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HomeMy WebLinkAboutNB 1 TELECOMM SYSTEM 08-17-92NEW BUSINESS N0. 1 8-17-92 Inter -Com ���\,� ,fE: AUGUST 10, 1992 S� TO: WILLIAM A. HUSTON, CITY MANAGER FROM: RONALD A. NAULT, DIRECTOR OF FINANCE SUBJECT: APPROVAL OF ALTERNATIVE TELECOMMUNICATION SYSTEM RECOMMENDATION: Authorize the City Manager to sign the attached Pacific Bell Master Agreement for Provision, Installation and Maintenance of Telecommunications Service, appropriate $43,000 from the unappropriated reserve of the Equipment Replacement Fund, and further approve the Pacific Bell Joint Marketing Proposal for Equipment and System Maintenance. DISCUSSION: During the past six months, as we've approached the completion of the new police facility, we've been evaluating the City's. telecommunication options. Staff has had serious concerns about the reliability of the existing equipment and whether we should continue to operate an in-house PBX System. The City has operated an in-house switching system for approximately fifteen years. Prior to 1987 the system was an old digital "Clacker" system that gave adequate service and was relatively simple to maintain. It only did two things, let people call-in and call -out. As in a lot of other areas telecommunication technology had rapidly advanced. So much so that by 1987 we were told by our contract maintenance people to quickly f ind an alternative or deal with the system being down for extended periods of time because they could no longer find parts to keep it operative. Our immediate thought was to call Pac Bell. Our goal was to remove the PBX from our site and switch over quickly. Because of the Bell System divestiture, which was still in its early stages, Pac Bell could not completely respond to our needs. We ended up hiring a Telecommunications Consultant, went out to bid and ended up with another in-house PBX. Over the past five years we have had what we consider to be significant problems with our telecommunications equipment. While .. the majority of problems have been equipment failure, inadequate service, overheating, etc., we must share part of the blame. 'We are not adequately staffed to have someone properly dedicate time Alternative Telecommunication System August 10, 1992 Page 2 to managing a PBX System. When the system was first installed the City Manager's Executive Coordinator was the System Manager and for the past four years the Finance Department Secretary has assumed responsibility for the system. System failure is frustrating for all of us but it becomes critical for the Police Department. During the last earthquake both the Police Department and the Del Amo location went out of service, Pac Bell did not. The Police Department operated on 12 emergency lines, Pac Bell service, for over 24 hours. When the entire system fails staff spends an inordinate amount of time tracking the problem and monitoring the service personnel. As we approach the final phase of the City Hall remodeling and the Police have settled into their new facility, staff feels it is time we make a change to a more reliable telecommunication system. Staff has evaluated alternatives to our existing system but, we have focused more of our attention on the Pac Bell Centrex System, the main reason we have is our goal of removing the PBX from our site. An item as critical to us as telecommunications should probably be located off site and maintained and monitored 24 hours a day in a facility specifically designed for the optimum operation of a switch. Secondly, we are not adequately staffed to properly manage and utilize an on site PBX. Based on the attached exhibit, there is a cost benefit to changing from our current system to Centrex. As a point of information, the corporate yard and the water yard are both on Centrex and have been for about two years. They have both had very good experiences with the system. Staff's recommendation is to enter into a 96-A Agreement with Pac Bell to provide Centrex services for the next five years. Under the new operating procedures, Pac Bell can now offer below tariff price:9 'on their kine service if requested by the customer, at a fixed price for a fixed period of time, typically, three, five or ten years. This is their General Order 96-A Contract. An additional thirty (30) percent of the monthly per line charge can be saved by prepaying the contract. Staff recommends this prepayment as a means of maximizing our savings and controlling costs over the next five -six years. To realize the full benefits of Pac Bell and Centrex, staff further recommends that we enter into an agreement with Pac Bell as a single point of contact and take advantage of their joint marketing program. Because of the divestiture Pac Bell cannot manufacture equipment, including desk instruments. But, the rules have been changed to allow them to market Centrex service and equipment together with the equipment manufacturer, joint marketing. This now allows them to compete with the PBX suppliers on a more even Alternative Telecommunications System August 10, 1992 Page 3 playing field. They presently only joint market with Pac Tel Meridian; GTE and David Systems. Each vendor has a special purpose use that they have designed to take full advantage of the Centrex capabilities and maintain a performance standard acceptable to Pacific Bell. These are the only vendors to* date who have met the strict performance standards set by Pac Bell. Because Pac Bell will only joint market with these three vendors and the City wishes to utilize -them as a single point of contact, staff recommends that the City Council approve Pac Bell as a single source vendor under Section 1624D. Bidding: Exceptions of the City of Tustin Purchasing Ordinance. Pac Bell has selected and recommended Pac Tel Meridian for the equipment vendor. David Systems was not cost effective for our system, they are primarily a data transmission and voice.system and GTE verbally declined to propose at this time. As can be seen on the attached exhibit, the six years savings is projected to be $153,000 or about $25,500 per year. I've used a six year comparison because of the complication of the City Hall construction schedule. It is proposed that if the City Council approves staff's recommendation, the Police Department will cut over to Centrex by September 30, 1992. The full impact of the cost savings will not be realized until the balance of City Hall relocation to the new facility, approximately 12 months from now. So we are looking at two five year periods. Phase I includes the prepayment of $76,209 for five years of Centrex service and maintenance for the police department and $43,000 of new phone equipment. Phase II will include $62,000 of additional Centrex for the balance of City Hall and $29,000- of new equipment. The four remaining years budget will be for approximately $5,000 per year equipment maintenance costs. Staff has contacted the cities of Fullerton, Irvine and Buena Park who have all selected Centrex under the proposal conditions and who have all been very satisfied with the quality of service after the cut o er. Rona1V A. Nault Director of Finance RAN: 1s Attachment a ment rex. two EXHIBIT I COMPARING CENTREX WITH FUJITSU 6 YEAR COST RECOVERY BASIS BASE YR PROJECTED OVER 6 YRS: CENTREX 6 YR COSTS: $472,400 y.i✓✓,r i✓ Annualized Savings . $251,536 PAC BELL FUJITSU PD CH CENTREX PHONES YEAR LINE CHGS MAINT SW BOARD SW BOARD AMORT AMORT TOTAL 91/92 $23,000 $643 $28,000 $33,000 $84,643 Base Yr 92/93 $14,400 $3,000 $34,650 $15,300 $9,004 $76,354 93/94 $8,500 $30,948 $17,719 $57,167 94/95 $30,948 $17,719 $48,667 95/96 $30,948 $17,719 $48,667 96/97 $30,948 $17,719 $48,667 97/98 $30,948 $8,715 $39,663 $0 $14,400 $3,000 $43,150 $170,040 $88,595 $319,185 BASE YR PROJECTED OVER 6 YRS: CENTREX 6 YR COSTS: $472,400 y.i✓✓,r i✓ Annualized Savings . $251,536 July 7, 1992 C. Y MASTER AGREEMENT FOR PROVISION, INSTALLATION AND MAINTENANCE OF TELECOMMUNICATIONS SERVICE between PACIFIC BELL and CITY OF TUSTIN TABLE OF CONTENTS Section Title Page 1 Scope of the Agreement 3 2 Rates and Charges 5 3 Invoices and Payments 5 4 Title and Risk of Loss 6 5 Inspection 6 6 Installation and Implementation 6 7 Acceptance Tests 7 8 Orientation and Training 8 9 Delivery 9 10 Access 9 it Service System Changes 10 12 Maintenance 11 13 Warranty 13 14 Indemnification 14 15 Insurance 15 16 Default and Damages 16 17 Force Majeure 17 18 Termination 18 19 Publicity 22 20 General 22 Addendum No. 1 Description of Service 7 pages and Rates and Charges day of MASTER AGREEMENT FOR PROVISION, INSTALLATION AND MAINTENANCE OF TELECOMMUNICATIONS SERVICE THESE TERMS AND CONDITIONS, made and entered into this , 1992, are by and between PACIFIC BELL ("Pacific"), a California corporation, and CITY OF TUSTIN ( "Customer") . WHEREAS, Customer has asked Pacific to provide Pacific's Telecommunications service(s) under certain rates and conditions not set forth in Pacific's Tariffs on file with the California Public Utilities Commission ("CPUC") ("Pacific's Tariffs"); and WHEREAS, Customer refuses to subscribe to such service under the rates and conditions set forth in Pacific's Tariffs and has advised Pacific that it is pursuing other competitive alternatives; and WHEREAS, Pacific has advised Customer that Pacific will make available the service to Customer at the same terms, conditions and prices whether Customer procures such services directly from Pacific or through a third party agent; and WHEREAS, Customer has been advised by Pacific that it may provide, pursuant to a Master Agreement entered into under General Order 96-A, Centrex service, PBX trunks or other services 1 under those certain rates and conditions not set forth in Pacific's Tariffs and that such rates for Centrex service, PBX trunks or other services will be determined using the same cost methodology; and WHEREAS, Customer, in lieu of pursuing other competitive alternatives, has elected to subscribe to, and Pacific agrees to provide Centrex service under those certain rates and conditions not set forth in Pacific's Tariffs; and WHEREAS, Pacific has advised Customer that network terminating wire,.also referred to as Centrex inside wire, and riser cable, also referred to as INC and/or 32C cable, may be provided by a vendor of Customer's choice or by Pacific pursuant to this Agreement; and WHEREAS, Customer has elected to have Pacific provide such wire and/or cable which may be necessary to provide Service pursuant to this Agreement; and WHEREAS, Customer and Pacific desire to enter into a Master Agreement covering the provision, installation and maintenance of such services ("Agreement"). NOW, THEREFORE, in consideration of the mutual covenants herein contained, Pacific and Customer agree as follows: OA • • • Y - L_ a__ a_ A. The specific service(s) subject to this Agreement (hereinafter referred to as "Service") will be described in and shall be provided pursuant to Addenda that.Customer and Pacific shall execute from time to time. Pacific agrees to provide such Service for Customer's use subject to availability of equipment, facilities, work force and the terms and conditions of this Agreement. B. This Agreement and all Addenda attached hereto shall become effective upon execution by both parties and, unless sooner terminated as provided herein, shall remain in full force and effect for as long as there are any Addenda remaining in effect under this Agreement. No Service shall be provided under this Agreement until the applicable Addendum(a) has been executed by Customer and Pacific. C. Each Addendum shall incorporate this Agreement by reference, shall be numbered and shall include, but not be limited to, the following items, whenever such item is applicable to the Service covered by the Addendum: (1) The effective date of the Addendum; (2) A description of the features and service being provided including, but not limited to, the quantity, the rates and charges for the features and service being provided, including the monthly rate; (3) The location(s) to which the Service will be provided; 3 W (4) The initial term of the Addenda during which such service shall be provided and such rates and charges remain in effect; (5) The payment terms applicable to the recurring and nonrecurring charges; (6) The billing address; (7) The estimated Cutover date, if applicable; (8) Maximum quantities, as applicable; (9) Minimum quantities, as applicable; (10) Termination charges; (11) Any special terms and conditions; and (12) The applicability of CPUC or Federal Communications Commission ("FCC") mandated surcharges or applicable taxes, toll usage or directory listings, Federal Access End User Common Line Charges to the Service ordered, and other miscellaneous tariff charges, as applicable. D. Any terms and conditions contained on any purchase order submitted to Pacific by Customer which are in conflict with or in addition to the terms and conditions of this Agreement or any Addendum shall be null and void. E. Except as set forth in this Agreement and Addenda, Pacific shall provide the Service called for in accordance with Pacific's Tariffs. F. Pursuant to CPUC General Order No. 96-A, this Agreement and all Addenda attached hereto, or hereafter executed, shall be filed with the CPUC and shall at all times be subject to the jurisdiction of the CPUC. The CPUC shall review such Agreement and Addenda pursuant to CPUC Decision 91-07-010. 4 2. RATES AND CHARGES During the term set forth in the applicable Addendum, Pacific shall furnish the Service in accordance with the rates and charges set forth in such Addendum. 3. INVOICES AND PAYMENTS A. Customer shall be responsible for and shall pay Pacific the monthly rates and any nonrecurring charges, if applicable, as set forth in each Addendum to this Agreement. The rates and charges shall commence on the date the Service is made fully available for use by Customer ("Cutover") under the applicable Addendum, or if no installation is involved, upon*the effective date of the applicable Addendum. B. All bills shall be due and payable upon date of presentation of such bill in accordance with Pacific's normal billing practices. C. Pacific's rates and charges are billed on a monthly basis pursuant to Pacific's tariffs, unless otherwise stated in the applicable Addendum. Pacific's Tariff Schedule ("Schedule") Cal. P.U.C. No. A2.1.9 imposes a late payment charge of 1.5% per month on an unpaid live balance of twenty dollars or more carried forward from one month's bill to the next. The three (3) month limit to backbilling, as set forth in Schedule Cal. P.U.C. A2.1.9 is not applicable to Service provided hereunder. 5 0 4. ',TITLE AND RISK OF LOSS Pacific does not transfer title to the Service system under this Agreement. Customer is, however, granted the right to use the Service offered subject to the terms and conditions of this Agreement. Pacific accepts the responsibility for risk of loss of or damage to any hardware or software associated with the Service provided hereunder, except to the extent that such loss or damage arises out of or is caused by the negligence or willful misconduct of Customer, its officers, agents, servants or employees. 5. INSPECTION Should an Addendum provide for a new installation of Service or Service upgrade, Pacific agrees that all Service hardware and optional features to be provided in the system will be thoroughly tested to ensure that no mechanical or electronic problems exist, and that all Service features are operational in accordance with Pacific's published manual and technical specifications. A. Within thirty days of the effective date of any Addendum which includes a new Service installation or Service upgrade, Pacific will submit to Customer, if appropriate, for review and approval, a specific Service implementation schedule that includes a milestone plan showing the orderly progression of events leading to the timely installation or upgrade, completion and Cutover of __ Service. The plan will include, equipment, delivery, upgrade/installation schedule, Cutover plan, training plan, test plan, and delivery of test plan, all as applicable. The implementation plan shall be designed to show the Cutover date for the Service as agreed to by Customer and Pacific. B. Upon completion of the Service installation or upgrade, and prior to acceptance by Customer, all equipment will be thoroughly cleaned and free from extraneous debris. Debris resulting from the installation will be removed from all areas and will be disposed of by Pacific. 7. ACCEPTANCE TESTS A. Whenever an Addendum includes installation of new Service or a Service upgrade, Pacific will provide to Customer for Customer's review a service test plan which will be used for the final acceptance test for each location, as applicable. The test plan shall consist of a minimum of two parts: functional tests and performance tests. If requested by Customer, the tests shall be conducted by Pacific in the presence of an authorized representative of Customer. Failure to meet the requirements of any portion of the test plan shall be deemed a failure of the test, which must be rescheduled after appropriate corrections have been made. B. Functional tests will be performed on all circuits and circuit components to ensure they function properly. The functional test will demonstrate the ability of the Service V1 equipment components and modules to correctly perform the service functions set forth in the applicable Addendum. C. The performance test for each location will be conducted commencing at completion of installation or upgrade of each location. Pacific's personnel will monitor and correct any service problems until a consecutive thirty day period for each location has elapsed over which performance is reasonably satisfactory to Customer. The performance test is to determine performance under day-to-day operation. D. Final acceptance for each location will be made immediately following successful completion of the performance test for each location. The Customer will be liable for Service charges at Cutover for each location except to the extent that charges will be adjusted to reflect unsatisfactory service as set forth in Schedule Cal. P.U.C. No. A2.1, Rule 14. Failure of a test shall be deemed to have occurred when any material common system performance requirement, feature, or component does not perform substantially as specified for each location. 8. ORIENTATION AND TRAINING A. Pacific, after advising Customer that the service is installed or upgraded and ready for use, and prior to Cutover, shall provide an orientation session for Customer's telecommunications management officials. The orientation, as a minimum, shall include an explanation of basic principles, theory -- and structure of the Service, as well as demonstrations of 8 equipment operations. This service is provided at no additional charge. B. For installations of new Service and Service upgrades, if appropriate, Pacific will provide complete training on the Service system features for Customer, prior to and during Cutover. Training is included at no additional charge to the cost of the Service. Post Cutover training, when necessary, is also included at no additional charge to the cost of the Service. C. All training will be offered on Customer's premises, at a location(s) designated by Customer and agreed to by Pacific. 9. DELIVERY Whenever any Service installation or Service upgrade includes shipment and delivery, Pacific shall be responsible for the shipment and delivery of the Service to Customer's premises and Pacific shall pay all charges associated with such shipment and delivery. Pacific shall notify Customer's authorized personnel named in the applicable Addendum twenty-four hours in advance of any such delivery. 10. ACCESS Pacific shall be provided reasonable access to the Customer's premises for the purpose of installing, inspecting, testing, rearranging, repairing or removing the Service. Pacific shall have the right to make such tests and adjustments as are necessary 9 or appropriate to maintain its equipment and/or facilities in satisfactory operating condition. 11. SERVICE SYSTEM CHANGES A. Customer may, subject to availability, increase the Service up to the maximum quantities set forth in each Addendum, and/or may request, if applicable, such Service to be moved, altered or changed by so informing Pacific. B. The monthly rates and nonrecurring charges for the installation of such additional Service, up to the maximum quantities set forth in the applicable Addendum, will be covered under this Agreement at the rates and charges set forth in such Addendum until the expiration of the term of the Addendum. Rates and charges for Service in excess of such maximum shall be provided pursuant to the terms and conditions of this Agreement and computed as set forth in the applicable Addendum. C. Customer is subject to the nonrecurring charges set forth in Schedule Cal. P.U.C. No. A3.1 and Schedule Cal. P.U.C. No. A9.1 for subsequent additions and/or moves or changes of the Service included under any Addendum to this Agreement, unless otherwise specified in the applicable Addendum. D. In the event Customer moves any location, as such location is described in each Addendum, Pacific shall perform a financial study to determine the rates and charges for the new location. A modification to the affected Addendum will be executed to reflect the change in monthly rates and charges, if 10 -- any, and to reflect the charge for relocating the Service. Customer shall not incur any penalty or termination charges for such relocation and the provisions of this Agreement shall apply, provided that Pacific offers the same central office service out of the central office serving the Customer's new location and that facilities and operating conditions permit. All other terms and conditions of this Agreement shall remain in effect. If Customer moves its location to an area where Pacific does not offer central office service, or where facilities and operating conditions prevent relocation, or if Customer requests to discontinue its Service covered by any Addendum hereunder, Customer shall be responsible for the termination charges described in the applicable Addendum. n. E. If Customer elects to decrease the Service to less than the minimum quantities set forth in the applicable Addendum, the Customer shall continue to pay the rates and charges for the minimum quantity, as applicable. 12. MAINTENANCE A. Pacific shall perform, at no additional charge, such remedial and preventive maintenance services from time to time as may be required to keep the Service in good working order and to ensure that the Service performs in accordance with the requirements of the applicable Addendum. Such maintenance services shall also include those engineering and safety changes developed by Pacific and provided to any of Pacific's other 11 customers. Pacific shall maintain an adequate inventory of spare and replacement parts at Pacific's site or another nearby facility to ensure that there will be no unnecessary delay in obtaining such parts. Pacific shall provide Customer with a telephone number or numbers to request remedial maintenance service. B. Pacific shall determine the frequency and the duration of required preventive maintenance. Such preventive maintenance services shall not unreasonably interfere with Customer's use of the Service. C. Pacific's rates and charges as set forth in each Addendum hereunder shall include, but are not limited to, the following services in circumstances where preventive or remedial maintenance of the Service is required: (a) technicians during normal business hours of 8 a.m. to 5 p.m. Monday through Friday .and technicians when available outside of normal business hours; (b) dispatch service; (c) diagnostic service and network monitoring from Pacific's central office. Pacific shall make all corrections, adjustments, parts replacements, repairs and replacements of Service equipment, or components thereof, necessary to ensure that the Service performs in substantial compliance with this Agreement at no additional charge to Customer. Pacific shall perform such diagnostic programs or trouble analysis and isolation procedures to determine when remedial maintenance services are necessary. Charges such as mileage to Customer premises, minimum charges, overtime charges, and hourly rates are included in Pacific's rates and charges for 12 the Service. In the event Pacific dispatches its service technician to Customer's premises and the service problem is found to be in Customer's equipment, the maintenance charges set forth in Pacific's Tariffs will apply. 13. WARRANTY A. Pacific warrants that its Service performs in accordance with the requirements set forth in the applicable Addendum and guarantees all parts and equipment of the Service against defects, including labor to replace parts and equipment, for the term of the applicable Addendum. Pacific also guarantees the availability of all necessary replacement parts for the Service for as long as such is in service. B. Although Pacific will repair or replace defective parts at no charge to Customer unless such defect is caused by an act or omission of Customer or its officers, agents or employees, Pacific's liability for errors or omissions in its provision of Service is governed by Schedule Cal. P.U.C. No. A2.1, Rule 14. Section C. below addresses general liability. The relevant portion of that tariff is set forth below. (The Utility means Pacific.) 1. The provisions of this rule do not apply to errors and omissions caused by willful misconduct, fraudulent conduct or violations of law. 2. In -the event an. error or omission is caused by the gross negligence of Utility, the liability of Utility shall be limited to and in no event exceed the sum of $10,000. 13 3. Except as provided in 1. and 2. of this rule, the liability of Utility for damages arising out of mistakes, omissions, interruptions, delays, errors or defects in any of the services or facilities furnished by Utility, including exchange, toll, private line, supplemental equipment, alphabetical directory listings (excluding the use of bold face type) and all other services, shall in no event exceed an amount equal to the pro rata charges to the customer for the period during which the services or facilities are affected by the mistake, omission, interruption, delay, error or defect provided, however, that where any mistake, omission, interruption, delay, error or defect in any one service or facility affects or diminishes the value of any other service said liability shall include such diminution, but in no event shall the liability exceed the total amount of the charges to the customer for all services or facilities for the period affected by the mistake, omission, interruption, delay, error or defect. C. The limitations set forth in subparagraph B herein do not apply to property damage, personal injury or death caused by the negligence or willful misconduct of Pacific, its employees or authorized representatives. 14. INDEMNIFICATION A. Pacific shall be indemnified and saved harmless by Customer from and against all loss, claims, damages, penalties, costs and expenses, including attorney's fees, caused by the negligence or willful misconduct of Customer, its employees or authorized representatives arising out of the performance or nonperformance of Customer's obligations under this Agreement. Subject to the limitation of liability set forth in Section 13 (WARRANTY), Customer shall be indemnified and saved harmless by Pacific from and against all loss, claims, damages, penalties, 14 costs and expenses, including attorney's fees, caused by the negligence or willful misconduct of Pacific, its employees or authorized representatives, arising out of the performance or nonperformance of Pacific's obligations under this Agreement. B. Neither party shall be liable to the other for any special, indirect, incidental or consequential damages including, but not limited to, lost profits, even if the parties have knowledge of the possibility of such damages and regardless of the form of action, whether in contract, tort (including negligence) strict liability or otherwise. 15. INSURANCE A. Pacific provides a combination of self-insurance and insurance for general liability in amounts as required. This provides protection for Bodily Injury and Property Damage including the following supplementary coverages: (1) Contractual Liability to cover liability assumed under this Agreement; (2) Product and Completed Operation Liability Insurance; (3) Broad Form Property Damage Liability Insurance. B. Pacific provides a combination of self-insurance and insurance for automobile liability in amounts as required. Such self-insurance or insurance shall extend to owned, non -owned and hired automobiles used in performance of this Agreement and shall comply with applicable statutes. 15 C. Pacific does not insure against any claims and/or losses caused, in whole or in part, by the Customer or their officers, agents and employees, or any third persons. D. Pacific has qualified under the laws of the State of California as a self -insurer with respect to Workers' Compensation Coverage. Pacific's identification number for this purpose is 2-0054-03. E. Pacific shall, at Customer's request, provide a Certificate of Insurance. n3liff 077 i D • ,� Prior to final Service acceptance by Customer of an installation for new Service or a Service upgrade, if any or all work to be performed under this Agreement is abandoned by Pacific or if the schedule of work is not being maintained or if Pacific is substantially violating any of the conditions or provisions of the Agreement, and if Pacific fails to remedy such default within ninety calendar days after receipt of a written notice of default, or at the Customer's written election, Pacific fails to provide satisfactory written evidence that such default will be corrected within a longer period agreed to by Customer; Customer may, without notice to Pacific's sureties, either withhold any amounts otherwise due under the Agreement, seek an adjustment in accordance with Section 13 (WARRANTY), or terminate Pacific's right to proceed with all or any portion of work without liability for such termination. 16 17. FORCE MAJEURE If performance of the Agreement, or of any obligation hereunder is prevented, restricted or interfered with by reason of any of the following: A. Fire, explosion, flood, earthquake, hurricane, tornado, cyclone, storm, epidemic, breakdown of plant or power failure; B. War, revolution, civil commotion, acts of public enemies, blockade or embargo; C. Any law, order, proclamation, regulation, ordinance, demand or requirement of any government or any subdivision, authority, or representative of any such government; D. Labor difficulties, such as strikes, picketing or boycotts; E. Delays caused by Customer or other service or equipment vendors; F. Any other circumstances beyond the reasonable control of the party affected, (however, "non-funding".by any funding source of Customer shall not be deemed a force majeure condition). The party affected, upon giving prompt notice to the other party, shall be excused from such performance on a day -for -day basis to the extent of such prevention, restriction, or interference (and the other party shall likewise be excused from performance of its obligations on a performance so prevented, restricted or interfered with); provided that the party so affected shall use its best efforts to avoid or remove such causes 17 of nonperformance and both parties shall proceed to perform with dispatch whenever such causes are removed or cease. Further, in the event of a delaying condition having more than ninety days duration, the non -delaying party may terminate the affected Addendum or if all Addenda are affected, this Agreement and all such Addenda, for its convenience and, if Customer's rates and charges set forth in the applicable Addendum(a) have been paid in advance, Pacific shall refund to Customer a portion of these rates and charges Customer paid. pro rata basis. 18. TERMINATION Such refund shall be calculated on a A. The Customer may terminate any affected Addendum and, if all Addenda are affected, to terminate this Agreement and all Addenda -by giving Pacific ninety days written notice, subject to the following terms and conditions: (1) If any Addendum(a) is terminated prior to Cutover of Pacific's Service provided under the applicable Addendum(a), the Customer will pay Pacific's recurring and nonrecurring costs of labor, engineering, nonreusable materials, interest, transportation, storage, manufacturer's cancellation charges and any other costs incurred by Pacific or its subcontractors prior to completion of installation or upgrade, including those expenses incurred in preparation for start of installation or upgrade. (2) If, after Cutover of Service, or if no installation or upgrade of Service is involved, after the effective date of an Addendum, the Customer terminates any Addendum(a) prior to the initial term set forth herein in such Addendum(a), for any reason not including those specified in subsections b(1) (2), or (3) below, or as set forth in Section 18 17 (FORCE MAJEURE), the Customer shall be required to pay the termination charges set forth in such Addendum (a) . B. The Customer reserves the right to terminate any affected Addendum(a) or, if all Addenda hereunder are affected, to terminate the Agreement and all Addenda by providing written notice to Pacific, if: s (1) Pacific furnished any statement, representation, warranty or certification in connection with this Agreement or the applicable Addendum(a) hereunder, which is materially false, deceptive, incorrect, or incomplete; or (2) Pacific fails to perform to the Customer's satisfaction any material requirement of the Agreement or applicable Addendum or is in violation in any material respects of any specific provisions of the Agreement or applicable Addendum(a); or (3) The Customer reasonably determines satisfactory performance of the Agreement or the applicable Addendum(a) is substantially endangered or can reasonably anticipate default. If the Customer terminates for any of the causes stated in (1) above, it will not be liable for the termination charges set forth in the applicable Addendum(a), nor any of Pacific's actual costs or charges incurred pursuant to the applicable Addendum(a). In addition, if Customer's rates and charges set forth in the applicable Addendum(a) have been paid in advance, Pacific shall refund to Customer a portion of these rates and charges Customer paid. Such refund shall be calculated on a pro rata basis. The Customer must provide Pacific written notification of its intention to terminate any Addendum(a) or, if all Addenda are affected, this Agreement and all Addenda, for any of the causes 19 stated in (2) and (3) above, and Pacific shall have ninety days from receipt of such notice to cure the defects described in (2) above or provide written evidence of performance in response to the conditions described in (3) above. If Pacific is unable to so cure, the Customer may terminate under (2) and (3) above and the Customer shall not be liable for the termination charges in the applicable Addendum(a). In addition, if Customer's rates and charges set forth in the applicable Addendum(a) have been paid in advance, Pacific shall refund to Customer a portion of these rates and charges Customer paid. Such refund shall be calculated on a pro rata basis. C. Pacific may terminate an Addendum and, if all Addenda are terminated, the.Agreement, in the event the Customer does not pay the rates and charges for Pacific's services rendered in accordance with the provisions of the applicable Addendum(a) attached hereto, or in the event the Customer "misuses" the Service or equipment provided as described in Rule it of Pacific's Schedule Cal. P.U.C. A2.1, incorporated herein by reference, by providing the Customer a thirty day written notice thereof. If the Customer does not correct the problem within the thirty day period and if Pacific terminates any Addendum(a) or all Addenda and the Agreement pursuant to this subparagraph, the Customer shall pay, upon the effective date of the termination, the termination charges set forth in the applicable Addendum(a). In addition, if Customer's rates and charges set forth in the applicable Addendum(a) have been paid in advance, Pacific shall 20 refund to Customer the unused portion of the rates and charges Customer paid in advance. Such refund shall be calculated on a pro rata basis. D. If the CPUC requires any material modification of the terms and conditions of the Agreement or any Addendum, Customer may terminate any affected Addendum(a) or, if all Addenda are affected, this Agreement and all Addenda. Pacific shall notify the Customer in writing of any such CPUC requirement to modify this Agreement and any or all Addenda hereunder, within ten working days of receiving notice of such requirement. If the Customer terminates any Addendum(a) or all Addenda and the Agreement pursuant to this paragraph, it shall not be obligated to pay the termination charges set forth in the applicable Addendum(a). In addition, if Customer's rates and charges set forth•in the applicable Addendum(a) have been paid in advance, Pacific shall refund to Customer the unused portion of the rates and charges Customer paid in advance. Such refund shall be calculated on a pro rata basis. E. Pacific is regulated by certain rules, regulations and orders of the CPUC and FCC. Pacific is also subject to certain requirements as set forth in certain orders of the United States District Court for the District of Columbia in Civil Action No. 82-0192 ("Court"). In the event that Pacific believes in good faith that this Agreement or any part thereof, may be in conflict with any such rules, regulations and orders, Pacific may terminate or modify this Agreement or any affected Addendum(a) without 21 liability. If Pacific terminates any Addendum(a) or all Addenda and the Agreement pursuant to this paragraph, Customer shall not be obligated to pay any termination charges set forth in the applicable Addendum(a). In addition, if Customer's rates and charges set forth in the applicable Addendum(a) have been paid in advance, Pacific shall refund to Customer the unused portion of the rates and charges Customer paid in advance. Such refund shall be calculated on a pro rata basis. 19. PUBLICITY Each party shall submit to the other party all advertising, sales promotion and other publicity relating to the subject matter of this Agreement wherein the other parties' name or names are mentioned or language, signs, markings or symbols are used from which the connection of either parties' name or names therewith may, in the parties' judgment, be reasonably inferred or implied. Neither party shall publish or use such advertising, sales promotion or publicity, matter without obtaining prior written approval from the other party. 20. GENERAL A. Neither this Agreement nor any interest herein of Customer may be assigned, sublet, or in any manner transferred by Customer without the prior written consent of Pacific. Any attempted assignment or transfer in contravention of the preceding -- sentence shall be void. 22 B. The failure of Pacific or Customer to insist upon strict performance of any provision of this Agreement in any one or more instances shall not be construed as a waiver or relinquishment for the future of any such provision, but the same shall be and remain in full force and effect. C. Pacific and Customer both agree to comply with all applicable federal, state and local laws, regulations and codes in the performance of this Agreement. Each party further agrees to indemnify the other party for any loss or damage that may be sustained by reason of such party's failure to comply with the aforementioned federal, state and local laws, regulations and codes applicable to it under its performance of this Agreement. D. Article, section or paragraph headings contained in this Agreement or any Addendum are for reference purposes only and shall not affect the meaning or interpretation of this Agreement or any Addendum. E. All notices or other communications hereunder shall be deemed to have been fully given when made in writing and delivered in person or deposited in the United States mail, postage prepaid, and addressed as follows: To Customer: City of Tustin 15222 Del Amo Avenue Tustin, California 92680 Attention: Ronald A. Nault, Finance Director To Pacific: 200 W. Harbor Place, Room 830 Anaheim, California 92805 Attention: Account Executive City of Tustin W The address to which notices may be given by either party may be changed by written notice given by such party to the other pursuant to this paragraph. F. Customer, upon execution of this Agreement, authorizes Pacific to share its proprietary network information held by Pacific which is specific to Customer and reasonably necessary to accomplish the purposes of this Agreement. G. No subsequent agreement between Customer and Pacific concerning the subject matter of this Agreement shall be effective or binding unless it is made in writing. No representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. H. This Agreement and Pacific's Tariffs set forth the entire understanding of the parties and supersede any and all prior agreements, arrangements, representations or understandings relating to the subject matter hereof. I. This Agreement shall be construed in accordance with and be governed by the domestic laws of the State of California. [SIGNATURE PAGE FOLLOWS] 24 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to,be executed by their respective duly authorized representatives. PACIFIC BELL Signed By: Print Name: Title: Date Signed: CITY OF TUSTIN Signed By: Print Name: Title: Date Signed: FORM APPROVED PACIR BELL By Attorney Copy 25 l--- CUSTOMER COPY ADDENDUM NO. 1 OF THE MASTER AGREEMENT FOR PROVISION, INSTALLATION AND MAINTENANCE OF TELECOMMUNICATIONS SERVICE BETWEEN PACIFIC BELL AND CITY OF TUSTIN I. This Addendum No. 1, incorporated by reference to the Master Agreement for Provision, Installation and Maintenance of Telecommunications Service between Pacific Bell and City of Tustin is effective upon execution by both parties. The initial term of this Addendum shall end five years after the Cutover Date, as defined herein. LOCATION AND DESCRIPTION OF SE V C A. General Description of S :.Jib A combination of new and existing central office based leased communications system equipped with primary station lines, capable of receiving direct in -dialed calls and capable of direct out -dialing of calls, more commonly called Centrex service that will provide for the standard and optional features described below. B. Locations to which the Service will be vrovided: - 1. Primary Locations The following Customer primary locations, in the - City of Tustin, shall be served out of Pacific's TUSTCA11CGO Central Office, located at 1971 Irvine Blvd., Tustin. 300 Centennial Way 200 South C Street 235 E. Main Street 2. Off -Premises Locations a. Central Office - TUSTCA70 The following Customer location in the City of Tustin is an off -premises location connected via Pacific's TUSTCA70 Central Office, located at 1452 Edinger Street, Tustin. Station and system features shall be generated out of Pacific's TUSTCA11CGO Central Office. off -premises station mileage required to connect such location is not included in this Addendum and shall be provided at the prevailing tariff rates. 1472 Service Road Addendum No. 1 Page 2 of 7 b. Central Office - SNANCA01 The following Customer location in the City of Orange is an off -premises location connected via Pacific's SNANCA01 Central Office, located at 507 N. Bush Street, Santa Ana. Station and system features shall be generated out of Pacific's TUSTCA11CGO Central Office. Off -premises station mileage required to connect such location is not included in this Addendum and shall be provided at the prevailing tariff rates. 701 S. Parker Street C. Description of Lines and System and Station Features: Min. Max. Oty— Oty_ USO 1 1 25J2X 116 300 AAF 116 300 AAFTX 1 1 DDT 116 300 E8A 116 300 RXR 4 12 E3N 53 130 E3P 17 70 E6G++ 17 90 EG9++ 15 20 EAB 116 300 ESMCS Description LESS/lAESS Measured Class of Service equipped with touchtone calling capability Access Facility Trunking for Centrex lines Call Transfer DID to DOD Call Trans/3way/Cons Primary Station Lines Call Pickup Group Call Pickup Station Call Forward Busy Call Fwd Don't Answer Call Hold Call Fwd Variable Unitd III. PERFORMANCE SPECIFICATIONS Pacific will adhere to performance standards as required in the applicable tariffs governing the provisioning of the Service provided hereunder. IV. MINIMUM AND MAXIMUM QUANTITIES Pursuant to this Addendum, Customer will be provided a minimum of 116 Centrex Primary Station and Trunking lines, and associated features, and a maximum of 300 Centrex Primary Station and Trunking lines and associated features, as described in Section II.C. above. Addendum No. 1 Page 3 of 7 V. RATES AND CHARGES A. Minimum Number of Lines Pre -payment Rate for the initial 116 Centrex Primary Station and Trunking lines, and associated system and station features, as described in Section II.C. above, includes: (1) the monthly service charge for 116 lines and associated features; (2) the one-time service order charge for conversion to contract rate for 50 lines; (3) the nonrecurring installation charge for 95 lines and associated features; and (4) Centrex inside wire and maintenance of such wire. $76,209.00 Any subsequent moves and changes of Service provided hereunder are not included in the Pre -payment set forth above -- and such moves and charges shall be charged the prevailing tariff nonrecurring rate. Customer shall remit to Pacific the Pre -payment amount set forth above within sixty days of the effective date of this Addendum. Customer shall pay such amount pursuant to the terms and conditions set forth in the Agreement. * Rates and charges set forth in this Addendum for Service include applicable Federal Access End User Common Line Charges but do not include CPUC or FCC mandated surcharges or applicable taxes, toll usage or directory listings or other miscellaneous tariff charges. Applicable tariff rates and charges, surcharges and taxes will be billed on a monthly basis. If the Federal Access End User Common Line Charge increases or decreases, the pre -payment amount set forth above will not change. Pacific's Tariff Schedule Cal. P.U.C. No. A.2.1.33., surcharges and surcredits, are not applicable to the rates and charges set forth in this Addendum. B. Growth Lines Monthly Rate Rate for each Centrex Primary Station and Trunking line, and associated system and station features, as described $15.00 in Section II.0 above, added Per line over the minimum 116 lines, not to exceed the system maximum of 300 lines includes the monthly recurring charge and maintenance of the Centrex inside wire. Addendum No. 1 Page 4 of 7 Nonrecurring Charge Prevailing Tariff Rate Pacific shall provide additional lines, as described in Section II.C, at Customer's locations listed in Section II.B and, if the equipment and facilities are available, at any additional Customer location which is served out of the Central Office described herein. Pacific shall bill Customer on a monthly basis for such additional lines, pursuant to the terms and conditions of the Agreement. If Pacific determines that additional equipment and facilities (such as outside plant and cable) are required, Pacific shall perform a full financial study to determine the rates and charges for the requested service and the parties shall execute a modification to this Addendum reflecting the additional service and the agreed upon rates and charges. * Rates and charges set forth in this Addendum for Service include applicable Federal Access End User Common Line Charges but do not include CPUC or FCC mandated surcharges or applicable taxes, toll usage or directory listings or other miscellaneous tariff charges. Applicable tariff rates and.charges, surcharges and taxes will be billed on a monthly basis. If the Federal Access End User Common Line Charge increases or decreases, the pre -payment amount set forth above will not change. Pacific's Tariff Schedule Cal. P.U.C. No. A.2.1.33., surcharges and surcredits, are not applicable to the rates and charges set forth in this Addendum. Addendum No. 1 Page 5 of 7 VI. ADDITIONAL TERMS AND CONDITIONS A. Rates and charges set forth above are based on the orders for initial installation being issued and installed simultaneously. Lines installed after the initial installation shall be charged the prevailing nonrecurring tariff installation rate. B. Rates and charges set forth above do not include Customer Premises Inside Wire, Off -Premises station mileage, WATS, 800 Service, Foreign Exchange Service, Data Lines, or Tie Lines. C. Pursuant to Section 11 (SERVICE SYSTEM CHANGES) of this Agreement, if Customer elects to decrease the Service to less than the minimum quantity of 116 lines, Customer will continue to pay the rates and charges for such minimum quantity. D. In the event Customer requires additional Centrex lines and/or associated features over the maximum quantities provided hereunder, or at locations other than those set forth herein, the rates and charges for such lines and features shall be determined by Pacific after a full financial study has been completed. VII. CUTOVER DATE The Cutover Date for this Addendum shall be the first date that the lines which are to be installed pursuant to Section V.A are made available to Customer. VIII. TERMINATION CHARGES A. Prior to the Cutover Date: Pacific's recurring and nonrecurring costs of labor, engineering, nonreusable materials, interest, transportation, storage, manufacturer's cancellation charges and any other costs incurred by Pacific or its subcontractors prior to completion of installation, including those expenses incurred in preparation for start of installation. i B. After the Cutover Date: 55% of the Pre -payment amount of $76,209.00 Plus Addendum No. 1 Page 6 of 7 45% of the Pre -payment amount of $76,209.00; multiplied by the number of months elapsed in the term of this Addendum; divided by the number of months in the initial term of this Addendum. Pacific shall deduct the termination charge from such pre -payment and refund the remainder, without interest, to Customer. Tariff Schedule Cal. P.U.C. A2.1.9I shall not apply to termination charges. IX. BILLING ADDRESS City of Tustin 15222 Del Amo Avenue ~- Tustin, California 92680 Attention: Ronald A. Nault Finance Director (SIGNATURE PAGE FOLLOWS) Addendum No. 1 Page 7 of 7 This Addendum No. 1 is incorporated by reference and is subject to the terms and conditions of that Master Agreement for Provision, Installation and Maintenance of Telecommunications Service between Pacific Bell and City of Tustin. IN WITNESS WHEREOF, the parties hereto have caused this Addendum No. 1 to be executed on the date shown below by their respective duly authorized representatives. PACIFIC BELL By. Print Name: Title: Date Signed: CITY OF TUSTIN* By. Print Name: Title: Date Signed: FORM APPROVED `. pACIFIC BELL By Attorney L US�'OM CUSTOMER oo