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Ordinance No. 9,889ORDINANCE NO. 9889 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A SYSTEM AGREEMENT WITH VERIZON SOUTH, INC., FOR THE PURCHASE OF VOICE OVER INTERNET PROTOCOL (VOIP) HARDWARE AND SOFTWARE INSTALLATION; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN THE AMOUNT OF FIFTY -SIX THOUSAND THREE HUNDRED THIRTY -SIX AND 65/100 DOLLARS ($56,336.65); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute a System Agreement with Verizon South, Inc., for the purchase of Voice over Internet Protocol (VoIP) hardware and software installation. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Verizon South, Inc., in an amount of FIFTY -SIX THOUSAND THREE HUNDRED THIRTY -SIX AND 65/100 DOLLARS ($56,336.65) in accordance with the Agreement. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25 %). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 23rd day of September, 2004. CALVIN MUNDINGER, Mayor ATTEST: it MRV W. SMITIl, City Clerk APPROVED AS TO FORM: ® edwm��� - rOrNACIO RAMIREZ, SR., Attorney \ \Bdc2 \litig2tion \KarcnWilcs\City Council\ Ordinanccs\ VcrizonsouthVoiccOverlPOrdinance .doc System Agreement veri on This System Agreement ( "Agreement "), effective as of the 22nd day of September, 2004 is made by and between A. Verizon Entity Name ("Verizon"): B. Customer Name ( "Customer ") Verizon Southwest City of Baytown Address: 6210 Rothway Address: 2401 Market St. City: Houston State: TX Zip Code: 77040 City: Baytown State: TX Zip Code: 77522 Contact Name and Phone Number: Customer Billing Address (if different): Greg Smidt 2401 Market St. (713) 867 -6601 P.O. Box 424 City: Baytown State: TX Zip Code: 77522 Quote Number (if applicable) 162600095 Contact Name and Phone Number: Dennis Wells 281 420 -5817 C. Select all applicable options: ❑ New System/Service Sale ❑ Adds/Upgrade to Existing System ® Installation Services Verizon Maintenance and Management Services ❑ Data Maintenance Next Business Day Remote ❑ Data Maintenance 4 -Hour Remote ❑ Data Maintenance 4 -Hour On -Site ❑ Data Maintenance 8 -Hour On -Site ❑ Connectivity Assurance ❑ EMC Support Services ❑ IP Phones Next Business Day ❑ IP Telephony Application Server Platform 4 -Hour Remote ❑ ]P Telephony Application Server Platform 4 -Hour On -Site ❑ IP Telephony Application Server Platform 8 -Hour On -Site ❑ IP Telephony Software Support ❑ SiteWatch — Fault Management ❑ SiteWatch — Performance Management ❑ SiteWatch — Configuration Management ❑ IPTWatch Call Manager /Server Management ❑ IPTWatch Unity Voice Mail /Server Management ❑ IPTWatch IP QoS Fault Monitoring ❑ IPTWatch QoS Performance Monitoring Verizon Maintenance and Management Services Cont'd. ❑ 8x5 Switch & Phones ❑ 8x5 Switch & Proprietary Phones ❑ 8x5 Switch Only ❑ 8x5 Ancillary/Auxiliary Equipment ❑ 8x5 Nortel Norstar ❑ 8x5 NEC Electra Elite ❑ 8x5 Succession ❑ 240 Switch & Phones ❑ 240 Switch & Proprietary Phones ❑ 240 Switch Only ❑ 240 Ancillary/Auxiliary Equipment ❑ 240 Nortel Norstar ❑ 240 NEC Electra Elite ❑ 240 Succession ❑ On -Site Technician ❑ Supplemental Warranty Coverage (extends the standard warranty to 24 hour coverage for major failures during the warranty period) ❑ Other • z Rev. 11/23/03 Page I of 10 VZ Gencmted By: [RDS 9/16/041 VZ Approved To Form: [RDS 9/16104] ESC # 0148 _ System Agreement Verizon Maintenance and Management Services Cont'd. Third Party Maintenance Services (maintenance will be provided in accordance with the vendor's terms and conditions and except for Sections 2, 4 and 12, the terms and conditions herein shall not apply to such maintenance services) ❑ Nortel Extended Service ❑Cisco SmartNet ❑Other: D. Payment Options: ® Cash Purchase ❑ Lease/Financing ❑ Verizon Credit Inc. ❑ Third Party Lease/Financing (must have prior written approval of Verizon) ❑ E- Rate/USF Funding Application No. ❑ Tax Exempt No. E. The total price of the System and /or services being purchased by the Customer is: System Price $ 56.366.65 Maintenance Service Voice Maintenance Service for Years $ Managed Network Solutions Service for Years $ Supplemental Warranty Coverage $ Applicable taxes (estimated) $ TOTAL PRICE $ Down Payment $ Balance Due $ 56.366.65 Customer Initials • VZ Generated By: fRDS 9/16/041 VZ Approved To Forth: [RDS 9/16/04] Rev. 11/23/03 Page 2 of 10 ESC # 0148 System Agreement F. Maintenance Service Billing Option: • ❑ Pre -paid Billing: years $ (Annual Rate) ❑ Deferred Billing (deferred until warranty expiration): years $ $ $ $ $ (Year 1) (Year2) (Year 3) (Year 4) (Year 5) Bill deferred payment (check one): ❑ annually ❑ semi - annually ❑ quarterly ❑ monthly G. Attachments ® Quote ® Equipment Sales and Installation Exhibit ❑ Voice Maintenance Exhibit ❑ Managed Network Solutions Exhibit ❑ EMC Support Services Exhibit ❑ Service Plan Description(s) [ THE TERMS AND CONDITIONS OF THIS AGREEMENT CONTINUE ON THE FOLLOWING PAGES • z Rev. 11/23/03 Page 3 of 10 VZ Generated By: f RDS 91161041 VZ Approved To Form: [RDS 9/16/04] ESC # 0148 System Agreement 1. Scope of Agreement. Subject to the terms and conditions of this Agreement, Verizon will provide Customer, either directly or in conjunction with such subcontractors as it may select, the equipment, installation services, and/or the maintenance services (hereinafter collectively the "System ") as described in this Agreement and as further described in a Statement of Work and any Exhibit attached hereto. 1.1 For Equipment Sale and Installation Services: Verizon will provide, and if applicable install the equipment as set forth in the applicable quote and the Equipment and Installation Services Exhibit. 1.2 For Maintenance Services: Verizon will provide the maintenance services as set forth in the applicable quote and the Maintenance Services Exhibit and/or the Managed Network Solutions Exhibit. 1.3 For Professional Services: Verizon will provide the professional services as set forth in the applicable quote and the Professional Services Exhibit. All applicable Statements of Work and Exhibits attached hereto are incorporated herein and made a part of this Agreement. 2. Fees and Payment. 2.1 Customer will pay all fees for the System is as set forth on Pages 2 and 3 of this Agreement and the applicable quote, subject to additions and deductions made by written Change Order(s). Customer is responsible for applicable taxes for which the Customer is not exempted, shipping, handling, telecommunication surcharges and other charges applicable to the equipment and/or services provided under this Agreement. Customer agrees either to pay to Verizon the amount of all applicable taxes (as determined by tax authorities) or to provide evidence of exemption acceptable to Verizon provided upon execution of this Agreement. 2.2 Payments are due within thirty (30) days of receipt of the invoice ( "Due Date "), and any payment not received by the Due Date, shall be subject to a late payment charge as specified in Section 2251.025 of the Texas Government Code., or the maximum amount allowed by law Should Customer dispute an amount invoiced, Customer shall pay the undisputed portion of that invoice, promptly notify Verizon in writing of the amount and nature of the dispute. Verizon reserves the right to suspend or terminate any or all Services or terminate provision, installation, or repair of any or all equipment subject to this Agreement'if Customer is more than sixty (60) days overdue for payments that are not disputed in good faith; provided Verizon has given Customer thirty days written notice of the termination or suspension prior thereto and an opportunity to remit the amounts not disputed in good faith within such thirty day period, and the Customer remains overdue after the expiration of the thirty day period. 2.3 The down payment listed on Page 2 of this Agreement shall be paid at execution of this Agreement. The balance due shall be paid in accordance with the terms of this Section, unless otherwise specified in a Statement of Work. 3. Term and Termination. This Agreement shall be effective as of the date first set forth above and shall continue in full force and effect until terminated in accordance with this Agreement. 3.l . Either party may suspend its performance of and/or terminate the affected service or equipment order to which the deficiency pertains immediately by written notice in the event the other party (i) fails to perform material terms of this Agreement and (a) such failure is not cured within thirty (30) calendar days following receipt of a default notice in writing from the other party, or (b) if such failure cannot reasonably be cured during that time and the defaulting party, fails to use commercially reasonable efforts to cure such breach as soon as practicable, but in any event within ninety (90) calendar days following written notice; (ii) engages in fraud, criminal conduct or willful misconduct in connection with the business relationship of the parties; or (iii) becomes insolvent, ceases doing business in the ordinary course, enters bankruptcy proceedings or effects an assignment for the benefit of creditors. In the event Verizon terminates this Agreement pursuant to this Section 3. 1, Customer shall promptly pay Verizon for the System and any services provided up to the date of termination. In the event Customer defaults under this Agreement, Customer's down payment shall be non - refundable. 3.2. Either party may terminate this Agreement or a Statement of Work, in whole or in part, upon thirty (30) days prior written notice to the other party for convenience. If this Agreement or a Statement of Work is terminated by Customer pursuant to this Section, Verizon shall have no further responsibility under this Agreement or Statement of Work and Customer shall promptly pay Verizon: • VZ Gcncuted By: f RDs 91161041 VZ Approved To Form: [RDS 9/1&04] Rev. 11/23/03 Page 4 of 10 ESC 0 0148 System Agreement 3.2.1. for all equipment and services provided up to the date of termination; 3.2.2. for reasonable expenses incurred, up to the date of termination, including but not limited to the costs of terminating purchase orders, removal of equipment and other contractual obligations made by Verizon to meet its obligations under this Agreement or Statement of Work, plus any restocking fees, not to exceed 15% of the cost of any equipment returned, incurred by Verizon. 3.3. Where multiple Statements of Work are associated with this Agreement, the termination of one or less than all of the Statements of Work, shall only affect the terminated Statement of Work. The remaining Statements of Work shall remain in effect. 3.4. Verizon reserves the right to suspend performance under this Agreement or a Statement of Work if, in Verizon's sole discretion, required by regulation, statute, judicial action or other applicable legal requirement. 3.5 Verizon reserves the right to amend the rates, terms and conditions of Service under this Agreement to be effective upon the commencement of any renewal term and without formal amendment of this Agreement by providing Customer written notice thereof at least thirty (30) days prior to the expiration of the then - current term. If Customer is unwilling to accept such amended rates, terms and conditions, Customer shall provide Verizon written notice thereof prior to the expiration of the then- current term, in which event the Service shall terminate upon expiration of the then - current term. 3.6 Termination of this Agreement shall not relieve either party of its respective obligations to comply with all terms of this Agreement that expressly call for performance prior or subsequent to the termination date, including without limitation the parties' respective obligations to protect proprietary and confidential information. 4. Purchase Order. The parties acknowledge that a Customer purchase order or other similar document is for Customer's internal purposes only and, therefore, even if acknowledged by Verizon, the terms and conditions will have no effect on this Agreement or the equipment and services provided hereunder. 5. Leasing Option. If Customer elects to finance the System or any portion thereof in a separate transaction through a third party leasing company ( "Lessor ") approved by Verizon, Customer may assign the rights and obligations under this Agreement to the Lessor, or may cause the Lessor to issue a purchase order in a form acceptable to Verizon. Notwithstanding such assignment, Customer, as Lessee, shall have the right to enforce Verizon's obligations under this Agreement and shall remain responsible for performance of Customer's obligations under this Agreement, including payment in full. 6. Risk of Loss. If Verizon installs the System, risk of loss or damage to the System passes to Customer on delivery of the System (including portions thereof) to Customer's site. If Verizon does not install the System, risk of loss or damage to the System (or portions thereof) passes upon delivery to the carrier. 7. Title and Security Interest. Until full payment has been rendered, Customer grants Verizon a purchase money security interest in the System, agrees to execute all documents necessary to perfect that interest. Upon final payment, title shall pass to Customer and Verizon will release its security interest. Customer will not grant or convey to any other person or entity a security interest in, or permit placement of a lien on, the System unless and until Customer has paid Verizon in full for such System. 8. Software. Software provided in conjunction with the System is licensed to Customer under the license provided by the software publisher or equipment manufacturer with which the software is provided. Customer may be required to execute a separate software license agreement furnished by the software publisher or equipment manufacturer. 9. Customer Responsibilities. Customer will: 9.1. Allow Verizon access for installation, inspection, testing, maintenance and repair of the System and performance of any required activity. 9.2. Provide suitable building facilities for the System in accordance with local codes, including but not limited to ducting, conduit, structural borings, etc. for cable and conductors in floors, ceilings and walls; electrical service with suitable terminals and power surge protection devices; and metallic grounds with sufficient slack in the equipment room, installed in conformity with the National Electrical Code and local codes. 9.3. Provide necessary heating, cooling, humidity and dust control as required by manufacturer specifications. 9.4. Remove existing equipment or cable that interferes with System installation. • VZ Generated By: [RDS 9/16 /041 VZ Approved To Form: [RDS 9/161041 Rev. 11/23/03 Page 5 of 10 ESC # 0148 System Agreement 9.5. Identify and disclose to Verizon concealed equipment, wiring or conditions that might be affected by or might affect • the installation of the System. Customer shall hold Verizon harmless from any claim, damage or liability resulting from a failure to disclose this information. 9.6. Authorize Verizon, at Customer's expense and only after obtaining Customer's consent, to make service requests upon third parties for System interconnection requirements, including obtaining telephone service for testing where necessary. Designate trash deposit points on each floor on which the System is to be installed where Verizon will place waste for removal by Customer. 9.7. Cooperate with Verizon's requests for assistance in testing or installation. 9.8. Be responsible for providing adequate back -up of data and for restoring data to repaired equipment. 9.9. If the System is to be connected to the public network, Customer is solely responsible for selection, implementation and maintenance of security features for defense against unauthorized long distance calling. Customer is solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the System. 9.10. Immediately notify Verizon of any anticipated delay in building availability or inability to meet any of the above listed requirements. 10. Changes In /Additions to System. 10.1 Customer may order additional equipment, installation and/or maintenance services pursuant to a written Amendment, Customer purchase order or similar document, and such order shall be governed by this Agreement, including without limitation Section 4, and shall reference this Agreement. 10.2 Customer shall also have the right, by written notice, to propose changes in the System under this Agreement and any Statement of Work ( "Change Orders ") and Verizon shall comply to the extent it deems feasible and reasonable. If Verizon determines that such changes cause an increase or decrease in the cost of or time required for performance, Verizon shall advise Customer and such adjustments shall be reflected in a written Change Order. Should Verizon encounter, in installing the System, any concealed or unknown condition not expressly set forth in the applicable Statement of Work, which condition affects the price or schedule for installation of the System, the price and/or the schedule shall be equitably adjusted by Change Order to cover all costs, including but not limited to labor, equipment, materials and tools necessary to carry out the change. 10.3 No Change Order shall become effective as a part of this Agreement and the applicable Statement of Work, and no changes in the System shall be initiated, until the Change Order is mutually agreed upon in writing. Verizon may also propose changes in or additions to the System, and may proceed with such changes upon execution by Customer and Verizon of a written Change Order. 11. Warranty. Verizon warrants that it will perform all services provided under this Agreement in a good and workmanlike manner. Unless otherwise set forth in an Exhibit, all manufacturers' warranties for equipment provided hereunder are passed through to Customer and warranty claims shall be presented by Customer directly to the manufacturer. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES FROM VERIZON, UNLESS OTHERWISE STATED IN AN EXHIBIT. OTHERWISE VERIZON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON - INFRINGEMENT, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE OR ANY WARRANTY THAT THE SERVICES OR NETWORK TRANSPORT WILL BE UNINTERRUPTED OR ERROR FREE. VERIZON SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO VERIZON'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD. VERIZON MAKES NO WARRANTY FOR USE OF THE SYSTEM AS A COMPONENT IN LIFE SUPPORT DEVICES OR SYSTEMS OR WITH RESPECT TO THE PERFORMANCE OF ANY SOFTWARE OR FIRMWARE. 12. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING A PARTY'S NEGLIGENCE) OR OTHERWISE, INCLUDING WITHOUT • VZ Generated By: [RDS 9116/041 VZ Approved To Form: [RDS 9/161041 Rev. 11/23/03 Page 6 of 10 ESC # 0148 System Agreement LIMITATION DAMAGES ARISING FROM DELAY, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO DATA, • LOST PROFITS (ACTUAL OR ANTICIPATED), UNAVAILABILITY OF ALL OR PART OF THE SYSTEM, OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET OUT IN SECTION 13, VERIZON'S ENTIRE LIABILITY FOR ANY OTHER DAMAGE WHICH MAY ARISE HEREUNDER, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING VERIZON'S NEGLIGENCE, OR OTHERWISE, SHALL BE LIMITED TO TWICE THE PURCHASE PRICE OF THE EQUIPMENT OR SERVICES GIVING RISE TO THE CLAIM. VERIZON SHALL BEAR NO LIABILITY FOR USE OF EQUIPMENT OR SERVICES PROVIDED UNDER THIS AGREEMENT IN CONNECTION WITH LIFE SUPPORT SYSTEMS OR DEVICES. IN ADDITION, VERIZON SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR INTEROPERABILITY OR COMPATIBILITY OF THE SYSTEM WITH THIRD -PARTY PRODUCTS OR SYSTEMS THAT CUSTOMER MAY UTILIZE IN CONJUNCTION WITH THE SYSTEM OR TO WHICH CUSTOMER MAY CONNECT THE SYSTEM. 13. Indemnification. 13.1 Verizon will defend, indemnify and hold harmless Customer against any claim, suit, action or proceeding ( "Claim ") alleging that equipment supplied to Customer infringes a valid U.S. patent or copyright, except as provided below, and Verizon agrees to pay all reasonable litigation and settlement costs and attorney's fees incurred by Customer in connection with any such Claim. If the use of any equipment is enjoined or subject to a Claim as described above, Verizon may, at its option and expense, procure for Customer the right to use the equipment or relevant component, replace the equipment or relevant component with an equivalent, non - infringing equipment or relevant component, or modify the equipment or relevant component so that it becomes non - infringing. In the event that none of the foregoing options is commercially reasonable, Verizon will remove the infringing equipment and refund the purchase price for the equipment less depreciation for such use. Depreciation shall be calculated on a straight -line basis, assuming a useful life of five (5) years. Verizon shall have no obligation for (a) any costs, fees or expenses incurred by Customer without Verizon's prior written consent, (b) with respect to any Claim arising out of "music on hold" or similar service, or (c) for any indirect, special, consequential or incidental damages arising out of any Claim. This indemnity shall not apply to any Claim, or portion thereof that arises from (i) any negligent or willful act or omission by or attributable to Customer; (ii) use or operation of the equipment in combination with equipment or services provided by Customer or its other contractors; (iii) any addition to or modification of the equipment by Customer or its other contractors; (iv) use of other than the current unaltered release of any software used in the equipment; or (v) any equipment, system, product or service of Customer which otherwise infringed the U.S. patent or copyright asserted against Customer prior to the supply of the equipment to Customer by Verizon under the Agreement. The foregoing states the entire obligation of Verizon to Customer, and is Customer's sole and exclusive remedy, with respect to any Claim of infringement of any intellectual property right of any kind, and Verizon disclaims all other warranties and obligations with respect to any such Claims. 13.2 Verizon (the "indemnitor ") shall defend, indemnify, and hold harmless the other party (the "indemnitee ") against all claims and liabilities for direct damages imposed on the indemnitee for bodily injuries, including death, and for damages to real or tangible personal property to the extent caused by the negligent or otherwise tortious acts or omissions of the indemnitor, its agents or employees in the course of performance of this Agreement while on the indemnitee's premises. 13.3 In the event that any action or proceeding is brought against the Customer by reason of any of the above, Verizon further agrees and covenants to defend the action or proceeding by legal counsel that is knowledgeable of the sovereign immunities of municipalities. The indemnification obligations set forth in this Section 13 are contingent upon (1) the indemnitee providing the indemnitor prompt, written, and reasonable notice of the claims, demands, and/or causes of action subject to indemnification, (2) the indemnitee granting the indemnitor the right to control the defense of the same, and (3) the indemnitee's full cooperation with the indemnitor in defense of the claim, including providing information and assistance in defending the claim. Nothing herein, however, shall restrict the indemnitee from participating in the defense of the claim, demand, and/or cause of action at its own cost and expense with counsel of its own choosing. No settlement may be entered into by the indemnitor on behalf of the indemnitee that includes obligations to be performed by the indemnitee (other than payment of money that will be fully paid by the indemnitor under Sections 13.1 and 13.2 above) without indemnitee's prior written approval. VZ Generated By: tRDS 9/16/041 VZ Approved To Form: tRD$ 9/16/041 Rev. 11/23/03 Page 7 of 10 ESC # 0148 System Agreement 14. Confidentiality. • Verizon waives any right to claim confidential, privileged or proprietary rights to any and all reports, documents, filings, correspondence or any other matter submitted to the Customer pursuant to this Agreement unless (1) such confidential rights are determined to be confidential by law or by practices of federal or state agencies and (2) Verizon marks "CONFIDENTIAL" on each page in which it believes is confidential by law. Verizon, however, understands and acknowledges that should the Customer receive a public information request for such documents, the Customer shall submit the requested documents to the Texas Attorney General and notify Verizon that it has or will be doing so. The Customer will have no further responsibility regarding the determination of whether the documents contain public information, for Verizon agrees that it will be solely responsible and obligated to timely prove to the Texas Attorney General that the documents submitted are not subject to disclosure to the public. Should Verizon fail to make timely arguments to the Texas Attorney General, the information requested will be deemed to be public and shall be disclosed by Customer. Should Verizon make timely arguments to the Texas Attorney General, Customer and Verizon shall be bound by the resulting opinion unless the opinion is timely appealed 14.1 Nothing in this Agreement shall prevent either party from using or disclosing any Confidential Information that: (i) has become generally available to the public, other than through any improper action of such party, (ii) is already in the possession of the receiving party and not subject to an existing agreement of confidence between the parties, (iii) is received from a third party without restriction and without breach of this Agreement, (iv) is independently developed by the receiving party as evidenced by its records, or (v) is disclosed pursuant to a valid law, rule, regulation, subpoena, demand, or order of a court or other governmental body or any political subdivision thereof of competent jurisdiction (collectively "demand "). 14.2 For purposes of this Agreement, the term "Confidential Information" shall include, without limitation, all trade secrets of a party and all other information and material that relates or refers to the plans, policies, finances, corporate developments, products, pricing, sales, services, procedures, intra- corporate transactions, suppliers, prospects and customers of a party, as well as financial information relating to such suppliers, prospects and customers, and any other similar confidentiality information and material which such party does not make generally available to the public. By way of illustration, but not limitation, Confidential Information includes all computer software (including object code and source code), computer software and data base technologies, systems, structures and architectures, and the processes, formulae, compositions, improvements, inventions, discoveries, concepts, ideas, designs, methods and information developed, acquired, owned, produced, or practiced at any time by a party, and all non - public information relating to the business of such party. 15. Hazardous Substances. Except as disclosed to and acknowledged in writing by Verizon, Customer certifies that it is not aware of the presence of any asbestos or other hazardous substance (as defined by any applicable state, federal or local hazardous waste or environmental law or regulation) at any location where Verizon is to perform services under this Agreement. If during such performance Verizon employees or agents encounter any such substance, Customer agrees to take all necessary steps, at its own expense, to remove or contain the asbestos or other hazardous substance and to test the premises to ensure that exposure does not exceed the lowest exposure limit for the protection of workers. Verizon may suspend performance under this Agreement until the removal or containment has been completed and approved by the appropriate governmental agency and Verizon. Performance obligations under this Agreement shall be extended for the delay caused by said cleanup or removal. Customer's failure to remove or contain hazardous substances shall entitle Verizon to terminate this Agreement without further liability, in which event Customer shall permit Verizon to remove any equipment that has not been accepted, shall reimburse Verizon for reasonable expenses incurred in performing this Agreement until termination (including actual cost of removing equipment that Baytown has not accepted) and shall complete payment for any portion of the System that has been accepted. 16. Force Majeure. Neither party shall be liable for any delay or failure in performance under this Agreement arising out of acts or events beyond its reasonable control, including but not limited to acts of God, war, terrorist acts, fire, Flood, explosion, riot, embargo, acts of the Government in its sovereign capacity, labor disputes, unavailability of equipment or parts from vendors, or changes requested by Customer. The affected party shall provide prompt notice to the other party and shall be excused from such performance to the extent of such caused delays or failures; provided that the party so affected shall use reasonable efforts to remove such causes of such delays or failures and both parties shall proceed whenever such causes are removed or cease. If performance of either party is prevented or delayed by circumstances as described in this section for more than ninety (90) days, either party may terminate the affected Service or Statement of Work. Notwithstanding the foregoing, Customer shall not be relieved of its obligation to make any payments, including any late payment charges as provided in Section 2.2, above, that are due to Verizon hereunder. • VZ Generated By: fRDS 9/16/041 VZ Approved To Form: tRDS 9116/041 Rev. 11/23/03 Page 8 of 10 ESC # 0148 System Agreement • 17. Assignment. Neither party may, without the prior written consent of the other party, assign or transfer its rights or obligations under this Agreement; consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Verizon may, without prior notice, assign this Agreement, in whole or in part, to any Verizon affiliate, any successor entity upon the merger, reorganization, consolidation or sale of all or substantially all of Verizon's assets. For purposes of this Section, "affiliate" shall mean a person or entity that directly or indirectly controls or is controlled by or is under common control with Verizon. Any attempt to assign this Agreement in contravention of this Section shall be void and of no force and effect. 18. Governing Law. This Agreement shall be governed by the substantive laws of the State of Texas, without regard to its choice of law principles 19. Non - Waiver /Severability. Either party's failure to enforce any of the provisions of this Agreement or to exercise any right or option is not a waiver of any such provision, right, or option, and shall not affect the validity of this Agreement. Any waiver must be written and signed by the parties. If any provision of this Agreement or the provision of any Service or equipment under the terms hereof is held to be illegal, invalid, or otherwise prohibited under applicable law or regulation in any State or jurisdiction, then this Agreement shall be construed as if not containing such provision or not requiring the provision of such invalid, illegal, or prohibited Service or equipment in such State or jurisdiction. 20. Publicity. Neither party shall use any trademark, trade name, trade dress or any name, picture or logo which is commonly identified with the other party or its affiliates, or from which any association with such party or its affiliates may be inferred or implied, in any manner, including but not limited to advertising, sales promotions, press releases or otherwise, without the prior written permission of such party. 21. Notices. All notices to or other communication required to be provided by either party to the other under this Agreement shall be deemed to have been properly given if hand - delivered, mailed by certified mail return receipt requested, sent by facsimile with confirmation of receipt or by overnight courier. Such notices and communications shall be deemed effective upon receipt. If to Verizon, notices should be sent to Verizon National Contract Repository, 700 Hidden Ridge, MC:HQW02L25, Irving, TX 75038, and if to Customer to the address specified on the cover sheet. Such address may be changed by either party by notice sent in accordance with this Section. 22. independent Contractor Relationship. Each party understands and agrees that it and its personnel are not agents or employees of the other party, and that each party is an independent contractor for all purposes and at all times. Neither party shall enter into any agreements or make any promises or commitments on behalf of the other party. Each party shall be responsible for compliance with all applicable employment - related laws and regulations for its personnel including but not limited to those governing hours of labor, working conditions, Workers' Compensation, payment of wages, and payment of taxes, such as unemployment, social security and other payroll taxes, including applicable contributions for such persons when required by law. 23. Interpretation. The Agreement shall not be construed or interpreted for or against any party hereto because that party drafted or caused that party's legal representative to draft any of its provisions. 24. Headings. The Section headings used herein are for reference and convenience only and shall not enter into the interpretation of this Agreement. 25. Modifications. This Agreement may only be amended, changed or modified in a written document that is signed by both parties. 26. Entire Agreement. This Agreement, together with any Statement of Work hereunder and any Exhibit hereto,. constitutes the entire agreement between the parties pertaining to the subject matter herein and supercedes all prior oral and written proposals, correspondence and memoranda with respect thereto, and no representations, warranties, agreements or covenants, express or implied, of any kind or character whatsoever with respect to such subject matter have been made by either party to the other, except as expressly set forth in this Agreement. In the event of a conflict between this Agreement, a Statement of Work or an Exhibit, this Agreement shall prevail. This Agreement may not be changed or waived except by a written document that is signed by both parties VZ Generated By: tRDS 9/16/041 VZ Approved To Form: tRDS 91161041 Rev. 11/23/03 Page 9 of 10 ESC # 0148 System Agreement IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duty executed. Each party warrants and • represents that its respective representative whose signature appears below have been and are on the date of signature duly authorized to execute this Agreement and that each party has the authority to enter into this Agreement. Verizon Customer Name: By: Print Name: Title: Date: By: Print Name: Title: Date: VZ Generated By: tRDS 9/16/041 VZ Approved To Form: IRDS 9/16/04] Rev. 11/23/03 Page 10 of 10 ESC # 0148 • 0 0 0 0 ca N U O 7 .. �I V fn' 1--I 0 c 0 6� 9 Ln ID e %D m 10 Ln z O H w as i. 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U u U O W H U U w F F z a a A 4a H O A v 0 o I 1 N 0 0 ai ai m aJaa 7AA aaa d) 0 w r-I H O d) d) m F F 4J ro A b a ro k �J m k O rt ra 0 > o ro � A In ON to 0 o k k M a N � •�I C U w,'ro$ m u 0 d) JJ -4 O O ro U :j uJ u a 04 W F A w H O a 0 �vlE ui 0 In U a N >4 H W b1 0zal 0 O A a °`Nz A U N a En H z H U H sK C4 • • veriZon Equipment Installation Exhibit for the Cisco IPT Solution for CITY OF BAYTOWN I. Executive Summary Verizon is very excited to present a proposal to City of Baytown for a new Cisco IP Telephony system that will support an initial 380 users while remaining scalable to City of Baytown future needs. Verizon has a team of experienced professionals with expertise in delivering successful IPT deployments based on Cisco's AVVID architecture. This SOW will address an initial installation of the Cisco IPT infrastructure and 380 phones /users. In using Cisco, City of Baytown will build their IPT infrastructure using the industry leader in IPT communications. The Cisco AVVID solution has been tested and documented to provide the following benefits: speed, reliability, flexibility, interoperability, simplification, and reduced costs just to name a few. Verizon will assign a project manager to oversee the entire project and the PM will be accountable for all aspects of the project. The project will include but will not limited to assessment, design, configuration, pricing, installation, programming, testing, integration, documentation, training and any other tasks required as part of this SOW. II. Verizon IPT Project Management Verizon Project Management process for IPT deployments is based on the Cisco IPT Project Management Methodology. The Verizon Project Management Methodology will help speed your migration and optimize your network investment. Through the lifecycle support offered by Verizon you lower your operational cost, increase your network availability and reduce your time to implementation of advanced technologies. Verizon Project Management Methodoloiav VLANr'rrlvG IP Telephony Network Readiness Assessment IP Tele hon Detailed Design Collaboration IP Telephony Software Release Recommendations IP Telephony Proof of Concept Support IP Telephony Detailed Design Develo ment IP Telephony Implementation Plan Review IP Telephony Remote Deployment Support IP Telephony Acceptance Test Plan Review IP Telephony Implementation Engineering IP Telephony De to ment Project Management Su2 ort OPERATIONAO AN17:©F TIMIZAITIQN • IP Tele2hony Ongoing Software Releases Assessment IP Telephony Ongoing Design Support IP Telephony Ongoing Network Application Performance and Optimization IP Telephony Knowledge Transfer IP Telephony Onsite Support III. Project Tasks Verizon will perform the following tasks associated with the deployment, based on eLinear Solutions' IPT Project Management Methodology: 1. Planning a. As part of a prior engagement, Verizon performed a complete Network Assessment. Using that Network Assessment, Verizon will continue with the process and develop an IPT Readiness Assessment to ensure that the City of Baytown infrastructure will properly support the IPT Solution, following Cisco recommendations and industry best practices. b. Verizon will conduct user interviews to correctly plan and architect the IPT Solution (including the CallManager and any other applications). c. Verizon will create a Project Plan outlining the tasks and timeline for the project. 2. Design a. Based on the data gathered in the Planning phase, eLinear will finalize the detailed task list in the Project Plan and adjust the schedule if required. b. Verizon will create a number of design documents detailing the proposed solution. 3. Implementation Call Manager Installation (Publisher and 2 Subscribers) i. Includes setup /configuration of: OS ii. Latest patches iii. CallManager software iv. up to 10 Calling Search Spaces V. up to 10 partitions vi. up to 10 route patterns vii. BAT installation viii. CDR installation b. Unity Installation (Unity for Exchange) i. Includes setup /configuration of: OS ii. Latest Patches iii. Unity software for Exchange iv. Integrate Unity with CallManager c. Import and setup 380 users /20 ATAs in CallManager/Unity using list provided by City of Baytown d. Phone Configuration i. 7940G — 326 phones ii. 7970G — 20 phones • iii. 7960G — 20 phones iv. 7936 — 2 conference phones V. 7920 — 10 wireless phones vi. 7912 — 2 phones vii. 7914 — 5 sidecars • viii. ATA186 — 20 ATAs ix. Deployment of all phones and ATAs e. 2621 XM router i. Configure for data network, voice gateways ii. Configure QoS f. 1760 -V routers (3) i. Configure for data network, voice gateways ii. Configure QoS g. Catalyst 6000 (2) i. Configure for data network, voice gateways h. Cisco ER Installation i. Identify and document site requirements for ERLs 1. 911 access (analog trunks, PRI trunks, CAMA trunks) 2. Verify compliance with E911 legislation proposals ii. Identify and document PSAP database configuration/update process w/ PSTN service providers iii. Draft ERL proposal for Cisco ER 1. DIDs for each ERL 2. CAMA trunks for 911 traffic 3. 911 call back routing iv. Server Installation 1. Load OS, service patches, and security updates 2. Load Cisco Emergency Responder 3. Integrate Cisco ER server with CallManager cluster V. Configure ERLs, switches, ports, and user notification entries vi. Develop test plan vii. Use the test plan to verify correct information with local 911 dispatch office i. Training i. Admin 1. CCM/Unity Admin Training (Overview) — % day with administrators 2. E911 Training —'/2 day with administrators ii. End User 1. Train the Trainer Sessions (2 four -hour sessions at a central location) j. Documentation i. As -built Configuration Document ii. Voice network diagrams iii. End user training sessions 4. Operational and Optimization a. If desired, Verizon can perform optimization analysis and provide reports /recommendations to City of Baytown. These services can be added as an additional SOW. b. Support - Verizon will provide 120 days warranty support on Verizon labor. The warranty period will begin the day after the Customer Acceptance Document has been signed by the City of Baytown. Additionally, Verizon can provide support for the City of Baytown on as- needed basis, or Verizon can provide a support contract with the City of Baytown for the IPT Solution as a separate agreement once the • warranty period has expired. Project Assumptions • Verizon will be responsible for the setup and configuration of the equipment specified in this SOW • Verizon will stage the equipment at Verizon and then deploy to the specified City of Baytown locations • Verizon will stage and deploy the equipment during normal business hours. Verizon will move the system into production during regular business hours or during off hours, according to City of Baytown requirements • City of Baytown is responsible for the purchase of all equipment and maintenance contracts specified in this SOW • City of Baytown will provide for any cabling needs required as part of this SOW (patch cables, etc) • The work outlined in this SOW will take approximately 10 — 12 weeks (precluding any unforeseen events that may delay the project that are beyond the control of eLinear Solutions) • Any work beyond the scope of this Statement of Work must have a signed Change Order executed or Verizon will be unable to perform the additional work. Changes may alter the schedule /pricing of the project • City of Baytown will provide a steady infrastructure capable of supporting an IPT deployment • City of Baytown will provide an Active Directory and Exchange 2000 (or greater) Server environment for the IPT solution • Verizon will implement VLAN and QoS on the voice network City of Baytown Requirements • Provide a Project Sponsor who will be involved in the various stages of the project and who will be a single point of contact for the Verizon PM • Ensure staff availability as requested by eLinear Solutions • Provide required configuration details for CallManager, Unity, and CER as requested by Verizon according to the timeline outlined in the project plan • Provide VPN connectivity to the network to allow for remote access of Verizon deployment team engineers • Provide required physical access to the City of Baytown locations • Provide required network access to the City of Baytown network, including AD and Exchange • Work with the City of Baytown local telephone provider to secure the required analog and digital voice circuits, as well as DIDs and any other related telephone services • Ensure that all equipment not included in this SOW will support voice, including QoS • Provide full access to the Cisco hardware to Verizon for staging and configuration • Procure all required hardware for the project — including but not limited to the Cisco equipment, racks, and cabling Project Deliverables • 0 Signed SOW — Statement of Work defining project scope, pricing, and responsibilities • Project Plan — Project plan using MS Project detailing the tasks, milestones, and timeline of the project • A functioning CallManager/Unity/Cisco ER Cisco IPT solution as outlined in this SOW • As -Built Configuration Document — document detailing the configuration of the various components of this project — CallManager, Unity, CER, and routers /switches • Testing Plan — plan detailing the testing methodology of the routers /switches, CallManager, Unity, and CER • End User Training — PowerPoint presentation customized to show the various phones within the City of Baytown environment • Customer Acceptance Document — Final project document including the SOW and any Change Orders. Customer will sign -off on this document mark completion and acceptance of the project •