HomeMy WebLinkAboutOmnicom, Inc. Telecommunications System Contractual Agreement -1997 06 27
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THE CITY OF WINTER SPRINGS, FLORIDA
TELECOMMUNICA TIONS SYSTEM
CONTRACTUAL AGREEMENT
BID NUMBER 97-007
JUNE 1997
OMNICOM, Inc.
930 Thomasville Road, Suite 200 '
Tallahassee, 'FL 32303
Voice: (904) 224-4451
Fax: (904) 224-3059
email: omnicom@polaris,net
File: G:I WINTERSPRNG SIPHONE SPECIOBTSCONTRACT2, DOC
COpy OF
RECORD
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~ Bid No. 97-007 Winter Springs Telecommunications System Contractual Agreement
.1,0 THE CONTRACT. ..." ".,.,........ ....,., .., ......., .,.........,.."....."...,............ .,.., 3
2.0 DEFINITIONS,....,.".,....,..""......,.............., .......,...",..,...,...,., ......."..,..., 3
3,0 THE WORK..".,.....,..........".."...,............",....,......,."..... ,........,...,......,.. 3
4.0 SURVIV ABILITy,......., ,.,.. ..,........,.., ......... ............".,......."........... ......,., 4
5.0 NOTiCES,.....,..,.....,...,....,.",..................,................,...................,........ 4
6,0 REMEDIES..................,.."",......."............,.......,.......,."......"................ 4
7.0 SEVERABILITy.....,....."..,....,........"...,..,..,.,.",.".,..,.",.....""...,....,...,..., 5
8.0 LITIGATION EXPENSES,....,.......,.....".. ....,......,...,.,.........".."",.......,...", 5
9.0 HOLD HARMLESS "..., ,............,. ... ...,.. ...."...."........., ....,.. ... .,......."",.." 5
10.0 PRICE AND TERMS OF PAYMENT ....................,.....................,...............5
11.0 CHANGES ..,.." .., ,.."., ..,... .....,.,., .,..." ..,.....",.,.....'...., ,..,.,.,. ......;.,..,.,., .,. 6
12,0 PERMITS, LICENSES, ORDINANCES AND REGULATIONS ..............,....,..... 7
13.0 LIABILITY INSURANCE .,......,.,........,............."...".....".",..,."....-..""...." 7'
14,0 NEW EQUIPMENT ..".....,....,.",..............,......"....,.........,......,.,....."......, 8
15.0 DELIVERY AND RISK OF LOSS ..................,......................,....,............... 8
16.0 PA TENT INFRINGEMENTS....................... ................................... ........... 8
17.0 PUBLiCiTy...,.,.....,....,....."...,...""........,..,.,..",..............,...., ,. ........,...", 9
18.0 FORCE MAJEURE .."". ..." .....,. .,...... .....,......,....", .....,.., ..,.,......,......, ,~.... 9
19,0 TIME DELAYS. .,....,. ......,...."..,.....'! ..........,....,.. ....,.........., ... .........,....." 9
20.0 FAILURE TO PERFORM .".,..,..,....,.,.......,...,....,.,...,.,......"....,.......".......10
21.0 SUBCONTRACTORS .,....,.......,.....................,..........,........,.....,....."...".10
22.0 LABOR DISPUTES .,.,...,....,...,............".....,...,.......,............,...........,.....10
23.0 OVERTIME ,....." ..,...... "... .."....... ...., ...... .....,...."......., .,.... .,. ..,......,. ... ,,10
24,0 BUILDING DAMAGES ..".....".....,.....................",........,...,....."......,....,.11
25.0 CLEAR AWAy.".,.", ... ,....,........,., ..,. ..,..,... ........ ,...... ......,....,., ....,..., ".. .11
26.0 CONTRACTOR PROJECT MANAGER .....................................................11
27.0 MATERIALS AND APPLIANCES .......................,....................................12
28.0 EQUIPMENT LAYOUT AND DESIGN .................... ................ ..... .........., ..12
29.0 RIGHT TO INTERFACE'.,.,...""..",."..,.",.,.,.....,........,....,..,......."...."....,13
30,0 WARRANTIES, LIMITATIONS OF WARRANTIES AND DISCLAIMER OF
WARRANTIES AND LIABILITY ..............................................................13
31 .0 DISASTER A V AILABILlTY ..............................,..................................... 14
32.0 STATION USER AND OPERATOR TRAINING .........................~................15
'33.0 PRE-CUTOVER TESTING ...............,...............,......................................17
34.0 CUTOVER.......................................................................................... 18
35.0 ACCEPT ANCE..,..,................,....,....... ......... ..........,... .....,...... ............. ..18
36.0 MAINTENANCE/WARRANTy................................................................ 19
37.0 SEPARA TE CONTRACTS................. ..... ........ ..,................................... ..23
38.0 GENERAL....,......,................................,............,........................,.,...... 23
39.0 AUTHORITy.................................... ................ ......... .............. ........... .24
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CONTRACTUAL AGREEMENT
The City of Winter Springs and Orlando Business Telephone Systems, Inc. agree as
follows:
1.0 THE CONTRACT
1 .1 This contract consists of the City's RFP (Bid #97-007), its appendices, General
Services Administration (GSA) offerings, and any other documentation produced as
a result of this procurement process.
2.0 DEFINITIONS
2.1 The City of Winter Springs is referred to herein as "Owner"; Orlando Business
Telephone Systems, Inc. Is referred to C!S "Contractor."
2.2 "System" means a specific telecommunications system consisting of Hardware and
a license to use the generic software, The Hardware and Software components
shall perform as a working system in accordance with the System Specifications.
Individual office telecommunications systems comprise the total Winter Springs
"Integrated Telecommunications System,"
For the purpose of this agreement the term procure shall mean to obtain. This may
be accomplished through a purchase, lease, lease/purchase, rental or in any manner
which the City of Winter Springs deems appropriate.
2.3 "Cutover" means the date upon which the System is fully operable and when all
terminals and telephones are working in conjunction with the System.
2.4 "Acceptance date" means the date when the System performs according to the
. specifications set forth in the proposal document, and the Contractor receives
written notice from the Owner of such acceptance.
3.0 THE WORK
3.1 The work to be provided by the Contractor shall include furnishing the System and
all labor, supervision, materials,' equipment, transportation and service necessary, or
incidental to, the installation of the System.
3.2 The Contractor agrees that work, while in progress, will not interrupt the Owner's
present telephone service.
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4.0 SURVIVABILITY
i
4.1 The terms, provisions, representations, and warranties contained in this Agreement
shall survive the delivery of the equipment and payment of any lease or purchase
price.
5.0 NOTICES
5.1 All notices to the City of Winter Springs under this Agreement shall be deemed duly
given upon delivery, if delivered by hand (against receipt); or three days after
posting, if sent by certified mail, return receipt, requested, to:
Joanne Dalka, Information Services Director
City of Winter Springs
1126 E SR 434
Winter Springs, FL 32708
(407) 327-1800
(407) 327-6912 Fax
All notices to the Contractor shall under this Agreement be deemed duly given: upon
delivery if delivered by hand (against receipt); or three days after posting if sent by
certified mail, return receipt requested, to
Dave Winternitz, Project Manager
Orlando Business Telephone Systems, Inc;
4558 SW 35th Street, Suite 300
Orlando, FL 32811
(407) 843-9000 x 1 29
(407) 849-6123 Fax
or such other address as the Contractor may designate in writing by notice pursuant
thereto.
6.0 REMEDIES
6.1 In the event of any material breach of the Agreement by either 'party which shall
continue for 30 or more days after written notice of ,such breach shall have been
given to the breaching party by the aggrieved party, the aggrieved party shall be
entitled to avail himself of any and all remedies specifically set forth in this
Agreement and any and all remedies available at law or in equity; and, in addition:
6,1.1 If the aggrieved party is the Owner, to suspend his performance under the payment
schedule of the Agreement for as long as the breach continues uncorrected; and
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6,1.2 If the aggrieved party is the Contractor, to suspend performance of . all his
obligations under the Agreement for so long as the breach continues uncorrected.
This remedy in no way entitles the Contractor to disable the telephone system while
disputes are being discussed.
7.0 SEVERABILITY
7.1 In the event anyone or more of the provisions contained in this Agreement shall, for
any reason, be held to be invalid, illegal, or unenforceable in any respect, such
invalidity illegality or unenforceability shall not effect any other provision hereof, and
this Agreement shall be construed so as to most closely approximate the economic
effect and intent of the invalid provision.
8.0 L1TIGA TION EXPENSES
8,1 The parties hereto agree t~at in the event of litigation to enforce the Agreement or
terms, provisions and covenants herein, to terminate said Agreement, to collect
damages for breach or default, or to enforce any warranty or representation herein,
the prevailing parties shall be entitled to all costs and expenses, including reasonable
attorney fees, arising out of or in connection with litigation.
9.0 HOLD HARMLESS
9.1 The Contractor agrees to protect, defend, indemnify and hold the Owner, his
agents, servants, employees, officers, directors, subsidiaries and affiliates, harmless
from and against any and all claims, demands, actions, liabilities, losses, damages
and expenses, of every kind and character, whatsoever, including, without limitation
by enumeration, the amount of any judgment, penalty, interest, court costs and
legal fees incurred in connection with the same, or the defense thereof, for or in
connection with loss of life or, personal injury, damage to property, and without
limitation by enumeration all other claims or demands of every character whatsoever
directly or indirectly arising out of, or incident to, orin connection with, or resulting
from the activities of the Contractor, his agents, servants and employees, or his
subcontractors and their agents, servants' and employees, or in connection with the
work to be performed, services to be rendered, or materials to. be furnished under
this contract.
10.0 PRICE AND TERMS OF PAYMENT
10.1 The Contractor shall provide specific Systems as defined in this Agreement. The
price for the Systems including the installation thereof at
("Installation Sites") and the warranties, training, and all other obligations of the
Contractor described in this Agreement, shall be $159,364,00, Should the Owner
decide to purchase the system outright, the following payment schedule will apply:
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System Received On-Site 50 % of Price
System Installation Complete 40 % of Price
Final Acceptance 10% of Price
10.2 The price includes all federal, state, and local taxes due in connection with the
furnishing and installation of the System.
11.0 CHANGES
11 .1 From the effective date of this Agre~ment until thirty (30) consecutive days prior to
the date scheduled for a Cutover ("Change Period"), the Owner may make changes
in the configuration of the System. Hardware changes or changes in the customer
data base shall be permitted only on a case-by-case basis, at the discretion of the
Owner, after the end of the Change Period until Cutover.
11.2 When the Owner desires any addition or deletion to the System, it shall notify the
Contractor. The Contractor shall then submit to the Owner within three business
days, the Contractor's Change Order for the Owner's approval authorizing the
change. The Change Order shall state whether the change shall cause a change in
the Price or the time required by the Contractor or any aspect o'f his performance
under this Agreement. The Contractor shall initiate changes upon receipt of the
Change Order signed by the Owner.
The Owner shall not be liable for restocking charges for hardware which is delivered
to the Installation Site but not installed as the result of a Change Order. The Owner
shall make reasonable attempts to identify reduced hardware requirements prior to
delivery to the Installation Site.
11.3 Changes will be billed (in the case of additions) and credited (in the case of
deletions) in accordance with this agreement.
11.4 Minor software configuration changes such as line class of service, station numbers,
line ringing, pick- up group arrangements, database forwarding arrangements, and
the like, which are required for the "'fine tuning" of individual station design, will be
provided by the Contractor to the Owner at no charge for the first six weeks after .
Cutover or 42 consecutive days, whichever is greater. These changes will be
provided within 24 hours of receipt of a written request for the change by the
Owner or his representative, Should the ability of the Contractor to effect said
changes be impaired by system malfunction or any other cause, the six-week period
for changes at no charge will be extended on a day-for-day basis for each request
day that the changes are delayed.
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11.5 The Contractor agrees for the next ten years from the date of acceptance to
provide, on request, additional cabling and equipment functionally equivalent to
those items acquired under the terms of this Agreement, for lease or sale to the
Owner at prices then in effect, but in no event shall such prices be increased by
more than the annual Consumer Price Index, calculated at a simple rate of increase,
for each year from date of acceptance to the date of such order.
12.0 PERMITS, LICENSES, ORDINANCES AND REGULATIONS
12.1 Any and all permits, licenses and other fees that pertain to the System and the work
of the Contractor required by state, county, or city laws or other government
entities or authorities shall be paid by the Contractor. All other applicable permits or
fees required by law, ordinances, tariffs, and regulations shall also be paid by the
Contractor. The Contractor must give all notices necessary in connection therewith.
12.2 The Contractor shall comply with all applicable Federal and State laws, regulations,
ordinances, and codes which are in effect at the date of execution of the Agreement
and which place obligations on the Contractor with respect to his performance
under Agreement.
13.0 LIABILITY INSURANCE
13,1 The Contractor shall, at his own expense, procure and maintain general liability and
casualty insurance in an amount not less than one million dollars ($1,000,000) to
protect himself and the Owner against damages for personal injuries, including
death, and property damages, which may arise from operations under this
Agreement, whether such operations are by the Contractor or his subcontractor, or
anyone directly or indirectly employed by the Contractor or his subcontractor. The
Contractor shall name the Owner as an additional insured under this policy.
13.2 The Contractor shall, at his own expense, procure and maintain adequate State
Worker's Compensation Insurance. It is expressly understood and agreed that all
persons employed, directly or indirectly, in connection with the work performed by
the Contractor shall be considered to be the employees of the Contractor and/or his
subcontractor and not the employees of the Owner.
13,3 Certificates evidencing the insurance required hereunder shall be filed with the
, ,
Owner, if requested. The Contractor shall make all. payments to his employees,
agents and/or subcontractors in. accordance w!th the applicable r-equirements of
unemployment, old age, and other insurance and social security provisions of the
Federal, State, and Municipal governments and all other governing bodies, whether
enacted at the time' or prior to the execution of the Agreement or during the
progress of the work, and shall assume all liability for the compliance with the
requirements thereof, with respect to his employees, agents and/or subcontractors.
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Bid No. 97-007 Winter Springs Telecommunications System Contractual Agreement
14.0 NEW EQUIPMENT
14,1 The Contractor warrants that all equipment, connectors and all ancillary and support
equipment will be new. No used or reconditioned equipment will be installed.
14.2 The Contractor shall provide upon request a certificate assuring that all equipment
and components of the System are "newly built" and are not used or reconditioned.
15.0 DELIVERY AND RISK OF LOSS
15.1 Risk of loss or damage to any portion of the System, shall pass to the City of Winter
Springs upon acceptance by the City of Winter Springs, pursuant to this Agreement,
except where the damage or loss is due in whole or in part to the Contractor's
negligence.
16.0 PA TENT INFRINGEMENTS
16.1 The Contractor agrees to indemnify, protect and hold the Owner harmless with
respect to any suit, claim, or proceeding brought against the Owner alleging that the
Owner's use of the System constitutes a misuse of any proprietary or trade secret
information or an infringement of any United States patent. The Contractor agrees
to defend the Owner against any such claims and to pay all litigation costs, all
reasonable attorney's fees, settlement payments and any damages awarded or
resulting from any such claim; provided, however, that the Owner shall, after
receiving notice thereof, promptly advise the Contractor of any such suit, claim or
proceedings.
16,2 In the event that an injunction is obtained against the Owner's use of the System
arising in whole or in part from such a patent suit, claim or proceeding, the
Contractor shall at his option and at no cost to the Owner, either: (a) procure for the
Owner the right to continue using the portion of the System enjoined from use; or
(b) replace or modify the same so that the Owner's use is not subjectto any such
injunction.
16.3 In the event the Contractor cannot perform under the preceding paragraph, the
Owner shall have the right to return the System to the Contractor upon written
notice to the Contractor and in the event of such return, neither party shall have any
further liabilities or obligations under this Agreement, except that the Contractor
shall refund the depreciated value of the System as carried on the Owner's books at
the time of such return.
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17.0 PUBLICITY
17.1 Any publicity giving reference to the sale, installation and/or operation of the
System, whether in the form of press releases, brochures, photograph coverage, or
verbal announcement, shall be only with the prior written approval of the Owner.
18,0 FORCE MAJEURE
18.1 Except for the financial inability to perform, if the performance of this Agreement, or
any obligation hereunder, is interfered with by reason of any circumstances beyond
the reasonable control of the party affected, including without limitation, fire,
explosion, power failure, acts of God; war, revolution, civil commotion, or acts of
public enemies; changes in any law, order, regulation, ordinance, or requirement of
any government or legal body or any representative of any such government or legal
body; then the party affected shall be excused from such performance on a day-for-
day basis to the extent of such interference (and the other party shall likewise be
excused from performance of his obligations on a day-for-day basis to the extent
such party's obligations related to the performance so interfered with), provided the
party so affected shall use reasonable efforts to remove such causes of non-
performance.
19.0 TIME DELAYS
19.1 It is hereby understood and agreed by and between parties hereto that time is of the
essence in the Agreement; that it is and will be difficult or impossible to ascertain
and determine the actual damage which the Owner will sustain in the event of and
by reason of such delay; and it is therefore agreed that the said Contractor will pay
to the Owner the sum of Two Hundred Fifty Dollars ($250) per day for each and
every day's delay beyond the time prescribed in a mutually agreed upon Installation
Schedule in finishing the work at any location as liquidated damages; the Contractor
agrees to pay liquidated damages as herein provided, and in case the same is not
paid, agrees that said Owner may deduct the amount thereof from any money due
or that may become due under this Agreement.
Should the work be delayed by any cause, which the Owner in his sole judgement
deems justifiable, then the time for completion of the work may be extended for
such time as the Owner may approve in writing.
Parties agree that Two Hundred Fifty ($ 250) per day is a reasonable measure of
damages. This remedy shall be in addition to any other rights or remedies the
Owner has under this Agreement.
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Bid No. 97-007 Winter Springs Telecommunications System Contractual Agreement
20.0 FAILURE TO PERFORM
20.1 In the event the Contractor fails to perform any substantial obligation under this
Agreement and fails to cure such failure within thirty (30) consecutive days after
the written notice of said failure to perform is provided by the Owner to the
Contractor, then the Owner may withhold all monies due and payable to the
Contractor without penalty, until such failure. to perform is cured or finally
adjudicated.
21.0 SUBCONTRACTORS,
21.1 In the event the Contractor elects to subcontract any of the installation of the
System, the names and addresses of all proposed subcontractors shall be ,furnished
in writing to the Owner. All subcontractors must be accepted and approved by the
Owner in writing; any such acceptance and approval shall not be unreasonably
withheld. If, in the Owner's reasonable judgment, any subcontractors fail to
perform the work in strict accordance with the specifications, the Contractor, after
due notice from the Owner, shall discharge such subcontractor. However, this
discharge shall in no way release the Contractor from his obligations and
responsibility under the Agreement,
21.2 Every subcontractor shall be bound by the terms and provisions of the Agreement as
far as they are applicable to their work. Nothing contained herein shall create any
contractual relations between the subcontractor and the Owner.
21.3 The ~ontractor shall be fully responsible to the Owner for the acts and omissions of
his subcontractor.
22.0 LABOR DISPUTES
22.1 The Contractor shall utilize employees who are not objectionable to the various
trade Unions who may be engaged in work on the Owner's premises. Each party
shall notify the other promptly in the event of any actual or potential labor dispute
which will or may delay the timely performance of the work.
23.0 OVERTIME
23,1 It is anticipated that the System will be installed and Cutover during other than
normal business hours. The Contractor shall provide the Owner with any required
overtime work, both during Cutover and any other time deemed necessary by the
Owner to accommodate his normal operations, at no charge beyond the Price
provided in the Agreement. The Contractor shall coordinate the work schedule with
the Owner so as to minimize disruption to business activities of the Owner,
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24.0 BUILDING DAMAGES
24.1 The. Contractor shall be liable and responsible for any damages to the building
caused by his work hereunder. Repairs of any kind required will be made at the sole
cost and expense of the Contractor.
25.0 CLEAR AWAY
25.1 Throughout the progress of the work, the Contractor shall keep the working area
free from dust and debris of all types, and daily remove from the premises, in a
manner reasonably acceptable to the Owner, all refuse resulting from any work
being done by the Contractor. Upon completion of the work under this agreement,
the Contractor shall leave the premises in a clean and finished condition to the
reasonable satisfaction of the Owner.
25.2 Telecommunications equipment replaced by the new system shall be removed by
the Contractor and stored on-site as directed by the Owner.
26.0 . CONTRACTOR PROJECT MANAGER
26.1 Among other services provided under this Agreement, the Contractor shall:
26.1.1 Provide a project manager skilled and experienced in the installation of the type of
telecommunications systems being provided under this Agreement who will be
actively included in the system implementation and who will serve as the main point
of contact for the Contractor. This manager shall not be reassigned from this
project without prior written approval of the Owner. Such approval will not be
unreasonably withheld so long as the replacement manager is equally experienced
and skilled in the implementation of systems of the type being provided under this
Agreement.
26.1.2 Participate in all departmental design interviews which will be conducted to
determine the final station and overall system hardware and software configuration.
The Contractor design personnel shall be skilled and experienced in designing and
implementing systems of the type being provided under this Agreement.
26.1.3 Provide departmental design summaries which will describe the final departmental
and overall System designs. The form of these summaries will be as mutually
agreed upon by the Owner and Contractor.
26.1.4lssue all necessary orders to the local telephone utility including new or reterminated
trunk orders, disconnects of existing services as necessary, moves of cable
entrances and/or main distribution frames and any other necessary trunking and
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Bid No. 97-007 Winter Springs Telecommunications System Contractual Agreement
related orders. Such orders shall be reviewed by the Owner or his representative
prior to issuance.
26.1.5 After execution of the Agreement, attend a minimum of one meeting every month or
more often as reasonably requested by the Owner, with the Owner or his
representative to report on the status of the System and the work. The Contractor
shall be responsible for keeping minutes of the meetings in a form satisfactory to
the Owner and will issue copies of the minutes to all attendees within four business
days of each meeting.
26.2 Nothing contained in this section (26.0) shall be construed as a limitation on the
Contractor's responsibilities in producing all work necessary for the complete
installation of the System.
27.0 MA TERIALS AND APPLIANCES
27.1 Unless otherwise stipulated in this Agreement, the Contractor shall provide and pay
for all materials, labor, tools, equipment, transportation, and other facilities
necessary for the performance and completion of the w'ork. The Contractor shall
verify conditions at the building, particularly door openings and passages, to avoid
building any items too large for openings. Any pieces too bulky for existing facilities
shall be hoisted or otherwise handled with apparatus as required. All special
handling equipment charges shall be paid by the Contractor.
27.2 The Owner shall furnish and provide any necessary temporary power and lighting
required to facilitate the installation of equipment.
27.3 The Owner shall furnish and provide reasonable means of entry and storage space
to permit scheduled delivery of equipment.
28.0 EQUIPMENT LAYOUT AND DESIGN
28.1 The Contractor shall submit to the Owner for approval, within 30 days of the
execution of this Agreement, details of any custom design, including riser designs,
patch panel layouts, wiring racks and other equipment layout details, pertinent to
the System. The Owner shall respond in a timely manner and shall not
unreasonably withhold approval of the design. This submittal shall include the
following:
28.1,1 A detailed layout of the communications equipment room showing exact location of
equipment cabinets, surge protection, distribution frames and similar equipment.
The submittal shall also include the requirements for backboards, electrical outlets,
lighting, grounding, air conditioning, and any other environmental needs;
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28.1.2 Detailed drawings of. any internal modifications to any standard manufactured
components used within the System.
29.0 RIGHT TO INTERFACE
29,1 The Owner shall have the right to connect the products contracted for to any
equipment manufactured or supplied by others which IS compatible with the
selected System. Such equipment includes, but is not limited to, peripheral
equipment, other computers, communications equipment, terminal devices, and the
like. The Owner may require that the Contractor supply the specifications for
interface and supervise the connection. If. such .a connection is likely to interfere in
any way with the Contractor's ability to perform proper maintenance, the Contractor
shall notify the Owner at least five days prior to any such connection.
30.0 WARRANTIES, LIMIT A TIONS OF WARRANTIES AND DISCLAIMER OF
WARRANTIES AND LIABILITY
30.1 The Contractor warrants that the Hardware will, after Cutover, under .normal use
and service, be free from equipment defects and faulty workmanship for twelve
months from the Acceptance date ("Warranty Period") for each system; The
Owner's remedy under this warranty is to require the Contractor to perform the
services described in Section 36 of this Agreement, subject to the limitations
thereof, and such remedy is conditioned upon the Contractor receiving written
notice of such defects or faulty workmanship from the Owner within the Warranty
Period.
30,2 The 'Contractor warrants that, provided the Software is not altered by the Owner,
the Software shall function during the Warranty Period as specified in this
Agreement. In the event the Software fails to so perform, the Owner's remedy for
breach of this warranty is to require the Contractor to correct such failure and such
remedy is conditioned upon the Contractor receiving written noti<::e of. such failure
within the Warranty Period. The correction of any Software failure shall not extend
the Warranty Period.
30,3 The Contractor warrants. that the System shall perform as specified . in these
specifications;
30.4' The Owner shall be entitled to make "moves, adds, and changes" (as those terms
are commonly used in the telecommunications industry),' so long as such moves,
adds, and changes are carried out in conformity with the training procedures and
programs which the Owner elects to receive from the Contractor. 'No such moves,
adds, and changes will be deemed to be alterations of the Software for purposes of
the Contractor's warranty hereunder. Prior to making any moves and changes, ,the
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Bid No. 97-007 Winter Springs Telecommunications System Contractual Agreement
Owner's representative will have successfully completed a moves, adds, and
changes training class.
30.5 The Owner agrees to maintain a hard copy printout and a narrative log in a form
acceptable to the Contractor which includes dates and explanation for all moves,
adds, and changes.
30,6 In the event additional System components installed are price listed at or above
$500, those components shall be given a twelve-month Warranty Period,
independent of the Warranty Period for the System, commencing with the date of
acceptable performance of those components.
30.7 In the event the Contractor elects to perform field repair on defective components of
the System and such repaired components continue to experience repeated failures,
adversely affecting the System, the Contractor will, upon the Owner's written
request, replace such defective components rather than continuing to perform field
repairs. The Owner has the right to request component replacement at any time
during the warranty or maintenance period.
30,8 The Contractor shall agree to keep and make available to the Owner an inventory of
all components necessary to repair and perform routine maintenance on the System
for the duration of the Maintenance Warranty Period, as such term is defined in
Section 36.0 of this Agreement.
30.9 The Contractor's failure to perform and effect repair of the System as set forth in
this section shall constitute a material breach of this Agreement and the Owner may
avail himself of any and all remedies available at law or equity.
31.0 DISASTER A V AILABILlTY
31.1 In the event the System or . any component thereof is rendered permanently
inoperative as a result of a natural or other disaster, the Contractor will deliver and
install a replacement system within three days from the date of the Owner's
request. In such. event, the Contractor agrees to waive any delivery schedule
priorities, and to make the replacement system available from the manufacturing
facility currently producing such equipment, or from inventory. The price for
replacement equipment will be the price payable under this Agreement, or if unit
prices have not been established for damaged parts, the price shall be as mutually
agreed by the Owner. and the Contractor, but in no event will price exceed that
offered other customers of the Contractor for similar equipment.
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32.0 ST A TION USER AND OPERA TOR TRAINING
32.1 After the System is installed and working, but prior to Cutover, training sessions will
be provided by the Contractor at the Installation Site for the Owner's personnel.
32.2 Training shall include:
32.2.1 Instruction programs which include a description of the features and functions
available on the telephone equipment purchased by the Owner. If the Owner elects
not to have certain features available on the System used by his personnel, the
training materials and program shall be adapted to exclude those features or
functions.
32.2.2 Hands-on use of the various types of station equipment purchased by the Owner. It
is desirable that training be held in a room designated by the Owner with all varieties
of the station equipment temporarily installed so that users can be familiar with the
different functionalities of other equipment, There should be no additional charge
for this service.
32.2.3 Instructions on telephone etiquette, as approved by the Owner.
32.3 Training will be held at times suitable to the OWAer, including, if necessary, sessions
during evening or night shifts to accommodate personnel. schedules.
32.4 The Owner may elect to have simultaneous training sessions to ensure that all users
are trained as near to Cutover as possible. No trainer shall give more than six (6)
sessions per day without the Owner's consent.
32.5 During the seven days after Cutover, the Contractor shall provide up to four trainers,
at the Owner's ,discretion, who will visit each department on all work shifts for
additional training assistance as needed.
32.6 The Owner shall designate departmental representatives who will receive more
extensive training on System features, telephone etiquette, trouble reporting
procedures and the basics of the system design. These representatives will,
whenever possible be individuals who will also attend the design interview sessions.
32.7. At the Owner's discretion, the Contractor shall provide a training session for
departmental representatives to acquaint them with the basic System functions and
features prior to the final, design interviews. '
32.8 Within 60 days of Cutover, the Contractor shall produce a complete written training
plan including:
32.8.1 Sample materials to be used;
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32.8,2 The training syllabus;
32.8.3 Names of the lead training coordinator and assistant coordinators and back-up
trainers to be utilized in the event of illness or other incapacity of any designated
trainer; and
32.8.4 Training session schedules.
32.9 The Contractor shall provide a complete "dry run" training session .for the Owner's
review and approval of materials and methods to be used. Such approval shall not
be unreasonably withheld,
32.10 The Contractor shall provide training materials in an amount equal to 100 per cent
of the number of stations provided in the System by individual type of station.
32.11 Training shall be provided by Contractor personnel skilled and experienced in the
operation of the System and skilled at teaching.
32.1 2 The Contractor agrees that the courses and materials used in fulfilling this
Agreement will remain available to the Owner as long as the equipment and
software to be delivered hereunder remains installed and is in use by the Owner.
Charges for such courses (to the extent not agreed by the Contractor to be
furnished at no cost) will be made at th~ Contractor's rates then prevailing, provided
such rates shall not exceed current rates by more than an increase of six per cent
per year, calculated at a simple rate of increase.
32.13 The Contractor agrees to make available, for a minimum period of six years
following the date the Contractor provides written notification to the Owner that the
equipment is out of production but in no case less than ten years from the date of
the Agreement, all materials used by the Contractor in any and all training courses
taught by the Contractor connected with the use, operation, or programming of
such equipment. Such training materials shall include, but not be limited to, student
materials such as syllabi, agendas, tests, and teaching materials such as instructors
manuals, audio visual aids, test results, and the like.
32,14 The Contractor shall also provide training for those employees of the Owner who
shall serve as console attendants. The Contractor shall provide with each console
an attendant console user guide which describes the manner in which the features
and services that are available ,on the attendant console are operated. Live hands-
on console training will be provided by the Contractor one week prior to Cutover.
32.15 The Contractor shall provide a fully qualified trainer who will be available to assist
the attendants for a minimum of five business days beginning at System Cutover.
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32,16 The Contractor shall provide refresher training for each console attendant two
weeks after Cutover. Such training shall consist of at least two hours assistance on
working consoles.
32.17 The Owner will make reasonable efforts to make all personnel available for training
prior to Cutover.
32.18 The Owner shall not incur any additional cost beyond the price for the training
services and materials specified in this section of the Agreement.
33.0 PRE-CUTOVER TESTING ,
33.1 Upon completion of installation, the Contractor shall test the System in accordance
with the applicable installation manuals, copies of which are to be delivered with the
hardware components of the System. The Owner, or the Owner's designated
representative, may witness all such tests at the Installation Site. At such time as
all such tests have been completed to the Contractor's satisfaction, the Contractor
shall give the Owner written notice thereof. If the Owner notifies the Contractor in
writing of deficiencies in the results of such tests, the Contractor shall not proceed
to Cutover until such material deficiencies have been corrected to the Owner s
reasonable satisfaction.
33.2 As part of System testing, the Contractor shall demonstrate to the satisfaction of
the Owner or his representative that:
33.2.1 All purchased System features operate properly;
33,2.2AII switching and call processing functions operate properly;
33,2.3AII ancillary equipment interfaced to the System, such as paging, facsimile and/or
recording devices are operating properly.
33,2.4 The attendant consoles function properly;
33.2,5 All station equipment has been installed, detailed with typed, clearly-legible labels,
and is functioning properly;
33,2.6AII trunk lines which are not in use on the existing system, but which will be added
at Cutover, have been tested with the local telephone utility.
33.2.7 A plan for shifting any required existing trunks from the existing telephone
equipment to the System has been developed and coordinated with the local
telephone utility.
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34.0 CUTOVER
34.1 The "Cutover Period" begins with the Contractor's notice as set forth in Section
33.1 and ends at the Cutover Date. The Contractor shall ensure that personnel
skilled and knowledgeable in all aspects of System operation are present at the
Installation Site during the Cutover period. These personnel or their shift
replacements shall remain on site until such time as the Owner and the Contractor
agree that no major operational deficiencies exist. It is anticipated that a gradual
phased Cutover will be required, necessitating the Contractor's staff availability over
a period of several weeks.
35.0 ACCEPTANCE
35,1 The Owner shall have 30 days after the final phase of Cutover to notify the
Contractor in writing specifying in reasonable details of those particulars which the
Owner deems unacceptable. Such unacceptable particulars may include, but not be
limited to, major system failures and downtime; intermittent ,problems such as
continued call cutoffs;. inoperable ancillary equipment; or the failure of any feature.
The System shall not be accepted until all such material particulars are corrected.
Acceptance will not be unreasonably withheld.
35.2 With respect to any particulars which the Owner reasonably deems unacceptable,
the Contractor shall promptly proceed with correction thereof. After the Contractor
notifies the Owner, in writing, of the correction of such particulars, a "Cure Period"
of fourteen (14) days shall elapse before such correction has been deemed to be
successful. Should the unacceptable condition recur within that Cure Period, the
cure will begin again.
35.3 The Owner shall make reasonable efforts to notify the Contractor of unacceptable
conditions immediately upon discovery of the condition.
35.4 The failure of the Owner to notify the Contractor within the Acceptance Period, or
an extension thereof by a Cure Period, of any known defect which the Owner
deems unacceptable shall be deemed a waiver thereof of such defect by the Owner
for purposes of acceptance, but not for purposes of warranty and maintenance.
35.5 If the System is not accepted by the Owner within the Acceptance Period and any
extension thereof by a. Cure Period, the Contractor shall, at his own expense,
replace any defective part or parts of the System including the entire System, if
necessary. If the System is not accepted by the Owner within 90 days of Cutover,
the Owner may, at his option, reject the System entirely and the Contractor shall
return all payments made up until the point of rejection (less the cost of cable, any
other equipment which is retained at the option of the Owner I and associated
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installation labor). The Contractor shall not remove the System for ,a period of 180
days or until a suitable replacement system is installed and working.
35.6 At the end of the Acceptance Period or upon the successful completion of any Cure
Period extending the Acceptance Period, the Owner shall promptly notify the
Contractor of acceptance in writing.
35.7 Before the System is accepted, the Contractor must provide the following:
35.7.1In conjunction with the Owner or his representative, a complete physical audit of the
cabling components and all other System components. For the purpose of this
Agreement, the term audit is defined as an actual count of all contractual
components.
35.7.2Traffic information on all trunk groups in hourly increments for a period of at least
three (3) consecutive weekdays. The traffic measurements will be for a daily period
from 7 a.m. to 7 p.m.
35.7.3 Complete information concerning the features and class of service of each working
station line. Documentation must be presented in such a manner that the Owner
can, without. physically auditing stations or cable runs, be able to determine the
location of all station and lines, as well as the routing of cable serving all. stations.
This would include permanently marking all backboards as to cable and terminal
numbers.
35.7.4 Three complete sets of maintenance and programming manuals on site and
registered for updates as they are issued.
36.0 MAINTENANCE/W ARRANTY
36.1 The Contractor will provide Maintenance/Warranty services as described herein.
36.2 During 'the Warranty Period as defined in Paragraph 1, Section 30,0; the Contractor
agrees at his expense and at his option to either repair or replace (n Service") any
defective hardware (including any hardware installed at Cutover) and any added
during the Warranty Period.
36.3 . The Contractor's obligation under this section is conditioned upon the Hardware not
having been altered or repaired by any party other than - the Contractor or the
Ovyne( s properly trained personnel, and the defects not being. the result of
mishandling abuse, misuse, or improper storage, installation, maintenance or
operation by other than the Contractor (including use in conjunction with equipment
electrically or mechanically incompatible) and upon the Hardware not having been
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damaged by fire, explosions, power failure, any act of God, or any other cause
whatsoever not attributable to an act or failure to act by the Contractor.
36.4 The Contractor shall dispatch personnel to the Installation Site to perform Service to
respond to a request for either:
36.4.1 Routine service within twenty-four (24) hours (excluding weekends and the
Contractor's holidays); or
36.4,2 Emergency service within two (2) hours (without regard to the time of the day or
the day of the week, including holidays), of the Owner's request for emergency
service.
36,5 An emergency shall be deemed to exist when problems incurred in using 'the
Hardware (except for (a) isolated failures of individual telephones and (b) the failure
of other components .of the Hardware which are not required for the processing or
completion of telephone calls) materially interfere with t~e normal conduct of the
Owner's business; or when the Owner declares an emergency. The number of
persons who can declare an emergency will be limited and their names or titles will
be mutually agreed upon in writing in a document signed by both the Contractor and
the Owner. A request for service when an emergency does not exist. shall be
deemed a request for routine service.
36.6 It is hereby understood and agreed by and between the parties hereto that
continued telecommunications service is essential to the Owner, and that it will be
impossible to determine the actual damage which the Owner will sustain in the
event of and by reason of delayed maintenance service response. It is agreed
therefore, that the Contractor will pay to the Owner the sum of $250.00 for each
one-hour time period or part thereof in excess of the emergency response time set
forth in this section or for each eight-hour period in excess of the non-emerger:cy
response time set forth in this section, as liquidated damages during the Warranty
Period or for any subsequent period of the life of the System during which full
maintenance is performed on a time and materials basis. During any year in which a
maintenance contract is in force, the Contractor agrees to pay a sum equal to ten
percent of the monthly maintenance fee for each one-hour delay in emergency
response or each eight-hour delay in non-emergency response as liquidated
damages. Such damage shall not exceed $2,500 per month during the Warranty
Period or the cost of one month's maintenance. during any period in which a
maintenance contract is in force between the Owner and the Contractor.
36.7 Upon the Owner's request, the Contractor shall perform the installation of additions
to the System. "Additional Services" shall include services performed by the
Contractor pursuant to the Contractor's written Service Orders, and shall be
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performed by the Technician during such time that the Technician is not performing
routine or emergency service and the Owner shall only be charged the Contractor's
applicable material and/or hardware charges for such additional services. Should the
Owner require additional services of a volume that cannot be performed by the
Technician during such time that the Technician is not performing routine or
emergency service, the Contractor shall assess the work required and provide a cost
estimate and time schedule to the Owner. If the Owner, after such notifications,
desires such additional services, the Owner shall execute a Change Order in writing.
36.8 The Contractor shall agree to keep an inventory, on the Owner's site or the
Contractor's service facility site, of all components reasonably necessary in the
Contractor's judgment to repair and perform routine maintenance on the System for
the duration of the Warranty Period. Such inventory shall not be removed from the
site except under emergency conditions. Removed parts shall be restocked as soon
as possible. The Owner shall be promptly notified of any such removal.
36.9 For a period of nine years, commencing the day after the expiration of the Warranty
Period, the Contractor agrees to offer the Owner an agreement, on an annual basis"
for repair or replacement services in accordance with the Contractor's. then-current
terms and conditions therefore. Such agreement shall provide for the maintenance
on the Installation Site or the Contractor's service facility site of an inventory of
spare parts, as set forth in Section 36.7. The charge for such service for the first
annual period shall be calculated utilizing the schedule contained in this section.
The charge for the eight succeeding annual renewal periods shall not exceed the
lesser of either: (a) an amount equal to then-current charges for service on the
System; or (b) an amount equal to the charge of the first annual period (as adjusted
to reflect changes made in either the type or quantity of hardware), times a fraction,
the numerator of which shall be the Consumer Price Index (CPI) for the fourth month
preceding the month in which the annual renewal period commences and
denominator of which shall be the CPI for the fourth month preceding the month in
which the initial term of the service contract commences. The CPI to be utilized is
that which is issued by the Bureau of Labor Statistics of the U.S. Department of
Labor as being the average for all items shown on the metropolitan area Index for All
Urban Consumers using the year 1967 as a base of 100. If the Bureau of Labor
Statistics changes the base, or the form for calculating the CPI without providing
conversion tables, the parties agree to negotiate in good faith the basis for
computing the maximum monthly charge for service. Notwithstanding the
foregoing, the Contractor shall have the right during the first or any succeeding
annual period of service hereunder to increase the price for service to reflect
changes made during said period or periods in either the type or quantity of
Hardware.
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36.10 The first year maintenance rate (after the Warranty Period) will be calculated as
follows:
$2.00 per Month Per Trunk Port
$2.00 per Month Per Station Port
$2.25 per Month Per Electronic Station Set
$3.00 per Month Per S 1 (OPX)
$5,00 per Month Per TDD Set
$40.00 per Month Per Voice Mail Unit
$12.50 per Month Per Call Accounting Terminal
36.11 During the life of any "Warranty/Maintenance Period" Service Contract between the
Owner and the Contractor covering the System, if the Con~ractor modifies and/or
changes the Software to correct a problem in the Software design, such modified
and/or changed Software will be provided. and licensed to the Owner without
charge.
36,12 The Contractor agrees to make available upon 30 days written notice by the Owner,
a training program (either in-house or on the Contractor's site) for a sufficient
number of trainee qualified maintenance personnel (System Administrator) supplied
by the Owner to provide the Owner with sufficient capability to perform all
necessary equipment maintenance, Such training program shall be similar to that
given by the Contractor to his own maintenance staff, it being intended thereby that
the completion of such training prog~am will enable the Owner or his subcontractor
to maintain the equipment at levels comparable to those established by Contractor
personnel.
36.13 The Contractor shall, upon request provide to the Owner such current diagrams,
schematics, manuals, and other documents necessary for the maintenance of the
System by the Owner or his subcontractor. There shall be no additional charges for
these maintenance documents.
. ,
36,14 The Contractor guarantees with this provision the availability of long-term spare
parts for all equipment acquired under this Agreement for a minimum period of six
(6) years following the date the Contractor provides written notification to the
Owner that the equipment is out of production, but in no case less than ten (10)
years from the date of this contract. Such sales shall be made at prices then in
effect, but prices shall not be increased by more than six percent per year,
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calculated at a simple rate of increase, for each year between the date of
acceptance of the equipment herein contracted for and any order for such parts.
36.15 Should the Owner elect to provide self-maintenance of the System, the Contractor
shall provide back-up maintenance services at the Owner's request at the
Contractor's then prevailing time and materials rate.
36.16 Only new standard parts or parts equal in performance to new parts will be used in
effecting repairs.
37.0 SEPARA TE CONTRACTS
37.1 The Owner reserves the right to let other contracts incidental to the installation of
the System (for example: the installation of voice and data cabling, electrical
circuits, backboards, conduit, air conditioning, etc.), and the Contractor shall afford
any such other contractors reasonable opportunity for the installation and execution
of their work, and shall properly connect and coordinate his work with theirs as,
required.
38.0 GENERAL
38.1 Neither party may assign or transfer this Agreement or any rights hereunder without
the prior written consent of the other party.
38.2 Any changes to this Agreement requested by either the Owner or the Contractor
may only be effected if mutually Agreed upon in writing by duly authorized
representatives of the parties hereto, This Agreement shall not be modified or
amended nor shall any rights of a party to it be waived except by such a writing.
38.3 Failure by either party at any time to require performance by the other party or to
claim a breach of any provision of this Agreement shall not be construed as a waiver
of any subsequent breach or right to require performance with respect thereto.
38.4 The rights and obligations of the parties and. all interpretations and performance' of
this Agreement shall be governed in all aspects by the laws and courts of the State
of Florida. This Agreement shall be governed by the Uniform Commercial Code as
adopted by the State of Florida except to the extent this Agreement provides
otherwise,
38.5 This Agreement shall become effective on the date of execution thereof by the
Owner and the Contractor.
38.6 In the event the Owner decides to finance the equipment, all deposit monies paid to
the Contractor shall be refunded to the Owner upon payment in full to the
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Contractor from the financing company and the Owner's payment obligation under
the Purchase Agreement shall then be null and void.
38.7 This Agreement shall constitute the sole and only Agreement of the Owner and the
Contractor with regard to the furnishing of the System and maintenance thereof,
and shall supersede any prior or contemporaneous oral or written Agreements.
39.0 AUTHORITY
39.1 Each party has full power and authority to enter into and perform this Agreement;
and the person signing this Agreement on behalf of. each has been properly
authorized and empowered to enter into this Agreement. Each party further
acknowledges that it has read this Agreement, understands it, and agrees to be
bound by it.
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:> Winter Springs Telecommunications System Contractual Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their representatives being thereunto duly authorized.
ORLANDO BUSINESS TELEPHONE SYSTEMS, INC.
By: z);h..J C. 'h.s. k..~
Title: ~.a~..
Signature: ;L-'E ~
Date: / .;J. ? J~ c;7
THE CITY OF WINTER SPRINGS
By: 1?000JAL/J w. M (LE W104i::
.
Title: CITj J11 /-} rv /I C-c I?
Signature: f(~ W. f11C~
. ..J
Date: ~ } I I /9'7/
I
File: G :\WINTERSPRNGS\PHONE SPEC\OBTSCONTRACT2. DOC
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