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HomeMy WebLinkAbout2003-036FILE REFERENCE FORM 2003-036 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILES Date Initials Change Order One approved by Ordinance No. 2003-370 11/18/03 JR Change Order Two approved by Ordinance No. 2005-262 09/20/05 J R ORDINANCE NO. o?OOJ'D J AN ORDINANCE AWARDING A CONTRACT FOR THE LEASE OF DESKTOP PCS, NOTEBOOK PCS, SOFTWARE, PERIPHERALS, AND SERVICES AS AWARDED BY THE STATE OF TEXAS BUILDING AND PROCUREMENT COMMISSION DEPARTMENT OF INFORMATION RESOURCES (DIR); PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 2954-DELL MASTER LEASE AWARDED TO DELL MARKETING, L.P. IN THE AMOUNT OF $176,153.95 PER 6 MONTHS FOR A TOTAL OF $1,056,923.70). WHEREAS, pursuant to Resolution 92-019, the State Building and Procurement Commission has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies or services can be purchased by the City through the Building and Procurement Commission programs at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That the numbered items in the following file number for materials, equipment, supplies, or services, shown in the file number listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 2954 Dell Marketing L.P. $1,056,923.70 SECTION H. That by the acceptance and approval of the above numbered items set forth in File 2954, the City accepts the offer of the persons submitting the bids to the Building and Procurement Commission for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the Building and Procurement Commission, and the purchase orders issued by the City. SECTION III. That should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification ofbids awarded by the Building and Procurement Commission, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, speci- fications and standards contained in the Proposal submitted to the Building and Procurement Commission, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION IV. That by the acceptance and approval of the above numbered items set forth in File 2954, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved file or pursuant to a written contract made pursuant thereto as authorized herein. SECTION V. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of _ l 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY i APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD- File 2954 Agreement Number: 02000390 MASTER LEASE AGREEMENT This Master Lease Agreement, dated and effective as of August 14, 2002, is entered into between Dell Marketing, IF, with its principal offices at One Dell Way, Round Rock, Texas 78682 (the "Lessor) and the State of Texas (the "Lessee'), acting by and through the Department of Information Resources ("D1R'7 with its principal office at 300 West 15th Street, Suite 1300, Austin, Texas 78701, TERMS AND CONDITIONS 1. Definitions. Asset(s). All of the personal property, including hardware, software or licensed products, services, and/or maintenance listed on any Schedule. When Asset(s) refers to Software licensed to Lessee it shall be understood that said software shall continue to be owned by licensor as set forth in the applicable software license agreement. Commencement Date. The date(s) Lessee's obligation to pay Rent begins, which will be the delivery date for each Asset under each schedule. Initial Schedule Term. The period initially agreed to constitute the lease period as set forth in the Schedule. Schedule Term. For each Schedule: shall include the Initial Schedule Term and any Renewal Schedule Terms. Renewal Schedule Term. Any period subsequent to the Initial Schedule Term. Rent. The payment by Lessee to Lessor of money for the lease of the Asset(s) covered by the Schedule. Schedule. The document entitled "True Lease Schedule" specifying the Asset(s), Rent payments, casualty values, Lessor's costs and other information. Lessee. Any Texas state agency and local government as defined in Section 2054.003, Texas Government Code (including institutions of higher education as defined in Texas Education Code, Section 61.003), and those state agencies purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code. 2. Schedules. Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, subject to the terms and conditions of this Master Lease Agreement, the Assets) described in each Schedule. Each Schedule constitutes a separately assignable agreement between the parties executing each Schedule and incorporates in full the terns and conditions of this Master Lease Agreement. Unless DIR leases Asset(s) for its own use, DIR is not a party to the Schedules executed under this Master Lease Agreement and is not responsible for Rents, payments or other obligations under such Schedule(s). 3. Term of Master Lease Agreement and Schedules. (a) The term of this Master Lease Agreement commences on the execution date hereof and continues until (1) the obligations of Lessee under every Schedule are fully discharged and (II) either party provides thirty (30) days prior written notice of termination. Dirt / Dell Marketing L.P. Master Lease Agreement Agreement Number: 02000390 (b) The Initial Schedule Term for each Schedule shall be as set forth thereon. Until either party provides the other with prior written notice of termination, Renewal Schedule Terms of each Schedule shall extend automatically, at the Rent last in effect, for successive three-month terms beyond the expiration of the Initial Schedule Term. All such terminations are effective only (1) following written notice received not less than ninety (90) days prior to the end of the Schedule Term, (I) on the last day of the Initial Schedule Term or Renewal Schedule Term then in effect and (III) with respect to not less than all Asset(s) under a Schedule. Notice of Termination by Lessee may not be revoked without Lessor's consent. 4. Administration of Master Lease. (a) For requests involving the leasing of Dell Marketing, LP equipment, each potential Lessee will submit its request directly to the Lessor. Lessor shall use the then current contract pricing offered within the Dell Marketing, LP and DIR purchasing contract. Lessor shall submit the lease proposal and all other documents directly to the potential Lessee. (b) When incident to a lease of Dell branded Asset(s), and solely at the discretion of Lessor, Asset(s) may also be leased from Lessor that is not manufactured by the parent or an affiliate of Lessor. hi such case, DIR would obtain the price quotation from the manufacturer or reseller, add DIR's administrative fee to the quotation, and submit the quotation to the Lessor for calculation of the Lease Rate Factor, which shall include DIR's administrative fee. DIR will inform Lessor of the administrative percentage fee. Lessor shall prepare the Schedule(s), provide them to DIR and DIR will submit the Schedule(s) to the potential Lessee. With respect to non -Lessor affiliated Asset(s), DIR will arrange for the manufacturer to deliver the Asset(s) to the Lessee and for the manufacturer or reseller toi bill Lessor for the cost of the Asset(s), excluding DIR's administrative fee. In connection with such a purchase, DIR will endeavor to ensure that Lessor is given the benefit of pricing, payment or other favorable terms that would be provided to DIR by the manufacturer or reseller if DIR were to acquire the Asset(s) directly. Lessor shall be responsible for the payment to the manufacturer or reseller and for the recovery of that amount; and the administrative fee for DIR, from Lessee under the applicable Schedule(s). Within five (5) days of execution of a Schedule between Lessor and Lessee, Lessor shall provide DIR a copy of the executed Schedule. DIR shall provide an invoice to Lessor for the DIR administrative fee percentage of the full amount of Rent due under the Schedule. Immediately after the Lessee receives the Asset(s) and Lessor books the lease, Lessor shall pay DIR the administrative fee. The parties agree such payment shall generally be made within thirty days of the date DIR's invoice is received by Lessor. (c) Lessee will issue a purchase order in the amount indicated on the Schedule(s) to Lessor for the Asset(s). Any pre-printed terms and conditions on the purchase order submitted by the Lessee shall not be effective with respect to the lease of Assets hereunder. Rather, the terms and conditions of this Master Lease Agreement and applicable Schedule(s) shall control in all respects. (d) As Rent for the Asset(s), Lessee shall pay Lessor the amounts on the due dates set forth in the Schedule. (e) Each Schedule is a net lease and except as specifically provided herein, Lessee shall be responsible for all costs and expenses arising in correction with the Schedule or Asset(s). Lessee acknowledges and agrees, except as expressly provided in Section 18 hereof, that its obligation to pay Rent and other sums payable hereunder, and the rights of Lessor and Lessor's assignees, shall be absolute and unconditional in all events, and shall not be subject to any abatement, reduction set-off, defense, counterclaim or recoupment due or alleged to be due by reason of any past, present or future claims Lessee may have against Lessor, Lessor's assigns, the manufacturer, vendor, or maintainer of the Asset(s), or any person for any reason whatsoever. (f) On all amounts not paid by Lessee when due, late charges shall accrue at the rate of twelve percent (12%) per annum (or the maximum rate allowable by law, if less) from the due dates thereof until received by Lessor. DIIt / Dell Marketing L.P. Master Lease Agreement Agreement Number: 02000390 Late charges and attorney's fees mecessary to recover Rent and other amounts owed by Lessee hereunder are considered an integral part of this Master Lease Agreement. Payments under the Agreement are subject to the provisions of the Texas Prompt Payment Act. (g) If Lessor is contacted by, or contacts, a potential Lessee, as defined in Section One, Definitions, concerning leasing Asset(s), Lessor shall make a good faith effort to make the entity aware of the ability to lease Asset(s) through this Master Lease Agreement. Provided, however, nothing herein shall require Lessor to use this Agreement exclusively with Lessees. Further, this Agreement shall not constitute a requirements contract and Lessor shall not be obligated to enter into any Schedule for the lease of Asset(s) with any Lessee. 5. Selection, Inspection; Acceptance. (a) The Asset(s) are of a size, design„ capacity and manufacture selected by Lessee in its sole judgment and not in reliance on the advice or representations of Lessor. No representation by the manufacturer or vendor shall in any way affect Lessee's duty to pay Rent and perform its other obligations hereunder. Each Schedule is intended to be a "finance lease"as defined in Article 2A of the Uniform Commercial Code. Lessor has acquired or will acquire the Assets) in connection with this Lease. Lessee acknowledges either (a) that Lessee has reviewed and approved any written purchase order, supply contract or purchase agreement ("Supply Contract"), covering the Asset(s) purchased from the manufacturer or vendor thereof ("Vendor') for lease to Lessee; or (b) that Lessor has informed or advised Lessee, in writing, either previously or by this Lease of the following: (1) the identity of the Vendor; (II) that the Lessee may have rights under the Supply Contract; and (III) that the Lessee may contact the Vendor for a description of such rights that Lessee may have under the Supply Contract. Lessor shall not be liable for damages for any reason, for any act or omission of the Vendor. Lessor agrees, to the extent they are assignable, to assign the Lessee, without recourse to Lessor, any warranties provided to Lessor with respect to the Asset(s). (b) Promptly upon delivery, Lessee will inspect the Asset(s), and, not later than 10 business days following the Commencement Date, Lessee will execute and deliver either (1) an Acceptance Certificate in the form of Exhibit A hereto for the Asset(s)„ or (II) written notification of any defects in the Asset(s). If Lessee has not given notice within such time period, the Asset(s) shall be conclusively deemed accepted. 6. Warranties, Oatet Eniovment and Disclaimer, Indemni (a) Lessor warrants that, provided Lessee is not in default, Lessor will not interfere with Lessee's quiet use and enjoyment of the Asset(s). (b) EXCEPT FOR THE PROVISIONS OF 6(a) ABOVE, WITH REGARD TO THE ASSET (S), LESSOR MAKES NO EXPRESS OR RVIPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LBAHATION: THOSE OF ]MERCHANTABILITY OR FITNESS FOR PURPOSE OR USE, OF CONDITION, PERFORMANCE, SUITABILITY OR DESIGN, OR CONFORMITY TO ANY LAW, RULE, REGULATION, AGREEMENT OR SPECIFICATION, OR OF INFRINGEMENT OF ANY PATENT, TRADE SECRET, 'TRADEMARK, COPYRIGHT OR OTHER INTANGIBLE PROPERTY RIGHT. Lessor shall have no liability to Lessee, nor any other party, nor shall Lessee abate payments, for any loss, claim or damage of any nature caused or alleged to be caused directly, indirectly, incidentally or consequentially by the Asset(s), any inadequacy thereof, deficiency or defect therein (whether known or knowable by Lessor), by any incident whatsoever arising in connection therewith, whether in strict liability or otherwise, or in any way related to or arising out of this Master Lease Agreement or any Schedule. (c) Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent allowed by the laws and Constitution of the State of Texas, Lessee assumes all risks and liabilities, whether or not DIIt / Dell Marketing L.P. Master Lease Agreement 3. Aereement Number: 02000390 covered by insurance, for loss or damage to any Asset(S) and for injury to or death of any person, or damage to any property, whether such injury or death be with respect to agents or employees of Lessee or of third parties, and whether such property damage be to Lessee's property or the property of others, which is proximately caused by the negligent conduct of Lessee, its officers or employees. 7. Installations: Use: Repair and Maintenance. (a) Lessee shall provide a place of installation, which conforms to the requirements of the manufacturer. (b) Subject to the terms hereof, Lessee shall be entitled to unlimited use of the Asset(s) except that in the case of software, the Asset(s) are subject to the parties' rights under the applicable software license agreement. Lessee shall not use or permit the use of the Asset(s) for any purpose, which, according to the specifications of the Manufacturer, the Asset(s) are not, designed or reasonably suited. Lessee shall use the Asset(s) in a careful and proper manner and shall comply with all of the manufacturer's instructions, governmental rules, regulations, requirements and laws, and all insurance requirements, if any, with regard to the use, operation or maintenance of the Asset(s). (c) Lessee shall be solely responsible for the installation, maintenance and repair of the Asset(s). During the Schedule Tenn, Lessee shall (i) keep the Asset(s) in good repair, condition and working order; (ii) maintain in force a maintenance contract with the manufacturer or with another qualified service organization; and (in) permit access to the Asset(s) for installation of engineering changes required to maintain the Asset(s) at the manufacturer's current engineering levels. 8. Ownership: Inspection: Relocation: Personal Property. (a) The Asset(s) shall at all times be and remain the sole and exclusive property of Lessor, subject to the parties rights under any applicable software license agreement. Lessee shall have no right, title or interest in the Asset(s) except a leasehold interest as provided for herein. (b) Lessor, its assigns or their agents shall be permitted free access at reasonable times to inspect the Asset(s). (c) Lessee shall at all times keep the Asset(s) within its exclusive possession and control. Upon Lessor's prior written consent, which shall not be unreasonably withheld, Lessee may move the Asset(s) to another location of Lessee within the continental United States, provided (i) Lessee is not in default on any Schedule, (ii) Lessee executes and causes to be filed at its expense such instruments as are necessary to preserve and perfect the interests of Lessor and its assigns in the Asset(s), (iii) Lessee pays all costs of, and provides adequate insurance during such movement and (iv) Lessee pays all costs otherwise associated with such relocation. Notwithstanding the foregoing, Lessee may move the Asset(s) to another location within Texas without notification to, or the consent of, Lessor. Provided, however, that not later than December 31 of each year, Lessee shall provide Lessor a written report detailing the total number of Asset(s) at each location of Lessee as of that date, and the complete address for each location. Lessor shall make all filings and returns for property taxes due with respect to the Asset(s), and Lessee agrees that it shall not make or file any properly tax returns, including information returns, with respect to the Asset(s). (d) Lessee agrees that the Asset(s) shall be and remain personal property and shall not be so affixed to realty as to become a fixture or otherwise to lose its identity as the separate property of Lessor. Upon request, Lessee will enter into all agreements necessary to ensure that the Asset(s) remain the personal property of Lessor. DIM / Dell Marketing L.P. Master Lease Agreement Agreement Number: 02000390 9. Liens. Lessee shall at its expense keep the Asset(s) free and clear of all levies, liens, and encumbrances, except those in favor of Lessor or its assigns. 10. Risk of Loss. (a) Commencing upon delivery and continuing throughout the Schedule Term, Lessee shall bear the entire risk of loss with respect to any Asset damage, destruction, loss, theft, or governmental taking, whether partial or complete, for any reason. No event of loss shall relieve Lessee of its obligation to pay Rent under any Schedule; (b) If any Asset is damaged, Lessee shall promptly notify Lessor and, at Lessee's expense, within 60 days of such damage, cause to be made such repairs as are necessary to return such item to its previous condition, reasonable wear and tear is excepted; (c) In the event any Asset is destroyed, damaged beyond repair, lost, stolen, or taken by governmental action for a stated period extending beyond the term of any Schedule (an "Event of Loss"), Lessee shall promptly notify Lessor and pay to Lessor, on the next Rent payment date following such Event of Loss, an amount equal to the Casualty Value for the Asset suffering the Event of Loss then in effect as set forth on the Schedule. After payment of such Casualty Value and all Rent and other amounts due and owing on and before such Rent payment date, Lessee's obligation to pay ftuther Rent allocable to the Asset which suffered the Event of Loss shall cease. After receipt of such Casualty Value by Lessor or its assigns, Lessee shall be entitled to receive any insurance or other recovery received by Lessor or its assigns in connection with such Event of Loss, and the Asset(s) for which such Casualty Value was received shall be conveyed to Lessee AS IS, WHERE IS and free and clear of all liens and encumbrances created by or arising through Lessor, but otherwise WITHOUT FURTHER WARRANTY (EXPRESS OR 11"LIIA) WHATSOEVER, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE OR USE; and (d) In the event of a governmental taking of an Asset for an indefinite period or for a stated period, which does not extend beyond the Schedule Term, all obligations of the Lessee with respect to such Asset (including payment of Rent) shall continue. So long as Lessee is not in default hereunder, Lessor shall pay to Lessee all sums received by Lessor from the government by reason of such taking. 11. Insurance. Lessee at its expense shall maintain fire and extended coverage insurance against loss, theft, damage, or destruction of the Asset(s), in an amount not less than the Casualty Value of the Asset(s). Lessee shall further, at its expense, provide and maintain comprehensive public liability insurance in an amount of $1,000,000 per occurrence against claims for bodily injury, death and/or property damage arising out of the use, ownership, possession, operation or condition of the Asset(s), ltogether with such other insurance as may be required by law which names Lessee as an insured and Lessor and its assign(s) as additional insured as their respective interest may appear. Such insurance shall contain a clause requiring the insurer to give Lessor at least one -month prior written notice of the cancellation or any alteration in the terms of such policy. Each policy of property damage insurance shall name Lessor and its assign(s) as loss payees and shall state that all claims there under shall be payable to such party(ies) irrespective of any breach of warranty or other act or omission of Lessee. Each insurance policy shall be with an insurance carrier licensed to provide the insurance required herein in the states where the Asset(s) are located. Lessee hereby appoints Lessor as Lessee's attomey-in-fact upon Lessee's failure to act promptly in any manner with regard to any claim, to make proof of loss and claim for insurance, to make adjustments with insurers, and to DIR / Dell Marketing L.P. Master Lease Agreement Agreement Number: 02000390 receive payment of and execute or endorse all documents, checks, and drafts in connection with payments made as a result of such insurance policies. Lessee will not make adjustments with insurers except with Lessor's written consent. Lessee shall furnish to Lessor, upon request, certificates of insurance or other evidence satisfactory to Lessor that such insurance coverage is in effect or, if Lessor consents, that Lessee is self -insured. Lessee's liability for loss under Section 10 shall not be diminished by any insurance payment less than the actual amount of the loss. Lessees that are defined as state agencies in accordance with Section 2054.003, Texas Government Code (including institutions of higher education as defined in Texas Education Code, Section 61.003) and those purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code, may self - insure their obligations in this section. 12. Surrender of Asset(s). (a) On the last day of the Schedule Term, Lessee shall return the Asset(s) to Lessor in good repair, condition and working order, ordinary wear and tear alone excepted, at the location specified by Lessor, provided, however, such location shall be within the United States and no farther than 500 miles from the original shipment location. Lessee shall arrange and pay for de -installation and packing in accordance with the manufacturer's specifications and for the cost of transporting the Asset(s) by ground, within the United States, no more than 500 miles from the original shipment location, and for insured transportation, if applicable, such insurance coverage if applicable to be not less than the Asset(s) Casualty Value last in effect. Lessee shall, at its expense, cause each Asset to be repaired as necessary to conform to the foregoing return conditions; (b) If, on the last day of the Schedule Term, Lessee shall fail to return to Lessor any Asset listed on the Schedule, Lessee shall be treated as a holdover tenant for all of the Asset(s) listed on the Schedule for a Renewal Schedule Term in accordance with Section 3(b) above and shall continue to pay Rent in the amount set forth in the Schedule for all Asset(s). Ibis provision shall continue for periods beyond the first such renewal term. In no event may Lessee avoid the effect of this provision by returning less than all Asset(s) listed on any Schedule or by returning substitute assets unless Lessor, in its sole discretion, shall expressly agree in writing; and (c) This Section shall not derogate from Lessor's right, to be exercised in its sole discretion, to obtain return of all Asset(s) on the last day of any Schedule Term, or to declare an Event of Default for any failure of Lessee to so return the Asset(s). 13. Representations and Warranties of Lessee. Lessee represents and warrants for the benefit of Lessor and its assigns, and Lessee will provide an opinion of counsel to the effect that, as of the time of execution of the Master Lease Agreement and each Schedule between Lessor and Lessee: (a) Lessee is either a Texas state agency or Texas local governments defined in Section 2054.003, Texas Government Code (including institutions of higher education as defined in Texas Education Code, Section 61.003) or a state agency purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code; (b) Each Schedule executed by Lessee has been duly authorized, executed and delivered by Lessee and constitutes a valid, legal and bindling agreement of Lessee, enforceable in accordance with its terms; (c) No approval, consent or withholding of objection is required from any federal or other governmental authority or instrumentality with respect to the entering into or performance by Lessee of any Schedule between Lessor and Losses; Dllc / Dell Marketing L.P. Master Lease Agreement Agreement Number: 02000390 (d) The entering into and performance of any Schedule between Lessor and Lessee, the Master Lease Agreement or any Schedule will not violate any judgment, order, law or regulation applicable to Lessee or Result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance upon assets of the Lessee or on the Asset(s) ]eased under any Schedule between Lessor and Lessee pursuant to any instrument to which the Lessee is a party or by which it or its assets may be bound; (e) To the best of Lessee's knowledge and belief, there are no suits or proceedings pending or threatened against or affecting Lessee, which if detemrined adversely to Lessee will have a material adverse effect on the ability of Lessee to fulfill its obligations under the Master Lease Agreement or any Schedule between Lessor and Lessee; and (f) The use of the Asset(s) is essential to Lessee's proper, efficient and economic operation, and Lessee will sign and provide to Lessor upon execution of each Schedule between Lessor and Lessee hereto written certification to that effect. 14. Representation and Warranties of DIEL DIR represents and warrants for the benefit of Lessor and its assigns, and DIR will provide an opinion of counsel to the effect that, as of the time iof execution of the Master Lease Agreement: (a) DIR is a State agency as defined in Section 2251.001, Texas Government Code; (b) This Master Lease Agreement has been duly authorized, executed and delivered by DIR and constitutes a valid, legal and binding agreement of D1R, enforceable in accordance with its terms; (c) No approval, consent or withholding of objection is required from any federal or other governmental authority or governmental authority or instrumentality with respect to the entering into or performance by DIR of this Master Lease Agreement; (d) The entering into and performance of the Master Lease Agreement does not violate any judgment, order, law or regulation applicable to DIR or result in any breach of, constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance upon assets of DIR or on the Asset(s) pursuant to any instrument to which DIR is a. party or by which it or its assets may be bound; (e) To the best of D1R's knowledge and belief, there are no suits or proceedings pending or threatened against or affecting DIR, which if determined adversely to DIR will have a material adverse effect on the ability of DIR to fulfill its obligations under the Master Lease Agreement; (f) DIR is authorized to charge and collect the administrative fee set forth herein; (g) Lessor's payment of the administrative fee to DIR shall not constitute an illegal gratuity or otherwise violate Texas law; and (h) DIR is a government agency subject to the Texas Public Information Act. Lessor acknowledges that DIR will comply with the Public Information Act, and with all opinions of the Texas Attorney Generals' office concerning this Act. DIR / Dell Marketing L.P. Master Lease Agreement Agreement Number: 02000390 15. Representations and Warranties of Lessor. (a) Lessor is an entity authorized and validly existing under the laws of its state of organization, is authorized to do business in Texas, and is not in default as to taxes owed to the State of Texas and any of its political subdivisions; (b) The Master Lease Agreement said each Schedule have been duly authorized, executed and delivered by Lessor and constitute valid, legal and binding agreements of Lessor, enforceable in accordance with their terms; (c) No approval, consent or withholding of objection is required from any federal or other governmental authority or instrumentality with respect to the entering into or performance by Lessor of this Master Lease Agreement or any Schedule; (d) The entering into and performance of the Master Lease Agreement or any Schedule will not violate any judgment, order, law or regulation applicable to Lessor or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance upon the assets of the Lessor, including Asset(s) leased under the Master Lease Agreement and Schedules thereto, pursuant to any instrument to which the Lessor is a party or by which it or its assets may be bound; and (e) To the best of Lessor's knowledge and belief, there are no suits or proceedings pending or threatened against or affecting Lessor, which if determined adversely to Lessor will have a material adverse effect on the ability of Lessor to fulfill its obligations under the Master Lease Agreement or any Schedule. 16. Default and Remedies. (a) The occurrence of any of the following events shall constitute an event of default ("Event of Default'l under a Schedule: (I) nonpayment by Lessee of Rent or any other sum payable by its due date; (11) failure by Lessee to perform or observe any other term, covenant or condition of this Master Lease Agreement, any Schedule, or any applicable software license agreement, which is not cured within ten (10) days after notice thereof from Lessor; (III) insolvency by :Lessee; (1V) Lessee's filing of any proceedings commencing bankruptcy or the filing of any involuntary petition against Lessee or the appointment of any receiver not dismissed within sixty (60) days from the date of said filing or appointment; M subjection of a substantial part of Lessee's property or any part of the Asset(s) to any levy, seizure, assignment or sale for or by any creditor or governmental agency; (VI) any representation or warranty made by Lessee in this Master Lease Agreement, any Schedule or in any document famished by Lessee to Lessor in connection therewith or with the acquisition or use of the Asset(s) shall be untrue in any material respect; or (VII) a termination of any applicable software license agrees ment. (b) Upon the occurrence of an Event of Default and at any time thereafter Lessor may, in its sole discretion, do any one or more of the following: (i) After giving fifteen (15) days prior written notice to Lessee of default, during which time Lessee shall have the opportunity to cure such default, terminate any or all Schedules executed by Lessor and the defaulting Lessee; (ii) Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent allowed by the laws and Constitution of the State of Texas, Lessor may proceed by appropriate court action to enforce the performance of the terms of the Schedule an/or recover damages, including all of Lessor's economic loss for the breach thereof; (iii) Whether or not the Schedule is terminated, upon notice to Lessee, take possession of the Asset(s) wherever located, without demand, liability, court order or other process of law, and for such purposes Lessee hereby authorizes Lessor, its assigns or the agents of either to enter upon the premises where such Asset(s) are located or cause Lessee, and Lessee hereby agrees, to reb m such Asset(s) to Lessor in accordance with the requirements of Section DIR / Dell Marketing L.P. Master Leese Agreement Agreement Number: 02000390 12 hereof; (iv) By notice to Lessee, and to the extent permitted by law, declare immediately due and payable and recover from Lessee, as liquidated damages and not as a penalty, the am of (a) the present value of the Rent owed from the earlier of the date of payment by Lessee or the date Lessor obtains a judgment against Lessee until the end of the Schedule Term plus, if the Assets are not returned to or repossessed by Lessor, the present value of the estimated Ira -place fair market value of the Assets at the end of the Schedule Term as determined by Lessor, each discounted at a rate of four percent (4%) per annum; (b) all Rent and other amounts due and payable on or before the earlier of the date of payment by Lessee or the date Lessor obtains a judgment against Lessee; and (c) without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent allowed by the laws and Constitution of the State of Texas, costs, fees (Including all attorneys' fees and court costs), expenses and (d) interest on (a) and (b) from the date of default at 1 %% per month or portion thereof (or the highest rate allowable by law, if less) and, on (c) from the date Lessor incurs such fees, costs or expenses. (c) Upon return or repossession of the Asset(s), Lessor may, if it so decides in its sole discretion, upon notice to Lessee, use reasonable efforts to sell, re -lease or otherwise dispose of such Asset(s), in such manner and upon such terms as Lessor may determine in its sole discretion, so long as such manner and terms are commercially reasonable. Upon disposition of the Asset(s), Lessor shall credit the Net Proceeds (as defined below) to the damages paid or payable by Lessee. Proceeds upon sale of the Asset(s) shall be the sale price paid to Lessor less the Casualty Value in effect as of the date of default. Proceeds upon a re -lease of the Asset(s) shall be all rents to be received for a term not to exceed the remaining Schedule Term, discounted to present value as of the commencement date of the re -lease at the Lessor's current applicable debt rate. Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent allowed by the laws and Constitution of the State of Texas, "Net Proceeds" shall be the Proceeds of sale or re -lease as determined above, less all costs :and expenses incurred by Lessor in the recovery, storage and repair of the Asset(s), in the remarketing or disposition thereof, or otherwise as a result of Lessee's default, including any court costs and attorney's fees and interest on the foregoing at eighteen percent (18%) per armum or the highest rate allowable by law, if less, calculated from the dates such costs and expenses were incurred until received by Lessor. Lessee shall remain liable for the amount by which all sums, including liquidated damages, due from Lessee exceeds the Net Proceeds. Net Proceeds in excess thereof are the property of and shall be retained by Lessor. (d) No termination, repossession or other act by Lessor in the exercise of its rights and remedies upon an Event or Default shall relieve Lessee from any of its obligations hereunder. No remedy referred to in this Section is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Lessor at law or in equity. (e) Neither DIR nor non -defaulting Lessees shall be deemed in default under the Master Lease Agreement or Schedules because of the default of a particular Lessee. Lessor's remedies under this Section 16 shall not extend to DIR and non -defaulting Lessees. 17. Effect of Waiver, Substitute Performance by Lessor. (a) No delay or omission to exercise any right or remedy accruing to Lessor upon any breach or default of Lessee shall impair any such right or remedy or be construed to be a waiver of any such breach or default, nor shall any waiver of any single breach or default be construed to waive or impair Lessor's rights and Remedies with respect to any breach or default therefore or thereafter occurring. Any waiver, permit, consent or approval on the part of Lessor of any breach or Default under this Schedule, or any provision or condition hereof, must be in writing and shall be effective only to the extent such writing specifically sets forth. DIR: / Dell Marketing L.P. Master Leese Agreement Aereement Number: 02000390 (b) Should Lessee fail to make any payment or do any act as herein provided, Lessor shall have the right, but not the obligation, and without releasing Lessee from any obligation hereunder, to make or do the same. All sums so incurred or expended by Lessor shall be immediately due and payable by Lessee and shall bear interest at eighteen percent (18%) per annum or the highest rate allowable by law, if less, calculated from the date incurred until received by Lessor. 18. Assignment by Lessor: Assignment or Sublease by Lessee. (a) Lessor may (i) assign all or a portion of Lessor's right, title and interest in this Master Lease Agreement and/or any Schedule; (ii) grant a security interest in the right, title and interest of Lessor in the Master Lease Agreement, any Schedule and/or any Asset(s); and/or (iii) sell or transfer its title and interest as owner of the Asset(s) and/or as Lessor under any Schedule; and DIR and each Lessee leasing Asset(s) under the Master Lease Agreement understand and agree that Lessor's assigns may each do the same (hereunder collectively "Assignment"). All such Assignments shall be subject to each Lessee's rights under the Schedules) executed between it and Lessor and to DIR's rights under the Master Lease Agreement. Each Lessee leasing Asset(s) through Schedules umder this Master Lease Agreement and DIR hereby consent to such Assignments and agree to execute and deliver promptly such acknowledgements, opinions of counsel and other instruments reasonably requested to effect such Assignment. Each Lessee leasing Asset(s) through Schedules under this Master Lease Agreement and DIR acknowledge that the assigns do not assume Lessor's obligations hereunder and agree, to make all payments owed to the assigns without abatement and not to assert against the assigns any claim, defense, setoff or counterclaim which DIR or the Lessee(s) may possess against the Lessor or any other party for any other reason. Lessor shall remain liable for performance under the Master Lease Agreement and any Schedule(s) executed hereunder to the extent Lessor's assigns do not perform Lessor's obligations under the Master Lease Agreement and Schedule(s) executed hereunder. Upon any such Assignment, all references to Lessor shall also include all such assigns, whether specific reference thereto is otherwise made herein.. (b) Without the prior written consent of Lessor, Lessee shall not assign, sublease, transfer, pledge or hypothecate the Master Lease Agreement, any Schedule, the Asset(s), any part thereof, or any interest in the foregoing. Without the prior written consent of Lessor, DIR shall not assign, sublease, transfer, pledge or hypothecate the Master Lease Agreement. 19. Delivery of Related Documents. For each Schedule, Lessee will provide the following documents and information satisfactory to Lessor: (a) Certificate of Acceptance; (b) Opinion of Counsel; (c) proof of self-insurance acceptable to Lessor; (d) Financial Statements; (e) Incumbency Certificate; and (f) Other documents as reasonably required by Lessor. 20. Aoorouriation of Funds. (a) This paragraph applies only to Lessees designated as state agencies defined in Section 2054.003, Texas Government Code, including institutions of higher education as defined in Texas Education Code, Section 61.003 and state agencies purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code. Lessee intends to continue each Schedule to which it is a party for the Schedule Term and to pay the Rent and other amounts due there under. Lessee reasonably believes that legally available funds in an amount sufficient to pay all Rent during the Schedule Term can be obtained. Lessee further intends to act in good faith to do those things reasonably and lawfully within its power to obtain and maintain funds from which the Rent may be paid. Notwithstanding the foregoing, in the event sufficient funds are not appropriated to continue the DIR / Dell Marketing L.P. Master Lease Agmen=t 10 Amement Number: 02000390 Schedule Term for any Fiscal Period (as set forth on the Schedule) of Lessee beyond the Fiscal Period first in effect at the commencement of the Schedule Term, Lessee may terminate the Schedule with regard to not less than all of the Asset(s) on the Schedule so affected, Lessee shall endeavor to provide Lessor written notice sixty (60) days prior to the end of its current Fiscal Period confirming the Schedule will be so terminated. All obligations of Lessee to pay Rent due after the end of the Fiscal Period for which such termination applies will cease, all interests of Lessee in the Asset(s) will terminate and Lessee shall surrender the Asset(s) in accordance with Section 12 hereof. Notwithstanding the foregoing, Lessee agrees, without creating a pledge, lien or encumbrance upon funds available to Lessee in other than its current Fiscal Period, that it will use reasonable efforts to obtain appropriation of fimds to avoid termination of the Schedule by taking reasonable and appropriate action including the inclusion in Lessee's budget request for each Fiscal Period during the Schedule Term hereof a request for adequate funds to meet its obligations and to continue the Schedule in force. Lessee represents and warrants it has adequate funds to meet its obligations during the first Fiscal Period of the Schedule Term. Lessor and Lessee understand and intend that the obligation of Lessee to pay Rent hereunder shall constitute a current expense of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general revenues, fiords or monies of Lessee or the State of Texas beyond the Fiscal Period for which sufficient funds have been appropriated to pay Rent hereunder. (b) This paragraph applies only to Lessees designated as local government entities. In the event sufficient funds are not appropriated for Lessee to continue the Schedule Tenn for any Fiscal Period (as set forth on the Schedule) of the Lessee beyond the Fiscal Period first in effect at the commencement of the Schedule Tenn, the Lessee may terminate the Schedule with regard to not less than all of the asset(s) on the Schedule so affected. Lessee shall endeavor to provide Lessor written notice sixty (60) days prior to the end of its current Fiscal Period confirming the Schedule will be terminated. All obligations of Lessee to pay Rent due after the end of the Fiscal Period first in effect at the commencement of the Schedule Tern will cease, all interests of Lessee in the Asset(s) will terminate and Lessee shall surrender the Asset(s) in accordance with Section 12 hereof. 21. Miscellaneous. (a) Notices shall be conclusively deemed to have been received by a party hereto on the day it is delivered to such party at the address given shrove (or at such other address as such party shall specify to the other party in writing) or, if sent by certified mail, on the third business day after the day on which mailed, addressed to such party at such address. (b) Applicable Law/Disputes. The Master Lease Agreement and each Schedule SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. In the event of a dispute between the parties suit: may be brought in the federal or state courts where Lessee has its principal office or where the Asset(s) are located. (c) Counterparts. Only original counterpart No. 1 of each Schedule shall be deemed to be "Original' for chattel paper purposes under the Uniform Commercial Code. Any and all other counterparts shall be deemed to be a "Copy". NO SECURITY INTEREST IN THIS MASTER LEASE AGREEMENT, IN ANY OF THE SCHEDULE (S), OR IN ANY OF THE ASSETS MAY BE CREATED, TRANSFERRED, ASSIGNED OR PERFECTED BY THE TRANSFER AND POSSESSION OF THIS MASTER LEASE AGREEMENT ALONE OR OF ANY "COPY"' OF THE SCHEDULE, BUT RATHER SOLELY BY THE TRANSFER AND POSSESSION OF THE "ORIGINAL" COUNTERPART OF THE SCHEDULE INCORPORATING THIS MASTER LEASE AGREEMENT BY REFERENCE. DIR / Dell Marketing L.P. Master Lease Agreement Agreement Number: 02000390 (d) Suspension of Obligations of Lessor. Prior to delivery of any Asset, the obligations of Lessor hereunder shall be suspended to the extent that it is hindered or prevented from performing because of causes beyond its control. (e) Severability. In the event any provision of the Master Lease Agreement or any Schedule shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the parties hereto agree that such provision shall be ineffective without invalidating the remaining provision thereof (f) Entire Agreement. Lessor and Lessee acknowledge that there are no agreements or understandings, written or oral, between them with respect to the Asset(s), other than as set forth in this Master Lease Agreement and in each Schedule to which Lessee is a signatory party. Lessor and Lessee further acknowledge that this Master Lease Agreement and each Schedule to which Lessee is a party contain the entire agreement between Lessor and Lessee. DIR and Lessor acknowledge that there are no agreements or understandings, written or oral, between them other than as set forth in this Master Lease Agreement and that this Master Lease Agreement contains the entire agreement between them. Neither this Master Lease Agreement nor any Schedule may be altered, modified, terminated, or discharged except by a writing signed by the party against whom enforcement of such action is sought. (g) Lessor Certifications. Lessor certifies (i) it has not given, offered to give, and does 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 this Master Lease Agreement and Schedules executed hereunder; (ii) it is not currently delinquent in the payment of any franchise tax owed the State of Texas and is not ineligible to receive payment under Section 31.006, Family Code and acknowledges this Master Lease Agreement may be terminated and payment withheld if this certification is inaccurate; (iii) neither it , nor anyone acting for it, has 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) it has not received payment from DM Lessee or any of their employees for participating in the preparation of this Master Lease Agreement and the Schedules) hereunder, and (v) during the term of this Master Lease Agreement, it will not discriminate unlawfully against any employee: or applicant and that, upon request it 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. (h) The following paragraph applies only to Lessees designated as a State agency as defined in Section 2054.003, Texas Government Code, including a university system or institution of higher education, and those purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code. (a) To the extent that Chapter 2260 of the Texas Government Code, as it may be amended from time to time ("Chapter 2260'1, is applicable to this Agreement and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260, and rules promulgated there under shall be used by the Lessee and Lessor to attempt to resolve any claim for breach of contract made by Lessor. (i) DIR Contract Administrator. DIR shall appoint a contract administrator whose duties shall include but not be limited to the following: A. Facilitating dispute resolution between the Lessor and Lessee. Unresolved disputes shall be presented to DIR for resolution; and DILL' / Dell Marketing L.P. Master Lease Agrcement 12 Agreement Number: 02000390 B. Advising DIR regarding Lessor's performance under the terns and conditions of the contract; 0) Lessor Contract Administrator,. Lessor shall appoint a primary representative to work with the DIR Contract Administrator to maintain, support, and market this contract. DIR reserves the right to require a change in Lessor's then -current primary representative if the assigned representative is not, in the opinion of DK serving the needs of the State of Texas and the Lessees adequately. The DIR Contract Administrator will escalate to Lessor management any unresolved issues, before a change in Lessor's en -current representative is requested by DU J g/ati Lessor's 22. Lessee's Waivers. v °6 To the extent permitted by applicable law, Lessee hereby waives the following rights and remedies conferred upon Lessee by the Uniform Commercial Code: to (i) cancel any Schedule under the Agreement; (ii) repudiate any Schedule; (iii) reject the Asset(s); (iv) revoke acceptance of the Asset(s); (v) recover damages from Lessor for any breach of warranty by the manufacturer or supplier of the Asset(s); (vi) claim a security interest in the Asset(s) in Lessee's possession or control for any reason; (vii) deduct all or any part of any claimed damages resulting from Lessor's default, if any, under any Schedule; (viii) accept partial delivery of the Asset(s); (ix) 'cover" by making any purchase or lease of or contract to purchase or lease equipment in substitution for the Asset(s) due from Lessor, (x) recover any special, punitive, incidental or consequential damages, for any reason whatsoever. 23. UCC Filings. Lessor and Lessee agree that a reproduction of this Lease may be filed as a financing statement and shall be sufficient as a financing statement under the Uniform Commercial Code. Lessee irrevocably appoints Lessor, its officers and employees, as Lessee's attorney -in -fact, with full power in Lessor's and Lessee's name to execute and file all such financing statements and other documents as Lessor deems necessary or advisable hereunder. Lessee shall execute or obtain and deliver to ]Lessor, upon Lessor's request, such instruments, financing statements and assurances, as Lessor deems necessary or advisable for the protection or perfection of this Lease and Lessor's rights hereunder and will pay all costs incident thereto. We both intend to comply with all applicable laws. We intend for each Lease to constitute a "true lease" of Asset(s) under all applicable law. If in any event, we should receive anything of value under the Lease deemed interest under any applicable law, whieb interest would exceed the maximum amount of interest allowed, then any excess interest collected shall be applied to repayment of principal in inverse order of maturity, and interest will be charged at the highest rate permitted by law, with any excess remaining being refunded to you. It is our express intent not to violate any applicable usury laws and in no event will we charge or receive, nor will you pay, any amounts in excess of the legal amount. 25. Handling of Written Complaints. In addition to other remedies contained in this Contract, a person contracting with DIR may direct their written complaints to the following office: DIR / Dell Marketing L.P. Master Lease Agreement 13 Awcoment Number: 02000390 Public Information Office Department of Information Resources Attn: Matt Kelly 300 W. 151h Street, Suite 1300 Austin, TX 78701 (512) 936-6550, voice (512) 475-4759, fax Email: matt.kelly®dir.state.tx.us 26. Amendments. The Master Lease Agreement may be :amended only by written matrument executed by Dell Marketing, LP and DIR. IN WITNESS WHEREOF, Lessor and Lessee have caused this Master Lease Agreement to be executed by their duly authorized representatives. DELL MARKETING, L.P. IWOWWWO �! NAME: lev or / .s —a—e� ie TITLE /'—�Ncs �l7✓ DATE: r 3 D/� STATE OF TEXAS, ACTING BY AND THROUGH THE DEPARTMENT OF INFORMATION RESOURCES NAME: Patrick W. Hogan TITLE: Director of Business Operations Division DATE: LEGAL: DIR / Dell Marketing L.P. Master Lease Agreement 14 ON Exhibit A DELIVERY & ACCEPTANCE CERTIFICATE OF UNCONDITIONAL ACCEPTANCE LEASE #: DATED AS OF: BETWEEN Dell Marketing L.P. AS LESSOR, AND THE UNDERSIGNED LESSEE The undersigned Lessee hereby acknowledges receipt and acceptance of the Equipment described in the above referenced Lease Agreement and/or ADD -ON Schedule, AS IS and WHERE IS on the date; hereof, and represents that it is in good working condition, and LESSEE HEREBY UNCONDITIONALLY ACCEPTS THE EQUIPMENT AFTER FULL INSPECTION THEREOF, as satisfactory for all purposes under the Lease. Lessee certifies that the Lessor has fully and satisfactorily performed all covenants and conditions to be performed by and under the Lease as it relates to such equipment and has delivered the Equipment selected solely by the Lessee in accordance with the Lessee's directions. Lessee agrees that the Lessor has made and makes NO REPRESENTATIONS OR WARRANTIES OR ANY KIND OF NATURE, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING THE SUITABILITY OF SUCH EQUIPMENT, ITS DURABILITY, ITS FITNESS FOR ANY PARTICULAR PURPOSE, ITS MERCHANTABILITY, ITS CONDITION, AND/OR ITS QUALITY AND AS BETWEEN LESSEE AND LESSOR OR LESSOR'S ASSIGNEE ACCEPTS THE EQUIPMENT AS IS, and lessee affirms that it has no defense or counterclaims against Lessor in connection with the Lease Agreement. Lessee certifies that the Equipment has not been placed in service prior to the date hereof. . This Certificate shall not be: considered to alter or amend the terns of the Lease. "Lessee" Dated: Signed By: Title: