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PUBLIC SAFETY PRODUCT
SALESIINST ALLA TION/MAINTENANCE
PURCHASE CONTRACT
THIS AGREEMENT ("Agreement" or "Contract") is made and entered into this I Cf~ay of March,
2003, between the City of Port Angeles (hereinafter called the "Purchaser" or "Customer") and Qwest
Government Services, Inc. (hereinafter called the "Contractor", "Vendor", or "Qwest").
WHEREAS, Qwest sells and Customer purchases the Public Safety Product hardware and/or software
specified in Attachment 1 to this Agreement, referred to hereinafter as "Product(s)". Customer purchases
Product(s) to provide public safety emergency communications services, and
WHEREAS, Qwest agrees to install Product(s) specified in Attachment 1 according to the terms and
conditions described in Attachment 2 to this Agreement, titled, Installation Schedule, and
WHEREAS, Qwest shall provide maintenance services for the Public Safety Product(s) specified in
Attachment 1 according to the terms and conditions described in Attachment 3 to this Agreement, titled,
Maintenance Provision.
WITNESSETH: That the Purchaser and the Contractor, in consideration of the performance of
the terms and conditions hereinafter mentioned, agree as follows:
ARTICLE I
CONTRACT DOCUMENTS
The complete contract includes the Request for Proposal ("RFP"), the Instructions to Vendors,
Qwest's Proposal, the Specifications, the Standard Terms and Conditions, the Purchase Order
Requisition, and the Purchase Contract. The foregoing documents shall hereinafter be called "Contract
Documents" or "Contract". All obligations of the Purchaser and the Contractor are fully set forth and
described herein.
In the event of a discrepancy between any of the Contract Documents, as above defined, the following
shall be the order of precedence: 1) Contract, 2) Qwest's response to the RFP, 3) RFP. Purchaser shall
make written interpretation thereof, which interpretation shall govern.
ARTICLE II
CONTRACT COST
The Contractor agrees to sell and deliver to the Purchaser, at the delivery point specified in the
Instructions to Vendors, and the Purchaser agrees to purchase and receive from Contractor the
equipment as described and set forth in the Contract Documents and the provisions of the Contractor's
bid attached and made a part hereof.
ARTICLE III
ASSIGNMENT
The Contractor shall not assign any of its responsibility under this Contract without the express
written consent of the Purchaser. It is specifically agreed that Qwest may subcontract all or any portion of
the work without the prior written consent of Customer. Qwest shall remain responsible for the work of
any subcontractor. Notwithstanding the foregoing, Contractor may assign this Contract without the prior
written consent (x) to any entity that controls, is controlled by, or is in common control with Contractor (y)
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to any successor in interest to Contractor or (z) if necessary to satisfy the rules and/or regulations of any
federal governmental agency.
ARTICLE IV
APPLICABLE LAW AND VENUE
This Contract shall be governed by, and construed in accordance with, the applicable laws of the
State of Washington. Any legal proceedings to detennine the rights and obligations of the parties
hereunder shall be brought and heard in Clallam County Superior Court.
ARTICLE V
NONDISCRIMINATION
During the performance of this Contract, the parties shall conduct their business in a manner
which assures fair, equal and nondiscriminatory treatment of all persons, without respect to race, creed,
color, sex, Vietnam era veteran status, disabled veteran condition, physical or mental handicap, or
national origin, and, in particular:
1. The parties will maintain open hiring and employment practices and will welcome
applications for employment in all positions from qualified individuals who are members
of the above stated minorities.
2. The parties will comJlly strictly with all requirements of applicable federal, state or local
laws or regulations issued pursuant thereto, relating to the establishment of
nondiscriminatory requirements in hiring and employment practices and assuring the
service of all patrons and customers without discrimination with respect to the above-
stated minority status.
ARTICLE VI
TERMINATION OF CONTRACT
In the event that any of the provisions of this Contract are violated by the Contractor or the Contractor's
subcontractors, the Purchaser may serve written notice of intention to tenninate such Contract upon the
Contractor, which notice shall specify the reasons therefore. Unless within thirty (30) days after serving
such notice upon the Contractor such violation shall cease and an arrangement for the correction thereof
satisfactory to the Purchaser be made, the Contract shall, upon the expiration of the said thirty (30) days,
cease and terminate. Contractor may (a) immediately suspend all or any part of the Products or
Services, and/or (b) tenninate this Contract, for Cause. Customer may tenninate this Agreement for
Cause. "Cause" means the failure of the other party to perfonn any of the material provisions of this
Contract, which failure is not remedied, if curable; (a) in the event of a payment default by Purchaser,
upon five (5) calendar days written notice, or (b) either Party may serve written notice of intention to
terminate such Contract upon the other Party, which notice shall specify the general default reasons
therefore. Unless within thirty (30) days after serving such notice upon the defaulting Party such violation
shall cease and an arrangement for the correction thereof satisfactory to the non-defaulting party be
made, the Contract shall, upon the expiration of the said thirty (30) days (unless a shorter notice period is
expressly set forth in this Agreement, in which case the shorter notice period shall apply), cease and
terminate. If purchaser or Owest tenninates this Contract, then Purchaser shall remain liable for charges
accrued but unpaid as of the termination date. This remedy shall be in addition to any other remedies,
including termination, available to Owest in law or equity. Owest shall be entitled to recover reasonable
attorney's fees and costs of collection associated with enforcing its rights hereunder.
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ARTICLE VII
SEVERABILITY
If any term or condition of this Contract or the application thereof to any person(s) or
circumstances is held invalid, such invalidity shall not affect other terms, conditions, or applications wh4ch
can be given effect without the invalid term, condition, or application. To this end the terms and
conditions of this Contract are declared severable. Such invalidity or unenforceability shall not invalidate
or render unenforceable any other term or condition, but rather these terms and conditions shall be
construed and enforced accordingly. However, in the event such provisIon is considered an essential
element of these terms and conditions, the parties shall promptly negotiate a replacement thereof.
ARTICLE VIII
WAIVER
Waiver of any breach of any term or condition of this Contract shall not be deemed a waiver of
any prior or subsequent breach. no term or condition of this Contract shall be held to be waived, modified,
or deleted except by a written instrument signed by the parties hereto.
Qwest Government Services, 'nc.
CITY OF PORT ANGELES
By: 1.~
~,
,
BY:~~
.-- Mayor
,
Name: Stephen Brinkmann
Dated 8 - I q -IJ B
Title: Director Business Development
Dated: "4 ( 2// (; 3
APPROVED AS TO FORM
Craig D. Knutson, City Attorney
, ,-
ATTEST:
b~ -L4JD^
Becky J. Up ,C Clerk -
"
"
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CITY OF PORT ANGELES
STANDARD TERMS AND CONDITIONS
PURCHASE CONTRACT
THE PURCHASE CONTRACT INCLUDES THE FOLLOWING TERMS AND CONDITIONS AND THE
PUBLISHED RULES. REGULATIONS, AND LAWS OF THE CITY OF PORT ANGELES AND THE
STATE OF WASHINGTON, WHICH ARE HEREBY INCORPORATED BY REFERENCE.
1. CHANGES.
1.1. No alteration in any of the terms, conditions, delivery price, quality, quantities, or specification will
be effective without written consent of the appropriate representative of the City.
1.2. For changes to an order for Product(s) and/or installation between the time the Agreement is
signed and the installation completed or Product(s) delivered, whichever is applicable, the additional
Product(s) or Installation requests and the appropriate charges shall be shown on an addendum, signed
by authorized representatives of both parties, and attached to the appropriate Attachment and made a
part of this Agreement.
2. HANDLING. No charges will be allowed for handling, including but not limited to packing,
wrapping bags, containers or reels, unless otherwise stated herein.
3. DELIVERY & ACCEPTANCE.
3.1. For any exception to the delivery date as specified in this Contract, Contractor shall give prior
notification and obtain written approval thereto from the City. Time is of the essence and the Contract is
subject to termination for failure to deliver as specified and/or appropriate damages. The acceptance by
the Purchaser of late performance with or without objection or reservation shall not waive the right to
claim damage for such breach nor constitute a waiver of the requirements for the timely performance of
any obligation remaining to be performed by Contractor. Customer must notify Owest in writing,
specifying any portions of the Product(s) listed in Attachment 1 that are unacceptable. If Customer has
not so notified Owest within 10 days from the installation date or delivery date, whichever is applicable,
Product(s) shall be deemed accepted.
3.2. The successful Vendor shall be responsible for delivery to City Hall in Port Angeles, Washington,
between the hours of 8:00 AM and 3:30 PM during the City's normal work day. Delivery shall be made
within the time period specified on the bid.
3.3. The acceptance by the Purchaser of late performance with or without objection or reservation
shall not constitute a waiver of the requirements for the timely performance of any obligation remaining to
be performed by Contractor. Purchaser must notify Contractor in writing, specifying any portions of the
Product(s) listed in Attachment 1 that are unacceptable. If Purchaser has not so notified Contractor within
10 days from the installation date or delivery date. whichever is applicable, Product(s) shall be deemed
accepted.
4. DAMAGES FOR DELAY.
4.1. Delays add cost to the City in the form of time needed for operational duties, administration and
supervision and in the form of replacement equipment rental. Because the City finds it impractical to
calculate all of the actual cost of delays, it has adopted the following to calculate liquidated and actual
damages for failure to complete the delivery of the equipment/material on time.
4.2. Accordingly, the Contractor agrees to the following:
a. To pay liquidated damages in the amount of $250 for each working day beyond the number
of working days established for physical delivery of the equipment/material.
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b. To maintain current system in its original working condition until such time the new system
is available for use in a production environment acceptable to PENCOM.
c. To authorize the City to deduct these liquidated and actual damages from any money due
or coming due to the Contractor.
5. PAYMENTS, CASH DISCOUNT, LATE PAYMENT CHARGES.
5.1. Invoices will not be processed for payment until receipt of a properly completed invoice or
invoiced items, whichever is later.
5.2. Qwest's prices for Product(s) and installation appear in Attachment 1 to this Agreement. Qwest's
prices for maintenance appear in Attachment 3 to this Agreement. All charges shall be paid within thirty
(30) days after receipt of the invoice and in accordance with the payment schedules referenced in
Progress Payments of Section 3, General Vendor Information of Qwest's response to Purchaser's RFP.
Prices quoted in this Agreement shall be good for ninety (90) days from the date this Agreement is signed
by Qwest representatives and delivered to Customer, after which time prices for Product(s) may change.
5.3. Late Payment Charge ~ Qwest shall apply a service charge of 1-1/2% (one and one-half percent)
per month on any unpaid balance not received by Qwest within thirty (30) days of the invoice date.
5.4. Prices do not include taxes or fees, of any kind, established by governmental authorities. Except
for federal excise tax, Customer shall pay all such applicable taxes and fees when billed by Qwest.
Alternatively, Customer may supply Qwest a tax exemption certificate in a form satisfactory to Qwest.
6. SHIPPING INSTRUCTIONS. Unless otherwise specified, all goods are to be shipped prepaid,
F.O.B. Destination.
7. REJECTION. All goods or materials purchased herein are subject to approval by the Purchaser.
Any rejection of goods or material resulting because of non-conformity to the terms and specifications of
this Contract, whether held by the Purchaser or returned, will be at Contractor's risk and expense.
8. IDENTIFICATION. All invoices, packing lists, packages, shipping notices, instruction manuals,
and other written documents affecting this Contract shall contain the applicable purchase contract
number.
9. INFRINGEMENTS. Contractor agrees to protect and hold harmless the Purchaser against all,
suits or proceedings for United States patent, trademark, copyright or franchise infringement arising from
the purchase, installation, or use of goods and materials ordered, and to assume all expenses and
damages directly arising from such, suit or proceedings.
10. WARRANTIES.
10.1. THE WARRANTY PERIOD IN THIS PARAGRAPH IS LIMITED AND EXCLUSIVE. NO OTHER
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY
TO MAINTENANCE SERVICES RENDERED UNDER THIS AGREEMENT
10.2. WARRANTY FOR PRODUCT(S) SHALL BEGIN ON THE ACCEPTANCE DATE AND SHALL
CONTINUE FOR ONE (1) FULL CALENDAR YEAR. DURING THIS WARRANTY PERIOD, QWEST
SHALL PROVIDE SERVICE TO KEEP PRODUCT(S) LISTED IN ATTACHMENT 1 IN GOOD WORKING
ORDER AND TO ENSURE PRODUCT(S) CONFORM TO THE SPECIFICATIONS, TERMS, AND
CONDITIONS OF THIS AGREEMENT
10.3. DURING WARRANTY PERIOD, QWEST SHALL REPAIR OR REPLACE, AT NO CHARGE,
PRODUCT(S) QWEST FINDS TO BE DEFECTIVE DUE TO QUALITY OF MATERIAL OR
MANUFACTURER'S WORKMANSHIP. FOR PRODUCT(S) SOLD BUT NOT INSTALLED BY QWEST,
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A NINETY (90) DAY WARRANTY SHALL BEGIN THE DATE OF DELIVERY OF THE PRODUCT(S) TO
CUSTOMER.
10.4. QWEST AND CUSTOMER SHALL FOLLOW AND BE BOUND BY THE TERMS, CONDITIONS,
AND PROCEDURES DETAILED IN ATTACHMENT 3 OF THIS AGREEMENT TITLED, MAINTENANCE
PROVISION, EXCEPT FOR SECTION 3.2, 3.3, 3.4, 3.5, IN REQUESTING AND PROVIDING
WARRANTY SERVICE.
10.5. PERSONNEL FURNISHED BY QWEST SHALL BE QUALIFIED TO PERFORM TASKS AND
FUNCTIONS FOR WHICH THEY ARE ASSIGNED AND SHALL PERFORM THEM IN A
PROFESSIONAL MANNER
106. IF THE PRODUCT(S) OR SERVICES FAIL TO MEET THE TERMS OF THIS WARRANTY AS A
RESULT OF THE ACTIONS OR NEGLIGENCE OF CUSTOMER OR ACTIONS OF A THIRD PARTY
(OTHER THAN AN AGENT OF, OR INDEPENDENT CONTRACTOR OF QWEST), OR DAMAGE
RELATING TO ACTS OF GOO, FIRE, VANDALISM, OPERATOR ERROR, USE OF IMPROPER
SUPPLIES, OR CUSTOMER INTERFACES OF PERIPHERAL EQUIPMENT, THEN CUSTOMER SHALL
PAY ALL CHARGES ASSOCIATED WITH THE REPAIR OR REPLACEMENT THEREOF IF
CUSTOMER SO ELECTS TO REPAIR OR REPLACE SAID ITEMS.
10.7 Exclusions to Warranties
10.7.1 THE WARRANTIES PROVIDED BY QWEST UNDER THIS AGREEMENT 00 NOT
INCLUDE THE FOLLOWING SERVICES:
a. FURNISHING SUPPLIES WHICH ARE NOT PART OF THE PRODUCT(S) OR
FURNISHING MATERIAL THEREFORE;
b. ELECTRICAL WORK EXTERNAL TO PRODUCT(S) SOLO UNDER THIS
AGREEMENT;
c. WORK OR SUPPLY OF MATERIAL RELATING TO MAINTAINING A PROPER
ENVIRONMENT AT SITE UNLESS INDICATED IN ATTACHMENT 1 TO THIS
AGREEMENT;
d. EQUIPMENT NOT SOLO, INSTALLED, AND MAINTAINED BY QWEST
EXCEPT FOR THE NINETY (90) DAY WARRANTY FOR PRODUCT(S) SOLO BUT
NOT INSTALLED BY QWEST AS DESCRIBED IN SECTION 10.3 OF THIS
AGREEMENT.
10.7.2 QWEST DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT(S) WILL
BE UNINTERRUPTED OR ERROR FREE.
10.7.3 WARRANTY DOES NOT COVER PRODUCT(S) AFFECTED BY OPERATOR ERROR,
MUSUSE OF PRODUCT(S) OR FORCE MAJEURE CONDITIONS AS DESCRIBED IN
THIS AGREEMENT.
10.7.4 WARRANTY AND MAINTENANCE ON UNINTERUPTED POWER SUPPLY (UPS) ARE
THROUGH THE MANUFACTURER AND 00 NOT INCLUDE BATTERY
REPLACEMENT.
11. ASSIGNMENTS. The provisions or moneys due under this Contract shall only be assignable with
prior written consent of the Purchaser. It is specifically agreed that Contractor may subcontract all or any
portion of the work without the prior written consent of Customer. Contractor shall remain responsible for
the work of any subcontractor. Notwithstanding the foregoing, Contractor may assign this Contract
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without the prior written consent (x) to any entity that controls, is controlled by, or is in common control
with Contractor (y) to any successor in interest to Contractor or (z) if necessary to satisfy the rules and/or
regulations of any federal governmental agency.
12. TAXES. Unless otherwise indicated the Purchaser agrees to pay all State of Washington sales
or use tax. No charge by Contractor shall be made for federal excise taxes, and the Purchaser agrees to
furnish Contractor, upon acceptance of articles supplied under this Contract With an exemption certificate
13. LIENS, CLAIMS AND ENCUMBRANCES. Contractor warrants and represents that all the goods
and materials ordered herein are free and clear of all liens, claims, or encumbrances of any kind. Until
Purchaser pays Contractor in full for any Products, Purchaser grants to Contractor a continuing security
interest in such Products, including additions, replacements and proceeds ("Collateral"), and authorizes
Contractor to file a financing statement with or without Purchaser's signature Purchaser's exact legal
name and organizational identification number are as set forth on the signature page hereof. Purchaser
shall not transfer the Collateral or change its name or organizational status except upon at least thirty (30)
days pnor written notice to Contractor. Upon final payment, Contractor's security interest shall be
removed.
14. RISK OF LOSS. Regardless of FOB point, Contractor agrees to bear all risks of loss, injury or
destruction of goods and materials ordered herein which occur prior to delivery. Such loss, injury or
destruction shall not release Contractor from any obligation hereunder.
15. HOLD HARMLESS.
15.1 Contractor shall protect, indemnify, and hold the Purchaser harmless from and against any
losses, damages, cost, or liability, and lawsuits to the extent they arise from, for any injuries to persons or
property ariSing from acts or omissions of Contractor, Its employees, agents or subcontractors howsoever
caused in connection with Contractor's performance under this Agreement or Contractor's use of, or
operation of, the Product(s) sold, installed, and maintained under this Agreement.
15.2. Purchaser shall protect, indemnify, and hold the Contractor harmless from and against in
connection with any losses, damages, cost, or liability, and lawsuits to the extent they arise from, or are
alleged to arise from, for any injuries to persons or property arising from acts or omissions of Purchaser,
its employees, agents or subcontractors howsoever caused in connection WIth Purchaser's performance
under this Agreement or Purchaser's use of, or operation of, the Product(s) sold, installed, and
maintained under this Agreement.
15.3. This reciprocal indemnity extends solely to claims and lawsuits for personal injury, death, or
destruction of tangible property.
16. LABOR AND INDUSTRIES. Contractor's employees involved in installation and maintenance of
equipment are represented by a collective bargaining agreement with the Communications Workers of
America (CWA). As union employees, wage rates are part of the bargaining process. CPE Technician
employees are generally hired at a wage level higher than the per hour prevailing wage for a Journey
Level Electronic & Telecommunications Technician. Contractor is committed to paying prevailing wages
The agreement with the CWA contains provisions whereby wages may be adjusted based upon
prevailing wage requirements. Upon request, Contractor will supply a copy of the agreement with the
CWA.
17. ANTI-TRUST. Contractor and the Purchaser recognize that in actual economic practice
overcharges resulting from anti-trust violations are In fact borne by the Purchaser. Therefore, Contractor
hereby assigns to the Purchaser any and all claims for such overcharges.
18. DEFAULT. Contractor shall be liable for legally compensible damages suffered by the Purchaser
resulting from Contractor's breach of Contract. The Contractor covenants and agrees that in the event
suit is instituted by the Purchaser for any default on the part of the Contractor, and the Contractor is
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adjudged by a court of competent jurisdiction to be in default, Contractor shall pay to the Purchaser the
amount as directed within the court's ruling and reasonable attorney's fees. The Contractor agrees that
the Superior Court of the State of Washington shall have jurisdiction over any such suit and that venue
shall be in ClaHam County.
19. BRANDS. When a special brand is named it shall be construed solely for the purpose of
indicating the standards of quality, performance, or use desired. Brands of equal quality, performance,
and use shall be considered, provided the Vendor specifies the brand and model and submits descriptive
literature when available. Any bid containing a brand which is not of equal quality, performance, or use
specified must be represented as an alternate and not as an equal, and failure to do so shall be sufficient
reason to disregard the bid.
20. SAFETY.
20.1. The equipment shall completely comply with all State and Federal laws, rules, regulations and
codes in effect at the time of delivery.
20.2. The equipment shall be tested by the successful Vendor for compliance with all OSHA! WISHA
regulations and the State Department of labor and Industries Electrical Workers Safety Rules.
21. CUSTOMER RESPONSIBiliTIES.
21.1 Customer shall ensure that its personnel are available to receive delivery of Product(s) at site, at
a date and time to be determined between awest and Customer. Risk of loss and damage to Product(s)
passes to Customer upon delivery of Product(s) to Customer at site.
21.2. Customer agrees to grant reasonable right of entry to awest's representatives to deliver the
Product(s) and/or perform all services contemplated under or by virtue of this Agreement, and will make
available a reasonable amount of appropriate, secure space for storage of Product(s) or parts as
necessary.
21.3. Customer shall be responsible for proper site preparation, for meeting and maintaining proper
environmental conditions, including but not limited to, air conditioning, cleanliness, and temperature
requirements, and for meeting electrical requirements as indicated by the manufacturers of Product(s) in
Attachment 1.
21.4. Product(s) delivered to Customer shall be available at site on the installation date. The estimated
installation begin and complete dates are identified in Attachment 2 to this Agreement.
22. HEALTH AND SAFETY COMPLIANCE. awest and Customer shall adhere to all applicable
health and safety laws, rules and regulations including the Occupational Safety and Health
Administration's ("OSHA") rules and regulations. Customer agrees to certify that there is no asbestos on
any premises in any areas where awest will be working. In the event Customer will not certify an
asbestos free environment or asbestos is discovered in the awest work area, there may be additional
costs to perform under this Agreement in compliance with OSHA's rules and regulations. Customer
understands and agrees this Agreement does not include the prices attributable to working in an asbestos
environment including, but not limited to, asbestos sampling, testing, cleanup, or rerouting or delays
caused by any of the above. Customer understands and agrees that prices attributable to any of the
above will be in addition to the price agreed to herein and Customer agrees to pay the additional
amounts. Customer's non-compliance with this provision will be considered as Customer's default under
this Agreement.
23. LIMITATION OF LIABILITY.
23.1. OPERATION OF PUBLIC SAFETY SYSTEMS, CUSTOMER PREMISES SERVICES AND
PRODUCT(S) IS THE SOLE RESPONSIBILITY OF CUSTOMER. aWESrS SOLE UNDERTAKING IS
LIMITED TO PROVIDING THE PRODUCT(S) SOLD AND INSTALLATION AND MAINTENANCE OF
THE PRODUCT(S) IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
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THE PROVISION OF PRODUCT(S) SOLD AND SERVICES PERFORMED BY QWEST TO CUSTOMER
SHALL NOT BE INTERPRETED, CONSTRUED, OR REGARDED, EITHER EXPRESSLY OR IMPLIED,
AS BEING FOR THE BENEFIT OF, OR CREATING ANY QWEST OBLIGATION TOWARD ANY THIRD
PARTY OR LEGAL ENTITY OTHER THAN CUSTOMER. QWEST'S OBLIGATIONS EXTEND SOLELY
TO CUSTOMER.
23.2. QWEST SHALL IN NO EVENT BE LIABLE TO CUSTOMER, OR TO ANY PERSON OR
COMPANY USING ANY PRODUCT OR SERVICE SUPPLIED UNDER THESE TERMS AND
CONDITIONS OR TO WHOM CUSTOMER FURNISHES A PRODUCT OR SERVICE, FOR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING AS A RESULT OF THIS
AGREEMENT. QWEST'S ENTIRE LIABILITY FOR ANY CLAIM OR LOSS, DAMAGE OR EXPENSE
FROM ANY CAUSE WHATSOEVER SHALL IN NO EVENT EXCEED THE HIGHER OF THE REPAIR
OR REPLACEMENT COST OF THE ITEM WHICH DIRECTLY GIVES RISE TO THE CLAIM. THIS
PARAGRAPH SHALL NOT OBLIGATE CUSTOMER TO INDEMNIFY QWEST FOR DAMAGES
SUFFERED BECAUSE OF QWESrS NEGLIGENCE OR INTENTIONAL ACTS WITH RESPECT TO
QWEST'S PROVISION OF EQUIPMENT, INSTALLATION, OR MAINTENANCE SERVICE ON
EQUIPMENT COVERED BY THIS AGREEMENT.
24. SURVIVAL OF OBLIGATION. The respective obligations of Customer and Qwest under these
terms and conditions which by their nature would continue beyond the termination, cancellation, or
expiration hereof, shall survive termination, cancellation, or expiration hereof.
25. SOFTWARE LICENSE. One or more of the Product(s) may be or may contain software. In
some cases the Product(s) manufacturer (Qwest's vendor) has embedded such software into the
hardware as an integral part of the Product(s). All software remains the property and full ownership of the
creator, developer, manufacturer, or copywriter, whichever the case may be. If required by creator,
developer, manufacturer or copywriter, a license must be granted to end-user (Qwest's Customer), to use
such software and may contain specific terms and conditions for such use. These specific terms and
conditions for use are governed entirely by said creator, developer, manufacturer, or copywriter and shall
be adhered to by both parties. Upon the requirement of creator, developer, manufacturer or copywriter to
execute a Software License Agreement or Software Sub-License Agreement by end-user and/or Qwest,
such license shall be executed as required and shall become a part of this Agreement by reference.
26. DISPUTE RESOLUTION. All claims arising out of this Agreement shall be resolved by arbitration
in accordance with the then current rules of the American Arbitration Association. The arbitration shall be
conducted by a single arbitrator engaged in the practice of law. The arbitrator's decision and award shall
be final and binding and may be entered in any court with jurisdiction.
27. NOTICES. Except as otherwise stated in this Agreement, any notice or demand to be given
under this Agreement shall be delivered in person or deposited in United States Certified Mail, Return
Receipt Requested. Any notices or other communications shall be addressed as follows:
TO Customer:
City of Port Angeles
P. O. Box 1150
Port Angeles, WA 98362
Attn: City Attorney
TO Qwest:
Qwest Government Services, Inc.
1801 California Street, 38th Floor
Denver, Colorado 80202
Attn: Vice-President Legal Affairs Department,
Commercial Law
If either party changes its address or if a party's representative changes, the other party shall be advised
of such a change in writing.
28. ADVERTISING. To the extent created by law, neither Party shall, without the prior written
consent of the other Party: (a) issue any press release or make any other public announcement regarding
this Agreement or any relation between Customer and Qwest; or (b) us the name, trademarks or other
proprietary identifying symbol of the other Party or its affiliates. Such consent by Qwest may be given
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only by awest's Corporate Communications Department and any purported consent by any other person,
including any awest sales or customer service representative, is void and of no effect.
29. ENTIRE AGREEMENT. This Agreement, its Attachments and references, represents the entire
Agreement between the parties, is a final, complete exclusive statement of the terms thereof, and
supersedes and terminates any prior Agreement, understanding, or representation between the parties
with respect thereto, whether written or oral.
30. NO LICENSE OF NAME. This Agreement shall not constitute a license or authority to either
party's trade or common name, trademark, or any related property. To the extent created by law, neither
party shall have the right to use the other party's name in any way whatsoever without the prior written
consent of the other party.
31. PROPRIETARY/CONFIDENTIAL INFORMATION. To the extent created by law, 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 of this Agreement and for one (1) year following the expiration or termination hereof.
Such consent by awest may be given only by awest's Corporate Legal Department and any purported
consent by any other person, including any awest 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, either party may disclose
the existence of this Agreement (but none of its terms) as may be reasonably necessary by such party In
order 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
32. FORCE MAJEURE. Except with respect to Customer's obligation to make timely payments,
neither party shall be held responsible for any delay or failure in performance to the extent that such delay
or failure is caused by fires, strikes, embargoes, earthquakes, floods, wars, water, the elements, labor
disputes, government requirements, civil or military authorities, acts of God or by the public enemy,
inability to secure transportation facilities, acts or omissions of suppliers or other causes beyond its
control, whether or not similar to the foregoing.
33. INSURANCE.
33.1 awest, at its sole cost and expense, shall insure its activities in connection with the work under
this order and obtain, keep in force, and maintain insurance as follows:
A. Comprehensive or Commercial Form General Liability Insurance (contractual liability included)
with limits as follows:
Each Occurrence $ 300,000.00
Products/Completed Operations
Aggregate $ 300,000.00
Personal and Advertising Injury $ 300,000.00
General Aggregate (Not applicable
to the Comprehensive Form) $ 300,000.00
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If the above insurance is written on a claims-made form, it shall continue for three years
following termination of this Agreement. The insurance shall have a retroactive date of
placement prior to or coinciding with the effective date of this Agreement.
33.2. It is understood that the coverage and limits referred to under A above shall not in any way limit
the liability of Owest. Owest shall furnish the Customer with certificates of insurance evidencing
compliance with all requirements within thirty (30) days of receipt of written request Such certificates
shall:
(1) Endeavor to Provide for thirty (30)-days advance written notice to the Customer of
any modification, change, or cancellation of any of the above insurance coverage.
(2) Indicate that the Customer has been endorsed as an additional insured for the
coverage referred to under A. This provision shall only apply In proportion to and to the
extent of the negligent acts or omissions of Owest, its officers, agents, or employees.
(3) Include a provision that the coverage will be primary and will not participate with nor
be excess over any valid and collectible insurance or program of self-insurance carried or
maintained by the Customer, subject to the Indemnity provisions contained herein.
34. ACCEPTANCE. BY ACCEPTING THIS PURCHASE CONTRACT IN WRITING OR BY
DELIVERING THE MATERIAL ORDERED, CONTRACTOR ACCEPTS ALL OF THE TERMS AND
CONDITIONS SET FORTH. FORMAL OBJECTION IS HEREBY MADE BY THE PURCHASER TO
ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY VENDOR CONTRACTOR AS A
CONDITION OF ACCEPTANCE OR DELIVERY UNLESS MUTUALLY AGREED TO BY BOTH
PARTIES.
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ATTACHMENT 1
TO PUBLIC SAFETY PRODUCT
SALESllNSTALLATIONIMAINTENANCE
PURCHASE CONTRACT
BETWEEN CUSTOMER AND QUEST GOVERNMENT SERVICES, INC.
... PRICING DETAIL
;- Mfg. Part # Description QTY. Unit Price Extended Price
EI
1 Life Line 100 ANI/ALl Controller
2 912602 ANI! ALl System Software 1 $2,650.13 $2,650.13
3 912604 Remote Diagnostics Software 1 $442.50 $442.50
4 912608 Remote Data Transfer Request Software 1 $1,105.03 $1,]05.03
5 912609 CAD Interface Software I $1,009.10 $1,009.10
6 912160 Netclock Interface Software 1 $1,129.20 $1,]29.20
7 912605 COM Redundancy Software 1 $0.00 $0.00
8 912100 /2 Shelf with KSI 1 $4,203.30 $4,203.30
9 912105 7 ft cabinet 1 $2,660.60 $2,660.60
10 912301/3 ACIDC Module 2 $1,399.22 $2,798.44
11 912303/8M SIO Module (4 RS232C, 8 RS422 Ports) 2 $1,767.55 $3,535.10
12 912304/1M COM Module 2 $1,767.55 $3,535.10
13 912305/3M NIM Module (3 Interfaces) R2.41 7 $2,800.85 $19,605.95
14 912306/3 Signalling Module 2 $858.40 $1,716.80
15 912101 Battery Holdover (I 5 Minutes) I $423.15 $423.15
16 Power 911 Software
17 912612 Life Line 100 / Power 911 Interface Software 1 $2,788.75 $2,788.75
18 913100/411 Power 911 Workstation Base Software 5 $4,634.50 $23,172.50
19 913200/411 Power 91 ] Server Software 1 $4,634.50 $4,634.50
20 913225 Power 9] ] Redundant Server Software I $322.40 $322.40
21 913160/] Power 9]] Integrated TDD Software for PBX 5 $1,128.40 $5,642.00
22 914130/1 Power 9]] Config and SIW - Workstation 5 $1,612.00 $8,060.00
23 914130/2 Power 911 Config and SIW - Server 1 $1,612.00 $1,6]2.00
913800 Power 9] ]lMeridian or Norstar Interface Kit (per
24 workstation) 5 $1,692.60 $8,463.00
25 913550/4 Power 9111AP/PC Card 5 $3,219.97 $16,099.85
26 Power 911 Hardware
27 914100INS Power 9]] Workstation Computer 5 $2,457.00 $12,285.00
28 914410 Power 911 Workstation UPS 5 $560.30 $2,801.50
29 914225 Power 911 Database Server I $6,376.50 $6,376.50
30 9-l#W 17 Iaeh CRT MeBiter -5 $383.50 ($1,917.50)
31 914701 17 inch LCD monitor (1280 x 1024) 5 $1,750.00 $8,750.00
32 914409 12 Port Hub 1 $440.70 $440.70
33 914410 Power 911 UPS 6 $560.30 $3,36 1.80
34 914420 Power 911 Server Tape Backup System 1 $3,385.20 $3,385.20
35 914450 RAID Disk Array 1 $3,120.00 $3,]20.00
36 Power MIS
37 91318112 Power MIS 2.1.1 Database, 5 - 8 Positions $7,657.00 $7,657.00
38 913182 Power MIS 2.].1 Client License $801.97 $B01.97
39 913184 Power MIS PC $3,250.00 $3,250.00
40 Power 911 Data Transfer via FaIlEmail
41 913350/1 P911 Fax Transfer Software (Workstation) 5 $644.80 $3,224.00
42 913350/2 Power 91] Fax Transfer Software (Server) 1 $1,209.00 $1,209.00
43 914300 Communications Server I $6,791.20 $6,791.20
44 Positron Material Subtotal $177,145.77
45 Installation Material Subtotal $8,616.63
46 517677 Alpha UPS Power system for backroom equipment $M}9.45
47 Nortelnetwork Norstar Telephone System $4,417.53 $4,417.53
48 Total Installation and Training Services SS2,74Z.5S
49 TOTAL PROJECT EXCLUDING TAX $249,361.93
50 TAX 8.20% $2D,447.68
51 TOTAL PROJECT $269..61
52 OPTIONAL Caller ID SS92.80
53 TAX 8.20% $48.61
54 Total Caller ID Option S6fl.41
ATTACHMENT 2
TO PUBLIC SAFETY PRODUCT
SALES/INSTALLA TIONIMAINTENANCE
PURCHASE CONTRACT .
BETWEEN CUSTOMER AND QWEST GOVERNMENT SERVICES, INC.
================================================================================
INSTALLATION SCHEDULE
1. QWEST'S RESPONSIBILITIES:
To ensure that the Product(s) set forth in Attachment 1 have been installed according to the
manufacturer's specifications.
2. CUSTOMER'S RESPONSIBILITIES:
2.1. Proper site preparation, including, but not limited to, allowing compliance with manufacturer's
specifications of floor plan requirements, as well as providing necessary openings, ducts, 4' x 8' sheet of
3/4" plywood for terminals and cross connect field, and conduits in floors and walls.
2.2. Meeting and maintaining proper environmental requirements as indicated by manufacturer of
Product(s) listed in Attachment 1.
2.3. Providing electric current and grounds for any necessary purpose, related to this Agreement, with
suitable outlets in rooms where required, including, but not limited to, providing proper lighting for
installation personnel.
3. TIME AND MATERIALS CHARGES:
Additional time and materials charges are applicable under the following circumstances:
3.1. Any modifications to building's electrical system required to install listed equipment and not
provided by Customer;
3.2. Drilling of access holes and provisioning of suitable conduit (if required) from equipment room to
dispatch center for cable access and not provided by Customer;
3.3. Customer requests that Qwest connect the Equipment to voice recorder equipment which was not
purchased under this Agreement.
4. TARGET DATES:
4.1. Installation begin date: (estimated)
4.2. Installation complete date:(estimated)
04/14/2003
04/18/2003
Customer ~
____ (Initials)
Qwest
(Initials)
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ATTACHMENT 3
TO PUBLIC SAFETY PRODUCT
SALES/INSTALLATION/MAINTENANCE
PURCHASE CONTRACT
BETWEEN CUSTOMER AND QWEST GOVERNMENT SERVICES, INC.
===============================================================================
MAINTENANCE PROVISIONS
GENERAL.
This Maintenance Provision is to ensure that after expiration of the warranty period all Product(s) listed in
Attachment 1 shall be maintained in accordance with the manufacturer's original performance
specifications.
1. SERVICE AND SCOPE.
1.1. Qwest will provide remedial maintenance on Product(s) listed in Attachment 1, twenty-four (24)
hours a day, seven (7) days a week on a call out basis.
1.2. Qwest will use its "best effort" to respond to service-effecting call-outs within two (2) hours from
receipt of call.
1.3. Remedial maintenance means maintenance Qwest deems reasonably appropriate and necessary
to return Product(s) listed in Attachment 1 to proper operating condition as specified by manufacturer's
specifications.
1.4. Prior to call out, Customer shall follow routine test procedures, as specified by Qwest, to localize
the cause of a problem.
1.5. After localization of trouble to the Product(s), Customer shall immediately notify Qwest, by phone,
of any Product(s) malfunction.
2. TERM OF MAINTENANCE PROVISION.
2.1 The term of this Maintenance Provision shall be forty eiaht <!ID months and shall begin the day
after the warranty period expires for Product(s) except as defined in Section 16 of this
Salesllnstallation/Maintenance Agreement.
2.2. Should Qwest's Agreement with equipment manufacturer terminate before the end of this
Agreement, Qwest may discontinue maintenance service with reasonable notice to Customer.
3. REPAIR AND REPLACEMENT OF PARTS.
3.1. Qwest shall have the option to repair or replace Product(s) specified in Attachment 1, or parts
thereof, in the performance of this Maintenance Provision.
3.2. When Qwest replaces part(s) or Product(s), the replacement part(s) become the property of
Customer, and the replaced part(s) become the property of Qwest.
3.3. Qwest may, at its option, use reconditioned parts or components of Product(s) as replacement. In
the event a better, more reliable replacement part becomes available, Qwest shall notify Customer and
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Customer shall have the option to choose the exact replacement part or the new, more reliable
replacement part.
3.4. When Qwest utilizes parts or Product(s) from Customer owned spares inventory to satisfy the
requirements of this Maintenance Provision, the defective part(s) or Product(s) remain the property of
Customer. Customer may, at its option, purchase replacement spare part(s) or Product(s) from Qwest to
be delivered by Qwest within a reasonable time frame, replenishing Customer spare part(s) inventory on
an exchange basis. In the case of exchange, the defective part(s) or Product(s) become the property of
Qwest and the purchased part(s) or Product(s) become the property of Customer.
3.5. Prices to be charged by Qwest for replacement spare part(s) or Product(s) when replenishing
Customer owned spare part(s) inventory shall be the then current Qwest list price.
4. EXCLUSION FROM COVERED MAINTENANCE.
4.1. Service calls as a result of Product(s) not listed in Attachment 1, misuse of the Product(s), abusive
environment, Customer modification, Customer interfaces with peripheral Product(s), moves, fire,
vandalism, operator error, use of improper supplies, Force Majeure events as described in paragraph six,
or other causes beyond normal usage of the Product(s) are not covered by this Agreement.
4.2. Service calls to locations which are remote from the primary locations listed herein are not covered
by this Agreement.
4.3. Headsets, Uninterruptible Power Supplies (UPS) and Personal Computers (PC) are not covered by
this Agreement.
4.4. For Product(s) NOT excluded from maintenance coverage for reasons listed above in
subparagraph 4.1.- 4.3., Qwest shall provide repair at Qwest's then current hourly rate for service
technician and all parts required to repair the Product(s) shall be paid by Customer at the then current
parts list price.
5. MAINTENANCE PRICE ADJUSTMENT.
Qwest may initiate an increase on each anniversary of this Maintenance Provision not to exceed ten (10)
percent annually, provided Qwest notifies Customer, in writing, thirty (30) days in advance of any such
increase.
MAINTENANCE SERVICE PRICES: (g MONTHS)
Month Iv
First Year (after warranty)
$ 12.002.40
$ 12.602.52
$ 13.232.64
$ 12.894.28
Second Year
Third Year
Fourth Year
Customer _~
P> (Initials)
Qwest
5J;
(Initials)
OMR#:74751
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