By
PAY TELEPHONE COMMISSION AGREEMENT
This agreement is entered into between FSH Communications, Inc Corporation (hereinafter “FSH Communications, Inc”) and the City of Portland (hereinafter “City”).
WHEREAS the City is responsible for the placement of public telephones on the City rights of way and City property and has arranged for the placement on such premises of public telephones, the parties agree as follows:
1. Public Pay Telephones. The City represents and warrants that it is authorized to make decisions concerning public telephone service on City rights of way and City property, including the right to select the primary interexchange carrier for operator assisted (“0+”) interLATA telephone calls placed from those locations.
The City hereby selects FSH Communications, Inc Corporation (“FSH Communications, Inc”) as the “0+” PIC for FSH Communications, Inc’s public telephones on City rights of way and City property, and it appoints FSH Communications, Inc as its Agent for the purpose of submitting City’s selection of FSH Communications, Inc as its PIC for such telephones. The City also agrees that it will promptly sign and return any ballot received in connection with “equal access” for public telephones that it receives, and to name FSH Communications, Inc as the City’s “0+” PIC on such ballots. Nothing in this Agreement requires the City to route “1+” interLATA calls to FSH Communications, Inc from the telephones covered by this Agreement.
The City, whenever necessary, will inform FSH Communications, Inc of the telephone line numbers for City Public Telephones (“Locations”) and all changes or additions to those numbers. The City may direct the appropriate LEC or other public telephone provider to provide FSH Communications, Inc with such information, but FSH Communications, Inc is not obligated to pay commissions unless and until it has been provided with correct line numbers for the LEC public telephones. The City, subject to the City’s ongoing responsibility for public health, safety, and welfare, will use its best efforts to retain the placement of City public telephones at current locations during the term of this Agreement.
2. Commission. FSH Communications, Inc shall pay the City a commission equal to 25% of monthly FSH Communications, Inc billed revenues on “FSH Communications, Inc Commissionable Calls” which are: collect calls, calls billed to a third telephone number and calls billed to telephone calling cards or major credit card originated from authorized public pay telephones excluding all 500, 700, 900, toll-free type numbers (e.g. 800, 888, 877, etc.), Directory Assistance Calls, and calls charged to a FSH Communications, Inc calling card (whether or not branded “FSH Communications, Inc”) issued to a business, and handled through FSH Communications, Inc’s OSPS and carried on the FSH Communications, Inc network.
a. The City is in compliance with all of the requirements in Section 1 above.
b. To the extent allowed under Oregon law, the City will indemnify and hold FSH Communications, Inc harmless against any claim by any third party for commissions relating to the public telephones covered by this Agreement. FSH Communications, Inc will indemnify and hold the City harmless for any claims regarding long distance telephone service provided herein.
c. The City will provide FSH Communications, Inc or its designee with reasonable access to the City’s records relating to this Agreement.
3. Payment Schedule. FSH Communications, Inc shall pay to the City all accrued commissions within 60 days of the effective date of this agreement. Thereafter, FSH Communications, Inc shall make commission payments to the City monthly within 60 days of the end of the commissionable month. A monthly Commission Cycle is a period of time beginning on the 16th day of a month and completing on the 15th day of the following month. The first Commission Cycle will commence on the 16th day of the month following the effective date of this Agreement.
4. Monthly Statements. With each payment to the City hereunder, FSH Communications, Inc will furnish to the City a monthly statement in a mutually satisfactory form, showing Commissionable Revenue generated from all pay phones subject to this agreement.
5. Financial Reviews. No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim the City may have for further or additional sums payable. All amounts paid shall be subject to financial review and confirmation by the City.
6. Interest. FSH Communications, Inc shall pay interest on all commission underpayments and late payments at the rate of one percent (1%) per month, compounded monthly. Interest shall be due on any underpayment or late payment from the date on which payment was due until the date on which full payment is received by the City. In computing the amount of interest due under this paragraph, fractions of a month shall be prorated on the basis of a thirty-day month.
7. Term. This Agreement will begin as of the 16th day of the month following the signing of this Agreement by both parties and will be in effect for three (3) years; provided, however, that FSH Communications, Inc may terminate this Agreement with respect to any or all of the City Public Telephone Locations by sending written notice to the City if the Federal Communications Commission, a State Public Utilities Commission or a court of competent jurisdiction issues an order or ruling which contains terms or conditions that materially and adversely affect this Agreement, its profitability to FSH Communications, Inc, or the ability of FSH Communications, Inc or the City to perform its obligations as set forth herein. In addition, if applicable rules and regulations change, so that the City is not permitted to select the interexchange carrier for all “0+” dialed interLATA calls from the covered telephones, the City’s duty to route such calls to FSH Communications, Inc will end, and FSH Communications, Inc may terminate this Agreement by sending written notice to the City. Termination of this Agreement under this paragraph will not give the City any right to seek damages from FSH Communications, Inc. Either party may terminate this Agreement at any time by providing the other party with thirty (30) days written prior notice.
8. General Liability. Except in cases involving willful or wanton conduct, FSH Communications, Inc’s liability to the City is limited to its obligations to pay commissions as described above and reasonable diligence under the circumstances for restoration of service. FSH Communications, Inc shall not be liable for any indirect, special, incidental, consequential or punitive loss or damage of any kind, including lost profits (whether or not FSH Communications, Inc had been advised of the possibility of such loss or damage), by reason of any act or omission in its performance under the Agreement.
9. Confidentiality of Information. Information submitted by FSH Communications, Inc to the City is subject to public inspection under the Oregon Public Records Law, ORS 192.410 through 192.505 (2001). FSH Communications, Inc is responsible for becoming familiar and understanding the provisions of the Oregon Public Records Law. FSH Communications, Inc may identify information submitted to the City, including information relating to FSH Communications, Inc calls, trade secrets, financial records, customer information or technical information, as confidential. FSH Communications, Inc shall prominently mark any information for which it claims confidentiality with the word Confidential, on each page of such information, prior to submitting such information to the City. The City shall treat any information so marked as confidential, until the City receives any request for disclosure of such information. Within five (5) working days of receiving any such request, the City shall provide FSH Communications, Inc with written notice of the request, including a copy of the request. FSH Communications, Inc shall have five (5) working days within which to provide a written response to the City, before the City may disclose any of the requested confidential information. The City shall retain the final discretion to determine whether to release the requested confidential information, in accordance with applicable law.
10. Notice and Payment. Any notices, payments, reports or other matters required hereunder shall be addressed as follows, or to such other address as the receiving party specifies in writing:
If to the City:
Director
Office of Cable Communications and
Franchise Management
1120 SW 5th Ave., Room 1305
Portland, OR 97204
Telephone (503) 823-5385
Fax (503) 823-5370
If to FSH Communications, Inc:
Dana Alixander
Sales Director
FSH Communications, LLC
(formerly with Qwest Public Access Solutions)
206-345-1119 Office
206-345-7145 Fax
888-530-8514 Pager
8885308514@skytel.com Text Page
11. Excused Performance. Neither party shall be held liable for any delay or failure in performance of any part of this permit caused by circumstances beyond the control of the party affected, including but not limited to, acts of the elements or natural disasters, strikes, power failures, civil or military emergencies or acts of legislative, judicial or other civil authorities.
12. Nonwaiver. The failure of either party to enforce strict performance of any provision of this permit shall not be construed as a waiver of its right to assert or rely upon such provision or any other provision of this permit.
13. Integration. This Agreement and any attachments hereto constitute the entire understanding between the parties. This Agreement supersedes all prior understandings, oral or written representations, statements, negotiations, proposals and undertakings with respect to the subject matter hereof. All amendments to this Agreement must be in writing, must refer specifically to this Agreement and must be signed by authorized representatives of the parties.
FSH Communications, Inc Corporation
By
Title
Date
City of Portland
By
Commissioner of Public Safety
Approved as to Form:
Gary Blackmer
Auditor of the City of Portland
__________________
By
City Attorney Deputy
O:\Utility Program\council Filings\Council Documents\FSH Communications, Inc Pay Phones\Long Distance Ordinance\Exhibit A