HomeMy WebLinkAboutContract 46873 �q 11 12
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City Secretary Contract No.
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FORT WORTH,,,
PROFESSIONAL SERVICES AGREEMENT
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This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and
between (lie CITI OF FORT WORTH (the --City'" or"Client"). a Texas home-rule municipal corporation. and
Mythics, Inc. ("Consultant" or "Contractor'). a Virginia Company. City and Consultant are each individually
referred to herein as a"party" and collectively referred to as the"parties.`
CONTRACT DOCUMENTS:
The Contract documents shall include the following:
I. This Agreement for Professional Services
3 Exhibit A Statement of Work
3. Exhibit B Payment Schedule
4. Exhibit C %Milestone Acceptance F=orm
5. Exhibit D Network Access Agreement
6, Exhibit E Signature Verification Form
7. Exhibit F Appendix A to DIR Contract Number TSO 3548
All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. The Parties
have agreed to additional terms and conditions beyond those contained in Exhibit "F," which are the terns and
conditions under DIR Contract Number TSO 3548 and are incorporated herein for all purposes. In the event of any
conflict between the terms and conditions contained in this .Agreement and Exhibit F. the terms and conditions of
Exhibit F shall control: however, to the extent the terms do not conflict,the terns and conditions of this Agreement
shall control. The term "Consultant" or "Contractor" shall include the Consultant or Contractor, and its officers,
agents, employees, representatives, servants, contractors or subcontractors. The term "City"' shall include its
officers,employees,agents,and representatives.
1. Scope of Services.
Consultant hereby agrees, with good faith and due diligence,to provide the City with professional
consulting services for Migration of the Water Department's legacy Oracle environment to the Oracle Service
Cloud. Specifically,Consultant will perform all duties outlined and described in the Statement of York,which is
attached hereto as Exhibit"A"and incorporated herein for all purposes, and further referred to herein as the
"Services."Consultant shall perform the Services in accordance with standards in the industry for the same or
similar services. In addition,Consultant shall perform the Services in accordance with all applicable federal,state,
and local laws. rules,and regulations. If there is any conflict between this Agreement and Exhibit.A,the terms and
conditions of this Agreement shall control.
2. Term.
This Agreement shall commence upon July 31, 3015 ("Effective Date") and shall expire no later than July
30, 3016 ("Expiration Date"), unless terminated earlier in accordance with the provisions of this Agreement or
otherwise extended by the parties. This Agreement will not need any renewals.
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CITY SECRETARY
FT.WORTH,TX
3. Comaensation.
The City shall pay Consultant an amount not to exceed 5157,876.00 in accordance with the provisions of
this Agreement and Exhibit "13," Pavment Schedule, which is attached hereto and incorporated herein for all
purposes. Consultant shall not perform any additional services for the City not specified by this Agreement unless
the City requests and approves in writing the additional costs for such services. The City shall not be liable for any
additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in
writing. City agrees to pay all invoices of Consultant within thirty (30) days of receipt of such invoice. Consultant
may charge interest on late payments not to exceed one percent(I'o).
4. Termination.
4.1. Convenience. Either the City or Consultant may terminate this Agreement at any time and for any reason
by providing the other party with 30 days written notice of termination.
4.2 Breach. Subject to Section 29 herein, either party may terminate this Agreement for breach of duty,
obligation or warranty upon exhaustion of all remedies set forth in Section 29.
4.3 Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by the City in any fiscal
period for any payments due hereunder.the City will notify Consultant 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
the City of any kind whatsoever. except as to the portions of the payments herein agreed upon for which funds have
been appropriated.
4.4 Duties and Obligations of the Parties. In the event that this ,Agreement is
terminated prior to the Expiration Date, the City shall pay Consultant for services actually rendered up to the
effective date of termination and Consultant shall continue to provide the City with services requested by the City
and in accordance with this Agreement up to the effective date of termination. Upon termination of this
Agreement for any reason. Consultant shall provide the City with copies of all completed or partially completed
documents prepared under this Agreement. In the event Consultant has received access to City information or data
as a requirement to perform services hereunder, Consultant shall return all City provided data to the City in a
machine readable format or other format deemed acceptable to the City.
5. Disclosure of Conflicts and Confidential Information.
5.1 Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure
in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement. In
the event that any conflicts of interest arise after the Effective Date of this Agreement. Consultant hereby agrees
immediately to make full disclosure to the City in writing.
5.2 Confidential Information. The City acknowledges that Consultant may use products, materials. or
methodologies proprietary to Consultant. The City agrees that Consultant's provision of services under this
Agreement shall not be grounds for the City to have or obtain any rights in such proprietary products,materials.or
methodologies unless the parties have executed a separate written agreement with respect thereto. Consultant, for
itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City
("City Information") as confidential and shall not disclose any such information to a third party without the prior
written approval of the City.
5.3 Unauthorized Access. Consultant shall store and maintain City Information in a secure manner and shall
not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way.
Consultant shall notify the City immediately if the security or integrity of any City information has been
compromised or is believed to have been compromised. in which event, Consultant shall, in good faith, use all
commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by
unauthorized means and shall fully cooperate with the Cityto protect such information from further unauthorized
disclosure.
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6. Right to Audit.
Consultant agrees that the City shall, until the expiration of three (3)years after final payment under this
A-reernent. have access to and the right to examine at reasonable times any directly pertinent books, documents.
papers and records of the Consultant involving transactions relating to this Agreement at no additional cost to the
City. Consultant agrees that the City shall have access durin- normal working hours to all necessary Consultant
facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with
the provisions of this section. The City shall give Consultant not less than 10 days written notice of any intended
audits.
Consultant further agrees to include in all its subcontractor agreements hereunder a provision to the effect
that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the
subcontract, have access to and the right to examine at reasonable times any directly pertinent books. doctor ents,
papers and records of such subcontractor involving transactions related to the subcontract, and further that City
shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and
appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall
give subcontractor not less than 10 days written notice of any intended audits.
7. Independent Contractor.
It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all
rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in
accordance with the conditions and provisions of this Agreement, Consultant shall have the exclusive right to
control the details of its operations and activities and he solely responsible for the acts and omissions of its
officers, agents, servants, employees, contractors and subcontractors. Consultant acknowledges that the doctrine
of respowleal superior shall not apply as between the City. its officers, agents, servants and employees. and
Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees
that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and
Consultant. . It is further understood that the City shall in no way be considered a Co-employer or a Joint
employer of Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither
Consultant, nor any officers, agents, servants, employees or subcontractors of Consultant shall be entitled to any
employment benefits from the City. Consultant shall be responsible and liable for any and all payment and
reporting of taxes on behalf of itself.and any of its officers,agents,servants,employees or subcontractors.
8. LIABILITN AND INDEMNIFICATION.
A. LIABILITY - CONSULTANT 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 NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR
INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR
EMPLOYEES.
B. INDEMNIFICATION - CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY',
HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND
EMPLOYEES, FROM AND AGAINST ANN' AND ALL CLAIMS OR LAWSUITS OF ANN' KIND OR
CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS
(INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS, .AND ANN
RESULTING LOST PROFITS) PERSONAL INJURY, INCLUDING DEATH, TO ANN' AND ALL
PERSONS, AND DAMAGES FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,TO THE EXTENT CAUSED BN'
THE ACTS OR OMISSIONS OF CONSULTANT, ITS OFFICERS, AGENTS, SUBCONTRACTORS,
SERVANTS OR EMPLOYEES.
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C. INTELLECTUAL PROPERTY INFRINGEMENT—(i)The Consultant warrants that all Deliverables, or
any part thereof, furnished hereunder, including but not limited to: programs, documentation, software,
analyses, applications, methods, ways, and processes (in this Section 8C 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.
(ii) Consultant shalt be liable and responsible for any and all claims made against the City 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 City's continued use of the Deliverable(s)hereunder.
(iii)Consultant agrees to indemnify,defend,settle,or pay,at its own cost and expense,including the payment
of attorney's fees,any claim or action against the City for infringement of any patent,copyright,trade mark,
service mark,trade secret,or other intellectual property right arising from City's use of the Deliverable(s),or
any part thereof, in accordance with this Agreement, it being understood that this agreement to indemnify,
defend,settle or pay shall not apply if the City modifies or misuses the Deliverable(s).So long as Consultant
bears the cost and expense of payment for claims or actions against the City pursuant to this section 8,
Consultant shall have the right to conduct the defense of any such claim or action and all negotiations for its
settlement or compromise and to settle or compromise any such claim; however,City shall have the right to
fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's
interest, and City agrees to cooperate with Consultant in doing so. In the event City, for whatever reason,
assumes the responsibility for payment of costs and expenses for any claim or action brought against the City
for infringement arising under this Agreement, the City shall have the sole right to conduct the defense of
any such claim or action and all negotiations for its settlement or compromise and to settle or compromise
any such claim; however, Consultant shall fully participate and cooperate with the City in defense of such
claim or action. City agrees to give Consultant timely written notice of any such claim or action, with copies
of all papers City,may receive relating thereto. Notwithstanding the foregoing, the City's assumption of
payment of costs or expenses shall not eliminate Consultant's duty to indemnify the City under this
Agreement. if the Deliverable(s), or any part thereof,is held to infringe and the use thereof is enjoined or
restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted,
Consultant shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to
continue to use the Deliverable(s); or(b) modify the Deliverable(s) to make them/it non-infringing,provided
that such modification does not materially adversely affect City's authorized use of the Deliverable(s); or(c)
replace the Deliverable(s) with equally suitable, compatible, and functionally equivalent non-infringing
Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably
available to Consultant, terminate this Agreement, and refund all amounts paid to Consultant by the City,
subsequent to which termination City may seek any and all remedies available to City under law.
CONSULTANT'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE
INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION 10 OF THIS AGREEMENT.
9. Assienment and Subcontracting
Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement
without the prior written consent of the City. If the City grants consent to an assienment. the assignee shall execute
a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties
and obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable for all
obligations under this .Agreement prior to the assignment. If the City grants consent to a subcontract, the
subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the
subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such
duties and obligations may, apply. The Consultant shall provide the City with a fully executed copy of any such
subcontract.
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10. INSURANCE,
10.1 The Consultant shall carry the following insurance coverage with a company that is licensed to do business
in Texas or otherwise approved by the City:
I. Commercial General Liabilitv
a.Combined limit of not less than$3.000,000 per occurrence.$4111illion aggregate or
b. Combined limit of not less than $1,000,000 per occurrence; 53.000,000 aggregate and Umbrella
Coverage in the amount of$=4.000.000. Umbrella policy shall contain a follow-form provision and shall
include coverage for personal and advertising injury.
c. Defense costs shall be outside the limits of liabilitN.
3. Automobile Liability Insurance coverinu 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.
3. Professional Liability (Errors & Omissions) in the amount of $1,000,000 per claim and $1.000.000
aggregate limit.
4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount
required by statute.
5. Technology Liability(Errors& Omissions)
a.Combined limit of not less than $3,000,000 per occurrence: $4million aggregate or
b. Combined limit of not less than $1,000,000 per occurrence: $3.000,000 aggregate and Umbrella
Coverage in the amount of$4,000,000. Umbrella policy shall contain a follow-form provision and shall
include coverage for personal and advertising injury. The umbrella policy shall cover amounts for any
claims not covered by the primary'Technology Liability policy. Defense costs shall be outside the limits of
liability.
(a) Coverage shall include,but not be limited to.the following:
(i)Failure to prevent unauthorized access
(ii) Unauthorized disclosure of information
(iii) Implantation of malicious code or computer virus
(iv) Fraud. Dishonest or Intentional Acts with final adjudication language
(v) Intellectual Property Infringement coverage, specifically including coverage for intellectual
property infringement claims and for indemnification and legal defense of any claims of
intellectual property infringement,including infringement of patent.copyright, trade mark or trade
secret, brought against the City for use of Deliverables. Software or Services provided by
Consultant under this Agreement.
Technology coverage may be provided throu,h an endorsement to the Commercial General Liabilitv
(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.Technology coverage shall be written to indicate that legal costs and fees are considered
outside of the policy limits and shall not erode limits of liability. Any deductible will be the sole
responsibility of the Consultant and may not exceed $50,000 without the written approval of the City.
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
(3) years following completion of services provided. An annual certificate of insurance, or a full copy of
the policy if requested,shall be submitted to the City to evidence coverage.
6. Any other insurance as reasonably requested by City.
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10.'_ General Insurance Requirements:
1. All applicable policies shall name the Cit) 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.
2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of
the City of Fort Worth.
3. A minimum of Thirty(30)days' notice of cancellation or reduction in limits of coverage shall be provided
to the City. 'I en (10) days' notice shall be acceptable in the event of non-payment of premium. Notice
shall be sent to the Risk tilanager.City of Fort Worth, 1000 Throckmorton. Fort Worth,Texas 76102,with
copies to the City Attorney at the same address.
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 ratin- 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
5. Any failure on the part of the City to request required insurance documentation shall not constitute a
waiver of the insurance requirement.
6. Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be
delivered to and approved by the City's Risk Management Division prior to execution of this Agreement.
Ill. Compliance with Laws,Ordinances.Rules and Regulations.
Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules and
regulations. If the City notifies Consultant of any violation of such laws. ordinances, rules or regulations_
Consultant shall immediately desist from and correct the violation.
12. Non-Discrimination Covenant.
Consultant, for itself, its personal representatives,assigns, subcontractors and successors in interest, as part
of the consideration herein, agrees that in the performance of Consultant'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 Consultant, its personal
representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to
indemnify and defend the City and hold the City harmless from such claim.
13. Notices.
Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have
been delivered when (I) 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 THE CITY:
City of Fort Worth With Copy to the City Attorney
Attn:Charmaine Salone at same address
Water IT, Water Department
1000 Throckmorton
Fort Worth TX 76102
TO CONSULTANT:
Mythics, Inc.
Attn: Dale Darr
Vice President,Contracts
1439 North Great Neck Road. Suite 201
Virginia Beach, VA 23454
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la. Solicitation of Emplovees.
Neither the City nor Consultant shall. during the term of this Agreement and additionally for a period of
one year after its termination. solicit for employment or employ. whether as employee or independent contractor.
any person who is or has been employed by the other during the teen of this .Agreement, without the prior written
consent of the person's employer. This provision shall not apply to an employee Nvho responds to a general
solicitation or advertisement of employment by either party.
15. Governmental Powers.
It is understood and agreed that by execution of this Agreement. the Citv does not w=aive or surrender anv
of its governmental powers. y
16. No Waiver.
The failure of the City or Consultant to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's
respective right to insist upon appropriate performance or to assert any such right on any future occasion.
17. Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State of Texas. If any action,
whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall
tie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of
Texas. Fort Worth Division.
18. Severability.
If any provision of this Agreement is held to be invalid, illegal or unenforceable. the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired.
19. Force Majeure,
The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as
set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force
majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance
with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts,
natural disasters, wars, riots. material or labor restrictions by any governmental authority. transportation problems
and or any other similar causes.
20. Headings Not Controlling.
Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part
of this,Agreement.
21. Review of Counsel.
The parties acknowledge that each party and its counsel have reviewed this Agreement and that the normal
rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or exhibits hereto.
22. Amendments.
No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth
in a written instrument,and duly executed by an authorized representative of each party.
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23. Entirety of Agreement.
This Agreement, including any exhibits attached hereto and any documents incorporated herein by
reference, contains the entire understanding and agreement between the City and Consultant. their assigns and
successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement
is hereby declared null and void to the extent in conflict with any provision of this Agreement.
24. Counterparts.
This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes,
be deemed an original, but all such counterparts shall together constitute one and the same instrument. An executed
Agreement. modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted
through electronic means, such as fax or e-mail, and reflects the signing of the document by any party. Duplicates
are valid and binding even if an original paper document bearing each party's original signature is not delivered.
25. Warranty of Services.
Consultant warrants that its services will be of a professional quality and conform to generally prevailing
industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the
date that the services are completed. In such event, at Consultant's option, Consultant shall either (a) use
commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty, or (b)
refund the fees paid by the City to Consultant for the nonconforming services.
26. Milestone Acceptance.
Consultant shall verify the quality of each deliverable before submitting it to the City for review and
approval. The City will review all deliverables to determine their acceptability and signify acceptance by execution
of the Milestone Acceptance Form, which is attached hereto as Exhibit "U' If the City rejects the submission, it
will notify the Consultant in writing as soon as the determination is made listing the specific reasons for refection.
The Consultant shall have ten (10) days to correct any deficiencies and resubmit the corrected deliverable. Payment
to the Consultant shall not be authorized unless the City accepts the deliverable in writing in the form attached. The
City's acceptance will not be unreasonably withheld.
27. Network Access.
27.1 City Network Access. If Consultant, and or any of its employees, officers, agents, servants or
subcontractors(for purposes of this section"Consultant Personnel',), requires access to the City's computer network
in order to provide the services herein, Consultant shall execute and comply with the Network Access Agreement
which is attached hereto as Exhibit"D"and incorporated herein for all purposes.
37? Federal Law Enforcement Database Access. If Consultant. or any Consultant Personnel, requires
access to any federal law enforcement database or any federal criminal history record information system, including
but not limited to Fingerprint Identification Records System ("FIRS"), Interstate identification Index System ("III
Svstem"), National Crime Information Center ("NCIC") or National Fingerprint File (-'NFF"). that is governed by
and/or defined in 'T'itle 28, Code of Federal Regulations Part 20 (-CFR Part 20"), for the purpose of providing
services for the administration of criminal justice as defined therein on behalf of the City under this Agreement,
Consultant shall comply with the Criminal Justice Information Services Security Policy and CFR Part 210, and shall
separately execute the Federal Bureau of Investigation Criminal Justice information Services Security Addendum.
28. limmieration Nationaliti Act.
The City of Fort Worth actively supports the Immigration 3 Nationality Act (iNA) which includes
provisions addressing employment eligibility, employment verification, and nondiscrimination. Consultant shall
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verify the identity and employment eligibility of all employees who perform work under this Agreement.Consultant
shall complete the Employment Eligibility Verification Form (1-9), maintain photocopies of ail supporting
employment eligibility and identity documentation for all employees, and upon request, provide City with copies of
all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement.
Consultant shall establish appropriate procedures and controls so that no services will be performed by any
employee who is not legally eligible to perform such services. Consultant shall provide City with a certification
letter that it has complied with the verification requirements required by this Agreement. Consultant shall indemnify
City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately
terminate this Agreement for violations of this provision by Consultant.
29. Informal Dispute Resolution.
Except in the event of termination pursuant to Section 4.2, if either City or Consultant 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(101 business
days of receipt of the notice, both parties shall continence the resolution process and 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 in Tarrant County,Texas,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. 'file mediator shall be agreed to by the parties. Each party shall be liable for
its own expenses, including attorneys fees; however, the parties shall share equally in the costs of the mediation. If
the parties 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. Notwithstanding the fact that the parties may be attempting to
resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without
delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party
may.before or during the exercise of the informal dispute resolution process set forth herein,apply to a court having
jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its
interests.
30. Reporting Requirements.
For purposes of this section,the words below shall have the following meaning:
Child shall mean a person under the age of 18 years of age.
Child pornogrupht- means an image of a child engaging in sexual conduct or sexual performance as defined by
Section 43.25 of the Texas Penal Code.
Compuler means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that
performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and
includes all input, output, processing, storage, or communication facilities that are connected or related to the
device.
Cornpuler lechnicion means an individual who, in the course and scope of employment or business, installs, repairs,
or otherwise services a computer for a fee. This shall include installation of software, hardware, and maintenance
services.
If Consultant meets the definition of Computer Technician as defined herein, and while providing services pursuant
to this Agreement, views an image on a computer that is or appears to be child pornography, Consultant shall
immediately report the discovery of the image to the City and to a local or state law enforcement agency or the
Cyber Tip line at the National Center for Missing and Exploited Children. The report must include the name and
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address of the owner or person claiming a right to possession of the computer, if known,and as permitted by law.
Failure by Consultant to make the report required herein may result in criminal andlor civil penalties.
31. Sienature Authority.
The person signing this agreement hereby warrants that heshe has the legal authority to execute this
agreement on behalf of the respective party, and that such binding authority has been granted by proper order.
resolution, ordinance or other authorization of the entity, This Agreement, and any amendment(s) hereto, may be
executed by any authorized representative of Consultant whose name, title and signature is affixed on the
Verification of Signature Authority Form, which is attached hereto as Exhibit "E" and incorporate herein by
reference.Each party is fully entitled to rely on these warranties and representations in entering into this Agreement
or any amendment hereto
Executed in multiples this thc;Qaday o)4JZ620�
AGREED: AGREED:
CITY OF FORT WORTH: MYXHICS,INC:
By: CBy: j`/�
Fernando Costa Dale Darr
Assistant City Manager Vice President,Contracts
Date: 7/26/15 Date• ZCl1�
ATTE `�,� ATTEST.
$ o�
By: i h-0 8'X By:
M 'ayser v% o" Name
City Secreta `fop oo°� Title
0000000
APPROVE A TO FORM AND LEGALITY:
By:
Jessica San vang
Assistant Ci t
Attorney
CONTRACT AUTHORIZATION:
M&C: (---V735/0
/
Date Approved:
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
Mythics.Inc Professional Services Agreement-Technolop
Page 10 of 10 Re% 7f 8i 15
MYTH ICS
` Unrivaled Oracle Expertise j
EXHIBIT A
STATEMENT OF WORK
June 18, 301 5
David Holt
Senior IT Manager
Mythics, Inc.
Work X48474
Dear Mr. Holt,
Over the last several months Fort Worth Water Department has been engaged in discussions with Oracle
and Mythics regarding the department's Oracle.Application(CRM)environment. Through initial
discovery,requirements analysis and scoping with the Fort Worth Nater Department a transition to a SaaS
based subscription license and Cloud Services environment will address the Fort Worth Water
Department's goals and needs.
'Mythics is pleased to present this proposal for the migration of your legacy Oracle environment to the
Oracle Service Cloud.
'Mythics will deliver these services to Fort Worth Nater Department. Mythics will proN ide the technical
resources for the mi"ration of the legacy environment to the Oracle Service Cloud, contract management
and administration.
Our team is in a unique position to provide the Fort Worth Water Department with e\pert project administration,
oversight,and delivery of an efficient and cost effective migration to the Oracle Service C loud. Our team offers a
combination of focus and support to the city different than any other:
• C nmatched Oracle breadth and depth
• Superior skills and expertise in managing and delivering projects involving multiple partners on time and
within budget.
• Deep experience in delivering secure and integrated Cloud solutions
SOW Summary:
Service commencement: Within 30 days of contract award
Period of Performance 60 days after contract start
conclusion:
Contract Vehicle: T\ DIR Contract DIR-TSO-2548
Total Fees(including Optional Services): $157,876.00
Sincerely,
.Anita Tmka
,a nku o ill%11111Lb.'
727-403-9233
-�N! MYTHICS-
MYTH ICS
Unrivaled Oracle Expertise
This Statement of Work (hereinafter referred to as"SOW") is entered into by and between Fort Worth
Water Department(hereinafter referred to as"Client"), and Mythics. Inc.(hereinafter referred to as
"Mythics").
Consulting Services
Purpose
The purpose of this document is to describe the Scope and Effort involved in migrating the City of Fort
Worth Water Department's current solution from Oracle PeopleSoft to Oracle ServiceCloud. While the
Scope defines the requirements and deliverables based our current understanding,the Effort defines both
the man-days(8 consecutive hours)and cost to accomplish the scope as mentioned.
Terms & Conditions
Mythics is submitting this proposal in accordance to the Tema and Conditions Mythics' State of Texas
DIR Contract No.: DIR-TSO-2548,effective date of 15.October 201-4. The parties have also entered into
a separate professional services agreement to which this statement of work is attached. The agreement
between the parties further specifies the terms and conditions between the parties. If there are any
conflicts between the DIR Contract, the term and conditions outlined in this Exhibit or the agreement
executed between the parties,the terms and conditions of the agreement between the parties shall control.
Business Drivers
Fort Worth Water Department wants to transition to a SaaS model transitioning from their legacy."on
prem"Oracle CRh9 system. Fort Worth Water Department will obtain significant value from this
subscription model and services engagement by having the Oracle Service Cloud running in Oracle's
public cloud.
Scope of Services
The document illustrates the overall sequence of activities that will be required to successfully deploy the
City of Fort Worth Water Department CRM solution. After an initial discovery period, the requirements
gathering workshop will be conducted where the City provides business requirements to the Mythics team to
help create business and technical requirements. process flows, and use cases. Subsequently. the Business
Requirement Document(BRD) is created by the Mythics team which will be reviewed and approved by the
City.
The process proceeds with solution development and configuration phases followed by Data Conversion,
UAT, user training, deployment and support activities. Finally. the solution goes through a complete
regression and stress testing before being migrated to the production instance.
The following is the projected project timeline based on the tasks and timelines listed on the diagram and
to achieve the project completion within 60 calendar days from the project kick-off date_
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Go Live Preparation:
Implementation
The implementation effort and cost is derived based on milestones.Each milestone comprises a set of tasks to
be completed.
mow' 5..-.... .. —Al
Phase-wiseActivities Summary Detail Cost Assumptloas/Comments
(man (man
days) ---
DISCOVERY& 7.0
DEFINITION PHASE
Requirements 5.0 1.Conduct requirements discovery sessions
Analysis 2.Review current system
(Discovery and 2.0 functionality
Workshop) 3.Conduct master requirements workshop
4.Document core scope, deliverables,tasks
and timelines
5.Submit Business Requirement Document to
the Client for review and obtain client's
approval
DESIGN PHASE 10.0
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Core Objects and Data 4.0 1.High level solution design of
Model Definition and configuration and integration components
Design
Integration Components 4.0 2. Update Business Requirements
Solution Design DOCUment(BRD)document and submit the
document to the client for review and obtain
Solution Design 2.0 client's approval
Walkthrough: Review and
Consent by Client
CONFIGURATION 239
PHASE
Core Application 57 1.Configuration of a Single Production Instance
Configuration: of Oracle Service Cloud(in English).
SERVICE CLOUD 2.Oracle provides two instances of
Object Con figuration ServiceCIOUd. They are i)Production instance
and ii)Staging Testing instance.
3.After Go-Live date. Mythics would raise a
Service Request with Oracle to synchronize the
Production Instance and the Staging Testing
instance.
4.Please see more details in Core Application
Configuration Section
The Water Department 55 1.Configuration of a Water Department
Customer Portal(including customer portal production instance.
Nater Waste functionality) 2.Water Department customer portal will be
deployed in the English Language.
3,Water Department Customer Portal also
supports the functionality required for
reporting and viewing the status of cases.
4.Please see more details in Water
Department Customer Portal Section
Data Management 62 Master Data import from PeopleSoft to
Oracle Service Cloud. Please see Data
Management, for more details
Tclephony Integration 40 CTI IVR system integration with Avaya.
Please see Telephony Integration,for more
details.
Reports and Please see details in Reports and
Dashboards Dashboards Section
DOCUMEN'T'ATION 15.0
Documentation 15 1.Prepare Business Requirements Document
(BRD)
SIT PHASE 5.0
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System Integration 5.0 Client SIT:Supported by Mythics
Testing
USERTRAINING 0.0
Usertraining 0.0 1. Mythics will provide the Screen shots
and business Eow diagrams to assists
the Client's training team to develop
the user training document.
2. Mythics will deliver a day long on-site
train-the-trainer/workshop session
on the deployed solution.
3. Mythics will deliver a half a day web
based/on-line user training session.
4. Oracle Sales will provide a one-day
onsite core application configuration
workshop.
i
UAT PHASE 1O.0
User Acceptance 10.0 Client OAT:Supported by Mythics
Testing Support
DEPLOYMENTPHASE 2.0
Deploymentof 2.0
Integration
Componentsin
web/application
servers
GO-LIVE 2.0
Go Live Preparation 2.0 User Activation,any data clean up related
Activities activities before go live
Post 5.0 24/7 Post Production
Production Support and Maintenance.
support
PROJECT MANAGEMENT 29.5 Set up tasks
and
timelines
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Item Man Das Reference Description
Integrations: 30.0 �1. GIS-Google Maps/ESRI
GIS Integration
Integrations: 55.0 1.Maximo Integration
Maximo/ 2. SunGard to Oracle Service Cloud
SunGard Daily Import Batch
't1#t 11p ementation Cost $135,000,00 Tota Cost ofhoplementation
Il
3?�4S MAaci Days)
Annual Post Production Support and Maintenance Services(Optional)
Item Hours Description
Solution 200/Year A block of 200 hours (a $1 14.38"hour ($915/day) for all
Enhancements, (Cost 200 hoursypes of resources. Any effort over and above these hours
Support and $1 14.38/hour $22,876.00 will be calculated at listed rates as described in the table in i
Maintenance per annum) the Consulting Fees section below.
For budgeting purposes.
Total Implementation Cost $157,876.00 Total Cost of Implementation including
(Based on 324.5 Man Days)and Optional Services
Post Production Support and
Maintenance
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Configuration Phase
Core Application Configuration:Oracle Service Cloud Object Configuration
# Type Description Assumptions/Comments
1 Accounts Setting up I. Setting up corresponding Sign In and
Customizing Profiles Password Control policies.
Security settings(If any) 2. Implementing 1P Security Restrictions,if
User Groups required
User Creation and Activation 3. Activating*the corresponding Currencies.
if required
4. Maximum of 50 users licenses
5 Maximum of 10 Roles
2 Application Layout Role Management with Configuring corresponding layouts.
Record and Tab access
controls
3 Application Contact Object Configuration I. Creation of custom fields.if required
Appearance -Field Configuration 2. Creating Contact Workspace
-Contact Object -Layout Configuration 1,laximum of 50 fields per Object
Confieuration v
4 Application Incident Object Configuration I. Creation of custom fields(if required)
Appearance -Field Configuration 2. Creating Incident Workspace
-Incident Object -Layout Configuration 3. Maxinwm of 50 fields per Object
Configuration
5 Application Answers Object Configuration 1. Creation of custom fields(if required)
Appearance -Field Configuration I. Creatin!Answers Workspace
-Answers Object -Layout Configuration 3. Maximum of 50 fields per Object
Configuration 4. Guided Assistance
6 Application Address Custom Object I. Creation of custom fields
Appearance Configuration 2. Creating of Address Workspace
-Address Custom -Field Configuration 3. Maximum of 25 fields per Object
Object Confi.2uration -La voutConfi=uration
7 i Business Rules,Work- Implementation of Standard Business Rules,Work-Flows and Scripts are
flows and Scripts Business Rules,Work-Flows programmable constructs within Oracle
and Scripts that Oracle ServiceCloud Administrative console that
SERVICE:CLOUD will allow allows certain actions to take place trigger
to generate based on certain business conditions.
8 Notifications Based on the Case type Maximum of 5 notifications will be
notifications will be sent to configured
various email ids v
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Water Department Customer Portal (including Water Waste)—
# Type Description Assumptions/Comments
Develop Water ['his solution allows the end user to
Department report and track an online service I. Web portal will be developed in
Customer Portal. -equesdcomplaint related to all Water English Language only
Department related service requests 2. Up to 15 pages of web content
including Water Waste observations. (Content will be provided by the
I Client)
3. Up to 3 levels of drill down capabilities
4. Up to 10 web forms ternplates(With
maximum of 15 fields per web form)
Receive and Receive. respond to and track all 1. All Service Requests from the web
respond to all Service requests related to the Water portal are received into one open
Water Department using the Water queue.
Department Department Customer Portal. I Ability to submit a Service Request to
related service
report all Water Department related
requests
including Water issues including water waste. leaks and
2. Waste similar with and without providing
complaints, their identification(i.e.,anonymously)
3. Ability to track all Service Requests
and get notifications via email.
4. Residential Service Address will be
validated as required based on the
business process using City provided
data source before a Service Request is
accepted.
5. No audio and video clips will be
included
Knowledge Base This solution provides a channel Mythics will import up to 500 Knowledge
FAQs for the end users to obtain Base articles to the solution.Client shall
infornlation about the water provide the content for the Knowledge Base
3. department services offered to articles.
them by the City.This will also
serve as FAQs
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Search Bar This solution provides the ability
to search for information on the
a portal.The knowledge base kill
act the source and return results
based on the keywords entered by
the user.
Web Links All the links which redirect to Client will provide the list of related
i
related websites will be included websites and other web pages
in the Water Department
Customer Portal.
Responsive This solution provides dynamic Client can suggest if they would like to hide
Design changes to the appearance layout certain sections of the page on smaller
of the webpage,adjusting itself screens which are visible on normal larger
6 according to the screen size and screens
orientation of the device it is being
viewed on.This enables the site to
be viewed across multiple devices
and scale gracefully.
Make a Service Request
Geocoding This solution provides the option GIS-Google Maps ESRI(Address
Reverse of using an online map to make the Validation)
Geocoding selection of an address more user
7. friendly. So the address can be
selected either by dragging the
marker on the map or by manually
entering an address in the search
box
Anonymous This solution allows citizens to
8. Complaint raise complaints anonymously
Submission
Successful Upon successful creation of a
9 Submission service request,the end user will
be given a Tracking ID Reference
Number to track the progress of
the request.
Check Status(Track Complaints)
10 Track any This solution allows die end user
Service Requests to track the progress of a Service
Request via the Tracking
ID/Reference Number.This
Tracking ID/Reference Number
will be provided to the user upon
successful creation of the service
request
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I I Track Service Once the Tracking ID Reference Client can suggest details that should be
Requests based Number is verified,the user will shown to the user in this section
on an address be shown the entire history of
the service request(Creation
date.type of service request,
comments,and current status)
Email Inquiry This solution provides the option I. Create one web form with max 15
to the end user to submit an Fields distributed to max 3 standard
offline message via the "Ask a objects
Question" page.
3. New Service Request is created in
the Service cloud
Ask a Question(Email)
Service Request Upon successful submission of' I. Service Request can be
Summary Service Request using the tracked using Reference
l Customer Portal,the user will be Number
given a Tracking ID Reference
Number to track the service
request.
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Data Management
4 Type Description Assumptions/Comments
I Master Data Import 1. Mapping file preparation for Onetime Pre production:Master Data
Initial& Pre- Importing data from PeopleSoft into Import for Contact Accounts Records
Production): Contacts Oracle Service Cloud
Accounts 2. Creating*a data mapping file Accu um_tion_:
Import the data using either Oracle 1. Data Volume:!Maximum of
Sen ice Cloud Data Loader and or 250,000 Contact Accounts records
MNthics mass data import components 2. Client„ill provide clean data in
the requested format(CSV.TIF.
\LS)
3.Client will provide the data source tiles
in chunks of 50,000 records per file f
No Cross Object Data relationship (.
and or validation is assumed
k
I
Master Data Import 1. %lapping file preparation for Onetime Pre production:Master Data
(Initial& Pre importing data from PeopleSoft into Import for Case'Service Requests Records
Production): Oracle Service Cloud.
Case Service Requests 2.Creating a data mapping file Assum tib ons: j
Import the data using either Oracle 1. Data Volume: Maximum of?
SERVICE CLOUD Data Loader Million Case Service Requests j
and or Mythics mass data import records i
components 2.Client will provide clean data in
the requested format(CSV,TIF,
\LS)
3.Client v,ill provide the data source files
in chunks of 50,000 records per file
No Cross Object Data relationship and or
validation is assumed
1 1439 N.Great Neck Rd,Virginia Beach,VA 23454
I
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Tete ony Integration
# Type Description Assumptions/Comments
1. Inteuration with Understanding,designing. Client will be providing details about the CTI
Ava)a CTI and customizing,and testing the provider.and a detailed documentation on the
Oracle CTI-Integration with Client's current implementation scope and expected
ServiceCloud to system. When a call is functionality.
enable Screen POP accepted,an incident screen Assumptions,
pops up on the agent desktop 1. Client will provide the APIs for the
with few fields auto CTI IVR applications
populated.This integration 2. Client will coordinate and facilitate
works very similar to how the meetings between Mythics and their CTI IVR
current integration between vendor
Avaya and Oracle PeopleSoft 3. Client will provide the test staging
CRM. environment for tcsting the components
4. Client will provide an,Application Server
within their network to deploy the
integration components
5.Client will enable and provide administrator
access to the Application Server to deploy the
integration components.
6. The specifications(hardware and software)
for the Application Server are provided in the
Hardware table below.
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Reports and Dashboards
!i Type Description Assumptions/Comments
1. Reports 1.Create Transactional 1. Max 20 custom reports are often required to
and Analytical Reports. query and display information in specific format.
?. Standard Reports 2. Reports can be developed on Transactional data
created using Oracle only, i.e.,on fields that are configured in Oracle
Service Cloud reporting Service Cloud.
tools. Status Reports(Weekly,Daily,Monthly and
3. Scheduling Reports Yearly)
Top Requested Category Reports
Top Answers Record
Escalation queue report
Scheduling
No of unresolved Service Request
Frequently viewed Answers Reports
Customer information management reports
My Inbox
Search Reports
3. Reports can be scheduled.
CRM Case Count Types
Transfer CRM Case Types Report
CT Accln SrvcReq CLOSED Report
Daily Storm Water Report
Daily Supervisor Report
H2ONLINE daily report
Monthly Supervisor Report
Supervisor Case Type Count for Open and
Closed Case
WATER CONSERVATION ALL CASES
Report DAILY
WATER CONSERVATION DUPLICATE
CASES
Water Conservation Mail Merge Report
WATER CONSERVATION W LAST
UPDATE RPT FOR ASH MONTHLY
Weekend Supervisor Report
Transfer CRM Case Types
PG Adjustment CT MiscAdj
Transfer CRM Case Types Report
2. Dashboards Create Dashboards 1. Dashboards is a special user Layout within
Oracle Service cloud that can be used to showcase
collection of reports.
2. Dashboards provide a quick means of accessing
the mostly viewed repots.
3. Maximum of 20 Dashboards are included
(Development effort of 2 days per dashboard is
assumed).
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Integrations
# Type Description Assumptions/Comments
I. Delta Data Daily Integration with SunGard Daily batch data Import: Daily Data import to
Import from billing (billing system)to fetch the update the customer information from billing
system(SunGard) Customer information. system.
(NOTE: Does not include
Implementation Configurat Assumptions;
ion of SunGard) L Client will provide clean data in the
requested format(CSV,TIF.\LS)
1. Mapping file preparation ?. No Cross Object Data relationship and
for Importing data from Data validation is assumed.
Files into Oracle SERVICE 3. Mythics would develop and deploy a batch
CLOUD program as an executable to be scheduled to
2.Creating a data mapping file run at a specific time during the weekdays
Import the data using either after business hours.
Oracle SERVICE CLOUD 4.This program would be deployed on an
Data Loader and or Mythics APP server within the client's network.
Batch data components
2. Maximo(Work Integration with Maximo to I.Client is requested to provide integration
Order Management update or create work orders related information like W SDL(Web
System) in Oracle Service Cloud. Services Definition Language)for web
(NOTE: Does not include services for real time integration.
Implementation Configurati
on of Maximo)
Warranty Services (Deployed Solutions)
Mythics warrants all configuration and integration components related to the deployed solution
during the warranty period. Mythics will fix all the issues within the warranty period of 90 days after
Go-Live. During the Warranty period Mythics fixes any issues within the scope of the delivered
solution.Warranty will be void if the client changes/updates any configuration and integration
components without Mythics support team's assistance.
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Hardware Table
uil a .h dt to Bost-*cOmpoaexio.404 bate vrocmOg
�tir1�
#! Description Specifications _
I Processor Intelg Xeong,CPU E5-3690 v2(13.00 GHZ 2.00GHZ(6 Processor)
2 RAM 16GB
3 Hard Disk Drive 500 GB
d Operating System Windows Server 2013 Enterprise
5 System Type 64 bit Operating System
Out of Scope Items
• Any solution outside the scope defined in this document is considered out of scope.
• Examples included but not limited to configuration ofCTl/lVR,Maximo,SunGard,and SSRI.
Project Staffing
To conduct this project effectively and within the allotted timeframes,Mythics'team and the Fort
Worth Water Department will form a tightly integrated and cohesive team. The diagram below
depicts the planned staffing structure for the execution of the project.
iw JL
Mythics&Fort Wurth Water Department Project Org Chart
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Project Assumptions
Mythics used the following assumptions during development of this SOW. Any changes to these
assumptions may affect the price and schedule commitments.
I. The objective of this implementation project is to migrate the core functionality as configured in
current Oracle PeopleSoft CRM system to Oracle Service Cloud.
?. Implementation Team Roster would include: 1.One solution architect,2.One technical manager,3.
Two to three Business analysts,4.Two to three Configuration specialists, 5.Two to three integration
developers,6.Two to four UAT,QA,SIT specialists,7.One to two support staff,S.One network and
security admin.
3. All implementation services are provided by staff located in Plano and other delivery centers.
4. No on-site resources are assumed during the implement phase except during the workshop which will
be conducted on-site and during user training and production deployment dates
5. Training Documentation includes a Standard User Administrator Training PPT which will be
developed in collaboration with Client's training staff. Mythics will provide all the screen shots as
completed at the time of UAT signoff and Client would incorporate them into their training slides.
Client's training team would provide the content for the training slides based on their user's skill level.
6. Admin User training: Mythics will provide a 4 hour on-site training the trainer session followed by a 4
hours web based user training if required.Client is responsible for training their own internal staff.
7. All information exchanges are accomplished via emails, web conference meetings and or telephone
conversations only.
S. Core configuration and workflows are accomplished using Oracle ServiceCloud Administrative console
and or other tools provided by Oracle. All custom components to integrate Oracle CX instance to
the external applications/system like Avaya CTI,and Clients external data sources are accomplished
using Oracle ServiceCloud Web services APIs. Mythics will assist Client's component developers to
develop the integration components using the published WS(Web Services).APIs by Oracle. Custom
components are delivered by deploying executables either on client's network and or from Mythics
data centers. Mythics will deploy both integration and batch components as executables with Web
Service function calls to dynamically alter the deployed integration components.
9. Client understands and acknowledges that providing the Information,Access,and personnel
assigned to work with Mythics in a timely manner is essential for the successful deployment of the
solution within the time and budget. Failure to meet this requirement could result in delays which
will be addressed through the Chante Control Process detailed below.
• Information shall mean knowledge communicated by Client regarding Client's business
process.
• Access shall mean gaining contact to Client's existing system and environment.
10. Client shall maintain the active subscriptions of the Oracle ServiceCloud and or other applications that
are required to support and maintain the deployed CRlbl solutions.
11. Client acknowledges that Mythics does not have any control of the maintenance schedule of Oracle
Applications and/or other Client internal applications and or App servers.
12. Client acknowledges that the custom components and or batch programs that are deployed by Nlythics
reside on APP servers which are located inside the Client's domain firewall and maintained by CIient
internal 11'staff.
13. Client acknowledges that Mythics will not be held responsible for any non-availability of the deployed
Oracle Application solution due to unavailability of Client internal applications and or Client App
servers and or Oracle data center issues and or general network outages.
14. Oracle Service Cloud should not be used for Data Storage and Archiving purposes. All data in Oracle
Service Cloud is backed up automatically.
15. For better performance,support and maintenance of the deployed solution,Client is requested to
follow the Industry best Practices that are suggested by Mythics and Oracle.Client will not hold
Mythics responsible for any performance and quality related issues due to the Solution(s)
suggested by the client and implemented by Mythics.
16. Client will not hold Mythics responsible for maintaining and supporting other applications that are
not developed by Mythics.
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Change Control
Client acknowledges and agrees that if impediments,complications,or Client requested changes in scope
arise,these factors are out of the control of Mythics,and the length of the project and associated price could
be impacted. Mythics will deliver the scope defined in this document under a fixed price as listed.
Examples of valid impediments.complications,and changes which might cause modifications to the time
schedule consist of(but are riot limited to):
• Client provided information necessary for timely delivery by Mythics is not accurate.
• Delays or problems associated with third party telecommunication equipment.(This includes,but is
not limited to,cabling,servers,routers,hubs,and switches managed or installed by third parties.)
• Malfunctioninehardware.
• Inability to access equipment or personnel that are required to complete the project.
• Conflicts or incompatibilities associated with the installation of hardware or software installed by
Mythics.
• Client increases the scope of services requiring additional labor,hardware,software.materials,travel,
lodging.meals,or other direct costs.
Change Control Process for Modifications to Scope of Work:
1.When Mythics Project Manager identifies a scope change.!Mythics Plvi would inform the Client's Project
Manager followed by submitting a scope,deliverables and Effort based on Time and Material to
accomplish the new Change Request(CR). All changes in scope of services must be approved via an
amendment to the agreement for these services.
2.The cost of accomplishing a CR is calculated as per the Block of support hours followed by the hourly
rate mentioned herein.
3.Once approval is received,Mythics P'vI will submit the updated Project timeline and incorporate the CR
scope into the overall project deliverables.
a.An invoice for a CR will be submitted upon the delivery of the CR.
Change Control Process for Modifications to Time Schedule:
I. When Mythics Project Manager identifies a change to the time schedule, Mythics PM will inform the
Client's Project Manager followed by submitting a request in writing with the modified schedule.
2. The Client's Project Manager will review the request.
3. Upon approval of the time extension, Mythics shall complete the work as modified.
Acceptance Criteria
Firm Fixed Price(FFP)—(milestone completion based billing)
For this deliverables based Firm Fixed Price(FFP)the Client has ten(10)business days to inspect and
acknowledge full delivery of the Services to be provided hereunder upon completion and delivery of the
Services or each milestone. The Client will indicate such acknowledgement by signing the City's
Milestone Acceptance Form as prescribed in the underlying agreement. If the Client believes that
Mythics has not fully delivered the Services to be provided hereunder and refuses to sign the Project
Completion Form on that basis,the Client shall identify in reasonable detail the specific Services,
milestone,or deliverables which the Client believes were not delivered or delivered to specification or
mutually agreed to quality levels,with specific reference to the corresponding sections of this SOV,via
written notice to Mythics within such(10)business day period. Following Mythics' receipt of any such
notification,the parties shall cooperate in good faith to promptly address and resolve any remaining
Service delivery requirements. Upon delivery of the remaining Services.if any,the Client right to inspect
and acknowledge full delivery shall be as stated above.
1439 N.Great Neck Rd.Virginia Beach,VA 23454
Revised 6.18.1, 866.MYTHICS I kyvvkv.NIVthics.c0 m
Unrivaled Oracle Expertise
Consulting Services Fees
Mythics is pleased to offer its services in teaming with the Client in the e.Xecution of this engagement.
The table below details our total professional fees for this engagement.
Any changes to the scope of work under this SOIL',requested by either Client or Mythics.shall be
documented through an amendment to the services agreement.The requested change shall be described in a
change order document,anv associated cost for either the Client or Mythics identified,and Mythics and the
Client mutually agree to the change as acknowledged through a signature by designated representatives of
Nivthics and the Client. y
1439 N.Great Neck Rd.Virginia Beach,VA 23454
Revised 6.18.15 866.MYTHICS I w vw.Mythics.com
1$'1,? MYTH 1 CS
Unrivaled Oracle Expertise
EXHIIBT B: PAYMENT SCHEDULE
Milestones and Deliverables
Estimated Fees.
'Mll111,10.tottola compkfloa
ofDdivrerable 'Description A&WaneeCriteria task
Completion of Fort Worth Water BRD Signoff $33,750.00
Discovery& Department&
Definition Phase, Mythics Review of
and Design Phase, Business
with Business Requirements
Requirements Documentation,Fort
Milestone 1 Documentation Worth Water
Department Sign Off
Completion of the Complete $33.750.00
"Configuration configuration
Phase". "Water Fort Worth Water
Department Department&Mythics
Customer Portal", Review of
"Data Configurations or
Management", Oracle Service Cloud
"Telephony instance, Water Waste
Integration",and Website instance,
"Reports and Master Data Import,
Dashboards" CTI/IVR Integration
Milestone 2 and Transactional,
sections. Analytics and Standard
Reports.
Fort Worth Water
Department and
Sign Off
Completed System UAT Signoff $33.750.00
Integration Testing,
Updated Business User Training and
Requirements Completed User
Document, Acceptance Testing,
Milestone 3 System and Review of updated
Integration Business Requirements
(Maximo, Document with Fort
Sungard and Worth Water
G 1 S), Department,Sign Off
Completion of by Fort Worth Water
System Integration Department
Testing,User
Training and User
Acceptance
Testing
Deployment of Fort Worth Water Go-Live $33,750.00
Integration Department and
Milestone 4 Components in Mythics Review and
Web Completion of User
Application Activation,data
Servers,User cleanup and Go Live
Activation and
Go Live
TOTAL:$135,000.00
MYTH ICS
Unrivaled Oracle Expertise
Any additional services added through the established change order process above will be billed on a
Time and Material basis at the specified rates below per the Mythics'State of Texas DIR Contract No:
DIR-TSO-3548,effective date of 15,October 3014.
sv l lk P....,_. 1J D4sc unt Net t#iftladvAng
�1�11f
Senior Solution Architect $248.00 10.00°0 $333.00
Solution Architect $336.00 10.0000 $212.40
Program Manager $204.00 10.000,0 $183.60
Project Mana er 11 $193.00 10.00°0 $172.80
Project Manager 1 $180.00 10.00010 $162.00
Contract Administrator $84.00 10.000/0 $75.60
Subject Matter Expert 11 $300.00 10.0006 $270.00
Subject Matter Expert 1 $283.00 10.00% $353.80
Partner SME ACS IV $435.00 10.0006 $383.50
Partner SME ACS 111 1 $354.00 10.00% $318.60
Partner SME ACS I1 $383.00 10.0046 $254.70
Partner SME ACS I $312.00 10.00% $190.80
The offer of pricing set forth in this SOW shall become effective and binding on Mythics and Client
only upon the execution of the agreement by both the parties.
Revised 6.18.15 1439 N.Great Neck Rd.Virginia Beach,VA 23454
866.MYTHICS(www.Mythics.c0nt
EXHIBIT C
MILESTONE/DELIVERABLE ACCEPTANCE FORM
Services Delivered:
Milestone Deliverable Ref. *:
Milestone Deliverable Name:
Unit Testing Completion Date:
Milestone Deliverable Target Completion Date:
Milestone Deliverable Actual Completion Date:
Approval Date:
Comments(if needed):
Approved by Consultant: Approved by City Department Director:
Signature: Signature:
Printed Name: Printed Name:
Title: Title:
Date: Date:
For Director Use Only
Contracted Payment Amount:
Adjustments, including penalties:
Approved Payment Amount:
EXHIBIT D
NETWORK ACCESS AGREEMENT
1. The Network.The City owns and operates a computing environment and network(collectively the
"Network"). Contractor wishes to access the Citv's network in order to migrate the Water Department's legacy
Oracle environment to the Oracle Service Cloud. In order to provide the necessary support,Contractor needs access
to the Oracle CRM, Esri GIS, SunGard CIS and .Avaya Development,"Test and Train environments.
2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's Network for
the sole purpose of migrating the Water Department's legacy Oracle environment of the Oracle Service Cloud.
Such access is granted subject to the terms and conditions forth in this Agreement and applicable provisions of the
Citv's Administrative Regulation D-7 (Electronic Communications Resource Use Policy), of which such applicable
provisions are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are
available upon request.
3. Network Credentials. The City will provide Contractor with Network Credentials consisting of user IDs
and passwords unique to each individual requiring Network access on behalf of the Contractor. Access rights will
automatically expire one (I) year from the date of this .Agreement. If this access is being granted for purposes of
completing services for the City pursuant to a separate contract, then this Agreement will expire at the completion
of the contracted services, or upon termination of the contracted services, whichever occurs first. This Agreement
will be associated with the Services designated below.
❑ Services are being provided in accordance with City Secretary Contract No.
❑ Services are being provided in accordance with City of Fort Worth Purchase Order No.
® Services are being provided in accordance with the Agreement to which this Access Agreement is
attached.
❑ No services are being provided pursuant to this Agreement.
4. Renewal. At the end of the first year and each year thereafter, this Agreement may be renewed annually
if the following conditions are met:
4.1 Contracted services have not been completed.
4.2 Contracted services have not been terminated.
4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the
Contractor has provided the City with a current list of its officers. agents. servants. employees or
representatives requiring Network credentials.
Notwithstanding the scheduled contract expiration or the status of completion of services,Contractor shall provide
the City with a current list of officers, agents. servants, employees or representatives that require Network
credentials on an annual basis. Failure to adhere to this requirement may result in denial of access to the Network
and or termination of this Agreement.
5. Network Restrictions. Contractor officers, agents, servants, employees or representatives may not
share the City-assigned user IDs and passwords.Contractor acknowledges,agrees and hereby gives its authorization
to the City to monitor Contractor's use of the City's Network in order to ensure Contractor's compliance with this
Agreement. A breach by Contractor, its officers, agents, servants, employees or representatives, of this Agreement
and any other written instructions or guidelines that the City provides to Contractor pursuant to this Agreement shall
be grounds for the City immediately to deny Contractor access to the Network and Contractor's Data, terminate the
Agreement,and pursue any other remedies that the City may have under this Agreement or at law or in equity.
5.1 Notice to Contractor Personnel For purposes of this section, Contractor Personnel shall include
all officers, agents, servants, employees, or representatives of Contractor. Contractor shall be responsible for
specifically notifying all Contractor Personnel who will provide services to the City under this agreement of the
following City requirements and restrictions regarding access to the City's Network:
(a) Contractor shall be responsible for any City-owned equipment assigned to Contractor Personnel.
and will immediately report the loss or theft of such equipment to the City
(b) Contractor, and or Contractor Personnel, shall be prohibited from connecting personally-owned
computer equipment to the City's Network
(c) Contractor Personnel shall protect City-issued passwords and shall not allow any third party to
utilize their password and/or user ID to gain access to the City's Network
(d) Contractor Personnel shall not engage in prohibited or inappropriate use of Electronic
Communications Resources as described in the City's Administrative Regulation D7
(e) Any document created by Contractor Personnel in accordance with this Agreement is considered
the property of the City and is subject to applicable state regulations regarding public information
(f) Contractor Personnel shall not copy or duplicate electronic information for use on any non-City
computer except as necessary to provide services pursuant to this Agreement
(g) All network activity may be monitored for any reason deemed necessary by the City
(h) A Network user ID may be deactivated when the responsibilities of the Contractor Personnel no
longer require Network access
6. Termination. In addition to the other rights of termination set forth herein, the City may terminate this
Agreement at any time and for any reason with or without notice,and without penalty to the City. Upon termination
of this Agreement,Contractor agrees to remove entirely any client or communications software provided by the City
from all computing equipment used and owned by the Contractor, its officers, agents, servants, employees and,or
representatives to access the City's Network.
7. Information Security. Contractor agrees to make every reasonable effort in accordance with accepted
security practices to protect the Network credentials and access methods provided by the City from unauthorized
disclosure and use. Contractor agrees to notify the City immediately upon discovery of a breach or threat of breach
which could compromise the integrity of the City's Network,including but not limited to,theft of Contractor-owned
equipment that contains City-provided access software, termination or resignation of officers, agents, servants,
employees or representatives with access to City-provided Network credentials,and unauthorized use or sharing of
Network credentials.
ACCEPTED AND AGREED:
CI ORTH: MYT S,INC.:
By: y:
Fernando Costa � �00000j Na e: Dale E. Darr
Assistant City_ ana er Q °�0 Title: vice Presiden ontra�ts
7 _�. _
Date: Z 3 l ° 0 ate: z. -
o° c
0
ATTEST: $ ST:
0
o°
By. - — °O°000000 —
Ci S re TEXT Name: _reontg tvatters
Title: contracts manager.
APPROVED AS O FORM AND LEGALITY:
By:
Assistant City A ey
M&C: a required
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
EXHIBIT E
VERIFICATION OF SIGNATURE AUTHORITI
Full Legal Name of Company:
Legal Address:
Services to be provided:
Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals andior
positions have the authority to legally bind the Company and to execute any agreement,amendment or change order
on behalf of Company. Such binding authority has been granted by proper order, resolution, ordinance or other
authorization of Company.The City is fully entitled to rely on the warranty and representation set forth in this Form
in entering into any agreement or amendment with Company. Company will submit an updated Form within ten
(10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current
executed Form until it receives a revised Form that has been properly executed by the Company.
I. Name:Dale E. Darr
P�skkron: Vice President, Contracts b Compliance
1 t
Sig ature
2. Name:
Position:
Signature
3. Name:
Position:
Signature
N
2ame:
1,14eVt-U,-
Signature of President CEO
other Title: Rick Welborn, Corporate Treasurer
Date: �(
EXHIBITF
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
Table of Contents DIR Contract Number TSO 2548
1. Contract Scope......... ............................ ................................................................................ 1
2. No Quantity Guarantees......................................................................................................... 1
3. Definitions.......................................................... .....................-............ ................. ............. 1
4. General Provisions................................................................................................................. 2
A. Entire Agreement.......................................................................................................... 2
B. Modification of Contract Terms and/or Amendments.................................................. 2
C. Invalid Term or Condition.............. 2
D. Assignment ................................................................................................................... 3
E. Survival......................................................................................................................... 3
F. Choice of Law............................................................................................................... 3
G. Limitation of Authority................................................................................................. 3
IL Proof of Financial Stability........................................................................................... 3
5. Intellectual Property Matters.................................................................................................. 4
A. Definitions..................................................................................................................... 4
B. Ownership..................................................................................................................... 5
C. Further Actions. ............................................................................................................ 5
D. Waiver of Moral Rights. ............................................................................................... 6
E. Confidentiality. ............................................................................................................. 6
F. Injunctive Relief............................................................................................................ 6
G. Return of Materials Pertaining to Work Product. ......................................................... 6
H. Vendor License to Use.................................................................................................. 7
I. Third-Party Underlying and Derivative Works. ........................................................... 7
J. Agreement with Subcontracts....................................................................................... 7
K. License to Customer. .....................................................................I..........................I... 7
L. Vendor Development Rights......................................................................................... 8
6. Product Terms and Conditions............................................................................................... 8
A. Electronic and Information Resources Accessibility Standards.. As Required
by I TAC Chapters 206 and 213 (,Applicable to State Agency and
Institution of Higher Education Purchases Only)......................................................... 8
B. Purchase of Commodity Items (Applicable to State Agency Purchases
Only)............................................................................................................................. 8
7. Contract Fulfillment and Promotion...................................................................................... 9
A. Service. Sales and Support of the Contract................................................................... 9
B. Use of Order Fulfillers.................................................................................................. 9
1) Designation of Order Fulfillers............................................................................... 9
2) Changes in Order Fulfiller List............................................................................... 9
3) Order Fulfiller Pricing to Customer...................................................................... 10
05/02/14 i D IR-TSO-2548
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
C. Product Warranty and Return Policies.......................................................................1 10
D. Customer Site Preparation .......................................................................................... 10
E. Internet Access to Contract and Pricing Information ................................................. 10
1 ) Vendor Website .................................................................................................... 10
2) Accurate and Timely Contract Information.......................................................... 10
3) Website Compliance Checks ................................................................................ 10
4) Website Changes................................................................................................... l 1
5) Use of Access Data Prohibited ............................................................................. 1 1
6) Responsibility for Content.................................................................................... I 1
F. DIR Logo.................................................................................................................... I l
G. Vendor and Order Fulfiller Logo................................................................................ I I
H. Trade Show Participation............................................................................................ I I
1. Orientation Meeting.................................................................................................... 12
J. Performance Review Meetings................................................................................... 12
K. DIR Cost Avoidance................................................................................................... 12
8. Pricing. Purchase Orders. Invoices. and Payments.............................................................. I?
A. Manufacturer's Suggested Retail Price (MSRP) or List Price....................1............... I2
B. Customer Discount...................................................................................................... 12
C. Shipping and Handling Fees....................................................................................... 13
D. Tax-Exempt................................................................................................................. 13
E. Travel Expense Reimbursement................................................................................. 13
F. Changes to Prices........................................................................................................ 13
G. Purchase Orders .......................................................................................................... 14
H. Invoices....................................................................................................................... 14
I. Payments..................................................................................................................... 14
9. Contract Administration....................................................................................................... 15
A. Contract Managers...................................................................................................... 15
11) State Contract Manager......................................................................................... 15
2) Vendor Contract Managerr..................................................................................... 15
B. Reporting and Administrative Fees ............................................................................ 15
1) Reporting Responsibility ...................................................................................... 15
2) Detailed Monthly Report ...................................................................................... 15
3) Historically Underutilized Businesses Subcontract Reports................................. 15
4) DIR Administrative Fee........................................................................................ 16
5) Accurate and Timely Submission of Reports ....................................................... 16
C. Records and Audit....................................................................................................... 16
D. Contract Administration Notification ......................................................................... 17
10. Vendor Responsibilities....................................................................................................... 18
A. Indemnification........................................................................................................... 18
B. Tares/Worker's Compensation/UNEMPI_,OYMFNT INSURANCE........................ 19
C. Vendor Certifications.................................................................................................. 20
D. Ability to Conduct Business in Texas......................................................................... 21
E. Equal Opportunity Compliance.................................................................................. 21
05/02/14 ii DIR-TSO-2548
EXHIBIT D
NETWORK ACCESS AGREEMENT
I. The Network.The City owns and operates a computing environment and network(collectively the
"Network"). Contractor wishes to access the City's network in order to migrate the Water Department's legacy
Oracle environment to the Oracle Service Cloud. In order to provide the necessary support,Contractor needs access
to the Oracle CRM, Esri GIS, SunGard CIS and Avaya Development,Test and Train environments.
2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's Network for
the sole purpose of migrating the Water Department's legacy Oracle environment of the Oracle Service Cloud.
Such access is _ranted subject to the terms and conditions forth in this Agreement and applicable provisions of the
City's .Administrative Regulation D-7 (Electronic Communications Resource Use Policy), of which such applicable
provisions are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are
available upon request.
3. Network Credentials. The City will provide Contractor with Network Credentials consisting of user IDs
and passwords unique to each individual requiring*Network access on behalf of the Contractor. Access rights will
automatically expire one (I) year from the date of this Agreement. If this access is being granted for purposes of
completing services for the City pursuant to a separate contract, then this Agreement will expire at the completion
of the contracted services, or upon termination of the contracted services, whichever occurs first. This Agreement
will be associated with the Services designated below.
❑ Services are being provided in accordance with City Secretary Contract No.
❑ Services are being provided in accordance with City of Fort Worth Purchase Order No.
® Services are being provided in accordance with the Agreement to which this Access Agreement is
attached.
❑ No services are being provided pursuant to this Agreement.
4. Renewal. At the end of the first year and each year rhereafter, this Agreement may be renewed annually
if the following conditions are met:
4.1 Contracted services have not been completed.
4.2 Contracted services have not been terminated.
4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the
Contractor has provided the City with a current list of its officers, agents, servants, employees or
representatives requiring Network credentials.
Notwithstanding the scheduled contract expiration or the status of completion of services,Contractor shall provide
the City with a current list of officers, agents. servants, employees or representatives that require Network
credentials on an annual basis. Failure to adhere to this requirement may result in denial of access to the Network
and:or termination of this Agreement.
5. Network Restrictions. Contractor officers, agents, servants, employees or representatives may not
share the City-assigned user IDs and passwords.Contractor acknowledges,agrees and hereby gives its authorization
to the City to monitor Contractor's use of the City's Network in order to ensure Contractor's compliance with this
Agreement. A breach by Contractor, its officers, agents, servants, employees or representatives, of this Agreement
and any other written instructions or guidelines that the City provides to Contractor pursuant to this Agreement shall
be grounds for the City immediately to deny Contractor access to the Network and Contractor's Data, terminate the
Agreement,and pursue any other remedies that the City may have under this Agreement or at law or in equity.
5.1 Notice to Contractor Personnel - For purposes of this section, Contractor Personnel shall include
all officers, agents, servants, employees, or representatives of Contractor. Contractor shall be responsible for
specifically notifying all Contractor Personnel who will provide services to the City under this agreement of the
following City requirements and restrictions regarding access to the City's Network:
(a) Contractor shall be responsible for any City-owned equipment assigned to Contractor Personnel.
and will immediately report the loss or theft of such equipment to the City
(b) Contractor, and or Contractor Personnel, shall be prohibited from connecting personally-owned
computer equipment to the City's Network
(c) Contractor Personnel shall protect City-issued passwords and shall not allow any third party to
utilize their password and/or user ID to gain access to the City's Network
(d) Contractor Personnel shall not engage in prohibited or inappropriate use of Electronic
Communications Resources as described in the City's Administrative Regulation D7
(e) Any document created by Contractor Personnel in accordance with this Agreement is considered
the property of the City and is subject to applicable state regulations regarding public information
(f) Contractor Personnel shall not copy or duplicate electronic information for use on any non-City
computer except as necessary to provide services pursuant to this Agreement
(g) All network activity may be monitored for any reason deemed necessary by the City
(h) A Network user ID may be deactivated when the responsibilities of the Contractor Personnel no
longer require Network access
6. Termination. In addition to the other rights of termination set forth herein, the City may terminate this
Agreement at any time and for any reason with or without notice,and without penalty to the City.Upon termination
of this Agreement,Contractor agrees to remove entirely any client or communications software provided by the City
from all computing equipment used and owned by the Contractor, its officers, agents, servants, employees and or
representatives to access the City's Network.
7. Information Security. Contractor agrees to make every reasonable effort in accordance with accepted
security practices to protect the Network credentials and access methods provided by the City from unauthorized
disclosure and use. Contractor agrees to notify the City immediately upon discovery of a breach or threat of breach
which could compromise the integrity of the City's Network,including but not limited to,theft of Contractor-owned
equipment that contains City-provided access software, termination or resignation of officers, agents, servants,
employees or representatives with access to City-provided Network credentials,and unauthorized use or sharing of
Network credentials.
ACCEPTED AND AGREED:
CITU OF FORT WORTH: MIN
S,INC.:
By: ByFernando Costa e: Dale E. Darr
Assistant City Manager Title: vice President, contracts
Date: Date: 7/14/1015
ATTEST: ATTEST:
By: By:
City Secretar} Name: 0eonte J. Watters
Title: Contracts Manager
APPROVED AS TO FORM AND LEGALITY:
By:
Assistant City Attorney
M&C: none required
EXHIBIT E
VERIFICATION OF SIGNATURE At THORITI
Full Legal Name of Company:
Legal Address:
Services to be provided:
Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and or
positions have the authority to legally bind the Company and to execute any agreement. amendment or change order
on behalf of Company. Such binding authority has been granted by proper order, resolution. ordinance or other
authorization of Company. The City is fully entitled to rely on the«arranty and representation set forth in this Form
in entering into any agreement or amendment with Company. Company will submit an updated Form within ten
(10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current
executed Form until it receives a revised Form that has been properly executed by the Company.
1. Name: ie E. Darr
Position. Vice President, Contiart
Signature
2. Name:
Position:
Signature
3. Name:
Position:
Signature
Name:
Signature of President/CEO
Other Title: Ricckk�Wieelborn, ccrp�rate Treasurer
Date:
EXHIBIT F
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
Table of Contents DIR Contract Number TSO 2548
1. Contract Scope....................................................................................................................... 1
2. No Quantity Guarantees......................................................................................................... 1
3. Definitions.............................................................................................................................. 1
4. General Provisions................................................................................................................. 2
A. Entire Agreement..........................................................................................................2
B. Modification of Contract Terms and/or Amendments..................................................2
C. Invalid Term or Condition............................................................................................2
D. Assignment ................................................................................................................... 3
E. Survival.........................................................................................................................3
F. Choice of Law............................................................................................................... 3
G. Limitation of Authority................................................................................................. 3
H. Proof of Financial Stability...........................................................................................3
5. Intellectual Property Matters..................................................................................................4
A. Definitions..................................................................................................................... 4
B. Ownership..................................................................................................................... 5
C. Further Actions. ............................................................................................................ 5
D. Waiver of Moral Rights. ...............................................................................................6
E. Confidentiality. .............................................................................................................6
F. Injunctive Relief............................................................................................................ 6
G. Return of Materials Pertaining to Work Product. ......................................................... 6
H. Vendor License to Use.................................................................................................. 7
I. Third-Party Underlying and Derivative Works. ........................................................... 7
J. Agreement with Subcontracts....................................................................................... 7
K. License to Customer. .................................................................................................... 7
L. Vendor Development Rights......................................................................................... 8
6. Product Terms and Conditions............................................................................................... 8
A. Electronic and Information Resources Accessibility Standards, As Required
by 1 TAC Chapters 206 and 213 (Applicable to State Agency and
Institution of Higher Education Purchases Only)......................................................... 8
B. Purchase of Commodity Items (Applicable to State Agency Purchases
Only) ............................................................................................................................. 8
7. Contract Fulfillment and Promotion...................................................................................... 9
A. Service, Sales and Support of the Contract................................................................... 9
B. Use of Order Fulfillers.................................................................................................. 9
1) Designation of Order Fulfillers............................................................................... 9
2) Changes in Order Fulfiller List............................................................................... 9
3) Order Fulfiller Pricing to Customer...................................................................... 10
05/02/14 i DIR-TSO-2548
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
C. Product Warranty and Return Policies........................................................................ 10
D. Customer Site Preparation .......................................................................................... 10
E. Internet Access to Contract and Pricing Information ................................................. 10
1) Vendor Website .................................................................................................... 10
2) Accurate and Timely Contract Information.......................................................... 10
3) Website Compliance Checks................................................................................ 10
4) Website Changes................................................................................................... 11
5) Use of Access Data Prohibited ............................................................................. 11
6) Responsibility for Content.................................................................................... 1 l
F. DIR Logo.................................................................................................................... I 1
G. Vendor and Order Fulfiller Logo................................................................................ 11
H. Trade Show Participation............................................................................................ 11
1. Orientation Meeting.................................................................................................... 12
J. Performance Review Meetings................................................................................... 12
K. DIR Cost Avoidance................................................................................................... 12
8. Pricing, Purchase Orders, Invoices, and Payments.............................................................. 12
A. Manufacturer's Suggested Retail Price(MSRP) or List Price.................................... 12
B. Customer Discount...................................................................................................... 12
C. Shipping and Handling Fees....................................................................................... 13
D. Tax-Exempt................................................................................................................. 13
E. Travel Expense Reimbursement................................................................................. 13
F. Changes to Prices........................................................................................................ 13
G. Purchase Orders.......................................................................................................... 14
H. Invoices....................................................................................................................... 14
I. Payments..................................................................................................................... 14
9. Contract Administration....................................................................................................... 15
A. Contract Managers...................................................................................................... 15
1) State Contract Manager......................................................................................... 15
2) Vendor Contract Manager..................................................................................... 15
B. Reporting and Administrative Fees ............................................................................ 15
1) Reporting Responsibility ...................................................................................... I5
2) Detailed Monthly Report...................................................................................... 15
3) Historically Underutilized Businesses Subcontract Reports................................. 15
4) DIR Administrative Fee........................................................................................ 16
5) Accurate and Timely Submission of Reports....................................................... 16
C. Records and Audit....................................................................................................... 16
D. Contract Administration Notification......................................................................... 17
10. Vendor Responsibilities....................................................................................................... 18
A. Indemnification........................................................................................................... 18
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE........................ 19
C. Vendor Certifications..................................................................................................20
D. Ability to Conduct Business in Texas.........................................................................21
E. Equal Opportunity Compliance..................................................................................21
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F. Use of Subcontractors.................................................................................................22
G. Responsibility for Actions ..........................................................................................22
H. Confidentiality............................................................................................................22
I. Security of Premises, Equipment, Data and Personnel...............................................22
J. Background and/or Criminal History Investigation....................................................23
K. Limitation of Liability.................................................................................................23
L. Overcharges ................................................................................................................23
M. Prohibited Conduct.....................................................................................................23
N. Required Insurance Coverage.....................................................................................23
O. Use of State Property..................................................................................................25
P. Immigration.................................................................................................................25
Q. Public Disclosure........................................................................................................25
R. Product and/or Services Substitutions ........................................................................25
S. Secure Erasure of Hard Disk Products and/or Services..............................................25
T. Deceptive Trade Practices; Unfair Business Practices...............................................25
U. Drug Free Workplace Policy ......................................................................................26
V. Accessiblity of Public Information.............................................................................26
W. Vendor Reporting Requirements................................................................................26
11. Contract Enforcement..........................................................................................................26
A. Enforcement of Contract and Dispute Resolution......................................................26
B. Termination.................................................................................................................27
1) Termination for Non-Appropriation.....................................................................27
a) Termination for Non-Appropriation by Customer............................................27
b) Termination for Non-Appropriation by DIR....................................................27
2) Absolute Right......................................................................................................27
3) Termination for Convenience...............................................................................28
4) Termination for Cause ..........................................................................................28
a) Contract........................................................................................................... 28
b) Purchase Order................................................................................................28
5) Customer Rights Under Termination....................................................................28
6) Vendor or Order Fulfiller Rights Under Termination...........................................28
C. Force Majeure.............................................................................................................29
12. Notification..........................................................................................................................29
A. Notices ........................................................................................................................29
B. Handling of Written Complaints.................................................................................29
13. Captions...............................................................................................................................29
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The following terms and conditions shall govern the conduct of DIR and Vendor during the term
of the Contract.
1. Contract Scope
The Vendor shall provide the products and related services specified in Section 3 of the
Contract for purchase by Customers. In addition, DIR and Vendor may agree to provisions
that allow Vendor and/or Order Fulfiller to lease the products offered under the Contract.
Terms used in this document shall have the meanings set forth below in Section 3:
2. No Quantity Guarantees
The Contract is not exclusive to the Vendor. Customers may obtain products and related
services from other sources during the term of the Contract. DIR makes no express or
implied warranties whatsoever that any particular quantity or dollar amount of products
and related services will be procured through the Contract.
3. Definitions
A. Customer - any Texas state agency, unit of local government, institution of higher
education as defined in Section 2054.003, Texas Government Code, and those state
agencies purchasing from a DIR contract through an Interagency Agreement, as
authorized by Chapter 771, Texas Government Code, any local government as
authorized through the Interlocal Cooperation Act, Chapter 791, Texas Government
Code, and the state agencies and political subdivisions of other states as authorized by
Section 2054.0565, Texas Government Code and, except for telecommunications
services under Chapter 2170, Texas Government Code, assistance organizations as
defined in Section 2175.001, Texas Government Code to mean:
1) A non-profit organization that provides educational, health or human
services or assistance to homeless individuals;
2) A nonprofit food bank that solicits, warehouses, and redistributes edible
but unmarketable food to an agency that feeds needy families and
individuals;
3) Texas Partners of the Americas, a registered agency with the Advisory
Committee on Voluntary Foreign Aid, with the approval of the Partners
of the Alliance Office of the Agency for International Development;
4) A group, including a faith-based group, that enters into a financial or non-
financial agreement with a health or human services agency to provide
services to that agency's clients;
5) A local workforce development board created under Section 2308.253;
6) A nonprofit organization approved by the Supreme Court of Texas that
provides free legal services for low-income households in civil matters;
7) The Texas Boll Weevil Eradication Foundation, Inc., or an entity
designated by the commissioner of agriculture as the foundation's
successor entity under Section 74.1011, Texas Agriculture Code;
8) A nonprofit computer bank that solicits, stores, refurbishes and
redistributes used computer equipment to public school students and their
families; and
9) A nonprofit organization that provides affordable housing.
B. Compliance Check — an audit of Vendor's compliance with the Contract may be
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performed by, but not limited to, a third party auditor, DIR Internal Audit department,
or DIR contract management staff or their designees.
C. Contract—the document executed between DIR and Vendor into which this Appendix
A is incorporated.
D. CPA—refers to the Texas Comptroller of Public Accounts.
E. Day - shall mean business days, Monday through Friday, except for State and Federal
holidays, unless otherwise specified as calendar days. If the Contract calls for
performance on a day that is not a business day, then performance is intended to occur
on the next business day.
F. Order Fulfiller—the party,either Vendor or a party that may be designated by Vendor,
who is fulfilling a Purchase Order pursuant to the Contract.
G. Purchase Order -the Customer's fiscal form or format, which is used when making a
purchase (e.g., formal written Purchase Order, Procurement Card, Electronic Purchase
Order, or other authorized instrument).
H. State—refers to the State of Texas.
4. General Provisions
A. Entire Agreement
The Contract, Appendices, and Exhibits constitute the entire agreement between DIR
and the Vendor. No statement, promise, condition, understanding, inducement or
representation, oral or written, expressed or implied, which is not contained in the
Contract, Appendices, or its Exhibits shall be binding or valid.
B. Modification of Contract Terms and/or Amendments
1) The terms and conditions of the Contract shall govern all transactions by Customers
under the Contract. The Contract may only be modified or amended upon mutual
written agreement of DIR and Vendor.
2) Customers shall not have the authority to modify the terms of the Contract;
however, additional Customer terms and conditions that do not conflict with the
Contract and are acceptable to Order Fulfiller may be added in a Purchase Order and
given effect. No additional term or condition added in a Purchase Order issued by a
Customer can conflict with or diminish a term or condition of the Contract. Pre-printed
terms and conditions on any Purchase Order issued by Customer hereunder will have no
force and effect. In the event of a conflict between a Customer's Purchase Order and the
Contract, the Contract term shall control.
3) Customers and Vendor will negotiate and enter into written agreements regarding
statements of work, service level agreements, remedies, acceptance criteria, information
confidentiality and security requirements, and other terms specific to their Purchase
Orders under the Contract with Vendors.
C. Invalid Term or Condition
1) To the extent any term or condition in the Contract conflicts with the applicable State
and/or United States law or regulation, such Contract term or condition is void and
unenforceable. By executing a contract which contains the conflicting term or condition,
DIR makes no representations or warranties regarding the enforceability of such term
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or condition and DIR does not waive the applicable State and/or United States law or
regulation which conflicts with the Contract term or condition.
2) If one or more terms or conditions in the Contract, or the application of any term or
condition to any party or circumstance, is held invalid, unenforceable, or illegal in any
respect by a final judgment or order of the State Office of Administrative Hearings or a
court of competent jurisdiction, the remainder of the Contract and the application of the
term or condition to other parties or circumstances shall remain valid and in full force
and effect.
D. Assignment
DIR or Vendor may assign the Contract without prior written approval to: i) a successor in
interest (for DIR, another state agency as designated by the Texas Legislature), or ii) a
subsidiary, parent company or affiliate, or iii) as necessary to satisfy a regulatory
requirement imposed upon a party by a governing body with the appropriate authority.
Assignment of the Contract under the above terms shall require written notification by the
assigning party and, for Vendor, a mutually agreed written Contract amendment. Any other
assignment by a party shall require the written consent of the other party and a mutually
agreed written Contract amendment.
E. Survival
All applicable software license agreements, warranties or service agreements that were
entered into between Vendor and a Customer under the terms and conditions of the Contract
shall survive the expiration or termination of the Contract. All Purchase Orders issued and
accepted by Vendor or Order Fulfiller shall survive expiration or termination of the
Contract. Rights and obligations under this Contract which by their nature should survive,
including, but not limited to any and all payment obligations invoiced prior to the
termination or expiration hereof; obligations of confidentiality; and, indemnification, will
remain in effect after termination or expiration hereof.
F. Choice of Law
The laws of the State shall govern the construction and interpretation of the Contract.
Exclusive venue for all actions will be in state court, Travis County, Texas. Nothing in the
Contract or its Appendices shall be construed to waive the State's sovereign immunity.
G. Limitation of Authority 1.
Vendor shall have no authority to act for or on behalf of the Texas Department of
Information Resources or the State except as expressly provided for in this Contract; no
other authority, power or use is granted or implied. Vendor may not incur any debts,
obligations, expenses, or liabilities of any kind on behalf of the State or DIR.
H. Proof of Financial Stability
Either DIR or Customer may require Vendor to provide proof of financial stability prior to
or at any time during the contract term.
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5. Intellectual Property Matters
A. Definitions
1)" Work Product" means any and all deliverables produced by Vendor for Customer
under a Statement of Work issued pursuant to this Contract, including any and all
tangible or intangible items or things that have been or will be prepared, created,
developed, invented or conceived at any time following the effective date of the
Contract, including but not limited to any (i) works of authorship (such as manuals,
instructions, printed material, graphics, artwork, images, illustrations, photographs,
computer programs, computer software, scripts, object code, source code or other
programming code, HTML code, flow charts, notes, outlines, lists, compilations,
manuscripts, writings, pictorial materials, schematics, formulae, processes, algorithms,
data, information, multimedia files, text web pages or web sites, other written or
machine readable expression of such works fixed in any tangible media, and all other
copyrightable works), (ii) trademarks, service marks, trade dress, trade names, logos,
or other indicia of source or origin, (iii) ideas, designs, concepts, personality rights,
methods, processes, techniques, apparatuses, inventions, formulas, discoveries, or
improvements, including any patents, trade secrets and know-how, (iv)domain names,
(v) any copies, and similar or derivative works to any of the foregoing, (vi) all
documentation and materials related to any of the foregoing, (vii) all other goods,
services or deliverables to be provided to Customer under the Contract or a Statement
of Work, and (viii) all Intellectual Property Rights in any of the foregoing, and which
are or were created, prepared, developed, invented or conceived for the use or benefit
of Customer in connection with this Contract or a Statement of Work, or with funds
appropriated by or for Customer or Customer's benefit: (a) by any Vendor personnel
or Customer personnel, or (b) 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.
2) "Intellectual Property Rights" means the worldwide legal rights or interests
evidenced by or embodied in: (i) any idea, design, concept, personality right, method,
process, technique, apparatus, invention, discovery, or improvement, including any
patents, trade secrets, and know-how; (ii) any work of authorship, including any
copyrights, moral rights or neighboring rights; (iii) any trademark, service mark, trade
dress, trade name, or other indicia of source or origin; (iv) domain name registrations;
and (v) any other proprietary or similar rights. The Intellectual Property Rights of a
party include all worldwide legal rights or interests that the party may have acquired
by assignment or license with the right to grant sublicenses.
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
Intellectual Property Rights, that Vendor is to provide Customer, issued pursuant to
the Contract.
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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
Intellectual 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 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.
B. Ownership.
As between Vendor and Customer, the Work Product and Intellectual Property Rights
therein are and shall be owned exclusively by Customer, and not Vendor. Vendor
specifically agrees that the Work Product shall be considered "works made for hire" and
that the Work Product shall, upon creation, be owned exclusively by Customer. To the
extent that the Work Product, under applicable law, may not be considered works made for
hire, Vendor hereby agrees that the Contract effectively transfers, grants, conveys, assigns,
and relinquishes exclusively to Customer all right, title and interest in and to all ownership
rights in the Work Product,and all Intellectual Property Rights in the Work Product,without
the necessity of any further consideration, and Customer shall be entitled to obtain and hold
in its own name all Intellectual Property Rights in and to the Work Product. Vendor
acknowledges that Vendor and Customer do not intend Vendor to be a joint author of the
Work Product within the meaning of the Copyright Act of 1976. Customer shall have
access, during normal business hours (Monday through Friday, 8AM to 5PM) and upon
reasonable prior notice to Vendor, to all Vendor materials, premises and computer files
containing the Work Product. Vendor and Customer, as appropriate, will cooperate with
one another and execute such other documents as may be reasonably appropriate to achieve
the objectives herein. No license or other right is granted hereunder to any Third Party IP,
except as may be incorporated in the Work Product by Vendor.
C. Further Actions.
Vendor, upon request and without further consideration, shall perform any acts that may be
deemed reasonably necessary or desirable by Customer to evidence more fully the transfer
of ownership and/or registration of all Intellectual Property Rights in all Work Product to
Customer to the fullest extent possible, including but not limited to the execution,
acknowledgement and delivery of such further documents in a form determined by
Customer. In the event Customer shall be unable to obtain Vendor's signature due to the
dissolution of Vendor or Vendor's unreasonable failure to respond to Customer's repeated
requests for such signature on any document reasonably necessary for any purpose set forth
in the foregoing sentence, Vendor hereby irrevocably designates and appoints Customer and
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its duly authorized officers and agents as Vendor's agent and Vendor's attorney-in-fact to
act for and in Vendor's behalf and stead to execute and file any such document and to do
all other lawfully permitted acts to further any such purpose with the same force and effect
as if executed and delivered by Vendor, provided however that no such grant of right to
Customer is applicable if Vendor fails to execute any document due to a good faith dispute
by Vendor with respect to such document. It is understood that such power is coupled with
an interest and is therefore irrevocable. Customer shall have the full and sole power to
prosecute such applications and to take all other action concerning the Work Product, and
Vendor shall cooperate, at Customer's sole expense, in the preparation and prosecution of
all such applications and in any legal actions and proceedings concerning the Work Product.
D. Waiver of Moral Rights.
Vendor hereby irrevocably and forever waives,and agrees never to assert, any Moral Rights
in or to the Work Product which Vendor may now have or which may accrue to Vendor's
benefit under U.S. or foreign copyright or other laws and any and all other residual rights
and benefits which arise under any other applicable law now in force or hereafter enacted.
Vendor acknowledges the receipt of equitable compensation for its assignment and waiver
of such Moral Rights. The term "Moral Rights" shall mean any and all rights of paternity
or integrity of the Work Product and the right to object to any modification, translation or
use of the Work Product, and any similar rights existing under the judicial or statutory law
of any country in the world or under any treaty, regardless of whether or not such right is
denominated or referred to as a moral right.
E. 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 sub-paragraph H.
Hereunder, Vendor shall not use, disclose, or permit any person to use or obtain the Work
Product, or any portion thereof, in any manner without the prior written approval of
Customer.
F. Injunctive Relief.
The Contract is intended to protect Customer's proprietary rights pertaining to the Work
Product, and the Intellectual Property Rights therein, and any misuse of such rights would
cause., substantial and irreparable harm to Customer's business. Therefore, Vendor
acknowledges and stipulates that a court of competent jurisdiction may immediately enjoin
any material breach of the intellectual property, use, and confidentiality provisions of this
Contract, upon a request by Customer, without requiring proof of irreparable injury as same
should be presumed.
G. Return of Materials Pertaining to Work Product.
Upon the request of Customer, but in any event upon termination or expiration of this
Contract or a Statement of Work, Vendor shall surrender to Customer all documents and
things pertaining to the Work Product, including but not limited to drafts, memoranda,
notes,records,drawings,manuals,computer software, reports,data,and all other documents
or materials (and copies of same) generated or developed by Vendor or furnished by
Customer to Vendor, including all materials embodying the Work Product, any Customer
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confidential information, or Intellectual Property Rights in such Work Product, regardless
of whether complete or incomplete. This section is intended to apply to all Work Product
as well as to all documents and things furnished to Vendor by Customer or by anyone else
that pertain to the Work Product.
H. 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.
I. Third-Party Underlying and Derivative Works.
To the extent that any Vendor IP or Third Party IP are embodied or reflected in the Work
Product, or are necessary to provide the Services, Vendor hereby grants to the Customer, or
shall obtain from the applicable third party for Customer's benefit, the irrevocable,
perpetual, non-exclusive, worldwide, royalty-free right and license, for Customer's internal
business purposes only, to (i) use, execute, reproduce, display, perform, distribute copies
of, and prepare derivative works based upon such Vendor IP or Third Party IP and any
derivative works thereof embodied in or delivered to Customer in conjunction with the
Work Product, and (ii) authorize others to do any or all of the foregoing. Vendor agrees to
notify Customer on delivery of the Work Product or Services if such materials include any
Third Party IP. On request, Vendor shall provide Customer with documentation indicating
a third party's written approval for Vendor to use any Third Party IP that may be embodied
or reflected in the Work Product.
J. Agreement with Subcontracts.
Vendor agrees that it shall have written agreement(s)that are consistent with the provisions
hereof related to Work Product and Intellectual Property Rights with any employees,agents,
consultants, contractors or subcontractors providing Services or Work Product pursuant to
the Contract, prior to their providing such Services or Work Product, and that it shall
maintain such written agreements at all times during performance of this Contract, which
are sufficient to support all performance and grants of rights by Vendor. Copies of such
agreements shall be provided to the Customer promptly upon request.
K. License to Customer.
Vendor grants to Customer, a perpetual, irrevocable, royalty free license, solely for the
Customer's internal business purposes, to use, copy, modify, display, perform (by any
means), transmit and prepare derivative works of any Vendor IP embodied in or delivered
to Customer in conjunction with the Work Product. The foregoing license includes the right
to sublicense third parties, solely for the purpose of engaging such third parties to assist or
carryout Customer's internal business use of the Work Product. Except for the preceding
license, all rights in Vendor IP remain in Vendor.
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L. Vendor Development Rights.
To the extent not inconsistent with Customer's rights in the Work Product or as set forth
herein, nothing in this Contract shall preclude Vendor from developing for itself, or for
others, materials which are competitive with those produced as a result of the Services
provided hereunder, provided that no Work Product is utilized,and no Intellectual Property
Rights of Customer therein are infringed by such competitive materials. To the extent that
Vendor wishes to use the Work Product, or acquire licensed rights in certain Intellectual
Property Rights of Customer therein in order to offer competitive goods or services to third
parties, Vendor and Customer agree to negotiate in good faith regarding an appropriate
license and royalty agreement to allow for such.
6. Product Terms and Conditions
A.Electronic and Information Resources Accessibility Standards, As Required by 1
TAC Chapters 206 and 213 (Applicable to State Agency and Institution of Higher
Education Purchases Only)
1) Effective September 1, 2006 state agencies and institutions of higher education shall
procure products which comply with the State Accessibility requirements for Electronic
and Information Resources specified in 1 TAC Chapters 206 and 213 when such
products are available in the commercial marketplace or when such products are
developed in response to a procurement solicitation.
2) Upon request, but not later than thirty (30) calendar days after request, Vendor shall
provide DIR with a completed Voluntary Product Accessibility Template (VPAT) of
the specified product or a URL to the VPAT for reviewing compliance with the State
Accessibility requirements (based on the federal standards established under Section
508 of the Rehabilitation Act).
B.Purchase of Commodity Items (Applicable to State Agency Purchases Only)
1)Texas Government Code, §2157.068 requires State agencies to buy commodity items,
as defined in 6.13.2, below, in accordance with contracts developed by DIR, unless the
agency obtains an exemption from DIR or a written certification that a commodity is
not on DIR contract (for the limited purpose of purchasing from a local government
purchasing cooperative).
2) Commodity items are commercially available software, hardware and technology
services that are generally available to businesses or the public and for which DIR
determines that a reasonable demand exists in two or more state agencies. Hardware is
the physical technology used to process, manage, store, transmit, receive or deliver
information. Software is the commercially available programs that operate hardware and
includes all supporting documentation, media on which the software may be contained
or stored, related materials, modifications, versions, upgrades, enhancements, updates
or replacements. Technology services are the services, functions and activities that
facilitate the design, implementation, creation, or use of software or hardware.
Technology services include seat management, staffing augmentation, training,
maintenance and subscription services. Technology services do not include
telecommunications services. Seat management is services through which a state agency
transfers its responsibilities to a vendor to manage its personal computing needs,
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including all necessary hardware, software and technology services.
3) Vendor agrees to coordinate all State agency commodity item sales through existing
DIR contracts. Institutions of higher education are exempt from this Subsection 5.13.
7. Contract Fulfillment and Promotion
A. Service, Sales and Support of the Contract
Vendor shall provide service,sales and support resources to serve all Customers throughout
the State. It is the responsibility of the Vendor to sell, market, and promote products and
services available under the Contract. Vendor shall use its best efforts to ensure that
potential Customers are made aware of the existence of the Contract.All sales to Customers
for products and services available under the Contract shall be processed through the
Contract.
B. Use of Order Fulfillers
DIR agrees to permit Vendor to utilize designated Order Fulfillers to provide service, sales
and support resources to Customers. Such participation is subject to the following
conditions:
1) Designation of Order Fulfillers
a) Vendor may designate Order Fulfillers to act as the distributors for products
and services available under the Contract. In designating Order Fulfillers, Vendor
must be in compliance with the State's Policy on Utilization of Historically
Underutilized Businesses. In addition to the required Subcontracting Plan, Vendor
shall provide DIR with the following Order Fulfiller information: Order Fulfiller
name,Order Fulfiller business address,Order Fulfiller CPA Identification Number,
Order Fulfiller contact person email address and phone number.
b) DIR reserves the right to require the Vendor to rescind any such Order Fulfiller
participation or request that Vendor name additional Order Fulfillers should DIR
determine it is in the best interest of the State.
c) Vendor shall be fully liable for its Order Fulfillers' performance under and
compliance with the terms and conditions of the Contract. Vendor shall enter into
contracts with Order Fulfillers and use terms and conditions that are consistent with
the terms and conditions of the Contract.
d) Vendor shall have the right to qualify Order Fulfillers and their participation
under the Contract provided that: i)any criteria is uniformly applied to all potential
Order Fulfillers based upon Vendor's established, neutrally applied criteria, ii)the
criteria is not based on a particular procurement, and iii) all Customers are
supported under the different criteria.
e) Vendor shall not prohibit Order Fulfiller from participating in other
procurement opportunities offered through DIR.
2) Changes in Order Fulfiller List
Vendor may add or delete Order Fulfillers throughout the term of the Contract upon
written authorization by DIR. Prior to adding or deleting Order Fulfillers, Vendor must
make a good faith effort in the revision of its Subcontracting Plan in accordance with
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the State's Policy on Utilization of Historically Underutilized Businesses. Vendor shall
provide DIR with its updated Subcontracting Plan and the Order Fulfiller information
listed in Section 6.13.La above.
3) Order Fulfiller Pricing to Customer
Order Fulfiller pricing to the Customer shall comply with the Customer price as stated
within 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. This pricing shall only be offered by Order Fulfillers to Customers for sales that
pass through the Contract.
C. Product Warranty and Return Policies
Order Fulfiller will adhere to the Vendor's then-currently published policies concerning
product warranties and returns. Product warranty and return policies for Customers will
not be more restrictive or more costly than warranty and return policies for other similarly
situated Customers for like products.
D. Customer Site Preparation
Customers shall prepare and maintain its site in accordance with written instructions
furnished by Order Fulfiller prior to the scheduled delivery date of any product or service
and shall bear the costs associated with the site preparation.
E. Internet Access to Contract and Pricing Information
1) Vendor Website
Within thirty (30) calendar days of the effective date of the Contract, Vendor will
establish and maintain a website specific to the product and service offerings under the
Contract which is clearly distinguishable from other, non-DIR Contract offerings at
Vendor's website. The website must include the product and services offered, product
and service specifications, specific contract pricing expressed in dollars as well as
discount off MSRP or List Price, designated Order Fulfillers, contact information for
Vendor and designated Order Fulfillers, instructions for obtaining quotes and placing
Purchase Orders, and warranty and return policies. The Vendor's website shall list the
DIR Contract number, reference the DIR Information and Communications
Technology Cooperative Contracts program, display the DIR logo in accordance with
the requirements in paragraph F of this Section, and contain a link to the DIR website
for the Contract.
2) Accurate and Timely Contract Information
Vendor warrants and represents that the website information specified in the above
paragraph will be accurately and completely posted, maintained and displayed in an
objective and timely manner. Vendor, at its own expense, shall correct any non-
conforming or inaccurate information posted at Vendor's website within ten (10)
business days after written notification by DIR.
3) Website Compliance Checks
Periodic compliance checks of the information posted for the Contract on Vendor's
website will be conducted by DIR. Upon request by DIR, Vendor shall provide
verifiable documentation that pricing listed upon this website is compliant with the
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pricing as stated in the Contract.
4) Website Changes
Vendor hereby consents to a link from the DIR website to Vendor's website in order to
facilitate access to Contract information. The establishment of the link is provided
solely for convenience in carrying out the business operations of the State. DIR reserves
the right to suspend, terminate or remove a link at any time, in its sole discretion,
without advance notice, or to deny a future request for a link. DIR will provide Vendor
with subsequent notice of link suspension, termination or removal. Vendor shall
provide DIR with timely written notice of any change in URL or other information
needed to access the site and/or maintain the link.
5) Use of Access Data Prohibited
If Vendor stores, collects or maintains data electronically as a condition of accessing
Contract information, such data shall only be used internally by Vendor for the purpose
of implementing or marketing the Contract and shall not be disseminated to third parties
or used for other marketing purposes.The Contract constitutes a public document under
the laws of the State and Vendor shall not restrict access to Contract terms and
conditions including pricing, i.e., through use of restrictive technology or passwords.
6) Responsibility for Content
Vendor is solely responsible for administration, content, intellectual property rights,
and all materials at Vendor's website. DIR reserves the right to require a change of
listed content if, in the opinion of DIR, it does not adequately represent the Contract.
F. DIR Logo
Order Fulfiller may use the DIR logo in the promotion of the Contract to Customers with
the following stipulations: (i)the logo may not be modified in any way, (ii)when displayed,
the size of the DIR logo must be equal to or smaller than the Order Fulfiller logo, (iii) the
DIR logo is only used to communicate the availability of products and services under the
Contract to Customers, and (iv) any other use of the DIR logo requires prior written
permission from DIR.
G. Vendor and Order Fulfiller Logo
DIR may use the Vendor's and Order Fulfiller's name and logo in the promotion of the
Contract to communicate the availability of products and services under the Contract to
Customers. Use of the logos may be on the DIR website or on printed materials. Any use
of Vendor's and Order Fulfiller's logo by DIR must comply with and be solely related to
the purposes of the Contract and any usage guidelines communicated to DIR from time to
time. Nothing contained in the Contract will give DIR any right, title, or interest in or to
Vendor's or Order Fulfiller' trademarks or the goodwill associated therewith, except for the
limited usage rights expressly provided by Vendor and Order Fulfiller.
H. Trade Show Participation
At DIR's discretion, Vendor and Order Fulfillers may be required to participate in one or
more DIR sponsored trade shows each calendar year. Vendor understands and agrees that
participation, at the Vendor's and Order Fulfiller's expense, includes providing a manned
booth display or similar presence. DIR will provide four months advance notice of any
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required participation. Vendor and Order Fulfillers 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 or Order Fulfiller's booth.
I. Orientation Meeting
Within thirty(30)calendar days from execution of the Contract,Vendor and Order Fulfillers
will be required to attend an orientation meeting to discuss the content and procedures of
the Contract. DIR, at its discretion, may waive the orientation requirement for Vendors
who have previously held DIR contracts. The meeting will be held in the Austin, Texas
area at a date and time mutually acceptable to DIR and the Vendor or by teleconference, at
DIR's discretion. DIR shall bear no cost for the time and travel of the Vendor or Order
Fulfillers for attendance at the meeting.
J. Performance Review Meetings
DIR will require the Vendor to attend periodic meetings to review the Vendor's performance
under the Contract. The meetings will be held within the Austin, Texas area at a date and
time mutually acceptable to DIR and the Vendor or by teleconference, at DIR's discretion.
DIR shall bear no cost for the time and travel of the Vendor for attendance at the meeting.
K. DIR Cost Avoidance
As part of the performance measures reported to state leadership, DIR must provide the cost
avoidance the State has achieved through the Contract. Upon request by DIR, Vendor shall
provide DIR with a detailed report of a representative sample of products sold under the
Contract.The report shall contain: product part number, product description, list price, price
to Customer under the Contract, and pricing from three (3) alternative sources under which
DIR customers can procure the products.
8. Pricing,Purchase Orders, Invoices, and Payments
A. Manufacturer's Suggested Retail Price (MSRP) or List Price
MSRP is defined as the product sales price list published in some form by the
manufacturer or publisher of a product and available to and recognized by the trade. A
price list especially prepared for a given solicitation is not acceptable.
B. Customer Discount
The minimum Customer discount for all products and services will be the percentage
off MSRP as specified in Appendix C, Pricing Index. Customer Price
1) The price to the Customer shall be calculated as follows:
Customer Price= (MSRP or List Price—Customer Discount as set forth in
Appendix C, Pricing Index) x(1 +DIR Administrative Fee, as set forth in
Section 5. A.,DIR Administrative Fee, of the Contract).
2)Customers purchasing products and services under this Contract may negotiate more
advantageous pricing or participate in special promotional offers. In such event, a copy
of such better offerings shall be furnished to DIR upon request.
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3) If pricing for products or services available under this Contract is provided by the
Vendor at a lower price to: (i) an eligible Customer who is not purchasing those
products or services under this Contract or (ii) to any other customer under the same
terms and conditions provided for the State for the same commodities and 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 services quoted by Vendor
or its resellers for a quantity of one (1) under like terms and conditions, and does not
apply to volume or special pricing purchases. Vendor shall notify DIR within ten (10)
days and this Contract shall be amended to reflect the lower price.
C. Shipping and Handling Fees
The price to the Customer under this Contract shall include all shipping and handling
fees. Shipments will be Free On Board Customer's Destination.No additional fees shall
be charged to the Customer for standard shipping and handling. If the Customer
requests expedited or special delivery, Customer will be responsible for any charges
for expedited or special delivery.
D. Tax-Exempt
As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt
from the assessment of State sales, use and excise taxes. Further, Customers under this
Contract are exempt from Federal Excise Taxes, 26 United States Code Sections
4253(1) and 0).
E. Travel Expense Reimbursement
Pricing for services provided under this Contract are exclusive of any travel expenses
that may be incurred in the performance of those services. Travel expense
reimbursement may include personal vehicle mileage or commercial coach
transportation, hotel accommodations, parking and meals; provided, however, the
amount of reimbursement by Customers shall not exceed the amounts authorized for
state employees as adopted by each Customer; and provided, further, that all
reimbursement rates shall not exceed the maximum rates established for state
employees under the current State Travel Management Program
(http://www.window.state.tx.us/procurement/pro /g stm //). Travel time may not be
included as part of the amounts payable by Customer for any services rendered under
this Contract.The DIR administrative fee specified in Section 5.A.,DIR Administrative
Fee, of the Contract is not applicable to travel expense reimbursement. Anticipated
travel expenses must be pre-approved in writing by Customer.
F. Changes to Prices
Subject to the requirements of this section, Vendor may change the price of any product
or service at any time, based upon changes to the MSRP, but discount levels shall
remain consistent with the discount levels specified in this Contract.
1) Price increase or decrease change requests must be requested with a signed cover
letter indicating the change in price. Price increase requests must be accompanied by
a copy of the manufacturer or publisher's price list.
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2) Price decreases shall take effect automatically during the term of this Contract
and shall be passed onto the Customer immediately.
3) Requests for price increases will be accepted or rejected by DIR within thirty(30)
calendar days after receipt of a properly submitted request. Increases that are not
accepted within thirty (30) calendar days will be deemed rejected. If a properly
submitted increase is rejected, Vendor may request that the product or service rejected
be removed from the Contract. The product or service will be removed from the
Contract upon execution of a written Contract amendment, which shall be transmitted
to Vendor by DIR within thirty (30) calendar days after receipt of the written request
to remove the product or service and executed by both parties without undue delay.
Existing pricing must be honored up to the date of execution of the Contract
amendment. Prices may not be increased for at least ninety(90) calendar days after the
contract start date. Price reductions will be accepted at any time.
G. Purchase Orders
All Customer Purchase Orders will be placed directly with the Order Fulfiller.Accurate
Purchase Orders shall be effective and binding upon Order Fulfiller when accepted by
Order Fulfiller.
H. Invoices
1) Invoices shall be submitted by the Order Fulfiller directly to the Customer and shall
be issued in compliance with Chapter 2251, Texas Government Code. All payments
for products and/or services purchased under the Contract and any provision of
acceptance of such products and/or services shall be made by the Customer to the Order
Fulfiller.
2)Invoices must be timely and accurate.Each invoice must match Customer's Purchase
Order and include any written changes that may apply, as it relates to products, prices
and quantities. Invoices must include the Customer's Purchase Order number or other
pertinent information for verification of receipt of the product or services by the
Customer.
3) The administrative fee as set forth in Section 5.A., DIR Administrative Fee, of the
Contract shall not be broken out as a separate line item when pricing or invoice is
provided to Customer.
I. Payments
Customers shall comply with Chapter 2251, Texas Government Code, in making
payments to Order Fulfiller. The statute states that payments for goods and services are
due thirty (30) calendar days after the goods are provided, the services completed, or a
correct invoice is received, whichever is later. Payment under the Contract shall not
foreclose the right to recover wrongful payments.
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9. Contract Administration
A. Contract Managers
DIR and the Vendor will each provide a Contract Manager to support the Contract.
Information regarding the Contract Manager will be posted on the Internet website
designated for the Contract.
1) State Contract Manager
DIR shall provide a Contract Manager whose duties shall include but not be limited to:
i) advising DIR and Vendor of Vendor's compliance with the terms and conditions of
the Contract, ii) periodic verification of product pricing, and iii)verification of monthly
reports submitted by Vendor.
2) Vendor Contract Manager
Vendor shall provide a dedicated Contract Manager whose duties shall include but not
be limited to: i) supporting the marketing and management of the Contract, ii)
facilitating dispute resolution between a Order Fulfiller and a Customer, and iii)
advising DIR of Order Fulfillers performance under the terms and conditions of the
Contract. DIR reserves the right to require a change in Vendor's then-current Contract
Manager if the assigned Contract Manager is not, in the reasonable opinion of DIR,
adequately serving the needs of the State.
B. Reporting and Administrative Fees
1) Reporting Responsibility
a) Vendor shall be responsible for reporting all products and services purchased
through Order Fulfillers under the Contract. Vendor shall file the monthly reports,
subcontract reports, and pay the administrative fees in accordance with the due
dates specified in this section.
b) DIR shall have the right to verify required reports and to take any actions
necessary to enforce its rights under this section, including but not limited to,
compliance checks of Vendor's applicable Contract books at DIR's expense.
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract for
the previous calendar month period. Reports shall be submitted to the DIR ICT
Cooperative Contracts E-Mail Box at ict.salesAdir.texas.gov. Reports are due on the
fifteenth (15th) calendar day after the close of the previous month period. If the 15th
calendar day falls on a weekend or state or federal holiday, the report shall be due on
the next business day.. The monthly report shall include, per transaction: the detailed
sales for the period, Customer name, invoice date, invoice number, description,
quantity, MSRP or List Price, unit price, extended price, Customer Purchase Order
number,contact name, Customer's complete billing address,the administrative fee due
for the reporting period, and other information as required by DIR. Each report must
contain all information listed above per transaction or the report will be rejected and
returned to the Vendor for correction in accordance with this section.
3) Historically Underutilized Businesses Subcontract Reports
a) Vendor shall electronically provide each Customer with Vendor's relevant
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Historically Underutilized Business Subcontracting Report, pursuant to the
Contract,as required by Chapter 2161,Texas Government Code. Reports shall also
be submitted to DIR.
b) Reports shall be due in accordance with the CPA rules.
4) DIR Administrative Fee
a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs
of negotiating, executing, and administering the Contract. The maximum
administrative fee is set by the Texas Legislature in the biennial General
Appropriations Act. Payment of the administrative fee shall be due on the fifteenth
(15`") calendar day after the close of the previous month period. DIR may change
the amount of the administrative fee upon thirty (30) calendar days written notice
to Vendor without the need for a formal contract amendment.
b) Vendor shall reference the DIR Contract number, reporting period, and
administrative fee amount on any remittance instruments.
5) Accurate and Timely Submission of Reports
a) The reports and administrative fees shall be accurate and timely and submitted
in accordance with the due dates specified in this section. Vendor shall correct any
inaccurate reports or administrative fee payments within three (3) business days
upon written notification by DIR. Vendor shall deliver any late reports or late
administrative fee payments within three (3) business days upon written
notification by DIR. If Vendor is unable to correct inaccurate reports or
administrative fee payments or deliver late reports and fee payments within three
(3)business days,Vendor must contact DIR and provide a corrective plan of action,
including the timeline for completion of correction. The corrective plan of action
shall be subject to DIR approval.
b) Should Vendor fail to correct inaccurate reports or cure the delay in timely
delivery of reports and payments within the corrective plan of action timeline, DIR
reserves the right to require an independent third party audit of the Vendor's records
as specified in C.3 of this Section, at DIR's expense.
c) Failure to timely submit three(3)reports or administrative fee payments within
any rolling twelve(12)month period may,at DIR's discretion, result in the addition
of a late fee penalty of$100/day for each day the report or payment is due (up to
$1000/month) or suspension or termination of Vendor's Contract.
C. Records and Audit
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
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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 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 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 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.
D. Contract Administration Notification
1) Upon execution of the Contract, Vendor shall provide DIR with written notification
of the following: i) Vendor Contract Administrator name and contact information, ii)
Vendor sales representative name and contact information, and iii) name and contact
information of Vendor personnel responsible for submitting reports and payment of
administrative fees specified herein.
2) Upon execution of the Contract, DIR shall provide Vendor with written notification
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of the following: i) DIR Contract Administrator name and contact information, and ii)
DIR Cooperative Contracts E-Mail Box information.
10. Vendor Responsibilities
A. Indemnification
1) INDEPENDENT CONTRACTOR
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE
OF THIS CONTRACT, IT IS FURNISHING PRODUCTS AND SERVICES IN THE
CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS
NOT AN EMPLOYEE OF THE CUSTOMER OR THE STATE OF TEXAS.
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
LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED
COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or resulting from any
acts or omissions of the Vendor or its agents, employees, subcontractors, Order
Fulfillers, or suppliers of subcontractors in the execution or performance of the Contract
and any Purchase Orders issued under the Contract. THE DEFENSE SHALL BE
COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY
GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN
ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT
WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF
THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO
FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH
CLAIM.
3) Infringements
a) Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES from any and all third
party claims involving infringement of United States patents, copyrights, trade and
service marks, and any other intellectual or intangible property rights in connection
with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS
CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH
TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.
VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE
INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE
COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY
GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS
IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY
SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM
THE OFFICE OF THE ATTORNEY GENERAL.
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b) Vendor shall have no liability under this section if the alleged infringement is
caused in whole or in part by: (i) use of the product or service for a purpose or in a
manner for which the product or service was not designed, (ii) any modification
made to the product without Vendor's written approval, (iii) any modifications
made to the product by the Vendor pursuant to Customer's specific instructions,
(iv) any intellectual property right owned by or licensed to Customer, or (v) any
use of the product or service by Customer that is not in conformity with the terms
of any applicable license agreement.
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.
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE
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.
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 TAX
LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS'
COMPENSATION IN ITS PERFORMANCE UNDER THIS CONTRACT.
VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING
ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR
WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE
AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR
MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE
CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL.
VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN
NOTICE TO EACH OTHER OF ANY SUCH CLAIM.
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C. Vendor Certifications
Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they:
(i) have not given, offered to give, and do not intend to give at any time
hereafter any economic opportunity,future employment,gift, loan, gratuity,
special discount,trip, favor,or service to a public servant in connection with
the Contract;
(ii) are not currently delinquent in the payment of any franchise tax owed the
State and are not ineligible to receive payment under§231.006 of the Texas
Family Code and acknowledge the Contract may be terminated and
payment withheld if this certification is inaccurate;
(iii) neither they, nor anyone acting for them, have violated the antitrust laws of
the United States or the State, nor communicated directly or indirectly to
any competitor or any other person engaged in such line of business for the
purpose of obtaining an unfair price advantage;
(iv) have not received payment from DIR or any of its employees for
participating in the preparation of the Contract;
(v) under Section 2155.004, Texas Government Code, the vendor certifies that
the individual or business entity named in this bid or contract is not
ineligible to receive the specified contract and acknowledges that this
contract may be terminated and payment withheld if this certification is
inaccurate;
(vi) to the best of their knowledge and belief, there are no suits or proceedings
pending or threatened against or affecting them, which if determined
adversely to them will have a material adverse effect on the ability to fulfill
their obligations under the Contract;
(vii) Vendor and its principals are not suspended or debarred from doing business
with the federal government as listed in the System for Award Management
(SAM) maintained by the General Services Administration;
(viii) as of the effective date of the Contract, are not listed in the prohibited
vendors list authorized by Executive Order#13224, "Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit,
or Support Terrorism", published by the United States Department of the
Treasury, Office of Foreign Assets Control;
(ix) to the extent applicable to this scope of this Contract, Vendor hereby
certifies that it is in compliance with Subchapter Y, Chapter 361, Health
and Safety Code related to the Computer Equipment Recycling Program
and its rules, 30 TAC Chapter 328;
(x) agree that any payments due under this contract will be applied towards any
debt, including but not limited to delinquent taxes and child support that is
owed to the State of Texas;
(xi) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
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(xii) have identified all current or former, within the last five years, employees
of the State assigned to work on the DIR Contract 20%or more of their time
and have disclosed them to DIR and have disclosed or do not employ any
relative of a current or former state employee within two degrees of
consanguinity, and, if these facts change during the course of the Contract,
certify they shall disclose the name and other pertinent information about
the employment of current and former employees and their relatives within
two degrees of consanguinity;
(xiii) represent and warrant that the provision of goods and services or other
performance under the Contract will not constitute an actual or potential
conflict of interest and certify that they will not reasonably create the
appearance of impropriety, and, if these facts change during the course of
the Contract, certify they shall disclose the actual or potential conflict of
interest and any circumstances that create the appearance of impropriety;
(xiv) under Section 2155.006, Government Code, are not ineligible to receive
the specified contract and acknowledge that this contract may be terminated
and payment withheld if this certification is inaccurate;
(xv) have complied with the Section 556.0055, Texas Government Code,
restriction on lobbying expenditures. In addition, they acknowledge the
applicability of §2155.444 and §2155.4441, Texas Government Code, in
fulfilling the terms of the Contract; and
(xvi) represent and warrant that the Customer's payment and their receipt of
appropriated or other funds under this Agreement are not prohibited by
Sections 556.005 or Section 556.008, Texas Government Code.
During the term of the Contract, Vendor shall, for itself and on behalf of its Order
Fulfillers, promptly disclose to DIR all changes that occur to the foregoing
certifications, representations and warranties. Vendor covenants to fully cooperate
in the development and execution of resulting documentation necessary to maintain
an accurate record of the certifications, representations and warranties.
In addition, Vendor understands and agrees that Vendor may be required to comply
with additional terms and conditions or certifications that an individual customer
may require due to state and federal law (e.g., privacy and security requirements).
D. Ability to Conduct Business in Texas
Vendor and its Order Fulfiller shall be authorized and validly existing under the laws of its
state of organization, and shall be authorized to do business in the State of Texas.
E. Equal Opportunity Compliance
Vendor agrees to abide by all applicable laws, regulations, and executive orders pertaining
to equal employment opportunity, including federal laws and the laws of the State in which
its primary place of business is located. In accordance with such laws, regulations, and
executive orders, the Vendor agrees that no person in the United States shall, on the
grounds of race, color, religion, national origin, sex, age, veteran status or handicap, be
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excluded from employment with or participation in, be denied the benefits of, or be
otherwise subjected to discrimination under any program or activity performed by Vendor
under the Contract. If Vendor is found to be not in compliance with these requirements
during the term of the Contract, Vendor agrees to take appropriate steps to correct these
deficiencies. Upon request, Vendor will furnish information regarding its
nondiscriminatory hiring and promotion policies, as well as specific information on the
composition of its principals and staff, including the identification of minorities and women
in management or other positions with discretionary or decision-making authority.
F. Use of Subcontractors
If Vendor uses any subcontractors in the performance of this Contract, Vendor must make
a good faith effort in the submission of its Subcontracting Plan in accordance with the
State's Policy on Utilization of Historically Underutilized Businesses. A revised
Subcontracting Plan shall be required before Vendor can engage additional subcontractors
in the performance of this Contract. Vendor shall remain solely responsible for the
performance of its obligations under the Contract.
G. Responsibility for Actions
1) Vendor is solely responsible for its actions and those of its agents, employees, or
subcontractors, and agrees that neither Vendor nor any of the foregoing has any
authority to act or speak on behalf of DIR or the State.
2) Vendor, for itself and on behalf of its subcontractors, shall report to DIR promptly
when the disclosures under Certification Statement of Appendix A to the RFO and/or
Section 9.C. (xii) and (xiii), Vendor Certifications of this Appendix A to the Contract
change. Vendor covenants to fully cooperate with DIR to update and amend the
Contract to accurately disclose employment of current or former State employees and
their relatives and/or the status of conflicts of interest.
H. Confidentiality
1) Vendor acknowledges that DIR and Customers that are state agencies are
government agencies subject to the Texas Public Information Act. Vendor also
acknowledges that DIR and Customers that are state agencies will comply with the
Public Information Act, and with all opinions of the Texas Attorney General's office
concerning this Act.
2) Under the terms of the Contract, DIR may provide Vendor with information related
to Customers. Vendor shall not re-sell or otherwise distribute or release Customer
information to any party in any manner.
L Security of Premises, Equipment,Data and Personnel
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 property, including
data, files and /or materials (collectively referred to as "Data") belonging to the Customer.
Vendor and/or Order Fulfiller shall use their best efforts to preserve the safety, security,
and the integrity of the personnel, premises, equipment, Data and other property of the
Customer, in accordance with the instruction of the Customer. Vendor and/or Order
Fulfiller shall be responsible for damage to Customer's equipment, workplace, and its
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Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
contents when such damage is caused by its employees or subcontractors. If a Vendor
and/or Order Fulfiller fails to comply with Customer's security requirements, then
Customer may immediately terminate its Purchase Order and related Service Agreement.
J. Background and/or Criminal History Investigation
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 certain Customers
having legislative authority to require such investigations. 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 terminate its
Purchase Order and related Service Agreement or request replacement of the employee or
subcontractor in question.
K. Limitation of Liability
For any claim 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 punitive, special, or consequential damages, even if it is advised of the
possibility of such damages; and ii) Vendor's liability for damages of any kind to the
Customer shall be limited to the total amount paid to Vendor under the Contract during the
twelve months immediately preceding the accrual of the claim or cause of
action. However, this limitation of Vendor's liability shall not apply to claims of bodily
injury; violation of intellectual property rights including but not limited to patent,
trademark, or copyright infringement; indemnification requirements under this Contract;
and violation of State or Federal law including but not limited to disclosures of confidential
information and any penalty of any kind lawfully assessed as a result of such violation.
L. Overcharges
Vendor hereby assigns to DIR any and all of its claims for overcharges associated with this
contract which arise under the antitrust laws of the United States, 15 U.S.C.A. Section 1,
et seq., and which arise under the antitrust laws of the State of Texas,Tex. Bus.and Comm.
Code Section 15.0 1, et seq.
M. Prohibited Conduct
Vendor represents and warrants that, to the best of its knowledge as of the date of this
certification, neither Vendor nor any Order Fulfiller, subcontractor, firm, corporation,
partnership, or institution represented by Vendor, nor anyone acting for such Order
Fulfiller, subcontractor, firm, corporation or institution 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.
N. Required Insurance Coverage
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
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Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
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 are A rated by A.M. Best, licensed in the State of Texas, and authorized
to provide the corresponding coverage.The Customer and DIR will be named as Additional
Insureds on all required coverage. 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 a combined single limit of$1,000,000 per
occurrence for coverage A, B, & C including products/completed operations, where
appropriate, with a separate aggregate limit of $2,000,000. [Medical Expense each
person: $5,000; Personal Injury and Advertising Liability: $1,000,000; Products
/Completed Operations Aggregate Limit: $2,000,000; Damage to Premises Rented to
You: $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;
d) 30-day Notice of Termination in favor of DIR and/or Customer; and
e) Waiver of Transfer Right of Recovery Against Others in favor of DIR and/or
Customer.
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
POLICY LIMIT AND $1,000,000 PER DISEASE PER EMPLOYEE.
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. Alternative acceptable limits are $250,000 bodily injury
per person, $500,000 bodily injury per occurrence and at least $100,000 property
damage liability per accident. The policy shall contain the following endorsements in
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