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HomeMy WebLinkAboutRes.1166.05-13-1996BILL NO. 96-136 RESOLUTION NO. /fitG A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH SOUTHWESTERN BELL TELEPHONE COMPANY FOR PLACEMENT OF INMATE TELEPHONE EQUIPMENT AT THE CAPE GIRARDEAU POLICE DEPARTMENT BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute an Agreement with Southwestern Bell Telephone Company for placement of inmate telephone equipment at the Cape Girardeau Police Department. A copy of said Agreement is attached to this Resolution and made a part hereof. PASSED AND ADOPTED THIS DAY OF , 19 J, A. M. Spr dling, III, yor ATTEST: Gayle6t. Conrad Deputy City Clerk SOUTHWESTERN BELL TELEPHONE COMPANY STATE LICENSE AGREEMENT FOR PLACEMENT OF INMATE TELEPHONE EQUIPMENT This agreement is made as of 51131% between Cape Girardeau Police Department (hereinafter referred to as "Licensor") a governmental corporation and Southwestern Bell Telephone Company (hereinafter referred to as "SWBT:) a Missouri Corporation with its principal place of business as 1010 Pine St., St. Louis, Missouri 63101. Licensor and SWBT hereby agree to the following terms and conditions: I. Term of Agreement Subject to the terms and conditions hereof, this Agreement shall be in effect for an initial period of four (4) years, commencing on S`j3/q&("the Effective Date"). II. Inmate Telephone Equipment and Service (a) Locations and Placement of Equipment and Service Licensor hereby grants to SWBT a license to install and maintain inmate telephone(s), coin-operated telephones, and associated wiring and hardware (hereinafter collectively referred to as "Inmate Telephone Equipment") at those of Licensor's specified location(s) as set out in Schedule A, attached hereto and incorporated herein, with SWBT's service area (hereinafter referred to as "Locations"). Said Locations may be moved, added to at no charge to Licensor and Licensor may, at no charge, delete any Location(s) where it has ceased inmate incarceration by advance written notice of same to SWBT. Any addition, regardless of date, to Schedule A during the term of this Agreement shall automatically expire on the same date as the expiration or termination date of this Agreement, as set forth in Section I, or, if the term is extended, as set forth in Section VIII. The total cost of all such installation, including, but not limited to, installation charges, materials and labor costs, shall be borne by SWBT unless SWBT has an approved tariff which imposes a charge for Licensor's change from one primary interexchange carrier to another, in which case Licensor shall bear that cost. All other costs shall be borne by SWBT. Inmate Telephone Equipment shall remain the property of SWBT. SWBT will provide all pay telephone equipment and services as indicated in our response to the specifications outlined in the bid for Inmate telephones at no cost to the County. (b) Remuneration SWBT will pay the licensor a commission on revenue billed at the rate of thirty-six (36%) of cash (sent paid) and non-cash (non -sent paid) local and intraLata revenue at Licensor's location(s). In addition a $2000 signing bonus will be paid. (c) Maintenance SWBT shall maintain its Inmate Telephone Equipment in proper working order. Service calls shall be made by SWBT within twenty-four (24) hours of the reported problem, exclusive of Saturdays, Sundays and legal holidays, in which event service calls shall be made by SWBT within twenty-four (24) hours after the following work day of the reported problem. (d) Termination In the event either party defaults in its obligations hereunder, the other party shall promptly notify such party of the default in writing. If the party in default fails to remedy such default within fifteen (15) days after receipt of such notice, or if such default is of a character requiring more than fifteen (15) days to cure and the party in default fails to commence to remedy such default within fifteen (15) days of receipt of such notice and thereafter diligently proceed to remedy such default, the other party may cancel and terminate this Agreement without penalty. III. Licensor's Obligations (a) Condition of Premises Licensor shall provide the space for the Inmate Telephone Equipment, provide proper light and heat therefore, keep the premises around the Inmate Telephone Equipment clean and the Inmate Telephone Equipment readily accessible. (b) No Attachment Licensor shall not apparatus or appliance to apparatus or appliance is (c) Vandalism attach or connect any the telephone unless such provided by SWBT. Licensor shall report to SWBT any misuse, destruction, damage or vandalism to the Inmate Telephone Equipment at its Location(s) as soon as practicable after Licensor learns of, discovers or has reason to know about such event. (d) Damage to Inmate Telephone Equipment The Licensor agrees that no liability shall attach to SWBT by reason of any defacement or damage to it premises resulting from the existence of SWBT's equipment or by the installation or removal thereof, when such defacement or damage is the result of the negligence of SWBT or its employees. If the Inmate Telephone Equipment is willfully damaged or destroyed by the Licensor or Licensor's employees, Licensor shall be responsible to pay SWBT's cost of restoring service and/or repairing equipment. IV. Authority to Contract Each party warrants to the other party that it has the right to enter into this Agreement and authorizes the installation of Inmate Telephone Equipment. Licensor warrants it has the full right and authority to enter into this Agreement. Each party shall defend, release, indemnify and hold the other party, its employees and agents harmless from any claims, damages and actions arising out of this Agreement caused by said party's lack of the aforesaid authority. V. Advertising/Publicity Neither party shall publish or otherwise distribute, without the other party's written approval, any advertising, sales promotions, press releases and other publicity matters wherein the other party's name or marks are mentioned or language from which the connection of said names or marks herewith may be inferred or implied. VI. Indemnification and Liability NO LIABILITY SHALL ATTACH TO SWBT FOR INTERRUPTION OF SERVICE FROM ANY CAUSE, NOR SHALL ANY LIABILITY IN ANY OTHER CASE ATTACH TO SWBT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES PROFITS OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF (1) THE PERFORMANCE OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, NEGLIGENT PERFORMANCE OR FAILURE TO PERFORM, OR (2) A DEFECT OR FAILURE IN SERVICE OF INMATE TELEPHONE EQUIPMENT PROVIDED HEREUNDER. EXCEPT AS REQUIRED BY THE APPROPRIATE REGULATORY AGENCIES IN ACCORDANCE WITH APPLICABLE LAWS, w SWBT MAKES NO WARRANTIES TO LICENSOR WITH RESPECT TO THE SERVICE OF THE INMATE TELEPHONE EQUIPMENT, EITHER EXPRESSED OR IMPLIED, INCLUDING WITH LIMITATION, WARRANTIES OR MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE OR WARRANTIES WHICH ARISE FROM TRADE, CUSTOM OR USAGE. VII. Right of Access Licensor shall permit employees or contractors of SWBT reasonable access, at no charge, to the Location(s) and any associated equipment and terminal areas in connection with any and all work hereunder, including, but not limited to, installation, inspection, maintenance, or removal of equipment. Licensor shall not require waivers or releases of any personal rights from employees or contractors of SWBT in connection such visits to the Location(s). Whenever SWBT ceases to provide Inmate Telephone Equipment at any Location(s), whether by termination of or default under the terms of this agreement by either party, Licensor shall provide access to the Location(s) for SWBT's removal of Inmate Telephone Equipment from such Location(s). Such removal shall include SWBT obtaining all necessary permits and restoring the Location(s) to it original appearance and condition, ordinary wear and tear excepted. VIII. Extension or Renewal of Agreement This Agreement is effective for 4 years, commencing on the Effective Date, and may be extended on a year-to-year basis upon approval of the Licensor. In the event this Agreement is terminated, the Inmate Telephone Equipment located at Licensor's Location(s) shall be removed and no further commission shall be paid to Licensor by Licensee, but in no event shall SWBT discontinue service or the paying of commissions hereunder prior to the time that SWBT's equipment is physically removed. IX. Termination Charges If this agreement is terminated other than pursuant to Section VIII, SWBT shall have at least sixty (60) days to remove its Inmate Telephone Equipment at no charge to Licensor. In addition, if this Agreement is terminated due to the default of Licensor, and Licensor of SWBT during the then remaining period of this agreement as set forth under paragraph VIII above then the parties acknowledge that the removal of service and equipment at Licensor's request will cause substantial damages to SWBT. It will be difficult, if not impossible, to ascertain the exact amount of damages. Therefore, Licensor agrees to pay to SWBT liquidated damages calculated by multiplying the average monthly revenue of each of the Inmate Pay Telephones during the term of this Agreement, by the number of months remaining in the Agreement, minus 36 percent of expense savings. The parties have agreed such sum constitutes a reasonable forecast of probable actual loss in light of the anticipated harm. This will apply in the event the licensor decides to terminate the contract prior to the expi rat ion date. X . Not i ces SWBT shall mail remuneration due Licensor hereunder to Licensor as provided in Section II (b), and Licensor and SWBT shall mail all notices, by first class mail, postage prepaid, to the relevant following addresses: TO LICENSOR TO SWBT Cape Girardeau Police Department 40 South Sprigg Street Cape Girardeau, MO 63703 XI. Regulatory Approvals Room 129 200 Rosemary Road N. Little Rock, AR 72117 To the extent this Agreement (including but not limited to its indemnity provisions) is subject to the applicable provisions of SWBT's tariff(s) and regulations relating to Inmate telephone service and to regulatory or other governmental orders, rules, regulations, or requisite approvals as may apply from time to time (collectively "Laws"), then if any conflict between this Agreement and such Laws exists, the Laws control and the agreement shall be deemed modified accordingly. XII. Force Maieure If the performance of the Agreement or of any obligation hereunder, is interfered with by reason of any circumstances beyond the reasonable control of the party affected, including without limitation, fire, explosion, power failure or acts of God; war, revolution, civil commotion or acts of public enemies; any law, order, regulation, ordinance or requirement of any government or legal body or any representative of any such government or legal body; labor unrest, picketing or boycotts; then the party affected shall be excused from such performance on a day -for -day basis to the extent of such interference (and the other party shall likewise be excused from performance of its obligations on a day -for -day basis to the extent such party's obligations relate to the performance so interfered with); provided that the party so affected shall use reasonable efforts to remove such causes of non-performance. If such removal is not affected within 60 days, the other party may terminate the Agreement without penalty and SWBT shall remove Public Telephone Equipment from Location(s) as provided in Section VII. XIII. No Assiqnment This Agreement may not be transferred or assigned, in whole or in part, by either party without the other party's prior written consent provided, however, that SWBT shall have the right to assign this Agreement to any present or future affiliates of SWBT, without securing the consent of Licensor and may grant to any such assignee the same rights and privileges SWBT enjoys under this Agreement. XIV. Entire Agreement This Agreement constitutes the entire agreement between Licensor and SWBT with respect to the subject matter hereof and may not be modified or amended other than by a written agreement signed by Licensor and SWBT. XV. Reiationshi The relationship of the parties is one of Licensor -Licensee. In no event shall Licensor be considered an employee of Southwestern Bell Telephone Company. XVI. State Law This agreement shall be deemed to have been entered into in the State of Arkansas and the validity, interpretation and legal effect of this Agreement shall be governed by the laws of the State of Arkansas. XVII. Headings The headings to sections of this agreement are used for convenience only, and they shall not be referred to for purposes of construing or interpreting this Agreement. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions thereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. The above and foregoing provisions are hereby agreed to and accepted and approved by the parties. SOUTHWESTERN BELL TELEPHONE / COMPANY (SWBT) City of Cape Girardeau, Missouzf,.i (Licensor or Company Name) Taxpayer Ident (Required to under,./Aut h By: L 7Xtid V Title: i ca-ra.-�C.� b 'Ul. MILNU.0 t�6VL,S Address: o2U U ��eYYI a/Lvt �0. L, ►2 , a-,(- IL Date: -S-)3-9 yfication Number e furnished 7f Law ./ Michael G. Miller le: City Manages Address: PO Box 617 i L Cape Girardeau MO 63702-0617 D,�te: 5/8/96 SCHEDULE A Licensor's Specified Location(s) INMATE TELEPHONES