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HomeMy WebLinkAbout09 - CC-9 - Citys Phone System Wholesome Service Agr - 4/5/2016CITY COUNCIL AGENDA REPORT MEETING DATE: APRIL 5, 2016 ITEM NUMBER: CC -9 SUBJECT: CITY'S PHONE SYSTEM WHOLESALE SERVICE AGREEMENT DATE: MARCH 23, 2016 FROM: POLICE DEPARTMENT - SUPPORT SERVICES DIVISION PRESENTATION BY: BRYAN GLASS, CAPTAIN FOR FURTHER INFORMATION CONTACT: CPT. BRYAN GLASS - 714.754.5603 RECOMMENDATION: Approve and authorize the Chief Executive Officer to execute the Avaya wholesale service agreement and wholesale service renewal options for a three year contract with Carousel Industries for the maintenance and support of the City's Avaya phone system, in an amount not to exceed $49,177.50 annually with a one-time re-initiation fee of $19,809.36, with the option to renew for two additional one year terms, upon mutual agreement of both parties. BACKGROUND: In February 2012, the City Council approved an upgrade to the City's Avaya phone system and acquired an Avaya wholesale service agreement with Merrill & Associates. The service agreement with Merrill & Associates expired on August 31, 2015, and currently the City does not have technical and maintenance support for the City's Avaya phone system. Additionally, the City is unable to acquire new licenses to expand upon the phone system until a new service agreement is established. ANALYSIS: On September 9, 2015, a Request for Quote (RFQ) was issued to four potential bidders who are authorized Avaya resellers. The submission deadline for the RFQ was October 2, 2015 at 10:00 a.m. Purchasing issued Amendment No. 1 to provide the City of Costa Mesa account numbers to the potential bidders to allow access to the Avaya Sold To Records information and to adjust the optional contract terms. One bid was received from Carousel Industries on October 1, 2015. The bid is to provide the services outlined in the RFQ for an amount not to exceed $49,177.50 annually with a one-time re-initiation fee of $19,809.36. ALTERNATIVES CONSIDERED: No alternatives are being considered as there is an immediate need to implement a service agreement for the City's Avaya phone system. This will allow the City to both ensure system issues are addressed immediately as they occur and the City has the ability to expand upon the system as needed. FISCAL REVIEW: Funding for this agreement is included in the fiscal year 2015-16 budget as follows: 520400-101 Telephone/Radio/Communications = $115,388. LEGAL REVIEW: The City Attorney's Office has reviewed the wholesale service agreement with Carousel Industries and approved it true to form. Public Contract Code, Section 22175 et seq., does not apply to this agreement because the contract value is below the threshold set forth in Public Contract Code, Section 22178(a). Additionally, the agreement does not fall within the contract areas specified in Public Contract Code, Section 22178(a). CONCLUSION: It is recommended that the City Council authorize the Chief Executive Officer to execute the wholesale service agreement and wholesale service renewal options with Carousel Industries for the City's Avaya phone system maintenance. BRYAN GLASS Captain STEPHEN DUNIVENT Interim Finance Director ROBERT N. SHARPNACK Chief of Police ATTACHMENTS: 1. Avaya Wholesale Service Agreement 2. Certificate of Liability Insurance ATTACHMENT 1 ICarousel C� AVAYA WHOLESALE SERVICE AGREEMENT Equipment Location Address: Page 1 of 10 Customer Name: City of Costa Mesa Street Address: Multisite —See Below City, State, Zip: Active MSSA on file? I No SLX Opportunity #: 1 217217 Contract Start Date: Customer Contact: I Stephanie Urueta Telephone No: (714) 754-5305 Email: Stephanie.urueta@cos Install Date: Created Date: 3/29/2016 Created By: Matthew DiCristofaro AE: Jill DelCid Customer requests services for the following products and locations as described in EXHIBIT A. Provided there is no Master Sales Agreement ("MSA") in effect between the parties, this service agreement shall be subject to the terms and conditions on this agreement. If there is a MSA in effect between the parties, this service agreement shall be subject to the terms and conditions of that MSA. EXHIBIT A — 240 Avaya Full Coverage Wholesale Support — Avaya to provide all services Pricing below expires 4/30/2016 City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.166 Page 1 ICarousel AVAYA WHOLESALE SERVICE AGREEMENT 1663174 —1975 Balearic Drive, Costa Mesa, CA 92626 Material Codes Qt Product Descriptions Term months Coverage Payment Type: Prepaid Annual Total 700476393 1 G430 MEDIA GATEWAY NON -GSA 36 84 Full Coverage 7X24 A 700463532 1 S8300D SERVER - NON GSA 36 84 Full Coverage 7X24 A 230164 1 1 SA ON-SITE 24X7 CM SM GTWY 3YAN 36 SA Suppt Adv A 230044 1 SA ON-SITE 24X7 CM SM SRV 3YAN 36 SA Suppt Adv A 700394950 4 G650 MEDIA GATEWAY RHS 36 84 Total A $ 1,206.45 3055894 — 79 Fair Drive, Costa Mesa, CA 92626 Material Codes Qty Product Descriptions Term months Coverage Payment Type: Prepaid Annual Total 224271 1 IPS12 CP TN2312BP - NON GSA 36 84 Full Coverage 7X24 A 224272 4 1 C -LAN INTF CP TN799DP - NON GSA 36 84 Full Coverage 7X24 A 224274 1 IP320 MEDIA RESOURC TN2602AP NON GSA 36 84 Full Coverage 7X24 A 263764 1 DL360G7 SERVER CM S/D/MBT/SBC 36 84 Full Coverage 7X24 A 700394950 4 G650 MEDIA GATEWAY RHS 36 84 Full Coverage 7X24 A 263764 1 DL360G7 SERVER CM S/D/MBT/SBC 36 84 Full Coverage 7X24 A 102909 1 DIGITAL LINE CIRCUIT CARD TN754C 36 84 Full Coverage 7X24 A 102919 24 CP ANALOG LINE 16PT TN746B 36 84 Full Coverage 7X24 A 102982 2 EMERGENCY TRANSFER PANEL FOR 75 G1 G2 G3 36 84 Full Coverage 7X24 A 151420 1 CP INTF DS1 TN464GP 36 84 Full Coverage 7X24 A 105167266 4 1 CP TN747B CNTRL OFC TRNK INTF 36 84 1 Full Coverage 7X24 A 106405616 2 CP TN763D AUX TRUNK INTF 36 84 Full Coverage 7X24 A 107214702 6 CP DS1 INTF TN464F 36 84 Full Coverage 7X24 A 107784001 1 CP CALL CLASS TN744D 36 84 Full Coverage 7X24 A 107985616 4 CP TN753B DID INTF TRNK 8PT 36 84 Full Coverage 7X24 A 108276148 10 CP TN2224B DGTL LN 24PT 36 84 Full Coverage 7X24 A 601817422 6 FLASH CARD 4MB 36 84 Full Coverage 7X24 A 700059645 1 CP TN744E CALL CLASS DET 36 84 Full Coverage 7X24 A 264181 1 R610 SRVR AA MSG STD STRG 36 84 Full Coverage 7X24 A 405891698 1 PAGING UPAM KIT 36 84 Full Coverage 7X24 A 238923 2195 SA PREF AURATM R6 SE 101-1000 N1 3YAN 36 SA Suppt Adv A 240088 62 SA PREF AURA R6 SE SURV REM 3YAN 36 SA Suppt Adv A 238504 550 SA PREF AURA MSG 6 MAINSTREAM 3YAN 36 SA Suppt Adv A 238510 550 UA AVAYA AURATM MSG R6 MAINSTREAM 3YAN 36 SA Suppt Adv A 253607 1 SA PREF SAL R1.5 STDALN GTWY DWNLD TRK 36 SA Suppt Adv A City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.16r3 Page 2 "E;>C rousel I N D U S T R I E S^ AVAYA WHOLESALE SERVICE AGREEMENT 253609 1 SA PREF SAL R1.5 POLICY SRVR DWNLD TRK 36 SA Suppt Adv A 700476393 230224 4 SA ON-SITE 24X7 CM LG GTWY 3YAN 36 SA Suppt Adv A 230164 230074 1 SA ON-SITE 24X7 CM MED SRV 3YAN 36 SA Suppt Adv A 407633999 256171 1 SA ON-SITE 24X7 MSG SRV R2D 3YAN 36 SA Suppt Adv A 230164 1 SA ON-SITE 24X7 CM SM GTWY 3YAN 36 SA Re-initiation Fee Subtotal 360.00 $ 43,054.65 Total Re-initiation Fee $ 1,035.60 17,228.16 Re-initiation Fee Total 498.24 $ 60,282.81 3055908 — 2803 Royal Palm Drive, Costa Mesa, CA 92626 Material Codes Qty Product Descriptions Term months Coverage Payment Type: Prepaid Annual Total 700476393 1 G430 MEDIA GATEWAY NON -GSA 36 84 Full Coverage 7X24 A 230164 1 SA ON-SITE 24X7 CM SM GTWY 3YAN 36 SA Suppt Adv A 407633999 1 SPORTSTER MDM 33.6 KBPS EXTL 36 84 Subtotal A $ 675.60 230164 1 SA ON-SITE 24X7 CM SM GTWY 3YAN 36 SA Re-initiation Fee A 360.00 Total $ 1,035.60 3055964 — 800 Baker Street, Costa Mesa, CA 92626 Material Codes Qty Product Descriptions Term months Coverage Payment Type: Prepaid Annual Total 112529 1 CUST SOL MDM PKG SNGL MODE FBR 36 84 Full Coverage 7X24 A 700476393 1 G430 MEDIA GATEWAY NON -GSA 36 84 Full Coverage 7X24 A 407633999 1 SPORTSTER MDM 33.6 KBPS EXTL 36 84 Full Coverage 7X24 A 230164 1 SA ON-SITE 24X7 CM SM GTWY 3YAN 36 SA Suppt Adv A Subtotal $ 1,007.55 Re-initiation Fee 498.24 Total $ 1,633.23 City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.166 Page 3 ICarousel AVAYA WHOLESALE SERVICE AGREEMENT 3056062 —1845 Park Avenue, Costa Mesa, CA 92627 Material Codes Qt Product Descriptions Term months Coverage Payment Type: Prepaid Annual Total 700476393 1 G430 MEDIA GATEWAY NON -GSA 36 84 1 Full Coverage 7X24 A 230164 1 SA ON-SITE 24X7 CM SM GTWY 3YAN 36 SA Suppt Adv A Subtotal $ 675.60 Re-initiation Fee 360.00 Total $ 1,035.60 3056069 — 2300 Placentia Avenue, Costa Mesa, CA 92627 Material Codes Qty Product Descriptions Term months Coverage Payment Type: Prepaid Annual Total 700476393 1 G430 MEDIA GATEWAY NON -GSA 36 84 1 Full Coverage 7X24 A 230164 1 SA ON-SITE 24X7 CM SM GTWY 3YAN 36 SA Suppt Adv A Subtotal $ 675.60 Re-initiation Fee 360.00 Total $ 1,035.60 3056076 — 3350 Sakioka Drive, Costa Mesa, CA 92626 Material Codes Qty Product Descriptions Term months Coverage Payment Type: Prepaid Annual Total 700476393 1 G430 MEDIA GATEWAY NON -GSA 36 84 1 Full Coverage 7X24 A 230164 1 SA ON-SITE 24X7 CM SM GTWY 3YAN 36 SA Suppt Adv A Subtotal $ 675.60 Re-initiation Fee 360.00 Total $ 1,035.60 City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.16r3 Page 4 ICarousel AVAYA WHOLESALE SERVICE AGREEMENT 3056099 — 3333 Bear Street, Costa Mesa, CA 92626 Material Codes Qty Product Descriptions Term months Coverage Payment Type: Prepaid Annual Total 700476393 1 G430 MEDIA GATEWAY NON -GSA 36 84 1 Full Coverage 7X24 A 700463532 1 S8300D SERVER - NON GSA 36 84 Full Coverage 7X24 A 230164 1 SA ON-SITE 24X7 CM SM GTWY 3YAN 36 SA Suppt Adv A 230044 1 SA ON-SITE 24X7 CM SM SRV 3YAN 36 SA Suppt Adv A Subtotal $ 1,206.45 Re-initiation Fee 642.96 Total $ 1,849.41 City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.16r3 Page 5 "E;>C rousel I N D U S T R I E S^ AVAYA WHOLESALE SERVICE AGREEMENT EXHIBIT B - GENERAL CONDITIONS OF SUPPORT AND MANAGED SERVICES The undersigned Customer agrees that these General Conditions of Maintenance and Managed Services (the "Agreement") will govern the purchase of certain Services (defined below) by Customer from Carousel Industries of North America, Inc. ("Carousel") which Customer understands and agrees will be performed exclusively by Avaya, Inc. ("Avaya"). 1. ORDER, PROVISION AND SCOPE OF SERVICES 1.1 Order and Provision of Services. In return for the payment of the fees specified in the order, Avaya will provide the Maintenance/Managed Services options for Supported Products or Supported Systems at Supported Sites, as described further in this Agreement and the SAS or Service Description ("Services"). In the event of a conflict between the SAS/Service Description and this Agreement, the terms of this Agreement will control. The "Service Agreement Supplement" ("SAS") or the "Service Description" is the Avaya Service Agreement Supplement or Service Description then current as of the date of Avaya's acceptance of an order for Services and available to Customer upon request. As used in this Agreement, "SAS" or "Service Description" may refer, as applicable, to either the Service Agreement Supplement or Service Description or, where the parties have executed a statement of work describing specific Services to be provided by Avaya, to the statement of work. "Supported Products" are: (i) hardware or software products identified in the order; and (ii) Added Products (defined in Section 1.7). Supported Products may include non-Avaya products to the extent they are specified in the order. "Supported Systems" are a group of products or networks specified in the order. "Supported Sites" are locations specified in the order. Orders are subject to acceptance by Avaya. Avaya may accept an order by beginning to perform the Services. 1.2 Monitoring. Avaya may electronically monitor Supported Products and Supported Systems for the following purposes: (i) remote diagnostics and corrective actions; (ii) to determine system configuration and applicable charges; (iii) to verify compliance with applicable software license terms and restrictions; (iv) when providing managed Services, to assess Customer needs for additional products or Services; (v) as otherwise provided in the SAS. 1.3 Error Correction. Some Services options may include correction of Errors. An "Error" means a failure of a Supported Product to conform in all material respects to the manufacturer's specifications that were currently applicable when the Supported Product was purchased or licensed. 1.4 Help Line Support. Where the selected Services option includes help line support, Avaya will provide it in accordance with the coverage option (service hours, target response intervals, etc.) that Customer has selected. 1.5 End of Support. Periodically, Avaya or a third party manufacturer may declare "end of life," "end of service," "end of support," "manufacture discontinues" or similar designation ("End of Support") for certain Supported Products. Customer may access Avaya's user support website (www.sul)port.avaya.com) for End of Support notifications and register an e-mail address to receive e-mail notifications of the same, when published by Avaya. For Products subject to End of Support, Avaya will continue to provide the support described in the applicable SAS or Service Description, except for the End of Support exceptions listed therein ("Extended Support"). If the SAS or Service Description does not include Extended Support information, Avaya will make available the description of Extended Support (if available) for the Products concerned at the same time as its End of Support notification. For Products not subject to Extended Support, if Services are discontinued for a Supported Product, the Supported Product will be removed from the order and rates will be adjusted accordingly. 1.6 Replacement Hardware. Replacement hardware provided as part of Services may be new, factory reconditioned, refurbished, re -manufactured or functionally equivalent. It will be furnished only on an exchange basis. Returned hardware that has been replaced by Avaya, will become Avaya's property. Title to Avaya- installed replacement hardware provided as part of Services will pass to Customer when installed. Title to all other hardware provided as part of Services will pass to Customer when it arrives at the Supported Site. 1.7 Added Products. If Customer acquires additional products of the same type and manufacturer(s) as the existing Supported Products and locates them with existing Supported Products at a Supported Site, they will be considered "Added Products", and will be added to the order automatically for the remainder of the term. Added Products purchased from a party other than the manufacturer or an authorized reseller are subject to certification by Avaya at Avaya's then current rates. If Added Products fail certification, Avaya may choose not to add them to the Supported Products. 1.8 General Limitations. Unless the SAS provides otherwise, Avaya will provide software Services only for the unaltered current release of the software and the prior release. The following items are included in the Services only if the SAS specifically includes them: (i) support of user -defined applications; (ii) support of Supported Products that have been modified by a party other than Avaya (except for installation of standard, self -installed updates provided by the manufacturer); (iii) making corrections to user - defined reports; (iv) data recovery services; (v) services associated with relocation of Supported Products; (vi) correction of Errors arising from causes external to the Supported Products (such as power failures or surges); and (vii) Services for Supported Products that have been misused, used in breach of their license restrictions, improperly installed or configured, or that have had their serial numbers altered, defaced or deleted. City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.166 Page 6 "E;>C rousel I N D U S T R I E S^ AVAYA WHOLESALE SERVICE AGREEMENT 2. INVOICING AND PAYMENT. 2.1 Invoicing. Carousel will invoice Customer for Services in advance unless another payment option is specified in the order, or as otherwise specified in the SAS or Service Description. 2.2 Payment. Payment of undisputed invoices is due within thirty (30) days from the date of Carousel's invoice. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with nonstandard methods of invoicing and payment. Overdue payments will be subject to a late payment charge of the lesser of 1.5% per month or the maximum rate allowed by applicable law. Unless Customer provides Carousel with a tax exemption certificate, Customer is solely responsible for paying all required taxes, (including, but not limited to, property, sales, use or excise taxes with respect to the provision of Equipment) except for any income tax assessed upon Carousel. 3. CUSTOMER RESPONSIBILITIES 3.1 General. Customer will cooperate with Avaya as reasonably necessary for Avaya's performance of its obligations, such as: (i) providing Avaya with full, free and safe access to its facilities; (ii) providing telephone numbers, network addresses and passwords necessary for remote access; and (iii) providing interface information for Supported Products and necessary third party consents and licenses to access them. All items will be provided by Customer at Customer's expense. If Avaya provides an update or other new release of software as part of the Services, Customer will implement it promptly. Customer will reasonably use, safeguard and return to Avaya any items that Avaya loans to Customer ("Avaya Tools") for the purpose of providing Services under this Agreement, such as, but not limited to, the Secure Intelligent Gateway. Avaya Tools shall not be considered Products. 3.2 Provision of Supported Products and Systems. Except for Avaya hosted facilities identified in the SAS or Service Description, Customer will provide all Supported Products, Supported Systems and Supported Sites. Customer continuously represents and warrants that: (i) Customer is either the owner of, or is authorized to access and use, each of them; and (ii) Avaya, its suppliers, and subcontractors are authorized to do the same to the extent necessary to provide the Services in a timely manner. 3.3 Moves of Supported Products. Customer will notify Avaya in advance before moving Supported Products. Avaya may charge additional amounts to recover additional costs in providing the Services as a result of moved Supported Products. 3.4 Vendor Management. Where Avaya is to instruct or request products or services on Customer's behalf from third party vendors under Customer's supply contracts with the third party vendors ("Vendor Management"), Customer will provide Avaya upon request a letter of agency or similar document, in form reasonably satisfactory to Avaya, permitting Avaya to perform the Vendor Management. Where the third party vendor's consent is required for Avaya to be able to perform Vendor Management in a timely manner, Customer will obtain the written consent of the vendor and provide Avaya a copy of it upon request. 3.5 Third Party Hosting. In the event one or more network address(es) to be monitored by Avaya are associated with systems owned, managed, and/or hosted by a third party service provider ("Host"), Customer will: (i) notify Avaya of the Host prior to commencement of the Services; (ii) obtain the Host's advance written consent for Avaya to perform the Services on the Host's computer systems and provide Avaya with a copy of the consent upon request; and (iii) facilitate necessary communications between Avaya and the Host in connection with the Services. 3.6 Access to Personal Data. Pursuant to the HIPAA Rules, Carousel, Avaya or any other entity or individual contracted or employed by Carousel or Avaya that are permitted access to personal data, these entities and individual(s) are consider a "business associate" (45 CFR 160.103). A "business associate" also is a subcontractor that creates, receives, maintains, or transmits protected health information on behalf of another business associate. A business associate is directly liable under the HIPAA Rules and subject to civil and, in some cases, criminal penalties for making uses and disclosures of protected health information that are not authorized by its contract or required by law. A business associate also is directly liable and subject to civil penalties for failing to safeguard electronic protected health information in accordance with the HIPAA Security Rule. Carousel, Avaya, or any other entity or individual(s) that is permitted access to personal data, physical or electronic, shall be liable to any use, misuse, disclosure, violation, fraud, or of the personal data, whether intentional or by accident. Carousel, Avaya or any other entity or individual contracted or employed by Carousel or Avaya, shall report to Customer any use or disclosure of personal data when they become aware of use or disclosure, including breaches of unsecured personal data as required at 45 CFR 164.410, and any security incident of which they becomes aware. Carousel, Avaya or any other entity or individual contracted or employed by Carousel or Avaya, shall work closely with Customer to ensure that all requirements are met in working with the Department of Human Health Services, Office for Civil Rights, and the State Attorney General's Office when a breach of personal data occurs. 4. SOFTWARE LICENSE. Where Services include provision of patches, updates or feature upgrades for Supported Products ("New Software"), they will be provided subject to the license grant and restrictions contained in the original agreement under which Customer licensed the original software from Avaya. Where there is no existing license from Avaya, New Software will be provided subject to the manufacturers then current license terms and restrictions for the New Software. New Software may include components provided by third party suppliers that are subject to their own end user license agreements. Customer may install and use these components in accordance with the terms and conditions of the "shrinkwrap" or "clickwrap" end user license agreement accompanying them. City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.166 Page 7 "E;>C rousel I N D U S T R I E 5 d AVAYA WHOLESALE SERVICE AGREEMENT 5. CONFIDENTIAL INFORMATION. "Confidential Information" means either party's business and/or technical information, pricing, discounts and any other information or data, regardless of whether in tangible or other form if marked or otherwise expressly identified in writing as confidential. Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarized in writing within 30 days after disclosure. Confidential Information excludes information that: (i) is publicly available other than by an act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information without restriction on its dissemination and disclosure; (iii) was known by the receiving party prior to its receipt and was not received from a third party in breach of that third party's confidentiality obligations; (iv) was independently developed by the receiving party without use of the disclosing party's' Confidential Information; or (v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, provided the receiving party provides prompt written notification to the disclosing party of the pending disclosure so the disclosing party may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection (v) above, the receiving party will provide reasonable assistance to the disclosing party should the disclosing party attempt to obtain a protective order. Each party will protect the secrecy of all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. Neither party will use or disclose the other party's Confidential Information except as permitted in this Section or for the purpose of performing obligations under this Agreement. The confidentiality obligations of each party will survive expiration or termination of the Agreement. Upon termination of the Agreement, each party will cease all use of the other party's Confidential Information and will promptly return, or at the other party's request destroy, all Confidential Information, including copies, in tangible form in that party's possession or under its control, including Confidential Information stored on any medium. Upon request, a party will certify in writing its compliance with this Section. 6. WARRANTIES. Avaya warrants to Customer that Services will be carried out in a professional and workmanlike manner by qualified personnel. If the Services have not been so performed and Avaya receives Customer's detailed request to cure a non-conformance within 30 days of its occurrence, Avaya will re -perform those Services. This remedy will be Customer's sole and exclusive remedy and will be in lieu of any other rights or remedies Customer may have against Avaya with respect to the non-conformance of Services. EXCEPT AS REFERENCED AND LIMITED IN THIS SECTION, NEITHER AVAYA NOR ITS LICENSORS OR SUPPLIERS MAKES ANY OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES. IN PARTICULAR, THERE IS NO WARRANTY THAT ALL SECURITY THREATS AND VULNERABILITIES IN A SUPPORTED PRODUCT, SUPPORTED SYSTEM OR NETWORK WILL BE DETECTED OR THAT SERVICES WILL RENDER THEM SAFE FROM SECURITY BREACHES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AVAYA DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FORA PARTICULAR PURPOSE, AND NON -INFRINGEMENT. 7. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, TOLL FRAUD, COST OF COVER, OR SUBSTITUTE GOODS OR PERFORMANCE.. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE. HOWEVER, THEY WILL NOT APPLY IN CASES OF WILFULL MISCONDUCT, PERSONAL INJURY, PROPERTY DAMAGE, OR BREACHES OF AVAYA'S LICENSE RESTRICTIONS. THE LIMITATIONS OF LIABILITY IN THIS SECTION ALSO WILL APPLY TO ANY LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND SUPPLIERS. 8. GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement and any disputes arising out of or relating to it ("Disputes") will be governed by the state of California Except as provided below, all Disputes will be finally resolved by binding arbitration before one arbitrator, selected pursuant to the Commercial Rules of the American Arbitration Association ("AAA"). The arbitrator will have the authority to determine issues of arbitrability and to consider and rule on dispositive motions. The arbitrator will have authority only to award compensatory damages within the scope of the limitations of Section 8 and will not award punitive or exemplary damages. The arbitrator will not have the authority to limit, expand or otherwise modify the terms of the Agreement. The parties, their representatives, other participants and the arbitrator will hold the existence, content and result of arbitration in confidence. Nothing in this Section will be construed to preclude either party from seeking provisional remedies, including but not limited to temporary restraining orders and preliminary injunctions from any court of competent jurisdiction located in Orange County, California in order to protect its rights pending arbitration. Actions on Disputes between the parties must be brought in accordance with this Section within two years after the cause of action arises. 9. TERM AND TERMINATION. City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.166 Page 8 "E;>Carousel I N D U S T R I E S^ AVAYA WHOLESALE SERVICE AGREEMENT 9.1 Term. This Agreement will be effective from the date Avaya accepts the order unless terminated earlier in accordance with this Section. Unless a different term is defined in the order or mandated in the applicable SAS or Service Description, Avaya will provide Services for an initial term of three years. The City of Costa Mesa can renew the Service agreement, after the initial three year term, for two successive one year terms at the then current Avaya rate. Unless otherwise specified in the SAS or Service Description, If the City of Costa Mesa cancels this agreement during the term of agreement in whole or part and places an Avaya Support Agreement with another entity, Carousel Industries will refund the City of Costa Mesa any amount credited to Carousel by Avaya at the time the cancellation is processed by Avaya. Either party may terminate this Agreement by written notice to the other party effective immediately upon receipt if the other party fails to cure any material breach of this Agreement within a thirty (30) day period after having received a written notice from the non -breaching party detailing the breach and requesting the breach be cured. 9.2 Termination Notice. Customer's written notice of cancellation or intent not to renew must be sent by: (i) letter via certified mail to the following address: to Carousel at 659 South County Trail, Exeter, RI 02822 Attn: Termination; (ii) email to cancelcontract@carouselindustries.com; or (iii) fax to Carousel at 401-667-5492. 10. MISCELLANEOUS. Avaya may assign this Agreement or any associated order to any of its affiliated entities or to any entity to which Avaya may sell, transfer, convey, assign or lease all or substantially all of the assets used in connection with its performance under this Agreement. Avaya may subcontract any or all of its obligations, but will retain responsibility for them. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party's reasonable control, including without limitation, fire, flood, act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, and inability to secure materials or transportation facilities. The failure of either party to assert any of its rights under this Agreement is not a waiver by that party of its right later to enforce this Agreement in accordance with its terms. This Agreement constitutes the entire understanding of the parties with respect to its subject matter and will supersede all previous and contemporaneous communications, representations or understandings, either oral or written, between them relating to that subject matter. It will not be contradicted or supplemented by any prior course of dealing between the parties. All notices under this Agreement and any modifications or amendments to this Agreement must be in writing to Carousel if made by Customer and to Customer if made by Carousel which in no event shall include any form of electronic communication (such as e-mail). This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities. City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.166 Page 9 Total Annual Payment Due: $ 49,177.50 Customer signature below indicates customer has read and agrees to all terms within this agreement. Total One-time Re-initation Fee Due: $ 19,809.36 By: (Authorized Signature) Business Partner CAROUSEL INDUSTRIES OF NORTH AMERICA Printed Name On: (Date) Accepted By: Voice: (800) 401-0760 ext. 1109 Customer Bill To (if different than primary covered location) Typed Name On: (Date) Fax: (401) 667-5492 ATTN: Address 659 South County Trail Address City Exeter City, State , Zip State Zip RI 02822 City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.166 Page 9 "E;> C rO s l I N D U S T R I AVAYA WHOLESALE SERVICE AGREEMENT City of Costa Mesa AVAYA SA PREFERRED WHOLESALE 36M 24x7 SO 3.29.16r3 Page 10 ATTACHMENT 2 ACOROO Ill OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 12/28/2015 12/28/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Eva TOlaril, CIC REVENS-GATES INSURANCE INC FAX fpHONE No, ExII, (401) 294-9537 A/C No: (401)294-2493 E-MAIL ADDRESS: 1130 Ten Rod Rd Ste E-201 INSURER(S) AFFORDING COVERAGE NAIC # 630 6C563064 INSURERA:Phoenix Insurance Company 25623 North Kingstown RI 02852-4158 INSURED INSURER B :Charter Oak Fire Insurance 25615 INSURERC:Travelers Property Casualty 25674 CAROUSEL INDUSTRIES OF NORTH AMERICA INC. INSURERD:Underwriters at Lloyds— 15792 659 South County Trail INSURER E: 12/31/2016 INSURER F: Exeter, RI 02822 COVERAGES CERTIFICATE NUMBER:2015-2016 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF MM/DD/YYYY POLICY EXP MM/DD/YYYY LIMITS GENERAL LIABILITY X X 630 6C563064 EACH OCCURRENCE $ 1,000,000 A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE ExI OCCUR 12/31/2015 12/31/2016 DAMAGE TO PREMISESEa oNcur ence $ 1,00 0, 000 MED EXP (Any one person) $ 5,000 PERSONAL & ADV INJURY $ 1,000,000 X Contractual/Compl .Operat X Primary/NonContrib - GENERAL AGGREGATE $ 2,000,000 .Form #CGD4250708 GENT AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2,000,000 X POLICYFX PRO X LOC $ AUTOMOBILE LIABILITY X X 810 1B698982 12/31/2015 12/31/2016 EO aBINEDtSINGLE LIMIT 1 00,000 BODILY INJURY (Per person) $ B X ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE Peraccident $ X NON -OWNED AUTOS HIRED AUTOS wx Uninsured motorist property $ X Primary X UMBRELLA LIAB X OCCUR X X CUP 6C563064 EACH OCCURRENCE $ 13,000,000 AGGREGATE $ 13, 000, 000 C EXCESS LIAB CLAIMS -MADE FOLLOWING FORM DED I X I RETENTION$ 10,000 $ 12/31/2015 12/31/2016 C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE X J -UB -1506X42-6-15 Excludes State ofArkansas 12/31/2015 12/31/2016 X WC STATU- I OTH- TORY LIMITS ER E.L. EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED' (Mandatory in NH) N / A h10, N. Dakota, Washin tori 4 E.L. DISEASE - EA EMPLOYE $ 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below est Virginia, Wyoming g y 9 E.L. DISEASE -POLICY LIMIT $ 1,000,000 D Tech E&O (Claims Made) SB00040945 12/31/201512/31/2016 $5,000,000 per Claim $25,000 Ded. Retro Date 5/24/02 INCLUDES CYBER LIABILITY 10,000,000 Aggregate DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) TRAVELERS INS. Employee Theft of Client Property 12/31/15-12/31/16 $2,500,000. "Installation Premises or Temporary Storage Premises: $1,500,000". Technology Xtended End. CG D4 170112 Attached -(Waiver of Subrogation -Primary). Additional Insured subject to policy conditions, forms and exclusions per attached form CG D2 4708 05. CERTIFICATE HOLDER CANCELLATION ACORD 25 (2010/05) INS025 (201005).01 © 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Carousel Industries of North America Inc. 659 South County Trail AUTHORIZED REPRESENTATIVE Exeter, RI 02822 Peter Gates CPCU/MA A ACORD 25 (2010/05) INS025 (201005).01 © 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD