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HomeMy WebLinkAbout2008 CON Cox Communications - Lease Data CircuitAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND COXCOM, INC.; COX CALIFORNIA TELCOM, LLC THIS AGREEMENT is entered into this 3rd day of Jtme , 2008, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and COXCOM, INC.; COX CALIFORNIA TELCOM, LLC (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to employ a contractor to provide internet services. WHEREAS, the CITY has determined that the CONTRACTOR is an internet provider and is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY hereby agrees to engage the CONTRACTOR and the CONTRACTOR hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein. The CONTRACTOR represents that all services required hereunder will be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. The CONTRACTOR will perform services as set forth in the attached Exhibit "A". The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CITY may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services. 3. PROJECT COORDINATION AND SUPERVISION. Jamie Hughes hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Wendy Aid thereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit "A"shall not exceed the schedule given in Exhibit "A" (the Base amount) without prior written authorization from the CITY. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A"as determined by the CITY. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY and for furnishing of copies to the CITY, if requested. 5. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event the CONTRACTOR and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR in this Agreement, the City or the CONTRACTOR shall give to the other written notice. Within ten (10) business days, the CONTRACTOR and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR. 6. LENGTH OF AGREEMENT. Completion dates or time durations for specific portions of the Project are set forth in Exhibit "A". 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. [INTENTIONALLY OMITTED] 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employee of the CITY and are not entitled to any of the rights, benefits, or privileges of the CITY's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR's employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CITY; CONTRACTOR may assign this Agreement and all of its rights hereunder without the City's consent to any entity which controls, is controlled by or is under common control with CONTRACTOR; to any entity succeeding to CONTRACTOR's interest in the Franchise area; or to any entity pursuant to a merger, sale or exchange of stock or sale or exchange of assets. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or subcontractors, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its subcontractor(s) shall require the subcontractor to adhere to the applicable terms of this Agreement. 2 City's Standard Agreement — May 2008 revision 9. CONTROL. Neither the CITY nor its officers, agents or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR's employees except as herein set forth, and the CONTRACTOR expressly agrees not to represent that the CONTRACTOR or the CONTRACTOR's agents, servants, or employees are in any manner agents, servants or employees of the CITY, it being understood that the CONTRACTOR, its agents, servants, and employees are as to the CITY wholly independent contractors and that the CONTRACTOR's obligations to the CITY are solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable State and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR, and each of its subcontractors, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 12. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR's employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR's professional performance or the fumishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the CITY's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONTRACTORshall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or 3 Gays Standard Agreement — May 2008 revision medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. INDEMNIFICATION AND HOLD HARMLESS. CONTRACTOR shall indemnify and hold Customer and its respective affiliates, subcontractors, employees or agents (collectively, "City Parties") harmless from and against (i) any claim, actions or demands relating to or arising out of any bodily injury and/or property damage to the City Parties in connection with CONTRACTOR's installation or operation of the Services and (ii) any claim that the Services provided by CONTRACTOR under this Agreement infringes on the patent, copyright, trademark or other intellectual property right of any third party, except to the extent any such claim arises from (i) the City Parties' misuse of the CONTRACTOR equipment, (ii) City Parties' combination of the CONTRACTOR equipment with other infringing equipment, (iii) any content or software displayed, distributed or otherwise disseminated by the City, its employees, or users of the Services, or (iv) the negligence, omission, or intentional misconduct of the City Parties." 16. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the Califomia Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all 4 City's Standard Agreement May 2008 revision claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 17. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its subCONTRACTORs, when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: A. [INTENTIONALLY OMITTED] B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non - owned, and hired vehicles ("any auto"). C. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/$2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. D. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. Said policies, except for the professional liability and workers' compensation policies, shall name the CITY and its officers, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. H. Any aggregate insurance limits must apply solely to this Agreement. i. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY's Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. K. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to the CITY. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of 5 City's Standard Agreement - May 2008 revision the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attomey's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attomey's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 20. TERMINATION/DEFAULT. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY in the event such breach or failure is not cured within thirty (30) days after CONTRACTOR's receipt of written notice of default from the CITY specifying the nature of the default in reasonable detail; provided, however, that such 30-day period shall be extended for the time reasonably required if the nature of the default requires additional time, as long as CONTRACTOR has commenced the cure and is diligently prosecuting such cure to completion; however, in no event shall the cure period be extended for a period in excess of ninety (90) days after CONTRACTOR's receipt of written notice of default from the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. D. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. E. The CITY shall be in default of this Agreement if The CITY fails to perform any term, covenant or condition of this Agreement to be performed by The CITY and such failure is not cured within thirty (30) days after receipt of written notice from CONTRACTOR specifying the nature of the default in reasonable detail; provided, however, 6 City's Standard Agreement - May 2008 revision that such 30-day period shall be extended for the time reasonably required if the nature of the default requires additional time, as long as Licensor has commenced the cure and is diligently prosecuting such cure to completion; however, in no event shall the cure period be extended for a period in excess of ninety (90) days after the CITY's receipt of written notice of default from CONTRACTOR. In the event of any such default by Licensee and at the CITY's refusal to cure such default, CONTRACTOR shall be entitled, at CONTRACTOR's option, to terminate this Agreement and to remove all of equipment and facilities, improvements or personal property located at the the Project at the CITY's expense. F. If The CITY fails to comply with any material provision of this Agreement within the applicable cure period, including, but not limited to failure to make payment as specified, then CONTRACTOR, may pursue one or more of the following courses of action upon notice to The CITY as required by tariff or applicable law: (i) terminate service whereupon all sums then due and payable shall become immediately due and payable, (ii) suspend all or any part of Services, and/or (iii) pursue any other remedies, including reasonable attorneys' fees, as may be provided at law or in equity. 21. LIMITATION OF LIABILITY. CONTRACTOR SHALL NOT BE LIABLE FOR DAMAGES FOR FAILURE TO FURNISH OR INTERRUPTION OF ANY SERVICES, NOR SHALL CONTRACTOR BE RESPONSIBLE FOR FAILURE OR ERRORS IN SIGNAL TRANSMISSION, LOST DATA, FILES OR SOFTWARE DAMAGE REGARDLESS OF THE CAUSE. CONTRACTOR SHALL NOT BE LIABLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION OR REMOVAL OF EQUIPMENT UNLESS CAUSED BY THE NEGLIGENCE OF CONTRACTOR. UNDER NO CIRCUMSTANCES WILL CONTRACTOR BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS ARISING FROM THIS AGREEMENT 22. WARRANTIES. EXCEPT AS PROVIDED HEREIN, THERE ARE NO OTHER AGREEMENTS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE SERVICES. SERVICES PROVIDED ARE A BEST EFFORTS SERVICE AND CONTRACTOR DOES NOT WARRANT THAT THE SERVICES, EQUIPMENT OR SOFTWARE SHALL BE ERROR -FREE OR WITHOUT INTERRUPTION. CONTRACTOR MAKES NO WARRANTY AS TO TRANSMISSION OR UPSTREAM OR DOWNSTREAM SPEEDS OF THE NETWORK. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: 7 Citys Standard Agreement - May 2008 revision To the CITY: To the CONTRACTOR: Ron Williams, IT Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 CoxCom, Inc.; Cox California Telcom, LLC 5159 Federal Blvd. San Diego, CA 92105 Attn: Richard Gonzalez With a copy to: Cox Communications, Inc. 1400 Lake Hearn Drive, N.E. Atlanta, GA 30319 Attn: Mark F. Padilla, Esq., Assistant General Counsel Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONTRACTOR has a financial interest as defined in Govemment Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. ❑ If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. The CONTRACTOR shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 8 Citys Standard Agreement • May 2008 revision 23. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Entire Agreement. The terms and conditions of this Agreement, supplemented by that the terms and conditions of that certain ICB Commercial Services Agreement dated by and between CONTRACTOR and THE CITY (the "Cox Terms and Conditions"), which is attached hereto as Exhibit "B" and made a part hereof, and the Scope of Work, which is attached hereto as Exhibit "A" and made a part hereof, collectively represent the entire agreement of CONTRACTOR and the CITY with respect to the subject matter hereof, and all agreements entered into prior hereto with respect to the subject matter hereof are revoked and superseded by this Agreement, and no representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein or in other contemporaneous written agreements. This Agreement may not be changed, modified or rescinded except in writing, signed by CONTRACTOR and the CITY, and any attempt at oral modification of this Agreement shall be void and of no effect. Notwithstanding any term or provision of the Agreement to the contrary, in the event of any inconsistency between the terms and conditions of this Agreement and Cox Terms and Conditions as described in Exhibit "B", the terms and provisions of this Agreement shall be controlling for all purposes and in all respects. Notwithstanding the foregoing, CONTRACTOR and the CITY hereby agree and acknowledge that (i) the "Termination Charges" section on the cover page of the Cox Terms and Conditions, (ii) the penultimate sentence of the cover page of the Cox Terms and Conditions, and (iii) Paragraph 9 of the Cox Terms and Conditions shall each be deleted in their entirety. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this 9 Citys Standard Agreement May 2008 revision Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. [SIGNATURES ON FOLLOWING PAGE] 10 Citys Standard Agreement • May 2008 revision IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF ATIONAL CITY COXCOM, INC.; COX CALIFORNIA TELCOM, LLC By Ron orrison, Mayor APPROVED AS TO FORM: George H. Eiser, III City Attorney Director Of Sales By: Larry Coval V.P. of Sales Exhibit A Scope of Work [See Attached] co Business' Between Cox Business and City of National City Project Scope of Work: Locations: I) 1243 National City Blvd, National City, CA. 91950 Project Objective/Deliverable: 1) Cox Business will be constructing fiber optical cable to 1243 National City Blvd, National City, CA 91950, data room and installing a Nortel OM 3500 0C48 Sonet ring protected customer premise equipment and rack. The Cox Optical Internet 60 Mbps will be provided on the OM 3500. Cox Business will assign 32 IP Addresses to the circuit, at any time; the customer can request more IP at 32 IP Address Blocks, up to a full class C (256). Cox Business will provide an Ethernet hand off via copper RJ-45 or fiber optical patch cord (Multi -mode) depending on the customer's equipment. Statement of Responsibilities: Cox Business Services 1) Will install and maintain the Nortel OM 3500, including the battery UPS equipment. 2) Will install and maintain the fiber optical cable and repair it with no cost to the customer in the event of it being cut in the public right of way. 3) Proved a customer support number for technical support: 619-269-2000. City of National City 1) Will maintain its' own network and any equipment attached to Cox Business Services. Contract Type: New Service / Equipment Description: Cox Optical Internet 60 Mbps Qty: 1 Term in Months: 36 MRC: 3,600.00 NRC: 750.00 Contact Information: Name Cell Office Company E-Mail Jamie Hughes 619-838-6291 619-266-5296 Supervisor Systems ops iamie.hughes(u))cox.com Darren Segel 619-726-5392 619-269-2422 Manager Customer Fulfillment darren.sege1(ascox.com Alan Sup 619-206-9945 619-269-2441 Sales Engineer alan.sup@cox.com Ron Williams 619-336-4373 City of National City IT Dir rilliamsAci.national-citv.ca.us *It is agreed that any dates missed on this timeline may result in a delayed final installation **It is agreed that any changes made to the above conditions must be documented in an amended scope of work and may result in a delayed installation dole. Authorized Representative for Cox Communications, Inc.: Date: 4,— ��7� Exhibit B Cox Terms & Conditions [See Attached] co 8usines ' Cust. Account #: Federal Tax ID/SS #: CUSTOMER INFORMATION Company Name: City of National City Doing Business As: Service Address: 1243 NATIONAL CITY BLVD City/State/Zip: NATIONAL CITY, CA - 91950 BILLING INFORMATION Billing. Name: Billing Address: 1243 NATIONAL CITY BLVD City/State/Zip: NATIONAL CITY, CA - 91950 Commercial Service Agreement 5159 Federal Blvd, San Diego, CA - 92105 Sales Rep: Richard Gonzalez AUTHORIZED CUSTOMER CONTACT INFORMATION Name: Ron Williams Title: IT Director Business Phone: 619-338-4373 Cell Phone: Business Fax: ADDITIONAL AUTHORIZED CUSTOMER CONTACTS Name: Soriano Gabby Name: E-Mail: rwilliams@ci.national-city.ca.us Contract Type Service / Equipment Description Qty Term in Months MRC NRC Waived NRC New Cox Optical Internet 60 Mbps 1 36 3,600.00 75a.00 545.00 - Additional Features 0.00 0.00 0.00 ontract Totals: ,600.00 750. Customer Initial Important Information for Customer: Jteaardlna Data Installations- Cox does NOT install hardware (including Network interface cards) or software on customer's computers, servers, or LAN hardware. Cox Business Services does not install or support customer premise networks. If network wiring is required, the customer may choose to wire the network themselves or have it completed by a third party vendor. The Cox point of demarcation is the Ethernet connection on Cox provided routing device or cable modem. Should customer require to move the data service after installation, charges may apply. Reaardina Phone Installations - Cox Business Services' point of demarcation is the building's minimum point of entry (MPOE). This point Is generally the network interface unit or the telephone closet. Activation charges include the technician verifying dial tone at the point of demarcation. Additional verifications inside the business can be requested for an additional fee, per location. Should inside wiring (wiring past the point of demarcation) be required, the customer has three options: 1.Wiring is completed by the customer 2. Wiring Is completed by third party contractor 3. Wiring is completed by Cox Business Services installation technician; for an additional fee. for Private Una Type Service - If this Box contains an "x", Customer represents that at least 10% of the traffic on the Services is Interstate, International and/or delivered via the Internet. Sales Tracking Code (Internal use only) - TrackingCode Special Conditions: The undersigned represents that he/she s the ustomer or is the Authorized Customer Representative identified above and is authorized to sign this Agreement on behalf of Customer for the services in this Agreement and that the customer information is true and correct. This Agreement binds Customer to the Rates, Terms and Conditions of Service applicable to each of the services selected above, including any termination penalties that may apply. Customer understands that telephone services selected above are provided by Cox California Telecom, LLC, and that such services are subject to rates, terms and conditions contained in tariffs on file with, as well as the regulations of, the Califomia Public Utilities Commission and/or the Federal Communications Commission, and that such regulations may change from time to time. If Customer subscribes to or uses State -to -State and/or International telecommunications services, such services shall be provided pursuant to the Cox Customer Service Agreement which may be found at our web -site at www.cox.corn/telephone/customerservicesagreement.asp. All Services are subject to the Terms and Conditions on Pages 2 & 3 attached hereto. Internet, Data, Web Hosting and/or Web Conferencing, Cox Mails"' E-Mail Services, if selected by Customer, are subject to Acceptable Use Policies located at www .coxbusiness.com/ AcceptableUsePolicy.pdf and Customer acknowledges receipt of these by signing below. The C undersigned authorizes Cox to check credit and this Agreement is subject to credit approval. Prices listed do not include applicable taxes, fees, assessments or surcharges. Where there is a conflict between the tariff and the rates, terms, and conditions specified in this ICB CSA, the ICB Agreement controls. Customer agrees that Cox may execute this Agreement using an electronic signature. Customer Authorized Signature: Print Name: Title: Date: CoxCom, Inc. ; Cox Callfornla Telcom, LLC Date: If Customer tsnnlnatss any Service that is part of a bundle offering, the remaining Services shall be subject to price increase for the remaining Service term. COS'. Cust Account #: Sates Rep: Richard Gonzalez Sales Phone: 6192692433 Sales Fax: Service Detail P,,e,t 1441 I 144)1414N41J.14,`,14r.0- , Kc:a ,'-- +,:.. Jt y rr _.t,.i4,^l,kl,/,-'44.lirlli iti i.�:.1:1.91d,V.: _ Customer Name: City of National City Doing Business As: Service Address: 1243 NATIONAL CITY BLVD City/StatelZip: NATIONAL CITY, CA - 91950 Ordered By: Ron Williams Ttitfe: IT Director Business Phone: 619-336-4373 Cell Phone: Business Fax: E-Mail Address: nvilliams4 ci.national-Gty.ca.us A. Ter a and onditlo a of Reaut_t d Service 1. Iaiiffa Regulated Services are provided pursuant to rates, terms, and conditions contained in tariffs on Ole with state and/or federal regulatory authorities, and Cox may amend such tariffs and regulated Service shall be subject to such tariffs, as amended. Customer must disdose to Cox if Customer intends to use the Services in connection with payphone service. After the initial term, this Agreement shall automatically renew for one (1) year terms at the same rates, terms and conditions unless a party gives the other written termination notice at least thirty (30) days prior to the expiration of the then existing term. The tariffs contain Service cancellation or termination charges due to cancellation or termination of Service prior to the term selected on the first page of this Agreement. Termination charges Include, but are not limited to, nonrecurring charges, charges paid to third parties on behalf of the Customer, and the monthly recurring charges for the balance of the term. 2. Teleohone numbers Cox will be the carrier of record for the Customer's assigned telephone numbers, and numbers that are ported to Cox from another carrier. These numbers, while not the property of the Customer, are reserved for their sole usage during the time service is active with Cox, and can be retained for the Customer's use if ported to another carrier at the termination or expiration of this Agreement. All number assignments and use shall be subject to the rules and regulations of the North American Numbering Wan Administrator. Any telephone number designated by Cox in advance of the activation of Cox telephone service is subject to change by Cox. Additional terms and conditions regarding telephone numbers are contained in Cox tariff(s). 3. State -to -Stela and Intarnatlonal Services If Customer subscribes to or uses state -to -state and/or International telecommunications Services from Cox, such Services shall be provided pursuant to the terms and conditions contained In Cox Customer Service Agreement which may be found at our web site: www.cox.com/telephone(customerservicesagreement. asp. 4. pax Usage. Eautoment. and E911 services If Customer uses a Private Branch Exchange (PBX) in connection with the Services, Customer Is responsible for programming the PBx to ensure that agencies receiving E911 emergency calls through the PBX will receive appropriate information about the location of the caller. For certain telephone Services, an embedded multimedia terminal adapter (eMTA), an integrated access device (IAD), or an analog terminal adaptor (ATA) will be provided and Installed by Cox at no charge to Customer. 'Only the eMTA and ATA will have battery backup provided by Cox. Customer is responsible for battery backup for the IAD. In the event of a power outage, your telephone Service using en eMTA or ATA will continue to operate as usual for up to eight hours with the backup battery provided by Cox. The duration of service during a power outage using an IAD will depend on Customer's battery backup choice. If the eMTA, ATA, or IAD that supplies your telephone Service is disconnected or removed and/or the battery is not charged, Service, including access to 11911, will not be available. Cox uses your telephone Service address to Identity your location for E911 Service. To ensure that E911 dispatch receives your correct address, the eMTA, ATA and/or IA0 installed in your business should not be proved. Please notify Cox if you would like to move or relocate your telephone Service. It can take up to 2 busknees days for your now address to be updated. 5. pm Arrays The FCC requires that business customers set up and use a Private Identification Number (PIN) when communicating with Cox to obtain certain information about, or to make certain changes to, their telephone account. Use of this PIN may be waived when communicating with an account representative dedicated to Customer's account. Telephone Service Is subject to the Cox privacy policy posted at hltn•//www rnx.rom/oolIcv/#Online Pdyary Polity fr Unreardated Cerviree and Cervlra not aubl►rt to tariffs 1. paEm.lmt Customer shall pay for all monthly service charges, plus one -lime set-up, Installation and/or construction charges. Unless stated otherwise herein, monthly charges for Services shall begin upon installation of Service, and Installation charges, if any, shall be due upon completion of installation. Any amount not received by the due date shown on the applicable hill will be subject to Interest or a late charge at the maximum rate allowed by law. Upon notice to Customer, Cox may change Video Service prices periodically during the Term of this Agreement. U applicable to the Service, Customer shall pay sales, use, gross receipts, excise, access, universal service fund assessments, 911 fees, franchise fees, bypass or other local, state and Federal taxes or charges Imposed on the use of the Services. Taxes will be separately stated on the Customer's invoice. No Interest will be paid on deposits. 2. Sonar" and Initalletilm Cox shall provide Customer with the Services and Equipment Identified on the first page of this Agreement. Customer is responsible for damage to any Cox equipment. Customer may use the Services for any lawful purpose, provided that such purpose (a) does not interfere or Impair the Cox network, equipment and (b) complies with the applicable Acceptable Use Policies ("AUP") which are incorporated herein by reference. Customer shall use the equipment only for the purpose of receiving the Services. Unless provided otherwise herein, Cox shall use reasonable efforts to maintain the Services in accordance with applicable performance standards. For cable modem Internet Services, bandwidth speeds may vary and Customer may not always receive or obtain optimal bandwidth speeds. Cox network management needs may require Cox to modify upstream and downstream speeds. Use of the data, Internet, web conferencing / web hosbng Services shall be subject to the Cox AUP and the AUP Is available online at www.coxbusiness.com/arrebrableesenolirv.onj. Web hosting Customers may view their AUP by clicking on the Control panel. Upon notice. to Customer, the AUPs may be amended from time to time during the Term of this Agreement. Customer's continued use of the Services following an amendment shall constitute acceptance. 3. C..rvtrix etert pet* end term This Agreement shall he effective upon execution by the parties. Services shall be provided for the applicable term set forth on the first page of this Agreement and such term of Service shall begin upon installation of Service; provided that if Customer delays Cox Service installation, Cox may immediately begin billing for Services on the date Services would have been Installed. Cox shall use reasonable efforts to make the Services available by the requested service date. Cox shall not be liable for damages resulting from delays in meeting service dates due to construction delays or for reasons beyond its control. 4. r_usest ner Resnonelblllties Customer Is responsible for arranging all necessary rights of access for Cox Including space for cables, conduits, and equipment as necessary for Cox -authorized personnel to install, repair, inspect, maintain, replace, or remove any and all fadllties and equipment provided by Cox. Customer shall provide a secured space with electrical power, dimate control and protection against fire, vandalism, and other casualty for Cox's equipment. Customer shall use the Services In compliance with all applicable laws and ordinances, as well as applicable leases and other contractual agreements between Customer and third parties. If Customer engages in a public performance of any copyrighted material contained in any of the Services, the Customer, and not Cox, shah be responsible for obtaining any public performing licenses. Customer is responsible for ensuring that Customer's equipment is compatible for the Services selected and with the Cox network. 5. Enoiamant Unless otherwise provided herein, Customer agrees that Cox shal retain all rights, title and Interest to fadltleis and equipment Installed by Cox thereunder, and that Customer shall not create or permit to be created any (tens or encumbrances on such equipment. Internal Wiring shall not be considered equipment and shall become the property of Customer upon initiation of Service. Cox shall install equipment necessary to furnish the video Services to Customer. Customer shall not modify or relocate equipment installed by Cox without the prior written consent of Cox. Customer shall not permit tampering, altering, or repair of the equipment by any person other than Cox's authorized personnel. For Cox -owned equipment, Customer shall, at the expiration or termination of this Agreement, return the equipment In good condition, ordinary wear and tear resulting from proper use excepted. In the event the equipment Is not returned to Cox in good condition, Customer shall be responsible for the value of such equipment Cox shall repair any equipment owned by Cox at no charge to Customer provided that damage Is not due to the negligence of Customer. If additional equipment, Including but not limited to, televisions, monitors, computers, circuits, software, or other devices, are required by Customer to use the Services, Customer shall be responsible for such equipment. 6 jtesale of Cervirr Unless authorized In writing by Cox, Customer may not resell any portion of the Service to any other party; provided, however, Customer may, with Cox's prior written consent, resell web hosting for third parties through the Services. Customer shall be responsible for any software and content displayed and distributed by Customer or Customer's web hosting customers, if any. /. lllefault If Customer falls to comply with any material provision of this Agreement, including, but not limited to failure to make payment as specified, then Cox, may pursue one or more of the following courses of action upon notice to Customer as required by tariff or applicable law: (I) tertnlnate service whereupon all sums then due and payable shall become immediately due and payable, (II) suspend all or any part of Services, and/or (ill) pursue any other remedies, including reasonable attorneys' fees, as may be provided at law or in, equity, Including the applicable termination liabilities. 8 jp Address/Dn,nain Nano• Reeieb tInn Cox al'ocates IP addresses to Customer according to InterNlC guidelines. All IP addresses assigned by Cox must be relinquished by Customer upon the expiration, termination or cancellation of this Agreement. IP addresses are subject to the IP policy in the AUP. Domain name registrations are subject to rules promulgated by the domain name registrar, which may be amended from time to time and are presently posted at Reglster.com: htto• f/www.regtster.rom/retail/Dolicv/serviresanreement rrmx or Verisign: him•//www netsol rom/en US/legal/static-service-agreement.ih(re. Customer Is responsible for payment and maintenance of domain name registration. hverk fa r(erenee iy-wing-eemneer..:..liy.ee.,e,,..bl„ 10. LIMITATION OF LIABILITY COX SHALL NOr BE LIABLE FOR DAMAGES FOR FAILURE TO FURNISH OR INTERRUPTION OF ANY SERVICES, NOR SHALL COX BE RESPONSIBLE FOR FAILURE OR ERRORS IN SIGNAL TRANSMISSION, LOST DATA, FILES OR SOFTWARE DAMAGE REGARDLESS OF THE CAUSE. COX SHALL NOT BE LIABLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING EtOM THE INSTALLATION OR REMOVAL OF EQUIPMENT UNLESS CAUSED BY THE NEGLIGENCE OF COX. UNDER NO CIRCUMSTANCES WILL COX BE UABLE FOR ANY SPECIAL OR CONSEQUENTIAL_ DAMAGES INCLUDING LOST PROFITS ARISING FROM THIS AGREEMENT. 11. Assignment Customer may not assign or transfer any part of this Agreement without the prior written consent of Cox. Cox may assign this Agreement and Service may be provided by one or more legally authorized Cox affiliates. 12. Mifauxentea EXCEPT AS PROVIDED HEREIN, THERE ARE NO OTHER AGREEMENTS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPFRArlON OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE SERVICES. SERVICES PROVIDED ARE A BEST EFFORTS SERVICE AND COX DOES NOT WARRANT THAT THE SERVICES, EQUIPMENT OR SOFTWARE SHALL BE ERROR -FREE OR WITHOUT INTERRUPTION. COX MAKES NO WARRANTY AS TO TRANSMISSION OR UPSTREAM OR DOWNSTREAM SPEEDS OF THE NETWORK. 13. Indmmieblr Customer shaft indemnify and hold Cox and Its respective affiliates, subcontractors, employees or agents harmless (Including payment of reasonable attomeys fees) from and against any claim, actions or demands relating to or arising out of Customer's use of the Service Including without limitation : (I) any content or software displayed, distributed or otherwise disseminated by the Customer, its employees, or users of the Services, (ii) any rialto that Customer's content or registration and. maintenance of Customer's selected domain name(s), Infringes on the patent, copyright, trademark or other Intellectual property right of any third party; (111) any act in violation of any laws committed by Customer, Its employees or users using the Services; and/or (iv) violation by Customer, its employees or authorized users of the Cox AUPs. 14. viruses. Content Customer Inforguagee Software or content obtained from the use of Service may contain viruses or other harmful features and Customer is solely responsible for protecting its network, equipment, and software through the use of firewalls, anti -virus, and other security devices. Through the use of the Service, Customer may obtain or discover content that is offensive or illegal and Customer assumes the risk and is solely responsible for its access t0 such content. Cox may disclose Customer information to law enforcement or to any Cox affiliate.. Cox may delete any Internet traffic or e-mail that contains a virus. If Customer operates a wireless locai access network In connection with the Services, Customer Is solely responsible fur the security of Its network. Use of the Service is subject to Cox's privacy policy posted et htto://www cox com/oolirv/#Online Pnvacv Policy. IS. klir lbnneny This Agreement, the tariffs, and the documents referenced herein constitute the entire agreement between Cox and Customer for the Services and equipment. The invalidity or unenforceability of any terrn or condition of this Agreement shall not affect the validity or enforceability of any other provision. Except as provided herein, this Agreement may be modified, waived, or amended only by a written Instrument signed by the parties. The rights and obligations Of the parties under this Agreement shall be governed by the laws of the state where Services are installed. The failure by either party to exercise one or more rights provided in this Agreement shall not be deemed a waiver of the right to exercise such right in the future. Notices required by this Agreement shall be in writing and shall be delivered either by personal delivery or by mail. If delivered by mail, notices shall be sent by express mall service (DHL, UPS Fed -Ex); or by certified or. registered mail, return receipt requested; with all postage prepaid. All notices and other written communications under this Agreement shall be addressed to the parties at the addresses on the first page of this Agreement. 16 Regulatory Authority -Force Maienre This Agreement and the obligations of the parties shall be subject to modification to comply with all applicable laws, regulations, court rulings, and administrative orders, as amended. In no event shall either party have any claim against the other for failure of, performance If such failure is caused by acts of God, natural disasters including fire, flood, or winds, civil or military action, Including riots, crvil Insurrections, acts of terrorists, or the taking of property by condemnation. 1/. Web Mo:Nna Servere Cox reserves the right to select the server for Customer's web site for best performance. The Customer understands that the Services provided by Cox may be provided on a shared server. This means that one web site cannot be permitted to overwhelm the server with heavy CPU usage, for example from the use of highly active CGI scripts or chat scripts. If the Customer's web site overwhelms the server and causes complaints from other users, the Customer has outgrown the realm of shared services and will be required by Cox to relocate its web site. If the Customer refuses to comply with this Section, then Cox has the right to terminate the Services. Cox will use reasonable efforts to maintain a fuH time Internet presence for the Customer. The Customer hereby acknowledges that the network may, at various time intervals, be down due, but not restricted to, utility interruption, maintenance equipment failure, natural disaster, acts of God, or human error, and Cox shall not be liable to customer for such outages or server downtime. 18. Mattel Millennium Coovrioht 0('t Cox Is registered under the Digital Mlllemlum Copyright Act of 1998. Pursuant to 17 U.S.C. Section 512(c)3, if you believe that a Web page hosted by Cox is violating your rights under U.S. copyright law, you may file a complaint with Cox's designated agent. Please contact DMCAQDCox.com for information necessary to file your complaint with Cox. 19 j:-Rate customers This paragraph applies only to educational institutions or libraries seeking reimbursement under the Federal Universal Service fund. Customer shall apply annually to the Schools and libraries Division,. "SLD" for E-Rate funding and Customer shall designate Cox as its provider of Services. Customer shall also provide Cox with all documentation that Is In response to all queries, inquires and requests as part of the Program Integrity Assurance (PIA) process within three (3) business days of receipt and/or delivery thereof: Customer also acknowledges that increases and decreases in funding for Services may occur from the SLD. If Customer Is denied SID funding for any reason, Cox may then elect to decrease the level of Services provided to Customer. If full E-Rate funding is not received within 6 months of application date, or by the opening of the application window for the following funding year, then Cox may terminate the Agreement without further liability to Cox or the Customer. Additionally, if full E-Rate funding is not received and Cox elects to terminate the Services during the contract term, then Customer may be subject to termination viabilities. 20. VoILAMAtiraer Gentler In addition to the terms and conditions herein, if Customer purchases VoiceManager Services under this Agreement, the terms and cond.tons located at hltp•//www coxbudnea.com/omducts/voicefvdcemanager and the terms and conditions set forth In Sections A.2, A.3, and A.4 of this Agreement shall apply to VolceManager Service. The VoiceManager web site also contains descriptions and charges for ancillary services such as directory assistance, 411 charges, directory listing and operator services. Prices and rates far ancillary services are subject to change from time to time during the term of this Agreement. The VoiceManager web site is incorporated into this Agreement as If fully set forth herein. ACORD,, CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DO/YYYY) 06/09/08 PRODUCER 1-678-393-5200 Arthur J. Gallagher Risk Management Services, Inc. 1117 Perimeter Center West Suite W201 Atlanta, GA 30338 Gwen Hardin -Fax: (678)393-5240 INSURED Cox Communications, Inc. Cox Communications San Diego PO Box 105357 Atlanta, GA 30348 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURERA American Home Assur Co I(INSURER8 New Hampshire Ins Co INsuRF.RC'Illinois Nati. Ins Co INSURERD Insurance Co Of The State Of INSURER E. NAIC # 19380 23841 23817 PA .19429 COVERAGES THE POLICIES OF INSURANCE LISTED BEI OW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY FAVE BEEN REDUCED BY PAID CLAIMS. T.TSR (DD'L POUCYEFFECTIVEPOLICY E%PIRATION A NSROi TYPE QF INSIIRANCE POLICY NUMBER - DATE IMMIDD/YY) DATE(MM/DD/YY) LIMITS A i GENERALUABIUTY RMGL1595729 X CUMMEHCIAL GENERAL LIABILITY 1 CLAIMS MAUL I X OCCUR 01/01/08 01/01/09 I-ACHOCCURRENCE 51,500,000 DAMAGESaoaauenu:' 51, 500, 000 PRPREMISET (E Eb MIS MECFXR(Myonepe•sor) $EXCLUDED X EXCESS OF $500,000 ? 1,500,000 ERSCNALBADVINJURY S X SELF INSURED RETENTION GENERALAGGNEGAIE $30,000,000 GEN'LAGGREGATE LIMITA?PLIES PER:I X I POLICY . JEe-i L. i PRODUCTS-COMPIOPAGG iS3,000,000 A AUTOMOBILELIABILRY ' RMCA1607282(VA) A ,X RMCA1607281(MA) ANY AUTO A . . ALL N41,0AUIOS RMCA1607280 (AOS) SCHEDULED AUTOS- • X HIREDAUTOS X NON OW\EDAJTOS . . _— 01/01/08 ' 01/01/09 01/01/08 01/01/09 COMBINED SINGLE LIMIT 52, 000, 000 lea acadnd) 01/01/08 01/01/09 000ILV I\JUftY $ (Per xrsor)- -_ - __--- BODILYINJJRV c (PeracWiell) PROPERTY DAMAGE (Pnr nCcIcenl) $ GARAGE LIABILITY I ANY AUIO I AJTO ONLY SA ACCIDF NT $ ! OI-IL-H IIIA.\' EA ACC $ AUTOONLY. AGG S EXCESS/UMBRELLALIABIUTY i OCCUR : CLAIMS MADE ! • DEL JC 118L6 RETENTION $ 1 I EACH OCCURRENCE _5— '' AGGREGATE S $ S B WORKERSCOMPENSATONAND RMWC5145078(AOS) A EMPLOYERT LABIUTY RMWC5145079(CA) ANVPROPRILIOWPARTNCWCXLCJINL c : OFIRCF.RMF MEEREXCLUUEU-' RMWC5145080(FL) A ' Ilyyne.d LPROaISIO RMWC5145082 (OR) ' SPEOIAs. leeuder en 01/01/08 01/01/09 1 X WCSTATU- OTIi- - LLMITS' `R ._.T.ORY O1/O1/OB - O1/Ol/09 E.L. J+CH ACCIDENT S 1,000,000 01/01/08 i 01/01/09 E.L. DISEASE-EAEMPLOYEE $1,000,000 01/01/08 01/01/09 0 / FL. DISEASC- DLICYLIMIT $1, 000, 000 OTHER D WORK COMP/EMPLOYERS LIAB I RMWC5145081(MA) 01/01/08 01/01/09 SEE ABOVE AMT OFINSURANCE C WORK COMP/EMPLOYERS LIAB ' RMWC5145084(WI) 01/01/08 01/01/09 SEE ABOVE AMT OFINSURANCE 8 ,WORXERS COMPENSATION RMWC5145083(TX) 01/01/08I 01/01/09 SEE ABOVE AMOUNT OPINSURANCE DESCRIPTION OF OPERATIONS / LOCATIONS /VEHICLES /EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS The City of National city, its elected officials, officers, agents and employees are shown as additional insured solely respect to General Liability and Automobile Liability coverage as evidenced herein on a primary- non-contributory basis as required by written contract with respect to work performed by the named insured. A waiver of subrogration in favor of The City of National city, its elected officials, officers, agents and employees is included under the Workers Compensation as evidenced herein as required by written contract. CERTIFICATE HOLDER CANCELLATION CITY OF NATIONAL CITY 1234 NATIONAL AVE. NATIONAL CITY, CA 92050 USA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 60 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABIUTY OF ANY KIND UPON THE INSURER. RS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRES!NTATNE ACORD 25 (2001/08) ghardin 9009317 ©ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT # This endorsement, effective 12:01 A.M. 1 /1 /08 forms a part of Polity No. CA1607280 issued to Cox Communications, Inc. By American Home Assurance Company ADDITIONAL INSURED - WHERE REQUIRED UNDER CONTRACT OR AGREEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM SCHEDULE ADDITIONAL INSURED: ANY PERSON OR ORGANIZATION FOR WHOM YOU ARE CONTRACTUALLY BOUND TO PROVIDE ADDITIONAL INSURED STATUS BUT ONLY TO THE EXTENT OF SUCH PERSON OR ORGANIZATIONS LIABILITY ARISING OUT OF THE USE OF A COVERAGE "AUTO" I. SECTION II - LIABILITY COVERAGE, A. Coverage, 1. - Who Is Insured, is amended to add: d. Any person or organization, shown in the schedule above, to whom you become obligated to include as an additional insured under this policy, as a result of any contract or agreement you enter into which requires you to furnish insurance to that person or organization of the type provided by this policy, but only with respect to liability arising out of use of a covered "auto". However, the insurance provided will not exceed the lesser of: (1) The coverage and/or limits of this policy, or (2) The coverage and/or limits required by said contract or agreement. AUTHORIZED REPRESENTATIVE 87950 (3/05) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT # This endorsement, effective 12:01 A.M. 1 /1 /08 forms a part of Policy No. GL1595729 issued to Cox Enterprises, Inc. By American Home Assurance Company ADDITIONAL INSURED - WHERE REQUIRED UNDER CONTRACT OR AGREEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM Section II - Who is an Insured, 1., is amended to add: f) Any person or organization to whom you become obligated to include as an additional insured under this policy, as a result of any contract or agreement you enter into which requires you to furnish insurance to that person or organization of the type provided by this policy, but only with respect to liability arising out of your operations or premises owned by or rented to you. However, the insurance provided will not exceed the lesser of: 1. The coverage and/or limits of this policy, or 2. The coverage and/or limits required by said contract or agreement. AUTHORIZED REPRESENTATIVE 61712 (9/01) 06/11/20e8 1c:55 673333524/7 ARTHUR .J GAI_L_AGI' ' PAGE C6/06 BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT • CALIFORNIA This endorsement changes the policy to which it is attached effective on the Inception date of the policy unless a different date is Indicated below. Rhe rollmwng" attaching clause" need be completed only when this endorseisent Is issued eubseauent o preparation or the poky), This endorsement, effective 12:01 AM forms a part Of Policy No. Issued to Co21 Communications, Inc. By American Home Assurance Company YIC5145079 We have a right to recover our payments from anyone liable for an Injury covered by thls policy. We will not enforce our right against any person or organization with whom you have a written contract that requires you to obtain ails agreement from us, as regards any work you perform for such person or organization. The additional premium for this endorsement shall be 2% of the total estimated workers compensation premium for this policy. WC040361 (Ed. 11-90) Countersigned by Authorized Representative RESOLUTION NO. 2008 — 98 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING WAIVER OF THE BIDDING PROCESS AND AUTHORIZING THE MAYOR TO EXECUTE A 36-MONTH LEASE AGREEMENT WITH COX COMMUNICATIONS, INC. TO LEASE A 60MB DATA CIRCUIT IN THE ANNUAL AMOUNT OF $43,200 WHEREAS, the City currently leases a 10MB circuit and a 1.5MB circuit from AT&T at a cost of $30,840 annually; and WHEREAS, the 10MB circuit is dedicated for library use only, leaving the 1.5MB circuit for the remaining City Internet traffic; and WHEREAS, the City's current bandwidth for Internet purposes is not adequate to support the types of network traffic that will be generated by the City's new website; and WHEREAS, staff recommends leasing a 60MB data circuit in the annual amount of $43,200 from Cox Communications, Inc. (Cox) because Cox owns local fiber infrastructure throughout National City, their pricing is competitive within the industry, and no further purpose would be served by issuing a formal bid; and WHEREAS, pursuant to Section 12.60.220(D) of the National City Municipal Code, the Purchasing Agent may dispense with the requirements of the bidding process when the City Council determines that due to special circumstances, it is in the City's best interest to purchase a commodity or enter into a contract without compliance with the bidding procedure. NOW, THEREFORE, BE IT RESOLVED that the City Council finds that special circumstances exist, and authorizes the waiver of the bidding process. BE IT FURTHER RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a 36-month Lease Agreement with Cox Communications, Inc. for a 60MB Data Circuit In the annual amount of $43,200. Said Lease Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 3rd day of June, 2008.. 4 Ron Morrison, Mayo ATTEST: /r Mi ael R. Della, C y Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney Passed and adopted by the Council of the City of National City, California, on June 3, 2008 by the following vote, to -wit: Ayes: Councilmembers Morrison, Parra, Zarate. Nays: None. Absent: Councilmembers Natividad, Ungab. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California City Jerk of the City f National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2008-98 of the City of National City, California, passed and adopted by the Council of said City on June 3, 2008. City Clerk of the City of National City, California By: Deputy C a. 0 0 r• ' '* City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE June 03, 2008 AGENDA ITEM NO. 12 ITEM TITLE Resolution of the City Council of the City of National City authorizing the Mayor to execute an agreement in the annual amount of $43,200 with Cox Communications, Inc. to lease a 60MB data circuit to upgrade the Internet bandwidth at City facilities. PREPARED BY DEPARTMENT Ron Williams /�, MIS (Ext. 4373) jl EXPLANATION The City of National City currently leases a 10MB circuit(Library) and a 1.5MB circuit(City Hall) from AT&T at a cost of $30840 annually. The 10MB circuit is dedicated for library use only, leaving the 1.5MB circuit for the remaining City of National City Internet traffic. This bandwidth will not be adequate to support the types of network traffic(streaming media, online transactions) we anticipate the new website will generate. M.I.S. has obtained the following price quotes for the 60 MB circuit: AT&T $54,348 (50MB) COX Communications $43,200 (60MB) XO Communications $55,968 (45MB) It is requested that Council waive the formal bidding requirements as allowed in Section 12 of Purchasing Ordinance #1480, and in Chapter 2.60.220(d) of the Municipal Code, and award the contract to Cox Communications Inc, for the following reasons: 1. Cox Communications owns local fiber infrastructure throughout National City. 2. The price has been determined to be competitive within the industry. 3. 3. No further purpose would be served by issuing a formal bid at this point in the process. Environmental Review Financial Statement NI N/A Approved B� Finance Director Account No. 631-415-000-248-0000 STAFF RECOMMENDATION Adopt the Resolution LBOARD / COMMISSION RECOMMENDATION ATTACHMENTS ( Listed Below ) Attachment 1: Contract Resolution No. A-200 (9/99) City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 June 18, 2008 Mr. Richard Gonzalez CoxCom, Inc. 5159 Federal Blvd. San Diego, CA 92105 Dear Mr. Gonzalez, On June 3rd, 2008, Resolution No. 2008-98 was passed and adopted by the City Council of the City of National City, authorizing execution of a lease agreement with Cox Communications, Inc. We are enclosing for your records a certified copy of the above Resolution and a fully executed original agreement. Sincerely, Michael R. Dalla, CMC City Clerk Enclosures cc: MIS Dept. Mark F. Padilla, Cox Communications ® Recycled Paper