HomeMy WebLinkAbout05.H- Information Technology - I r rrrrc:.
5.H
RESOLUTION (ID # 3676) DOC ID: 3676 A
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: Larry Martin M/CC Meeting Date: 03/16/2015
Prepared by: Larry Martin, (909) 384-
5947
Dept: Information Technology Ward(s): All
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing
the Execution of an Agreement and the Issuance of a Purchase Order in the Amount of
$89,000 to Telepacific Communications for Primary Rate Interface Phone Connections.
(#3676)
Current Business Registration Certificate: Yes
Financial Impact:
Account Budgeted Amount: $378,000.00
Account No. 630-250-0035-5157
Account Description: Telephone charges
Balance as of: 7/1/2014
Balance after approval of this item: $3,600.00
ILL Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
On December 5, 2011 the Mayor and Common Council adopted Resolution 2011-312,
authorizing the City, in part, to enter into an agreement with and the Issuance of a
Purchase Order to TelePacific Communications for Primary Rate Interface Phone
Connections.
Background:
Primary rate interface (PRI) services are essential to everyday function of the City of
San Bernardino and San Bernardino Municipal Water Department. They handle all
incoming and outgoing telephone calls to City Hall and several remote City facilities.
Currently there is a purchase order in place to cover these services for 2014/15 fiscal
year. Information Technologies is requesting issuance of this agreement and approval
to issue purchase orders for fiscal years 2015/16, 2016/17 and 2017/18. Also requested
is an increase to the 2014/2015 Telepacific Purchase order by $18,000.00 to
$68,000.00.
The purchase order requested is for $89,000.00 annually. This amount takes into
account PRI services and long distance charges incurred on those PRI's.
I IndgtPrl• vii/9ni5, by GPnrnPann "Gini" Hanna A Packet Pg. 300
5.H
3676
It is recommended the City Council adopt the attached Resolution authorizing the
execution of an agreement and the issuance of a purchase order to TelePacific
Communications for Primary Rate Interface Phone Connections.
City Attorney Review:
Supporting Documents:
RESO TelePacific (DOC)
City of San Bernardino - PRI and minutes - Service Agreement (PDF)
Terms & Conditions (PDF)
San Bernardino Addendum 03 05 15 (2) (PDF)
Updated: 3/12/2015 by Georgeann "Gigi" Hanna A Packet Pg. 301
5.H.a
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
3 AND THE ISSUANCE OF A PURCHASE ORDER IN THE AMOUNT OF $895000 TO
4 TELEPACIFIC COMMUNICATIONS FOR PRIMARY RATE INTERFACE PHONE
CONNECTIONS
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
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7
8 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized
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9 and directed to execute on behalf of said City an Agreement with TelePacific 0
10 Communications, a copy of which is attached hereto and labeled "Service Agreement" and
11 �'
as
incorporated herein by reference as fully as though set forth at length.
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SECTION 2. That the Director of Finance or his/her designee is hereby authorized
13
14 and directed to issue an Annual Purchase Order to TelePacific Communications in an amount c
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15 not to exceed $89,000.00 for Fiscal Year 2015/2016 with two (2) one-year renewal options as a
16 long as funds are available and appropriated in the budget each subsequent fiscal year and to
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17 increase the 2014/2015 Purchase Order to Telepacific by $18,000.00 with a corresponding 0
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reduction to a Verizon Purchase Order. The Purchase Order shall reference the number of this °-
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20 resolution and shall read, "for primary rate interface and long distance charges." 0
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21 SECTION 3. This purchase conforms with Section 3.04.0 10 of the San Bernardino
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22 Municipal Code.
23 SECTION 4. The authorization to execute the above-referenced Agreement and issue Q
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the above-referenced Purchase Order is rescinded if not executed/issued within sixty(60) days
25
26 of the passage of this Resolution.
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5.H.a
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
2 AND THE ISSUANCE OF A PURCHASE ORDER IN THE AMOUNT OF $89,000 TO
TELEPACIFIC COMMUNICATIONS FOR PRIMARY RATE INTERFACE PHONE
3 CONNECTIONS
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5
Common Council of the City of San Bernardino at a meeting
6 N
thereof, held on the day of , 2015, by the following vote, to wit:
7 M
I 8 Council Members: AYES NAYS ABSTAIN ABSENT E
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9 MARQUEZ v
10
BARRIOS a
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12 VALDIVIA
13
SHORETT
14 NICKEL o
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15 JOHNSON a.
16
MULVHILL M
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19 Georgeann Hanna, City Clerk °—'
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20 The foregoing resolution is hereby approved this day of , 2015. w
21
22 E
R. Carey Davis, Mayor
23 City of San Bernardino
24 Approved as to form:
25 Gary D. Saenz, City Attorney
26
By:
27
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Fpacket Pg. 303
Ti�lPacifc Service Agreement
C a " " U N I C A T I am 5
Section 1 Customer Information N
Account Number(existing acct) 2
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Company Legal Name(Individual if Sole Proprietorship City of San Bernardino C
Doing Business As(DBA) E
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Contact Name and Title Larry Martin-Sr Network Administrator v
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Telephone Number 909-384-5947 Fax Number Email martin la sbci or Q
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Service Address: 300 N DST - O
City SAN BERNARDINO State CA Zip 92418 3
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Section 2 TelePacific Services
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TelePacific will provide Customer with the specified type and amount of Services at the rates,and terms and conditions listed U
below,and Customer shall accept and pay for Services under the Terms and Conditions to which Customer agreed on the
Telecommunications Account Agreement that governs this Service Agreement. p,
Monthly MRC Total Set-up NRC Total �p
Account, Recurring Charge
Description of Services Term Charge (NRC)
(Yrs) (MRC)
DID Numbers(blocks of 20) 3 13 $10.00 $130.00 $117.75 $1,530.75 d
Voice Only PRI(V) 3 3 $487.50 $1,462.50, $500.00 $1,500.00
FlexCheck Promo(Paid in 4 Equal Payments) 3 1 $0.00 $0.00 ($500.00) ($500.00)
Install Discount 3 1 $0.00 $0.00 $3,030.75) ($3,030.75)
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CA Basic T-Pack 1000 3 3 $35.00 $105.00 $0.00 $0.00 j
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Double Dash: DID Numbers(up to 100 additional) 3 1 ($100.00) ($100.00) $0.00 $0.00
Double Dash:T-Pack Minute Bundle 1000 3 3 ($35.00) ($105.00) $0.00 $0.00 W
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Renewal 3 1 $0.00 $0.00', $0.00 $0.00
Waive LDAC 3 1 $0.00 $0.001 $0.00 $0.00
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GM Adjustment:Approved for Straight Renewal of(3)PRI' 3 1 i $620.64 $620.641 $0.00 $0.00 0
Upsell:that currently have Trunk Max Promo 3 1 $0.00 $0.00 $0.00 $0.00
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Sub Totals: $2,113.14 ($500.00) m
LDAC,EUCC and EUCL: $112.50 =
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Federal,State and Local Taxes and Other Charges will be applied in accordance with the definitions stated at
http://www.insidetelepacific.com/rates/rates-telepacific.asp. O
Method of Payment:ACH(Automated Clearing House)By selecting this payment method,you agree to allow V
TelePacific to deduct your monthly balance in full through an electronic payment system.
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IN WITNESS WHEREOF each Party hereto has caused this Service Agreement to be executed by its duly authorized v
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representative. Q
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Service Agreement
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v103012 276574-101514 Page 2 of 2
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TelePacMa Page 1 of 6 TERMS AND CONDITIONS
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1. General
(a)These Terms and Conditions are part of the Telecommunications Account Agreement(referred to as
"Agreement") between Customer(referred to as"you"and"your") and U.S. TelePacific Corp. and/or its
affiliated companies (collectively referred to as"we", "us"and"our"). Services are offered to you by us
either under Tariffs(documents which list services, prices and other terms and conditions) filed with the
Federal Communications Commission(FCC)and state regulatory agencies having jurisdiction over the
Services ("Tariffed Services"), or on a non-Tariffed basis. Tariffs are available online at
www.telepacific.com, All services provided under this Agreement are collectively referred to as the
"Services." In the event that the rates, terms and conditions in this Agreement conflict at any time with
those set forth in our federal and/or state Tariffs applicable to the Services, the rates, terms and 0
conditions of the Tariffs shall control. The rates, terms and conditions of Tariffed Services may change,
subject to the approval of the applicable regulatory agency. If the Tariffs for any Services are cancelled as •a
a result of regulatory action during the term of this Agreement, we will publish a Price List and related
terms and conditions on our website (www.telepacific.com)which will become part of this Agreement. E
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(b)We may increase the rates in this Agreement for non-Tariffed Services to pass through any price 0
increases imposed on us by the providers of the underlying facilities used to provide the Services or, in 2
the case of long distance services, by our wholesale providers of such services. We may also change the t
rates, terms and conditions applicable to non-Tariffed Services by giving you at least 30 days prior written M
notice. If we materially change the rates, terms and conditions applicable to any of our non-Tariffed
Services except for pass-through rate increases, you may cancel the affected Services provided you F-
notify us in writing before the effective date of the changes. If you cancel any of the Services due to such
material changes, you will only be liable for the charges for those cancelled Service(s) incurred up to and 3
including the date of termination. If you do not cancel the affected Service(s) before the effective date of
the changes,you will be deemed to have consented to the changes and to a continuation of the Services.
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(c) Under certain conditions, you may request that installation of Services be expedited by agreeing to 0
pay an Expedite Fee. No projected date for expedited installation is guaranteed. Payment of the
Expedite Fee only earns an advanced priority for your installation process and installation is not entirely in a
our control. No credit or refund of the Expedite Fee will be made for delay of the installation date beyond
the projected or requested date.
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(d)We reserve the right to provide Services to you via our choice of technology and to change the `=
manner in which we deliver Services at any time in our sole discretion provided the functionality of the c
Service provided remains substantially unaffected by the change. o
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2.Term, Billing, and Payment 0
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(a) Effective Date. This Agreement is effective when it has been signed by both parties and your credit U
application is approved. Upon approval, we will begin as soon as practicable the installation, connection 06
and testing of the lines and/or equipment necessary to provide the Services. If you have renewed E
Services ("Service Renewal")for a new term, (`Renewal Term"), the Effective Date of the Renewal Term
is the date of the first invoice after the Service Renewal is entered into our billing system. �-
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(b)Term. The initial term of this Agreement("Initial Term")will begin the date we provide notice to you CD
that the Services are available for your use. This Agreement will continue in effect for the entire Term E
chosen on the Service Agreement and for any subsequent Renewal Term. The chosen term will
automatically renew for successive Renewal Terms of one (1)year each thereafter, unless terminated as Q
provided in Section 4 of this Agreement. However, you may renew Services for a Renewal Term prior to
the completion of the Initial Term. You may order additional services at the existing service location,
subject to our acceptance, under this Agreement. Services for additional Service Locations may also be
ordered, subject to our acceptance, under this Agreement, The initial term for additional Services ordered
for additional Service Locations will begin the date we provide notice to you that the services are available
for your use, will continue in effect for the entire Term specified on the Service Agreement for the
additional Services and shall automatically renew for successive periods of one (1)year each after the
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.TigiAmpncine Page 2 of 6 TERMS AND CONDITIONS
COMM U N I C A r i a N s
end of the Initial Term of the additional Services (each successive period being a Renewal Term for those
additional Services), unless terminated as provided in Section 4 of this Agreement. The Terms and
Conditions of this Agreement shall extend automatically, following termination, to cover the remaining
Term of any additional Services provided. See Section 4 of this Agreement for additional terms and
conditions applicable to terminations and Renewal Terms, including the rates during Renewal Terms.
(c) Billing. We will begin invoicing you for the Services after giving you notice that the Services are
available for your use and will continue invoicing you on a monthly basis until the Agreement is
terminated. We will bill monthly recurring charges in advance and usage charges after the usage occurs.
You are responsible for all sales, gross receipts, use, excise, and other federal, state and local taxes, o
charges and assessments based on your use of the Services, which will be separately listed on each .2
invoice along with any fees or surcharges applicable to the Services. We may require, in our sole
discretion, that you provide a deposit or other assurance of payment before the Services are provided c
and/or thereafter. Any required deposit shall not bear interest unless required by law. If you delay '
acceptance of the Services after receiving notice that Services are available, we may, in our sole E
discretion, begin charging you for the ordered Services. If you continue to delay acceptance of the U
Services for more than 60 days after the date the Services are available, you will have materially
breached this Agreement,and we will be entitled to terminate this Agreement without further notice and to
pursue the remedies in Section 4 of this Agreement.
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(d) Payment. Invoices are due and payable upon presentation, and become past due after the Pay By 2
Date printed on the invoice. If you have a bona fide dispute with any of the amounts on the invoice E—
("Disputed Amount"),you shall pay all amounts not in dispute by the Pay By Date and provide us with a
written request for a bitting adjustment, together with all supporting documentation,within 45 days after
the Pay By Date or your right to any billing adjustment shall be waived. If we agree to adjust all or a U
portion of the Disputed Amount, you will not be obligated to pay a late payment charge on the adjusted M
amount. If you fail to pay all non-Disputed charges on our invoice by the Pay By Date,we may impose a o
late payment charge of 1.5% per month or the maximum rate allowed by law, whichever is less, on the
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unpaid balance until the amount is paid. We may also suspend your services until all delinquent
amounts, including late payment charges, are paid in full. An additional charge will apply to each a
returned check. "
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3.Your Obligations
(a)Our Property. Any equipment installed at your premises by us or shipped to you by TelePacific or our
authorized third party vendor remains our personal property,and nothing contained in this Agreement C
shall give or convey to you any right, title or interest in such equipment. You agree not to interfere with or
damage the equipment and you agree to reimburse us for any loss or damage that is caused by your c
intentional or negligent acts or by the intentional or negligent acts of your agents, employees,authorized v
users or representatives. You will allow us to promptly remove the equipment from your premises or you 06
will promptly return the equipment to us upon termination of the Services for which the equipment was E
used.
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(b) Building Access. You shall obtain all necessary approvals, applicable permits and/or use fees to be y
attained, if any, for full access by us prior to installation of Service and while Service is provided. aai
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(c) Responsibility for Message Content. You are solely responsible for all content that you make
available on or through our Services. You guarantee that all such content will not infringe on,or contain
any content that infringes on, or otherwise violates any copyright, patent or any other right held by a third- Q
party and that all such content will not violate any applicable law, rule, regulation or industry standard.
(d) Use of Services. You will not use the Services for any illegal, unlawful, abusive or fraudulent purpose
and will use the Services in such a manner as to prevent damage to our network, Your proper use of the
Services includes conforming to all Acceptable Use Policies("AUP")that are available on request and are
displayed at our web site at www.telet)acific.com. The AUP may be amended from time to time. If we
materially change the AUP, you shall be provided the same right to notification and cancellation provided
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Tlehop"C ifie Page 3 of 6 TERMS AND CONDITIONS
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in Section 1(b)of this Agreement.
(e) Third-Party Obligations.You are responsible to pay any third-party vendor charges and to arrange for
disconnection and payment of charges related to the disconnection of any related services with your
current carrier(s).
(f) Network Security. You acknowledge that it is your responsibility to take whatever actions you deem
necessary to make your computer and voice network and circuits adequately secure from unauthorized
access. You further acknowledge that we only provide telecommunications services and certain in
equipment to you and that we are not responsible for the security of your network and circuits from third o
parties, or for any damages that may result from any unauthorized access to your network. We urge you
to seek independent advice with respect to products,equipment(including configurations), and services U
available to make your computer network and circuits more secure from third parties.
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YOU FURTHER ACKNOWLEDGE THAT NONE OF OUR EMPLOYEES, AGENTS, E
TORS HAS MADE AND THEY DO NOT HAVE THE
REPRESENTATIVES OR SUBCONTRACTORS V
CONCERNING THE SECURITY OF YOUR
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AUTHORITY TO MAKE,ANY REPRESENTATIONS
NETWORK OR THE SERVICES WE PROVIDE THAT ARE INCONSISTENT
WITH THE STATEMENTS ._
CONTAINED IN THIS SECTION 3(e). Q.
4.Automatic Renewals; Terminations; Rights and Remedies m
(a)This Agreement and any orders for Services submitted under it shall remain in effect until terminated
as stated in this Section 4. After the Initial Term, this Agreement will automatically renew for successive -�
periods of one year each at our rates then in effect for your Services unless either party notifies the other 3
in writing within the last sixty(60)days of the then-current Term of the intent not to allow this Agreement «'
to renew for a successive Term. However, even after termination of this Agreement for Services ordered
for the original iocation(s)covered by this Agreement, the Terms and Conditions of this Agreement will
automatically extend to cover any remaining Terms or Service Agreements for any additional Services to U
additional Service Locations which have not expired. The Term of any such additional Service
Agreements shall be subject to the same automatic renewal and termination notice provisions as are a
contained in this Agreement. If either party gives the other party the required notice of a decision not to
allow the Agreement or the Term of any additional Services to additional Service Locations to renew at
the expiration of a Term,actual termination of Services will not occur until the later of the end of the then- M
current Term or thirty(30)days after receipt of that notification. If you elect to terminate the Agreement or
any orders for Services before the installation of the Services, you must do so in writing, and you shall pay =
to TelePacifle as a termination charge an amount equal to: (1) the non-recurring charges applicable to the o
Services, even if initially waived, unless those charges have already been paid, and (2), if this Agreement
is for a Term of one year, an amount equal to three times the one month recurring charges,or, if this c
Agreement is for a Term of more than one year, an amount equal to six times the one month recurring
charges. You agree that such a termination charge is a reasonable amount because, among other U
reasons, it would be difficult or impossible to calculate the exact amount of damages suffered by us if you N
terminate this Agreement or any orders for Services. E
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(b) Either party may terminate this Agreement upon 30 days notice if the other party materially breaches ~
the terms and conditions of this Agreement and the other party falls to cure the default within the 30-day =
period, including, but not limited to, your failure to pay our invoices for the Services by the Pay By Date. If
you terminate this Agreement after our material breach, then you will be responsible only for charges for ._
the period before the date of termination. If, however, we terminate this Agreement as a result of your
material breach, or you terminate this Agreement or any Services provided to you for any reason other Q
than our material breach,you shall pay to us a termination charge as follows:
(i)if the effective date of the termination occurs before the last year of the initial or Renewal Term,we will
determine the termination charge as though you had elected an Initial Term ending within the Term year
In which you terminate("Revised Alternate Term"). For example,if you terminate in the 13th month of a
three year Term, the Revised Alternate Term would be two years. We will also determine the monthly
recurring charge("Default MRC")that would have applied if you had chosen the Revised Alternate Term
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when you first selected a Term. You will then pay us a termination charge equal to: (1) the non-recurring
charges for the terminated Services, even if those charges had been initially waived(only applies during
Initial Term); (2)the difference between the monthly recurring charges you actually paid for the
terminated Services through the effective date of termination and the Default MRCs that would have
applied under a Revised Alternate Term; and (3) 50%of the Default MRCs for the period starting with the
effective date of termination and ending on the expiration of the Revised Alternate Terra.
(ii) If the effective date of the termination occurs during the last year of the Initial or Renewal Term, you N
will pay us a termination charge equal to: (1)The non-recurring charges for the terminated Services, r_
even if those charges had been initially waived(only applies during Initial Term);and(2) 50%of the 0
monthly recurring charges for the period starting with the effective date of termination and ending on the
expiration of the Initial or Renewal Term.
If you terminate this Agreement or any Services provided to you for any reason other than our material E
breach,you shall provide us with written notice 30 days in advance, and the effective date of the 0
termination will be the end of that 30 day notice period for purposes of determining the remaining time
over which the termination charge will be calculated. If you do not give us that notice, then the effective
date of termination shall be the date we terminate this Agreement. For partial months, remaining monthly
recurring charges will be determined on a prorated basis. m
All termination charges are due and payable immediately on the effective date of termination (including h
the 50%of remaining monthly recurring charges), and are in addition to any monthly recurring charges,
usage charges and other charges due as of effective date of termination. 3
You agree that each of the above termination charges is a reasonable amount to compensate us for lost L
MRCs and usage charges following termination. You agree because, among other reasons, it would be c
difficult or impossible to calculate the exact amount of such damages suffered by us if you terminate this
Agreement or any orders for Services. v
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(c) In addition to any other recoveries we are entitled to,we shall be entitled to recover from you all of the
costs we incur(including court costs and reasonable attorneys fees) to collect any delinquent charges
owed by you along with all other damages we incur as a result of your breach of this Agreement,
including without limitation termination charges, past due recurring and usage charges, any damage to
our equipment and any amounts we have to pay to third parties because of violations by you of our AUP.
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(d)Sections 4 and 5 of this Agreement, inclusive of sub-sections, shall survive any termination or
expiration of this Agreement.
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5. Warranty Disclaimer,Limitation of Liability and Indemnity v
(a)WARRANTY DISCLAIMER. WITHOUT LIMITING ANY EXPRESS FINANCIAL OR LIABILITY on
PROVISIONS PROVIDED FOR IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE E
OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY,SPECIAL, INCIDENTAL OR H
PUNITIVE DAMAGES (INCLUDING,WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS,
OR GOODWILL)ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF
SERVICES UNDER THIS AGREEMENT (INCLUDING ANY SERVICE IMPLEMENTATION
DELAYS/FAILURES), UNDER ANY THEORY INCLUDING WITHOUT LIMITATION TORT, CONTRACT,
WARRANTY, STATUTE, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN U
ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WE Q
MAKE NO WARRANTIES, EXPRESS OR IMPLIED,AS TO ANY SERVICE PROVISIONED. WE
SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION,ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
(b) Credit Allowances for Interruption of Service. If an interruption or failure of Service is caused solely by
us and not by you or any third party or other causes beyond our reasonable control, you may be entitled
to a credit allowance not to exceed an amount equivalent to the proportionate charge to you for the
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affected Service for the time period during which the interruption occurred. The steps you must take to
apply for credits are available on our website at www.telepacific.com, We shall not be liable for any act or
omission of any other entity furnishing you with facilities or equipment used with the Services, nor shall
we be liable for any damages or losses due in whole or in part to your fault or negligence or due in whole
or in part to the failure of equipment or facilities that you provide.
(c) LIMITATION OF LIABILITY. NOTWITHSTANDING THE PROVISIONS OF SUB-SECTION (a) OF
THIS SECTION 5, OUR TOTAL LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED
THE LESSER OF(1)YOUR PROVEN DIRECT DAMAGES, (2)THE AMOUNTS YOU PAID TO US FOR o
THE SERVICES DURING THE PERIOD IN WHICH ANY SERVICE-RELATED PROBLEMS WERE +,
EXPERIENCED, OR(3)THE CREDITS AVAILABLE TO YOU UNDER OUR TARIFFED LIMITATION OF
LIABILITY. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION AND CLAIMS, E
INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. E
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(d) Indemnification. You will defend, indemnify and hold us harmless(including our officers, directors, v
employees, agents, and contractors)from any claims, liabilities, losses,damages and expenses .2
(including reasonable attorneys fees and costs)arising out of or relating to your use of the Services. This U
indemnity will not be available if the damage or loss is due to our willful or reckless acts or omissions. a
Subject to the limitation of liability set forth in sub-section(c)of this Section,we will defend, indemnify and ID
hold you harmless(including your officers, directors, employees, agents, licensees or contractors)from
any claims, liabilities, losses, damages and expenses(including reasonable attorneys fees and court
costs), arising out of or relating to our delivery of the Services to you. This indemnity will not be available 3
If the damage or loss is due to your willful or reckless acts or omissions.
6. Miscellaneous Provisions c
(a)Assignment and Succession. You may not assign or transfer this Agreement without our prior written v
consent,which shall not be unreasonably withheld. Any unauthorized assignment or transfer shall be null a.
and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, executors, administrators, legal representatives, successor and m
authorized assigns. co
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(b) Governing Law. This Agreement shall be deemed to have been made in the State of California, and N
shall be construed pursuant to the laws of the State of California without regard to the conflicts of law o
provisions thereof.
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(c) Force Majeure. We shall not be liable for any failure of performance of the Services due to causes v
beyond our control, including, but not limited to, fire, flood, electric power interruptions, national U
emergencies, civil disorder, acts of terrorists, riots, strikes, lockouts, work stoppages,Acts of God, or any 6
law, regulation, directive, or order of the United States government, or any other governmental agency, E
including state and local governments having jurisdiction over us or the Services provided hereunder.
(d)Arbitration. if you and we cannot resolve between ourselves any dispute arising under this
Agreement, you and we shall promptly submit the dispute to binding arbitration at the office of the CD
American Arbitration Association ("AAA") located in the City or County of the state where the services are
provided, or, if there is no AAA office at that location, then at the AAA office closest to where the services
are provided ("Arbitration Site"). The arbitration will be held in accordance with the commercial arbitration Q
rules of the AAA. Either party may initiate arbitration by providing written demand for arbitration (with a
copy to the other party), a copy of this Agreement and the administrative fee required by the AAA rules to
the AAA office serving the Arbitration Site. The remaining cost of the arbitration shall be shared equally
by the parties unless the arbitration award provides otherwise. Each party shall bear the cost of preparing
and presenting its case. You and we agree to undertake all reasonable steps to expedite the arbitration
process. One arbitrator will be appointed in accordance with the AAA rules within 30 calendar days of the
submission of the demand for arbitration. The arbitrator will designate the time and place for the
Arbitration within 30 days of appointment. The parties agree that the arbitrator's authority to grant relief
V100111
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5.H.c
T9311epn9a e° Page 6 of 6 TERMS AND CONDITIONS
to All AfV V f GA FI aN9
shall be subject to the provisions of this Agreement, our applicable tariffs, if any,and any other applicable
law. The arbitrator shall not be entitled to award, nor shall either party be entitled to receive, punitive,
Incidental, exemplary, consequential, reliance or special damages, including damages for lost profits.
The arbitrator's decision shall follow the plain meaning of this Agreement and shall be final, binding and
enforceable in a court of competent jurisdiction.
(e) Entire Agreement and Modifications. This Agreement and all other documents specifically referred to
in this Agreement constitute the entire and final agreement and understanding between you and us with
respect to the subject matter of this Agreement and supersede all prior agreements relating to such
subject matter, which are of no further force or effect. Any and all exhibits referred to in this Agreement c
are integral parts of this Agreement and are made a part of this Agreement. This Agreement may only be o
modified or supplemented by an Instrument in writing executed by both your and our duty authorized
representatives.
(f) Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court or E
administrative agency with jurisdiction over the Services, such provision shall be deemed amended to the E
minimum extent necessary to render it enforceable. �j
(g) Headings. The headings used in this Agreement are for convenience only and do not in any way limit :i=
or otherwise affect the meaning of any of the terms. Q
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(h)Waiver. Under no circumstances shall our failure to enforce any provision of this Agreement in any
particular instance be construed as a waiver of that provision. ~
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(I)Notices. All notices from you to us must be in writing and delivered by certified mail, return receipt 3
requested or by Federal Express or other similar expedited delivery service to: U.S. TelePacific Corp.,
Attn. General Counsel, 515 S. Flower Street,47th Floor, Los Angeles, CA 90071-2201. If you are
notifying us that you do not wish to renew Services, your written notice may be by a letter delivered in that o
manner or by an email to: retentionOtelepacific.com . U
Q.) Limitation on Actions. Any legal action arising in connection with this Agreement must begin within a
two (2) years after the cause of action arises.
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7.Service Guarantee
Notwithstanding anything to the contrary contained in this Agreement, you may terminate this Agreement N
without any further obligation If the Services we provide are not substantially performing up to industry o
standards during the first 90 days the Services are available for your use. If you elect to terminate the
Agreement pursuant to this guarantee,we will reimburse you for all reasonable costs you incurred to re- o
establish service with your previous service provider not to exceed the amount that you paid to us for V
Installation of the Services.This Service Guarantee only applies if: (a)the cause of the Service 06
deficiency was within our reasonable control; (b) you ordered at least the amount of Services that we N
recommended to meet your traffic volumes; (c) you give us written notice of the deficiency within the first E
90 days after we notified you the Services are available for your use, and (d)we fail to correct the Service
deficiency within 15 days after receiving written notice from you of the deficiency.
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ADDENDUM TO
TELECOMMUNICATIONS ACCOUNT AGREEMENT
This Addendum to Telecommunications Account Agreement("Addendum")is made as of the 5t''
day of March 2015,by and between U.S.TelePacific Corp.,a California corporation,d/b/a N
TelePacific Communications,515 S. Flower Street,47`''Floor,Los Angeles,CA 90071-2201 0
("TelePacific")and City of San Bernardino, a Charter City organized under the laws of the State
of California,with an address of 300 N. "D" Street, San Bernardino, CA 92418 ("Customer"). 2
This Addendum amends and modifies that certain Telecommunications Account Agreement E
between TelePacific and Customer signed by Customer on the_day of ,20_, v
("Agreement"),as follows:
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1. Based on the volume of Services ordered by Customer and the competitive conditions in Q.
the marketplace for telecommunications services,TelePacific hereby agrees to provide Services
to Customer pursuant to Terms and Conditions and rates applicable to the Agreement as modified
below based upon Customer's commitment to a three(3)year term("Initial Term") and other
fees and charges set forth in the Agreement, which is different from those Terms and Conditions
provided for those same Services to others, as follows:
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2. Insert the following at the end of subsection(b)of Section 2 of the Terms and Conditions U
of the Agreement: "We shall not receive compensation for any services provided beyond those
specified in this Agreement unless your City Manager,prior to us performing the additional a
services,approves such additional services in writing. It is specifically understood that oral
requests and/or approvals of such additional services or additional compensation shall be barred
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and are unenforceable."
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3. Insert the following at the end of subsection(b) of Section 6 of the Terms and Conditions LO
of the Agreement: "The parties hereto agree that all actions or proceedings arising in connection ,n
with this Agreement shall be tried and litigated either in the Superior Court of the State of
California for the County of San Bernardino or the United States District Court for the Central °
District of California,Riverside Division. The aforementioned choice of venue is intended by the
parties to be mandatory and not permissive in nature."
4. Delete subsection(d)of Section 6 of the Terms and Conditions of the Agreement. Q
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5. Delete subsection 0)of Section 6 of the Terms and Conditions of the Agreement. a
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6. All of the other provisions of the Agreement shall remain in full force and effect.
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U.S. TelePacific Corp., City of San Bernardino,
a California corporation, a Charter City organized under the laws of the
State of California cc,
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By: By a
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Name: Name:
10 Title: Title: