HomeMy WebLinkAboutContract 57035 CSC No.57035
FORT WORT H
CITY OF FORT WORTH
COOPERATIVE PURCHASE AGREEMENT
This Cooperative Purchase Agreement ("Agreement") is entered into by and between Future Com,
LTD ("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-4160 Pricing Index;
3. Exhibit B— Cooperative Agency DIR-TSO-4160; 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 3 one-year renewal options 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 Vendorreasonable
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
To CITY: To VENDOR
City of Fort Worth Future Com, LTD.
Attn: Valerie Washington, Assistant City ATTN: Legal
Manager 3600 William D. Tate, Ste. 300
200 Texas Street Grapevine, TX 76051
Fort Worth, TX 76102-6314 Facsimile: 817-549-0404
Facsimile: (817) 392-8654 Email: legal@fcltd.net
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 attorney'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,except for third party manufactures products and services resold to the City and governed
by the manufactures licenses, support, maintenance or services agreements between the City and
manufacturer, 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 tocontinue
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, except for third party manufactures products and
services resold to the City and governed by the manufactures licenses, support, maintenance or services
agreements between the City and manufacturer,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
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.
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:
IG By signing I acknowledge that I am the person
By: Valerie Washington(Jan 24,202213:18 CST) 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 24,2022 n
APPROVAL RECOMMENDED: By: Bobby Lee(�,202212:10 CST)
Name: Bobby Lee
Title: Sr.IT Solutions Manager
By: APPROVED AS TO FORM AND LEGALITY:
Name: Kevin Gunn 44�4oa4��
Title: IT Solutions Director �x�F FORt�0
�o
ATTEST: p l d By:
n�vpg
Name: Taylor Paris
bpp
Title: Assistant City Attorney
By: J ette S.Goodall(Jan 25,2022 07 CST) CONTRACT AUTHORIZATION:
Name: Jannette Goodall M&C: 21-0753 9/28/21
Title: City Secretary
VENDOR:
Future Com LTD.
Digitally signed by Mark
Mark Williamson Williamson
By: Date: 2022.01.20 12:15:26-06'00'
Name: Mark Williamson
Title: CFO
Date: 01/20/2022
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
Exhibit A
Texas Depattment of Information Resoutces
DIR Conttact Number'DIR-TSO-4160 Appendix C,Peicing Index
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HPE Onsite Labor Rates
Amendment 2
HPE US Expanded Labor Rates and Uplift Fees Quick Reference Guide
Effective October 28,2020
All rates listed herein are subject to change without notice.
On-Site Labor Rates Solution Center Remote Labor Rates
(Software and Aoolication)
Enterprise Servers, Commercial Account
Hourly rates Associated Storage, Servers Support Linux a Novell
for U.S. Network,and (Proliants) Services pent/ S,Storage
0/S Nonstop OS and
excluding SGI Servers,Non-HPE and Associated (ASM) OpenVMS,Storage Microsoft Products Related Applications
Alaska and Equipment Storage Rates
Puerto Rico Per Hour Per Hour Single Per Hour Per Hour NotAvailable
Rate
Standard
business hours $310* $225 $295 $310 $310 NotAvailable
M-F 8 am-5 pm PN#HJ623AC PN#HJ623AC PN#HJ628AC PN#HJ628AC
After Hours
M-F 5 pm-8 am, $388* $281 $388 $310 $310** NotAvailable
Sat,Sun,and PN#HJ623AC PN#HJ623AC PN#HJ628AC PN#HJ628AC
HPE holidays (Level 1) (Level 1) (Levels) (Levels)
Minimum Hour Standard Business Hours 8-5 M-F: 1 Hr Min
Charge After Hours M-F,Saturday, Sunday and Holidays: 2 Hr Min
Software Non- Std Business Hrs$500
Contract Not Applicable PN#HJ632AC(Level 1) Not Applicable Not Available
Access Fee Other Days/Hrs$1500
PN#HJ632AC(Level 2)
Standard 3-5 Business Days Up to Next Business Up to Next
Response within 200miles Quote Only Day Business Not Available
Day
"After hours service Is not available for Microsoft.
Standard On-site Response Time
The response time for an on-site per event request (with credit approval) is 3 to 5 business days from the day the call is
accepted and logged bythe HPE Solution Center(Within 200 miles of the responding HPE support hub). See the HPE
Per Event Hardware Sunnort Technical Data Sheet for additional details.
Optional Expedited On-Site Response Fees
Deoendina on local HPE resource availability, customers may purchase expedited response. This service will be
subject to an expedited response fee that will vary depending on when the expedited response request is loaaed.
Expedited /After Hours Response Fees for Non-Contract QLfor Standard Warranty Customers
requesting service outside their coverage window
(no charge for travel,labor and parts apply if they are already covered under their warranty service level)
Same Day Response Next Day or Second Day Response DAY 3-5 Business Days
HJ616AC Level 0 HJ616AC Level 1 Standard Response
Standard business
hours Not available $700 Enterprise, Commercial No additional fee
M-F 8 am--5 pm (Standard Response)
[Aftea,,hpours M-F 5pm--
Sat,Sun and Not available $2500 Enterprise, Commercial $1800E holidays ($1800+$700)
Pagel
HPEOnsite Service Rates
Amendment 2
HPE US Expanded Labor Rates and Uplift Fees Quick Reference Guide
Effective October 28, 2020
All rates listed herein are subject to change without notice.
Expedited/ After Hours Response Fees for Customers with Existing HW Service Contract or
Support Services Coverage -HJ616AC Level 1
!To receive a 4 hr or scheduled resoonse on-site from time of call receiot) Subiect to Resource Availabilitv
8am 1 pm 5pm 9pm
Existing Coverage Time service request
received>
24x7x4hr Monday through Friday
Included in coverage-No charge
Response Sat,Sun,and HPE holidays
13x5x4hr Monday through Friday Included in coverage-No charge $1,800
Response 1
(M-F 8-9pm) Sat,Sun,and HPE holidays Included in Coverage-1 $1,800
9x5x4hr Response Monday through Friday No Charge *** I $1,80C
(M-F 8-5pm) Sat,Sun,and HPE holidays $1800
9x5xNBD Monday through Friday $2,50C
Next Business $700
Day Sat,Sun,and HPE holidays $2,500
Note: Expedited response 1s dependent on resource avallab111ty.
Calls placed during these times may be serviced on the same day depending on resources and estimated completion time.
HPE Per Event Remote Hardware Support
(Provided bythe Call Center
Hourly Rates for US Enterprise Commercial(ISS)
Standard Business Hours $265 per hour, $190 per hour,
M-F 8am-6 pm 1 hr min .5 hr min
HJ627AC HJ627AC
$331 per hour, $238 per hour,
ALL other days and times 2 hr min .5 hr min
HJ627AC(Level 1) HJ627AC(Level 1)
Response Time Up to Next Business Day Up to Next Business Day
If an HPE on-site per event response is needed complete the call,there is no charge for the remote HW support.
Page 2
HIPEOnsite Service Rates
Amendment 2
HPE US Expanded Labor Rates and Uplift Fees Quick Reference Guide
Effective October 28, 2020
All rates listed herein are subject to change without notice.
HPE Per Event Hardware Onsite Travel Zone Charles - Enterprise Systems
HJ631AC Level 1 HJ631AC Level HJ631AC Level 3 HJ631AC Level 4 HJ620AC HJ620AC
Zone'i fl 1 J J 1 5 .i
Mileage 2J 0-5 6-25 26-50 51-100 101-200 201-300 300+
Charaes $0 uo e on v Quote on iv
HPE Per Event Hardware Onsite Travel Zone Charges - Commercial Servers
HJ631AC Level 1 HJ631AC Level HJ631AC Level 3 HJ631AC Level 4 HJ620AC HJ62DAC
Zone',l fl 1 J J 1 5 .i
Mileage 2J 0-5 6-25 26-50 51-100 101-200 201-300 300+
Charaes $0 $95 $95 $210 $365 Quote onlv Quote onlv
1)Zone Fees do not apply to Nonstop. Nonstop Travel Fees will be calculated on actual travel time incurred(based on the hourly rate)
2)Mileage is measured from the closest HPE Designated support hub to the customer location as a radius
(radial distance).Zone Mileage definitions may vary in some locations.
Installation Services Expedited Response Fees
rNot aoolicable to NonSto J 31
DAYO DAY I DAY2 DAY 3+ Any Day
Same Day Next Day Two Day Three Day Additional Charge
Installation Installation Installation Installation for After-Hours
HJ615AC HJ615AC HJ615AC Installation start
Standard business Standard business Standard business Standard business (M-F 5pm-8am,
hrs M-F 8 am- hrs M-F 8 am-5 hrs M-F 8 am-5 hrs M-F 8 am-5 pm Saturday,Sunday and
5pm pm pm HPE Holidays
Standard Environment-$700
Enterprise 24x7 Environment-$350
Custom Quote $1200 $350 No charge
Servers
Mission Critical-Exempt
Commercial Standard Environment-$700
Servers 247 Environment-$350
(Proliants, Custom Quote $900 $350 No charge Legacy Critical Service,
Blade Servers) Proactive 24 and 24x7/CTR
Proactive Care Advanced-
Exemot!No charae uoliftl
Note:Expedited response is dependent on resource availability 3)NonStop Installation Services (INSTALLO-INSTALL9 and INSTALL-
OAH through INSTALL-9AH) quoted with the purchase of a NonStop server will continue to apply.
Page 3
HPE Onsite Service Rates
Amendment 2
HPE U.S. On-Site Services Rate Schedule
Labor Rates for:
Time and Materials - Hardware Support
Consulting Services
10/28/2020
All rates listed herein are subject to change without notice.
HPE Pointnext Commercial List Labor Rates
HPE Labor Category List rate/Hr
Technology Consultant II $185.00
Technology Consultant III $256.00
Technology Consultant IV $311.00
Technology Consultant V $326.00
Network Engineer II $185.00
Network Engineer III $256.00
Network Engineer IV $311.00
Network Engineer V $326.00
Storage Engineer II $185.00
Storage Engineer III $256.00
Storage Engineer IV $311.00
Storage Engineer V $326.00
System Admin III $256.00
System Admin IV $311.00
System Admin V $326.00
Project Manager III $256.00
Project Manager IV $316.00
Project Manager V $326.66
Logistician III $252.00
Logistician IV $312.00
Field Engineer III $231.00
Field Engiineer IV $280.00
Field Engineer V $294.00
Note on HPE Pointnext Commercial Labor Rates: List Rates do not include travel and living expenses. These
expenses will be billed separately.Applicable rates may be higher for persons with specific U.S Federal Government
security clearances. Resources will only be engaged via a legal quote/order or executed Statement of Work
between HPE and customer. Details of Roles and Responsibilities will be outlined in quote or Statement of Work.
Exhibit B
DIR Contract No. DIR-TSO-4160
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR PRODUCTS AND RELATED SERVICES
Hewlett Packard Enterprise Company
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 15`h Street,Suite 1300, Austin,Texas 78701,and Hewlett Packard
Enterprise Company (hereinafter"Vendor"), with its principal place of business at 300 Hanover
Street, Palo Alto,CA 94304.
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-417, on 1/12/2018, for Hewlett-Packard Manufacturer
Branded Hardware, Software, Cloud and Related Services and Services. Upon execution of this
Contract, a notice of award for RFO DIR-TSO-TMP-41.7 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,Software Licensing and Software and Hardware Support
Agreement;Appendix E,SaaS and Nonstop Products and Services Agreement;Exhibit 1,Vendor's
Response to RFO DIR-TSO-TMP-417,including all addenda;and Exhibit 2, RFO DIR-TSO-TMP-417,
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 two(2)optional two-year renewal periods.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.
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3. Product and Service Offerings
A. Products
Products available under this Contract are limited to servers, storage, networking products
and Related Services as specified in 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 1.B above.
B. Services
Services available under this Contract are limited to HPE branded technical and technology
Services as specified in Appendix C, Pricing Index. 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.
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.
S. 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(0.75%). 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)AII 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 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.
If sent to the State:
Kelly A Parker,CTPM,CTCM
Director,Cooperative Contracts
Department of Information Resources
300 W. 15111 St.,Suite 1300
Austin,Texas 78701
Phone: (512)475-1647
Facsimile:(512)475-4759
Email: kellv_narker(a7dir_texas_aov
If sent to the Vendor:
Mary A.Reuss
Hewlett Packard Enterprise Company
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DIR Contract No.DIR-TSO-4160
US Federal and SLED Contracts Office
One Discovery Square
12010 Sunset Hills Rd,3rd Floor
Reston, VA 20190
Phone:(512)319-0011
Email: mary.reuss@hpe.com
7. Software License,Service and Leasing Agreements
A. Software License Agreement
1) Customers acquiring software licenses under the Contract shall hold, use and operate
such software subject to compliance with the Software Licensing and Software and Support
Agreement set forth in Appendix D of this Contract. No changes to the Software Licensing and
Software and Hardware Support 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 the Customer and Vendor may agree to
additional terms and conditions that do not diminish a term or condition in the Software
Licensing and Software and Hardware Support Agreement,or in any manner lessen the rightsor
protections of Customer or the responsibilities or liabilities of Vendor. Order Fulfiller shall
make the Software Licensing and Software and Hardware Support Agreement terms and
conditions available to all Customers at all times.
2) Compliance with the Software Licensing and Software and Hardware Support Agreement is
the responsibility of the Customer. DIR shall not be responsible for any Customer's
compliance with the Software Licensing and Software and Hare Support Agreement. If DIR
purchases software licenses for its own use under this Contract, it shall be responsible for its
compliance with the Software Licensing and Software and Hardware and Support 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 HPE Branded Software. It is the
Customer's responsibility to read the Shrink/Click-wrap License Agreement and determine
if the Customer accepts the license terms.If the Customer doesnot agree with the license
terms, then 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 which the parties shall agree to in writing.
C. Service Agreements
Services provided under this Contract shall be in accordance with the Software Licensing and
Software and Hardware Support Agreement as set forth in Appendix D and the Saas and Nonstop
Products and Services Agreement as set forth in Appendix E of this Contract. No changes to the
Software Licensing and Software and Hardware Support Agreement or the Saas and Nonstop
Products and Services Agreement terms and conditions may be made unless previously agreed
to by Vendor and DIR.
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D. Master Lease Agreement
DIR and Vendor agree that a Master Lease Agreement may be added to the Contract by
amendment upon agreement of terms and conditions of both parties.
E. Conflicting or Additional Terms
In the event that conflicting or additional terms in Vendor Software 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 onor
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 a reseller who attempts to pass through documents and obligations
from its Manufacturer or Publisher.
8. Authorized Exceptions to Appendix A,Standard Terms and Conditions for Products and Related
Contracts,as listed beloware hereby added as follows:
A. Section 3. Definitions is hereby replaced in its entirety as follows:
A. Customer - 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
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DIR Contract No.DIR-TSO-4160
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) Anonprofit 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.
B. Compliance Check - an audit of Vendor's compliance with the Contract may be
performed by, but not limited to, a third party auditor, DIR Internal Audit department, or
DIR contract management staff or their designees.
C. Contract-the document executed between DIR and Vendor into which this Appendix A
is incorporated.
D. CPA-refers to the Texas Comptroller of Public Accounts.
E. Day- shall mean business days, Monday through Friday, except for State and Federal
holidays, unless otherwise specified as calendar days. If the Contract calls for
performance on a day that is not a business day,then performance is intended to occur
on the next business day.
F. Order Fulfiller-the party, either Vendor or a party that may be designated by Vendor,
who is fulfilling a Purchase Order pursuant to the Contract.
G. Purchase Order or 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).
H. State- refers to the State of Texas.
I. Affiliate of a party means an entity controlling, controlled by, or under common control
with,that party.
J. HPE Branded means Products and Services bearing a trademark or service mark of any
Hewlett Packard Enterprise Company or Affiliate.
K. Product means hardware and software listed in DIR-TSO-4160 Appendix C Pricing Index at
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DIR Contract No.DIR-TSO-4160
the time of HPE's acceptance of Customer purchase order, and including products that
are modified,altered,or customized to meet Customer requirements("Custom Products")
only if the Custom Support Service is detailed and listed in accordance with Appendix C
Pricing Index.
L.Technical Service means integration or other technical or customizable services performed
by HPE under a Statement of Work or other Supporting Materials only if the Technical
Service is detailed and listed in accordance with Appendix C Pricing Index.
M. Service means Support and Technical Services as detailed and listed in accordance with
Appendix C Pricing Index.
N. Specification means technical, information about Products published in HPE Product
manuals,user documentation,and technical data sheets in effect on the date HPE delivers
Products to Customer.
0. Support means hardware maintenance and repair, software maintenance, training,
installation and configuration,and other standard support services provided by HPE,and
includes "Custom Support," which is any agreed non-standard Support as described in a
Statement of Work only if the Custom Support Service is detailed and listed in accordance
with Appendix C Pricing Index.
P. Supporting Material may include (as examples) product lists, hardware or software
specifications, standard or negotiated service descriptions, data sheets and their
supplements, and Statements of Work, published warranties and service level
agreements, and may be available to Customer in hard copy or by accessing a designated
Vendor website.
B. Section 4.General Provisions, B. Modification of Contract Terms and/or Amendments,
2)is hereby replaced in its entirety as follows:
2)Customers shall not have the authority to modify the terms of the Contract; however,
additional Customer terms and conditions that do not conflict with the Contract and are
acceptable to Order Fulfiller may be added in a Purchase Order or Statement of Work and
given effect. No additional term or condition added in a Purchase Order issued by a
Customer can conflict with or diminish a term or condition of the Contract. Pre-printed
terms and conditions on any Purchase Order issued by Customer hereunder will have no
force and effect. In the event of a conflict between a Customer's Purchase Order and the
Contract,the Contract term shall control.
C. Section 5.Intellectual Property Matters,A.Definitions, 1)is hereby replaced in its
entirety as follows:
1) "Work Product"or"Deliverables"means any and all Deliverables produced by Vendor
for Customer under a Statement of Work issued pursuant to this Contract, including any
and all tangible items or things that have been prepared,created, developed, invented or
conceived at any time following the effective date of the Contract.
D. Section 5.Intellectual Property Matters,A.Definitions,3)is hereby replaced in its
entirety as follows:
3) "Statement of Work"means a document signed by Customer and Vendor describing
a specific set of activities and/or deliverables.
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DIR Contract No.DIR-TSO-4160
E. Section 5.Intellectual Property Matters,A.Definitions,4)is hereby replaced in its entirety
as follows:
4) "Third Party IP" means the Intellectual Property Rights of any third party not a party
to this Contract.
F. Section 5.Intellectual Property Matters,A.Definitions,5)is hereby replaced in its entirety
as follows:
5) "Vendor IP" means, as between Vendor and Customer, Vendor's ownership of all
materials, software (whether written or machine-readable) and the copyrights, patents,
trademarks, trade secrets and all other(a)owned by or licensed to Vendor or one of its
Affiliates prior to the Effective Date of the Contract; (b) all Intellectual Property Rights
developed by Vendor or one of its Affiliates outside the scope of this Contract, and (c) all
modifications,enhancements,and derivative works thereof.
G. Section 5. Intellectual Property Matters, B.Ownership is hereby replaced in its entirety
as follows:
B.Ownership
As between Vendor and Customer,
a) The Deliverable(s) and all Intellectual Property Rights associated with the
Deliverable(s)will be owned by the Vendor at creation and will not be considered works
made for hire.The Vendor grants to the Customer a non-exclusive,royalty-free, site-
wide, irrevocable license to use, copy, and distribute the Deliverable(s)and related
documentation according to the terms and conditions of this Contract and Supporting
Materials. For the purposes of this license, "site-wide" includes any Customer office
regardless of its physical location. Customer may further sublicense those Deliverables
to its Affiliates or third party service providers, strictly in furtherance of Customer's
internal use.
b) Customer may modify the Deliverable(s) and may combine such with other
programs or materials to form a derivative work. Customer will own and hold all
copyright, trademark, patent and other intellectual property rights in any derivative
work, excluding any rights or interest in the Deliverable(s)other than those granted in
this Contract.
c) The Customer may copy the Deliverable(s)to multiple hard drives or networks.
d)The Customer may copy the Deliverable(s) in the course of routine backups for the
purpose of recovery.
e) In the event that the Vendor ceases to conduct business, or ceases to support the
Deliverable(s), the Customer's license will not cease. The license may be terminated if
used in a manner that would violate the terms of this Contract and Supporting Material.
f) Notwithstanding the license grants,any Third Party IP incorporated into anylicensed
Deliverable(s)will be subject to the license terms applicable to such Third Party IP.
g) The Customer and the Vendor will continue to own their respective Intellectual
Property Rights developed before entering into theContract or developed outside the
scope of this Contract,and all modifications or derivative works thereof. Any software
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DIR Contract No.DIR-TSO-4160
licensed through the Vendor and sold to the Customer will be licensed directly to the
Customer.
H. Section S. Intellectual Property Matters, C. Further Actions is hereby replaced in its
entirety as follows:
C.Further Actions
Vendor, upon request and without further consideration, shall perform any acts that may
be deemed reasonably necessary or desirable by Customer to evidence more fully the
transfer of ownership and/or registration of applicable Intellectual Property Rights in the
Work Product to Customer including but not limited to the execution, acknowledgement
and delivery of such further documents in a form agreed by the parties.
I. Section 5.Intellectual Property Matters,D.Waiver of Moral Rights is hereby replaced in
its entirety as follows:
D.Waiver of Moral Rights
Vendor hereby irrevocably and forever waives, and agrees never to assert, any Moral
Rights in any portion of the Work Product that contains"Customer"content,which Vendor
may now have or which may accrue to Vendor's benefit under U.S.or foreign copyright or
other laws and any and all other residual rights and benefits which arise under any other
applicable law now in force or hereafter enacted. Vendor acknowledges the receipt of
equitable compensation for its assignment and waiver of such Moral Rights. The term
"Moral Rights" shall mean any and all rights of paternity or integrity of the Work Product
and the right to object to any modification,translation or use of the Work Product,and any
similar rights existing under the judicial or statutory law of any country in the world or
under any treaty, regardless of whether or not such right is denominated or referred to as
a moral right.
J. Section S.Intellectual Property Matters,E.Confidentiality is hereby replaced in its entirety
as follows:
E.Confidentiality
In the performance of the Services hereunder, either party may receive or have access to
documents, technical information, information about product plans and strategies,
promotions,customers,and related technical,financial or business information,which the
disclosing party considers to be the confidential information of that party or its third party
contractors or suppliers ("Confidential Information"). The following will apply to any
such Confidential Information to the extent consistent with the Texas Public
Information Act and its trade secret exemptions:
1) Before any Confidential Information is disclosed, the parties will first agree to
disclose and receive such information in confidence. If then disclosed, the
Confidential Information will be marked as confidential at the time of disclosure, or if
disclosed orally but stated to be confidential, will be designated as confidential in a
writing by the disclosing party summarizing the Confidential Information disclosed and
sent to the receiving party within thirty(30)days after such oral disclosure;
2) Confidential Information may be used by the receiving party only with respect to
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DIR Contract No.DIR-TSO-4160
the performance of its obligations under this Contract, and only by the employees or
contractors of the receiving party and its employees,agents or contractors who have
a need to know such information for purposes of this Contract. The receiving party
will protect,and will ensure that its employees,agents and contractors will protect,the
disclosed Confidential Information by using the same degree of care, but no less than a
reasonable degree of care, to prevent the unauthorized use, dissemination or
publication of the Confidential Information as the receiving party uses to protect its
own confidential information of alike nature;
3) The receiving party's confidentiality obligation will be for a period of three(3)years
after the date of disclosure. IF CUSTOMER REQUIRES ITS'CONFIDENTIAL
INFORMATION TO BE PROTECTED BEYOND THIS PERIOD, CUSTOMER MUST
NEGOTIATE FURTHER TERMS WITH VENDOR, INCLUDING CERTIFICATION AS
COMPLETELY RETURNED OR DESTROYED.
4) The confidentiality obligations of the parties will not extend to information that:
a) was in the receiving party's possession before receipt from the disclosing
party;
b) is or becomes publicly known without breach by the receiving party;
c) is rightfully received by the receiving party from a third party without a
duty of confidentiality;
d) is independently developed or learned by the receiving party;
e) is disclosed by the receiving party with thedisclosing party's prior written
approval;or
f) is required to be disclosed pursuant to the Texas Public Information Act
and its trade secret exemptions.
K. Section 5. Intellectual Property Matters,I.Third-Party Underlying and Derivative Works
is hereby replaced in its entirety as follows:
I.Third-Party Underlying and Derivative Works
In all instances, in its'SOW or quote,and before contracting with a customer the Vendor
will disclose the use or incorporation of any Third Party IP into the Work Product or
Deliverables and a description of the ownership and use rights that will be provided to the
Customer.At the time of delivery,the Vendor will provide in writing the name and use
of any Third Party IP,including information regarding the Vendor's authorization to include
and utilize such Third Party IP. The notice shall include a copy of any ownership
agreement or license that authorizes the Vendor to use the Third Party IP, If Vendor
procures any Third Party IP for the State,then Vendor must assign or otherwise transfer
to the State, or afford the State the benefits of, any license rights, including the
manufacturer's warranty, for the Third Party IP.
L. Section 5.Intellectual Property Matters, J. Agreement with Subcontracts is hereby
replaced in its entirety as follows:
J.Agreement with Subcontracts
Vendor agrees that it shall have written agreement(s) that are consistent with the
provisions hereof related to Work Product and Intellectual Property Rights with any
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DIR Contract No.DIR-TSO-4160
employees, agents, consultants, contractors or subcontractors providing Services or Work
Product pursuant to the Contract, prior to their providing such Services or Work Product,
and that it shall maintain such written agreements at all times during performance of this
Contract, which are sufficient to support all performance and grants of rights by Vendor.
Copies of such agreements shall be provided to the Customer promptly upon request.
Vendor may redact confidential information, but in any event must provide copies
sufficient to ensure Vendor's compliance with this section.
M. Section S.Intellectual Property Matters, L.Vendor Development Rights is hereby
replaced in its entirety as follows:
L.Vendor Development Rights
To the extent not inconsistent with Customer's rights in the Work Product or as set forth
herein, nothing in this Contract shall preclude Vendor from developing for itself, or for
others, materials which are competitive with those produced as a result of the Services
provided hereunder,provided that no Work Product is utilized,and no Intellectual Property
Rights of Customer therein are infringed by such competitive materials.
N. Section 7. Contract Fulfillment and Promotion,C.Product Warranty and Return Policies
is hereby replaced 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 than warranty and return policies for other similarly situated
Customers for like products,or more costly consistent with section 8.C.3.
0. Section 8. Pricing,Purchase Orders,Invoices,and Payments,C.Customer Price,3) is
hereby replaced in its entirety as follows:
3) During the Contract term, if pricing for products,specific product configurations,or
services available under this Contract is provided by the Vendor at a lower price to: (i)an
eligible Texas Customer who is not purchasing those products, specific product
configurations, or services under this Contract or(ii)to any other entity or consortia
authorized by Texas law to sell said products and services to eligible Texas Customers,
under like termsand conditions provided for the State for those commodities and services
under this Contract,then the available Customer Price in this Contract shall be adjusted
to that lower price. This requirement only applies to products, specific product
configurations,or services quoted by Vendor for a quantity of one (1)under like terms
and conditions,and does not apply to volume or special pricing purchases.To the extent
that either party identifies and confirms that better pricing is offered by Contractor in
accordance with this section, both parties will utilize best efforts to amend this Contract
within ten(10)days to reflect the lower price.Any Contract price changes pursuant to
this section shall be effective for all transactions between Vendor and DIR Customers
entered into on or after the date that the transaction, including the lower price was
identified.
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P. Section 10. Vendor Responsibilities,A. Indemnification,2) is hereby replaced 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
ASSIGNEES FROM ANY AND ALL LIABILITY,ACTIONS,CLAIMS,DEMANDS,OR SUITS,AND
ALL RELATED COSTS,ATTORNEY FEES,AND EXPENSES arising out of,or resulting from any
acts or omissions of the Vendor or its agents,employees,subcontractors,Order Fulfillers,
or suppliers of subcontractors in the execution or performance of the Contract and any Purchase
Orders issued under the Contract. THE DEFENSE SHALL BE COORDINATED BY VENDOR
WITH THE OFFICE OF THE 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 FROM THE OFFICE OF THE ATTORNEY
GENERAL.VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE
TO EACH OTHER OF ANY SUCH CLAIM.
Q. Section 10.Vendor Responsibilities,A.Indemnification,3)Infringements,a)is hereby
replaced in its entirety as follows:
a) VENDOR SHALL INDEMNIFY AND HOLD HARMLESS THE STATE OF TEXAS AND
CUSTOMERS, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS,
AND/OR ASSIGNEES FROM ANY AND ALL THIRD PARTY CLAIMS, WHICH PERTAIN TO HPE
BRANDED PRODUCTS AND SERVICES, INVOLVING INFRINGEMENT OF UNITED STATES
PATENTS,COPYRIG HTS, TRADE AND SERVICE MARKS,AND ANY OTHER INTELLECTUAL OR
INTANGIBLE PROPERTY RIGHTS IN CONNECTION WITH THE PERFORMANCES ORACTIONS 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 COSTS OF DEFENSE INCLUDING ATTORNEYS,FEES,
VENDOR-NEGOTIATED SETTLEMENT_AMOUNTS,AND COURT-AWARDED DAMAGES.THE
DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE 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 FROM THE OFFICE OF THE ATTORNEY GENERAL.
R. Section 10. Vendor Responsibilities,A. Indemnification,3) Infringements,b)is hereby
replaced in its entirety as follows:
b)Vendor shall have no liability under this section if the alleged infringement is caused in
whole or in part by:(i)use of the product or service for a purpose or in a manner for which
the product or service was not designed, (ii) any modification made to the product
without Vendors written approval, (iii) any modifications made to the product by the
Vendor pursuant to Customers specific instructions, (iv) any intellectual property right
owned by or licensed to Customer, (v)any use of the product or service by Customer that
is not in conformity with the terms of any applicable license agreement, or(vi) use of the
product or service in combination with product or services not provided under the
Contract.
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S. Section 10.Vendor Responsibilities,A.Indemnification,3)Infringements,d)is hereby added
in its entirety as follows:
d) Vendor will transfer to Customer any third party intellectual property infringement
indemnification for non-HP Branded Products, Software, and Services delivered under
the Contract and transferable to Customer.
T. Section 10.Vendor Responsibilities,K.Limitation of Liability is hereby replaced in its entirety
as follows:
K.Limitation of Liability
For any claims or cause of action arising under or related to the Contract:i)to the extent
permitted by the Constitution and the laws of the State, none of the parties shall be
liable to the other for any indirect,punitive,special,or consequential costs or damages
whether arising in contract,tort(including negligence)or otherwise, even if it is advised
of the possibility of such damages;and ii) Vendor's liability for damages of any kind to the
Customer shall be limited to the greater of$1,000,00 or a sum equal to three(3)times
the total amount paid to Vendor by Customer for all Orders placed by Customer under
the Contract during the twelve months immediately preceding the accrual of the claim
or cause of action. However,this limitation of Vendor's liability shall not apply to claims
of bodily injury;violation of intellectual property rights including but not limited to patent,
trademark, or copyright infringement as set forth in Appendix A, Section
10.A.3("Infringements").
U. Section 11.Contract Enforcement,B.Enforcement,1)Termination for Non-Appropriation
by Customer,is hereby replaced in its entirety as follows:
1)Termination for Non-Appropriation
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 111)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,
Customer will make reasonable efforts to provide Vendor with(30)calendar days written
notice of intent to terminate however, failure to do so will not change Customer's liability
or responsibility as set forth in 11.13.1.b., below. 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, nor shall it be liable for any damages or any other amounts which are caused by
or associated with such termination.
Department of Information Resources Page 12 of 16 (DIR rev 03/2018)
DIR Contract No.DIR-TSO-4160
b)Termination for Non-Appropriation by DIR
DIR may terminate Contract if funds sufficient to pay its obligations under the Contract
are not appropriated: by the i)Texas legislature, or ii)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 thirty(30)calendar days written notice of intent to terminate. In
the event of such termination, DIR will not beconsidered to be in default or breach under
this Contract, nor shall it be liable for any further payments ordinarily due under this
Contract(except for Products shipped and Support and Services performed to the extent
funds are available for payment), nor shall it be liable for any damages or any other
amounts which are caused by or associated with such termination.
V. Section 11.Contract Enforcement,B.Enforcement,4)Termination for Cause,b)is hereby
replaced in its entirety as follows:
b)Purchase Order
Customer or Order Fulfiller may terminate a Purchase Order upon the occurrence of a
material breach of any term or condition: (i) of the Contract, or (ii) included in the
Purchase Order in accordance with 4.b.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 thirty(30)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 andin addition to any other remedies
it may have available, cancel and terminate the Purchase Order. Customer may
immediately suspend or terminate a Purchase Order without advance notice in the event
Vendor fails to comply withconfidentiality, privacy, security requirements, environmental
or safety laws or regulations, if such non-compliance relates or may relate to vendor
provision of goods or services to the Customer.
W. Section 14. Additional Terms are hereby added in its entirety as follows:
14.Additional Terms
A. Products
a)Title. Risk of loss or damage and title for Hardware Products will pass upon delivery
to, and acceptance by, Customer or its designee. Where permitted by law, Vendor
retains a security interest in Products sold until full payment is received.
b)Delivery.Vendor will use all commercially reasonable efforts to deliver Products in
a timely manner. Vendor may elect to deliver Software and related product/license
information by electronic transmission or via download.
c)Installation. If Vendor is providing installation with the Product purchase,Vendor's
site guidelines(available upon request)will describe Customer requirements. Vendor
will conduct its standard installation and test procedures to confirm completion and
acceptance by customer.
d) Product Performance.All HPE Branded Hardware Products are covered by Vendor's
limited warranty statements that are provided with the products or
Department of Information Resources Page 13 of 16 (DIR rev 03/2018)
DIR Contract No.DIR-TSO-4160
otherwise made available. Hardware warranties begin on the date of delivery or if
applicable, upon completion of Vendor installation, or (where Customer delays
Vendor installation) at the latest 30 days from the date of delivery. Non-Vendor
branded products receive warranty coverage as provided by the relevant third party
supplier.
e) Product Warranty Claims. When Vendor receives a valid warranty claim for a
Vendor Hardware or Software Product,Vendor will either repair the relevant defect or
replace the Product. If Vendor is unable to complete the repair or replace the Product
within a reasonable time, Customer will be entitled to a full refund upon the prompt
return of the product to Vendor (if Hardware) or upon written confirmation by
Customer that the relevant Software product has been destroyed or permanently
disabled. Vendor will payfor shipment of repaired or replaced Hardware or Software
Products to Customer. If under warranty,shipment cost will be Vendor's responsibility.
B. Services
a) Technical Services. Vendor will deliver any ordered Technical, training or other
Services as described in the applicable Supporting Material.
b)Technical Services Acceptance. The acceptance process (if any)will be described
in the applicable Supporting Material,will apply only to the Deliverables specified,and
shall not apply to other Products or Services to be provided by Vendor.
c) Services Performance. Services are performed using generally recognized
commercial practices and standards. Customer agrees to provide prompt notice of
any such Service concerns and Vendor will re-perform any Service that fails to meet
this standard
d) Services with Deliverables. If Supporting Material for Services defines specific
Deliverables, Vendor warrants those Deliverables will conform materially to their
written specifications for 30 days following delivery. If Customer notifies Vendor of
such a non-conformity during the 30-day period, Vendor will promptly remedy the
impacted Deliverables or refund to Customer the fees paid for those deliverables and
Customer will return those Deliverables to Vendor via freight pre-paid and charged to
Vendor.
e) Dependencies. Vendor's ability to deliver Services will depend on Customer's
reasonable and timely cooperation and the accuracy and completeness of any
information from Customer needed to deliver the Services.
f) Change Orders. Vendor and Customer each agree to appoint a project
representative to serve as the principal point of contact in managing the delivery of
Services and in dealing with issues that may arise. Requests to change the scope of
Services or Deliverables will require a change order signed by both parties.
C. Support Services
HPE's support services will bedescribed in the applicable Supporting Material,which will
cover the description of HPE's offering, eligibility requirements, service limitations and
Customer responsibilities,as well as the Customer systems supported.
D. Eligibility
HPE's service,support and warranty commitments do not cover claims resulting from:
Department of Information Resources Page 14 of 16 (DIR rev 03/2018)
DIR Contract No.DIR-TSO-4160
a) improper use,site preparation, or site or environmental conditions or other non-
compliance with applicable Supporting Material;
b)Modifications or improper system maintenance or calibration not performed by
HPE or authorized by HPE;
c) failure or functional limitations of any non-HPE software or product impacting
systems receiving HPsupport or service;
d)malware(e.g.virus,worm,etc.)not introduced by HPE;or
e) abuse, negligence, accident,fire or water damage, electrical disturbances,
transportation by Customer,or other causes beyond HPE's control.
F. Compliance With Laws
Each partyshall,in the performance of all of its rights and obligations under this Contract,
comply with all applicable laws.
G. Remedies
HPE specifically disclaims implied warranties of merchantability,fitness for a particular
purpose,titleandnon-infringement.
Remainder of page intentionally left blank
Department of Information Resources Page 15 of 16 (DIR rev 03/2018)
DIR Contract No.DIR-TSO-4160
This Contract is executed to be effective as of October 2, 2018.
Hewlett Packard Enterprise Company
Authorized By: Sinnature on File
Name: Mary A. Ruess
Title: Contract Negotiator
Date: September 25 2018
The State of Texas, acting by and through the Department of Information Resources
Authorized By: Sianature on File
Name: Hershel Becker
Title: Chief Procurement Officer
Date: September 30,2018
Office of General Counsel: r)R Santemher 28 2018
Department of Information Resources Page 16 of 16 (DIR rev 03/2018)
Exhibit C
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO
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 Section 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.
jJ Name of vendor who has a business relationship with local governmental entity.
Future Com, LTD
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 71h business day after the date on which
you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3 Name of local government officer about whom the information is being disclosed.
None
Name of Officer
4 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 relationship described. Attach additional pages to this Form
CIQ 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?
F] Yes E-1 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?
71 Yes Fl No
s 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
`A, Digitally signed by Mark Williamson
Mar YYi hamson Date:2022.01.20 12:16:02-06'00' 01/20/2022
Signature of vendor doing business with the governmental entity Date
Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015
CONFLICT OF INTEREST QUESTIONNAIRE
For vendor doing business with local governmental entity
Acomplete copy of Chapter 176 of the Local Government Code may be found at http://vvww.statutes.legis.state.tx.us/
Docs/LG/htm/LG.176.htm. For easy reference,below are some of the sections cited on this form.
Local Government Codes 176.001(1-al:"Business relationship"means a connection between two or more parties
based on commercial activity of one ofthe parties. The term does not include a connection based on:
(A) a transaction 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 goods or 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 Codes 176.003(al(21(Al and(Bl:
(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 thatthe 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 a family 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
(ii) the local governmental entity is considering entering into a contract with the vendor.
Local Government Code& 176.006(a) and (a-1)
(a) A vendor 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 a 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)(B),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 dayafter 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) ofa family relationship with a local government officer.
Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015
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