One Call,,A,,ppr:c-)a r ;'o L] O, - CO APPROV ED, AS TO
~S AG~E~NT, dated Janua~ 15~ 2002 is ente~d ~to by ~d be~een One C~I Coruscations, he., ~ ~di~a co~oration, of 801
Con~essin~l Bouiev~d, Suite 100, C~el, ~di~ 46032 (he~aRer refe~ed to ~ "One C~I") ~d
CITY OF CARMEL, THREE CIVIC SQUAP~, CARMEL, IN 46032
whose address is shown on the last page of this Agreement (harethaf~er referred to as "Customer").
WHEREAS, One Call is engaged in the business of providing network communications services and Interact access services, and
WHEREAS, Customer desires to have One Call provide network eommunicatinns services and Interact access services,
NOW, THEREFORE, it is agreed as follows:
1. Services, One Call will provide the services set forth in Exhibit A attached hereto, (the "Services") commencing on circuit installation (the "Start
Date"). The Services shall apply only to transmissions passing through the public Interact. Virtual private data network services and services
involving protocols other than Internat protocols are specifically excluded from the Services.
2. Fees. Customer will pay One Call for the Services th accordance with the schedule of fees set forth in Exhibit A attached itereto, (the "fees").
Payment for Services: One Call witl invoice Customer on a monthly basis for Services provided to Customer during the following calendar month.
Payment of each monthly invoice shall be due within thirty (30) days after the first (lst) of the calendar month covered by each invoice. A late
payment fee equal to the lesser of the highest percentage allowed by applicable law or eighteen percent (18%) per annum on all overdue payments
wilt be due and payable by Customer, said fee to be computed daily from the date payment was due until payment is received by One Call. All
amounts owing by Customer shall be payable with reasonable attorney fees in the event legal or court proceedings are initiated for the collections
thereof.
3. Customer Responsibilities. Customer will perform the tasks and provide the equipment identified below hereto ("Customer Responsibilities")
prior to One Call's performance of the Services. Failure of Customer to perform any of Customer Responsibilities that are required to be performed
on or before the Start Date shall constitute a material breach of this Agreement by Customer.
a. Tasks. Customer will provide One Call with emergency contact name and number. Customer will cooperate with One Call on routing issues and
One Call's Acceptable Use Policy (AUP). Customer agrees to cooperate with One Call on router configurations. One Call requires e-mail
notification of Customer roufmg changes, one Call agrees this information will be used only for purposes related to configuration of One Call
operated equipment.
b. Equipment. Customer will provide all Terminating Equipment. Example: CSU/DSU, Router, Cabling, etc...
4. Term of Agreement. The term of this Agreement shall be for a period of 36 monthso commencing on the date hereof, and tiffs Agreement will
automatically be renewed for successive periods of twelve (12) months each unless written notice is given by one party to the other prior to the
expiration of the current term of such party's intent to terminate at the end of such term.
5. Service Interruption. Customer shall notify One Call immediately if the Services are interrupted for any reason. One Call will investigate the
cause of the interruption within a reasonable period of time and notify Customer of the cause. If One Call caused the interruption, then One Call
shall use reasonable efforts to correct the cause and restore the Services to Customer. If, the interruption was caused by Customer or Customer's
equipment, then Customer shall be solely responsible for correcting the cause. One Call will cooperate with Customer in correcting any interruption
caused by Customer or Customer's equipment.
6. Maintenance of Customer Equipment. Customer shall maintain and service all equipment identified in Paragraph 3 above and any other
equipment used by Customer in connection with the Services, which is not provided One Call.
7. Regulatory Matters. Customer shall at all times comply with and conform to all federal, state and local laws, rules, regulations, ord;maaces,
tariffs, dockets, orders, and guidelines applicable. Customer shall permit One Call to take whatever steps are reasonably necessary to ensure that One
Call is in compliance with all federal, state and local laws, tales, regulations, ordinances, tariffs, dockets, orders and guidelines applicable.
8. Limited Warranty and Disclaimer. One Call will provide the services to Customer in conformity with industry standards for the Services.
Otherwise the services are provided "as is." Except for the limited wan'anty in this section 8, One Call makes no other warranties, express or
implied, with respect to the services, and One Call specifically disclaims all other express or implied warranties, including any implied warranties of
merchantability or fitness for a particular purpose. One Call does not warrant that the services will be uninterrupted.
9. Limitation of Liability. One Call's liability to customer hereunder for damages, regardIess of the legal theory of the claim, shall not exceed all
amounts actually paid to One Call under this agreement for the services and such claim for a return of mounts paid shall be customer's exclusive
remedy for any damages. Further, One Call shall not be liable to customer for lost profits or for any special, incidental, or consequential damages
whatsoever, even if one Call knew about the possibility of such damages. One Call is expressly not liable for any damages that may occur to
customer's data, business, or business relationships due to malfunctioning or interruption of the services.
I0. lndanufffication. Customer shall defend, indemnify, and hold harmless One Call and its directors, officers, agents, officials, and employees fi'om
and against any and all claims, actions, causes of action, liabilities, fines, penalties, judgments, liens, and costs and expenses, including court costs
and reasonable attorney fees arising out of any negligent or willful act or omission by Customer; any material breach of this Agreement by Customer;
any failure by Customer to comply with any applicable federal or state laws, rules, regulations, tariffs, dockets, laws, ordinances, orders or
guidelines, or other regulatory requirements applicable to Customer; or any claim by a third pared related to any activities of Customer in connection
with the Services unless caused by the negligent or willful act or omission of One Call. one Call shall defend, indemnify, and hold harmless
Customer and its directors, officers, agents, officials, and employees fi.om and against any and all claims, actions, causes of action, liabilities, fmcs,
penalties, judgments, liens, and costs and expenses, including court costs and reasonable attorney fees arising out of any negligent or willful act or
omission by One Call; any material breach of this Agreement by One Call; or any failure by One Call to comply with any applicable federal or state
laws, rales, regulations, tariffs, dockets, laws, ordinances, orders or guidelines, or other regulatory requirements applicable to One Call.
11. Termination. In addition to all other rights of termination as herein provided, both Customer and One Call shall have a right to terminate this
Agreement by reason of a material breach by the other party of any terms of this Agreement if such breach is not cured within th/rty (30) days after
written notice of such breach is given to the breaching party. One Call may terminate this Agreement at any time upon written notice to Customer if
its current network facilities or arrangements are terminated for any reason beyond the control of One Call.
12. User Relations. Customer shall be responsible for communicating with its users of the Services provided by One Call. Customer shall
independently establish the charges to its users for the Services provided in cormection with this Agreement. Customer shall be solely responsible
for passwords and any other security systems implemented by Customer or its users of the Services provided under tiffs Agreement. Customer
acknowledges that information transmitted using the Services may be publicly accessible. Customer shall assume sole responsibility for determining
whether ~my transmitted information is confidential and shall advise its users of the public accessibility of information transmitted using the services.
One Call assumes no responsibility for protecting the privacy of any information transmitted using the Services and no responsibility for limiting
access to such information.
13. Fome Majeure. To the extent that either Customer or One Call shall be prevented or delayed fi.om performing hereunder or giving any notice
because of any event or circumstance over which such parties have no reasonable control (including, without limitation, war, fire, civil commotion,
strike, flood, power shortages or outages, conununicatinns breakdowns and outages, acts or orders or regulatory agencies having jurisdiction, and the
like), then such par~ shall be excused from performing or giving such notice for the duration of such event or Force Majeure, provided, however,
that if the duration of the delay caused by such an event shall exceed thirW (30) days, the patty who was to benefit fi.om the performance of such act
shall have the right to terminate this Agreement by giving written notice to the other party under and pursuant to Paragraph 11 hereof.
14. Nature of Ralationship Between Parties. Nothing herein shall be construed to place the parties in a relationship of partners or jotht ventures, and
this Agreement does not make either partT the agent or legal representative of the other for any purpose whatsoever. The parties further agree that no
representation shall be made by either party that would create an apparent agency, employment, partnership, or joint venture. Neither party shall
have the power, expressed or implied, to obligate or bind the other th any mariner whatsoever. Neither party shall be responsible for any act or
omission of the other or any employee nfthe other. No employee nfOne Call is or shall be considered an employee of Customer and no employee of
Customer shall be considered an employee of One Call for any purpose in cotmectinn with the performance of Services under this Agreement.
15. Changed Business and Economic Conditions. The parties hereto recognize and affirm that the fee schedule set forth in Exhibit A is based upon
current business and economic condition in the telecormnunicaimns thdush3t in the United States and that such business and economic conditions
may adversaly change th the future by reason of competition, thdasta~ consolidation, governmental regulation, loss by One Call of current network
facilities or arrangements, and factors which are beyond the control of One Call. In view of these factors, One Call may change the fee schedule at
any time upon thirW (30) days prior written notice to Customer. If the changed fee schedule is not acceptable to the Customer, Customer may
terminate this Agreement, without penalty, under and pursuant to Paragraph 11 hereof.
16. Bmdquptcy. In the event either One Call or Customer becomes bankrupt (files a petition in bankruptcy or has an involuntary petition th
bankruptcy flied against them and said petition is not dismissed within sixty (60) days of such filing), the other patty may elect to terminate this
Agreement by written notice effective at the end of the ealeadar month such notice was given.
17. Arbitration. All claims or disputes arising out of this Agreement or the alleged breach thereof shall be decided by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association then in existence unless the pardes mutually agree otherwise. Notice of
the demand for arbitration shall be submitted th writing to the other party to the Agreement and to the American Arbitration Association. Ail
arbitration proceedings and hearings shall be held in Indianapolis, Indiana. Any arbitration award shall be binding and enforceable in any court
having jurisdiction of the parties hereto. The cost of the arbitration proceeding, exclusive of each party's own attorney fees and out-of-pockat
expenses, shall be borne by the par~ who does not prevail at arbitration.
18. Notices. Any notice either par~ desires to give the other pai~ hereunder shall be in writing and shall be delivered by fa'st class United States
mail, postage prepaid, addressed to the parties at their addresses set forth below unless such addresses are changed by written notice from time to
time. Written notices may also be faxed to either patty, but, to be effective, the notice must also be mailed as aforesaid.
If to One Call: Attn: President, One Call Communications, Inc., 801 Congressional Boulevard, Carmel, Indiana 46032 Fax 317-580-7421
ffto Customer: Arm: City Attorney, City of Carmel, City Hall, One Civic Square, Carmel, Indiana 46032 Fax 317~571-2484.
19. Non-Waiver. No term or provision of this Agreement shall be deemed waived and no breach or default shall be deemed excused unless such
waiver or consent shall be th writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a
breach or default by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach or
default.
20. Usage Determination. Bandwidth utilization to be determined as the greater of the inbound or the outbound traffic, calculated as a 95th percentile
average of 5-minuta router samplings. In the event that bandwidth utilization as calculated fi.om above exceeds the purchased bandwidth, the usage
fee may automatically increase to the next applicable bandwidth increment.
21. Assignment. This Agreement may not be assigned by Customer except with the written consent of One Call, which consent shall not be
unreasonably withheld.
22. Governing Law. The Laws of the State of Indiana shall govern this Agreement and any disputes relating thereto.
23. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties.
24. Headings and Titles. The headings and titles in this Agreement are for convenience of reference only and shall not be construed to define or limit
any of the terms herein or affect the meanings or interpretations nf this Agreement.
25. Entire Agreement. This Agreement represents the entire understanding between the parties regarding the subject matter hereof and supersedes
all other prior and contemporaneous agreements, understandings, negotiations, and discussions between the parties with respect to such subject
matter.
26. Severabitity. If any provision of this Agreement is held by a court of eompntent jurisdiction to be contta~ to law, the remaining provisions of
this Agreement will remain in full of force and effect.
IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement the day and year first above written
ONE CALL COMMUNICATIONS, INC.
CITY OF CARMEL
(One Call)
By:
Printed Name: JOSEPH A. PENCE
Title: PRESIDENT
(Customer) ~.
Printefi~ ~me: ~4/~t~ ~
Customer Address:
Attention:
Contact Number:
Fax Number:
Emergency Number:
Technical Contact
Contact Number: ~t~]__
Emergency Number:
Maintenance E-Mail Notification
~1. c-~u-rn¢/, tr~.
1N WITNESS WHEREOF, the parties hereto have made and executed this Rider as follows:
CITY OF CARMEL, iNDIANA ("CITY")
By and through its Board of Public Works
and Safety
BY:
fa/roes Brainard, Presiding Officek
Date:, ~-~ ,- dT,~
Maw ~n~B ~ n_/~
Date: / ,.2 --~ t9 ~
Billy~vValker, Member
Date: /?, "~ ~-
("VENDOR")
One Call Communications, Inc.
Title
FID/SSN:
Date:
ATTEST:
Diana Cordray, IMjOA'~ Clerl~-,Treasurer
EXHIBIT A
DESCRIPTION OF SERVICES
1. 1.544 KJlobits Per Second (KbPS) bandwidth. (Clear Channel DS- 1 )
2. One (1) DS-I port connection to One Call Interact (IndyX) backbone.
3. One (1) DS- 1 circuit fi'om CITY OF CARMEL (COC), THREE CIVIC SQUARE, CARMEL~ IN 46032 to 801 Confessional Blvd.,
Cannel, Indiana 46032 (Indy X co-location).
4. Delivery of items witl~ 45 days from date of order. Local loop is not provided by One Call. Installation of local loop may be additional days
based on volume of orders lecal loop provider is experienchag.
SCHEDULE OF FEES
Initial Fees:
One Call installation fee is
Circuit Install COC DS-I
250.00
212.00
Usage Fees: Monthly bandwidth charge is 256.00
Port Fees: Monthly DS-1 port charge is 250.00
Circuit Fees:
Monthly circuit from COC to hadyX DS-I
i79.00 36Mo.
Signature of Customer
Name of Company:
Address & Zip:
Telephone No.:
Fax No.:
EXHIBIT B
Professional Services Invoice
Date:
Project Name:
Invoice No:
Person
Performing
Service
Service
Date
Services Provided Hourly
(Describe in detail in one-Rate
tenth hour units)
Hours
Worked
Total
GRAND TOTAL
Signature
Printed Name