HomeMy WebLinkAbout2009-036 Agrmt Qwest Settlement
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SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is between Qwest Corporation ("Qwest"), a
Colorado corporation, and City of Ashland, EIN#93-6002117 ("City"), an Oregon municipal
corporation. Qwest and the City are referred to collectively herein as "the Parties."
RECITALS
A. Qwest pays a franchise fee of 7 percent of revenues from local exchange access
services ("Telecommunications Fee").
B. A group of Oregon cities formed the Oregon Municipal Audit and Review
Committee ("OMARC"), to review and analyze Telecommunications Fee revenues
received from Qwest ("Review").
C. OMARC formed the OMARC Steering Committee ("Steering Committee") to make
certain administrative decisions on behalf of the Oregon Cities in undertaking the
Review.
D. On January 22, 2003, the Steering Committee sent Qwest a notice of intent to
review Qwest's payment of the City's Telecommunications Fee on behalf of the
members of OMARC.
E. Qwest and the City have not yet undertaken the Review, and no final determination
has been made with respect to whether Qwest underpaid the Telecommunications
Fee to the City during a review period commencing on January 1,2000 and
continuing through December 31, 2005 ("Review Period"), which, if underpaid,
would constitute a debt to the City.
F. Qwest and the City are desirous of avoiding further expense in undertaking the
Review, and desire and agree to provide for payment, in accordance with the terms
of this Agreement, and thereby to settle and resolve any and all potential claims and
disputes between them with respect to the Telecommunications Fee during the
Review Period ("the Claim").
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G. Qwest and the City have reached an amicable resolution of the outstanding issues
and wish to effectuate a payment by Qwest, with such actions resulting in full
satisfaction and settlement of all outstanding claims for the Telecommunications Fee
during the Review Period.
NOW, THEREFORE, the Parties, through their undersigned representatives who are
fully authorized to take the actions contemplated herein, pursuant to the foregoing recitals and in
consideration of the following mutual promises, covenants and agreements, and other good and
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valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as
follows:
AGREEMENT
1. Telecommunications Fee. The City and Qwest agree that, in consideration for the
payment of the Claim, in the amount set forth in Section 3 hereof, that Qwest shall be deemed to,
and shall have paid all of the Telecommunications Fee that was due and owing for the Review
Period, including interest or penalties, and, that upon payment of such amount, the City shall not
undertake any collection activity with respect to the Telecommunications Fee for the Review
Period.
2. Effective Date. The Effective Date of the Agreement shall be the date of the last
signature hereon, however, it is the intent of Qwest to enter into a similar agreement with 47
other Oregon cities listed in Exhibit A and notwithstanding the date of the last signature in this
Agreement, this Agreement will not be effective until the date of the last signature on all 48
Agreements with each of the Oregon cities listed in Exhibit A. Should an Agreement not be
secured by Qwest with anyone of the 48 Oregon cities listed in Exhibit A, this Agreement will
not be effective.
3. Amount. Qwest agrees to pay the City, and the City agrees to accept from Qwest, as
full satisfaction of the Telecommunications Fee for the Review Period, within 30 days of the
Effective Date, the total amount of$14,847 ("the Amount"). The City agrees that no further
Telecommunications Fee, including interest or penalties thereon, shall be assessed for the
Review Period by the City, and the City agrees to take no further action in any administrative or
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judicial proceeding to collect such Telecommunications Fee, with respect to any
Telecommunications Fee accruing during the Review Period. Receipt by the City of payment of
the Amount shall constitute a release by the Parties of all claims, known and unknown, that each
party may have against the other with respect to the Telecommunications Fee for the Review
Period ("Released Claims"). Payment shall be made at the address provided for notices in
Section 9 of this Agreement.
4. This Agreement does not apply to, or release Qwest from payment of any taxes or
fees, other than those described in the First Recital of this Agreement.
5. No Admission. The Parties agree that this Agreement is a full and complete
compromise of the Claim and is made solely for purposes of settlement and that by entering into
this Agreement none of the Parties are making any admissions as to the substantive factual or
legal issues regarding the Claim, and that in the event of future disputes regarding payment of
the Telecommunications Fee that become due and owing after the Review Period, that this
Agreement may not, and shall not, be introduced into evidence in any administrative or judicial
action.
6. Voluntarily Entcred. The Parties represent and warrant that this Agreement is
entered into voluntarily by the Parties with full knowledge of the consequences and implications
of the obligations set forth herein. The Parties also represent and warrant that they have had the
opportunity to be represented by counsel of their choice throughout the negotiations which
preceded the execution of this Agreement, and in connection with the preparation and execution
of this Agreement, and that they have carefully and thoroughly reviewed this Agreement in its
entirety.
7. Exclusive Purpose. The terms and conditions of this Agreement are made solely for
the purpose of resolving outstanding claims for the Telecommunications Fee during the Review
Period, do not constitute an admission of fact, and may not be used by either party in any other
action or proceeding.
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8. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter of this Agreement and may be amended or modified
only by a writing signed by the Parties hereto.
9. Notices. All notices required or permitted to be given or to be made upon any party
hereto shall be in writing and shall be personally delivered or telecopied, and also sent by
registered or certified mail, postage prepaid, return receipt requested, and shall be deemed to
have been received for purposes of this Agreement on the day the notice is personally delivered
or telecopied and deposited in the mail.
(a) All notices to Qwest regarding this Agreement should be sent to:
Andrew E. Ottinger, Vice President - Corporate Tax
Qwest Corporation
180 I California Street, 25th Floor
Denver, Colorado 80202
Fax: (303) 672-5902
.(b) All notices to the City regarding this Agreement should be sent to:
Lee Tuneberg, Finance Dircctor
133 Broadway
Ashland, OR 97537
541.552.2003
10. Waiver of Costs, Etc. In connection with this Agreement, each party shall bear its
own costs related thereto, including, but not limited to, attorney fees and each party waives any
claim for any award of costs, disbursements or attorney fees in this matter.
11. Governing Law; Venue. The terms, provisions, interpretations and enforcement of
this Agreement shall be governed by the laws of the State of Oregon, without regard to conflict
of laws analysis. Any litigation between the Parties arising out of or related to this Agreement
shall be brought and maintained in the Circuit Court for Lane County, Oregon. Provided, if any
litigation arising under this Agreement is brought in a federal forum, it shall be brought and
maintained in the United States District Court for the District of Oregon in Portland, Oregon.
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12. Binding Obligation. The obligations of the Parties set forth in this Agreement shall
be binding on the Parties, their successors and assigns.
13. Warranty of Authority. Each party to this Agreement hereby covenants and
represents that the individual signing on its behalf is fully empowered to bind the party to the
obligations and commitments set forth herein.
14. Counterparts. This Agreement may be executed in counterparts and by facsimile,
and, if so executed, will be effective as if simultaneously executed at the time of receipt of the
last executed counterpart.
15. Final Agreement. This Agreement is final and conclusive in all respects and all right
to question the same by appeal or otherwise, is hereby waived.
16. No Party Deemed Drafter. "The settling Parties agree that this Agreement has been
negotiated by the settling Parties, by and through their respective counsel, all of whom have
participated in the drafting hereof. The Parties agree that any l1.\le of construction which
provides that a document is to be construed against the draftsperson shall not apply.
17. Severability. In case anyone or more of the provisions of this Agreement shall be
found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions contained in this Agreement shall not in any way be affected or
impaired. Further, any provision found to be invalid, illegal or unenforceable shall be deemed,
without further action on the part of the Parties to this Agreement, to be modified, amended
and/or limited to the minimum extent necessary to render such clauses and/or provisions valid
and enforceable.
18. No Assignment. City represents and warrants that it has not previously pledged,
encumbered, assigned or transferred, or purported to pledge, encumber, assign or transfer any
Released Claims.
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IN WITNESS WHEREOF, the undersigned Parties have duly executed this Agreement to be
effective on the date as set forth in Section 2 hereof.
QWEST CORPO
By:
By:
Name:
At' 0,7/ "-'t- EJ(
(print)
Name: Martha Bennett
(print)
Title:
V,p.
Title: _City Administrator
Date:
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Date: ~f/JP/
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EXHIBIT A
List of Oregon Cities participating in this Settlement Agreement, collectively referred to as the
"Oregon Cities":
CITY OF ADAIR VILLAGE
CITY OF ALBANY
CITY OF ASHLAND
CITY OF ATHENA
CITY OF BAKER CITY
CITY OF BEND
CITY OF CANNON BEACH
CITY OF COLUMBIA CITY
CITY OF CORVALLIS
CITY OF COTTAGE GROVE
CITY OF DALLAS
CITY OF EUGENE
CITY OF FALLS CITY
CITY OF FLORENCE
CITY OF GLADSTONE
CITY OF GRANTS PASS
CITY OF GRESHAM
CITY OF HAPPY V ALLEY
CITY OF HERMISTON
CITY OF INDEPENDENCE
CITY OF IRRIGON
CITY OF JEFFERSON
CITY OF KLAMATH FALLS
CITY OF LAKE OSWEGO
CITY OF MADRAS
CITY OF MIL TON-FREEW A TER
CITY OF MIL W AUKIE
CITY OF NEWPORT
CITY OF NORTH PLAINS
CITY OF OREGON CITY
CITY OF PENDLETON
CITY OF PHOENIX
CITY OF PORTLAND
CITY OF REDMOND
CITY OF ROGUE RIVER
CITY OF ROSEBURG
CITY OF SALEM
CITY OF SEASIDE
CITY OF SISTERS
CITY OF SPRINGFIELD
CITY OF ST. HELENS
CITY OF ST ~NFIELD
CITY OF TALENT
CITY OF TIGARD
CITY OF TUALATIN
CITY OF W ARRENTON
CITY OF WEST LINN
CITY OF WOODBURN
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Qwest4,
Spirit ot Service"
Tax Department
180] California Street
Denver, Colorado 80202
VIA CERTIFIED MAIL
April 6, 2009
Mr. Lee Tuneberg
Finance Director
City of Ashland
133 Broadway
AsWand, OR 97537
Dear Mr. Tuneberg:
Enclosed is an executed Settlement Agreement and check in the amount of$14,847 for the
agreement entered into between the City of Ashland and Qwest Corporation relating to the audit
conducted by the Oregon Municipal Audit and Review Committee.
If you have any questions, feel free to call Ed Endicott at (303) 308-5630 between the hours of
6:30am and 3:00pm MST.
Sincerely,
~/~
Ed Endicott
Lead Tax Analyst
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