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HomeMy WebLinkAbout09.18.2024 Telecom Board Agenda BOARD MEMBERS Andrew Van Fleet Board Chair Theodore Batemon Ritch Kurtenbach Mike Young Amy Wienands City Council Liaison: Rob Nichols September 18, 2024 City Clerk’s Office Waterloo City Hall, 1st Floor 4:00 p.m. 1. Roll call. 2. Approval of the agenda, as presented. 3. Approval of minutes of September 4, 2024, Special Session, as presented. 4. Resolution approving preliminary plans, specifications, form of contract, etc., setting date of bid opening as October 17, 2024, and date of public hearing as November 20, 2024, in conjunction with the FY 2025 prefabricated shelter at 1700 Idaho Street, for the Municipal Telecommunications Utility Project, Contract No. 1112, and direct the City Clerk to publish notice. 5. Motion approving an As-Built Contract with Entrust Solutions Group of Warrenville, IL, in the amount of $479,274.20, in conjunction with the Fiber Optic Network Project, and authorizing the General Manager of Telecommunications to execute said document. 6. Motion approving a Design Agreement with Entrust Solutions Group of Warrenville, Illinois, in the amount of $48,300.00, in conjunction with the Fiber Optic Network Project, and authorizing the General Manager of Telecommunications to execute said document. 7. Motion approving a Hosted Communications Solutions Agreement with ANPI Business, LLC, for VOIP services for Waterloo Fiber internal operations, and authorizing the General Manager of Telecommunications to execute said document. 8. Motion approving an Emergency Repair Maintenance Contract with ITG Communications, LLC for maintenance of the fiber network and authorizing the General Manager of Telecommunications to execute said document. 8. Motion approving an Auditing Services RFP. 9. General update from the General Manager of Telecommunications and consultants. 10. Adjourn. Kelley Felchle Board Secretary WATERLOO Telecommunications Utility Board of Trustees TELECOMMUNICATIONS UTILITY BOARD OF TRUSTEES City Clerk’s Office September 4, 2024 12:00 p.m. 1. Members present: Van Fleet, Mr. Kurtenbach, Mr. Young. Ms. Wienands joined the meeting at 12:04pm. Mr. Batemon was absent. 2. Moved by Kurtenbach seconded by Young that the agenda, as presented, be approved. Voice vote-Ayes: Three. Motion carried. 3. Moved by Kurtenbach seconded by Young that the minutes of August 21, 2024, Regular Session, as presented, be approved. Voice vote-Ayes: Three. Motion carried. 4. Public Hearing on Setting Rates. 4.1. Moved by Kurtenbach seconded by Young to open the public hearing and receive and file notice of hearing. Voice vote-Ayes: Three. Motion carried. 4.2. Moved by Kurtenbach seconded by Young to close the public hearing. Voice vote-Ayes: Three. Motion carried. 4.3. Moved by Kurtenbach seconded by Young to adopt a resolution approving the adoption of additional rates. Roll Call vote -Ayes: Four. Motion carried. Resolution No. 2024-006. Mr. Kurtenbach questioned if this would be an additional fee each resident would pay. Eric Lage, General Manager, explained that the IP address is a separate fee, but only for those who chose to have an IP number. He then provided an overview for each of the items. Mr. Van Fleet questioned if he could rent a modem from Waterloo Fiber and use his personal mesh unit and still get managed services. Eric Lage clarified that there is no modem rental, just the gateway which is the wireless router. He explained that his mesh unit wouldn’t match with the gateway, but an extender would likely be the only way that would work. Mr. Kurtenbach questioned if the mesh unit was like Mediacom’s eero unit. Eric Lage commented that the mesh unit is a higher quality but along the same lines. 5. Moved by Kurtenbach seconded by Wienands to adopt a resolution approving hiring Tobin Orcutt to the position of NOC Technician at a rate of $26.00 per hour plus benefits, effective September 16, 2024, conditioned on passing a background check. Roll Call vote-Ayes: Four. Motion carried. Resolution No. 2024-007. Eric Lage, General Manager, provided an overview of Tobin Orcutt’s experience. Mr. Kurtenbach requested an overview of the job duties and responsibilities of the NOC Technician. Eric Lage explained that the NOC Technician is basically our Help Desk and would handle any issues or tech support questions. 6. Moved by Kurtenbach seconded by Young to adopt a resolution approving hiring Trey Corkery to the position of NOC Technician, at a rate of $22.00 per hour plus benefits, effective September 16, 2024, conditioned on passing a background check. Eric Lage commented that this item is not ready for a vote and apologized for the miscommunication. Kelley Felchle, Board Secretary, suggested tabling the item to a future date. Page 2 Moved by Kurtenbach seconded by Young to table the item. Voice vote: Ayes: Four. Motion carried. 7. Moved by Young seconded by Kurtenbach to adopt a resolution approving a Master Services Agreement with NeoNova Network Services, LLC, dba NRTC Managed Services and authorizing the General Manager of Telecommunications to execute said document. Roll Call vote-Ayes: Four. Motion carried. Resolution No. 2024-008. Eric Lage, General Manager, explained that NRTC is a cooperative that offers a variety of management services for ISP’s, and they will be providing help desk coverage after hours and weekends. He provided an overview of the agreement terms and explained that this is a 3-year agreement, after which time we should be able to justify bringing the 24-hour help desk inhouse. Mr. Kurtenbach questioned if he anticipated there would be many calls afterhours or weekends. Eric Lage commented that it is difficult to determine at this stage, but he doesn’t expect a lot. However, as we bring on additional services it would certainly increase. He explained that there is an expectation for any ISP that there would be someone answering phones 24 hours, especially when you are bringing on businesses . 8. General update from the General Manager of Telecommunications and consultant s. Eric Lage, General Manager, shared that they are working on an agreement with Magellan for As-Built’s and another proposal for twelve additional designs for new housing developments that have come to Waterloo since the original design was created. He is also working on a maintenance agreement with ITG in case some of our fiber gets damaged. Mr. Van Fleet questioned how many pedestals there are currently. Eric Lage commented there are currently about 120 and each pedestal serves 288 customers. He further commented that they are looking into doing ariel or pedestals rather than vaults due to the very narrow right of way in the Sans Souci Island area. Mr. Van Fleet questioned how the Work Session went. Eric Lage commented that it went well, and council asked some good questions. Mr. Van Fleet questioned when it will go to council. Kelley Felchle, Board Secretary, commented that it will go to council on September 16 and this Board agenda on September 18. Mr. Kurtenbach questioned if the board should attend the council meeting to show support. Kelley Felchle shared that the reception was very good with positive feedback from council and she does not anticipate any issues, but if anyone on the board would like to attend the council appreciates seeing your faces in the audience as well. Mr. Van Fleet commented that there has been a lot of buzz and excitement as people move from pre-sign up to getting signed up. Mr. Kurtenbach questioned if we would start to begin budget talks next month. Eric Lage confirmed that October would the time to prepare for the CY25 budget. Page 3 Mr. Van Fleet questioned how the audit would be handled this year. Eric Lage commented that he is trying to put together an Auditing Firm RFP for the next meeting. 9. Adjourn. With no further business before the board, it was moved by Kurtenbach seconded by Young that the meeting be adjourned at 12:23 p.m. Voice vote-Ayes: Four. Motion carried. Kelley Felchle Board Secretary PROJECT MANUAL FOR F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST CONTRACT NO. 1112 NOTICE OF HEARING CONTRACT NO. 1112 Page 1 of 1 F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST CONTRACT NO. 1112 CONTRACT DOCUMENTS TABLE OF CONTENTS Highlighted items must be included with bid. 1. NOTICE OF PUBLIC HEARING 2. NOTICE TO BIDDERS 3. INSTRUCTIONS TO BIDDERS 7. EQUAL OPPORTUNITY CLAUSE 8. TITLE VI CIVIL RIGHTS 10. AFFIRMATIVE ACTION PROGRAM 11. POTENTIAL ITEMS OF WORK FOR MBE/WBE PARTICIPATION A. SUBCONTRACTOR'S BID REQUEST FORM, B. LETTER FORM FOR SUBCONTRACTOR QUOTES (CCO-3) C. MBE/WBE SCOPE LETTER, (CCO-4) D. MBE AND/OR WBE PREBID CONTACT INFORMATION FORM (CCO-4A) E. MBP/WBE LETTER OF INTENT TO BID (CCO-5) 12. WATERLOO/CEDAR FALLS MINORITY AND WOMEN BUSINESSES ENTERPRISE CONSTRUCTION AND MAINTENANCE CONTRACTOR'S GUIDE 13. STATEMENT OF BIDDER'S QUALIFICATIONS 14. GENERAL SPECIAL PROVISIONS 15. SPECIAL PROVISIONS 16. GENERAL SPECIFICATIONS FOR CONSTRUCTION 17. SUPPLEMENTAL GENERAL SPECIFICATIONS FOR CONSTRUCTIONS 18. FORM OF CONTRACT 19. FORM OF PERFORMANCE, PAYMENT, AND MAINTENANCE BOND ATTACHMENT A – Conceptual Shelter Layout ATTACHMENT B – Equipment Rack Elevations ATTACHMENT C – Estimated Power and Cooling Specifications ATTACHMENT D – Site Location ATTACHMENT E – Prefabrications Data Center Bid Specs 4. FORM OF BID OR PROPOSAL 5. FORM OF BID BOND 6. NON-COLLUSION AFFIDAVITS 9. BIDDER STATUS FORM NOTICE OF HEARING CONTRACT NO. 1112 Page 1 of 1 NOTICE OF PUBLIC HEARING On Proposed Plans, Specifications, Form of Contract, And Estimate of Cost For the F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST In the City of Waterloo, Iowa CONTRACT NO. 1112 PUBLIC HEARING The City Council of Waterloo, Iowa, will hold a public hearing on the proposed Plans, Specifications, Form of Contract, and Estimate of Costs for the construction of said improvements at 5:30 p.m. on the 21st day of October 2024, in the Harold E. Getty Council Chambers in City Hall, 715 Mulberry Street, Waterloo, Iowa. At said hearing, any interested person may appear and file objections thereto or to the cost of the improvements. The Board of Trustees of the Municipal Telecommunications Utility will hold a public hearing on the proposed Plans, Specifications, Form of Contract, and Estimate of Costs for the construction of said improvements at 4:00 p.m. on November 20, 2024, in the Harold E. Getty Council Chambers in City Hall, 715 Mulberry Street, Waterloo, Iowa. At said hearing, any interested person may appear and file objections thereto or to the cost of the improvements. The City of Waterloo (Owner) is seeking bids from contractors who can supply and install a prefabricated concrete communication shelter that will securely house the network equipment, power systems, and supporting environmental components required to operate the Waterloo Fiber FTTU network for the Owner. The shelter will be located at 1700 Idaho St, Waterloo, IA 50703. Published pursuant to the provisions of Chapter 26 of the City Code of Iowa and upon order to the City Council of said Waterloo, Iowa, on the day of , . CITY OF WATERLOO, IOWA BY: Kelley Felchle City Clerk NOTICE TO BIDDERS CONTRACT NO. 1112 NOTICE TO BIDDERS For the Taking of Bids for the F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST REQUEST FOR QUOTE In the City of Waterloo, Iowa CONTRACT NO. 1112 RECEIVING OF BIDS On behalf of the City of Waterloo and the Municipal Telecommunications Utility of the City of Waterloo, notice is hereby given that sealed proposals will be received by the City Clerk of the City of Waterloo, Iowa, at her office in the City Hall of the said City on the 17th day of October 2024 until 1:00 p.m. for the construction of the F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST, CONTRACT NO. 1112, as described in detail in the plans and specifications now on file in the Office of the City Clerk. Proposals received after the deadline for submission of bids as stated herein shall not be considered and shall be returned to the late bidder unopened. OPENING OF BIDS All proposals received will be opened in the City Council Chambers at City Hall, in the City of Waterloo, Iowa, on the 17th day of October 2024 at 1:00 p.m. Proposals will be considered by the Board of Trustees of the Municipal Telecommunications Utility at its meeting at 4:00 P.M. on November 20, 2024, in the Harold E. Getty Council Chambers in City Hall, 715 Mulberry Street, Waterloo, Iowa. The Board may approve awarding a Contract at said meeting, or at such other time and place as shall then be announced. Proposals will be considered by the City of Waterloo City Council at its meeting at 5:30 P.M. on October 21, 2024, in the Harold E. Getty Council Chambers in City Hall, 715 Mulberry Street, Waterloo, Iowa. The City Council anticipates making the award of Contract at its meeting at 5:30 P.M. on November 4, 2024, or at such other time and place as shall then be announced. PUBLIC HEARING The City Council of Waterloo, Iowa, will hold a public hearing on the proposed Plans, Specifications, Form of Contract, and Estimate of Costs for the construction of said improvements at 5:30 p.m. on the 21st day of October 2024, in the Harold E. Getty Council Chambers in City Hall, 715 Mulberry Street, Waterloo, Iowa. At said hearing, any interested person may appear and file objections thereto or to the cost of the improvements. The Board of Trustees of the Municipal Telecommunications Utility will hold a public hearing on the proposed Plans, Specification, Form of Contract, and Estimate of Costs for the construction of said improvements at 4:00 p.m. on November 20, 2024, in the Harold E. Getty Council Chambers in City Hall, 715 Mulberry Street, Waterloo, Iowa. At said hearing, any interested person may appear and file objections thereto or to the cost of the improvements. SCOPE OF WORK The City of Waterloo (Owner) is seeking bids from contractors who can supply and install a prefabricated concrete communication shelter that will securely house the network equipment, power systems, and supporting environmental components required to operate the Waterloo Fiber FTTU network for the Owner (the Project). The shelter will be located at 1700 Idaho St, NOTICE TO BIDDERS CONTRACT NO. 1112 Waterloo, IA 50703 (See Attachment D – Site Location). The Owner is seeking a Base Bid, a Base Bid with Alternate A Configuration, and a Base Bid with an Alternate B Configuration. The Total of the Base Bid plus any Alternates selected by the Owner shall be used for comparison of bids. The Total of the Base Bid plus all Alternates shall be used for determining the sufficiency of the bid security. BEGINNING AND COMPLETION DATES The work under the proposed contract shall be commenced within ten (10) working days after receipt of "Notice to Proceed." The “Notice to Proceed” is expected to be issued on or about November 21, 2024. The Project shall be substantially completed on or before May 1, 2025. METHOD OF PAYMENT TO CONTRACTOR Payments will be made on the basis of estimates prepared by the Contractor and approved by the Engineer, solely for the purpose of payment; approval by the Engineer, or the City Council, shall not be deemed as approval or acceptance of the workmanship or materials. The Contractor will be compensated for 95% of the work completed during a payment period, with the remaining 5% being retained in accordance with the Iowa Code. Regular payments approved by the Engineer will be made following the next scheduled City Council meeting. Final payment will be made thirty-one (31) days after completion of the work and final acceptance by the Council. Before final payment is made, vouchers showing that all subcontractors and workmen and all persons furnishing materials have been fully paid for such materials and labor will be required unless the City is satisfied that material, men, and laborers have been paid. PLANS AND SPECIFICATIONS Plans and Specifications governing the construction of the proposed improvements have been prepared by the City of Waterloo which plans and specifications and also the prior proceedings of the City Council referring to and defining said proposed improvements are hereby made a part of this notice, and the proposed contract by reference shall be executed in compliance therewith. Plans and Specifications are available for review only from the Engineering Department. Complete digital Plans and Specifications are available at: https://www.cityofwaterlooiowa.com/government/municipalgovermentbids.php . Please DO NOT obtain Bid Documents from any source other than the City of Waterloo, Iowa. Obtaining documents through any other source could prevent Bidder from being included on the official Plan Holders List, which, in turn, may cause the Bidder to not receive addenda or other time-sensitive / bid-critical documents. The City has the right to reject any bids that do not have current bidding documents included in the proposal. Upon award of project, the prime contractor, subcontractors and suppliers shall be supplied with the needed number of plans and specifications at no additional cost. Project Calendar Anticipated Events Dates: • Issuance of the Notice to Bidders September 19, 2024 • Non-Mandatory Bidder Conference (Microsoft Teams) September 24, 2024 • Final Submission of Bidders’ Questions September 27, 2024 • Response to Bidders’ Questions October 4, 2024 NOTICE TO BIDDERS CONTRACT NO. 1112 • Proposal Submission Date October 17, 2024 • City consideration of bids October 21, 2024 • City public hearing on Plans, Specifications, Form of Contract October 21, 2024 & Estimate of Cost • City Award of Contract November 4, 2024 • Utility public hearing on Plans, Specifications, Form of Contract November 20, 2024 & Estimate of Cost • Utility consideration of bids & approval of award of contract November 20, 2024 • Contract Signed November 21, 2024 • Shelter Delivered and Offloaded by seller February 27, 2025 • All Contracts Must Have Obligations Complete by May 9, 2025 NOTICE TO BIDDERS CONTRACT NO. 1112 CONTRACT AWARD A contract will be awarded to the lowest responsive, responsible bidder. The lowest responsive, responsible bidder will be determined based on the sum of the Base Bid plus any Alternates selected by the Owner. The City reserves the right to reject any or all bids, re-advertise for new bids, and to waive informalities in the bids submitted. Bids may be held by the City of Waterloo, Iowa, for a period not to exceed thirty (30) days from the day of the opening of bids for the purpose of reviewing the bids and investigating the responsibility of bidders, prior to awarding the contract. By virtue of statutory authority, a preference will be given to products and provisions grown and coal produced with the State of Iowa and preference will be given to local domestic labor in the construction of the improvement. PROPOSALS SUBMITTED The bidder shall submit bids on the items listed in the proposal. The bidder has the option to submit a computer-generated spreadsheet in lieu of the portion of the Form of Bid or Proposal, which includes the Bid Item Number, Description, Unit, Estimated Quantity, Unit Bid Price, Total Bid Price and Total Bid. The computer-generated spreadsheet shall include all of the information listed in that portion of the Form of Bid or Proposal as well as bear the signature of the Prime Contractor submitting the bid. For the bidders who submit a computer- generated spreadsheet, the TOTAL BID (with alternates, if applicable) shall also be indicated in the space(s) provided on the Form of Bid or Proposal. BID SECURITY REQUIRED All bids must be accompanied in a separate envelope by a certified or cashier's check drawn on an Iowa bank, or a bank chartered under the laws of the United States, a certified share draft drawn on a credit union in Iowa or chartered under the laws of the United States, or bid bond, (on the form furnished by the City) payable to the City of Waterloo, Iowa, in the sum of not less than five percent (5%) of the bid submitted, which certified check, certified share draft or bid bond will be held as security that the Bidder will enter into a Contract for the construction of the work and will furnish the required bonds, and in case the successful Bidder shall fail or refuse to enter into the Contract and furnish the required bonds, his bid security may be retained by said City as agreed upon liquidated damages. If bid bond is used, it must be signed by both the Bidder and the surety or surety's agent. Signature of surety's agent must be supported by accompanying Power of Attorney. PERFORMANCE & PAYMENT BONDS The successful bidder will be required to furnish a “Performance Bond” and a “Payment Bond” within ten (10) days after forms are presented to him in an amount equal to one hundred percent (100%) of the contract price, said bond to be issued by a responsible surety approved by the City Council and shall guarantee the faithful performance of the contract and the terms and conditions therein contained, and shall guarantee the prompt payment of all materials and labor and protect and save harmless the City from claims of any kind caused by the operations of the contractor. NOTICE TO BIDDERS CONTRACT NO. 1112 MAINTENANCE BOND Before the Contractor shall be entitled to receive final payment for work done under this contract, it shall execute and file a bond in the penal sum of not less than 100% of the total amount of the contract guaranteeing the maintenance of the improvement caused by failures in materials and construction for a period of two (2) years from and after acceptance of the Contract. CONTRACT COMPLIANCE PROGRAM / SUBCONTRACTING The program proposes numerical projections regarding utilization of Minority Business Enterprise (MBE) and Women Business Enterprise (WBE) as Subcontractors, vendors and suppliers in the performance of Contracts awarded by the City of Waterloo, Iowa. A goal of at least ten percent (10%) for MBE participation on all City funded construction projects that are estimated at $50,000.00 or more. A goal of at least two percent (2%) for WBE participation on all City funded construction projects that are estimated at $50,000.00 or more. Any project funded in part or in total with federal funds shall follow the respective agencies contract compliance program and goals. The Prime Contractor shall make "good-faith efforts" to meet the Contract Compliance MBE/WBE goals. The MBE/WBE subcontractors, suppliers or vendors must provide the Prime Contractor a reasonably competitive price for the service being rendered or the Contractor is not required to accept their bid. LIQUIDATED DAMAGES Time is an essential element of this contract. It is important that the work be diligently pursued to completion. If the work is not completed within the specified contract period, plus authorized extensions, the contractor shall pay to the City Liquidated Damages in the amount of one thousand dollars ($1,000.00) per day, for each day, as further described herein, in excess of the authorized time. Days beyond the specified contract period for which Liquidated Damages will be charged will be working days that the contractor does, or could have worked, from Monday through Saturday. Sundays will be counted only if work is performed. Partial working days will be considered as a full working day. Days not chargeable for Liquidated Damages will include rain days, Sunday if no work is done, and legal holidays. Working days will cease to be charged when only punch list items remain to be completed. Punch list items do not include contract bid items or approved change/extra work orders. When the Contractor believes the project to be substantially completed, a written notice stating the same shall be submitted to the Engineer and a request made for a Punch List. If the work under the Contract extends beyond the normal construction season for such work the Contractor shall submit to the Engineer in writing a request that working days counted toward the project be suspended until work is resumed the following construction season. This amount is not construed as a penalty. These damages are for the cost to the City of providing the required additional inspection, engineering and contract administration. PRE-CONSTRUCTION CONFERENCE Before the work is commenced on this contract, a conference shall be held for the purpose of discussing the contract. The conference shall be attended by the prime contractor, subcontractors and City Officials. NOTICE TO BIDDERS CONTRACT NO. 1112 BIDDER STATUS Attention of bidders is called to compliance with the provisions of the Resident Bidder/Non- Resident Bidder requirements. Each bidder submitting a bid shall execute and include with the bid, a Bidder Status Form in the form herein provided. Failure to submit a fully completed Bidder Status Form with the bid may result in the bid being deemed nonresponsive and rejected. SALES TAX EXEMPTION CERTIFICATES This project is subject to sales tax. The Contractor will keep track of sales tax as required by the State of Iowa. The City may apply for a sales tax refund on portions of the project after City Council acceptance. Posted pursuant to the provisions of Chapter 26 of the City Code of Iowa. CITY OF WATERLOO, IOWA INSTRUCTIONS TO BIDDERS INSTRUCTIONS TO BIDDERS 1. EXPLANATIONS TO BIDDERS Any explanation desired by a bidder regarding the meaning or interpretation of the Notice to Bidders, Plans, Specifications, etc., must be requested in writing on or before September 27, 2024. Any interpretation made will be in the form of an addendum to the Notice to Bidders, Plans, Specifications, etc., and will be furnished to all prospective bidders. Its receipt by the bidder must be acknowledged in the space provided on the Proposal Form. Oral explanations or instructions given before the award of the contract will not be binding. 2. EXAMINATION OF PROPOSED WORK Bidders should visit the site and take such other steps as may be reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof. Failure to do so will not relieve bidders from responsibility for estimating properly the difficulty or cost of successfully performing the work. The owner will assume no responsibility for any understanding or representation concerning conditions made by any of its officers or agents prior to the execution of the contract, unless included in the Notice to Bidders, the Specifications or related documents, or any addenda thereto. 3. PREPARATION OF BIDS a. Bids shall be submitted on the forms furnished, or copies thereof, and must be manually signed. If erasures or other changes appear on the forms, each erasure or change must be initialed by the person signing the bid. The bidder has the option to submit a computer-generated spreadsheet in lieu of the portion of the Form of Bid or Proposal, which includes the Bid Item Number, Description, Unit, Estimated Quantity, Unit Bid Price, Total Bid Price, and Total Bid. The computer-generated spreadsheet shall include all of the information listed in that portion of the Form of Bid or Proposal as well as bear the signature of the Prime Contractor submitting the bid. For the bidders who submit a computer-generated spread- sheet, the TOTAL BID (with alternates, if applicable) shall also be indicated in the space(s) provided on the Form of Bid or Proposal. b. The Bid Form may provide for submission of a price or prices for one or more items, which may be lump sum bids, alternate prices, schedule items resulting in a bid on a unit of construction or a combination thereof, etc. When the Bid Form explicitly requires that the bidder bid on all items, failure to do so will disqualify the bid. When submission of a price on all items is not required, bidders should insert the words "no bid" in the space provided for any item on which no price is submitted. c. Unless called for, alternate bids will not be considered. d. In preparing his bid, the bidder shall specify the price, written legibly in ink or with the typewriter, at which he proposes to do each item of work. The unit price shall be stated in figures in the blank space provided (i.e., $7.14). In items where unit price is required, the total amount of each item shall be computed at the unit prices bid for the quantities given on the Bid Form and stated in figures in the blank space provided. If the bidder chooses to submit the unit prices, total bid price, and total bid on a computer-generated spreadsheet, all numbers shall be easily legible. e. Any changes or alterations made in the Bid Form, or any addition thereto, may cause the rejection of the bid. No bid will be considered which contains a clause in which the contractor reserves the right to accept or reject a contract awarded him by the city Council of Waterloo. Bids in which the unit prices are obviously unbalanced INSTRUCTIONS TO BIDDERS may be rejected. f. If the bidder does not qualify as a resident bidder, the nonresident bidder shall specify on the project proposal whether any preference to resident bidders, including but not limited to any preference to bidders, the imposition of any type of labor force preference, or any other form of preferential treatment t o bidders or laborers from that state or foreign country is in effect in the nonresident bidder’s state or country of domicile at the time of a bid submittal. 4. SUBMISSION OF BIDS a. A bid must be sealed in a separate envelope and marked to indicate its contents and be accompanied by the bid security in a separate envelope. If forwarded by mail, the two envelopes shall be placed in a third and mailed to the City Clerk. All bids must be filed with the City Clerk of the City of Waterloo at h er office in the City Hall before the time specified for closing bids. b. Bids received prior to the advertised hour of opening will be securely kept sealed. The officer whose duty it is to open them will decide when the specified time has arrived, and no bid received thereafter will be considered. 5. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS Bids and withdrawals thereof received at the office designated in the Notice to Bidders after the exact time set for closing of bids will not be considered. Bids may be withdrawn by written request received from bidders prior to the time set for closing of bids. 6. PUBLIC OPENING OF BIDS Bids will be publicly opened at that time and place set for opening in the Notice to Bidders. Their content will be made public for the information of bidders and others interested who may be present either in person or by representative. 7. BID SECURITY REQUIRED All bids must be accompanied in a separate envelope by a certified or cashier's check drawn on an Iowa bank, or a bank chartered under the laws of the United States, a certified share draft drawn on a credit union in Iowa or chartered under the laws of the United States, or bid bond (on the form furnished by the City) payable to the City of Waterloo, Iowa, in the sum of not less than five percent (5%) of the bid submitted, which certified check, certified share draft or bid bond will be held as security that the Bidder will enter into a Contract for the construction of the work and will furnish the required bonds, and in case the successful Bidder shall fail or refuse to enter into the Contract and furnish the required bond, his bid security may be retained by said City as agreed upon liquidated damages. If bid bond is used, it must be signed by both the bidder and the surety or surety's agent. Signature of surety's agent must be supported by accompanying Power of Attorney. INSTRUCTIONS TO BIDDERS 8. COLLUSIVE AGREEMENTS a. Each bidder submitting a bid shall execute and include with the bid, a Non -Collusion Affidavit in the form herein provided, to the effect that he as not colluded with any other person, firm, or corporation in regard to any bid submitted. b. Each bidder submitting a bid shall have each proposed subcontractor, if any, execute and submit to the City Contract Compliance Officer by 5:00 P.M. the business day following the day bids on this project are due, a Non-Collusion Affidavit in the form herein provided, to the effect that he has not colluded with any other person, firm, or corporation in regard to any bid submitted. Before executing any subcontract, the successful bidder shall submit the name of any proposed subcontractor for approval by the City. 9. MINORITY AND/OR WOMEN BUSINESS ENTERPRISE SUBCONTRACTORS a. CITY OF WATERLOO AND/OR WOMEN BUSINESS ENTERPRISE PRE-BID CONTACT INFORMATION FORM The City of Waterloo Minority and/or Women Business Enterprise Pre-Bid Contact Information Form shall be submitted with the Form of Bid or Proposal. Failure to do so shall be grounds for the bid being rejected if subcontracting is proposed by the prime contractor. 10. MBE/WBE CONTRACT COMPLIANCE PROGRAM PURPOSE The purpose of the Contract Compliance Program (hereinafter called Program) is to act as an impetus for increasing the participation of minority and women disadvantaged business enterprise (MBE/WBE) in City awarded construction contracts. The Program does not propose to eliminate any bonafide contractor or subcontractor from bidding on City contracts, but it will hopefully serve as a needed stimulus to help local MBE/WBE’s grow and eventually become mainstream contractors and subcontractors. This Contract Compliance Program does not propose to include any set-aside or quotas, but only flexible goals where “good-faith efforts” are required by the contractor to use MBE/WBE subcontractors. This Program shall not eliminate the need for contractors to continue their “good-faith efforts” in using MBE/WBE subcontractors on City contracts estimated at less than $50,000. The City of Waterloo will make every effort to reduce in-house construction and maintenance work that would be more cost effectively performed by the private sector and, thus, would allow additional bidding opportunities for MBE/WBE firms. The City Contract Compliance Officer shall be advised of all City of Waterloo awarded construction contracts. DEFINITIONS Goals: A flexible numerically expressed objective which contractors are required to make “good-faith efforts.” The key to the requirement is to make documented efforts. Goals are neither set-a-sides nor a device to achieve proportional representation or equal results. Numerical goals do not create set-a-sides for specific groups, nor are they designed to achieve proportional representation or equal results. Rather, the goal-setting process in affirmative action planning is used to target and measure the effectiveness of affirmative action efforts to eradicate and prevent discrimination. INSTRUCTIONS TO BIDDERS Quota: A flat numerical requirement that the contractor is required to meet in order to obtain the benefit or be in compliance. The numerical goal component of affirmative action programs is not designed to be, nor may it properly or lawfully be interpreted as, permitting unlawful preferential treatment and quotas with respect to persons of any race, color, religion, sex, or national origin. The regulations at 41 CFR 60-2.12(a), 60-2.15 and 60-2.30, specifically prohibit discrimination and the use of goals as quotas. (U.S. Department of Labor) Set-Aside: An arrangement in which a particular contract is reserved for competition solely among minority and women business enterprises. Contractor: As used in this document means contractor, subcontractor, supplier, vendor, and professional service provider. Minority Business Enterprise (MBE) Any business, which is at least 51%, owned by one or more minorities and whose management and daily business operations are controlled by one or more such individuals and is on the current State Unified Certification List, or were listed on the City of Waterloo Certified MBE/WBE Contractors list. Women Business Enterprise (WBE): Any business which is at least 51% owned by one or more women and whose management and daily business operations are controlled by one or more such individuals and is on the current State Unified Certification List, or were listed on the City of Waterloo Certified MBE/WBE Contractors list as of July 1, 2002 Minority: Any person or persons who are considered as socially and economically disadvantaged because of their identity as a group member without regard to their individual qualities. The groups include Black American, Hispanic American, Native Americans, Eskimos, Aleuts, and Asian-Pacific Americans. 13 C.F.R. 124- 1.1(c)(3)(ii) (1983). Lowest Responsible Bidder: Bidder who has offered the lowest bid and who has exhibited skill relative to the type of work bid on, judgment, financial responsibility, and evidence of working with the Affirmative Action Employment Program and the Contract Compliance Program. Broker: One buying or selling for others on commission or other fee basis without maintaining a warehouse or other similar inventory storage facility. Good Faith Efforts: The successful bidder shall be selected on the basis of having submitted the lowest responsible bid. The obligation of the bidder is to make good faith efforts. The bidder can demonstrate that it has done so by the following: 1. The Prime Contractor met the project goal - No Action necessary 2. If the Prime Contractor failed to meet the goal, they must submit documentation of good faith efforts. INSTRUCTIONS TO BIDDERS CONTRACT COMPLIANCE PROGRAM SUBCONTRACTING The program proposes numerical projections or goals regarding utilization of Minority Business Enterprise (MBE) and Women Business Enterprise (WBE) as subcontractors in the performance of contracts awarded by the City of Waterloo, Iowa. A goal of at least 10% for MBE participation on all City funded construction projects that are estimated at $50,000 or more and projects under $50,000 where applicable at the Contract Compliance Officer’s discretion. There is at least 2% WBE goal on City funded projects. Any project which is funded solely or in part with Federal funds shall follow the respective agencies contract compliance program and goals. Any project which is funded solely or in part with State funds shall follow the respective agencies contract compliance program and goals. The City of Waterloo Contract Compliance Program is for City awarded construction contracts only. The prime contractor shall make “good-faith efforts” to meet the Contract Compliance MBE/WBE goals. The MBE/WBE subcontracts must provide the prime contractor a reasonably competitive price for the service being rendered or the contractor is not required to accept the bid. Administrative Reconsideration: As part of this reconsideration, the bidder will have the opportunity to provide written documentation or arguments concerning the issue of whether they made adequate good faith efforts to meet the goals. The bidder will have the opportunity to meet in person with the City of Waterloo's Administrative Reconsideration Committee to discuss the issue of whether they made adequate good faith efforts. The Administrative Reconsideration Committee will forward a written decision on reconsideration to the Mayor and City Council, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. Documentation required will include but is not limited to the following: * Making portions of the work available for MBE/WBE subcontracting * Evidence of negotiating with MBE/WBE firms * MBE/WBE quotes obtained and non-MBE/WBE quotes used * Reasons agreements were not reached * Follow-up after initial solicitations * Efforts to assist in obtaining equipment, supplies and materials (at competitive prices), bonding, lines of credit, insurance, etc. * Evidence of past compliance or non-compliance by same contractor The Contract Compliance Officer will determine the weight to be given to each item listed above (supported by appropriate documentation) based on overall program goals. RESPONSIBILITIES 1. City of Waterloo A. The City Contract Compliance Officer has the responsibility to assure the City’s compliance with Federal, State and Municipal regulations. B. The City Contract Compliance Officer is responsible for maintaining a current directory of certified firms. Certification of MBE/WBE/DBE contractors is through the Iowa Department of Transportation and its Unified Certification Program. Only firms certified based on guidelines prescribed in 49 CFR Part 26 and provisions of this agreement, shall be recognized as certified by the City of Waterloo. C. The City Contract Compliance Officer is responsible for making available a list of future project information notices to MBE/WBE firms. INSTRUCTIONS TO BIDDERS D. The City Contract Compliance Officer shall send notices to appropriate MBE/WBE firms in the directory of each bid solicitation with opening date. E. The City Contract Compliance Officer will receive MBE/WBE Letter(s) of Intent to Bid and within two (2) business days forward the complete list of MBE/WBE bidders who submitted a Letter of Intent to Bid to prime contractors. Prime Contractors In order to be in compliance with the guidelines of this program, the prime contractor must show good-faith efforts in following the MBE/WBE Contract Compliance Program. Good-faith efforts include, but are not limited to, the following: A. Prime contractors shall send solicitation letters (Form CCO-3) to appropriate MBE/WBE (those certified in directory prepared by City Contract Compliance Officer) at least seven (7) working days prior to bid date. Letters should identify specific items to be subcontracted. A minimum of three (3) disadvantaged business contacts must be made and documented, if there are at least three disadvantaged businesses offering services in the area to be subcontracted (See City of Waterloo MBE/WBE Certification List). If less than three (3) are offering the services to be subcontracted, then a contact is required for any that are listed as providing that service. If the Prime Contractor submits a MBE/WBE contact not on the City's MBE/WBE list, attach a copy of the MBE/WBE/DBE Certifications from another government agency. B. If a prime contract bidder is unable to identify MBE/WBE firms to perform portions of the work, the City Contract Compliance Officer should be contacted for assistance immediately. C. Prime contract bidders may solicit MBE/WBE proposals by telephone or personal interviews, but all such contacts shall be confirmed by Certified Mail, or subcontract bid request forms (Form CCO-2). D. If any MBE/WBE business submitting bids is not selected for subcontract award, documentation must accompany the "MBE/WBE Business Enterprise Pre-Bid Contact Information Form" (Form CCO-4 and CCO-4A) on why the MBE/WBE was not selected. These reasons could include: a. Not low bid. Copies of the competing bids may be required for verification. b. MBE/WBE did not bid, withdrew bid or non-responsive. c. Documentation of other business-related reason for not selecting the MBE/WBE business for a subcontract. d. Prime contractor self performs work. e. Any other reason relied on by prime. The Contract Compliance Officer will determine the weight to be given to each item listed above (supported by appropriate documentation) based on overall program goals. II. MBE/WBE Firms A. MBE/WBE firms shall be certified by the Iowa Department of Transportation as owners and controllers of their respective businesses or were listed on the City of Waterloo Certified MBE/WBE Contractors list as of July 1, 2002. B. MBE/WBE firms must perform the work on the project; they cannot act as a broker by subcontracting the work out to others. C. Each MBE/WBE firm planning to submit quotes on construction projects with goals, shall submit a Letter of Intent to Bid (Form CCO-5) to the City Contract Compliance Officer seven (7) working days prior to bid opening, listing specific items which the MBE/WBE firm is interested in bidding. INSTRUCTIONS TO BIDDERS If sufficient Letters of Intent to Bid are not received by the City Contract Compliance Officer seven (7) working days prior to bid opening, goals on subject project will be reduced accordingly. Agreements between the bidder/proposer and a MBE/WBE in which the MBE/WBE promises not to provide subcontracting quotations to other bidders/proposers are prohibited. NON-COMPLIANCE OF CONTRACTORS A. Noncompliance exists when the contractor’s actions are not consistent with the requirements of the Contract Compliance Program in the areas of employment and subcontracting. B. A bidder’s failure to show good-faith efforts to meet project goals or a failure to use certified MBE/WBE firms may be grounds for finding its bid not responsible. C. The Contract Compliance Officer shall submit to City Council his/her recommendation on any non- compliant contract in writing. NOTICE TO PROCEED Notice to proceed on any project with goals will not be issued until City Contract Compliance Officer determines the lowest responsible bidder has used good-faith efforts to comply with this Compliance Program and the bid was responsive. CONCLUSION This program repeals or revises all sections of previous Waterloo Contract Compliance Programs. 11. EMPLOYMENT AND BUSINESS OPPORTUNITY To the greatest extent feasible, suppliers, subcontractors, and low-income workers owning businesses or living in the Waterloo area must be given priority in supplying materials, bidding for subcontract work, or applying for employment by the contractor on this project. Opportunities for training and for employment arising in connection with this project, shall to the greatest extent feasible be made available to lower income persons residing in the project area. The contract area is the City of Waterloo. The City of Waterloo will require the contractor to document his efforts in securing lower income workers living in the project area and in purchasing supplies from, and awarding subcontracts to, businesses owned by persons residing in the project area. 12. STATEMENT OF BIDDER'S QUALIFICATIONS The apparent lowest bidder shall, upon request of the City of Waterloo, Iowa, submit on the form furnished for that purpose (a copy of which is included in the contract documents), a statement of bidder's qualifications, his experience record in constructing the type of improvements embraced, and his organization and equipment available for the work contemplated; and, when specifically requested, a detailed financial statement. The City of Waterloo, Iowa, shall have the right to take such steps as it deems necessary to determine the ability of the bidder to perform his obligations under the contract, and the bidder shall furnish the City of Waterloo, Iowa, all such information and data for this purpose as it may request. The right is reserved to reject any bid where an investigation of the available evidence or information does not satisfy the City of Waterloo, Iowa, that the bidder is qualified to carry out properly the terms of the contract. 13. AWARD OF CONTRACT a. Award of contract will be made to the lowest responsive, responsible bidder. The intention is to award the contract at the City Council meeting on November 4, 2024, but the right is reserved to postpone such action for a reasonable time, not exceeding thirty (30) days. INSTRUCTIONS TO BIDDERS b. The City Council reserves the right to reject any or all bids or waive any informality in bids received. c. The bidder shall submit bids on all the items listed in the proposal and shall state the unit bid price in words in the blank spaces provided beneath the item description. Should there be any discrepancy between the unit bid price in words and listed numeral unit bid price, the City of Waterloo shall consider the unit bid price in words as being the valid unit bid price. A computer-generated spreadsheet as herein provided shall also be acceptable. Proposals requiring mathematical computations to determine unit prices or totals will be rejected. A contract will be awarded to the lowest responsive, responsible bidder submitting the lowest total bid, or for the BASE BID plus ALTERNATE(S), as applicable, chosen by the City as indicated in the NOTICE TO BIDDERS. d. A resident bidder shall be allowed a preference as against a nonresident bidder from a state or foreign country if that state or foreign country gives or requires any preference to bidders from that state or foreign country, including but not limited to any preference to bidders, the imposition of any type of labor force preference, or any other form of preferential treatment to bidders or laborers from that state or foreign country. The preference allowed shall be equal to the preference given or required by the state or foreign country in which the nonresident bidder is a resident. In the instance of a resident labor force preference, a nonresident bidder shall apply the same resident labor force preference to a public improvement in this state as would be required in the construction of a public improvement by the state or foreign country in which the nonresident bidder is a resident. 14. EXECUTION OF AGREEMENT, BONDS, AND CERTIFICATE OF INSURANCE a. Subsequent to the award and within ten (10) days after the prescribed forms are presented for signature, the successful bidder shall execute and deliver to the City of Waterloo, Iowa, an agreement in the form included in the contract documents in such number of copies as the City of Waterloo, Iowa, may require. b. Having satisfied all conditions of award as set forth elsewhere in these documents, the successful bidder shall, within the period specified in paragraph "a" above, furnish a performance bond and a payment bond in a penal sum not less than the amount of the contract as awarded, as security for the faithful performance of the contract and terms and conditions therein contained and shall guarantee the prompt payment of all persons, firms, or corporations to whom the contractor may become legally indebted for labor, materials, tools, equipment, or services of any nature including utility and transportation services, employed or used by him in performing the work. The bonds shall protect and save harmless the City from claims and damages of any kind caused by the operations of the contractor and shall also guarantee the maintenance of the contract improvements for the period stated in the Notice to Bidders from and after completion of said improvements and their acceptance by the City. Such bonds shall be in the same form as that included in the contract documents and shall bear the same date as, or a date subsequent to that of the agreement. The current Power of Attorney for the person who signs for any surety company shall be attached to such bonds. c. The successful bidder shall, within the period specified in paragraph "a" above, furnish a certificate of insurance for approval in amounts of not less than the amounts specified in the General Specifications for Construction, Section F. No. 4 "Liability Insurance" Pages 11 to 12 of 14 Pages. The certificate of insurance shall be furnished in such number of copies as the City of Waterloo may require. The City of Waterloo shall be named as an "Additional Insured." The contractor shall similarly submit his subcontractor's certificates of insurance in the amounts for approval before each commences work. The contractor shall carry or require that there be Workmen's Compensation Insurance for all his employees and those of his subcontractors engaged in work at the site, in accordance with State Workmen's Compensation Laws. d. In case the successful Bidder shall fail or refuse to enter into the Contract and furnish the required bonds, his bid security may be retained by said City as agreed upon liquidated damages. 15. BIDDER STATUS INSTRUCTIONS TO BIDDERS Attention of bidders is called to the requirement of complying with the provisions of the Resident Bidder/Non-Resident Bidder requirement. Each bidder submitting a bid shall execute and include with the bid, a Bidder Status Form in the form herein provided. Failure to submit a fully completed Bidder Status Form with the bid may result in the bid being deemed nonresponsive and rejected. FORM OF BID CONRACT NO. 1112 Page 1 of 3 FORM OF BID OR PROPOSAL F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST CONTRACT NO. 1112 CITY OF WATERLOO, IOWA Honorable Mayor and City Council Waterloo, Iowa Gentlemen: 1. The undersigned, being a Corporation existing under the laws of the State of , a Partnership consisting of the following partners: , having familiarized (himself) (themselves) (itself) with the existing conditions on the project area affecting the cost of the work, and with all the contract documents listed in the Table of Contents and Addenda (if any), as prepared by the City Engineer of the City of Waterloo now on file in the office of the City Clerk, City Hall, Waterloo, Iowa, hereby proposes to furnish all supervision, technical personnel, labor, materials, machinery, tools, appurtenances, equipment, and services, including utility and transportation services required to construct and complete this F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST, CONTRACT NO. 1112, all in accordance with the above-listed documents and for the lump sum for work in place for the following items and quantities: F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST CONTRACT NO. 1112 Description Total Cost TOTAL DIVISION 1 BASE BID $ ALTERNATE A - A/B DC Power and Battery System for Redundancy $ ALTERNATE B - Second DC Power and Battery System for Redundancy $ TOTAL DIVISION 1 BASE BID + ALTERNATE A CONFIGURATION $ TOTAL DIVISION 1 BASE BID + ALTERNATE B CONFIGURATION $ FORM OF BID CONRACT NO. 1112 Page 2 of 3 2. It is understood that the quantities set forth are approximate only and subject to variation and that the unit bid price for the work done shall govern in the actual payment to Contractor. 3. In submitting this bid, the bidder understands that the right is reserved by the City of Waterloo, Iowa, to reject any or all bids. The undersigned agrees to execute and deliver an agreement in the prescribed form and furnish the required bond and certificate of the insurance within ten (10) days after the agreement is presented to him for signature and start work within ten (10) days after "Notice to Proceed" is issued. 4. Security in the sum of Dollars ($ ) in the form of , is submitted herewith in accordance with the INSTRUCTIONS TO BIDDERS. 5. Attached hereto is a Non-Collusion Affidavit of Prime Contractor. 6. Attached hereto is a Bidder Status Form. 7. The bidder is prepared to submit a financial and experience statement upon request. 8. The Prime Contractor and Subcontractor(s), which have performed an aggregate of $10,000.00 in work for the City in the current calendar year, are prepared to submit an AAP or Update and an EOC, within ten (10) days of notification that the bid submitted is lowest and acceptable. 9. The bidder has received the following Addendum or Addenda: Addendum No. Date 10. The bidder shall list the MBE/WBE subcontractor(s), amount of subcontracts and bid items on the City of Waterloo Minority and/or Women Business Pre-bid Contact Information Form submitted with this Form of Bid or Proposal. The apparent low Bidder shall submit a list of all other Subcontractor(s) to be used on this Project to the City of Waterloo by 5:00 p.m. the business day following the day Bids on this Project are due along with the Non-Collusion Affidavits of All Subcontractor(s). The Contractor shall submit information on subcontractors on “SUBCONTRACTOR REQUEST AND APPROVAL” Form to be provided by City prior to approval of contract. The subcontractors listed on this proposal and/or submitted to the Contract Compliance Officer cannot be changed except for the following reasons: 1) The City of Waterloo does not approve the subcontractors. 2) The subcontractors submit in writing that they cannot fulfill their subcontracts. 11. The bidder has filled in all blanks on this proposal. Those blanks not applicable are marked "none" or "NA". 12. The bidder has attached all applicable forms. (Name of Bidder) (Date) BY: Title FORM OF BID CONRACT NO. 1112 Page 3 of 3 Official Address: (Including Zip Code): I.R.S. No. 1 BID BOND Sample Bid Bond Form KNOW ALL BY THESE PRESENTS: That we, , as Principal, and , as Surety, are held and firmly bound unto , as Obligee, (hereinafter referred to as “the Jurisdiction”), in the penal sum of dollars ($ ), or _______ percent of the amount bid in lawful money of the United States, for which payment said Principal and Surety bind themselves, their heirs, executors, administrators, successors, and assigns jointly and severally, firmly by these presents. The condition of the above obligation is such that whereas the Principal has submitted to the Jurisdiction a certain proposal, in a separate envelope, and hereby made a part hereof, to enter into a contract in writing, for the following described improvements; F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST, CONTRACT NO. 1112 The City of Waterloo (Owner) is seeking bids from contractors who can supply and install a prefabricated concrete communication shelter that will securely house the network equipment, power systems, and supporting environmental components required to operate the Waterloo Fiber FTTU network for the Owner (the Project). The shelter will be located at 1700 Idaho St, Waterloo, IA 50703 (See Attachment D – Site Location). (CONT. BID BOND) Project Name The Surety hereby stipulates and agrees that the obligations of said Surety and its bond shall be in no way impaired or affected by any extension of the time within which the Jurisdiction may accept such bid or execute such Contract; and said Surety does hereby waive notice of any such extension. In the event that any actions or proceedings are initiated with respect to this Bond, the parties agree that the venue thereof shall be County, State of Iowa. If legal action is required by the Jurisdiction against the Surety or Principal to enforce the provisions of the bond or to collect the monetary obligation incurring to the benefit of the Jurisdiction, the Surety or Principal agrees to pay the Jurisdiction all damages, costs, and attorney fees incurred by enforcing any of the provisions of this Bond. All rights, powers, and remedies of the Jurisdiction hereunder shall be cumulative and not alternative and shall be in addition to all rights, powers and remedies given to the Jurisdiction, by law. The Jurisdiction may proceed against Surety for any amount guaranteed hereunder whether action is brought against Principal or whether Principal is joined in any such action or actions or not. NOW, THEREFORE, if said proposal by the Principal be accepted, and the Principal shall enter into a contract with Jurisdiction in accordance with the terms of such proposal, including the provision of insurance and of a bond as may be specified in the contract documents, with good and sufficient surety for the faithful performance of such contract, for the prompt payment of labor and material furnished in the prosecution thereof, and for the maintenance of said improvements as may be required therein, then this obligation shall become null and void; otherwise, the Principal shall pay to the Jurisdiction the full amount of the bid bond, together with court costs, attorney’s fees, and any other expense of recovery. Signed and sealed this day of , 20 . SURETY: PRINCIPAL: Surety Company Bidder By By Signature Attorney-in-Fact/Officer Signature Printed Name of Attorney-in-Fact/Officer Printed Name Company Name Title Company Address Address City, State, Zip Code City, State, Zip Code Company Telephone Number Telephone Number NOTE: All signatures on this bid bond must be original signatures in ink; copies, facsimile, or electronic signatures will not be accepted. This bond must be sealed with the Surety’s raised, embossing seal. The Certificate or Power of Attorney accompanying this bond must be valid on its face and sealed with the Surety’s raised, embossing seal. NON-COLLUSION AFFIDAVIT OF PRIME BIDDER State of ) County of ) ) ss , being first duly sworn, deposes and says that: 1. He is (Owner, Partner, Officer, Representative, or Agent) , of , the Bidder that has submitted the attached Bid; 2. He is fully-informed respecting the preparation and contents of the attached Bid and of all pertinent circumstances respecting such Bid; 3. Such Bid is genuine and is not a collusive or sham Bid: 4. Neither the said Bidder nor any of its officers, partners, owners, agents, representatives, employees, or parties in interest, including this affiant, has in any way colluded, conspired, connived or agreed, directly or indirectly, with any other Bidder, firm or person to submit a collusive or sham Bid in connection with the Contract for which the attached Bid has been submitted or to refrain from bidding in connection with such Contract, or has in any manner, directly or indirectly, sought by agreement or collusion or communication or conference with any other Bidder, firm or person to fix the price or prices in the attached Bid or of any other Bidder, or, to fix any overhead, profit or cost element of the bid price or the bid price of any other Bidder, or to secure through any collusion, conspiracy, connivance, or unlawful agreement any advantage against the City of Waterloo, Iowa, or any person interested in the Proposed Contract; and 5. The price or prices quoted in the attached Bid are fair and proper and are not tainted by any collusion, conspiracy, connivance or unlawful agreement on the part of the Bidder or any of its agents, representatives, owners, employees, or parties in interest, including this affiant. (Signed) Title Subscribed and sworn to before me this day of , 20 . Title My commission expires . NON-COLLUSION AFFIDAVIT OF SUBCONTRACTOR State of ) County of ) ) ss: , being first duly sworn, deposes and says that: 1. He is (Owner, Partner, Officer, Representative, or Agent) , of hereinafter referred to as the "Subcontractor;" 2. He is fully informed respecting the preparation and contents of the subcontractor's proposal submitted by the subcontractor to , contract pertaining to the project in ; (City or County and State) 3. Such subcontractor's proposal is genuine and is not a collusive or sham proposal ; 4. Neither the subcontractor nor any of its officers, partners, owners, agents, representatives, employees, or parties in interest, including this affiant, has in any way colluded, conspired, connived, or agreed, directly or indirectly, with any other bidder, firm or person to submit a collusive or sham proposal in connection with such contract or to refrain from submitting a proposal in connection with such contract, or has in any manner, directly or indirectly, sought by unlawful agreement or connivanc e with any other bidder, firm or person to fix the price or prices in said subcontractor's proposal, or to fix any overhead, profit or cost element of the price of prices in said subcontractor's proposal, or to secure through collusion, conspiracy, co nnivance or unlawful agreement any advantage against the City of Waterloo, Iowa, or any person interested in the proposed contract; and 5. The price or prices quoted in the subcontractor's proposal are fair and proper and are not tainted by any collusion, conspiracy, connivance or unlawful agreement on the part of the bidder or any of its agents, representatives, owners, employees, or parties in interest, including this affiant. (Signed) Title Subscribed and sworn to before me this day of , 20 . Title My commission expires . EQUAL OPPORTUNITY CLAUSE (As provided in Executive Order No. 11246) All contractors, subcontractors, vendors and suppliers of goods and services doing business with the City and value of said business equals or exceeds ten thousand dollars ($10,000.00) annually agree as f o l l o w s : 1. The contractors, subcontractor, vendor and supplier of goods and services will not discriminate against any employee or applicant for employment because of race, color, creed, sex, national origin, economic status, age, mental or physical handicap, political opinions or affiliations. The contractor, subcontractor, vendor and supplier will develop an Affirmative Action program to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, sex, national origin, religion, economic status, age, mental or physical disability, political opinions or affiliations. Such actions shall include but not be limited to the following: a. Employment b. Upgrading c. Demotion or Transfer d. Recruitment and Advertising e. Layoff or Termination f. Rates of Pay or Other Forms of Compensation g. Selection for Training Including Apprenticeship 2. The contractor, subcontractor, vendor and supplier of goods and services will, in all solicitations or advertisements for employees, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex, national origin, religion, economic status, age, mental or physical disabilities, political opinion or affiliations. 3. The contractor, subcontractor, vendor and supplier or his/her collective bargaining representative will send to each labor union or representative of workers which he/she has a collective bargaining agreement or other contract or understanding, a notice advising said labor union or workers' representative of the contractor's commitment under this section. 4. The contractor, subcontractor, vendor and supplier of goods and services will comply with all published rules, regulations, directives, and order of the City of Waterloo Affirmative Action Program Contract Compliance Provisions. 5. The contractor, subcontractor, vendor and supplier of goods and services will furnish and file compliance reports within such time and upon such forms as provided by the Affirmative Action Officer. Said forms will elicit information as to the policies, procedures, patterns, and practices of each subcontractor as well as the contractor himself/herself and said contractor, subcontractor, vendor and supplier will permit access to his/her employment books, records and accounts to the City's Affirmative Action Officer, for the purpose of investigation to ascertain compliance with this contract and with rules and regulations of the City's Affirmative Action Program —Contract Compliance Provisions relative to Resolution No. 24664. 6. In the event of the contractor's non-compliance with the non -discrimination clauses of this contract or with any of such rules, regulations and orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further contracts in accordance with procedures authorized by the City Council. 7. The contractor, subcontractor, vendor and supplier of goods and services will include, or incorporate by reference, the provisions of the non -discrimination clause in every contract, subcontract or purchase order unless exempted by the rules, regulations or orders of the City's Affirmative Action Program, and will provide in every subcontract, or purchase order that said provisions will be binding upon each contractor, subcontractor, or supplier. 8. We, the undersigned, recognize that we are morally and legally committed to non -discrimination in employment. Any person who applies for employment with our company will not be discriminated against because of race, creed, color, sex, national origin, economic status, age, mental or physical disabilities. (Signed) (Appropriate Official) (Title) (Date) TITLE VI CIVIL RIGHTS Page 1 of 2 TITLE VI CIVIL RIGHTS During the performance of this contract, the contractor (for itself), its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees as follows: 1. Compliance with Regulations: The contractor shall comply with the Regulations relative to non-discrimination in Federally assisted programs of the DOT Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. 2. Nondiscrimination: The contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, national origin, sex, age, or disability in the selection and retention of subcontractors, including procu rement of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. 3. Solicitations for Subcontracts, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurement of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor’s obligations under this contract and the Regulations relative to non - discrimination on the grounds of race, color, national origin, sex, age, or disability. 4. Information and Reports: The contractor shall provide all information and reports required by the Regulations or directives issued pursuant there to, and shall allow access to its books, records, accounts, other sources of information, and its facilitie s as may be determined by the Contracting Authority, the Iowa DOT, or FHWA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information the contractor shall so certify to the Contracting Authority, the Iowa DOT, or the FHWA as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of the contractor’s noncompliance with the nondiscrimination provisions of this contract, the Contracting Authority, the Iowa DOT, or the FHWA shall impose such contract sanctions as they may determine to be appropriate, including, but not limited to: a. Withholding of payments to the contractor under the contract until the contractor complies, and/or b. Cancellation, termination, or suspension of the contract, in whole or in part. 6. Incorporation of Provisions: The contractor shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontract or procurement as the Contracting Authority, the Iowa DOT, or the FHWA may direct as a means of enforcing such provisions including sanctions for non -compliance: Provided, however, TITLE VI CIVIL RIGHTS Page 2 of 2 that, in the event of a contractor becomes involved in, or it threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the Contracting Authority or the Iowa DOT to enter into such litigation to protect the interests of the Contracting Authority or the Iowa DOT; and, in addition, the contractor may request the United States to enter into such litigation to protect the interest of the United States. Bidder Status Form To be completed by all bidders Please answer “Yes” or “No” for each of the following: Part A Yes No Yes No Yes No Yes No Yes No My company is authorized to transact business in Iowa. (To help you determine if your company is authorized, please review the worksheet on the next page). My company has an office to transact business in Iowa. My company’s office in Iowa is suitable for more than receiving mail, telephone calls, and e-mail. My company has been conducting business in Iowa for at least 3 years prior to the first request for bids on this project. My company is not a subsidiary of another business entity, or my company is a subsidiary of another business entity that would qualify as a resident bidder in Iowa. If you answered “Yes” for each question above, your company qualifies as a resident bidder. Please complete Parts B and D of this form. If you answered “No” to one or more questions above, your company is a nonresident bidder. Please complete Parts C and D of this form. To be completed by resident bidders My company has maintained offices in Iowa during the past 3 years at the following addresses: Part B Dates: / / to / / Address: City, State, Zip: Dates: / / to / / Address: City, State, Zip: Dates: / / to / / Address: You may attach additional sheet(s) if needed. To be completed by non-resident bidders City, State, Zip: Part C 1. Name of home state or foreign country reported to the Iowa Secretary of State: 2. Does your company’s home state or foreign country offer preferences to resident bidders, resident labor force preferences or any other type of preference to bidders or laborers? Yes No 3. If you answered “Yes” to question 2, identify each preference offered by your company’s home state or foreign country and the appropriate legal citation. To be completed by all bidders You may attach additional sheet(s) if needed. Part D I certify that the statements made on this document are true and complete to the best of my knowledge and I know that my failure to provide accurate and truthful information may be a reason to reject my bid. Firm Name: Signature: Date: You must submit the completed form to the governmental body requesting bids per 875 Iowa Administrative Code Chapter 156. This form has been approved by the Iowa Labor Commissioner. 309-6001 (09-15) Worksheet: Authorization to Transact Business This worksheet may be used to help complete Part A of the Resident Bidder Status form. If at least one of the following describes your business, you are authorized to transact business in Iowa. Yes No Yes No Yes No Yes No Yes No My business is currently registered as a contractor with the Iowa Division of Labor. My business is a sole proprietorship, and I am an Iowa resident for Iowa income tax purposes. My business is a general partnership or joint venture. More than 50 percent of the general partners or joint venture parties are residents of Iowa for Iowa income tax purposes. My business is an active corporation with the Iowa Secretary of State and has paid all fees required by the Secretary of State, has filed its most recent biennial report, and has not filed articles of dissolution. My business is a corporation whose articles of incorporation are filed in a state other than Iowa, the corporation has received a certificate of authority from the Iowa secretary of state, has filed its most recent biennial report with the secretary of sta te, and has neither received a certificate of withdrawal from the secretary of state nor had its authority revoked. Yes No Yes No Yes No Yes No Yes No Yes No My business is a limited liability partnership which has filed a statement of qualification in this state and the statement has not been canceled. My business is a limited liability partnership which has filed a statement of qualification in a state other than Iowa, has filed a statement of foreign qualification in Iowa and a statement of cancellation has not been filed. My business is a limited partnership or limited liability limited partnership which has filed a certificate of limited partnership in this state and has not filed a statement of termination. My business is a limited partnership or a limited liability limited partnership whose certificate of limited partnership is filed in a state other than Iowa, the limited partnership or limited liability limited partnership has received notification from the Iowa secretary of state that the application for certificate of authority has been approved and no notice of cancellation has been filed by the limited partnership or the limited liability limited partnership. My business is a limited liability company whose certificate of organization is filed in Iowa and has not filed a statement of termination. My business is a limited liability company whose certificate of organization is filed in a state other than Iowa, has received a certificate of authority to transact business in Iowa and the certificate has not been revoked or canceled. 309-6001 (09-15) AFFIRMATIVE ACTION PROGRAM Page 1 of 8 Revised February 2003 CONTRACTOR’S OR SUBCONTRACTOR’S AFFIRMATIVE ACTION PROGRAM Check box that applies to party completing program: ( ) General Contractor ( ) Subcontractor I. Section A to be completed by GENERAL CONTRACTORS only: A. Name of Company Address of Company Zip Telephone Number ( ) Federal ID Number (if no Federal ID Number, Owner/President’s Social Security Number) Name of Equal Employment Officer Name of Project Project Contract Number Estimated Construction Work Dates / Start Finish Section B to be completed by SUBCONTRACTORS only: B. Name of General or Prime Contractor Name of Subcontractor Subcontractor’s Address Zip Subcontractor’s Telephone Number ( ) Subcontractor’s Federal ID Number (if no Federal ID Number Owner/President’s Social Security Number) Name of Equal Employment Officer AFFIRMATIVE ACTION PROGRAM Page 2 of 8 A. Remainder of program to be completed by party completing program, either Prime or Subcontractor. 1. The Owners and/or Principals of your company: Ethnic Name Address Position Sex Origin 2. Other Areas of Interest: If your company has branches or subsidiaries, or if your company is a branch or subsidiary of a parent organization, give the following information: Type of Name Address Affiliation Degree II. EMPLOYER’S POLICY (Please read carefully.) A. We, the undersigned, recognize that we are morally and legally committed to nondiscrimination in employment. Any person who applies for employment with our company will not be discriminated against because of race, color, creed, sex, national origin, economic stat us, age, mental or physical handicap. B. The employment policies and practices of the undersigned are to recruit and hire employees without discrimination, and to treat them equally with respect to compensation and opportunities for advancement, including training, upgrading, promotion, and transfer. However, we realize the inequities associated with employment training, upgrading, contracting and subcontracting for minorities and women and we will direct our efforts to correcting any deficiencies to the maximum extent possible. The same will be required of our SUBCONTRACTORS and suppliers. C. We submit this program to assure compliance with Executive Order 11246, as amended, and other subsequent orders that may pertain to equal employment opportunity and merit employment policies, fully realizing that our qualification and/or merit system shoul d be evaluated and revised, if necessary. D. We agree to put forth the maximum effort to achieve full employment and utilization of capabilities and productivity of all our citizens without regard to race, creed, color, sex, national origin, economic status, age, and mental or physical handicap. E. will give training (Name of Company ) and employment opportunities to local residents of Waterloo, Iowa, to the greatest extent feasible. AFFIRMATIVE ACTION PROGRAM Page 3 of 8 III. AFFIRMATIVE ACTION A. recognizes that the effective application of a policy of (Name of Company) merit employment involves more than just a policy statement, and (Name of Company) will, therefore, re-evaluate our Affirmative Action Program to ensure that equal employment opportunities are available on the basis of individual merit, and to actively encourage minorities, women and local residents to seek employment with our company on this basis. B. will undertake the following six (6) steps to improve (Name of Company) our Affirmative Action Program: 1. Minority Recruitment and Employment; 2. Local Recruitment and Employment; 3. Disabled Veteran and Vietnam Era Veteran Recruitment and Employment; 4. Handicapped Recruitment and Employment; 5. Female Recruitment and Employment; and 6. Training, Upgrading and Promotional Opportunities. C. will take whatever steps are necessary to (Name of Company) ensure that our total work force has adequate minority, female, and local representation. We will utilize the following methods in our recruitment attempts: 1. Local advertising media (newspapers, radio, TV); 2. Community organizations (churches, clubs, schools); 3. Public and private institutions in the area (UNI, Hawkeye Community College); 4. Job Service of Iowa; and 5. Other. D. will seek qualified minority, female, and local group applicants (Name of Company ) for all job categories and will make asserted efforts to increase minority, female and group representation in occupations at the higher levels or skill and responsibility. E. All sources of employment used shall be aware that we are an Equal Employment Opportunity Employer. Labor organizations representing our employees will be notified of our Equal Employment Opportunity Policy and Affirmative Action Program. F. Training, upgrading, promotion and transfer activities at all levels will be monitored to ensure that full consideration has been given to qualified minority, female, and local group employees. G. will encourage other companies, with whom we are (Name of Company) associated and/or do business, to do the same and we will assist them in their efforts. AFFIRMATIVE ACTION PROGRAM Page 4 of 8 H. has taken the following Affirmative Action to ensure that (Name of Company) minority, female, local contractors and/or suppliers were provided opportunities to negotiate and/or bid on this project: (if none, write "NONE") 1. 2. I. As a result of the above efforts, we have involved minority, female, and local contractors and/or suppliers in the following areas of subcontracting: (if none, write "NONE") 1. 2. J. will require approved Affirmative Action Programs from (Name of Company ) all nonexempt contractors who propose to work on this project and will take whatever steps are necessary to ensure that non-minority contractors have adequate representation of minority, female and local persons in their total work force. K. In further accordance with rules and guidelines issued pursuant to Executive Order 11246 as amended, we establish the goals for our company, based on parity percentages supplied by the City, and we realize these goals will be reviewed on an annual basis. L. will keep records of specific actions relative to (Name of Company) recruitment, employment, training, upgrading and promotion and will provide the City of Waterloo with any information relative to same, including activities of our SUBCONTRACTORS and suppliers as necessary or when requested. M. Parity figures for companies located in Waterloo are as follows: Minority Parity = .08 (8%) N. (Name of Company) Affirmative Action Employment Goals: The definition of Affirmative Action Goals is as follows: "Goals may not be rigid and inflexible quotas which must be met, but must be targets, reasonably attainable by means of applying every good faith effort to make all aspects of the entire Affirmative Action Program work." For the year 20 , please submit percentage targets for employing minorities and women. If you already have reached your target for hiring minorities and women, please submit that percentage. *Goals for Minorities: % Goals for Women: % *Your affirmative action goals should be between 1% and 10% or more for minorities and 1% and 5% or more for women. AFFIRMATIVE ACTION PROGRAM Page 5 of 8 Please be advised that the goals or targets are purely your estimation of how many women and minorities your company can reasonably expect to hire in 20 . Note, that none of the goals are rigid or inflexible. They are targets that your company calculates as reasonably attainable. This will help the City in its monitoring procedures as required by City of Waterloo Resolution No. 1984 - 142(4). CONTRACTOR’S TOTAL WORK FORCE (WATERLOO) NAME AND ADDRESS JOB CATEGORY RACE SEX HOURLY WAGE INDICATE: DISABLED VETERAN: DV VIETNAM ERA VETERAN: VV HANDICAPPED: H AFFIRMATIVE ACTION PROGRAM Page 6 of 8 We hereby certify that we are in compliance with all City and Federal Affirmative Action Regulations and agree to accept all liability for failure to comply. Respectfully submitted, By: Company Executive Date By: Equal Employment Opportunity Officer Date City of Waterloo Affirmative Action Officer Approved Disapproved Reason: By: Date: AFFIRMATIVE ACTION PROGRAM Page 7 of 8 DESCRIPTION OF JOB CATEGORIES 1. Officials/Manager: Occupations in which employees set broad policies, exercise overall responsibility for execution of all policies, or direct individual departments or special phases of the agency’s operations or provide specialized consultation on a regional, district or area basis. Includes: department heads, bureau chiefs, division chiefs, directors, deputy directors, controllers, examiners, wardens, superintendents, unit supervisors, sheriffs, police and fire chiefs and inspectors and kindred workers. 2. Professionals: Occupations, which require specialized and theoretical knowledge, which is usually required through college training or thorough work experience and other training which provides comparable knowledge. Includes: personnel and labor relations workers, social workers, doctors, psychologists, registered nurses, economists, dietitians, lawyers, system analysts, accountants, engineers, employment and vocational rehabilitation counselors, teachers or instructors, police and fire captains and lieutenants and kindred workers. 3. Technicians: Occupations, which require a combination of basic scientific or technical knowledge and manual skill which can be obtained through specialized post -secondary school education and through equivalent on-the-job training. Includes: computer programmers and operations, draftspersons, surv eyors, licensed practical nurses, photographs, radio operators, technical illustrators, police and fire sergeants and kindred workers. 4. Office/Clerical: Workers are responsible for internal and external communication, recording and retrieval of data and/or information and other paper work required in an office. Includes: bookkeepers, messengers, office machine operators, clerk -typists, stenographers, court transcribers, hearing reporters, statistical clerks, dispatchers, license distributors, payroll clerks and kindred workers. 5. Skilled Craft Workers: Workers perform jobs, which require special manual skill and a thorough and comprehensive knowledge of the processes involved in the work, which is acquired through on -the-job training programs. Includes: Mechanics and repairmen, electricians, heavy equi pment operators, stationary engineers, skilled machine occupations, carpenters, compositors and typesetters and kindred workers . 6. Sales Workers: Occupations engaging wholly and primarily in direct selling. Includes: advertising agents and salesmen, insurance agents and brokers, real estate agents and brokers, stock and bond salesmen, demonstrators, salesmen and sales clerks, grocery clerks and ca shier checkers, and kindred workers. 7. Operatives (semi-skilled): Workers who operate machine or processing equipment or perform other factory - type duties of intermediate skill level which can be mastered in a few weeks and require only limited training. Includes: apprentices (auto mechanics), plumbers, building trades, metal working trades, bricklayers, carpenters, electricians, machinists, mechanics, printing trades, etc., operatives, attendants (auto service and parking), plasterers, chauffeurs, deliverymen and furnacemen, heaters (metal), laundry and dry cleaning operatives, milliners, mine operatives and laborers, motormen, oilers and greasers, (except auto painters), (except construction and maintenance), photographic process workers, stationary fireman, truck and tractor drivers, weavers, (textile), welders and flame cutters and kindred workers. 8. Laborers (unskilled): Workers in manual occupations, which generally require no special training. Perform elementary duties that may be learned in few days and require the application of little or no independent judgment. Includes: garage laborers, car washers and greasers, g ardeners (except farm) and groundskeepers, longshoremen, and stevedores, lumbermen, raftsmen and woodchoppers, laborers performing lifting, digging, mixing, loading and pulling operations and kindred workers. AFFIRMATIVE ACTION PROGRAM Page 8 of 8 9. Apprentices: Persons employed in a program including work training and related instruction to learn a trade or craft which is traditionally an apprenticeship, regardless of whether the program is registered with a Federal or State agency . 10. Trainees (on-the-job): Production. . . persons in formal training for craftsmen when not trained under apprentice programs --operative laborer, and service occupations. White Collar. . . persons engaged in formal training for clerical, managerial, professional, technical, sales, office and clerical occupations. ITEMS OF POTENTIAL MBE/WBE PARTICIPATION NOTICE TO PROSPECTIVE BIDDERS: The following are items from the F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST, CONTRACT NO. 1112, that have a potential for MBE/WBE Participation. This listing, however, is not intended to be all encompassing; to preclude MBE/WBE Contractors from bidding on any items of the Proposal as a Subcontractor or the entire Proposal as a Prime Contractor. All listed items are eligible for bid. MBE/WBE GOALS FOR THIS PROJECT IMPORTANT: Prime Contract Bidders should be aware that ten percent (10%) MBE goal and a two percent (2%) WBE goal is attached to this project. "Certified Return Receipt" letters are no longer needed with the bid showing proof of contacting MBE or WBE Subcontractors, but the Pre-Bid Contact Information Form must be filled out completely. City of Waterloo Contract Compliance Officer: Contract Compliance Officer Community Development Board Carnegie Annex, Suite 202 620 Mulberry Street Waterloo, IA 50703 Phone: (319) 291-4429 ITEMS OF POTENTIAL MBE/WBE PARTICIPATIONS CONTRACT 1112 Page 1 of 1 SUBCONTRACTOR’S BID REQUEST FORM PRIME BIDDER’S LETTERHEAD Contract No.: Letting Date: I, (subcontractor’s name), hereby attest that I have been solicited for a bid on (project name) in the area of (description of work and bid item no.). (Prime contractor) has informed me that if I am interested in bidding, a subcontracting bid proposal must be submitted to the company office by and (Date) (Time). Subcontractor’s Company Name Subcontractor’s Signature Date Prime Bidder’s Signature Date LETTER TO BE USED WHEN SOLICITING FOR SUBCONTRACTOR QUOTES Subcontractor Company Name Address RE: Contract No.: Dear : (Prime Contractor's Company Name) is presently soliciting for the following work in connection with the above referenced project. (Insert bid Item Nos. and Description of Work) (Prime Contractor's Company Name) is an Equal Opportunity Employer, and all qualified bidders will not be discriminated against due to race, religion, color, sex, or origin. If interested in bidding your proposal must be turned in to this office by and . (Date) (Time) Sincerely, (Prime Contractor's Representative) Form CCO- 3 (11/28/2001) (Form CCO-4) Rev. 06-20-02 MBE/WBE BUSINESS ENTERPRISE PRE-BID CONTACT INFORMATION FORM Prime Contractor Name: Project: Letting Date: NO MBE/WBE SUBCONTRACTORS: If you are NOT using any MBE/WBE subcontractors to complete this project, sign below. Attach a brief explanation as to why subcontracting was not feasible with this project. If any MBE/WBE subcontractors will be used, please use the bottom portion of this form. Contractor Signature: Title: Date: - SUBCONTRACTORS APPLICABLE: You are required, in order for your bid to be considered responsive, to provide the information on this form showing ALL of your MBE/WBE subcontractor contacts made for your bid submission. This information is subject to verification. Any questions may be directed to Contract Compliance Office 319 -291- 4429. You are required, in order for your bid to be considered responsive, to provide the information on this Form showing your MBE/WBE Business Enterprise contacts made prior to your bid submission. This information is subject to verifications and confirmation. If you are unable to identify MBE/WBE firms to perform portions of the work, please contact Rudy Jones, Contract Compliance Officer, for assistance at (319) 291-4429. In the event it is determined that the MBE/WBE Business Enterprise goals are not met, then before awarding the contract the City of Waterloo will make a determination as to whether or not the apparent successful low bidder made good faith efforts to meet the goals. TABLE OF INFORMATION SHOWING BIDDER'S PRE -BID MBE/WBE BUSINESS ENTERPRISE CONTACTS Quotes Received Quotation used in bid MBE/WBE Subcontractors Dates Contacted Yes/No Dates Contacted Yes/No Dollar Amount Proposed to be Subcontracted Form CCO-4A Rev. 07-08-02 MBE/WBE BUSINESS ENTERPRISE PRE-BID CONTACT INFORMATION FORM INSTRUCTIONS Prime Contractor Responsibilities: Prime Contractors bidding on City of Waterloo contract work are required to ensure that MBE/WBE businesses are provided the opportunity to participate in the performance of contracts and subcontracts. Prime contractors are required to assist MBE/WBE businesses in overcoming barriers to participation, and must make good faith efforts to secure bids from, and award subcontracts to, MBE/WBE businesses. For all contract bids of $50,000 or more, the following is required to demonstrate good faith efforts i n accordance with this policy: 1. "MBE/WBE BUSINESS ENTERPRISE PRE -BID CONTACT INFORMATION FORM" submitted with the prime contractor bid, properly completed and signed on Form CCO -4 (Rev. 06-20-02). Please note that this document must include all subcontractor contacts, bids received, and awarded - not just those related to disadvantaged business enterprise vendors. 2. A minimum of three (3) MBE/WBE business contacts must be made and documented, if there are at least three (3) MBE/WBE businesses offering services in the areas to be subcontracted (see City of Waterloo MBE/WBE Certified List). If less than three (3) are offering the services to be subcontracted, then a contact is required for any that are listed as providing that service. If you have submitted a MBE/WBE contact not on the City's MBE/WBE list, attach a copy of the certification from another government agency. 3. Contacts to each MBE/WBE businesses are required to be a minimum of seven (7) working days prior to the date the prime contractor submits the bid to the City of Waterloo. 4. The following documentation must accompany the "MBE/WBE BUSINESS ENTERPRISE PRE -BID CONTACT INFORMATION FORM" for each MBE/WBE business contacted: a. A copy of the bid received from the MBE/WBE, OR b. If no bid was received, a copy of correspondence received from the MBE/WBE with a "no bid" response, OR c. If no response was received, a copy of the solicitation sent to the MBE/WBE with proof of mailing attached. 5. If any MBE/WBE business submitting bids are not selected for subcontract award, documentation must accompany the "MBE/WBE BUSINESS ENTERPRISE PRE-BID CONTACT INFORMATION FORM" on why the MBE/WBE was not selected. These reasons could include : a. Not low bid. Copies of the competing bids may be required for verification. b. MBE/WBE did not bid, withdrew bid or was n o n -responsive. c. Documentation of other business-related reason for not selecting the MBE/WBE business for a subcontract. d. Prime contractor self performs w ork . e. Any other reason relied on by the Prime Contractor. The Contract Compliance Officer will determine the weight to be given to each item listed above (supported by appropriate documentation) based on overall program goals. Subcontractors Responsibilities: 1. Each MBE/WBE firm planning to submit quotes on construction projects with goals, shall submit a Letter of Intent to Bid (Form CCO-5) to the City Contract Compliance Officer seven (7) working days prior to bid opening, listing specific items which the MBE/WBE firm is interested in bidding. If the City Contract Compliance Officer does not receive sufficient scope letters seven (7) working days prior to bid opening, goals on subject project will be reduced accordingly. Agreements between the bidder/proposer and an MBE/WBE in which the MBE/WBE promises not to provide subcontracting quotations to other bidders/proposers are prohibited. LETTER OF INTENT TO BID (MBE/WBE LETTER) According to the Current MBE/WBE Contract Compliance Program - 2002, all MBE/WBE Contractors interested in submitting subcontractor quotes on construction projects with goals, MUST submit a LETTER OF INTENT TO BID to the City of Waterloo Contract Compliance Officer at least seven (7) days prior to bid opening. The LETTER OF INTENT TO BID must list the specific items, which the MBE/WBE Contractor is interested in bidding. Letter should include the following: Name of Project: Your Company Name: Address: Phone: Date: List of Specific items to be bid: Item No. Description: Item No. Description: Item No. Description: Item No. Description: (Subcontractor's Company Name and authorized signature) Return this LETTER OF INTENT TO BID to: Contract Compliance Officer Community Development Board 620 Mulberry St. Carnegie Annex, Suite 202 Waterloo, IA 50703 Phone: (319) 291 -4429 Form CCO-5 (06-20-2002) CERTIFIED MBE/WBE CONTRACTORS CITY OF WATERLOO, IOWA Contract Compliance Office Community Development Board Carnegie Annex, Suite 202 620 Mulberry Street Waterloo, IA 50703 City WEB Site: www.ci.waterloo.ia.us Contract Compliance WEB Site for listing updates: http://www.cityofwaterlooiowa.com/contractcompliance Contact: Rudy Jones, Community Development Director Email: rudyjones@waterloo-ia.org Phone: (319) 291-4429 Fax: (319) 291-4431 CERTIFIED MBE CONTRACTORS CARTER ELECTRIC 725 Adams Street Waterloo, IA 50703 Phone: (319) 232 -9808 Pager: (319) 235-4021 Contact: Derrick Carter Specializing in: ELECTRICAL CONTRACTOR CULPEPPER ELECTRIC 1731 Cottage Grove Avenue Waterloo, IA 50707 Phone: (319) 235 -0885 Fax: (319) 236-8177 Contact: Martin Culpepper Certified: City of Waterloo Certified MBE, Licensed Electrician Specializing in: ELECTRICAL CONTRACTOR DANIELS HOME IMPROVEMENT 339 Albany Street Waterloo, IA 50703 Phone: (319) 961 -1659 Contact: Sammy Daniels Specializing in: ALL TYPES OF CONCRETE FLATWORK, POURED WALLS—ALL TYPES, FOOTINGS, LIGHT DEMOLITION D.C. CORPORATION 426 Beech Street Waterloo, IA 50703 Phone: (319) 493-2542 FAX: (319) 236-0515 Contact: Terry Phillips Certified: City of Waterloo Certified MBE, Iowa DOT, TSB Certified Specializing in: COMMERCIAL AND RESIDENTIAL DEMOLITION, CONCRETE PAVING, DRIVEWAYS, TRUCKING (ALL TYPES), GENERAL CONSTRUCTION GREER'S WORKS 2003 Plainview Street Waterloo, IA 50703 Phone: (319) 233 -4701 Contact: Willie Greer Specializing in: DRIVEWAYS, SIDEWALKS, CARPENTRY, ROOFING, GENERAL CONSTRUCTION OLD GREER'S WORKS 2309 Springview Street Waterloo, IA 50707 Phone: (319) 233 -2150 Contact: David L. Greer, Sr. Specializing in: ROOFING & GENERAL CONSTRUCTION QUICK CONSTRUCTION 217 Bates Street Waterloo, IA 50703 Phone: (319) 215 -4166 Contact: Leroy Harrington Specializing in: ALL TYPES OF CONCRETE FLATWORK AND GENERAL CONSTRUCTION D & D CONSTRUCTION 1124 West Donald Street Waterloo, IA 50703 Phone: (319) 961 -4208 Contact: Darrell E. Caldwell, Sr. Specializing in: ROOFING AND GENERAL CONSTRUCTION E. CASTRO ROOFING 702 Riehl Street Waterloo, IA 50701 Phone: (319) 215-5683 Contact: Emillio Castro Specializing in: ROOFING, SIDING, GENERAL CONSTRUCTION CERTIFIED WBE CONTRACTORS ATLAS PAINTING, INC.* 911 Sycamore Street P.O. BOX 65 Waterloo, IA 50704 Phone: (319) 232-9164 Specializing in: COMMERCIAL AND INDUSTRIAL PAINTING PETERMAN & HAES CARPET ONE* 4003 University Waterloo, IA 50701 Phone: (319) 233 -6131 Fax: (319) 233-6133 Certified: City of Waterloo WBE Email: JR11486@cfu.net Contact: Carol Reese Specializing in: FLOOR COVERING * DENOTES WOMEN BUSINESS ENTERPRISE STATEMENT OF BIDDERS QUALIFICATIONS Page 1 of 2 STATEMENT OF BIDDER’S QUALIFICATIONS (To be submitted by the Bidder only upon the specific request of the City of Waterloo, Iowa.) All questions must be answered, and the date given must be clear and comprehensive. This statement must be notarized. If necessary, questions may be answered on separate attached sheets. The Bidder may submit any additional information he desires. 1. Name of bidder. 2. Permanent main office address. 3. When organized. 4. If a corporation, when incorporated. 5. How many years have you been engaged in the contracting business under your present firm or trade name? 6. Contracts on hand: (Schedule these, showing amount of each contract and the appropriate anticipated dates of completion.) 7. General character of work performed by your company. 8. Have you ever failed to complete any work awarded to you? If so, where and why? 9. Have you ever defaulted on a contract? If so, where and why? 10. List the more important projects recently completed by your company, stating the approximate cost for each, and the month and year completed . 11. List your major equipment available for this contract. 12. Experience in construction work similar in importance to this project. 13. Background and experience of the principal members of your organization, including the officers. 14. Credit available: $ . 15. Give bank reference: . 16. Will you, upon request, fill out a detailed financial statement and furnish any other information that may be required by the City of Waterloo, Iowa ? 17. The undersigned hereby authorizes and requests any person, firm, or corporation to furnish any information requested by the City of Waterloo, Iowa, in verification of the recitals comprising this Statement of Bidder’s Qualifications. STATEMENT OF BIDDERS QUALIFICATIONS Page 2 of 2 Dated at , this day of , 20_ _. (Name of Bidder) By: Title: State of ) County of ) ) ss: , being duly sworn deposes and says that he is of and that the answers to the (Name of Organization) to the foregoing questions and all statements therein contained are true and correct. Signature Subscribed and sworn to before me this day of , 20 . Notary Public My commission expires , . GENERAL SPECIAL PROVISIONS CONTRACT 1112 Page 1 of 4 GENERAL SPECIAL PROVISIONS 1. SCOPE OF WORK The work covered by this contract consists of furnishing all labor, equipment, and materials and performing all operations, in connection with THE F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST, CONTRACT NO. 1112, as shown on the contract drawings and in accordance with these specifications. The contract drawings, which accompany and form a part of this contract and specifications are dated July 31, 2024. They have the general title of Conceptual Shelter (Attachment A) 2. CONFLICTING SPECIFICATIONS All requirements of other specifications contained in the contract documents, which conflict with the provisions of the special provisions will be considered void. 3. DUMPING AREAS Excess material resulting from construction operations shall be hauled to the County Landfill or other area secured by the Contractor and approved by the City Engineer. Rubble, rubbish, trees, brush, and other unsuitable backfill material, as designated by the City Engineer, shall be hauled to the County Landfill. All Landfill charges are to be considered incidental to the contract and are the responsibility of the Contractor. 4. CONSTRUCTION DAMAGE The Contractor shall exercise care during construction operations to ensure the safety and protection to existing features located near or within the limits of construction. Damage caused by negligence or poor workmanship, as determined by the Engineer, shall be considered the Contractor's responsibility. GENERAL SPECIAL PROVISIONS CONTRACT 1112 Page 2 of 4 5. REMOVED MATERIALS All materials removed as part of this Contract shall remain the property of the City unless the City determines that the materials are not salvageable and the City does not want to retain ownership of the materials. Materials designated in the field by the Engineer as nonsalvageable shall be hauled and disposed of by the Contractor at no cost to the City. All other materials shall be transported to locations as directed by the Engineer. No separate measurement or payment will be made for hauling or disposing of removed materials and it shall be considered incidental to applicable items. 6. OVERHAUL Overhaul will not be paid for "surplus material" obtained from any of the items of construction under this contract. The cost of overhaul will be considered as incidental to the items to which it applies. 7. MAILBOXES/STOP SIGNS The Contractor shall notify the United States Postal Department of mailboxes, which interfere with any part of the work before removing them, and the Contractor will relocate them as required by the Postmaster. The removal and replacement of mailboxes will not be considered for direct payment but will be considered incidental to the item to which it applies. The removal and replacement of stop signs will not be considered for direct payment but will be considered incidental to the item to which it applies. 8. PAY ITEMS All pay items are listed in the proposal and shall include the purchase of all materials, delivery of these materials, and furnishing all labor, plant and miscellaneous work needed to make the item complete. All such cost shall be incidental to the proposed item to which it applies and shall not be considered for separate payment. 9. BREAKDOWN OF LUMP SUM CONTRACT PRICE ITEMS The Contractor shall, immediately upon execution and delivery of the contract, before the first estimate for payment is made, deliver to the City Engineer a detailed estimate giving a complete breakdown of the lump sum contract prices. The submitted breakdown shall be approved by the City Engineer prior to any payment of any lump sum price item. 10. PERMISSION TO HAUL OVER STREETS, RAILROADS AND HIGHWAYS The Contractor will be required to secure, from the proper authorities, permission or permit which may be required to haul over streets, highways, railroads or private property, and any hauling operations of the Contractor shall be subject to the requirements of such permits, permission, and to all applicable regulations, laws, and ordinances governing hauling and movement of equipment over streets, railroads, highways and private property. Any costs or inconvenience caused by obtaining any necessary permits or permission shall be considered completely covered by the price bid for the items in the proposal. 11. CONSTRUCTION SCHEDULING The City Engineer shall approve Contractor's work schedule prior to starting. All revisions shall also be approved. The City Engineer may change the schedule to accommodate changing construction conditions. The Contractor shall coordinate the work under this contract with contractors performing work under other contracts which may be performed concurrently. GENERAL SPECIAL PROVISIONS CONTRACT 1112 Page 3 of 4 The Contractor shall be responsible to notify the Police, Fire, Street and Engineering Departments of the closing and opening of streets. The Contractor shall commence work within ten (10) days after receipt of the "Notice to Proceed" and diligently execute the work of the contract to completion. 12. PRE-CONSTRUCTION CONFERENCE Before any work is started, the Contractor shall arrange with the City Engineer to hold a pre-construction conference to discuss problems and schedules of contracts. 13. UNDERGROUND UTILITIES It is the responsibility of the Contractor to obtain the location of gas lines, water lines, electric, telephone, and cable television cables or wires from the various utility companies and the City electrician before starting any excavation. The Contractor shall be responsible for any damage to any underground utilities. The Contractor shall expose those utilities indicated on the plans so that elevations may be determined before beginning construction. This work shall be considered incidental to other items of work. If the Contractor believes that additional costs have been incurred due to a utility being improperly located, the resolution of the additional costs incurred shall be made between the Contractor and the respective utility company. 14. TRAFFIC SIGNS AND STREET SIGNS The Contractor shall contact the City of Waterloo Traffic Operations Department to have any street sign that will be affected by construction removed and replaced when the work has been completed. 15. TRAFFIC CONTROL DURING CONSTRUCTION The Contractor shall, at his own expense and without further or other order, provide, erect and maintain, at all times during the progress and suspension of the work and until completion and final acceptance thereof, suitable and requisite barricades, signs or other adequate protection, as required by the latest edition of Part VI of the “Manual on Uniform Traffic Control Devices” and shall provide, keep and maintain such barricades, signs, etc., as may be required or as may be ordered by the Engineer, to ensure the safety of the public as well as those engaged on the work. All barricading plans shall be reviewed by the Engineer. The Contractor shall determine, provide and obtain approval from the City Engineer on all detour locations for all street closings, barricades and posting prior to construction. These shall meet requirements of the City Police Traffic Department. The Contractor shall notify the City Engineer's Office and the Police, Fire and Street Departments when the street is closed for construction. All barricading shall be in accordance with the latest edition of Part VI of the "Manual on Uniform Traffic Control Devices." Encapsulated lens sheeting is not required on this project. 16. GRADES, LINES, LEVELS AND SURVEYS All necessary grades, lines, levels and surveys shall be established and maintained by the Contractor. The Contractor shall verify all grades, lines, levels and dimensions as sown on the drawings, and he shall report any errors or inconsistencies in the same to the City Engineer before commencing work. 17. SAFETY OF WORKERS AND PUBLIC The Contractor shall, at all times, take necessary precautions to protect the life and health of all persons employed on this project and the public. He shall provide necessary safety devices and safeguards in GENERAL SPECIAL PROVISIONS CONTRACT 1112 Page 4 of 4 accordance with latest and best accident prevention practices. All such protection shall be furnished to employees without cost. No direct measurement of payment shall be made for this protection but shall be considered incidental to other items of work. The public shall be kept outside of any work area. 18. WORKING ON SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS The Contractor shall notify the Engineer in writing forty-eight (48) hours in advance if work on Saturday is planned. By noon the Friday before the planned Saturday work, the Contractor shall confirm the Saturday work schedule with the project inspector. Work on Sunday requires prior approval of the Engineer in accordance with the Waterloo Standard Specifications. The Contractor shall not work the following days in 2024 due to City holidays: o January 1, 2024 o January 15, 2024 o May 27, 2024 o June 19, 2024 o July 4, 2024 o September 2, 2024 o November 11, 2024 o November 28, 2024 o November 29, 2024 o December 24, 2024 o December 25, 2024 o January 1, 2025 GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 Page 1 of 10 GENERAL SPECIFICATIONS FOR CONSTRUCTION CITY OF WATERLOO, IOWA Department of Engineering SECTION A - Definitions of Terms SECTION B - Scope of work SECTION C - Control of Materials and Work SECTION D - Procedure and Progress SECTION E - Measurements and Payments SECTION F - Legal Relations and Responsibility SECTION A - DEFINITIONS OF TERMS 1. CITY. The City of Waterloo, Iowa, which is the Party of the First Part of the accompanying contract, acting through its authorized representative. 2. COUNCIL. The duly elected Council of the City of Waterloo, Iowa . 3. ENGINEER. The City Engineer of Waterloo, Iowa, or his authorized representative. 4. INSPECTOR. The authorized representative of the Engineer, assigned to the detailed inspection of the work or materials therefor and to such other duties as may be delegated to him in these specifications. 5. CONTRACTOR. The Party of the Second Part in the accompanying contract for the improvement covered by these specifications, or his authorized representative. 6. SUBCONTRACTOR. Any person, firm, or corporation who has, with the approval of the Council, contracted with the Contractor to execute and perform in his stead all or any part of the contract. 7. BIDDER. Any individual, firm, or corporation submitting a proposal for all, or a part of the work provided for in these specifications. 8. PROPOSAL GUARANTEE. The security designed in the Notice of Bidders or Proposal to be furnished by the bidder as a guarantee of good faith to enter into a contract and furnish an acceptable bond for the work contemplated if it be awarded him. 9. SURETY. The corporate body bound with and for the Contractor for the acceptable performance of the contract. 10. PROPOSAL. The written Proposal, submitted by the bidder in the prescribed manner and on the standard form, for the improvements covered by these specifications. 11. SPECIFICATIONS. The documents that set forth the manner in which the proposed work is to be accomplished which have been prepared by the Engineer and approved by the City Council, official copies of which are now on file with the City Clerk. 12. SPECIAL PROVISIONS . Clauses or memoranda not contained herein, applying to the contract of which these specifications are a part, which change or supplement these specifications. GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 Page 2 of 10 13. CONTRACT. The agreement entered into between the City and the Contractor, setting forth the terms under which the work covered by the plans and specifications is to be performed. The contract includes all conditions, definitions, and instructions set forth in the official publications relating to the work, the official contract and specifications, the Proposal, official plans, and all supplemental agreements entered into by the parties to the contract. 14. NOTICE TO BIDDERS. The notice called attention of bidders to the time and place for receiving bids, containing a brief description of the work, and briefly setting forth the requirements and conditions for submission of Proposals. 15. INSTRUCTIONS TO BIDDERS. The clauses setting forth in detail the information relative to the proposed work and requirements for the submission of Proposals. 16. PLANS. The plans for the improvement covered by the specifications and approved by the Council, official copies of which are on file with the City Clerk. 17. CONTRACT BOND . The bond executed by the Contractor and his surety in favor of the City of Waterloo, Iowa, guaranteeing the complete execution of the contract in accordance with the plans and specifications, the payment of all debts pertaining to the work, and maintenance of the work as provided by law or by the specifications. 18. CONTRACT PERIOD. The period from the specified date for beginning the work to the specified date of completion, both dates inclusive. The contract period may be extended by the Council, as provided in these specifications, in which event the contract period includes the new date of completion. 19. OFFICIAL PUBLICATIONS. The official publications are the formal resolutions and notices relative to the proposed improvement that are required by law to be published in a prescribed manner and that have actually been published in accordance with the statutes relating thereto. Attention is directed to the fact that these official publications are by statute vested with all of the force and effect of contract obligations. 20. A.S.T.M. Abbreviation for American Society for Testing Materials . 21. WORK. The term "Work" of the Contractor and Subcontractor includes labor or materials or both, equipment, transportation, or other facilities necessary to complete the contract. 22. TIME. All time limits stated in the contract documents are of the essence in the contract. SECTION B - SCOPE OF WORK 1. CORRELATION AND INTENT OF DOCUMENTS. The Contract documents are complementary, and what is called for by any one shall be as binding as if called for by all. The intention of the documents is to include all labor, materials, equipment, and transportation necessary for the proper execution of the work. Materials or work described in words which, so applied, have a well-known technical or trade meaning shall be held to refer to such recognized standard. 2. DRAWINGS AND SPECIFICATIONS. Unless otherwise provided in the contract documents, the engineer shall furnish to the Contractor, free of charge, all copies of drawings and specifications reasonably necessary for the execution of the work. GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 Page 3 of 10 The Contractor shall keep one (1) copy of all drawings and specifications on the work available to the Engineer and to his representatives. 3. CONTRACTOR’S UNDERSTANDING. It is understood and agreed that the Contractor has, by careful examination, satisfied himself as to the nature, character and location of the work, the conformance to the ground, the character, quality, and quantity of the materials to be encountered, the character of the equipment and facilities needed preliminary to and during the prosecution of the work, the general and local conditions, and all other matters which can, in any way, affect the work under this contract. No verbal agreement or conversation with any officer, agent, or employee of the City, either before or a fter the execution of the Contract, shall affect or modify any of the terms or obligations herein contained. 4. REPORTING ERRORS AND DISCREPANCIES . If the Contractor, in the course of the work, finds any discrepancies between the plans and the physical conditions of the locality, or any errors of omission in plans or in the layout as given by said stakes and instructions, it shall be his duty to inform the Engineer immediately, in writing, and the Engineer shall promptly correct the same. 5. ALTERATION OR CORRECTION OF PLANS . The plans are made up from surveys that are presumably correct and represent the foreseen construction requirements. Any modification of the plans which may be required by the exigencies of the construction or any corrections made necessary because of errors in the original surveys, will be made by the Engineer. Should corrections or modifications of the plans or specifications require a different quality or class of work than that upon which the unit prices in the Proposal are based, or if the modifications or corrections are required in parts of the work partially completed and such modifications result in an increased cost to the Contractor, the amount to be paid for work resulting from such changes shall be agreed u pon in writing at the time the changes are ordered and before the work is begun by the Contractor. No allowance will be made for anticipated profits on work not performed. 6. CHANGES IN THE WORK. The City, without invalidating the contract, may order extra work or make changes by altering, adding to, or deducting from the work, the contract sum being adjusted by agreement or in accordance with the dispute resolution procedures identified herein such changed work is undertaken. All such work shall be executed under the conditions of the original contract, except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change . 7. INCREASED OR DECREASED QUANTITIES. The right is reserved without impairing the contract, to order the performance of such work of a class not contemplated in the Proposal or to increase or decrease the quantities as may be considered necessary to complete fully and satisfactorily the work included in the contract. However, when the work is completed without change in the plans, and the measured quantity of any item of work varies by more than twenty percent (20%) from the estimated quantity specified in the contract, an adjustment in price may be made for such item of work by agreement between the Engineer and the Contractor, subject to the approval of the City Council. Party to the contract may request such an adjustment. 8. LANDS AND RIGHT OF WAY. The City shall provide the lands upon which the work under this contract is to be done, except that the Contractor shall provide land required for the erection of temporary construction facilities and storage of his material, together with the right of access to same. 9. CITY WATER. The Contractor shall be allowed to use City Water but before any water is used, he shall make application to the Waterloo Water Works for a temporary water connection from a fire hydrant or by some other connection method. Water usage will be charged at the rate for temporary water service. The rules, regulations, and water rates are available at GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 Page 4 of 10 the Waterloo Water Works offices at 325 Sycamore Street or their telephone number is 319 -232- 6280. 10. RIGHTS OF VARIOUS INTERESTS . Whenever work being done by the City’s forces or by other Contractors is contiguous to work covered by this contract, the respective rights of the various interests involved shall be established by the Engineer to secure the completion of the various portions of the work in general harmony. 11. CLOSING STREETS TO TRAFFIC. The Engineer shall be the judge of how many streets or parts of streets it is necessary for the Contractor to close at any time and may refuse to permit the closing of additional streets until such of the work is finished and opened to traffic as he may direct. 12. OBSTRUCTION OF STREETS. The work is to be carried on in such manner as to obstruct the streets, highways, and alleys as little as possible. The Contractor shall carry on the different parts of the work so as to complete the whole, as nearly as practicable, at the same time. In doing the work, the Contractor shall follow the directions of the Engineer as to the place or places where work shall be started or be carried on and the direction in which it shall be done. 13. SHANTIES AND BUILDINGS. Shanties or other buildings shall not be erected in or upon any street, highway, or alley without permission of the Engineer. If such permission be granted, it may be upon any reasonable terms prescribed by the person or body granting such permission. 14. SANITARY CONVENIENCES. The Contractor shall furnish the necessary sanitary conveniences, properly secluded, for the laborers on the work, and these shall be maintained in a manner that will be inoffensive to the public. 15. CLEANING UP. The Contractor shall, as directed by the Engineer, remove from the City’s property and from all public and private property, at his own expense, all temporary structures, rubbish, and waste materials resulting from his operations before work can be considered completed. The Contractor shall also renew or replace any and all fences, sidewalks, or other property damaged or disturbed by his work. 16. OMISSION OF PARTS OF GENERAL SPECIFICATIONS . Parts of the General Specifications deemed not to apply to some particular work may be omitted by special reference in other parts of the contract documents. SECTION C - CONTROL OF MATERIALS AND WORK 1. SUPERVISION AND INSPECTION. The Engineer shall have supervision of the construction provided for in this Contract and shall decide any and all questions which may arise as to the quality and acceptability of materials furnished, work performed, manner of performance, rate of progress on the work, and all questions regarding the acceptable fulfillment of the terms of the Contract. Materials and construction work shall, at all times, be subject to the inspection of the Engineer or his representatives. The Contractor shall be held strictly to the true intent of these specifications as regards the quality of materials, workmanship, and the diligent prosecution of the work. The Engineer and his representatives shall, at all times, have access to the work wherever it is in preparation of progress, and the Contractor shall provide proper facilities for such access and for inspection. GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 Page 5 of 10 If the specifications, the Engineer’s instructions, law ordinances, or any public authority require any work and/or materials to be especially tested or approved, the Contractor shall give the Engineer timely notice of readiness for inspection. If the inspection is to be made by authority other than the Engineer, the Contractor shall notify the engineer of the date fixed for inspection. Inspections by the Engineer will be promptly made and, where practicable, at the source of supply. If any work should be covered up without the approval or consent of the Engineer, it must, if required by the Engineer, be uncovered for examination at the Contractor’s expense. Re-examination of questioned work may be ordered by the Engineer, and, if so ordered, the work must be uncovered by the Contractor. If such work be found in accordance with the Contract, the City shall pay the cost of re -examination and replacement. If such work be found not in accordance with the Contract, the Contractor shall pay such cost unless he shall show that the defect in the work was caused by another Contractor, and, in that event, the City shall pay the cost. 2. AUTHORITIES AND DUTIES OF INSPECTORS . Inspectors may be stationed on the work to report to the Engineer as to the progress of the work and the manner in which it is being performed; also, to report whenever it appears that materials furnished and work performed by the Contractor fail to fulfill the requirements of the specifications and Contract, and to direct the attention of the Contractor to such failure or infringement; but such inspection shall not relieve the Contractor from any obligations t o furnish acceptable materials or to provide completed construction that is satisfactory in every particular. In case of any dispute arising between the Inspector and the Contractor as to materials furnished or the manner of performing the work, the Inspector shall have the authority to reject materials or suspend the work until the question at issue can be referr ed to and decided by the Engineer. Inspectors are not authorized to revoke, alter, enlarge, relax, or release any requirements of these specifications. The Inspector shall, in no case, act as foreman or perform other duties for the Contractor, or interfere with the management of the work by the latter. 3. STATUS OF THE ENGINEER . The Engineer shall have general supervision and direction of the work. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract. He shall also have authority to reject any work and/or materials which do not conform to the specifications, to direct the application of forces to any portion of the work as, in his judgment, is required, and to order the force increased or diminished, and to decide questions which arise in the execution of the work. 4. ENGINEER’S DECISIONS. The Engineer shall, within a reasonable time, make decisions on all claims of the Contractor and on all other matters relating to the execution and progress of the work or the interpretation of the contract documents. All such decisions of the Engineer shall be final except as to the element of time and financial consideration involved, which, if no agreement in regard thereto is reached, shall be subject to the dispute resolution procedures identified herein . 5. STAKES AND INSTRUCTIONS. The Contractor shall provide reasonable and necessary opportunities and facilities for setting stakes and making measurements. The Contractor shall not furnish stakes or men to set them. He shall not proceed until he has received from the Engineer such stakes and instructions as may be necessary to the progress of the work. The Contractor shall carefully preserve bench marks , reference points, and stakes, and in case of willful or careless destruction, he shall be charged with the resulting extra expense and shall be responsible for any mistakes that may be caused, by their loss or disturbance. GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 Page 6 of 10 6. SUPERINTENDENCE . The Contractor shall keep on his work during its progress a competent superintendent and any necessary assistants, all satisfactory to the Engineer. The Superintendent shall not be changed except with the consent of the Engineer, unless the Superintendent proves to be unsatisfactory to the Contractor and ceases to be in his employ. The Superintendent shall represent the Contractor in his absence, and all directions given to him shall be as binding as if given to the Contractor. Important decisions shall be confirmed in writing to the Contractor. Other directions shall be so confirmed on written request in each case. The Contractor shall give efficient supervision to the work using his best skill and attention. He shall carefully study and compare all drawings, specifications, and other instructions, and shall report at once to the Engineer any error, inconsistency, or omission which he may discover. 7. REMOVAL OF UNAUTHORIZED WORK. Work done without lines and grade being give, work done beyond lines shown on the plans or as given, except as herein provided, or any extra or additional work done without authority, will be considered as unauthorized and at the expense of the Contractor and will not be paid for under the provisions of the Contract. Work so done may be ordered removed and replaced at the Contractor’s expense. 8. REMOVAL OF DEFECTIVE MATERIALS OR WORK . The Contractor shall promptly remove from the premises all materials condemned by the engineer as failing to conform to the Contract; whether incorporated in the work or not, and the Contractor shall promptly replace and re-execute his own work in accordance with the contract and without expense to the City, and shall bear the expense of making good all work of other Contractors destroyed or damaged by such removal or replacement. If the Contractor does not remove such condemned work and materials within a reasonable time, fixed by written notice, the City may remove them and may store the material at the expense of the Contractor. If the Contractor does not pay the expense of such removal within a reasonable time thereafter, the City may, upon ten (10) days’ written notice, sell such materials at auction or at private sale and shall account for the net proceeds thereof, after deducting all the costs and expense that should have been borne by the Contractor; or, if the net proceeds of such sale are insufficient to pay the expenses of removal, the City may deduct the balance from any amounts due the Contractor. 9. MATERIALS, EQUIPMENT, APPLIANCES, AND FACILITIES . Unless otherwise stipulated, the Contractor shall provide and pay for all materials, labor, water, tools, equipment, light, power, transportation, and other facilities necessary for the execution and completion of the work. Materials shall be of the quality specified for each particular part of the work. Whenever, in construction of the work or in the manufacture of any article of appliance necessary for the construction or operation of the work, it is necessary to use any material that is not fully specified in these specifications, it shall be of good quality and shall meet with the approval of the Engineer. Any appliance that is necessary for the construction or operation of the work and is commonly recognized as a part of the work, shall be furnished by the Contractor as part of the work, whether or not it is specifically called for in the plans and specif ications, and such appliance shall be of good quality and standard make and shall meet with the approval of the Engineer. 10. MATERIAL SAMPLES. Before the contract is awarded, the bidder may be required to furnish a statement of the origin, composition, and manufacture of any and all materials proposed for use in the performance of the Contract, together with samples of the material. These samples will be considered as representative and typical of the material to be obtained from any particular source. GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 Page 7 of 10 11. CHARACTER OF WORKMEN AND EQUIPMENT. The Contractor shall employ competent and efficient workmen for every kind of work. Any person employed on the work who shall refuse or neglect to obey the directions of the engineer or Inspector, or who shall be deemed incompetent or disorderly, or who shall commit trespass upon public or private property in the vicinity of the work, shall be dismissed when the Engineer so orders, and shall not be re-employed unless express permission be given by the Engineer. The Contractor shall, at all times, enforce discipline and good order among his employees. The methods, equipment, and appliances used on the work, and the labor employed, shall be such as will produce a satisfactory quality of work and shall be adequate to complete the contract within the specified time limit. 12. HIRING CITY EMPLOYEES. The Contractor shall not employ and hire any of the City’s employees without the permission of the Engineer. 13. LABOR. Local labor shall be given preferences so far as practicable. 14. THE CITY’S RIGHT TO DO WORK. If the Contractor should neglect to prosecute the work properly or fail to perform any provision of this Contract, the City of Waterloo, after three (3) days’ written notice to the Contractor may, without prejudice to any other remedy he may have, make good such deficiencies and may deduct t he cost thereof from the payment then or thereafter due the Contractor, provided, however, that the Engineer shall approve both such action and the amount charged to the Contractor. SECTION D - PROCEDURE AND PROGRESS 1. ORDER OF COMPLETION - USE OF COMPLETED PORTIONS. The Contractor shall complete any portion or portions of the work in such order or time as the Engineer may require. The City shall have the right to take possession of a use completed or partially completed portion of the work at any time, but such taking possession and use shall not be deemed an acceptance of work so taken or used, or any part thereof. If such prior use increases the cost of or delays the work, the Contractor shall be entitled to such extra compensation or extension of time, or both, as the Engineer may determine. 2. WEATHER. During stormy or inclement weather, all work shall be suspended, except such as can be done in an acceptable manner. Permission to work during freezing, stormy, or inclement weather shall in no way be construed as a release of the Contractor’s responsibi lity regarding the quality of the finished work at such time. 3. SUNDAYS AND LEGAL HOLIDAYS. Except for such work as may be required to properly maintain or protect completed or partially completed construction or to maintain lights and barricades, no work will be permitted on Sundays or legal holidays without specific permission of the Engineer. 4. DELAYS AND EXTENSION OF TIME. If the Contractor be delayed in the completion of the work by an act of neglect of the City, or its employees; or by any other Contractor employed by the City; or by changes ordered in the work; or by strikes, lockouts, fire, unusual delays in transportation, unavoidable casualties, or any cause beyond the Contractor’s control; or by delay authorized by the Engineer pending dispute resolution procedures; or by any cause which the Engineer shall decide justifies the delay, then the time of completion shall be extended for such reasonable time as the Engineer may decide will compensate for such delay. GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 Page 8 of 10 No such extension shall be made for delay occurring more than thirty (30) days before claim therefor is made in writing to the Engineer. In the case of a continuing cause of delay, only one claim is necessary. This article does not exclude the recovery of damages for delay by either party under provisions in the contract documents. 5. TEMPORARY SUSPENSION OF WORK. The Engineer shall have authority to suspend the work, wholly or in part, for such period or periods of time as he may deem necessary, due to unsuitable weather or such other conditions as are considered unfavorable for the suitable prosecution of the work, or for such time as is necessary due to the failure to the Contractor to carry out orders given or to perform any or all provisions of the Contract. 6. NOTICES - HOW SERVED. Any notice to be given by the City to the Contractor under this contract shall be deemed to be served if the same be delivered to the man in charge of any office used by the Contractor or his foreman or agent at or near the work, or deposited in the post office, postpaid, addressed to the Contractor at his last known place of business. 7. PROGRESS OF WORK. The progress of the work shall be such that, at the expiration of one-fourth (1/4) of the contract period, one-eighth (1/8) of the work shall be completed; at the expiration of one-half (1/2) of the contract period, three-eighths (3/8) of the work shall be completed; at the expiration of three -fourths (3/4) of the contract period, the work shall be three-fourths (3/4) completed, and the whole work shall be completed at the expiration of the contract period. If, at any time the above schedule is not being maintained, the Council may give written notice to the Contractor and his sureties that the specifications are not being complied with. Such notice shall state what action on the part of the Contractor is req uired to bring the work within the requirements of the specifications. If the Contractor fails, within ten (10) days, to proceed as directed in the said notice, then the Council shall have authority to annul this contract without process or action at law a nd take over the prosecution and completion of the work, as provided under the article covering City’s right to terminate contract. 8. CITY’S RIGHT TO TERMINATE CONTRACT. If the Contractor should be adjudged a bankrupt; or if he should make a general assignment for the benefit of this creditor; or if a Receiver should be appointed on account of his insolvency; or if he should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough skilled workmen or proper materials; or if he should fail to make prompt payment to Subcontractors or for materials or labor; or if he should persistently disregard laws, ordinances, or the instructions of the Engineer; or if he should otherwise be guilty of a substantial violation of any provision of the contract, then the City, upon the certificate of the Engineer that sufficient cause exists to justify such action, may, without prejudice to any other rights or remedy, and after giving the Contractor seven (7) days’ written notice, terminate the employment of the Contractor and take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method he may deem expedient. In such cases, the Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the contract price shall exceed the expenses of finishing the work, including compensation for additional managerial and administration services, such excess shall be paid to the Contractor. If such expense of finishing the work shall exceed such unpaid balance, the Contractor shall pay the difference to the City. The expense incurred by the City as herein provided and the damage incurred through the Contractor’s default shall be certified by the Engineer. GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 Page 9 of 10 9. REMOVAL OF EQUIPMENT . In the case of annulment of this contract before completion, from any cause whatsoever, the Contractor, if notified to do so by the City; shall promptly remove any part or all of his equipment and supplies from the property of the City, failing which, the City shall have the right to remove such equipment and supplies at the expense of the Contractor. SECTION E - MEASUREMENTS AND PAYMENT 1. STANDARD OF MEASUREMENT. All work completed under the contract shall be measured by the Engineer according to the United States standard measures. 2. SCOPE OF PAYMENTS. The Engineer’s measurements of quantities shall be the basis for final payment for the work performed under this Contract. After the work is completed, the Engineer will make measurements and computations of the number of units of each of the various items of work completed, and the Contractor will be paid for the actual amount of work performed at the rates specified in his Proposal. Before final settlement is made, the Council may require the Contractor to submit a list of all persons furnishing labor or materials, with evidence that such persons have been paid in full. Payment shall be made in the manner set forth in official publications and Council Proceedings relative thereto. 3. PAYMENT FOR EXTRA WORK. Such extra work as may have been ordered by the Engineer and performed by the Contractor shall be compensated for as provided herein. If work is to be done or materials are to be furnished by the Contractor which cannot properly be classified under unit prices included in the Proposal, the Contractor shall be paid therefor the actual reasonabl e cost of the labor and materials entering permanently in such work, plus fifteen percent (15%) of the cost thereof. In computing the labor cost on such extra work, the following items shall be included: (a) Actual payroll expenditures for labor at the current rate therefor, and cost of materials. (b) Pay of foreman and timekeepers for actual time required on the extra work. (c) Liability insurance, prorated, for the extra work . Labor cost items on extra work shall be furnished in duplicate by the Contractor to the Inspector daily. The Inspector shall check the items, and if he finds them to be correct, he shall so certify on the statement of cost, returning one copy to the Contractor and filing one copy with the Engineer. The Engineer shall determine the cost of materials entering into extra work from the materials and receipted freight bills for the same. For any special machine, power tools, or equipment, including fuel and lubricants, but not including small hand tools, which may be deemed necessary or desirable to use, the Contractor shall be allowed a reasonable rental thereon, to be agreed upon in writing by the Engineer before such work is begun, and to which sum no percentage is to be added. The item of cost shall not include repairs or replacement of equipment or overhead expenses of any character. The fifteen percent (15%) allowed is considered to cover the use of hand tools and all overhead expenses except liability insurance. GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 In no case will a claim for extra compensation be allowed unless the work upon which the claim is based has been ordered in writing, except as provided hereinafter. 4. CLAIMS FOR EXTRA COST . If the Contractor claims that any instructions, by drawings or otherwise, involved extra cost under this contract, he shall give the Engineer written notice thereof within ten (10) days after completion of the work. No such claim shall be valid unless so made. 5. CLAIMS FOR EXTRA COMPENSATION . If the Contractor deems that extra compensation is due him for work and/or materials that he considered is not clearly covered in the items for which he submitted unit prices in his bid and that were not ordered in writing by the Engineer as an extra heretofore provided, the Contractor shall notify the Engineer, in writing, of his intention to make claim for extra compensation for work and/or material before starting construction. If such written notification is not gi ven or the Engineer is not afforded proper facilities by the Contractor for keeping strict account of actual cost as defined herein, then the Contractor hereby agrees to waive the claim for extra compensation. Such notice to the engineer and the fac t that the Engineer has kept account of cost as aforesaid, shall not in any way be construed as proving the validity of the claim, which must be passed upon by the Council. In the event that the Council finds the claim to be just, it shall be allowed and paid for as extra work as provided herein. 6. COMPLETION REPORT AND OBJECTIONS THERETO. Within ten (10) days after the full completion of the work to be done under this contract, the Engineer shall make a written statement of all the work done by the Contractor hereunder, stating the quantity of each item as found by him and including a statement of all credits for extra work and all credits or debits for changes, alterations, omissions, and defects, and shall forthwith deliver a copy of such statement to the Contractor. The Contractor shall compare such statement with his own records and shall then, in writing, either approve such statement or point out any claimed errors or omissions. If any of such claims are found correct, the Engineer shall, within ten (10) days, prepare a new statement, a copy of which shall in like manner be delivered unto the Contractor. The Engineer will not file a formal completion report with the City until the Contractor has approved the same. If the figures of the Engineer and the Contractor cannot be reconciled, or there is a difference of opinion regarding some item or items, then such difference of opinion shall be submitted to the dispute resolution procedures as hereinafter provided, and such resulting decision shall be final, and the Engineer shall, within a period of five (5) days thereafter, file his completion report. Before action by the City Council upon such completion report, the Contractor shall also file a written statement of any claims he may have against the City, other than those shown by such completion report, growing out of this contract or the work done he reunder. The City shall retain five percent (5%) of the amount due the Contractor on the completion report for a period of thirty (30) days. If no claims are filed against the Contractor within thirty (30) days, the final five percent (5%) shall then be paid to the Contractor. 7. WAIVER. By the execution of this contract ,the Contractor agrees that any objections he may have to the statement of the amount of work done hereunder included by the Engineer in this completion report, and any claims of the Contractor against the City growing out of this contract and the work done hereunder which are not stated in writing in the manner and within the time provided in Section E hereof, shall be waived, and no such claim shall thereafter be asserted against the City. GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 SECTION F - LEGAL RELATIONS AND RESPONSIBILITIES 1. LAWS RELATING TO WORK. The Contractor is presumed to be familiar with all laws, ordinances, and regulations which may, in any manner, affect those engaged or employed upon the work or the materials or equipment used in or upon the work, and shall conduct the work so as not to conflict with such laws, ordinances, and regulations. 2. PROTECTION OF WORK AND PROPERTY. The Contractor for any part of the improvement shall be held responsible for the care of materials and of partially completed and completed work until final acceptance of the same by the Council. He will be required to make good at his own expense any damage which the work may sustain f rom any cause prior to the filing of the engineer’s certificate of completion. He shall take all risk from floods and casualties of every description and make no charge for delay due to such c ause. He may, however, be allowed a reasonable extension of time on account of such delays. He shall correct or make good at his own expense all damages to adjacent property due to the acts or negligence of his employees of the prosecution of his work, and save the City harmless therefor. The Contractor shall be held liable and responsible for all damages done to water, sewer, drain, or other underground pipes and structures, and to sidewalks and private property. 3. RESPONSIBILITY FOR ACCIDENTS . The Contractor shall assume full responsibility for all damages sustained by persons or property due to the carrying on of his work until final acceptance thereof, or until released by the Engineer in writing. 4. LIABILITY INSURANCE. The Contractor shall carry liability insurance which shall save the City harmless and protect the public and any person from injury sustained by the reason of the prosecution of the work or the handling or storing of materials therefor and said Contractor shall also carry liability insurance which shall meet the requirements of the Iowa Worker’s Compensation Law. Before work shall be started on this contract, the Contractor shall furnish the City Clerk with proper affidavit or Affidavits executed by representatives of duly qualified insurance companies, evidencing that said insurance company or companies have iss ued liability insurance policies, effective during the life of the contract, or for a period of a least ten (10) days following the filing of written notice of cancellation, protecting the public and any person from injuries or damages sustained by reason of carrying on the work involved in the Contract. The affidavit shall specifically evidence the following forms of insurance protection: (a) Public liability insurance covering all operations performed by persons directly employed by the Contractor. (b) Public liability insurance covering all operations performed by any Subcontractor to whom a portion of the work may have been assigned. (c) Public liability insurance covering all work upon the project performed by any independent Contractor working under the direction of either the principal Contractor or a Subcontractor. (d) Motor vehicle bodily injury liability insurance and property damage liability insurance on all motor vehicles employed on the work, whether owned by the Contractor or by other persons, firms, or corporations. (e) The minimum protection shall be as follows: GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 Comprehensive General Liability Insurance General Aggregate Limit $ 5,000,000.00 Products—Completed Operations Aggregate Limit $ 5,000,000.00 Each Occurrence Limit $ 5,000,000.00 Comprehensive Automobile Liability Insurance $ 1,000,000.00 The Contractor shall have the City of Waterloo, Iowa, named as an "Additional Named Insured" and it must be stated on the certificate. Coverage shall be written on a primary and non - contributory basis and shall include a waiver of subrogation in favor of the City of Waterloo . A certificate, or a policy if requested, shall be filed with the Owner. All certificates and/or policies of insurance furnished by the Contractor to be filed with the City Clerk shall include the name and address of the agency issuing the same. It shall also be required that the City Clerk be notified by registered mail of the cancellation or expiration of the above insurance. To the fullest extent permitted by law the Contractor shall defend, indemnify, and hold harmless the City and the Engineer and their agents, representatives, officers and employees (“Indemnitees”) from and against all claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from or in connection with the performance of the Work, provided that any such claim, damage, loss or expense is caused in whole or in part by any act or omission of the Contractor, anyone directly or indirectly employed by it or anyone for whose acts any of them may be liable. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity or contribution which would otherwis e exist as to any party or person described in the Contract Documents. In any and all claims against the Owner or Engineer or any of their agents, officers or employees by any employee of the Contractor, any Subcontractor, any person directly or indirectly employed by any of them or anyone for whose acts may be liable, the in demnification obligation under this Subsection 4 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Subcontractor under workers’ compensation acts, disability benefit acts or other employee benefit acts. All policies shall be in form and with insurance carriers acceptable to the City of Waterloo. Each such policy shall provide that thirty (30) days’ prior written notice of cancellation must be given to City before cancellation of the policy will be effective. Contractor will take all steps required to prevent all such insurance from lapsing or being canceled. 5. BARRICADES AND SIGNS. The Contractor shall, at his own expense and without further or other order, provide, erect, and maintain, at all times during the progress and suspension of the work and until completion and final acceptance thereof, suitable and requisite barricades, signs, or other adequate protection, as required by the latest edition of the "Iowa Manual on Uniform Traffic Control Devices for Streets and Highways" and shall provide, keep, and maintain such barricades, signs, etc., as may be require d or as may be ordered by the City Engineer, to insure the safety of the public as well as those engaged on the work. All barricading plans shall be approved by the City Engineer. 6. ROYALTIES AND PATENTS. The Contractor shall pay all royalties and license fees. He shall defend all suits or claims for infringement of any patent rights and shall save the City harmless from loss on account thereof, except that the City shall be responsible for all such GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 loss when a particular process or the product of a particular manufacturer is specified. 7. PERMITS AND REGULATIONS. Permits and licenses of a temporary nature for the prosecution of the work shall be secured and paid for by the Contractor. Permits, license, and easements for permanent changes in existing facilities shall be secured and paid for by the City. 8. CLAIMS FOR DAMAGES. Any claim for damages arising under this Contract shall be made in writing to the party liable within a reasonable time of the first observance of such damage and no later than the time of final payment, except as expressly stipulated otherwise in the case of faulty work or materials and shall be adjusted by agreement or by dispute resolution procedures as identified herein. The Contractor shall be held for the payment of all just claims against him arising out of the prosecution of this contract, and his bond will not be released until such claims are paid or dismissed. 9. ASSIGNMENT OF CONTRACT . The Contractor shall not sell or assign the contract or sublet any portion of the work provided for therein without the written consent of the City Council. 10. SUBCONTRACTORS. The Contractor shall, as soon as practicable after the signature of the contract, notify the Engineer in writing of the names of the Subcontractors proposed for the work and shall not employ any that the Engineer may, within a reasonable time, object to as incompetent or unfit. GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 The Contractor agrees that he is as fully responsible to the City for the acts and omission of his Subcontractors and of persons either directly or indirectly employed by them as he is for the acts and omissions of persons directly employed by him. Nothing contained in the contract documents shall create any contractual relation between any Subcontractor and the City. 11. DISPUTE RESOLUTION PROCEDURES. The parties shall endeavor to resolve their disputes by mediation which, unless the parties mutually agree otherwise, shall be administered in accordance with Iowa Code Chapter 679C, as amended. A request for mediation shall be made in writing and delivered to the other party to the Contract. The request may be made concurrently with the filing of binding dispute resolution proceedings but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be s tayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settleme nt agreements in any court having jurisdiction thereof. For any dispute not resolved by mediation, the method of binding dispute resolution shall be litigation in the Iowa District Court for Black Hawk County. In the event the City should prevail in any legal proceedings arising out of the performance or non - performance of this Contract, the Contractor shall pay, in addition to any damages, all expenses of such action including reasonable attorney's fees, all ex pert witness fees, costs, and litigation expenses incurred by the City, including those incurred on appeal. The terms “costs and expenses” are not limited to the costs and expenses traditionally taxed as court costs. The term “legal proceedings” shall be deemed to include any arbitration, administrative proceedings, and all appeals from any and all of the foregoing. 12. PERFORMANCE AND PAYMENT BONDS. The Contractor shall, at the time of execution and delivery of this contract and before the taking effect of same, furnish and deliver to the City written bonds of indemnity to the amount required by law in form and substance, and with GENERAL SPECS FOR CONSTRUCTION CONTRACT 1112 surety thereon satisfactory and acceptable to the City, to insure the faithful performance and payment by the Contractor of all the covenants and agreements on the part of the Contractor contained in this contract. These bonds shall remain in force and effect for the full amount of the Contract . These bonds shall remain in force and effect for the full amount of the Contract. The Contractor shall further provide a maintenance bond guaranteeing the maintenance of the contract improvements for a period of two (2) years from and after completion of said improvements and their acceptance by the City. 13. PERSONAL LIABILITY OF PUBLIC OFFICIALS . In carrying out any of the provisions of the Contract or in exercising any power or authority granted him thereby, there shall be no liability upon the Engineer or his authorized assistants, either personally or as an official of the City, it being understood that in such matters he acts as the agent and representative of the City. 14. JURISDICTION. Any action in Court against the Contractor or sureties on his bond because of damages to property or individuals by said Contractor or his workmen, or because of the violation of any provisions of the specifications, or on account of the failure of sa id Contractor to comply fully with these provisions, shall be brought in the District Court of the State of Iowa in and for Black Hawk County. 15. TERMINATION OF RESPONSIBILITY. The Contract shall be considered as completed and the Contractor released from further obligations except as to the requirements of his bond, after the work has been completed and finally accepted and final estimates have been allowed and the completion report of the engineer has been filed and approved by the Council. 16. CITY’S LEGAL RIGHTS. The City shall not be precluded by any measurements, estimate, or certificate made, either before or after the completion and acceptance of the work and payment therefor, from showing the true amount and character of the work performed and materials furnished by the Contractor, or from showing that any such measurement, estimate, or certificate is untrue or incorrectly made, or the work or materials do not, in fact, conform to the Contract. The City shall not be precluded, notwithstanding any such measurements, estimate, or certificate and payment in accordance therewith, from recovering from the Contractor and his surety such damages as it may sustain by reason of his failure to comply with the terms of the Contract. Neither the acceptance by the City or any of its representatives, nor any payment for or acceptance of the whole or any part of the work, nor any extension of time, nor any possession taken by the City, shall operate as a waiver on any portion of the contract or of any power herein reserved, or any right to damages herein provided. A waiver of any breach of the contract shall not be held to be a waiver of any other or subsequent breach. SUPPLEMENTAL GENERAL SPECIFICATIONS FOR CONSTRUCTION 1. SUBCONTRACTS The contractor shall cause appropriate provisions to be inserted in all subcontracts relative to the work to require compliance by each subcontractor with the applicable provisions of the contract for the improvements embraced in this contract. 2. REVIEW BY THE CITY OF WATERLOO The City of Waterloo, its authorized representatives and agents, shall at all times have access to and be permitted to observe and review all work, materials, equipment, payrolls, personnel records, employment conditions, material invoices, and other relevant data and records pertaining to this contract, provided, however, that all instructions and approval with respect to the work will be given to the contractor only by the City of Waterloo through its authorized representative or agents. 3. INSPECTION a. The contractor shall furnish promptly all materials reasonably necessary for any tests, which may be required. All tests by the City of Waterloo will be performed in such manner as not to delay the work unnecessarily and will be made in accordance with the provisions of the Technical Specifications. b. Inspection of materials and appurtenances to be incorporated in the improvements embraced in this contract may be made at the place of production, manufacture or shipment, whenever the quantity justifies it, and such inspection and acceptance, unless other wise stated in the Technical Specifications, shall be final, except as regards (1) latent defects, (2) departures from specific requirements of the contract, (3) damage or loss in transit, or (4) fraud or such gross mistakes as amount to fraud. Subject to the requirements contained in the preceding sentence, the inspection of materials as a whole or in part will be made at the project site. 4. WARRANTY OF TITLE No material, supplies, or equipment to be installed or furnished under this contract shall be purchased subject to any chattel mortgage or under a conditional sale, lease -purchase or other agreement by which an interest therein or in any part thereof is retained by the seller or supplier. The contractor shall warrant good title to all materials, supplies, and equipment installed or incorporated in the work and upon completion of all work, shall deliver the same together with all improvements and appurtenances constructed or placed thereon by him to the City of Waterloo free from any claims, liens, or charges. Neither the contractor nor any person, firm, or corporation furnishing any material or labor for any work covered by this contract shall have any right to a lien upon any improvement or appurtenance thereon. Nothing contained in this paragraph, however, shall defeat or impair the right of persons furnishing materials or labor to recover under any bond given by the contractor for their protection or any rights under any law permitting such persons to look to funds due the contractor in the hands of the City of Waterloo. The provisions of this paragraph shall be inserted in all subcontracts and material contracts and notice of its provisions shall be given to all persons furnishing materials for the work when no formal contract is entered into for such materials. SUPP GEN SPECS FOR CONSTRUCTION Page 1 of 1 FORM OF CONTRACT Page 1 of 4 FORM OF CONTRACT FOR THE CONSTRUCTION OF F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST CITY OF WATERLOO, IOWA CONTRACT NO. 1112 This contract made and entered into this day of , 20 , by and between the City of Waterloo, Iowa, a Municipal Corporation, (hereinafter referred to as City), and of, , (hereinafter referred to as Contractor), WITNESSETH: PAR. 1 Contractor agrees to build and construct the F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST , and furnish all necessary tools, equipment, materials, and labor necessary to do all the work called for in the plans and specifications in a workmanship like manner and for the prices set forth in Contractor's proposal, which was accepted by the City, and which is understood and agreed to be a part of this contract. PAR. 2 The term “Contract” means and includes the following: A. Notice of Public Hearing B. Notice to Bidders C. Instructions to Bidders D. Proposal E. Bid Bond F. Contract G. Performance Bond H. Payment Bond I. Maintenance Bond J. General Specifications for Construction K. Notice to Proceed L. Conceptual Shelter Layout M. Equipment Rack Elevations N. Estimated Power and Cooling Specifications O. Site Location P. Prefabrications Data Center Bid Specs It is expressly understood and agreed that in addition to the documents listed above, the Contract includes any engineering data which may be furnished by the Contractor and approved by the City, together with such additional Drawings which may be furnished by the Engineer from time to time as are necessary to make clear and to define in greater detail the intent of the Plans and Specifications. FORM OF CONTRACT Page 2 of 4 That several parts of the Contract are complementary, and what is called for by any one shall be as binding as if called for by all. The intention of the Contract is to include the furnishing of all materials, labor, tools, equipment and supplies necessary for completion of the contract obligations. Materials or work described in words which so applied have a well-known technical or trade meaning shall be held to refer to such recognized standards. In the event of a conflict between any of the contract documents, the Contractor is to provide the greater quantity and/or better quality, unless otherwise directed in writing by the City or Engineer. PAR. 3 The Contractor agrees to furnish at its own cost and expense, all necessary materials and labor for said work and to construct said improvements in a thorough, substantial, and workmanlike manner, and in strict accordance with the requirements of this contract, and of the plans and specifications made a part hereof by reference, and to the satisfaction and approval of the City and its engineer. PAR. 4 The Contractor agrees to perform said work and install said improvements on the terms set out in bid or proposal to the City which has been accepted by the City and which is by reference made a part of this contract. PAR. 5 The Contractor agrees to commence said work within ten (10) working days after receipt of “Notice to Proceed" and complete it on or before May 1, 2025 , unless an extension of time is granted in writing by the Council of the City. If the work is not completed within the specified contract period, plus authorized extensions, the Contractor shall pay to the City Liquidated Damages in the amount of one thousand dollars ($1,000.00) per day, for each day, as further described herein, in excess of the authorized time. PAR. 6 Should the Contractor fail to complete said improvements in strict accordance with the terms and conditions of this contract, or the plans and specifications therefor promptly by the date herein specified, the City may pay such additional sums as it may be required to pay by reason of the failure of said contractor and deduct any and all such sums from any amount then due the Contractor. PAR. 7 The Contractor agrees to comply with and obey all ordinances of the City of Waterloo, Iowa, relating to the obstruction of streets and alleys, keeping open passage ways for water, traffic, and protecting any excavations in any street or alley, and maintaining proper and sufficient barricades with lights and signals during all hours of darkness, to see that the backfilling is properly done, and agrees to keep the FORM OF CONTRACT Page 3 of 4 City whole and defend any and all suits that may be brought against the City by reason of any injuries that may be sustained by any person or property allegedly caused by the Contractor, or his agents, while work is done pursuant to this agreement. PAR. 8 The Contractor agrees that in the event a law suit is brought against the City for damages allegedly sustained by reason of any act, omission or negligence of the Contractor or its agents, or on account of any injuries allegedly sustained by reason of any obstruction, hole, depression or barrier placed or dug by the defendant or its agents, in the doing of the work herein contracted for, that it will defend said suit and save the City harmless therein, and in case judgment is rendered against the City, the Contractor agrees to pay the same promptly. The Contractor agrees to carry public liability insurance in a solvent company in a sufficient amount to protect the City and those who use the streets of the City. PAR. 9 The City shall have the right to appoint one or more construction reviewers who shall review the progress of the work in detail; also, to make any test or any material to be used in such work. No material shall be used in any work until the same has first been approved by the construction reviewer. Such construction reviewer shall have full authority to pass judgment upon all materials and upon the manner of doing the work, and their judgment on rejecting any materials, substance, or manner of work shall be final unless it is revoked or modified by the City Engineer. PAR. 10 Any material, which has been rejected by the construction reviewer, shall be at once removed from the line of work and shall not be again taken thereon or placed with the material proposed to be used without the written consent of the City Engineer. PAR. 11 The Contractor shall maintain no cause of action against the City on account of delays and prosecution of work, but if said work is delayed by the City, the Contractor shall have such extra time for completion of the job as was lost by reason of the delay caused by the City. PAR. 12 The Contractor agrees to pay punctually all just claims of labor, material, men, or subcontractors who shall perform labor or furnish materials entering into this improvement. It is agreed that the City need not pay the Contractor until all such claims are paid by the Contractor. It is agreed that the City shall not be liable for said labor, material, or men under this contract. PAR. 13 The Contractor agrees to furnish the City, simultaneously with this contract, a bond on a form to be provided by the City in the amount provided by law as stated in the Notice to Bidders, which shall be for the benefit of the City, and any and all persons injured by the breach of any of the terms of this contract. Said bond shall be filed with the City Clerk and shall be subject to the approval of the City Council and is by reference made a part of this contract. PAR. 14 The Contractor agrees that should it abandon work under this contract or cease the prosecution thereof for a period of thirty (30) consecutive days without reasonable cause, and should it fail to proceed with said work within ten (10) days after a notice to continue or carry it on has been mailed to it at the address given herein by the City, or after such notice has been served on it, then the City may proceed to complete said work, using any material, tools, or machinery found along said line of work, doing the work either by contract or as it may elect, and the Contractor and the sureties on its bond shall be liable to the City for the costs and expenses so paid out. Said costs shall be retained by the City from any compensation due, or to become due the Contractor, and may be recovered by the City in an action upon Contractor's bond. PAR. 15 In consideration of the full compliance on the part of the Contractor with all the provisions, stipulations, and conditions hereof, or contained in the various instruments made a part of this contract by reference, and upon completion and acceptance of said work, the City agrees to pay to the Contractor, in the manner set out in the Notice to Bidders, the amount of money due the Contractor for work performed and accepted, at the lump sum set out in the Contractor's proposal, which has been accepted by the City. FORM OF CONTRACT Page 4 of 4 PAR. 16 The total amount of the contract, based on the Contractor's proposed lump sum, and for which 100% surety bond is required is $ . PAR. 17 After the completion of said work, the Contractor agrees to remove all debris and clean-up said streets, and to save the City harmless from any damage allegedly resulting from a failure to clean up and remove the debris or put the street back in a proper condition for travel. PAR. 18 This contract is not divisible, but in the event of a conflict between this contract and the various instruments incorporated by reference, this contract shall govern. PAR. 19 Before the Contractor shall be entitled to receive final payment for work done under this contract, it shall execute and file a bond in the penal sum of not less than 100% of the total amount of the contract, same to be known as "Maintenance Bond," and which bond must be approved by the City Council, and which bond is in addition to the bond given by the Contractor to guarantee the completion of the work. PAR. 20 The Contractor shall maintain all work done hereunder in good order for the period of two (2) years from and after the date it is accepted by the Council of the City of Waterloo, Iowa. Said maintenance shall be made without expense to the City or the abutting property. In the event of the failure or default of the Contractor to remedy any or all defects appearing in said work within a period of two (2) years from the date of its acceptance by said Council, and after having been given ten (10) days notice so to do by registered letter deposited in the United States Post Office in said town, addressed to said contractor at the address herein given, then the City may proceed to remedy such defects. The costs and expenses thereof to be recovered from the Contractor and the sureties on its maintenance bond by an action brought in any court of competent jurisdiction. PAR. 21 The Contractor shall give notice to said City by registered letter directed to the Mayor or City Clerk/Auditor thereof not more than four (4) and not less than three (3) months prior to the expiration of the term during which the Contractor is required to maintain said improvements, in good repair by the terms of its Contract. The liability of the Contractor and of the sureties on its bond for maintenance of the said improvements shall continue until three (3) months after such notice has been given to the City, and, in any event, until two (2) years after the acceptance of the work. CITY OF WATERLOO, IOWA Mayor City Clerk Contractor BY: Title: Approved by the City Council of the City of Waterloo, Iowa, this day of , 20 . ATTEST: , City Clerk Waterloo, Iowa SURETY BOND NO. PERFORMANCE, PAYMENT, AND MAINTENANCE BOND KNOW ALL BY THESE PRESENTS: That we, __________________________________________________________________, as Principal (hereinafter the “Contractor” or “Principal” and ____________________________________________, as Surety are held and firmly bound unto __________________________________________________ , as Obligee (hereinafter referred to as “the Jurisdiction”), and to all persons who may be injured by any breach of any of the conditions of this Bond in the penal sum of ____________________________________________________________________________________ dollars ($____________________), lawful money of the United States, for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, legal representatives and assigns, jointly or severally, firmly by these presents. The conditions of the above obligations are such that whereas said Contractor entered into a contract with the Jurisdiction, bearing date the _______ day of ___________________, _________, hereinafter the “Contract”) wherein said Contractor undertakes and agrees to construct the following described improvements: F.Y. 2025 PREFABRICATED SHELTER AT 1700 IDAHO ST, CONTRACT NO. 1112 The City of Waterloo (Owner) is seeking bids from contractors who can supply and install a prefabricated concrete communication shelter that will securely house the network equipment, power systems, and supporting environmental components required to operate the Waterloo Fiber FTTU network for the Owner (the Project). The shelter will be located at 1700 Idaho St, Waterloo, IA 50703 (See Attachment D – Site Location). (CON’T – PERFORMANCE, PAYMENT, AND MAINTENANCE BOND) and to faithfully perform all the terms and requirements of said Contract within the time therein specified, in a good and workmanlike manner, and in accordance with the Contract Documents. It is expressly understood and agreed by the Contractor and Surety in this bond that the following provisions are a part of this Bond and are binding upon said Contractor and Surety, to-wit: 1. PERFORMANCE: The Contractor shall well and faithfully observe, perform, fulfill, and abide by each and every covenant, condition, and part of said Contract and Contract Documents, by reference made a part hereof, for the above referenced improvements, and shall indemnify and save harmless the Jurisdiction from all outlay and expense incurred by the Jurisdiction by reason of the Contractor’s default of failure to perform as required. The Contractor shall also be responsible for the default or failure to perform as required under the Contract and Contract Documents by all its subcontractors, suppliers, agents, or employees furnishing materials or providing labor in the performance of the Contract. 2. PAYMENT: The Contractor and the Surety on this Bond hereby agreed to pay all just claims submitted by persons, firms, subcontractors, and corporations furnishing materials for or performing labor in the performance of the Contract on account of which this Bond is given, including but not limited to claims for all amounts due for labor, materials, lubricants, oil, gasoline, repairs on machinery, equipment, and tools, consumed or used by the Contractor or any subcontractor, wherein the same are not satisfied out of the portion of the contract price the Jurisdiction is required to retain until completion of the improvement, but the Contractor and Surety shall not be liable to said persons, firms, or corporations unless the claims of said claimants against said portion of the contract price shall have been established as provided by law. The Contractor and Surety hereby bind themselves to the obligations and conditions set forth in Chapter 573 of the Iowa Code, which by this reference is made a part hereof as though fully set out herein. 3. MAINTENANCE: The Contractor and the Surety on this Bond hereby agree, at their own expense: A. To remedy any and all defects that may develop in or result from all work except new paving to be performed under the Contract within the period of two year (s) from the date of acceptance of the work under the Contract, by reason of defects in workmanship or materials used in construction of said work; and B. To remedy any and all defects that may develop in or result from new paving work to be performed under the Contract within the period of two year (s) from the date of acceptance of the work under the Contract, by reason of defects in workmanship or materials used in construction of said work; C. To keep all work in continuous good repair; and D. To pay the Jurisdiction’s reasonable costs of monitoring and inspection to assure that any defects are remedied, and to repay the Jurisdiction all outlay and expense incurred as a result of Contractor’s and Surety’s failure to remedy any defect as required by this section. E. Maintenance bond requirements shall not apply to the following: work that is not permanently incorporated into the project, pavement markings, seeding, sodding, and plant material and planting. (CON’T – PERFORMANCE, PAYMENT, AND MAINTENANCE BOND) 4. GENERAL: Every Surety on this Bond shall be deemed and held bound, any contract to the contrary notwithstanding, to the following provisions: A. To consent without notice to any extension of time to the Contractor in which to perform the Contract; B. To consent without notice to any change in the Contract or Contract Documents, which thereby increases the total contract price and the penal sum of this bond, provided that all such changes do not, in the aggregate, involve an increase of more than 20% of the total contract price, and that this bond shall then be released as to such excess increase; and C. To consent without notice that this Bond shall remain in full force and effect until the Contract is completed, whether completed within the specified contract period, within an extension thereof, or within a period of time after the contract period has elapsed and the liquidated damage penalty is being charged against the Contractor. D. That no provision of this Bond or of any other contract shall be valid that limits to less than five years after the acceptance of the work under the Contract the right to sue on this Bond. E. That as used herein, the phrase “all outlay and expense” is not to be limited in any way but shall include the actual and reasonable costs and expenses incurred by the Jurisdiction including interest, benefits, and overhead where applicable. Accordingly, “all outlay and expense” would include but not be limited to all contract or employee expense, all equipment usage or rental, materials, testing, outside experts, attorneys’ fees (including overhead expenses of the Jurisdiction’s staff attorneys), and all costs and expenses of litigation as they are incurred by the Jurisdiction. It is intended the Contractor and Surety will defend and indemnify the Jurisdiction on all claims made against the Jurisdiction on account of Contractor’s failure to perform as required in the Contract and Contract Documents, that all agreements and promises set forth in the Contract and Contract Documents, in approved change orders, and in this Bond will be fulfilled, and that the Jurisdiction will be fully indemnified so that it will be put into the position it would have been in had the Contract been performed in the first instance as required. In the event the Jurisdiction incurs any “outlay and expense” in defending itself against any claim as to which the Contractor or Surety should have provided the defense, or in the enforcement of the promises given by the Contractor in the Contract, Contract Documents, or approved change orders, or in the enforcement of the promises given by the Contractor and Surety in this Bond, the Contractor and Surety agree that they will make the Jurisdiction whole for all such outlay and expense, provided that the Surety’s obligation under this bond shall not exceed 125% of the penal sum of this bond. (CON’T – PERFORMANCE, PAYMENT AND MAINTENANCE BOND) In the event that any actions or proceedings are initiated regarding this Bond, the parties agree that the venue thereof shall be Black Hawk County, State of Iowa. If legal action is required by the Jurisdiction to enforce the provisions of this Bond or to collect the monetary obligation incurring to the benefit of the Jurisdiction, the Contractor and the Surety agree, jointly, and severally, to pay the Jurisdiction all outlay and expense incurred therefor by the Jurisdiction. All rights, powers, and remedies of the Jurisdiction hereunder shall be cumulative and not alternative and shall be in addition to all rights, powers, and remedies given to the Jurisdiction, by law. The Jurisdiction may proceed against surety for any amount guaranteed hereunder whether action is brought against the Contractor or whether Contractor is joined in any such action(s) or not. NOW THEREFORE, the condition of this obligation is such that if said Principal shall faithfully perform all the promises of the Principal, as set forth and provided in the Contract, in the Contract Documents, and in this Bond, then this obligation shall be null and void, otherwise it shall remain in full force and effect. When a word, term, or phrase is used in this Bond, it shall be interpreted or construed first as defined in this Bond, the Contract, or the Contract Documents; second, if not defined in the Bond, Contract, or Contract Documents, it shall be interpreted or construed as defined in applicable provisions of the Iowa Code; third, if not defined in the Iowa Code, it shall be interpreted or construed according to its generally accepted meaning in the construction industry; and fourth, if it has no generally accepted meaning in the construction industry, it shall be interpreted or construed according to its common or customary usage. Failure to specify or particularize shall not exclude terms or provisions not mentioned and shall not limit liability hereunder. The Contract and Contract Documents are hereby made a part of this Bond. Project No. _______________ (CON’T – PERFORMANCE, PAYMENT, AND MAINTENANCE BOND) PRINCIPAL: SURETY: Contractor Surety Company By By Signature Signature Attorney-in-Fact Officer Title Printed Name of Attorney-in-Fact Officer FORM APPROVED BY: Company Name Attorney for Jurisdiction Company Address City, State, Zip Code Company Telephone Number NOTE: 1. All signatures on this performance, payment, and maintenance bond must be original signatures in ink; copies, facsimile, or electronic signatures will not be accepted. 2. This bond must be sealed with the Surety’s raised, embossing seal. 3. The Certificate or Power of Attorney accompanying this bond must be valid on its face and sealed with the Surety’s raised, embossing seal. 4. The name and signature of the Surety’s Attorney-in-Fact/Officer entered on this bond must be exactly as listed on the Certificate or Power of Attorney accompanying this bond. 16'0" JEMA-311 enclosure w/removable E10 ore m c 'y 200 • I� ground us C. m I errninatAlarms 11 arms on wall -mounted 12'' belowceilingng plate ai panel sized for 6 x 2" conduits I I @ 0 N 00 sweep onto ladder m Q m E 22" cable bend radius — > a � � v DC Power future ;� FDP Business AC Inverter 23" space n OLTs n Spare Network — - — - — - ------y" ---- --- — - - top -of -rack o R * adde r rack -- -- ----- DCPDU ----- - - - mount at8'height --- RR1 R_R__2_ T RR3 RR4 RR5 2x L5-20R D B 2x • I--� a " 23DC Power 2x 192-Post Racks " " 194-Post Rack sub -panel feed AC PDUs from AC inverter Q � = c � n U N � Q .. a w E v O N ro �o O N N Q o U N Q = Clean Agent � _ I Fire Suppression a Desk i5 Y Fire _ l Contro120v/240v 200 amps AC Servic Entrance Callouts 7/31/24 1-phase 120/240v 200A utility service Overhead light fixtures shall be 3500 lum/4000kel LED Genset shall support all AC service loads HVAC system shall be dual lead/lag outdoor units HVAC shall provide humidity control within 45-55% HVAC and DC power shall provide critical alarm contacts Control modules for HVAC, DC power, and fire suppression shall support SNMP Cable entrances shall be 12" below ladder Cable entrances shall accommodate 6 x 2" conduits U Keypad Linden Draft Floor Plan (can build mirror -image) Watts AC DC Hostname Purpose Vendor Model Serial No. 48 47 46 45 44 43 42 41 40 39 38 600 x 2047 2 x 2 x 30A subscriber termination 37 36 600 x 2047 2 x 2 x 30A XGS-PON access 35 34 33 32 1600 x 5459 2 x 2 x 60A Edge Router (placeholder) 31 30 A10 Thunder CGN3350 750 x 2559 2 x 2 x 15A Carrier-grade NAT (placeholder) 29 28 1600 x 5459 2 x 2 x 40A Aggregation Router (placeholder) 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 AC Power (V) 120 DC Power (V) -48 0A @ 120V AC Rack Elevations RU Rack ### Power BTU lbs Equipment InformationPower Whips Breakers Cisco ASR9902 Cisco NCS-57C3-MOD-SYS When designing for failover power loading, a circuit breaker should not exceed 40% max load per side (A/B) Distribution FDP Calix E9-2 CLX3001 Calix E9-2 XG3201 107.29A @ -48V DC Total Weight (lbs) 0 lbs Notice -- A circuit breaker should not be loaded above 80% continuous load. [NEC Sec. 384-16(c)] | 20A CB = 16A Max Load | 30A CB = 24A Max Load | 40A CB = 32A Max Load Total Watts 5150 Watts Total BTU p/hr 17573 BTU p/hr Watts AC DC Hostname Purpose Vendor Model Serial No. 48 47 46 45 Fortigate 201F 122 x 416 2 x NEMA 2 x 10A business network firewall (placeholder) 44 43 42 Cisco Catalyst 9500-24Y4C 650 x 2218 2 x NEMA 2 x 15A business network switch (placeholder) 41 40 39 1600 x 5459 2 x NEMA 2 x 15A business network server (placeholder) 38 37 36 35 34 33 32 31 30 29 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 AC Power (V) 120 DC Power (V) -48 ISP Cross-connect Total Watts 2372 Watts Rack Elevations RU Rack ### Power BTU lbs Equipment InformationPower Whips Breakers Notice -- A circuit breaker should not be loaded above 80% continuous load. [NEC Sec. 384-16(c)] | 20A CB = 16A Max Load | 30A CB = 24A Max Load | 40A CB = 32A Max Load When designing for failover power loading, a circuit breaker should not exceed 40% max load per side (A/B) Dell PowerEdge R650 Total BTU p/hr 8094 BTU p/hr 19.77A @ 120V AC 0A @ -48V DC Total Weight (lbs) 0 lbs B9Lq Ez[Iw9[6q e6UGL9[OL 26LMC6(ICM) Ez[Iw9[6q Coollug\Nnwlq[A (wsx [ouz) Ez[lws[69 VC 26Lnlc6 I-by9z6 C9 SVGA (w9x m\H"C IOCIC-Lo[oL) VC bOMGL (26LNC6) } SD\^ II69q LOOW M3eVBDV02 (Is9q\198) VC VI 330 re'10 la'00 3181r r8IrI0 IVYVa S'I 21 r31r3r 3 r� 3'8Vr VC bOMGL [IUG646L tq JJOn) 3 SS SMS 3 vc 0 no 1122 razz 200 r'e00 r r2 r'eoo 3 vc v n0 2 ar 2 ar ego e20 r e ego 3 vc N rro roa rn r3o r33 r r rSS DC bOMGL r0I 2'r20 L L I DC A 18 r5'20 rS'20 eoo e00 3 32 TIS00 3 DC A 18 TI 83 33'33 ITS r'e00 r 33 r'eoo 3 DC A 18 3'" r2'e3 re2 120 r re 120 3 DC A 18 3333 3333 r'eoo r'e00 r 33 rleoo Wo961 Q[A bOMGL tl\B Aollz yA61c91 W9x yA61c91 W9x Q!A yw6z W9x bOM6L nuu Vwbz nuI[ bOMGL Jlug6u Waterloo IA Prefabricated Data Center BID Page | 1 REQUEST FOR BID Prefabricated Data Center Bid Specifications 1700 Idaho Street Waterloo IA September 2024 Waterloo IA Prefabricated Data Center BID Page | 2 1 Division 1 Base Bid - Refurbished Shelter Specifications and Requirements The Proposed Solution should be developed to incorporate the specifications and requirements described in this BID. Except where the word “shall” is used, specifications and requirements are given as approximates and/or minimums to accommodate available refurbished inventory. A list of Attachments and Exhibits containing additional specifications and requirements for this BID include: 1. Attachment A - Conceptual Shelter Layout: provides a conceptual shelter floorplan. 2. Attachment B - Equipment Rack Elevations: provides a reference diagram of each rack and the maximum power draw of its equipment for use in configuring the proposed AC/DC power systems, distribution, and cooling. 3. Attachment C - Estimated Power and Cooling Specifications: provides reference power and cooling requirements for the shelter using the maximum power draw from vendor data sheets for use in configuring the proposed AC/DC power systems, distribution, and cooling. 4. Attachment D - Site Location: provides an overhead view of the property, the location available for the shelter, and its orientation. Owner will provide Seller access to the assets, services, and infrastructure of Owner to the extent they are available and are needed for construction and installation of the Proposed Solution. Owner will use its best efforts to make such assets, services, and facilities available to Seller upon request. The Owner requires the shelter and generator components of this bid to be installed and commissioned by February 27, 2025. Sellers that cannot commit to this date may be disqualified. The DC power system may be installed and commissioned at a later date. 1.1 Physical Construction The shelter will conform to the design, floorplan, and usable square footage represented in Attachment A - Conceptual Shelter Layout. The shelter shall be of precast concrete construction with a new polyvinyl covering. Outside Dimensions will be approximately: 11’5” width, 16’ length, 10’ 0” height. Interior Dimensions will be approximately: 10’ 5” width x 15’ 0” length x 9’ 0” height. The minimum structural load ratings shall be: • 150 pounds per sq ft distributed floor load capacity on foundation • 100 pounds per sq ft distributed roof load • 130 mph wind speeds The shelter will include one (1) 36” wide X 84” high insulated steel exterior door with cast-in painted steel door frame, tamper-proof hinge, aluminum threshold and door sweep, weather-stripping, panic hardware with lever handle, deadbolt lockset, hydraulic door closer, and fiberglass weather hood. The shelter will include one J-Box adjacent to the door for card reader prep. The exterior of the shelter will be exposed aggregate with a medium beige colored exterior finish. The shelter walls shall be bullet-proof to a minimum UL 752 Level 4 standard. The shelter walls shall have a minimum two-hour fire rating. The shelter will be insulated to a minimum of R-11 for walls, R-15 for ceiling, and R-7 for floor. The interior walls and ceiling will be sheathed with white HDPE coated board or equivalent. Waterloo IA Prefabricated Data Center BID Page | 3 The floor covering will be a light-colored material grounded for electrostatic discharge. The shelter shall have anchor points at each corner of the base, sufficient to provide stable support of the shelter at the specified wind speed. The Seller shall provide detailed specifications for use in constructing a suitable foundation for the shelter. The specifications shall include all penetrations, tie-downs, conduit entrances, ground field, and utility/genset connections required in the foundation. The Seller shall ensure the proposed shelter complies with all Federal, State, and Local building codes. The Seller shall perform the following in refurbishing the shelter: • Concrete sealant • Inspect for holes and sealed as needed • All seams caulked • All entry ports capped • All walls/ceiling cleaned & inspected 1.2 AC Power Distribution Service Supply and install a NEMA-compliant meter base on the exterior that will accept a single-phase 120/240v 200A utility service and meter from the local utility provider. Supply and install a 1” thick plywood board (3’ x4’) back- board on the interior for mounting the AC service panel and master AC Mains on/off switch. Supply and install a service-rated disconnect switch and a 120/240VAC 200A single-phase NEMA-1 snap-in service distribution panel including breakers for all installed equipment and loads. The panel should have 42 positions capable of accepting snap-in resettable breakers (See Attachment A - Conceptual Shelter Layout). Extend correct gauge wiring rated at 200 A from the utility meter through the wall to the AC Mains on/off switch. All exterior electrical wire will be protected in ridged EMT-type conduit. Supply and install a secondary transient surge protector device near the AC load center. Supply and install a low-profile 120/240VAC single-phase service-rated Auto Transfer Switch (ATS) in an internally mounted NEMA enclosure to activate a secondary VAC feed from the back-up power generation system when the primary power is disrupted. ATS service must be user-programable, to institute power disruption generation engagement tests on a maintenance interval basis. Supply and install AC outlets as follows (See Attachment A - Conceptual Shelter Layout): • Four (4) 120v NEMA 5-15R wall mounted specification grade duplex receptacles on the front and rear walls of the shelter and above the work desk on a shared breaker. • Two (2) 120v NEMA L5-20R twist lock receptacles mounted above relay rack RR5 to the cable ladder above it wired to breakers in the AC inverter subpanel. • Two (2) 240v NEMA L6-30R twist lock receptacles mounted above relay rack RR5 to the cable ladder trays above it wired to breakers in the AC inverter subpanel. • One (1) 120v NEMA 5-15R specification grade exterior duplex receptacle on a ground fault interrupter circuit and 20A breaker. Supply and install appropriate breakers for all AC loads in the shelter. Each breaker’s purpose shall be clearly labeled. All wiring shall be installed in surface-mounted conduit or wireways and shall be in full compliance with ANSI/NFPA-70 – The National Electric Safety Code, latest revision. 1.3 Grounding/Bonding/Lightning Protection System Waterloo IA Prefabricated Data Center BID Page | 4 All grounding cabling shall route/terminate to a single point. AC shall reference the panel’s neutral ground bond and DC shall reference its common bus bar. Those common points shall be bonded to an exterior ground rod. Supply and install a stranded # 4/0-gauge wire serving as a neutral ground bus, secured with tie straps to the overhead ladder rack and bonding all electrical components to a very-low resistance ground rod installed in the soil near the utility meter. Supply and install one (1) 1/4” X 4” X 20” insolated ground plate for bonding the neutral ground bus to the equipment racks. Supply and install one 3/16” x 3/4” copper bus bar at the top of RR3 through RR5 Bond all high voltage equipment, enclosures, racks, and cable paths to the ground plate using # 4/0 ground conductor. The shelter shall have a 3/4” round exterior exit at the base of the wall below the isolated ground plate to be used for ground conductor connection to the exterior ground field. 1.4 Interior and Exterior Lighting Supply and install six (6) LED ceiling fixtures rated at 3500lum/4000kel, wired-back to an entry door switch (See Attachment A - Conceptual Shelter Layout). Supply and install an “Emergency Exit” light fixture (red), unswitched. Supply and install an exterior dusk-to-dawn light above the entry door with a protective steel guard. Supply and install an emergency power-fail LED safety operating light connected to a 90-minute minimum field-serviceable DC battery pack that turns on/off with power from AC mains panel and recharges automatically. 1.5 Air Conditioning System Supply and install two (2) new 3-ton, 240V/single-phase, 11 EER external mount air conditioning units with low ambient and compressor anti cycle controls, integral electric strip heat, and washable dust filters. The AC units will be mounted to the outside wall of the shelter (See Attachment A - Conceptual Shelter Layout). The system will be equipped with redundant lead/lag controls as required to allow equal operating time on each air conditioning unit. The system shall include an Ethernet/IP controller supporting remote monitoring of system status, performance, and alarms. Supply and install wall-mounted temperature and humidistat controls. The chosen supplier must be able to readily maintain the units, provide phone support, and stock critical replacement parts from a local office within 1 hour of Owner. The units will be wired back to the AC distribution panel and appropriately grounded and fused. 1.6 Fire Suppression System Seller will provide an appropriately sized fire suppression system utilizing a widely available clean agent with a delayed discharge trigger and manual controls for emergency discharge and cancellation of a triggered event. The system shall include an Ethernet/IP controller supporting remote monitoring of system status, performance, and alarms. Seller will perform all pressure testing and certification of system in compliance with Owner fire Waterloo IA Prefabricated Data Center BID Page | 5 code. The chosen supplier must be able to readily maintain the system, provide phone support, and stock critical replacement parts from a local office within 1 hour of Owner. 1.7 DC Power and Battery System Supply and install a –48VDC power system with N+1 rectifier redundancy and minimum 24-position distribution panel, configured to support the estimated equipment loads and connections specified in Attachment B - Equipment Rack Elevations and Attachment C - Estimated Power and Cooling Specifications. The proposed system must be readily supported by a local reseller within a 1-hour drive from Owner with critical replacement parts available for expedited delivery. Supply and install a 23” 45RU 2-post rack at RR1 sufficient for installation of the power system and battery strings (See Attachment A - Conceptual Shelter Layout). Protective Plexiglas guards should be fabricated and installed in front or adjacent to all open access DC bus bars or feed cable connections, to ensure the safety of operations personnel working in and around the rear of the communication power and communications racks. Supply and install electro-mechanical distribution breakers for connection of equipment components in the quantity and loads specified in Attachment B - Equipment Rack Elevations and Attachment C - Estimated Power and Cooling Specifications. Supply and install an A/B split-bus DC power distribution unit (PDU) at the top of RR3 with each bus capable of supporting the loads specified in Attachment B - Equipment Rack Elevations and Attachment C - Estimated Power and Cooling Specifications. Both buses of the PDU shall be fed from breakers in the 24-position distribution panel. Supply and install a single-phase 120v AC inverter system integrated with the DC power system configured to support the estimated equipment loads and connections in Attachment B - Equipment Rack Elevations and Attachment C - Estimated Power and Cooling Specifications. The inverter shall be configured for a bulk output AC power to a breaker sub-panel for power distribution to the equipment racks. The system shall include an Ethernet/IP controller supporting remote monitoring of system status, performance, and alarms. Supply and install a -48v Lithium-Ion battery system sized for N+1 support of the equipment load with options for both 4 and 8 hours. The individual units shall be wired in parallel using RS485 cables, outfitted with individual disconnect breakers, and placed on shelves in RR1. Seller must provide two (2) copies of associated wiring configuration drawings and operation manuals for the proposed system. The system may be direct-wired to AC service or use NEMA- compliant twist-lock receptacles. Seller shall specify the expected date for delivery and install of the DC power system. 1.8 Additional Accessories and Built-In Features Supply and install two (2) 2-post 19” wide x 7.0’ high equipment racks positioned at RR3 – RR4 and one (1) 4-post 19” wide x 7.0’ high equipment racks positioned at RR5, spaced according to Attachment A - Conceptual Shelter Layout and described below: • RR1 – space for a 23” rack containing a -48v DC power system, breaker panel, and batteries • RR2 – space for a 23” rack for future growth • RR3 – 19” rack for backbone/distribution FDPs and OLT access equipment (DC power) • RR4 – 19” rack for future growth • RR5 - Business network equipment (AC power) Waterloo IA Prefabricated Data Center BID Page | 6 Supply and install an overhead 12” wide cable ladder tray distribution system approximately 12” above the racks and 12” below the ceiling to manage cable drops to each of the racks and entrance fiber distribution to the FDPs (See Attachment A - Conceptual Shelter Layout). The shelter will include two cable entrances located 12” below ceiling and sized to accommodate a 22” radius cable sweep onto the ladder. The entrances will be approximately 15” x 16” and positioned within 22” x 28” wall recesses for mounting of an external NEMA-3 enclosure. The cable entrances will be covered with a NEMA-3R enclosure, sealed to the shelter wall, with 6 x 2” conduit ports in the bottom and a removable lid. Seller shall disclose all warranties on the shelter structure and components to the Owner in their response. All warranties shall be extended and transferred to the Owner upon final acceptance at delivery. Warranty periods shall begin on the date of shelter commission. Supply and install a wall-mounted holder for shelter documentation to ensure that all required operational instructions, equipment manuals, wiring/cable drawings, certifications, support contact information, safety guidelines any other pertinent documents are both displayed and stored together. Supply two (2) complete sets of master as-built documents (1-digital, 1-paper) containing the shelter mechanical, electrical, fire suppression, DC power, and low voltage designs, and all approvals of the local utility provider, public works, and local fire Marshall. Supply and install safety components including first aid kit, eye wash station, and fire extinguisher. Shelter installation kit shall include: • Tie-down plates and hardware • Touch up paint for shelter/trim/HVAC • Door lock for secure travel during shipping • Concrete patch • Extra caulk for awning/etc. 1.9 Back-Up Diesel Generator Supply and install a single-phase 120/240v 30kW diesel generator and provide all required connections to the ATS for normal operations. The generator tank shall be sized for a minimum 24-hour runtime supporting the full estimated AC load of the shelter as shown in Attachment C - Estimated Power and Cooling Specifications. The generator shall provide electronic control for automatic remote starting/stopping, frequency and voltage regulation, alarm and status message display, output metering, auto-shutdown at fault detection, and self-diagnostic capabilities. The generator shall support SNMP-based telemetry to monitor operational status including, but not limited to, run state, temperature, oil level, run time, and fuel level. The generator shall support a flexible exercise mode to allow exercise time, frequency and duration at the Owner’s preference. The generator shall include a battery heater. Seller shall specify the expected date for delivery and install. 1.10 Inspection, Delivery, and Commissioning Provide pictures and/or video of the shelter construction progress periodically to enable the Owner Waterloo IA Prefabricated Data Center BID Page | 7 to provide immediate feedback and issue change orders if any are identified prior to final inspection. Provide transportation and offload of each shelter to the Owner’s designated location. The Seller shall coordinate end-to-end transportation including any intermediate transfers in transit, and will specify the cost of transportation, offload, and insurance for each shelter on separate line items in their response. The Seller shall retain ownership of the shelters until formal acceptance by the Owner at the point of delivery. All shelter components should be disassembled and packaged to withstand transportation. The Seller is responsible for complying with all weight restrictions on all transportation routes. Packaging of the shelters and inside plant components to meet these restrictions must be included in all quoted pricing. The Seller shall provide professional services to reassemble all components located inside and attached to the shelter after site prep and AC power connections are completed. The Seller shall commission the shelter systems and train Owner staff on all supplied components. The Seller shall commission the generator to verify proper start-up and transfer switch operation. 2 Alternate Bids 2.1 Alternate A – A/B DC Power and Battery System for Redundancy Supply and install a –48VDC DC power system with N+1 rectifier and A/B bus, distribution, and battery string redundancy configured similar to but replacing the system in Section 1.7. The split-bus DC power distribution unit (PDU) at the top of RR3 shall be wired with A/B feeds from breakers in separate distribution panels to provide complete power redundancy for the connected equipment. Seller shall specify the expected date for delivery and install into the shelter. 2.2 Alternate B – Second DC Power and Battery System for Redundancy Supply and install a second –48VDC DC power system configured the same as Section 1.7 with the exception of the split-bus PDU in RR3. The second system shall be installed in rack position RR2 and shall feed bus B of the PDU in RR3 from breakers in the 24-position distribution panel to provide complete power redundancy for the connected equipment. Seller shall specify the expected date for delivery and install into the shelter. EWt:NGINEERING Contact: July 23, 2024 City of Waterloo RE: As-builts Dear, Mayor Hart On behalf of ENTRUST and Cole Henkle, thank you for allowing EN Engineering, LLC (EN) the opportunity to present you with this proposal. EN is committed to providing high quality and cost- effective engineering and design services that will ensure Waterloo's projects are successfully implemented. Our technical experts, engineers, designers and drafting professionals have developed strong working -relationships with the City of Waterloo. We are confident that EN's expertise will result in another successful project for the City. We appreciate this opportunity to provide a proposal and look forward to meeting with your team to further discuss our proposal in more detail. Should you have any questions or require any additional information, please contact Cole Henkle at 913.706.3306 chenkle@entrustsol.com. Sincerely, esJ se Rodriguez� Executive Vice President Commercial Operations Page 2 SCOPE OF VI ORK As-builts EN proposes to complete the as -built digitization 2,819,260 ft of fiber project as-builts, which will enable the City of Waterloo to accurately collect, track, analyze and report on key broadband infrastructure assets that it has deployed and operates across the city. We propose to first build a layer for the City's conduit and fiber, identifying placed conduit, type, size, status (occupied/vacant) and related information as listed below under GIS Data Feature Class Layer Assumptions. A second layer will incorporate all outside plant structures owned by the city, including vaults, handholes, manholes, pedestals, poles, transitions, and related information that can easily be incorporated into the city's Fiber Management System (FMS). From these layers, we will proceed to identify all fiber-optic assets placed during the city's Fiber Optic Network roll -out and document types of fiber cable, strand count, splice points, splice cases, slack loops, terminations, and related information. This process includes compiling the collected location of all boxes, conduit, fiber cables and other structures. All field data and information related to changes in the field, as -built and redlines will be implemented into the digital record. Our as -built team will compile the dailies and red -lines that are coming from the field and be process them into a digital As -Built record that can be imported into the City's FMS. EN will use the existing Waterloo FMS Schema and/or work with the FMS vendor to accurately import the as -built data. Timeline As-builts to be completed by Task Order and aligned with the construction schedule by Task Order. As-builts will be delivered within 90 days of the construction completion of a as Order. Page 3 PRICING The costs outlined below are EN Engineering's estimated work effort required to complete the tasks described within this document. Work is intended to be performed on a unit basis, not to exceed basis. Any additional work necessary outside the scope of work described in this proposal will be completed per the established rate schedule below. The provided pricing is valid for 180 days from submittal. As-Builts $0.17 FT 2,819,260 $479,274.20 2024 (PHASE 1 —FIRE STATION 6 $0,17 FT 1,198,186 $203,691.62 2025 PHASE 2 — LINDEN $0,17 FT 768,113 $130,579.21 2026 PHASE 3 — FLETCHER $0,17 FT 764,815 $1309018455 EDA PROJECT $0.17 FT 71,878 $12,219.26 LA PORTE RD PROJECT $0.17 FT 16,268 $2,765,56 TOTAL $0.17 FT 2,819,260 $479,274.20 EN Engineering, LLC By: % e L. L� Name: Patrick Carr Title: Executive Vice President Page 4 City of Waterloo By: Name: Title: �MENGINEERING Contact: Cole HenkleI VP of Design chenlde@entrustsol.com April 8, 2024 City of Waterloo RE: IA MDU and New Home Detailed Design Dear, Mayor Hart On behalf of ENTRUST and Cole Henkle, thank you for allowing EN Engineering, LLC (EN) the opportunity to present you with this proposal. EN is committed to providing high quality and cost- effective engineering and design services that will ensure Waterloo's projects are successfully implemented. Our technical experts, engineers, designers and drafting professionals have developed strong working -relationships with the City of Waterloo. We are confident that EN's expertise will result in another successful project for the City. We appreciate this opportunity to provide a proposal and look forward to meeting with your team to further discuss our proposal in more detail. Should you have any questions or require any additional information, please contact Cole Henkle at 913.706,3306 chenkle@entrustsol.com. Sincerely, Xesse'4RodriguezLI Executive Vice President Commercial Operations Page 2 5UU) "c 1 V1QRK The below as items will be completed for each of the proposed work items for Design Re - Routes, Task 1: Analyzing and Optimizing Fiber Infrastructure. o Determine the best FTTH architecture and fiber path for each building, based on factors such as the number of units, the distance from the central office, the bandwidth demand, the cost, and the future scalability. Task 2: Equipment and Component Selection for FTTH Network. o Select the appropriate equipment and components for integration into the existing designed FTTH network Task 3: Conduct On -Site Validation o General new designs may include but are not limited to new subdivisions, a change to a route based on City request, Co -build changes, etc. Task 4: Construction Documentations. o Provide construction documentation, bill of materials and splice sheets which may include revisions to existing designs or new build outs o Update all relevant GIS data associated with design updates Page 3 PRICING The costs outlined below are EN Engineering's estimated work effort required to complete the tasks described within this document. Work is intended to be performed on a Time and Material, Not to Exceed basis. Any additional work necessary outside the scope of work described in this proposal will be completed per the established rate schedule in Exhibit A. EN's standard Master Professional Service Agreement is Appendix A for you r review and consideration. The provided pricing is valid for 180 days from submittal. Design Change Proposal The table below provides line -item pricing for EN's services effective April 2024 through completion of an estimated 20 significant design changes to be adjusted to the Waterloo Network design. These changes may come from Permit, Construction, or City request. Additional units may be added at a future date upon request. New Design Change Estimate PM 2 40 $165.00 $ 6,600.00 Senior Design Technician 4 80 $135.00 $10,800.00 Design Technician 4 80 $115.00 $ 91200,00 Estimation 2 40 $115,00 $ 4,600.00 Field Tech 4 80 $100,00 $ 8,000.00 Field Expenses $ 91100,00 Total 320 $48.300.00 Page 4 EN Engineering, LLC City of Waterloo By: By: Name: Patrick Carr Name: Title: Executive Vice President Title: Page 5 ACCEPTABLE USE POLICY PRIVACY POLICY CPNI MASTER SERVICES AGREEMENT (MSA) VOYANT TERMS AND CONDITIONS ANPI TERMS AND CONDITIONS VITELITY TERMS AND CONDITIONS PURCHASE ORDER TERMS AND CONDITIONS TERMS OF SERVICE NOTIFICATIONS FOR CANADIAN 9-1-1 CALLS 911 INFORMATION TARIFFS CALIFORNIA CUSTOMER BILLING INQUIRIES CALIFORNIA EMERGENCY DISASTER RELIEF PROGRAM L E G A L A N P I T E R M S A N D C O N D I T I O N S ANPI HOSTED UNIFIED COMMUNICATIONS TERMS AND CONDITIONS ANPI SIP TRUNKING TERMS AND CONDITIONS ANPI BUSINESS, LLC TARIFFS, RATES AND TERMS ANPI PRIVACY STATEMENT MICROSOFT TEAMS INTEGRATION ADDITIONAL TERMS AND CONDITIONS ANPI CLOUD BUSINESS FAX TERMS AND CONDITIONS A N P I HO S T E D U N I FI E D CO M M U NI C AT I O N S T E R MS AN D C O N D I T I O N S BY ACCEPTING THESE HOSTED COMMUNICATIONS SOLUTIONS TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS BELOW. ALL SERVICE ORDERS AND SERVICES ARE SUBJECT TO THESE TERMS AND CONDITIONS. These Hosted Communications Solutions Terms and Conditions (the “Agreement”) are entered into by and between ANPI Business, LLC (“Provider”), a Delaware limited liability company, and the customer purchasing products or services from Provider (“Customer”). 1. DEFINITIONS The following terms will have the meanings set forth below. 1.1 “Customer Data” means any data, information or other materials of any nature whatsoever provided to Provider by Customer or a User in the course of implementing or using the Services. 1.2 “Service Descriptions” means user manuals and other documentation relating to the Services that are made available to Customer by Provider in digital or hardcopy form, as updated from time to time. 1.3 “Service Fee” or “Service Fees” means the monthly or annual fees set forth in the Service Order to be paid by Customer to Provider as consideration for Provider’s provision to Customer of the Services, but does not include usage fees, taxes or regulatory fees or surcharges, which Customer must pay in addition to the Service Fees. 1.4 “Service Order” means an order for Services or products. 1.5 “Service Plan” means the monthly or annual subscription plan a Customer agrees to in the Service Order. 1.6 “Service Order Addendum” means a Service Order agreed to by Customer subsequent to the initial Service Order. 1.7 “Services” means the products or services that are being provided to Customer as described in the Service Order, including any Additional Services set forth in a Service Order Addendum accepted by Provider. 1.8 “Software” means any proprietary software owned by, licensed by or which Provider has a right to sublicense that is used in or used to provide the Services. “Software” includes, without limitation, any application that Provider makes available to the Customer for use on a mobile device. 1.9 “User” means a user of the software, client, mobile application or other web-based application, equipment, feature or functionality provided by Provider in conjunction with the Services. 2. SERVICES 2.1 Generally. Provider will provide the Services set forth in an accepted Service Order subject to the terms and conditions of this Agreement. Provider hereby grants Customer limited, revocable, non-exclusive, non-transferable access to the Services for use by the number of Users set forth in the Service Order, for Customer’s own internal business purposes. Provider grants Customer a limited, revocable, non-exclusive, non-transferable right to use the Services Descriptions in connection with its use of the Services. Each Service Order will be subject to Provider’s acceptance, which will be deemed given if Provider thereafter provides the Services to Customer. 2.2 Conditions. Customer agrees that Provider’s obligations to provide the Services are expressly conditioned upon (a) Customer’s payment of the fees as and when due, and (b) Customer’s satisfaction of the technical requirements set forth in the Services Descriptions for the Services made available to Customer by Provider, as the same may be updated by Provider from time to time. 2.3 Additional Services. Customer may request an increase in Users or additional Services at any time during the Term (any such increase, “Additional Services”) by submitting a Service Order Addendum setting forth the specic Additional Services desired. Each Service Order Addendum will be subject to Provider’s acceptance, which will be deemed given if Provider thereafter provides the Additional Services to Customer. Upon acceptance by Provider, such Service Order Addendum will be deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the Service Fees will be increased to reect the Additional Services, subject to the same pricing and payment terms as are set forth in the Service Order or the Service Order Addendum as applicable. Acceptable Use Policy LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES 3. TERM This Agreement will commence on the date Provider accepts the Service Order and will continue for the period of time specied in the Service Order (the “Initial Term”). At the end of the Initial Term, the Agreement will automatically renew for an additional one-year period (a “Renewal Term”), and will renew at the end of each Renewal Term for an additional one-year Renewal Term, unless either party provides the other party, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, written notication in accordance with Section 20.1 of its desire to cancel the Services. The Initial Term and any Renewal Terms are collectively the “Term”. 4. TERMINATION 4.1 Early Termination by Customer. If Customer terminates the Agreement, or some of the Services provided under the Agreement, before the end of the Initial Term or any Renewal Term (the “Terminated Term”), Provider will charge Customer, and Customer will pay, an early termination charge equal to 100% of the monthly Service Fee for the terminated Services, multiplied by the number of months remaining in the Terminated Term on the date of termination. The early termination charge is in addition to the full monthly Service Fee payable for the month of, and months prior to, termination. Provider will also charge Customer, and Customer will pay, (a) any unpaid recurring or non-recurring charges waived by Provider at the beginning of or during the Terminated Term, and (b) the difference between the MSRP and the price paid by Customer for any equipment purchased at the beginning of or during the Terminated Term. If Customer or its User transfers or ports its phone number to a service provider other than Provider, Customer must also contact Provider to terminate the Services provided to Customer by Provider. 4.2 Termination by Provider. (a) Provider is entitled, at its sole discretion, to suspend, terminate or change the Services without advance notice upon any misuse of the Services in any way, Customer’s breach of the Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer or a User that adversely affects the Services, Provider, Provider’s network or another customer’s use of the Services. Provider will be entitled to determine, at its sole discretion, what constitutes misuse of the Services, and Customer agrees that Provider’s determination is nal and binding on Customer. Provider may require, and if required, Customer will pay, an activation fee as a condition to changing or resuming a terminated or suspended account. (b) Provider is entitled to terminate any affected portion of the Services if: (i) Provider is prohibited by law from providing such portion of the Services; or (ii) any material rate or term contained herein and relevant to the affected Services is substantially changed by or as a result of any regulation or order issued by any court of competent jurisdiction, the Federal Communications Commission (FCC), any other local, state or federal government authority, or any carrier or Internet service provider. (c) Upon termination of this Agreement under this Section 4.2, Customer will be responsible for the full monthly Service Fee for the month in which termination occurs, in addition to any accrued but unpaid usage and other charges. 5. FEES, BILLING AND TAXES 5.1 Payment of Service Fees. Customer will pay the Service Fees for Services ordered by Customer, and all other amounts due under the Agreement, pursuant to the terms of this Section 5. 5.2 Credit. The provision of Services is contingent upon establishment of and continuing credit approval by Provider. Customer hereby consents to Provider’s procurement of a credit score or report regarding Customer. At any time during the Term, Provider is entitled to require a deposit or other acceptable form of security from Customer, as it deems appropriate. In addition, if requested by Provider, Customer agrees to provide, within two (2) business days of request, appropriate nancial records to evaluate Customer’s continuing ability to pay. Provider may, immediately and without notice, suspend or terminate the Services if Customer fails to comply with these security obligations. Upon a payment default by Customer not cured in a timely manner, Provider will have the right to offset against any security or deposit held any amounts owed to Provider by Customer, and to invoice and collect all other amounts owed. 5.3 Billing. Provider will provide Customer with a monthly online billing statement for the Services provided each calendar month and bill all charges invoiced to Customer’s account. Such charges will include monthly service fees, storage charges, activation charges, equipment charges, toll charges, shipping charges, taxes, regulatory recovery fees and any other applicable charges. Monthly Service Fees will be paid in advance of each month’s service; any variable charges associated with usage and any other applicable charges associated with such usage shall be billed in arrears. Billing for monthly Service Fees commences upon ordering of the Services, and monthly Services Fees will be billed pro rata in the months in which such Services commence. Customer agrees to provide Provider with complete and accurate contact and payment information, which may include Customer’s credit card information, and Customer agrees to advise Provider of any changes thereto. To the extent Customer’s payment method is by credit card, Customer authorizes Provider to charge Customer’s credit card automatically to pay for Customer’s charges. If a charge to Customer’s credit card is declined or reversed, or if the account or credit card has expired or been suspended or closed, or if Customer fails to provide Provider with accurate or complete credit card information, Provider may suspend or terminate the Services. 5.4 Late/Non-payment. If any charges for the Services are due but unpaid for any reason, Provider may suspend or terminate the Services and all accrued charges will be immediately due, plus a late fee of 1.5% per month. A fee may also be charged to activate a suspended or terminated account. No suspension or termination of the Services or of this Agreement will relieve Customer from paying any amounts due hereunder. 5.5 Taxes. All Service Fees and other charges are exclusive of any taxes, surcharges, public utility fees and regulatory fees (including, without limitation, Universal Service Fees and E911 taxes). Such taxes and fees will be billed by Provider and paid by Customer. Taxes and regulatory fees may increase during the Term, and Customer will pay such increased fees commencing with the next monthly bill. Should Customer claim an exemption of any taxes or regulatory fees, Customer must provide ofcial documented and certied proof of such exemption. In no event will Provider be liable for any taxes due by Customer or its User, and Customer will defend, indemnify and hold harmless Provider if any claim for taxes or fees is made. If any amounts paid for the Services are refunded by Provider, applicable taxes and regulatory fees may not be refundable. 5.6 Regulatory Recovery Fee. A regulatory recovery fee may be charged monthly to offset costs incurred by Provider in complying with inquiries and obligations imposed by federal, state and municipal regulatory authorities and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The regulatory recovery fee will apply to every phone number assigned, including toll free and virtual numbers. The regulatory recovery fee may increase during the Term, and Customer will pay such increased fee commencing with the next monthly bill. 5.7 Service Fee Changes. Provider may change the Service Fees, the types of Service Plans and any additional usage charges without advance notice. Provider will post such changes to its website (http://www.anpi.com). Notwithstanding the foregoing, the Service Fees agreed upon in Customer’s Service Order will not be increased during the Initial Term. With respect to any Renewal Term, the Customer will be charged Provider’s then-current Service Fees in effect at the commencement of the Renewal Term. 5.8 Availability. Customer acknowledges and agrees that the Services may not be available 100% of the time. Additionally, Services will not be available in the event of interruption in Customer’s or its User’s internet or broadband service. Provider will not credit Customer for any interruptions in Service. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES 5.9 Discounts. From time to time in its sole discretion, Provider may offer promotions or discounts. Any promotion or discount codes must be provided to Provider upon purchase of the Services. Customer will not be entitled to a subsequent credit for such promotions or discounts if not requested at the time of account creation or change of Service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively. 5.10 Billing Disputes. Customer must dispute any charges for the Services in writing to BillingDisputes@anpi.com within thirty (30) days of the date of the charge by Provider, or Customer waives any objection and further recourse with regard to such charges. Notwithstanding the foregoing, Customer shall pay all undisputed charges in accordance with this Agreement. 5.11 Usage Charges. Every call using the Services that originates or terminates in the Public Switched Telephone Network (“PSTN”), including without limitation other VoIP networks, accrues applicable toll charges. Customer will not be charged for monthly usage within the limits of its then-current Service Plan. Usage which exceeds the limits, if any, of Customer’s then-current Service Plan will be charged to Customer in accordance with the Service Descriptions at the rates published at www.anpi.com. Calls to phone numbers outside the United States and Canada will also be charged to the Customer in accordance with the Service Descriptions at the rates published at www.anpi.com. 6. TELEPHONE NUMBER Any telephone number provided by Provider (“Number”) to the Customer will be leased and not sold. Provider reserves the right to change, cancel or move the Number should Provider reasonably determine, its sole discretion, that it is required to do so as a result of its agreements with its underlying services providers or for other business purposes related to the provision of the Services. 7. PRIVACY The Services use the public Internet and third-party networks to transmit voice communications and data. Provider is not liable for the interception, use or disclosure of Customer’s or its User’s voice communications or data. Provider does not represent, warrant or covenant that the Services will maintain the privacy or security of Customer’s or its Users’ voice communications or data. Customer acknowledges and agrees that none of its Customer Data is considered “Customer Proprietary Network Information” under the rules of the Federal Communications Commission. Customer agrees that Provider is entitled to monitor Customer’s and Users’ use of the Services to protect, maintain, or improve the Services; to prevent fraud or misrepresentation by afrmative acts and/or omissions; to protect Provider, its customers or other third parties afliated with Provider; or for any other good cause. If required by law, Customer will inform its Users that Provider may monitor the Users’ communications and store and use the Users’ personally identiable information as necessary to provide the Services. For Provider’s Privacy Policy, please visit www.anpi.com. 8. LICENSE; PROHIBITED USES; CUSTOMER RESPONSIBILITIES; LIMITATIONS 8.1 Customer hereby grants to Provider a license to copy, store, record, transmit, display, view, print and use Customer Data, solely to the extent necessary to provide the Services to Customer. Except as expressly provided in this Section 8, Customer grants to Provider no right, title, interest, or license in the Customer Data. Customer represents and warrants that it has all necessary consents and rights to provide personally identiable information about its Users to Provider, and Customer will provide such information upon reasonable request by Provider. 8.2 Customer represents and warrants that it will not use the Services for any illegal, fraudulent, improper, or abusive purpose or in any way that interferes with Provider’s ability to provide high- quality Services to other customers, prevents or restricts other customers from using the Services, or damages any of Provider’s or other customers’ property. If Provider discovers use of the Services for anything other than the permitted uses in this Agreement or for any of the prohibited uses in this Agreement, Provider may at its sole discretion terminate or suspend all or part of Customer’s Services and charge any applicable fees for the Services used plus damages caused by such improper use. Prohibited uses include, but are not limited to: (a) behavior that is illegal, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious or invasive of another’s privacy; (b) sending unsolicited messages or advertisements, including e-mail, voice-mail, text messages or faxes (commercial or otherwise) (“spamming”), or otherwise sending bulk or junk e-mail, voice-mail, text messages or faxes; (c) harvesting or otherwise collecting information about others, including e-mail addresses, without their consent; (d) negligently, recklessly, knowingly or intentionally transmitting any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware or any other programs that may be harmful or dangerous; (e) creating a false caller identity (“ID spoong”) or forged e-mail/text message address or header, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services; (f) transmitting any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual property rights or other rights of third parties; (g) violating any U.S. or foreign law regarding the transmission of technical data or software exported through the Services; (h) using the Services in excess of what, in Provider’s sole discretion, would be expected of normal business use, including without limitation allowing more than one user to use a single VoIP line or using a single VoIP line in excess of what would be expected of a single user; (i) using the Services in any way that interferes with other customers’ and third parties’ use and enjoyment of the Services; (j) using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit or otherwise avoid this use policy. 8.3 Customer understands and agrees that: (a) it will be solely liable for any transmissions sent through the Services under its account or its User’s account, including the content of any transmission sent through the Services under its account or its User’s account; (b) it will abide by all applicable Provider policies, procedures and agreements related to the Services; and (c) it will not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services through password mining or any other means. 8.4 Some of Provider’s plans and other Services are offered on an “unlimited” basis. All unlimited plans: (a) may only be used for normal commercially reasonable business use; (b) are provided only for dialog between two individuals at one time per line; (c) are issued on a “one (1) user per line basis”, meaning that only one registered User may be assigned to use the Services for any one line; and (d) are subject to additional usage charges, including but not limited to such charges associated with international calling, in accordance with the then-current rates posted to Provider’s website (www.anpi.com). Unlimited plans may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses applicable to all Services): (i) trunking or forwarding a Provider Number to another phone number capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system; (ii) spamming or blasting (e.g., sending bulk or junk voice-mails, e-mails, text messages or faxes simultaneously); (iii) bulk call-in lines (e.g., customer support or sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.); or (iv) auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls). In addition, unusually high usage of the Services may impair Provider’s ability to provide high-quality Services to others and/or indicate unauthorized use of the Services, in which case Provider may suspend or terminate Customer’s account or, upon prior notice, convert Customer’s account to a metered calling plan that charges signicantly higher usage rates. 8.5 Customer must report any unauthorized use of the Services to Provider immediately after Customer discovers such use. Customer is responsible for all use of the Services, whether authorized or unauthorized. Customer will be responsible if any of its Users use the Services in a manner prohibited by this Agreement. Customer will be responsible for any act or omission of a User that would be a breach of this Agreement if done by Customer. 8.6 Customer acknowledges and agrees that the right to use any Services is nonexclusive and nontransferable, and Customer will not permit use of the Services other than for its internal business purposes. Nothing in this Agreement will pass to Customer or any User title to any of the Services, any trade names, trade dress, trademarks, service marks, commercial symbols, copyrightable material, designs, logos and/or any other intellectual property of Provider or its vendors. Customer will not challenge or attempt to register or otherwise protect any of Provider’s intellectual property or other rights in the Services. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES 8.7 Customer will not: (a) copy or adapt the Services for any purpose, except as specically permitted under this Agreement; (b) use the Services except in accordance with all applicable laws and regulations, and except as set forth in this Agreement; (c) reverse engineer, translate, decompile, or disassemble the Services; (d) use the Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benet of, or on behalf of, any third party other than a User; (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Services; or (f) delete, alter, cover, or distort any copyright or other proprietary notices or trademarks with respect to the Services. 8.8 Customer understands and accepts that, in order to protect Customer against fraudulent use of the Services, Provider may require Customer to contact Provider in order to enable calling to certain calling destinations. 8.9 Customer will execute such other documents, provide such other information, and afrmatively cooperate with Provider, all as may be reasonably required by Provider relevant to providing the Services. 9. USE AND STORAGE Provider reserves the right to establish or modify general practices and limits concerning use of the Services and Software, including, without limitation, the maximum number of days that content will be retained by the Service and the maximum disk space or bandwidth capacity that will be allotted on servers owned or operated by Provider on Customer’s behalf. Where practical, Provider will provide Customer with prior notice of such new or modied practices; provided, however, that Provider will have the absolute right to implement such new or modied practices without prior notice in its sole discretion and without liability of any kind. 10. ELECTRONIC RECORDING Customer agrees that there are federal and state statutes governing the electronic recording of telephone conversations and that Provider will not be liable for any illegal use of any recording services provided to Customer or its Users. It is Customer’s responsibility to determine if the electronic recordings are legal under applicable federal and state laws and to comply with those laws. Customer will defend, indemnify and hold harmless Provider for any claims, damages, nes, penalties or costs (including, without limitation, attorneys’ fees) arising out of Customer’s or its User’s failure to adhere to applicable electronic recording laws. 11. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF CUSTOMER COMMUNICATIONS Customer is solely responsible for maintaining the condentiality of Customer’s account login information (including, without limitation, its Users’ account login information), and will not allow a third party to use the Services. Customer is solely responsible for any and all activities that occur under Customer’s account or its User’s account, including, without limitation, fraudulent use of the account. Customer and its Users must comply with laws regarding online behavior, acceptable content and the transmission of equipment and information under applicable export laws. Customer also agrees to comply with applicable local rules or codes of conduct (including, if applicable, codes of conduct or policies imposed by employers) regarding online behavior and acceptable content. Use of the Services is void where prohibited. Customer will immediately notify Provider of any unauthorized use of Customer’s account or its User’s account or any other breach of security related to Customer’s account, its User’s account or the Provider Services. Customer and each User must “log off” at the end of each session. Provider is not liable for any loss or damage arising from Customer’s or its User’s failure to comply with any of the foregoing obligations. In consideration for using the Provider Services, Customer will: (a) provide certain current, complete and accurate information about Customer and Users when prompted to do so by the Provider Services, and (b) maintain and update this information as required to keep it current, complete and accurate. Customer agrees that Customer is solely responsible for the content of all visual, written or audible communications (“Content”) sent, displayed or uploaded by Customer or a User in using the Services. Although Provider is not responsible for any such communications, Provider may reject or remove any Content that violates a law or this Agreement. Customer or the User retains copyright and any other rights already held in Content that Customer or the User submits, posts or displays on or through, the Services, or any music or ring-tones Customer or a User uses in connection with the Service. Customer understands and agrees that by displaying, exchanging or uploading Content to a Provider website, transmitting Content using the Services or otherwise providing Content to Provider, Customer automatically grants (and warrants and represents that it has a right to grant) to Provider a world-wide, royalty-free, sub-licensable (so Provider afliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Services, including, without limitation, on associated websites (“Sites”). Furthermore, Customer represents and warrants that it has all necessary consents and rights to transmit Content and other communications from its users to Provider. 12. RESPONSIBILITY FOR CONTENT OF OTHERS Customer acknowledges that Users may violate one or more of the above prohibitions, but Provider assumes no responsibility or liability for such violation. If Customer becomes aware of misuse of the Services by any person, entity or organization, Customer agrees to contact Provider Customer Support at 855-492-2300 or CustomerCare@anpi.com. Provider may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to, issuing warnings, removing the content or terminating accounts and/or User proles. Under no circumstances will Provider be liable in any way for any data or other content available on a Site or actions taken while using the Services, including, but not limited to, any errors or omissions in any such data, content or activity or any loss or damage of any kind incurred as a result of the use of, access to or denial of access to any data, content or activities on a Site. Provider does not endorse and has no control over what Users post, submit to or do on a Site. Customer acknowledges that Provider cannot guarantee the accuracy of any information submitted by any User of a Site, nor any personally identiable information about any User. Provider reserves the right, in its sole discretion, to reject or remove content. 13. EMERGENCY 911 SERVICES 13.1 Service Limitations. The FCC requires that Provider provide E911 Service to all Customers who use Provider Services within the United States. Sections 13.2-13.8 apply to all Customers who use Provider Services within the United States. Section 13.9 applies to all Customers. 13.2 ACKNOWLEDGEMENT AND WARNING LABELS. CUSTOMER ACKNOWLEDGES THAT PROVIDER’S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 13, AND CUSTOMER AGREES TO NOTIFY ALL POTENTIAL USERS WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES OF THE 911 LIMITATIONS DESCRIBED HEREIN. PRIOR TO THE INITIATION OF SERVICE, PROVIDER WILL PROVIDE CUSTOMER WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. CUSTOMER AGREES TO PLACE SUCH LABEL ON OR NEAR EACH TELEPHONE OR OTHER CUSTOMER-PREMISES OR USER-PREMISES EQUIPMENT ON WHICH THE SERVICES MAY BE USED. IF ADDITIONAL LABELS ARE REQUIRED, CUSTOMER MAY REQUEST THEM FROM PROVIDER, AND PROVIDER WILL PROVIDE ADDITIONAL LABELS. PROVIDER WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM CUSTOMER. CUSTOMER WILL PROVIDE SUCH ADVISORY NOTICES TO ITS USERS. CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT PROVIDER HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. CUSTOMER WILL PROVIDE SIMILAR ACKNOWLEDGEMENTS FROM ITS USERS UPON REQUEST BY PROVIDER. PROVIDER ADVISES CUSTOMER AND USERS TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES 13.3 ELECTRICAL POWER. CUSTOMER ACKNOWLEDGES THAT THE SERVICES, INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER. 13.4 INTERNET ACCESS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES, INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE. 13.5 NON-VOICE SYSTEMS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS SUCH AS HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, OR ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. PROVIDER WILL NOT BE LIABLE FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES. 13.6 E911 SERVICE. E911 SERVICE IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS, OUTSIDE THE UNITED STATES, ON TOLL-FREE NUMBERS OR ON SIMILAR SERVICE ACCESSORIES OR ADD-ON SERVICE PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. E911 SERVICE IS TIED TO THE CUSTOMER’S REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER; CUSTOMER IS RESPONSIBLE FOR PROVIDING PROVIDER WITH ADDRESS INFORMATION FOR CUSTOMER’S USERS. THE PROVIDER MOBILE APPLICATION USES THE DEVICE’S DIALER AND CELLULAR TELEPHONE SERVICE TO MAKE 911 CALLS. IF A DEVICE DOES NOT HAVE CELLULAR TELEPHONE SERVICE, THEN THE USER WILL NOT BE ABLE TO CALL 911 FROM THE PROVIDER MOBILE APPLICATION. CUSTOMER ACKNOWLEDGES THAT PROVIDER’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE CUSTOMER’S OR USER’S REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY PROVIDER WILL BE BASED UPON THE CUSTOMER’S OR USER’S REGISTERED SERVICE ADDRESS PROVIDED TO PROVIDER BY CUSTOMER. IN THE EVENT THAT THE REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER IS INCORRECT, IS OUTDATED, OR IS NOT COMPLETE, A 911 CALL MAY BE ROUTED INCORRECTLY. 13.7 E911 SERVICE CHARGE. CUSTOMERS THAT ARE REQUIRED TO SUBSCRIBE TO PROVIDER E911 SERVICE WILL BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE WILL BE IN ADDITION TO THE APPLICABLE SERVICE FEES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR PROVIDER E911 SERVICE IS ASSESSED ON A “PER-LINE” (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES PROVIDER FOR THE DIRECT COSTS IT INCURS IN PROVIDING PROVIDER E911 SERVICE, INCLUDING EXPENSES PROVIDER INCURS, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911 SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF SERVICES TO CUSTOMERS SUBSCRIBING TO THIS SERVICE. PROVIDER RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS. 13.8 E911 CHARACTERISTICS. CUSTOMER ACKNOWLEDGES THAT PROVIDER E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, CIRCUIT- SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE PROVIDER E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS OR USERS. BECAUSE CUSTOMER AND USER CIRCUMSTANCES VARY WIDELY, CUSTOMER SHOULD CAREFULLY EVALUATE ITS OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON PROVIDER E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CUSTOMER’S AND ITS USERS’ EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH PROVIDER E911 SERVICE FROM TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE: E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S OR ITS USER’S DTA, PHONE OR VIDEOPHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER’S OR ITS USER’S PROVIDER SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND OR OTHER INTERNET SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, CUSTOMER OR THE USER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE PROVIDER SERVICE, INCLUDING FOR E911 PURPOSES. E911 SERVICE MAY NOT FUNCTION IF CUSTOMER OR A USER RELOCATES EQUIPMENT OR USES A NON-NATIVE TELEPHONE NUMBER, OR FOR ANY OTHER REASON BEYOND PROVIDER’S CONTROL. AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER’S OR A USER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO PROVIDER’S NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE. THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING PROVIDER E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE PROVIDER E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE PROVIDER NETWORK, THERE IS A POSSIBILITY THAT A PROVIDER 911 CALL WILL PRODUCE A BUSY SIGNAL, THE CALLER WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES OR THE LOCAL EMERGENCY SERVICE OPERATOR WILL TAKE LONGER TO ANSWER THE CALL THAN 911 CALLS PLACED VIA TRADITIONAL, CIRCUIT-SWITCHED TELEPHONE NETWORKS. IF CUSTOMER OR ITS USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE PROVIDER EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, PROVIDER E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR. 13.9 E911 LIMITATION OF LIABILITY AND INDEMNITY. CUSTOMER AGREES THAT PROVIDER WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING A PROVIDER SERVICE OR TO ACCESS OR REACH AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS PROVIDER, ITS OWNERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS, AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER OR A USER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO 911 DIALING OR THE INABILITY TO ACCESS OR REACH EMERGENCY 911 SERVICES. 14. DISCLAIMER AND LIMITATION OF LIABILITY PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING FROM A COURSE OF DEALING OR PERFORMANCE OR CUSTOM, WITH RESPECT TO THE SERVICES, EQUIPMENT, AND ANY OTHER PROVIDER PRODUCTS, SERVICES OR EQUIPMENT PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE IN A WORKMAN-LIKE MANNER, COMPLIANCE WITH LAWS, QUALITY, ACCURACY, COMPLETENESS OR CURRENCY OF INFORMATION, SYSTEM INTEGRABILITY, TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT. PROVIDER DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE PRODUCTS, SERVICES OR EQUIPMENT PROVIDED WILL OPERATE UNINTERRUPTED, ERROR FREE OR WITHOUT DEGRADATION OR LOSS OF DATA, OR BE SECURE. NEITHER PROVIDER LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES NOR ITS SERVICE PROVIDERS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR A USER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY SUCH DATA IN PROVIDER’S POSSESSION, CUSTODY OR CONTROL, THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF PROVIDER’S OR ITS SERVICE PROVIDER’S NEGLIGENCE. IN NO EVENT WILL PROVIDER OR ITS AFFILIATE, SERVICE PROVIDER, FACILITY OPERATOR OR CARRIER, OR THEIR RESPECTIVE OWNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, “PROVIDER PARTIES”) BE LIABLE FOR ANY DIRECT, ACTUAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR ANY COST OF COVER OR LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR A PROVIDER PARTY’S PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER, A FAILURE OF OR A DEFECT IN THE SERVICES, EQUIPMENT OR ANY PRODUCT, A PROVIDER PARTY’S VIOLATION OF A THIRD PARTY’S RIGHT, OR A PROVIDER PARTY’S ACTS OR OMISSIONS. PROVIDER WILL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF, A FAILURE OF OR A DEFECT IN ANY PRODUCT OR SERVICE PROVIDED BY, OR VIOLATION OF ANY THIRD PARTY’S RIGHTS BY ANY THIRD-PARTY SERVICE PROVIDER, FACILITY OPERATOR OR CARRIER. THE PROVIDER PARTIES’ MAXIMUM TOTAL LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO PROVIDER IN THE THREE (3) MONTHS PRECEDING THE DATE THE CLAIM ACCRUED. THE PROVIDER PARTIES WILL NOT BE LIABLE IN ANY WAY TO ANY USER. 15. INDEMNIFICATION Customer will defend the Provider Parties, at Customer’s expense, against any third-party claim or action, and indemnify and hold harmless the Provider Parties from any and all losses, damages, liabilities, penalties, settlement obligations, costs, attorneys’ fees and other legal expenses related to such third-party claim or action, arising from or related to: (a) Customer’s breach of this Agreement or an agreement between Customer and a third party; (b) Customer’s violation, infringement or misappropriation of the third party’s intellectual property or other rights in Customer’s use of the Services; (c) Customer’s violation of the third party’s privacy, publicity, personality or other rights; (d) Customer’s fraud in use of the Services or fraud or misrepresentation regarding the nature or volume of Customer’s trafc; (e) Customer’s violation of an applicable law; (f) bodily injury, death or property damage to the extent such claim or action arises from the negligence, gross negligence or willful misconduct of Customer, or in the case where strict liability applies; (g) Customer’s business, acts or omissions; or (h) acts or omissions by Users that, if done by Customer, would constitute a breach of this Agreement. Customer will not settle any claim or action without Provider’s prior written consent. Provider will have the option, at its expense, to participate in the defense or settlement of the claim or action with counsel of its own choosing. If a conict of interests arises or exists between the parties or if Provider has a good faith belief that its rights are being harmed by the counsel selected by Customer, Provider will have the right to retain separate counsel to represent its interests at Customer’s sole cost and expense. Customer will not settle any claim without Provider’s prior written consent. 16. EQUIPMENT 16.1 Equipment Purchase. If Provider sells any equipment to Customer, the terms of this Section 16 apply. All equipment shipments are Free On Board (FOB) Provider’s or Provider’s distributor’s facility. Provider’s liability for delivery will cease, and title (if applicable) and all risk of loss or damage will pass to Customer upon delivery to the common carrier for shipment. Customer shall be wholly responsible for insuring any products purchased from the time risk of loss or damage passes to Customer. Provider will pass through to Customer any warranty provided by the manufacturer of the equipment; PROVIDER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY EQUIPMENT. 16.2 Equipment Return Policy. Customer will be required to obtain authorization from Provider to return any equipment. Equipment returned by Customer that is not covered under warranty or that does not bear a return authorization number may be refused. Provider will not replace lost, stolen or modied equipment. Customer must pay all shipping and handling charges related to any equipment returns not covered under warranty. All returned equipment must be unmodied, in good working condition, in the original packaging and include all components, manuals, peripheral devices and all other accessories that were originally shipped with the equipment. Provider may decline Customer’s return or charge Customer an additional fee for each missing item or for each item that Provider reasonably determines is modied, damaged or not in good working condition. Customer must delete all data les stored on returned equipment. Customer acknowledges that any data remaining on returned equipment cannot be recovered, and Customer releases Provider of any liability for any lost, damaged or destroyed les, data or other information. 17. MOBILE APPLICATION Provider may make a mobile application for the Services available to Customer. Subject to this Agreement, Provider grants to Customer a limited, personal, revocable, non-exclusive, non- transferable and non-sublicensable license to install and use the mobile application during the Term. Customer has no other rights in or to the mobile application. The mobile application is licensed, not sold. The terms of this Agreement apply to any updated, upgraded or new versions of the mobile application. Use of the mobile application constitutes use of the Services. Provider may require Users to agree to additional terms and conditions governing use of the mobile application, and Customer agrees that its Users will not be permitted to use the mobile application unless they agree to such terms and conditions. Customer agrees that from time to time and without notice Provider may amend, modify, update or upgrade the mobile application or create new versions of the mobile application. Customer agrees that Provider may automatically update the version of the mobile application that a User is using on a mobile device. Customer consents, on behalf of itself and its Users, to such updating on mobile devices. Updates may cause Customer or a User to lose data, and Provider will not be liable for such loss. Customer agrees that Provider has no obligation to provide support, maintenance or updates for or to the mobile application. To the extent the mobile application contains any third-party software, Customer’s and User’s rights and obligations with respect to such software will be subject to and governed by the third party’s terms and conditions. Provider does not make a representation or warranty that the mobile application will operate on any particular device or operating system. The mobile application is commercial computer software, and to the extent any U.S. government agency uses the mobile application, the U.S. government is only granted the limited rights granted to all other Provider customers. Provider is not a wireless licensee of the FCC, and the mobile application will not be able to provide access to E911 service unless Customer subscribes to wireless service that complies with the FCC’s E911 program, as further explained in Section 13.6. 18. INTELLECTUAL PROPERTY The Services and Software, and all intellectual property therein, are and will remain the exclusive property of Provider. Provider reserves all rights not expressly granted under this Agreement. The Software may contain third-party software that is subject to the terms and conditions of third-party licenses. Neither Customer, Users nor any other third party has a right to inspect, possess, use, copy, or attempt to discover the source code of (or any portion of) the Software, except to the extent that Customer, a User or a third party is expressly permitted to decompile the Software under applicable law and Customer, the User or the third party noties Provider in writing in advance of its intention to decompile the Software and its reason for doing so. 19. PORTAL UPGRADES; PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE Provider may update the Customer and User portals, and Customer agrees that Service may be unavailable during the implementation of such updates. Upon expiration, cancellation or termination of the Services, Customer and Users will relinquish and discontinue use of any accounts, Numbers, voice mail access numbers, and/or web portal Sites assigned to Customer by Provider or its service providers. 20. MISCELLANEOUS 20.1 NOTICES. Unless otherwise specied in this Agreement, any notice required or permitted to be given pursuant to this Agreement will be given in writing by overnight delivery service, sent via certied mail, return receipt requested, e-mailed, or delivered by hand, and such notice will be deemed to have been given and received when delivered or when delivery was refused, or with respect to electronic transmissions, at the time of transmission (unless the sender received a notice of transmission failure). Customer consents to receive all notices in electronic form, and Provider may send any notice to Customer at Customer’s latest physical address or e-mail address provided by Customer. Provider may, in addition to all other methods of giving notice, send any LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES notice to Customer’s mailbox in Customer’s account on the Provider Customer Care Portal. Both parties agree that any agreements and notices made or provided by one or both parties in electronic form, and in accordance with this Agreement, are as legally binding as if made in physical written form. Customer must send all notices to Provider via e-mail in accordance with the following: To report misuse or fraudulent use of Service: CustomerCare@anpi.com To submit a billing dispute: BillingDisputes@anpi.com To terminate Service: CustomerCare@anpi.com All other notices: CustomerCare@anpi.com 20.2 FORCE MAJEURE. Provider’s performance of any part of this Agreement will be excused to the extent that it is hindered by ood, re, natural disaster, strike, riot, war, terrorism, hostile attack, governmental action, cable cuts, supplier shortages, breaches, or delays, Provider’s inability to perform as a result of actions or inactions of third parties, Customer, a User or Provider’s vendors, including, without limitation, Customer’s failure to provide or maintain a circuit with respect to an order for Service, or any other cause (whether similar or dissimilar to those listed) beyond Provider’s reasonable control (a “Force Majeure”). Provider may terminate the Services without liability if a Force Majeure hinders Provider’s performance for more than ve (5) days. 20.3 NO CLASS ACTION. Customer irrevocably waives any right Customer may have to serve as a representative or as a private attorney general, or to participate as a member of a class of claimants, in any lawsuit, arbitration or other proceeding against any Provider Party arising from, related to or connected with this Agreement or any Service Order. 20.4 BINDING NATURE AND ASSIGNMENT. Customer’s rights and obligations in this Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Provider. Except as part of the sale of all or substantially of the assets for Provider or the assignment of this Agreement, or any rights or obligations thereunder, to any of Provider’s afliates (which will not require Customer consent), Provider’s rights and obligations in this Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Customer, which will not be unreasonably withheld. For sake of clarity, Provider may assign, delegate and transfer some or all of its rights and obligations under this Agreement to its afliates. Except as otherwise expressly provided herein, this Agreement will inure to the benet of, and will bind, the heirs, executors, personal representatives, administrators, successors and permitted assigns of Provider and Customer. 20.5 GOVERNING LAW. This Agreement and any related Service Orders will be governed by and construed according to the laws of the State of Illinois, without regard to its conict of laws provisions. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 20.6 ARBITRATION. Any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services, will be resolved by binding arbitration. The Federal Arbitration Act and federal arbitration law applies to this Agreement. The arbitration will be administered by the American Arbitration Association (AAA), conducted by one (1) arbitrator, and conducted in accordance with the AAA’s Commercial Arbitration Rules. The arbitration will be conducted in Springeld, Illinois. The language of the arbitration will be English. The parties’ briefs and other documents and the arbitrator’s ndings and decision will be condential unless required to be disclosed by law. Neither party may use any nding or decision of the arbitrator in existing or subsequent litigation or arbitration involving any other person, entity or organization. The arbitrator must have sufcient experience in the matter(s) at issue. The arbitrator’s decision will follow the plain meaning of the Agreement and will be nal and binding. Neither party will have the right to appeal an error of law or fact. Each party will bear the cost of preparing and presenting its case. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services or products provided or billed to Customer if claims are asserted against Provider in the same proceeding. Notwithstanding the foregoing, either party may bring suit in court to enjoin unauthorized access or trespass to its computer networks or any misappropriation, infringement or violation of its intellectual property rights. The arbitrator will have the exclusive power to rule on the formation, interpretation, applicability, validity or enforceability of this Agreement, including without limitation the validity or enforceability of this arbitration agreement. The arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. If any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services, cannot lawfully be resolved by arbitration, the complainant must bring any claim or action in the state or federal courts for Springeld, Illinois, and the parties waive any objection based on personal jurisdiction, venue or inconvenient forum. 20.7 ENTIRE AGREEMENT, AMENDMENTS, CONFLICT, SEVERABILITY, WAIVER, SURVIVAL. This Agreement, all documents referred to herein and any related Service Order executed by the parties constitute the entire agreement between the parties and supersede any and all prior agreements and rates between the parties with respect to the subject matter hereof. No additions, deletions or modications to this Agreement or any Service Order will be binding unless (a) made in a writing signed by duly authorized representatives of both parties or (b) agreed to by the party to be charged by electronic means. In the event of a conict between any of the terms and conditions of this Agreement and any Service Order, the terms and conditions in the Service Order will prevail. The parties are independent contractors. Nothing contained herein will be construed as creating any agency, partnership, or other form of joint venture or enterprise between the parties. If any provision(s) of this Agreement or any related Service Order is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and the parties further agree to substitute a valid provision that most closely approximates the economic effect of the invalid provision. The failure of either party to require performance by the other party of any provision hereof will not affect the right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken to be a waiver of the provision itself. To the extent permitted by applicable law, the parties agree to and do hereby waive any applicable statutory or common law that may permit a court to construe a contract against its drafter. No claim or cause of action may be asserted against either party more than three (3) months after the time the facts giving rise to the claim or cause of action are discovered or should have been discovered.In the event a suit is brought or an attorney or collection agency is retained by Provider to enforce the terms of this Agreement or any Service Order, or to collect any monies due hereunder, or to collect money damages for breach thereof, Provider will be entitled to recover, in addition to any other remedy available at law or in equity, reimbursement for attorneys’ fees, court costs, collection costs, costs of investigation and other related expenses incurred in connection therewith. The terms and provisions contained in this Agreement and any related Service Order that, by their sense and context, are intended to survive the performance thereof by the parties hereto will survive the completion of performance and termination of this Agreement, including, without limitation, payment obligations, the limitations on damages and liability, ownership of intellectual property, and defense and indemnity obligations. A N P I S I P T RU N K I N G T E R M S AN D C O N D I T I O N S SERVICE TERMS AND CONDITIONS BY ACCEPTING THESE SERVICE TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS BELOW. ALL SERVICE ORDERS AND SERVICES ARE SUBJECT TO THESE TERMS AND CONDITIONS. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES These Service Terms and Conditions (the “Agreement”) are entered into by and between ANPI Business, LLC (“ANPI”), a Delaware limited liability company, and the customer purchasing products or services from ANPI (“Customer”). 1. SERVICES AND TERM Generally, ANPI offers enterprise voice and optional data session initiation protocol (SIP) trunking services, typically including an integrated access device (IAD). Broadband service is required for such services and may be provided by you or purchased from ANPI. The services ordered by Customer from ANPI pursuant to any ANPI Service Order or addendum thereto (each, a “Service Order”) constitute the “Services.” The Services shall commence on the date on which the Services are rst made available to Customer (the “Start Date”) and shall continue for the length of time specied as the Term Commitment on the applicable Service Order (the “Initial Service Term”). After the Initial Service Term and any subsequent term (each, a “Service Term”), this Agreement and the applicable Service Order will renew automatically for an additional twelve (12)-month period, unless either party provides written notice of cancellation at least thirty (30) days before the then-current Service Term ends. Billing for Services and related charges shall commence on the Start Date and shall continue throughout the Service Term. ANPI reserves the right to decline any Service Order. 2. BROADBAND SERVICE To use the Services, Customer must have broadband Internet access service (“Broadband Service”). ANPI may provide Broadband Service as required for the delivery of Services if specied in the applicable Service Order, and in so doing may interact with other telecommunications providers. Monthly charges for such Broadband Service shall begin on the date upon which Customer is notied by ANPI that such Broadband Service is activated and ready for use, and such charges shall be detailed on the Service Order and paid by Customer. Provision of Broadband Service may require that equipment be installed and that, in some cases, additional wiring be congured at Customer’s premises. Installation or wiring charges, if any, are not included in the Service Order and will be billed separately to the Customer. Broadband Service provided by ANPI constitutes a Service. 3. EQUIPMENT To use the Services, an integrated access device (IAD) and/or other ANPI-provided equipment (the “Equipment”) may need to be installed at Customer’s premises. Customer is responsible for installation of the Equipment, unless otherwise specied in a Service Order. At all times, such Equipment is and shall remain the property of ANPI and shall not be considered Customer’s equipment or a xture. Customer will not allow the Equipment to become subject to a lien, security interest or other encumbrance. Customer bears all risk of loss or damage to the Equipment while it is in Customer’s possession, custody or control. If Customer ceases receiving Services from ANPI, Customer must return the Equipment to ANPI undamaged and in its original packaging within thirty (30) days of the termination of Services. Failure to return same will result in an added fee in the amount of the manufacturer’s suggested retail price of the non-returned product. To return Equipment, Customer must request a Return Merchandise Authorization (RMA) number from ANPI in accordance with ANPI’s Return Merchandise Policy, available on ANPI’s web site. Customer is responsible for the cost and risk associated with return shipping of the Equipment. Customer will not attempt to maintain or repair, or permit a third party to maintain or repair, the Equipment. Customer agrees to comply with all instructions and requirements regarding the use and/or care of the Equipment and to take reasonable measures to protect such Equipment at all times. ANPI will repair or replace, in its sole discretion, any Equipment that does not perform as specied, at no charge to Customer, unless it is determined, in ANPI’s sole discretion, that Customer was directly or indirectly responsible for the Equipment failure. ANPI may provide updated or new Equipment to Customer from time to time, and ANPI may require that Customer use the updated or new Equipment to continue to receive the Services. In some cases, Customer will be permitted to use Customer’s own IAD and other equipment. In such a case, Customer will be fully responsible for such equipment, and ANPI makes no representation or warranty with respect to such equipment or its operation with the Services. 4. INSTALLATION OF EQUIPMENT If Customer has contracted for ANPI to install the Equipment, Customer shall, at its expense, have the site prepared prior to ANPI’s arrival and in accordance with ANPI’s installation site preparation specications. Customer shall provide any applicable technical user support during installation at its own expense. If Customer has not contracted for installation from ANPI, Customer shall at its expense diligently perform or have performed all installation requirements for the Equipment. Unless the Service Order species that Customer will provide its own hardware, the Services will be deemed to have been made available to Customer at the time ANPI provides the Equipment to the Customer for self-installation. 5. OWNERSHIP OF INTELLECTUAL PROPERTY The Services and Equipment, and all intellectual property therein, are and shall remain the exclusive property of ANPI. ANPI is not providing any software with the Services or Equipment provided under this Agreement. There is no license granted, implied or constructively given to Customer. 6. SERVICE FEES, TARIFFS AND OTHER CHARGES; TAXES 6.1 Services Fees. The fees for Services will be set forth in the Service Order, and Customer agrees to pay such fees. Service Fees will be billed in advance of delivery of the Services. Monthly Services fees will be billed pro rata in the months in which such Services commence and terminate. 6.2 Bundles of Minutes. Customer may purchase long distance and toll free Bundles of Minutes (BOM) from ANPI at a discounted rate from ANPI’s prevailing per minute rate. When purchasing a BOM, Customer commits to a xed monthly recurring charge (MRC) for the term purchased. BOM charges are billed upon purchase. If Customer’s usage exceeds the purchased bundle total in a time period, ANPI will charge for excess usage at the per minute rate based on Customer’s subscribed package rate. Unused minutes remaining at the end of any Service Term expire and do not carry over to a subsequent term. If Customer declines to purchase a BOM, Customer will be billed monthly in arrears for long distance and toll free usage at ANPI’s then-prevailing per minute usage rates. 6.3 Tariffs. In addition to the fees for the Services specied in a Service Order, Customer will be charged ANPI’s applicable usage, access, storage, feature and other charges included in ANPI’s tariffs (“Tariffs”) but not included as part of Customer’s selected Services plan. This Agreement incorporates by reference all applicable rates, terms and conditions of ANPI’s Tariffs, which are available on ANPI’s web site. This Agreement may be superseded, in whole or in part, by a new or revised Tariff led with the jurisdictional regulatory agency or agencies, which may contain such modications of the provisions of this Agreement, as ANPI deems necessary or appropriate. ANPI may modify its Tariffs from time to time in accordance with applicable Laws and thereby affect Services provided to Customer hereunder, except that the terms and conditions of this Agreement shall supplement any such modied Tariff to the extent they are not inconsistent with the terms and conditions of the Tariff. Customer is responsible for payment of all applicable charges specied in Tariffs and other charges incurred in connection with Services provided to Customer’s numbers, network addresses and authorization codes. Tariff charges are rounded up to the nearest tenth of a cent when billed (three (3) decimal places). Charges based on per-minute of use rates for underlying carrier services purchased by ANPI to provide the services will be calculated on the basis of increments specied by the underlying carrier. Such increments may vary from carrier to carrier. Tariff charges are invoiced to Customer in arrears, except access loop charges and certain other charges as indicated on ANPI’s Tariffs schedule, which are invoiced to Customer upon purchase. Any service provided by ANPI that is not governed by a Service Order shall be offered solely in accordance with the applicable rates, terms and conditions of the Tariffs as the same may be revised from time to time. 6.4 Increases to Fees and Tariffs. The aforementioned notwithstanding and regardless of any fees or Tariffs stated in a Service Order, ANPI may increase the fees for the Services and the Tariffs in the same proportion that ANPI’s costs in providing the Services and related features increase due to mandated regulatory charges, increases in an underlying carrier’s charges or other factors LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES beyond ANPI’s reasonable control. Any such rate increase will be charged through to Customer by ANPI at a rate equal to the increased cost to ANPI, and ANPI will deliver advance notice of any such rate adjustment (thirty (30) days notice of any such adjustment of domestic rates, seven (7) days notice of any such adjustment of international rates). 6.5 Additional Charges. In the event additional charges accrue or are paid by ANPI as a result of direct Customer requests (for example, a request for maintenance services), Customer shall reimburse ANPI for such charges. ANPI is entitled to recover any charges imposed on ANPI by payphone owners or operators. 6.6 Taxes. All charges computed by ANPI are exclusive of any taxes, surcharges, public utility fees and regulatory fees (including Universal Service Fees and similar charges). Such taxes and fees shall be invoiced by ANPI and paid by Customer. Should Customer claim an exemption of any taxes or regulatory fees, Customer shall provide ofcial documented/certied proof of such exemption. It is Customer’s ongoing responsibility to ensure its exempt status, and the proof thereof, remains current. In no event shall ANPI be liable for any taxes due by Customer, and Customer shall defend and indemnify ANPI if any claim for taxes or fees is made. 6.7 Termination of Domestic Usage. The “cost per minute” outlined on any Service Order is based on the assumption that Customer will terminate at least 85% of Customer’s total domestic usage in a tandem owned and operated by a Regional Bell Operating Company (“RBOC”) and subject to such RBOC’s tariffed access charges. ANPI will apply a surcharge of $0.04 per minute of use to the number of minutes by which Customer’s non-RBOC termination (being dened as the sum of outbound minutes that terminate in non-RBOC areas plus inbound (toll-free) minutes that originate in non-RBOC areas) exceeds 15% of Customer’s total domestic usage. For purposes of the calculation pursuant to this paragraph, the Operating Company Number (“OCN”) of the originating or terminating automatic number identication will be used. OCN numbers of 9000 and above are classied as RBOC and OCN numbers below 9000 are classied as non-RBOC. The surcharge will be invoiced to Customer in arrears. 7. PAYMENT TERMS Payment for ANPI’s invoices shall be due thirty (30) days following the date of each invoice. Invoices will be sent by regular mail or e-mail or will be made available on the ANPI Customer Care Portal. If the Customer has agreed to a revenue commitment and does not meet such commitment on a monthly basis, Customer shall be liable for 100% of any shortfall, which shall be due within thirty (30) days of invoice, without set-off or demand. In addition to all other remedies available to ANPI, a late fee shall be assessed in the amount of 1.5% (or the maximum rate permitted by law, whichever is less) of the unpaid balance per month until paid in full for charges not paid within thirty (30) days of the due date. Customer shall notify ANPI in writing of all disputed amounts in its bills within thirty (30) days of the invoice date, identifying in reasonable detail the nature and amount of any such dispute. ANPI shall promptly investigate all timely and appropriately documented disputes and respond to Customer within thirty (30) days. All amounts not so disputed shall be deemed nal and not subject to further dispute. Customer agrees to pay ANPI for all amounts billed and not so disputed, and where a dispute is resolved in favor of ANPI. ANPI will consider fairly any disputes raised in a timely manner, in good faith and appropriately documented. Customer may pay by check or credit card only. Customer agrees to provide ANPI with complete and accurate contact and credit card information, and Customer agrees to advise ANPI of any changes thereto. Customer authorizes ANPI to charge Customer’s credit card automatically to pay for Customer’s charges. If a charge to Customer’s credit card is declined or reversed, or if the account or credit card has expired or been suspended or closed, or if Customer fails to provide ANPI with accurate or complete credit card information, ANPI may suspend or terminate the Services. 8. CREDIT The provision of Services is contingent upon establishment of and continuing credit approval by ANPI. Customer hereby consents to ANPI’s procurement of a credit score or report regarding Customer. At any time during the Service Term, ANPI is entitled to require a deposit or other acceptable form of security from Customer, as it deems appropriate. In addition, if requested by ANPI, Customer agrees to provide, within two (2) business days of request, appropriate nancial records to evaluate Customer’s continuing ability to pay. ANPI may, immediately and without notice, suspend or terminate the Services if Customer fails to comply with these security obligations. Upon a payment default by Customer not cured in a timely manner, ANPI shall have the right to offset against any security or deposit held any amounts owed to ANPI by Customer, and to invoice and collect cancellation charges in accordance with Section 11 below. 9. CUSTOMER RESPONSIBILITIES 9.1 Customer represents and warrants that it will comply with (a) ANPI’s Acceptable Use Policy, available on ANPI’s web site (www.anpi.com), and (b) all applicable laws, regulations, rules, court orders and government agency orders (“Laws”) in its use of the Services and Equipment. 9.2 Customer assumes all risks of and full responsibility for the use of the Equipment and any and all other equipment connected or related to the Equipment or Customer’s computer and telecommunication systems. Customer agrees not to remove the Equipment from the location at which it was initially installed without ANPI’s prior written permission. 9.3 Customer will execute such other documents, provide such other information, and afrmatively cooperate with ANPI, all as may be reasonably required by ANPI relevant to providing the Services. In particular, Customer accepts the responsibility for providing ANPI with special access surcharge exemption forms and letters of agency as may be required by carriers for Services, if any. In addition, Customer agrees that ANPI has the right to audit Customer’s use of the Services and will make Customer’s place of business (or other location at which Equipment is located, if requested by ANPI) available for inspection upon reasonable notice and during reasonable business hours. 9.4 Customer assumes responsibility for the accuracy and completeness of all information provided to ANPI in connection with the providing of Services and will reimburse ANPI for any expenses ANPI reasonably incurs as a result of inaccurate or incomplete information provided by Customer. 9.5 Customer will not sell, lease or license the Services, Equipment or any part thereof. 9.6 Customer must report any unauthorized use of the Services or Equipment to ANPI immediately after Customer discovers such use. Customer is responsible for all use of the Services and Equipment provided to Customer, whether authorized or unauthorized. 9.7 Customer will not remove serial numbers or labels from, disassemble, reverse engineer, decompile, reset or otherwise tamper with the Equipment or any software embedded therein. 9.8 Customer will not challenge or attempt to register or otherwise protect any of ANPI’s intellectual property or other rights in the Services and/or Equipment. 10. CONDITIONS AND LIMITATIONS ON SERVICES 10.1 Customer may only use the Services and Equipment in the United States of America. 10.2 Customer understands and accepts that calls to certain countries may require ANPI’s assistance in accordance with ANPI’s fraud advisory and policy set forth on ANPI’s web site (www.anpi.com) as part of ANPI’s Acceptable Use Policy. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES 10.3 Customer understands and accepts that the Services and Equipment will not function in the case of a power or Internet services failure or outage. Failure or an outage of power or Internet services will not relieve Customer of its payment obligations under this Agreement. During such a failure or outage, Customer will not be able to call for 911 or other emergency services. 11. CANCELLATION, SUSPENSION AND TERMINATION 11.1 Cancellation by Customer. Upon thirty (30) days written notice, Customer may cancel the Services or any portion thereof provided pursuant to a Service Order. Such notice of cancellation must be accompanied by payment in full for all Services to be provided during such thirty (30)-day notice period plus a cancellation charge (“Cancellation Charge”) as follows: (a) 100% of the total remaining monthly recurring charges for the remaining balance of a one (1)-year Service Term; (b) 75% of the total remaining monthly recurring charges for the remaining balance of a two (2)-year Service Term; (c) 50% of the total remaining monthly recurring charges for the remaining balance of a three (3)-year Service Term; (d) any discounts of the non-recurring install charge (NRC) that had been applied; and (e) the local number porting cancellation fee, if applicable. 11.2 Suspension or Termination by ANPI. ANPI may terminate this Agreement and any and all Service Orders, and the delivery of Services thereunder, at any time upon ANPI giving Customer two (2) business days written notice of such termination, during which time the Customer shall have the opportunity to cure, in the event that ANPI determines, in its sole and absolute discretion, that: (a) Customer has failed to make payments or to perform any other obligation or condition of this Agreement or a Service Order; (b) Customer is using the Services in a manner that interferes with or otherwise disrupts services provided by ANPI to others; (c) Customer has used, attempted to use, intends to use or is using the Services in violation of any applicable Law; (d) Customer is insolvent, has made a general assignment for the benet of creditors, has led, or had led against it, a petition in bankruptcy, or has had a receiver or trustee appointed for it or any of its assets; (e) Customer has made an unauthorized assignment of the Agreement or a Service Order; or (f) in the event that ANPI has required Customer to provide a forecast covering a good faith estimate of the trafc volume and distribution for the ordered Services, Customer’s usage exceeds such forecast provided. In the event of termination by ANPI under this Section 11.2, Customer shall pay to ANPI, upon demand, all amounts specied in Section 11.1 hereof, as a cancellation charge and not as a penalty, and ANPI may exercise any and all remedies at law, in equity and/or under this Agreement. ANPI may suspend any or all of the Services being provided to Customer immediately if any of the foregoing grounds for termination exists. If Services are suspended, a restoration charge may apply and a deposit in an amount equal to one (1)-month’s recurring charges, or greater, may be required, at ANPI’s sole discretion, prior to ANPI restoring the Services. In addition, if ANPI discovers or suspects that Customer has engaged in, attempted to engage in, intends to engage in or is engaging in fraudulent or other unlawful activity, ANPI has the right to provide Customer’s contact information to the police and other government authorities. ANPI may also terminate this Agreement, the Services and all related Service Orders at the end of the term stated in the Service Order by providing written notice to Customer prior to expiration of the then-current term; ANPI has no obligation to permit renewal of the Services and/or Service Orders. 11.3 Additional Cancellation and Termination Charges. In the event of any cancellation or termination described in this Agreement, Customer shall also pay ANPI an amount equal to any and all Tariffs, termination charges, porting fees, expenses, taxes, fees, costs and additional charges due under any and all applicable Service Orders, and any charges due to any carrier or Broadband Service provider that has provided services to Customer. 11.4 Cancellation for Legal Compliance. Notwithstanding the foregoing, and upon thirty (30) days prior written notice, either Customer and ANPI shall have the right, without payment of any cancellation charge or other liability, to cancel any affected portion of the Services if: (a) ANPI is prohibited by Law from providing such portion of the Services; (b) any material rate or term contained herein and relevant to the affected Services is substantially changed by or as a result of any regulation or order issued by any court of competent jurisdiction, the Federal Communications Commission, any other local, state or federal government authority, or any carrier or Broadband Service provider; or (c) any carrier or Broadband Service provider from which ANPI is purchasing and reselling services to Customer is unable to provide its services to ANPI. 12. EMERGENCY 911 SERVICES 12.1 Generally. Emergency 911 services (including without limitation Enhanced 911 (E911) services) that may be provided by ANPI in connection with the Services may differ in certain respects from the emergency calling services provided by a traditional wire-line telecommunications provider. These differences may adversely affect the availability and/or timeliness of the provision of 911 services to Customer or others in the event of an emergency. Customer may have to enable 911 services on its devices or Services account. 911 dialing are not automatic. When a user dials 911 using the Services, the user will be routed to the general telephone number for the public safety answering point (PSAP) or local emergency service provider (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are specically designated to receive incoming 911 calls using traditional wire-line telecommunications 911 dialing. ANPI relies on third parties for the forwarding of information underlying the routing of 911 calls, and accordingly ANPI disclaims any and all liability or responsibility in the event such information is incorrect or delayed, or in the event the routing of a 911 call fails. In addition, due to limitations in technology, the location reported by ANPI to the public safety dispatcher for Customer’s telephone may not include the Customer’s specic ofce or other location within a business premises. Due to the inherent limitation in ANPI’s provision of 911 services, CUSTOMER SHOULD ALWAYS HAVE AN ALTERNATE MEANS OF ACCESSING EMERGENCY 911 SERVICES. 12.2 Locations of Users. Customer is responsible for the accurate reporting of the physical location where the Services are to be used and for instructing each employee, agent and contractor that he/she must provide ANPI with the specic location in which he/she is located within the Customer’s premises in the event of an emergency. Customer is required to maintain valid E911 addresses for each of Customer’s physical locations where the Services are deployed. Should an emergency arise, emergency services may be delayed or may be unable to respond to Customer’s needs if Customer’s account does not have a valid E911 address on le. Failure to provide and maintain valid and current information as to the physical location of the telephone(s) could result in a charge to the Customer’s account. In the event that any equipment used in connection with the Services is moved to another location, Customer is responsible for notifying ANPI and updating Customer’s account records to reect the new address where the Services are to be provided, and for instructing each employee, agent and contractor that he/she must update ANPI promptly when such employee, agent or contractor changes the physical location to which the Services are being provided. Even though Customer will be able to use the Services in the event Customer changes the physical location where the Services are to be provided, failure to update emergency dispatch information promptly could result in the failure to dispatch. 12.3 Limitations. As indicated in Sections 12.1 and 12.2, ANPI’s provision of Enhanced 911 service has several limitations. Those limitations may prevent Customer from making emergency calls. Additional factors that could result in Enhanced 911 failures include but are not limited to any of the following: Loss of electrical power Loss of Internet connection for any reason Defective customer premises equipment Network congestion Delays in updating Customer’s registered service address Unavailability of E911 service for phones or addresses outside the United States or Canada LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES Customer should inform all employees, agents and contractors who may have access to E911 service about this section of the Agreement and make sure they understand the terms and conditions under which the E911 service is available. Customer is solely responsible for marking its telephones and any other devices regarding the potential non-availability of traditional 911 or E911 dialing. In addition, Customer should inform its employees, agents and contractors of the following guidelines for use of 911 or E911 service in connection with the Services: Do not hang up from a 911 or E911 emergency service call unless and until instructed to do so by the 911 operators. If the call is disconnected for any reason, immediately dial 911 again. The caller must be prepared to provide a physical address and a callback telephone number to the 911 operators. 13. DISCLAIMER AND LIMITATION OF LIABILITY 13.1 GENERALLY. ANPI DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING FROM A COURSE OF DEALING OR PERFORMANCE, WITH REPSECT TO THE SERVICES, EQUIPMENT, AND ANY OTHER ANPI PRODUCTS, SERVICES OR EQUIPMENT PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE IN A WORKMAN-LIKE MANNER, COMPLIANCE WITH LAWS, QUALITY, ACCURACY, COMPLETENESS OR CURRENCY OF INFORMATION, SYSTEM INTEGRABILITY, TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT. ANPI DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE PRODUCTS, SERVICES OR EQUIPMENT PROVIDED WILL OPERATE UNINTERRUPTED, ERROR FREE OR WITHOUT DEGREDATION OR LOSS OF DATA, OR BE SECURE. IN NO EVENT WILL ANPI OR ITS AFFILIATE, THIRD-PARTY SERVICE PROVIDER, FACILITY OPERATOR OR CARRIER, OR THEIR RESPECTIVE OWNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, “ANPI PARTIES”) BE LIABLE FOR ANY DIRECT, ACTUAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY COST OF COVER OR LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR AN ANPI PARTY’S PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER, A FAILURE OF OR A DEFECT IN THE SERVICES, EQUIPMENT OR ANY PRODUCT, AN ANPI PARTY’S VIOLATION OF A THIRD PARTY’S RIGHT, OR AN ANPI PARTY’S ACTS OR OMISSIONS. ANPI WILL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF, A FAILURE OR A DEFECT IN ANY PRODUCT OR SERVICE PROVIDED BY, OR VIOLATION OF ANY THIRD PARTY’S RIGHTS BY ANY THIRD-PARTY SERVICE PROVIDER, FACILITY OPERATOR OR CARRIER. THE ANPI PARTIES’ MAXIMUM TOTAL LIABILITY TO CUSTOMER WILL NOT EXCEED ONE MONTH’S RECURRING CHARGES UNDER THE RELEVANT SERVICE ORDER. 13.2 EMERGENCY 911 SERVICES. IN ADDITION TO THE FOREGOING, IN NO EVENT WILL ANY ANPI PARTY BE LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS RELATED TO 911 DIALING OR THE INABILITY TO REACH 911 EMERGENCY SERVICES, AND CUSTOMER HEREBY WAIVES AND RELEASES ALL CLAIMS AND ACTIONS ARISING FROM OR RELATED TO 911 DIALING OR THE INABILITY TO REACH 911 EMERGENCY SERVICES. CUSTOMER AGREES TO DEFEND AND INDEMNIFY THE ANPI PARTIES FROM AND AGAINST ANY CLAIM OR ACTION, AND ANY AND ALL RELATED LOSSES, DAMAGES, LIABILITIES, PENALTIES, SETTLEMENT OBLIGATIONS, COSTS, ATTORNEYS’ FEES AND OTHER LEGAL EXPENSES, RELATED TO 911 DIALING OR THE INABILITY TO REACH 911 EMERGENCY SERVICES. 14. INDEMNIFICATION 14.1 Indemnication by ANPI. ANPI will defend Customer, at its expense, against any third-party claim or action, and indemnify Customer from any and all losses, damages, liabilities, settlement obligations, costs, attorneys’ fees and other legal expenses related to such third-party claim or action, for bodily injury, death or property damage arising from ANPI’s gross negligence or willful misconduct. Customer must: (a) promptly notify ANPI in writing of the claim or action; (b) allow ANPI to control, and cooperate with ANPI in, the defense and any related settlement negotiations; and (c) be and remain in compliance with this Agreement. 14.2 Indemnication by Customer. Customer will defend the ANPI Parties, at Customer’s expense, against any third-party claim or action, and indemnify the ANPI Parties from any and all losses, damages, liabilities, penalties, settlement obligations, costs, attorneys’ fees and other legal expenses related to such third-party claim or action, arising from or related to: (a) Customer’s breach of this Agreement or an agreement between Customer and a third party; (b) Customer’s violation, infringement or misappropriation of the third party’s intellectual property or other rights in Customer’s use of the Services or Equipment; (c) Customer’s violation of the third party’s privacy, publicity, personality or other rights; (d) Customer’s fraud in use of the Services or Equipment or fraud or misrepresentation regarding the nature or volume of Customer’s trafc; (e) Customer’s violation of an applicable Law; (f) bodily injury, death or property damage to the extent such claim or action arises from the negligence, gross negligence or willful misconduct of Customer, or if strict liability applies; or (g) Customer’s business, acts or omissions. Customer will not settle any claim or action without ANPI’s prior written consent. ANPI will have the option, at its expense, to participate in the defense or settlement of the claim or action with counsel of its own choosing. If a conict of interests arises or exists between the parties or if ANPI has a good faith belief that its rights are being harmed by the counsel selected by Customer, ANPI will have the right to retain separate counsel to represent its interests at Customer’s sole cost and expense. 15. PRIVACY The Services use the public Internet and third-party networks to transmit voice communications and data. ANPI is not liable for the interception, use or disclosure of Customer’s voice communications or data. ANPI does not represent, warrant or covenant that the Services or Equipment will maintain the privacy or security of Customer’s voice communications or data. 16. NOTICES Any notice required or permitted to be given pursuant to this Agreement shall be given in writing by overnight delivery service, sent via certied mail, return receipt requested, emailed, or delivered by hand, and such notice shall be deemed to have been given and received when delivered or when delivery was refused, or with respect to electronic transmissions, at the time of transmission (unless the sender received a notice of transmission failure). ANPI may send any notice to Customer at Customer’s latest physical address or email address provided by Customer. ANPI may, in addition to all other methods of giving notice, send any notice to Customer’s mailbox in Customer’s account on the ANPI Customer Care Portal. Customer must send all notices to the physical address, or email address stated on ANPI’s web site (www.anpi.com) as ANPI’s current contact information. 17. FORCE MAJEURE ANPI’s performance of any part of this Agreement shall be excused to the extent that it is hindered by ood, re, natural disaster, strike, riot, war, terrorism, hostile attack, governmental action, cable cuts, supplier shortages, breaches, or delays, or any other cause (whether similar or dissimilar to those listed) beyond ANPI’s reasonable control (“Force Majeure”). ANPI may terminate the Services without liability in the case a Force Majeure hinders ANPI’s performance for more than ve (5) days. 18. ENFORCEMENT In the event a suit is brought or an attorney or collection agency is retained by ANPI to enforce the terms of this Agreement or any Service Order, or to collect any monies due hereunder, or to collect money damages for breach thereof, ANPI shall be entitled to recover, in addition to any other remedy available at law or in equity, reimbursement for reasonable attorneys’ fees, court costs, collection costs, costs of investigation and other related expenses incurred in connection therewith. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES 19. ENTIRE AGREEMENT This Agreement, all documents referred to herein and any related Service Order executed by the parties constitute the entire agreement between the parties and supersede any and all prior agreements between the parties with respect to the subject matter hereof. No additions, deletions or modications to this Agreement or any Service Order shall be binding unless (a) made in a writing signed by both parties or (b) agreed to by the party to be charged by electronic means. In the event of a conict between any of the terms and conditions of this Agreement and any Service Order, the terms and conditions in the Service Order shall prevail. 20. NO CLASS ACTION Customer irrevocably waives any right Customer may have to serve as a representative or as a private attorney general, or to participate as a member of a class of claimants, in any lawsuit, arbitration or other proceeding against any ANPI Party arising from, related to or connected with this Agreement. 21. BINDING NATURE AND ASSIGNMENT This Agreement and any related Service Orders shall be binding upon and inure to the benet of the parties hereto and their respective successors or assigns; provided, however, that Customer shall not assign or transfer its rights or obligations hereunder without the prior written consent of ANPI. ANPI may subcontract all or any part of the Services provided and assign and transfer its rights and obligations under this Agreement. 22. ELECTRONIC COMMUNICATIONS Customer consents to receive all notices in electronic form. Both parties agree that any agreements and notices made, accepted and/or given by one or both parties in electronic form are as legally binding as if made in physical written form. 23. ONLINE ACCOUNT RESPONSIBILITY Customer is solely responsible for protecting the secrecy of its username and password. Customer will be liable for any access and/or use of its account, authorized or unauthorized, using Customer’s username and password. Customer must notify ANPI immediately if it suspects unauthorized use of its account. 24. INDEPENDENT CONTRACTORS The parties are independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint venture or enterprise between the parties. 25. GOVERNING LAW This Agreement and any related Service Orders shall be governed by and construed according to the laws of the State of Illinois, without regard to its conict of laws provisions. 26. LIMITATION ON CLAIMS No cause of action may be asserted against either party more than one (1) year after the time the facts giving rise to the cause of action are discovered or should have been discovered. 27. ARBITRATION Any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services or Equipment, shall be resolved by binding arbitration. The Federal Arbitration Act and federal arbitration law applies to this Agreement. The arbitration will be administered by the American Arbitration Association (AAA), conducted by one (1) arbitrator, and conducted in accordance with the AAA’s Commercial Arbitration Rules. The arbitration shall be conducted in Springeld, Illinois. The parties’ briefs and other documents and the arbitrator’s ndings and decision will be condential unless required to be disclosed by law. Neither party may use any nding or decision of the arbitrator in existing or subsequent litigation or arbitration involving any other person, entity or organization. The arbitrator must have sufcient experience in the matter(s) at issue. The arbitrator’s decision shall follow the plain meaning of the Agreement and shall be nal and binding. Neither party shall have the right to appeal an error of law or fact. Each party shall bear the cost of preparing and presenting its case. The fees and expenses of the AAA, including the arbitrator, shall be the responsibility of the non-prevailing party. Any claim or action to enter or enforce the award shall be initiated in the state or federal courts for Springeld, Illinois. Notwithstanding the foregoing, either party may bring suit in court to enjoin unauthorized access or trespass to its computer networks or any misappropriation, infringement or violation of its intellectual property rights. The arbitrator will have the exclusive power to rule on the formation, interpretation, applicability, validity or enforceability of this Agreement, including without limitation the validity or enforceability of this arbitration agreement. The arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. 28. FORUM If any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services or Equipment, cannot lawfully be resolved by arbitration as described in Section 27, the complainant must bring any claim or action in the state or federal courts for Springeld, Illinois, and the parties waive any objection based on personal jurisdiction, venue or forum non conveniens. 29. SEVERABILITY If any provision(s) of this Agreement or any related Service Order shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and the parties further agree to substitute a valid provision that most closely approximates the economic effect of the invalid provision. 30. WAIVER The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. 31. CONSTRUCTION To the extent permitted by applicable law, the parties agree to and do hereby waive any applicable statutory and common law that may permit a court to construe a contract against its drafter. 32. SURVIVAL LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES The terms and provisions contained in this Agreement and any related Service Order that, by their sense and context, are intended to survive the performance thereof by the parties hereto shall survive the completion of performance and termination or cancellation, including, without limitation, the making of any and all payments due hereunder. A N P I B US I N E S S , L LC R AT E S A N D T E R M S Federal Federal Price List To see our Tariffs, click here Name Disclosure: On December 12, 2012 Zone Telecom, LLC, a Delaware limited liability company, changed its name to ANPI Business, LLC (“ANPI Business”), a Delaware limited liability company. ANPI Business has not changed any rates, regulations or conditions of service as a result of this name change, and customers will continue to receive the same quality service from ANPI Business as they always have. A N P I P R I VAC Y S TAT E ME NT ANPI is committed to protecting your privacy and developing technology that gives you the most powerful and safe online experience. This Statement of Privacy applies to ANPI’s website and governs data collection and usage. By using the ANPI website, you consent to the data practices described in this statement. Collection of your Personal Information ANPI collects personally identiable information, such as your email address, name, home or work address or telephone number. ANPI also collects anonymous demographic information, which is not unique to you, such as your ZIP code, age, gender, preferences, interests and favorites. Information about your computer hardware and software is also automatically collected by ANPI. This information can include: your IP address, browser type, domain names, access times and referring website addresses. This information is used by ANPI for the operation of the service, to maintain quality of the service, and to provide general statistics regarding use of the ANPI website. Please keep in mind that if you directly disclose personally identiable information or personally sensitive data through ANPI public message boards, this information may be collected and used by others. Note: ANPI does not read any of your private online communications. ANPI encourages you to review the privacy statements of websites you choose to link to from ANPI so that you can understand how those websites collect, use and share your information. ANPI is not responsible for the privacy statements or other content on websites outside of the ANPI family of websites. Use of your Personal Information ANPI collects and uses your personal information to operate the ANPI website and deliver the services you have requested. ANPI also uses your personally identiable information to inform you of other products or services available from ANPI and its afliates. ANPI may also contact you via surveys to conduct research about your opinion of current services or of potential new services that may be offered. ANPI does not sell, rent or lease its customer lists to third parties. ANPI may, from time to time, contact you on behalf of external business partners about a particular offering that may be of interest to you. In those cases, your unique personally identiable information (email, name, address, telephone number) is not transferred to the third party. In addition, ANPI may share data with trusted partners to help us perform statistical analysis, send you email or postal mail, provide customer support, or arrange for deliveries. All such third parties are prohibited from using your personal information except to provide these services to ANPI, and they are required to maintain the condentiality of your information. ANPI does not use or disclose sensitive personal information, such as race, religion, or political afliations, without your explicit consent. ANPI keeps track of the websites and pages our customers visit within ANPI, in order to determine what ANPI services are the most popular. This data is used to deliver customized content and advertising within ANPI to customers whose behavior indicates that they are interested in a particular subject area. ANPI websites will disclose your personal information, without notice, only if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on ANPI or the site; (b) protect and defend the rights or property of ANPI; and, (c) act under exigent circumstances to protect the personal safety of users of ANPI, or the public. Use of Cookies The ANPI website uses “cookies” to help you personalize your online experience. A cookie is a text le that is placed on your hard disk by a webpage server. Cookies cannot be used to run programs or deliver viruses to your computer. Cookies are uniquely assigned to you, and can only be read by a web server in the domain that issued the cookie to you. One of the primary purposes of cookies is to provide a convenience feature to save you time. The purpose of a cookie is to tell the Web server that you have returned to a specic page. For example, if you personalize ANPI pages, or register with ANPI site or services, a cookie helps ANPI to recall your specic information on subsequent visits. This simplies the process of recording your personal information, such as billing addresses, shipping addresses, and so on. When you return to the same ANPI website, the information you previously provided can be retrieved, so you can easily use the ANPI features that you customized. You have the ability to accept or decline cookies. Most web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. If you choose to decline cookies, you may not be able to fully experience the interactive features of the ANPI services or websites you visit. Security of your Personal Information ANPI secures your personal information from unauthorized access, use or disclosure. ANPI secures the personally identiable information you provide on computer servers in a controlled, secure environment, protected from unauthorized access, use or disclosure. When personal information (such as a credit card number) is transmitted to other Web sites, it is protected through the use of encryption, such as the Secure Socket Layer (SSL) protocol. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES Changes to this Statement ANPI will occasionally update this Statement of Privacy to reect company and customer feedback. ANPI encourages you to periodically review this Statement to be informed of how ANPI is protecting your information. Contact Information ANPI welcomes your comments regarding this Statement of Privacy. If you believe that ANPI has not adhered to this Statement, please contact ANPI at marketing@anpi.com. We will use commercially reasonable efforts to promptly determine and remedy the problem. M I CRO S O F T T E AM S A D D I TI O N A L T E R M S A N D C O N D I T I O N S This agreement (together with Appendix A, the “Agreement”) applies to the Microsoft Teams Products, Services or Subscriptions provided as provided or resold by Inteliquent, Inc. (and its afliates providing the Services below, “Seller”) to the customer (“Customer”) (the “Parties”) using or reselling such Products, Services or Subscriptions. If the Parties have signed a Master Services Agreement (“MSA”) or similar agreement, the MSA is incorporated into this Agreement. Description of Products, Services or Subscriptions MS Teams Client Integration connects Microsoft Teams users (“Subscribers” or “End Users”) to existing Unied Communications (“UC”) services from Inteliquent.  Users may utilize Microsoft Teams to make and receive calls to the Public Switched Telephone Network (PSTN) with a telephone number associated with their separately purchased UC Seat.  Microsoft Ofce 365 licensing necessary to enable voice features within Microsoft Teams is an end user responsibility. Fees Fees for the Products, Services or Subscriptions shall be provided to Customer in a Service Order, or similar document. Territory Customer shall limit its activities under this Agreement to the following regions, countries, locations, and/or End Users (the “Territory”):  All 50 states of the United States of America plus its territories, Washington, D.C. and Puerto Rico (except U.S. federal government). Customer acknowledges that its appointment under this Agreement is nonexclusive and that it obtains no exclusive rights in any geographic area, customer group or market for the Products, Services, or Subscriptions. Customer further acknowledges Seller’s right to appoint additional distributors, resellers, managed service providers, OEMs, sale representatives and any other channels and entities to make direct or indirect sales, or additional distribution of the Products, Services, or Subscriptions or any other Seller products and services in the Territory to any customers in that Territory or elsewhere without liability or obligation to Customer. Trademarks Customer is hereby prohibited from otherwise copying and from translating, modifying or adapting the software portion of the Products or incorporating in whole or any part in any other product or creating derivative works based on all or any part of the Products. Customer is not authorized to license others to reproduce any copies of the software portion of the Products, except as expressly provided in this Agreement. Customer agrees to ensure that all patent, copyright, trademark and other proprietary notices of Seller afxed to or displayed on the software portion of the Products will not be removed or modied. Customer shall not decompile, disassemble or reverse engineer, the software portion of the Products or any component thereof, except as may be permitted by applicable law, in which case Customer must notify Seller in writing and Seller may provide review and assistance. Customer shall not delete or alter any trade names, trademarks, logos, markings, colors and other insignia (the “Trademarks”) which are afxed to the Products and included in related materials. Customer may only use the Trademarks in conjunction with Customer’s marketing, sale and license of the Products, Services or Subscriptions and in accordance with Seller’s then-current guidelines on trade name and Trademark usage which will be provided, from time to time, at Customer’s request. Upon expiration or termination of this Agreement, at Seller’s expense, Customer shall take all actions necessary to transfer and assign to Seller, any right, title or interest in and to any of the Trademarks, and the goodwill related thereto, which Customer may have acquired in any manner as a result of the handling and selling of Products under this Agreement and shall immediately cease to use any Trademark. Customer shall immediately, upon receiving knowledge, notify Seller of any infringement or potential infringement of any Trademark in the Territory. Customer shall promptly advise Seller in writing of any complaints or claims brought or threatened against Customer and/or claims threatened against Seller with respect to the sale or use of the Products or with respect to any alleged patent, copyright, trademark, or other intellectual property infringement. Payment terms For Subscriptions, Customer agrees to complete the appropriate order form (“Order Form”) for the Subscriptions as provided by Seller. Subscriptions will commence upon receipt and acceptance by Seller of a Subscription Order Form. Sublicense of Software Products and Firmware Subject to the provisions of this section, Seller duly possesses and grants to Customer a nonexclusive, nontransferable license to use the object code form of the software Products only as necessary to carry out the following activities in accordance with this Agreement: (i) market and distribute the software Products solely for use in conjunction with Seller’s Products, (ii) demonstrate the software Products to potential purchasers/licensees of the Products and (iii) service and support Customer’s Customers hereunder. Except as otherwise permitted above, Customer’s internal use of any software Products licensed hereunder shall be subject to the Seller software EULA. To the extent that Customer is required to support Customer’s Customers pursuant to this Agreement, Seller also hereby grants to Customer a nonexclusive, nontransferable license to copy and distribute software Products to Customer’s Customers for purposes of providing customer support. Localization of the Products requires Seller’s prior written approval and may be subject to additional terms and conditions. Customer is hereby prohibited from otherwise copying and from translating, modifying or adapting the software portion of the Products or incorporating in whole or any part in any other product or creating derivative works based on all or any part of the Products. Customer is not authorized to license others to reproduce any copies of the software portion of the Products, except as expressly provided in this Agreement. Customer agrees to ensure that all patent, copyright, trademark and other proprietary notices of Seller afxed to or displayed on the software portion of the Products will not be removed or modied. Customer shall not decompile, disassemble or reverse engineer, the software portion of the Products or any component thereof, except as may be permitted by applicable law, in which case Customer must notify Seller in writing and Seller may provide review and assistance. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES To enable Customer to market and distribute the software Products, Seller grants to Customer the nonexclusive, nontransferable right, perpetually, except for Software licensed on a subscription or limited term basis per the applicable Product or Service description, subject to the terms of this Agreement, to sublicense the software Products in object code form to Customer’s Customers, as sublicensees, for their internal use only by means of the written nonexclusive and nontransferable Seller software EULA or in a form substantially similar to and no less restrictive or limited than the EULA. Such agreement between Customer and each of its sublicensees shall contain a provision providing that Seller is a beneciary of the EULA and may enforce such agreement directly against the sublicensee. In the event of a sublicensee’s material breach of its sublicense, Customer shall promptly notify Seller of such breach and will reasonably assist Seller to institute legal action against such sublicensee if requested by Seller. Warranties Seller warrants that it is legally permitted to provide the Services, Subscriptions and Products to Customer and is providing all Services and Products in accordance with all applicable laws and regulations. Further, to the extent legally and contractually permissible, Seller agrees to pass through to Customer all applicable warranties and indemnications provided to Seller by its third-party vendors. Customer’s sole remedy for Seller’s breach of this clause shall be a refund of the amounts paid during the event or events giving rise to the claim. In the event this remedy is deemed to fail of its essential purpose, under no circumstances shall Seller’s liability under this clause exceed ten thousand dollars ($10,000). Indemnication Customer shall defend any third-party claim, suit or proceeding, and indemnify and hold Seller and its afliates harmless from and against any settlement amounts, damages, liabilities, penalties, nes and reasonable expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or in connection with (i) the sale, license, servicing and related activities pursuant to this Agreement; (ii) the failure of Customer to comply with all applicable laws, rules, and/or regulations regarding using, providing, advertising, selling, licensing, importing or exporting the Products, Services or Subscriptions; (iii) Customer’s attachment to the Products of any tradename, trademark or logo that is challenged as an infringement of the proprietary rights of any third party; (iv) any warranties granted by Customer, or any implied warranties claimed by any of Customer’s purchasers or end users, in excess of those warranties contained herein; or (v) from any negligent or willful act or omission of Customer. The indemnifying Party’s indemnication and defense obligations are subject to the indemnied Party’s compliance with the following procedures: (a) the indemnied Party will promptly notify the indemnifying Party in writing of any claim or the commencement of any suit, action, proceeding or threat that the indemnied Party believes will result in losses for which it will be entitled to indemnication; (b) the indemnied Party will tender to the indemnifying Party (and its insurer) full authority to defend or settle any such claim; and (c) the indemnied Party shall cooperate in the defense of such claim (at the indemnifying Party’s expense). The indemnifying Party will use counsel reasonably acceptable to the indemnied Party in connection with its defense of any claim hereunder. The indemnied Party may participate in the defense or settlement of any such claim, suit or proceeding with counsel of its own choosing at its own expense. Independent Contractor Status Customer shall conduct its business under this Agreement as a principal for its own account at its own expense and risk. The relationship between the Parties is that of independent contractors. This Agreement creates no relationship of principal and agent, Customer, joint venturer or any similar relationship between Seller and Customer. The grant of the right to sell the Products, Services and Subscriptions for the term hereof does not constitute a franchise or grant to Customer any continuing rights or interest in selling Seller’s Products, Services and Subscriptions beyond the term hereof. Customer agrees that it does not have and will not have any authority to act on Seller’s behalf. Customer further covenants and warrants that it will not act or represent itself, directly or by implication, to be an agent for Seller and will not attempt to create any obligation or make any representation on behalf of or in the name of Seller. Customer represents that it has no contractual or legal obligations that conict with Customer’s carrying out its obligations hereunder. Termination This Agreement may be terminated by either Party in the event it noties in writing the other Party of a material breach under this Agreement and the other Party does not cure such breach within thirty (30) days of receipt of such notice. Seller may immediately suspend the Services if it reasonably suspects the Services are used for improper purposes (as Seller’s sole discretion. Further, Seller may terminate this Agreement for any reason upon thirty (30) days’ written notice. Export Controls and Compliance with Law Export Laws. Customer acknowledges that the exportation or re-exportation of Seller Product(s), Condential Information, and related technical data is subject to local country export laws and regulations. Customer agrees to comply with all applicable export and import laws and regulations. U.S. Export Laws. For Seller Product exports from the United States of America (“U.S.”), Customer acknowledges that the exportation of Seller Product(s), condential information, and related technical data from the U.S. is subject to U.S. export laws including without limitation the U.S. Bureau of Industry and Security (“BIS”) Export Administration Regulations and the U.S. Ofce of Foreign Assets Control (“OFAC”) which restrict exports, re-exports and release of the Products, related technical data and direct products of such technical data. Customer shall not commit any act which would, directly or indirectly, violate any United States or local law, regulation, treaty or agreement to which the United States adheres or complies relating to the export or reexport of the Product or related technical data, or products thereof. Prohibited Countries. Customer shall not sell, license or distribute, directly or indirectly, any of the Products (including any part of a Product or any direct product of such Products) or related technical data into any of those countries or to a national of any country listed in the then-current applicable United States export regulations as “embargoed, prohibited or restricted” countries (collectively, the “Prohibited Countries”). Prohibited Countries may change from time to time. Customer further agrees not to distribute or supply the Products (including any part of a Product or any direct product of such Products) or related technical data to any entity or person if Customer has reason to believe that such entity or person intends to export, re- export or otherwise transfer the same to, or use the same in, any of the Prohibited Countries. Customer agrees to seek reasonable written assurances in the form of binding covenants from its customers as may from time to time be requested by Seller. Proliferation Controls. Customer agrees not to sell, license or distribute and Products (including any part of a Product or any direct product of such Products) or related technical data, directly or indirectly, for use in nuclear, chemical, biological warfare or missile activities or facilities engaged in such activities or to any entity listed in the U.S. BIS Entities List, without rst obtaining written authorization to do so from the U.S. BIS or other applicable U.S. government agencies. Prohibited Parties. Customer agrees not to sell, license or distribute and Products (including any part of a Product or any direct product of such Products) or related technical data, directly or indirectly, to any individual or entity listed on a “prohibited” list issued by any U.S. government agency, including without limitation the U.S. BIS Denied Persons List, the U.S. OFAC Specially Designated Nationals List, or Debarred List. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES End User Certication. Upon Seller’s request before shipment of Products and materials for U.S. export to certain designated countries as identied by Seller from time to time, Customer agrees to obtain from its End-User a signed End User Certication (EUC) for the End User to certify that it is the nal recipient of the exported Products and materials and it has no intention of re-exporting such Products and materials to another party. Customer agree to use the EUC form available from Seller which is required to be on the End User’s company letterhead as instructed per the form. Export License. If an export license is required before Seller can sell or transfer any of the Product(s) or related technical data to Customer, Customer acknowledges and agrees that Seller shall be under no obligation to effect such sale or transfer until the required export license is obtained. Seller shall use reasonable efforts to expeditiously obtain such required export licenses or approvals. Anti-Bribery and Anti-Corruption Laws. Each Party represents and warrants to the other Party that the rst Party is familiar with all applicable domestic and foreign antibribery or anticorruption laws, including the Foreign Corrupt Practices Act and the U.K. Bribery Act, which prohibit such Party, and, if applicable, its ofcers, employees, agents and others working on its behalf, from taking corrupt actions in furtherance of an offer, payment, promise to pay or authorization of the payment of anything of value, including but not limited to cash, checks, wire transfers, tangible and intangible gifts, favors, services, and those entertainment and travel expenses that go beyond what is reasonable and customary and of modest value, to: (i) an executive, ofcial, employee or agent of a governmental department, agency or instrumentality, (ii) a director, ofcer, employee or agent of a wholly or partially government-owned or – controlled company or business, (iii) a political party or ofcial thereof, or candidate for political ofce, or (iv) an executive, ofcial, employee or agent of a public international organization (“Government Ofcial”); or (v) a director, ofcer, employee or agent of a privately-owned business (“Private Actor”); while knowing or having a reasonable belief that all or some portion will be used for the purpose of: (a) inuencing any act, decision or failure to act by a Private Actor, or Government Ofcial in his or her ofcial capacity, (b) inducing a Government Ofcial to use his or her inuence with a government or instrumentality to affect any act or decision of such government or entity, or (c) securing an improper advantage; in order to obtain, retain, or direct business. Each Party represents and warrants that (i) it shall be in compliance, and remain in compliance with, all applicable domestic and foreign antibribery or anticorruption laws; (ii) it will not act in any fashion or take any action or permit or authorize any action in connection with the sale or distribution of Seller Products and/or services which will render the other Party liable for a violation of any applicable domestic and antibribery or anticorruption laws; and (iii) no part of the payments received by it from customers will be used for any purpose that could constitute a violation of any applicable domestic and foreign antibribery or anticorruption laws. Records. Customer shall maintain complete records of its disposition of all Products and technical data, showing the user name, ultimate destination, product model, serial number, and date of sale, lease or license, including contract documents, and to make these records available to Seller or any representatives of the U.S. government upon request. Indemnication. In addition to any other indemnity under this Agreement, Customer shall defend, indemnify and hold Seller harmless from and against any and all third-party claims, damages and liabilities asserted by any person or entity against Seller connected directly or indirectly from a breach of this Agreement by Customer or its customers. Customer’s indemnication shall include the payment of all reasonable attorneys’ fees and other costs incurred by Seller. Insurance Customer will carry the types and amounts of insurance coverage that would be customary for the types of activities to be performed by Customer hereunder. A P P E N D I X A : S U B S C R I P T I O N S E R VI C E S U S AG E T ER M S 1. Terms.  Seller will use commercially reasonable efforts to provide Customer Subscriptions Services as described under the applicable Seller Subscription Service Description (the “Subscription Service” or “Service”).  The Subscription Services shall be subject to the Subscription Services Usage Terms, dened as the terms in this Appendix (“Subscription Services Usage Terms” or the “Terms”). 2. Access Right.The access right provided by Seller to Customer for the Subscription Service is non-exclusive, non-transferable (and, if applicable, is limited within the Territory) for the duration of the Service Term. Customer is granted the right to authorize access to the Services to Subscribers as set forth in Section 4 below (Subscriber Rights). Seller reserves all rights not expressly granted hereunder. Seller may create and maintain administrative, support, system, and maintenance accounts within the Service(s), all with data access for Seller and its assigned agents and/or other service providers, in order to deliver the Service. 3. Access and License Restrictions.Except as expressly permitted under the Subscription Service and any addendum thereto, Customer will not (i) grant access or use, sell, transfer, assign, distribute, rent, lease, time share or otherwise commercially exploit the Service or Seller Technology to any third party; (ii) modify or create derivative works based on the Service or Seller Technology;  (iii) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service or the Seller Technology in whole or in part, except as and only to the extent this restriction is prohibited by law; (iv) copy any features, functions or graphics of the Service or Seller Technology; (v) directly or indirectly create or attempt to create a localized version of the Software, Service, Seller Technology or any features, functions or graphics thereof; or (vi) remove or obscure any proprietary or other notice contained in the Service or Seller Technology. User accounts and subscriptions cannot be shared or used by more than one individual. 4. Subscriber Rights.Customer, subject to the terms and conditions under these Terms, may grant to each Subscriber a limited, non-exclusive, nontransferable, revocable right to use the Services for such Subscriber’s internal business purposes, provided that such Subscribers have agreed to be bound contractually to terms and conditions consistent with those set forth in these Terms and any applicable Service Description. 5. Downstream Service Providers. Customer, subject to these Terms, and if expressly permitted and authorized in the Order or the applicable Service Description: (a) may grant to Downstream Service Providers a right to grant to Subscribers within the territory a limited, non-exclusive, nontransferable, revocable right to use the Services for such Subscribers’ internal business purposes, provided that such Downstream Service Providers have agreed to be bound contractually by and comply with the terms of these Terms and the applicable Subscription Service Description and to pass down such appropriate terms to Subscribers, and (b) may grant to Downstream Service Providers the right to grant to other Downstream Service Providers the right to provide the Services within the territory to further Downstream Service Providers, provided that, in each case, the Subscriber of such Service(s) is granted a limited, non-exclusive, nontransferable, revocable right to use the Subscription Service(s) for such Subscriber’s internal business purposes, and, further provided, that each such Downstream Service Provider has agreed to be bound contractually by and comply with the terms of these Terms and the applicable Subscription Service Description and to pass down such appropriate terms to Subscribers.  Customer may not grant Subscribers rights or warranties beyond those granted herein, except if mutually agreed otherwise in writing between Seller and Customer. 6. Emergency Services.  Customer acknowledges that the Seller Service may be used as part of an interconnected VoIP service and if so used, will not support or facilitate calls to emergency services such as public safety answering points, medical care units, hospitals, re departments, or law enforcement agencies (“Emergency Services”) and is not a replacement for an ordinary mobile or xed line telephone (the “Emergency Services Limitations”).  Customer agrees to notify all of its Downstream Service Providers and Subscribers of the Emergency Services Limitations. Additionally, Customer shall  advise its respective Downstream Service Providers and Subscribers to notify all of their potential users, who may place calls using Customer’s services, of the Emergency Services Limitations. 7. Service Administration. Customer and each Downstream Service Provider shall be responsible for: (i) communicating with and invoicing its Subscribers and (ii) providing all Customer support obligations as set forth in the applicable Service Description to its Subscribers.  Customer will be responsible and liable for any and all access to and use of the Service by any person logging in under a user ID registered under Customer’s account or providing and/or receiving Customer Data or other information through the Service. Customer acknowledges that Customer’s access to information, including user IDs and passwords, will be Customer’s “key” to the Service and, accordingly, Customer will be responsible for maintaining the condentiality and security of such access information (including each user ID and password). Customer will: (i) notify Seller immediately of any unauthorized use of any password or account or any other known breach of security; (ii) immediately terminate access to the Service for any person or entity who Customer knows has committed a security breach; (iii) distribute any and all documents and media connections associated with the Services to Subscribers with all proprietary notices intact as provided by Seller;  (iv) take all steps reasonably requested by Seller to inform Subscribers of any applicable LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES restrictions and limitations regarding the use of the Services; (v) report to Seller immediately and use reasonable efforts to stop immediately any copying or distribution of Seller Technology that is known or suspected by Downstream Service Providers or Subscribers; and (vi) not impersonate another Seller authorized user or provide false identity information to gain access to or use the Service; and (vii) use only the Software and/or Services, including any features, available within the scope of the Subscription that Customer purchases for and on behalf of Subscribers. In the event of a security threat (“Threat”), Seller may, if necessary, limit or suspend immediately any Services without liability if reasonably necessary to prevent any harm to Seller or to Customer. Seller will provide notice of such limitation or suspension as soon as practicable depending on the nature of the Threat giving rise to the suspension. Customer shall follow all instructions provided by Seller for the purpose of mitigating the effects of such Threat.  Such instructions may include requirements to notify Subscribers of the extent of such Threat. 8. Customer Data. Customer grants Seller and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, revocable, non-transferable (except as provided under an authorized assignment), limited right and license to host, cache, copy, process, store, display and retrieve information associated with the “Customer Data” for the purpose of and in conjunction with Customer’s use of the Service. Customer warrants that Customer and each Subscriber and Downstream Service Provider is authorized to transfer Customer Data to Seller and to process the Customer Data as contemplated by the Services and in compliance with applicable laws in any location in which Seller or its afliates operate. Seller is a data processor (or sub-processor) acting on Customer’s behalf and Customer appoints and authorizes Seller and its afliates (and their successors and assigns, contractors and business partners) to transfer to, store and process Customer Data in any country where Seller uses facilities in connection with the Service in order to provide the Service to Customer. Customer acknowledges and agrees that Seller may, in performing its obligations pursuant to these Terms, be dependent upon or use Customer Data, material and other information furnished by Customer without any independent investigation or verication thereof, and that Seller shall be entitled to rely upon the accuracy and completeness of such information.  Except as expressly provided under this Section, Customer acknowledges and agrees that Seller is not responsible in any manner for Customer Data, including any loss, damage or liability arising from the loss of Customer Data, and Customer assumes all risk related to the transmission of Customer Data to the Service. In addition to its other rights and remedies, Seller may remove Customer Data from the Service at any time if Seller in its sole discretion determines that Customer has violated these Terms. 9. Back Ups. Seller maintains the necessary data as needed by Seller in accordance with the applicable Service Description in order for Seller to provide the functionality of the Service including service emergency recovery purposes. Seller will not have any obligation to provide Customer or Subscriber with any backup of Customer Data, if any, nor will Seller be responsible for storing or maintaining data except as otherwise expressly stated in the applicable Service Description. 10. Equipment. Customer is responsible for obtaining and maintaining any equipment and ancillary services such as establishing, maintaining and supporting all connectivity and access to Seller’s servers, systems and network (including the payment of any additional fees therefore) needed to connect to, access or otherwise use the Service (and, to the extent applicable, the Seller Technology), including, without limitation, video-enabled devices, video communication services, modems, hardware, servers, software, operating systems, networking, web servers, internet and telephone service (collectively, “Equipment”). Customer shall comply with any and all instructions and requirements provided by Seller with respect to procedures and requirements for such access. Customer shall ensure that it and all third parties with whom Customer engages in business in relation to the provision of Services including, but not limited to Downstream Service Provider, comply with all applicable obligations for registration, as applicable with federal, state and local agencies with jurisdiction to regulate telecommunications services and related activities and for complying with all such regulatory requirements and laws. 11. Third Party Applications. If Customer installs or enables any third party applications for use in connection with the Services, Customer acknowledges and agrees that Seller may allow the applicable third party to access the Customer Data as required for the interoperation of such third party applications with the Services. Seller will not be responsible for any disclosure, modication or deletion of Customer Data resulting from any such access. A N P I C LO U D B U S I N E S S FA X T E R M S A ND C O N D I T I O N S BY ACCEPTING THESE CLOUD BUSINESS FAX TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS BELOW. ALL SERVICE ORDERS AND SERVICES ARE SUBJECT TO THESE TERMS AND CONDITIONS. These Cloud Business Fax Terms and Conditions (the “Agreement”) are entered into by and between ANPI Business, LLC, a Delaware limited liability company (“Provider”), and the customer purchasing products or services from Provider (“Customer”). ANPI Business, LLC is part of the Inteliquent family of companies. DEFINITIONS The following terms will have the meanings set forth below. 1.1 “Customer Data” means any data, information or other materials of any nature whatsoever provided to Provider by Customer or a User in the course of implementing or using the Services. 1.2 “Service Descriptions” means user manuals and other documentation relating to the Services that are made available to Customer by Provider in digital or hardcopy form, as updated from time to time. 1.3 “Service Fee” or “Service Fees” means the monthly or annual fees set forth in the Service Order to be paid by Customer to Provider as consideration for Provider’s provision to Customer of the Services, but does not include usage fees, taxes or regulatory fees or surcharges, which Customer must pay in addition to the Service Fees. 1.4 “Service Order” means an order for Services or products. 1.5 “Service Plan” means the monthly subscription plan a Customer agrees to in the Service Order. The Cloud Business Fax plan is currently available with a monthly recurring charge per dedicated fax telephone number, available either as a local number or a toll-free number. Customer may subscribe to as many Service Plans as needed. 1.6 “Service Order Addendum” means a Service Order agreed to by Customer subsequent to the initial Service Order. 1.7 “Services” means the fax products or services that are being provided to Customer as described in the Service Order, including any Additional Services set forth in a Service Order Addendum accepted by Provider. Cloud Business Fax Service provides the ability to send and receive faxes through the Internet directly to email and through a secure online portal. The Cloud Business Fax Service is available to be purchased as a standalone service (meaning no purchase of any other service(s) is required, provided, however, that Customer must obtain and maintain a separate broadband Internet connection) and managed in the web-based Customer administration portal. Cloud Business Fax operates without the need for hardware, software or phone lines. 1.8 “Software” means any proprietary software owned by, licensed by or which Provider has a right to sublicense that is used in or used to provide the Services. “Software” includes, without LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES limitation, any application that Provider makes available to the Customer for use on a mobile device. 1.9 “User” means a user of the software, client, mobile application or other web-based application, equipment, feature or functionality provided by Provider in conjunction with the Services. SERVICES 2.1 Generally. Provider will provide the Services set forth in an accepted Service Order subject to the terms and conditions of this Agreement. Provider hereby grants Customer limited, revocable, non-exclusive, non-transferable access to the Services for use by the number of Users set forth in the Service Order, for Customer’s own internal business purposes. Provider grants Customer a limited, revocable, non-exclusive, non-transferable right to use the Services Descriptions in connection with its use of the Services. Each Service Order will be subject to Provider’s acceptance, which will be deemed given if Provider thereafter provides the Services to Customer. 2.2 Conditions. Customer agrees that Provider’s obligations to provide the Services are expressly conditioned upon (a) Customer’s payment of the fees as and when due, and (b) Customer’s satisfaction of the technical requirements set forth in the Services Descriptions for the Services made available to Customer by Provider, as the same may be updated by Provider from time to time. 2.3 Additional Services. Customer may request an increase in Users or additional Services at any time during the Term (any such increase, “Additional Services”) by submitting a Service Order Addendum setting forth the specic Additional Services desired. Each Service Order Addendum will be subject to Provider’s acceptance, which will be deemed given if Provider thereafter provides the Additional Services to Customer. Upon acceptance by Provider, such Service Order Addendum will be deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the Service Fees will be increased to reect the Additional Services, subject to the same pricing and payment terms as are set forth in the Service Order or the Service Order Addendum as applicable. 2.4 Rates. a. Service Plans include an allotted quantity of pages sent and received within the US-50 AND from the US-50 to Canada, Puerto Rico and US Virgin Islands. If the quantity of fax pages exceeds the monthly allotment, a per page overage charge will apply for only the exceeded number of pages.  Conversely, unused pages in the monthly service plan do not count towards the following months’ allotted number of pages. b. International Faxing: Faxes sent to all other countries and territories that are not included in the month recurring charge(s) are priced separately on a per page basis.  Below is the list of available countries and territories with rates . c. Cloud Business Fax service is not available in all countries and territories and is subject to change without notice. Company reserves the right to modify rates on 7 days’ email notice, including the right to charge a premium on all mobile, cellular, digital, special service numbers, and / or PCS international terminating trafc. Location Rate Per Page Location Rate Per PageArgentina$0.05 Malaysia $0.06Australia$0.05 Malta $0.25Austria$0.18 Martinique $0.12Belgium$0.05 Mexico $0.05Brazil$0.05 Morocco $0.15China$0.30 Netherlands $0.10Costa Rica $0.06 New Zealand $0.05Cyprus$0.10 Norway $0.05Czechia$0.10 Panama $0.06Denmark$0.05 Poland $0.10Estonia$0.20 Portugal $0.12France$0.05 Romania $0.10Germany$0.05 Singapore $0.10Greece$0.10 Slovakia $0.10Hong Kong $0.10 South Africa $0.15Hungary$0.07 Spain $0.08Iceland$0.07 Sweden $0.05India$0.05 Switzerland $0.10Ireland$0.05 Taiwan $0.10Israel$0.05 Thailand $0.12Italy$0.05 Turkey $0.10Japan$0.05 United Kingdom $0.05Kazakhstan$0.15 Vatican City $0.08Luxembourg$0.35    d. The Cloud Business Fax service can be congured as follows: • Individual/Personal use – one dedicated fax telephone number with one dedicated email address. • Shared use – one dedicated fax telephone number with one or more email addresses to send and receive faxes. This option is used when groups or departments are required to send and/or receive faxes. TERM 3.1 This Agreement will commence on the date Provider accepts the Service Order and will continue for the period of time specied in the Service Order (the “Initial Term”). At the end of the Initial Term, the Agreement will automatically renew for an additional one-year period (a “Renewal Term”), and will renew at the end of each Renewal Term for an additional one-year Renewal Term, unless either party provides the other party, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, written notication in accordance with Section 16.1 of its desire to cancel the Services. The Initial Term and any Renewal Terms are collectively the “Term”. TERMINATION 4.1 Early Termination by Customer. If Customer terminates the Agreement, or some of the Services provided under the Agreement, before the end of the Initial Term or any Renewal Term (the “Terminated Term”), Provider will charge Customer, and Customer will pay, an early termination charge equal to 100% of the monthly Service Fee for the terminated Services, multiplied by the number of months remaining in the Terminated Term on the date of termination. The early termination charge is in addition to the full monthly Service Fee payable for the month of, and months prior to, termination. Provider will also charge Customer, and Customer will pay, (a) any unpaid recurring or non-recurring charges waived by Provider at the beginning of or during the Terminated Term, and (b) the difference between the MSRP and the price paid by Customer for any equipment purchased at the beginning of or during the Terminated Term. If Customer or its User transfers or ports its phone number to a service provider other than Provider, Customer must also contact Provider to terminate the Services provided to Customer by Provider. 4.2 Termination by Provider. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES a.  Provider is entitled, at its sole discretion, to suspend, terminate or change the Services without advance notice upon any misuse of the Services in any way, Customer’s breach of the Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer or a User that adversely affects the Services, Provider, Provider’s network or another customer’s use of the Services. Provider will be entitled to determine, at its sole discretion, what constitutes misuse of the Services, and Customer agrees that Provider’s determination is nal and binding on Customer. Provider may require, and if required, Customer will pay, an activation fee as a condition to changing or resuming a terminated or suspended account. b.  Provider is entitled to terminate any affected portion of the Services if: (i) Provider is prohibited by law from providing such portion of the Services; or (ii) any material rate or term contained herein and relevant to the affected Services is substantially changed by or as a result of any regulation or order issued by any court of competent jurisdiction, the Federal Communications Commission (FCC), any other local, state or federal government authority, or any carrier or Internet service provider. c. Upon termination of this Agreement under this Section 4.2, Customer will be responsible for the full monthly Service Fee for the month in which termination occurs, in addition to any accrued but unpaid usage and other charges. FEES, BILLING AND TAXES 5.1 Payment of Service Fees. Customer will pay the Service Fees for Services ordered by Customer, and all other amounts due under the Agreement, pursuant to the terms of this Section 5. 5.2 Credit. The provision of Services is contingent upon establishment of and continuing credit approval by Provider. Customer hereby consents to Provider’s procurement of a credit score or report regarding Customer. At any time during the Term, Provider is entitled to require a deposit or other acceptable form of security from Customer, as it deems appropriate. In addition, if requested by Provider, Customer agrees to provide, within two (2) business days of request, appropriate nancial records to evaluate Customer’s continuing ability to pay. Provider may, immediately and without notice, suspend or terminate the Services if Customer fails to comply with these security obligations. Upon a payment default by Customer not cured in a timely manner, Provider will have the right to offset against any security or deposit held any amounts owed to Provider by Customer, and to invoice and collect all other amounts owed. 5.3 Billing. a. Provider will provide Customer with a monthly online billing statement for the Services provided each calendar month and bill all charges invoiced to Customer’s account. Such charges will include monthly service fees, storage charges, activation charges, , taxes, regulatory recovery fees and any other applicable charges. Monthly Service Fees will be paid in advance of each month’s service; any variable charges associated with usage and any other applicable charges associated with such usage shall be billed in arrears. Billing for monthly Service Fees commences upon ordering of the Services, and monthly Services Fees will be billed pro rata in the months in which such Services commence. Customer agrees to provide Provider with complete and accurate contact and payment information, which may include Customer’s credit card information, and Customer agrees to advise Provider of any changes thereto. To the extent Customer’s payment method is by credit card, Customer authorizes Provider to charge Customer’s credit card automatically to pay for Customer’s charges. If a charge to Customer’s credit card is declined or reversed, or if the account or credit card has expired or been suspended or closed, or if Customer fails to provide Provider with accurate or complete credit card information, Provider may suspend or terminate the Services. b. Customer may downgrade or upgrade the Service Plan(s) during the term. However, the billing effective date of the new plan begins with the next billing cycle. Example:  Customer upgrades to a 400-page plan at $18 from a 100-page plan at $5. A charge of $18 is assessed at the beginning of the next billing period while the $5 charge (and any potential overage and usage charges) remain unchanged until the end of the current billing cycle. c. Customer may cancel a Service Plan(s) during the term.  If Service Plan cancellations are ordered during the current billing cycle, customer would receive a nal invoice for the Plans based on the pro-rated allotment of pages allocated and used based on the cancellation date.  Example: Customer is on a 400-page service plan and the plan is cancelled mid-month (or 50% through the current billing cycle), the charges would be based on the allocation of 200 pages and the actual quantity of pages used, which may or may not exceed 200. 5.4 Late/Non-payment. If any charges for the Services are due but unpaid for any reason, Provider may suspend or terminate the Services and all accrued charges will be immediately due, plus a late fee of 1.5% per month. A fee may also be charged to activate a suspended or terminated account. No suspension or termination of the Services or of this Agreement will relieve Customer from paying any amounts due hereunder. 5.5 Taxes. All Service Fees and other charges are exclusive of any taxes, surcharges, public utility fees and regulatory fees (including, without limitation, Universal Service Fees and E911 taxes, as applicable). Such taxes and fees will be billed by Provider and paid by Customer. Taxes and regulatory fees may increase during the Term, and Customer will pay such increased fees commencing with the next monthly bill. Should Customer claim an exemption of any taxes or regulatory fees, Customer must provide ofcial documented and certied proof of such exemption. In no event will Provider be liable for any taxes due by Customer or its User, and Customer will defend, indemnify and hold harmless Provider if any claim for taxes or fees is made. If any amounts paid for the Services are refunded by Provider, applicable taxes and regulatory fees may not be refundable. 5.6 Regulatory Recovery Fee. A regulatory recovery fee may be charged monthly to offset costs incurred by Provider in complying with inquiries and obligations imposed by federal, state and municipal regulatory authorities and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The regulatory recovery fee will apply to every phone number assigned, including toll free and virtual numbers. The regulatory recovery fee may increase during the Term, and Customer will pay such increased fee commencing with the next monthly bill. 5.7 Service Fee Changes. Provider may change the Service Fees, the types of Service Plans and any additional usage charges without advance notice. Provider may post such changes to its website without notice). Notwithstanding the foregoing, the Service Fees agreed upon in Customer’s Service Order will not be increased during the Initial Term. With respect to any Renewal Term, the Customer will be charged Provider’s then-current Service Fees in effect at the commencement of the Renewal Term. 5.8 Availability. Customer acknowledges and agrees that the Services may not be available 100% of the time. Additionally, Services will not be available in the event of interruption in Customer’s or its User’s internet or broadband service. Provider will not credit Customer for any interruptions in Service. 5.9 Discounts. From time to time in its sole discretion, Provider may offer promotions or discounts. Any promotion or discount codes must be provided to Provider upon purchase of the Services. Customer will not be entitled to a subsequent credit for such promotions or discounts if not requested at the time of account creation or change of Service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES 5.10 Billing Disputes. Customer must dispute any charges for the Services in writing to billing@voyant.com within thirty (30) days of the date of the charge by Provider, or Customer waives any objection and further recourse with regard to such charges. Notwithstanding the foregoing, Customer shall pay all undisputed charges in accordance with this Agreement. TELEPHONE NUMBER 6.1 Any telephone number provided by Provider (“Number”) to the Customer will be leased and not sold. Provider reserves the right to change, cancel or move the Number should Provider reasonably determine, its sole discretion, that it is required to do so as a result of its agreements with its underlying services providers or for other business purposes related to the provision of the Services. PRIVACY 7.1 The Services use the public Internet and third-party networks to transmit voice communications and data. Provider is not liable for the interception, use or disclosure of Customer’s or its User’s voice communications or data. Provider does not represent, warrant or covenant that the Services will maintain the privacy or security of Customer’s or its Users’ voice communications or data. Customer acknowledges and agrees that none of its Customer Data is considered “Customer Proprietary Network Information” under the rules of the Federal Communications Commission. Customer agrees that Provider is entitled to monitor Customer’s and Users’ use of the Services to protect, maintain, or improve the Services; to prevent fraud or misrepresentation by afrmative acts and/or omissions; to protect Provider, its customers or other third parties afliated with Provider; or for any other good cause. If required by law, Customer will inform its Users that Provider may monitor the Users’ communications and store and use the Users’ personally identiable information as necessary to provide the Services. For Provider’s Privacy Policy, please visit www.inteliquent.com. LICENSE; PROHIBITED USES; CUSTOMER RESPONSIBILITIES; LIMITATIONS 8.1 Customer hereby grants to Provider a license to copy, store, record, transmit, display, view, print and use Customer Data, solely to the extent necessary to provide the Services to Customer. Except as expressly provided in this Section 8, Customer grants to Provider no right, title, interest, or license in the Customer Data. Customer represents and warrants that it has all necessary consents and rights to provide personally identiable information about its Users to Provider, and Customer will provide such information upon reasonable request by Provider. 8.2 Customer represents and warrants that it will not use the Services for any illegal, fraudulent, improper, or abusive purpose or in any way that interferes with Provider’s ability to provide high- quality Services to other customers, prevents or restricts other customers from using the Services, or damages any of Provider’s or other customers’ property. If Provider discovers use of the Services for anything other than the permitted uses in this Agreement or for any of the prohibited uses in this Agreement, Provider may at its sole discretion terminate or suspend all or part of Customer’s Services and charge any applicable fees for the Services used plus damages caused by such improper use. Prohibited uses include, but are not limited to: (a) behavior that is illegal, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious or invasive of another’s privacy; (b) sending unsolicited messages or advertisements via faxes (commercial or otherwise) (“spamming”), or otherwise sending bulk or junk faxes; (c) harvesting or otherwise collecting information about others, including e-mail addresses, without their consent; (d) negligently, recklessly, knowingly or intentionally transmitting any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware or any other programs that may be harmful or dangerous; (e) creating a false caller identity (“ID spoong”) or forged e-mail/text message address or header, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services; (f) transmitting any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual property rights or other rights of third parties; (g) violating any U.S. or foreign law regarding the transmission of technical data or software exported through the Services; (h) using the Services in excess of what, in Provider’s sole discretion, would be expected of normal business use, even if the Customer is on an “unlimited” plan (i) using the Services in any way that interferes with other customers’ and third parties’ use and enjoyment of the Services; (j) using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit or otherwise avoid this use policy; or (k) using the Services in violation of the Junk Fax Prevention Act of 2005, as amended. 8.3 Customer understands and agrees that: (a) it will be solely liable for any transmissions sent through the Services under its account or its User’s account, including the content of any transmission sent through the Services under its account or its User’s account; (b) it will abide by all applicable Provider policies, procedures and agreements related to the Services; and (c) it will not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services through password mining or any other means. 8.4 Some of Provider’s plans and other Services are offered on an “unlimited” basis. All unlimited plans may only be used for normal commercially reasonable business use, to be determined at Provider’s sole discretion. 8.5 Customer must report any unauthorized use of the Services to Provider immediately after Customer discovers such use. Customer is responsible for all use of the Services, whether authorized or unauthorized. Customer will be responsible if any of its Users use the Services in a manner prohibited by this Agreement. Customer will be responsible for any act or omission of a User that would be a breach of this Agreement if done by Customer. 8.6 Customer acknowledges and agrees that the right to use any Services is nonexclusive and nontransferable, and Customer will not permit use of the Services other than for its internal business purposes. Nothing in this Agreement will pass to Customer or any User title to any of the Services, any trade names, trade dress, trademarks, service marks, commercial symbols, copyrightable material, designs, logos and/or any other intellectual property of Provider or its vendors. Customer will not challenge or attempt to register or otherwise protect any of Provider’s intellectual property or other rights in the Services. 8.7 Customer will not: (a) copy or adapt the Services for any purpose, except as specically permitted under this Agreement; (b) use the Services except in accordance with all applicable laws and regulations, and except as set forth in this Agreement; (c) reverse engineer, translate, decompile, or disassemble the Services; (d) use the Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benet of, or on behalf of, any third party other than a User; (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Services; or (f) delete, alter, cover, or distort any copyright or other proprietary notices or trademarks with respect to the Services. 8.8 Customer understands and accepts that, in order to protect Customer against fraudulent use of the Services, Provider may require Customer to contact Provider in order to enable calling to certain calling destinations. LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES 8.9 Customer will execute such other documents, provide such other information, and afrmatively cooperate with Provider, all as may be reasonably required by Provider relevant to providing the Services. USE AND STORAGE 9.1 Provider reserves the right to establish or modify general practices and limits concerning use of the Services and Software, including, without limitation, the maximum number of days that content will be retained by the Service and the maximum disk space or bandwidth capacity that will be allotted on servers owned or operated by Provider on Customer’s behalf. Where practical, Provider will provide Customer with prior notice of such new or modied practices; provided, however, that Provider will have the absolute right to implement such new or modied practices without prior notice in its sole discretion and without liability of any kind. Faxes are stored securely in the cloud for future use. Each account includes 1 Gig at no cost. Each additional account then adds 1 Gig to the fax storage pool. Additional charges may apply if the storage pool limit is exceeded. Faxes are stored until the customer deletes them. Example: 10 Cloud Business Fax accounts x 1 Gig per account = 10 Gig of pooled storage. When 10 Gig is exceeded, a one-time charge would apply for each 1 Gig of storage over the allotted pooled amount (10 Gig in this example). RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF CUSTOMER COMMUNICATIONS 10.1 Customer is solely responsible for maintaining the condentiality of Customer’s account login information (including, without limitation, its Users’ account login information), and will not allow a third party to use the Services. Customer is solely responsible for any and all activities that occur under Customer’s account or its User’s account, including, without limitation, fraudulent use of the account. Customer and its Users must comply with laws regarding online behavior, acceptable content and the transmission of equipment and information under applicable export laws. Customer also agrees to comply with applicable local rules or codes of conduct (including, if applicable, codes of conduct or policies imposed by employers) regarding online behavior and acceptable content. Use of the Services is void where prohibited. Customer will immediately notify Provider of any unauthorized use of Customer’s account or its User’s account or any other breach of security related to Customer’s account, its User’s account or the Provider Services. Customer and each User must “log off” at the end of each session. Provider is not liable for any loss or damage arising from Customer’s or its User’s failure to comply with any of the foregoing obligations. In consideration for using the Provider Services, Customer will: (a) provide certain current, complete and accurate information about Customer and Users when prompted to do so by the Provider Services, and (b) maintain and update this information as required to keep it current, complete and accurate. Customer agrees that Customer is solely responsible for the content of all visual, written or audible communications (“Content”) sent, displayed or uploaded by Customer or a User in using the Services. Although Provider is not responsible for any such communications, Provider may reject or remove any Content that violates a law or this Agreement. Customer or the User retains copyright and any other rights already held in Content that Customer or the User submits, posts or displays on or through, the Services, or any music or ring-tones Customer or a User uses in connection with the Service. Customer understands and agrees that by displaying, exchanging or uploading Content to a Provider website, transmitting Content using the Services or otherwise providing Content to Provider, Customer automatically grants (and warrants and represents that it has a right to grant) to Provider a world-wide, royalty-free, sub-licensable (so Provider afliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Services, including, without limitation, on associated websites (“Sites”). Furthermore, Customer represents and warrants that it has all necessary consents and rights to transmit Content and other communications from its users to Provider. RESPONSIBILITY FOR CONTENT OF OTHERS 11.1 Customer acknowledges that Users may violate one or more of the above prohibitions, but Provider assumes no responsibility or liability for such violation. If Customer becomes aware of misuse of the Services by any person, entity or organization, Customer agrees to contact Provider Customer Support at 866-629-8200 or support@inteliquent.com. Provider may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to, issuing warnings, removing the content or terminating accounts and/or User proles. Under no circumstances will Provider be liable in any way for any data or other content available on a Site or actions taken while using the Services, including, but not limited to, any errors or omissions in any such data, content or activity or any loss or damage of any kind incurred as a result of the use of, access to or denial of access to any data, content or activities on a Site. Provider does not endorse and has no control over what Users post, submit to or do on a Site. Customer acknowledges that Provider cannot guarantee the accuracy of any information submitted by any User of a Site, nor any personally identiable information about any User. Provider reserves the right, in its sole discretion, to reject or remove content. DISCLAIMER AND LIMITATION OF LIABILITY 12.1 PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING FROM A COURSE OF DEALING OR PERFORMANCE OR CUSTOM, WITH RESPECT TO THE SERVICES, EQUIPMENT, AND ANY OTHER PROVIDER PRODUCTS, SERVICES OR EQUIPMENT PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE IN A WORKMAN-LIKE MANNER, COMPLIANCE WITH LAWS, QUALITY, ACCURACY, COMPLETENESS OR CURRENCY OF INFORMATION, SYSTEM INTEGRABILITY, TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT. PROVIDER DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE PRODUCTS, SERVICES OR EQUIPMENT PROVIDED WILL OPERATE UNINTERRUPTED, ERROR FREE OR WITHOUT DEGRADATION OR LOSS OF DATA, OR BE SECURE. NEITHER PROVIDER NOR ITS SERVICE PROVIDERS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR A USER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY SUCH DATA IN PROVIDER’S POSSESSION, CUSTODY OR CONTROL, THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF PROVIDER’S OR ITS SERVICE PROVIDER’S NEGLIGENCE. IN NO EVENT WILL PROVIDER OR ITS AFFILIATE, SERVICE PROVIDER, FACILITY OPERATOR OR CARRIER, OR THEIR RESPECTIVE OWNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, “PROVIDER PARTIES”) BE LIABLE FOR ANY DIRECT, ACTUAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR ANY COST OF COVER OR LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR A PROVIDER PARTY’S PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER, A FAILURE OF OR A DEFECT IN THE SERVICES, EQUIPMENT OR ANY PRODUCT, A PROVIDER PARTY’S VIOLATION OF A THIRD PARTY’S RIGHT, OR A PROVIDER PARTY’S ACTS OR OMISSIONS. PROVIDER WILL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF, A FAILURE OF OR A DEFECT IN ANY PRODUCT OR SERVICE PROVIDED BY, OR VIOLATION OF ANY THIRD PARTY’S RIGHTS BY ANY THIRD-PARTY SERVICE PROVIDER, FACILITY OPERATOR OR CARRIER. THE PROVIDER PARTIES’ MAXIMUM TOTAL LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO PROVIDER IN THE THREE (3) MONTHS PRECEDING THE DATE THE CLAIM ACCRUED. THE PROVIDER PARTIES WILL NOT BE LIABLE IN ANY WAY TO ANY USER. INDEMNIFICATION 13.1 Customer will defend the Provider Parties, at Customer’s expense, against any third-party claim or action, and indemnify and hold harmless the Provider Parties from any and all losses, damages, liabilities, penalties, settlement obligations, costs, attorneys’ fees and other legal expenses related to such third-party claim or action, arising from or related to: (a) Customer’s breach of this Agreement or an agreement between Customer and a third party; (b) Customer’s violation, infringement or misappropriation of the third party’s intellectual property or other rights in Customer’s use of the Services; (c) Customer’s violation of the third party’s privacy, publicity, personality or other rights; (d) Customer’s fraud in use of the Services or fraud or misrepresentation regarding the nature or volume of Customer’s trafc; (e) Customer’s violation of an applicable law; (f) bodily injury, death or property damage to the extent such claim or action arises from the negligence, gross negligence or willful misconduct of Customer, or in the case where strict liability applies; (g) Customer’s business, acts or omissions; or (h) acts or omissions by Users that, if done LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES by Customer, would constitute a breach of this Agreement. Customer will not settle any claim or action without Provider’s prior written consent. Provider will have the option, at its expense, to participate in the defense or settlement of the claim or action with counsel of its own choosing. If a conict of interests arises or exists between the parties or if Provider has a good faith belief that its rights are being harmed by the counsel selected by Customer, Provider will have the right to retain separate counsel to represent its interests at Customer’s sole cost and expense. Customer will not settle any claim without Provider’s prior written consent. EQUIPMENT 14.1 Equipment Purchase. If Provider sells any equipment to Customer, the terms of this Section 14 apply. All equipment shipments are Free On Board (FOB) Provider’s or Provider’s distributor’s facility. Provider’s liability for delivery will cease, and title (if applicable) and all risk of loss or damage will pass to Customer upon delivery to the common carrier for shipment. Customer shall be wholly responsible for insuring any products purchased from the time risk of loss or damage passes to Customer. Provider will pass through to Customer any warranty provided by the manufacturer of the equipment; PROVIDER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY EQUIPMENT. 14.2 Equipment Return Policy. Customer will be required to obtain authorization from Provider to return any equipment. Equipment returned by Customer that is not covered under warranty or that does not bear a return authorization number may be refused. Provider will not replace lost, stolen or modied equipment. Customer must pay all shipping and handling charges related to any equipment returns not covered under warranty. All returned equipment must be unmodied, in good working condition, in the original packaging and include all components, manuals, peripheral devices and all other accessories that were originally shipped with the equipment. Provider may decline Customer’s return or charge Customer an additional fee for each missing item or for each item that Provider reasonably determines is modied, damaged or not in good working condition. Customer must delete all data les stored on returned equipment. Customer acknowledges that any data remaining on returned equipment cannot be recovered, and Customer releases Provider of any liability for any lost, damaged or destroyed les, data or other information. INTELLECTUAL PROPERTY 15.1 The Services and Software, and all intellectual property therein, are and will remain the exclusive property of Provider. Provider reserves all rights not expressly granted under this Agreement. The Software may contain third-party software that is subject to the terms and conditions of third-party licenses. Neither Customer, Users nor any other third party has a right to inspect, possess, use, copy, or attempt to discover the source code of (or any portion of) the Software, except to the extent that Customer, a User or a third party is expressly permitted to decompile the Software under applicable law and Customer, the User or the third party noties Provider in writing in advance of its intention to decompile the Software and its reason for doing so. 15.2 PORTAL UPGRADES; PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE Provider may update the Customer and User portals, and Customer agrees that Service may be unavailable during the implementation of such updates. Upon expiration, cancellation or termination of the Services, Customer and Users will relinquish and discontinue use of any accounts, Numbers, voice mail access numbers, and/or web portal Sites assigned to Customer by Provider or its service providers. MISCELLANEOUS 16.1 NOTICES. Unless otherwise specied in this Agreement, any notice required or permitted to be given pursuant to this Agreement will be given in writing by overnight delivery service, sent via certied mail, return receipt requested, e-mailed, or delivered by hand, and such notice will be deemed to have been given and received when delivered or when delivery was refused, or with respect to electronic transmissions, at the time of transmission (unless the sender received a notice of transmission failure). Customer consents to receive all notices in electronic form, and Provider may send any notice to Customer at Customer’s latest physical address or e-mail address provided by Customer. Provider may, in addition to all other methods of giving notice, send any notice to Customer’s mailbox in Customer’s account on the Provider Customer Care Portal. Both parties agree that any agreements and notices made or provided by one or both parties in electronic form, and in accordance with this Agreement, are as legally binding as if made in physical written form. Customer must send all notices to Provider via e-mail in accordance with the following: To report misuse or fraudulent use of Service: support@inteliquent.com To submit a billing dispute: Billing@voyant.com To terminate Service: support@inteliquent.com All other notices: support@inteliquent.com 16.2 FORCE MAJEURE. Provider’s performance of any part of this Agreement will be excused to the extent that it is hindered by ood, re, natural disaster, strike, riot, war, terrorism, hostile attack, governmental action, cable cuts, supplier shortages, breaches, or delays, Provider’s inability to perform as a result of actions or inactions of third parties, Customer, a User or Provider’s vendors, including, without limitation, Customer’s failure to provide or maintain a circuit with respect to an order for Service, or any other cause (whether similar or dissimilar to those listed) beyond Provider’s reasonable control (a “Force Majeure”). Provider may terminate the Services without liability if a Force Majeure hinders Provider’s performance for more than ve (5) days. 16.3 NO CLASS ACTION. Customer irrevocably waives any right Customer may have to serve as a representative or as a private attorney general, or to participate as a member of a class of claimants, in any lawsuit, arbitration or other proceeding against any Provider Party arising from, related to or connected with this Agreement or any Service Order. 16.4 BINDING NATURE AND ASSIGNMENT. Customer’s rights and obligations in this Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Provider. Except as part of the sale of all or substantially of the assets for Provider or the assignment of this Agreement, or any rights or obligations thereunder, to any of Provider’s afliates (which will not require Customer consent), Provider’s rights and obligations in this Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Customer, which will not be unreasonably withheld. For sake of clarity, Provider may assign, delegate and transfer some or all of its rights and obligations under this Agreement to its afliates. Except as otherwise expressly provided herein, this Agreement will inure to the benet of, and will bind, the heirs, executors, personal representatives, administrators, successors and permitted assigns of Provider and Customer. 16.5 GOVERNING LAW. This Agreement and any related Service Orders will be governed by and construed according to the laws of the State of Illinois, without regard to its conict of laws provisions. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 16.6 ARBITRATION. Any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services, will be resolved by binding arbitration. The Federal Arbitration Act and federal arbitration law applies to this Agreement. The arbitration will be administered by the American Arbitration Association (AAA), conducted by one LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES (1) arbitrator, and conducted in accordance with the AAA’s Commercial Arbitration Rules. The arbitration will be conducted in Springeld, Illinois. The language of the arbitration will be English. The parties’ briefs and other documents and the arbitrator’s ndings and decision will be condential unless required to be disclosed by law. Neither party may use any nding or decision of the arbitrator in existing or subsequent litigation or arbitration involving any other person, entity or organization. The arbitrator must have sufcient experience in the matter(s) at issue. The arbitrator’s decision will follow the plain meaning of the Agreement and will be nal and binding. Neither party will have the right to appeal an error of law or fact. Each party will bear the cost of preparing and presenting its case. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services or products provided or billed to Customer if claims are asserted against Provider in the same proceeding. Notwithstanding the foregoing, either party may bring suit in court to enjoin unauthorized access or trespass to its computer networks or any misappropriation, infringement or violation of its intellectual property rights. The arbitrator will have the exclusive power to rule on the formation, interpretation, applicability, validity or enforceability of this Agreement, including without limitation the validity or enforceability of this arbitration agreement. The arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. If any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services, cannot lawfully be resolved by arbitration, the complainant must bring any claim or action in the state or federal courts for Springeld, Illinois, and the parties waive any objection based on personal jurisdiction, venue or inconvenient forum. 16.7 ENTIRE AGREEMENT, AMENDMENTS, CONFLICT, SEVERABILITY, WAIVER, SURVIVAL. This Agreement, all documents referred to herein and any related Service Order executed by the parties constitute the entire agreement between the parties and supersede any and all prior agreements and rates between the parties with respect to the subject matter hereof. Provider may update this Agreement upon written notice to Customer. In the event of a conict between any of the terms and conditions of this Agreement and any Service Order, the terms and conditions in the Service Order will prevail. The parties are independent contractors. Nothing contained herein will be construed as creating any agency, partnership, or other form of joint venture or enterprise between the parties. If any provision(s) of this Agreement or any related Service Order is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and the parties further agree to substitute a valid provision that most closely approximates the economic effect of the invalid provision. The failure of either party to require performance by the other party of any provision hereof will not affect the right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken to be a waiver of the provision itself. To the extent permitted by applicable law, the parties agree to and do hereby waive any applicable statutory or common law that may permit a court to construe a contract against its drafter. No claim or cause of action may be asserted against either party more than three (3) months after the time the facts giving rise to the claim or cause of action are discovered or should have been discovered. In the event a suit is brought or an attorney or collection agency is retained by Provider to enforce the terms of this Agreement or any Service Order, or to collect any monies due hereunder, or to collect money damages for breach thereof, Provider will be entitled to recover, in addition to any other remedy available at law or in equity, reimbursement for attorneys’ fees, court costs, collection costs, costs of investigation and other related expenses incurred in connection therewith. The terms and provisions contained in this Agreement and any related Service Order that, by their sense and context, are intended to survive the performance thereof by the parties hereto will survive the completion of performance and termination of this Agreement, including, without limitation, payment obligations, the limitations on damages and liability, ownership of intellectual property, and defense and indemnity obligations. Last updated November 4, 2022 GET THE LATEST FROM VOYANT RECEIVE BLOG POSTS, ANNOUNCEMENTS AND REPORTS email Subscribe to Voyant Updates JOIN (866) 629-8200 SIMPLY BETTER.P ROD U C T S A P I S R E S O U RC E S V OYA N T PA R T N E R S TALK TO SALES SIP Trunking Unied Communications Fax Messaging Resources Center Support API Docs Blog Events About Us Careers Contact Us Channel Partn © 2024 VOYANT COMMUNICATIONS. ALL RIGHTS RESERVED. © 2024 VOYANT COMMUNICATIONS. ALL RIGHTS RESERVED. LEGAL POLICY LEGAL POLICY LOG I N TALK TO SALES PRODUCTSAPISRESOURCESPARTNERS P RO DUCT S APIs R E S OU RC E S PA RTNER S TALK TO SALES Inteliquent UC Phone System Summary Inteliquent UC was designed from scratch to give you more features – and more productivity – for less. And with our Customer Administration Portal, all those features are extremely easy to use. In addition to the unique features included with each package, you get the following core features: • Company Local DID • Extension Number • One Basic Auto Attendant • One Corporate Directory Listing • CNAM delivery • Hunt Group • Music On Hold ORDER SUMMARY Main Phone Number: Number not assigned. Length of Contract: 3 years Item Description Unit Price Qty One Time Cost Monthly Cost Equipment Polycom VVX 350 PoE $148.00 12 $1,776.00 Services Auto Attendant $0.00 1 Free Inteliquent Premium $14.00 (Discount Applied: $9.99) 12 $168.00 Advanced Call Center User $25.00 (Discount Applied: $5.00) 4 $100.00 Supervisor Standard $45.00 (Discount Applied: $4.99) 2 $90.00 Subtotal $1,776.00 $358.00 Estimated Shipping $0.00 Estimated Taxes and Fees $248.66 $124.34 Page 1 of 5 Prepared for Waterloo Fiber Sep 12, 2024, 04:10 PM CDT VNT24APO116509 Initial Here Item Description Unit Price Qty One Time Cost Monthly Cost Total $2,024.66 $482.34 Page 2 of 5 Prepared for Waterloo Fiber Sep 12, 2024, 04:10 PM CDT VNT24APO116509 Initial Here LOCATION BREAKDOWN Waterloo,IA Rate Center: WATERLOO,IA Service Address 625 Glenwood St Waterloo, IA 50703 Primary Contact John Roth john.rath@waterloofiber.com (319) 291-0175 Shipping Address 625 Glenwood St Waterloo, IA 50703 Service Invoice Address 625 Glenwood St Waterloo, IA 50703 Equipment Invoice Address 625 Glenwood St Waterloo, IA 50703 Item Description Unit Price Qty One Time Cost Monthly Cost Equipment Polycom VVX 350 PoE $148.00 12 $1,776.00 Services Inteliquent Premium $14.00 (Discount Applied: $9.99) 12 $168.00 Advanced Call Center User $25.00 (Discount Applied: $5.00) 4 $100.00 Supervisor Standard $45.00 (Discount Applied: $4.99) 2 $90.00 Subtotal $1,776.00 $358.00 Estimated Shipping $0.00 Estimated Taxes and Fees $248.66 $124.34 Page 3 of 5 Prepared for Waterloo Fiber Sep 12, 2024, 04:10 PM CDT VNT24APO116509 Initial Here Item Description Unit Price Qty One Time Cost Monthly Cost Total $2,024.66 $482.34 Page 4 of 5 Prepared for Waterloo Fiber Sep 12, 2024, 04:10 PM CDT VNT24APO116509 Initial Here AGREEMENT Terms & Conditions of Agreement: With this signature, I acknowledge having read and accepted, and hereby agree to abide by, the Voyant Service Agreement Terms & Conditions (https://www.voyant.com/anpi-terms-and-conditions/). Disclaimer: All service is provided by Voyant through its preferred vendors. Voyant is not an agent of any of its preferred vendors, and makes no representation that the customer will be receiving service directly from any such vendors. Agreed to on behalf of Waterloo Fiber by: CustomerTab Signature Print Name Print Title Date Signed Agreed to on behalf of Voyant Communications, LLC by: ATab Signature Print Name Print Title Date Signed Page 5 of 5 Prepared for Waterloo Fiber Sep 12, 2024, 04:10 PM CDT VNT24APO116509 Initial Here EMERGENCY REPAIR MAINTENACE CONTRACT WATERLOO FIBER EMERGENCY RESTORATION SERVICES SCOPE OF WORK AND BILLING EMERGENCY REPAIR MAINTENANCE CONTRACT This Emergency Repair Maintenance Contract (the “Agreement” or “Contract”), dated as of September , 2024 (the “Effective Date”), is entered by and between ITG Communications, LLC, a Texas limited liability company, with an address of 2400 E. Commercial Blvd., Fort Lauderdale, Florida 33308 (“ITG” or the “Contractor”) and the Waterloo Municipal Communications Utility d/b/a Waterloo Fiber, with an address of 625 Glenwood Street, Waterloo, Iowa 50703 (“Waterloo Fiber”). 1. Scope Contractor shall keep an agreed upon amount of minor material, provided by the customer, designated for emergency restoration purposes at ITG’s location. Contractor will also require access to major materials kept at the ITG or Waterloo Fiber’s facility if needed for emergency repairs. Materials shall be in sufficient quantities and of the correct type in order to accommodate the restoration of Waterloo Fibers network in all emergency situations. Materials shall be readily available to Contractor’s repair personnel, on the site of ongoing repairs, so as not to delay restoration. Contractor ITG and Waterloo Fiber shall jointly determine the proper amounts and types of materials needed for emergency restoration. Contractor shall maintain an adequate supply of inventory to support and restore services to individual WF subscribers to include drop fiber and in-home hardware. 2. Term The initial term of this Agreement shall be one (1) year commencing on the Effective Date (the “Term”). The Contract will renew automatically under the same terms and conditions for successive one (1) year periods unless either party provides written or e-mailed notice to the other party at least 60 days in advance of the expiration of the then current period stating that the party wishes to discuss modification of terms or not renew. Additionally, the parties by mutual agreement may extend the term for up to ninety (90) additional calendar days. In addition, either party may terminate the Term for convenience by providing ninety (90) days’ advance written or e-mailed notice. 3. Response Times and Requirements 3.1 Contractor shall provide a single point of contact and be available 24 hours per day, seven days per week for the entire duration of this Agreement. 3.2 Contractor must report to either end of the affected cable prepared to do trouble isolation analysis with an OTDR within Two (2) hours during normal business hours and within Three (3) hours if trouble occurs outside of normal business hours. If and when the trouble site is identified, Contractor should be on the restoration site with labor and equipment as specified in the callout within Four (4) hours of notification. Contractor agrees that time is of the essence in all such emergency callout situations and shall respond at all times to the requirements of this agreement with a sense of urgency. 3.3 Contractor will supply all necessary personnel to accommodate repairs that include but are not limited to: Troubleshooting, Underground construction, Drop bury and splicing. 3.4 Contractor’s site manager shall communicate with ITG and WF to establish service restoration priorities. Contractor’s technical personnel shall perform joint testing if required with WF or designated technical personnel to identify fiber faults with the goal of speeding up service restoration and accessing damage. 3.5 In some cases, temporary repairs may have to be made in order to restore subscriber services quickly. In the event of temporary repairs, Contractor will return as quickly as possible to perform permanent repairs after service restoration is complete in order to minimize service interruption. 3.6 After all necessary repairs have been made Contractor’s personnel will verify services, check light levels, and perform OTDR traces if needed to ensure quality of repairs. 4. Equipment for Services The parties acknowledge that the following equipment are required for the services: 1 UNDERGROUND CREW (DRILL, MINI, VAC) 2 REEL TRAILER FOR FIBER CABLE OR CONDUIT 1 SPLICE TRAILER 2 PICK UP TRUCKS OTDR, POWER METERS, AND LIGHT SOURCE ALL OTHER HAND TOOLS AND EQUIPMENT NEEDED TO PERFORM REPAIRS 5. Crews and Rate of Pay 5.1 EMERGENCY RESTORATION CREWS: WF will assess the nature of the emergency repairs needed; provide information to the Contractor on needed skill sets and equipment; and subsequently determine and authorize the number of personnel needed to affect repairs. After notification by WF, Contractor will notify, callout and assign the number of personnel with the correct skills needed to perform repairs. The Underground construction crew will consist of a 2-man crew, truck, reel trailer, and all other equipment and hand tools needed to perform all underground construction repairs. Splice crew will consist of a 2-man crew, truck, splice trailer, and all other equipment and hand tools need to perform fusion splice repairs. 5.2 RATE OF PAY: Business Hours 8am-5pm All splicing crews will be billed at a rate of _$300.00_ per hour for all troubleshooting and repairs. All Construction crews will be billed at a rate of _$350.00__ per hour per crew for repairs. After Business Hours All splicing crews will be billed at a rate of _$350.00_ per hour for all troubleshooting and repairs. All Construction crews will be billed at a rate of _$400.00_ per hour per crew for repairs. All construction and splicing crews will be available during normal business hours as well as after business hours as needed. In the event of a major repair or outage additional crews may be needed to complete the repair and will be billed at the agreed upon rate per hour per crew. 5.3 EQUIPMENT COSTS: In the event that additional equipment is required beyond what is listed in this Agreement to conduct a repair, a receipt will be provided to WF for reimbursement to the Contractor for all rental or lease expense. 5.4 CONSTRUCTION CREW MINIMUMS: After normal business hours (8:00 am to 5:00 pm) the splicing and construction crew will bill a 2 hour minimum rate for all dispatched maintenance repairs. After the initial 2 hour minimum, the crew will bill in 1 hour increments thereafter. 6. Indemnification ITG agrees to indemnify, defend, and hold harmless (a) Waterloo Fiber, its governing board, employees, contractors, and agents; and (b) the City of Waterloo, Iowa, its elected officials, officers, and employees (collectively, the “Indemnified Parties”); from and against any and all claims, demands, causes of action, fines, fees, penalties, damages, liability, and third party costs and expenses including, without limitation, reasonable outside attorneys’ fees (the “Costs”), caused by the negligent acts or omissions or willful misconduct of ITG, its. Managers, employees, contractors, and agents. ITG’s indemnification obligations shall not apply to those Costs that are attributable to the negligence, willful misconduct, or unlawful actions of the Indemnified Parties or any third party for whom ITG is not contractual or legally responsible. 7. Insurance The Contractor shall carry liability insurance which shall save the Waterloo Fiber and the City harmless and protect the public and any person from injury sustained by the reason of the prosecution of the work or the handling or storing of materials therefor, and said Contractor shall also carry liability insurance which shall meet the requirements of the Iowa Worker’s Compensation Law. Before work shall be started on this contract, the Contractor shall furnish the City Clerk with proper affidavit or Affidavits executed by representatives of duly qualified insurance companies, evidencing that said insurance company or companies have issued liability insurance policies, effective during the life of the contract, or for a period of a least ten (10) days following the filing of written notice of cancellation, protecting the public and any person from injuries or damages sustained by reason of carrying on the work involved in the Contract. The affidavit shall specifically evidence the following forms of insurance protection: (a) Public liability insurance covering all operations performed by persons directly employed by the Contractor. (b) Public liability insurance covering all operations performed by any Subcontractor to whom a portion of the work may have been assigned. (c) Public liability insurance covering all work upon the project performed by any independent Contractor working under the direction of either the principal Contractor or a Subcontractor. (d) Motor vehicle bodily injury liability insurance and property damage liability insurance on all motor vehicles employed on the work, whether owned by the Contractor or by other persons, firms, or corporations. (e) The minimum protection shall be as follows: Comprehensive General Liability Insurance General Aggregate Limit $ 5,000,000.00 Products—Completed Operations Aggregate Limit $ 5,000,000.00 Each Occurrence Limit $ 5,000,000.00 Comprehensive Automobile Liability Insurance $ 1,000,000.00 The Contractor shall have the City of Waterloo, Iowa, named as an "Additional Insured" and it must be stated on the certificate. Coverage shall be written on a primary and non- contributory basis and shall include a waiver of subrogation in favor of the City of Waterloo. A certificate, or a policy if requested, shall be filed with the Owner. All certificates and/or policies of insurance furnished by the Contractor to be filed with the City Clerk shall include the name and address of the agency issuing the same. It shall also be required that the City Clerk be notified by registered mail of the cancellation or expiration of the above insurance. To the fullest extent permitted by law the Contractor shall defend, indemnify, and hold harmless the City and the Engineer and their agents, representatives, officers and employees (“Indemnitees”) from and against all claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from or in connection with the performance of the Work, provided that any such claim, damage, loss or expense is caused in whole or in part by any act or omission of the Contractor, anyone directly or indirectly employed by it or anyone for whose acts any of them may be liable. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity or contribution which would otherwise exist as to any party or person described in the Contract Documents. In any and all claims against the Owner or Engineer or any of their agents, officers or employees by any employee of the Contractor, any Subcontractor, any person directly or indirectly employed by any of them or anyone for whose acts may be liable, the indemnification obligation under this Subsection 4 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Subcontractor under workers’ compensation acts, disability benefit acts or other employee benefit acts. All policies shall be in form and with insurance carriers acceptable to the City of Waterloo. Each such policy shall provide that thirty (30) days’ prior written notice of cancellation must be given to City before cancellation of the policy will be effective. Contractor will take all steps required to prevent all such insurance from lapsing or being canceled. 8. Separate Counterparts This Agreement may be executed in separate, duly-executed counterparts, copies of which shall be as effective as the underlying original for all purposes. ITG Communications, LLC By: _____________________________ Joel Rivas Waterloo Fiber By: An Authorized Representative