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HomeMy WebLinkAboutbocc.con.161.20192017-11-13 btf Contract Information Contract Number Project Name Contractor Budget Line Item 001.21.00000.82000 003.78.00000.82480 Procurement Method: Type: Contract Start Date Contract End Date Contract Type Retainage If this is a new contractor, please request they complete and submit to Finance a New Vendor Request Form. Contact Information: Department County Representative Kara Silbernagel County Representative Phone (970) 429-2815 Provide a brief description of the contract: Contract Value Summary: $ 30,250.00 $ - $ - $ 30,250.00 161.2019 Pitkin County Procurement Cover Sheet Please complete the Contract Cover Sheet when the contract/task order is complete and fully executed. Return all Contract Cover Sheets and Contracts/Change Orders/Amendments/Task Orders to Procurement No Broadband Service Agreement City of Aspen $ - Additional Budget Line Item(s) (Please fully allocate New Contract Total) $ - $ - $ - $ - Sole Source Services/Maintenance 1/25/2019 1/24/2020 New Contract with optional extension(s) NOTE: Clerks Office will keep original documents in compliance with Colorado State Archives retainage Administration Contract with CoA for Broadband internet service. Terms of contract are 12 months with two (2) year extensions. Original Contract Amount Previous Change Order/Amendment Amount This Change order/Amendment amount New Contract Total Rev 2018-10-10 btf Note: Every effort should be made to obtain a written contract when otherwise required under County procedures. When a contract is obtained, complete the Clerk’s check list and send the original signed contract with coversheet to clerk’s office for archiving. 1 PITKIN COUNTY SOLE SOURCE PROCUREMENT JUSTIFICATION REQUEST TO: DATE: FROM: Jon Peacock, County Manager April 12, 2019 Kara Silbernagel, Policy and Project Manager Proposed Contractor: City of Aspen Product/Service: Community Broadband Network Access Agreement Estimate expenditure for the above Product/Service: $ 30,250.00 This form is required, and is to aid you, in documenting your Sole Source request. Complete all portions of this form. This purchase is clearly and legitimately limited to a Single or Sole Source. (Examples: original manufacturer, no regional distributor, standardization etc): Explain: The City of Aspen owns and maintains a broadband network that we utilize at various County facilities. They are the only provider of this connectivity and this agreement locks the County in for continued use of these services while also allowing for termination with notice and renewals on an annual basis. Rev 2018-10-10 btf Note: Every effort should be made to obtain a written contract when otherwise required under County procedures. When a contract is obtained, complete the Clerk’s check list and send the original signed contract with coversheet to clerk’s office for archiving. 2 The undersigned requests that Pitkin County waive other procurement requirements and recognize this transaction as a sole source exception to the Pitkin County Procurement Code. Department Head Section Head !#COUNTY REPRESENTATIVE#! Date !#SECTION LEADER#! Date County Manager Reason for Denial: ______________________________________________ !#COUNTY MANAGER SOLE#! Date Communications Manager Jeff Krueger Apr-17-2019 Assistant County Manager Phylis Mattice Apr-17-2019 Jon Peacock Apr-23-2019 County Manager Contract #: 161.2019 Budget Codes: 001.21.00000.82000 003.78.00000.82480 1 CITY OF ASPEN (COA) COMMUNITY BROADBAND - SERVICE ORDER FORM Customer Company Pitkin County Service Order Number 003 Contact Name Melisa Jodis Service Order Date 1/25/19 Billing Email Melissa.Jodis@pitkincounty.com Master Contract Date 10/16/18 Billing Address 530 E. Main Street #203 Master Contract Title City of Aspen Community Broadband Network Access Agreement City/State/Zip Aspen, CO 81611 Requested Due Date 1/25/19 Customer Phone 970.920.5200 Ready for Service Date 1/25/19 COA Contact Paul Schultz Service Order Term 12 Months with (2) year extensions COA Contact Email Paul.Schultz@cityofaspen.com COA Contact Phone 970.429.1751 SERVICE ORDER DESCRIPTION AND CHARGES Item Non-recurring Charges (NRC) Monthly Recurring Charges (MRC) 1 Gbps Dedicated Internet Access (DIA) $0 $2,500 Mammoth 24/7 Managed Services & NOC Support (Included) $0 /26 IP Address Block (Included) $0 Non-Recurring Charge – Customer Premise Equipment $250 $0 Total $250.00 $2,500.00 Contract #: 161.2019 Budget Codes: 001.21.00000.82000 003.78.00000.82480 2 AGREEMENT Your signature below acknowledges that you have read, understand and accept the terms of this Service Order Form. This Service Order Form is subject to the terms and conditions of the Master Contract referenced above between the companies below, including the term length displayed on this form, and that you are duly authorized to execute and deliver this Service Order as of the date set forth below. It is agreed that the complete agreement for these services consists of this Service Order Form (and any other approved Service Order Forms) and the Master Contract. Approved by: Customer Company: Pitkin County City of Aspen Signed: _________________________________ Signed: _________________________________ Print: Print: Title: Title: Date: Date: Apr-23-2019 County Manager Jon Peacock Interim City Manager Sara Ott May-01-2019 1 City of Aspen Community Broadband Network Access Agreement This agreement for network access service (hereinafter "Service"), including the attached Service Order(s) (collectively referred to herein as the "Agreement") is made between City of Aspen (hereinafter "COA"), having offices at 130 South Galena Street, Aspen, CO 81611, telephone number 970-920-5000 and Pitkin County, a Government Agency (hereinafter "Customer"), having offices at 530 E. Main Street, Aspen, CO 81611, telephone number 970-920-5200. In order to be eligible to receive the terms and conditions contained in this Agreement, this Agreement must be signed and returned to COA within twenty (20) business days from the date this Agreement was sent for Customer signature. Following execution of this Agreement by COA, the fully executed Agreement shall be sent to the Customer via preferred method, as defined in the Notice section of this Agreement. The undersigned Parties have read and agree to the terms and conditions set forth in this Agreement. This Agreement, its Service Orders and appendices and any documents expressly referred to in this Agreement constitute the entire agreement between the Parties and supersede all prior understandings and agreements, whether written or oral, that may relate to the subject matter of this Agreement. Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision shall be deemed modified to the extent necessary (consistent with the intent of the Parties) to eliminate the illegal, invalid or unenforceable effect or to delete such provision if modification is not feasible, and the remaining terms shall continue in full force and effect. This Agreement may be executed by the Parties in separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same Agreement. Electronic or facsimile signatures shall be deemed to be and shall constitute and be treated as an original signed Agreement or counterpart. In witness thereof, the Parties have caused this Agreement to be signed by their duly authorized representatives. City of Aspen Pitkin County By: By: Name: Sarah Ott Name: Melissa Jodis Title: County Manager Title: Business Process Analyst Date: Date: Notice address: 130 South Galena Street Aspen, CO 81611 Notice address: 530 E. Main Street #203 Aspen, CO 81611 Billing address: 530 E Main Street #203 Aspen, CO 81611 Contact: Billing contact: Melissa Jodis Contact email: Billing email:Melissa.Jodis@pitkincounty.com Contact phone: Billing phone: 970-920-5200 2 1.0 Definitions “CPE” means Customer Premises Equipment used at the End User location or Customer location in conjunction with a Service. “Customer Equipment” means CPE other than CPE for which COA has agreed [in a Service Order] to assume maintenance responsibility. “Due Date” shall mean thirty (30) calendar days from the invoice date. “Effective Date” means the date this Agreement is fully signed by both COA and Customer. “Emergency Maintenance” shall refer to efforts to correct COA network conditions which require immediate correction. “End User” means Customer’s clients or any third party who utilizes or accesses the Services or COA’s network via the Services provided hereunder. “Firm Order Commitment Date” means the date where the COA will commit to having the Service provisioned and available for use. “Force Majeure” means an unforeseeable event beyond the reasonable control of that Party, including without limitation: act of God, fire, flood, labor strike, sabotage, cable cut not caused by COA or its underlying carrier, acts of terror, government laws or regulations, war or civil disorder. “MRC” means the monthly recurring cost of a Service, which will be as agreed upon by the Parties and documented on a Service Order. “Network Operator” means the entity contracted with the COA to conduct daily management and support of the COA network and infrastructure. “NRC” means a one-time, non-recurring cost with respect to a Service, which will be as agreed upon by the Parties and documented on each Service Order. “Outage Credit” means a credit specified and issued in accordance with the terms of the Appendices to this Agreement that is applied to reduce amounts otherwise due from Customer to COA for Services provided under this Agreement. “Parties” means, collectively, COA and Customer. “Past Due Date” shall mean the first business day that is thirty (30) calendar days from the invoice date. “Service Acceptance Date” shall mean the date COA enables the Service. “Service Order” means the order form representing a specific communications product to be provided for a defined period to the Customer. “Service Start Date” means the date of actual installation and activation by COA, whichever comes first. “Service” or “Services” means the product or products provided to the Customer as specified in 3 Service Orders “SLA” means the Service Level Agreements associated with Services under this Agreement as specified on Appendices to this Agreement. “Termination Liability Charges” means (i) all previously-waived NRC for an applicable Service Order, (ii) all Monthly Recurring Costs (MRC) through the first twelve (12) months of the remaining term of the then applicable Service Order Term, and (iii) fifty percent (50%) of the MRC for the remaining months beyond the first twelve (12) months of the then applicable Service Order Term. “Undisputed Payment” means the amount of an invoice with respect to which Customer has not properly and timely submitted a billing dispute. 2.0 Terms and Conditions 2.1 This Agreement sets forth the terms and conditions under which COA shall provide Services to Customer, as further specified on the Service Order for individual Services ordered by Customer. The terms of any active Service Orders shall supersede any inconsistent terms and conditions contained in this Agreement when specifically denoted in the Service Order. 2.2 This Agreement shall not be modified or amended except via written instrument agreeable to both Parties. In the event a conflict exists between this Agreement and terms of any Amendment hereto, then the term in the Amendment shall take precedence. 2.3 This Agreement constitutes the entire Agreement between the parties and all other promises and agreements relating to subject of this Agreement, whether oral or written, are merged herein. 2.4 Should any one or more sections or provisions of this Agreement be judicially adjudged invalid or unenforceable, such judgement shall not affect, impair, or invalidate the remaining provisions of the Agreement, the intention being that the various sections and provisions hereof are severable. 2.5 COA will provide the Services or cause the Services to be provided to Customer in accordance with this Agreement. COA may utilize an Affiliate or third party to provide Services to Customer and will present to the Customer consolidated invoices for some or all portions of the Services, unless Services conflict with National Forest Service rules and regulations. 2.6 COA shall provide Services in accordance with applicable Colorado State tariffs, if any, governing the provisions of such Services. In the event of a conflict between any tariff and this Agreement, where applicable, the conflict shall be resolved in the favor of the tariff. This provision is not applicable to unregulated and/or non-tariffed Services. 2.7 Customer represents that it is not by law or agreement with others, prohibited from entering into this Agreement. 2.8 The terms, representations and warranties of this Agreement may only be waived by a written instrument executed by the Party waiving compliance. Except as otherwise provided for herein, neither Party's failure at any time, to enforce any right or remedy available to it under this Agreement shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder. 2.9 CUSTOMER'S EXCLUSIVE REMEDY FOR CLAIMS ARISING OUT OF OR RELATING TO THIS 4 AGREEMENT SHALL BE LIMITED TO OUTAGE CREDITS AS SET FORTH IN THIS AGREEMENT. EXCEPT FOR COA’S INDEMNITY OBLIGATIONS UNDER SECTION 5, IN NO CASE WILL COA BE LIABLE FOR ANY AMOUNTS EXCEEDING IN THE AGGREGATE THE AMOUNTS PAID BY CUSTOMER TO COA UNDER THIS AGREEMENT IN THE PRIOR TWELVE MONTHS. COA DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER STATUTORY, EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON- INFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY. 2.10 Notwithstanding anything else in this Agreement, there are no third-party beneficiaries to this Agreement. 2.11 Customer shall be solely responsible for the following: (a) any costs associated with Customer Equipment; (b) access-related charges, including any charges for interconnection, cross-connection, installation, wiring and construction and other access-related charges; and/or (c) ordering, installing and ensuring proper operation of any and all equipment required to enable Customer to receive the Service, as set forth in any accepted Service Order. 2.12 Customer shall be responsible for supporting End Users of the Services solicited by or assigned to Customer, defined as Level 1 Support. Level 1 Support includes, but is not limited to, soliciting orders, completing orders, providing back-office and billing services and providing End User technical support. Customer warrants that communication with COA shall originate from Customer and not the End User. 2.13 Customer shall maintain a staff of adequately trained and competent personnel, or contract for the services of trained and competent personnel knowledgeable of the specifications, features and advantages of the Services, including methods of supporting Services. Customer acknowledges that the Services are technically complex and require high-quality, individualized pre-sale and post-sale support. 2.14 Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. 3. Indemnity. All actions or omissions by the COA, and/or its designated representative, in the course and scope of its performance of any obligations, responsibilities, or duties under this Agreement, shall be insured by the insurance policies and coverage to be obtained and maintained by the COA. However, any and all actions or omissions by the Customer, and/or its designated representative, outside of the proper course and scope of its performance of any obligations, responsibilities, or duties under this Agreement, shall be the sole responsibility of the Customer, and/or its designated representative. Accordingly, both Parties hereto shall, without waiving governmental immunity, fully indemnify, to the extent permissible under Colorado law, for all injuries to person or property as are directly or indirectly caused by any such non-authorized acts or omissions of that party or a representative of that party, which result in any damages, claims, costs or liability of any manner, including without limit reasonable attorney fees, each party. 4. Insurance. Regardless of the obligation for the Customer to carry all proper and necessary insurance to provide appropriate coverage for its operations, Customer shall also be required to maintain insurance coverage at a minimum of the limits for liability set forth by the Colorado Governmental Immunity Act, Section 24-10-101, et seq., C.R.S., as amended from time to time. 5. Government Immunity. The parties agree and understand that both parties are relying on and 5 do not waive, by any provisions of this Agreement, the monetary limitations or terms or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24- 10-101, et seq., as from time to time amended or otherwise available to parties or any of their officers, agents or employees. 6. Choice of Law. This Agreement and all disputes arising out of or relating to this Agreement will be governed by, enforced, and construed in accordance to the laws of the State of Colorado. THE PARTIES AGREE THAT ANY ACTION BROUGHT BY EITHER PARTY UNDER OR IN RELATION TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION TO INTERPRET OR ENFORCE ANY PROVISION OF THIS AGREEMENT, SHALL BE BROUGHT EXCLUSIVELY IN, AND EACH PARTY AGREES TO AND DOES HEREBY SUBMIT TO THE JURISDICTION AND VENUE OF, ANY STATE COURT LOCATED IN PITKIN COUNTY, COLORADO OR FEDERAL COURT LOCATED IN COLORADO AND AGREES THAT SUCH COURTS WILL NOT BE CONSIDERED, AND HEREBY WAIVES ANY CLAIM THAT SUCH COURTS CONSTITUTE, INCONVENIENT FORUM. 7. Successor and Assigns. Neither Party shall assign any of its rights, obligations or privileges (by operation of law or otherwise) hereunder without the prior written consent, which shall not be unreasonably withheld, of the other Party. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the Parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by the reason of this agreement, except as expressly provided in this Agreement. 8. No Ability to Bind Other Party. Neither Party shall have the authority to bind the other by contract or otherwise or make any representations or guarantees on behalf of the other. The relationship arising from this Agreement shall be and shall at all times remain that of an independent contractor, and does not constitute an agency, joint venture, partnership, employee relationship or franchise. 9. Notices. All communications required or permitted to be given by this Agreement shall be made in writing and shall be sent by electronic delivery to the e-mail addresses set forth and below and by one of the following methods 1) hand delivery or 2) a recognized overnight commercial delivery or 3) certified U.S. mail to the mailing addresses set forth below. Each party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of the notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. To: Paul Schultz With copies to: City of Aspen City of Aspen Attorney’s Office 130 S. Galena Street 130 S. Galena Street Aspen, Colorado 81611 Aspen, Colorado 81611 Paul.schultz@cityofaspen.com attorney@cityofaspen.com Customer: With copies to: Melissa Jodis Pitkin County Attorney’s Office Pitkin County 530 E. Main Street #301 530 E. Main Street #203 Aspen, CO 81611 Aspen, CO 81611 attorney@pitkincounty.com Melissa.Jodis@pitkincounty.com 6 10. Force Majeure. Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement for any cause beyond its reasonable control including, without limitation, acts of God, fire or other disaster or communications, power or Internet failure. The occurrence of any such event shall toll the time period provided in this Agreement for performance by the affected Party. 11. Construction; Interpretation. The term “this Agreement” means this COA Network Access Agreement together with the appendices, exhibits and Service Orders hereto, as the same may from time to time be amended, modified, supplemented or restated in accordance with the terms hereof. All provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any Party. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words, “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole, including the appendices and exhibits, and not to any particular section, subsection, paragraph, subparagraph or clause contained in this Agreement; (ii) masculine gender shall also include the feminine and neutral genders, and vice versa; (iii) words importing the singular shall also include the plural, and vice versa; and (iv) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation.” 12. Service Orders. COA has authorized its Network Operator to execute Service Orders as part of this Agreement. 13. Survival. Customer’s payment obligations to COA will survive the expiration and termination of this Agreement. 14. Invoicing 14.1 Procedure. Customer shall be invoiced by email and/or via U.S. Postal or courier service at Customer preference each month in advance of Service, for all amounts due and owing to COA. Payments are due within thirty (30) calendar days following the invoice date (the “Due Date”). Unless otherwise specified in writing by COA, payments shall be made payable to "Northwest Colorado Broadband" and mailed as directed on the invoice. Check, money order, or cashier's checks, in each case representing immediately available funds, are also acceptable payment instruments. 14.2 Advance Invoice. COA will invoice Customer in advance for all Services. All amounts other than a written disputed amount not received by COA in full by the Due Date, will be considered past due, and subject to a late payment fee of the lesser of one and one-half percent (1.5%) per month, or portion thereof, or the maximum amount allowed by law. Customer Services, individually or as a whole, may be terminated or disconnected upon ten (10) business days’ notice if payment, less any timely and properly submitted billing disputes, is not received by the Due Date. COA may charge a $500 reconnect fee for any individual Service at its sole discretion to restore such Service. 14.3 Dispute of Invoice. Customer shall only be obligated to pay the Undisputed Payment amount on or before the Due Date. In order to properly dispute all or any portion of an invoice, Customer must give written notice to COA of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed) within sixty (60) calendar days following the date of the applicable invoice. The Parties shall use commercially reasonable efforts to resolve the dispute in good faith within a sixty (60) calendar day timeframe following the Customer’s giving the notice of dispute. The Customer shall supply COA with additional information or documentation it shall reasonably request in order to determine the resolution of the dispute. If the dispute is resolved against the Customer, the Customer shall pay the disputed amounts plus interest at one and one-half percent (1.5%) per month from the date originally due. If Customer is entitled to credits or adjustments for disputed amounts, COA will credit Customer for the disputed amount and any interest on the disputed amount 7 charged on its invoice issued the next billing cycle. 14.4. Attorney’s Fees. Customer shall pay all collection costs incurred by COA (including, without limitation, reasonable attorneys’ fees) for the collection of late payments. 15. Term 15.1 This Agreement is for the term provided on the initial Service Order (the “Initial Term”). The Initial Term begins on the date of actual installation of the initial, individual Service and activation by COA, (hereinafter "Start Date"). To the extent that the term of any Service Order for any Service extends beyond the Initial Term or any Services are provided on a month-to-month basis, this Agreement shall remain in full force and effect for such Service until the expiration or termination of final active Service Order or the termination of the month-to-month Services under this Section 4.1 (the “Extension Term,” and, collectively with the Initial Term, the “Term”), after which this Agreement will terminate. After the Initial Term, all Services shall automatically continue from month to month, at the then current month-to-month rate, communicated to Customer in writing, until terminated by Customer hereunder, or until terminated by COA pursuant to this Agreement. To terminate a Service provided on a month-to-month basis, Customer must give COA written notice, after which the Service will terminate at the end of the next full billing cycle. To terminate a Service at the end of the term specified in any Service Order, Customer must provide COA with written notice at least thirty (30) days prior to the end of such term. Customer will be liable for payment of, and COA will invoice Customer for Services, until they are considered terminated under this Section 4.1 or under Section 4.3 or 4.4. 15.2 Customer may not use COA’s name or materials in advertising via web or printed materials, without the expressed written consent from COA. Upon termination of this Agreement, Customer shall discontinue any and all use of COA’s name and materials, including the use in advertising via web and in printed material, return or destroy any and all promotion material supplied by COA, cease representing itself as affiliated with COA, and complete the term of any individual Service Order remaining in effect. 15.3 Customer may cancel a submitted Service Order by providing COA with written notice of such cancellation. If Customer cancels a Service Order within three (3) business days after the date on which COA countersigns the Service Order, Customer will not be charged any cancellation fees for the terminated Service Order. If Customer cancels a Service Order more than three (3) business days after the date on which COA countersigns the Service Order, but prior to the Service Acceptance Date for the individual Service, as communicated by COA, Customer shall pay COA a cancellation fee equal to the NRC outlined on the Service Order and all third-party construction, cancellation and/or termination charges incurred by COA, including any previously-waived NRCs from underlying fiber providers. If Customer cancels a Service Order on or after the Service Acceptance Date, Customer shall pay to COA all Termination Liability Charges. Upon cancellation of the Service Order under this Section 4.3, the applicable Service covered by the Service Order will be considered terminated. 15.4 COA may immediately terminate this Agreement and all Services hereunder for failure by Customer to timely pay amounts due under this Agreement. If COA terminates for non-payment, Customer shall pay with a lump sum equal to the aggregate Termination Liability Charges due under this Agreement within ten (10) business days’ following COA’s notice to Customer of termination. 15.5 COA may terminate this Agreement and all Services hereunder for failure of Customer to activate Services within one year of the Service Activation Date(s). 8 15.6 COA shall notify Customer of the Start Date for the Service. In the event the Customer is unable or unwilling to accept Service at such time, the subject Service will be held available for a period not to exceed thirty (30) calendar days from the Start Date, during which Service will be considered active, and will be invoiced as an active Service. Following this period, if the Customer has not accepted Service, COA has the right to terminate Service and invoice Termination Liability Charges. 15.7 COA shall use commercially reasonable efforts to install Service on or before the Start Date; however, the inability of COA to deliver the ordered Service by such date shall not constitute a default under this Agreement. Customer may terminate a Service Order accepted by COA without liability if COA fails to make the Service available for testing by the fortieth (40th) calendar day following the Firm Order Commitment Date unless that availability has been hindered by access to the location(s) at which Service is to be delivered, or Customer fails to complete necessary requirements or place necessary CPE to allow COA to meet this deadline. The right to terminate the delayed Service Order under this Section 4.7 is the Customer's sole and exclusive remedy for COA's failure to meet the Firm Order Commitment Date. 15.8 SLA terms are defined in applicable Appendices to this Agreement and are incorporated by reference into this Agreement. 15.9 To receive an Outage Credit, Customer must comply with the procedures and requirements set forth in Appendix F which is incorporated by reference herein. If Customer fails to comply with the conditions set forth in Appendix F Customer shall have waived its right to Outage Credits with respect to the Outage (as defined in Appendix F) in question. 15.10 Outage Credits shall not apply if (a) Customer Equipment used in the Service has failed to operate properly and contributed to the Outage, (b) the Outage is due in whole or in part to Customer’s or Customer’s End User’s use of the Service in violation of applicable law or in violation of instructions furnished by COA, (c) the Outage is related to routine maintenance outside normal business hours as communicated by COA in writing to the Customer no less than twenty-four (24) hours prior to such maintenance, and (d) to the extent the Outage is attributable to the fault of the Customer including, but not limited to, inadequate response time by the Customer. For avoidance of doubt, normal business hours shall be 8:00 a.m. to 5:00 p.m. Monday through Friday, Mountain Time Zone, excluding United States federal holidays. 15.11 Customer understands that any changes or alterations to Services require the approval of Network Operator and may require an updated Service Order. All changes must be directed to Network Operator, with Customer understanding that contact with a third party does not alter this Agreement. Changes to the type of Services and any other Service alterations may incur a charge to the Customer at COA's then current labor rates or COA’s contract provider’s non-recurring rates. Customer must provide ample notice and opportunity to Network Operator to quote and schedule the Service changes. 15.12 Customer hereby acknowledges that the Internet is not owned, operated, managed by, or in any way affiliated with COA or its contractors, network operators or Affiliates; it is a community network independent of COA. Customer's use of the Internet related to Internet Bandwidth and IP Solutions as defined in Appendix D is at Customer's sole risk and is subject to all applicable local, State, Federal, and International laws and regulations. Access to the Internet is dependent on numerous factors, technologies, and systems beyond COA's authority and control. 15.13 Access to networks connected to COA's network must be established under rules appropriate to those networks. COA exercises no control whatsoever over the content and information utilizing 9 its infrastructure or passing through its network. 15.14 Routine maintenance and periodic system repair, upgrades and reconfigurations, public emergency or necessity, Force Majeure, restrictions imposed by law, acts of God, labor disputes, and other situations, including mechanical or electronic breakdowns, may result in temporary impairment or interruption of Service. As a result, COA does not guarantee continuous or uninterrupted Services and reserves the right from time to time to temporarily reduce or suspend Service without notice. Except as expressly set forth in Section 4.9 with respect to Outage Credits, customer releases COA and its directors, officer, employees and agents from any and all obligations, charges, claims, liabilities, opportunity costs and fees incurred, whether foreseeable or unforeseeable, as the result of Service interruption, omission or degradation, including the impact resulting to the Customer. 15.15 Use of a Party’s name, trademark, service mark, copyright or other intellectual property owned by a Party or its Affiliates is strictly prohibited without the express written consent of a Party’s corporate officer. Nothing herein constitutes a license authorizing the use of Party’s name, trademark, service mark, copyright or other intellectual property owned by a Party or its Affiliates. 15.16 The terms, representations and warranties of this Agreement may only be waived by a written instrument executed by the Party waiving compliance. Except as otherwise provided for herein, neither Party's failure at any time, to enforce any right or remedy available to it under this Agreement shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder. 10 APPENDIX A – DARK FIBER LEASE TERMS, CONDITIONS AND SERVICE LEVEL AGREEMENT This appendix applies to executed Service Orders for the lease of dark fiber within COA’s network. 1. Use of leased fiber: Customer will use the Fiber Optic Network for the purpose of connecting Customer’s facilities to un-activated optical fiber in COA’s Fiber Optic Network in order to provide broadband and communications services, all as more specifically described in the attached Service Orders and any future Service Orders. 2. Splicing control: a. The parties expressly acknowledge and agree that, in order to protect and to maintain the integrity of COA’s Fiber Optic Network, COA will perform interconnection work on behalf of Customer, for any interconnection to COA’s Fiber Optic Network. COA or COA’s Network Operator will need to approve, in advance, and coordinate all splicing activities. Splicing requests will be handled within 10 business days and scheduled with approved splicing contractor as available. b. Effective upon the effective date of applicable Service Orders, COA grants to Customer a right of entry to COA facilities in order to enable interconnection with COA’s Fiber Optic Network. Customer’s exercise of this right of entry is subject to such advance notification as may be mutually agreed upon by the Parties. c. Customer is responsible for acquiring all permits associated with use of COA fiber as required by COA and in accordance with all applicable laws. d. On a space-available basis and subject to the terms and conditions in this Appendix A, Customer may install a splice case within COA vaults or handholes. Placement of Customer infrastructure within COA owned Facilities requires prior approval from COA or COA’s Network Operator. 3. Overlashing: a. Any overlashing of fiber onto COA’s overhead facilities is subject to the approval of COA and Holy Cross Energy, including execution of agreements required by Holy Cross Energy, and compliance with the terms and conditions contained therein. b. Customer lashed fiber must be installed in a manner so as not to interfere with COA Facilities and approved by COA or COA’s Network Operator prior to installation. 4. Removal of equipment upon termination: Upon termination, Customer will remove all personal property and improvements from COA’s Fiber Optic Network and associated facilities within ninety (90) days of notice of termination, or as otherwise agreed between COA and Customer. COA’s facilities will be left in a clean and orderly fashion and returned to their prior state. 5. Activation: A Start Date for activation of the Leased Fiber and interconnection facilities will be determined and indicated on the associated Service Order. After such date, Customer will be responsible for the payment of all Services, regardless of the status of their operation. 6. Repair: a. COA shall contact Customer’s designated representative in the event of accidental or unscheduled service disruption to coordinate emergency repair work and/or to inform the Customer of the nature, extent, and expected duration of that work. 11 b. If any emergency or unscheduled repairs are determined to be attributable to the fault of Customer, or of its employees, contractors, subcontractors or agents, the Customer shall pay all such repair costs incurred by Customer or by COA. If any emergency or unscheduled repairs are determined to be attributable to the fault of COA, or of its employees or agents, COA shall pay all such repair costs incurred by COA or Customer. c. Customer shall provide to COA, its employees, agents, contractors, and subcontractors, access to its facilities to the extent required to inspect, maintain, and repair the Customer Leased Fiber and interconnection facilities located within COA’s Fiber Optic Network facilities. d. Any damage to the COA fiber will be repaired per the times set forth below: i. 4 hour mean time to repair, within business hours ii. 8 hour mean time to repair, outside business hours 7. Relocation of COA leased fiber: a. In all non-emergency situations, COA will give Customer a minimum of sixty (60) days’ notice of COA’s intention to relocate its Fiber Optic Network. If Customer does not want to relocate the Leased Fiber, Customer may terminate the applicable Service Order(s). b. If COA relocates its Fiber Optic Network, COA shall be responsible for the cost of splicing needed to restore Customer’s interconnects to the COA trunk. c. Customer may incur costs related to the Relocation of COA leased fiber which may include costs associated with the relocation of Customer infrastructure. 8. Rights to the fiber optic network: Customer acknowledges and agrees that COA has an indefeasible right to use the Fiber Optic Network, including the Customer Leased Fiber and associated interconnection facilities, and such right will at all times remain exclusively with COA. Customer shall assert no adverse claim to such right or title. 12 APPENDIX B – CONDUIT LEASE TERMS This appendix applies to executed Service Orders for the lease of conduit within COA’s network. 1. Use of conduit: Customer may use COA conduit for the purpose of providing broadband and communications services, all as more specifically described in the attached Service Orders and any future Service Orders. 2. Access control: a. Effective upon the effective date of applicable Service Orders, COA grants to Customer a right of entry to COA facilities in order to enable interconnection with COA’s Fiber Optic Network. Customer’s exercise of this right of entry is subject to such advance notification as may be mutually agreed upon by the Parties. b. Customer is responsible for acquiring all permits associated with use of COA conduit as required by COA and in accordance with all applicable laws. c. On a space-available basis and subject to the terms and conditions in this Appendix B, Customer may install a splice case within COA vaults or handholes. Placement of Customer infrastructure within COA owned Facilities requires prior approval from COA or COA’s Network Operator. 3. Removal of equipment upon termination: Upon termination, Customer will remove all personal property and improvements from COA’s Fiber Optic Network and associated facilities within ninety (90) days of notice of termination, or as otherwise agreed between COA and Customer. COA’s facilities will be left in a clean and orderly fashion, and returned to their prior state. 4. Activation: A Start Date for activation of interconnection facilities will be determined and indicated on the associated Service Order. After such date, Customer will be responsible for the payment of all Services, regardless of the status of their operation. 5. Repair: a. COA shall contact Customer’s designated representative in the event of accidental or unscheduled service disruption to coordinate emergency repair work and/or to inform the Customer of the nature, extent, and expected duration of that work. b. If any emergency or unscheduled repairs are determined to be attributable to the fault of Customer, or of its employees, contractors, subcontractors or agents, the Customer shall pay all such repair costs incurred by Customer or by COA. If any emergency or unscheduled repairs are determined to be attributable to the fault of COA, or of its employees or agents, COA shall pay all such repair costs incurred by COA or Customer. c. Customer shall provide to COA, its employees, agents, contractors, and subcontractors, access to its facilities to the extent required to inspect, maintain, and repair leased conduit and interconnection facilities located within COA’s Fiber Optic Network facilities. d. Any damage to the COA fiber will be repaired per the times set forth below: i. 4 hour mean time to repair, within business hours ii. 8 hour mean time to repair, outside business hours 13 6. Relocation of COA leased conduit: a. In all non-emergency situations, COA will give Customer a minimum of sixty (60) days’ notice of COA’s intention to relocate leased conduit. If Customer does not want to relocate the leased conduit, Customer may terminate the applicable Service Order(s). b. If COA relocates its conduit, COA shall be responsible for the cost of splicing needed to restore Customer’s interconnects to the COA trunk. c. Customer may incur costs related to relocation of leased conduit which may include costs associated with the relocation of Customer infrastructure. 7. Rights to the fiber optic network: Customer acknowledges and agrees that COA has an indefeasible right to use the Fiber Optic Network, including the Customer leased conduit and associated interconnection facilities, and such right will at all times remain exclusively with COA. Customer shall assert no adverse claim to such right or title. 14 APPENDIX C - CNL COLOCATION TERMS CNL Colocation terms apply to executed Service Orders for Colocation at COA’s Carrier Neutral Location (CNL, or Premises) located at 130 South Galena Street, Aspen, Colorado. 1. GRANT OF LICENSE; TERM; PERMITTED USES; NO REAL PROPERTY INTEREST. a. Grant of License. As specified in executed Service Orders, COA will grant to Customer the right and non-exclusive license ("License") to install, operate, and maintain equipment in specific space or spaces located at the CNL, as specified by COA. b. Right to relocate. Notwithstanding the foregoing, COA reserves the right to relocate, change or otherwise substitute replacement space at the CNL at any time during the Service Order term, provided that the replacement space is substantially similar in size and configuration to the original space. c. Sublicensing and use by others. Customer may not sublicense the space or allow any other person or entity to use the space for any reason, without first obtaining the prior written consent of COA, which consent shall not be unreasonably withheld. d. Permitted Uses. Customer has the right to use the space or spaces solely for the purpose of (i) installation of equipment, (ii) maintaining equipment, (iii) operating equipment, and (iv) removing equipment (collectively with (i)-(iii)), the "Permitted Uses". Unless otherwise agreed by COA in writing, Customer shall perform the Permitted Uses at its sole cost and expense. Customer shall not use or allow or permit the use of the Space for any use or purpose other than a Permitted Use. e. Not a Grant of an Interest in Real Property. Customer represents, warrants, acknowledges, and agrees that it does not have, has not been granted and will not own or hold any real property interest in the Space or the Premises; that Customer is a licensee not a tenant or lessee of the Space; and that Customer does not have any of the rights, privileges, or remedies that a tenant or lessee would have under a real property lease or occupancy agreement. 2. RULES AND REGULATIONS. Customer agrees to and shall abide by and honor all rules, regulations, policies, and procedures with regard to the use of the Space and the Premises from time to time published by COA. 3. DISCLAIMER OF WARRANTY. Upon execution and delivery of the Colocation Contract, Customer accepts the Space on an "as is where-is" basis. Except as otherwise specified in the Colocation Contract or this Schedule, COA makes no representations or warranties, express or implied, as to the condition of the Space, the Premises, or the Building and specifically disclaims, any and all express or implied representations or warranties including without limitation, any warranties of merchantability or fitness for a particular purpose. 4. RIGHT TO ACCESS SPACE. COA retains the right to access the Space at any time and from time to time to perform maintenance and repairs, to inspect the Equipment and to perform the Services. 5. TERMINATION. Upon termination, Customer will remove all personal property and improvements from COA’s Fiber Optic Network and associated facilities within ninety (90) days of notice of termination, or as otherwise agreed between COA and Customer. COA’s facilities will be left in a clean and orderly fashion, and returned to their prior state. 15 D – DEDICATED INTERNET ACCESS SERVICE LEVEL AGREEMENT Applies to executed Service Orders for Dedicated Internet Access. Dedicated Internet Access is described as Internet connectivity produced by: (a) a dedicated, high- speed network connection between Customer’s premises and COA or a COA affiliate’s Internet Protocol network (COA Network); and (b) routing services, based on Transmission Control Protocol/Internet Protocol (TCP/IP). Service may also include the procurement of IP address space for Customer. The monthly Service Availability Percentage for Dedicated Internet Access is calculated as follows: (Minutes of Outage) / 43,200 (30 days x 24 hours/day x 60 minutes in an hour) All relevant components of the COA IP Network (POPs, routers and circuits) are subject to this SLA, and components of other Internet backbone providers are subject only to the Latency SLA as described herein. Local access and connection facilities used to access the COA Network and any Customer equipment are not included as components of the COA Network for purposes of this SLA; provided, however, solely for purposes of the Network Port Availability SLA, the components of the COA Network shall include any access circuits provided by COA, but shall specifically exclude any access furnished or ordered directly by Customer from a third party. Network Port Availability Goal Outage Credit 100% 1 hours charges for every 1 [full] hour outage Latency – Primary Route Goal Latency Outage Credit 88ms 89-99ms 10% of MRC 88ms 100-120ms 25% of MRC 88ms >120ms 50% of MRC Latency – Secondary Route Goal Latency Outage Credit 99ms 100-110ms 10% of MRC 99ms 111-130ms 25% of MRC 99ms >130ms 50% of MRC Packet Delivery Goal Packet Delivery Outage Credit 99.50% 99.01-99.49% 10% of MRC 99.50% 90.00-99.00% 25% of MRC 99.50% <90.00% 50% of MRC Jitter Goal Packet Delivery Outage Credit 2ms 2.1-3ms 10% of MRC 2ms 3.1-4ms 25% of MRC 2ms >4ms 50% of MRC Network Port Availability measures Network Downtime versus Network Uptime. Network Downtime is based on periods when a particular DIA port of Customer is unable to transmit and receive data, and Network Uptime includes all other periods. Network downtime is recorded in the 16 Network Operator’s trouble ticket system, and is measured from the time Customer opens a trouble ticket with Network Operator as defined in Appendix F, to the time the affected Service is again able to transmit and receive data according to Network Operator’s records. The average network delay (“Latency”) will be measured via roundtrip pings on an ongoing basis every five minutes to determine an average monthly performance level for Latency at the relevant Point of Presence within the COA Network. Latency equals the sum of roundtrip delay divided by two to calculate one-way latency results. Packet Delivery will be measured on an ongoing basis every five minutes to determine an average monthly performance level for packets delivered between the relevant POPs. Jitter measures interpacket delay variance and packet loss in the COA Network, and is measured on an ongoing basis every five minutes by generating synthetic User Datagram Protocol traffic. For purposes of this Appendix D, jitter means average monthly jitter as measured by Network Operator on an ongoing basis in five-minute intervals. A Distributed Denial of Service attack (“DDoS”) is characterized by an explicit attempt by attackers to prevent legitimate users of a Service from using that Service. DDoS attacks are not covered by this SLA. The length of each Outage shall be calculated in full minutes for the purposes of determining Outage Credits. The existence and end of each Outage and all Latency, jitter and network port availability measurements will be determined by COA in good faith based on network tests performed by COA. Under no circumstances will network tests performed by Customer be considered valid measurable criterion for Outage, Latency, jitter or network port availability determinations for the purposes of establishing Outage Credits. 17 APPENDIX E - PRIVATE LINE SERVICE LEVEL AGREEMENT Applies to executed Service Orders for Private Line Service. Private Line Service is described as the carriage of interstate or intrastate traffic pursuant to the terms and conditions of Agreement and the Appendices. Private Line Service is a point to point dedicated switched/non-switched electrical and/or data optical transmission, over a physical circuit between two Points of Presence (PoPs) located on COA’s, its affiliates, or its third-party vendor networks. The monthly Service Availability Percentage for Private Line Service is calculated as follows: (Minutes of Outage) / 43,200 (30 days x 24 hours/day x 60 minutes in an hour) Private Line Service Descriptions: Metro Ethernet SLA and Outage Credit Table, Service Availability Upper Level Lower Level Outage Credit % 100.000% 99.99% 0% <99.99% 99.95% 10% <99.95% 99.00% 25% <99.00% 0.00% 100% The length of each Outage shall be calculated in full minutes for the purposes of determining Outage Credits. The existence and end of each Outage will be determined by Network Operator in good faith based on network tests performed by Network Operator. Under no circumstances will network tests performed by Customer be considered valid measurable criterion for Outage determination for the purposes of establishing Outage Credits. 18 APPENDIX F – OUTAGE CREDIT DETAILS To receive an Outage Credit, Customer must (a) enter a trouble ticket at the time the failure to meet the SLA (the “Outage”) occurs by contacting COA’s Network Operator’s Network Operations Center (NOC) via the online Mammoth Networks Partner Portal, unless COA or Network Operator has itself opened the trouble ticket for such Service unavailability, (b) be current in its payment obligations under this Agreement for all amounts not in dispute by the Customer, and (c) request reimbursement for Outage Credits from COA as specified hereunder and submit to COA all necessary supporting documentation within thirty (30) calendar days of the date of invoice for the month in which the applicable Outage occurred. If Customer fails to comply with the conditions for Outage Credits as set forth, Customer shall have waived its right to such Outage Credits for Outages in such month. An Outage shall not be deemed to have occurred in the event that the Service is unavailable or impaired due to any of the following: (i) Interruptions on a Service for which the Start Date has not yet commenced; (ii) Interruptions caused by the negligence, error or omission of Customer or others authorized by Customer to access, use or modify the Service or equipment used by Customer; (iii) Interruptions due to power failure at Customer or End User premises, or the failure or poor performance of Customer Equipment; (iv) Interruptions during any period in which COA or its agents are not afforded access to the End User premises where the access lines associated with the Service are terminated, provided such access is reasonably necessary to prevent a degradation or to restore Service; (v) Interruptions during any period that COA has communicated to Customer with twenty-four (24) hours’ notice that the Service will be unavailable due to Normal Maintenance or grooming purposes, or Customer has released the Service to COA; (vi) Interruptions during any period that Customer elects not to release the Service for testing and/or repair and continues to use it on an impaired basis; (vii) Interruptions resulting from Force Majeure (including a DDOS); (viii) Interruptions resulting from Customer’s use of Service in an unauthorized or unlawful manner; (ix) Interruptions resulting from a COA disconnect under Section 3.2 of the Agreement; (x) Interruptions resulting from incorrect, incomplete or inaccurate Service orders from Customer; (xi) Interruptions due to improper or inaccurate network specifications provided by Customer; (xii) Interruptions resulting from a failure of an off-net carrier’s loop or network that has no SLA; (xiii) Special configurations of the standard Service that have been mutually agreed to by both parties, unless a separate Service Level Agreement for the special configuration has been established with the Service Order; and (xiv) COA’s inability to deliver Service by the Desired Due Date. Network Operator will endeavor to perform all non-emergency Scheduled Maintenance during pre- established maintenance hours, or windows. Scheduled Maintenance refers to (a) upgrades of hardware or software, (b) upgrades to increase capacity, (c) other pre-scheduled network activity that may degrade the quality of the Services or cause Service interruptions. Network Operator will use reasonable efforts to perform all Scheduled Maintenance weeknights between the hours of 11:00 pm and 6:00 am Mountain Time Zone. Notifications for Scheduled Maintenance shall be provided by email at least 24 hours in advance of the work. It shall be the responsibility of the Customer to provide COA in writing with correct and effective contact emails for said notifications. Emergency Maintenance shall refer to efforts to correct COA network conditions which require immediate correction. Emergency Maintenance, while being conducted, may degrade the quality of 19 Services and may result in total disruption of Service. COA may undertake Emergency Maintenance at any time it deems necessary in its sole discretion. COA shall endeavor to provide Customer notice of Emergency Maintenance as soon as is reasonably practicable under the circumstances. 20 APPENDIX G – COA NOC GUIDE Mammoth Networks (COA’s Network Operator) operates a 24-hour monitoring center that enables access to Mammoth’s Tier 1 and Tier II Network Operations Center (NOC) personnel 24 hours a day, 7 days a week, 365 days a year. To report any Outage or other service issues to the NOC, Customer must enter an online trouble ticket at http://partner.mammothnetworks.com (the “Mammoth Networks Partner Portal”, or “MNPP”). In the event Customer can establish it was unable to enter a trouble ticket using the MNPP due to network unavailability or unavailability of the MNPP, Customer may contact the NOC at the following telephone number: 307.685.5475. The NOC telephone number can be used to open tickets in place of the MNPP. However, phone tickets cannot be used for calculation of outage credits. Should Services be delivered to Customer using Customer-provided circuits, Customer is responsible for maintaining and troubleshooting its portion of the circuit. Mammoth’s NOC will assist Customer in determining troubleshooting steps for each portion of the Customer's Services.