HomeMy WebLinkAbout2014-224ORDINANCE NO. 2014-224
AN ORDINANCE AWARDING A CONTRACT FOR THE PURCHASE OF UPGRADE AND
MAINTENANCE SERVICES INCLUDING EQUIPMENT, FOR THE RADIO
COMMUNICATION SYSTEM FOR THE CITY OF DENTON WATER PRODUCTION
DEPARTMENT AS AWARDED BY THE STATE OF TEXAS DEPARTMENT OF
INFORMATION RESOURCES (DIR) THROUGH THE GO DIRECT PROGRAM,
CONTRACT NUMBER DIR-SDD-2060; PROVIDING FOR THE EXPENDITURE OF
FUNDS THEREFOR AND PROVIDING AN
TO JOHNSTON TECHNICAL SERVICES,
EXCEED AMOUNT OF $150,000).
EFFECTIVE DATE. (FILE 5598 AWARDED
INC. IN THE THREE (3) YEAR NOT -TO -
WHEREAS, Section 252.022 of the Local Government Code provides that procurement
of items that are only available from one source, including; items that are only available from
one source because of patents, copyrights, secret processes or natural monopolies; films,
manuscripts or books; electricity, gas, water and other utility purchases; captive replacement
parts or components for equipment; and library materials for a public library that are available
only from the persons holding exclusive distribution rights to the materials; and need not be
submitted to competitive bids; and
WHEREAS, the City Council wishes to procure one or more of the items mentioned in
the above paragraph; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:.
SECTION 1. The following purchase of materials, equipment or supplies, as described
in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license
terms attached are hereby approved:
FILE
NUMBER VENDOR AMOUNT
5598 Johnston Technical Services, Inc. $150,000
SECTION 2. The City Council hereby finds that this bid, and the award thereof,
constitutes a procurement of items that are available from only one source, including, items that
are only available from one source because of patents, copyrights, secret processes or natural
monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases;
captive replacement parts or components for equipment; and library materials for a public library
that are available only from the persons holding exclusive distribution rights to the materials; and
need not be submitted to competitive bids.
SECTION 3. The acceptance and approval of the above items shall not constitute a
contract between the City and the person submitting the quotation for such items until such
person shall comply with all requirements specified by the Purchasing Department.
SECTION 4. The City Manager is hereby authorized to execute any contracts relating to
the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby
authorized.
SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates
the authority to take any actions that may be required or permitted to be performed by the City of
Denton under File 5598 to the City Manager of the City of Denton, Texas, or his designee.
SECTION 6. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the 5h day of 2014.
},r
CHRI, WATTS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND JOHNSTON TECHNICAL SERVICES (JTS)
(FILE 5598)
THIS CONTRACT is made and enteacd into this d iy of� ,� � �.1�., 2014,
by and between Johnston Technical. Services (J`l'S) a corporation, whose, ddress is 5310 S
Cockrell Hill Rd, Dallas TX 75236, hereinafter referred to as "Contractor," and the CITY OF
DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be
effective upon approval of the Denton City Council and subsequent execution of this Contract by
the Denton City Manager or his duly authorized designee.
For and in consideration of the covenants and agreements contained herein, and for the
mutual benefits to be obtained hereby, the parties agree as follows:
SCOPE OF SERVICES
Supplier shall provide products and/or services in accordance with the City's document
FILE #5598 Radio Communication System Upgrade & Maintenance, a copy of which is on
file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract
consists of this written agreement and the following items which are attached hereto and
incorporated herein by reference:
(a) Special Terms and Conditions (Exhibit "A");
(b) Request for Proposal (Exhibit `B" on File at the Office of the Purchasing
Agent);
(c) City of Denton Standard Terms and Conditions (Exhibit "C");
(d) Insurance Requirements (Exhibit "D");
(e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E");
(f) Contractor's Proposal. (Exhibit "F' );
These documents make up the Contract documents and what is called for by one shall be
as binding as if called for by all. In the event of an inconsistency or conflict in any of the
provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving
precedence first to the written agreement then to the contract documents in the order in which
they are listed above. These documents shall be referred to collectively as "Contract
Documents."
Page 1
ORIGINAL
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in
the year and day first above written.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY. Y
tf
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:LL :..
X83010.7_T490J 7
BY:. '-Y5111 L_
AUTHORIZED SIGNATURE
Date:
Name: Jeremy Bigham
Title: President
(972) 620-1435
PHONE NUMBER
jerem_y.bigham@jts.net
EMAIL ADDRESS
CITY OF DENTON, j`E A. „
BY/
GF,()1 61F' "C. CAMPBELL, C11` MANAGER
Date:
Page 2
Exhibit A
Special Terms and Conditions
Total Contract Amount
The contract total for services shall not exceed $150,000. Pricing shall be per Exhibit D
attached.
Contract Terms
The contract term will be three (3) years, effective from date of award or notice to proceed as
determined by the City of Denton Purchasing Department.
The contract shall commence upon the issuance of a Notice of Award by the City of Denton and
shall automatically renew each year, from the date of award by City Council, unless either party
notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton,
the contract may be further extended as needed, not to exceed a total of six (6) months.
Page 3
Exhibit C
Standard Purchase Terms and Conditions
These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings
and other requirements included in the City's solicitation are applicable to Contracts/Purchase
Orders issued by the City hereinafter referred to as the City or Buyer and the Seller herein after
referred to as the Bidder, Contractor or Supplier. Any deviations must be in writing and signed
by a representative of the City's Procurement Department and the Supplier. No Terms and
Conditions contained in the Sellers Solicitation Response, Invoice or Statement shall serve to
modify the terms set forth herein. If there is a conflict between the provisions on the face of the
Contract/Purchase Order these written provisions will take precedence.
By submitting an Offer in response to the Solicitation, the Contractor agrees that the Contract
shall be governed by the following terms and conditions, unless exceptions are duly noted and
fully negotiated.
1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all
deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with
the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local
laws, rules, and regulations.
2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract
shall be effective as of the date the contract is signed by the City, and shall continue in effect
until all obligations are performed in accordance with the Contract.
3. INVOICES:
A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase
release after each delivery. If partial shipments or deliveries are authorized by the City, a
separate invoice must be sent for each shipment or delivery made.
B. Proper Invoices must include a unique invoice number, the purchase order or delivery
order number and the master agreement number if applicable, the Department's Name,
and the name of the point of contact for the Department. Invoices shall be itemized and
transportation charges, if any, shall be listed separately. A copy of the bill of lading and the
freight waybill, when applicable, shall be attached to the invoice. The Contractor's name,
remittance address and, if applicable, the tax identification number on the invoice must exactly
match the information in the Vendor's registration with the City. Unless otherwise instructed in
writing, the City may rely on the remittance address specified on the Contractor's invoice.
C. Invoices for labor shall include a copy of all time -sheets with trade labor rate and deliverables
order number clearly identified. Invoices shall also include a tabulation of work -hours at the
appropriate rates and grouped by work order number.
D. Unless otherwise expressly authorized in the Contract.
E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced
amount.
The City will furnish a tax exemption certificate upon request.
4. PAYMENT:
A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid
within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being
received in Accounts Payable, whichever is later.
B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid
balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or
the maximum lawful rate; except, if payment is not timely made for a reason for which the
City may withhold payment hereunder, interest shall not accrue until ten (10) calendar
days after the grounds for withholding payment have been resolved.
C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the
partial shipment or delivery, as stated above, provided that the invoice matches the shipment or
delivery.
D. The City may withhold or set off the entire payment or part of any payment otherwise due the
Contractor to such extent as may be necessary on account of:
i. delivery of defective or non -conforming deliverables by the Contractor;
ii. third party claims, which are not covered by the insurance which the Contractor is
required to
provide, are filed or reasonable evidence indicating probable filing of such claims;
iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment;
iv. damage to the property of the City or the City's agents, employees or contractors,
which is not covered by insurance required to be provided by the Contractor;
v. reasonable evidence that the Contractor's obligations will not be completed within the
time specified in the Contract, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay;
vi. failure of the Contractor to submit proper invoices with purchase order number, with
all required attachments and supporting documentation; or
vii. failure of the Contractor to comply with any material provision of the Contract
Documents.
E. Notice is hereby given that any awarded Contractor who is in arrears to the City for delinquent
taxes, the City may offset indebtedness owed the City through payment withholding.
F. Payment will be made by check unless the parties mutually agree to payment by credit card or
electronic transfer of funds. The Contractor agrees that there shall be no additional charges,
surcharges, or penalties to the City for payments made by credit card or electronic funds transfer.
G. The awarding or continuation of this contract is dependent upon the availability of funding.
The City's payment obligations are payable only and solely from funds Appropriated and
available for this contract. The absence of Appropriated or other lawfully available funds shall
render the Contract null and void to the extent funds are not Appropriated or available and any
deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the
Contractor written notice of the failure of the City to make an adequate Appropriation for any
fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to
an amount insufficient to permit the City to pay its obligations under the Contract. In the event of
none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to
the City.
5. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the
Contract shall be paid by the Contractor, unless otherwise stated in the contract terms.
Page 5
6. FINAL PAYMENT AND CLOSE-OUT:
A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified
Subcontractors, the Contractor is required to submit a Contract Close -Out MBE/WBE
Compliance Report to the Purchasing Manager no later than the 15th calendar day after
completion of all work under the contract. Final payment, retainage, or both may be withheld if
the Contractor is not in compliance with the requirements as accepted by the City.
B. The making and acceptance of final payment will constitute:
i. a waiver of all claims by the City against the Contractor, except claims (1) which have
been previously asserted in writing and not yet settled, (2) arising from defective work appearing
after final inspection, (3) arising from failure of the Contractor to comply with the Contract or
the terms of any warranty specified herein, (4) arising from the Contractor's continuing
obligations under the Contract, including but not limited to indemnity and warranty obligations,
or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor
against the City other than those previously asserted in writing and not yet settled.
7. RIGHT TO AUDIT:
A. The City shall have the right to audit and make copies of the books, records and computations
pertaining to the Contract. The Contractor shall retain such books, records, documents and other
evidence pertaining to the Contract period and five years thereafter, except if an audit is in
progress or audit findings are yet unresolved, in which case records shall be kept until all audit
tasks are completed and resolved. These books, records, documents and other evidence shall be
available, within ten (10) business days of written request. Further, the Contractor shall also
require all Subcontractors, material suppliers, and other payees to retain all books, records,
documents and other evidence pertaining to the Contract, and to allow the City similar access to
those documents. All books and records will be made available within a 50 mile radius of the
City of Denton. The cost of the audit will be borne by the City unless the audit reveals an
overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of
the audit, including any travel costs, must be borne by the Contractor which must be payable
within five (5) business days of receipt of an invoice.
B. Failure to comply with the provisions of this section shall be a material breach of the Contract
and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the
terms "books" "records" "documents" and "other evidence" as used above shall be construed
to include drafts and electronic files, even if such drafts or electronic files are subsequently used
to generate or prepare a final printed document.
8. SUBCONTRACTORS:
A. If the Contractor identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the
Contractor shall comply with all requirements approved by the City. The Contractor shall not
initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor
shall not substitute any Subcontractor identified in the Plan, unless the substitute has been
accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute
a waiver of any rights or remedies of the City with respect to defective deliverables provided by
a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a
monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later
than the tenth calendar day of each month.
B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract
between the Contractor and Subcontractor. The terms of the subcontract may not conflict with
the terms of the
Page 6
Contract, and shall contain provisions that:
i. require that all deliverables to be provided by the Subcontractor be provided in strict
accordance with the provisions, specifications and terms of the Contract;
ii. prohibit the Subcontractor from further subcontracting any portion of the Contract
without the prior written consent of the City and the Contractor. The City may require, as
a condition to such further subcontracting, that the Subcontractor post a payment bond in
form, substance and amount acceptable to the City;
iii. require Subcontractors to submit all invoices and applications for payments, including
any claims for additional payments, damages or otherwise, to the Contractor in sufficient
time to enable the Contractor to include same with its invoice or application for payment
to the City in accordance with the terms of the Contract;
iv. require that all Subcontractors obtain and maintain, throughout the term of their
contract, insurance in the type and amounts specified for the Contractor, with the City
being a named insured as its interest shall appear; and
v. require that the Subcontractor indemnify and hold the City harmless to the same extent
as the Contractor is required to indemnify the City.
C. The Contractor shall be fully responsible to the City for all acts and omissions of the
Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions.
Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual
relationship between the City and any such Subcontractor, nor shall it create any obligation on
the part of the City to pay or to see to the payment of any moneys due any such Subcontractor
except as may otherwise be required by law.
D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the
Contractor not later than ten (10) calendar days after receipt of payment from the City.
9. WARRANTY -PRICE:
A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's
current prices on orders by others for like deliverables under similar terms of purchase.
B. The Contractor certifies that the prices in the Offer have been arrived at independently
without consultation, communication, or agreement for the purpose of restricting competition, as
to any matter relating to such fees with any other Contractor or with any competitor.
C. In addition to any other remedy available, the City may deduct from any amounts owed to the
Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's
current prices on orders by others for like deliverables under similar terms of purchase.
10. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be
provided the City under the Contract will be fully and timely performed in a good and
workmanlike manner in accordance with generally accepted industry standards and practices, the
terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws,
rules or regulations.
A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty
implied by law, and any attempt to do so shall be without force or effect.
B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from
the Acceptance Date. If during the warranty period, one or more of the above warranties are
breached, the Contractor shall promptly upon receipt of demand perform the services again in
accordance with above standard at no additional cost to the City. All costs incidental to such
additional performance shall be borne by the Contractor. The City shall endeavor to give the
Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery
of the breach warranty, but failure to give timely notice shall not impair the City's rights under
this section.
Page 7
C. If the Contractor is unable or unwilling to perform its services in accordance with the above
standard as required by the City, then in addition to any other available remedy, the City may
reduce the amount of services it may be required to purchase under the Contract from the
Contractor, and purchase conforming services from other sources. In such event, the Contractor
shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such
services from another source.
11. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING DELIVERABLES: If,
instead of requiring immediate correction or removal and replacement of defective or non-
conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall
pay all claims, costs, losses and damages attributable to the City's evaluation of and
determination to accept such defective or non -conforming deliverables. If any such acceptance
occurs prior to final payment, the City may deduct such amounts as are necessary to compensate
the City for the diminished value of the defective or non -conforming deliverables. If the
acceptance occurs after final payment, such amount will be refunded to the City by the
Contractor.
12. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to
question the other party's intent to perform, demand may be made to the other party for written
assurance of the intent to perform. In the event that no assurance is given within the time
specified after demand is made, the demanding party may treat this failure as an anticipatory
repudiation of the Contract.
13. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event
the Contractor is observed performing in a manner that is in violation of Federal, State, or local
guidelines, or in a manner that is determined by the City to be unsafe to either life or property.
Upon notification, the Contractor will cease all work until notified by the City that the violation
or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by
the City as a result of the issuance of such Stop Work Notice.
14. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails
to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails
to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or
seeks relief under the bankruptcy laws of the United States or (d) makes a material
misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted
by the Contractor to the City.
15. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall
have the right to terminate the Contract for cause, by written notice effective ten (10) calendar
days, unless otherwise specified, after the date of such notice, unless the Contractor, within such
ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's
reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy
available under law or in equity, the City shall be entitled to recover all actual damages, costs,
losses and expenses, incurred by the City as a result of the Contractor's default, including,
without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and
post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the
Contractor, the City may remove the Contractor from the City's vendor list for three (3) years
and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All
rights and remedies under the Contract are cumulative and are not exclusive of any other right or
remedy provided by law.
Page 8
16. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the
Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written
notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further
work pursuant to the Contract, with such exceptions, if any, specified in the notice of
termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise
legally available for such purposes, for all goods delivered and services performed and
obligations incurred prior to the date of termination in accordance with the terms hereof.
17. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or
deliverable required to be submitted by the Contractor to the City shall be grounds for the
termination of the Contract for cause by the City and may result in legal action.
18. DELAYS:
A. The City may delay scheduled delivery or other due dates by written notice to the Contractor
if the City deems it is in its best interest. If such delay causes an increase in the cost of the work
under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs
incurred by the Contractor in the Contract price and execute an amendment to the Contract. The
Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of
receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the
Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall
excuse the Contractor from delaying the delivery as notified.
B. Neither party shall be liable for any default or delay in the performance of its obligations
under this Contract if, while and to the extent such default or delay is caused by acts of God, fire,
riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond
the reasonable control of such Party. In the event of default or delay in contract performance due
to any of the foregoing causes, then the time for completion of the services will be extended;
provided, however, in such an event, a conference will be held within three (3) business days to
establish a mutually agreeable period of time reasonably necessary to overcome the effect of
such failure to perform.
19. INDEMNITY:
A. Definitions:
i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action,
judgments and liability of every character, type or description, including all reasonable
costs and expenses of litigation, mediation or other alternate dispute resolution
mechanism, including attorney and other professional fees for: (1) damage to or loss of
the property of any person (including, but not limited to the City, the Contractor, their
respective agents, officers, employees and subcontractors; the officers, agents, and
employees of such subcontractors; and third parties); and/or (2) death, bodily injury,
illness, disease, worker's compensation, loss of services, or loss of income or wages to
any person (including but not limited to the agents, officers and employees of the City,
the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include
the sale of defective or non -conforming deliverables, negligence, willful misconduct or a
breach of any legally imposed strict liability standard.
B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY),
INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS,
EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL
INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO,
CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR
Page 9
THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE
PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE
CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF
THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE
RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE
LIABLE FOR AN INDEMNIFIED CLAIM.
20. INSURANCE: The following insurance requirements are applicable, in addition to the
specific insurance requirements detailed in EXHIBIT D The successful Contractor shall procure
and maintain insurance of the types and in the minimum amounts acceptable to the City. The
insurance shall be written by a company licensed to do business in the State of Texas and
satisfactory to the City.
A. General Requirements:
i. The Contractor shall at a minimum carry insurance in the types and amounts indicated
and agreed to, as submitted to the City and approved by the City within the procurement
process, for the duration of the Contract, including extension options and hold over
periods, and during any warranty period.
ii. The Contractor shall provide Certificates of Insurance with the coverage's and
endorsements required to the City as verification of coverage prior to contract execution
and within fourteen (14) calendar days after written request from the City. Failure to
provide the required Certificate of Insurance may subject the Offer to disqualification
from consideration for award. The Contractor must also forward a Certificate of
Insurance to the City whenever a previously identified policy period has expired, or an
extension option or hold over period is exercised, as verification of continuing coverage.
iii. The Contractor shall not commence work until the required insurance is obtained and
until such insurance has been reviewed by the City. Approval of insurance by the City
shall not relieve or decrease the liability of the Contractor hereunder and shall not be
construed to be a limitation of liability on the part of the Contractor.
iv. The Contractor must submit certificates of insurance to the City for all subcontractors
prior to the subcontractors commencing work on the project.
v. The Contractor's and all subcontractors' insurance coverage shall be written by
companies licensed to do business in the State of Texas at the time the policies are issued
and shall be written by companies with A.M. Best ratings of A- VII or better. The City
will accept workers' compensation coverage written by the Texas Workers'
Compensation Insurance Fund.
vi. All endorsements naming the City as additional insured, waivers, and notices of
cancellation endorsements as well as the Certificate of Insurance shall contain the
solicitation number and the following information:
City of Denton
Materials Management Department
901 B Texas Street
Denton, Texas 76209
vii. The "other" insurance clause shall not apply to the City where the City is an
additional insured shown on any policy. It is intended that policies required in the
Contract, covering both the City and the Contractor, shall be considered primary
coverage as applicable.
Page 10
viii. If ' insurance policies are not written for amounts agreed to with the City, the
Contractor shall carry Umbrella or Excess Liability Insurance for any differences in
amounts specified. If Excess Liability Insurance is provided, it shall follow the form of
the primary coverage.
ix. The City shall be entitled, upon request, at an agreed upon location, and without
expense, to review certified copies of policies and endorsements thereto and may make
any reasonable requests for deletion or revision or modification of particular policy
terms, conditions, limitations, or exclusions except where policy provisions are
established by law or regulations binding upon either of the parties hereto or the
underwriter on any such policies.
x. The City reserves the right to review the insurance requirements set forth during the
effective period of the Contract and to make reasonable adjustments to insurance
coverage, limits, and exclusions when deemed necessary and prudent by the City based
upon changes in statutory law, court decisions, the claims history of the industry or
financial condition of the insurance company as well as the Contractor.
xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance
to lapse during the term of the Contract or as required in the Contract.
xii. The Contractor shall be responsible for premiums, deductibles and self -insured
retentions, if any, stated in policies. All deductibles or self -insured retentions shall be
disclosed on the Certificate of Insurance.
xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written
notice of erosion of the aggregate limits below occurrence limits for all applicable
coverage's indicated within the Contract.
xiv. The insurance coverage's specified in within the solicitation and requirements are
required minimums and are not intended to limit the responsibility or liability of the
Contractor.
B. Specific Coverage Requirements: Specific insurance requirements are contained in the
solicitation instrument.
21. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which
arises under or concerns the Contract, or which could have a material adverse affect on the
Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the
City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the
City shall state the date of notification of any such claim, demand, suit, or other action; the
names and addresses of the claimant(s); the basis thereof; and the name of each person against
whom such claim is being asserted. Such notice shall be delivered personally or by mail and
shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney
shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201.
22. NOTICES: Unless otherwise specified, all notices, requests, or other communications
required or appropriate to be given under the Contract shall be in writing and shall be deemed
delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or
Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed
delivered upon receipt by the addressee. Routine communications may be made by first class
mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to
the address specified in the Contractor's Offer, or at such other address as a party may notify the
other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton,
Texas 76209 and marked to the attention of the Purchasing Manager.
Page 11
23. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material
submitted by the Contractor to the City shall become property of the City upon receipt. Any
portions of such material claimed by the Contractor to be proprietary must be clearly marked as
such. Determination of the public nature of the material is subject to the Texas Public
Information Act, Chapter 552, and Texas Government Code.
24. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents
and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title
to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the
specifications in the Contract will not infringe, directly or contributorily, any patent, trademark,
copyright, trade secret, or any other intellectual property right of any kind of any third party; that
no claims have been made by any person or entity with respect to the ownership or operation of
the deliverables and the Contractor does not know of any valid basis for any such claims. The
Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and
against all liability, damages, and costs (including court costs and reasonable fees of attorneys
and other professionals) arising out of or resulting from: (i) any claim that the City's exercise
anywhere in the world of the rights associated with the City's' ownership, and if applicable,
license rights, and its use of the deliverables infringes the intellectual property rights of any third
party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated
in this Contract. In the event of any such claim, the City shall have the right to monitor such
claim or at its option engage its own separate counsel to act as co -counsel on the City's behalf.
Further, Contractor agrees that the City's specifications regarding the deliverables shall in no
way diminish Contractor's warranties or obligations under this paragraph and the City makes no
warranty that the production, development, or delivery of such deliverables will not impact such
warranties of Contractor.
25. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may
require access to certain of the City's and/or its licensors' confidential information (including
inventions, employee information, trade secrets, confidential know-how, confidential business
information, and other information which the City or its licensors consider confidential)
(collectively, "Confidential Information"). Contractor acknowledges and agrees that the
Confidential Information is the valuable property of the City and/or its licensors and any
unauthorized use, disclosure, dissemination, or other release of the Confidential Information will
substantially injure the City and/or its licensors. The Contractor (including its employees,
subcontractors, agents, or representatives) agrees that it will maintain the Confidential
Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or
otherwise use the Confidential Information without the prior written consent of the City or in a
manner not expressly permitted under this Agreement, unless the Confidential Information is
required to be disclosed by law or an order of any court or other governmental authority with
proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such
information so as to permit the City reasonable time to seek an appropriate protective order. The
Contractor agrees to use protective measures no less stringent than the Contractor uses within its
own business to protect its own most valuable information, which protective measures shall
under all circumstances be at least reasonable measures to ensure the continued confidentiality of
the Confidential Information.
Page 12
26. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and
interests throughout the world in and to the deliverables.
A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor
agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the
Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire
right, title, and interest to specific inventions under such patentable subject matter to the City and
to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute,
acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by
the City, to the City upon request by the City.
B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor
agrees that upon their creation, such deliverables shall be considered as work made -for -hire by
the Contractor for the City and the City shall own all copyrights in and to such deliverables,
provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint
ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such
deliverables. Should by operation of law, such deliverables not be considered works made -for -
hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees
providing services to the City hereunder to execute, acknowledge, and deliver an assignment to
the City of) all worldwide right, title, and interest in and to such deliverables. With respect to
such work made -for -hire, the Contractor agrees to execute, acknowledge, and deliver and cause
each of its employees providing services to the City hereunder to execute, acknowledge, and
deliver a work -made -for -hire agreement, in a form to be reasonably approved by the City, to the
City upon delivery of such deliverables to the City or at such other time as the City may request.
C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its
employees to, execute, acknowledge, and deliver all applications, specifications, oaths,
assignments, and all other instruments which the City might reasonably deem necessary in order
to apply for and obtain copyright protection, mask work registration, trademark registration
and/or protection, letters patent, or any similar rights in any and all countries and in order to
assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right,
title, and interest in and to the deliverables. The Contractor's obligations to execute,
acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or
papers such as those described in this Paragraph 38 a., b., and c. shall continue after the
termination of this Contract with respect to such deliverables. In the event the City should not
seek to obtain copyright protection, mask work registration or patent protection for any of the
deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as
Confidential Information under the terms of Paragraph 37 above.
27. PUBLICATIONS: All published material and written reports submitted under the Contract
must be originally developed material unless otherwise specifically provided in the Contract.
When material not originally developed is included in a report in any form, the source shall be
identified.
28. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior
consent, the fact that the City has entered into the Contract, except to the extent required by law.
29. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has
been employed or retained to solicit or secure the Contract upon any agreement or understanding
for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of
bona fide established commercial or selling agencies maintained by the Contractor for the
purpose of securing business. For breach or violation of this warranty, the City shall have the
right, in addition to any other remedy available, to cancel the Contract without liability and to
Page 13
deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such
commission, percentage, brokerage or contingent fee.
30. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract
without liability if it is determined by the City that gratuities were offered or given by the
Contractor or any agent or representative of the Contractor to any officer or employee of the City
with a view toward securing the Contract or securing favorable treatment with respect to the
awarding or amending or the making of any determinations with respect to the performing of
such contract. In the event the Contract is canceled by the City pursuant to this provision, the
City shall be entitled, in addition to any other rights and remedies, to recover or withhold the
amount of the cost incurred by the Contractor in providing such gratuities.
31. PROI3IBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer,
employee, independent consultant, or elected official of the City who is involved in the
development, evaluation, or decision -making process of the performance of any solicitation shall
have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any
willful violation of this section shall constitute impropriety in office, and any officer or employee
guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation
of this provision, with the knowledge, expressed or implied, of the Contractor shall render the
Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of
Interest Questionnaire (Exhibit E).
32. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an
employer/employee relationship, a partnership, or a joint venture. The Contractor's services shall
be those of an independent contractor. The Contractor agrees and understands that the Contract
does not grant any rights or privileges established for employees of the City, Texas for the
purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's
compensation, or any other City employee benefit. The City shall not have supervision and control
of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor
shall perform the services hereunder according to the attached specifications at the general direction
of the City Manager of the City, Texas, or his designee under this agreement.
33. ASSIGNMENT -DELEGATION: The Contract shall be binding upon and ensure to the
benefit of the City and the Contractor and their respective successors and assigns, provided
however, that no right or interest in the Contract shall be assigned and no obligation shall be
delegated by the Contractor without the prior written consent of the City. Any attempted
assignment or delegation by the Contractor shall be void unless made in conformity with this
paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity
not a party hereto; it being the intention of the parties that there are no third party beneficiaries to
the Contract.
34. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in
whole or in part by a waiver or renunciation of the claim or right unless the waiver or
renunciation is supported by consideration and is in writing signed by the aggrieved party. No
waiver by either the Contractor or the City of any one or more events of default by the other
party shall operate as, or be construed to be, a permanent waiver of any rights or obligations
under the Contract, or an express or implied acceptance of any other existing or future default or
defaults, whether of a similar or different character.
Page 14
35. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by
both parties. No pre-printed or similar terms on any the Contractor invoice, order or other
document shall have any force or effect to change the terms, covenants, and conditions of the
Contract.
36. INTERPRETATION: The Contract is intended by the parties as a final, complete and
exclusive statement of the terms of their agreement. No course of prior dealing between the
parties or course of performance or usage of the trade shall be relevant to supplement or explain
any term used in the Contract. Although the Contract may have been substantially drafted by one
party, it is the intent of the parties that all provisions be construed in a manner to be fair to both
parties, reading no provisions more strictly against one party or the other. Whenever a term
defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the
Contract, the UCC definition shall control, unless otherwise defined in the Contract.
37. DISPUTE RESOLUTION:
A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to
negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the
filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either
party may make a written request for a meeting between representatives of each party within
fourteen (14) calendar days after receipt of the request or such later period as agreed by the
parties. Each party shall include, at a minimum, one (1) senior level individual with decision -
making authority regarding the dispute. The purpose of this and any subsequent meeting is to
attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days
after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they
will proceed directly to mediation as described below. Negotiation may be waived by a written
agreement signed by both parties, in which event the parties may proceed directly to mediation
as described below.
B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the
negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in
mediation skills to assist with resolution of the dispute. Should they choose this option; the City
and the Contractor agree to act in good faith in the selection of the mediator and to give
consideration to qualified individuals nominated to act as mediator. Nothing in the Contract
prevents the parties from relying on the skills of a person who is trained in the subject matter of
the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within
thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by
the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to
participate in mediation in good faith for up to thirty (30) calendar days from the date of the first
mediation session. The City and the Contractor will share the mediator's fees equally and the
parties will bear their own costs of participation such as fees for any consultants or attorneys they
may utilize to represent them or otherwise assist them in the mediation.
38. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the
laws of the State of Texas, including, when applicable, the Uniform Commercial Code as
adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that
would refer to and apply the substantive law of another state or jurisdiction. All issues arising
from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree
to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not
be construed or interpreted to limit or restrict the right or ability of the City to seek and secure
injunctive relief from any competent authority as contemplated herein.
Page 15
39. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the
Contract shall in no way affect the validity or enforceability of any other portion or provision of
the Contract. Any void provision shall be deemed severed from the Contract and the balance of
the Contract shall be construed and enforced as if the Contract did not contain the particular
portion or provision held to be void. The parties further agree to reform the Contract to replace
any stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Contract from
being void should a provision which is the essence of the Contract be determined to be void.
40. HOLIDAYS: The following holidays are observed by the City:
New Year's Day (observed)
MLK Day
Memorial Day
4th of July
Labor Day
Thanksgiving Day
Day After Thanksgiving
Christmas Eve (observed)
Christmas Day (observed)
New Year's Day (observed)
If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal
Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of
operation shall be between 8:00 am and 5:00 pm, Monday through Friday, excluding City of
Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of
operation must be approved by the City Manager of Denton, Texas or his authorized designee.
41. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose
continuing obligations on the parties, including but not limited to the warranty, indemnity, and
confidentiality obligations of the parties, shall survive the expiration or termination of the
Contract.
42. NON -SUSPENSION OR DEBARMENT CERTIFICATION:
The City is prohibited from contracting with or making prime or sub -awards to parties that are
suspended or debarred or whose principals are suspended or debarred from Federal, State, or
City Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its
principals are not currently suspended or debarred from doing business with the Federal
Government, as indicated by the General Services Administration List of Parties Excluded from
Federal Procurement and Non -Procurement Programs, the State of Texas, or the City.
43. EQUAL OPPORTUNITY
A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any
discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability,
creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected
to discrimination under any activities resulting from this RFQ.
B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall
engage in any discriminatory employment practice against individuals with disabilities as
defined in the ADA.
Page 16
44. BUY AMERICAN ACT -SUPPLIES (Applicable to certain federally funded
requirements)
The following federally funded requirements are applicable, in addition to the specific federally
funded requirements.
A. Definitions. As used in this paragraph
i. "Component" means an article, material, or supply incorporated directly into an end product.
ii. "Cost of components" means -
(1) For components purchased by the Contractor, the acquisition cost, including transportation
costs to the place of incorporation into the end product (whether or not such costs are paid to a
domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or
(2) For components manufactured by the Contractor, all costs associated with the manufacture of
the component, including transportation costs as described in paragraph (1) of this definition,
plus allocable overhead costs, but excluding profit. Cost of components does not include any
costs associated with the manufacture of the end product.
iii. "Domestic end product" means-
(1) An unmanufactured end product mined or produced in the United States; or
(2) An end product manufactured in the United States, if the cost of its components mined,
produced, or manufactured in the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind as those that the agency
determines are not mined, produced, or manufactured in sufficient and reasonably available
commercial quantities of a satisfactory quality are treated as domestic. Scrap generated,
collected, and prepared for processing in the United States is considered domestic.
iv. "End product" means those articles, materials, and supplies to be acquired under the contract
for public use.
v. "Foreign end product" means an end product other than a domestic end product.
vi. "United States" means the 50 States, the District of Columbia, and outlying areas.
B. The Buy American Act (41 U.S.C. 10a - IOd) provides a preference for domestic end products
for supplies acquired for use in the United States.
C. The City does not maintain a list of foreign articles that will be treated as domestic for this
Contract; but will consider for approval foreign articles as domestic for this product if the articles
are on a list approved by another Governmental Agency. The Offeror shall submit
documentation with their Offer demonstrating that the article is on an approved Governmental
list.
D. The Contractor shall deliver only domestic end products except to the extent that it specified
delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act
Certificate".
45. RIGHT TO INFORMATION: The City reserves the right to use any and all information
presented in any response to this solicitation, whether amended or not, except as prohibited by
law. Selection of rejection of the submittal does not affect this right.
46. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or
supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the
respondent.
47. PREVAILING WAGE RATES: All respondents will be required to comply with Provision
5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment
of prevailing wage rates and prohibiting discrimination in the employment practices.
http://www.access.gpo.gov/davisbacoi-i/tx.html
Page 17
48. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor
or supplier shall comply with all State, Federal, and Local laws and requirements. The
Respondent must comply with all applicable laws at all times, including, without limitation, the
following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas
Penal Code, which prohibits the offering or conferring of benefits to public servants. The
Respondent shall give all notices and comply with all laws and regulations applicable to
furnishing and performance of the Contract.
49. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate
on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section
530 of the Revenue Act of of 1978, dealing with issuance of Form W-2's to common law
employees. Respondent is responsible for both federal and State unemployment insurance
coverage and standard Worker's Compensation insurance coverage. Respondent shall ensure
compliance with all federal and State tax laws and withholding requirements. The City shall not
be liable to Respondent or its employees for any Unemployment or Workers' Compensation
coverage, or federal or State withholding requirements. Contractor shall indemnify the City and
shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this
Section.
50. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions
of the Drug -Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C.
701 ET SEQ.) and maintain a drug -free work environment; and the final rule, government -wide
requirements for drug -free work place (grants), issued by the Office of Management and Budget
and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the
Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply
with the relevant provisions thereof, including any amendments to the final rule that may
hereafter be issued.
51. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The
Respondent shall be liable for all damages to government -owned, leased, or occupied property
and equipment caused by the Respondent and its employees, agents, subcontractors, and
suppliers, including any delivery or cartage company, in connection with any performance
pursuant to the Contract. The Respondent shall notify the City Procurement Manager in writing
of any such damage within one (1) calendar day.
52. FORCE MAJEURE: The City, any Customer, and the Respondent shall not be responsible
for performance under the Contract should it be prevented from performance by an act of war,
order of legal authority, act of God, or other unavoidable cause not attributable to the fault or
negligence of the City. In the event of an occurrence under this Section, the Respondent will be
excused from any further performance or observance of the requirements so affected for as long
as such circumstances prevail and the Respondent continues to use commercially reasonable
efforts to recommence performance or observance whenever and to whatever extent possible
without delay. The Respondent shall immediately notify the City Procurement Manager by
telephone (to be confirmed in writing within five (5) calendar days of the inception of such
occurrence) and describe at a reasonable level of detail the circumstances causing the non-
performance or delay in performance.
Page 18
53. NON -WAIVER OF RIGHTS: Failure of a Party to require performance by another Party
under the Contract will not affect the right of such Party to require performance in the future. No
delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under
the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right
or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed
as a waiver of any continuing or succeeding breach.
54. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no
provision of the Contract is in any way intended to constitute a waiver by the City of any
immunities from suit or from liability that the City may have by operation of law.
55. RECORDS RETENTION: The Respondent shall retain all financial records, supporting
documents, statistical records, and any other records or books relating to the performances called
for in the Contract. The Respondent shall retain all such records for a period of four (4) years
after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all
audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant
access to all books, records and documents pertinent to the Contract to the CPA, the State
Auditor of Texas, and any federal governmental entity that has authority to review records due to
federal funds being spent under the Contract.
Page 19
Exhibit D
INSURANCE REQUIREMENTS AND
WORKERS' COMPENSENTATION REQUIREMENTS
Upon contract execution, all insurance requirements shall become contractual obligations,
which the successful contractor shall have a duty to maintain throughout the course of this
contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the
Contractor shall provide and maintain until the contracted work has been completed and
accepted by the City of Denton, Owner, the minimum insurance coverage as indicated
hereinafter.
Contractor shall file with the Purchasing Department satisfactory certificates of
insurance including any applicable addendum or endorsements, containing the contract
number and title of the project. Contractor may, upon written request to the
Purchasing Department, ask for clarification of any insurance requirements at any time;
however, Contractor shall not commence any work or deliver any material until he or she
receives notification that the contract has been accepted, approved, and signed by the
City of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall
comply with the following general specifications, and shall be maintained in compliance
with these general specifications throughout the duration of the Contract, or longer, if so
noted.
• Each policy shall be issued by a company authorized to do business in the State of
Texas with an A.M. Best Company rating of at least A- VII or better.
Any deductibles or self -insured retentions shall be declared in the proposal. If requested
by the City, the insurer shall reduce or eliminate such deductibles or self -insured
retentions with respect to the City, its officials, agents, employees and volunteers; or, the
contractor shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
Liability policies shall be endorsed to provide the following:
• Name as Additional Insured the City of Denton, its Officials, Agents, Employees
and volunteers.
■ That such insurance is primary to any other insurance available to the Additional
Insured with respect to claims covered under the policy and that this insurance
applies separately to each insured against whom claim is made or suit is brought.
The inclusion of more than one insured shall not operate to increase the insurer's
limit of liability.
Cancellation: City requires 30 day written notice should any of the policies
described on the certificate be cancelled or materially changed before the
expiration date.
• Should any of the required insurance be provided under a claims made form, Contractor
shall maintain such coverage continuously throughout the term of this contract and,
without lapse, for a period of three years beyond the contract expiration, such that
occurrences arising during the contract term which give rise to claims made after
expiration of the contract shall be covered.
• Should any of the required insurance be provided under a form of coverage that includes
a general annual aggregate limit providing for claims investigation or legal defense costs
to be included in the general annual aggregate limit, the Contractor shall either double
the occurrence limits or obtain Owners and Contractors Protective Liability Insurance.
• Should any required insurance lapse during the contract term, requests for payments
originating after such lapse shall not be processed until the City receives satisfactory
evidence of reinstated coverage as required by this contract, effective as of the lapse
date. If insurance is not reinstated, City may, at its sole option, terminate this agreement
effective on the date of the lapse.
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Contract shall
additionally comply with the following marked specifications, and shall be maintained in
compliance with these additional specifications throughout the duration of the Contract,
or longer, if so noted.
[X] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than
$1,000,000.00 shall be provided and maintained by the Contractor. The policy shall
be written on an occurrence basis either in a single policy or in a combination of
underlying and umbrella or excess policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is
used:
Coverage A shall include premises, operations, products, and completed
operations, independent contractors, contractual liability covering this
contract and broad form property damage coverage.
• Coverage B shall include personal injury.
• Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition
and ISO Form GL 0404) is used, it shall include at least:
• Bodily injury and Property Damage Liability for premises, operations,
products and completed operations, independent contractors and property
damage resulting from explosion, collapse or underground (XCU) exposures.
• Broad form contractual liability (preferably by endorsement) covering this
contract, personal injury liability and broad form property damage liability.
Page 21
[X] Automobile Liability Insurance:
Contractor shall provide Commercial Automobile Liability insurance with Combined
Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination
of basic and umbrella or excess policies. The policy will include bodily injury and
property damage liability arising out of the operation, maintenance and use of all
automobiles and mobile equipment used in conjunction with this contract.
Satisfaction of the above requirement shall be in the form of a policy endorsement for:
• any auto, or
• all owned hired and non -owned autos.
[X] Workers' Compensation Insurance
Contractor shall purchase and maintain Workers' Compensation insurance which, in
addition to meeting the minimum statutory requirements for issuance of such insurance,
has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each
employee, and a $500,000 policy limit for occupational disease. The City need not be
named as an "Additional Insured" but the insurer shall agree to waive all rights of
subrogation against the City, its officials, agents, employees and volunteers for any work
performed for the City by the Named Insured. For building or construction projects, the
Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096
of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation
Commission (TWCC).
[ ] Owner's and Contractor's Protective Liability Insurance
The Contractor shall obtain, pay for and maintain at all times during the prosecution of
the work under this contract, an Owner's and Contractor's Protective Liability insurance
policy naming the City as insured for property damage and bodily injury which may arise
in the prosecution of the work or Contractor's operations under this contract. Coverage
shall be on an "occurrence" basis and the policy shall be issued by the same insurance
company that carries the Contractor's liability insurance. Policy limits will be at least
$500,000.00 combined bodily injury and property damage per occurrence with a
$1,000,000.00 aggregate.
[ ] Fire Damage Legal Liability Insurance
Coverage is required if Broad form General Liability is not provided or is unavailable to
the contractor or if a contractor leases or rents a portion of a City building. Limits of not
less than _ each occurrence are required.
[ ] Professional Liability Insurance
Professional liability insurance with limits not less than $1,000,000.00 per claim with
respect to negligent acts, errors or omissions in connection with professional services is
required under this Agreement.
[ ] Builders' Risk Insurance
Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be
provided. Such policy shall include as "Named Insured" the City of Denton and all
subcontractors as their interests may appear.
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery
inside/outside the premises, burglary of the premises, and employee fidelity. The
employee fidelity portion of this coverage should be written on a "blanket" basis to cover
all employees, including new hires. This type insurance should be required if the
contractor has access to City funds. Limits of not less than $ each
occurrence are required.
[ ] Additional Insurance
Other insurance may be required on an individual basis for extra hazardous contracts
and specific service agreements. If such additional insurance is required for a specific
contract, that requirement will be described in the "Specific Conditions" of the contract
specifications.
i�
ATTACHMENT 1
[X] Workers' Compensation Coverage for Building or Construction Projects for
Governmental Entities
A. Definitions:
Certificate of coverage ("certificate") -A copy of a certificate of insurance, a
certificate of authority to self -insure issued by the commission, or a coverage
agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing
statutory workers' compensation insurance coverage for the person's or
entity's employees providing services on a project, for the duration of the
project.
Duration of the project - includes the time from the beginning of the work on
the project until the contractor's/person's work on the project has been
completed and accepted by the governmental entity.
Persons providing services on the project ("subcontractor' in §406.096) -
includes all persons or entities performing all or part of the services the
contractor has undertaken to perform on the project, regardless of whether
that person contracted directly with the contractor and regardless of whether
that person has employees. This includes, without limitation, independent
contractors, subcontractors, leasing companies, motor carriers, owner -
operators, employees of any such entity, or employees of any entity which
furnishes persons to provide services on the project. "Services" include,
without limitation, providing, hauling, or delivering equipment or materials, or
providing labor, transportation, or other service related to a project.
"Services" does not include activities unrelated to the project, such as
food/beverage vendors, office supply deliveries, and delivery of portable
toilets.
B. The contractor shall provide coverage, based on proper reporting of
classification codes and payroll amounts and filing of any overage
agreements, which meets the statutory requirements of Texas Labor Code,
Section 401.011(44) for all employees of the Contractor providing services
on the project, for the duration of the project.
C. The Contractor must provide a certificate of coverage to the governmental
entity prior to being awarded the contract.
D. If the coverage period shown on the contractor's current certificate of
coverage ends during the duration of the project, the contractor must, prior to
the end of the coverage period, file a new certificate of coverage with the
governmental entity showing that coverage has been extended.
E. The contractor shall obtain from each person providing services on a project,
and provide to the governmental entity:
1. a certificate of coverage, prior to that person beginning work on the
project, so the governmental entity will have on file certificates of
coverage showing coverage for all persons providing services on the
project; and
2. no later than seven days after receipt by the contractor, a new
certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the
duration of the project.
F. The contractor shall retain all required certificates of coverage for the
duration of the project and for one year thereafter.
G. The contractor shall notify the governmental entity in writing by certified mail
or personal delivery, within 10 days after the contractor knew or should have
known, of any change that materially affects the provision of coverage of any
person providing services on the project.
H. The contractor shall post on each project site a notice, in the text, form and
manner prescribed by the Texas Workers' Compensation Commission,
informing all persons providing services on the project that they are required
to be covered, and stating how a person may verify coverage and report lack
of coverage.
I. The contractor shall contractually require each person with whom it contracts
to provide services on a project, to:
1. provide coverage, based on proper reporting of classification codes and
payroll amounts and filing of any coverage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all of
its employees providing services on the project, for the duration of the
project;
2. provide to the contractor, prior to that person beginning work on the
project, a certificate of coverage showing that coverage is being provided
for all employees of the person providing services on the project, for the
duration of the project;
3. provide the contractor, prior to the end of the coverage period, a new
certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the
duration of the project;
4. obtain from each other person with whom it contracts, and provide to the
contractor:
a. a certificate of coverage, prior to the other person beginning work on
the project; and
b. a new certificate of coverage showing extension of coverage, prior to
the end of the coverage period, if the coverage period shown on the
current certificate of coverage ends during the duration of the project;
5. retain all required certificates of coverage on file for the duration of the
project and for one year thereafter;
6. notify the governmental entity in writing by certified mail or personal
delivery, within 10 days after the person knew or should have known, of
any change that materially affects the provision of coverage of any person
providing services on the project; and
7. Contractually require each person with whom it contracts, to perform as
required by paragraphs (1) - (7), with the certificates of coverage to be
provided to the person for whom they are providing services.
J. By signing this contract or providing or causing to be provided a certificate of
coverage, the contractor is representing to the governmental entity that all
employees of the contractor who will provide services on the project will be
covered by workers' compensation coverage for the duration of the project,
that the coverage will be based on proper reporting of classification codes
and payroll amounts, and that all coverage agreements will be filed with the
appropriate insurance carrier or, in the case of a self -insured, with the
commission's Division of Self -Insurance Regulation. Providing false or
misleading information may subject the contractor to administrative
penalties, criminal penalties, civil penalties, or other civil actions.
K. The contractor's failure to comply with any of these provisions is a breach of
contract by the contractor which entitles the governmental entity to declare
the contract void if the contractor does not remedy the breach within ten
days after receipt of notice of breach from the governmental entity.
MM
Exhibit E
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor or other person doing business with local gaverrxmental errti y __
This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE
USE ONLY
This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a
Date Renewed
person who has a business relationship as defined by Section 176.001(1-a) with a local governmental
entity and the person meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not
later than the 7th business day after the date the person becomes aware of facts that require the
statement to be filed. See Section 176.006, Local Government Code.
A person commits an offense if the person knowingly violates Section 176.006, Local Government
Code. An offense under this section is a Class C misdemeanor..
1 Nance of person who has a business relationship with local governmental entity.
2
❑ Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not
later than the 71h business day, after the date the originally filed questionnaire becomes incomplete or
inaccurate.)
3
Name of local government officer with whom filer has an employment or business relationship.
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an
employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach
additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than
investment income, from the filer of the questionnaire?
E] Yes 0 No
B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from
or at the direction of the local government officer named in this section AND the taxable income is not received
from the local governmental entity?
Yes 0 No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the
local government officer serves as an officer or director, or holds an ownership of 10 percent or more?
Yes No
D. Describe each affiliation or business relationship.
4
Signature of person doing business with the governmental Date
entity
Page 27
EXHIBIT "F"
7/16/2014
To: City of Denton
Attn: Kathy Gault
RE: JTS Service Rates
5310 S. Cockrell I f ill Road
Dallas. l'X 75236
T 972-620-1435
F 972-247-5023
sales(c�'ta s.nct
wdv. w.jts.net
Scheduled Service (Services schedule two (2) weeks in advance; i.e. Annual or Monthly Services, Misc. Pro-
jects,etc... )with a two man rescue certified tower crew;
$125.00 per hour plus materials during normal business hours
$175.00 per hour plus materials during non -business hours
Non -critical On -Site Service (Services required within one (1) week of notice) with a two man rescue certified
tower crew;
$145.00 per hour plus materials during normal business hours
$175.00 per hour plus materials during non -business hours
Emergency On -Site Service (Services required within one (1) day of notice)with a two man rescue certified
tower crew;
$175.00 per hour plus materials during normal business hours
$200.00 per hour plus materials during non -business hours
The time clock start when the crew leaves from JTS office in Dallas and stops when the crew arrives at JTS of-
fice from the customers site.
There will be a vehicle fee for each service call to cover the cost of the vehicle, fuel and specialized test equip-
ment.
$140.00 vehicle fee
Thomas Emerick
Service Manager
JTS
5310 S Cockrell Hill Rd
Dallas TX 75236
Office: 972-620-1435 ext 141
Pax: 972-247-5023
Emergency Response: 972-620-1435 ext 130
When it Comes to Wireless, We Knom, What to Do
-
EXHIBIT "F"
SERVICES PRICING
DIR-SDD-2060
JOHNSTON TECHNICAL SERVICES INC.
NISRP/List
Technical Services - Radio Systems
Annual Maintenance Agreement
Application based - Call for pricing
Installation & Maintenance Hourly Rate (I -man crew)
$125.00
Installation & Maintenance Day Rate (gam-5pm. 1-man crew)
$1,000.00
y Rate (2-man crew)
Installation & Maintenance Hourly
$250.00
_
Installation & Maintenance Day Rate (8am-51)m, 2-man crew)
$2,000.00
Installation &Maintenance Hourly Rate (3-man crew)
$375.00
Installation & Maintenance Day Rate (8am-5pm, 3-man crew)
$3,000.00
Installation & Maintenance Hourly Rate (4-man crew)
$500.00
Installation &Maintenance Day Rate (8am-5pm, 4-man crew)
$4,000.00
Site Survey (per day)
$2,000.00
Spectrum Analysis (per day)
$2,000.00
Systems Engineering l-Iourly Rate
$250.00
Troubleshooting Hourly Rate (2-man crew)
$250.00
FCC License Coordination Fee (single point-to-point hop)
$2,000.00
Training (1-dav)
$1,000.00
Meeting (2-hour slot) _
$250.00
Mobilization (per I -hour increment per tech)
$80.00
Report Generation
$1,000.00
JTS Bucket Trick Usagc (day rate)
$500.00
External Resource Lease - Man Lift (day rate)
Commercial List Price
External Resource Lease - Crane (hourly rate)
Commercial List Price
External Resource Lease - Backhoe (day rate)
Commercial List Price
Technical Services - Tower Construction & Misc Tower Related Services
_
Tower Inspection (per tower)
$3,150.00
Tower Engineering (Gcotechnical and PE Reports)
$5,500.00
Tower Installation (Foundation)
Application based - Call for pricing
Tower Installation (Stacking)
Application based - Call for pricing
Tower Grounding (per tower)
Application based - Call for pricing
Tower Repair - Hourly Rate (per man)
$125.00
Tower Work - General Hourly Rate (per man crew)
$125.00
Tower Tcar-Down and Removal - Day Rate (4-man crew)
$4,000.00
For more information and current DIR pricing on these and other JTS Services, please
contact JTS at: sales@jts.net or 972-620-1435 x.140. Prices subject change without notice.
Contract Details Page I of I
EXHIBIT 'IF"
Search BV o Enter starr,7r cr to r a
M
Home Ca -op Contracts Texas.gov Security Data Center Telecom IT Leadership About DIR Contact Us
< Return to search rgsul s < Return to Main Search
Johnston Technical Services, Inc. Dba: JTS
URL Vendor Website DIR Contract Number DIR-SDD-2060
Vendor ID 1752621300800 Contract Term End Date 2/27/2015
HUB Type Non HUB Contract Exp Date 2/27/2017
Johnston Technical Services, Inc. Dba: JTS DIR
Contact Kyle Fuller Contact Deana Loe
Phone (972)620-1435, X125 Phone (512)463-0687
Fax (972)247-5023 Fax (512)475-4759
Contract Overview
et Adobe Reader
Contract: DIR-SDD-2060
Standard Terms and Conditions PDF -427 KB
This appendix contains the standard DIR Terms and Conditions for the contract as of the
date identified. Any initial exceptions to these Terms will be contained in the original
contract. All subsequent changes or updates to the Terms and Conditions will be reflected in
contract amendments.
HUB Subcontractlag Plan (HSP) PDF - 486 KB I Updated 02/28/2013
The purpose of the HUB Program is to promote full and equal business opportunities for all
businesses In State contracting in accordance with the goals specified In the State of Texas
Disparity Study. The HSP identifies all authorized resellers and/or all subcontractors
performing services.
PricingPDF - 19 KB I Updated 02/19/2014
Pricing for available products and/or services under this contract are limited to those
identified in the appendix.
Electronic and Information Resources (EIR) Accessibility
Information regarding Electronic and Information Resources (EIR) accessibility of this
vendor's offerings is Included in the contract. Agencies purchasing products or services are
responsible for complying with Texas EIR Accessibility statute and rules, as defined In TGC
2054 Subchapter M, ITAC 206, and 1 TAC 213. For additional information, visit the Vendor
Website or contact the vendor directly.
< antis, return to search
Reseller Vendor Contacts
There are no resellers associated with this contract
Caaitol_ Compl_cx Dircct. pocurnent Library r-AOs
Statewide Search SAO Fraud Reporting Site Policies
5DOn50'rd Sites Homeland Securif it Ma i
Planned Procurement Schedule Texas Veterans Portal IQk_LQ9LnM
How to Order
1. For product and pricing Information, visit the
)ohnSlrJ!t, �aH""fo,�rarr-rC Ser;lg,§;s 1nr I1ta_)];e
website aar c€arltacl Nn':Luber at (97'2) 620-
1435 , X325. Reseller Vendors are also available
through this Contract. Select from any Reseller
Vendor contact listed below to also obtain
product and pricing information.
2. Generale a purchase order, made payable to
Johnston Technical Services, Inc. Dba: JTS or
any Reseller Vendor listed below. You must
reference the DIR Contract Number DIR-SDD-
2060 on your purchase order,
3. E-mail or Fax your purchase order and quote
form to your designated vendor or reseller sales
representative.
Available Brands
Axell
Cambium Networks
Dragonwave
E-Band
PureWave
Rohn
Available Products & Services
Emergency Preparedness Hardware and Related Services
Additional Contract Information
Appendix D. Semite Level Anrgement (80 KB)
Amendment 1 (223 KB)
Dept. of Information Resources
300 W. 15th St. Ste. 1300
Austin, TX 78701 MAP
(512)475.4700
Ptonie, Co.-o_gr_Corttracts lq•ms;gov 5c5,urigy Dala_Center 1.01gcorn )T WPL!ershipl M igyt DIR gmOct Us
O Depannient of information Resources 2012
Page 30
littp://tv,,NJw2.dii-.state.tx.us/ict/coiitracts/Pages/Details.aspx?dir_,,contract_ number=DIR-SD... 7/16/2014
EXHIBIT "F"
APPENDIX C - PRICING INDEX
DIR-SDD-2060
Customer
AMENDMENT No. 1
Discount % off
JOHNSTON TECHNICAL SERVICES INC.
MSRP
Emergency Preparedness Hardware Products
Axell All Products
10.00%
Cambium Networks
.n. _ -�
Radios/Antennas/License Keys
18.00%
Accessories (Mounts, Protectors, etc.)
22.00%
DragonWave/All Products
15.00%
E-Band/All Products
15.00%
PureWave
Base Stations/Antennas/Pole Mount Kit/Management System
10.00%
CPGs
3.00%
Accessories
5.00%
Rohn Towers/All Products (excludes Roof Mounts)
10.00%
Rup-edconv'All Products except 3rd Party Items
8.00%
Sabre Site Solutions/All Products
-
11.50%
Siklu All Products
12.00%
Sub 10 Systems/All Products
10.00%
Trylon Towers/All Products
14.50%
Emergency Preparedness Accessories
_
Cabling
5.00%
Patch Cords
5.00%
Connectors
5.00%
Power Supplies
5.00%
Protectors
5.00%
Mounting Hardware (Clamp,, Hangers, Brackets, Mounts, Masts, etc.)
Grounding Kits
5.00%
Weatherproofing Material
5.00%
Ernes gency Preparedness Services
Technical Services - Radio Systems
Annual Maintenance Agreement
12.00%
Installation & Maintenance Hourly Rate (1-man crew)
12.00%
Installation & Maintenance Day Rate (8ain-5pnt, ]-man crew)
12.00%
Installation &Maintenance Hourly Rate (2 man crew)
12.00%
Installation & Maintenance Day Rate (8arn-5prn, 2-man crew)
12.00%
Installation & Maintenance Hourly Rate (3-man crew)
12.00%
Installation & Maintenance Day Rate (8am-513m, 3-man crew)
12.00%
Installation & Maintenance Hourly Rate (4-man crew)
12.00%
Installation & Maintenance Day Rate (8am-5pm, 4-man crew)
12.00%
Site Survey (per node)
12.00%
Page 31
EXHIBIT "F"
Page 32
EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
Table of Contents
1. Contract Scope..... ............... .....................,....... ......,. .........._........ ........................... 1
2. No Quantity Guarantees......___ ............................... ...................... ................ 1
3. Definitions ...............................................
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
5. Product Terms and Conditions.......... __.................................... ...........................
3
A.
Electronic and Infonnation Resources Accessibility Standards, As Required
by I TAC Chapters 206 and 213 (Applicable to State Agency and
Institution of Higher Education Purchases Only).........................................................
3
B.
Purchase of Commodity Items (Applicable to State Agency Purchases
Only) ................................................. ... ........................................ ................4
6. Contract Fulfillment and Promotion... ..........................................................__..............
4
A.
Service, Sales and Support of the Contract..................................................................
4
B.
Use of Order Fulfillers ....................... .................... ......... .................
5
I) Designation of Order Fulfillers ..... .................. ............ ...... ......... ..............
.... 5
2) Changes in Order Fulfiller List................................................................................
5
3) Order Fulfiller Pricing to Customer ........ ....____ ....... ............. ,...... ........,.........
5
C.
Product Warranty and Return Policies ..................... ............... ............. .e ..................
5
D.
Customer Site Preparation........... ................ . ........................... ...........................
6
E.
Internet Access to Contract and Pricing Information ................... ......... ..................
6
I ) Vendor Website.__.. ... ............ ..................................... ..........................,,
..
6
2) Accurate and Timely Contract Information ....... ......... ................ ...................
6
3) Website Compliance Checks ............................. ......... ........ ............................
6
4) Website Changes.....................................................................................................
6
5) Use of Access Data Prohibited...............................................................................
6
6) Responsibility for Content.....................................................................................
7
F.
DIR Logo ......................................................... ..... ............. .. ...........................
7
G.
Vendor and Order Fulfiller Logo .................................... .,........... ............................
..,... 7
H.
Trade Show Participation... ..............
1.
Orientation Meeting .......................... ................ ............ .............................. ........
___ 7
J.
Performance Review Meetings ..................... .................... ......... ...........................
7
K.
DIR Cost Avoidance .............................................. ........ .........- ..,..........,....
8
12/17/12
Page 33
EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
7. Purchase Orders, Invoices, and Payments ..................... .................... ......... 8
A.
Purchase Orders .................... ......... ........ ......................................................
-,........ 8
B.
Invoices ........... .............. .......,.......... .......,. ......... .........
.....a... ...................8
C.
Payments ........................................ ................ ....._,........,.......................................
8
8. Contract
Administration ...... ....____ ... .................. .... - ........- ..,......
....,................,........ 8
A.
Contract Administrators.........,. .............. ................... .........
......... .................... 8
1) State Contract Administrator ..... ........ ......... ......... .........
......... .................. 8
2) Vendor Contract Administrator . ......... .......... ..............,,... ..................... ,,....... 9
B.
Reporting and Administrative Fees ............ ......... .......... .........
...............,............. 9
1) Reporting Responsibility.......... . ................... .......
9
2) Detailed Monthly Report
c
3) Historically Underutilized Businesses Subcontract Reports.,
............................ 9
4) DIR Administrative Fee... ......... ...........................,.,. .........
......... .................. 9
5) Accurate and Timely Submission of Reports.......................................................
10
C.
Records and Audit............................................................. ...................
................. 10
D.
Contract Administration Notification.........................................................................
11
9. Vendor Responsibilities
A.
Indemnification ......... ......................... .........., _ ............................... .................
I i
B.
Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE ........................
12
C.
Vendor Certifications..................................................................................................
13
D.
Ability to Conduct Business in Texas.........................................................................
15
E.
Equal Opportunity Compliance..................................................................................
15
F.
Use of Subcontractors ........... ......... ..a...... ......... ......... ................... ..................
15
G.
Responsibility for Actions .......................... ........, ......... .._...... .................,...........
15
H.
Confidentiality.......................... ................................................ ... .....,.... ..................16
I.
Security of Premises, Equipment, Data and Personnel ..............................................
16
J.
Background and/or Criminal History Investigation ............................... ........
16
K.
Limitation of Liability ............... ............................. ............. ..................
16
L.
Overcharges ...................................... ......................_ ... ......... ......... ......_ .......
17
M.
Prohibited Conduct .......................... .......... ....,... ......... ......... .... ___ ,....... ........
17
N.
Required Insurance Coverage,..... ............ .......... ................................................
17
O.
Use of State Property .......................___ ..... ....... ......... ............ ..............................
18
P.
Immigration ............................. ....... ........... ,............ ........,...........................................
18
Q.
Public Disclosure .................. .................. .............. ...___ ....................... .............
18
R.
Product and/or Services Substitutions ........ .................. ......... ......... ...................
18
S.
Secure Erasure of Hard Disk Products and/or Services ..............................................
19
T.
Deceptive Trade Practices; Unfair Business Practices ................................................
19
U.
Drug Free Workplace Policy.......... ......... ......... ......... ......... ......... ...................
19
10. Contract
Enforcement .......................................... ......................... ..... _......... ...._.............
19
A.
Enforcement of Contract and Dispute Resolution.... ...... __ .......... ......... ....... .........
19
B.
Termination................................................................................................................20
1) Termination for Non -Appropriation .................... ............. ............. ___ ................
20
12/17/12
M
Page 34
EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
a) Termination for Non -Appropriation by Customer .................................................. 20
b) Termination for Non -Appropriation by DIR.......................................................... 20
2) Absolute Right .............................. .......... ................................................ 20
3) Termination for Convenience ............................ ......... ...._.,. ...................20
4) Termination for Cause ........................................ ............. ....... ......... ........... 21
a) Contract ............. ..........................................._.......,............. ......... ..........21
b) Purchase Order ...................... ___ .......................... .... ,......... ........................... 21
5) Customer Rights Under Termination ........... ...... ........................ ........................... 21
6) Vendor or Order Fulfiller Rights Under Termination ........................................... 21
C. Force Majeure............................................................................................................. 21
11. Notification ..............................................._............., .._..........__.._ ............,,,.......... 22
A. Notices ............................ ...............22
B. Handling of Written Complaints ............. ............. ................................ ... ....... 22
12. Captions....................................................................................................................... 22
12/17/12
ff
Page 35
EXHIBIT 7"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
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.
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B. Compliance Check — an audit of Vendor's compliance with the Contract may be
performed by, but not limited to, a third party auditor, DIR Internal Audit department,
or DIR contract management staff or their designees.
C. Contract — the document executed between DIR and Vendor into which this
Appendix A is incorporated.
D. CPA — refers to the Texas Comptroller of Public Accounts.
E_ Day - shall mean business days, Monday through Friday, except for State and Federal
holidays. 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 terns 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 terns 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
Texas 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 or condition and DIR does not waive the applicable Texas and/or United
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States law or regulation which conflicts with the Contract term or condition.
2) If one or more term or condition 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
l-learings 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. Any other assignment by a party shall require the written consent of
the other party. Each party agrees to cooperate to amend the Contract as necessary to
maintain an accurate record of the contracting parties.
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 Order Fulfiller shall survive expiration or termination of the
Contract.
F. Choice of Law
The laws of the State of Texas shall govern the construction and interpretation of the
Contract. Exclusive venue for all actions with 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
Vendor shall have no authority to act for or on behalf of the Texas Department of
Information Resources or the State of Texas 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 of Texas
or Texas Department of Information Resources.
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 of Texas Accessibility
requirements for Electronic and Information Resources specified in 1 TAC Chapters
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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 thirty (30) 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 of Texas
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 5.13.2 below, in accordance with contracts developed by DIR,
unless the agency obtains an exemption from DIR.
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, 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 S.B.
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.
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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 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.B.l.a above.
3) Order Fulfiller Pricing to Customer
Order Fulfiller pricing to the Customer shall comply with the Customer price as
stated within Section 4 of the Contract. 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.
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EXHIBIT "F"
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Standard Terms and Conditions For Product and Related Services Contracts
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.
F. Internet Access to Contract and Pricing Information
1) Vendor Website
Within thirty 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, Contract pricing, 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 (ICT) 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 uniform with the
pricing as stated in Section 4 of the Contract.
4) Website Changes
Vendor hereby consents to a link from the DIR website to Vendor's website in order
to facilitate access to Contract information. The establishment of the link is provided
solely for convenience in carrying out the business operations of the State. DIR
reserves the right to terminate or remove a link at any time, in its sole discretion,
without advance notice, or to deny a future request for a link. DIR will provide
Vendor with subsequent notice of link termination or removal. Vendor shall provide
DIR with timely written notice of any change in URL or other information needed to
access the site and/or maintain the link.
5) Use of Access Data Prohibited
If Vendor stores, collects or maintains data electronically as a condition of accessing
Contract information, such data shall only be used internally by Vendor for the
purpose of implementing or marketing the Contract, and shall not be disseminated to
third parties or used for other marketing purposes. The Contract constitutes a public
document under the laws of the State and Vendor shall not restrict access to Contract
terms and conditions including pricing, i.e., through use of restrictive technology or
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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
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
Upon 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. The meeting will be held within the Austin, Texas area at a
date and time mutually acceptable to DIR and the Vendor. 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. DIR shall bear no cost for
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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.
7. Purchase Orders, Invoices, and Payments
A. 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.
B. 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.
C. 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) 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.
8. Contract Administration
A. Contract Administrators
DIR and the Vendor will each provide a Contract Administrator to support the Contract.
Information regarding the Contract Administrators will be posted on the Internet website
designated for the Contract.
1) State Contract Administrator
DIR shall provide a Contract Administrator whose duties shall include but not be
limited to: i) supporting the marketing and management of the Contract, ii) advising
DIR of Vendor's performance tinder the terms and conditions of the Contract, and iii)
periodic verification of product pricing and monthly reports submitted by Vendor.
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2) Vendor Contract Administrator
Vendor shall provide a dedicated Contract Administrator 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 Administrator if the assigned Contract Administrator is not, in the 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 month period. Reports shall be submitted to the DIR ICT
Cooperative Contracts E-Mail Box at ict.sales(2a dir.texas.agov. Reports are due on the
fifteenth (15"i) calendar day after the close of the previous month period. The
monthly report shall include, per transaction: the detailed sales for the period,
Customer name, invoice date, invoice number, description, quantity, manufacturer's
suggested retail price, unit price, extended price, Customer Purchase Order number,
contact name, Customer's complete billing address, and other information as required
by DIR. Each report must contain all information 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 their relevant
Historically Underutilized Business Subcontracting Report, pursuant to the
Contract, as required by Chapter 2161, Texas Government Code. Reports shall
also be submitted to DIR.
b) Reports shall be due in accordance with the CPA rules.
4) DIR Administrative Fee
a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs
of negotiating, executing, and administering the Contract. The maximum
administrative fee is set by the Texas Legislature in the biennial General
Appropriations Act. Payment of the administrative fee shall be due on the
fifteenth (15`r') calendar day after the close of the previous month period. DIR
may change the amount of the administrative fee upon thirty (30) days written
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notice to Vendor without the need for a formal contract amendment.
b) Vendor shall reference the DIR Contract number on any remittance
instruments.
5) Accurate and Timely Submission of Reports
a) Tile 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 within any rolling twelve (12) month
period may, at DIR's discretion, result in 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, 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 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 1=11 f hers and the
requirement to cooperate is included in any subcontract or Order Fulfiller contract it
awards pertaining to the Contract. Under the direction of the Legislative Audit
Committee, a Vendor that is the subject of an audit or investigation by the State
Auditor's Office must provide the State Auditor's Office with access to any
information the State Auditor's Office considers relevant to the investigation or audit.
2) Vendor and Order Fulfillers shall maintain adequate records 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, 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
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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) 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 ofDIR'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 of the following: i) DIR Contract Administrator name and contact
information, and ii) DIR ICT Cooperative Contracts E-Mail Box information.
9. Vendor Responsibilities
A. Indemnification
1) 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 AND AGAINST
ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND
ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or
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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
REGARDLESS OF THE NEGLIGENCE OF THE CUSTOMER, THE STATE OF
TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES. VENDOR SHALL PAY
ALL COSTS OF DEFENSE INCLUDING ATTORNEYS FEES. THE DEFENSE
SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL
FOR TEXAS STATE AGENCIES AND BY CUSTOMER'S LEGAL COUNSEL
FOR NON -STATE AGENCY CUSTOMERS.
2) 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 THE
OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY
CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE
AGENCY CUSTOMERS.
b) If Vendor becomes aware of an actual or potential claim, or Customer provides
Vendor with notice of an actual or potential claim, Vendor may (or in the case of an
injunction against Customer, shall), at Vendor's sole option and expense: (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.
3) Independent Contractor
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE OF THIS CONTRACT, IT IS FURNISHING SERVICES IN THE
CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR
IS NOT AN EMPLOYEE OF THE CUSTOMER, DIR OR THE STATE OF
TEXAS.
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
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Standard Terms and Conditions For Product and Related Services Contracts
COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY
SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES,
INSURANCE, AND WORKERS' COMPENSATION. VENDOR AGREES AND
ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES,
AGENTS OR SUBCONTRACTORS SHALL NOT BE ENTITLED TO ANY
STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY
CUSTOMER. 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, ASSIGNEES, AND/OR DESIGNEES
FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR
SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES,
RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR
WORKERS' COMPENSATION OR EXPECTATIONS OF BENEFITS BY
VENDOR, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR
SUBCONTRACTORS 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 THE
OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY
CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE
AGENCY CUSTOMERS.
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 of
Texas 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 of Texas, 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 fi-om 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
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EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
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) are not suspended or debarred from doing business with the federal government as
listed in the Excluded Parties List System (EPLS) 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 413224, "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;
(ix) 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;
(x) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
(xi) have identified all current or former, within the last five years, employees of the
State of Texas 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;
(xii) 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;
(xiii) 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; and
(xiv) 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.
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EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
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 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 Item 18 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
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EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
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.
I. 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 tlae 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 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 employed; 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 of Texas, 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 patent,
trademark, or copyright infringement.
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EXHIBIT 7"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
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 15.01, 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 days of execution of the Contract if the Vendor is awarded services
which require that Vendor's employees perform work at any Customer premises and/or
use employer vehicles to conduct work on behalf of Customers. In addition, when
engaged by a Customer to provide services on Customer premises, the Vendor shall, at its
own expense, secure and maintain the insurance coverage specified herein, and shall
provide proof of such insurance coverage to the related Customer within five (5) business
days following the execution of the Purchase Order. Vendor may not begin performance
under the Contract and/or a Purchase Order until such proof of insurance coverage is
provided to, and approved by, DIR and the Customer. All required insurance must be
issued by companies that are A+ financially rated and duly licensed, admitted, and
authorized to do business in the State of Texas. 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 $500,000 per
occurrence for coverage A, B, & C including products/completed operations, where
appropriate, with a separate aggregate of $500,000. 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
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EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
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 $250,000 bodily injury per accident, $500,000 bodily injury
disease policy limit and $250,000 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 properly 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 favor of DIR and/or Customer:
a) Waiver of Subrogation;
b) 30-day Notice of Termination; and
c) Additional Insured.
O. Use of State Property
Vendor is prohibited from using the Customer's equipment, the Customer's Location, or
any other resources of the Customer or the State of Texas for any purpose other than
performing services under this Agreement. For this purpose, equipment includes, but is
not limited to, copy machines, computers and telephones using State of Texas long
distance services. Any charges incurred by Vendor using the Customer's equipment for
any purpose other than performing services under this Agreement must be fully
reimbursed by Vendor to the Customer immediately upon demand by the Customer.
Such use shall constitute breach of contract and may result in termination of the contract
and other remedies available to DIR and Customer under the contract and applicable law.
P. Immigration
Vendor shall comply with all requirements related to federal immigration laws and
regulations, to include but not be limited to, the Immigration and Reform Act of 1986, the
Illegal Immigration Reform and Immigrant Responsibility Act of 199E ("IIRIRA") and
the Immigration Act of 1990 (8 U.S.C.1101, et seq.) regarding employment verification
and retention of verification forms for any individual(s) hired on or after the effective
date of the 1996 Act who will perform any labor or services under this Contract. Nothing
herein is intended to exclude compliance by Vendor with all other relevant federal
immigration statutes and regulations promulgated pursuant thereto.
Q. Public Disclosure
No public disclosures or news releases pertaining to this contract shall be made without
prior written approval of DIR.
R. Product and/or Services Substitutions
Substitutions are not permitted without the written permission of DIR or Customer.
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EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
S. Secure Erasure of Hard Disk Products and/or Services
Vendor agrees that all products and/or services equipped with hard disk drives (i.e.
computers, telephones, printers, fax machines, scanners, multifunction devices, etc.) shall
have the capability to securely erase data written to the hard drive prior to final
disposition of such products and/or services, either at the end of the Customer's Managed
Services product's useful life or the end of the related Customer Managed Services
Agreement for such products and/ services, in accordance with 1 TAC 202.
T. Deceptive Trade Practices; Unfair Business Practices
a) Vendor represents and warrants that neither Vendor nor any of its Subcontractors has
been (i) found liable in any administrative hearing, litigation or other proceeding of
Deceptive Trade Practices violations as defined under Chapter 17, Texas Business &
Commerce Code, or (ii) has outstanding allegations of any Deceptive Trade Practice
pending in any administrative hearing, litigation or other proceeding.
b)Vendor certifies that it has no officers who have served as officers of other entities who
(i) have been found liable in any administrative hearing, litigation or other proceeding of
Deceptive Trade Practices violations or (ii) have outstanding allegations of any Deceptive
Trade Practice pending in any administrative hearing, litigation or other proceeding.
U. Drug Free Workplace Policy
The contractor shall comply with the applicable provisions of the Drug -Tree Work Place
Act of 1988 (Public Law 100-690, Title V, Subtitle D 41 U.S.C. 701 ET SEQ.) and
maintain a drug -free work environment: and the final rule, government -vide
requirements for drug -free work place (grant,), issued by the off -ice of Management and
Budget and the Department of Defense (32 CFR Ilan[ 280, Subpart F) to implement the
provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the
contractor shall comply with the relevant provisions thereof, including any amendments
to the final rule that may hereafter be issued.
10. Contract Enforcement
A. Enforcement of Contract and Dispute Resolution
1) Vendor and DIR agree to the following: (i) a party's failure to require strict
performance of any provision of the Contract shall not waive or diminish that party's
right thereafter to demand strict compliance with that or any other provision, (ii) for
disputes not resolved in the nonnal course of business, the dispute resolution process
provided for in Chapter 2260, Texas Government Code, shall be used, and (iii)
actions or proceedings arising from the Contract shall be heard in a state court of
competent jurisdiction in Travis County, Texas.
2) Disputes arising between a Customer and the Vendor shall be resolved in
accordance with the dispute resolution process of the Customer that is not
inconsistent with subparagraph A.l above. DIR shall not be a party to any such
dispute unless DIR, Customer, and Vendor agree in writing.
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EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
B. Termination
1) Termination for Non -Appropriation
a) Termination for Non -Appropriation by Customer
Customer may terminate Purchase Orders if funds sufficient to pay its obligations
under the Contract are not appropriated: i) by the governing body on behalf of
local governments; ii) by the Texas legislature on behalf of state agencies; or iii)
by budget execution authority provisioned to the Governor or the Legislative
Budget Board as provided in Chapter 317, Texas Government Code. In the event
of non -appropriation, Vendor and/or Order Fulfiller will be provided ten (10)
calendar days written notice of intent to terminate. Notwithstanding the foregoing,
if a Customer issues a Purchase Order and has accepted delivery of the product or
services, they are obligated to pay for the product or services or they may return
the product and discontinue using services under any return provisions that
Vendor offers. In the event of such termination, the Customer will not be
considered to be in default or breach under this Contract, nor shall it be liable for
any further payments ordinarily due under this Contract, nor shall it be liable for
any damages or any other amounts which are caused by or associated with such
termination.
b) Termination for Non -Appropriation by DIR
DIR may terminate Contract if funds sufficient to pay its obligations under the
Contract are not appropriated: by the i) Texas legislature or ii) by budget
execution authority provisioned to the Governor or the Legislative Budget Board
as provided in Chapter 317, Texas Government Code. In the event of non -
appropriation, Vendor and/or Order Fulfiller will be provided thirty (30) calendar
days written notice of intent to terminate. In the event of such termination, DIR
will not be considered to be in default or breach under this Contract, nor shall it
be liable for any further payments ordinarily due under this Contract, nor shall it
be liable for any damages or any other amounts which are caused by or associated
with such termination.
2) Absolute Right
DIR shall have the absolute right to terminate the Contract without recourse in the
event that: i) Vendor becomes listed on the prohibited vendors list authorized by
Executive Order #13224, "Blocking Proj)erty and Prohibiting Transactions ivitl
Persons Who Commit, Threaten to Conrrrrit, or , rj7,;j,7ort yerrrcrrisrrr ", published by the
United States Department of the Treasury, Office of Foreign ,assets Control; n)
Vendor becomes suspended or debarred from doing business with the federal
government as listed in the Excluded Parties List System (EPLS) maintained by the
General Services Administration; or (iii) Vendor is found by DIR to be ineligible to
hold this Contract under Subsection (b) of Section 2155.006, Texas Government
Code. Vendor shall be provided written notice in accordance with Section I I.A,
Notices, of intent to terminate.
3) Termination for Convenience
DIR may terminate the Contract, in whole or in part, by giving the other party thirty
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EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
(30) calendar days written notice. A Customer may terminate a Purchase Order if it is
determined by the Customer that Order Fulfiller will not be able to deliver product or
services in a timely manner to meet the business needs of the Customer.
4) Termination for Cause
a) Contract
Either DIR or Vendor may issue a written notice of default to the other upon the
occurrence of a material breach of any covenant, warranty or provision of the
Contract, upon the following preconditions: first, the parties must comply with the
requirements of Chapter 2260, Texas Government Code in an attempt to resolve a
dispute; second, after complying with Chapter 2260, Texas Government Code,
and the dispute remains unresolved, then the non -defaulting party shall give the
defaulting party thirty (30) calendar days from receipt of notice to cure said
default. If the defaulting party fails to cure said default within the timeframe
allowed, the non -defaulting party may, at its option and in addition to any other
remedies it may have available, cancel and terminate the Contract. Customers
purchasing products or services under the Contract have no power to terminate the
Contract for default.
b) Purchase Order
Customer or Order Fulfiller may terminate a Purchase Order upon the occurrence
of a material breach of any term or condition: (i) of the Contract, or (ii) included
in the Purchase Order in accordance with Section 10.13.2 above, upon the
following preconditions: first, the parties must comply with the requirements of
Chapter 2260, Texas Government Code, in an attempt to resolve a dispute;
second, after complying with Chapter 2260, Texas Government Code, and the
dispute remains unresolved, then the non -defaulting party shall give the defaulting
party thirty (30) calendar days from receipt of notice to cure said default. If the
defaulting party fails to cure said default within the timeframe allowed, the non -
defaulting party may, at its option and in addition to any other remedies it may
have available, cancel and terminate the Purchase Order.
5) Customer Rights Under Termination
In the event the Contract expires or is terminated for any reason, a Customer shall
retain its rights under the Contract and the Purchase Order issued prior to the
termination or expiration of the Contract. The Purchase Order survives the expiration
or termination of the Contract for its then effective term.
6) Vendor or Order Fulfiller Rights Under Termination
In the event a Purchase Order expires or is terminated, a Customer shall pay: 1) all
amounts due for products or services ordered prior to the effective termination date
and ultimately accepted, and 2) any applicable early termination fees agreed to in
such Purchase Order.
C. Force Majeure
DIR, Customer, or Order Fulfiller may be excused fi-om performance under the Contract
for any period when performance is prevented as the result of an act of God, strike, war,
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11.
12.
EXHIBIT "F"
Appendix A
Standard Terms and Conditions For Product and Related Services Coaitracts
civil disturbance, epidemic, or court order, provided that the party experiencing the event
of Force Majeure has prudently and promptly acted to take any and all steps that are
within the party's control to ensure performance and to shorten the duration of the event
of Force Majeure. The party suffering an event of Force Majeure shall provide notice of
the event to the other parties when commercially reasonable. Subject to this provision,
such non-performance shall not be deemed a default or a ground for termination.
however, a Customer may terminate a Purchase Order if it is determined by the
Customer that Order Fulfiller will not be able to deliver product or services in a timely
manner to meet the business needs of the Customer.
Notification
A. Notices
All notices, demands, designations, certificates, requests, offers, consents, approvals and
other instruments given pursuant to the Contract shall be in writing and shall be validly
given on: (i) the date of delivery if delivered by email, facsimile transmission, mailed by
registered or certified mail, or hand delivered, or (ii) three business days after being
mailed via United States Postal Service. All notices under the Contract shall be sent to a
party at the respective address indicated in Section 6 of the Contract or to such other
address as such party shall have notified the other party in writing.
B. Handling of Written Complaints
In addition to other remedies contained in the Contract, a person contracting with D1R
may direct their written complaints to the following office:
Public Information Office
Department of Information Resources
Attn: Public Information Officer
300 W. 151" Street, Suite 1300
Austin, Texas 78701
(512) 475-4759, facsimile
Captions
The captions contained in
convenience and reference
limit any provision thereof.
12/17/12
the Contract, Appendices, and its Exhibits are intended for
purposes only and shall in no way be deemed to define or
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