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Home My WebLink AboutRES 04-022 RESOLUTION NO. 04-022 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager is hereby authorized to execute a Pay Phone Service Agreement with Southwestern Bell/SBC Public Communications (SBC). The license agreement is attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 27th day of January, 2004. J - Mayor Evelyn M. Lord - Agreement No:c;?Q-7 7513(!0 PAY PHONE SERVICE AGREEMENT This Agreement is entered into on S&n,oZQQ� and is between Q La VVl rtYh-{- ("Customer)and the Public Communications division of SBC Communications Inc.,as defined in Section 8 below("Provider). — (1)_ PAY PHONE SERVICE-Customer hereby grants Provider the exclusive right to install, INTENTIONAL MISCONDUCT.CUSTOMER AGREES THAT NO LIABILITY SHALL operate and maintain Public pay telephones and associated equipment,and to provide ATTACH TO PROVIDER FOR ANY DEFACEMENT OR DAMAGE TO CUSTOMERS Pay Phone service("Services)at the following identified Location(s): PREMISES RESULTING FROM THE EXISTENCE OF PROVIDER'S EQUIPMENT OR THE INSTALLATION OR REMOVAL THEREOF,WHEN SUCH DEFACEMENT OR DAMAGE IS NOT THE RESULT OF THE NEGLIGENCE OF PROVIDER OR ITS EMPLOYEES. (10)REMEDIES FOR TOM R'S BREACH — Customer acknowledges that the Unless otherwise specified in this Agreement the term"Location"as used herein means Locations covered by this Agreement are unique,and that any breach of this Agreement all real property(including buildings and other structures)associated with and/or desig- by Customer would irreparably damage Provider by depriving Provider of its rights to nated by a given street address.Provider and Customer shall,prior to the initial instal- provide Services at such unique Locations.Acoordingly,Provider shall have the right of lation hereunder of Services at Customers Locations,mutually agree upon the quanti- specific performance of its obligations hereunder in the event a breach is found,in addi- ties and types of pay phone equipment,including peripheral equipment,to be installed tion to all other rights and remedies available to it at law or in equity. and the specific placement thereof on the Customers Locations.Pay phone equipment (71)RENEWAL—Unless either party includes,but is not limited to,telephone sets,wiring,conduit,and any peripheral equip- eq Provides written notice of thirty termination 30)d ys the other via ment such as enclosures, si na e, bumper certified mail,return receipt requested, g fewer than auto tics days prior to the 9 9 p posts, shelves, and pedestals Termination Date of this Agreement,this Agreement will automatically renew for a one11 nance of the Provider shall bear all costs associated with installation and mainte- (1)year term at the commission rates set forth in Exhibit A. manta of the Equipment,and all Equipment shall remain the property of Provider. Provider reserves the right to reconfigure its Services at the Locations(e.g.,no incom- (12)SUCCESSORS AND ASSIGNS—Either party may,at any time,assign this Agreement ing calls,no coin acceptance,line concentration,changes in coin drop rate)at any time. or any portion hereof,to an affiliate or any third party.This Agreement shall benefit Except as otherwise provided herein,after initial installation,any change in the quanti- and/or be binding upon the successors,assigns,lessees,or beneficiaries of both par- ties,types of Equipment,or specific Placement thereof shall be by mutual agreement ties.At all times during the term of this Agreement,unless agreed otherwise in writing, (which agreement shall not be unreasonably withheld)of the parties.Customer agrees Provider shall retain the right to directly negotiate with and directly pay any compensa- to pay Providers standard relocation fee for any pay phone which,at the request of lion hereunder to Customer.Customer shall provide Provider with notice of,not less Customer,is relocated Nom its original placement at a Location, than sixty(60)days prior to,arty sale,lease,sublease,or other transfer or change of _ ownership of the above Identified Locations to any third party.Upon request by Provider, (2) Provider shall have the right to provide Services for an Initial Term of Customer shall provide a copy of the salesftransfer one(1) /two(2)O/three(3)O years beginning on FEB W B Oi,_ ('Effective agreement by which the property or Date'and expiring on control thereof was conveyed,or such other documentation sufficient to verify the P ng �_3i,21:DS("Termination Date").During the term of this saiehransfer. Agreement,Customer shall not permit any other persons or entity to provide public pay telephone service at the Location(s).If Customer,in violation of this Agreement allows (13)PUBLIC NUISANCEIBUSINESS CLOSURE-ff,during the term of this Agreement, another party to install one or more public pay telephones at the Locations where Provider removes its Equipment from any location at the request of Customer due to Providers Equipment is installed,then,in addition to its other remedies.Provider may reasons of business closure or Provider removes said Equipment at the request of the remove its Equipment without liability or penalty and terminate this Agreement. Customer or as required by local ordinance due to public nuisance and than,during (3) COMMISSION PAYMENTS—Unless mutually agreed to otherwise by both parties, what would have otherwise been the remaining term of the Agreement another business Provider shaft make payments on a regular basis to Customer during the initial contract opens at the same location in which business Customer has any ownership or financial interest or said public nuisance y abated.Provider may reinstall its equipment for the term specified in Section(2)above,according to the Commission Schedule shown as Exhibit A.which is attached to and made part of this Agreement.Customer and Provider dance of the Agreement.In any case,m the event Providers Equipment is removed agree that the terns and conditions of this Agreement,all information regarding usage for any of the reasons staled to this provision,Customer writ not allow any or the term at and revenues earned by the pay telephones covered by this Agreement,and com- other than Providers to be installed at the Customer location(s)in question for the term missions paid to Customer are confidential and proprietary and shall not be disclosed N this Agreement to any third party. (741 NOTICES—Any notice given under this Agreement shah be made in writing and sent (4) CARRIER SELECTION—Customer herein grants Provider the exclusive autority to via certified mail,return receipt requested,as follows: ad as Customer's agent for the purpose of selecting and/or changing the Preferred FOR PROVIDER FOR CUSTOMER Interexchange Carrier(PIC)on the pay phones covered by this Agreement. Customer SBC Public Communications and Provider agree that Provider shall have the sole right to select and contract with, 134 N.W.Sixth Street,Floor 4 change, and/or restrict the local and long distance carriers (both intraLATA and Evansville,IN 47708 interLATA)for all Payphones covered by this Agreement. (5) REMOVAL OF PAY TFI EPHONES—Provider may,upon reasonable notice,remove Atn.:Manager—Contract Admin. Attn.: any pay phone that has failed to generate sufficient revenue to meet such revenue (15)REGULATORY APPROVALC—This Agreement is subject to the applicable provisions requirements determined solely by Provider,or when a significant safety hazard to tele- of Providers tariffs directly or indirectly relating to Services,and to all other govem- phone users or Provider employees exists.In the event such removal renders a mental orders,rules,regulations,or requisite approvals as may apply from time to time. Location without a pay telephone(i.e.,all pay phones are removed),this Agreement In the event any regulatory,legislative,or judicial order.in the reasonable,opinion of shall then terminate.Provider shall also have the right to remove or relocate any Provider,substantially modifies the rules,regulations,or statutes pertaining to the pay Equipment that,in Providers opinion,has been subjected to excessive theft or vandal- Phone industry(including,but not fimited to,the provision of operator services,the rel- ism. evance and acceptance of calling cards,or the industry's financial arrangements)this (6) USE OF PAY PHONES-The pay phones shall be installed for use by the public in Agreement shall,at Provider's option,be subject to termination or negotiated modifhea- making outgoing calls. Customer shall not use the pay phones covered by this bon.Termination by Provider hereunder shall be upon thirty(30)days prior written Agreement in the conduct of its business or use the telephone number assigned there- notice' to in its advertising or in any directory listing. (16)GOVERNING LAW—The validity of this Agreement,the construction and enforcement (7) OTHER RrSPONSIAII ITI S OF CUSTOMER—Customer shall also be responsible of its terms and the interpretation of the rights and duties of the parties shall be gov- for: erred by the laws of the state of Texas. a) providing safe,unobstructed access to the pay phones covered by this Agreement, (17)AUTHORITY—Both Customer and Provider represents to the other that it has full including any access to special purpose phones(e.g.,drive-ups),and electrical power, authority to enter into and secure performance of this Agreement and that the person at Customers expense,for fighting necessary for the use of such pay phones. signing this Agreement on behalf of the party has been properly authorized to enter into b Lakin reasonable this Agreement.Customer warrants that it has the right of possession to the Locations g precautions to protect Providers property from damage,vandalism, on which Provider shall install and maintain Services hereunder,and is otherwise duly theft,or hazardous conditions and promptly reporting any service failures to Provider. authorized to grant permission to Provider to install and maintain such Service thereon. c) prohibiting any person(other than employees,contractors,or agents of Provider)from If Customer is not the owner of the Locations(or portions thereof),Customer will have connecting,disconnecting,moving,or altering any of Provider's Equipment. breached this warranty and Customer will indemnify,reimburse,and hold Provider d) displaying all mutually agreeable signs and prohibiting the affixing or displaying of any harmless against any and all claims made by any entity,Including but not limited to the advertising or other signs not authorized by Provider on the Equipment- true owner of the business or Locations or any successor,relating to the Services pro- e) allowing Provider personnel access to Customers Locations during normal business vided under this Agreement.Customerfurt her represents that t does not have any other hours for pay Phone collection or installation,repair.or removal of Equipment. agreement,oral t written, at conflicts with this Agreement Each party further acknowledges that t has read this Agreement,understands and accepts it and agrees (a) PROVIDER—Provider shall mean one or more of the following depending upon the to be bound by all its terms and conditions. _ state(s)in which space is provided hereunder for pay phone service:SBC Pacific Bell (18)SURVIVAL OF OBLIGATIONS— Telephone Company,a California corporation;SBC Nevada Bell Telephone Company, Both Pe Ries'obligators under this Agreement which a Nevada corporation;Southwestern Bell Telephone,L.P.a limited partnership under A their nature are intended r continue beyond the termination or expiration of this - - the laws of the state of Texas providing pay phone service in the states of Arkansas, Agreement shah survive the termination or expiration of thisAgreement. - Kansas,Missouri,Oklahoma and Taxes;SBC Ameritech Illinois,an Illinois (19)RIGHT TO RE—Either party may terminate this Agreement immediately following corporation. SBC Ameritech Indiana,an Indiana corporation;SBC Ameritech Michigan,a Michigan written notice in the event tlha other party is in default as to any of its material oblige-: --- - --- -- -- corporation;SBC Ameritech Ohio.an Ohio corporation;Wisconsin Bell,Inc.,dlb/a SBC bons hereunder,provided that(a)the defardllhg party has received a written notice con- --- Ameritech Wisconsin,a Wisconsin corporation;SNET America,Inc.a Connecticut cor- ta"ni g a reasons*complete descriptor of the default and(b)the defaulting party has poration.and,where the state in which such space is provided is other than one of the failed to cure the default within thirty(30)days of receiving such notice. - - - foregoing,Ameritech Payphone Services,Inc.,a Delaware corporation. (20)NON-WAIVFR-No come of dealing or failure of Provider to strictly enforce any term, (91 l hsRll hrY AND IND MNIFt ATIDN_PROVIDER WILL PROVIDE PAYPHONE SER. right,obligation,or Provision of this Agra~or to exercise any option provided here- VICE PURSUANT TO ITS APPLICABLE TARIFFS,INCLUDING ANY LIMITS OF Lit- under shall be construed as a waiver of such provision, BILITY CONTAINED THEREIN,AND ANY APPLICABLE LOCAL,STATE,AND FED- (21)FORCE AJ R —Neither parry shah be gable for failure to perform is obligations ERAL REGULATIONS.CUSTOMER AGREES THAT IN NO EVENT WILL PROVIDER under this Agreement if prevented from doing so by a cause or causes which could riot BE LIABLE FOR INTERRUPTION OF SERVICE OR ANY PUNITIVE,EXEMPLARY, with reasonable diligence be controlled or prevented by the party,and are otherwise SPECIAL,OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER RESULT- referred to as Acts of God,indudig civil disobedience and labor disputes. - - ING THEREFROM,INCLUDING LOST STATION REVENUES.AS TO ALL THIRD 22 ENTIR A 11 EVENT— - PARTY CLAIMS,LOSSES,COSTS,DAMAGES,EXPENSES(INCLUDING ATTOR. ( )- This Are understanding together with n the A and any other NEYS'FEES)OR LIABILITIES OF ANY KIND FOR DAMAGES TO PROPERTY,PER- Providers represents the entire Urdersns aril between the Prior c regarding Providers Services on the iderstan Locations and supersedes 9 SONAL INJURY,OR DEATH('CLAIMS"),PROVIDER AND CUSTOMER WILL EACH para"d"e all prior communica- BE RESPONSIBLE FOR,AND INDEMNIFY AND DEFEND THE OTHER AGAINST, shone' agreements and untie amend relating thereto. The provisions of this EACH PARTY'S OWN,OR ITS AGENTS'OR EMPLOYEES'NEGLIGENT ACTS AND Agreement may rat be roes.modified,amended,or waived except by a written instrument duty executed by bond parties. PROVIDER CUSTOMER By By Name-Print or Type Name-Print or Type I Title-Print or Type Title-Print or Type Da Signature 454000(03.2002) Business Telephone ate Business a EXHIBIT "A" Federal Tax LOA001al Socially No. FORM N51 aa-1 SI 3(. Agreement No. EXHIBIT A PAY PHONE SERVICE AGREEMENT COMMISSION SCHEDULE VARIABLE COMPENSATION WITH PROFIT SHARING COMPENSATION — Provider shall pay on a regular basis to Customer for the period described in Section 2, a variable percentage of the total gross revenue less monthly access line charges, collected on all coin paid local exchange and IntraLATA toil calls placed from each individual Provider pay phone covered by this Agreement. The rate for coin paid local exchange and IntraLATA toll calls will be determined by the schedule below: MONTHLY LOCAL and INTRALATA COIN REVENUE COMPENSATION RATE Less than $160.00 None $160.01— $190.00 5% $190.01 — $250.00 12% $250.01 and Above 25% By By PROVIDER CUSTOMER - Date: Date: Proprietary Information The information contained in this Agreement is not for use or disclosure outside Provider,Customer,their affiliated companies and their third party representatives,except under written Agreement by the contracting Parties. N51 Mar.'02 Agreement No. IZQQ ,-1 RIDER TO PAY PHONE SERVICE AGREEMENT This Rider is made a part of the Pay Phone Service Agreement between Provider and City of Beaumont ("Customer")dated January 2004 Provider shall provide, and Customer hereby grants Provider permission to install, maintain, and collect, pay phone service at the following locations: Location(s) 2835 Texas Av Beaumont TX 285 Liberty Beaumont TX 2930 Gulf Beaumont TX 3000 Pine Beaumont TX. 3295 S 4"'St. Beaumont TX. 3500 Fannin Beaumont TX 3671 E Lucas Beaumont TX. 3795 Waco Beaumont TX 4301 Cleveland Av Beaumont TX By. By. PROVIDER CUSTOMER Date: Date: Proprietary Information The information contained in this Agreement is not for use or disclosure outside Provider,Customer,their affiliated companies and their third party representatives,except under written Agreement by the contracting Parties: AM 13 89 May'02 Agreement No. ��5 RIDER TO PAY PHONE SERVICE AGREEMENT This Rider is made a part of the Pay Phone Service Agreement between Provider and City of Beaumont ("Customer") dated January 2004 Provider shall provide, and Customer hereby grants Provider permission to install, maintain, and collect, pay phone service at the following locations: Location(s) 5305 Tyrrell Park Beaumont TX 6450 Gladys Beaumont TX 6455 College Beaumont TX 680 N 7d' Beaumont, TX 690 Irma Beaumont TX. 700 Orleans Beaumont TX 701 Main Beaumont TX 799 Liberty Beaumont TX 800 Pearl Beaumont TX By: By. PROVIDER CUSTOMER o _ Date: Date: Proprietary Information The information contained in this Agreement is not for use or disclosure outside Provider,Customer,their affiliated companies and their third party representatives,except under written Agreement by the contracting Parties. AM 13 89 May'02 Agreement No. 5 (0 RIDER TO PAY PHONE SERVICE AGREEMENT This Rider is made a part of the Pay Phone Service Agreement between Provider and City of Beaumont ("Customer") dated January 2004 Provider shall provide, and Customer hereby grants Provider permission to install, maintain, and collect, pay phone service at the following locations: Location(s) 4070 Reed Beaumont TX 950 Washington Blvd. Beaumont TX 720 Doucett Beaumont TX 2209 Calder Beaumont TX 2925 Fannin Beaumont_TX 1002 Laurel Beaumont TX 1072 Av C Beaumont TX 1090 Magnolia Beaumont TX 1110 Park Beaumont TX By: By: PROVIDER CUSTOMER Date: Date: Proprietary Information The information contained in this Agreement is not for use or disclosure outside Provider,Customer,their affiliated . companies and their third party representatives,except under written Agreement by the contracting Parties. AM 1389 May'02 Agreement No. oZa'7 . RIDER TO PAY PHONE SERVICE AGREEMENT This Rider is made a part of the Pay Phone Service Agreement between Provider and City of Beaumont ("Customer") dated_ January 2004 w Provider shall provide, and Customer hereby grants Provider permission to install, maintain, and collect, pay phone service at the following locations: Location(s) 1301 Wiess Beaumont TX 1550 Hale Beaumont TX 1605 Dowlen Rd Beaumont TX 190 N 10 St. Beaumont TX. 2000 Cottonwood Beaumont TX. 201 E Lavaca Beaumont TX 2115 Calder Beaumont TX. 2490 W Virginia Beaumont TX 2755 Av C Beaumont TX By; By: PROVIDER CUSTOMER Date: Date: Proprietary Information The information contained in this Agreement is not for use or disclosure outside Provider,Customer,their affiliated companies and their third party representatives,except under written Agreement by the contracting Parties. AM 1389 May'02 Agreement No. t:;-;)Q—7 5 l 3 6p RIDER TO PAY PHONE SERVICE AGREEMENT This Rider is made a part of the Pay Phone Service Agreement between Provider and City of Beaumont ("Customer") dated January 2004 Provider shall provide, and Customer hereby grants Provider permission to install, maintain, and collect, pay phone service at the following locations: Location(s) 801 Main Beaumont TX 877 Main Beaumont TX 950 Washington BI Beaumont TX By: By. PROVIDER CUSTOMER Date: Date: Proprietary Information The information contained in this Agreement is not for use or disclosure outside Provider,Customer,their affiliated companies and their third party representatives,except under written Agreement by the contracting Parties. AM 13 89 May'02 LIST OF PAY PHONES SBC WILL INCLUDE WITH NEW CONTRACT AS COMMISSIONABLE PHONES AS OF 01/15104 PHONE ADDRESS ACCESS/ADDITIONAL INFO NUMBER 1 833-6705 799 Liberty City Bus Pavillion 2 833-7026 T9-9 Liberty Citv Bus Pavillion 3 835-8044 2835 Texas Ave. Outside by Laundry 4 835-8066 877 Main Lobby City Hall 5 835-8103 690 Irma Church next to Comm. Chapel 6 835-8119 4301 Cleveland Ave. Corner of Fillmore& Cleveland 7 835-8131 285 Liberty Near snack wagon across from GSU 8 835-8138 3500 Fannin Transit Shelter 9 835-8158 1301 Wiess Magnolia Park 10 835-8201 2000 Cottonwood Cottonwood Park 11 835-8208 3000 Pine 3490 Pine St. Park 12 835-8275 700 Orleans Municipal Court-First Floor Lobby 13 835-8302 1002 Laurel Bus Stop 14 835-8306 190 N. 10th St. Parkin lot across from Central High School 15 835-8309 680 N. 7th St. Ri ht of Way sidewalk 16 835-8319 2755 Ave. C. Roberts Park 17 835-8327 201 E. Lavaca Alice Keith Park 18 835-8848 1550 Hale Right of Way outside Magnolia Gardens Housin Project 19 835-8910 720 Doucett Bus Stop 20 835-9028 701 Main Civic Center-Outside of building 21 835 79108 2209 Calder Ri ht of Wa Bus Stop 22 835-9128 950 Washington Blvd. Public Health De t. --Health Serv. II Bldg. -Waiting Room 23 835-9136 950 Washin ton Blvd. Public Health Dept. -near entrance UTMB 24 835-9169 950 Washington Blvd. Public Health Dept. —Health Serv. I Bldg. -Waiting Room 25 835-9224 2903 Gulf Sterling Pruitt Activity Center 26 835-9306 1072 Ave. C Fletcher Park 27 835-9333 801 Main Riverfront Park 28 835-9391 701 Main Julie Rogers Theatre Lobby 29 835-9499 1090 Magnolia Transit Stop next to Bud's 30 835-9539 2925 Fannin Central Park Comm. Bldg. 31 835-9609 1110 Park Outdoor @ Bus Shelter 32 835-9631 700 Orleans Municipal Court-First Floor Lobby 33 835-9666 2115 Calder Corner of 5th &Calder 34 835-9730 Reed Ri ht of Way Alice Keith Park 35 ,g4U10 earl Public Library 36 .4th St. Outd oor Bus Sto Ri ht of Wa 37 .Vir inia S rott Park 38 .Vir inia 39 842-9824 5305 T rrell Park Golf Course/Club House 40 842-9845 3795 Waco Liberia Park 41 866-9041 1605 Dowlen Rd. Miller Library -- --- 42 866-9052 6455 Colle a Outdoors-Tennis Courts/Tennis Ctr. 43 866-9971 16450 Gladys Rogers Park 44 866-9972 6450 Gladys Rogers Park 45 899-9089 3671 E. Lucas Across from Shamrock 01/16/2004 08:51 AM RIDR2003.WK4 Page 1 ti..7LJ1J City of Beaumont Council Agenda Item 11' TO: City Council FROM: Kyle Hayes, City Manager PREPARED BY: Kirby Richard, Central Services Director MEETING DATE: January 27, 2004 AGENDA MEMO DATE: January 21, 2004 REQUESTED ACTION: Council consider authorizing the City Manager to execute a Pay Phone Service Agreement with Southwestern Bell/SBC Public Communications (SBC) RECOMMENDATION Administration recommends authorizing the City Manager to execute a one-year Pay Phone Service Agreement with SBC to maintain public pay telephones on real property owned by the City, including buildings and other structures. BACKGROUND SBC provides public pay phones throughout the city to both private and governmental entities. Their pay phones are located in buildings and structures, as well as within City right-of-ways. SBC compensates the City for the right to place their equipment on city-owned property, as they do all customers, by paying a commission. The commission is based on a percentage of revenues generated by each pay phone each month. The City entered into a three-year Agreement with SBC on January 31, 2000. That Agreement. expired January 31,2003. The Agreement provided for automatic one-year renewals;the first one- year renewal will expire January 31, 2004. Rather than enter into another one-year automatic renewal on January 31,2004,SBC wishes to enter into a new one-year Agreement,primarily to revise the list of pay phones on which it will pay the City compensation. The revised list removes 23 phones from the previous Agreement. SBC's justification for the removal of these phones is because they each generate less than 50¢per day on average in revenues, and it is cost prohibitive for SBC to maintain them. SBC has experienced a significant decrease in pay phone usage in the past several years due to the popularity of cellular phones. SBC Pay Phone Service Agreement January 21,2004 Page 2 SBC will remove the phones from service unless the City elects to bear the cost of the monthly, access charge,which is$50 per phone, or$1,150 per year. Research indicates removal of 20 of the 23 pay phones in question is warranted; the City will retain three. The new Agreement is for the remaining 45 pay phones on City property. Currently, SBC pays at a maximum rate of twenty percent(20%)with no minimum average usage, and twelve percent (12%) on InterLATA long distance charges based on revenues collected. The new proposed Agreement will provide for a compensation rate of 5% - 25% on coin paid local exchange and IntraLATA toll calls. A copy of the new Pay Phone Service Agreement in its substantial form is attached for your review. The new Agreement will begin February 1, 2004 and expire January 31, 2005. BUDGETARY IMPACT Based on previous years, and with the removal of 20 pay phones,we anticipate commissions paid by SBC to the City during the next 12 months will be less than$1,000. PREVIOUS ACTION None. SUBSEQUENT ACTION None. RECOMMENDED BY City Manager and Central Services Director. C:1DmansbW&WWU"&Wy0 =WWPDOC&Aff mMAS'M Ha-SWC AWa J-.IUWVge 1b,N.Agjwm.MW