HomeMy WebLinkAboutE-10 Staff Report Frontier Agreement 2 yrCONSENT ITEM
E-10
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: TROY L. BUTZLAFF, ICMA-CM, CITY MANAGER
FROM: ANN GRAF, DIRECTOR OF INFORMATION TECHNOLOGY AND LIBRARY
SERVICES
DATE: MARCH 6, 2017
SUBJECT: REQUEST TO APPROVE A TWO YEAR AGEREEMENT FOR TELEPHONE
SERVICES WITH FRONTIER COMMUNITCATIONS
SUMMARY:
The City currently contracts with Frontier Communications for its regular telephone services. Staff
recommends that the City continue to utilize a portion of the existing Frontier Communications voice
services, but at a reduced rate. In order to obtain the reduced rates, the City will need to enter into a
newly renegotiated agreement with Frontier Communications. This action approves a two year Service
Agreement with Frontier Communications.
RECOMMENDATION:
Staff recommends that the City Council take the following actions:
1) Waive the competitive bidding process as authorized under Azusa Municipal Code § 2-520 (b)
sole sources purchased due to proprietary equipment; and
2) Approve a two year Service Agreement with Frontier Communications; and
3) Authorize the City Manager to execute the Service Agreement, in a form acceptable to the City
Attorney, on behalf of the City.
DISCUSSION:
The City contracts with Frontier Communications (formerly Verizon) for telephone services. In looking
at ways to reduce on-going costs, Staff retained an independent third party to audit our telephone bills.
Based on the audit’s findings, Staff recommends that the City enter into a new 2 year contract. A
summary of the current and proposed rates under the new contract are provided below. If approved, the
new contract will save the City approximately $23,525 annually.
APPROVED
COUNCIL MEETING
3/6/2017
Approve Agreement with Frontier Communications Telephone Services
March 6, 2017
Page 2
CURRENT CURRENT PROPOSED PROPOSED
PRI costs and Calling Costs EACH EA COST TOTAL EA COST TOTAL
ISDN PRI T&V Package 3 $585.00 $1,755.00 $369.00 $1,107.00
ISDN Additional Telephone Numbers ** 831 $0.40 $332.40 531@.40
$212.40
Local Measured Service Charges (3 mo avg)
$375.60
$0
IntraLATA Charges (3 mo avg)***
$540.72
Incl with
outbound
Outbound Interstate&Intrastate (3mo avg)***
$526.17
$250.00
Monthly Recurring Costs $3,529.89 $1,569.40
Annual Costs $42,358.68 $18,832.80
MONTHLY SAVINGS $1960.49
ANNUAL SAVINGS $23,525.88
** Under this proposal each ISDN package includes 100 direct dial numbers so there are 531 additional direct dial numbers
to purchase which have a total cost of $212.40
*** Under this proposal Frontier will supply a 10,000 bucket of minut es for IntraLATA, Interstate, and Intrastate outbound
calls. Current 3 month average use is 9,200 minutes (overage at .035/min)
This is a billing change only. No installations are required.
FISCAL IMPACT:
The estimated savings from the proposed two year agreement is approximately $23,525annually or a
total of $47,050 over the two year term. Funding for the telephones services are included in the FY
2016-17 budget under account 48-49-940-000-6915.
Prepared by: Fiscal Impact Reviewed by:
Ann Graf Talika M. Johnson
Director of Information Technology Director of Finance
and Library Services
Reviewed and Approved: Reviewed and Approved:
Louie F. Lacasella Troy L. Butzlaff, ICMA-CM
Management Analyst City Manager
Attachments:
1) Frontier Services Agreement with Frontier Communications
FRONTIER SERVICES AGREEMENT
Frontier Confidential
Ver. June 2015 Page 1 of 4
This Frontier Services Agreement (“FSA”) is effective as of 02/01/2017, by and between Frontier Communications of America, Inc. on behalf of itself
and its affiliates which provide Equipment and Services identified in the Schedules (“Frontier”), and City of Azusa, whose primary address is 213 E
Foothill Blvd, Azusa, California, 91702 (“Customer”).
1. Provision of Services and Equipment
a. Frontier will provide and the Customer agrees to pay for the
communications, installation and maintenance services (collectively
“Service”), and/or purchase or lease equipment (“Equipment”), described
in this FSA and Schedules executed by Customer.
b. Customer acknowledges that certain Services may be
governed by tariff or price schedule filed with the Federal
Communications Commission and/or the state public utilities
commission. In the event of any inconsistencies between this FSA and
an applicable tariff, the tariff shall control except with respect to pricing,
early termination charges or cancellation charges for which this FSA
shall control.
c. Frontier will provide, maintain and repair the Frontier owned
facilities and equipment used to provide the Services (“Frontier(‘s)
Network”), up to and including the point at which Frontier’s Network is
made available for interconnection to Customer’s premises equipment or
inside wiring. Customer shall provide Frontier reasonable access to
Customer’s premises during normal business hours for the purpose of
installing, inspecting, testing, rearranging, repairing or removing any
Frontier Network components, including obtaining approvals, permits or
licenses from third parties as necessary. Customer will cooperate in
good faith and provide all reasonable information and authorizations
required by Frontier for the purpose of installing Services and/or
Equipment, performing routine network grooming, maintenance,
upgrades, and addressing emergencies, including but not limited to
design layout records of any Customer or third party network elements to
be connected to the Services and Letters of Agency allowing Frontier to
act on the Customer’s behalf related to the Services and auxiliary third
party services.
d. Only authorized agents and representatives of Frontier may
perform maintenance work with respect to Frontier’s Network. Any
repair, alteration, configuration or servicing of Frontier’s Network,
Services or Equipment by Customer or third parties without the written
consent of Frontier is a material breach of this FSA and cause for
termination at Frontier’s option.
e. If Frontier is unable to commence performance hereunder due
to circumstances within Customer’s control, any related costs incurred by
Frontier, including but not limited to travel at normal rate and overtime
labor rate expenses, will be reimbursed by Customer. Customer will
reimburse Frontier for all costs incurred for installation, maintenance and
repair if: (i) Frontier’s Network is altered, maintained or repaired by any
party other than Frontier, without Frontier’ prior written consent, (ii) the
malfunction of the Service or Equipment is the result of mishandling,
abuse, misuse, improper operation, improper storage, or improper
installation by anyone other than Frontier (including use in conjunction
with equipment electrically or mechanically incompatible); or (iii) if the
problem originated from a source unrelated to Frontier’s Network.
f. Customer will provide (i) suitable building facilities (including
but not limited to space, circuitry, power, backup power, and surge
protectors) for the installation, operation, and maintenance of Frontier’s
Network in accordance with manufacturer’s documentation and Frontier’s
installation standards, more fully described in the applicable Schedule;
and (ii) a well-lighted and safe working area that complies with all local
safety standards and regulations.
g. The Services or Equipment may be connected with the
services or facilities of other carriers. Frontier may, when authorized by
Customer and as may be agreed to by Frontier, act as Customer’s agent
for ordering facilities provided by other carriers to allow such connection
of Customer’s locations to Frontier’s Network or to the network of an
underlying carrier or service.
h. Customer is responsible for all charges billed by other carriers
or third parties. Frontier shall not be responsible for the installation,
operation, repair or maintenance or performance of equipment, facilities,
software or service not provided directly by Frontier. Customer is
responsible to provide equipment compatible with the Service or
Equipment and Frontier's Network, and any wiring required to extend a
communications termination and/or demarcation at the Customer
premises. Customer will provide suitable building facilities for the
provision of Services in accordance with local codes, including but not
limited to ducting, conduit, structural borings, etc. for cable and
conductors in floors, ceilings and walls; electrical service with suitable
terminals and power surge protection devices; and metallic grounds with
sufficient slack in the equipment room, installed in conformity with the
National Electrical Code and local codes, and Frontier’s installation
standards.
i. Customer is solely responsible for the selection,
implementation and maintenance of security features for protection
against unauthorized or fraudulent use of the Services and Equipment.
Customer is solely responsible for ensuring that all of Customer’s data
are adequately secured, documented and backed-up at all times.
Frontier and its contractors are not responsible or liable for data loss for
any reason.
j. Frontier will manage the Frontier Network in Frontier’s sole
discretion, and reserves the right to substitute, change or rearrange any
equipment or facilities used in delivering Services or provisioning the
Equipment. Frontier will endeavor to provide reasonable notice prior to
any scheduled maintenance, planned enhancements or upgrades, which
may result in a degradation or disruption in Service. Frontier reserves
the right to suspend Service for emergency maintenance to Frontier's
Network without notice to Customer. Customer shall designate a primary
contact for receipt of such notice.
k. Customer represents and warrants that its use of the Service
and Equipment will comply and conform with all applicable federal, state
and local laws, administrative and regulatory requirements and any other
authorities having jurisdiction over the subject matter of this FSA and
Customer will be responsible for applying for, obtaining and maintaining
all registrations and certifications which may be required by such
authorities with respect to such use.
l. Except as expressly identified in a Schedule, Customer and its
employees shall be the only permitted end-user of the Services and
leased Equipment. Customer shall not resell or bundle the Services or
leased Equipment, nor permit any third party to access the Services or
leased Equipment in exchange for compensation of any kind.
2. Term
The term of this FSA will commence as of the date identified in the
introductory paragraph above or the date the FSA is executed by both
Parties, whichever is later (the “Effective Date”) and will continue through
the Service Term with respect to any Service or Equipment provided
pursuant to this FSA. Customer will purchase the Services, or lease
Equipment, identified in each Schedule for the period of time stated in
the Schedule (the “Service Term”). Unless otherwise stated in the
Schedule, the Service Term and billing for the Service, will begin upon
the earlier of (i) Customer’s use of the applicable Service(s) or
Equipment or (ii) five (5) days following Frontier’s installation of such
Service(s) or Equipment, and such date is deemed the commencement
of the applicable Service Term. If neither party provides the other with
written notice of its intent to terminate a Service at least sixty (60) days
prior to expiration, the Service Term of each Service will automatically
renew for additional one-year periods, subject to the terms and
conditions of this FSA and at the then applicable one-year term rate,
excluding promotional rates. If the parties agree to negotiated renewal
FRONTIER SERVICES AGREEMENT
Frontier Confidential
Ver. June 2015 Page 2 of 4
terms, such terms will not be effective unless and until documented in
writing and executed by both parties.
3. Payment
a. Customer shall pay all charges set forth in the Schedules and
in applicable tariffs during the Service Term. Frontier will invoice
Customer any non-recurring charges (“NRC”), monthly recurring charges
(“MRC”), and usage based charges.
b. In addition to the applicable charges set forth in the tariffs and
Schedules, Customer shall pay all applicable federal, state or local sales,
use, privilege, gross receipts, utility, value added, excise or other taxes
(excluding taxes based on Frontier’s net income), or any charges in lieu
thereof, and any applicable surcharges or fees, whether government
mandated or Frontier initiated including but not limited to Primary
Interexchange Carrier Charge, Federal Pre-Subscribed Line Charge,
Carrier Cost Recovery Surcharge, E-911, and Universal Service and
Local Number Portability, in the amounts applicable at the time of billing.
Customer shall also be responsible for third party charges and penalties
incurred as a result of Customer’s use of the Services or Equipment.
c. All payments shall be due within thirty (30) days of the invoice
date and, in addition to and not in lieu of any other remedies Frontier
may have hereunder or under the law as a result of Customer’s failure to
pay, late payments shall be subject to a late payment fee of the lesser of
one and one-half percent (1.5%) per month or the maximum allowed by
law. In the event Customer disputes any invoiced amount, Customer will
pay all charges not disputed, and notify Frontier of the dispute in writing,
providing an explanation of the basis for the dispute. If Frontier does not
receive notice of a payment dispute by Customer within ninety (90)
calendar days after the date of an invoice, such invoice will be final and
not subject to further challenge. For the purpose of computing partial
month charges, a month will consist of thirty (30) calendar days. Frontier
reserves the right to immediately suspend or terminate any or all
Services or the installation or lease of any or all Equipment if Customer
is overdue more than thirty (30) days for payments that have not been
disputed in good faith.
4. Cancellation and Early Termination Charges
a. If Customer cancels any Service or Equipment prior to delivery
of any Equipment or installation of the Service or Equipment, Customer
shall pay a cancellation charge equal to the NRC and one (1) month of
MRC for the Service, plus the total costs and expenditures of Frontier in
connection with establishing the Service prior to Frontier’s receipt of
notice of cancellation, including but not limited to any Equipment
restocking fees.
b. Following installation, Customer may terminate a Service or
Equipment by providing at least thirty (30) days prior written notice to
Frontier. All unpaid amounts shall be due upon termination of any
Service identified in a Schedule for any reason. In addition, and unless
otherwise specifically provided in the applicable Schedule, if any Service
or Equipment is terminated by Customer for any reason other than
breach by Frontier or by Frontier due to Customer’s breach, then
Customer shall pay Frontier a termination charge equal to the applicable
MRC and all related taxes and surcharges multiplied by the number of
months remaining in the Service Term. Partial months shall be prorated.
c. Customer agrees that Frontier’s damages in the event of early
termination will be difficult or impossible to ascertain, and that the
charges identified in this Section are intended, therefore, to establish
liquidated damages in the event of termination and are not intended as a
penalty.
5. Limitation of Liability and Warranty Provisions
a. The liability of Frontier and its affiliates related to this FSA or
the Service or Equipment provided under this FSA, shall in no event
exceed the limitations of liability set forth in the applicable tariffs, or
regulatory rule or order. If there is no applicable tariff, regulatory rule or
order, the total amount paid for the applicable Service or Equipment
during the prior 12 months. In cases of an Outage, Frontier’s liability
shall be limited to 1/720 of the MRC for each hour after Frontier is
notified of the Outage. An “Outage” is an interruption in Service or use of
the Equipment caused by a failure of Frontier’s Network, excluding
degradation or disruption due to planned or emergency maintenance or
an event outside Frontier’s direct control. Notwithstanding the above,
Frontier will not be liable to Customer for interruptions in Services or
Equipment caused by failure of hardware or software, failure of
communications services, power outages, or other interruptions not
within the complete control of Frontier. In addition, there will be no
credits, reductions or set-offs against charges for Services or Equipment,
or for interruptions of Services or Equipment, except as expressly set
forth herein.
b. IN NO EVENT WILL FRONTIER OR ITS AFFILIATES BE
LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES,
OR FOR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF
ADVISED OF THE POSSIBILITY THEREOF. FRONTIER AND ITS
AFFILIATES SHALL NOT BE LIABLE FOR ANY LOSS, LOSS OF USE,
COST, CLAIM OR EXPENSE EXPERIENCED OR INCURRED BY
CUSTOMER OR THIRD PARTIES RESULTING FROM THE USE OF
THE SERVICES OR EQUIPMENT PROVIDED HEREUNDER,
INCLUDING BUT NOT LIMITED TO DAMAGE, LOSS OR LOSS OF
USE OF CUSTOMER DATA OR FRAUD BY THIRD PARTIES.
c. Frontier warrants that Frontier’s Network will be maintained in
good working order. If any Service does not function substantially in
accordance with applicable Service specifications as a result of Frontier’s
failure to maintain Frontier’s Network (excluding degradation related to
the acts or omissions of Customer or anyone using the Services, a force
majeure event, or scheduled maintenance), Frontier’s sole obligation is
to repair the affected Service at Frontier’s expense. THE FOREGOING
WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, AND FRONTIER DISCLAIMS ALL OTHER WARRANTIES
WITH RESPECT TO FRONTIER’S NETWORK, SERVICES OR
EQUIPMENT PROVIDED PURSANT TO THESE TERMS INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE
OR FUNCTION. FRONTIER DOES NOT WARRANT THAT THE
SERVICES OR EQUIPMENT OR ACCESS OR OPERATION OF THE
SERVICES OR EQUIPMENT WILL MEET CUSTOMER’S NEEDS, OR
WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE.
d. This FSA shall not be construed as granting a license with
respect to any patent, copyright, trade name, trademark, service mark,
trade secret or any other intellectual property, now or hereafter owned,
controlled or licensable by Frontier. Customer agrees that Frontier has
not made, and that there does not exist, any warranty, express or
implied, that the use by Customer of Frontier’s Services and/or the
Equipment provided under this FSA will not give rise to a claim of
infringement, misuse, or misappropriation of any intellectual property
right.
e. Customer agrees that the Services and Equipment, and
Frontier’s performance hereunder are subject to the terms, conditions
and restrictions contained in any applicable agreements (including
software or other intellectual property license agreements) between
Frontier and Frontier’s vendors.
f. No action, regardless of form, arising out of this FSA or the
Schedules may be brought more than two (2) years after the cause of
action has arisen or charges have been billed whichever is earlier. The
parties hereby waive the right to invoke any different limitation on the
bringing of actions provided under applicable law.
6. Indemnification
Customer shall indemnify, defend and hold Frontier and its affiliates, and
their respective directors, officers, employees, successors, assigns and
agents, harmless from and against any and all claims, loss, damage,
cost or expense (including reasonable attorneys’ fees) to the extent
arising out or relating to any claim, action or proceeding brought by any
FRONTIER SERVICES AGREEMENT
Frontier Confidential
Ver. June 2015 Page 3 of 4
third party based upon: (i) Customer’s breach of this FSA; (ii) Customer’s
negligence or willful misconduct in the performance of its obligations
under this FSA; (iii) use of the Equipment or Services, including but not
limited to the content of communications transmitted thereby; (iv) any
infringement of intellectual property or misappropriation of any patent,
copyright, trademark, trade secret or other proprietary right arising from
Customer’s or any other person’s use of the Equipment or Services, any
combination of the Equipment or Services with other products or services
not provided by Frontier, or any modification of the Equipment or
Services by anyone other than Frontier; (v) any bodily injury (including
illness or death) or property damage caused by Customer or anyone
within its control. The obligations under this Section 6 are independent
of any other obligation under this FSA.
7. Confidentiality
a. Both parties agree that all terms and conditions set forth in this
FSA shall be considered confidential, and that details of the terms of this
FSA, shall not be disclosed to third parties, other than affiliates,
employees, agents or contractors who have a need to know such
information in the scope of their employment or engagement, without the
prior written consent of the other party, unless required by law.
b. Customer and Frontier may disclose to each other information
that is confidential in nature. In order to receive confidential treatment,
all such information (hereafter “Information”) shall be either (i) clearly
marked as confidential if written, or clearly identified as confidential if oral
or (ii) reasonably understood by the recipient, based on the nature of the
Information or the circumstances of disclosure, to be confidential or
proprietary to the discloser. Except as required by law or regulation,
Customer and Frontier agree not to disclose any Information to any third
party and to keep Information in a secure place available only to
employees, affiliates, contractors or agents who are subject to
obligations of confidentiality no less restrictive than those set forth
herein, and who need to know the Information for purposes of the
business dealing between Customer and Frontier, and to use Information
only in connection with such business dealings. This Section is
enforceable by injunction.
c. Information will lose its confidential status if obtained
legitimately from a third party without restriction or upon the expiration of
five (5) years from delivery of each item of Information. Information shall
remain the property of the disclosing party and shall be returned to such
party on request or upon termination of the business dealing between
Customer and Frontier.
d. Notwithstanding anything herein to the contrary, Frontier shall
have the right to include Customer’s name in a public list of current
customers who use Frontier’s services, provided Frontier does not make
any representation with respect to Customer and does not attribute any
endorsements to Customer, without Customer’s prior written consent. In
addition, Frontier may publicly identify Customer as a new customer of
Frontier or an existing customer obtaining expanded or additional
services from Frontier, as the case may be.
8. Breach
a. Breach by Customer: If Customer fails to make any payment
when due and such failure continues for five (5) days after notice, or
Customer fails to comply with any other term or condition of this FSA or
any Schedule and such failure continues for thirty (30) days after notice,
then Frontier may either suspend the applicable Schedule (or any portion
thereof) until the breach is remedied, terminate the applicable Schedule
(or any portion thereof), or terminate this FSA and all Schedules.
Notwithstanding the foregoing, Frontier may immediately suspend
Services and, after giving notice to Customer with an opportunity to
respond appropriate to the circumstances and Customer’s failure to
respond, Frontier may terminate any or all Services, retrieve Frontier
Network elements from the service location and Equipment for which title
has not transferred to Customer, in the following circumstances: (i) in
the event of unauthorized, unlawful or improper use or abuse of the
Frontier Network or Service; (ii) if, in the reasonable judgment of Frontier,
Customer’s use of the Frontier Network or Service has or will damage or
have an adverse effect on Frontier’s Network, its personnel, property or
service; (iii) such action is necessary to meet the exigencies of an
emergency; or (iv) a court or other governmental authority having
jurisdiction issues an order prohibiting Frontier from furnishing the
Equipment or Services to Customer.
b. Breach by Frontier: If Frontier has not remedied any breach
within thirty (30) days after Frontier’s receipt of written notice from
Customer of such breach (providing reasonable detail), Customer may
terminate the Service which is the subject of such breach. This is
Customer’s exclusive remedy for a breach by Frontier.
9. Force Majeure
In no event will Frontier or its affiliates be liable for any delay in
performance directly or indirectly caused by events beyond their control,
including, but not limited to: acts or omissions of Customer, its agents,
employees or contractors; acts of God; acts of the public enemy; acts of
the United States, a state or other political subdivision; fire, floods or
other natural disasters; accidents; wars; terrorism; cyber security events;
labor disputes or shortages; and inability to obtain material, power,
equipment or transportation.
10. Assignment
This FSA may not be assigned by either party without the other party’s
prior written consent, which consent shall not be unreasonably withheld
or delayed, except that Frontier may assign this FSA to any successor to
the business of Frontier by merger, consolidation or sale of assets or to
any corporation controlling, controlled by or under common control with
Frontier. Frontier may subcontract portions of the work to be performed
hereunder to provision the Services or Equipment.
11. Work Site Conditions
a. If asbestos, or material containing asbestos, or any other
hazardous or toxic materials are discovered during work pursuant to this
FSA, Frontier will suspend its work for a reasonable period of time to
permit Customer to engage a qualified firm to remove and dispose of the
asbestos or other toxic or hazardous materials from the site. Such
suspension may result in an equitable adjustment to the charges
identified in the related Schedule, based on any increase in costs
incurred by Frontier.
b. Customer agrees to release, indemnify, defend and hold
harmless Frontier from and against any damages, losses, claims,
demands or lawsuits arising out of or relating to the presence, removal or
disposal of asbestos or any other hazardous or toxic material from the
Customer’s premises or location where Services or Equipment will be
installed.
12. Title and Risk of Loss
a. Risk of loss or damage for Frontier Network elements installed
at a Customer designated service location shall pass to Customer at time
of delivery to Customer.
b. Any Frontier Network elements or Equipment installed at
Customer’s premises or location where Services or Equipment will be
installed (which is leased or for which title has not transferred to
Customer) remain the personal property of Frontier or Frontier’s
assignee, notwithstanding that it may be or become attached to or
embedded in realty, and upon termination of this FSA or any Schedule
(in whole or in part), all Frontier property shall be returned to Frontier in
the same condition as installed, normal wear and tear excepted.
Customer will not tamper with, remove or conceal any Frontier identifying
plates, tags or labels. In the event Frontier property is not returned to
Frontier in accordance with this Section, Customer will be billed for and
pay to Frontier an amount equal to the retail value of the Frontier
property, except to the extent such failure is caused by the negligence or
willful misconduct of Frontier or its agents.
FRONTIER SERVICES AGREEMENT
Frontier Confidential
Ver. June 2015 Page 4 of 4
13. Competition
Customer recognizes the availability of competitive alternatives for
receiving the Services and Equipment provided under this FSA, and has
freely elected to enter into this FSA in order to receive the benefits it
offers.
14. Government Regulation
To the extent that any Service(s) provided hereunder are subject to the
jurisdiction of the Federal Communications Commission (“FCC”) or any
state public utilities commission or other regulatory agency, this FSA
shall at all times be subject to changes, modifications, orders and rulings
by the FCC and/or state public utilities commission or other regulatory
agency. Frontier reserves the right to suspend, modify or terminate any
Service without liability where any statute, regulation and/or ruling,
including modifications thereto, by any regulatory agency (including the
FCC), legislative body or court of competent jurisdiction, (i) prohibits,
restricts or otherwise prevents Frontier from furnishing such Service, or
(ii) has a material negative impact on Frontier’s performance hereunder
or the benefits provided by this FSA. If provision of any Service pursuant
to this FSA is subject to advance approval of the FCC and/or any state
public utilities commission, this FSA shall not become effective with
respect to such Service until after receipt by Frontier of written notice of
such approval.
15. Governing Law
This FSA shall be governed by and construed according to the laws of
the State in which Services or Equipment are being provided hereunder
without regard to its conflicts of laws provisions. Any related litigation
may be brought in any State or Federal courts of competent jurisdiction
within such State. Customer and Frontier consent to personal
jurisdiction in such courts.
16. No Waiver
If either party fails, at any time, to enforce any right or remedy available
to it under this FSA, that failure shall not be construed to be a waiver of
the right or remedy with respect to any other breach or failure by the
other party.
17. Severability
A declaration by any court, or other binding legal source, that any
provision of this FSA or any Schedule is illegal and void, will not affect
the legality and enforceability of any other provisions of this FSA, unless
the provisions are mutually dependent.
18. Notice
All notices provided pursuant to this FSA will be in writing and delivered
by registered or certified US Mail, postage prepaid, or by commercial
overnight delivery service, or by facsimile, or by regular mail and shall be
deemed delivered either on the date of return receipt acknowledgment
(in the case of certified US Mail), or on the next day after the sending of
the notice if sent overnight mail, or three (3) days after mailing if by
regular mail to the address of the party designated to receive such
notice.
19. Independent Relationship
Each party understands and agrees that it and its personnel are not
employees of the other party, and that each party is an independent
contractor hereunder for all purposes and at all times.
20. Dispute Resolution
Except as otherwise specifically provided in or permitted by this FSA, all
disputes arising in connection with this FSA shall first be resolved
through good faith negotiation. If, after negotiating in good faith for a
period of ninety (90) calendar days or any agreed further period, the
parties are unable to resolve the dispute, then each party may seek
resolution by exercising any rights or remedies available at law or in
equity. Customer and Frontier agree that each may only bring claims
against the other in an individual capacity and not as a plaintiff or class
member in any purported class, representative, or private attorney
general proceeding.
21. Authorization and Entire Agreement
Each party represents that the person executing this FSA is authorized
to enter into this FSA on its behalf. This FSA and any Schedules
executed by the parties constitute the entire agreement between the
parties pertaining to the subject matter herein and supersedes all prior
oral and written proposals, correspondence and memoranda with respect
thereto. This FSA may not be modified, amended or supplemented
except by written agreement signed by an authorized representative of
each party. Notwithstanding anything otherwise stated, a Customer
purchase order document (whether signed by one or both parties) shall
be construed solely as evidence of Customer’s internal business
processes, and the terms and conditions contained thereon shall be void
and of no effect or application toward this FSA.
Frontier Communications of America, Inc.
City of Azusa
Frontier’s Signature:
{{Sig1_es_:signer2:signature}}
Customer’s Signature:
{{Sig1_es_:signer1:signature}}
Printed Name: {{Name2_es_:signer2:fullname}} Printed Name: {{Name1_es_:signer1:fullname}}
Title: {{Ttl2_es_:signer2:title}} Title: {{Ttl1_es_:signer1:title}}
Date: {{Dte2_es_:signer2:date}} Date: {{Dte1_es_:signer1:date}}
Contractual Notice: Frontier Communications
111 Field Street
Rochester, NY 14620
Attn: Legal Department
Contractual Notice:
City of Azusa
213 E Foothill Blvd
Azusa, California, 91702
Attn: Ann Graf