HomeMy WebLinkAboutContract 57199 CSC No.57199
FORT WORTH
CITY OF FORT WORTH
COOPERATIVE PURCHASE AGREEMENT
This Cooperative Purchase Agreement ("Agreement") is entered into by and between World Wide
Technology, LLC ("Seller") and the City of Fort Worth, ("Buyer"),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—City's Terms and Conditions;
3. Exhibit B —Conflict of Interest Questionnaire;
5. Exhibit C —DIR-TSO-4299 Pricing Index; and
6. Exhibit D — Cooperative Agency Contract and Amendment (e.g., NJPA, DIR,
BuyBoard); and
Exhibits A, B, C, and D which are attached hereto and incorporated herein, are made a part of
this Agreement for all purposes. Seller agrees to provide Buyer with the services and goods included in
Exhibit C pursuant to the terms and conditions of this Cooperative Purchase Agreement, including all
exhibits thereto. In the event of a conflict between Exhibit A—City's Terms and Conditions and Exhibit
C — [Cooperative Agency Contract], then Exhibit A — City's Terms and Conditions shall control, but
only to the extent allowable under the Texas Department of Information Resources Contract DIR-TSO-
4299.
Buyer shall pay Seller in accordance with the fee schedule in Exhibit C and in accordance with
the provisions of this Agreement. Total payment made under this Agreement for the first year by Buyer
shall be in the amount of six million, nine hundred and thirty-four thousand Dollars ($6,934,000.00).
Seller shall not provide any additional items or services or bill for expenses incurred for Buyer not
specified by this Agreement unless Buyer requests and approves in writing the additional costs for such
services. Buyer shall not be liable for any additional expenses of Seller not specified by this Agreement
unless Buyer first approves such expenses in writing.
The term of this Agreement is effective beginning on the date signed by the Assistant City
Manager below ("Effective Date") and expires on September 27, 2022 to coincide with the Cooperative
Purchase Agreement. City shall be able to renew this agreement for I one-year renewal options by
written agreement of the parties.
The undersigned represents and warrants that he or she has the power and authority to execute
this Agreement and bind the respective Vendor.
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
CITY OF FORT WORTH:
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person
By. Valerie Washington(Mar3,2.022 17:05 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: Mar 3, 2022
APPROVAL RECOMMENDED: By: Bobby Lee(Feb 21,202213:50 CST)
Name: Bobby Lee
Title: Sr. IT Solutions Manager
By: APPROVED AS TO FORM AND LEGALITY:
Name: Kevin Gunn
Title: IT Solutions Director
ATTEST: By:
Name: Taylor Paris
Title: Assistant City Attorney
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By: Jannette S.Goodall(Mar4,2022 07:23 CST) pq, OR ��a CONTRACT AUTHORIZATION:
Name: Jannette Goodall O�-F 0000-�L�a� M&C: 21-0753 9/28/2021 .
Title: City Secretary P�0 09�
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By:
Name: Gregory Brush
Title: Area VP Public Sector
Date: February 21,2022
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
Exhibit A
CITY OF FORT WORTH, TEXAS
STANDARD PURCHASING TERMS AND CONDITIONS
1.0 DEFINITION OF BUYER
The City of Fort Worth, its officers, agents, servants, authorized employees, vendors and
subcontractors who act on behalf of various City departments, bodies or agencies.
2.0 DEFINITION OF SELLER
The Vendor(s), consultant, supplier, its officers, agents, servants, employees, vendors and
subcontractors, or other provider of goods and/or services who act on behalf of the entity under
a contract with the City of Fort Worth.
3.0 TERM
This Agreement shall begin on the date signed by the Assistant City Manager below ("Effective
Date") and shall expire on September 27, 2022 ("Expiration Date"), unless terminated earlier in
accordance with this Agreement("Initial Term"). City shall be able to renew this agreement for
1 one-year renewal options by written agreement of the parties.
4.0 PUBLIC INFORMATION
Buyer is a government entity under the laws of the State of Texas and all documents held or
maintained by Buyer are subject to disclosure under the Texas Public Information Act. In the
event there is a request for information marked Confidential or Proprietary, Buyer shall promptly
notify Seller. It will be the responsibility of Seller to submit reasons objecting to disclosure. A
determination on whether such reasons are sufficient will not be decided by Buyer, but by the
Office of the Attorney General of the State of Texas or by a court of competent jurisdiction
PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS
No officer or employee of Buyer shall have a financial interest, direct or indirect,in any contract
with Buyer or be financially interested, directly or indirectly, in the sale to Buyer of any land,
materials, supplies or services, except on behalf of Buyer as an officer or employee. Any willful
violation of this section shall constitute malfeasance in office, and any officer or employee found
guilty thereof shall thereby forfeit his office or position
Any violation of this section with the knowledge, expressed or implied, of the person or
corporation contracting with the City Council shall render the contract invalid by the City
Manager or the City Council. (Chapter XXVII, Section 16, City of Fort Worth Charter).
5.0 ORDERS
5.1 No employees of the Buyer or its officers, agents, servants, vendors or subvendors who
act on behalf of various City departments, bodies or agencies are authorized to place
orders for goods and/or services without providing approved contract numbers,purchase
order numbers, or release numbers issued by the Buyer. The only exceptions are
Purchasing Card orders and emergencies pursuant to Texas Local Government Code
Section 252.022(a)(1), (2), or (3). In the case of emergencies, the Buyer's Purchasing
Division will place such orders.
5.2 Acceptance of an order and delivery on the part of the Seller without an approved contract
number, purchase order number, or release number issued by the Buyer may result in
rejection of delivery, return of goods at the Seller's cost and/or non-payment.
6.0 TITLE AND RISK OF LOSS
The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and
takes possession of the goods at the point or points of delivery.
7.0 DELIVERY TERMS AND TRANSPORTATION CHARGES
Freight terms shall be F.O.B. Destination, Freight Prepaid and Allowed.
8.0 PLACE OF DELIVERY
The place of delivery shall be set forth in the "Ship to" block of the purchase order, purchase
change order, or release order.
9.0 RIGHT OF INSPECTION
Buyer shall have the right to inspect the goods upon delivery before accepting them. Seller shall
be responsible for all charges for the return to Seller of any goods rejected as being
nonconforming under the specifications.
10.0 INVOICES
10.1 Seller shall submit separate invoices in duplicate, on each purchase order or purchase
change order after each delivery. Invoices shall indicate the purchase order or purchase
change order number. Invoices shall be itemized and transportation charges, if any, shall
be listed separately. A copy of the bill of lading and the freight waybill,when applicable,
should be attached to the invoice. Seller shall mail or deliver invoices to Buyer's
Department and address as set forth in the block of the purchase order, purchase change
order or release order entitled "Ship to." Payment shall not be made until the above
instruments have been submitted after delivery and acceptance of the goods and/or
services.
10.2 Seller shall not include Federal Excise, State or City Sales Tax in its invoices. The Buyer
shall furnish a tax exemption certificate upon Seller's request.
10.3 Payment. All payment terms shall be "Net 30 Days" unless otherwise agreed to in
writing. Before the 1st payment is due to Seller, Seller shall register for direct deposit
payments prior to providing goods and/or services using the forms posted on the City's
website".
11.0 PRICE WARRANTY
11.1 Seller warrants that no person or selling agency has been employed or retained to solicit
or secure this contract upon an agreement or understanding for commission, percentage,
brokerage or contingent fee,excepting employees of an established commercial or selling
agency that is maintained by Seller for the purpose of securing business. For breach or
violation of this warranty, Buyer shall have the right, in addition to any other right or
rights arising pursuant to said purchase(s), to cancel this contract without liability and to
deduct from the contract price such commission percentage, brokerage or contingent fee,
or otherwise to recover the full amount thereof.
12.0 PRODUCT WARRANTY
To the extent Seller has not notified the Buyer otherwise, Seller warrants that the goods furnished
will conform to Buyer's specifications, drawings and descriptions listed in the proposal invitation,
and the sample(s) furnished by Seller, if any. In the event of a conflict between Buyer's
specifications, drawings, and descriptions, Buyer's specifications shall govern.
13.0 WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY
13.1 The SELLER warrants that to its knowledge all Deliverables provided under a
SOW, or any part thereof, furnished hereunder, including but not limited to:
programs, documentation, software, analyses, applications, methods, ways, and
processes (in this Section each individually referred to as a "Deliverable" and
collectively as the "Deliverables,") do not infringe upon or violate any patent,
copyrights, trademarks, service marks, trade secrets, or any intellectual property
rights or other third party proprietary rights, in the performance of services under
this Agreement.
13.2 SELLER shall be liable and responsible for any and all claims made against the
Buyer for infringement of any patent, copyright, trademark, service mark, trade
secret, or other intellectual property rights by the use of or supplying of any
Deliverable(s) in the course of performance or completion of, or in any way
connected with providing the services, or the Buyer's continued use of the
Deliverable(s) hereunder; provided, however, SELLER shall have no obligation
with respect to any infringement claim based upon (a) any use of the Deliverable
that is not in accordance with SELLER's documentation; (b) any use of the
Deliverable in combination with other products, equipment, software, or data not
supplied by SELLER if such infringement would not have arisen but for such
combination; or (c) any modification or alteration of the Deliverable by any person
other than SELLER.
13.3 SELLER agrees to defend, settle, or pay, at its own cost and expense, any claim or
action against Buyer for infringement of any patent, copyright, trade mark, trade
secret,or similar property right for which Seller is liable under Section 18.2,it being
understood that this agreement to defend, settle or pay shall not apply if Buyer
modifies or misuses the software and/or documentation. So long as SELLER bears
the cost and expense of payment for claims or actions against Buyer pursuant to this
section, SELLER 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,Buyer shall have the right to fully participate
in any and all such settlement, negotiations, or lawsuit as necessary to protect
Buyer's interest, and Buyer agrees to cooperate with SELLER in doing so. In the
event Buyer, for whatever reason, assumes the responsibility for payment of costs
and expenses for any claim or action brought against Buyer for infringement arising
under this Agreement, Buyer 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, SELLER shall fully participate and
cooperate with Buyer in defense of such claim or action. Buyer agrees to give
SELLER timely written notice of any such claim or action,with copies of all papers
Buyer may receive relating thereto. Notwithstanding the foregoing, Buyer's
assumption of payment of costs or expenses shall not eliminate SELLER's duty to
indemnify Buyer under this Agreement. If the software and/or documentation 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, SELLER shall, at its own expense and as Buyer's sole remedy, either: (a)
procure for Buyer the right to continue to use the software and/or documentation;
or (b) modify the software and/or documentation to make it non-infringing,
provided that such modification does not materially adversely affect
Buyer's authorized use of the software and/or documentation; or (c) replace the
software and/or documentation with equally suitable, compatible, and functionally
equivalent non-infringing software and/or documentation at no additional charge to
Buyer; or(d)if none of the foregoing alternatives is reasonably available to SELLER
terminate this Agreement, and refund all amounts paid to SELLER by Buyer,
subsequent to which termination Buyer may seek any and all remedies available to
Buyer under law; and
13.4 The representations, warranties, and covenants of the parties contained in section
13 through 17 of this Agreement will survive the termination and/or expiration of
this Agreement.
13.5 Buyer agrees that it will not intentionally disclose or transmit to Seller any personal
data (meaning any information relating to an identified or identifiable natural
person directly or indirectly), protected health information, customer information
or other structured personal information as defined by applicable data protection
laws(collectively"Protected Data").If Buyer inadvertently provides Protected Data
to Seller, it will promptly notify Seller, Seller will take commercially reasonably
measures to secure such Protected Data.
14.0 OWNERSHIP OF WORK PRODUCT
Seller agrees that any and all analyses, evaluations,reports,memoranda, letters, ideas,processes,
methods, programs, and manuals that were developed, prepared, conceived, made or suggested
by the Seller for the Buyer pursuant to a Work Order, including all such developments as are
originated or conceived during the term of the Contract and that are completed or reduced to
writing thereafter (the "Work Product") and Seller acknowledges that such Work Product may
be considered "work(s) made for hire" and will be and remain the exclusive property of the
Buyer; provided, however, that nothing in this agreement will be construed to restrict, impair or
deprive SELLER of any of its rights or proprietary interest in, and SELLER will own, its
technology, products, skill sets, concepts, tools, general software libraries and their contents,
know-how, techniques, and methods that existed prior to and independent of the performance of
services under this agreement or which SELLER or a third party may have refined during the
course of its performance To the extent that the Work Product, under applicable law, may not be
considered work(s)made for hire, Seller hereby agrees that this Agreement effectively transfers,
grants, conveys, and assigns exclusively to Buyer, all rights, title and ownership interests,
including copyright, which Seller may have in any Work Product or any tangible media
embodying such Work Product, without the necessity of any further consideration, and Buyer
shall be entitled to obtain and hold in its own name, all Intellectual Property rights in and to the
Work Product. Seller for itself and on behalf of its vendors hereby waives any property interest
in such Work Product.
15.0 CANCELLATION
Buyer shall have the right to cancel this contract immediately for default on all or any part of the
undelivered portion of this order if Seller breaches any of the terms hereof, including warranties
of Seller. Such right of cancellation is in addition to and not in lieu of any other remedies,which
Buyer may have in law or equity.
16.0 TERMINATION
16.1 Written Notice. The purchase of goods under this order may be terminated in whole or
in part by Buyer,with or without cause, at any time upon the delivery to Seller of a written
"Notice of Termination" specifying the extent to which the goods to be purchased under
the order is terminated and the date upon which such termination becomes effective. Such
right of termination is in addition to and not in lieu of any other termination rights of
Buyer as set forth herein.
16.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated
by Buyer in any fiscal period for any payments due hereunder, Buyer will notify Seller
of such occurrence and this Agreement shall terminate on the last day of the fiscal period
for which appropriations were received without penalty or expense to Buyer of any kind
whatsoever,except as to the portions of the payments herein agreed upon for which funds
have been appropriated.
16.3 Duties and Obligations of the Parties.Upon termination of this Agreement for any reason,
Seller shall only be compensated for items requested by the Buyer and delivered prior to
the effective date of termination, and Buyer shall not be liable for any other costs,
including any claims for lost profits or incidental damages. Seller shall provide Buyer
with copies of all completed or partially completed documents prepared under this
Agreement. In the event Seller has received access to Buyer Information or data as a
requirement to perform services hereunder, Seller shall return all Buyer provided data to
Buyer in a machine readable format or other format deemed acceptable to Buyer.
17.0 ASSIGNMENT/DELEGATION
No interest, obligation or right of Seller, including the right to receive payment, under this
contract shall be assigned or delegated to another entity without the express written consent of
Buyer. Any attempted assignment or delegation of Seller shall be wholly void and totally
ineffective for all purposes unless made in conformity with this paragraph. Prior to Buyer giving
its consent, Seller agrees that Seller shall provide, at no additional cost to Buyer, all documents,
as determined by Buyer, that are reasonable and necessary to verify Seller's legal status and
transfer of rights,interests, or obligations to another entity.The documents that may be requested
include, but are not limited to, Articles of Incorporation and related amendments, Certificate of
Merger, IRS Form W-9 to verify tax identification number, etc. Buyer reserves the right to
withhold all payments to any entity other than Seller, if Seller is not in compliance with this
provision. If Seller fails to provide necessary information in accordance with this section, Buyer
shall not be liable for any penalties, fees or interest resulting therefrom.
18.0 WAIVER
No claim or right arising out of a breach of this contract can be discharged in whole or in part by
a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by
consideration in writing and is signed by the aggrieved party.
19.0 MODIFICATIONS
This contract can be modified or rescinded only by a written agreement signed by both parties.
20.0 THE AGREEMENT
In the absence of an otherwise negotiated contract, or unless stated otherwise, the Agreement
between Buyer and Seller shall consist of these Standard Terms and Conditions together with
any attachments and exhibits. This Agreement is intended by the parties as a final expression of
their agreement and is intended also as a complete and exclusive statement of the terms of their
agreement.No course of prior dealings between the parties and no usage of trade shall be relevant
to supplement or explain any term used in this Agreement. Acceptance of or acquiescence in a
course of performance under this Agreement shall not be relevant to determine the meaning of
this Agreement even though the accepting or acquiescing party has knowledge of the
performance and opportunity for objection. Whenever a term defined by the Uniform
Commercial Code (UCC) is used in this Agreement, the definition contained in the UCC shall
control. In the event of a conflict between the contract documents, the order of precedence shall
be these Standard Terms and Conditions, and the Seller's Quote.
21.0 APPLICABLE LAW/VENUE
This agreement shall be governed by the Uniform Commercial Code wherever the term "Uniform
Commercial Code" or"UCC" is used. It shall be construed as meaning the Uniform Commercial
Code as adopted and amended in the State of Texas. Both parties agree that venue for any
litigation arising from this contract shall be in Fort Worth, Tarrant County, Texas. This contract
shall be governed, construed and enforced under the laws of the State of Texas.
22.0 INDEPENDENT CONTRACTOR(S)
Seller shall operate hereunder as an independent contractor and not as an officer, agent, servant
or employee of Buyer. Seller shall have exclusive control of, and the exclusive right to control,
the details of its operations hereunder, and all persons performing same, and shall be solely
responsible for the acts and omissions of its officers, agents, employees, vendors and
subcontractors. The doctrine of respondent superior shall not apply as between Buyer and Seller,
its officers, agents, employees,vendors and subcontractors.Nothing herein shall be construed as
creating a partnership or joint enterprise between Buyer and Seller, its officers, agents,
employees,vendors and subcontractors.
23.0 LIABILITY AND INDEMNIFICATION.
23.1 LIABILITY- SELLER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL
PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING
DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER
REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE GROSSLY NEGLIGENT
ACT(S) OR OMISSION(S), WILLFULLMISCONDUCT OF SELLER, ITS OFFICERS,
AGENTS,SERVANTS OR EMPLOYEES.
23.2 GENERAL INDEMNIFICATION- SELLER HEREBY COVENANTS AND AGREES TO
INDEMNIFY, HOLD HARMLESS AND DEFEND BUYER, ITS OFFICERS, AGENTS,
SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR
LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR
EITHER PROPERTYDAMAGE OR LOSS(INCLUDING ALLEGED DAMAGE OR LOSS
TO SELLER'SBUSINESSAND ANYRESULTING LOST PROFITS)AND/OR PERSONAL
INJURY,INCL UDING DEATH, TO ANY AND ALL PERSONS,ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE
GROSSLY NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF
SELLER,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES.
24.0 SEVERABILITY
In case any one or more of the provisions contained in this agreement shall for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this agreement,which agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.
25.0 FISCAL FUNDING LIMITATION
In the event no funds or insufficient funds are appropriated and budgeted in any fiscal period for
payments due under this contract, then Buyer will immediately notify Seller of such occurrence
and this contract shall be terminated on the last day of the fiscal period for which funds have
been appropriated without penalty or expense to Buyer of any kind whatsoever, except to the
portions of annual payments herein agreed upon for which funds shall have been appropriated
and budgeted or are otherwise available.
26.0 NOTICES TO PARTIES
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:
TO BUYER: TO SELLER:
City of Fort Worth World Wide Technology, LLC
Attn: Purchasing Manager Attn: Legal and Compliance
200 Texas Street 1 World Wide Way
Fort Worth, TX 76102-6314 St. Louis, MO 63146
Facsimile: (817) 392-8654 ,
With copy to Fort Worth City With a copy to Jake Henne
Attorney's Office at same address Jake.heene@wwt.com
27.0 NON-DISCRIMINATION
Seller, for itself, its personal representatives, assigns, subVendors and successors in interest, as
part of the consideration herein, agrees that in the performance of Seller's duties and obligations
hereunder, it shall not discriminate in the treatment or employment of any individual or group of
individuals on any basis prohibited by law. IF ANY CLAIM ARISES FROM AN ALLEGED
VIOLATION OF THIS NON-DISCRIMINATION COVENANT BY SELLER, ITS
PERSONAL REPRESENTATIVES, ASSIGNS, SUBVENDORS OR SUCCESSORS IN
INTEREST,SELLER AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY
AND DEFEND BUYER AND HOLD BUYER HARMLESS FROM SUCH CLAIM.
28.0 IMMIGRATION NATIONALITY ACT
Seller shall verify the identity and employment eligibility of its employees who perform work
under this Agreement, including completing the Employment Eligibility Verification Form (I-
9). Upon request by Buyer, Seller shall provide Buyer with copies of all I-9 forms and supporting
eligibility documentation for each employee who performs work under this Agreement. Seller
shall adhere to all Federal and State laws as well as establish appropriate procedures and controls
so that no services will be performed by any Seller employee who is not legally eligible to
perform such services. SELLER SHALL INDEMNIFY BUYER AND HOLD BUYER
HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO
VIOLATIONS OF THIS PARAGRAPH BY SELLER, SELLER'S EMPLOYEES,
SUBCONTRACTORS, AGENTS, OR LICENSEES. Buyer, upon written notice to Seller,
shall have the right to immediately terminate this Agreement for violations of this provision by
Seller.
29.0 HEALTH, SAFETY,AND ENVIRONMENTAL REQUIREMENTS
Services, products, materials, and supplies provided by the Seller must meet or exceed all
applicable health, safety, and the environmental laws, requirements, and standards. In addition,
Seller agrees to obtain and pay, at its own expense, for all licenses, permits, certificates, and
inspections necessary to provide the products or to perform the services hereunder. Seller shall
indemnify Buyer from any penalties or liabilities due to violations of this provision. Buyer shall
have the right to immediately terminate this Agreement for violations of this provision by Seller.
30.0 RIGHT TO AUDIT
Seller agrees that Buyer shall, until the expiration of three (3) years after final payment under
this contract, 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 Seller involving
transactions relating to this Agreement at no additional cost to Buyer. Seller agrees that Buyer
shall have access during normal working hours to all necessary Seller facilities and shall be
provided adequate and appropriate work space in order to conduct audits in compliance with the
provisions of this section. Buyer shall give Seller reasonable advance notice of intended audits.
The Buyer's right to audit, as described herein, shall survive the termination and/or expiration of
this Agreement.
31.0 DISABILITY
In accordance with the provisions of the Americans With Disabilities Act of 1990 (ADA), Seller
warrants that it and any and all of its subcontractors will not unlawfully discriminate on the basis
of disability in the provision of services to general public, nor in the availability, terms and/or
conditions of employment for applicants for employment with, or employees of Seller or any of
its subcontractors. Seller warrants it will fully comply with ADA's provisions and any other
applicable federal, state and local laws concerning disability and will defend,indemnify and hold
Buyer harmless against any claims or allegations asserted by third parties or subcontractors
against Buyer arising out of Seller's and/or its subcontractor's alleged failure to comply with the
above-referenced laws concerning disability discrimination in the performance of this agreement.
32.0 DISPUTE RESOLUTION
If either Buyer or Seller has a claim, dispute, or other matter in question for breach of duty,
obligations, services rendered or any warranty that arises under this Agreement, the parties shall
first attempt to resolve the matter through this dispute resolution process. The disputing party
shall notify the other party in writing as soon as practicable after discovering the claim, dispute,
or breach. The notice shall state the nature of the dispute and list the party's specific reasons for
such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a
good faith effort, either through email, mail, phone conference, in person meetings, or other
reasonable means to resolve any claim, dispute,breach or other matter in question that may arise
out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty
(60)days of the date of receipt of the notice of the dispute,then the parties may submit the matter
to non-binding mediation upon written consent of authorized representatives of both parties in
accordance with the Industry Arbitration Rules of the American Arbitration Association or other
applicable rules governing mediation then in effect. If the parties submit the dispute to non-
binding mediation and cannot resolve the dispute through mediation,then either party shall have
the right to exercise any and all remedies available under law regarding the dispute.
33.0 PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL
If Seller has fewer than 10 employees or this Agreement is for less than $100,000, this
section does not apply. Seller acknowledges that in accordance with Chapter 2270 of the Texas
Government Code, the Buyer is prohibited from entering into a contract with a company for
goods or services unless the contract contains a written verification from the company that it: (1)
does not boycott Israel; and(2)will not boycott Israel during the term of the contract. The terms
"boycott Israel" and "company" shall have the meanings ascribed to those terms in Section
808.001 of the Texas Government Code. By signing this contract, Seller certifies that Seller's
signature provides written verification to the Buyer that Seller: (1) does not boycott Israel;
and (2)will not boycott Israel during the term of the contract.
34.0 PROHIBITION ON BOYCOTTING ENERGY COMPANIES
Vendor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, as
added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2, the City is prohibited from entering into a
contract for goods or services that has a value of$100,000 or more that is to be paid wholly or
partly from public funds of the City with a company with 10 or more full-time employees
unless the contract contains a written verification from the company that it: (1) does not boycott
energy companies; and (2)will not boycott energy companies during the term of the contract.
The terms "boycott energy company" and "company" have the meaning ascribed to those
terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S.,
S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this
Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides
written verification to the City that Vendor: (1) does not boycott energy companies; and(2)
will not boycott energy companies during the term of this Agreement.
35.0 PROHIBITION ON DISCRIMINATION AGAINST FIREARM AND AMMUNITION
INDUSTRIES.
Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited
from entering into a contract for goods or services that has a value of$100,000 or more that is to
be paid wholly or partly from public funds of the City with a company with 10 or more full-time
employees unless the contract contains a written verification from the company that it: (1) does
not have a practice,policy, guidance, or directive that discriminates
36.0 INSURANCE REQUIREMENTS
36.1 Insurance.
36.1.1 The Vendor shall carry the following insurance coverage with a company that is
licensed to do business in Texas or otherwise approved by the City:
36.1.1.1 Commercial General Liability:
36.1.1.1.1 Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate; or
36.1.1.1.2 Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate and Umbrella Coverage in the amount
of$2,000,000. Umbrella policy shall contain a follow-form
provision and shall include coverage for personal and
advertising injury.
36.1.1.1.3 Defense costs shall be outside the limits of liability.
36.1.1.1.4 Automobile Liability Insurance covering any vehicle used in
providing services under this Agreement, including owned,
non-owned, or hired vehicles,with a combined limit of not
less than $1,000,000 per occurrence.
36.1.1.1.5 Professional Liability (Errors & Omissions) including
Network Security and Privacy Liability in the amount of
$2,000,000 per claim and $4,000,000 aggregate limit.
36.1.1.1.6 Statutory Workers' Compensation and Employers' Liability
Insurance requirements per the amount required by statute.
36.1.1.1.7 Coverage shall include, but not be limited to, the following:
36.1.1.1.7.1 Failure to prevent unauthorized access;
36.1.1.1.7.2 Unauthorized disclosure of information;
36.1.1.1.7.3 Technology coverage may be provided through an
endorsement to the Commercial General Liability
(CGL)policy, a separate policy specific to
Technology E&O, or an umbrella policy that picks up
coverage after primary coverage is exhausted. Either
is acceptable if coverage meets all other
requirements. Coverage shall be claims-made,with a
retroactive or prior acts date that is on or before the
effective date of this Agreement. Coverage shall be
maintained for the duration of the contractual
agreement and for two (2) years following completion
of services provided. An annual certificate of
insurance, shall be submitted to the City to evidence
coverage; and
36.2 General Insurance Requirements:
36.2.1 All applicable policies, except for Professional Liability, shall name the City as
an additional insured thereon, as its interests may appear. The term City shall
include its employees, officers, officials, agents, and volunteers in respect to the
contracted services.
36.2.2 The workers' compensation policy shall include a Waiver of Subrogation (Right
of Recovery) in favor of the City of Fort Worth.
36.2.3 A minimum of Thirty (30) days' notice of cancellation shall be provided to the
City. Ten (10) days' notice shall be acceptable in the event of non-payment of
premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000
Throckmorton, Fort Worth, Texas 76102,with copies to the City Attorney at the
same address.
36.2.4 The insurers for all policies must be licensed and/or approved to do business in
the State of Texas. All insurers must have a minimum rating of A-VII in the
current A.M. Best Key Rating Guide, or have reasonably equivalent financial
strength and solvency to the satisfaction of Risk Management. If the rating is
below that required,written approval of Risk Management is required.
36.2.5 Any failure on the part of the City to request required insurance documentation
shall not constitute a waiver of the insurance requirement.
36.2.6 Certificates of Insurance evidencing that the Vendor has obtained all required
insurance shall be delivered to and approved by the City's Risk Management
Division prior to execution of this Agreement.
Exhibit B—CONFLICT OF INTEREST QUESTIONNAIRE
Pursuant to Chapter 176 of the Local Government Code, any person or agent of a person who
contracts or seeks to contract for the sale or purchase of property, goods, or services with a local
governmental entity (i.e. The City of Fort Worth) must disclose in the Questionnaire Form CIQ
("Questionnaire") the person's affiliation or business relationship that might cause a conflict of
interest with the local governmental entity. By law, the Questionnaire must be filed with the Fort
Worth City Secretary no later than seven days after the date the person begins contract discussions
or negotiations with the Buyer, or submits an application or response to a request for proposals or
bids, correspondence, or another writing related to a potential agreement with the Buyer.Updated
Questionnaires must be filed in conformance with Chapter 176.
A copy of the Questionnaire Form CIQ is enclosed with the submittal documents.The form is also
available at http://www.ethics.state.tx.us/forms/CIo.pdf.
If you have any questions about compliance, please consult your own legal counsel. Compliance
is the individual responsibility of each person or agent of a person who is subject to the filing
requirement. An offense under Chapter 176 is a Class C misdemeanor.
NOTE: If you are not aware of a Conflict of Interest in any business relationship that you
might have with the Buyer, state Seller name in the # 1, use N/A in each of the areas on the
form. However, a signature is required in the #4 box in all cases.
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., Begular Session. OFRCE USE ONLY
This questionnaire is being filed in accordance with Chapter 176,Local GovemmentCode, Date Received
by a vendorwho has a business relationship as defined by Section 176.001(f-a)with a local
governmental entity and the vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filedwith the records administrator ofthe local governmental
entity not later than the 7th business day after the date the vendor becomes aware of facts
that require the statementto be filed. See Section 176.006(a-1),Local GovernmentCode.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local
Government Code.An offense underthis section is a misdemeanor.
Name of vendor who has a business relationship with local governmental entity.
Check this box ifyou are 111Ing an update to a previously filed questlonnalre.
(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_)
3
Name of local government offioer about whom the information Inthis section is being disclosed.
Name of Officer
This section(item 3 including subparts A, B. G, & D) must be completed for each officer with whom the vendor has ar
employment or other business relationship as defined by Section 176 001(1-a), Local Government Code_ Attach additional
pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income,other than investment
income,from the vendor?
F] Yes F7 No
B. Is the vendor receiving or likely to receive taxable income,other than investment income,from or at the direction of the local
governmer officer named in this section AND the taxable income is not received from the local governmental entity?
Yes F-1 No
C. Is the filer of this questionnaire employed by 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?
F] Yes = No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
Signature of vendor doing business with the governmental entity Date
Adopted 817f2015
Appendix C, Pricing Index
DI R-TSO-4299
EMC, Corp.
Product
Product Category Description DIR Customer
Category
Discount %off MSRP
A Hardware- Enterprise (Sym,Celerra) 44.00%
B Hardware- Mid-Tier(CLARiiON,Centera, NAS) 33.00%
C Connectrix Hardware and Software 34.00%
CL-E VMAX CE 10.00%
D1 Software- Enterprise Platform 23.00%
D2 Software- Mid-Tier Platform 33.00%
D3 Software- Multi-platform Open 23.00%
DD-1 I Data Domain Flash Enabled HW SW& Maintenance 20.00%
DE Entry Software (BRS: Data Domain) 32.00%
DH High-End Software(BRS: Data Domain,Avamar, Disk Library, Networker) 29.00%
DM Midrange Software (BRS: Data Domain,Avamar,Atmos, Disk Library) 29.00%
E EMC SW&HW,Switches 23.00%
EN-H Hardware-VMAX 10K/20K/40K 23.00%
EN-S Software-VMAX 10K/20K/40K 23.00%
ES-1 VMAX3 HW&SW, HW&SW 33.00%
ES-AF VMAX All Flash Array 18.00%
ES-PI lPowermax 18.00%
F1 Services 10.00%
F2 Custom Residency Services, EMC Select Services 10.00%
I Training/Education Services 10.00%
IS Isilon HW/SW/Maintenance 26.00%
IS2 I Isilon 2 HW/SW Maintenance 26.00%
J Server Flash,AX/NX, Insignia,Scalel0, DSSD 20.00%
PE Entry Systems(BRS: Data Domain) 32.00%
PH High-End Systems(BRS: Data Domain, Disk Library) 29.00%
PM 1 Midrange Systems(BRS: Data Domain,Avamar,Atmos, Disk Library) 29.00%
UE Unified Entry- Level Offerings 32.00%
UM VNX Hardware/Software/Maintenance 23.00%
UM-1 Unity Hardware/Software 10.00%
UM-F1 Unity All Flash Hardware/Software 10.00%
UM-H Hardware- Unified Mid-Tier-VNX 29.00%
UM-S Software- Unified Mid-Tier-VNX 29.00%
V Vipr 19.00%
VPLEX VPLEX HW,SW,and Maintenance 38.00%
X2 XtremlO 2 25.00%
XT lXtremlO 25.00%
MNT All Maintenance 5.00%
DIR Contract No. DIR-TSO-4299
Vendor Contract No.
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR PRODUCTS AND RELATED SERVICES
EMC Corporation, dba System Peripherals, 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 151"Street, Suite 1300,Austin,Texas 78701, and EMC Corporation,
dba System Peripherals, Inc. (hereinafter "Vendor"), with its principal place of business at 176
South Street, Hopkinton, Massachusetts 01748.
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-422, on March 20, 2018, for Data Storage, Data
Communications & Networking Equipment and Related Services. Upon execution of this
Contract, a notice of award for RFO DIR-TSO-TMP-422 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, Support Service and Professional Service Agreement;
Appendix E, Master Operating Lease Agreement;Appendix F, Master Lease Agreement; Exhibit 1,
Vendor's Response to RFO DIR-TSO-TMP-422, including all addenda; and Exhibit 2, RFO DIR-TSO-
TMP-422, including all addenda; are incorporated by reference and constitute the entire
agreement between DIR and Vendor governing purchase transactions. For Lease transactions
under this Contract the order of precedence shall be as follows:this Contract;Appendix E, Master
Operating Lease Agreement; Appendix F, Master Lease Agreement, as applicable depending on
the type of lease; 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. Support Service and Professional Services Agreement;
Exhibit 1, Vendor's Response to RFO DIR-TSO-TMP-422, including all addenda; and Exhibit 2, RFO
DIR-TSO-TMP-422, including all addenda; are incorporated by reference and constitute the entire
agreement between DIR and Vendor governing lease 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 Appendix F, then Exhibit 1, and finally Exhibit 2. In the event of a conflict
between the documents listed in this paragraph related to lease transactions, the controlling
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document shall be this Contract, then Appendix E or Appendix F, depending on the type of lease
transaction, then Appendix A, then Appendix B, then Appendix C, then Appendix D, 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 one (1) optional two-year renewal and one (1) optional one-year renewal.
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.
3. Product and Service Offerings
A. Products
Products available under this Contract are limited to Data Storage, Data Communications &
Networking Equipment 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 1.13 above.
B. Services
Services available under this Contract are limited to Data Storage, Data Communications &
Networking related 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 (.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 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.
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Vendor Contract No.
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. 15" St., Suite 1300
Austin,Texas 78701
Phone: (512) 475-1647
Facsimile: (512)475-4759
Email: kelly.parker@dir.texas.gov
If sent to the Vendor:
Tiffany Pabst
EMC Corporation, dba System Peripherals, Inc.
3017 Douglas Blvd., Ste 300
Roseville, CA 95661
Phone: 774-350-8224
Email:tiffany.pabst@dell.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 License Terms below and the End User
License Agreement (EULA). No changes to the Software 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 the Software License Terms and EULA,
however, that the Customer and Vendor may agree to additional terms and conditions that
do not diminish a term or condition in the Software License Terms, 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 available to all Customers at all
times.
2) Compliance with the Software License Terms is the responsibility of the Customer. DIR
shall not be responsible for any Customer's compliance with the Software License Terms. If
DIR purchases software licenses for its own use under this Contract, it shall be responsible for
its compliance with the Software License Term or shrink/click wrap license agreement, as
applicable.
3) Shrink/Click-wrap License Agreement
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 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.
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Vendor Contract No.
B. Software License Terms:
Definitions:
a) "Documentation" means the then-current, generally available, written user
manuals and online help and guides provided by EMC for Products.
b) "Products" mean "Equipment" (which is the EMC branded hardware delivered by
EMC to Customer) and/or"Software" (which is any programming code provided by
EMC to Customer as a EMC branded standard product, also including microcode,
firmware and operating system software).
c) Product Notice" means the Product and Services related information posted at the
applicable EMC website at the time of the EMC quote, currently located at
http://www.emc.com/products/warranty maintenance/index.isp.
d) "Software Release" means any subsequent version of Software provided by EMC
after initial Delivery of Software, but does not mean a new Product.
e) General License Grant. Vendor grants to Customer a non-exclusive, non-
transferable(except as specified in this Contract) license to use the Software and the
Documentation during the period of the license solely for Customer's internal
business operations, and subject to the provisions of this Contract. Unless otherwise
indicated in this Contractor or the applicable quote, licenses granted to Customer
will be perpetual, will be for use of object code only, and will commence on either
delivery of the physical media or the date Customer is notified of availability for
electronic download. Use of Software may require Customer to complete Vendor's
then current product registration process, if any, to obtain and input an
authorization key or license file.
f) Licensing Models. Software is licensed for use only in accordance with the
commercial terms and restrictions of the Software's relevant licensing model,which
are stated in the Product Notice and/or Vendor quote. For example, the licensing
model may provide that Software is licensed for use solely (i)for a certain number
of licensing units; (ii) on or in connection with a certain piece equipment, CPU,
network or other hardware environment; and/or (iii)for a specified amount of
storage capacity. Microcode,firmware or operating system software needed by the
Equipment with which it is shipped to perform its basic functions, is licensed for use
solely on such Equipment.
g) Copying Permitted. Customer may copy the Software and Documentation as
necessary to install and run the quantity of copies licensed, but otherwise for
archival purposes only.
h) License Restrictions. Without Vendor's prior written consent, Customer must not,
and must not allow any third party to: (i) use Software in an application services
provider,service bureau, or similar capacity for third parties; (ii) disclose to any third
party the results of any benchmarking testing or comparative or competitive
analyses of Vendor's Products done by or on behalf of Customer; (iii) make available
Software in any form to anyone other than Customer's employees or contractors
reasonably acceptable to Vendor and which require access to use Software on behalf
of Customer in a matter permitted by this Contract; (iv)transfer or sublicense
Software or Documentation to any third party; (v) use Software in conflict with the
terms and restrictions of the Software's licensing model and other requirements
specified in the Product Notice and/or Vendor quote; (vi) except to the extent
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Vendor Contract No.
permitted by applicable mandatory law, modify, translate, enhance, or create
derivative works from the Software, or reverse assemble or disassemble, reverse
engineer,decompile,or otherwise attempt to derive source code from the Software;
(vii) remove any copyright or other proprietary notices on or in any copies of
Software; or (viii)violate or circumvent any technological restrictions within the
Software or specified in this Contract, such as via software or services.
i) Software Releases. Software Releases shall be subject to the license terms
applicable to Software.
j) Records and Audit. Records and Audit shall be in accordance with DIR contract
number DIR-TSO-4299.
k) Termination of License. Termination of licenses shall be in accordance with DIR
contract number DIR-TSO-4299.
1) Reserved Rights. Vendor reserves all rights not expressly granted to Customer and
does not transfer any ownership rights in any Software.
m) Other License Terms. If a particular Product or component is provided with its own
license terms ("Separate License Terms"), typically in the form of a (i) "click-to-
accept" agreement included as part of the installation and/or download process, or
(ii) "shrink-wrap" agreement included in the packaging for the Product,or(iii) notice
indicating that by installation and/or use thereof the related license terms apply,
then, in case of conflict with the terms of this Contract,such Separate License Terms
shall (a) prevail with regard to Products or components for which Vendor is not the
licensor;and (b) not prevail with regard to a Product or component for which Vendor
is the licensor.
C. Service Agreement
Services provided under this Contract shall be in accordance with, Support Service and
Professional Services Agreement as set forth in Appendix D or in a Statement of Work or other
services agreement of this Contract . No changes to the Service Agreement terms and
conditions may be made unless previously agreed to by Vendor and DIR.
D. Master Operating Lease Agreement
DIR and Vendor hereby agree that Vendor is authorized to utilize the Master Operating Lease
Agreement in Appendix E of this Contract for Lessees that are Texas State Agencies or
otherwise authorized to conduct lease transactions through DIR contracts.
E. Master Lease Agreement
DIR and Vendor hereby agree that Vendor is authorized to utilize the Master Lease Agreement
in Appendix F of this Contract for DIR authorized entities as Lessees that are not Texas State
Agencies or otherwise required by statute to utilize the Texas Public Finance Authority for
such leasing transactions. Texas State Agencies that have the requisite capital authority and
who are not required to utilize such authority via the Texas Public Finance Authority may or
may not be eligible to utilize the Master Lease Agreement;each such agency must confer with
its own counsel to make this determination.
F. Conflicting or Additional Terms
In the event of a conflict, any linked documents (other than and those referenced in software
license terms in Section 7) may not take precedence over the printed or referenced
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Vendor Contract No.
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.
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.
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 Product and Related
Services Contracts.
A. Appendix 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 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;
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Vendor Contract No.
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
bythe 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— means the party, either Vendor or a party that may be designated by
Vendor as a Reseller,who is authorized to quote and fulfill-a Purchase Order and receive
payment pursuant to the Contract.
G. Purchase Order - means 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). Neither Vendor or Customer is or shall
be bound by a terms and conditions imprinted on or embedded in orders, order
acknowledgements or other communications between the parties relating to orders.
H. State—refers to the State of Texas.
I. Documentation means the then-current, generally available, written user manuals and
online help and guides provided by EMC for Products.
J. Products mean "Equipment" (which is the EMC branded hardware delivered by EMC to
Customer) and/or "Software" (which is any programming code provided by EMC to
Customer as an EMC branded standard product, also including microcode,firmware and
operating system software).
K. Reseller means any third party approved by Vendor to sell to Customers under this
Contract. Vendor will flow the terms and conditions of this Contract to its Resellers
authorized under this Contract except,the pricing Reseller resales to Eligible Customers
will be established by the Reseller. Reseller will not resale products or services that
exceed the maximum price as set forth in Appendix C, Pricing Index, of this Contract.
B. Appendix A, Section 4. General Provision, E. Survival, is hereby replaced in its entirety as
follows:
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 prior to expiration or termination of the Contract shall survive the expiration
or termination of the Contract. All Purchase Orders, Statements of Work or Service
Agreements issued to and accepted by Vendor or Order Fulfiller shall survive expiration or
termination of the Contract for the term of the Purchase Order, Statement of Work or
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service agreement unless the Customer terminates the Purchase Order, Statement of Work
or Service Agreement sooner. However, regardless of the-term of the Purchase Order, no
Purchase Order shall survive the expiration or termination of the Contract for more than five
years, unless Customer incudes a statement of its internal approval of such longer period on
the Purchase Order. Rights and obligations under this Contract which by their nature should
survive will apply to such Purchase Order that survives after expiration or termination of the
Contract, including, but not limited to the DIR Administrative Fee; and any and all payment
obligations that occurred prior to the termination or expiration hereof, obligations of
confidentiality; and, indemnification, will remain in effect after termination or expiration
hereof.
C. Appendix A,Section S. Intellectual Property Matters,A. Definitions, is hereby replaced in its
entirety as follows:
A. Definitions.
1) "Work Product" means any and all reports, analyses, scripts, code or other work results
which have been developed by Vendor for Customer within the framework of fulfilling
obligations by Vendor for Customer under a Statement of Work issued pursuant to this
Contract.
2) "Property Rights" mean all patents, copyrights, trade secrets, methodologies, ideas,
concepts: inventions, know-how,techniques or other intellectual property rights of a party.
3) "Statement of Work" means a document signed by Customer and Vendor describing a
specific set of activities and/or deliverables, which may include Work Product and Property
Rights,that Vendor is to provide Customer, issued pursuant to the Contract.
4) "Third Party IP" means the Intellectual Property Rights of any third party that is not a party
to this Contract, and that is not directly or indirectly providing any goods or services to
Customer under this Contract.
5) "Vendor IP" shall mean all tangible or intangible items or things, including the Property
Rights therein, created or developed by Vendor. (a) prior to providing any Services or Work
Product to Customer and prior to receiving any documents, materials, information or
funding from or on behalf of Customer relating to the Services or Work Product, or (b) after
the Effective Date of the Contract if such tangible or intangible items or things were
independently developed by Vendor outside Vendor's provision of Professional Services or
Work Product for Customer hereunder and were not created, prepared, developed, invented
or conceived by any Customer personnel who then became personnel to Vendor or any
of its affiliates or subcontractors, where, although creation or reduction-to-practice is
completed while the person is affiliated with Vendor or its personnel, any portion of same
was created, invented or conceived by such person while affiliated with Customer. Vendor
shall not be limited in developing, using or marketing services or products which are similar
to the Work Product or Professional Services provided hereunder, or, subject to Vendor's
confidentiality obligations to Customer, in using the Work Product or performing similar
Professional Services for any other project.
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6) "Services" mean (i) services for the support and maintenance of Products ("Support
Services")as set forth in the Support Services and Professional Services Agreement,Appendix
D to this Contract; or (ii) consulting, installation, implementation, or other services that are
not Support Services ("Professional Services") as set forth in the Support Services and
Professional Services Agreement, Appendix D to this Agreement.
D. Appendix A Section S. Intellectual Property Matters, B. Ownership through L. Vendor
Development right is hereby replaced in its entirety as follows:
B. Property Rights:
1) Grant of Copyright Rights in Work.
Subject to Customer's payment of the applicable amounts due Vendor and to Vendor's
Proprietary Rights in any underlying intellectual property embodied therein or used by
Vendor to perform Professional Services, Customer shall own all copyright rights to the
portion of Work Product that consists solely of written reports, analyses and other working
papers prepared and delivered by Vendor to Customer in the performance of EMC's
obligations under the SOW.
2) Grant of License Rights in Work Product.
For the portion of Work Product that consists of scripts and code, Vendor grants Customer a
non-exclusive,non-transferable,irrevocable(except in case of breach of the Contract or SOW)
perpetual right to use, copy and create derivative works from such (without the right to
sublicense) for Customer's internal business operations, as contemplated by the applicable
SOW. The license granted in this section does not apply to (i) Customer furnished materials,
and (ii) any other Products or items licensed, or otherwise provided, under a separate
agreement.
3) Customer Furnished Materials.
Customer does not relinquish any of its rights in materials it furnishes for use by Vendor in
connection with the performance of Professional Services. Pursuant to Customer's
Proprietary Rights therein, Customer grants EMC a non-exclusive, non-transferable right to
use such solely for the benefit of Customer in fulfillment of Vendor's obligations under the
SOW.
4) Reservation of Proprietary Rights.
Each party reserves for itself all Proprietary Rights that it has not expressly granted to the
other. Vendor shall not be limited in developing, using or marketing services or products
which are similar to the Work Product or Professional Services provided hereunder, or,
subject to Vendor's confidentiality obligations to Customer, in using the Work Product or
performing similar Professional Services for any other projects.
5) Confidentiality.
All documents, information and materials forwarded to Vendor by Customer for use in and
preparation of the Work Product shall be deemed the confidential information of Customer,
and subject to the license granted by Customer to Vendor under subparagraph 5.3.13.5,
Customer Furnished Materials, hereunder. Vendor shall not use, disclose, or permit any
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person to use or obtain the Work Product, or any portion thereof, in any manner without the
prior written approval of Customer.
6) Vendor License to Use.
Customer hereby grants to Vendor a non-transferable, non-exclusive, royalty-free, fully
paid-up license to use any Work Product solely as necessary to provide the Services to
Customer. Except as provided in this Section, neither Vendor nor any Subcontractor shall
have the right to use the Work Product in connection with the provision of services to its
other customers without the prior written consent of Customer, which consent may be
withheld in Customer's sole discretion.
E. Appendix A, Section 7. Contract Fulfillment and Promotion, A. Services, Sales and Support
of the Contract, is hereby replaced in its entirety as follows:
Vendor shall provide service, sales and support resources available under the Contract to
serve all Customers throughout the State. It is the responsibility of the Vendor to sell,
market, and promote products and 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.
F. Appendix A,Section 7.Contract Fulfillment and Promotion,C. Product Warranty and Return
Policies, is hereby replaced in its entirety as follows:
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.
Vendor's Warranty:
1. Product Warranty
A. Equipment and Software Media. Vendor warrants that (i) Equipment, and
Equipment upgrades installed into Equipment, when purchased from Vendor and
operated with normal usage and regular recommended service; and (ii) the physical
media, if any, on which software is provided by Vendor, shall be free from material
defects in materials and workmanship, and perform substantially in accordance with
Documentation provided for Equipment or the physical media until the expiration of
the warranty period. Unless otherwise noted on the Product Notice or Vendor quote,
the warranty coverage for the microcode, firmware or operating system software
that enables Equipment to perform as described in its Documentation shall be no less
than that which applies to such Equipment. To the extent specified in the Product
Notice, Support Services in the form of the Support Option noted on the Product
Notice are included free of charge during the Equipment warranty period. In some
cases, a Support Option upgrade during the Equipment warranty period may be
available by separate purchase.
B. Equipment and Software Media Warranty Duration. Unless otherwise stated on the
Vendor quote, the warranty period from Vendor for Products shall be as set forth at
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the Product Notice. Equipment warranty commences upon Delivery. Equipment
upgrades are warranted in the same manner as the Equipment in which the upgrades
are installed from Delivery of the upgrade until the end of the warranty period for the
Equipment into which the upgrades are installed.The warranty for physical media for
Software provided by EMC, if any, is ninety(90) days and commences upon Delivery.
C. Equipment and Software Media Warranty Remedies. Vendor's entire liability and
Customer's exclusive remedies under the Equipment and physical media for Software
warranties described in this Section 6 shall be for Vendor,at its option,to remedy the
non-compliance or to replace the affected Product, and if Vendor is unable to effect
such within a reasonable time, then Vendor shall refund the amount paid by
Customer for the affected Product as depreciated on a straight line basis over a five
(5) year period, upon return of such Product to Vendor. All replaced Products or
portions thereof shall be returned to and become the property of Vendor. If such
replacement is not so returned,Customer shall pay Vendor's then current spare parts
price therefore. Vendor shall have no liability hereunder after expiration of the
applicable warranty period.
D. Software Warranty, Duration and Remedy. Vendor warrants to Customer that the
Software will, for a period of ninety (90) days following Delivery or notice of
availability for electronic download ("Warranty Period"), substantially conform to the
applicable Documentation, provided that the Software:(i) has been properly installed
and used at all times in accordance with the applicable Documentation; and (ii) has
not been modified or added to by persons other than Vendor or its authorized
representative. Vendor will, at its own expense and as its sole obligation and
Customer's exclusive remedy for any breach of this warranty, either replace that
Software or correct any reproducible error in that Software reported to Vendor by
Customer in writing during the Warranty Period. If Vendor determines that it is unable
to correct the error or replace the Software, Vendor will refund to Customer the
amount paid by Customer for that Software, in which case the license for that
Software will terminate.
E. Exclusions. Warranty does not cover problems that arise from (i) accident or neglect
by Customer or any third party; (ii) any third party items or services with which the
Product is used or other causes beyond Vendor's control; (iii) installation, operation
or use not in accordance with Vendor's instructions or the applicable Documentation;
(iv) use in an environment, in a manner or for a purpose for which the Product was
not designed; (v) modification, alteration or repair by anyone other than Vendor or
its authorized representatives; or (vi) in case of Equipment only, causes not
attributable to normal wear and tear. Vendor has no obligation whatsoever for
Software installed or used beyond the licensed use,for Equipment which was moved
from the Installation Site without Vendor's consent or whose original identification
marks have been altered or removed.
F. Disclaimer of Warranty. OTHER THAN THE WARRANTIES SET FORTH IN THIS
CONTRACT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
VENDOR AND ITS SUPPLIERS MAKE NO OTHER EXPRESS WARRANTIES UNDER THIS
CONTRACT, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY
WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR
PERFORMANCE, OR USAGE OF TRADE. VENDOR AND ITS SUPPLIERS DO NOT
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WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL
BE FREE FROM DEFECTS OR THAT IT WILL MEET CUSTOMER'S REQUIREMENTS.
2. Support Services Warranty:
A. Support Services. Vendor shall perform the labor portion of Support Services in a
workmanlike manner in accordance with generally accepted industry standards.
Customer shall notify Vendor of any failure to so perform as soon as reasonably
possible,and in no event more than ten (10)days after the date on which such failure
first occurs. A replacement part receives the remainder of the warranty or Support
Services coverage applicable to the Product containing the replacement part.
B. Customer Remedies. Customer's exclusive remedy and Vendor's entire liability
under the foregoing warranties shall be for Vendor to,at its option, (i) use reasonable
efforts to (a) re-perform the deficient labor services within a reasonable time, or
(b) replace any replacement parts which become defective during the remainder of
the warranty or Support Services coverage applicable to the Product containing the
replacement part, or sixty(60)days after installation thereof,whichever occurs later;
and (ii) if, after reasonable efforts, Vendor is not able correct such deficiencies,then
Customer has the right to terminate for breach in accordance with Section 7 D below.
C. No Further Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WITH REGARD TO PRODUCTS,
SERVICES OR ANY OTHER ITEMS OR MATTERS ARISING HEREUNDER, VENDOR
(INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR
ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED UNDER
APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED,
INCLUDING, BUT NOT LIMITEDTO,THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY
WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR
PERFORMANCE, OR USAGE OF TRADE.
3. Professional Services.
A. Professional Services. Vendor shall perform Professional Services in a workmanlike
manner in accordance with generally accepted industry standards. Customer must
notify Vendor of any failure to so perform within ten (10) days after the performance
of the applicable portion of Professional Services.
B. Customer Remedies. Vendor's entire liability and Customer's sole remedy for
Vendor's failure to so perform shall be for Vendor to, at its option, (i) correct such
failure; and/or (ii)terminate the applicable SOW and refund that portion of any fees
received that correspond to such failure to perform.
C. No Further Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WITH REGARD TO PRODUCTS,
SERVICES OR ANY OTHER ITEMS OR MATTERS ARISING HEREUNDER, VENDOR
(INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR
ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED UNDER
APPLICABLE LAW,ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING,
BUT NOT LIMITED TO,THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY
ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE,
OR USAGE OF TRADE.
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F. Appendix A, Section 7. Contract Fulfillment and Promotion, H. Trade Show Participation, is
hereby replaced in its entirety as follows:
At DIR's discretion,Vendor maybe required to participate in no more than two DIR sponsored
trade shows each calendar year. Vendor understands and agrees that participation, at the
Vendor's expense, includes providing a manned booth display or similar presence. DIR will
provide four months advance notice of any required participation. Vendor must display the
DIR logo at all trade shows that potential Customers will attend. DIR reserves the right to
approve or disapprove of the location or the use of the DIR logo in or on the Vendor's booth.
G. Appendix A,Section 8. Pricing, Purchase Orders, Invoices,and Payments,C.Customer Price,
is hereby replaced in its entirety as follows:
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).
1)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.
2) During the term of this Contract, if pricing for products or non-custom services available
under this Contract are provided by Vendor at a lower price to an Eligible Texas Customer
(headquartered in the State of Texas)who is not purchasing those products or services under
this Contract,then the available Customer Price in this Contract shall be adjusted to that lower
price. This requirement applies to products or non-customized services actually charged by
Vendor for a quantity of one (1) under substantially similar terms and conditions, for
substantially similar configurations or deliverables. This requirement does not applyto volume
or special pricing purchases. This Contract shall be amended within ten (10) business days to
reflect the lower price.
H. Appendix A, Section 8. Pricing, Purchase Orders, Invoices, and Payments, G. Changes to
Prices, is hereby replaced in its entirety as follows:
Vendor or Order Fulfiller may change the price of any product or service at anytime, based
upon changes to the MSRP, but discount levels shall remain consistent with the discount
levels specified in this Contract. Price decreases shall take effect automatically during the
term of this Contract and shall be passed onto the Customer immediately at the time of
submission of a purchase order, but shall not be retroactive to products for which a purchase
order has been received, or for services currently being rendered under a prior purchase
order.
I. Appendix A, Section 8. Pricing, Purchase Orders, Invoices, and Payments, K. Acceptance is
amended by adding the following:
K. Acceptance.
All Products will be deemed to be delivered and accepted, meaning that Product operates in
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substantial conformity to the Product's Documentation upon (i) Delivery of the Equipment or
physical media; or (ii) transmission of a notice of availability for download (accomplished by
the license key when required by EMC). Notwithstanding such acceptance, Customer retains
all rights and remedies set forth in the Section entitled "Product Warranty".
J. Appendix A,Section 9. Contract Administration, C. Records and Audit, is hereby replaced in
its entirety as follows:
1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as
acceptance of the authority of the State Auditor's Office,or any successor agency or designee,
to conduct an audit or investigation in connection with those funds.Vendor further agrees to
cooperate fully with the State Auditor's Office or its successor or designee in the conduct of
the audit or investigation, including providing all records requested. Vendor will ensure that
this clause concerning the authority to audit funds received indirectly by subcontractors
through Vendor or directly by Order Fulfillers and the requirement to cooperate is included
in any subcontract or Order Fulfiller contract it awards pertaining to the Contract. Under the
direction of the Legislative Audit Committee, a Vendor that is the subject of an audit or
investigation by the State Auditor's Office must provide the State Auditor's Office with access
to any information the State Auditor's Office considers relevant to the investigation or audit.
2) Vendor and Order Fulfillers shall maintain adequate records relevant to the performance
of the Contract to establish compliance with the Contract until the later of a period of four(4)
years after termination of the Contract or until full, final and unappealable resolution of all
Compliance Check or litigation issues that arise under the Contract. Such records shall include
per transaction: the Order Fulfiller's company name if applicable, Customer name, invoice
date, invoice number, description, part number, manufacturer, quantity, MSRP or list price,
unit price, extended price, Customer Purchase Order number, contact name, Customer's
complete billing address, the calculations supporting each administrative fee owed DIR
under the Contract, Historically Underutilized Businesses Subcontracting reports, and such
other documentation as DIR may request.
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic records,
books, documents, accounting procedures, practices, customer records including but not
limited to contracts, agreements, purchase orders and statements of work, 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 ten (10) 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 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
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invoice for the reasonable costs of the audit, which Vendor must pay within thirty (30)
calendar days of receipt.
4) For procuring State Agencies whose payments are processed by the Texas Comptroller of
Public Accounts, the volume of payments made to Order Fulfillers through the Texas
Comptroller of Public Accounts and the administrative fee based thereon shall be presumed
correct unless Vendor can demonstrate to DIR's satisfaction that Vendor's calculation of DIR's
administrative fee is correct.
K. Appendix A, Section 10. Vendor Responsibilities, A. Indemnification, 2) Acts or Omissions,
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, ASSIGNEES, AND/OR
DESIGNEES FROM ANY AND ALL THIRD PARTY CLAIMS FOR 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 resulting in
bodily injury (including death) or damage to tangible property and to the extent caused by
Vendor or its Order Fulfillers,Agents, Resellers or subcontractors.VENDOR'S OBLIGATIONS TO
INDEMNIFY AND HOLD HARMLESS WILL BE LIMITED TO CLAIMS CAUSED SOLELY BY VENDOR
NEGLIGENCE. VENDOR SHALL PAY ALL COSTS OF DEFENSE INCLUDING REASONABLE
ATTORNEYS FEES AWARDED BY A COURT OF FINAL DETERMINATION.THE DEFENSE SHALL BE
COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL FORTEXAS STATE
AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT OR BY CUSTOMER'S LEGAL COUNSEL
FOR NON-STATE AGENCY CUSTOMERS. VENDOR MAY NOT AGREE TO ANY SETTLEMENT AS
TO CLAIMS AGAINST STATE AGENCIES 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.
L. Appendix A, Section 10. Vendor Responsibilities, A. Indemnification, 3) Infringements, is
hereby replaced in its entirety as follows:
3) INFRINGEMENTS
a) Vendor shall indemnify the State of Texas and Customers, AND/OR THEIR EMPLOYEES,
AGENTS, REPRESENTATIVES, CONTRACTORS,ASSIGNEES, AND/OR DESIGNEES("Indemnified
Party"), from any and all third- party claims involving infringement of United States
patents, copyrights, trade and service marks, and any other intellectual or intangible
property rights in connection with the performance of Services or the provision of Vendor-
branded Products by Vendor pursuant to this contract by paying (i) the resulting costs and
damages finally awarded against Indemnified Party by a court of competent jurisdiction to the
extent that such are the result of the third party claims,or(ii)the amounts stated in a written
settlement negotiated and approved by Vendor. "Vendor-Branded Products" shall mean
hardware products (including all EMC standard components and parts contained within the
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EMC system), components, or parts bearing the Vendor's logo that are included on Vendor's
standard price list.
Vendor and Customer agrees to furnish timely written notice to each other of any such
claim.The defense shall be coordinated by the Office of the Attorney General for Texas State
Agency Customers, Vendor's Counsel for Vendor, and by Customer's legal counsel for non-
state agency customers and Vendor may not agree to any settlement as to claims against
Texas State agencies without first obtaining concurrence from the Office of the Attorney
General. In addition, without any additional payment of liability by Vendor,the foregoing IP
obligations shall extend to third party claims involving infringement of United States
patents, copyrights, trade and service marks, and any other intellectual or intangible
property rights in connection with Vendor's sale of third party equipment and license of
third party software under this Contract, if and to the extent the applicable third party
equipment manufacturer or third party software licensor is contractually obligated to
Vendor to provide indemnification for such claims and such indemnification by its own terms
can be extended to Indemnified Party.
b) Notwithstanding the foregoing, Vendor shall have no obligation under this Section
10 .A. 3 for any claim to the extent that it results or arises from (1) Customer's
modifications of such products, services or deliverables that were not performed by or on
behalf of Vendor; (2) the combination, operation or use of such product, service or
deliverable in connection with a third-party product or service (the combination of which
causes the infringement); or (3) Vendor's compliance with Customer's written specifications
(to the extent such specifications were not developed by Vendor) or directions, including the
incorporation of any software or other materials or process provided by or requested by
Customer. In the event Vendor has no obligation for a claim as set forth above, Vendor
agrees to provide such assistance (e.g., producing documents and its employees as
witnesses) as is reasonably requested by the Attorney General in connection with the
Attorney General's defense of such claim.
c) 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: (i) procure for the Customer
the right to continue to use the affected portion of the product or service, or (ii) 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, or (iii) provide a
refund that reflects reasonable depreciation for time of use, and for services/custom
software. (iii) applies only if the remedies described in subparts (i) and (ii) are not
obtainable despite Vendor's commercially reasonable efforts. This subsection states
Customer's exclusive remedies for any third-party intellectual property claim.
Notwithstanding the foregoing, if Vendor provides the remedy described in subpart(iii)and
the affected Customer incurs transition expenses relating to the replacement in such
Customer's IT environment of the affected portion of Dell Vendor-Branded Products or
services, such Customer may tender to Vendor a claim for such actual and reasonable
transition expenses in an amount up to the difference between (y) the original purchase
price for the affected portion of the product or service being removed and (z) the
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refund provided to such Customer pursuant to subpart (iii), above, and Vendor will pay
such claim.
M. Appendix A,Section 10.Vendor Responsibilities,A. Indemnification,4)Property Damage, is
hereby replaced in its entirety as follows:
4) PROPERTY DAMAGE
IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF ANY REAL AND TANGIBLE
PROPERTY OF CUSTOMER OR THE STATE DUE TO THE SOLE NEGLIGENCE, MISCONDUCT,
WRONGFUL ACT OR OMISSION ON THE PART OF THE VENDOR, ITS EMPLOYEES, AGENTS,
REPRESENTATIVES, OR SUBCONTRACTORS, THE VENDOR SHALL; 1) FOR LOSS, DAMAGE OR
DESTRUCTION OF EMC PRODUCT, EMC WILL REPAIR OR REPLACE THE EMC PRODUCT OR
PROVIDE THE REFUND EACH AS SPECIFIED IN THE TERMS AND CONDITIONS OF THE APPLICABLE
WARRANTY OR SUPPORT SERVICE TERMS, OR 2) FOR PRODUCTS OTHER THAN AN EMC
PRODUCT,AND AFTER VENDOR'S INVESTIGATION AND SUMMARY OF PROPOSED REMEDY, PAY
THE FULL COST OF EITHER REPAIR, RECONSTRUCTION, OR REPLACEMENT OF THE PROPERTY,
AT THE CUSTOMER'S ELECTION, TAKING INTO CONSIDERATION THE VENDOR'S
RECOMMENDATION. IF SUCH LOSS DAMAGE OR DESTRUCTION IS CAUSED SOLELY BY VENDOR,
ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS NEGLIGENCE. FOR LOSS,
DAMAGE OR DISTRUCTION NOT CAUSED SOLELY BY VENDOR, ITS EMPLOYEES, AGENTS,
REPRESENTATIVES OR SUBCONTRACTORS SOLE NEGLEGENCE VENDOR WILL PAY THAT
PORTION OF THE COST OF EITHER REPAIR, RECONSTRUCTION OR REPLACEMENT OF THE
PROPERTY TO THE DEGREE RESPONSIBLE. SUCH COST SHALL BE DETERMINED BY AND SHALL
BE DUE AND PAYABLE BY THE VENDOR NINETY (90) CALENDAR DAYS AFTER THE DATE OF
THE VENDORS RECEIPT FROM THE CUSTOMER OF A WRITTEN NOTICE OF THE AMOUNT DUE.
N. Appendix A, Section 10. Vendor Responsibilities, B. Taxes/Worker's
Compensation/UNEMPLOYMENT INSURANCE, is hereby replaced in its entirety as follows:
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS
CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT
OF VENDOR'S AND VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF
THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE
AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING
WAGES,TAXES, INSURANCE,AND WORKERS'COMPENSATION.THE CUSTOMER AND/OR THE
STATE SHALL NOT BE LIABLE TO THE VENDOR,-ITS EMPLOYEES, AGENTS, OR OTHERS FOR
THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR
WORKERS' COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR
EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER AS A RESULT OF ITS
PERFORMANCE UNDER THIS CONTRACT.
2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS, THE STATE OF
TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS,-AND/OR
ASSIGNEES FROM ANY AND ALL LIABILITY,ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL
RELATED COSTS, ATTORNEYS' FEES, AND EXPENSES, RELATING TO EMPLOYEE TAX LIABILITY,
UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION IN ITS PERFORMANCE
UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE
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INCLUDING ATTORNEYS' FEES FOR CLAIMS MADE BY VENDOR VENDOR'S EMPLOYEES,
VENDOR'S SUBCONTRACTORS IN ITS PERFORMANCE UNDER THIS CONTRACT. THE DEFENSE
SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN
TEXASSTATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUITAND VENDOR OR FORWITH
CUSTOMER'S LEGAL COUNSEL FOR NON-STATE AGENCIES. VENDOR MAY NOT AGREE TO ANY
SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE
ATTORNEY GENERAL OR NON-STATE COUNSEL IF SUCH SETTLEMENT REQUIRES THE STATE OR
STATE AGENCY TO MAKE ANY PAYMENT. VENDOR AND THE CUSTOMER AGREE TO FURNISH
TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.
L.
O. Appendix A, Section 10. Vendor Responsibilities, I. Security of Premises, Equipment, Data
and Personnel, is hereby replaced in its entirety as follows:
a) Vendor and/or Order Fulfiller may, from time to time during the performance of the
Contract, have access to the personnel, premises, equipment, and other tangible
property, belonging to the Customer. Vendor shall use commercially reasonable efforts to
preserve the safety,security,and the integrity of the premises,equipment,and other tangible
property of the Customer, in accordance with the instruction of the Customer provided to
Vendor or the applicable Order Fulfiller by the Customer in writing or in the manner that
Customer generally provides such instructions to its own employees and other contractors.
Vendor and/or Order Fulfiller shall be responsible for damage to Customer's equipment,
premises, and other tangible property when and to the degree such damage is caused by its
employees or subcontractors. If a Vendor and/or Order Fulfiller materially fails to comply
with Customer's security requirements, then Customer may terminate its Purchase Order
and related Service Agreement in accordance with Section 11.B.Termination of the Contract.
b) In addition, Vendor and/or Order Fulfiller may, during performance of the Contract, have
access to Customer's data ("Data") that is hosted either at Customer's or a third party's
premises (other than premises of Vendor's Affiliates or subcontractors) (collectively,
"Customer Premises") or at Vendor's premises or the premises of Vendor's Affiliates or
subcontractors (collectively, "Vendor Premises"). i) As to Data hosted at any Customer
Premises, Vendor shall comply with Customer's instructions related to preserving the safety,
security and integrity of such Data provided to Vendor or the applicable Order Fulfiller by the
Customer in writing or in the manner that Customer generally provides such instructions to
its own employees and other contractors. ii) As to Data hosted at any Vendor Premises,
Vendor will comply with its generally applicable security standards designed to preserve the
safety, security and integrity of such Data, as well as any additional security obligations
expressly agreed in the applicable Statement of Work executed by Customer and Vendor. iii)
Notwithstanding anything to the contrary in this Contract, including this Section 10.1, except
as otherwise expressly provided in a Statement of Work executed by Customer and Vendor:
(A) Customer is responsible for backing up its own Data, (B) Vendor and Order Fulfiller shall
not have operational or financial responsibility for refreshes, upgrades, modifications or
improvements to Customer-provided facilities, equipment or software that may be required
to preserve the safety,security and integrity of such Data,and (C)if Vendor or Order Fulfiller's
compliance with Customer's instructions constitutes a material change to the scope of
Services or their other obligations,the parties will equitably adjust the charges to account for
such material change. Vendor and Order Fulfiller shall not be responsible, or liable for any
damages,for any Data losses to the extent such Data cannot be retrieved due to Customer's
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(or Customer's applicable Third-Party Vendor's) failure to use standard industry practices
relating to data backups and retrieval of Data.
P. Appendix A, Section 10. Vendor Responsibilities, J. Background and/or Criminal History
Investigation, is hereby replaced in its entirety as follows:
Prior to commencement of any services, background and/or criminal history investigation
of the Vendor and/or Order Fulfiller's employees and subcontractors who will be providing
services to the Customer under the Contract may be performed by the Customer (as
required by Customer), provided the Customer gives prior notice of such investigation. Should
any employee or subcontractor of the Vendor and/or Order Fulfiller who will be providing
services to the Customer under the Contract not be acceptable to the Customer as a result of
the background and/or criminal history check, then Customer may immediately require
replacement of the Vendor or Order Fulfiller employee or subcontractor in
question. If Vendor fails to replace the employee or subcontractor personnel as
soon as practicable, then Customer may terminate its Purchase Order and related
Service Agreement in accordance with the applicable termination sections of this Contract.
Q. Appendix A,Section 10.Vendor Responsibilities,K. Limitation of Liability,is hereby replaced
in its entirety as follows:
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 indirect, punitive, special, or consequential damages, even if it is advised of
the possibility of such damages; and ii) Vendor's cumulative liability for all claims and
damages of any kind to the Customer under the Contract shall be limited in the aggregate,
to$5,000,000. The foregoing limitations shall apply regardless of whether the claim for such
damages is based in contract,warranty, strict liability, negligence,tort or otherwise. Insofar
as applicable law prohibits any limitation herein, the parties agree that such limitation will
be automatically modified, but only to the extent so as to make the limitation permitted to
the fullest extent possible under such law. However, this limitation of Vendor's liability shall
not apply to Vendor's indemnification obligations for claims of patent, trademark, or
copyright infringement of Vendor-branded products or Vendor provided services and
deliverables as set forth in Section 10.A.3 ("Infringements").
R. Appendix A, Section 10.Vendor Responsibilities, M. Prohibited Conduct, is hereby replaced
in its entirety as follows:
Vendor certifies that, to the best of its knowledge as of the date of this certification, neither
Vendor nor any Reseller Order Fulfiller, subcontractor has: (1) violated the antitrust laws of
the State of Texas under Texas Business & Commerce Code, Chapter 15, or the federal
antitrust laws;or(2)communicated its response to the Request for Offer directly or indirectly
to any competitor or any other person engaged in such line of business during the
procurement for the Contract
S. Appendix A,Section 10.Vendor Responsibilities, N. Required Insurance Coverage, is hereby
replaced in its entirety as follows:
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Vendor Contract No.
As a condition of this Contract with DIR, Vendor shall provide 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 provide proof of
such insurance coverage 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. The
Customer and DIR will be named as Additional Insureds on Commercial General Liability and
Business Auto Liability policies. Required coverage must remain in effect through the term of
the Contract and each Purchase Order issued to Vendor there under. 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; Medical Expense
per person of $5,000; 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 listed as an additional insured; and
d) Waiver of Subrogation
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; and
b) Additional Insured.
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T. Appendix A, Section 10. Vendor Responsibilities, S. Secure Erasure of Hard Disk Products
and/or Services, is hereby replaced in its entirety as follows:
Vendor agrees that all products that are equipped with hard disk drives (i.e. computers,
servers etc.) shall have the capability to securely erase data written to the hard drive prior
to final disposition of such products and/or services. Erasure services are available at
additional cost.
U. Appendix A, Section 10. Vendor Responsibilities, T. Deceptive Trade Practices; Unfair
Business Practices, is hereby replaced in its entirety as follows:
1) Vendor certifies as of the Effective Date of this Contract, that neither Vendor nor any of
its Subcontractors has been (i)found liable in any administrative hearing, litigation or other
proceeding of Deceptive Trade Practices violations as defined under Chapter 17, Texas
Business & Commerce Code, or (ii) has outstanding allegations of any Deceptive Trade
Practice pending in any administrative hearing, litigation or other proceeding.
2) Vendor certifies, as of the Effective Date of this Contract, that it has no officers who have
served as officers of other entities who (i) have been found liable in any administrative
hearing, litigation or other proceeding of Deceptive Trade Practices violations or (ii) have
outstanding allegations of any Deceptive Trade Practice pending in any administrative
hearing, litigation or other proceeding.
V. Appendix A, Section 10. Vendor Responsibilities, U. Drug Free Workplace Policy, is hereby
replaced in its entirety as follows:
Vendor will comply with drug and alcohol rules and regulations that are legally mandated for
employers in the State of Texas. Vendor and Customers may agree to more specific
requirements for onsite services in a mutually agreed statement of work.
W. Appendix A, Section 11. Contract Enforcement, B. Termination, 1) Termination for Non-
Appropriation, a).Termination for Non-Appropriation by Customer is hereby replaced in its
entirety as follows:
"Customer will endeavor to ensure appropriated funds have been appropriated prior to
placing orders. 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,
nor shall it be liable for any damages or any other amounts which are caused by or associated
with such termination.
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DIR Contract No. DIR-TSO-4299
Vendor Contract No.
X. Appendix A, Section 11. Contract Enforcement, B. Termination, 3) Termination for
Convenience, is hereby replaced in its entirety as follows:
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 by giving the other
party thirty (30) calendar days written notice. Customer will be responsible for all payments
for products and services delivered priorto termination and for any agreed to costs associated
with termination of a services as agreed to in a lease agreement, Statement of Work or other
service agreement.
Y. Appendix A, Section 11. Contract Enforcement, C. Force Majeure, is hereby replaced in its
entirety as follows:
DIR, Customer, 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 Order if 1) its performance is or will be delayed by 20
days or more by event(s) of Force Majeure ( or a longer period if agreed to by the Customer)
and 2) if it is reasonably determined by the Customer that Order Fulfiller will not be able
to deliver services in a timely manner to meet the business needs of the Customer
Z. Appendix A,Section 14.Trade Compliance, is hereby added as follows:
The parties agree to comply with US Export and Import laws.
All content, Services and the technology included therein (collectively the "Materials")
provided under this Contract are subject to governmental restrictions on exports and imports
including without limitation (i) exports from the U.S and the European Union as well as re-
export from third countries in the form received; (ii) exports from other countries in which
the Materials may be produced or located; (iii) disclosures of technology to non-U.S persons;
(iv) exports from other countries of the same or products derivative of Materials; and (v)the
importation and/or use the Materials outside of the U.S. or other countries (collectively,
"Trade Laws"). Customer must comply with all Trade Laws. Diversion contrary to U.S. law or
other Trade Laws is expressly prohibited. In addition, Customer shall not send or deliver to
EMC any data controlled by the International Traffic in Arms ("ITAR"), and shall not request
Materials or Service from EMC where an ITAR license is required in order for EMC to provide
such Materials or Service, unless the EMC Global Trade Compliance Group Office has signed
a specific agreement consenting to provide ITAR controlled Materials or Service Customer.
Customer represents and warrants that it is not (a) listed on any of the lists of restricted
parties found at http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-
concern; (b) located in any country subject to embargo by the U.S. (identified as an E:1
country in Supplement 1 to Part 740 of the United States Export Administration Regulations
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("EAR"), as shown here and updated from time to time: http://www.ecfr.gov/cgi-bin/text-
idx?SID=7f51b38428b0614519eea4b4fdc8640e&node=15:2.1.3.4.25.0.1.21.28&rgn=div9; or
(c) engaged in the proliferation of weapons of mass destruction (i.e., nuclear, chemical or
biological weapons or missiles). Customer will not participate or ask EMCto participate in any
illegal boycott.
AA.Appendix A,Section 15. EMC Select or Brokerage Products, shall be added at a later date.
(Remainder of Page Intentionally Left Blank)
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This Contract is executed to be effective as of the date of last signature.
EMC Corporation, dba System Peripherals, Inc.
Authorized By: Signature on file
Name: Rita Roles
Title: Sr. Contracts Manager
Date: 12/10/2018
The State of Texas, acting by and through the Department of Information Resources
Authorized By:_Signature on file
Name: Hershel Becker
Title: Chief Procurement Officer
Date: 12/17/2018
Office of General Counsel: DB 12/14/2018
Department of Information Resources Page 24 of 24 (DIR rev 03/2018)
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