendor covered by this Agreement, less payments of compensation previously made. Vendor has waived all installation fees at the time of cancellation; however a charge of a one-time fee of five hundred dollars ($500.00) per remote location within the first two (2) years will be due upon earlier termination Applicable Law: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Idaho, and the ordinances of the City of Boise. 30. Renewal: This agreement shall not be valid for more than two (2) years from the date of approval by the City. This agreement is renewable upon mutual agreement by both parties. Six (6), one (1) year renewals shall be allowed. 31. Approval Required: This Agreement shall not become effective or binding until approved by the City of Boise. END OF AGREEMENT Page 7 of 9

10 IN WITNESS WHEREOF, the City and the Vendor have executed this Agreement as of the date first above written. City OF BOISE tw telecom holdings inc Park Meadows Drive APPROVED BY: Littleton, Colorado David H. Bieter, Mayor Date Signature Date ATTEST: Print Name City Clerk Date ANNUAL CONTRACT AMOUNT: $251, Tina McBride, Purchasing Agent Date APPROVED AS TO FORM AND CONTENT Department Date Legal Department Date Risk Management Date Page 8 of 9

11 ACKNOWLEDGEMENT State of ) ) ss County of ) On this day of 20, before me personally appeared known to me and known by me to be the person who executed the above instrument, who, being by me first duly sworn, did depose and say that he/she is and that he executed the foregoing instrument on behalf of said firm for the use and purposes stated therein. Notary Public Residing at My Commission Expires Page 9 of 9