Resolution No. 8612f
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RESOLUTION NO. 8612
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
SERVICES AGREEMENT BY AND BETWEEN THE CITY OF
VERNON AND FUJITSU NETWORK COMMUNICATIONS, INC. FOR
FIBER OPTIC HELP DESK TECHNICAL SUPPORT
WHEREAS, on January 28, 2004, the City Council of the City of
Vernon adopted Resolution No. 8345 approving a Request for Proposal
("RFP") for the purchase, installation and maintenance of data
equipment, software and related services that would facilitate the
development of high speed internet services to businesses located
within the City using the existing fiber optic system (hereinafter
referred to as the "Optical Fiber Network Project"); and
WHEREAS, the RFP was sent and responses were received from
ten vendors, all of which were reviewed and evaluated by the Light &
Power Department; and
WHEREAS, the City Council of the City of Vernon does not
intend to accept a proposal based upon the lowest responsible bidder,
but will instead make its decision using the "qualification based
selection" method for obtaining services; and
WHEREAS, the Light & Power Department found Fujitsu Network
Communications, Inc. ("Fujitsu") to be the lowest responsible qualified
vendor meeting the City's requirements respecting providing Help Desk
technical support services for the Optical Fiber Network Project; and
WHEREAS, the Finance Committee on December 1, 2004,
considered the recommendation of Bruce V. Malkenhorst, Director of
Finance, dated November 24, 2004, that an agreement with Fujitsu be
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approved and executed.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
accepts the proposal of Fujitsu and approves the Services Agreement, a
copy of which is attached hereto as Exhibit A and incorporated by
reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor and the City Clerk to execute said Agreement for,
and on behalf of, the City of Vernon.
SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send one fully executed
Agreement to:
Fujitsu Network Communications, Inc.
Attn. Richard R. Goss, Senior Director Contract Management
2801 Telecom Parkway
Richardson, TX 75082
SECTION 5: All other responses in connection with the RFP
are rejected, subject to execution of the aforesaid contract
documents.
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SECTION 6: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 5th day of January, 2005.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
(LEONIS C. MALB G, Ma or
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8612, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, January 5,
2005, and thereafter was duly signed by the Mayor of the City of
Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
VA,
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement") is made, entered into and executed
in duplicate originals, either copy of which may be considered and used as the original hereof for
all purposes, as of the 5th day of January, 2005, in the City of Vernon, County of Los Angeles,
State of California,
BY AND BETWEEN THE CITY OF VERNON
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058
AND Fujitsu Network Communications, Inc.
(hereinafter referred to as "FNC")
2801 Telecom Parkway,
Richardson, Texas 75082
RECITALS
WHEREAS, City desires to engage FNC to provide certain services as more fully
described herein ("Services") with respect to City's telecommunications system; and
WHEREAS, FNC represents that it is qualified and capable of providing the Services
described in "Attachment A" attached hereto and is willing to provide such Services in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained the parties hereto hereby agree as follows.
1. Service Description.
1.1 FNC shall provide the City with first level Help Desk Support ("Help Desk") for
telephone assistance 24 hours per day, 7 days per week including holidays and weekends, 365
days a year, for the City's network and internet service delivery to its end -users on the installed
network as set forth in the statement of work ("Statement of Work") attached hereto and
incorporated by reference as "Attachment A". The City shall submit a purchase order to FNC
authorizing purchase of said Services. If, from time to time, City desires to have FNC perform
additional Services relative to the products in the City's telecommunications system such as
engineering, installation, removal, or maintenance the City may submit an amendment to this
Agreement containing a new Statement of Work fully describing the requested Service(s) to
FNC. FNC will acknowledge receipt of a new Statement of Work within fifteen (15) days after
receipt of such Statement of Work, and FNC will negotiate in good faith the terms of such
Statement of Work. The Statement of Work will be subject to this Agreement unless
specifically agreed to by the parties in writing. The foregoing notwithstanding, in the event of
any conflict between the terms of any Statement of Work and the terms of this Agreement, the
terms of the definitive Statement of Work shall control. INC shall furnish the necessary labor,
tools and work equipment required for the performance of the Services, as provided in the
Statement of Work. Any changes to the Statement of Work must be agreed to by the parties in
writing via an amendment to this Agreement and any such changes may result in a change in the
compensation due to FNC, or the project schedule, or both. The parties agree to negotiate in
good faith any such changes.
1.2 City shall appoint an authorized representative to serve as the project manager
for each project undertaken pursuant to this Agreement as set forth on "Attachment A" (the
"Project Manager"). The Project Manager will inspect and accept the Services performed by
FNC.
2. Term and Termination.
This Agreement shall be effective as of the date first written above and thereafter on a
month -to -month basis until terminated by either party by giving no less than ninety (90) days'
prior written notice to the other party; provided, that no outstanding Statement of Work or
Service Description remains to be performed. Notwithstanding this Section 2, in the event either
party is in material default of pny of the terms and conditions of this Agreement, this Agreement
shall be immediately terminable at the option of the non -breaching party; provided, the non -
breaching party gives the breaching party written notice of such material default and allows the
breaching party thirty (30) days from receipt of such notice to remedy such material default.
3. Payment.
As consideration for FNC's performing the Services and furnishing all tools and
equipment required to perform the Services, City shall pay FNC as provided in "Attachment A"
attached hereto and incorporated herein by reference and payment shall be due thirty (30) days
after receipt of the FNC invoice. FNC shall be allowed to incrementally invoice the City for
Services as defined in "Attachment A".
In the event of the termination of this Agreement, or any Statement of Work for any
reason, City agrees to pay all fees and expenses incurred up to the effective date of such
termination.
4. Easements and Permits.
4.1 City at its own expense shall provide all necessary easements, occupancy and
land related permits for performance of the Services. Any other permits required for
performance of the Services shall be obtained by FNC including, without limitation, all
municipal or state licenses or permits required for telecommunications equipment installation.
4.2 City shall furnish FNC with a list of restrictions, whether regular or special,
contained in the aforesaid easements and permits. If such restrictions cause FNC to incur
additional costs in performing the Services, such costs will be paid by City.
5. Insurance.
FNC agrees to provide insurance in the amounts and forms specified in "Attachment B",
which is attached hereto and made a part of hereof by reference. FNC shall submit to the City
documentation indicating compliance with these minimum requirements no less than one (1) day
prior to the beginning of performance under this Agreement. FNC shall not commence
performance of its work under this Agreement until the above insurance has been obtained and
proof of insurance has been filed with and approved by the City.
6. Taxes.
City is liable to pay all taxes or assessments arising from or relating to services
performed or items furnished by FNC except those based on the income of FNC.
7. Independent Contractor.
In the performance of the Services, FNC shall at all times be an independent contractor
and the relation of the parties to this Agreement shall in no event be construed as constituting any
other relationship.
8. Service Materials.
Service materials (including diagnostic software, hardware and software tools, and
associated documentation) provided by FNC or its subcontractors for use in the performance of
Services remain the exclusive property of FNC or its subcontractors. City may use such service
materials only for activities related to, and only during the term of, such Services, and may not
modify, remove, or transfer the service materials or make the materials, or any resultant
diagnostic or system management data, available to any other parties without FNC's prior written
consent. Upon completion of the Services, City will, at FNC's option, destroy or return all
service materials in its possession. Parts replaced by FNC or its subcontractors become the
property of FNC or its subcontractors.
9. Software Licensin .
Software is subject to the terms of the original license for such Software or, if there is no
original license, the Software will be subject to FMC's or, as applicable, the third party software
manufacturer's standard software licensing terms.
10. Intellectual Property Defense.
10.1 Any intellectual property indemnification arising under this Agreement will be
provided by FNC, and FNC shall have no intellectual property indemnification obligations
under this Agreement, since FNC is only providing Services under this Agreement. FNC will
defend at its own expense any action brought against City to the extent that it is based on a
claim that the Products made by or for FNC, in the form delivered to City, constitute a direct
infringement of any United States patent, or federal or state trademark or copyright duly
registered as of the date of this Agreement. FNC will indemnify and hold harmless City against
damages incurred by, and pay those damages finally awarded against, City in any such action
which is attributable to such claim, subject to the terms and conditions of this Section 10.
10.2 City will immediately notify FNC in writing of any claim of infringement.
10.3 FNC will have sole control of the defense of any action on such claim and all
negotiations for its settlement or compromise and City agrees, at FNC's expense and option, to
conduct such defense and negotiations.
10.4 Neither City nor FNC will be liable for any costs or expenses incurred under this
Section 10_without its prior written authorization.
10.5 City will provide complete authority, information, and assistance to FNC and its
counsel for the defense of such claim.
10.6 In the event that any FNC Product is held to constitute an infringement, or its use
is enjoined or in FNC's opinion such results are likely to occur, FNC may, at its own expense
and option, either (1) procure for City the right to continue using such Product, (ii) replace such
Product with a non -infringing Product, or (iii) modify such Product so that it is non -infringing. If
in FNC's sole judgment none of the foregoing alternatives are reasonably available, City will
return the infringing or potentially infringing Product to FNC at its request, and FNC will grant
City a credit for the Product and /or Services based on the original price of the Product and/or
Services to City, as adjusted for reasonable depreciation.
10.7 FNC will not be liable to City hereunder for a patent infringement or claim
thereof where the FNC Products in question are used in combination with equipment not
furnished by FNC or in a manner for which they were not designed by FNC, or modifications
were made to the FNC Products after delivery to City or the infringement is related to FNC's
compliance with City's specifications or request. FNC will not be liable to City hereunder if a
trademark infringement or any claim thereof is based upon any branding or marking not applied
by FNC or which is applied at the request of City.
10.8 THE FOREGOING STATES THE ENTIRE LIABILITY OF FNC WITH
RESPECT TO INFRINGEMENT OF PATENTS, TRADEMARKS, COPYRIGHTS AND
OTHER INTELLECTUAL PROPERTY RIGHTS BY ANY PRODUCT DELIVERED
UNDER THIS AGREEMENT.
I I. Delays in Performance.
Neither party shall hold the other responsible for damages or delays in performance
caused by force majeure, acts of God or other events beyond the control of the other party which
could not have been reasonably foreseen or prevented. Such acts or events shall include, but
shall not be limited to, unusually severe weather conditions, floods, epidemics, war, riots, strikes,
lockouts or other industrial disturbances, or the unavailability of utility or transportation services.
Should any such act or event occur, the party affected by such event shall notify the other of such
event and its expected duration as well as its expected impact on completion of the Services.
Both parties shall use their best efforts to overcome any such difficulties and to resume
performance of the Services as soon as possible. However, either party reserves the right to
automatically terminate this Agreement if the expected impact on completion or the expected
duration of delay exceeds thirty (30) days.
Notwithstanding the above, after an order is issued, if City places the performance of that
order on hold, or otherwise directs the delay of performance by FNC against the previously
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agreed schedule of that order, FNC shall have the right to invoice for elements of the order that
have been completed plus any major material commitments by FNC in support of the City's
order. Upon directive by City to re -start the order, FNC shall have the right to submit a claim for
additional cost, schedule, or both as a result of the delay.
12. Warranty and Remedy.
12.1 FNC warrants that Services will conform to the Statement of Work agreed to by
the parties.
12.2 As City's sole and exclusive warranty remedy, FNC will remedy any non-
conforming Services provided to City under this Agreement; provided, City notifies FNC within
ninety (90) days after the completion of such non -conforming Services.
12.3 If in FNC's opinion FNC is unable to otherwise remedy the non -conforming
Services, FNC may refund the purchase price of the Services paid by City under the Statement of
Work.
12.4 THE ABOVE WARRANTY IS FNC SOLE AND EXCLUSIVE
WARRANTY FOR THE SERVICES PERFORMED HEREUNDER, AND IS IN LIEU OF
ANY AND ALL UNDERSTANDINGS, AGREEMENTS, REPRESENTATIONS AND NO
OTHER WARRANTY, EXPRESS OR IMPLIED, WILL APPLY. FNC SPECIFICALLY
EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
13. Limitation of Liability.
13.1 FNC WILL BE LIABLE TO CITY FOR DIRECT DAMAGES UP TO THE
LESSER OF ONE MILLION DOLLARS ($1,000,000) OR THE SERVICE FEES PAID TO
FNC FOR THE SERVICES, WHICH ARE THE SUBJECT OF THE CLAIM.
13.2 IN NO EVENT WILL FNC BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING
FROM LOSS OF DATA, USE OR PROFITS.
13.3 THESE LIMITATIONS WILL APPLY TO ANY FORM OF ACTION,
WHETHER ARISING UNDER CONTRACT, STATUTE, TORT, OR OTHERWISE.
13.4 Any action against FNC must be brought within eighteen (18) months after the
cause of action arises. For purposes of this Section 13, "FNC" includes its employees,
subcontractors and suppliers.
14. Title to Work Product.
Unless otherwise stated in a Statement of Work, all right, title, and interest in
specifications, descriptions, documents, maps, photographs, drawings, permit drawings, reports,
notes, notebooks, procedures, samples and alignments owned by, provided by, or resulting from
FNC's performance of the Services hereunder shall remain with FNC. No license to the
foregoing is granted under this Agreement.
15. Confidentiality.
15.1 In the performance of its obligations under this Agreement, each party may
acquire valuable trade secrets and/or confidential and proprietary information of the other party
or its Affiliates. In consideration of the foregoing, it is hereby agreed that:
a) Confidential Information means information that relates to the purpose set forth above
or that, although not related to such purpose, is nevertheless disclosed as a result of the parties'
discussions in that regard, and that should reasonably have been understood by the receiving
party, because of legends or other markings, the circumstances of disclosure or the nature of the
information itself, to be proprietary and confidential to the disclosing party, an Affiliate of the
disclosing party or to a third party. Confidential Information may be disclosed in written or other
tangible form (including on magnetic media) or by oral, visual or other means. The term
"Affiliate" means any person or entity directly or indirectly controlling, controlled by, or under
common control with a party.
b) Each party agrees not to use the Confidential Information for any purpose whatsoever
except for the purpose set forth above. Each party agrees not to disclose the Confidential
Information to any third person or to its employees or those of its Affiliates except those
employees or Affiliates who have a legitimate need to know and who agree to keep such
information confidential. Each party agrees that it shall protect the confidentiality of, and take
reasonable steps to prevent disclosure or unauthorized use of, the Confidential Information in
order to prevent it from falling into the public domain or the possession of persons not legally
bound to maintain its confidentiality, provided that in no event shall such party's obligations
exceed the standard of care taken to protect its own confidential information of like importance.
Each party will promptly advise the other party in writing of any misappropriation or misuse by
any person of such Confidential Information and provide assistance to the injured party in any
lawsuit related thereto. Each party acknowledges that its obligations hereunder survive in
accordance with the terms hereof, notwithstanding the termination of the business relationship of
the parties, for a period of five (5) years following the last disclosure of Confidential Information
by the other party hereunder.
c) No copies of any Confidential Information may be made except to implement the
purpose of this Agreement. Any materials, documents, notes, memoranda, drawings, sketches
and other tangible items containing, consisting of or relating to the Confidential Information of a
party which are furnished to the other party in connection with this Agreement, or are in the
possession of the other party, and all copies thereof, remain the property of the party to which the
Confidential Information is proprietary and shall be promptly returned to the party supplying the
same upon a party's request therefor. Nothing contained in this Agreement shall be construed as
granting any rights, by license or otherwise, in any Confidential Information except as specified
in this Agreement.
d) Each party's obligations under this Agreement shall not apply to information which:
(i) is, and can be shown by dated documentation to be, known by that party or is publicly
available at the time of disclosure by the disclosing party to the receiving party; (ii) becomes
publicly available after disclosure by the disclosing party to the receiving party through no act of
the receiving party; (iv) is hereafter rightfully furnished to the receiving party by a third party
without restriction as to use or disclosure; (v) is disclosed with the prior written consent of the
disclosing party; (vi) is, and can be shown by dated documentation to be, information that was
independently developed by the receiving party; or (vii) is required to be disclosed pursuant to
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any judicial or administrative proceeding, provided that the receiving party immediately after
receiving notice of such action notifies the disclosing party of such action to give the disclosing
party the opportunity to seek any other legal remedies to maintain such information in
confidence.
e) Both parties agree that the fact that the business relationship exists is confidential and
shall be treated as such during the term of this Agreement. Neither party may use the other
party's name in any type of media, advertising, promotions, representations to its customers, etc.
without the prior written consent of that party. Nothing in this Agreement shall grant to either
party hereto the right to make commitments of any kind for or on behalf of the other party
without the prior written consent of that party.
f) Nothing in this Agreement shall obligate either party to disclose any information to
the other party or enter into any other agreement with the other party. Each party acknowledges
that if the other party is required to bring an action to enforce the provisions of this Article 15,
the damages may be irreparable and difficult to measure and that the other party shall be entitled
to seek equitable relief including a preliminary injunction in addition to any other relief
available. Each party agrees that in the event that the party that disclosed Confidential
Information seeks an injunction hereunder, the party that received the Confidential Information
hereby waives any requirement for the posting of a bond or any other security. Should litigation
arise concerning this Agreement, the prevailing party shall be entitled to its attorneys' fees and
court costs in addition to any other relief, which may be awarded.
g) Each party warrants that it has the right to disclose the Confidential Information
provided by it, but disclaims all other warranties regarding the Confidential Information, except
as provided in Article 10.
16. Compliance with Laws
Each party hereby assures the other that it: (i)shall comply in all respects with the United
States Export Administration Act (EAA), as amended, and its regulations, and the United States
Arms Export Control Act (AECA), as amended, and its regulations, which provide generally that
no commodities or technical data, including any hardware, software, or other technical data (or
direct products thereof) provided under this Agreement, shall be disclosed, exported or re-
exported, directly or indirectly, without first obtaining all prior approvals from the U.S.
Department of Commerce as required by the EAA and its regulations, or the U.S. Department of
State as required by the AECA and its regulations (ii) shall comply in all respects with the United
States Foreign Assets Control Regulations, as amended, which provide generally that companies
under the jurisdiction of the United States may not engage in any dealings or transactions,
directly or 'indirectly, with foreign countries designated from time to time by the U.S.
government as embargoed by the United States, or foreign nationals and companies identified by
the United States as representing the interests of such embargoed countries.
17. Assignments and Subcontractors
This Agreement shall not be assigned by either party without the express written consent
of the other party. Notwithstanding the foregoing, FNC may subcontract any of the Services
hereunder and any subcontracting of such Services shall not relieve FNC of its obligations under
this Agreement.
18. General Terms and Conditions
18.1 Cumulative Rights. Except as set forth to the contrary herein, any right or
remedy of a party shall be cumulative and without prejudice to any other right or remedy,
whether contained herein or not.
18.2 Notices. All notices and communications under this Agreement shall be deemed
to have been duly given only if and on the date when hand delivered, sent by confirmed telex or
facsimile, or sent by certified mail, postage prepaid, to the following:
City: City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
Attn: Ali Nour
Phone: 323-583-8811
Facsimile: 323-826-1425
FNC: Fujitsu Network Communications, Inc.
2801 Telecom Parkway
Richardson, TX 75082
Attn: Legal Department
Phone: (972) 690-6000
Facsimile: (972) 479-2992
Either party may change its address for purposes of this Section 18.2 by giving the other party
written notice of the new address.
18.3 Counterparts. Any counterpart of this Agreement held by a party shall be
deemed the original and conclusive in case of variance between it and any other signed copy,
18.4 Governing Law and Forum Selection. All questions relating to this Agreement,
including contractual capacity, validity, performance, interpretation or remedies for breach, shall
be governed by California law, except that California choice of law rules shall not apply. Any
action brought relating to this Agreement must be brought and held exclusively in a court in or
serving the County of Los Angeles, CA.
18.5 Headings. All headings are for index and reference purposes only.
18.6 Compliance with Laws. Each party shall observe and abide by all applicable
laws, regulations, ordinances and rules of the Federal and State Governments, and political
subdivisions thereof, and any other duly constituted public authority wherein Services are being
performed.
18.7 Strict Performance. A party's right to require strict performance of the other
party's obligations hereunder shall not be affected in any way by any previous wavier,
forbearance or course of dealing.
18.8 Entire Agreement. This Agreement and any exhibits and attachments hereto
comprise the entire agreement between City and FNC, and there are no agreements,
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understandings, conditions, warranties or representations, oral or written, express or implied, that
are not merged herein or superseded hereby. In the event of a conflict between this Agreement
and a purchase order, this Agreement shall control.
18.9 Amendment. Any amendment to this Agreement shall be valid only if made in
writing and signed by the parties.
18.10 Severability. In the event that any of the provisions, or portions or applications
thereof, of this Agreement are held to be unenforceable or invalid by any court of competent
jurisdiction, City and FNC shall negotiate an equitable adjustment in the provisions of this
Agreement with a view toward effecting the purpose of this Agreement, and the validity and
enforceability of the remaining provisions, or portions or applications thereof, shall not be
affected thereby.
18.11 Nonsolicitation. City agrees that it shall not (a) employ, (b) attempt to employ
by offer or otherwise, (c) contract with or (d) influence or seek to influence the departure from
FNC's employ of, any Service personnel of FNC either directly, indirectly or in concert with
others (each being an "Event of Solicitation") until one (1) year after the earlier of (1) the
termination of employment with FNC of any such Service personnel and (ii) the termination of
this Agreement. Inasmuch as it is impossible to fix the damages that may be sustained by FNC
by reason of a breach of this provision by City, it is understood and agreed that City shall pay to
FNC, as liquidated damages and not as a penalty, an amount equal to fifty percent (50%) of the
base annual salary of the affected FNC personnel for each Event of Solicitation made in violation
of this provision. Such amount shall be due and payable by City within ten (10) days of receipt
of written demand from FNC. FNC shall also have recourse to injunctive relief in addition to the
foregoing liquidated damage provision.
18.12 General Indemnification To the extent caused solely by FNC's negligent or
wrongful acts FNC shall, to the fullest extent under law, indemnify, defend and hold City its
elected officials, and employees (each an "Indemnitee") harmless from any claims, losses,
liabilities, costs, expenses, or damages (collectively "Claim"), including reasonable attorneys'
fees, arising directly from the death of or injury to any individual or damage to or loss of
personal or real property of Indemnitee. This obligation is in addition to FNC's duty to provide
insurance and shall not be limited by any limitation of the amount or type of insurance. City
shall notify FNC in writing of any Claim as soon as practicable and shall provide reasonable
cooperation in the defense and settlement of such Claim at FNC's expense. INC shall be
entitled to control the handling of any such Claim and to defend or settle any such Claim, in its
sole discretion, with counsel of its own choosing, provided, however, that FNC shall not agree to
any disposition of a Claim that, admits liability or imposes duties of performance or payment on
City without City's prior written consent.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
Fujitsu Network Communications, Inc. City of Vernon
By
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Name: Leonis C. Malburg
Title: Mayor
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ATTEST:
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM
Eric T. Fresch, City Attorney
EXHIBIT
0
ATTACHMENT A
Statement of Work
City of Vernon, CA
Executive Summary
Service Agreement
City of Vernon
Fujitsu Network Communications, Inc. ("FNC") will provide City of Vernon ("City") with first
level Help Desk Support ("Help Desk") for telephone assistance 24 hours per day, 7 days per
week including holidays for the City's network and internet service delivery to its end -users on
the installed network ("Network").
Term
Services will be in effect following the receipt of City's Purchase Order and completion of the
Network installation. The Initial Term will continue for 12 months thereafter. Following
completion of the Initial Term, the Services may continue in effect if City provides ninety days
prior written notice of its intention to continue this Service for an additional 12-month period.
Following the Initial Term, City may continue the Service for prices subject to mutual agreement
based on the volume of calls anticipated.
If at any time following the Initial Term, or any annual extension thereafter, City desires to
terminate the Services, City will give written notice 30 days in advance to FNC and the Services
will be so terminated. INC will make no rebate of all or any portion of any prepayment related
to the terminated Services.
The Help Desk will use trouble shooting techniques typical to the industry and exercise
reasonable caution in counseling and consulting with the end -users, but at no time should it be
held responsible for lost files, data, software, configurations, time or productivity that may result
from any attempts to support the City's service delivery to its end -users.
Description of Services
Telephone Service
FNC will provide first level technical support ("Help Desk"), able to provide routine
troubleshooting, ticket handling, escalation, and second level problem analysis services, utilizing
a shared help desk model. Hours of operation shall be 24 hours per day, 7 days per week
(including holidays). Access by City's end -users will be via an FNC-provided toll free telephone
number.
➢ The target monthly average speed of answer (ASA) for support calls will be 60
seconds or less.
➢ The target monthly average handle time (AHT) for support calls will be 12
minutes or less.
➢ The target monthly abandon rate will be 6% or less.
A-1
If the Help Desk determines that it is unable to resolve the issue over the phone, or within a
reasonable time frame (assumed to be 8 to 10 minutes), the issue will be passed to second level
support for resolution provided second level support ("NOC Services") has been separately
contracted for and is then in effect. In some cases, issues may be referred to the City's
technicians for resolution through on -site visits to the end -user and other trouble shooting
procedures as may be required at the end -user location.
Software Support
The Help Desk will also perform first level support for Internet Browser software as listed below
and configuration questions in support of the City's service delivery to its end -users.
• Internet Explorer (current version —2)
• Netscape (current version —2)
Hardware Support
The Help Desk will perform Orst level hardware support in support of the City's service delivery
to its end -users. First level hardware support consists of the diagnosis and troubleshooting of
supported routine hardware issues remotely.
If the Help Desk determines that it is unable to resolve the issue over the phone, or within a
reasonable time frame, the issue will be passed to second level support for resolution provided
second level support NOC Services has been separately contracted for and is then in effect. In
some cases, issues may be referred to the City's technicians for resolution through on -site visits
to the end -user and other trouble shooting procedures as may be required at the end -user location.
Network Support
The Help Desk will perform nominal network troubleshooting.
• Trace routes
• Pinging of servers
If the Help Desk determines that it is unable to resolve the issue over the phone, or within a
reasonable time frame, the issue will be passed to second level support for resolution provided
second level support NOC Services have been separately contracted for and are then in effect.
Service Fees and Billing
FNC will: a) upon receipt of City's Purchase Order, invoice for a One -Time Set Up Fee; and b)
submit a monthly invoice, in arrears, for the actual calls processed. The total number of calls
processed will be accumulated over the 12 months and the table below will determine the price
per call during any given billing period. This is to be applied in the follow manor: the first
through the 199`h call will be billed at a rate of $30.00 per call, while the 200`h through the 299`h
call will be billed at $26.00 per call and so on regardless to the month in which these calls occur
within the 12 month period. Toward the end of the year, the 5001' through the 599`h call will be
billed at $14.00 per call.
A-2
Basic Service:
One Time Set Up Fee $ 6,000.00
Monthly Service Fee consisting of:
Monthly Charge is based on the number of calls incurred the billing month with
the total volume of calls accumulated over the 12-months as shown in the
following table:
From
To
Price Per Call
1
199
$30.00
200
299
$26.00
300
399
$22.00
400
499
$18.00
500
599
$14.00
600+
$10.00
FNC Responsibilities
• FNC will maintain records of each call processed and the trouble found, actions taken
and solutions achieved.
• Provide a single point of contact
• Perform root cause analysis at Help Desk
• Provide a monthly reporting to the City
• Perform a quarterly service review at a mutually agreed upon time and place.
City Responsibilities
• Provide a single point of contact
• Provide an escalation process for Help Desk trouble tickets that may be referred back to
the City for final resolution
• Provide a letter of limited agency for the Help Desk to use the City's name and act on the
City's behalf in support of the City's end -users.
End of Statement of Work.
A-3
EXHIBIT
ATTACHMENT B
INSURANCE SCHEDULE
FNC shall provide proof of insurance, including a standard certificate of insurance
specifically naming City of Vernon, its officers, and employees as additional insureds, in
at least the amounts and coverage shown below (with any combination of primary or
excess insurance policies exceeding the largest limit required being permitted). Further,
the Certificate will provide the City of Vernon thirty (30) days notice of cancellation or
material reduction of coverage to levels below the minimum limits stated below.
As long as the entity providing any required on -site services under this agreement is FNC
or an affiliate of FNC covered under the same master insurance policy no additional
certificate of insurance will be required. (Note: All 20 Fujitsu Limited affiliated
companies in the United States are covered under the same insurance policies.) If FNC
desires to subcontract any services under this agreement to a non-affiliated entity it will
first advise the City of Vernon and require any such subcontractor to maintain insurance
coverage equal to or greater than the coverages listed herein and also name the City of
Vernon, its officers, and employees as additional insureds.
I. Coverage and Limits
Bodily Property Damage
Hazards Each Person Each Accident Each Accident
Automobile Liability
Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Hired Automobiles $ 500,000 $1,000,000 $ 500,000
Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Workers' Compensation $ Statutory
Employers' Liability $1,000,000 per employer
II. Liability
General Liability
Premises Operations
Products - Completed Operations
Contractual Liability
Umbrella Liability
L:
$1,000,000
$2,000,000
$1,000,000
$1,000,000
$2,000,000
$1,000,000
$1,000,000
$2,000,000
$1,000,000
$1,000,000
$2,000,000
$1,000,000
$2,000,000
$2,000,000
$2,000,000
SUPPORTING
DOCUMENTS
s
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement") is made, entered into and executed
in duplicate originals, either copy of which may be considered and used as the original hereof for
all purposes, as of the 5th day of January, 2005, in the City of Vernon, County of Los Angeles,
State of California,
BY AND BETWEEN THE CITY OF VERNON
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058
AND Fujitsu Network Communications, Inc.
(hereinafter referred to as "FNC")
2801 Telecom Parkway,
Richardson, Texas 75082
RECITALS
WHEREAS, City desires to engage FNC to provide certain services as more fully
described herein ("Services") with respect to City's telecommunications system; and
WHEREAS, FNC represents that it is qualified and capable of providing the Services
described in "Attachment A" attached hereto and is willing to provide such Services in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained the parties hereto hereby agree as follows.
1. Service Description.
1.1 FNC shall provide the City with first level Help Desk Support ("Help Desk") for
telephone assistance 24 hours per day, 7 days per week including holidays and weekends, 365
days a year, for the City's network and internet service delivery to its end -users on the installed
network as set forth in the statement of work ("Statement of Work") attached hereto and
incorporated by reference as "Attachment A". The City shall submit a purchase order to FNC
authorizing purchase of said Services. If, from time to time, City desires to have FNC perform
additional Services relative to the products in the City's telecommunications system such as
engineering, installation, removal, or maintenance the City may submit an amendment to this
Agreement containing a new Statement of Work fully describing the requested Service(s) to
FNC. FNC will acknowledge receipt of a new Statement of Work within fifteen (15) days after
receipt of such Statement of Work, and FNC will negotiate in good faith the terms of such
Statement of Work. The Statement of Work will be subject to this Agreement unless
specifically agreed to by the parties in writing. The foregoing notwithstanding, in the event of
any conflict between the terms of any Statement of Work and the terms of this Agreement, the
terms of the definitive Statement of Work shall control. FNC shall furnish the necessary labor,
tools and work equipment required for the performance of the Services, as provided in the
Statement of Work. Any changes to the Statement of Work must be agreed to by the parties in
writing via an amendment to this Agreement and any such changes may result in a change in the
compensation due to FNC, or the project schedule, or both. The parties agree to negotiate in
good faith any such changes.
1.2 City shall appoint an authorized representative to serve as the project manager
for each project undertaken pursuant to this Agreement as set forth on "Attachment A" (the
"Project Manager"). The Project Manager will inspect and accept the Services performed by
FNC.
2. Term and Termination.
This Agreement shall be effective as of the date first written above and thereafter on a
month -to -month basis until terminated by either party by giving no less than ninety (90) days'
prior written notice to the other party; provided, that no outstanding Statement of Work or
Service Description remains to be performed. Notwithstanding this Section 2, in the event either
party is in material default of any of the terms and conditions of this Agreement, this Agreement
shall be immediately terminable at the option of the non -breaching party; provided, the non -
breaching party gives the breaching party written notice of such material default and allows the
breaching party thirty (30) days from receipt of such notice to remedy such material default.
3. Payment.
As consideration for FNC's performing the Services and furnishing all tools and
equipment required to perform the Services, City shall pay FNC as provided in "Attachment A"
attached hereto and incorporated herein by reference and payment shall be due thirty (30) days
after receipt of the INC invoice. INC shall be allowed to incrementally invoice the City for
Services as defined in "Attachment A".
In the event of the termination of this Agreement, or any Statement of Work for any
reason, City agrees to pay all fees and expenses incurred up to the effective date of such
termination.
4. Easements and Permits.
4.1 City at its own expense shall provide all necessary easements, occupancy and
land related permits for performance of the Services. Any other permits required for
performance of the Services shall be obtained by FNC including, without limitation, all
municipal or state licenses or permits required for telecommunications equipment installation.
4.2 City shall furnish FNC with a list of restrictions, whether regular or special,
contained in the aforesaid easements and permits. If such restrictions cause INC to incur
additional costs in performing the Services, such costs will be paid by City.
5. Insurance.
FNC agrees to provide insurance in the amounts and forms specified in "Attachment B",
which is attached hereto and made a part of hereof by reference. FNC shall submit to the City
documentation indicating compliance with these minimum requirements no less than one (1) day
prior to the beginning of performance under this Agreement. FNC shall not commence
performance of its work under this Agreement until the above insurance has been obtained and
proof of insurance has been filed with and approved by the City.
6. Taxes.
City is liable to pay all taxes or assessments arising from or relating to services
performed or items furnished by FNC except those based on the income of FNC.
7. Independent Contractor.
In the performance of the Services, FNC shall at all times be an independent contractor
and the relation of the parties to this Agreement shall in no event be construed as constituting any
other relationship.
8. Service Materials.
Service materials (including diagnostic software, hardware and software tools, and
associated documentation) provided by FNC or its subcontractors for use in the performance of
Services remain the exclusive property of FNC or its subcontractors. City may use such service
materials only for activities related to, and only during the term of, such Services, and may not
modify, remove, or transfer the service materials or make the materials, or any resultant
diagnostic or system management data, available to any other parties without FNC's prior written
consent. Upon completion of the Services, City will, at FNC's option, destroy or return all
service materials in its possession. Parts replaced by FNC or its subcontractors become the
property of FNC or its subcontractors.
9. Software Licensing.
Software is subject to the terms of the original license for such Software or, if there is no
original license, the Software will be subject to FNC's or, as applicable, the third party software
manufacturer's standard software licensing terms.
10. Intellectual Property Defense.
10.1 Any intellectual property indemnification arising under this Agreement will be
provided by FNC, and FNC shall have no intellectual property indemnification obligations
under this Agreement, since FNC is only providing Services under this Agreement. FNC will
defend at its own expense any action brought against City to the extent that it is based on a
claim that the Products made by or for FNC, in the form delivered to City, constitute a direct
infringement of any United States patent, or federal or state trademark or copyright duly
registered as of the date of this Agreement. FNC will indemnify and hold harmless City against
damages incurred by, and pay those damages finally awarded against, City in any such action
which is attributable to such claim, subject to the terms and conditions of this Section 10.
10.2 City will immediately notify FNC in writing of any claim of infringement.
10.3 INC will have sole control of the defense of any action on such claim and all
negotiations for its settlement or compromise and City agrees, at FNC's expense and option, to
conduct such defense and negotiations.
10.4 Neither City nor FNC will be liable for any costs or expenses incurred under this
Section 10 without its prior written authorization.
10.5 City will provide complete authority, information, and assistance to FNC and its
counsel for the defense of such claim.
10.6 In the event that any FNC Product is held to constitute an infringement, or its use
is enjoined or in FNC's opinion such results are likely to occur, INC may, at its own expense
and option, either (i) procure for City the right to continue using such Product, (ii) replace such
Product with a non -infringing Product, or (iii) modify such Product so that it is non -infringing. If
in FNC's sole judgment none of the foregoing alternatives are reasonably available, City will
return the infringing or potentially infringing Product to FNC at its request, and FNC will grant
City a credit for the Product and /or Services based on the original price of the Product and/or
Services to City, as adjusted for reasonable depreciation.
10.7 FNC will not be liable to City hereunder for a patent infringement or claim
thereof where the FNC Products in question are used in combination with equipment not
furnished by FNC or in a manner for which they were not designed by FNC, or modifications
were made to the FNC Products after delivery to City or the infringement is related to FNC's
compliance with City's specifications or request. FNC will not be liable to City hereunder if a
trademark infringement or any claim thereof is based upon any branding or marking not applied
by FNC or which is applied at the request of City.
10.8 THE FOREGOING STATES THE ENTIRE LIABILITY OF FNC WITH
RESPECT TO INFRINGEMENT OF PATENTS, TRADEMARKS, COPYRIGHTS AND
OTHER INTELLECTUAL PROPERTY RIGHTS BY ANY PRODUCT DELIVERED
UNDER THIS AGREEMENT.
11. Delays in Performance.
Neither party shall hold the other responsible for damages or delays in performance
caused by force majeure, acts of God or other events beyond the control of the other party which
could not have been reasonably foreseen or prevented. Such acts or events shall include, but
shall not be limited to, unusually severe weather conditions, floods, epidemics, war, riots, strikes,
lockouts or other industrial disturbances, or the unavailability of utility or transportation services.
Should any such act or event occur, the party affected by such event shall notify the other of such
event and its expected duration as well as its expected impact on completion of the Services.
Both parties shall use their best efforts to overcome any such difficulties and to resume
performance of the Services as soon as possible. However, either party reserves the right to
automatically terminate this Agreement if the expected impact on completion or the expected
duration of delay exceeds thirty (30) days.
Notwithstanding the above, after an order is issued, if City places the performance of that
order on hold, or otherwise directs the delay of performance by FNC against the previously
4
agreed schedule of that order, FNC shall have the right to invoice for elements of the order that
have been completed plus any major material commitments by FNC in support of the City's
order. Upon directive by City to re -start the order, FNC shall have the right to submit a claim for
additional cost, schedule, or both as a result of the delay.
12. Warranty and Remedy.
12.1 FNC warrants that Services will conform to the Statement of Work agreed to by
the parties.
12.2 As City's sole and exclusive warranty remedy, FNC will remedy any non-
conforming Services provided to City under this Agreement; provided, City notifies INC within
ninety (90) days after the completion of such non -conforming Services.
12.3 If in FNC's opinion FNC is unable to otherwise remedy the non -conforming
Services, FNC may refund the purchase price of the Services paid by City under the Statement of
Work.
12.4 THE ABOVE WARRANTY IS FNC SOLE AND EXCLUSIVE
WARRANTY FOR THE SERVICES PERFORMED HEREUNDER, AND IS IN LIEU OF
ANY AND ALL UNDERSTANDINGS, AGREEMENTS, REPRESENTATIONS AND NO
OTHER WARRANTY, EXPRESS OR IMPLIED, WILL APPLY. INC SPECIFICALLY
EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
13. Limitation of Liability.
13.1 FNC WILL BE LIABLE TO CITY FOR DIRECT DAMAGES UP TO THE
LESSER OF ONE MILLION DOLLARS ($1,000,000) OR THE SERVICE FEES PAID TO
FNC FOR THE SERVICES, WHICH ARE THE SUBJECT OF THE CLAIM.
13.2 IN NO EVENT WILL INC BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING
FROM LOSS OF DATA, USE OR PROFITS.
13.3 THESE LIMITATIONS WILL APPLY TO ANY FORM OF ACTION,
WHETHER ARISING UNDER CONTRACT, STATUTE, TORT, OR OTHERWISE.
13.4 Any action against FNC must be brought within eighteen (18) months after the
cause of action arises. For purposes of this Section 13, "FNC" includes its employees,
subcontractors and suppliers.
14. Title to Work Product.
Unless otherwise stated in a Statement of Work, all right, title, and interest in
specifications, descriptions, documents, maps, photographs, drawings, permit drawings, reports,
notes, notebooks, procedures, samples and alignments owned by, provided by, or resulting from
FNC's performance of the Services hereunder shall remain with FNC. No license to the
foregoing is granted under this Agreement.
15. Confidentiality.
15.1 In the performance of its obligations under this Agreement, each party may
acquire valuable trade secrets and/or confidential and proprietary information of the other party
or its Affiliates. In consideration of the foregoing, it is hereby agreed that:
a) Confidential Information means information that relates to the purpose set forth above
or that, although not related to such purpose, is nevertheless disclosed as a result of the parties'
discussions in that regard, and that should reasonably have been understood by the receiving
party, because of legends or other markings, the circumstances of disclosure or the nature of the
information itself, to be proprietary and confidential to the disclosing party, an Affiliate of the
disclosing party or to a third party. Confidential Information may be disclosed in written or other
tangible form (including on magnetic media) or by oral, visual or other means. The term
"Affiliate" means any person or entity directly or indirectly controlling, controlled by, or under
common control with a party.
b) Each party agrees not to use the Confidential Information for any purpose whatsoever
except for the purpose set forth above. Each party agrees not to disclose the Confidential
Information to any third person or to its employees or those of its Affiliates except those
employees or Affiliates who have a legitimate need to know and who agree to keep such
information confidential. Each party agrees that it shall protect the confidentiality of, and take
reasonable steps to prevent disclosure or unauthorized use of, the Confidential Information in
order to prevent it from falling into the public domain or the possession of persons not legally
bound to maintain its confidentiality, provided that in no event shall such party's obligations
exceed the standard of care taken to protect its own confidential information of like importance.
Each party will promptly advise the other party in writing of any misappropriation or misuse by
any person of such Confidential Information and provide assistance to the injured party in any
lawsuit related thereto. Each party acknowledges that its obligations hereunder survive in
accordance with the terms hereof, notwithstanding the termination of the business relationship of
the parties, for a period of five (5) years following the last disclosure of Confidential Information
by the other party hereunder.
c) No copies of any Confidential Information may be made except to implement the
purpose of this Agreement. Any materials, documents, notes, memoranda, drawings, sketches
and other tangible items containing, consisting of or relating to the Confidential Information of a
party which are furnished to the other party in connection with this Agreement, or are in the
possession of the other party, and all copies thereof, remain the property of the party to which the
Confidential Information is proprietary and shall be promptly returned to the party supplying the
same upon a parry's request therefor. Nothing contained in this Agreement shall be construed as
granting any rights, by license or otherwise, in any Confidential Information except as specified
in this Agreement.
d) Each party's obligations under this Agreement shall not apply to information which:
(i) is, and can be shown by dated documentation to be, known by that party or is publicly
available at the time of disclosure by the disclosing party to the receiving party; (ii) becomes
publicly available after disclosure by the disclosing party to the receiving party through no act of
the receiving party; (iv) is hereafter rightfully furnished to the receiving party by a third party
without restriction as to use or disclosure; (v) is disclosed with the prior written consent of the
disclosing party; (vi) is, and can be shown by dated documentation to be, information that was
independently developed by the receiving party; or (vii) is required to be disclosed pursuant to
any judicial or administrative proceeding, provided that the receiving party immediately after
receiving notice of such action notifies the disclosing party of such action to give the disclosing
party the opportunity to seek any other legal remedies to maintain such information in
confidence.
e) Both parties agree that the fact that the business relationship exists is confidential and
shall be treated as such during the term of this Agreement. Neither party may use the other
party's name in any type of media, advertising, promotions, representations to its customers, etc.
without the prior written consent of that party. Nothing in this Agreement shall grant to either
party hereto the right to make commitments of any kind for or on behalf of the other party
without the prior written consent of that party.
f) Nothing in this Agreement shall obligate either party to disclose any information to
the other party or enter into any other agreement with the other party. Each party acknowledges
that if the other party is required to bring an action to enforce the provisions of this Article 15,
the damages may be irreparable and difficult to measure and that the other party shall be entitled
to seek equitable relief including a preliminary injunction in addition to any other relief
available. Each party agrees that in the event that the party that disclosed Confidential
Information seeks an injunction hereunder, the party that received the Confidential Information
hereby waives any requirement for the posting of a bond or any other security. Should litigation
arise concerning this Agreement, the prevailing party shall be entitled to its attorneys' fees and
court costs in addition to any other relief, which may be awarded.
g) Each party warrants that it has the right to disclose the Confidential Information
provided by it, but disclaims all other warranties regarding the Confidential Information, except
as provided in Article 10.
16. Compliance with Laws.
Each party hereby assures the other that it: (i)shall comply in all respects with the United
States Export Administration Act (EAA), as amended, and its regulations, and the United States
Arms Export Control Act (AECA), as amended, and its regulations, which provide generally that
no commodities or technical data, including any hardware, software, or other technical data (or
direct products thereof) provided under this Agreement, shall be disclosed, exported or re-
exported, directly or indirectly, without first obtaining all prior approvals from the U.S.
Department of Commerce as required by the EAA and its regulations, or the U.S. Department of
State as required by the AECA and its regulations (ii) shall comply in all respects with the United
States Foreign Assets Control Regulations, as amended, which provide generally that companies
under the jurisdiction of the United States may not engage in any dealings or transactions,
directly or indirectly, with foreign countries designated from time to time by the U.S.
government as embargoed by the United States, or foreign nationals and companies identified by
the United States as representing the interests of such embargoed countries.
17. Assignments and Subcontractors.
This Agreement shall not be assigned by either party without the express written consent
of the other party. Notwithstanding the foregoing, FNC may subcontract any of the Services
hereunder and any subcontracting of such Services shall not relieve FNC of its obligations under
this Agreement.
18. General Terms and Conditions.
18.1 Cumulative Rights. Except as set forth to the contrary herein, any right or
remedy of a party shall be cumulative and without prejudice to any other right or remedy,
whether contained herein or not.
18.2 Notices. All notices and communications under this Agreement shall be deemed
to have been duly given only if and on the date when hand delivered, sent by confirmed telex or
facsimile, or sent by certified mail, postage prepaid, to the following:
City: City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
Attn: Ali Nour
Phone: 323-583-8811
Facsimile: 323-826-1425
FNC: Fujitsu Network Communications, Inc.
2801 Telecom Parkway
Richardson, TX 75082
Attn: Legal Department
Phone: (972) 690-6000
Facsimile: (972) 479-2992
Either party may change its address for purposes of this Section 18.2 by giving the other party
written notice of the new address.
18.3 Counterparts. Any counterpart of this Agreement held by a party shall be
deemed the original and conclusive in case of variance between it and any other signed copy.
18.4 Governing Law and Forum Selection. All questions relating to this Agreement,
including contractual capacity, validity, performance, interpretation or remedies for breach, shall
be governed by California law, except that California choice of law rules shall not apply. Any
action brought relating to this Agreement must be brought and held exclusively in a court in or
serving the County of Los Angeles, CA.
18.5 Headings. All headings are for index and reference purposes only.
18.6 Compliance with Laws. Each party shall observe and abide by all applicable
laws, regulations, ordinances and rules of the Federal and State Governments, and political
subdivisions thereof, and any other duly constituted public authority wherein Services are being
performed.
18.7 Strict Performance. A parry's right to require strict performance of the other
party's obligations hereunder shall not be affected in any way by any previous wavier,
forbearance or course of dealing.
18.8 Entire Agreement. This Agreement and any exhibits and attachments hereto
comprise the entire agreement between City and FNC, and there are no agreements,
8
understandings, conditions, warranties or representations, oral or written, express or implied, that
are not merged herein or superseded hereby. In the event of a conflict between this Agreement
and a purchase order, this Agreement shall control.
18.9 Amendment. Any amendment to this Agreement shall be valid only if made in
writing and signed by the parties.
18.10 Severabilily. In the event that any of the provisions, or portions or applications
thereof, of this Agreement are held to be unenforceable or invalid by any court of competent
jurisdiction, City and FNC shall negotiate an equitable adjustment in the provisions of this
Agreement with a view toward effecting the purpose of this Agreement, and the validity and
enforceability of the remaining provisions, or portions or applications thereof, shall not be
affected thereby.
18.11 Nonsolicitation. City agrees that it shall not (a) employ, (b) attempt to employ
by offer or otherwise, (c) contract with or (d) influence or seek to influence the departure from
FNC's employ of, any Service personnel of FNC either directly, indirectly or in concert with
others (each being an "Event of Solicitation") until one (1) year after the earlier of (i) the
termination of employment with FNC of any such Service personnel and (ii) the termination of
this Agreement. Inasmuch as it is impossible to fix the damages that may be sustained by FNC
by reason of a breach of this provision by City, it is understood and agreed that City shall pay to
FNC, as liquidated damages and not as a penalty, an amount equal to fifty percent (50%) of the
base annual salary of the affected FNC personnel for each Event of Solicitation made in violation
of this provision. Such amount shall be due and payable by City within ten (10) days of receipt
of written demand from FNC. FNC shall also have recourse to injunctive relief in addition to the
foregoing liquidated damage provision.
18.12 General Indemnification. To the extent caused solely by FNC's negligent or
wrongful acts FNC shall, to the fullest extent under law, indemnify, defend and hold City its
elected officials, and employees (each an "Indemnitee") harmless from any claims, losses,
liabilities, costs, expenses, or damages (collectively "Claim"), including reasonable attorneys'
fees, arising directly from the death of or injury to any individual or damage to or loss of
personal or real property of Indemnitee. This obligation is in addition to FNC's duty to provide
insurance and shall not be limited by any limitation of the amount or type of insurance. City
shall notify FNC in writing of any Claim as soon as practicable and shall provide reasonable
cooperation in the defense and settlement of such Claim at FNC's expense. FNC shall be
entitled to control the handling of any such Claim and to defend or settle any such Claim, in its
sole discretion, with counsel of its own choosing, provided, however, that INC shall not agree to
any disposition of a Claim that admits liability or imposes duties of performance or payment on
City without City's prior written consent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
Fujitsu Network Communications, Inc
By:
.
Printed
Name:
Title:
�v
LM
Printed
Title: U L9
City of Vernon
By:
Printed
Name: Leonis C. Malburg
Title: Mayor
ATTEST:
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM
r_ -17-K' -
Eric T. Fresc , City Attorney
10
EXHIBIT
o,t
ATTACHMENT A
Statement of Work
City of Vernon, CA
Executive Summary
Service Agreement
City of Vernon
Fujitsu Network Communications, Inc. ("FNC") will provide City of Vernon ("City") with first
level Help Desk Support ("Help Desk") for telephone assistance 24 hours per day, 7 days per
week including holidays for the City's network and internet service delivery to its end -users on
the installed network ("Network").
Term
Services will be in effect following the receipt of City's Purchase Order and completion of the
Network installation. The Initial Term will continue for 12 months thereafter. Following
completion of the Initial Term, the Services may continue in effect if City provides ninety days
prior written notice of its intention to continue this Service for an additional 12-month period.
Following the Initial Term, City may continue the Service for prices subject to mutual agreement
based on the volume of calls anticipated.
If at any time following the Initial Term, or any annual extension thereafter, City desires to
terminate the Services, City will give written notice 30 days in advance to FNC and the Services
will be so terminated. FNC will make no rebate of all or any portion of any prepayment related
to the terminated Services.
The Help Desk will use trouble shooting techniques typical to the industry and exercise
reasonable caution in counseling and consulting with the end -users, but at no time should it be
held responsible for lost files, data, software, configurations, time or productivity that may result
from any attempts to support the City's service delivery to its end -users.
Description of Services
Telephone Service
FNC will provide first level technical support ("Help Desk"), able to provide routine
troubleshooting, ticket handling, escalation, and second level problem analysis services, utilizing
a shared help desk model. Hours of operation shall be 24 hours per day, 7 days per week
(including holidays). Access by City's end -users will be via an FNC-provided toll free telephone
number.
➢ The target monthly average speed of answer (ASA) for support calls will be 60
seconds or less.
➢ The target monthly average handle time (AHT) for support calls will . be 12
minutes or less.
➢ The target monthly abandon rate will be 6% or less.
A-1
If the Help Desk determines that it is unable to resolve the issue over the phone, or within a
reasonable time frame (assumed to be 8 to 10 minutes), the issue will be passed to second level
support for resolution provided second level support ("NOC Services") has been separately
contracted for and is then in effect. In some cases, issues may be referred to the City's
technicians for resolution through on -site visits to the end -user and other trouble shooting
procedures as may be required at the end -user location.
Software Support
The Help Desk will also perform first level support for Internet Browser software as listed below
and configuration questions in support of the City's service delivery to its end -users.
• Internet Explorer (current version —2)
• Netscape (current version —2)
Hardware Sunnort
The Help Desk will perform first level hardware support in support of the City's service delivery
to its end -users. First level hardware support consists of the diagnosis and troubleshooting of
supported routine hardware issues remotely.
If the Help Desk determines that it is unable to resolve the issue over the phone, or within a
reasonable time frame, the issue will be passed to second level support for resolution provided
second level support NOC Services has been separately contracted for and is then in effect. In
some cases, issues may be referred to the City's technicians for resolution through on -site visits
to the end -user and other trouble shooting procedures as may be required at the end -user location.
Network Support
The Help Desk will perform nominal network troubleshooting.
• Trace routes
• Pinging of servers
If the Help Desk determines that it is unable to resolve the issue over the phone, or within a
reasonable time frame, the issue will be passed to. second level support for resolution provided
second level support NOC Services have been separately contracted for and are then in effect.
Service Fees and Billing
FNC will: a) upon receipt of City's Purchase Order, invoice for a One -Time Set Up Fee; and b)
submit a monthly invoice, in arrears, for the actual calls processed. The total number of calls
processed will be accumulated over the 12 months and the table below will determine the price
per call during any given billing period. This is to be applied in the follow manor: the first
through the 199`'' call will be billed at a rate of $30.00 per call, while the 200"' through the 299"'
call will be billed at $26.00 per call and so on regardless to the month in which these calls occur
within the 12 month period. Toward the end of the year, the 50011 through the 599"' call will be
billed at $14.00 per call.
A-2
Basic Service:
One Time Set Up Fee $ 6,000.00
Monthly Service Fee consisting of:
Monthly Charge is based on the number of calls incurred the billing month with
the total volume of calls accumulated over the 12-months as shown in the
following table:
From
To
Price Per Call
1
199
$30.00
200
299
$26.00
300
399
$22.00
400
499
$18.00
500
599
$14.00
600+
$10.00
FNC Responsibilities
• FNC will maintain records of each call processed and the trouble found, actions taken
and solutions achieved.
• Provide a single point of contact
• Perform root cause analysis at Help Desk
• Provide a monthly reporting to the City
• Perform a quarterly service review at a mutually agreed upon time and place.
City Responsibilities
• Provide a single point of contact
• Provide an escalation process for Help Desk trouble tickets that may be referred back to
the City for final resolution
• Provide a letter of limited agency for the Help Desk to use the City's name and act on the
City's behalf in support of the City's end -users.
End of Statement of Work.
A-3
EXHIBIT
ATTACHMENT B
INSURANCE SCHEDULE
FNC shall provide proof of insurance, including a standard certificate of insurance
specifically naming City of Vernon, its officers, and employees as additional insureds, in
at least the amounts and coverage shown below (with any combination of primary or
excess insurance policies exceeding the largest limit required being permitted). Further,
the Certificate will provide the City of Vernon thirty (30) days notice of cancellation or
material reduction of coverage to levels below the minimum limits stated below.
As long as the entity providing any required on -site services under this agreement is FNC
or an affiliate of FNC covered under the same master insurance policy no additional
certificate of insurance will be required. (Note: All 20 Fujitsu Limited affiliated
companies in the United States are covered under the same insurance policies.) If FNC
desires to subcontract any services under this agreement to a non-affiliated entity it will
first advise the City of Vernon and require any such subcontractor to maintain insurance
coverage equal to or greater than the coverages listed herein and also name the City of
Vernon, its officers, and employees as additional insureds.
I. Coverage and Limits
Bodily Iniury Property Damage
Hazards Each Person Each Accident Each Accident
Automobile Liability
Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Hired Automobiles $ 500,000 $1,000,000 $ 500,000
Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Workers' Compensation $ Statutory
Employers' Liability $1,000,000 per employer
R. Liability
General Liability
Premises Operations
Products - Completed Operations
Contractual Liability
Umbrella Liability
$1,000,000
$2,000,000
$1,000,000
$1,000,000
$2,000,000
$1,000,000
$1,000,000
$2,000,000
$1,000,000
$1,000,000
$2,000,000
$1,000,000
$2,000,000
$2,000,000
$2,000,000