HomeMy WebLinkAbout20011 RES - 10/13/1987A RESOLUTION
AUTHORIZING THE EXECUTION OF A SERVICE CONTRACT WITH ONE
CALL SYSTEMS, INC. TO PROVIDE AN AUTOMATED CALLING SERVICE
FOR NOTIFYING UTILITIES OF UNDERGROUND EXCAVATIONS.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI,
TEXAS:
SECTION 1. That the City Manager is hereby authorized to execute a
one year service contract with One Call Systems, Inc. to provide an automated'
calling service for notifying utilities of underground excavations, all as more
fully set forth in the service contract, a substantial copy of which is attached
hereto and made a part hereof, marked Exhibit "A."
ATTEST:
Ci y Sey c
APPROVED: 5.66, DAY OF
HAL GEORGE, CITY ATTORNEY
07P.009.01
MAY
, 19 ?%
J1411441.4,/ -
THE CITY F CORPUS CHRISTI, TEXAS
20011 MICROF ILMED
CITY OF CORPUS CHRISTI
CALL CENTER SERVICE CONTRACT
THIS CALL CENTER SERVICE CONTRACT (this "Contract") is made and entered
into between One Call Systems, Inc. a Pennsylvania corporation ("OCS"), and the
City of Corpus Christi, a`home rule city organized as a municipal corporation
under the laws of the State of Texas (the "Customer"). -
WITNESSETH
WHEREAS, OCS provides an automated calling service to notify participating
utilities of underground excavations and is called One Call Service; and
WHEREAS, Customer desires to utilize such One Call Service; and,
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties agree as follows: •_
1. OCS' Services
(a) OCS will establish, program, manage and operate complete One Call
Center services for Customer as well as furnish all computers and
equipment necessary to perform the One Call Center services in
accordance with the terms of this Contract and Attachment A, the
Price Schedule.
(b) OCS shall maintain a database in accordance with mutually agreed
Contract specifications set forth in Attachment B, City of Corpus
Christi Call Center Specifications.
2. Customer Responsibilities
(a) Customer shall be7res'ponsible"`forlthe installation, maintenance
and operation i of.aits. remote terminal equipment and shall be
liable and _responsible for the accuracy of all data and
information; sent to or transmitted -to OCS. Except as may
otherwise be; provided °by 4 One Calla Equipment Lease between
Customer!. ands OCS, r" Customer: 'shall •�' be „responsible for" all
telephone voice and data communications necessary to transmit or
receive data and information between the parties.
(b) Customer shall approve and,,verify in writing the database and any
changes or modifications thereto. -.:Of for any reason during the
term of this Contract, Customer; requests changes to the database
after approval and verification, such changes shall be in writing
and made in accordance with the attached Price Schedule.
01G.056.03.14 - 1 -
3. Term of Contract
(a) This Contract is effective from the date it is executed by the
parties hereto and shall continue in full force and effect for an
initial term of one year. This Contract maybe terminated any
time after the initial term, by OCS or Customer, by at least
thirty days prior written notice.
(b) Unless terminated by either party, the Contract shall renew
automatically - and continue in effect year-to-year after
completion of the initial Contract term.
,(c) Upon termination of this Contract, all data, studies and reports
prepared by OCS with respect to Customer's participation and data
base, at the option of the Customer, shall be delivered to
Customer and become the property of the Customer.
4. Prices and Charges .
The services to be performed under this Contract are set forth on the
attached Price Schedule. In addition to the prices and charges
specified, the amount of any present or future sales, use, excise, or
other similar tax applicable to the sales of services hereunder shall
be paid by Customer promptly upon being billed therefore; or, in lieu
thereof, Customer shall provide OCS with a tax exemption certificate
acceptable to the taxing authorities and to OCS. _-
5. Payment
Customer agrees, upon receipt of invoice, to pay all charges for use
of OCS' One Call services upon the basis of the Price Schedule. In
the event any invoice is not paid by Customer WITHIN THIRTY (30) DAYS
FROM DATE OF INVOICE and Customer has not furnished written
notification within said thirty (30) day period informing OCS of any
invoice or portion of any invoice, that Customer believes to be in
error and describing the error and contested dollar amount, OCS may,'
reserving cumulatively all other remedies and rights whatsoever, and
with ten (10) days prior notice to Customer, terminate this Contract
and/or Customer's access to and use of the initial One Call services;
and OCS shall have no responsibility or liability to Customer for
damages.of• any kind including indirect, or special or consequential
damages. Customer agrees and shall pay in full the noncontested
dollar amount of any invoice. 'If the noncontested amount is not paid
when due, OCS may proceed as provided in this Section 5. Customer
agrees that if any noncontested invoice, or any noncontested dollar
amount of a contested invoice from OCS is not paid by Customer
pursuant to this clause then OCS is under no obligation to release to
a 1. •=^,•Customer.:or any other entity Customer's files, or the data contained
a.F l,,.ttherein,'hor may Customer in such event have access to said files or
data in any manner whatsoever until said invoice is paid in full.
Customer expressly agrees, intheevent Customer fails to pay a
\zit '`noncontested,iinvoice, that Company holds a security interest in
015.056.03.14 - 2 -
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Customer's files. •-Customer agrees to pay all, costs and•expenses of
collecting any past -due noncontested invoices, --including all
attorney's fees and court costs.
6. Technical Support -
Should a programming error that adversely affects the performance of
OCS' services be reported by Customer or discovered by OCS, OCS will
assign a qualified Technical Consultant to the review and correction
of that error. OCS further agrees that within twenty-four (24) hours
of receipt of the report of a program error, it will advise Customer
of the corrective action'being taken and the estimated date it will be
,completed.
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7. System Modifications
To improve the quality 'of the service to Customer, OCS reserves the
right to :change the rules of operation; accessibility periods,
identification procedures," type of terminal equipment, system
'.:equipment, location of computers and programming language. If these
changes will invalidate or materially change the running procedures or
costs of the OCS' system to Customer, advance notice shall be given.,
If Customer objects to such changes, OCS shall negotiate with Customer
to minimize any material adverse impact on Customer.
8. Training and Assistance•
,
OCS will provide assistance and advice to Customer as requested, that
- it normally and usually provides to Customer, including the furnishing
of four (4),sets of the,One Ca11 manuals, instruction books and other
relevant training`,.documents4 t CS'shall provide training for four (4)
employees of'Customerr. -
9. Owner J ip.//��}j l 1 i' k, tr``. (Q Y
4 ( i t 1 ♦lR ai
The softwareand* aatabase program (hereafter collectively called
."Program") developed. by OCS to provide its service under this Contract
is and shall be the!'exclusive property+of OCS. OCS may develop, use,
market, lease, sell, enhance, license, sublicense or otherwise deal in
the Program o�in programs similar to the Program for itself or for
others in any,Annerrit).dee 's °,1n -its best interest. Should this
Contract be 'terminated by either party as provided herein, and
'provided Customer is not. in default of this Contract, a copy of
Customer's database will be promptly given to Customer at no charge.
All programs developed, by or for OCS constitute confidential
information and trade secrets to OCS and shall remain the property of
'OCS. Customer's use, if any, of said programs shall be on terms and
conditions that 'OCS may determine.
10. Indemnity A .
Customer shall indemnify and hold harmless OCS from and against all
claims, demands, actions, liabilities, liens,losses, damages, and.
' 018.056.03.14.
expenses of every kind and character whatsoever,' including any
judgment, penalty, interest, court costs and legal fees incurred in
connection with the same, or the defense thereof, for or in connection
with the negligence of the Customer -in the performance of this
Contract.
Limitatonsl•
�'". .
(a) IN NO EVENT SHALL OCS BE LIABLE• FOR SPECIAL, -INDIRECT, OR
# 40.4 r. rCONSEQUENTIAL"DAMAGES ARISING FROM THE PROVISION OF SERVICE
ACT
ONS CERED OR
R
ALLY
t..-�S .-1 t0A L"'°` COVEREDEBY INSURANCE MAINTAINEDOBY OCS AND IN FORCE AT-THEITIME
OF SUCH OCCURRENCE, LIABILITY OF OCS, FOR ANY AND ALL ACTIONS, OR
k , CAUSES, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT
r OR IN TORT INCLUDING NEGLIGENCE OR BREACH OF ANY EXPRESS OR
'"IIMPLIED_ WARRANTY OR REPRESENTATION SHALL IN THE AGGREGATE NOT
} '? EXCEED,ONE (1) MONTH'S AVERAGE BILLING TO CUSTOMER TAKEN OVER THE
'TWELVE (12) MONTHS PRECEDING THE MONTH IN WHICH THE DAMAGE OR
INJURY IS ALLEGED TO HAVE OCCURRED, BUT IF THIS AGREEMENT HAS NOT
BEEN IN EFFECT FOR TWELVE (12) MONTHS PRECEDING SUCH DATE, THEN
OVER SUCH FEWER NUMBER OF PRECEDING MONTHS THAT THIS AGREEMENT
HAS BEEN IN EFFECT. -
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(b) Neither party shall be liable to the other party for any loss,
' - injury, delay, damages or other casualties suffered by the other
due to strikes;` riots, storms, fires, or acts of God or
government.. -
" (c) Customer understands and' agrees that, with regard to any One Call
service acquired or used by Customer pursuant to this Contract,
' the limitation of liability provision hereof shall extend to,
protect, and inure to the benefit of, all OCS suppliers and
consultants and to all owners and licensors of proprietary
programs marketed or provided on OCS' Computer Systems and to all
OCS subsidiaries, affiliates, and associated companies (such
protected persons hereafter referred to collectively as the "OCS
Suppliers"). '
(d) OCS acknowledges and agrees that the limitation of liability
provision hereof shall extend to and protect, and inure to the
benefit of, all Customer suppliers, officials, employees, agents
and consultants with respect to the , performance ' of its
obligations • under this Contract:'
12. • Legal Construction
. (a) This Contract shall be construed under and in accordance with the
laws of Texas.
(b) In case any one or more of the provisions contained in this
Contract shall for any reason be held to be invalid, illegal, or
O1G,056.03.14
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(c)
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unenforceable in !any, ,respect, such invalidity, illegality, or
unenforceability shall"not%affect any other provision, and this
Contract shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained.
In the event of conflict between the provisions of this Contract
and any specifications agreed to by, the parties, this Contract
shall have precedence.
_(d) This Contract together with the applicable Price Schedule(s).and
any Supplements or Attachments is the complete and exclusive
agreement and understanding between the -parties and supersedes
all proposals, prior, agreements, representations and all other.,,
documents or communications, 'oral or written, between the
' parties. No waiver, alteration, or modification of any of the
' provisions hereof shall be binding unless in writing and signed
by a duly authorized corporate signatory of both parties. Except
as herein expressly provided to the contrary, the provisions of
this Contract are solely for the benefit of the parties hereto
and not for the benefit of any other person, persons or legal
entities.
13. Assignment -
Neither party may assign this Contract without the written consent of
any other party, except that OCS may assign same upon prior notice to
Customer in conjunction with the merger or reorganization of OCS; or
the sale of OCS or substantially all of the assets to which this
Contract pertains; or in conjunction with the creation or acquisition
of subsidiary, affiliated or associated companies.
14. Staff Qualification
All employees used by OCS in performance of this Contract will be
fully qualified in accordance with the generally accepted standards of
the data input industry or otherwise fully qualified if not working
directly with data input. '
15. OCS' Employees
All personnel involved in providing One Call related services to
Customer are employees of OCS and subject to OCS' sole direction,
authority, control and policies. No such -employees are or shall be
deemed dedicated to Customer or to any one customer using OCS' One
Call services.
16. Relationship
OCS is an independent contractor as to all services stated in this
Contract that it performs for or -on behalf of Customer, and OCS shall
be responsible} 'for, "the ,, acts', ,of, its '"employees while engaged in
providing theservices under tlii''s Contract.
01G.056.03.14
- 17. Confidentiality, Audits and Inspections.
Except as otherwise provided herein, any reports, information, data or
studies assembled by OCS under - this ` Contract shall be kept
confidential and shall not be made available to any party without the
prior written approval of the Customer. During regular business hours
and as often as the Customer deems necessary and upon five (5) working
days notice to OCS, OCS, at its office, will make available for
examination by the Customer, or its duly authorized agent, accountant,
or legal representative, that portion of the financial records and
data which relate solely and directly to this Contract. Any such
examination shall be at Customer's cost and expense, and any cost or
expense incurred directly or indirectly by OCS shall be paid or
reimbursed by Customer. OCS shall permit the Customer ,to audit,
examine, and make excerpts, copies, or transcripts from such financial
records and to make audits of all contracts, invoices, materials, and •
other data relating solely and directly to the matters covered by this
Contract.
18. Gratuities.
The Customer may,, by written notice to OCS, cancel this Contract
without liability to OCS if it is determined by Customer, that
gratuities, in the form of entertainment, gifts, or otherwise; were
offered or given by OCS, or any agent or representative of the OCS, to
any officer or employee of the Customer with a view toward securing an
agreement or securing favorable treatment with respect to the awarding
or amending, or the making of any` determinations with respect to the
performance of such an agreement. In the event this Contract is
cancelled by Customer pursuant to this provision, Customer shall be
entitled, in addition._td any other-.rights.and remedies, to recover or
withhold the amount;Lof,thez;ost#incurred by,OCS in providing such
gratuities. _ .,
19.' Equal Employment Opportunity. t:a^ ;%
OCS agrees that -during 'the -performance of"its Contract it will:
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a. Treat all applicants and employees without discrimination as to
race, color, religion, sex-, national origin, marital status, age,
or handicap. 'LL. „ ' •t,„1t,. ,.,.;.,,
Identify itself ascan "Equal, Opportunity Employer" in all help
wanted advertising or requests. • .- ' _ 4
OCS shall be advised of any complaints filed with Customer alleging
that OCS is not an Equal Opportunity Employer. -
Customer reserves the right to consider its reports from its human
relations administrator in response to such complaints in determing
whether or not to terminate any portion of this Contract.
01G.056.03.14
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20. Conflicts of Interest.
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OCS agrees to comply with the conflict of interest provisions of the
City of Corpus Christi Charter and Code of Ordinances. OCS agrees to
maintain current, updated disclosure of information on file with the
Customer purchasing office throughout the term of this Contract.
21. Notices -
Notices to be given hereunder shall be deemed sufficiently served if
and when deposited in the United States Post Office, marked "Certified
Mail" with postage prepaid, and addressed to OCS or Customer at their
respective offices set forth below: -
OCS: President
One Call Systems, Inc.
Three Allegheny Center
Pittsburgh, Pennsylvania 15212
Customer: Director of Public Utilities
City of Corpus Christi
P. 0. Box 9277 • -
Corpus Christi, Texas 78469-9277
Compliance
Customer represents that it has complied with the provisions of its
home rule Charter, any legislation, and any applicable provisions of
the Texas Constitution, in order to allocate funds to provide for the
payment and discharge of Customer's monetary obligations under this
Contract.
IN WITNESS WHEREOF, this Agreement is executed to be effective as of
, 1987.
ATTEST:
The City of Corpus Christi,
the "Customer"
e =. C'.', . a . ';' 1 " *„ By
...okAmando Chapa,°City Secretary Craig A. McDowell, City Manager
,w-
APPROVED:'-r7>0j' day :of ,4 Atr 1987
HAL GEORGE CITY ATTORN
By r,4e4,f5._IRuPerez,;',
Assistant 'City Attorne
010.056.03.14
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ONE "CA
By:
Title:
T S,
Attachment A: Price Schedule
Attachment B:• Call Center Specifications
01G.056.03.14
Attachment A
TEXAS ONE CALL SYSTEM
INSTALLATION
PRORATE (Circuit: Houston to C.C.) $ 32.75
LOCAL CIRCUIT (Leg to each individual PC) 196.50
MODEM 60.00
AT&T Personal Computer 63001 215.00
INITIAL COUNTY 100.003
TOTAL $604.25
Total Installation Charge for Three City Locations = $1,812.75
MONTHLY SERVICE CHARGE
PRORATE (Circuit: Houston to C.C.) $ 52.16
LOCAL CIRCUIT (Leg to each individual PC) 90.05
MODEM 12.75
AT&T Personal Computer 6300 138.00
MESSAGES (Assume 125 calls/month) 125.002
DAILY AUDIT 7.004
TOTAL $424.96
Total Monthly Service Charge for Three City Locations = $1,274.88
1Includes CPU -2 Package - 256K RAM, 2 - 360K Floppy Drives, 473 DOT
Matrix printer, Keyboard, monochrome monitor, GW Basic and MS DOS 2.11.
2125 messages/month x $3.00 per message = $375.00 a 3 locations = $125
per location.
3Initial County start up charge is $200 plus $50/additional location =
$300 i 3 locations = $100 per location.
4$21.00 daily audit (messages) ; 3 locations = $7.00.
One Cell Jyrtemr, Inc.
ONE CALL TERMINAL
PRICE SHEET
One Call Systems, Inc. is pleased to offer you the following
package:
AT&T Personal Computer 6300
CPU -2 256K Ram 2-360K Floppies
Keyboard
Monochrome Monitor (CRT)
Matrix Printer - Model 473
Operating System MS-DOS/GWBASIC
System Manuals
LIST LEASE
$ 2,500.00 $ 97.00
150.00 6.00
295.00 11.00
545.00 21.00
65.00 3.00
N/C N/C
$ 3,555.00 $ 138.00
OPTION 1 36 month lease, $138.00 per month, full on site
maintenance by AT&T included for the first year.
On site maintenance for years 2 and 3 would be
$20.00/month extra. Replacement maintenance is
included. Fire and flood insurance is also
included.
OPTION 2 Purchase the package for $1,875.00 plus tax if
applicable. The purchase price includes 90 days
maintenance. Full on site maintenance is $40.00
thereafter. Replacement maintenance is also
available at about $25.00 per month.
ENHANCEMENT OPTIONS
ITEM
1. AST 6 PAK Plus - including 384K
RAM, additional parallel & serial
port, Sidekick software (total 640K)
2. Color monitor
.3. 20 Meg Hard Disk Card Top 2 Manuf.
30 Meg Hard Disk Card Top 2 Manuf.
40 Meg Hard Disk Card Top 2 Manuf.
4. Rampage - 1 Meg
5. Rampage - 2 Meg
6. AST 6 Pak Premium (alone)
7. Modem - Hayes Compatible
PURCHASE
36M0.
LEASE
$ 250.00 $ 15.00
500.00
600.00
700.00
940.00
450.00
500.00
500.00
225.00
27.00
43.00
50.00
68.00
25.00
27.00
27.00
13.25
ATTACHMENT B
CITY OF CORPUS CHRISTI
CALL CENTER SPECIFICATIONS
1.0 SCOPE
1.1 This specification covers the requirements for providing an
underground excavation notification center, hereafter referred to as
the CALL CENTER.
2.0 GENERAL
2.1 The CALL CENTER shall be designed to serve the area included in the
City limits of the City of Corpus Christi.
2.2 The management and operation of the CALL CENTER shall be conducted in
cooperation with the Participants.
2.3 Definitions:
Participant - An entity that subscribes to the service described and
may be a utility, governmental agency, or private company, owning
underground facilities, contracting for the services of the CALL
CENTER.
Vendor - A company organized in Pennsylvania known as One Call
Systems, Inc. which has contracted to provide the services of the CALL
CENTER.
Excavator - A person, private company, governmental agency, or utility
involved in disturbing the earth in some manner, including, but not
limited to, digging, trenching, plowing, augering, grading, or boring.
Incoming Transmittal - The information taken by the CALL CENTER from
the excavator.
Outgoing Transmittal - The information conveyed by the CALL CENTER to
the participant.
Duplicate Transmittals - A copy of an outgoing transmittal sent to
another terminal(s) serving a single participant which are transmitted
and received at the same time as the original outgoing transmittal.
2.4 CALL CENTER specifications as defined in this document state the
capabilities required of the vendor.
2.5 Modification of these specifications shall require the written consent
of both the vendor and the participant.
3.0 CALL CENTER FUNCTIONS
3.1 To receive requests from excavators to have the locations of
06G.596.03.14
underground facilities marked by the participants, and to forward
those requests via teleprinter or other means to the affected
participant(s).
3.2 To receive reports from excavators that they have damaged underground
facilities and to immediately notify the affected participants.
3.3 If so requested by an excavator, to advise him as to the status of a
previously processed outgoing transmittal, based on information
received from the participants.
3.4 To record on tape and maintain various files and records of all
incoming and outgoing transmittals processed by the CALL CENTER.
3.5 To advertise and otherwise promote the CALL CENTER to excavators and
potential participants in accordance with 15.0
4.0 CALL CENTER OPERATION
4.1 CALL CENTER services shall be provided 24 hours per day, seven days
per week, including holidays.
4.2 Holidays shall be as follows:
New Years Day
Good Friday
San Jacinto Day
Memorial Day
Independence Day
Labor Day
Thanksgiving and the Friday following Thanksgiving
Christmas Eve
Christmas Day
4.3 On incoming transmittals for which less than two working days notice
is given by the excavator, the Call Center shall inform the excavator
of the following message:
"All of the participants which will receive notice of your
planned excavation require at least 48 hours notice,
exclusive of Saturdays, Sundays, or holidays. If their
lines have not been located when you begin work, it is your
responsibility to proceed with extreme caution. The fact
that you have called does not release you from financial
responsibility or other liability for damages to underground
facilities of the affected participant."
4.4 The CALL CENTER shall not accept incoming transmittals for which the
excavator will not begin work within two weeks of the date of
notification.
4.5 For incoming transmittals received after 5:00 PM, local time, or on
Saturdays, Sundays, or holidays, the CALL CENTER shall inform the
excavator of the following message:
068.596.03.14
"The 48 hours required by our participants to mark their
facilities will not commence until 8:00 AM of their next
normal working day."
4.6 Any calls received by the CALL CENTER which are of an unusual or
emergency nature, but which fall outside of the normal function of the
CALL CENTER shall be referred to the individual participant by
furnishing the caller with phone numbers of the affected participants.
Each participant shall furnish the CALL CENTER with a 24 hour
telephone number (or numbers) to be used in such situations.
5.0 TRANSMITTALS
5.1 The standard format for outgoing transmittals shall be as shown in
Exhibit A.
5.2 Outgoing transmittals shall be routed to specific participant printers
according to the geographically oriented, selective indexing system.
5.3 Each incoming transmittal shall be assigned a sequential serial number
hereafter referred to as the TRANSMITTAL NUMBER.
5.4 The TRANSMITTAL NUMBER shall consist of seven digits, the first three
representing the Julian date, and the last four the daily sequence
number. Example: TRANSMITTAL NUMBER 2230214 represents the 214th
transmittal of August 11.
5.5 As each outgoing transmittal is routed to a printer it shall also be
assigned a printer identification name followed by a PRINTER SEQUENCE
NUMBER consisting of three digits which will represent the daily
sequence number for that printer. The name will include the printer
CDC (Call Directing Code) the message was meant for; what printer CDC
received the message; acknowledgement and an alpha name of the printer
location that is intended to get the message.
Example: [GC GC] ACK/ENTEX HSTN/#215
o Where [GC GC] indicates the message was intended for GC and went
to GC.
o ACK is acknowledgement
o ENTEX HSTN is the name of the intended printer for the message.
o #215 represents the 215th message printed that day for the intended
printer GC.
5.6 After midnight local time, each working day (Monday through
Friday, excluding holidays), the CALL CENTER shall transmit a
nightly audit list to each terminal. The verification list shall
consist of a listing of each TRANSMITTAL NUMBER routed to the
terminal during the preceding 24 hours.
06G.596.03.14
5.7 During the process of interviewing the excavator, while preparing
the outgoing transmittals, the CALL CENTER shall inform the
excavator as to the names of the participants who will receive
the transmittal. The Call Center shall be responsible for
informing the excavator that the list of participants may not be
an exclusive list of persons having underground facilities in the
area to be excavated.
5.8 Provision shall be made to allow an excavator to call back to
determine the status of an outgoing transmittal. The TRANSMITTAL
NUMBER furnished during the original call shall be used to access the
computer records.
5.9 At the option of the participant, the participant shall report to the
CALL CENTER, the status of the outgoing transmittal using a standard
message phrase.
5.10 The method of communicating the outgoing transmittal status to the
CALL CENTER shall be terminal input.
5.11 The standard message phrase used to report outgoing transmittal status
shall be one of the following:
o Staking Completed
o No Facilities Involved
o Unable to Locate
5.12 Receipt of the outgoing transmittal by participants shall be completed
no more than 30 minutes after receipt of the incoming transmittal by
the CALL CENTER. Subject to higher priority transmittals or
participant terminal(s) unavailable.
6.0 SPECIAL TRANSMITTAL HANDLING
6.1 Calls received by the vendor shall be categorized according to the
definitions listed below:
a. Routine Message...at least 48 hours notice given.
b. Short Notice Messages...less than 48 hours but 4 or more hours
notice given.
c. Priority Message...less than 4 hours notice given.
d. Priority Dig -Up Message...participant facilities damaged.
6.2 At the option of the participant, PRIORITY DIG -UP MESSAGES shall not
be geographically indexed as are other excavation calls, but shall be
routed to a printer specified by the participant.
060.596.03.14
6.3 At the option of the participants, short notice messages, priority
messages, and/or PRIORITY DIG -UP MESSAGES shall include special
printed identification and/or an auditory alarm, initiated
concurrently with message printing.
6.4 PRIORITY DIG -UP MESSAGES shall be transmitted to the participant no
later than five minutes after receipt of the message by the CALL
CENTER subject to pending priority messages or participant terminal
unavailable.
6.5 At the option of the participant, the CALL CENTER shall furnish the
excavator with a telephone number for contacting the participant
directly whenever a priority dig -up message is received.
7.0 COMMUNICATIONS
7.1 A minimum of three incoming phone lines shall be used by the CALL
CENTER.
7.2 The CALL CENTER shall monitor the incoming phone lines to establish
the frequency of busy signals being received by those attempting to
contact the CALL CENTER. This information shall be furnished to the
participant upon request.
7.3 The vendor shall furnish the participant with Model 43, pin feed,
teletype printers. The vendor supplied printers may be cancelled by
the participant at any time, provided the participant furnishes the
vendor with at least 60 days written notice of cancellation.
7.4 The quantity and location of vendor supplied printers shall be as
specified by the participant.
7.5 If a participant terminal receives less than 50 outgoing transmittals
per month the participant may, at its option, waive use of a
teleprinter and choose to receive outgoing transmittals from the CALL
CENTER via telephone at a to be quoted rate for this type service.
7.6 If a participant's teleprinter is out of service, PRIORITY DIG -UP
MESSAGES shall be immediately routed to the participant via telephone
until teleprinter service has been restored.
7.7 If the participant's teleprinter is out of service, non-priority
messages shall be conveyed to the participant via telephone at the
discretion of the CALL CENTER provided all such messages are sent
prior to 4:30 PM local time.
8.0 RECORDS
8.1 All incoming calls shall be recorded and stored by the vendor for a
minimum of 3 years.
8.2 A computerized or printed copy of all outgoing transmittals shall be
retained by the vendor for a minimum of 7 years.
066.596.03.14
8.3 If litigation should occur, and at the request of the participant, all
records pertaining to the litigation shall be retained by the vendor
until released by the participant.
9.0 INSURANCE
9.1 The vendor shall purchase and maintain during the term of this
contract an Errors and Omissions Policy to include a Contractual
Liability endorsement to cover the requirements of this Contract.
Minimum limits of coverage shall be in the amount of
$2,000,000.00.
9.2 The above required Errors and Omissions insurance shall provide
evidence of the insurance coverages required by this section
prior to commencement of this Agreement. The vendor shall
provide a Certificate of Insurance specifying additional
insureds, and state what endorsements are included. Further, it
will provide that there shall be no cancellation, material
change, or intent not to renew any of the insurance coverage
required hereunder without thirty (30) days' notice to the
Director of Public Utilities of Customer, which notice shall be
accompanied by a replacement Certificate of Insurance.
9.3 Vendor shall maintain insurance coverage for damages by reason of
any act, error or omission in professional services rendered or
that should have been rendered by vendor or by any person for
whose acts, errors or omissions the vendor is legally
responsible, and arising out of conduct the professional services
to be rendered under this Agreement.
9.4 Vendor has provided coverage to Customer as evidenced by Policy
No. BJ 100332 including Endorsement No. 2 and all prior
endorsements issued by Evanston Insurance Company. For purposes
of paragraph (11),• Limitations, any claim or action, either in
part or wholly excluded from payment by insurance maintained by
vendor as the result of application of the deductible amount,
shall be deemed to be a claim or action covered by insurance.
Any claim for bodily injury, illness, or death of any person, or
injury to or destruction of property or loss of use resulting
therefrom as a result of the services to be provided by vendor
: shall not be considered special, indirect, or consequential
damages under paragraph (11) of the Agreement.
10.0 GRID SYSTEM
10.1 The geographical area to be served by the vendor shall be designated
by the participant, and will hereafter be referred to as the Grid Area
or Place Area.
10.2 At implementation the participant shall furnish the vendor with a
written list of Lambert Squares for the Place Area for other counties
in Texas from which they are to receive outgoing transmittals and
which of their specific teleprinter terminals are to receive such
outgoing transmittals.
06G.596.03.14
10.3 Revisions to the data described in paragraph 10.2 shall be at a
cost not to exceed 20 cents per change per grid.
11.0 SELECTIVE INDEXING
11.1 By use of a computerized selective indexing system, the CALL CENTER
shall route outgoing transmittals only to specified participant
printers(s).
11.2 The selective indexing system shall be used in conjunction with the
previously described geographic grid system and shall be capable of
routing messages based on all or portions of the following
information, to be furnished by the excavator during the call-in:
o County Name
o City Name (if applicable)
o Address and Street Name or Nearest Intersecting Streets
o Place name or locality, subdivision or other reference point
11.3 As an alternate, the CALL CENTER shall be capable of selectively
routing messages based on the Lambert Square indexing number.
11.4 If the CALL CENTER is unable to properly index the location per the
computer data base, the CALL CENTER shall route the transmittal to
broadcast to all printers assigned in that participant area.
12.0 DATA BASE
12.1 Street names, starting and ending block numbers, intersections, and
associated grid numbers shall be referenced if available in the
data base.
12.2 If a street data base is not available for the area and a participant
wishes to have service information provided as to a place name,
crossroad, locality, major landmark type data base using a state
highway department map base as the reference will be sufficient to
provide service.
12.3 Excavator names, addresses, phone numbers, and calling history shall
hereafter be referred to as the USER DATA BASE.
12.4 Based upon participant supplied data and information, the computer
creation and maintenance of the SELECTIVE INDEXING DATA BASE and the
USER DATA BASE shall be the responsibility of the vendor.
12.5 Both the SELECTIVE INDEXING DATA BASE and the USER DATA BASE shall be
updated monthly upon receipt of participant requested revisions to the
data.
13.0 INFORMATIONAL REPORTS
13.1 Each month the vendor shall furnish the participant with a MONTHLY
CALL CENTER ACTIVITY REPORT.
06G.596.03.14
13.2 The MONTHLY CALL CENTER ACTIVITY REPORT shall include the following
information:
o Dates Covered
o Total Number of Calls Received
(Both Current Month and Cumulative Yearly Total)
o Total Number of Repeat Calls
o Total Number of "Cuts" Reported
o Traffic Summary Reports
o Message Summary by Day and Lead Time
o Dig Summary by County
o Contractor Cuts Report showing Date, Time, Contractor and type of
cut.
o Dig -Up Log showing message number, operator, recorder channel
number, date and time reported, county and street address of dig -up,
type dig -up, contractor name and telephone number, remarks.
13.3 The vendor shall maintain an alphabetized user mailing list which
shall include contractor names, addresses, phone numbers, and the
cumulative quantity of excavation notices phoned in by that user
during the preceding 12 month period.
14.0 BILLING
14.1 The vendor shall bill specified PARTICIPANTS monthly in accordance
with the provisions of Agreement with the Vendor.
15.0 ADVERTISING
15.1 The vendor shall assist in advertising and promoting the CALL CENTER
to excavators.
15.2 All advertising expenditures, methods, and devices used within the
participants' area shall require prior approval by each
participant.
15.3 Advertising costs, if approved by participants, will be billed
according to a pro rata formula. All internal publicity will be
at the participants' direct expense.
Exhibit A: Standard Format of Transmittals
06G.596.03.14
ONE CALL EQUIPMENT LEASE
This Equipment Lease Agreement ("Lease") dated as of this day of
19 is entered into by and between One -Tin -Systems,
Inc., (Hereinafter called "OCS" or "Lessor") with its principal place of
business at Three Allegheny Center, Pittsburgh, Pennsylvania 15212 and the City
of Corpus Christi, a municipal corporation with home rule powers (hereinafter
called "Customer" or "Lessee") with its principal place of business at 302 S.
Shoreline, Corpus Christi, Texas 78469.
1. Subject to the terms and conditions set forth herein, OCS, by its
acceptance of this Lease as defined in Article 23, agrees to lease to
Lessee, who hereby leases all the machinery, equipment and other
personal property, including all replacement parts, repairs, additions
and accessories attached to or used in conjunction with the equipment
(all hereinafter called "Equipment") described in this Lease or in
Equipment Order Schedule(s) (hereinafter called "EOS"), which are
executed concurrently herewith (or which from time to time may be
executed by OCS and Lessee) and attached hereto and incorporated
herein by reference, upon the terms and conditions set forth in this
Lease. Whenever reference is made herein to "this Lease", it shall be
deemed to include each of the various EOS(s) identifying the items of
Equipment, which constitute one undivided lease of Equipment
incorporating by reference all the terms and conditions of the
appropriate EOS.
Lessor and Lessee agree that continuation of this Lease beyond the
close of the fiscal year of Lessee, which fiscal year ends on July 31
of each year, shall be subject to budget approval providing for or
covering such contract item as an expenditure in the succeeding budget
year. Lessee does not represent that said budget item will be
actually adopted; said determination being the determination of the
City Council of the Lessee at the time of the adoption of the budget.
This Lease shall terminate upon the termination of that certain Call
Center Service Contract executed by and between OCS and Lessee.
2. Term of Lease. This Lease shall be effective as of the date of its
initial acceptance by OCS in accordance with Article 23, and shall
remain in full force and effect for the initial or any extension term.
The initial term of this Lease shall be for 36 months commencing as of
the date that the first rental payment is due. Unless terminated as
provided herein, this Lease may be extended automatically for an
additional term of not less than twelve (12) months upon the mutual
agreement of the parties subject to OCS's rent and price changes.
3. Purchase Option. Lessee shall have no option to purchase any
Equipment unless a written purchase option is executed by the Lessee
and accepted by Lessor; and Lessee is not in default of this Lease.
No option to purchase, if any, will be granted by Lessor until
expiration of the lease term.
O1G.055.03.14
4. Tax Benefits. OCS shall be entitled to such deductions, credits, and
other benefits with respect to the Products as are provided to an
owner of. property by the Internal Revenue Code of 1954, as amended to
the date hereof, including without limitation any investment tax
credits and depreciation with respect to the Equipment.
5. Payments. Customer shall pay the monthly rental charges specified in
this Lease. All initial rental charges shall be due and payable in
advance on the Equipment installation date set forth in this Lease;
thereafter, rental charges shall be due and payable in advance on the
first day of each month. All monthly payments for a period of less
than one (1) month shall be prorated on the basis of 1/30th of a month
for each day.
b. All monthly payments shall be paid without abatement, deductions
or set-off of any amount whatsoever. The receipt of any check or
other item for payment of any charges due under this Lease will
not be considered payment until such check or item is honored
when presented for payment.
c. Should Customer fail to duly pay any part of any rental
installment or other amount to be paid under this Lease, Customer
shall pay interest on such late payment from the due date until
paid at a rate of one and one half (11) percent per month or the
highest lawful rate, whichever is less.
6. Net Lease. This Lease is a non -cancellable net lease. Lessee's
obligation to pay all rents shall be absolute and unconditional. All
rental payments or other payments required to be made under this Lease
shall be paid by Lessee without any right of set-off, abatement or
reduction, irrespective of any claim, counterclaim, recoupment,
defense or other right which Lessee may have now or in the future
against Lessor, the supplier, or manufacturer of the Equipment, or any
other third party.
7. Use and Location of Equipment.
a. So long as Lessee shall not be in default under this Lease,
Lessee may possess and use the Equipment in accordance with this
Lease. The Equipment shall be used in Lessee's lawful business
and in conformity with all applicable laws, any insurance
policies and any warranties of the manufacturer with respect to
the Equipment. Lessor shall have the right, upon reasonable
prior notice to Lessee and during Lessee's regular business
hours, to inspect the Equipment at Lessee's premises or where
ever the Equipment may be located.
016.055.03.14
b. The Equipment will be delivered to the location specified by
Lessee in the EOS and shall not thereafter be permanently removed
from such location without the written consent of Lessee, which
consent will not be withheld unreasonably. For purposes of
maintenance and other matters, Lessee shall keep Lessor informed
at all times as to the regular location of the Equipment.
c. Lessee agrees not to employ or use additional attachments,
features, or devices on the Equipment and not to make any
changes, modifications or alterations to the Equipment without
the prior written consent of Lessor in each case. Such
modifications, alterations or attachments shall be removed by
Lessee, or the Equipment otherwise restored to their original
configuration, immediately after termination of this Lease.
After termination date, Lessor may restore the Equipment or may
cause the same to be restored, to their original configuration,
ordinary wear and tear resulting from authorized use thereof
alone excepted, and Lessee shall bear the costs of such
restoration.
8. Risk of Loss. During the period that Equipment is in the possession
of Customer, Customer shall take good care of Equipment and shall be
solely responsible for any loss, damage, theft or destruction to each
item of Equipment. Any loss, damage, theft or destruction of the
Equipment, in whole or in part, shall not release or relieve Customer
from its obligations under this Lease, all of which shall continue in
full force and effect. In the event of loss, damage, theft or
destruction, Lessee, at OCS's option, shall either (a) repair the
Equipment and place it in good condition and working order; or (b)
replace the same with Equipment in good repair, condition and working
order; or (c) with respect to the affected Equipment, pay OCS an
amount equalling the unpaid rent due and to become due, less the net
amount of any recovery from insurance actually received by OCS. OCS
shall have no obligation to undertake the collection of any claim
against any one for the loss, damage, theft or destruction of the
Equipment.
9. Delivery and Installation.
a. OCS shall arrange for the delivery of Equipment to the
installation site designated by Lessee, on or about the date
agreed on in the applicable EOS. OCS shall deliver Equipment on
an "as available" basis, but will use reasonable efforts to
deliver by the dates requested. OCS shall not be liable for any
loss, damage, or expense (whether consequential or otherwise)
sustained by Lessee in the event that OCS fails to meet the
specified delivery dates.
b. Customer shall pay all reasonable transportation, rigging,
packing, taxes, duties and other charges in connection with the
delivery and installation of the Equipment. Should OCS incur any
such charges, Lessee agrees to fully reimburse OCS and such
charges shall be due and payable on the Equipment installation
date.
01G.055.03.14
c. At its own expense Customer shall prepare and maintain the
installation site including installation of cabling and power
source electrical work.
10. Maintenance, Service, and Alterations. Commencing with the applicable
installation date, Lessee at its sole expense shall maintain each item
of Equipment and all additions, attachments and accessories in good
condition and working order, but shall not be responsible for normal
wear and tear resulting from proper use as contemplated under this
Lease. So long as the Equipment is leased, Lessee expressly agrees to
contract for maintenance and service of such Equipment from or through
OCS or a recognized service organization acceptable to OCS and to keep
in full force and effect such maintenance contract throughout the full
Lease term. Lessee also agrees to inform OCS, as soon as possible, of
any Equipment leased by Lessee that is in need of repair. Lessee
agrees that OCS shall have access to the Equipment during reasonable
business hours for inspection, and that Lessee shall provide OCS with
the name and telephone numbers of the person in charge of each site
where the Equipment is installed.
11. Title.
a. All Equipment leased hereunder is and shall remain the property
of OCS or its assigns. Lessee, at its expense, shall protect and
defend GCS's title to the Equipment against all claims, liens,
and legal processes of Lessee's creditors and shall keep the
Equipment free and clear from any and all such claims, liens,
encumbrances and processes. Lessee further agrees that it shall
not sell, pledge, loan, mortgage, sublease, or attempt in any
other manner to transfer or dispose of the Equipment. The
Equipment is and shall remain, at all times, personal property
not withstanding that the Equipment may be affixed to realty. If
the Equipment is installed on leased premises, Lessee shall
obtain in writing a waiver of landlord's lien and provide Lessor
with a duly executed copy.
b. The Lessee represents and warrants to Lessor that at the
commencement of this Lease, it has not entered into any type of
agreement, for financing or otherwise, or any security agreement;
containing after-acquired property provisions affecting or which
may affect Lessor's title to the Equipment.
c. Lessee agrees that it shall execute any financing statement
within the meaning of Article 9 of the Uniform Commercial Code
which Lessor deems reasonably necessary. Said financing
statement shall be in accordance and subject to the provisions of
the Public Property Finance Act of Texas. Article 2368a.2,
Vernon's Texas Civil Statutes.
12. Assignment.
a. To facilitate OCS's financing of its Equipment purchases, this
Lease, the rights of OCS hereunder, the rental payments and the
Equipment may be assigned, pledged, mortgaged, encumbered sold to
01G.055.03.14
a third party, sold and leased back or otherwise disposed of by
OCS, either in whole or in part, provided, however, that no such
action shall either relieve Lessee of its obligations or diminish
Lessee's rights under this Lease. Lessee acknowledges that no
such assignee shall be liable for any of the Lessor's obligations
under this Lease. OCS shall provide Lessee with written notice
in the event of any such assignment or otherwise.
b. Lessee agrees that its obligations to pay directly to such
assignee the amounts (whether designated as rentals or otherwise)
which become due from the Lessee as set forth in this Lease shall
be payable notwithstanding any defense, set-off or counterclaim
whatsoever, whether by reason of breach of this Lease, the
exercise of any right or option thereunder, or otherwise, which
it may or might now or hereafter have as against the Lessor (the
Lessee reserving its right to have recourse directly against the
Lessor on account of any such defense, set-off or counterclaim);
and that, subject to and without impairment of the Lessee's
leasehold rights in and to the Equipment described in this Lease,
Lessee holds said Equipment and the possession thereof for such
assignee to the extent of such assignee's rights therein.
c. Lessee may not assign this Lease without having received GCS's
prior written consent. Any attempt to assign any rights, duties
or obligations which arise under this Lease without such written
consent shall be void and constitute a default by Lessee.
13. Default and Remedies.
a. Lessee shall be in default under this Lease upon the happening of
any one of the following events: (a) Lessee fails to pay any
installment of rent or any other amount now or hereafter due to
Lessor under this Lease and such default continues for a period
of ten (10) calendar days after written notice of such default is
sent by Lessor to Lessee; or (b) Lessee defaults in the
performance of any other covenant or obligation contained in this
Lease or any other agreement or document with Lessor and such
default continues for a period of ten (10) calendar days after
written notice of such default is sent by Lessor to Lessee; or
(c) any warranty, representation or statement made by on behalf
of Lessee to Lessor proves to have been materially false when
made; or (d) the loss, theft, damage, destruction, or an
attempted sale, sublet or encumbrance of any of the Equipment, by
Lessee, or the making of any levy, seizure or attachment on the
Equipment; or (e) dissolution, termination of existence,
discontinuance of its business, insolvency, or appointment of a
receiver, assignment for the benefit of creditors, or
commencement of any proceeding in bankruptcy, reorganization,
liquidation or receivership by or against Lessee; or (f) Lessee
attempts to cancel this Lease.
01G.055.03.14
b. Upon the occurrence of any one event of default as set forth in
this Lease, and subject to any applicable cure provisions, Lessor
may without further notice exercise one or more of the following
remedies that it at its sole discretion shall elect: (a) declare
all unpaid rent under this Lease to be due and payable
immediately; (b) terminate this Lease as to any or all of the
Equipment; (c) take possession of the Equipment where found and
for this purpose enter any premises of Lessee and remove the
equipment without any liability for suit, action, or other
proceeding by Lessee; (d) cause Lessee to return the Equipment to
Lessor in the condition set forth in this Lease; (e) use, hold,
sell, lease or otherwise dispose of the Equipment, at public
auction or by private sale, free and clear of any rights of
Lessee, and if notice is required by law, any written notice of
such proceeding sent by Lessor to Lessee not less than ten (10)
days before the date thereof shall constitute reasonable notice
to Lessee; (f) proceed by appropriate action either by law or in
equity to enforce performance by Lessee of the applicable
covenants of this Lease or to recover damages for the breach
thereof; (g) exercise any and all rights accruing to Lessor under
any applicable law upon a default by Lessee. In addition, Lessor
shall be entitled to recover immediately as liquidated damages,
and not as a penalty, a sum equal to the aggregate of the
following: (I) all unpaid rentals or other sums which are due
and payable for any items of Equipment up to the date of
re -delivery to or repossession by Lessor; (II) any expenses paid
or incurred by Lessor in connection with the repossession,
holding, repair and subsequent sale, lease or other disposition
of the Equipment, including reasonable attorney's fees and legal
expenses; (III) all unpaid rentals due and to become due under
this Lease for any item of Equipment which Lessee fails to return
to Lessor as provided above or converts or destroys, or which
Lessor is unable to repossess; and (IV) an amount equal to the
difference between (i) all unpaid rentals for any items of
Equipment returned to or repossessed by Lessor from the date
thereof to the end of the respective rental term therefore and
(ii) the present fair market rental value of each such item or
items of Equipment for such unexpired rental period (the
"Unexpired Rental Value"). The Unexpired Rental Value of each
item of Equipment shall be deemed to be an amount equal to the
proceeds of any lease or sale of the Equipment by Lessor for a
period substantially similar to the unexpired rental period
therefor. Should Lessor, however, estimate its actual damages to
exceed the foregoing, Lessor may, at its option, recover its
actual damages in lieu of or in addition thereto, Lessor shall
not be obligated to sell, lease or otherwise dispose of any item
of repossessed Equipment hereunder if it would impair the sale,
lease or other disposition of similar equipment in the ordinary
course of Lessor's business or which was previously repossessed
by Lessor from any party. None of the remedies under this Lease
are intended to be exclusive, but each shall be cumulative and in
addition to any other remedy referred to herein or otherwise
available to Lessor in law or in equity. Any repossession or
subsequent sale or lease by Lessor of any item of Equipment shall
016.055.03.14
not bar an action for a deficiency as herein provided, and the
bringing of an action or the entry of judgment against the Lessee
shall not bar Lessor's right to repossess any or all items of
Equipment.
14. Lessor's Performance of Lessee's Obligations. If Lessee shall fail to
duly and promptly perform any of its obligations under this Lease with
respect to the Equipment, Lessor may (at its option) perform any act
or make any payment which Lessor deems necessary for the maintenance
and preservation of the Equipment and Lessor's title thereto. All
sums so paid or incurred by Lessor, together with interest, and any
reasonable legal fees shall be additional rent under this Lease and
shall be payable by Lessee to Lessor on demand. The performance of
any act or payment by Lessor as aforesaid shall not be deemed a waiver
or release of any obligation or default on the part of Lessee.
15. Insurance. Upon delivery of the Equipment to Lessee, and until the
Equipment is returned to OCS, or a purchase option is exercised, the
Lessee is responsible for loss or damage thereto by reason of any risk
or peril (whether or not covered by insurance carried by Lessee)
except such loss or damage which results directly from the negligence
of OCS. Lessor shall obtain appropriate insurance coverage for the
Equipment and all premiums, costs and expenses associated with such
insurance shall be reimbursed by Lessee as additional rent.
Such insurance shall insure the Equipment against all risks of
physical loss or damage including but not limited to fire, theft,
liability for bodily injury, death and extended coverage insurance and
public liability insurance. Any and all such insurance shall insure
the Equipment for not less than the full replacement cost including
installation and similar costs. The proceeds of any public liability
or property damage insurance shall be payable to OCS to the extent of
its liability. The proceeds of any fire, theft and extended coverage
insurance with respect to the Equipment shall be payable solely to OCS
and shall be applied by OCS toward the payment of Lessee's obligations
hereunder and any balance of the proceeds shall be the property of
OCS, provided that at GCS's option such proceeds may be used for the
repair or replacement of the affected Equipment.
16. Warranty. LESSOR NOT BEING THE MANUFACTURER OF THE EQUIPMENT NOR THE
MANUFACTURER'S OR SUPPLIER'S AGENT, MAKES NO EXPRESS OR IMPLIED
WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT,
INCLUDING BUT NOT LIMITED TO: THE MERCHANTABILITY OF THE EQUIPMENT OR
OF ITS FITNESS FOR ANY PARTICULAR PURPOSE; THE DESIGN OR CONDITION OF
THE EQUIPMENT; THE QUALITY OR CAPACITY OF THE EQUIPMENT; THE
WORKMANSHIP OF THE EQUIPMENT; THE COMPLIANCE OF THE EQUIPMENT WITH THE
REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING
THERETO; PATENT INFRINGEMENT; OR LATENT DEFECTS. Lessee will be
subrogated to Lessor's claims, if any, against the manufacturer or
supplier of the Equipment for breach of any warranty or
representation. Upon written request from Lessee, Lessor shall take
all reasonable action requested by Lessee to enforce any such
warranty, express or implied, issued on or applicable to any of the
016.055.03.14
Equipment which is enforceable by Lessor in its own name, provided,
however, that (a) Lessee is not in default under this Lease and (b)
Lessor shall not be obligated to resort to litigation to enforce any
such warranty unless Lessee shall pay all expenses in connection
therewith. Notwithstanding the foregoing, Lessee's obligations to pay
the rentals, additional rentals or other payments under this Lease
shall be and are absolute and unconditional. All proceeds of any such
warranty recovery from the manufacturer or supplier of the Equipment
shall first be used to repair or replace the affected Equipment and
any balance remaining shall be paid to Lessee subject to any
deductions for expenses incurred by Lessor. IN NO EVENT SHALL OCS OR
ITS ASSIGNS BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
17. Indemnification. Lessee assumes liability for and hereby agrees to
indemnify, protect and keep harmless Lessor, its agents, employees,
officers, directors, successors and assigns from and against any and
all liabilities, obligations, losses, damages, injuries, claims,
demands, penalties, actions, costs and expenses, including reasonable
attorney's fees, of whatsoever kind and nature, arising out of
Lessee's negligence in the use, operation, leasing or return of any
item of Equipment, or any failure on the part of Lessee to perform or
comply with any conditions of this Lease, except if caused solely by
Lessor's negligence. The indemnities and assumptions of liabilities
and obligations arising from claims during the term of this Lease
shall continue in full force and effect notwithstanding the expiration
or other termination of this Lease. Lessee is an independent
contractor and nothing contained in this Lease shall authorize Lessee
or any other person to operate any item of Equipment so as to incur or
impose any liability or obligation for or on behalf of Lessor.
18. Notices. Any and all notices relating to this Lease shall be deemed
properly given when deposited with the United States Postal Service,
postage prepaid, certified or registered mail, addressed to the party
to receive same at the address below set forth, or at such other
address of which the party to receive notice shall have given the
other party notice pursuant to this Lease.
If to OCS:
Michael T. McNamara
Three Allegheny Center
Pittsburgh, PA 15212
If to Lessee: Director of Public Utilities
City of Corpus Christi
P. 0. Box 9277
Corpus Christi, TX 78469-9277
19. Force Majeure. OCS shall not be liable for any loss, injury, delay,
damages, or other casualties suffered due to strikes, riots, storms,
fires, revolutions, insurrections, wars, explosions, earthquakes,
tornadoes, floods, tidal waves, radiation, epidemics, plagues,
quarantine restructions, customs difficulties, air disasters, freight
016.055.03.14
embargoes, acts of God, the public enemy or government (in either its
sovereign or contractual capacity), or any cause whether similar or
dissimilar to the foregoing beyond its reasonable control.
20. Governing Law. The terms of the Lease shall in all respects be
governed by, construed, and interpreted in accordance with the laws of
Texas.
21. Amendments and Non -Waiver. No amendment, change, or modification of
this Lease, nor any waiver of any term or condition hereunder, shall
be effective unless it is in writing and executed by Lessee and OCS.
Waiver of, or forbearance to enforce, any right or remedy available to
either party shall not constitute a waiver (a) of any other right or
remedy available to such party by reason of the violation or breach of
any of the terms, provisions, and covenants herein contained, or (c)
of any damages accruing to such party by reason of the violation of
any of the terms, provisions, covenants herein contained.
22. Relationship of the Parties. Each party to the Lease is an
independent contractor, and neither party is an agent, employee, or
legal representative of the other party for any purpose whatsoever.
In the event that any legal action is brought hereunder, the
prevailing party in such action shall be entitled to receive
reasonable attorneys' fees.
23. Acceptance. This Lease, including each Equipment Order Schedule and
Exhibit incorporated herein, is subject to acceptance by a duly
authorized officer of OCS at his headquarters office in Pittsburgh,
PA., U.S.A. Until such acceptance, this Lease represents only
Lessee's offer to OCS to enter into the transactions reflected by this
Lease.
24. Further Assurance. Upon Lessor's request, Lessee shall execute and
deliver to Lessor, to the extent that Lessee is authorized, such
instruments and assurances as Lessor deems necessary for the
confirmation or perfection of this Lease and Lessor's rights
hereunder. Lessor may file or record this Lease or a financing
statement with respect thereto so to give notice to any interested
parties. Any such filing or recording shall not be deemed evidence of
any intent to the create a security interest under the Uniform
Commercial Code. All instruments or documents executed to provide a
security interest or otherwise protect Lessor's interest in the
Equipment shall be subject to and comply with the provisions of the
Public Property Finance Act of Texas. Article 2368a.2, Vernon's Texas
Civil Statutes.
25. Benefits. It is agreed that this Lease is entered into by Lessee for
itself and for the benefit of and on behalf of Lessee's member
utilities, municipalities, municipal authorities, associations,
companies, and entities.
LESSEE HAS READ THIS LEASE AND EACH DESIGNATED EQUIPMENT ORDER
SCHEDULE, ANY EXHIBIT CONSTITUTING A PART HEREOF, UNDERSTANDS THAT THE
TERMS AND CONDITIONS APPLY FULLY TO ALL EQUIPMENT ASPECTS OF THIS
O1G.055.03.14
•r
LEASE, AND ACKNOWLEDGES AND AGREES THAT IT UNDERSTANDS THIS LEASE, AND
IS BOUND THEREBY. OCS HAS NOT AUTHORIZED ANY AGENT, EMPLOYEE, OR ANY
OTHER PERSON TO MAKE ANY REPRESENTATION OR WARRANTY CONCERNING THE
EQUIPMENT OR THE SERVICES TO BE PROVIDED HEREUNDER OTHER THAN AS
STATED IN THIS AGREEMENT. LESSEE REPRESENTS THAT IT HAS NOT RELIED
UPON SUCH REPRESENTATION OR WARRANTY IN EXECUTING THIS LEASE OR
PERFORMING UNDER IT. THE PARTIES FURTHER AGREE THAT HIS LEASE
CONTAINS AND CONSTITUTES THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
LEASE BETWEEN THEM, THEREBY SUPERSEDING ALL PROPOSALS, AGREEMENTS AND
DISCUSSIONS, BOTH ORAL AND WRITTEN, AND ALL OTHER COMMUNICATIONS
BETWEEN THEM RELATING TO THE LEASE AND THE EQUIPMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
ONE CALL SYSTEMS, INC.
("OCS")
By Zi
(Printed Wary id. r4i9
Title: ti;eee- or of Opero4'ons
Date: Sep (%4c 2S, 1987
Company Acceptance Date: q -2s-87
City of Corpus Christi.
ATTEST: "Lessee"
By: By:
Armando Chapa Craig A. McDowell
City Secretary City Manager
APPROVED this day of
, 1987
HAL GEORGE, City Attorney
By:
O1G.055.03.14
Assistant City Attorney
Corpus Christi, Texas
/3 day of 00t6rj.U] , 198 7
TO THE MEMBERS OF THE CITY COUNCIL
Corpus Christi, Texas
For the reasons set forth in the emergency clause of the foregoing ordinance
or resolution, an emergency exists requiring suspension of the Charter rule
as to consideration and voting upon ordinances or resolutions at three
regular meetings; I/we, therefore, request that you suspend said Charter rule
and pass this ordinance or resolution finally on the date it is introduced,
or at the present meeting of the City Council.
Respectfully,
Respectfully,
THE CITY OF CORPUS CHRISTI, TEXAS
99.045.01
Council Members
The above ordinance was passed by the following vote:
Betty N. Turner J
David Berlanga, Sr.
Leo Guerrero
Frank Mendez
Clif Moss
Bill Pruet
Mary Rhodes 110
Mary Pat Slavik (1117-)
Linda Strong
20011