HomeMy WebLinkAboutIT05-365 - Original - World Communications, Inc. - WCI Local Dial Tone & Long Distance Phone Service - 05/11/2005 T Lelc o rds M e I
KEN WASHIxGTOx Document
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission to City Clerks Office. All
portions are to be completed, if you have questions, please contact City Clerks Office.
Vendor Name: ItIftelA Vendor Number: 1 a 44:
JD Edwards Number
YContract Number. J-Ta�— 3
This is assigned by Deputy City Clerk
Description:�S.=
Detail: 1._eac&A n'4'a T�a- c'oo_3 1e s +
Project Name:
Contract Effective Date: S 1T to Termination Date: Nj a=
Contract Renewal Notice (Days): 'S * A&A :s cvr�h c 0
Number of days required notice for termination renewal or amendment
Contract Manager: Vic - n„- Department: Sin.
Abstract:
5 Pub0c\RecordsManagemeni\Forms\COntractCOver\ADCL7832 07/02
WCI
Service Agreement
THIS AGREEMENT,DATED,May 11,2005 is entered into between World
Communications Inc., 190 Queen Anne Avenue North, Suite 250, Seattle, WA 98109,for
and on behalf of its regional operating subsidiaries that will provide services hereunder
(each such subsidiary is referred to as"WCI,"or"Vendor"),and the City of Kent, 220
Fourth Ave. S.,Kent,WA 98032 (hereinafter referred to as the"City").
1. General-
(a) This Agreement governs WCI's provision of local dial tone and long
distance services to the City or its affiliates under any service order
from the City or an affiliate accepted by WCI(each,a"Service
Order").
(b) WCI shall meet the performance specifications, if any,contained in
respective Service Orders. If performance specifications are not
contained in a Service Order,WCI's performance will meet prevalent
industry standards for equivalent services. The prevalent performance
standards for the provision of this service include 99.999%availability
of service throughout the life of this Agreement.
(c) The City will cooperate with WCI to enable WCI to fulfill its
obligations under this Agreement and associated Service Orders (e.g.,
The City will afford WCI safe and reasonable access to the City's
premises to enable WCI to use the City's Proprietary Network
Information("CPNI")to offer additional services and otherwise assist
the City. If WCI installs any equipment at the City's premises, it shall
remain the property of WCI and the City shall be responsible for any
loss or damage to such equipment,unless such loss or damage is
caused by WCI's negligence or willful misconduct.
2. Prices and Payments.
(a) Prices are set forth in the material attached Service Order. WCI may
increase prices effective after the initial term of a Service Order upon
90 days notice. If, during the term of this Agreement, WCI offers a
lower price for similar service to a similar size client, with similar
volume commitments,with similar capital expenditures, other than a
short term promotional rate,WCI will immediately reduce the City's
price to the same amount. WCI will invoice monthly for all services
and payment shall be due 45 days after receipt by the City of the
invoice.
(b) The City shall pay recurring charges monthly in advance and usage
charges monthly in arrears.
(c) The City will be liable for recurring charges as of the date that service
is accepted by the City,such acceptance not to be unreasonably
withheld.
- 1 -
(d) If the City requests that WCI make a service call to the City's
premises, WCI may charge rates as detailed in the Service Order for
on-site service if WCI determines that the service call was necessary
due to actions by the City or another third party,other than any Local
Exchange Carrier(LEC)from which WCI is purchasing transport
services to deliver WCI services to the City.
3. Credits.
(a) The City shall receive a credit equal in amount to (i) one day's
recurring charges for any circuit where a Service Interruption of such
circuit of a duration of 4 hours or less occurs in any calendar month
and(ii)one month's recurring charges where a Service Interruption of
such circuit of a duration in excess of 4 hours occurs in any calendar
month.
"Service Interruption"means that the affected circuit is unusable and
not in use by the City as a result of the failure of WCI-controlled
equipment or personnel or the failure of equipment or personnel at the
LEC from whom WCI is purchasing services of the City. A Service
Interruption shall not occur or continue if the interruption occurs
because of a failure in equipment that is not under WCI's control or
circumstances outside the control of WCI,other than as stated in the
previous sentence. If WCI provides a reasonable notice that a service
disruption will occur to enable WCI to perform maintenance, such
service disruption will not be considered a Service Interruption.
4. Order of Documents. In the case of inconsistencies or disputes among this
Agreement,the City's RFP,and Focal Communications' Response to the
RFP, the following order of precedence shall prevail in descending order of
priority:
a. This Agreement and any written and fully signed authorized
amendments thereto.
b. Focal Communications' Response to the RFP and any
authorized written amendment or clarifications thereto.
c. The City's RFP and any written amendments thereto.
To the extent any terms or conditions of this Agreement are invalid under
any applicable statute or rule of law,they are deemed to be omitted and
the remaining provisions of this Agreement shall not in any way be
affected or impaired.
5. indent Contractor. The parties intend that an Independent Contractor-
Employer relationship will be created by this Agreement,the City being
interested only in the results obtained under this Agreement. This Agreement
does not create a partnership,joint venture, agency,or similar relationship
between parties.
6. Terminatign for Cause.The City may terminate the Agreement for good
cause. "Good Cause"shall include,without limitation, any one or more of the
following events:
-2-
(a) WCI's refusal,or failure,to supply a sufficient number of properly
skilled workers or proper materials for completion of the Agreement
work.
(b) WCI's failure to complete the work within 90 calendar days of WCI's
receipt of an Order.
(c) WCI's failure to make full and prompt payment of undisputed amounts
to sub-vendors or for material or labor.
(d) WCI's failure to comply with federal,state or local laws,rules or
regulations.
(e) WCI's filing for bankruptcy or becoming adjudged bankrupt.
(f) WCI's continued and/or flagrant failure to comply with any terms or
conditions of the contract, subject to the provisions for contract default
established in Section 9.
If the City terminates the Agreement for good cause,the City shall not be
responsible for any monies due under this Agreement other that sums due
for services rendered up to the date of termination,however,the City shall
have the right to offset for any out of pocket expenses they have incurred
due to WCI's failure to complete the work.
7. Termination without Cause.
(a) This Agreement shall terminate upon the termination of the last to
expire Service Order. Except as provided in paragraph(b), Service
Orders may not be cancelled or terminated during their respective
initial terms. Service Orders shall automatically renew on a month-to-
month basis. Subsequent to the initial term, Service Orders may be
cancelled upon 30 days written notice to the other party.
(b) If the City cancels a Service Order prior to the expiration of its initial
term,without cause,the City shall pay to WCI,as liquidated damages
and not as a penalty,the sum of(i)the nonrecurring charges associated
with the establishment of service as provided in the Service Order,(ii)
any disconnection,cancellation, (iii)the sum of the remaining
recurring charges for the initial term of the cancelled Service Order,
less a present value discount of 8%per annum,and(iv)the costs
incurred by WCI to remove and return to WCI's facility any WCI
equipment at the City's premises.
8. Termination by WCI. WCI may terminate or suspend this Agreement and/or
any associated Service Order at any time if the City uses services provided by
WCI for any illegal or fraudulent purpose.
9. lilt. This Agreement may be terminated by either party if the other party
is in default of any provisions of the Agreement,so long as the default is not
corrected within thirty(30)calendar days of the receipt of written notice of
the default from the non-defaulting party,the non-defaulting party may extend
time for cure,which extension shall not be unreasonably withheld. For the
purposes of this Section"default"shall include any failure to abide by the
terms or conditions of this Agreement including the City's RFP and WCI's
-3 -
_ y
response to the RFP. This written notice must particularly describe the
alleged default or material breach.
10. Acts of Insolvency. Without waiving any other rights granted to the City in
this Agreement,the City may terminate this Agreement between WCI and the
City by written notice if WCI makes a general assignment for the benefit of
creditors, suffers or permits an appointment of a receiver for its business
assets,becomes subject to any proceeding under any bankruptcy or insolvency
law whether domestic or foreign,or has wound up or liquidated its business,
voluntarily,or otherwise.
11. Court Orders. The City may terminate the Agreement, including all related
agreements(e.g. maintenance agreements,etc.)in whole,or from time to time
in part,whenever WCI is prevented from proceeding with the project work by
reason of a preliminary,special,or permanent restraining order from a court
of competent jurisdiction where the issuance of such restraining order is
primarily caused by either acts or omissions of WCI.
12. Changes, The City may issue a written change order for any change in the
contract work during the performance of this Agreement. Any difference in
the monthly cost of providing the service due to a change order shall be
controlled by the prices contained in the Service Order. In other words, any
additional services ordered and any partial cancellation of services will be
charged and credited back according to the prices contained in the Service
Order. The City has the right to cancel up to 100%of the total service with 60
days prior written notice because of changes in the number of locations or
number of lines needed during the term of this Agreement.
13.Procedures and Protest by WCI. If WCI disagrees with anything required by a
change order,another written order,or an oral order from the City, including
any direction,instruction, interpretation,or determination by the City,WCI
shall:
(a) Immediately give a signed written notice of protest to the City.
(b) Supplement the written protest within 14 calendar days with a written
statement that provides the following information:
1) The date of WCI's protest.
2) The nature and circumstances that caused the protest.
3) The provisions in this Agreement that support the
protest.
4) The estimated dollar cost, if any, of the protested work
and how that estimate was determined.
(c) An analysis of the progress schedule showing the schedule change or
disruption, if WCI is asserting a schedule change or disruption.
(d) WCI shall keep complete records of extra costs and time incurred as a
result of the protested work. The City shall have access to any of
WCI's records needed for evaluating the protest.
(e) The City will evaluate all protests,provided the procedures in this
section are followed. If the City determines that a protest is valid,the
City,upon review,may adjust payment kor work or time by an
-4-
established adjustment. No adjustment will be made for an invalid
protest.
(f) In spite of any protest,WCI shall proceed promptly with the work as
the City has ordered.
(g) WCI accepts all requirements of a change order by: (1)endorsing it,
(2)writing a separate acceptance, or(3)not protesting in the way this
section provides. A change order that is accepted by WCI, as provided
§ in this section, shall constitute full payment and final settlement of all
claims for contract time,and for direct, indirect and consequential
costs,including costs of delays related to any work,either covered or
affected by the change.
(h) By not protesting as this section provides,WCI also waives any
additional entitlement and accepts from the City any written or oral
order(including directions,instructions, interpretations, and
determination).
(i) Failure to Follow Procedures Constitutes Waiver. By failing to follow
the procedures of this section,WCI completely waives any claims for
protested work and accepts from the City any written or oral order
(including directions,instructions, interpretations, and determination).
14.Claims, WCI shall give written notice to the City of Kent of at claims within
14 calendar days of the occurrence of the events giving rise to the claims,or
within 14 days that WCI discovers such facts,provided that WCI has used due
diligence in the discovery of the facts. Any claim for damages, additional
payment for any reason,or extension of time,whether under the Agreement or
otherwise, shall be conclusively deemed to have been waived by WCI unless a
timely written claim is made in strict accordance with the applicable
provisions of the Agreement; or, if(and only if)no such provision is
applicable,unless that claim is set forth in detail in writing and received by
the City within seven calendar days from the date WCI knew, or should have
known,of the facts giving rise to the claim. Any claim filed before WCI has
fully pursued and exhausted all remedies for changes,including change orders
and protests,shall also be conclusively deemed to have been waived by WCI.
FAILURE TO PROVIDE A COMPLETE,WRITTEN NOTIFICATION OF
CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE
WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OF
EVENTS SUROUNDING THAT CLAIM, OR CAUSED BY THAT DELY.
15.kdermrifrcation. WCI, for itself;its employees,agents,consultants, and
contractors,shall defend,indemnify and hold the City,its officers,officials,
employees,and agents harmless from any and all third party claims, injuries,
damages, losses or suits,including all legal costs and attorney fees,arising out
of or in connection with the performance of the Agreement,but only to the
extent of WCI's negligence.
- 5 -
X
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT
THIS INDEMNIFICATION CONSTITUTES FOCAL'S WAIVER OF
IMMUNITY UNDER INDUSTRIAL INSURANCE.TITLE 51 RCW, SOLELY
F FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES
ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS
WAIVER
The City's inspection or acceptance of any of WCI's work when completed shall
not be grounds to avoid any of these covenants of indemnification.
The provisions of this section shall survive the expiration or termination of the
Agreement.
16.DAMees al d�i i®itation on Liability.WCI's indemnification shall apply to all
damages incurred by the City or third parties,whether direct, indirect, actual,
consequential,or incidental. However,WCI's liability for damages to the
City for any cause whatsoever,regardless of form or action,whether in
contract,or tort,shall be limited to Two Million Dollars($2,000,000.00).
17. Royalties and Patents. WCI shall pay royalties and license fees and defend all
suits resulting from claims regarding same on all software and materials
purchases outright from WCI and installed according to the specifications of
the City.
18.jig. WCI shall procure and maintain for the duration of the Agreement
insurance of the types and in the amounts described below against claims for
injuries to persons or damage to the property which may arise from or in
connection with the performance of the work by WCI, its agents,
representatives,employees,sub-consultants,or subcontractors. WCI shall
provide a Certificate of Insurance evidencing:
a. Automobile Liability.Automobile liability insurance
(including commercial automobile liability insurance) with
limits no less than $1,000,000 combined single limit per
accident for bodily injury and property damage; and
b. Commercial General Liability. Commercial General Liability
insurance written on an occurrence basis with limits no less
than$1,000,000 combined single limit per occurrence and in
the aggregate for personal injury, bodily injury,and property
damage. Coverage shall include but not be limited to:
blanket contractual;products/completed operations/broad
from property damage;explosion,and employer's liability.
c. Errors and Omissions. Errors and omissions insurance
written on a claims-made basis with limits not less than
$1,000,000 per occurrence.
d. Excess LijIbility. Excess Liability insurance with limits not
less than $1,000,000 per occurrence and aggregate.
e. DMIWtible. Any payment of deductible or self-insured
retention shall be the sole responsibility of WCI.
-6-
3
S l
f. Ems.Prior to contract execution,the City, its
officers, officials,employees, agents, and volunteers shall be
named as an additional insured on the insurance policy,as
respects work performed by or on behalf of WCI and a copy
of the endorsement naming the City as additional insured
shall be attached to the Certificate of Insurance. Copies of
such documents shall be provided to the City prior to contract
execution.
g. CA=¢e.WCI's insurance shall contain a clause stating that
coverage shall apply separately to each insured against whom
claim is made or suit is brought,except with respect to the
limits of the insurers liability.
h. Edm= WCI's insurance shall be primary insurance as
respects the City, and the City shall be given thirty(30)
calendar days prior written notice by certified mail,return
receipt requested,of any cancellation, suspension or material
change in coverage.
i. WQ ker's Camnensation Insurance. In compliance with RCW
51.12.020,which requires subject employers to provide
workers' compensation coverage for all their subject workers
and Employer's Liability or Stop Gap Insurance in the
amount of$500,000.
A failure to provide and maintain insurance coverage and written acceptance of
the tendered policy shall be deemed to constitute a material breach of agreement
by WCI. The City reserves the right to then award the Agreement to another
bidder. In order to protect the public interest and notwithstanding any provisions
herein to the contrary,WCI's failure to comply with any provision in this section
shall subject the Agreement to immediate termination without notice and without
recourse by any person.
19. City of Kent Business License.Persons/firms doing business with the City
must have a valid City of Kent business license if they maintain a permanent
location within the City;OR maintain a permanent location outside the City
having an employee who solicits business from the City. Questions may be
directed to City of Kent, Customer Service Department,Geneva Obenchain
(253)856-5210.
20. Anti-Kickback,No officer or employee of the City of Kent,having the power
or duty to perform an official act of action related to the Agreement, shall have or
acquire any interest in the contract,or have solicited,accepted or granted a
present or future gift, favor, service or other thing of value from or to any person
involved in the contract.
21.1Y4j1d3SG><Jmlilatts?II. No individual shall be excluded from participation in,
denied the benefit of, subjected to discrimination under,or denied employment in
the administration of or in connection with the Agreements because of race, color,
creed,marital status,familial status,religion, sex,national origin,Vietnam era of
-7-
disabled veteran's status,age,or disability. WCI shall comply with all applicable
federal, state and local nondiscrimination laws,regulations and policies.
22. Eaual Emnloy,�g . WCI shall comply with all federal, state, and local laws,
rules,regulations,and ordinances prohibiting discrimination in employment with
regard to age,sex,race,color,creed,national origin, or the presence of any
sensory,mental, or physical disability,unless based upon a bona fide occupational
qualification. Further,WCI will comply with the City's Minority and Women
Contractors Policy(Administrative Policy Number 1.2,attached as Appendix b)
and also provide all written statements required by that policy.
23. 91,1 Calls. The City acknowledges that 911,E911,and similar emergency
service numbers ("911 Calls")will not route properly if the City's services are
physically located in a rate center other than the rate center associated with the
calling number(a"Remote Rate Center'. To assure the timely delivery of
emergency services if the City is located in a Remote Rate Center,the City will
bar the routing of 911 calls through WCI's network and arrange for the proper
routing of 911 calls.
24.MW&11 ag".
(a)Comnhance Mdth Laws. Both,the City and WCI shall comply with all
federal, state,and local laws,rules and regulations throughout every
aspect in the performance of the Agreement.
(b)Work Performed at WCI's Risk. WCI shall take all precautions
necessary and shall be responsible for the safety of its employees, agents,
and subcontractors in the performance Agreement. All work shall be done
at WCI's own risk,and WCI shall be responsible for any loss of or
damage to materials,tools, or other articles used or held for use in
connection with the work.
(c)Nonwaiver of Breach, The failure of the City to insist upon strict
performance of any of the terms and rights contained herein, or to exercise
any option herein conferred in one or more instances, shall not be
construed to be a waiver or relinquishment of those terms and rights,and
they shall remain in full force and effect.
(d)Resolution of Disr_+utes and Governing The The Agreement shall be
governed by and construed in accordance with the laws of the State of
Washington. If the parties are unable to settle any dispute,difference,or
claim arising from the parties' performance of the Agreement,the
exclusive means of resolving that dispute,difference, or claim,shall only
be by filing suit exclusively under the venue,rules,and jurisdiction of the
King County Superior Court located in Dent, King County, Washington,
unless the parties agree in writing to an alterative dispute resolution
process;provided,however,nothing in this paragraph shall be construed
to limit the City's right to indemnification under Section 15.
(e)A g='s Fees. Subject to the indemnification and limitation of
WCI's liability provisions set forth in the Agreement, if any action or suit
is brought with respect to a matter or matters covered by the Agreement,
each party shall be responsible for all its own costs and expenses incident
to such proceedings,including all costs and attorney's fees.
- 8 -
(f)Written Ngda. All communications regarding the Agreement shall be
sent to the parties at the addresses listed on the Agreement, unless
otherwise notified. Any written notice shall become effective upon
delivery,provided that failure to accept delivery shall be deemed to be
delivery. Copies of all notices to Vendor shall be addressed to World
Communications Inc., 190 Queen Anne Avenue North, Suite 250, Seattle,
WA 98109,Attn:Michael Terpening.
(g)Wit. Any assignment of the Agreement by WCI, other than to
a subsidiary or affiliate,without the written consent of the City, such
consent not to be unreasonably withheld, shall be void However,the City
reserves the right to test the service performance of the Assignee for a
period of 90 days and if the Assignee fails to meet the performance
standards contained in the Agreement,the City may immediately cancel
the Agreement with no further obligation to the Assignee except for
payment of services provided up to the date of termination.
(h)Modification No waiver,alteration,or modification of any of the
provisions of the Agreement shall be binding unless in writing and signed
by a duly authorized representative of the City and WCI.
(i) Severability. If any one or more sections,sub-sections, or sentences of
the Agreement are held to be unconstitutional or invalid,that decision
shall not affect the validity of the remaining portion of the Agreement and
the remainder shall remain in full force and effect.
0) blicity:Use of Information. WCI agrees that is will not sell,publish,
or reveal to any third party any information about the City of Kent which
it obtains during the RFP,implementation, or maintenance periods of the
Agreement. This restriction applies to any information obtained whether
it be in the public domain or considered proprietary. In addition, WCI
agrees that it will not at any time use the City of Kent in promotional
materials or as a reference without the prior written consent of the City of
Kent, such consent not to be unreasonably withheld.
25. Survival Beyond Termination. The provisions of sections 4, 14, 15, and 22
shall survive the expiration or termination of this Agreement for any reason.
26.Ramgdja. Any claim for damages incurred by either party resulting from
breach of the agreement by the other party shall survive termination. The
remedies provided herein shall not be deemed exclusive but shall be cumulative
and shall be in addition to all other remedies provided by law and equity. No
delay or omission in the exercise of any remedy herein provided or otherwise
available to WCI shall impair or affect its right to exercise the same.
27. Force MWeure. Notwithstanding anything to the contrary contained herein, in
no event shall Vendor be liable for failure to meet any deadline,or for any failure
of service,to the extent such failure was caused by acts of God, acts of war,acts
of civil disobedience,natural disasters,or any other cause of such nature beyond
the reasonable care and control of Vendor, including acts or omissions of third
party telecommunications carries. In the event of a failure in service due to an act
or omission by a third party telecommunications carrier,WCI Agrees that it will
use its best efforts to manage resolution of such service failure.
- 9-
e ► r
28. .
Final Acceptance Final Acceptance means the date, as reasonably
determined by the City,that the services,vendor
supplied terminating equipment,and documentation
have been delivered,placed in operation,tested by
the City,and provided full functionality for a period
of at least 15 continuous calendar days.
Notice Any notice required or permitted to be made or
given pursuant to the Agreement shall be made or
given on the date of receipt if sent to the other party
by certified mail,postage prepaid,addressed to the
other party at the address set forth in this
Agreement.
Request for Proposal Request for Proposal or RFP means the City's
published document seeking proposals for
Telecommunications Services, issued August 4,
2000.
Response to UE Response to RFP means WCI's proposal, dated,
September 18,2000, in response to City's RFP,
together with WCI's subsequent documentation
submitted on October 11,2000.
Updates Update(s)means corrections, enhancements, or
upgrades to WCI's products, services, and
equipment within the scope of the City's voice
services.
Performance Warranty WCI will provide the industry standard of 99.99%
availability of service throughout the life of this
Agreement. If,during the term of the Service
Order,Customer experiences a total service
interruption caused solely by WCI(meaning the
total loss of all telecommunications Services
provided by WCI)for more than two hours or more
than two times within any 60 day period, then
Customer may be allowed to cancel the Service
Order and disconnect services with WCI without
incurring early termination costs.
WCI
4f/
sig udm: SrguUM:
Print Nero: (h Print N=s -je z
])eAQ A g PA4M)!6E9
Title. �(1' UA ��"_ Titie: /� ,4 00-Z AeP
pate I -t7-0 raft: 7--2 7- o s
- 10-