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HomeMy WebLinkAboutContract 56938 CSC No.56938 FORT WORTH CITY OF FORT WORTH COOPERATIVE PURCHASE AGREEMENT This Cooperative Purchase Agreement ("Agreement") is entered into by and between Netsync Network Solutions, Inc ("Vendor") and the City of Fort Worth, ("City"), a Texas home rule municipality. The Cooperative Purchase Agreement includes the following documents which shall be construed in the order of precedence in which they are listed: 1. This Cooperative Purchase Agreement; 2. Exhibit A—DIR-TSO-4167 Pricing Index; 3. Exhibit B —Cooperative Agency Contract DIR-TSO-4167; and 4. Exhibit C—Conflict of Interest Questionnaire. Exhibits A, B, and C which are attached hereto and incorporated herein, are made a part of this Agreement for all purposes. Vendor agrees to provide City with the services and goods included in Exhibit A pursuant to the terms and conditions of this Cooperative Purchase Agreement, including all exhibits thereto. City shall pay Vendor in accordance with the fee schedule in Exhibit A and in accordance with the provisions of this Agreement. Total payment made under this Agreement for the first year by City shall be up to an amount of Six million, nine hundred and thirty-four thousand Dollars ($6,934,000.00). Vendor shall not provide any additional items or services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City shall not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. The term of this Agreement shall be for one year beginning on September 28, 2021 and ending on September 27, 2022. City shall be able to renew this agreement for 1 one-year renewal option by written agreement of the parties. Vendor agrees that City shall, until the expiration of three(3)years after final payment under this Agreement, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents,papers and records, including, but not limited to, all electronic records, of Vendor involving transactions relating to this Agreement at no additional cost to City. Vendor agrees that City shall have access during normal working hours to all necessary Vendor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable advance notice of intended audits. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 1 of 28 To CITY: To VENDOR: City of Fort Worth Netsync Network Solutions, Inc Attn: Valerie Washington, Assistant City ATTN: Kristi Matsunaga Manager 2500 West Loop S, Ste. 410 200 Texas Street Houston, TX 77027 Fort Worth, TX 76102-6314 Facsimile: 713-664-9964 Facsimile: (817) 392-8654 With copy to Fort Worth City Attorney's Office at same address IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its own cost and expense, including the payment of atorney's fees, any claim or action against the City for infringement of any patent,copyright,trade mark,service mark,trade secret,or other intellectual property right arising from City's use of the Deliverable(s), or any part thereof, in accordance with the Agreement, it being understood that the agreement to indemnify, defend, settle or pay shall not apply if City modifies or misuses the Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions against the City pursuant to this section 8, Vendor shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City shall have the right to fully participate in any and all such settlement,negotiations,or lawsuit as necessary to protect the City's interest,and City agrees to cooperate with Vendor in doing so.In the event City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against the City for infringement arising under the Agreement, the City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however,Vendor shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Vendor timely written notice of any such claim or action,with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of costs or expenses shall not eliminate Vendor's duty to indemnify the City under the Agreement. If the Deliverable(s), or any part thereof, is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Vendor shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the Deliverable(s); or(b) modify the Deliverable(s)to make them/it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the Deliverable(s); or(c) replace the Deliverable(s)with equally suitable,compatible, and functionally equivalent non-infringing Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Vendor,terminate the Agreement, and refund all amounts paid to Vendor by the City, subsequent to which termination City may seek any and all remedies available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY. Data Breach. Vendor further agrees that it will monitor and test its data safeguards from time to time, and further agrees to adjust its data safeguards from time to time in light of relevant circumstances or the results of any relevant testing or monitoring. If Vendor suspects or becomes aware of any unauthorized access to any financial or personal identifiable information ("Personal Data") by any unauthorized person or third party, or becomes aware of any other security breach relating to Personal Data held or stored by Vendor under the Agreement or in connection with the Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 2 of 28 performance of any services performed under the Agreement or any Statement(s) of Work("Data Breach"), Vendor shall immediately notify City in writing and shall fully cooperate with City at Vendor's expense to prevent or stop such Data Breach. In the event of such Data Breach, Vendor shall fully and immediately comply with applicable laws, and shall take the appropriate steps to remedy such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their respective officers,directors, employees and agents, harmless from and against any and all claims, suits,causes of action,liability,loss,costs and damages,including reasonable attorney fees,arising out of or relating to any third party claim arising from breach by Vendor of its obligations contained in this Section, except to the extent resulting from the acts or omissions of City. All Personal Data to which Vendor has access under the Agreement,as between Vendor and City,will remain the property of City. City hereby consents to the use, processing and/or disclosure of Personal Data only for the purposes described herein and to the extent such use or processing is necessary for Vendor to carry out its duties and responsibilities under the Agreement, any applicable Statement(s) of Work, or as required by law. Vendor will not transfer Personal Data to third parties other than through its underlying network provider to perform its obligations under the Agreement, unless authorized in writing by City. Vendor's obligation to defend, hold harmless and indemnify City shall remain in full effect if the Data Breach is the result of the actions of a third party. All Personal Data delivered to Vendor shall be stored in the United States or other jurisdictions approved by City in writing and shall not be transferred to any other countries or jurisdictions without the prior written consent of City. Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 3 of 28 The undersigned represents and warrants that he or she has the power and authority to execute this Agreement and bind the respective Vendor. CITY OF FORT WORTH: CONTRACT COMPLIANCE MANAGER: "Ael" By signing I acknowledge that I am the person By: Valerie Washington(Jan 6,202211:54CST) responsible for the monitoring and administration Name: Valerie Washington of this contract, including ensuring all performance Title: Assistant City Manager and reporting requirements. Date: Jan 6,2022 QI G1rj� APPROVAL RECOMMENDED: By: Bobby Lee(Jan 4,202209:25 CST) Name: Bobby Lee Title: Sr. IT Solutions Manager By: APPROVED AS TO FORM AND LEGALITY: Name: Kevin Gunn Title: IT Solutions Director 4, f O RR�� ppF°FORT ��- ATTEST: p�a° °°�Dapd By: duo °o��� Name: Taylor Paris ��v o o= Title: Assistant City Attorney By �JannetteS.Goodall(Jan6,202212:04CST) a� FXASa�p CONTRACT AUTHORIZATION: Name: Jannette Goodall M&C: 21-0753 9/28/21 Title: City Secretary VENDOR: Netsync Network Solutions, Inc By: Name: Kristi Matsunaga Title: Contracts Date: 12 /29 /2021 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 4 of 28 Exhibit A Cisco Systems,Inc. Appendix C-Pricing Index(per Amendment 2) DIR-TSO-4167 PRODUCT DIR Customer Category Manufacturer Part N. t a. Cis—Core&Compute Produ its(Hardware& Software)including but not limited to, See posted Pricelist at Customer price will be a minimum of Cisco Core&Compute Networking,Wireless and Motility,Security, Cisco's TX DIR Contract USGPLr 36% 3&009'.less the then- emrtList Pdce weboaoe as published on Cisco's U.S.Global Collaboration,Data Center,Analytic,Video, Pricelist Internet of Things,Meraki,etc.on Cis—'sthen- rrent U,S.Global Pricelist under the Core& Compute Categories. Cisco Market Products Includingbut not limited Customer price will be a minimum of isepnsted IR Contract 10.DD%less the then-current List Price Cisco Market to,Cloud Autom to Cloud Applications and C]sco's TX rso Contact US GPL• 30% as published an ast0's U.S.Global $e Nlcea,Automated infrastructure,Cloud Webpflge S-wily,Col Lixamilon Tools,etc_on CIsc,rs then- Pricelist rent U.S.Global Pricelist underthe Market Category- Cisco Net Products including but not limited to, See posted Pricellst at Customer price will be 0.00%1ess the CISCO Net custom,limited or restricted offers on Cisco's Cisco's TX DR Contract USGPL' D% then-current List Price as published on then-rurrent US,Global Pricelist under the Net weboaoe Cisco's U.5,Global Pricelist te Cagory ADDED AND RELATED SERVICES 1W Cisco is providing its standard warrantytemr for all new hardware and software purchased underthe contract.Customers may purchase Cisco Smart Net Total Care Service for an increased level of maintenance Support whichprovides'. Ciseo Smart Net Total 1)Global 24 hr1365 day access to experts in the Cisco Technical A5535tanpe Center(TAC); Care Service 2)Self-help Support through online communities,resources,and tools, 3)Hardware replacement options,including 2-hour.4-hour and next business day;and 4)Operating System(OS)software updates.Below is pricing for a 1,3,and 5 year tam of service. Smart Net Total Care Technical support and flexible hardware See posted Pricelist at Customer pnce will be a minimum Cisco's TX DIR of 10.00%less the then-current List for Government coverage provided by the Cisco Technical Contract weboaoe US GPL` 10.00% Price as published on Cisco's U.S. (t year term) Assistance Centel'(TAC) Global Pricelist Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 5 of 28 Cisco Systems,Inc. Appendix C-Pricing Index(per Amendment 2) DIR-TSO-4167 Smart Net Total Care Technical supportSee posted Pricelist at Customer price will be a minimum dend flexible hardware Cisco's TX DIR of 17.00%less the then-current List Tor Government coverage provided by the Cisco Technical Contractweboaae US GPL' 17.00% Price as published on Cl-.'.U.S. (3 year term)) Assistance Center{TAC) Global Pncefst Smart Net Total Care Technical support and flexible hardware See posted Pricelist at Customer price will be a minimum for Government coverage provided by the Cisco Technical Cisco's TX DIR of21.00%less the then-current ListUS GPL' 21,00% Contract weboaae Price as published on Cisco's U.S. (5 year term) Assistance Center(TAC) Global Pricelist Smart Net Total Care Technical support and flexible hardware See posted Pricelist at Customer price will be a minimum for Education coverage provided bythe Cisco Technical Cisco's TX DIR US GPL' 25.00% of 25.00k lessthe themcurrent List (1 yearterm) Assistance Center(TAC) Contract webnane Price as published on Cisco's U.S. Global Pricelist Smart Net Total Care Technical support and flexible hardware See posted Pricelist at Customer price will be a minimum Cisco's TX DIR of 20.00%less the then-current List for Education coverage provided bythe Cisco Technical Contract webaaae US GPL' 28.00% Price as published on Cisco's U.S. (3 ysartertn) Assistance Center(TAC) Global Pricelist Smart Net Total Care Technical support and flexible hardware See posted Pricelist at Customer pace will be a minimum for Education coverage provided bythe Cisco Technical Cisco's TX DIR US GPL' 30.00% of 30.00%Iessthe therrcurrent List (5 yearterm) Assistance Center(TACT Contractweboaae Price as published on Cisco's U.S. Global Pricelist El Technical and Maintel Services Other Cisco Technical Al other maintenance support offers not See Table t below and under Smart Net Total Care Scrdce, posted Pricelist at a—" Customer pnce will be a minimum and Maintenance US GPL" 10.00% of 10.00%lessthe themcument List including Support Services for on-premise TX DIR Contract weboaee Services" Software Price as published on Cisco's U.S. Global Pricelist Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 6 of 28 Cisco Systems,Inc. Appendix C-pricing Index(per Amendment 2) DIR-TSO-4167 Services includes,but not limited to, Cisco onlyServices Survey/Design,Implementation,Optimization, See Table 1 below and US GPL"and Customer price will be 0.0%less (formRemote,Managed.Technical,Advisory, posted Pricelist Acisco's the then-current List Price as Advance known es Network Architectural Design,Statements of 7x DIP C—t—twebeaae SOW-based 0.00% published on Cisco's Global Advanced Services) Work{SOWS),Combined Services,and other Projects Pricelist Deployment or Advisory Services Limited Pedner Services,subject to Cisco's See Table 2 below and Customer price will ba 0,0%less Cisco ResellerlPartner written approval,that enable the posted Pricelist at 0son's SOW-based 0,00% the then-current List Price as Services(Ltmited)TM implementation andlor technical support of TX DIR Contract weboaaa Projects published or Cisca's U.S.Global Cisco OfferslSolutions Pricelist See posted Pricelist at Customer price will be 0.0%1ess Training Various Training Courses Available Related Cisco's TX DIR US GPL" 0,00% the then-current List Price as to Cisco CffersiMolutions ContrastweboM publlshed on Cisco's U.S.GlohM Pricelist See above underSmart Net Total Care See posted Pricelist at Customer price will be a minimum Support Service&Other Technical and US GPL' 10.00%Cisco's TX DIR of 10.OD%lessthe then-current List Maintenance Services Contract weboage Price as puhlished or Cisco's U.S. Global Pricelist 'US GPL is Cisco's then-current U.S.Global Pricellst found on Cisco's TX DIR Webpage,httns:llw ,clsco.comi0enlusfsolutlonslindustrleslgovernmentlu"overnment- solutlons-serviceslresou rcesfgovernment-contracts-fundina-vehlcleslstate-locahaovernment-contractsfstateohtexas-d€r-0167.him , Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 7 of 28 Cisco Systems,Inc. Appendix C-Pricing Index(per Amendment 2) DIR-TSO-4167 ..A.NTE Remote NTE Maintenance Services $600.00 $525.00 De lavment Services $743.17 $661.17 Adnso Services $743.16 $661.16 Architectural Design Services $743'19 $661.19 Statement of Work Services $743 20 1 $66120 Training Deployment Se-ces 6600.00 1 $525.00 "The hourly labor rates provided are not to exceed(NTE)rates.Cisco vAll use the NTE rates to calculate a cost to deliver a statement of work(SOW).Cisco will use the NTE rates, required level o€effort needed to produce the client approved deliverables,and skill set to determine the price of the SOW-For each customized SOW,Cisco Will provtdo a fixed cost for the agreed upon deliverables.Any travel coststhat are incurred far the specific SOW hill be billed for separately-Individual hours,or blocks of hours may not be purchased separately.Because the SOW Is offered at a fixed price,Cisco does not keep time cards. Service 4'Qnsde�NTE Remote NTE mount Hour* ArrountlHour— Partner Services S600.00 $525.00 NOTE!Limited Partner Services for Basic Install and Config include the following: • Cstifled and Technical Project Management • Staging&implementation Engineering • Site Survey,High Level Design Review • Global Implementation Capability Configuration Development Knowledge Transfer • Acceptance Tasting 'Onslte NTE Amount/Hour:Customer Premise Labor Rates Not To Exceed Hourly "Remote NTE Amount/Hour:Vendor Premise Labor Rates Not To Exceed Hourly Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 8 of 28 Exhibit B DIR Contract No. DIR-TSO-4167 Vendor Contract No. STATE OF TEXAS DEPARTMENT Of INFORMATION RESOURCES CONTRACT FOR PRODUCTS AND RELATED SERVICES Cisco Systems,Inc. 1. Introduction A. Parties This Contract for products and related services is entered into between the State of Texas,acting by and through the Department of Information Resources (hereinafter"DIR") with its principal place of business at 300 West 15th Street,Suite 1300,Austin,Texas 78701,and Cisco Systems, Inc. (hereinafter"Vendor"),with its principal place of business at 170 West Tasman Drive,San Jose, California 95134. B.Compliance with Procurement Laws This Contract is the result of compliance with applicable procurement laws of the State of Texas. DIR issued a solicitation on the Comptroller of Public Accounts' Electronic State Business Daily, Request for Offer(RFO) DIR-TSO-TMP-425, on December 20, 2017, for Cisco Branded Products and Services. Upon execution of this Contract,a notice of award for RFO DIR-TSO-TMP-425 shall be posted by DIR on the Electronic State Business Daily. C. Order of Precedence For purchase transactions under this Contract,the order of precedence shall be as follows:this Contract; Appendix A, Standard Terms and Conditions For Products and Related Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses Subcontracting Plan; Appendix C, Pricing Index; Appendix D, End User License Agreement; Appendix E, Services Agreement; Exhibit 1, Vendor's Response to RFO DIR-TSO-TMP-425, including all addenda;and Exhibit 2,DIR-TSO-TMP-425,including all addenda;are incorporated by reference and constitute the entire agreement between DIR and Vendor governing purchase transactions. In the event of a conflict between the documents listed in this paragraph related to purchases, the controlling document shall be this Contract, then Appendix A, then Appendix B, then Appendix C, then Appendix D,then Appendix E,then Exhibit 1,and finally Exhibit 2. In the event and to the extent any provisions contained in multiple documents address the same or substantially the same subject matter but do not actually conflict,the more recent provisions shall be deemed to have superseded earlier provisions. 2. Term of Contract The initial term of this Contract shall be two(2)years commencing on the last date of approval by DIR and Vendor,with three(3)optional one-year renewals. Prior to expiration of each term,the contract will renew automatically under the same terms and conditions unless either party provides notice to the other party 60 days in advance of the renewal date stating that the party wishes to discuss modification of terms or not renew. Additionally, the parties by mutual agreement may extend the term for up to ninety(90)additional calendar days. Department of Information Resources Page 1 of 18 (DIR rev 03J2018) Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 9 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. 3. Product and Service Offerings A. Products Products available under this Contract are limited to Cisco branded products and services and third-party products that complement the Cisco branded products and services as specified in the Appendix C, Pricing Index. Vendor may incorporate changes to their product offering; however,any changes must be within the scope of products awarded based on the posting described in Section 1.13 above. Vendor may not add a manufacturer's product line which was not included in the Vendor's response to the solicitation described in Section 13 above. B. Services Services available under this Contract are limited to Cisco branded services as specified in Appendix C, Pricing Index and Appendix E, Services Agreement. Vendor may incorporate changes to their service offering;however,any changes must be within the scope of services awarded based on the posting described in Section 1.13 above. C. Emerging Technologies and Future Acquisitions DIR recognizes that technology is ever-evolving and advancing. DIR reserves the right to consider the addition of emerging technologies such as next generation,enhancements and upgrades for products or services that are within the scope of the Cisco Branded Products and Services RFO DIR-TSO-TMP-425.Vendor may propose such products and services throughout the term of the Contract with pricing and terms to be negotiated upon DIR's acceptance.Any determination or acceptance of additions will be at DIR's sole discretion. In addition, DIR and Vendor may mutually agree to add future acquisitions by Cisco to the Contract,with product and service terms, conditions and pricing to be mutually agreed upon in writing by contract amendment. 4. Pricing Pricing to the DIR Customer shall be as set forth in Appendix A,Section 8,Pricing,Purchase Orders, Invoices and Payment, and as set forth in Appendix C, Pricing Index, and shall include the DIR Administrative Fee. 5. DIR Administrative Fee A)The administrative fee to be paid by the Vendor to DIR based on the dollar value of all sales to Customers pursuant to this Contract is three-quarters of one percent (.75%). Payment will be calculated for all sales, net of returns and credits. For example, the administrative fee for sales totaling$100,000 shall be$750.00. B)All prices quoted to Customers shall include the administrative fee. DIR reserves the right to change this fee upwards or downwards during the term of this Contract,upon thirty(30)calendar days written notice to Vendor without further requirement for a formal contract amendment. Any change in the administrative fee shall be incorporated in the price to the Customer. 6. Notification All notices under this Contract shall be sent to a party at the respective address indicated below. Department of Information Resources Page 2 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 10 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. If sent to the State: Kelly A Parker,CTPM,CTCM Director,Cooperative Contracts Department of Information Resources 300 W.151hSt.,Suite 1300 Austin,Texas 78701 Phone: (512)475-1647 Facsimile:(512)475-4759 Email: kelly.parker@dir.texas.eov If sent to the Vendor: Lynne Coughlan Cisco Systems,Inc. 170 West Tasman Drive San Jose,California 95134 Phone:(617)951-6755 Facsimile:(703)842-8684 Email:]coughla@cisco.com 7. Software License,Service and Leasing Agreements A. Software License Agreement 1) Customers acquiring software licenses to Cisco branded products under the Contract shall hold, use and operate such software subject to compliance with the End User License Agreement set forth in Appendix ❑ of this Contract. No changes to the End User License Agreement terms and conditions may be made unless previously agreed to between Vendor and DIR.Customers may not add,delete or alter any of the language in Appendix D;provided however,that a Customer and Vendor may agree to additional terms and conditions that do not diminish a term or condition in the Software License Agreement,or in any manner lessen the rights or protections of Customer or the responsibilities or liabilities of Vendor. Order Fulfiller shall make the Software License Agreement terms and conditions available to all Customers at all times. 2) Compliance with the End User License Agreement is the responsibility of the Customer. DIR shall not be responsible for any Customer's compliance with the End User License Agreement. If DIR purchases software licenses for its own use under this Contract,it shall be responsible for its compliance with the End User License Agreement terms and conditions. B. Shrink/Click-wrap License Agreement Regardless of any other provision or other license terms which may be issued by Vendor after the effective date of this Contract,and irrespective of whether any such provisions have been proposed prior to or after the issuance of a Purchase Order for products licensed under this Contract, or the fact that such other agreement may be affixed to or accompany software upon delivery (shrink-wrap), the terms and conditions set forth in this Contract shall supersede and govern the license terms between Customers and Vendor for Cisco branded products. It is the Customer's responsibility to read the Shrink/Click-wrap License Agreement and determine if the Customer accepts the license terms as amended by this Department of Information Resources Page 3 of 18 (DIR rev 03/2018) Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 11 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. Contract. If the Customer does not agree with the license terms, Customer shall be responsible for negotiating with the reseller to obtain additional changes in the Shrink/Click-wrap License Agreement language from the software publisher. For third- party products included in the Appendix C Pricing Index,Vendor will provide the applicable third-party software license agreements to Customer. C. Service Agreement Services provided under this Contract shall be in accordance with the Service Agreement as set forth in Appendix E of this Contract. No changes to the Service Agreement terms and conditions may be made unless previously agreed to by Vendor and DI R. D. Conflicting or Additional Terms In the event that conflicting or additional terms in Vendor Software End User License Agreements, Shrink/Click Wrap License Agreements, Service Agreements or linked or supplemental documents amend or diminish the rights of DIR Customers or the State, such conflicting or additional terms shall not take precedence over the terms of this Contract. In the event of a conflict,any linked documents may not take precedence over the printed or referenced documents comprising this contract; provided further that any update to such linked documents shall only apply to purchases or leases of the associated Vendor product or service offering after the effective date of the update;and, provided further, that,if Vendor has responded to a solicitation or request for pricing,no update of such linked documents on or after the initial date of Vendor's initial response shall apply to that purchase unless Vendor directly informs Customer of the update before the purchase is consummated. In the event that different or additional terms or conditions would otherwise result from accessing a linked document,agreement to said linked document shall not be effective until reviewed and approved in writing by Customer's authorized signatory. Vendor shall not without prior written agreement from Customer's authorized signatory, require any document that: 1)diminishes the rights,benefits,or protections of the Customer, or that alters the definitions, measurements, or method for determining any authorized rights, benefits,or protections of the Customer;or 2) imposes additional costs, burdens,or obligations upon Customer, or that alters the definitions, measurements, or method for determining any authorized costs,burdens,or obligations upon Customer. If Vendor attempts to do any of the foregoing, the prohibited documents will be void and inapplicable to the contract between DIR and Vendor or Vendor and Customer, and Vendor will nonetheless be obligated to perform the contract without regard to the prohibited documents,unless Customer elects instead to terminate the contract,which in such case may be identified as a termination for cause against Vendor. The foregoing requirements apply to all contracts, including, but not limited to, contracts between Customer and Vendor's resellers who pass through product documents and obligations from the Manufacturer or Publisher. Department of Information Resources Page 4 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 12 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. 8. Authorized Exceptions to Appendix A,Standard Terms and Conditions for Product and Related Services Contracts. A. Appendix A,Section 3,Definitions,A.Customer,is hereby restated in its entirety as follows: A. Customer - the any Texas state agency, unit of local government, institution of higher education as defined in Section 2054.003, Texas Government Code, the Electric Reliability Council of Texas,the Lower Colorado River Authority,a private school, as defined by Section 5.001, Education Code,a private or independent institution of higher education,as defined by Section 61.003, Education Code,a volunteer fire department, as defined by Section 152.001, Tax Code, and those state agencies purchasing from a DIR contract through an Interagency Agreement,as authorized by Chapter 771,Texas Government Code,any local government as authorized through the Interlocal Cooperation Act,Chapter 791,Texas Government Code,and the state agencies and political subdivisions of other states as authorized by Section 2054.0565, Texas Government Code and, except for telecommunications services under Chapter 2170, Texas Government Code, assistance organizations as defined in Section 2175.001,Texas Government Code to mean: 1) A non-profit organization that provides educational, health or human services or assistance to homeless individuals; 2) A nonprofit food bank that solicits, warehouses, and redistributes edible but unmarketable food to an agency that feeds needy families and individuals,- 3) Texas Partners of the Americas,a registered agency with the Advisory Committee on Voluntary Foreign Aid,with the approval of the Partners of the Alliance Office of the Agency for International Development; 4) A group,including a faith-based group,that enters into a financial or non-financial agreement with a health or human services agency to provide services to that agency's clients; 5) A local workforce development board created under Section 2308.253; 6) A nonprofit organization approved by the Supreme Court of Texas that provides free legal services for low-income households in civil matters; 7) The Texas Boll Weevil Eradication Foundation,Inc.,or an entity designated by the commissioner of agriculture as the foundation's successor entity under Section 74.1011, Texas Agriculture Code; 8) A nonprofit computer bank that solicits, stores, refurbishes and redistributes used computer equipment to public school students and their families;and 9) A nonprofit organization that provides affordable housing.Customer's fiscal form or format, which is used when making a purchase (e.g., formal written Purchase Order, Procurement Card,Electronic Purchase Order. Notwithstanding the above,nothing in the definition of Customershall require Vendor to offer products and services to state agencies and political subdivisions of other states as authorized under Chapter 2170,Texas Government Code. B. Appendix A, Section 3, Definitions, G. Purchase Order, is hereby restated in its entirety as follows: Department of Information Resources Page 5 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 13 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. G. Purchase Order - the Customer's fiscal form or format, which is used when making a purchase(e.g.,formal written Purchase Order, Procurement Card, Electronic Purchase Order, or other authorized instrument).The terms of this agreement supersedes any terms printed on Customer's Purchase Order and any Purchase Order terms are null and void. C. Appendix A,Section 4,General Provisions,D.Assignment,is hereby restated in its entirety as follows: D.Assignment DIR or Vendor may assign the Contract without prior written approval to: i) a successor in interest (for DIR, another Texas state agency as designated by the Texas Legislature), or ii) a subsidiary,parent company or affiliate,or iii)as necessary to satisfy a regulatory requirement imposed upon a party by a governing body with the appropriate authority.Assignment of the Contract under the above terms shall require written notification by the assigning party. Any other assignment by a party shall require the written consent of the other party. Each party agrees to cooperate to amend the Contract as necessary to maintain an accurate record of the contracting parties. D. Appendix A, Section 4, General Provisions, E. Survival, is hereby restated in its entirety as follows: E.Survival All applicable software license agreements, warranties or service agreements that were entered into between Vendor and a Customer under the terms and conditions of the Contract shall survive the expiration or termination of the Contract. All Purchase Orders issued and accepted by Vendor or Order Fulfiller shall survive expiration or termination of the Contract for the term of the Purchase Order,unless the Customer terminates the Purchase Order prior toacceptance by Vendoror its Order Fulfiller. However,regardless of the term ofthe Purchase Order, no Purchase Order shall survive the expiration or termination of the Contract for more than five years,unless Customer makes an express finding and justification for the longer term. The finding and justification must either be included in the Purchase Order,or referenced in it and maintained in Customer's procurement record. Rights and obligations under this Contract which by their nature should survive,including,but not limited to the DIR Administrative Fee; and any and all payment obligations invoiced prior to the termination or expiration hereof,- obligations of confidentiality; and, indemnification, will remain in effect after termination or expiration hereof. E. Appendix A, Section 5, Intellectual Property Matters, is hereby restated in its entirety as follows: This contract does not contemplate, authorize or support acquisition of custom software products or services or the creation of intellectual property. If Vendor and Customer seek to contract for such product or service,they must use a separate contract or seek amendment with DIR of this contract. If DIR and Vendor decide to authorize customized software or hardware products or the creation of intellectual property, then the terms and conditions of ownership of intellectual property will be negotiated between the parties at such time. Department of Information Resources Page 6 of 18 (DIR rev 03/2018) Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 14 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. F. Appendix A,Section 7,Contract Fulfillment and Promotion,A.Service,Sales and Support of the Contract,is hereby restated in its entirety as follows: A. Service,Sales and Support of the Contract Vendor shall provide service,sales and support resources to serve all Customers throughout the State. It is the responsibility of the Vendor to sell, market,and promote services available under the Contract. Vendor shall use its commercially reasonable efforts to ensure that potential Customers are made aware of the existence of the Contract.All sales to Customers for services available under the Contract shall be processed through the Contract. G. Appendix A,Section 7,Contract Fulfillment and Promotion,C.Product Warranty and Return Policies,is hereby restated in its entirety as follows: C.Product Warranty and Return Policies Order Fulfiller will adhere to the Vendor's then-currently published policies concerning product warranties and returns. Product warranty and return policies for Customers will not be more restrictive or more costly than warranty and return policies for other similarly situated Customers for like products. Warranty and returns for third-party products will be subject to the separate policies and terms set forth by the applicable third-party, provided said policies and terms were provided to Customers prior to acceptance by Customer of the third-party products. Vendor/Order Fulfiller will assign any such warranty and return rights to Customer, to the extent applicable. H. Appendix A, Section 7, Contract Fulfillment and Promotion, E. Internet Access to Contract and Pricing Information,is hereby restated in its entirety as follows: E.Internet Access to Contract and Pricing Information 1) Vendor Website Within thirty(30)calendar days of the effective date of the Contract,Vendor will establish and maintain a website specific to the product and service offerings under the Contract which is clearly distinguishable from other, non-DIR Contract offerings at Vendor's website. The website must include: a) the products and services awarded(alternatively,categories); b) description of product and service(categories)awarded.- c) a current price list or mechanism (for example, a services calculator or product builder)to obtain specific contracted pricing; d) discount percentage(%)off MSRP or List Price; e) designated Order Fulfillers; f) contact information(name,telephone number and email address)for Vendor and designated Order Fulfillers; g) instructions for obtaining quotes and placing Purchase Orders; h) warranty policies; i) return policies; j) the DIR Contract number with a hyperlink to the Contract's DIR webpage; k) a link to the DIR"Cooperative Contracts"webpage;and 1) the DIR logo in accordance with the requirements of this Section. Department of Information Resources Page 7 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 15 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. If Vendor does not meet the webpage requirements listed above,DIR may cancel the contract without penalty; provided however,that Vendor is provided written notice of the website's non-compliance,and Vendor fails to correct such non-compliance withing thirty(30)calendar days. 2) Accurate and Timely Contract Information Vendor warrants and represents that the website information specified in the above paragraph will be accurately and completely posted,maintained and displayed in an objective and timely manner. Vendor, at its own expense, shall correct any non-conforming or inaccurate information posted at Vendor's website within thirty (30) business days after written notification by DIR. 3) Website Compliance Checks Periodic compliance checks of the information posted for the Contract on Vendor's website will be conducted by DIR. Upon request by DIR,Vendor shall provide verifiable documentation that pricing listed upon this website is compliant with the pricing as stated in Section 4 of the Contract. 4) Website Changes Vendor hereby consents to a link from the DIR website to Vendor's website in order to facilitate access to Contract information.The establishment of the link is provided solely for convenience in carrying out the business operations of the State. DIR reserves the right to terminate or remove a link at any time, in its sole discretion, without advance notice, or to deny a future request for a link. DIR will provide Vendor with subsequent notice of link termination or removal. Vendor shall provide DIR with timely written notice of any change in URL or other information needed to access the site and/or maintain the link. 5) Use of Access Data Prohibited If Vendor stores,collects or maintains data electronically as a condition of accessing Contract information,such data shall only be used internally by Vendor for the purpose of implementing or marketing the Contract, and shall not be disseminated to third parties or used for other marketing purposes.The Contract constitutes a public document under the laws of the State and Vendor shall not restrict DIR or Customer access to Contract terms and conditions including pricing,i.e.,through use of restrictive technology or passwords. 6) Responsibility for Content Vendor is solely responsible for administration, content, intellectual property rights, and all materials at Vendor's website. DIR reserves the right to require a change of listed content if,in the opinion of DIR, it does not adequately represent the Contract. I. Appendix A, Section 7, Contract Fulfillment and Promotion, G. Vendor and Order Fulfiller Logo,is hereby restated in its entirety as follows: G. Vendor and Order Fulfiller Logo In the event DIR should need use of Vendor's or Order Fulfiller's Logos,mutually agreed upon criteria will be coordinated with Vendor. Department of Information Resources Page 8 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 16 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. J. Appendix A,Section 8,Pricing,Purchase Order, Invoices,and Payments,C.Customer Price, is hereby restated in its entirety as follows: C.Customer Price 1)The price to the Customer shall be calculated as follows: Customer Price=(MSRP or List Price—Customer Discount as set forth in Appendix C, Pricing Index)x(1+DIR Administrative Fee,as set forth in the Contract). 2) Customers purchasing products and services under this Contract may negotiate more advantageous pricing or participate in special promotional offers.In such event,a copy of such better offerings shall be furnished to DIR upon request. 3) If pricing for Vendor's products or services available under this Contract are provided by Vendor at a lower price to: (i) an eligible Customer in Texas who is not purchasing those products or services under this Contract or(ii)any other Texas entity or consortia authorized by Texas law to sell said products and services to eligible Customers, then the available Customer Price in this Contract shall be adjusted to that lower price prospectively. This requirement applies to products or services quoted directly by Vendor for a quantity of one(1) under like terms and conditions, and does not apply to volume or special pricing purchases. Upon either Customer's notice to Vendor, or Vendor's notice to Customer that the party(ies) have become aware of this pricing differential and the pricing differential has been confirmed by Vendor or Customer provides reasonable confirmation to Vendor, this Contract shall be amended within ten (10)business days to reflect the lower price. K. Appendix A, Section 8, Pricing, Purchase Orders, Invoices, and Payments, G. Changes to Prices,is hereby replaced in its entirety as follows: G.Changes to Prices Vendor may change the price of any product or service at any time,based upon changes to the MSRP, but discount levels shall remain consistent with the discount levels specified in this Contract. Vendor may revise its pricing(but not its discount rate,if any,and not the products or services on its contract pricing list)by posting a revised pricing list. Such revised pricing lists are subject to review by DIR. If DIR finds that a product's or service's price has been increased unreasonably, DIR may request Vendor to reduce its pricing for the product or service to the level published before the revision. Vendor must reduce its pricing or remove the product or service from its pricing list within thirty(30)calendar days. Failure to do so will constitute an act of default by Vendor. L. Appendix A,Section 8,Pricing,Purchase Orders,Invoices,and Payments,K.Transfer of Title, is hereby added to this section as follows: K.Transfer of Title Transfer of Title shall occur upon acceptance of goods.Customer shall have five (5)business days after receipt to accept products. Absent written rejection within five (5) business days, Department of Information Resources Page 9 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 17 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. products will be deemed accepted,without waiving the right to return products as set forth under Vendor and product warranty provisions. M. Appendix A, Section 9, Contract Administration, B. Reporting and Administrative Fees, is hereby restated in its entirety as follows: 1) Reporting Responsibility a) Vendor shall be responsible for reporting all products and services purchased under the Contract. Vendor shall file the monthly reports, subcontract reports, and pay the administrative fees in accordance with the due dates specified in this section. b) DIR shall have the right to verify required reports and to take any actions necessary to enforce its rights under this section,including but not limited to,compliance checks of Vendor's applicable Contract books at DIR's expense. Vendor will provide all required documentation at no cost. 2) Detailed Monthly Report Vendor shall electronically provide DIR with a detailed monthly report in the format required by DIR showing the dollar volume of any and all sales under the Contract for the previous month period. Reports shall be submitted to the DIR ICT Cooperative Contracts E-Mail Box at ict.sales@dir.texas.gov. Reports are due on the fifteenth(151h)calendar day after the close of the previous month period. If the 15th calendar day falls on a weekend or state or federal holiday, the report shall be due on the next business day. It is the responsibility of Vendor to collect and compile all sales under the Contract from participating Order Fulfillers and submit one(1)monthly report. The monthly report shall include, per transaction: the detailed sales for the period, Order Fulfiller's Company name, if applicable, Customer name, invoice date, invoice number, description, part number, manufacturer(brand),quantity, unit price, extended price,Customer Purchase Order number, contact name, Customer's complete billing address, and other information as required by DIR. Each report must contain all information required by DIR and listed above per transaction or the report will be rejected and returned to the Vendor for correction in accordance with this section. Vendor shall report in a manner required by DIR which is subject to change dependent upon DIR's business needs. Failure to do so may result in contract termination. 3) Historically Underutilized Businesses Subcontract Reports a) Vendor shall electronically provide each Customer with Vendor's applicable Order Fulfiller's relevant Historically Underutilized Business Subcontracting Report,pursuant to the Contract,as required by Chapter 2161,Texas Government Code. Reports shall also be submitted to DIR. b) Reports shall be due in accordance with the CPA rules. 4) DIR Administrative Fee a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of negotiating,executing,and administering the Contract.The maximum administrative fee is set by the Texas Legislature in the biennial General Appropriations Act. DIR will review Vendor monthly sales reports, close the sales period, and notify the Vendor of the administrative fee no later than the fourteenth(14th)day of the second month following the date of the reported sale.Vendor shall pay the administrative fee by the twenty-fifth Department of Information Resources Page 10 of 16 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 18 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. (25th) calendar day of the second month following the date of the reported sale. For example, Vendor reports January sales by February 15th; DIR closes January sales and notifies Vendor of administrative fee by March 14th;Vendor submits administrative fee for January sales by March 25th. b) DIR may change the amount of the administrative fee upon thirty(30)calendar days written notice to Vendor without the need for a formal contract amendment. c) Vendorshall reference the DIRContract number,reporting period,and administrative fee amount on any remittance instruments. d) Notwithstanding the foregoing, DIR shall timely provide to Vendor a report of all ineligible sales or other reporting discrepancies(including administrative fees), based on DIR's review of available sales information. 5) Accurate and Timely Submission of Reports a) The reports and administrative fees shall be accurate and timely and submitted in accordance with the due dates specified in this section. Vendor shall correct any inaccurate reports or administrative fee payments within ten (10) business days upon written notification by DIR. Vendor shall deliver any late reports or late administrative fee payments within ten(10)business days upon written notification by DIR. If Vendor is unable to correct inaccurate reports or administrative fee payments or deliver late reports and fee payments within three (3) business days,Vendor must contact DIR and provide a corrective plan of action, including the timeline for completion of correction. The corrective plan of action shall be subject to DIR approval, such approval not unreasonably withheld. b) Should Vendor fail to correct inaccurate reports or cure the delay in timely delivery of reports and payments within the corrective plan of action timeline, DIR reserves the right to require an independent third party audit of the Vendor's records as specified in C.3 of this Section,at Vendor's expense. DIR will select the auditor(and all payments to auditorwill require DIRapproval). c) Failure to timely submit three (3) reports or administrative fee payments within any rolling twelve (12) month period may, at DIR's discretion, result in the addition of late fees of $100/day for each day the report or payment is due (up to $1000/month) or suspension or termination of Vendor's Contract. N. Appendix A,Section 9,Contract Administration,C.Records and Audit,paragraph 3,is hereby restated in its entirety as follows: 3)Vendor and/or Order Fulfillers shall grant access to all paper and electronic records, books,documents,accounting procedures, practices and any other items relevant to the performance of the Contract to the DIR Internal Audit department or DIR Contract Management staff,including the compliance checks designated by the DIR Internal Audit department,DIR Contract Management staff,the State Auditor's Office,and of the United States, and such other persons or entities designated by DIR for the purposes of inspecting,Compliance Checking and/or copying such books and records. Vendor and/or Order Fulfillers shall provide copies and printouts requested by DIR without charge. DIR shall provide Vendor and/or Order Fulfillers thirty (30) business days' notice prior to inspecting, Compliance Checking, and/or copying Vendor's and/or Order Fulfiller's records. Vendor's and/or Order Fulfillers records, whether paper or electronic, shall be Department of Information Resources Page 11 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 19 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. made available during regular office hours. Vendor and/or Order Fulfiller personnel familiar with the Vendor's and/or Order Fulfiller's books and records shall be available to the DIR Internal Audit department,or DIR Contract Management staff and designees as needed. Vendor and/or Order Fulfiller shall provide adequate office space to DIR staff during the performance of Compliance Check. If Vendor is found to be responsible for inaccurate reports, DIR may invoice for the reasonable costs of the audit, which Vendor must pay within thirty(30)calendar days of receipt. O. Appendix A,Section 10,Vendor Responsibilities,A.Indemnification,2)ACTS OR OMISSIONS, is hereby restated in its entirety as follows: 2)ACTS OR OMISSIONS Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, AND/OR PERMITTED ASSIGNEES,FROM ANY AND ALL LIABILITY,ACTIONS,CLAIMS, DEMANDS,OR SUITS,AND ALL RELATED REASONABLE COSTS,ATTORNEY FEES,AND EXPENSES resulting from bodily injury(including death)or damage to tangible property to the extent arising out of, or resulting from any negligent acts or omissions, or willful misconduct of the Vendor or its agents, employees, or subcontractors, in the execution or performance of the Contract and any Purchase Orders issued under the Contract. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON-STATE AGENCY CUSTOMERS. VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. P. Appendix A,Section 10,Vendor Responsibilities,A. Indemnification,3)INFRINGEMENTS,is hereby restated in its entirety as follows: 3)INFRINGEMENTS a)Vendor shall indemnify and hold harmless the State of Texas and Customers,AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES from any and all third-party claims alleging infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights in connection with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.VENDOR SHALL BE LIABLE TO PAY ALL REASONABLE COSTS OF DEFENSE INCLUDING ATTORNEYS'FEES.THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON-STATE AGENCY CUSTOMERS. VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. Notwithstanding the foregoing,such indemnity shall not apply,and Vendor shall have no liability under this section if the alleged infringement is caused by: 1) Modification of a product by Customer or a third party Department of Information Resources Page 12 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 20 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. 2) The amount or duration of use which Customer makes of the Product, revenue earned by Customer from services it provides that use the Product, or services offered by Customer to external or internal customers 3) Combination, operation,or use of a product with non-Cisco products, software or business processes 4) Customer's use of the products after Vendor informas Customer of modifications or a change required to avoid such claims and offers to implement those changes 5) Any modifications made to the Product by the Vendor pursuant to Customer's specific instructions. b)If Vendor becomes aware of an actual or potential claim,or Customer provides Vendor with notice of an actual or potential claim,Vendor may (or in the case of an injunction against Customer, shall), at Vendor's sole option and expense: (1) procure for the Customer the right to continue to use the affected portion of the product or service,or (F) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer's use is non-infringing. Q. Appendix A,Section 10,Vendor Responsibilities,A. Indemnification,4)Property Damage,is hereby deleted in its entirety. R. Appendix A, Section 10, Vendor Responsibilities, B. Taxes/Worker's Compensation/ UNEMPLOYMENT INSURANCE,Paragraph 2),is hereby restated in its entirety as follows: 2)VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS,THE STATE OF TEXAS AND/ORTHEIR EMPLOYEES,AGENTS,REPRESENTATIVES,CONTRACTORS,AND/OR ASSIGNEES FROM ANY AND ALL LIABILITY,ACTIONS,CLAIMS, DEMANDS,OR SUITS,AND ALL RELATED COSTS, REASONABLE ATTORNEYS' FEES, AND EXPENSES, RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION IN ITS PERFORMANCE UNDERTHIS CONTRACT. VENDORSHALL BE LIABLETO PAYALLCOSTS OF DEFENSE INCLUDING REASONABLE ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OFTHE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROMTHE OFFICE OF THE ATTORNEY GENERAL. VENDOR ANDTHE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. S. Appendix A,Section 10,Vendor Responsibilities, N. Required Insurance Coverage, is hereby restated in its entirety as follows: N.Required Insurance Coverage As a condition of this Contract with DIR,Vendor shall provide certificates of insurance,or other proof of insurance acceptable to DIR,reflecting maintenance of the listed insurance coverage within 5 business days of execution of the Contract if the Vendor is awarded services which require that Vendor's employees perform work at any Customer premises and/or use employer vehicles to conduct work on behalf of Customers. In addition,when engaged by a Customer to provide services on Customer premises,the Vendor shall,at its own expense, secure and maintain the insurance coverage specified herein, and shall Department of Information Resources Page 13 of 18 (DIR rev 03/2018) Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 21 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. provide certificates of insurance,or other proof of such insurance coverage acceptable to Customer to the related Customer within five (5) business days following the execution of the Purchase Order.Vendor may not begin performance under the Contract and/or a Purchase Order until such proof of insurance coverage is provided to, and approved by, DIR and the Customer.All required insurance must be issued by companies that have an A rating and a Financial Size Category Class of VII from A.M. Best and are licensed in the State of Texas and authorized to provide the corresponding coverage. Required coverage must remain in effect throughout the term of the Contract and each Purchase Order issued to Vendor thereunder. The minimum acceptable insurance provisions are as follows: 1) Commercial General Liability Commercial General Liability must include $1,000,000 per occurrence for Bodily Injury and Property Damage,with a separate aggregate limit of$2,000,000; Personal Injury and Advertising Liability of $1,000,000; Products/Completed Operations Aggregate Limit of $2,000,000;and Damage to Premises Rented:$50,000. Agencies may require additional Umbrella/Excess Liability insurance. The policy shall contain the following provisions: a)Blanket contractual liability coverage for liability assumed under the Contract; b) Independent Contractor coverage; c) State of Texas, DIR and Customer included as an additional insured, but only to the extent of liabilities falling within Vendor's contractual and indemnity obligations pursuant this Agreement;and d) Waiver of Subrogation, but only to the extent of liabilities falling within Vendor's contractual and indemnity obligations pursuant to this Agreement. 2) Workers'Compensation Insurance WORKERS'COMPENSATION INSURANCE AND EMPLOYERS'LIABILITY COVERAGE MUST INCLUDE LIMITS CONSISTENT WITH STATUTORY BENEFITS OUTLINED IN THE TEXAS WORKERS' COMPENSATION ACT (ART. 8308-1.01 ET SEQ. TEX. REV. CIV. STAT)AND MINIMUM POLICY LIMITS FOR EMPLOYERS' LIABILITY OF $1,000,000 BODILY INJURY PER ACCIDENT,$1,000,000 BODILY INJURY DISEASE PER EMPLOYEE AND$1,000,000 PER DISEASE POLICY LIMIT. 3) Business Automobile Liability Insurance Business Automobile Liability Insurance must cover all owned, non-owned and hired vehicles with a minimum combined single limit of$500,000 per occurrence for bodily injury and property damage.The policy shall contain the following endorsements in favor of DIR and/or Customer: a) Waiver of Subrogation, but only to the extent of liabilities falling within Vendor's contractual and indemnity obligations pursuant to this Agreement;and b) State of Texas, DIR and Customer included as an additional Insured, but only to the extent of liabilities falling within Vendor's contractual and indemnity obligations pursuant to this Agreement. T. Appendix A, Section 10, Vendor Responsibilities, X. Use and Protection of Confidential Information,is hereby added to Appendix A as follows: Department of Information Resources Page 14 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 22 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. X. Use and Protection of Confidential Information Customer and Vendor agree that in connection with this Contract and their relationship,they may come into possession of another party's Confidential Information. The receiving party shall at all times keep in trust and confidence all such Confidential information received,and shall not use such Confidential Information other than as expressly authorized by the disclosing party under this Agreement, nor shall the receiving party disclose any such Confidential Information to third parties without the disclosing party's written consent. Notwithstanding the above, Vendor shall be authorized to disclose Customer's Confidential Information to order fulfillers, contractors or employees of a Vendor entity who have a legitimate business need to have access to such information to fulfill Customer's purchase orders. Notwithstanding any record retention policies and laws, the receiving party shall immediately return to the disclosing party all Confidential Information (including copies thereof)in the receiving party's possession,custody,orcontrol upon termination or expiration of this Agreement.The obligations of confidentiality shall not apply to information which (a) has entered the public domain, except where such entry is the result of the receiving party's breach of this Agreement; (b) prior to disclosure hereunder was already rightfully in the receiving party's possession; (c) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such Information to the receiving party.Additionally, the receiving party is authorized to disclose Confidential Information pursuant to a valid order issued by a court or government agency, provided that the receiving party provides(i)prior written notice to the disclosing party of such obligation and(ii)the opportunity to oppose such disclosure.Customer and DIR may disclose Information necessary to comply with the Texas Public Information Act. Vendor shall not disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the Customer.Any press release or publication by Vendor regarding this Agreement is subject to prior review and written approval of DIR and Customer. Customer and DIR may publish the contract and Agreement in its customary manner or as required by law. U. Appendix A, Section 11, Contract Enforcement, B. Termination, 1) Termination for Non- Appropriation,a)Termination for Non-Appropriation by Customer,is hereby restated in its entirety as follows: a) Termination for Non-Appropriation by Customer Customer may terminate Purchase Orders if funds sufficient to pay its obligations under the Contract are not appropriated: i)by the governing body on behalf of local governments;ii)by the Texas legislature on behalf of state agencies; or iii) by budget execution authority provisioned to the Governor or the Legislative Budget Board as provided in Chapter 317,Texas Government Code. In the event of non-appropriation, Vendor and/or Order Fulfiller will be provided ten (10) calendar days written notice of intent to terminate. Notwithstanding the foregoing, if a Customer issues a Purchase Order and has accepted delivery of the product or services,they are obligated to pay for the product or services or they may return the product and discontinue using services under any return provisions that Vendor offers. In the event of such termination,the Customer will not be considered to be in default or breach under this Contract, nor shall it be liable for any further payments ordinarily due under this Contract Department of Information Resources Page 15 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 23 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. (except for products or services accepted before termination,for which return provisions are provided, which Customer fails to return), nor shall it be liable for any damages or any other amounts which are caused by or associated with such termination. V. Appendix A, Section 11, Contract Enforcement, B. Termination, 3) Termination for Convenience,is hereby restated in its entirety as follows: 3) Termination for Convenience DIR may terminate the Contract, in whole or in part, by giving the other party thirty (30) calendar days written notice. A Customer may terminate a Purchase Order or other contractual document or relationship prior to the delivery of the ordered products or services by giving the other party thirty (30) calendar days written notice. Notwithstanding the foregoing, if a Customer issued a Purchase Order and accepted delivery of the ordered products or services,the Customer is obligated to pay for the product or services in accordance with the payment and return provisions contained in this Agreement. W. Appendix A,Section B.Termination,4.Termination for Cause, b)Purchase Order, is hereby restated in its entirety as follows: b)Purchase Order Customer or Order Fulfiller may terminate a Purchase Order or other contractual document or relationship upon the occurrence of a material breach of any term or condition: (i) of the Contract,or(ii)included in the Purchase Order or other contractual document or relationship In accordance with Section 4.13.2 above, upon the following preconditions: first, the parties must comply with the requirements of Chapter 2260,Texas Government Code, in an attempt to resolve a dispute;second,after complying with Chapter 2260,Texas Government Code,and the dispute remains unresolved, then the non-defaulting party shall give the defaulting party ten (10) calendar days from receipt of notice to cure said default. If the defaulting party fails to cure said default within the timeframe allowed,the non-defaulting party may,at its option and in addition to any other remedies it may have available,cancel and terminate the Purchase Order. Customer may immediately suspend a Purchase Order without advance notice in the event Vendor fails to comply with confidentiality, privacy, security requirements, environmental or safety laws or regulations, if such non-compliance materially relates to vendor provision of goods or services to the Customer. X. Appendix A, Section 11, Contract Enforcement, C. Force Majeure, is hereby restated in its entirety as follows: C.Force Majeure DI R,Customer,Vendor or Order Fulfiller may be excused from performance under the Contract for any period when performance is prevented as the result of an act of God,strike,war,civil disturbance,epidemic,or court order,provided that the party experiencing the event of Force Majeure has prudently and promptly acted to take any and all steps that are within the party's control to ensure performance and to shorten the duration of the event of Force Majeure. The party suffering an event of Force Majeure shall provide notice of the event to the other parties when commercially reasonable. Subject to this provision, such non-performance shall not be deemed a default or a ground for termination.However,a Customer may terminate a Purchase Department of Information Resources Page 16 of 18 (DIR rev 03/2018) Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 24 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. Order if it is determined by the Customer that Order Fulfiller will not be able to deliver product or services in a timely manner to meet the business needs of the Customer. Remainder of page intentionally left blank Department of Information Resources Page 17 of 18 (DIR rev 03/2018) Document Ref:EFEUS-EZTXZ-VBBQZ-XHTCS Page 25 of 28 DIR Contract No. DIR-TSO-4167 Vendor Contract No. This Contract is executed to be effective as of the date of last signature. Cisco Systems,Inc. Authorized By: Signature on File Name: Jennifer Pate Title: Authorized Signatory Date: 6/29/2018 The State of Texas,acting by and through the Department of Information Resources Authorized By: Signature on File Name: Hershel Becker/Colleen Berkley, Procurement Director On Behalf of Hershel Becker Title: Chief Procurement Officer Date: 7/3/2018 Office of General Counsel: Signature on File,6/29/2018 Department of Information Resources Page 18 of 18 (DIR rev 03/2018) Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 26 of 28 Exhibit C CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor doing business with local governmental entity This questionnaire reflects changes made to the law by H.B.23, 84th Leg., Regular Session. OFFICEUSEONLY This questionnaire is being filed in accordance with Chapter 176,Local Government Code,by a vendor who Date Received has a business relationship as defined by Secton 176.001(1-a)with a local governmental entity and the vendor meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local governmental entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1),Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006,Local Government Code.An offense under this section is a misdemeanor. U Name of vendor who has a business relationship with local governmental entity. Netsync Network Solutions,Inc. 2 Check this box if you are filing an update to a previously filed questionnaire.(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) U Name of local government officer about whom the information is being disclosed. n/a Name of Officer U Describe each employment or other business relationship with the local government officer,or a family member of the officer,as described by Section 176.003(a)(2)(A). Also describe any family relationship with the local government officer. Complete subparts A and B for each employment or business relationshipciescribed. Attach additional pages to this Form CIO as necessary. A. Is the local government officer or a family member of the officer receiving or likely to receive taxable income, other than investment income,from the vendor? a Yes a No B. Is the vendor receiving or likely to receive taxable income,other than investment income,from or at the direction of the local government officer or a family member of the officer AND the taxable income is not received from the local governmental entity? a Yes a No 5 Describe each employment or business relationship that the vendor named in Section 1 maintains with a corporation or other business entity with respect to which the local government officer serves as an officer or director,or holds an ownership interest of one percent or more. 6 Check this box if the vendor has given the local government officer or afamily member of the officer one or more gifts as described in Section 176.003(a)(2)(B), excluding gifts described in Section 176.003(a-1). 7 Signature of vendor doing business with the governmental entity Date Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 1113012015 Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 27 of 28 CONFLICT OF INTEREST (QUESTIONNAIRE For vendor doing business with focal governmental entity Acomplete copy of Chapter 176 of the Local Government Code maybe found at http://www.statutes.legis.state.tx.usf Does/LG/htm/LG.176.htm.For easy reference,below are some of the sections cited on this form. Local Government Code S 176.001(1-a):"Business relationship"means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) atransaction that is subject to rate or fee regulation by a federal,state,or local governmental entity or an agency of a federal,state,or local governmental entity; (B) a transaction conducted at a price and subject to terms available to the public;or (C) a purchase or lease of goodsor services from a person that is chartered by a state or federal agency and that is subject to regular examination by,and reporting to,that agency, Local Government Code§176.003 a 2 A and(B)- (a) A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor; (B) has given to the local government officer or afamily member of the officer one or more gifts that have an aggregate value of more than$100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed;or (i i) the local governmental entity is considering entering into a contract with the vendor. Local Government Code§176.006(a)and(a-1) (a) Avendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity,or family member of the officer,described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity,or a family member of the officer,one or more gifts with the aggregate value specified by Section 176.003(a)(2)(9),excluding any gift described by Section 176.003(a-1);or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor (A) begins discussions or negotiations to enter into a contract with the local governmental entity;or (B) submits to the local governmental entity an application,response to a request for proposals or bids, correspondence, or another writing related to a potential contract with the local governmental entity;or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer,or a family member of the officer,described by Subsection(a); (B) that the vendor has given one or more gifts described by Subsection(a);or (C) of a family relationship with a local government officer. Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11130Y2015 Document Ref:EFEU5-EZTXZ-VBBQZ-XHTCS Page 28 of 28 Signature Certificate Document Ref. EFEU5-EZTXZ-VBBQZ-XHTCS Document signed by: Kristi Matsunaga E-mail kmatsunaga@netsync.com gned via link O qP 124.8 80.192 29 Dec 2021 19:15:08 U III I III III nncument cmmnleted by all narties on: 29 Dec 2021 19:15:08 UTC Page 1 of 1 Signed with PandaDoc.com 0• 0 PandaDoc is a document workflow and certified eSianatur, IIIR solution trusted by 25,000+ companies worldwidF EVA- City of Fort Worth, Texas Mayor and Council Communication DATE: 09/28/21 M&C FILE NUMBER: M&C 21-0753 LOG NAME: 13PINFRASTRUCTURE MULTI-COOP ITS ADK SUBJECT (ALL)Authorize Non-Exclusive Purchase Agreements for Information Technology Infrastructure,with Netsync Network Solutions, Inc., Presidio Networked Solutions Group, LLC, Future Com, LTD., and World Wide Technology LLC using Multiple State of Texas Department of Information Resources(DIR)and The Interlocal Purchasing System Cooperative Contracts(TIPS)with a Combined Annual Amount up to$6,934,000.00, and Five One-Year Renewal Options with DIR in the Amount of$5,534,000.00 for the First Renewal, $5,184,000.00 for the Second Renewal, $4,434,000.00 for the Remainder Renewals and Two One-Year Renewal Options for TIPS and Ratify Expenditures in the Amount of$70,200.00 for the Information Technology Solutions Department(ITS) RECOMMENDATION: It is recommended to authorize non-exclusive purchase agreements for Information Technology Infrastructure with Netsync Network Solutions, Inc., Presidio Networked Solutions Group, LLC, Future Com, LTD., and World Wide Technology LLC using Multiple State of Texas Department of Information Resources(DIR)and The Interlocal Purchasing System Cooperative Contracts(TIPS)with a combined annual amount up to $6,934,000.00, and Five one-year renewal options with DIR in the amount of$5,534,000.00 for the first renewal, $5,184,000.00 for the second renewal, $4,434,000.00 for the remainder renewals and two one-year renewal options for TIPS and ratify expenditures in the amount of $70,200.00 for the Information Technology Solutions Department(ITS). DISCUSSION: The Information Technology Solutions Department(ITS)will use these agreements to purchase equipment and services from Netsync Network Solutions, Inc., Presidio Networked Solutions Group, LLC, Future Com., LTD and World Wide Technology LLC.to support the City's information technology infrastructure. This infrastructure includes equipment and software supporting the City's servers, data storage,virtual desktop environment, and network and telephone systems. These agreements will be used to support the refreshes for the equipment that has reached the end of life cycle as well as new projects for City departments using the following cooperative contracts: Vendor Co-op Expiration RFO Published Responses Due Date DIR-TSO- WWT 4135 5/2/2022 5/23/2016 6/23/2016 WWT, Presidio, DIR-TSO- Netsync 4167 7/3/2023 12/20/2017 2/5/2018 WWT, Presidio, DIR-TSO- Netsync 3763 1/10/2024 9/12/2016 10/13/2016 WWT, Presidio, DIR-TSO- Netsync 4299 12/17/2023 3/20/2018 5/4/2018 DIR-TSO- WWT, Future Com 4160 10/2/2024 1/12/2018 2/26/2018 DIR-TSO- Presidio, Future Com 4288 2/21/2025 2/26/2018 4/9/2018 Future Com TIPS 200105 5/31/2023 1/9/2020 2/21/2020 On September 15, 2020, City Council approved M&C 20-0650 authorizing similar agreements for information technology infrastructure purchases. Due to unanticipated projects related to COVID and a new City Hall additional spending authority is being requested. To avoid any confusion, approval of this M&C will eliminate prior spending authority and contracts authorized under Mayor and Council Communication P-12248, 19-0123, 19-0270 and 20-0650. In the previous years,the Information Technology Solutions Department spent approximately$1.7 million in authorized expenditures out of the operating and capital fund. Approval of this M&C will allow a total of$6,934,000.00 in expenditures for the initial year, $5,534,000.00 for the first renewal, $5,184,000.00 for the second renewal, $4,434,000.00 for the remainder renewals for projects such as safety and security, new building projects, building upgrades, building renovations and building expansion projects. Staff anticipate additional needs with the purchase of a new City Hall building and the technology upgrade project at the Fort Worth Convention Center. These agreements and spending authority will be made available to Radio Services, Desktop, Hardware and Security divisions to purchase hardware and software for City departments as requested. It is requested that City Council ratify expenditures in the amount of$70,200.00. In anticipation of a new M&C, ITS staff executed a contract with Word Wide Technology LLC in the amount of$70,200.00. This expenditure was for professional services needed to upgrade our Unified Communications platforms. The platform was overdue for security and performance updates and there was limited in house experience. The quick turnaround was based on FY21 operational spend timelines. ITS Department will ensure that each vendor is given equal opportunity to earn a minimum of 10%of the business. No specific contract amount is guaranteed. PRICE ANALYSIS-The Texas Department of Information Resources Contracts(DIR)and The Interlocal Purchasing System Cooperative Contracts offer discounted pricing. Staff has reviewed the pricing and determined it to be fair and reasonable. COOPERATIVE PURCHASE-State law provides that a local government purchasing an item under a cooperative purchasing agreement satisfies any state law requiring that the local government seek competitive bids for the purchase of items. DIR and TIPS Contracts are competitively bid to increase and simplify the purchasing power of government entities. M/WBE- An MBE/SBE goal is not assigned when purchasing from an approved purchasing cooperative or public entity. ADMINISTRATIVE CHANGE ORDER: An administrative change order or increase may be made by the City Manager up to the amount allowed by relevant law and the Fort Worth City Code and does not require specific City Council approval as long as sufficient funds have been appropriated. SUCCESSOR LANGUAGE: The City will initially use these DIR Contracts to make purchases authorized by this M&C. The Cooperative Contracts are set to expire on various dates. If the DIR contracts are extended,this M&C authorizes the City to purchase similar equipment and supplies under the extended contract. If the DIR contracts are not extended, but DIR executes new cooperative contracts with substantially similar terms,this M&C authorizes the City to purchase the same equipment and supplies under the new DIR contracts. If this occurs, in no event will the City continue to purchase goods and services under the new DIR agreements past 2026 without seeking Council approval. AGREEMENT TERM: Upon City Council's approval,these agreements will be executed and continue for a term of 12 months in accordance with approval date of this request. The agreements will renew on an annual basis thereafter. The renewals do not require specific City Council approval as long as sufficient funds have been appropriated. RENEWAL TERMS-The Texas Department of Information Resources Contracts(DIR)Agreement may be renewed annually for five(5)one-year terms for the same annual amount. The Interlocal Purchasing System Cooperative Contracts may be renewed for one-year for the same annual amount. The renewals do not require specific City Council approval as long as sufficient funds have been appropriated. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that funds are available in the current capital and operating budgets, as previously appropriated, in the ITS Capital&Culture&Tourism Cap Projects Funds for the Technology Infrastructure-IT&Technology SCN FWCC projects and the General Fund to support the approval of the above recommendation and exection of the purchase agreements. Prior to any expenditure being incurred,the Information Technology Services Department has the responsibility to validate the availability of funds. Submitted for City Manager's Office by: Jay Chapa 5804 Valerie Washington 6192 Originating Business Unit Head: Reginald Zeno 8517 Kevin Gunn 2015 Additional Information Contact: Cynthia Garcia 8525 Ashley Kadva 2047 Expedited