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HomeMy WebLinkAboutRESPONSE - RFP - P871 TELEPHONE EQUIPMENT MAINTENANCE SERVICESQwest. --2 Spirit of Service ity of Fort Collins Proposal # P-871 Telephone Equipment and Maintenance Services 2/14/2003 CITY OF FORT COLLINS Table of Contents 1.0 Proposal Requirements 2.0 Backround 3.0 Scope of Work 4.0 Owest Pricing 5.0 Evaluation 6.0 Proposal Acceptance • Services Agreement • Octel 250 Current/Proposed Maintenance Quote • Exibit B - Insurance Requirements • Exibit C - PBX System Information • Owest CPE Agreement Use or disclosure of this proposal data is subject to the restriction on the "title Page of this proposal. Q w e s t Spirit of Service 2 CITE' OF FORT COLLINS Section 1.0: Proposal Requirements Use or disclosure of this proposal data is subject to the restriction on the Tide Page of this proposal. 1.1 General Description The City of Fort Collins, hereinafter referred to as "CITY", is soliciting proposals for telephone equipment maintenance and other services associated with providing customer service work orders. The contract will be administered by the Information Technology (IT) Department by its City Telephone (CITEL) division. Services to be provided by this contract will include, but is not limited to, preventative and corrective maintenance, move -add -change orders, PBX programming, cable installation, phone equipment installation. The service vendor may be required to work with CITY staff and be responsible for specific site installations or upgrades (i.e. Key Systems, Remote Peripheral Equipment, etc.). The CITY shall, however, retain the right to solicit bids or proposals from other vendors for these installations or enhancements to its voice and data network. The City currently employs 1.3 technicians for maintenance and change orders. The primary requirements of the vendor chosen will be to back up city technicians, to provide coverage during periods of heavy workload. Response: Qwest has read and complies. 1.2 Proposal Submittal QW e S t 'VF� Spirit of Service 3 Use or disclosure of this proposal data is subject to the restriction CITYOF FORT COLLINS on theTitle Page ofthis proposal.IV The City of Fort Collins shall not reimburse any firm for costs incurred in the preparation and presentation of their proposal. Firms submitting proposals shall submit five (5) copies of the proposal with the following information: a. Company history and experience in telephone equipment maintenance as described in the Scope of Work. b. The name of the company representative responsible for coordinating telephone equipment maintenance. c. References from five or more organizations which have used your company for similar products and services within the last two years. 64 vtl `O PLFS. d. A written description of the proposed products and services as required below. e. Pricing, as requested. The proposal must be signed by a duly authorized representative of the firm submitting the proposal. The signature shall include the title of the individual signing the proposal. Response: Qwest has read and complies. Section 2.0: Background Qwest. Spirit of Service 4 Use or disclosure of this proposal data is subject to the restriction CITYOF FORT COLLINS on the litlePage ofthis proposal. CITEL provides twenty-four hour voice and data services to all CITY departments. The departments are located within a fifteen mile radius of the CITY's main location at 300 LaPorte Avenue. The CITY has a NorTel Meridian PBX (Option 81C), generic 3011, software version 25.30, with options as described in Exhibit C. The OPTION 81 is located in the main switch room at 300 LaPorte Avenue. This PBX/location provides the majority of service for the CITY. A majority of the trunks terminate at this location, and all other phone systems within the CITY receive their service from this PBX. In addition to the OPTION 81, there are the following telephone systems: I -;,Four Northern Telecom Fiber Remote equipment units are connected to the MERIDIAN OPTION 81 by city owned fiber optic cabling: Lincoln Center at 417 W. Magnolia, Public Library at 201 Peterson Street, Streets at 625 9 th Street, and Utilities Service Center at 700 Wood Street. One NorTel Carrier Remote RPE Shelf is connected to the MERIDIAN OPTION 81C by three T-1 spans leased from Qwest Communications, Inc. This shelf is located at Drake Water Reclamation Facility at 3036 E. Drake Road. Mini -Carrier Remote Equipment is located at Air Park Annex, Park Shop at 413 S. Bryan Avenue, Transfort at 6570 Portner Road. T-1 spans are leased from Qwest Communications, Inc. or run over Sonet equipment. Mini - Carrier Remote equipment at the Nix Farm, 1745 Hoffman Mill Road is served via T-1 over ethernet. Numerous KEY System Units, manufactured by Nortel at remote sites. See Exhibit D for a complete listing of the CITY's inventory of telephony equipment, and for the locations of CITY buildings containing telephone equipment. The CITY has an Octel voice mail system, with Visual Messenger, that is integrated directly with, and uses 44 ports on the Meridian PBX. Response; Qwest has read and complies. Section 3.0: Scope of Work _Qwest,,2. Spirit of Service_ 5 Use or disclosure of this proposal .t data is subject to the restriction IAL CITE OF FORT COLLINS on the Title Page of this proposal.Ak 3.1 Minimum Mandatory Requirements Service providers must meet the minimum requirements outlined below to be considered for this RFP. Vendors not meeting these requirements will be disqualified and given no further consideration for this RFP. The CITY requires that the following services, conditions, requirements, etc. be provided as a Minimum Requirement. As requested by the CITY, the vendor will: I. QUALIFICATIONS C provide only Nortel trained and certified technicians and engineers to work on the CITY's Nortel equipment C-jprovide support staff familiar with Nortel -have in-house expertise with designing & installing copper cable & protectors - -upon signing a contract for services and prior to the start -date, assign technicians to come on site and become familiar with the CITY's voice and data network -a authorized distributor or can supply Nortel equipment and has access to if not a direct supplier of Octel voice mail equipment Response: Qwest has read and complies. II. SERVICES -'Eprovide services as either a "full service vendor" or on a time -and -materials basis, as determined by the CITY's RFP evaluation process C -supply Nortel equipment when requested -act as single point of contact for reporting all telecom trouble calls - follow up with appropriate agency(ies) to confirm problem has been resolved perform site installations or upgrades as directed by the CITY --imaintain and repair all equipment listed on the Inventory list at all CITY Locations F -provide on -site emergency technical assistance as directed by the CITY -escalate problems, if necessary, to Nortel Emergency Technical Assistance Service (ETAS) Q west Spirit of Service 6 CITY OF FORT COLLINS Use or dsclosure of this proposal data is subject to the restriction on the Title Page of this proposal. Cperform walk throughs, attend analysis meetings, and provide cost estimates for physical and application requirements on upcoming CITY projects 7 bill each repair and MAC request on a separate invoice --capability to provide on -site training to CITY employees for new equipment purchases or installations Response: Qwest has read and complies. III. RESPONSE TIMES F -handle MAC activity within the following time frames, at a minimum - 1-5 phones within four CITY working days - 6-10 phones within eight CITY working days - 10+ phones to be negotiated _handle maintenance calls within the following time frames - Non -emergency or routine maintenance calls will be handled Monday through Friday from 8:00am to 5:00pm with the exception of CITY Holidays. There will be a maximum 4- hour response time from the time the call is reported to your company or agent for your company. - Emergency maintenance calls will be handled 24 hours a day, seven days a week. The maximum response time will be two hours from the time the call is reported to your company or agent for your company. Qwest can handle 1-5 phones within 5 CITY working days, 6-10 phones within 5 CITY working days, and 10+ phones within 8 CITY working days. Maintenance Response Times: A. Emergency Procedure (Exception Products Excluded An "Emergency "is defined as a major malfunction, which shall consist of one or more of the following conditions: Qwest. Spirit of Service 7 Use or disclosure of this proposal data is subject to the restriction CITYOF FORT COLLINS on the Tide Page of this proposal. 1. Complete failure of the system; a. No incoming or outgoing communication to or from customer premise, or b. No internal communications within the system 2. Failure of a critical subsystem; a. Inoperative attendant console; b. Inoperative Message Accounting system; c. 40% of all telephones out of service; or d. 20% of all trunk circuits out of service When notice of an Emergency is received during Qwest Standard Service Hours, Qwest agrees to make every reasonable effort to have maintenance personnel respond within two (2) hours of said notice. If Customer has selected Extended Hours when notice of an emergency is received during hours other than Qwest Standard Service Hours, Qwest agrees to make every reasonable effort to have maintenance personnel respond within four (4) hours of said notice, twenty four (24) hours per day, seven (7) days a week. Qwest Standard Service Hours are defined for the purpose of this agreement as 8:00 a.m. to 5:00 p.m., Monday through Friday, local time, except Qwest observed holidays. B. Non — Emergency Procedure (Exception Products Excluded). A "Non -Emergency" is defined as a minor malfunction consisting of any failure other than a major malfunction as defined above. Qwest agrees to make every reasonable effort to have maintenance personnel respond within twenty-four (24) hours of notice of a Non Emergency malfunction or next workday when notice precedes a weekend or holiday. My company meets the minimum requirements, as outlined in this exhibit, and will adhere to them throughout the contract period(s): Qwest. Spirit of Service 8 Use or disclosure of this proposal data CITE' OF FORT COLLINS onthesulePageofthiect to the sproon on the'l'itle Page of this proposal. AAL 3.2 Service Vendor Responses (date) All vendors will respond to each item in this section of the RFP. Vendor may risk rejection if any of the items listed below are omitted from their proposal responses. I. EXPERIENCE, EXPERTISE, TRAINING, QUALIFICATIONS A. Hierarchy of organization Provide an organizational chart of staff that will be working with the CITY on a regular basis. Provide resumes of the marketing and maintenance staff - list training and certifications received, as they pertain to the Meridian PBX and Octel systems. In Ft. Collins Qwest has 5 techs on staff to support The City of Ft. Collins with their Nortel and Octel needs: John Hilligoss, and Tom Johnson are Primary, and Ralph Urfer, Frank Piano, and Mary Fraser are back up. Resumes are private and confidential, but all five (5) are certified at the highest levels by both Nortel and Octel. B. Local or Denver technicians and customer service representatives Qwest. Spirit of Service N Use or disclosure of this proposal data is subject to the restriction CITYOF FORT COLLINS on the Tide Page of this proposal. Tell us about your Nortel product focus and training Tell us about your Octel experience. Owest has been providing maintenance for Nortel and Octel since 1989, and is focused on insuring that all of the CPE technicians, and support staff are completely trained in all areas of their product lines. C. Local or Denver engineering personnel and services Tell us about your company's engineering support team Owest Colorado has 12 Octel techs, and 22 Nortel techs on staff. In addition to the technicians, there is a full support staff in Seattle, WA that supports our CPE efforts on a national basis. Tell us about your affiliation with Nortel Networks Owest Business and Government Services Inc. is an authorized Nortel distributor in fifty United States, and the District of Columbia. We are authorized to distribute and maintain the M1, Services, SL-100, Norstar, Advanced Video Applications, CCMIS, Companion Data Networking, Passport, Business Series, Periphonics, Advanced Applications — Call Pilot, Succession, Optical Internet Working Solutions (Optera), CSE 1000, Alteon, and Symposium. As an authorized dealer Owest Business and Government Services Inc. may (among other things): • Procure products and services from Nortel and resell to end users; • Validly license and Nortel Networks Software; • Extend and Nortel Networks factory warranties to end users; • Obtain technical support services from Nortel Networks; • Convey any Nortel Networks Support Commitment Letters to end users; • Obtain access to Nortel Networks engineering, system configuration and pricing tools; • Obtain access to sales, technical, installation, maintenance, and training courses or; • Participate in Nortel Networks sponsored marketing programs and product events. Qwe st. MF Spirit of Service 10 Use or disclosure of this proposal data is subject to the restriction CITY OF FORT COLLINS on thentle Page of this proposal. II. VENDOR PERFORMANCE RECORD A. Provide detailed information on: length of time company has been providing the types of services outlined in this proposal history on the different types of installed customer bases Owest has provided Nortel and Octel equipment maintenance since 1989, we purchased Northern's base of customers in the same year. B. Provide a reference list of current customers whose installation site(s) are representative of the CITY; to include the following: name, address, contact person, system type(s), services provided dates of service Denver Health Colleen Systad 303-436-7888 2 Option 81(s), 3 Option 11(s), 5 Remotes Began with Qwest on Maintenance in 1997 Denver Housing Karen Spruce 720-935-3065 2 Option 11(s) Began with Qwest on Maintenance in 2000 Denver Public Schools Gary Capps 303-764-3690 1 Option 81, 1 Option 61, 25 Option 11(s), and _ 120 Norstars(s) Q west.-..& Spirit of Service_ 11 Qwelst.1-2 Spirit of Service Question # 1 — Are you a Nortel 3C Vendor? o Qwest is not a 3C Vendor, but we are a VIVID Member - program starts on 2/28/03 0 3C Plan is being discontinued. All 3C vendors will be grandfathered into the VIVID Program o Nortel is in the process of defining "titles" that will identify the ranking of each distributor such as gold or silver. We will be able to relay our title in April 2003 timeframe. Use or disclosure of this proposal data is subject to the restriction CITYOF FORT COLLINS on the Title Page of this proposal. 1W IV Began with Owest on Maintenance in 1995 C. Provide a list of subcontractors that vendor anticipates using during the course of this contract, if any. None D. Provide a copy of your company's last audited financial statements. Financial statement will be no more than 18 months old. Owest's financial statements for prior years are currently under review by Owest and its auditors. Until such review is completed, certification of Qwest's prior financial reports by Owest's CEO/CFO will not be available. Please see Qwest's Investor Relations web site at URL: http://gwest.com/abouVinvestorrindex.htmi for current information regarding Owest's financials. E. Presence and functions of your company's local Fort Collins office, or thoughts on establishing an office in the Ft. Collins area if one does not exist. 2 primary CPE technicians in Ft. Collins office, 3 back up in Ft. Collins, and 15 backup in Denver. III. VENDOR SUPPORT AND SERVICES A. Describe your company's trouble call dispatch center operation Logistics for making maintenance calls to the center - general location of center (Denver area, Ft. Collins, Co Springs, etc.) - toll free call to the CITY Any reporting available to customer we st Q. Spirit of Service 12 Use or disclosure of this proposal data is subject to the restriction CITY OF FORT COLLINS on the Title Page of this proposal. Early problem determination over the phone Tracking repeat/re-occurring calls Trouble call escalation procedures Qwest's Voice CPE Service Center is located in Seattle, WA, and can be reached 24 hours a day, seven days a week at 1-800-421-2271. All issues regarding voice CPE will begin with this group. This team can direct issues to level II, and level III support personnel if necessary, and also handles dispatch of local, Fort Collins technicians to resolve issue. Tracking of trouble tickets starts and ends with this group. Field technicians are equipped with laptops to assist them in problem solving, as well as tracking purposes, and to coordinate status of trouble tickets to the Service Center in Seattle. Customers can at any time contact the Service Center for up to date status on issue that they have initiated, although generally this is not necessary, the techs, and support organization are highly proactive in keeping our customers up to speed on where things stand. Not only will having a Owest maintenance agreement put you at the top of our help list, but as a Government entity, the City of Fort Collins takes top priority over schools, banks, hospitals and other businesses in Fort Collins when they need help with their equipment. B. Describe your company's policy for backup support of technicians Your company's quality assurance backup support team and trouble escalation process Technical escalation policy and tracking mechanism - remote diagnosis and repair from emergency technical assistant center or equivalent - tracking mechanism to ensure that the problem is corrected On -site emergency technical assistance Remote system access for national service support center or equivalent Backup support is available for any customer issue that cannot be handled by the Seattle CPE Service Center, or the primary local techs. Qwest - Fort Collins has 2 primary, and 3 backup technicians. Each field technician is equipped with a laptop to assist in remote diagnosis, and has the ability to escalate an issue if they are unable to resolve it themselves. Q west Spirit of Service 13 Use or disclosure of this proposal data is subject to the restriction CITY OF FORT COLLINS on the Tide Page of this proposal. C. The CITY would like to generate its Customer Service Work Orders via E-Mail. Discuss your ability to facilitate this request. For basic MACs (Moves, Adds, and Changes) feel free to send you request to Carol Plugoff at calugho@awest.com, or call her at 1-800-318-8401. For large MACs, or large service issues Owest does have an iniative under way to offer requests by E-Mail — this is scheduled to be available as soon as end of 2nd quarter 2003. In the meantime contact the Seattle CPE Group at 1-800-421-2271. D. Hardware Repairs/Replacement Describe how your company will handle hardware repairs for the CITY - will there be a charge for hardware replacements - what happens with the hardware that was replaced Owest uses refurbished products for repairs and replacement of equipment under warranty, or a maintenance agreement first if they are available. All of this equipment is warranted for a one year period. If this equipment is not available refurbished, we will provide new replacement. We maintain a stocked warehouse in Denver, CO, and Dallas, TX. There will be a charge for hardware replacement if it is not under warranty or a maintenance agreement. The hardware that was replaced is sent back to the manufacturer to be repaired, then placed back into stock at a Owest warehouse. Section 4.0: Pricing The following is a list of services the CITY may request the vendor to provide. Provide prices for each item that is applicable to your proposal. $ 76.00 /Hour Maintenance services performed under a Time and Materials basis $ 76.00 /Hour Customer Service Orders (adds, moves, changes) _ $114.00_/Hour Overtime for MAC and repair work west_' Spirit of Service 14 CITY OF FORT COLLINS Use or disclosure of this proposal data is subject to the restriction on the Title Page of this proposal. $ 1 Hour(s) Minimum Number of Hours, Trip Charge of $ 45.00 $ 76.00 Regular, $114.00 Overtime/Hour Special Service Requests (Quick Turn around -same or next day) $ 76.00/Hour Cost to have City Technicians directly access vendors 2nd level support site (TAC/NOC, etc) for technical support, patches, etc. Materials Invoices must be included with the Billing Invoices. Maximum Material mark-up the City will pay: 1) < $500.00 + 10% Bidder's mark-up SEE BELOW % 2) > $500.00 + 8% Bidder's mark-up SEE BELOW % Vendor must indicate materials markups they will pass on to the City. If zero, please indicate! Qwest will comply with a maximum mark-up factor of 10% regardless of the materials cost, provided a minimum of four hours Qwest labor is applied to individual Time and Materials requests and Qwest assumes implementation activities for all materials requested. If materials are requested from Qwest without corresponding labor requirements (drop -ship) and a minimum of four labor hours is not met for individual Time and Materials requests, Qwest will assess a materials mark-up of 25%. Please list and explain any additional costs, if any, that the CITY might incur for services discussed in Section 3.2. If more room is required, please attach a separate sheet. Section 5.0: Evaluation 5.1 Evaluation and Assessment of Proposals Qwest. Spirit of Service 15 CITY OF FORT COLLINS Use or disclosure of this proposal data is subject to the restriction on the Title Page of this proposal. Firms will be evaluated on the following criteria. These criteria will be the basis for review of the written proposals, as well as oral interviews. The rating scale will be from 1 to 5, with 1 being a poor rating, 3 being an average rating, and 5 being an outstanding rating. Weighting Factor Qualification Standard 2.0 Scope of Proposal Does the proposal show an understanding of the City' s requirements, the methodology to be used, and the results desired? 2.0 Assigned Personnel Do the persons who will manage the contract and those who will work through the contract have the necessary skills? Are sufficient people of the requisite skills available for assignment to the City? 1.0 Availability Can the services be provided in the necessary time frame? Can the required response time be met? Are ample qualified personnel available if required? 1.0 Motivation Is the firm interested? Does the firm demonstrate a desire to provide the City with top-quality service? 2.0 Cost Do the proposed costs compare favorably to the City' s estimates and in comparison to other respondents and industry rates? 2.0 Firm Capability Does the firm have the support capabilities the assigned personnel require? Has the firm previously provided services of this type and scope? Response: Owest has read and complies 5.2 Reference Evaluation (Too -ranked Firms) The Project Managers will check references using the following criteria. The evaluation rankings will be labeled Satisfactory/Unsatisfactory. Qwest. Spirit of Service 16 Use or disclosure of this proposal data is subject to the restriction AAk CITY OF FORT COLLINS on the Title Page of this proposal. 1W IV Qualifications and Standards a. Overall Performance - Would you hire this company again? b. Timetable — Was the original Scope of Work completed within the specified time? Were interim deadlines met in a timely manner? c. Completeness - Was the company responsive to client needs? Did the company anticipate problems? Did the company follow up to assure client satisfaction? Were problems solved quickly and effectively? d. Costs - Were rates competitive and were charges billed accurately? Response: Qwest has read and complies Section 6.0: Proposal Acceptance All proposals shall remain subject to initial acceptance 90 days after the day of submittal. Response: Qwest has read and complies SERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and "Service Provider". hereinafter referred to as WITNESSETH: In consideration of the mutual covenants and obligations here' expressed, it is agreed k4 west. Spirit of Service 17 Use or disclosure of this proposal CITY OF FORT COLLINS data is subject Page o the on the Title Page of this proposal. by and between the parties hereto as follows: 1. Scope of Services. The Service Provider agrees to provide services in accordance with the scope of services attached hereto as Exhibit "A", consisting of ( ) page[s], and incorporated herein by this reference. 2. The Work Schedule. [Optional] The services to be performed pursuant to this Agreement shall be performed in accordance with the Work Schedule attached hereto as Exhibit "B", consisting of ( ) page[s], and incorporated herein by this reference. 3. Time of Commencement and Completion of Services. The services to be performed pursuant to this Agreement shall be initiated within ( ) days following execution of this Agreement. Services shall be completed no later than Time is of the essence. Any extensions of the time limit set forth above must be agreed upon in a writing signed by the parties. 4. Contract Period. [Option 2] This Agreement shall commence 200_, and shall continue in full force and effect until , 200, unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed (_) additional one year periods. Pricing changes shall be negotiated by and agreed to by both parties and may not exceed the Denver - Boulder CPI-U as published by the Colorado State Planning and Budget Office. Written notice of renewal shall be provided to the Service Provider and mailed no later than ninety (90) days prior to contract end. Q w e s t- Spirit of Service_ 18 CITY OF FORT COLLINS Use or disclosure of this proposal data is subject to the restriction on the Title Page of this proposal. 5. Delay. If either party is prevented in whole or in part from performing its obligations by unforeseeable causes beyond its reasonable control and without its fault or negligence, then the party so prevented shall be excused from whatever performance is prevented by such cause. To the extent that the performance is actually prevented, the Service Provider must provide written notice to the City of such condition within fifteen (15) days from the onset of such condition. [Early Termination clause here as an option. Qwest has read, understands and responds with the following clarification: If either party is prevented in whole or in part from performing its obligations by unforeseeable causes beyond its reasonable control, including without limitation: act of God; fire; flood; earthquake; labor strike; sabotage; fiber cut; embargoes; power failure, e.g., rolling blackouts, electrical surges or current fluctuations; lightning; suppliers' failures; acts or omissions of telecommunications common carriers (whether or not affiliated with Qwest); material shortages or unavailability or other delay in delivery not resulting from the responsible party's failure to timely place orders therefore; lack of or delay in transportation; government codes, ordinances, laws, rules, regulations or restrictions; war or civil disorder, or act of terrorism, and without its fault or negligence, then... 6. Early Termination by City/Notice. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Service Provider. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses: City: Service Provider: w e s t Spirit of Service 19 Use or disclosure of this proposal data is subject to the restriction CITY OF FORT COLLINS on the Tide Page of this proposal. In the event of early termination by the City, the Service Provider shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of the Service Provider's obligations under this Agreement. Such payment shall be the Service Provider's sole right and remedy for such termination. Qwest has read, understands and responds with the following clarification: The proposed rates, charges, and/or prices herein are based upon a certain term and revenue commitment by Customer over the entire term of the agreement; therefore, Qwest will not agree to termination for convenience provision. Customer may only terminate the subject agreement for cause without liability for early termination or cancellation charges. Any termination by Customer without cause shall warrant the application of early termination or cancellation charges. 7. Contract Sum. The City shall pay the Service provider for the performance of this Contract, subject to additions and deletions provided herein, the sum of Dollars ($ ) [Option Cost Breakdown is attached Exhibit "C"] 8. City Representative. The City will designate, prior to commencement of the work, its representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the services provided under this agreement. All requests Q west Spirit of Service 20 Use or disclosure of this proposal data CITY OF FORT COLLINS onteTitlecttoththisproon on the Title Page of this proposal. Ak 1W Mr concerning this agreement shall be directed to the City Representative. 9. Independent Service provider. The services to be performed by Service Provider are those of an independent service provider and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Service Provider's compensation hereunder for the payment of FICA, Workmen's Compensation or other taxes or benefits or for any other purpose. 10. Personal Services. It is understood that the City enters into the Agreement based on the special abilities of the Service Provider and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Service Provider shall neither assign any responsibilities nor delegate any duties arising under the Agreement without the prior written consent of the City. Owest has read, understands and responds with the following clarification: For our standard commercial service and product offerings, Owest may engage non -customer or project specific subcontractors and, therefore, such subcontractors shall be under the sole control of Owest and shall not be contingent on a single Customer's approval or review. Notwithstanding the above, in the event Owest utilizes subcontractors specific and exclusive to Customer only, Owest would be willing to negotiate in good faith a provision to allow customer to review and approve such contractors 11. Acceptance Not Waiver. The City's approval or acceptance of, or payment for any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement or cause of action arising out of performance of this Agreement. 12. Warranty. Qwe st. Spirit of Service 21 Qwest. Spirit al Service 3C & VIVID Vendors o Annual forecasted revenues of $1,000,000 or more per year o Support Nortel Marketing programs and events o Vendor participation on targeted promotional plan o Have a 24 X 7 help desk, and maintenance infrastructure o Be able to demo equipment, and have a working lab for these purposes Use or disclosure of this proposal data is subject to the restriction CITYOF FORT COLLINS on the Title page of this proposal. AL (a) Service Provider warrants that all work performed hereunder shall be performed with the highest degree of competence and care in accordance with accepted standards for work of a similar nature. (b) Unless otherwise provided in the Agreement, all materials and equipment incorporated into any work shall be new and, where not specified, of the most suitable grade of their respective kinds for their intended use, and all workmanship shall be acceptable to City. (c) Service Provider warrants all equipment, materials, labor and other work, provided under this Agreement, except City -furnished materials, equipment and labor, against defects and nonconformances in design, materials and workmanship/workwomanship for a period beginning with the start of the work and ending twelve (12) months from and after final acceptance under the Agreement, regardless whether the same were furnished or performed by Service Provider or by any of its subcontractors of any tier. Upon receipt of written notice from City of any such defect or nonconformances, the affected item or part thereof shall be redesigned, repaired or replaced by Service Provider in a manner and at a time acceptable to City. Qwest has read, understands and responds with the following clarification: The warranty coverage for any Product shall be that provided by the manufacturer, including the warranty coverage for any Product which is a part of a system previously purchased from and installed by Qwest which is still under warranty. Implementation of any Product warranty is solely the responsibility of Customer and any Qwest support of such warranty will be provided at the discretion of Qwest. Any warranty is conditioned on the Product not having been installed, altered, maintained, or repaired by anyone other than Qwest. 13. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to pe . according to the terms of this agreement, such party may beargd iry�degt�. � W1/ CC L 1 Spirit of Service 22 Use or disclosure of this proposal data is subject to the restriction CITY OF FORT COLLINS on the Title page of this proposal. 14. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail himself of any other remedy at law or equity. If the non -defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney fees and costs incurred because of the default. awest has read, understands and responds with the following clarification: Qwest agrees that Customer may terminate the subject agreement without liability for any early termination or cancellation charges either for Cause (as defined herein) or pursuant to any specific termination right extended to Customer under the terms of the subject agreement. For purposes of this proposal, "Cause" shall mean the failure of a party to perform a material obligation under the subject agreement which failure is not remedied, if curable: (a) in the event of a payment default by Customer, upon five (5) calendar days written notice, or (b) in the event of any other general default, upon thirty (30) calendar days written notice (unless a shorter notice period is expressly set forth in the agreement, in which case the shorter notice period shall apply). 15. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. 16. Indemnity/Insurance. 1--2 Qwest. Spirit of Service 23 Use or disclosure of this proposal data is subject to the restriction CITY OF FORT COLLINS on the Title Page of this proposal.AL a. The Service Provider agrees to indemnify and save harmless the City, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, result from or occurring in connection with the performance of any service hereunder. Qwest has read, understands and responds with the following clarification: Qwest will pass through to Customer any warranties, representations, and indemnifications from the manufacturer of the equipment provided hereunder. b. The Service Provider shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. c. Without limiting any of the Service Provider's obligations hereunder, the Service Provider shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit , consisting of (_) pages[s], attached hereto and incorporated herein by this reference. The Service Provider before commencing services hereunder, shall deliver to the City's Director of Purchasing and Risk Management, P. O. Box 580 Fort Collins, Colorado 80522 one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. 17. Entire Agreement. This Agreement, along with all Exhibits and other documents incorporated herein, shall constitute the entire Agreement of the parties. Covenants or representations not contained in this Agreement shall not be binding on the parties. Qwest. 2 Spirit of Service 24 Use or disclosure of this proposal data is subject to the restriction CITYOF FORT COLLINS on the Title Page of[hisproposal. Ak 18. Law/Severability. The laws of the State of Colorado shall govern the construction interpretation, execution and enforcement of this Agreement. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 19. Special Provisions. [Optional] Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit _, consisting of ( ) page[s], attached hereto and incorporated herein by this reference. CITY OF FORT COLLINS, COLORADO a municipal corporation By: John F. Fischbach City Manager By: James B. O'Neill II, CPPO, FNIGP Director of Purchasing and Risk Management Date: ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney [Insert Corporation's name] or Qwest. Spirit of Service 25 CITY OF FORT COLLINS [Insert Partnership name] or [Insert individual's name] Doing business as [insert name of business] By: PRINT NAME CORPORATE PRESIDENT OR VICE PRESIDENT ATTEST: (Corporate Seal) CORPORATE SECRETARY Use or disclosure of this proposal data is subject to the restriction on the Title Page of this proposal. OCTEL 250 Maintenance Quote and other information Currently Qwest has a maintenance agreement with the City of Fort Collins for an Octal 250, at 300 La Port Ave, Fort Collins, CO. We show this to be active for the dates of August 1st, 2002, and to expire on July 31 st, 2003. Site Code for this agreement is 22116900. Qwest. Spirit of Service 26 Use or disclosure of this proposal _ data is subject to the restriction CIOF °i COLLINS on the Title Page of this proposal. We show this to be active for the dates of August 1 st, 2002, and to expire on July 31 st, 2003. Site Code for this agreement is 22116900. Below is Owest pricing to maintain an Octal 250. Standard Hours Extended Hours 6:00 am - 5:00 pm Mon -Fri 7 X 24 Hours Grand Total $10,370.00 $12,962.50 2ND 2ND YR $10,888.50 YR. $13,610.63 3RD 3RD YR. $11,432.93 YR. $14,291.16 4TH 4TH YR. $12,004.57 YR. $15,005.71 5TH 5TH YR. $12,604.80 YR. $15,756.00 TOTAL $57,300.80 $71,626.00 Qwe st6 Spirit of Service 27 CITY OF FORT COLLINS Use or disclosure of this proposal data is subject to the restriction on the Title Page of this proposal. Limitation of Liability. EXCEPT FOR CUSTOMER'S PAYMENT AND INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY, ITS AFFILIATES OR CONTRACTORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES OR LOST DATA, OR COSTS OF COVER ARISING FROM OR RELATED TO THE PRODUCTS OR SERVICES OR EITHER PARTY'S PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE. QWEST'S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL IN NO EVENT EXCEED CUSTOMER'S PROVEN DIRECT DAMAGES, NOT TO EXCEED (A) FOR CLAIMS ARISING OUT OF CPE MAINTENANCE SERVICE, ONE MONTH'S CPE MAINTENANCE SERVICE CHARGE FOR THE AFFECTED COMPONENT, OR (B) FOR ANY OTHER CLAIMS, TEN PERCENT (10%) OF THE PRODUCTS/MATERIALS CHARGE OR LEASE PURCHASE AMOUNT SET FORTH IN THE PURCHASE ORDER RELATING TO THE AFFECTED PRODUCT. EXHIBIT B INSURANCE REQUIREMENTS 1. The Service Provider will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Service Provider shall furnish the City with certificates of insurance showing,,, the Qwest: Spirit of Service 28 FORT CITY F _ COLLINS Use or disclosure of this proposal data is subject to the restriction on the Title Page of this proposal. type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: "The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10) days written notice has been received by the City of Fort Collins." In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Service Provider, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Service Provider under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on the Service Provider's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain during the life of this Agreement for all of the Service Provider's employees engaged in work performed under this agreement: 1. Workers' Compensation insurance with statutory limits as required by Colorado law. 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General & Vehicle Liability. The Service Provider shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly tea= from the performance of work under this Agreement. Covert pr igrtgd YV Spirit of Service Q Use or disclosure of this proposal data is subject to the restriction -' R _... , on the Title Page of this proposal. shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $500,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. Response: Qwest has read and complies EXHIBIT C — PBX SYSTEM INFORMATION The following is the basic PBX version and feature package. Also included is a basic trunk count. This is for vendor information and is of course subject to change. COMPONENT: Meridian Option 81 C PBX, Version 3011, Software Level' 25.30.mr °$ � Qwe St. Spirit of Service 30 Use or disclosure of this proposal �. data is subject to the restriction - ., F .. � . - . J NS on the Title Page of this proposal. OPTIONS: 1, 2, 4, 5, 7, 8, 9, 10, 11-25, 28, 29, 32-55, 57-64, 67-77, 80, 81, 83, 87-93, 95, 98, 106-111, 113-119, 121, 132, 133, 139-140, 145-147, 149, 155, 157, 160, 162, 164, 167, 170, 173, 174, 178, 181, 186, 191, 203-205, 214, 222, 223, 227-229, 234, 240, 242, 243, 245-247, 250, 251, 253, 254, 256, 258, 291, 296, 299, 301, 306, 307, 310, 315, 329, 330, 331, 334, 350, and 380. TYPES OF TRUNKS MUSIC 3 PAGE 7 RAN 4 DID 94 via PRI COT 24 via DTI FEX-Denver 6 FEX-Greeley 1 PRI 4 EXHIBIT D - BUILDING LOCATIONS & ASSOCIATED EQUIPMENT City Hall West 300 LaPorte Ave Meridian Option 81 PBX, digital sets, 2500 ports City Hall East 300 LaPorte Ave Digital sets, 2500 sets, 2500 ports, radio Civic Center City Building 215 N Mason Digital sets, 2500 sets, 2500 ports Development Services 281 N. College Digital sets, 2500 sets, 2500 ports, radios Facilities 117 N. Mason St Digital sets, 2500 sets, 2500 port ' west: n Spirit of Service 31 Question # 2 - What is meant by "response time"? Define "reasonable effort response time". o The Qwest Service Center in Seattle can dispatch a technician or have the support group access the City's PBX remotely. Either way, our commitment is as follows: 2 hour for emergencies, and 24 hour for non - emergency type calls. 7760s 1�qs2x r^j f=% C�wtis Qwest. Spirit at Service Use or disclosure of this proposal COLLINS data is subject to the restriction . _ OF 'i . on the Title Page of this proposal. Police Annex Building 230 LaPorte Avenue 2500 set. Lincoln Center 417 W. Magnolia City -Fiber Fiber Remote, digital sets, 2500 ports. Mulberry Pool 424 W. Mulberry Digital sets, Unity sets, Library 201 Peterson City -Fiber Fiber Remote, Carrier Remote, digital sets, 2500 ports, 2500 sets Fire Administration 101 Remington St Digital sets, 2500 ports, Fire Station 1 505 Peterson St Digital sets, 2500 ports, MPO 235 Mathews St Digital sets, 2500 ports„ data, radio Museum 200 Mathews Digital sets, Utility Customer Service 330 S. College Ave Digital sets, ACD agents, 2500 ports, Utilities Service Center 700 Wood St City -Fiber Fiber Remote, digital sets, 2500 ports, paging, radio Equipment Services 835 Wood St Digital sets, 2500 sets, 2500 ports Transportation Garage 906 W. Vine Dr Digital sets, 2500 sets, 2500 ports Natural Areas -Nat. Res. 1745 Hoffman Mill Rd City -Fiber Mini -Carrier Remote, digital sets, 2500 ports Transfort/Dial-A-Ride 6570 Portner Rd Qwest t-1 Carrier Remote, digital sets, 2500 ports, radio Park Shop 415 S. Bryan Ave City -Fiber Carrier Remote, digital sets, 2500 sets, radio City Park 9 Maintenance 411 S. Bryan Ave Unity sets City Park 9 Golf Course 411 S. Bryan Ave 2500 sets F.C. Hsg Authority 1715 W. Mountain Ave Digital sets, 2500 rts A& Qwe St. '--Z- Spirit of Service 32 Use or disclosure of this proposal data is subject to the restriction CITY OF FORT IJs. on the Title Page of this proposal. Grandview Cemetery 1900 W. Mountain Ave Digital sets, 2500 sets, radio Waste Water Treat. II 3036 E. Drake Rd Qwest T-1 Carrier Remote, digital sets, 2500 ports, paging All connected to the City' s PBX via Qwest OPX circuits: Atzalan Center 112 E. Willow 8x24 Norstar, 7208 & 7310 sets, EPIC 1801 Riverside Ave 8x24 Norstar, 7208 & 7310 sets, 2500 sets F.C. Hsg Auth. Maintenance 1400 Riverside Ave 6x16 Norstar, 7310 sets Poudre Fire Auth., Station 2 416 S. Bryan Ave 8x24 Norstar, 7310 sets Poudre Fire Auth., Station 3 2000 Matthews St 8x24 Norstar, 7310 sets Poudre Fire Auth., Station 4 2030 Devonshire 8x24 Norstar, 7310 sets Poudre Fire Auth., Station 5 615 Hogan Dr 8x24 Norstar, 7310 sets Poudre Fire Auth., Station 6 2511 Donella Ct. 8x24 Norstar, 7310 sets Poudre Fire Auth., Station 7 2817 N. Overland Tr. 8x24 Norstar, 7310 sets Poudre Fire Auth., Station 10 2067 Vermont Dr. 8x24 Norstar, 7310 sets Poudre Fire Auth., Station 12 321 Country Club Dr 8x24 Norstar, 7310 sets BUILDING LOCATIONS & ASSOCIATED EQUIPMENT (continued) Poudre Fire Auth., Station 13 3400 W. Vine Dr. 8x24 Norstar, 7310 sets Mulberry Water Rec. Fac. 505 Riverside Ave 6x16 Norstar Unit, 7208 & 7310 sets, 2500 ports, paging, radio Water Treatment Plant 14316 LaPorte Ave 8x24 Norstar, 7208 & 7310 sets, 2500 ports, paging system ---------------------------------------------------- The following are connected to the City' s PBX via QW EST O X circuits. k4we st, Spirit of Service 33 Use or disclosure of this proposal data is subject to the restriction CITY^. � � � ORT> . . ...s ...r_ . ? S on the Title Page of this proposal.AL City Park Facilities 1599 S. City Park Avenue 2500 sets Collindale Golf Course 1441 E. Horsetooth Rd 2500 sets Lee Martinez Farm 600 N. Sherwood Unity sets, data Pottery Shop/Studio 1541 W. Oak St. 2500 set Rolland Moore Park 2201 S. Shields 2500 set Roselawn Cemetery 2718 E. Mulberry St 2500 set City Park Outdoor Pool 1599 S. City Park Avenue US West 1 FB lines. Not connected to City' s PBX. Qwestn Spirit of Service 34 Filename: Fort Collins RFP - Main Body.doc Directory: C:\WINNT\Profiles\xerox\Desktop Template: C:\Program Files\Microsoft Office\Templates\Tabs & Web Pages\Dean Temp.dot Title: 6 Subject: Author: Larry Odneal Keywords: county contract proposer system proposal Comments: Creation Date: 01/07/03 6:08 PM Change Number: 2 Last Saved On: O1/07/03 6:08 PM Last Saved By: xerox Total Editing Time: 3 Minutes Last Printed On: 01/07/03 6:34 PM As of Last Complete Printing Number of Pages: 34 Number of Words: 6,654 (approx.) Number of Characters: 37,932 (approx.) QWEST CPE AGREEMENT Agreement No. This Agreement is made by and between Qwest Interprise America, Inc. ("Qwest") and ("Customer"). Capitalized terms used herein are defined herein. Products and Services General Terms and Conditions. 1.1 Agreement and Purchase Orders. This Agreement sets forth the terms and conditions under which Products and Services may be purchased by Customer. All terms and conditions of this Agreement and any Purchase Order shall prevail over any conditions in any Customer purchase orders, payments, or other forms. Customer may use a purchase order different than a Purchase Order for Customer's administrative convenience only. In such event, the preprinted terms contained in such Customer purchase order shall not amend, modify or supplement this Agreement in any way whatsoever, notwithstanding any provisions in the Customer purchase order to the contrary. Customer agrees that Owest, at its discretion, may place a legend to such effect on any Customer purchase order, and that placing such a legend shall not be deemed to be a counter-offer. When using a Customer purchase order, Customer agrees to provide Qwest with all information requested in a Purchase Order. Purchase Orders are attached hereto. 1.2 Security Interest. Until Customer pays Qwest in full for any Products, Customer grants to Qwest a continuing security interest in such Products, including additions, replacements and proceeds ("Collateral"), and authorizes Qwest to file a financing statement with or without Customer's signature. Customer's exact legal name and organizational identification number are as set forth on the signature page hereof. Customer shall not transfer the Collateral or change its name or organizational status except upon at least thirty (30) days prior written notice to Qwest. 1.3 Lease Option. Customer may elect on a Purchase Order to pay on cash terms or through a lease arrangement, under a separate agreement. If Customer elects the "lease" option, Customer agrees to lease and pay for the Product pursuant to a separate lease agreement with Qwest Technology Finance ("Lease"). Subject to this Subsection, Qwest shall provide the Product to Customer and receive payment for the Product from Qwest Technology Finance. As a condition precedent to Owest's obligation to provide any Product hereunder, Customer will (a) obtain Qwest Technology Finance credit approval for the Lease, (b) fully execute the Lease for the Product, and (c) provide Owest with a copy of such Lease. 1.4 Delivery. Owest will make reasonable efforts to provide the Product and, when applicable, the labor necessary to complete Owest's obligations by the desired In -Service Date or delivery date, whichever is applicable, as specified in a Purchase Order. The "In -Service Date" means the date on which Qwest has materially performed its obligations with respect to a particular Purchase Order or Customer receives the use of the Product. 1.5 Acceptance. Customer shall notify Qwest in writing of any portion of a Product which is unacceptable. Failure to notify Owest within ten (10) days of the In -Service Date or actual delivery date, whichever is applicable, shall constitute final acceptance. Any Product installed by Qwest is considered acceptable if it is installed and operates materially in accordance with the manufacturer's specifications. Qwest shall have the right to correct any portion of the Product which has been rejected. Any portion which is not rejected and which is functionally divisible may be invoiced separately with payment required. Moves and changes are considered accepted when the described work is materially completed. Product returns shall only be made in accordance with Owest's then - current Return Material Authorization ("RMA") Policy. 1.6 Software. Software licensed alone or provided with another Product will be licensed or sublicensed to Customer as follows: (a) if supplied with a licensing agreement to be executed by Customer, upon Customer executing that agreement; or (b) if supplied with a licensing agreement requiring no Customer signature, such as a "shrink-wrap" or similar agreement, under the terms and conditions of that document. If neither of the foregoing applies, Qwest grants a personal, nonexclusive, limited sublicense to Customer to use copies of the software in object code form only. The license is effective upon delivery for drop -ships or upon installation, as applicable, and extends only to Customer's own use of such software and only on or with the designated Product. Software must be held in confidence and may not be reproduced in any form unless specifically authorized by the software licensor. 1.7 Disclaimer. The warranty coverage for any Product shall be that provided by the manufacturer, including the warranty coverage for any Product which is a part of a system previously purchased from and installed by Qwest which is still under warranty. Implementation of any Product warranty is solely the responsibility of Customer and any Qwest support of such warranty will be provided at the discretion of Qwest. Any warranty is conditioned on the Product not having been installed, altered, maintained, or repaired by anyone other than Qwest. Qwest is not responsible for any defects or damages resulting from mishandling, abuse, misuse, accident, electrical power surges or current fluctuations, Force Majeure Event, improper storage or operation, including use in conjunction with equipment electrically or mechanically incompatible with or of inferior quality to the supplied equipment or failure to maintain the environmental conditions specified by the manufacturer or licensor. 1.8 Trade -In. If Customer trades in any equipment through Qwest pursuant to any CPE provider terms and conditions, Customer shall indemnify and hold Qwest harmless from any liabilities, including any charges imposed on Qwest, arising from Customer's failure to comply with such terms and conditions. 2. Term. This Agreement shall commence on the Effective Date, and continue for one (1) year ("Initial Term"). After the expiration of the Initial Term, this Agreement will automatically renew for successive one-year periods (each a "Renewal Term") unless a Party notifies the other Party of its desire not to renew this Agreement at least thirty (30) days, and no more than ninety (90) days, prior to the end of the Initial Term or any Renewal Term (the Initial Term and any Renewal Term shall be collectively referred to as the "Term"). Termination or expiration of this Agreement shall not affect obligations under Purchase Orders accepted prior to the effective date of termination or expiration, and this Agreement shall remain in effect as to such obligations in the event it would otherwise have expired or terminated. 3. Termination. 3.1 General. Qwest may (1) immediately suspend all or any part of the Products or Services, and/or (2) terminate this Agreement and/or any Purchase Order: (i) for Cause; (ii) upon written notice if Customer becomes or is declared insolvent or bankrupt or is the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver or similar officer for it. Customer may terminate: (1) a Purchase Order and/or this Agreement for Cause; or (2) a Purchase Order in accordance with Subsections 3.1(a) and 3.1(b). If Customer terminates this Agreement or any Purchase Orders for Cause prior to the conclusion of the Term, then Customer shall remain liable for charges accrued but unpaid as of the termination date. If, prior to the conclusion of the Term, this Agreement or any Purchase Orders provided hereunder are terminated either: (1) by Customer for any reason other than Cause, or (2) by Qwest pursuant to this Subsection 3.1, then Customer shall pay for all accrued and unpaid charges for Services provided through the effective date of such termination plus any applicable Termination Charges set forth in this Agreement. (a) Termination Charges Products. If Customer terminates a Purchase Order prior to acceptance of the Product, Customer will pay a fifteen percent (15%) restocking fee and will prepay return shipping. © 2002 Qwest Interprise America, Inc. Page 1 Version: 11.08.02 Confidential (CPEGEN) (b) Termination Charges — CPE Maintenance Services. It Customer or Qwest terminates a Purchase Order under Subsection 3.1, discontinuance charges shall apply, unless Customer and Qwest have previously agreed to a new Purchase Order with a value equal to or greater than the balance of the terminated Purchase Order. Customer shall pay Termination Charges calculated as follows: ((Monthly Rate for Service(s) Terminated) x (35%) x (Months remaining in the Term)) + All Unpaid Charges Customer may terminate a Purchase Order for Cause without being subject to the Termination Charges described in this Subsection 3.1 (b). 3.2 Reasonableness of Termination Charges. The Parties have mutually agreed upon the charges for the Products and Services to be provided hereunder based upon certain assumed volumes of Products and Services over the length of the Term. Customer acknowledges and agrees that, without the certainty of revenues promised by the commitments set forth in this Agreement, Qwest would have been unwilling to provide the Products and Services at the rates and fees set forth herein, including in future Purchase Orders. Customer acknowledges and agrees that the Termination Charges are not a penalty, but are instead a legitimate and enforceable liquidated damages stipulation because it is based upon a reasonable estimate of the actual damages that Qwest would suffer in the event Customer, for any reason other than Cause, or Qwest, pursuant to Subsection 3.1 were to terminate this Agreement. 4. Rates. 4.1 Pricing. The charges associated with a Product or Service shall be set forth in a Purchase Order accepted by Qwest. Pricing for nonstandard products or services other than those described in this Agreement are provided by Qwest at Qwest's then -current rates and/or prices and shall be set forth in the appropriate Purchase Order. 4.2 Payment for Products. Ownership and all risk of loss, except for damage caused by Qwest, its agents or subcontractors, of Products will transfer to Customer upon their delivery to Customer. Qwest will invoice Customer for such Products upon delivery confirmation. Qwest will invoice Customer for any installation charges upon completion of such installation. Charges shall be due and payable upon Customer's receipt of the invoice. Any amount not paid by the Due Date shall be considered past due and subject to interest at the lesser of: (a) the rate of one and one-half percent (11/2%) per month; or (b) the highest rate permitted by applicable law. In addition to such rates and charges, Customer shall be responsible for all Taxes assessed in connection with the Products and Services. Any written agreement by Qwest to a Customer - requested change or cancellation (in whole or in part) of a Product shall be subject to Customer's payment of the restocking and/or cancellation charges set forth in Qwest's then -applicable Cancellation Policy. Payment of the restocking charges shall be in addition to any other cancellation/termination fees. Expedite charges may apply if Customer requests a shorter due -date interval than the standard interval and Qwest is able to expedite the order. Qwest reserves the right to institute payment terms appropriate for individual Purchase Orders upon prior notification, including, but not limited to: (a) progress billings for orders exceeding $500,000.00; (b) progress billings for orders exceeding one hundred twenty (120) days calculated from the order acceptance date to the In -Service Date; and (c) progress billings for portions of orders completed and not rejected that are functionally and/or geographically divisible. The provision of Products and Services is further conditioned upon Customer's creditworthiness and timely payment of invoices. Qwest may modify the payment terms or require other reasonable assurance of payment (e.g., a deposit or other acceptable form of security) if it reasonably deems itself insecure with respect to Customer's ability to pay (e.g., if Customer has failed to pay any invoice when due, or if there is a material adverse change in Customer's financial condition, etc.). 4.3 Payment for Services. The maintenance charges set forth in the Purchase Order for Data, or Voice and/or Video CPE Maintenance Services are calculated on a monthly basis and shall be billed and payable on an annual basis. The first annual payment will be due in full on the date the Purchase Order is signed. Subsequent payments are due in full at the beginning of each subsequent year throughout the term of the Purchase Order. Qwest may cease providing Services under a Purchase Order if payment is not paid as specified above. 4.4 Miscellaneous. Customer shall not be eligible for any discounts or promotional offers other than those specifically set forth in a fully -executed Purchase Order or promotion term sheet. 5. CPE and CPE Provider Services. Customer acknowledges that Qwest: (a) is not a manufacturer of any CPE; (b) is not a party to any agreement between Customer and a CPE provider for services provided directly by the CPE provider to Customer (e.g., maintenance and extended warranty services); and (c) shall not be bound by or liable for any representation, warranty, or promise made by a CPE provider. Qwest disclaims any liability for loss, damage, or injury to any party as a result of any defects, latent or otherwise, in any CPE or CPE provider service. Qwest shall pass -through and assign to Customer all applicable warranties provided by the manufacturer or CPE provider of the applicable CPE to the extent that such manufacturer or CPE provider permits such pass -through and assignment. Any costs of such assignment shall be borne by Customer. Accordingly, all CPE and CPE provider services purchased from Qwest are subject to the terms and conditions set forth in the manufacturer's or CPE provider's warranty, end -user license or agreement applicable to such CPE or CPE provider service, with no warranty of any kind from Qwest. 6. Installation and Labor Conditions. To the extent that Qwest provides installation or labor hereunder: (a) Customer will provide access to Qwest and/or its applicable affiliates, subcontractors and vendors performing such work; (b) all station cable, riser cable, distribution and feeder cable will be tested and identified by Customer at the main and any intermediate distribution frame(s) when Customer provides inside wiring; (c) all telephone and data jacks will be labeled properly and a corresponding floor plan will be provided to Qwest by Customer; (d) any additional work required by Qwest due to improper or inadequate cable or labeling will be charged at Qwest's standard rates for material and regular time and overtime, as applicable; and (a) upon request by Qwest, Customer will provide a detailed floor plan showing the location of each piece of existing equipment and the desired mounting location for any new equipment and/or power supply with the understanding that changes to the floor plan after submission to Qwest may result in additional charges. Qwest assumes no responsibility for the operation of data, radio control, paging, alarm or other circuits, which are not modified or installed pursuant to a Purchase Order. Additionally, unless otherwise agreed to in a Purchase Order, Qwest shall not gather or input End User station database or routing and addressing information. Customer is responsible for meeting all physical and environmental site standards and requirements of the CPE manufacturer and of Qwest for installation and/or operation, as appropriate, of equipment installed or serviced by Qwest under this Agreement. In the event Customer's failure to meet the requirements of this Section 6 results in installation delays encountered by Qwest after arrival at the Customer's site, Customer shall be billed for reasonable costs, including costs associated with rescheduling of installation, incurred by Qwest as a result of the installation delay. Additionally, if Customer requests that an order be expedited and Qwest incurs additional costs as a result from the CPE provider, installation vendors, etc., such costs shall be passed on to Customer. 7. Fraudulent Use. Upon request of Customer, Qwest may provide information relative to equipment operation and features, and recommendations for reasonably safeguarding the equipment against toll fraud and unauthorized access. However, Customer is solely responsible for the security of its own communications equipment and services, authorization codes, routing assignments, systems addressing, voice -mail systems, direct inward system access, and internal systems and operations. Qwest and its affiliates © 2002 Qwest Interprise America, Inc. Page 2 Version: 11.08.02 Confidential (CPEGEN) and subcontractors are not responsible for damages relating to unauthorized long-distance charges, unauthorized packet or usage charges, unauthorized access or other misuse of Customer's equipment or services by Customer, its employees and agents, or by any third parties. 8. Safety Compliance. Qwest and Customer will adhere to all applicable health, safety and environmental laws, rules and regulations, including the Occupational Safety and Health Administration's and the Environmental Protection Agency's rules and regulations (collectively, "Safety Regulations"). Owest will not work in any area where a Hazardous Substance is present. "Hazardous Substance" means a substance regulated by any Safety Regulation and includes, but is not limited to, asbestos. Qwest may work in an area containing nonfriable asbestos if Qwest determines, in its sole judgment, that the work will not disturb or cause the asbestos to become friable. Customer is responsible for informing Qwest of the existence, location and condition of any Hazardous Substances that may be in or around the Qwest work area. Customer shall indemnify and hold Qwest harmless from any fines or other liability of Qwest arising from Customer's failure to inform Qwest of Hazardous Substances. Qwest may, without affecting Customer's informational duties and indemnification, suspend work from the time it reasonably identifies areas where Hazardous Substances may be present until the work area is in compliance with all applicable Safety Regulations. Any such suspension is not a default of this Agreement, and any delays from the suspension may result in a similar delay in work completion, without penalty to Qwest. If the parties cannot agree whether Qwest's work can be performed through completion without a violation of Safety Regulations, or cannot agree to payment of added costs, if any, either party may terminate this Agreement without penalty. Such termination shall not affect Customer's obligation to pay for Products and Services provided by Qwest prior to the effective date of termination. 9. CPE Maintenance Service Terms and Conditions -General. 9.1 Service. Customer may purchase Data, Voice, or Video CPE maintenance services ("CPE Maintenance Service") under this Agreement. All terms and conditions of this Agreement and any Purchase Order shall prevail over any conditions in any Customer purchase orders, payments, or other forms. 9.2 CPE Maintenance Services Provided. Qwest agrees to maintain the CPE listed in the maintenance portion of a Purchase Order, including any embedded software, in accordance with the manufacturer's specifications. Owest will provide all necessary labor, tools, and materials, and will repair or replace, at its option, any necessary parts in connection with any CPE Maintenance Service. All parts and materials shall be of equal quality to the original, and may be new or used with equivalent -to -new performance characteristics. 9.3 Term. CPE Maintenance Service may be ordered for an initial term of 12, 24, or 36 months. Customer shall specify in a Purchase Order the duration of the initial term. The CPE Maintenance Service section of a Purchase Order will automatically renew for successive one-year periods until a total of thirty-six (36) months has elapsed since the Commencement Date (as defined in the Purchase Order) unless a parry notifies the other of its desire to not renew such Purchase Order at least thirty (30) days, and no more than ninety (90) days, prior to the anniversary of the Commencement Date. The rates for CPE Maintenance Services during each one-year renewal period shall be the then -current CPE Maintenance Service rates, as adjusted for equipment growth, which will be delivered to Customer sixty (60) days in advance of the anniversary of the Commencement Date. 9.4 Exclusions. Data, Voice and Video CPE Maintenance Services exclude all services not specifically agreed to in writing by Owest including, but not limited to: (a) Work on any equipment that is not located at the address specified in the Purchase Order for the applicable CPE Maintenance Service or equipment which has been altered by someone other than Qwest. (b) Making Customer -specified changes or adding or removing accessories, attachments, or other peripheral devices. (c) Moving or re -locating equipment or software. (d) Replacement of lost or stolen parts or materials, or repair or replacement of parts, materials or software damaged through accident, negligence, abuse, misuse, connection with incompatible equipment, failure of electrical power, air conditioning or humidity control, or a Force Majeure Event. Customer agrees to maintain a clean, dust -free ventilated environment with a maximum 76 degrees Fahrenheit and 30-50 percent relative humidity, or such other environment that the video equipment manufacturer may specify. (e) Failure or malfunction of attached, related, collateral or ancillary equipment not covered by a Purchase Order for the applicable CPE Maintenance Services. (f) Work on equipment not listed on a Purchase Order for the applicable CPE Maintenance Services. (g) Problems resulting from work performed by others. (h) Voice CPE Maintenance excludes maintenance of head sets and battery replacement. 10. Data CPE Maintenance Service. 10.1 Procedure Upon Failure or Malfunction of Equipment. Customer agrees to notify the Qwest Customer Service Center ("Owest CSC") at 1-800-227-2218 upon the failure or malfunction of CPE listed in the CPE Maintenance Service section of a Purchase Order for Data CPE Maintenance Services. 10.2 On -Site Support Plans. On -site support includes remedial maintenance support to diagnose problems and implement solutions. Remote diagnostics, software support elements, on -site technician dispatch and hardware field service are included features, each with different on -site response time parameters. (a) Response Times. (1) The response time begins when the Owest CSC and Customer determine that a field technician should be dispatched to provide remedial service. (ii) Diagnosis of the problem begins within one (1) hour of the time at which the Qwest CSC receives a Customer call. (iii) A technician will make reasonable efforts to arrive on -site within the response interval specified in the CPE Maintenance Service portion of a Purchase Order. If Customer selects the Standard Next Business Day (NBD) option, Qwest will make reasonable efforts to have maintenance personnel respond on the next business day after notice is provided to the Owest CSC during the hours of 9:00 a.m. to 6:00 p.m. local time, Monday through Friday, except Qwest observed holidays ("Qwest Standard Service Hours"). If Customer selects the Standard +4 option, Owest will make reasonable efforts to have maintenance personnel respond within four (4) hours after notice is received by the Qwest CSC during Owest Standard Service Hours. If Customer selects the Premium +4 option, Qwest will make reasonable efforts to have maintenance personnel respond within four (4) hours after notice is provided to the Qwest CSC seven (7) days a week, including Qwest observed holidays. (iv) The technician will install spare parts as suggested by remote diagnostics and discussions with Customer. If additional spare parts are required, they will be shipped in accordance with the provisions of the applicable manufacturer. © 2002 Qwest Interprise America, Inc. Page 3 Version: 11.08.02 Confidential (CPEGEN) 10.3 Remote Support Plans. Remote support is designed to provide remote diagnostic technical support, and software and part(s) replacement support to customers who have an established in-house network organization and want to maintain their own data network equipment. Remote support does not include Owest on -site technical assistance. (a) Response Times. (i) The response time begins when the Qwest CSC and Customer determine a problem exists with an active, maintenance - covered component. (ii) Diagnosis of the problem begins within one (1) hour of the time at which the Owest CSC receives the Customer call. (iii) Owest will make reasonable efforts to deliver replacement part(s) to Customer's location(s) within the response intervals set forth in a Purchase Order. (iv) It is Customer's responsibility to replace defective components at its locations and return defective components to the Owest-designated location. (v) Spare parts will be provided in accordance with the provisions of the applicable manufacturer. 10.4 Software Upgrade. (a) Qwest will provide access to software updates via the Internet or a Qwest server, as applicable. Customer is responsible for ensuring that its equipment is accessible by modem dial -up or Internet access, and for the procurement and installation of any hardware or memory required for software upgrades. (b) Owest will provide remote assistance for Customer's first software upgrade and one (1) product release per contract year. Customer is responsible for carrying the upgrade process throughout its remaining network devices. 11. Voice & Video CPE Maintenance Service. 11.1 Procedure Upon Failure or Malfunction of Equipment. Customer agrees to notify the Qwest CSC at 1-800-421-2271 for Voice and 1-800-879-6364 for Video upon the failure or malfunction of CPE listed in the CPE Maintenance Service section of a Purchase Order for Voice and/or Video CPE Maintenance Services. 11.2 Voice Emergency Procedure. An "Emergency' means a major malfunction of Voice CPE, which shall consist of one or more of the following conditions: (a) Complete failure of the system that results in (1) no incoming or outgoing communication to or from Customer's premise or (ii) no internal communications within the system. (b) Failure of a critical subsystem that results in: (i) an inoperative attendant console; (ii) an inoperative message accounting system; (iii) forty percent (40%) of all telephones out -of -service; or (iv) twenty percent (20%) of all trunk circuits out -of -service. When notice of an Emergency is received by the Qwest CSC during Qwest Standard Service Hours, Qwest will make reasonable efforts to have maintenance personnel respond within two (2) hours of such notice. If Customer selects the Extended Service option in a Purchase Order and the Qwest CSC receives notice of an Emergency during hours other than Qwest Standard Service Hours, Owest agrees to make reasonable efforts to have maintenance personnel respond within four (4) hours of said notice, twenty-four (24) hours per day, seven (7) days a week. The Emergency procedures defined in this Subsection 11.2 do not apply to Exception Products. Qwest will respond on a reasonable efforts basis to failures of Exception Products. 11.3 Non -Emergency Procedure. Qwest agrees to make reasonable efforts to have maintenance personnel respond within twenty-four (24) hours of notice of a Non -Emergency malfunction or by the next business day when notice immediately precedes a weekend or holiday. "Non -Emergency" means a minor malfunction consisting of any failure other than a major malfunction as defined above. 12. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE PRODUCTS AND SERVICES PROVIDED BY QWEST HEREUNDER ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY QWEST, ITS AFFILIATES, OR ITS CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. 13. Limitation of Liability. EXCEPT FOR CUSTOMER'S PAYMENT AND INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY, ITS AFFILIATES OR CONTRACTORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES OR LOST DATA, OR COSTS OF COVER ARISING FROM OR RELATED TO THE PRODUCTS OR SERVICES OR EITHER PARTY'S PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE. QWEST'S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL IN NO EVENT EXCEED CUSTOMER'S PROVEN DIRECT DAMAGES, NOT TO EXCEED (A) FOR CLAIMS ARISING OUT OF CPE MAINTENANCE SERVICE, ONE MONTH'S CPE MAINTENANCE SERVICE CHARGE FOR THE AFFECTED COMPONENT, OR (B) FOR ANY OTHER CLAIMS, TEN PERCENT (10%) OF THE PRODUCTS/MATERIALS CHARGE OR LEASE PURCHASE AMOUNT SET FORTH IN THE PURCHASE ORDER RELATING TO THE AFFECTED PRODUCT. 14. Confidentiality. Neither party shall, without the prior written consent of the other party, disclose or use (except as expressly permitted by, or required to achieve the purposes of, this Agreement) the Confidential Information of the other party, during the Term and for one (1) year following the expiration or termination hereof. Such consent by Qwest may be given only by Qwest's Corporate Legal Department and any purported consent by any other person, including any Qwest sales or customer service representative, is void and of no effect. For purposes of this Section, Confidential Information shall include, but not be limited to, the terms (including pricing) and existence of this Agreement; provided, however, that either party may disclose the existence of this Agreement (but none of its terms) as may be reasonably necessary for such party to conduct its business. Each party will take reasonable precautions to protect the other party's Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own confidential information. The receiving party may disclose Confidential Information if required by a governmental agency, by operation of law, or if necessary in any proceeding to establish rights or obligations under this Agreement, provided that the receiving party gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure. © 2002 Qwest Interprise America, Inc. Page 4 Version: 11.08.02 Confidential (CPEGEN) 15. Publicity. Neither party shall, without the prior written consent of the other party: (a) issue any press release or other public announcement regarding this Agreement or any relation between Customer and Qwest; or (b) use the name, trademarks or other proprietary identifying symbol of the other party or its affiliates. Such consent by Owest may be given in the case of subparagraph (a) only by Qwest's Corporate Communications department in the case of subparagraph (b) only by Qwest's Chief Marketing Officer or his designee. Any purported consent by any other person, including any Qwest sales or customer service representative, is void and of no effect. 16. Notices. Except as otherwise provided herein, all required notices shall be in writing, transmitted to the parties' addresses specified below, or such other addresses as may be specified by written notice, and will be considered given either: (i) when delivered in person to the recipient named on the signature page; (ii) when deposited in either registered or certified U.S. Mail, return receipt requested, postage prepaid; or (iii) when delivered to an overnight courier service. All written notices required under this Agreement shall be sent to the following: To Customer: To Qwest: Qwest Interprise America, Inc. 1801 California Street, Suite 3800 Denver, Colorado 80202 Facsimile #: (303) 295-6973 Attention: Legal Department 17. Dispute Resolution. Any dispute arising out of, or relating to, this Agreement which cannot be resolved by the parties will be settled by arbitration, which will be conducted in accordance with the Judicial Arbitration and Mediation Services ("JAMS") Comprehensive Arbitration Rules. The Federal Arbitration Act, 9 U.S.C. Sections 1-16, not state law, shall govern the arbitrability of the dispute. Either party may initiate arbitration by providing to JAMS written demand for arbitration (with a copy to the other party), a copy of this Agreement and the administrative fee required by JAMS. The written demand for arbitration shall be sufficiently detailed to permit the other party to understand the claim(s) and identify witnesses and relevant documents. Except for the administrative fees required to commence the arbitration or file any counterclaims, the costs of the arbitration, including arbitrator's fees, shall be shared equally by the parties; provided, however, that each party shall bear the cost of preparing and presenting its own claims and/or defenses (including its own attorneys fees). The arbitration will be held in Denver, Colorado. The arbitrator has no authority to award any indirect, incidental, special, punitive, or consequential damages, including damages for lost profits. The arbitrator's decision shall follow the plain meaning of the Agreement and shall be final, binding, and enforceable in a court of competent jurisdiction. If either party fails to comply with the dispute resolution process set forth herein (including without limitation, nonpayment of an arbitration award) and a party is required to resort to court proceedings to enforce such compliance, then the noncomplying party shall reimburse all of the costs and expenses incurred by the party requesting such enforcement (including reasonable attorneys fees). 18. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations (other than a failure to comply with payment obligations) hereunder if such delay or failure is caused by an unforeseeable event beyond the reasonable control of a party, including without limitation: act of God; fire; flood; earthquake; labor strike; sabotage; fiber cut; embargoes; power failure, e.g., rolling blackouts, electrical surges or current fluctuations; lightning; suppliers' failures; acts or omissions of telecommunications common carriers (whether or not affiliated with Owest); material shortages or unavailability or other delay in delivery not resulting from the responsible party's failure to timely place orders therefor; lack of or delay in transportation; government codes, ordinances, laws, rules, regulations or restrictions; war or civil disorder, or act of terrorism ("Force Majeure Event"). 19. Miscellaneous. 19.1 Assignment. Customer may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Owest, which consent will not be unreasonably withheld or delayed. 19.2 No Third -Party Beneficiaries. The terms, representations, warranties and agreements of the parties set forth in this Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any person or entity that is not a party to this Agreement, including without limitation, End Users. 19.3 Severabilitv. If any provision of this Agreement is held to be unenforceable, the unenforceable provision shall be construed as nearly as possible to reflect the original intent of the parties and the remaining provisions shall remain in full force and effect. 19.4 Waiver: Survival. Neither party's failure to insist upon strict performance of any provision of this Agreement shall be construed as a waiver of any of its rights hereunder. All terms and provisions of this Agreement which should by their nature survive the termination of this Agreement shall so survive. 19.5 Controllino Documents: Governing Law. The terms of this Agreement and any Riders shall prevail notwithstanding any conflicting terms of any Purchase Order or other form for purchase or payment submitted by Customer to Owest. This Agreement shall be governed by the laws of the State of New York, without regard to its choice of law principles. 19.6 Riders. The purchase of certain Products or Services may require the execution of one or more Riders or other documents. 19.7 Entire Agreement. This Agreement (together with the signature page, and any Exhibits, addenda, or Riders) and any Purchase Orders accepted hereunder constitute one and the same legally binding instrument and the entire agreement between Customer and Qwest with respect to the subject matter hereof, and supersede all prior offers, contracts, agreements, representations and understandings made to or with Customer by Qwest, whether oral or written, relating to the subject matter hereof. All amendments to this Agreement shall be in writing and signed by authorized representatives of the parties. Qwest may act in reliance upon any instruction, instrument, or signature reasonably believed by Qwest to be genuine. Qwest may assume that any employee of Customer who gives any written notice, Purchase Order, or other instruction in connection with this Agreement has the authority to do so. 20. Definitions. "Cause" means the failure of the other party to perform a material obligation under this Agreement which failure is not remedied, if curable: (a) in the event of a payment default by Customer, upon five (5) calendar days written notice, or (b) in the event of any other general default, upon thirty (30) calendar days written notice (unless a shorter notice period is expressly set forth in this Agreement, in which case the shorter notice period shall apply). "CPE" means customer premises equipment and/or software. "Confidential Information" means written or electronic information that is either: (a) marked as confidential and/or proprietary, or which is accompanied by written notice that such information is confidential/proprietary, or (b) not marked or accompanied by notice that it is confidential/proprietary, but which, if disclosed to any third party, could reasonably and foreseeably cause competitive harm to the owner of such information. Confidential Information shall not include information which, as demonstrated by the receiving party: (a) is in the public domain or otherwise ceases to be secret or confidential through no breach of this Agreement by the receiving party; (b) is already known or is developed independently by the receiving party independent of any disclosure by the disclosing party; or (c) is revealed to recipient by a third party who does not © 2002 Qwest Interprise America, Inc. Page 5 Version: 11.08.02 Confidential (CPEGEN) thereby breach any obligation of confidentiality and who discloses such information in good faith. "Direct Damages" means those damages that follow immediately upon the act done and which arise naturally or ordinarily from breach of contract, but as used herein shall exclude any cover damages. "Due Date" means thirty (30) calendar days from the invoice date. "End User(s)" mean Customer's end -users or customers or any other third parties who utilize or access the Products or Services. "Exception Products" means those products designated as such on the Purchase Order for Voice CPE Maintenance Services. "Products" means products provided under this Agreement, including CPE, CPE provider service, and software license offerings provided by Qwest and/or through its applicable affiliates, subcontractors and vendors. "Purchase Order" means Product and Service order request forms issued by Owest, as amended from time to time, pursuant to which Qwest shall provide and Customer shall purchase the applicable Products and Services. Other than in Subsections 1.1 and 9.1, Purchase Order also refers to Customer purchase order. "Riders" means those riders attached hereto, which shall supplement the terms and conditions pursuant to which Owest shall provide and Customer shall purchase the applicable Products and Services. "Services" means services provided under this Agreement, including, but not limited to, CPE Maintenance Services, provided by Qwest and/or through its applicable affiliates, subcontractors, and vendors. "Taxes" means any and all applicable foreign, federal, state and local taxes, including without limitation, all use, sales, value-added, surcharges, excise, franchise, commercial, gross receipts, license, privilege or other similar taxes, levies, surcharges, duties, fees, or other tax -related surcharges, whether charged to or against Qwest or Customer, with respect to the Products or Services, but excluding any taxes based on Qwest's net income. The Parties hereby execute and authorize this Agreement as of the latest date shown below ("Effective Date'). CUSTOMER: Customer's Organizational Identification No. QWEST INTERPRISE AMERICA, INC. By: © 2002 Owest Interprise America, Inc. Page 6 Version: 11.08.02 Confidential (CPEGEN) Question # 3 - How will the City of Fort Collins be identified in your 2"d level TAC/NOC database? Describe the account setup. o Does the City want Qwest to provide Alarm Monitoring on your 81C? lt^o �;7" . o Qwest provides customer identification via the Sentinel alarm monitoring service. Customer name, address, contact, system type, modem number, serial number, contract type and Sentinel device information are included in the display. For customers that do not subscribe to alarm monitoring, information is recorded on a case by case basis as tickets are issued. Qwest---..m2 2 Sprnl of Seivoce larm Monitoring Qwest. _�2 Sofa of Service Alarm Monitoring is a service provided by Qwest Solutions in which a centralized location has the ability to monitor on -site equipment for urgent service events and respond to such issues in a timely manner. For Voice CPE, this monitoring will be done by the CPE Service Centers. Question # 4 - Describe your spare parts stock and location, both for the Option 81 C, and the Octel o The storeroom at 5151 Fox St., in Denver, CO 80216, stocks sufficient levels of routine and critical spare parts for the Option 81C and Octel lines. This enables Qwest to provide the quickest possible response to The City of Fort Collins in the event of critical equipment failure. o Computerized inventory tracking system Qwest. spHM of service Qwest Response to City of Fort Collins Proposal Number P-871 Telephone Equipment and Maintenance Services r ride the light Qwest CITY OF FORT COLLINS January 8, 2002 The City of Ft. Collins Attention: Mr. James B. O'Neill II, CPPO, FNIGP Director of Purchasing and Risk Management 215 North Mason Street, 2nd Floor Fort Collins, CO 80524 Dear Mr. O'Neill, Use or disclosure of this proposal data is subject to the restriction on the Title Page of this proposal. Owest (Owest Corporation) hereby submits its response to Proposal Number P871. The Account Team has worked diligently to provide a compliant response to this request. Response to this includes all items detailed in the document received by you entitled Proposal Number P871, and Addendum No. 1. As you and the evaluation committee review our documents, please be assured that upon award to Qwest, you will be satisfied with your account team, and the level of maintenance, and service that you receive from us. Owest's new motto — "Spirit of Service" will be directly felt by you and your team in the way in which your account is handled. Our priority is your satisfaction. Please feel free to contact me at any time 303-391-8563. Sincerely, r Ted Thonus National Account Manager «�-O Qwe st:- - Spirit of Service