HomeMy Public PortalAbout2016-10-01 Network Maintenance And Support Services Agmt-Resilient Communications AGREEMENT FOR NETWORK MAINTENANCE
AND SUPPORT SERVICES
THIS AGREEMENT is made and effective as of, October 1, 2016 between the City of
Fullerton, municipal corporation("City") and Resilient Communications Inc. ("Consultant").
In consideration of the mutual covenants and conditions set forth herein, the parties agree as a
follows:
1. TERM. This Agreement shall commence on October 1, 2016 and shall remain and
continue in effect until September 30, 2017 unless sooner terminated under the provisions of
this Agreement.
2. SERVICES. Consultant shall perform the tasks described and set forth in Exhibit A,
attached hereto and incorporated herein as though set forth in full. Consultant shall complete the
tasks according to the schedule of performance which is also set forth in Exhibit A.
3. PERFORMANCE. Consultant shall employ, generally accepted standards and
practices utilized by persons engaged in providing similar services as are required of Consultant
hereunder in meeting its obligations under this Agreement.
4. PAYMENT.
a. The City agrees to pay Consultant monthly, in accordance with the payment rates
and terms and the schedule of payment as set forth in Exhibit B, attached hereto and
incorporated herein by this reference as though set forth in full, based upon actual time spent on
the above tasks. b. Consultant shall not be compensated for any services rendered in
connection with its performance of this Agreement which are in addition to those set forth
herein, unless such additional services are authorized in advance and in writing by the City
Manager, or his or her designee. Consultant shall be compensated for any additional services in
the amounts and in the manner as agreed to by City Manager and Consultant at the time City's
written authorization is given to Consultant for the performance of said services. Any additional
work in excess of this amount shall be approved by the City Council.
c. If Consultant advises the City that additional services are required to properly
maintain the Network and the City Manager or the City Council fail to approve payment for such
additional services, Consultant shall not be required to perform such additional services.
Furthermore, in such case, the City shall indemnify and hold harmless Consultant for any and all
damages or whatsoever nature that arise, or may arise in the future, as a result of the failure to
complete such additional services.
d. Consultant shall submit invoices monthly for actual services performed. Invoices
shall be submitted on or about the first business day of each month, for services provided in the
previous month. Payment shall be made within fifteen(15) days of receipt of each invoice.
e. Notwithstanding the above provisions, Consultant shall not be paid for any work
performed until it has submitted to the City a fully completed and executed Internal Revenue
Service Form W-9.
5. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE.
a. The City or Consultant may at any time, for any reason, with or without cause,
suspend or terminate this Agreement,by serving to the other party at least thirty(30) days prior
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written notice of termination. Neither the City nor the Consultant shall be obligated to explain
its reasons for termination.
b. In the event this Agreement is terminated pursuant to this Section, the City shall
pay to Consultant the actual value of the work performed up to the time of termination. Upon
termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to
the City pursuant to Section 3.
6. DEFAULT OF CONSULTANT.
a. The Consultant's failure to comply with the provisions of this Agreement shall
constitute default. In the event that Consultant is in default for cause under the terms of this
Agreement, City shall have no obligation or duty to continue compensating Consultant for any
work performed after the date of default and can terminate this Agreement immediately by
written notice to the Consultant. If such failure by the Consultant to make progress in the
performance of work hereunder arises out of causes beyond the Consultant's control, and without
fault or negligence of the Consultant, it shall not be considered a default.
b. If the City Manager or his or her delegate determines that the Consultant may be
in default in the performance of any of the terms or conditions of this Agreement, it shall serve
the Consultant with written notice of pending default. The Consultant shall have(10) days after
service upon it of said notice in which to cure the pending default by rendering a satisfactory
performance. In the event that the Consultant fails to cure the pending default within such period
of time, the City shall have the right to declare default and terminate this Agreement by serving
written notice to Consultant. Consultant shall be paid for services that were performed up until
the date that default is declared.
7. OWNERSHIP OF DOCUMENTS.
a. Consultant shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts and other such information required by City that relate to the
performance of services under this Agreement. Consultant shall maintain adequate records of
services provided in sufficient detail to permit an evaluation of services. All such records shall
be maintained in accordance with generally accepted accounting principles and shall be clearly
identified and readily accessible.
b. With respect to the design of public improvements, the Consultant shall not be
liable for any injuries or property damage resulting from the reuse of the design at a location
other than that specified in Exhibit A without the written consent of the Consultant.
8. INDEMNIFICATION.
a. The Consultant agrees to defend, indemnify,protect and hold harmless the City,
its officers, officials, employees and volunteers from and against any and all claims, demands,
losses, defense costs or expenses, or liability of any kind or nature which the City, its officers,
officials, employees, and volunteers may sustain or incur or which may be imposed upon them
for injury to or death of persons, or damage to property arising out of Consultant's negligent or
wrongful acts or omissions in performing under the terms of this Agreement, excepting liability
arising out of the negligence of the City.
b. The City agrees to defend, indemnify, protect and hold harmless the Consultant,
its officers, officials, employees and volunteers from and against any and all claims, demands,
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losses, defense costs or expenses, or liability of any kind or nature which the Consultant, its
officers, officials, employees, and volunteers may sustain or incur or which may be imposed
upon them for injury to or death of persons, or damage to property arising out of City's negligent
or wrongful acts or omissions in performing under the terms of this Agreement, excepting
liability arising out of the negligence of the Consultant.
9. INSURANCE REQUIREMENTS. Consultant shall procure and maintain for the
duration of the contract insurance against claims for injuries to persons or damages to property
which may arise from or in connection with the performance of the work hereunder by the
Consultant, its agents, representatives, or employees.
Consultant agrees to provide insurance in accordance with the requirements set forth
in Exhibit C. If consultant uses existing coverage to comply with these requirements and that
coverage does not meet the requirements set forth herein, Consultant agrees to amend,
supplement or endorse the existing coverage to do so.
10. INDEPENDENT CONTRACTOR.
a. Consultant is and shall at all times remain as to the City a wholly independent
contractor. Neither City nor any of its officers, employees or agents shall have control over the
conduct of Consultant or any of Consultant's officers, employees or agents, except as set forth in
this Agreement. Consultant shall not at any time or in any manner represent that it or any of its
officers, employees or agents are in any manner officers, employees or agents of the City.
Consultant shall not incur or have the power to incur any debt, obligation or liability whatever
against City, or bind City in any manner other than payment to Consultant under the provisions
of this Agreement.
b. No employee benefits shall be available to Consultant in connection with the
performance of this Agreement. Except for the fees paid to Consultant as provided in the
Agreement, City shall not pay salaries, wages, or other compensation to Consultant for
performing services hereunder for City.
11. LEGAL RESPONSIBILITIES. The Consultant shall keep itself informed of State
and Federal laws and regulations which in any manner affect those employed by it or in any way
affect the performance of its service pursuant to this Agreement. The Consultant shall at all
times observe and comply with all such laws and regulations. The City, and its officers and
employees, shall not be liable at law or in equity occasioned by failure of the Consultant to
comply with this section.
12. RELEASE OF INFORMATION.
a. Any confidential information gained by Consultant in performance of this
Agreement shall not be released by Consultant without City's prior written authorization.
Consultant, its officers, employees, agents or subcontractors, shall not without written
authorization from the City Manager or unless requested by the City Attorney, voluntarily
provide declarations, letters of support, testimony at depositions, response to interrogatories or
other information concerning the work performed under this Agreement. Response to a subpoena
or court order shall not be considered "voluntary" provided Consultant gives City notice of such
court order or subpoena.
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b. Consultant shall promptly notify City should Consultant, its officers, employees,
agents or subcontractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admissions or other discovery
request, court order or subpoena from any person regarding this Agreement and the work
performed there under. City retains the right, but has no obligation, to represent Consultant
and/or be present at any deposition, hearing or similar proceeding. Consultant agrees to
cooperate fully with City and to provide City with the opportunity to review any response to
discovery requests provided by Consultant. However, City's right to review any such response
does not imply or mean the right by City to control, direct, or rewrite said response. Consultant
shall be compensated at the hourly rate specified in Exhibit A for time required of Consultant
relating to any issue or response to any deposition, hearing or similar proceeding.
13. NOTICES. Any notices which either party may desire to give to the other party
under this Agreement must be in writing and may be given either by(i)personal service,
(ii) delivery by a reputable document delivery service, such as but not limited to, Federal
Express, that provides a receipt showing date and time of delivery, or(iii) mailing in the United
States Mail, certified mail,postage prepaid, return receipt requested, addressed to the address of
the party as set forth below or at any other address as that party may later designate by Notice:
To City: City of Fullerton
1580 W. Commonwealth Avenue
Fullerton, CA 92833
Attention: Tim Campbell
To Consultant: Resilient Communications Inc.
27068 La Paz Road, Suite 468
Aliso Viejo, CA 92656
Attention: Patrick Gost
14. ASSIGNMENT. The Consultant shall not assign the performance of this
Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of
the City.
15. LICENSES. At all times during the term of this Agreement, Consultant shall have in
full force and effect, all licenses required of it by law for the performance of the services
described in this Agreement.
16. GOVERNING LAW. The City and Consultant understand and agree that the laws
of the State of California shall govern the rights, obligations, duties and liabilities of the parties
to this Agreement and also govern the interpretation of this Agreement.
17. LITIGATION. Any litigation concerning this Agreement shall take place in the
municipal, superior, or federal district court with geographic jurisdiction over the City of
Fullerton. In the event such litigation is filed by one party against the other to enforce its rights
under this Agreement, the prevailing party, as determined by the Court's judgment, shall be
entitled to reasonable attorney fees and litigation expenses for the relief granted.
18. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties relating to the obligations of the parties described in this Agreement. All
prior or contemporaneous agreements, understandings, representations and statements, oral or
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written, are merged into this Agreement and shall be of no further force or effect. Each party is
entering into this Agreement based solely upon the representations set forth herein and upon each
party's own independent investigation of any and all facts such party deems material.
19. AUTHORITY TO EXECUTE THIS AGREEMENT. The person or persons
executing this Agreement on behalf of Consultant warrants and represents that he or she has the
authority to execute this Agreement on behalf of the Consultant and has the authority to bind
Consultant to the performance of its obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
CONSULTANT
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By: Patrick Gost Date: By: 0 ate:
Title: President
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EXHIBIT A
TASKS TO BE PERFORMED
Resilient Communications will perform Support Services on the City's Voice over Internet
Protocol Network(VoIP) including the following hardware and software systems:
Hardware System &Applicable Software
All hardware and software included in RFP dated
October 7, 2014 and implemented by Resilient
Communications, per Purchase Order#P901995
Statement of Work:
This Statement of Work accompanies an Agreement that has been executed by the parties. All
statements of fact contained in this Statement of Work are subject to the terms and conditions set
forth in such Agreement. The terms and conditions set forth in the Agreement control in the
event of any inconsistency between such terms and conditions and the matters set forth in this
Statement of Work.
Scope—The following are services to be performed by Resilient Communications under
this agreement:
Support Services—Resilient shall render services in the support of City's VoIP network
as listed in Exhibit A. Services shall include: troubleshooting, repair, replacement, and/or
reinstallation of hardware and software specified in Exhibit A. Resilient will perform up to four
(4) hours of support services per month for a fee of$5,000 per month paid monthly prior to
beginning of support term. City may request additional support hours which will be billed at
Resilient's standard hourly rate of$175.00 per hour during business hours as defined below.
Billing rate Emergency Response, outside of business hours will be at $350 per hour or 2 times
hourly rate of the standard $175 per hour. There is a minimum of 2 hours for billing purposes
for onsite support and a minimum of 1 hour for remote support.
* Maintenance and Support Services offered under this agreement will be
delivered during normal business hours of 8am to 5pm, Monday through Friday,
excluding national holidays. Emergency Support services (5pm to 8am, Monday
through Friday, weekends, and national holidays) is covered under this
agreement, and will be billed as indicated above.
Incident Priority and Response Times —Resilient shall respond to requests of
normal priority within 4 hours during normal business hours.
Requests for Emergency Response will be responded to within 2 hours on a 24/7 basis.
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EXHIBIT B
PAYMENT SCHEDULE
City will pay Resilient for the VoIP Support Services at the price and on the terms set forth in
Exhibit A. The price set forth in this Agreement does not include any sales, use, service, or
similar taxes that may be payable by reason of the provision of the Services rendered, and City
will pay all such taxes which may become due in connection with the Services.
A. Price—Resilient is being contracted by City on a fixed-price basis to perform the
services described above. The fixed price for this Statement of Work is five
thousand US dollars ($5,000)per month and includes 4 hours of support per
month. Any material change in the Services or Deliverables described above
requires a written change order signed by the parties to the Agreement. Such
change order may include an adjustment to the price or delivery dates. Any
agreed upon work that is in addition to this contract will be billed at$175.00 per
hour for normal business hours and $350.00 per hour outside of normal business
hours as established in Exhibit A.
B. Invoices—Services will be invoiced upon contract execution or renewal.
C. Payment—Payment is due thirty(30) days after date of invoice. Payment must
be received prior to each monthly term.
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EXHIBIT C
INSURANCE REQUIREMENTS
The following coverages will be provided by Consultant and maintained on behalf of the
City and in accordance with the requirements set forth herein.
Commercial General Liability/Umbrella. Primary insurance shall be provided on ISO-
CGL form No. CG 00 01 11 85 or 88 or equivalent form, as determined by Risk Management staff.
Total limits shall be no less than $2,000,000.00 per occurrence for all coverages and
$4,000,000.00 general aggregate. City and its employees and agents shall be added as additional
insureds using ISO additional insured endorsement form CG 20 10 11 85 or equivalent form, as
determined by Risk Management staff(in no event will City accept an endorsement form with an
edition date later than 1990). Coverage shall apply on a primary non-contributing basis in relation
to any other insurance or self-insurance, primary or excess, available to City or any employee or
agent of City. Coverage shall not be limited to the vicarious liability or supervisory role of any
additional insured.
Umbrella Liability Insurance (if necessary to meet limits requirements) shall apply to
bodily injury/property damage,personal injury/advertising injury, at a minimum, and shall include
a "drop down" provision providing primary coverage above a maximum $25,000.00 self-insured
retention for liability not covered by primary policies but covered by the umbrella policy.
Coverage shall be following form to any underlying coverage. Coverage shall be provided on a
"pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no
cross liability exclusion. Policies shall have concurrent starting and ending dates.
Business Auto/Umbrella Liability Insurance. Primary coverage shall be written on ISO
Business Auto Coverage form CA 00 01 06 92 including symbol 1 (Any Auto). Limits shall be
no less than $1,000,000.00 per accident. Starting and ending dates shall be concurrent. If
Consultant owns no autos,a non-owned auto endorsement to the General Liability policy described
above is acceptable.
Workers' Compensation/Employer's Liability shall be written on a policy form
providing workers'compensation statutory benefits as required by law. Employer's liability limits
shall be no less than one million dollars per accident or disease. Employer's liability coverage
shall be scheduled under any umbrella policy described above. Unless otherwise agreed, this
policy shall be endorsed to waive any right of subrogation as respect to the City, its employees or
agents.
Professional Liability Insurance. Coverage shall be written on a policy form that
provides professional liability insurance, errors and omissions or equivalent coverage appropriate
to the Consultant's occupation or service. The policy limit shall be no less than$1,000,000.00 per
claim and in the aggregate.
Consultant and City further agree as follows:
1. This Exhibit supersedes all other sections and provisions of this Agreement to the extent
that any other section or provision conflicts with or impairs the provisions of this Exhibit.
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2. Nothing contained in this Exhibit is to be construed as affecting or altering the legal status
of the parties to this Agreement. The insurance requirements set forth in this Exhibit are
intended to be separate and distinct from any other provision in this Agreement and shall
be interpreted as such.
3. All insurance coverage and limits provided pursuant to this agreement shall apply to the
full extent of the policies involved, available or applicable. Nothing contained in this
Agreement or any other agreement relating to the City or its operations limits the
application of such insurance coverage.
4. Requirements of specific coverage features or limits contained in this Exhibit are not
intended as a limitation on coverage, limits or other requirements, or a waiver of any
coverage normally provided by any insurance. Specific reference to a given coverage
feature is for purposes of clarification only and is not intended by any party to be all
inclusive, or to the exclusion of other coverage, or a waiver of any type.
5. For purposes of insurance coverage only, this Agreement will be deemed to have been
executed immediately upon any party hereto taking any steps that can be deemed to be in
furtherance of or towards, performance of this Agreement.
6. All general or auto liability insurance coverage provided pursuant to this Agreement, or
any other agreements pertaining to the performance of this Agreement shall not prohibit
Consultant, and Consultant's employees, or agents, from waiving the right of subrogation
prior to a loss. Consultant hereby waives all rights of subrogation against City.
7. Unless otherwise approved by City, Consultant's insurance shall be written by insurers
authorized to do business in the State of California and with a minimum "Best's" Insurance
Guide rating of "A:VII+." Self-insurance will not be considered to comply with these
insurance specifications.
8. In the event any policy of insurance required under this Agreement does not comply with
these requirements or is canceled and not replaced, City has the right but not the duty to
obtain the insurance it deems necessary and any premium paid by City will be promptly
reimbursed by Consultant.
9. Consultant agrees to provide evidence of the insurance required herein, satisfactory to City,
consisting of certificate(s) of insurance evidencing all of the coverages required and an
additional insured endorsement to Consultant's general liability and umbrella liability
policies (if any) using ISO form CG 20 10 11 85 or equivalent form, as determined by
Risk Management staff. Consultant shall also provide a waiver of subrogation
endorsement to Consultant's workers' compensation policy applicable to the City.
Certificate(s) are to reflect that the insurer will provide 30 days notice of any cancellation
of coverage and all policies must be endorsed accordingly. Consultant agrees to require its
insurer to modify such certificates to delete any exculpatory wording stating that failure of
the insurer to mail written notice of cancellation imposes no obligation and to delete the
word "endeavor" with regard to any notice provisions. Consultant agrees to provide
complete copies of policies to City upon request.
10. Consultant shall provide proof that policies of insurance required herein expiring during
the term of this Agreement have been renewed or replaced with other policies providing at
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least the same coverage. Such proof will be furnished at least two weeks prior to the
expiration of the coverages.
11. Consultant's insurance presented in compliance with these specifications shall not include
self-insured retentions or deductibles unless declared to the City and approved by the City
Manager. The City may require evidence of financial security if deductibles or self-insured
are part of the Consultant's liability program.
12. Any actual or alleged failure on the part of City or any other additional insured under these
requirements to obtain proof of insurance required under this Agreement or to inform
Consultant of noncompliance with any insurance requirements in no way waives any right
or remedy of City or any additional insured, in this or any other regard.
13. Consultant agrees to require all subcontractors or other parties hired for this project to
provide general liability insurance naming as additional insureds all parties to this
Agreement. Consultant agrees to obtain certificates evidencing such coverage and make
reasonable efforts to ensure that such coverage is provided as required here. Consultant
agrees to require that no contract used by any subcontractors or contracts Consultant enters
into on behalf of City, will reserve the right to charge back to City the cost of insurance
required by this agreement. Consultant agrees that upon request all agreements with
subcontractors or others with whom Consultant contracts with on behalf of City, will be
submitted to City for review. Failure of City to request copies of such agreement will not
impose any liability on City, or its employees.
14. If Consultant is a Limited Liability Company, general liability coverage must be amended
so that the Limited Liability Company and its Managers,Affiliates,employees,agents, and
other persons necessary or incidental to its operation are insureds.
15. Consultant agrees to provide immediate notice to City of any claim or loss against
Consultant that includes City as a defendant. City assumes no obligation or liability by
such notice, but has the right (but not the duty) to monitor the handling of any such claim
or claims if they are likely to involve City.
16. It is agreed that insurance provided pursuant to these requirements will not be limited to
coverage for the vicarious liability or supervisory role of any additional insured. All
insurance coverage and limits provided are intended to apply to the full extent of the
policies. Nothing contained in this agreement limits the application of such insurance
coverage.
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