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HomeMy WebLinkAbout25G - INTERNET ACCESS SERVICESREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 04, 2009 TITLE AGREEMENT FOR INTERNET ACCESS SERVICES FROM COGENT COMMUNICATIONS, INC. 1~-- CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1St Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve and authorize the City Manager and Clerk of the execute the attached agreement with Cogent Communications, dedicated Internet access services for a two-year period with renew for three additional one-year terms, in an amount not $40,000 per year. DISCUSSION Council to Inc. for options to to exceed The City's current agreement for Internet access service is expiring and the service needs to be continued. The City relies on Internet access to support operations in every City Agency and Department with Internet email, outgoing access to the World Wide Web and incoming access to the City's web site and other web-accessible City applications. The City's Information Services Division issued an RFP seeking proposals for a dedicated Internet access connection of 45 Mbps bandwidth with service level guarantees. The RFP was posted on the City web site. In addition City staff proactively posted the RFP on two technical "matchmaker" web services which alert service providers of business customers needing services. This is a very common trade practice in this communication business sector. To receive the lower pricing and to ensure a stable Internet connection to support City operations, a two-year agreement period is being sought. Ten proposals were received and evaluated. An analysis of proposals compared four criteria: (1) qualifications and ability to provide the required services, (2) service levels and guarantees, (3) references, and (4) pricing. Based on the analysis of proposals by an evaluation team of City staff, the following is the ranking of service proposals: 25G-1 Agreement For Internet Access Services From Cogent Communications, Inc. May 04, 2009 Page 2 Vendor Assessment Totals (400 possible) ranking Cogent Communications 372 1 AT&T 300 2 Qwest 299 3 Telekenex 292 4 XO Communications 264 5 American Internet Services 261 6 Dial Tone Services, LLC 195 7 TelePacific Communications 173 7 Bridgeport technologies 163 8 DPSCIENCES Corporations / AT&T 136 9 City staff recommends that the City enter into a two-year agreement with Cogent Communications, Inc. to supply the dedicated Internet access service (with connecting "local loop" service). While Cogent's price proposal was not the lowest, their ability to support the City's current Internet Protocol (IP) addresses (the unique identifier assigned to each device connected to the Internet) more than makes up the difference. Changing addresses would be a very labor intensive time- consuming process which would cost significantly more than the difference between the lowest price proposal. The service agreement with Cogent contains service performance guarantees with monetary penalties for performance problems. There are also provisions in the agreement allowing the City to terminate in case of unsatisfactory performance. FISCAL IMPACT Funds are available in Technology Fund (account 109-700-6291). ~~C~1~ \ ~i ~~~_ ~ ~ A~ h`~ Francisco Gutierrez Executive Director Finance & Management Services Agency 25G-2 ~~gent C.OteMVK ICAT tONi Optical interne!t Dedicated Internet Access Customer Order Form North America us Cogent Communications, Inc. 1015 31st Street Washington, DC 20007 www.cogaMco.com Customer and Order Information Customer Name City of Santa Ana Customer Description Access /Other Order Date 15-Apr-2009 Requested Service Date 1-Jun-2009 Service Information Product Type Off-Net (NetCentric) Service Parameters Resell Customer Name No N/A Agent Deal (Name) Yes dvantage Comms Quoted Curency USD US Dollars Legacy Bandwidth Initial Burst Fee Installation Base Order N b Order Type Order Cogent de Id N Service Interface CDR Term Billing Model (per Mbps) Fee Monthly Fee um er Number o Mbps Months USD USD USD Renewal / 1-11479438 15365-0 DSO 45 24 Flat Rate 0.00 572.00 2,801.00 Downgrade Options Order Description Comments Option S l t d Installation Fee Morrth Fee ~ Number e ec e USD USD Public IP Addresses As described in IP Questionnaire Nob: IPO rods b W ~ubnOM wNh O~dp Fpm No BGP-4 Routing As described In BGP Questionnaire fJds: BdPo rods b M ~Wni11eE riN OiMr Fpm No MuRiBGP Secondary ASN Secondary ASN Owner Note: lOA(s) lasued by owners of Secondary ASN(s) need(s) to De submilled with Order Form. NO DNS Hosting As described in Product Rider DIA No Expedite Delivery As described in Product Rider No Billing Options N/A As described in Product Rider No Cabling XCONN Fiber Aa described in Product Rider No Equipment As described in Product Rider No Total Fees InstFlelae on Mouthy Fee USD USD Total Fees including Options (Note: Bunt Monthly Fees mey be etarped in sddNion as dsllrted in the ettsdxd Product Rider) 572.00 2,801.00 ••If Customer bas elected to lte billed in a currency other than the cunanoy used for Me Quoted Pdce, the Quoted Price will be conversion on such da e. COGENT willuse lhedcurrency convarsbnOrate as of the tlose W businesslf Pthe prmelvious day esnset font Bllling CiUrrenCyee USD US DOIlar8 at www.oanda.com. Initials Customer: DIA l.eyar 3 Order Form V31 c Cop~C rI sttolf~CorMderltlel Pape 1!2 C /"1 ~ ~ ~ ~ Cogent Communications, Inc. ~/ C p M M u a r C A T t O N~ Dedicated Internet Access 1015 31 et Street Customer Order Form VVaahington, Dc 20007 - - North America www.ccgentcc.com Customer Service Delivery Information Customer Contracting 8 Billing Information Tenartt/Datacenter Name City of Santa Ana Node ID 15365-0 Service Address 20 Civic Center Plaza Suite /Floor M-12 City, State, Province Santa Ana Postal Code 97201 Country USA ' ~ervlca aemery amreye wawa puce a~ wpera wrnarwuvn rven as uemwrv m w-~a o...w...a oue. Delivery Contact Name Tom Gergen Telephone (714) 647-6958 Ceephone Fax Email tgergen~ci.santa-ana.ca.us Cogent Contact Information Location Herndon, VA (Retention) Sales Address HQ: 1015 31st Street Washi ton, DC 20007 Office phone 877-875-3310 Fax 70335-8783 Service Provisioning sd~cogentco.com Customer Care support~cogentco.com Contract Documents Company Name City of Santa Ana Billing Address same Suite /Floor City, State, Province Postal Code Company Registr. Nr. Tax /VAT ID Number Billing Contact Name Fax Email Sales Name Dave Polant Account Phone 703.456.7644 Manager Email dpolanti~cogentco.com Sales sales~cogentco.com Billing billing~cogentco.com Termination terma~cogentco.com R The entire Customer Subscriber Agreement (CSA), entered into (1) Order Fonn between Customer and COGENT, is made up of the documents (2) Terms, as attached (initialed by Customer) (For current customers, if listed here. Capital~ed terra are dented in the text of the Terms or Terms are rat attached, the current Terms remain in force) Detinftion secdon of the Tema. All prior agreements, proposals, representatbns, statements, or understandings, whether written or (3) SlA (MIpJ/www.cogentco.com/}Iles/ps intemet/SW on_intemet.pdf) oral, ~nceming such Services, are superseded. Customer certifies (4) Product Rider, as attached (signed by Customer) that the documents constituting the CSA are the documents and foma that have been supplied to Customer by Cogent and that (5) Any other Rider or Addendum, as attached (signed by Customer) Customer hea made no changes to them. APPROVES AS TO FORM Notes ) i ~,~~~ Laura Stitt Sheedy Assistant City Attor y Signatures By signing below, Customer affirms and aclvtowledges that it has read the entire CSA and agrees to be bound by the provisions thereof. For Customer Signature Printed Name Tide Date DIA Layer 3 Order Forth V&1 c For Cogent Communications, Inc. Signature Printed Name Tale _ Date coo~~~, u~.d Iq' connder~tl.~ Page v2 Network Services Terms & Conditions North America (Ver. 02/08) Confidential c o g~et,~n~~to~5 © Cogent Communications, Inc. 2008 NETWORK SERVICES TERMS & CONDITIONS NORTH AMERICA 1. SERVICES AND TERM. 1.1. Pursuant to the CSA, Cogent will provide the Services to Customer for the Service chazges. Customer's signature on the Order Form or use of the Service or COGENT Network constitutes its acknowledgement and agreement to be bound by the CSA. Capitalized terms are defined at the end of these Terms. 1.2. Each Service's Initial Term is indicated on the applicable Order Form. Customer will be deemed to have accepted the Service as of the Service Date. At the end of the Initial Term, the CSA will renew for successive Renewal Terms equal in length to the Initial Term unless and until terminated as provided herein. 1.3. Customer may order additional Services or locations in North America through additional Order Forms, which will be governed by this CSA. Customer's account must be current in order to make changes to Services or order additional Services. 2. SERVICE CHARGES AND BILLING. 2.1. Service charges are on the Order Form and do not include applicable Taxes unless so indicated. New services or upgrades/relocations will result in additional fees/charges. [f a prior Service location remains installed after a new Service location is installed, Customer will be responsible for Service charges for both Service locations until terminated as provided for each Service. 2.2. Invoices are sent monthly in advance. Customer agrees to pay all charges and applicable Taxes for the Service upon receipt of the invoice without counterclaim, set-off or deduction. A late charge shall be added to Customer's past due balance of the lesser of 1.5% per month or the maximum legal rate. COGENT may change the specifications, Terms or charges for the Service for any upcoming Renewal Term by providing Customer at least sixty (60) days advance written notice. Customer agrees that its obligation to pay service charges and Taxes under this CSA shall survive the termination of the CSA. 2.3. Customers claiming tax exemption must provide COGENT with a properly executed exemption form. 3. SERVICE USE AND INTERRUPTION. 3.1. Customer's use of COGENT's Services or Network may only be for lawful purposes and must comply with COGENT's AUP. Transmission of any material in violation of any law, regulation or the AUP is strictly prohibited. Access to other networks connected to COGENT's Network must comply with such other networks' rules. Only Customers whose service location (as set forth on the Order Form) is a COGENT-owned or carrier neutral data center may resell COGENT's Dedicated [ntemet Access Service (but not any other Service offered in such location). Customers located in any other service location may not resell their Service, in whole or in part. 3.2. COGENT's obligations and Customer's exclusive remedies for failure of COGENT's Network or any Service are stated in the COGENT SLA. 4. TERMINATION. RESTRICTION OR SUSPENSION. 4.1. Prior to the Service Date, COGENT may terminate the CSA if not approved by COGENT corporate management (including credit check). COGENT also may restrict, suspend or terminate the CSA, Customer's use of or access to any Service, or both, at any time if (a) Customer is in material breach of the CSA (including but not limited to the AUP) and, in COGENT's sole judgment, an immediate restriction or suspension is necessary to protect the COGENT Network or COGENT's ability to provide services to other customers; or (b) Customer's account is unpaid sixty (60) days after date of invoice; or (c) COGENT facilities at Customer's location are unavailable, (i.e., no connectivity and building access). 4.2. Either Party may terminate the CSA: (a) at the end of an Initial Term or Renewal Term by providing the other Party with at least thirty (30) days prior written notice (notices provided during a monthly Renewal Term will not be effective until the end of the next month (i.e., notice received April 20th is effective June Ist); or (b) except as otherwise stated herein, during an Initial Term or Renewal Term if the other Party breaches any material term or condition of this CSA and fails to cure such breach within thirty (30) days after receipt of written notice of the same. 4.3. If a Service is terminated prior to the Service Date, Customer shall pay COGENT for all Initial Costs for such Service. If the Service is terminated after the Service Date, Customer shall pay COGENT (a) for the Service up through the date of termination; and (b) except in the case of termination by Customer as provided in Section 4.2 above, or by COGENT due to loss of connectivity or building access at Customer's building(s) under Section 4.1(c) above, the Initial Costs (unless already paid) and the Termination Charge. Customer acknowledges that because actual damages to COGENT caused by early termination of a Service order are uncertain and would be difficult to determine, the Termination Charge is a reasonable liquidated damage and is not a penalty. Any reconnections of the Service shall result in additional reconnection charges to Customer at COGENT's then-prevailing rates. 4.4. If Customer defaults in any of its payment obligations under the CSA, Customer agrees to pay COGENT's reasonable expenses, including but not limited to legal and collection agency fees, incurred by COGENT in enforcing its rights. All termination notices by Customer must be sent separately for each Service (including terminating one Service location after a Service is switched to a new Service location) and must be sent to terms@cogentco.com. 5. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY. 5.1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED "AS IS," AND NEITHER COGENT NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS CSA OR OTHERWISE. THE SERVICES ARE PURCHASED W[TH KNOWLEDGE OF THIS WARRANTY LIMITATION. COGENT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. CO('iENT DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES. 5.2. WITHOUT PREJUDICE TO OR LIMITING OF COGENT'S RIGHT TO RECEIVE PAYMENT FOR SERVICES, COGENT'S ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE (INCLUDING CLAIMS BASED ON NEGLIGENCE) ARISING OUT OF THIS AGREEMENT AND ALL OTHERS BETWEEN CUSTOMER AND COGENT, AND THE PROVISION BY COGENT OF FACILrrIES, TRANSMISSION, DATA, SERVICES OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, DAMAGE TO REAL/PERSONAL PROPERTY, SHALL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE AT ISSUE IN THE PRIOR SIX (6) MONTHS TO THE ACTION GIVING RISE TO THE CLAIM, OR (B) ONE HUNDRED THOUSAND DOLLARS ($100,000.00) IN TOTAL; PROVIDED HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY FOR DEATH OR PERSONAL INJURY CAUSED BY COGENT, OR FOR ANY Page 1 of 3 Cogent Communications, Inc. 1015 31" St., N.W., Washington, D.C., 20007 202.295.4200 www.cogentco.com Customer: 25G- Network Services Terms & Conditions North America (Ver. 02/08) Confidential OTHER LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMTI'ED UNDER APPLICABLE LAW. 5.3. CUSTOMER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO COGENT'S CONTROL. CUSTOMER AGREES THAT COGENT SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNEE SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO COGENT'S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. COGENT SHALL HAVE NO I.IABB.TTY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND `DENIAL OF SERVICE' ATTACKS). COGENT IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER'S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS CSA FAfIS OF TES ESSENTIAL, PURPOSE. CUSTOMER AGREES THAT IT WILL NOT HOLD COGENT RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACES OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM COGENT MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, COGENT IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT IT WILL NOT HOLD COGENT RFSPONSIBLE FOR (A) THHLD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER'S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER'S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE COGENT NETWORK. CUSTOMER AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST COGENT, AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS CSA. 5.4. NEITHER COGENT NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES) OR SUPPORTING THE SERVICES SHALL BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNTIIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILTI'Y OF SUCH DAMAGES, WHETIIER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE). 5.5. NO ACTION OR PROCEEDING AGAINST COGENT MAY BE COMMENCED BY THE CUSTOMER MORE THAN ONE (1) YEAR AFTER THE LAST DAY ON WHICH THE SERVICE WHICH IS THE BASIS FOR THE ACTION IS RENDERED, AND CUSTOMER ACKNOWLEDGES THAT THIS LHNITATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDI7'fONAL TIME FOR SUCH A CLAIM. 6. INDEMNITY. 6.1. Customer will indemnify, defend and hold harmless COGENT and its directors, officers, employces, affiliates, and its agents and subcontractors from and against any claims, suits, actions, and proceedings from arty and all third parties, and for payment of any Losses, to the extent such Losses arise (a) as a result of non-compliance by Customer with its obligations under the CSA; (b) from any and all claims by any of Customer's customers or other third party end users in connection with a Service (including, without limitation, any claims regarding content transmitted using a Service or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; r v' however. that Customer will have no obligation to indemnify and defend COGENT against claims for damages for bodily injury or death caused by COGENT's Boss negligence or willful misconduct; or (c) from claims of copyright infringement and all manner of intellectual property claims, defamation claims, claims of publication of obscene, ®Cogent Communications, Inc. 2008 indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, and claims of infringement of data protection legislation, to the extent such Losses are based upon (i) the content of any information transmitted by Customer or by any of Customer's customers or authorized end users, (ii) the use and/or publication of any and all communications or information transmitted by Customer or by any of Customer's customers or authorized end users, or (iii) the use of Service(s) by Customer in any manner inconsistent with the terms of this CSA, including without limitation the AUP. 7. ADDITIONAL PROVISIONS. 7.1. Except as to payment obligations of Customer, neither Party shall have any claim or right against the other Party for arty failure of performance due to Force Majeure. 7.2. Neither Party is the agent or legal representative of ~ other Party, and this CSA does rat create a partnership, joint venture or fiduciary relationship between COGENT and Customer. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever. This CSA confers no rights, remedies, or claims of any kind upon arty third party, including, without limitation, Customer's subscribers orend-users. 7.3. This CSA for Service is made pursuant to and shall be construed and enforced in accordance with the laws of the District of Columbia without regard to its choice of law principles. Any action arising out of or related to this CSA shall be brought in the District or Federal courts located in the District of Columbia, and Customer consents to the jurisdiction and venue of such courts. 7.4. Notices, if required, must be sent in writing by a-mail, courier or first class mail (postage prepaid) to the appropriate contact point listed on the Order Form, and are considered made when received at that address; provided, that termination notices to COGENT must be sent in accordance with Section 4.4 above. In the event of an emergency, COGENT may only be able to provide verbal notice first; such verbal notice will be followed by written notice. Customer is responsible for accuracy of its information on the Order Form, including points of contact. 7.5. Customer may not assign this CSA without COGENT's prior written consent, which consent shall rat unreasonably be withheld. Arty such assignment without COGENT's prior written consent shall be void. 7.6. Without limiting any other obligation which expressly survives the expiration or prior termination of the term of the CSA, the expiration or prior termination of the teml of the CSA shall relieve both Parties of arty further obligations hereunder, except with respect to the Sections 2. 3.4.3. 4.4 and 5 through 7. which shall survive any expiration or termination of these Terms. 7.7. If (but only if) required by COGENT's or Customer's agreement with Customer's Landlord: (a) any cessation or interruption in COGENT's Service does not constitute a default or constnrctive eviction by Customer's Landlord, and (b) Customer agrees to waive and release Landlord and its related parties from any liability in connection with any damages whatsoever incurred by Customer, including lost revenues, which arise, or are alleged to arise, out of any interruption of or defect in the COGENT Service, REGARDLESS OF WHETHER SUCH INTERRUPTION OR DEFECT IS CAUSID BY THE ORDINARY NEGLIGENCE (BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF A RELEASED PARTY. 7.8. The COGENT Network is owned by COGENT, or its licensors, and is protected by copyright and other intellectual property laws. Customer agrees that title to and ownership of the Services, in any form, shall at all times and in any event be held exclusively by COGENT. Customer shall be entitled to only such rights with respect to the Services as are specifically granted herein. 7.9. This CSA and such other written agreements, documents and instruments as may be executed in connection herewith are the final, entire and complete agreement between Customer and COGENT and supersede all prior and contemporaneous negotiations and oral representations and agreements, all of which are merged and integrated into this CSA. 7.10. This CSA and any Addendum thereto may be executed in one or more counterparts all of which taken together shall constitute one and the same instrument. Page 2 of 3 Cogent Communications, Inc. 1015 31°` St., N.W., Washington, D.C., 20007 202.295.4200 www.coaentco.com Customer: 25G-6 Network Services Terms & Conditions North America (Ver. 02/08) Confidential DEFINITIONS © Cogent Communications, Inc. 2008 AUP COGENT's Acceptable Use Policy as posted by COGENT (currently at http:/hvww.coaentco.com/htdocs/oolicv.mhol COGENT reserves the right to amend its AUP at any time, effective upon posting on the COGENT website. COGENT Cogent Communications, Inc. or its subsidiaries or affiliates. COGENT The telecommunications network and network components owned, operated or controlled by COGENT, including COGENT's Network fiber backbone, metropolitan fiber networks, any equipment connected to such fiber, and the software, data and know-how used by COGENT to provide the Services. Where COGENT services a building through its own facilities, the COGENT Network includes those facilities. The COGENT Network does not include customer premises equipment, customer-ordered telephony circuits, and any networks or network equipment not operated and controlled by COGENT. Customer Customer identified in the attached Order Form. CSA The entire Customer Subscriber Agreement between COGENT and Customer for provision of the Service, consisting of the Order Form, the Terms, the applicable product rider and the SLA. Equipment Customer's equipment, if any. Force Majeure Causes beyond a Party's control, including but not limited to: acts of God; fire; explosion; vandalism; cable cut; storm; flood or other similar occurrences; any law, order, regulation, direction, action or request of any government, including federal, state, provincial, municipal and local governments claiming jurisdiction over a Party or the Service, or of any department, agency, commission, bureau, corporation, or other instrumentality of any such government, or of any civil or military authority; national emergencies; unavailability of materials or rightsof--way; insurrections; riots, terrorist acts or wars (declared/undeclared); or strikes, lock-outs, work stoppages, or other labor difficulties, supplier failures, shortages, breaches or delays. Initial Costs Greater of (a) installation fees (if not paid); or (b) all third-party costs and charges incured by or charged to COGENT on behalf of Customer for the Service, including but not limited to local loop fees, cross-connect charges, and wiring fees. Initial Term Initial length of term for the Services as indicated on the Order Form. Landlord Customer's landlord, building owner or property/telecom manager. Losses Costs, fees, liabilities, losses, damages or penalties, including reasonable legal fees. Order Form Cover form to which these Terms are attached, identifying the specific Service(s) to be delivered. Party or Parties COGENT and/or Customer. Renewal Term Subsequent length of term for the Services after completion of the Initial Term. Service(s) Bandwidth services provided by COGENT under the Customer Subscriber Agreement. Service Date Earlier of date on which (a) COGENT deems that the Service is available for Customer's use at either the COGENT-defined demazcation point or last-available test point; or (b) Customer first uses the Service or the COGENT Network. SLA The Service Level Agreement as posted by COGENT (currently at www.cogentco.coml for Customer's specific Service(s). COGENT reserves the right to amend the Service SLAB at any time, effective upon posting on the COGENT website. Space Rented rack space from COGENT, if any. Tsx or Taxes All taxes arising in any jurisdiction, including without limitation all: sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, property (for co-location customers), consumption, or other taxes, fees, duties, charges or surcharges (however designated) which are imposed on or based on the provision, sale or use of the Service(s), including such taxes imposed directly on COGENT or for which COGENT is permitted to invoice Customer in connection with COGENT's performance under the CSA. Taxes do not include COGENT's income taxes. Termination Single payment equal to any third-party cancellation charges and the total remaining dollar value of the applicable Service Charge order through the Initial Term or Renewal Tern, as applicable. Terms Terms and conditions that apply to the Services COGENT provides to Customer . Page 3 of 3 Customer: Cogent Communications, Inc. 1015 31" St., N.W., Washington, D.C., 20007 202.295.4200 www.coaentco.com 25G-7 Product Rider - Dediaated Internet Access (Ver. 1-4) Confidential ®Cogent Communications. 2008 C ~ e n } PRODUCT RIDER - connuHlcATtons DEDICATED INTERNET ACCESS GLOBAL This product rider (Rider) amends the CSA entered into between Customer and COGENT for the Services specified therein. Unless otherwise defined herein, capitalized or defined lama in the CSA have the same meaning in this Rider. Jn the event of a conflict between forma, the following will be the order of priority: First, the Order Form; Second, this Rider, Third, the Terms; and Fourth, the SLA. 1. Ssrvice and Optlons Within the scope of the Dedicated htternet Access Service, COGENT tranamib IP-packets between the COGENT Network and associated netwaka of its Customers ere well as to and from the global htternet using COGENT's settlement-free peering agreements with other networks. Subject to their availability, Customer may select one or more options asaooieted with the Service such es listed in the Order Form, in which case Customer agrua to pay the related fees such ee indicated in the Order Form: Mu1tiBGP: Customer may connect to COGENf'a network with multiple BGP aeseians over a single port, euoh BGP sessions being on its own assigned AS (the Primary ASN) and ASs from third parties represented by Customer (the Secondary ASNs). Tn this case, Customer will be required to provide COGENT with a Letter of Authorization ("LOA'S issued by the third parties having registered the Secondary ASNe in order to activate such Service, and all interaotiata, being during provisioning or operatiow, related to BGP-sessions set up between COGENT's network and Secondary ASNa will be handled exclusively between COGENT and Customer. The fact that a BGP session is being set up between COGENT and other parties represented by Customer does not constitute a contractual relationship between COGENT and the other parties, this interaction is ruled by the contractual relationship established between COGENT and the Customer. COGENT will charge an additional Monthly Fee for each Secondary ASN oomeoted. Equipment: COGENT' may, at its Bole discretion and if available, provide equipment for certain Services. The fees for euoh equipment ere agreed in the Order Form will be added to Cwtomer'a invoice. COGENT does not guarmtee and is not responsible for any specific type of equipment, or any equipment at all, to be made available to Customer, and such equipment will belong to Customer upon receipt. Customer will provide rte own technical auppat to install, maintain, and integrate oquipmcet. COGENT will not provide a.-site technical support. Customer will be responsible for applicable replacement coats if the equipment is subject to any damage, unauthorized alteration/modification/repair, abnormal use, misuse, neglect, abuse, accident, improper installation, a• other acts caused by Customer, its employees, contractors, or any other person. Such action or inaction may void any manufacturer warranties. Customer further agrees to indemnify and hold harmless COGENT for any third party claim based on Customer's unauthorized alteration or modification of the equipment. COGENT ri not responsible for Service diatuptions cawed by any request by Cwtomer to relocate equipment. t~edite Delivery: COGENf's installation guarantee is strictly limited to the installation guarantee stated in the SLA. However, Customer may request in the Order Fonn an expedited delivery for his Service. COGENT will use canmeroially reasonable efforts to accommodate Customer's request; provided, however, that COGENT does not guarantee that any such request will be fulfilled (and any such guarantees given either orally or in writing are hereby disclaimed) nor does COGENT guarantee that the Service will be delivered on a specific date, such as the Requested Service Date indicated on the Order Form. 2. Burstahle Service If Customer ie purohaaing COGENT'a buratable Service, Customer will have a minimum bandwidth commitinent assigned for a given port (the Bandwidth Commitrnent or Committed Data Rate, "CDR'S. The Bandwidth Commihnent is agreed upon in the Order Form and ie the minimum amount of bandwidth that will be charged to Customer each month at the base Service price, even if not fully used by Customer doting a given month. Customer may burnt up to the maximum bandwidth that oars be carried on a given port, e.g. 1,000 Mbps for aGig-Ethernet port, subject to availability of bandwidth within the COGENT network. If Customer exceeds the Bandwidth Commitment on any burstable port in any given calendar month, Customer agrees to pay the additional per Mbpa charge fm excess bandwidth usage over the Bmdwidth Commitment es indicated in the Order Form. Such excess bandwidth usage is calculated by COGENT ere the difference between total bandwidth usage and Bandwidth Commitment, where total bandwidth usage is determined by collecting bandwidth usage samples every S minutes throughout the month for each port (a sample is based upon The average usage across the S-minute segment) and determining the appropriate percentile (90th or 9Sth) of usage as indicated in the Order Form. Only one sample is captured for each S-minute period, ever though two samples are collected -one for inbound utilization and ate for outbound utilization. The higher of the two samples is retained. For partial months, the total number of eampies for the calendar month is used; for samples where there is no usage, 0 is the recognized value. Fa• example, in a 30-day billing period, 8,640 samples are collected (12 aamples/hour x 24 hours/day x 30 days) and listed 5+om highest to lowest. In case of 95th percentile billing, the highest S%or 432 samples are discarded (representing the top S% of usage levels). The highest remaining sample (sample 433 in this example) is used to determine total bandwidth usage. For 90th percentile billing, the highest 10°/.or 864 samples are discarded (representing the top 10°~ of usage levels). The highest remaining sample (sample 865 in this example) ri used to determine total bandwidth usage. Under the "Summed Burst Billing" option available in conjunction with 90th percentile buret billing, COGENT calculates excess usage as the difference between the sum of total bandwidth usage mid the sum af' Bandwidth Canmitment aernaa all summed ports. For example, if Summed Buret Billing is applied over three ports with a Bandwidth Commitment of 200 Mbpa on each (i.e., a total Bandwidth Commitment of 600 Mbps) and the individus190th peroentile total bandwidth usage amounts were 70 Mbpa, 1 SO Mbps and S00 Mbpa, the excess bandwidth usage would be 120 Mbpa (70 + 1 SO + S00 - 600). Under the "Aggregate Buret Billing" option available in conjunction with 95th pereerttile burst billing, excess bandwidth wage ie aalculated by COGENT as the difference between total aggregated bandwidth wage and the summed Bandwidth Commitment across all aggregated ports, where total aggregated bandwidth usage is determined by adding wage samples every S minutes across all aggregated ports. For example, if throe are three aggregated Aorta, every S minutes three inbound samples and three outbound samples are collected, added up to one bandwidth wage value per direction, and the higher of the two values is retained in a 30-day billing period, the final 8,640 retained bandwidth wage values reflect the aggregated usage across all pate. These values are listed from highest to lowest. The highest S% or 432 values are discarded (representing the top S% of wage levels). The highest remaining value (value 433 in this example) is wad to determine total aggregated bandwidth wage. 3. Customer's Duties to Cooperate Cwtomer a• rte representative mwt cooperate with COGENT in the installation process, which includes accurate completion of art Order Form containing detailed demaroation information and other oneite contact listings, and of the necessary teahniosl questionnaires (IP Questionnaire, BGP Questionnaire, etc.) as provided by COGENT. Cuatomcr or its representative moat be physically present at the time of installation. During installation and at all other times, the Page 1 of 2 Cogent Commuaicationa www,cogentco.com See Order Form or web site for full contact details. 25G-8 Product Rider-Dedicated Internet Access (Ver. 1-4) Confidential ®Cogent Communications. 2008 Customer will allow access and if necessary provide escort, for COGENT'a or its representatives' necessary personnel to perform the installation and maintenance of the Service, to the designated building's phone closet(s) or telecommunioationa room or to the Customer's premises for the purposes of survey, installation, operations and maintenance of the Service, after prior arrangement between the parties. Customer's faihrre to cooperate shall release COGENT from its obligations pertaining to the Installation Guarantee included in the SLA but shall not suspend the Service Date or billing start date. in the event of technical problems relating to the Service, the Customer will ensure that COGENT'a or its representatives' service engineers have unrestricted access to the designated building's phone closet(s) or telecommuniaationa room or to the customer premises equipment. Customer's failure to provide access shall release COGENT from its obligations pertaining to the Network Availability part of the SLA. 4. Demarcation Pofot Within a COGENT data center: If Service delivery taken place within a COGENT data center, COGENT will deliver the Service at a demarcation point situated on the COGENT equipment. COGENT will provide, maintain and operate the necessary wiring ("Cross-Connect' far Customer to connect to COGENT's service at the indicated demarcation point. COGENT will provide such Cross-Connect for the fee set fath on the Order Form. Within a third par(y data center: ff Service delivery takes place within a third party data carter (i.e. that is not owned and/or operated by COGENT), COGENT will deliver the Service at a demarcation point situatod on the COGENT equipment. Unless otherwise agreed, Customer will at its own cost provide, maintain and operate the necessary wiring ("Grose-Connect' to connect to COGENT'a service at the indicated demarcation point. If Customer and COGENT agree that COGENT shall provide auc6 Cross-Connect, then COGENT will provide such Cross-Connect against fees such as indicated on the Order Form and the Service demarcation point will remain ~ the GENT equipment. Within an On Net corporate buildinY: If Service delivery taken place within an On-Net corporate building, COGENT will deliver the Service at a demarcation point situated on the COGENT equipment within the Customer's suite. COGENT will provide, maintain end operate the necessary wiring ("Riaet'~ between the building entry and the indicated demaroafi~ point. At an Ofj--Net Customer Location: Off-Net Services are being delivered to the Customer Location indicated in the Order Form through athird-party local loop to be provisioned by COGENT asr behalf of Customer. Ae auoh, the Customer and COGENT agree that the charges set forth in the Order Form for auoh Service assumes that each Service will be terminated at a pro-established demaroaton point or minimum point of entry (MPOE) in the building housing the Customer Location, as determined by the local access provider. COGENT may charge Customer additional nonrecumng charges not othawiae set forth basin for such Service where the Customer or local access provider determines that it is necessary to extend the demarcation point w MPOE through the provision of additional infraattucture, cabling, electronics or other materials necessary to rsach the Customer Location. It shall be the Cwtomer's responsibility to allow access to the facility for the local access provide, es well as to facilitate or coordinate with the property owner at the Customer Location, all additional apace and electricity determined by the local access provider to be necessary to provide the Service. COGENT will notify Customer of any additional non-recurring charges, if any, as soon as practicable after COGENT u notified by the local access provider of the amount of auoh charges. From time to time, COGENT may provide, and Customer may accept, budgetary estimates for the extension of the demarcation point to the Customer Location along with the initial Order Form. These estimated coats may be based on certain known costa or typical inatallationa that do not require extraordinary efforts by the provider to extend the service. Tn the evert actual costs exceed the budgetary estimate, Cogart will notify the Cwtomer as outlined above. in addition, the charges and the Term set forth in the Order Form for the Service assumes that auoh Service can be provisioned by COGENT through the local access provider selected by COGENT (and/or Customer) for the stated Term. in the event COGENT is unable to provision such Service through the selected local access provider or the selected local access provider requires a higher cost or longs Service Term they that set forth in the Order Form, COGENT reserves the right, regardless of whether COGENT has accepted the Order Form, to suspend provisioning of the Service hereunder and notify Customer in writing of any additional non-recurring charges, monthly recurring charges and/or Tam that may apply, or to cancel the Service set forth on the Order Form. Upon receipt of such notice, Customer will have five (S) business days to accept or reject such changes. If Customer does not respond to COGENT within the five (5) business day period, such changes will be deemed rejected by Customer. Tn the event Customer rejects the changes (whether affirmatively or through the expiration of the five (3) business day period) or if COGENT elects to cancel the Service ordetsd hetsin, the affected Service will be cancelled without cancellation or termination liability of either party. Accepted and agreed to: CUSTOMER: COGENT COMMUNICATIONS sy: 13y: Title: Title: Date: Date: APPROVED Aj "~U r~r-.:~, -~?` Laura tt~ :~~~eedy AsSistan~'' Page 2 of 2 Cogent Communioationa www.cogrntco.com See Order Form or web site for fall contact details. Request for Proposal: Dedicated Internet Access Service via Full T3 (DS-3) for City of Santa Ana, California Issued: February 20, 2009 Deadline: Not Later Than 3 pm P.s.T., March 16, 2009 Objectives: Summary: Full T3 (DS-3) ISP Requirements: ^ Dedicated Internet Access Service ^ Connection via full line rate 45 mbps T3 service ^ Direct circuit, private connection between City of Santa Ana and the ISP's backbone hub ^ Leased private dedicated line from the City to ISP ^ Not burstable or metered ^ Not fractional or tiered ^ Not share capacity ^ No distance sensitivity ^ Service to building at 20 Civic Center Plaza, Santa Ana, CA 92701 with main phone number of 714-647-5400 ^ Preference for continued use of existing IP addresses. As an alternative Vendor could assist the City in obtaining portable Class C address space and its own Autonomous System (AS) number The City does NOT need the Vendor to provide a router on the City-side of the service connection. Network Tier: The City would strongly prefer that the ISP provider be among the following: ^ Tier 1 Network ^ Transit-Free Network (including those ISP's that have settlement based or paid peering with one or more other networks) Service Levels: Network availability: Percentage packet delivery: Round trip latency: Packet Loss: Schedule maintenance notice Guarantees on service levels: 100% global network availability At least 99.9% Max 45 millisecond round trip latency No more than 0.1 At least three day email notice If service levels not meet, Vendor will compensate the customer (i.e. the City) Installation: Installation Wait: 30 business days preferred Includes the local loop installation Customer Support: Availability: Phone support 24 hours a day, 7 days a week, 365 days a year Contact Center Location: USA based 25G-10 Term: 24 months with option to extend at the City's option for two additional 12 month terms Pricing: The City needs the Vendor to clearly and fully identify their charges for the T3 ISP service, the local loop and any other related charges. Note: Prices proposed shall include all applicable federal, state, local and other taxes - separately identified. Monthly Recurring Charges: ^ T3 service (as described above) ^ Local Loop ^ Any other charges and/or exception/s in service must be identified One-Time Charges: ^ Installation ^ Provisioning ^ Any other charges Proposal Contents and Instructions for Proposers: To assess qualifications in providing T3 ISP services, as specified above, and to determine the strength and stability of the firm, every Proposing Vendor is required to complete and submit the Proposal Response Form (Appendix A) or a separate submission with a response to each item included in the "Proposal Response Form." IMPORTANT! Proposals must be submitted and received by the City of Santa Ana's Information Services Division on or beforE~: 3 pm P.S.T., March 16, 2009 Proposals may be walked in, faxed, mailed or emailed. If walked in, come to: City of Santa Ana Information Services Division 20 Civic Center Plaza ROOM B22 [in the basement of City Hall] Santa Ana, CA 92701 If mailed, sent to: City of Santa Ana Information Services Division M-12 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702-1988 If faxed, fax to: City of Santa Ana Information Services Division 714-647-5406 If emailed, sent to: ISD_proposals@santa-ana.org Requests for information or questions regarding this RFP or the process may be directed to: Thomas J. Gergen Manager, Information Services Information Services Division 714.647.6958 voice tgergen@santa-ana.org 25G-11 Proposal Evaluation Procedure Selection shall be based upon a competitive selection process and not limited to price alone. Proposing Vendors must satisfy the City in their ability to perform the services required. In the judgment of the City, any proposal that does not provide adequate evidence that the Proposer has the capabilities to perform the services sought by the City will not be further considered. It is not the City's intention to exclude very high bids or to automatically award an agreement to the Proposer of the lowest price for services. The City seeks to get the best balance of service value and price. Based on the information provided in their RFP response, each of the Proposers will be evaluated by a City selection team and will be assigned a point score for each of five evaluation criteria. While evaluation is subjective by its nature, the City selection team will judge each proposal on its merit in only the evaluation criteria areas. The weighted evaluation criteria include: Criteria Max Points Qualifications and ability to provide require services 30 Service Levels and Guarantees 20 References (basis is quality of service to similar size/complexity organizations) 10 Cost 40 Total 100 An interview (in person or via phone) may be required for clarification purposes if so determined by the evaluation team. However, only top rated Proposers will be asked to participate in the interview process. The selection recommendation will be based on the accumulated point score for all criteria and any clarifying interviews. Based on the evaluation of the City selection team, a recommendation will be made to the City Council to authorize an agreement between the City and the selected Vendor for the services sought in this RFP. Definitions: The following words as used in this Request for Proposal (RFP) shall be understood to refer respectively to: Word in RFP Definition Cit The Cit of Santa Ana, California. Firm Means the same and is used interchan eable with the term "Vendor". Pro oser The erson, firm or cor oration res ondin to this RFP. Vendor A person, firm or corporation responding to this RFP and may be selected by the City to enter into an agreement with the City to the services identified in this RFP. For the ur oses of this RFP, "Vendor" is s non mous with "Pro oser." 25G-12 APPENDIX A -Proposal Response Form (Fill in this form or submit a separate response which addresses each item.) Proposal to Provide Dedicated Internet Access Service via Full T3 (DS3) for City of Santa Ana, California Name of Proposing Firm: Cogent Communications Vendor's Principal Location: Washington, DC Vendor's URL www.cogentco.com Contact Name for Proposal: Dave Polant Contact's Mailing Address: 1015 31 s NW WASH, DC 20007 Contact's Phone Number: 703.456.7644 Contact's email address dpolant@cogentco.com Please submit answers to the following questions (Note: Proposer may attach additional or substitute pages as needed to complete responses.) 1. Vendor Overview: Number of years providing ISP Services: 10 Legal Name of Vendor: Cogent Communications Group If Vendor is owned or controlled by another No company, the name of that company: D&B D-U-N-S Number 2. MAXIMUM of three references of government organization for which your firm provides similar ISP T3 services as sought by the City. Reference One: Name of Client Cit of Santa Ana Location of Client's location Cit and State Santa Ana, CA Contact Knowledgeable with Vendor's provided services: Tom Gergen Contact's hone number 714 647-6958 25G-13 APPENDIX A Proposal Response Form (Continued) Reference Two: Name of Client Cit of Gainesville, FL Location of Client's location Cit and State Gainesville, FL Contact Knowledgeable with Vendor's provided services: Ed Hoffman Contact's hone number WorkPhone 352.393.1073 Reference Three: Name of Client City of Walnut Creek Location of Client's location Cit and State CA Contact Knowledgeable with Vendor's provided services: Laura Peabody Contact's phone number 925.943.5896 3. Essential Requirements Can City Required Terms and Conditions MeeU Can Not Identify any exceptions Alternatives Provide Meet or or Agree Decline (explain) To Service Sought: Full T3 DS3 ISP service O Yes ^ No ^ Dedicated Internet Access Service O Yes ^ No ^ Connection via full line rate 45 mbps T3 ~ Yes service ^ No ^ Direct circuit, private connection between O Yes City of Santa Ana and the ISP's backbone ^ No hub ^ Leased private dedicated line from the City ~ Yes ^ No to ISP ^ Not burstable or metered D Yes ^ No ^ Not fractional or tiered ~ Yes ^ No ^ Not share capacity D Yes ^ No ^ No distance sensitivity O Yes ^ No ^ Can provide for the City to continue to use ~ Yes ^ No existing IP addresses ^ Can assist the City in obtaining portable ^ Yes OO No Class address space and its own See above- can keep Autonomous System (AS) number existing IPs Term: ^ 24 months with option to extend at the ^ Yes ^ No City's option for two additional 12 month terms 25G-14 APPENDIX A Proposal Response Form (Concluded) Can City Required Terms and Conditions Meet/ Can Not Identify any exceptions Alternatives Provide Meet or or Agree Decline (explain) To Service Levels: ^ Nefinrork availability: 100% global neiwork ~ Yes ^ No See SLA attached availabili ^ Percenta a acket delive :99.9% ^D Yes ^ No See SLA attached ^ Round trip latency: 45 millisecond round ^D Yes ^ No See SLA attached tri latenc ^ Guarantees on service levels: If service ^D Yes ^ No See SLA attached levels not meet, Vendor will compensate the customer i.e. the Ci ^ Explain any compensation if Vendor fails to See SLA attached meet Service Level commitments Installation Wait: ^ Installation of service including local loop O Yes ^ No Already installed rovided within 30 business da s Technical Customer Support: ^ Provide via toll free hone number ~ Yes ^ No ^ Provide 24 hours a day, 7 days a week, ~ Yes ^ No 365 da s a ear ^ Provide from location in USA O Yes ^ No Network Tier: Vendor is amon Tier 1 Network ISPs ~ Yes ^ No Vendor is amon Transit-Free Network ISPs ~ Yes ^ No 6. Pricing Identify your firm's charges: EXISTING LOOP Straight Renewal Charges Monthly Pricing Describe T3 (DS3) (as described in RFP) $1350.00 Full 45 megs to the Internet Local Loop $2623.00 Local loop back to COI POP (Pac Bell) Any other Charges and/or exce tion/s in service New Install: One-Time Charges Price Describe Installation $572 Install Charge from Qwest Provisioning Any other charge/s 25G-15 Recurring Charges Monthly Pricing Describe T3 (DS3) (as described in RFP) $1350.00 Full 45 megs to the Internet Local Loop $1451.00 Local loop back to COI POP Qwest Any other Charges andlor exce tion/s in service 25G-16