ORDER NO. 3 05 77 UPGRADE BROADBAND INTERNET SERVICES WITH TIME WARNER CABLE Came to be heard this the 22nd day of October, 2007, with a motion made by Commissioner Baldwin, seconded by Commissioner Oehler. The Court unanimously approved by vote of 4-0-0 to: Approve updating the broadband Internet services agreement with Time Warner Cable, and authorize the County Judge to sign same. 3aS~ ~ (, 4 COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND TEN COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT. MADE BY: John D. Trolinger MEETING DATE: October 22,2007 OFFICE: Information Technology TIME PREFERRED: Any SUBJECT: Consider discuss and take appropriate action to update the broadband. Internet services agreement with Time Warner Cable. Authorize the County Judge to sign same. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: John D. Trolinger ESTIMATED LENGTH OF PRESENTATION: 1 minutes IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays THIS REQUEST RECEIVED BY: THIS REQUEST RECEIVED ON: All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards you request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. 5:00 P.M. previous Tuesday. ~~~ Commercial Services Agreement For good and valuable consideration, including the mutual covenants contained herein, this Commercial Service Agreement is made by and between Time Warner Cable -Southwest Division ("TWC")and the Customer identified below ("Customer"). Customer: KERB COUNTY COURTHOUSE Contact: JOHN TROLINGER Address: 700 MAIN ST Cit : KERRVILLE State: TX Zip: 78028-5323 Telephone #: 830-370-1238 Fax: Email: jtrolinger@co.kerr.tx.us TWC: Southwest Division -Corpus Christi, Kerrville, South Central Contact: R an M Brown Telephone #:866-892-4249 / 956-365-6683 Fax: 830-257-6776 Email: ryan.brown@twcable.com (`r. of Cor~riroe• Price 10x1.5 Mbps DOCSIS Internet Access 459.95 /29 IP Subnet - 5 Public Static IPs 40.00 Term Discount -Renewable (165.58) Total ~ 334.37 ~ Billing address if different from above: Same 1. FEES: An installation fee in the amount of $~ $99.95 (discount install, IP Block registration & modem activation.) and first month's service payment in the amount of $334.37 is due upon installation. Prices are subject to change after the Initial Term of this Agreement and do not include taxes, which will be assessed in addition. Customer shall pay TWC for the Services $334.37 each month thereafter for duration of the Initial or any Renewal Term. 2. TERM AND TERMINATION: This Agreement shall be effective on the installation date and shall run for a period of 36 months (the "Initial Term"). Upon mutual agreement of the Parties, this Agreement may be renewed each year thereafter for one or more successive 12- month periods (each a "Renewal Term"). This Agreement may be terminated by Customer at any time, provided however that if Customer terminates this Agreement before the expiration of the Initial Term or any Renewal Term, or in the event of any default by Customer at any time, Customer agrees to pay TWC an early termination fee of $250.00. TWC shall have the right to terminate this Agreement at any time (i) after the expiration of the Initial Term or (ii) upon Customer's material breach of this Agreement. Upon termination of this Agreement, neither party shall have any further obligations hereunder, except for obligations accruing prior to the date of termination, including the obligations surviving termination of this Agreement. IN WITNESS WHEREOF, the parties to this Agreement have caused thireemejn-t~ to be my e ecuted y ~uyt"ho,.ri~z'ed personnel as of the date set forth above. ~>i~,(- ~`'~ ~ ~~ ~;J1b,~.~,~ Time Warner Cable: Customer: ~~~'( X' gy. By: ~ Its: Its: Note: Additional terms and conditions on reverse side or 2"d page.... TtM€ WARNEF LABL€ 13a$~rtess ~~~~~ ~--.. ADDENDUM TO COMMERCIAL SERVICES AGREEMENT BETWEEN 1. KERR COUNTY COURTHOUSE AND TIME WARNER AND 2. KERR COUNTRY SHERIFF AND TIME WARNER The following changes need to be made to the contract as noted by contract paragraph #: I) Payment is subject to budgeted funds. 2) Term is subject to budgeted funds. In event funds are not budgeted it is not deemed a breach of contract. 5) Indemnification is only to the extent allowed by Texas law. 8) Customer is only subject to modified terms after written notice. 7.0) Payment subject to budgeted funds. 12.0) Indemnification to extent allowed by Texas law. Kerr County will make a good faith effort to budget funds in future fiscal years and will immediately notify contractor in event funds are not budgeted. Commercial Services Agreement For good and valuable consideration, including the mutual covenants contained herein, this Commercial Service Agreement is made by and between Time Warner Cable -Southwest Division ("TWC") and the Customer identified below ("Customer"). Customer: KERR COUNTY SHERRIF OFFICE Contact: JOHN TROLINGER Address: 400 CLEARWATER PASEO Cit : KERRVILLE State: TX Zip: 78028-5629 Telephone #: 830-370-1238 Fax: Email: jtrolinger@co.kerr.tx.us TWC: Southwest Division -Corpus Christi, Kerrville, South Central Contact: R an M Brown Telephone #:866-892-4249 / 956-365-6683 Fax: 830-257-6776 Email: ryan.brown@twcable.com (~nmmArrial Sarvicas• Price 10x1.5 Mbps DOCSIS Internet Access 459.95 /29 IP Subnet - 5 Public Static IPs 40.00 Term Discount -Renewable (165.58) Total ~ 334.37 ~ Billing address if different from above: Same 1. FEES: An installation fee in the amount of $95 S99.95 (discount install, IP Block registration & modem activation.) and first month's service payment in the amount of $334.37 is due upon installation. Prices are subject to change after the Initial Term of this Agreement and do not include taxes, which will be assessed in addition. Customer shall pay TWC for the Services $334.37 each month thereafter for duration of the Initial or any Renewal Term. 2. TERM AND TERMINATION: This Agreement shall be effective on the installation date and shall run for a period of 36 months (the "Initial Term"). Upon mutual agreement of the Parties, this Agreement may be renewed each year thereafter for one or more successive 12- month periods (each a "Renewal Term"). This Agreement may be terminated by Customer at any time, provided however that if Customer terminates this Agreement before the expiration of the Initial Term or any Renewal Term, or in the event of any default by Customer at any time, Customer agrees to pay TWC an early termination fee of $250.00. TWC shall have the right to terminate this Agreement at any time (i) after the expiration of the Initial Term or (ii) upon Customer's material breach of this Agreement. Upon termination of this Agreement, neither party shall have any further obligations hereunder, except for obligations accruing prior to the date of termination, including the obligations surviving termination of this Agreement. IN WITNESS WHEREOF, the parties to this Agreement have caused this A`ent to be 1 executed b a horiz d ers ,ne~l ~,/~ as of the date set forth above. ~'L~r ' ~~ ~~~~~'` ~ r 1 Time Warner Cable: Customer: ~~ Xv By: Its: Note: Additional terms and conditions on reverse side or 2"d page.... /(~'(IME WARNEYt CABLE Business Class ADDENDUM TO COMMERCIAL SERVICES AGREEMENT BETWEEN L KERR COUNTY COURTHOUSE AND TIME WARNER AND 2. KERR COUNTRY SHERIFF AND TIME WARNER The following changes need to be made to the contract as noted by contract paragraph #: 1) Payment is subject to budgeted funds. 2) Term is subject to budgeted funds. In event funds are not budgeted it is not deemed a breach of contract. 5) Indemnification is only to the extent allowed by Texas law. 8) Customer is only subject to modified terms after written notice. 7.0) Payment subject to budgeted funds. 12.0) Indemnification to extent allowed by Texas law. Kerr County will make a good faith effort to budget funds in future fiscal years and will immediately notify contractor in event funds are not budgeted. 3. SYSTEM AND SERVICES: Definitions. The term "Services" shall mean the services indicated above. The term "System" which shall remain the personal property of TWC at all times, shall mean all property of whatever kind or nature required to provide the Services and that TWC installs on or within the premises, including without limitation on all aerial cable, buried, cable, and cable located within the physical structure located on the premises, which is identified as KERB COUNTY COURTHOUSE (the "Premises"). TWC shall have the sole right to use the System. Provision of the Services: TWC shall use commercially reasonable efforts to install and maintain the System and to provide the Services. Maintenance: TWC will provide maintenance required in the regular operation of the System during regular business hours at no charge to Customer. In the event service is required to the System as a result of any work, installation, construction, or other activity by Customer or any third party on behalf of Customer, Customer shall pay TWC for such service on a time and materials basis at TWC's then applicable rates. Required Notices: Customer shall take reasonable precaution to notify its agents, employees, third party contractors and any other persons or entities acting on behalf of or at the direction of Customer of the location of TWC's System and shall notify TWC of any hazards, whether or not obvious, on or within the Premise prior to TWC installing the System or performing Services. Notwithstanding any other provision of this Agreement, TWC has the exclusive right to use and allow use of the System. Removal: Upon termination of this Agreement, TWC, at its option and expense, may remove all or any part of the System installed on or within the Premise and Customer shall allow TWC access for such removal. 4. ACCESSEASEMENT. Customer agrees to execute an easement appurtenant in the Premise (in form reasonably satisfactory to TWC) granting TWC access for the purpose of installing, maintaining, and removing the System and performing the Services. TWC will record the executed easement in the real property records in the county where the Premises is located. 5. INDEMNIFICATION: AND LIMITATION OF WARRANTY AND LIABILITY: CUSTOMER AGREES To INDEMNIFY, DEFEND, AND HOLD HARMLESS TWC AND ITS AFFILIATES, OFFICERS, DIRECTORS, PARTNERS, AGENTS, CONSULTANTS, AND EMPLOYEES (COLLECTIVELY, "INDEMNITEE") FROM AND AGAINST ANV AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS, AND LIABILITIES OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND REASONABLE ATTORNEYS' FEES THAT ANY INDEMNITEE INCURS BY REASON OF THE USE OR OCCUPANCY OF THE PREMISES BY CUSTOMER, ITS AGENTS OR EMPLOYEES, OR BY REASON OF CUSTOMER'S BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT, EXCLUDING ANY LOSS OR DAMAGE TO THE EXTENT ARISING FROM ANY NEGLIGENT ACT OR OMISSION OF TWC, ITS AGENTS OR EMPLOYEES. TWC AGREES INDEMNIFY AND HOLD HARMLESS CUSTOMER FROM AND AGAINST ANY AND ALL DAMAGES OR CLAIMS FOR DAMAGE ARISING OUT OR RELATED TO TWC'S CONSTRUCTION AND MAINTENANCE OF THE SYSTEM, EXCLUDING ANY LOSS OR DAMAGE TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH ANY NEGLIGENT ACT OR OMISSION OF CUSTOMER, ITS AGENTS OR EMPLOYEES. TWC DISCLAIMS ALL WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE: TWC'S LIABILITY TO CUSTOMER SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER AND RECEIVED BY TWC UNDER AND PURSUANT TO THIS AGREEMENT. TWC WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER ENTITY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, EVEN IF TWC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 6. EXCUSABLE DELAY. Neither party shall be In default of its obligations under this Agreement or liable to the other party for any noncompliance arising from causes beyond its reasonable control, including without limitation fires, floods, natural disasters, storms, and other acts of God ("Force Majeure"), provided however, if such Force Majeure continues for a period in excess of sixty (60) days, the parties agree to terminate the Agreement. 7. INSURANCE. Customer shall procure and maintain, at its sole cost and expense, general liability and general commercial liability insurance sufficient to meet the statutor~reauirements of the State of Texas. Customer shall provide TWC with proof of such insurance upon TWC's request from time to time. 8. MISCELLANEOUS. This Service Agreement shall at all times be subject to the Commercial Service Agreement Terms and Conditions (the "Conditions and Terms of Use"), which are available at htto //www twcbc com/corporate/termsandconditions html and which are incorporated herein for all purposes. Customer has read and agrees to be bound by the Terms and Conditions, as it may be modified from time to time. Each party hereto shall be an independent contractor and nothing in this Agreement should be construed to create any partnership, master-servant, employer employee, joint venture, or agency relationship between the parties. Neither party has any authority under this Agreement to enter into agreements of any kind on behalf of the other, or to bind or obligate the other in any manner to any third party. If Customer sells, transfers or encumbers the Premises, such sale; transfer or encumbrance shall be subject to the terms and conditions of this Agreement. Each party represents and warrants that it has the full power and authority to undertake the obligations set forth in this Agreement and that it has not entered into any other agreement that renders it incapable of performing its obligations under this Agreement. This agreement sets forth the entire agreement of the parties relating to the subject manner hereof and supersedes all prior written or oral understandings, agreements or representations by or between the parties with respect to such subject matter. Any modification or waiver of the provisions of this Agreement will be effective only if it is in writing signed by an authorized representative of the party to be charged. No provisions of any additional work request or similar document shall be applicable if they conflict with or add to the terms of this Agreement. The provisions of Sections 1,3,5, and 8 of this Agreement will survive the expiration or termination of this Agreement. No delay or failure on the part of any party hereto in exercising any right, power or privilege under this Agreement or under any other instruments given in connection with or pursuant to this Agreement shall impair any such right, power or privilege or be construed as a waiver of any default or any acquiescence therein. No single or partial exercise of any such right, power or privilege shall preclude the further exercise of such right, power or privilege, or the exercise of any other right, power or privilege. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, such provision shall be enforced to the greatest extent permitted by law and the remainder of the Agreement and the application of such provision to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. No assignment of this Agreement or the rights and obligations hereunder shall be valid without the prior written consent of the non-assigning party, such consent to not be unreasonably withheld. This Agreement shall inure to the benefit of and shall be binding upon Customer, TWC and their respective successors, heirs and assigns. All questions concerning the validity, operation, interpretation, and construction of this Agreement are governed by and will be determined in accordance with the laws of the State of Texas, without regard to its conflicts of laws. The parties to this Agreement expressly agree that venue of all disputes; claims or lawsuits arising hereunder shall lie in Dallas County, Texas. ~ r~~E wn~ztier~ cneL~ Business Class RE: Internet Access Services agreement Subject: RE: Internet Access Services agreement From: "Rex Emerson" Date: Fri, 19 Oct 2007 12:48:49 -0500 To: "John D. Trolinger" John, I reviewed the agreement and the referenced Business Class Services Agreement. The following areas will need to be addressed as noted by contract paragraph #: 1) Payment is subject to budgeted Bands. 2) Term is subject to budgeted funds. In event funds are not budgeted it is not deemed a breach of contract. 5) Indeminification is only to the extent allowed by Texas law. 8) Customer is only subject to modified terms after written notice. 7.0) Payment subject to budgeted funds. 12.0) Indemnification to extent allowed by Texas law. For contractor assurance you r_an add a phrase stating that County will make good faith effort to budget funds and will immediately notify contractor in event funds are not budgeted. Explain to contractor that because it is a multi-year contract and County cannot by statute spend unbudgeted monies we must have the "subject to budget" language. Rex -----Original Message----- From: John D. Trolinger [mailto:jtrolrnger@co.kerr.tx.us] Sent: Tuesday, October 16, 2007 i:04 FM To: Rex Emerson Subject: Internet Access Services agreement Rex, Attached are r,ew service agreements from Time Gdarner Cable. This is a change to the original contracts of July 2005. Charges are we get higher speed service and a lower price. This will be or. the Oct 22 commissioners court agenda. Please review the contract for the court. Thank you, John D. Trolinger Kerr County IT Manager 830-370-1238 cell 1 of 1 10/19/2007 2:09 PM Jody Grinstead From: John D. Trolinger [jtrolinger@co.kerr.tx.us] Sent: Monday, October 22, 2007 10:49 AM To: Jody Grinstead Subject: [Fwd: Re: Internet Access Services agreement] Attachments: Re_ Internet Access Services agreement (1.59 KB) Re_ Internet Access Services a... Jody, The Time Warner contract needs to have the following addendum. The following areas will need to be addressed as noted by contract paragraph #: 1) Payment is subject to budgeted funds. 2) Term is subject to budgeted funds. In event funds are not budgeted it is not deemed a breach of contract. 5) Indemnification is only to the extent allowed by Texas law. 8) Customer is only subject to modified terms after written notice. 7.0) Payment subject to budgeted funds. 12.0) Indemnification to extent allowed by Texas law. Add a phrase stating that County will make good faith effort to budget funds and will immediately notify contractor in event funds are not budgeted. Explain to contractor that because it is a multi-year contract and County cannot by statute spend un-budgeted monies we must have the "subject to budget" language. Thanks, John D. Trolinger Kerr County IT Manager 830-370-1238 cell Call for work Stoppages Email with work Requests 1 Jody Grinstead From: Rex Emerson [remerson@co.kerr.tx.us] Sent: Friday, October 19, 2007 12:49 PM To: John D. Trolinger Subject: RE: Internet Access Services agreement John, I reviewed the agreement and the referenced Business Class Services Agreement. The following areas will need to be addressed as noted by contract paragraph #: 1) Payment is subject to budgeted funds. 2) Term is subject to budgeted funds. In event funds are not budgeted it is not deemed a breach of contract. 5) Indeminification is only to the extent allowed by Texas law. 8) Customer is only subject to modified terms after written notice. 7.0) Payment subject to budgeted funds. 12.0) Indemnification to extent allowed by Texas law. For contractor assurance you can add a phrase stating that County will make good faith effort to budget funds and will immediately notify contractor in event funds are not budgeted. Explain to contractor that because it is a multi-year contract and County cannot by statute spend unbudgeted monies we must have the "subject to budget" language. Rex -----Original Message----- From: John D. Trolinger [mailto:jtrolinger@co.kerr.tx.us] Sent: Tuesday, October 16, 2007 1:04 PM To: Rex Emerson Subject: Internet Access Services agreement Rex, Attached are new service agreements from Time Warner Cable. This is a change to the original contracts of July 2005. Changes are we get higher speed service and a lower price. This will be on the Oct 22 commissioners court agenda. Please review the contract for the court. Thank you, John D. Trolinger Kerr County IT Manager 830-370-1238 cell 1 Page 1 of 1 Jody Grinstead From: Rex Emerson [remerson@co.kerr.tx.us] Sent: Tuesday, October 23, 2007 4:35 PM To: Jody Grinstead Subject: RE: [Fwd: Internet Access Services] It is in the commercial services agreement referenced and incorporated in the contract. -----Original Message----- From: Jody Grinstead [mailto:jgrinstead@co.kerr.tx.us] Sent: Tuesday, October 23, 2007 3:27 PM To: remerson@co.kerr.tx.us Subject: FW: [Fwd: Internet Access Services] Rex: John Trolinger sent me the following information with regards to the attached contract. He said you provided him with the ~~changes" listed below. However, there is no paragraph #12 in the contract?? Help!! O Thanks! Jody -----Original Message----- From: John D. Trolinger [mailto:jtrolinger@co.kerr.tx.us] Sent: Monday, October 22, 2007 4:09 PM To: Jody Grinstead Subject: [Fwd: Internet Access Services] attached Thanks, John D. Trolinger Kerr County IT Manager 830-370-1238 cell Call for work Stoppages Email with work Requests 10/23/2007