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HomeMy WebLinkAboutR-2013-100 Emergency Warning Call Database Southwestern Bell d/b/a AT&T RESOLUTION NO. R - 2013 - 100 A RESOLUTION APPROVING AN AGREEMENT WITH SOUTHWESTERN BELL TELEPHONE, L.P. D /B /A AT &T MISSOURI FOR EMERGENCY WARNING CALL DATABASE EXTRACT BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS: THAT the Board of Aldermen ( "Board ") approves the Agreement regarding Emergency Warning Call Database Extract, in substantially the form attached hereto as Exhibit A, with Southwestern Bell Telephone, L.P. d /b /a AT &T Missouri, and authorizes the Mayor to execute the Agreement on behalf of the City; and FURTHER THAT the Mayor, the City Administrator, the City Attorney and other appropriate City officials are hereby authorized to take any and all actions as may be deemed necessary or convenient to carry out and comply with the intent of this Resolution and to execute and deliver for and on behalf of the City all certificates, instruments, agreements and other documents, as may be necessary or convenient to perform all matters herein authorized. PASSED AND ADOPTED by the Board of Aldermen and APPROVED by the Mayor of the City of Riverside, Missouri, the /1.1: day of ZS/v/K/ 2013. _ilLaii/l/DA Mayor Kathleen L. Rose , :ATTEST: • i Robin Littrell, Pit Clerk Exhibit A TERMS AND CONDITIONS FOR EMERGENCY WARNING CALL DATABASE EXTRACT IN MISSOURI Customer and Southwestern Bell Telephone, L.P., d/b /a AT &T Missouri ( "AT &T Missouri ") agree that the Emergency Warning Call Database Extract ( "ECD ") provided pursuant to the Emergency Warning Call Database Extract Service Order Authorization (signed by Customer on ), these Terms and Conditions, and any Pricing Sheet, signed by both parties, that is added during the term, constitute the entire agreement ( "Agreement ") between the parties. Customer and AT &T Missouri agree that ECD shall be provided under a 12 month term plan, commencing on the Agreement date and that ECD will be provided pursuant to the terms and conditions contained herein. At the end of the 12 month term this Agreement will automatically renew for up to 2 (two) additional 12 month terms unless terminated by either party with 30 days written notice. I. DESCRIPTION AND SCOPE A. Emergency Warning Call Database Extract provides a Public Agency as defined in § 190.300 (6), RSMo. ( "Customer ") with a file of 9 -1 -1 record data from the Enhanced 9 -1 -1 Service solely for the purposes of delivering or assisting in the delivery of emergency services pursuant to United States Code Title 47 §222(g). Emergency services means 9 -1 -1 emergency services and emergency notification services. B. Customer must be an existing "911 customer" obtaining Universal Emergency Number Service (911) under Southwestern Bell Missouri General Exchange Tariff, Section 28 Paragraph 28.1.3 who will use ECD for purposes of delivering or assisting in the delivery of emergency services pursuant to United States Code Title 47 §222(g). Customer agrees that each of its employees and authorized agents receiving or having access to ECD information will be informed that such information is subject to the terms and conditions of this Agreement. C. 9 -1 -1 record data as described in sub - paragraph I. of this section I. of this Agreement is confidential and proprietary. D. 9 -1 -1 record data is provided to Customer for the purpose of delivering or assisting in the delivery of emergency services and may not be used or disclosed by Customer, or its agents or employees, for any other purpose. All other uses are prohibited and Customer is responsible for maintaining the confidentiality of the 9 -1 -1 record data. E. 9 -1 -1 record data for all subscribers served by the requesting Customer, regardless of telecommunications carrier or class of service, will be included in ECD. F. ECD information may not be reproduced in any manner, unless specifically authorized in writing by AT &T Missouri. Upon request, the Customer will promptly return to AT &T Missouri all 1 ECD information in a tangible form or certify to AT &T Missouri that such information has been destroyed. G. ECD may be requested, at a maximum, once per month and will be delivered within 21 working days of receipt of a written Service Order Authorization. H. Customer acknowledges that the information contained in ECD will reflect data that exists in the AT &T Missouri 9 -1 -1 database as of the day the extract is pulled. The ECD, when delivered to the customer, will identify the extract pull date. I. ECD will consist of the following 9 -1 -1 record data elements in each extract to the extent they exist in the AT &T Missouri 9 -1 -1 database: Customer Name Telephone Number Service Address J. The prices set forth in the Service Order Authorization do not include Missouri Public Service Commission or Federal Communications Commission ( "FCC ") surcharges or fees or applicable taxes. Such surcharges, fees, and applicable taxes shall be assessed on the Customer's bill. IL BILLING AT &T Missouri shall bill, and Customer shall pay bills, in accordance with AT &T Missouri's general billing practices and this Agreement. All payments shall be due within thirty (30) days from the date of receipt by Customer of the invoice. Late payments shall be assessed a late payment charge as provided in Southwestern Bell Missouri General Exchange Tariff, Section 17.6.1. Notice of any claims for overbilling or underbilling must be given to the other party within 2 years from the date of the invoice containing the alleged overbilled or underbilled charges, otherwise such claims are waived. III. FORCE MAJEURE AT &T Missouri shall not be liable for any loss or damage resulting from any cause beyond its reasonable control, such as, but not limited to, fire, explosion, lightning, flood, earthquake, power surges or failures, strikes or labor disputes, floods, storms, acts of God, war, civil disturbances, acts of civil or military authorities or the public enemy, delays caused by Customer or Customer's service or equipment or any other causes beyond AT &T Missouri's control. Upon occurrence of any such event and to the extent such occurrence interferes with AT &T Missouri's performance of this Agreement, AT &T Missouri shall be excused from performance during the period of such interference provided that it uses its best efforts to avoid or remove such causes of nonperformance. Further, in the event of a delaying 2 condition having more than ninety days duration, the Customer may terminate this Agreement without liability. IV. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, AND INDEMNITY A. ECD is provided solely for the benefit of Customer. The provision of ECD shall not be interpreted, construed, or regarded as being for the benefit of or creating any obligation toward, or any right of action on behalf of, any third person or other legal entity, including end users of AT &T Missouri or any Other Carriers. B. AT &T Missouri's liability for any losses or damage arising from errors, defects, failures, or malfunctions of ECD, even if caused by the negligence of AT &T Missouri, its employees, agents, or affiliates, shall not exceed the non - recurring charge for such ECD. C. Customer agrees to release, indemnify, defend, and save harmless AT &T Missouri, its employees, agents, parent company, and affiliates of and from all liabilities, claims, suits, actions, damages, costs, judgments, and actions of every name and description brought by or on behalf of Customer or any other person or entity arising out of or related to the use or attempted use or the performance or nonperformance of ECD, whether caused by the acts or omissions, including negligence, of Customer, its agents, employees, or affiliates; the acts or omissions, including negligence, of AT &T Missouri, its agents, employees, or affiliates; and/or the acts or omissions, including negligence, of any other person or entity. Customer and participating governmental units and agencies agree to purchase and maintain adequate insurance against all such liabilities, including contractual indemnification liability insurance, naming AT &T Missouri as an additional insured. D. ANY AND ALL IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED AND EXCLUDED FROM THIS AGREEMENT. IN NO EVENT SHALL AT &T MISSOURI, ITS AFFILIATES, DIRECTORS, OFFICERS, AND EMPLOYEES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, TOLL FRAUD, LOSS OF USE, LOSS OF DATA, LOSS OF OR DAMAGE TO PROPERTY OR PERSON, AND PHYSICAL, MENTAL OR EMOTIONAL DISTRESS, DAMAGES, OR INJURIES ) SUSTAINED OR INCURRED IN CONNECTION WITH: 1) THE USE OR ATTEMPTED USE OR THE PERFORMANCE OR NONPERFORMANCE OF THIS SERVICE; 2) CAUSES BEYOND THE REASONABLE CONTROL OF AT&T MISSOURI; 3) ANY SERVICE, PRODUCT, OR ACTION OF ANY PERSON OTHER THAN AT &T MISSOURI, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS; OR 4) ANY OTHER CAUSE RELATED IN ANY WAY TO THIS SERVICE. 3 V. TERMINATION A. Notwithstanding any other provision to the contrary, either party may terminate this Agreement upon thirty (30) days written notice. If Customer's use of ECD causes immediate, serious and substantial harm or damage to any person, entity or property, AT &T Missouri may terminate upon shorter notice. B. AT &T Missouri is regulated by certain rules, regulations and orders of the Missouri Public Service Commission and the FCC. AT &T Missouri 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") and the Telecommunications Act of 1996. In the event that this Agreement, or any part thereof, is subsequently reasonably deemed to be, or AT&T Missouri in good faith at its sole discretion believes this Agreement or any part thereof to be, in conflict with any such rules, regulations and orders, AT &T Missouri may terminate or modify this Agreement or any affected Addendum without liability. If such modified Agreement is not commercially practicable, in the opinion of either party, then the parties agree to meet promptly and discuss any necessary amendments or modifications to this Agreement. If the parties are unable to agree on necessary amendments or modifications in order to comply with any Laws, then either party may terminate this Agreement immediately. In the event of such termination, Customer will pay AT &T Missouri all amounts due under this Agreement up to and including the effective date of termination. VI. DISPUTE RESOLUTION A. Mediation. If Escalation of a dispute does not lead to a mutually agreeable solution, the parties may retain a mediator to aid the parties in their discussions and negotiations. Any mediator opinion shall be strictly advisory and non - binding, and no opinion expressed by the mediator shall be admissible in any arbitration or court proceeding. Costs of mediation shall be borne equally by the parties, except that each party shall be responsible for its own attorney's fees and expenses. Mediation is not a prerequisite to Arbitration under Section VI B. B. Arbitration. If the parties are unable to timely resolve a dispute informally through mediation, a party alleging a material breach (the "Moving Party ") of the Agreement may initiate arbitration by giving the other party a written Arbitration Demand Notice. The parties shall jointly select a single arbitrator knowledgeable of the general subject matter. If the parties are unable to agree upon an arbitrator within thirty (30) business days of the Arbitration Demand Notice, the Moving Party may request that the American Arbitration Association ( "AAA ") appoint an arbitrator. Arbitration of the dispute shall commence no later than ninety (90) days after appointment of the arbitrator and shall be conducted in a location agreed upon by the parties and in accordance with the Commercial Arbitration Rules of the AAA, except as modified herein. The arbitrator may set time and other limits for the presentation of each party's case, its memoranda and other submissions and shall issue a written decision supported by law and substantial evidence and stating in reasonable detail the basis for the award as promptly as the circumstances demand and permit. The 4 arbitrator shall have no authority in excess of a court having jurisdiction over the matter. Additionally, the arbitrator shall not alter, revoke or suspend any provision of this Agreement. The award shall be binding and deemed enforceable in any court of competent jurisdiction. Each party acknowledges that it is giving up judicial rights to a jury trial, discovery and most grounds for appeal under the foregoing provision. C. Prior to the time an arbitrator is appointed, either party may seek one or more temporary restraining orders in order to preserve and protect the status quo. Neither the request for, nor denial of, such temporary restraining order shall be deemed a waiver of the obligation to arbitrate as set forth herein. The arbitrator may dissolve, continue or modify such temporary restraining order. Any such temporary restraining order shall remain in effect until it expires or is dissolved by the arbitrator, whichever occurs first. D. No provision of this Section shall limit the right of either party to exercise its rights of setoff. The exercise of a remedy does not waive the right of either party to resort to arbitration. During dispute resolution proceedings, including arbitration, the parties shall continue to perform their obligations under this Agreement, except for those obligations directly related to the dispute at issue. E. Except to the extent required by law or regulation or to enforce any award, the parties shall hold, and cause their respective officers, directors, employees, agents and other representatives to hold, the existence, content and result of any mediation or arbitration in confidence. If disclosure is required by law or regulation, the disclosing party shall promptly inform the other party and will, prior to making such disclosure, make all reasonable efforts to obtain a protective order or other confidential treatment and to limit disclosure only to those portions of the document necessary to comply with the applicable law or regulation. VII. 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 AT &T Missouri. Written consent shall not be unreasonably withheld. Any attempted assignment or transfer in contravention of the preceding sentence shall be void. AT &T Missouri may assign or subcontract any portion of this Agreement without Customer's prior written approval. B. The failure of AT &T Missouri 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. Article, section or paragraph headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 5 D. This Agreement sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements, representations or understandings relating to the subject matter hereof. No subsequent agreement between Customer and AT &T Missouri concerning the subject matter of this Agreement, and no modification of this Agreement, shall be effective or binding unless it is made in writing and signed by both parties. E. This Agreement shall be construed in accordance with and be governed by the domestic laws of the State of Missouri. SOUTHWESTERN BELL TELEPHONE COMPANY L.P., d/b /a AT &T Missouri By: By: Print Name:_ Mike Shelton Print Name: Title: _ Department of Public Safety Title: Date Signed: Date Signed: 6 Missouri Emergency Warning Call Database (ECD) Extract Service Order Authorization Description Non - recurring Charge Emergency Warning Call Database - Per request plus $400.00 - Per 10, 000 records $ 24.00 ECD Service Area All Platte County Missouri- County Code 165 911 Selective Router(s) and Applicable Emergency Service Numbers(s): Hedrick Tandem: ESN's Farley- 7 Houston Lake- 13 Lake Waukomis- 16 Platte Woods- 27 Parkville- 28 Riverside- 31 Weatherby Lake- 37 Northmoor- 38 Dearborn- 48 Dearborn- 126 Camden Point- 49 Edgerton- 50 Iatan- 62 Weston- 63 Weston- 74 Platte City- 71 Ferrelview- 73 Tracy- 82 Trimble- 144 Ridgely- 148 Smithville- (in Clay County but 43 dispatched by Platte County) Platte County- 39, 40, 51, 52, 61, 77, 78, 80, 94, 145, 215, 219 County Code Kansas City, MO 165 (spans between 4 counties so only want the records in Platte) ECD Terms Page lof 2 1. Emergency Warning Call Database (ECD) Extract will be provided in accordance with the Terms and Conditions for Emergency Warning Call Database Extract executed by the parties and attached hereto as Exhibit "A" and is offered on a per request basis. 2. Request Interval (check 1) 1 request per month until terminated by Customer 1 request per quarter until terminated by Customer X_ 1 request on demand (but not more frequently than 1 request per month) 3. Any notices required under the Terms and Conditions 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: Customer : Southwestern Bell Telephone, L.P., d/b /a AT &T Missouri: Riverside Public Safety Mike Shelton 2990 NW Vivion Rd Riverside, MO 64150 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. Authorization I, Mike Shelton, on behalf of the Department of Public Safety for Riverside, MO, authorize Emergency Warning Call Database Extract to be initiated for the following described geographical area: All of Platte County, Missouri, which encompasses the ECD Service Area set forth above. APPROVED: APPROVED: Department of Public Safety, Southwestern Bell Telephone, L.P. Mike Shelton d/b /a/ AT &T Missouri: Date: Date: Page 2of 2